Allowed

Swetha @ Raju v. State of Karnataka

Karnataka HC19 Apr 2022CRL.RP/33/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed a criminal revision petition challenging convictions for robbery and assault. The court found the lower courts' judgments perverse due to significant contradictions in the evidence of the victim and the alleged eyewitness, particularly regarding the recovery of stolen money and timing of events, and set aside the convictions.

What did the court decide?

Impugned judgments of conviction and sentence under Section 392 of IPC dated 30.09.2009 and 26.03.2010 set aside; fine refundable; Rs.5,000 awarded to Amicus Curiae.

Swetha @ Raju Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF APRIL, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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CRIMINAL REVISION PETITION NO.33/2013

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BETWEEN:

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SWETHA @ RAJU S/O. VENKATESH AGED ABOUT 27 YEARS NOW RESIDING AT DASARAHALLI VILLAGE HEBBAL KEMPAPURA BENGALURU-560024. ...PETITIONER

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(BY SMT. SOHANI HOLLA, AMICUS CURIAE [THROUGH V.C.])

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AND:

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STATE OF KARNATAKA REPRESENTED BY AMRUTHAHALLI POLICE STATION, AMRUTHAHALLI BENGALURU-560 024. ...RESPONDENT

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(BY SMT. RASHMI JADHAV, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGEMENT DATED 26.03.2010 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-16, BENGALURU CITY IN CRIMINAL APPEAL NO.819/2009 AND JUDGMENT DATED 30.09.2009 PASSED BY THE CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.23887/2008.

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THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Heard the Amicus Curie for the petitioner and the learned High Court Government Pleader appearing for the respondentState.

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The factual matrix of the case of the prosecution is that, on 11.11.2008 at 8.00 p.m., in front of Lumbini Garden, Hebbal Bridge in between Nagawara and Sadashivanagar Road, both the accused persons stopped the motorcycle of C.W.1Anand and took his key of the motorcycle and called him. When he refused to go, they abused him in filthy language and assaulted him with chappal and further, put their hands into his pocket and took Rs.1,200/- and thrown the key and thereby committed the offences punishable under Sections 355 and 392 of IPC.

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Based on the complaint given by the respondentcomplainant, the police have registered the case, investigated the matter and filed the charge-sheet. The accused persons were secured before the Trial Court and they have not pleaded guilty and hence, the prosecution relied upon the evidence of P.Ws.1 to 6 and got marked the documents as Exs.P1 to P8 and

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also M.Os.1 to 4. The accused persons have not led any defence evidence before the Trial Court.

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The Trial Court, after considering both oral and documentary evidence placed on record, acquitted the accused persons for the offence punishable under Section 355 of IPC and convicted for the offence punishable under Section 392 of IPC and sentenced to undergo rigorous imprisonment for a period of two years and nine months.

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Being aggrieved by the judgment of conviction and sentence, an appeal is filed in Crl.A.No.819/2009 and the Appellate Court, on re-appreciation of evidence on record, dismissed the appeal. Hence, the present revision petition is filed before this Court.

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The Amicus Curie for the petitioner, in her argument vehemently contend that, according to the prosecution, incident has taken place on 11.11.2008 at 8.00 p.m. and the accused persons stopped the vehicle of C.W.1 and snatched the key and also an amount of Rs.1,200/-. The prosecution mainly relies upon the evidence of C.W.1 i.e., the complainant, who has been

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examined as P.W.2. The prosecution also relied upon the evidence of the Doctor, who treated the victim. According to the prosecution, P.W.3 is the panch witness as per the charge-sheet and not cited the P.W.3 as the eye witness to the incident before the Trial Court. The counsel would vehemently contend that there is a delay of one day in lodging the complaint and M.Os.1 to 4 have not been identified by the witnesses and identity is not established. The counsel would further contend that the numbers of the notes are not mentioned when the same was seized and in the cross-examination of prosecution witnesses, they categorically admitted that no details of notes are given. Hence, the counsel would vehemently contend that the evidence of P.W.3 cannot be accepted and his evidence is doubtful. Therefore, the very finding given by the Trial Court as well as the Appellate Court is not based on the material available on record.

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Per contra, learned High Court Government Pleader appearing for the respondent-State would submit that P.W.2victim categorically identified the petitioner and also the petitioner has assaulted with chappal. As a result, the

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complainant sustained injuries and he took treatment with P.W.4-Doctor, who has also issued wound certificate in terms of Ex.P5. The chappals which are marked as M.Os.1 and 2 are identified by P.W.2 and the amount which was snatched was recovered at the instance of the petitioner. P.W.5 is the Police Constable, who arrested the petitioner herein and when P.W.3, who is an eye witness had seen the quarrel between the petitioner and the victim-P.W.2, the evidence of P.W.3 cannot be disbelieved. Hence, it does not require interference of this Court.

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Having heard the Amicus Curie for the petitioner and learned High Court Government Pleader appearing for the respondent-State and also on perusal of the material on record, the points that would arise for consideration of this Court are:

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(1) Whether both the Courts have committed an error in convicting the petitioner for the offence punishable under Section 392 of IPC and whether it requires interference of this Court by exercising revisional jurisdiction?

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(2) What order?

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Point No.(1)

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Having heard the respective counsel and also on

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perusal of the material on record, it is the case of the prosecution that, incident has taken place on 11.11.2008 at 8.00 p.m. and the petitioner stopped the motorcycle of C.W.1, who was proceeding in front of Lumbini Garden and snatched the motorcycle key and when he was called to accompany him, he refused to accompany him and hence, the petitioner assaulted with chappal and also snatched an amount of Rs.1,200/- from the pocket of C.W.1. That on 12.11.2008, the P.W.2 showed the petitioner and hence, C.Ws.5, 6, 7 and 8 apprehended the petitioner and produced him before C.W.10 and in the presence of C.Ws.2 and 3, cash was recovered at the instance of the petitioner and chappals were also seized. The prosecution relied upon the evidence of P.Ws.1 to 6 and mainly relies upon the evidence of P.W.2-victim and also the evidence of P.W.3.

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Having considered both oral and documentary evidence placed on record, P.W.1 is the PSI, who produced the accused before the Investigating Officer and given report in terms of Ex.P1. The main witness is P.W.2-victim, who

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reiterates the allegations made in the complaint. This witness was subjected to cross-examination. In the cross-examination, he admits that, when the petitioner was assaulting him, nobody came to rescue him but, he screamed at the spot and he went to Amruthahalli Police Station at 9.30 p.m. and on the advice of the police, he went to the hospital immediately and not given any complaint. He admits that, in his presence, amount was not seized and he came to know about the seizure of the amount, when he went to police station and when he went to police station, already accused persons were there in the police station and he also not noted the numbers of the notes and also he is not having any specific identification mark in respect of the said money.

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The other witness is P.W.3 and he claims that, he saw the petitioner as well as P.W.2-victim and police have also seized the money of Rs.125/- and Rs.85/- and two sets of chappals and mahazar was drawn in terms of Ex.P4. In the cross-examination, he admits that when he was proceeding in the service road, he saw the incident and there is no specific identification mark in the M.Os.

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The prosecution also relies upon the evidence of P.W.4-Doctor and he says that, on 11.11.2008 at 10.55 p.m., the injured came to the hospital in connection with assault and he found swelling on the chest and also on the left hand and the injuries are simple in nature and issued wound certificate. In the cross-examination, it is elicited that, if any persons falls on the hard surface, these type of injuries would be caused. The other witnesses are police witness.

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Now coming to the evidence of P.W.2-victim, it is clear that, at the first instance, he went to Hebbal Police Station and from there, he was sent to Amruthahalli Police Station and Amruthahalli police sent him to hospital and he has not given

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any complaint on that day and he gave the complaint on 12.11.2008 at 9.00 to 9.30 p.m. and he also says that on the request of the police, he had shown the accused and thereafter, the police apprehended the accused and took them to the police station and others ran away from the spot. But, in the crossexamination, he categorically admits that, when he went to the police station, by that time, already the accused was there in the police station and in his presence, no amount was recovered and

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when he went to police station, the police only revealed the same and he also not noted the numbers of the notes. The very evidence of P.W.2 not inspires the confidence of the Court, since there are contradictions in the chief evidence and the crossexamination. In the chief examination, he says that he only showed the accused to the police, but, in the cross-examination, different versions are given. In the chief evidence, he also says that, police after apprehending the accused, took them to police station but, in the cross-examination, he categorically admits that accused was already there in the police station and recovery was also made prior to his visit to the police station. With regard to the seizure of notes is concerned, it is elicited that he has not noted the numbers of the notes.

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The star witness is P.W.3. He says that when the petitioner was making galata with the P.W.2-victim after stopping the vehicle and while proceeding in the road, he witnessed the said incident. But, in the charge-sheet, this witness is shown as mahazar witness and not as an eye witness as contended by the Amicus Curie for the petitioner, but he has given the evidence as if he is an eye witness to the incident. In

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the cross-examination, he says that incident has taken place at 9.00 to 9.30 p.m., but the fact is that the incident has taken place at 8.00 p.m. and P.W.2 also categorically says that nobody came to rescue him, when he was assaulted by the accused and also he does not know the contents of the mahazar and no specific identification marks are found on M.Os.1 and 2 also.

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Having considered the evidence of P.W.3 also, though he has given the evidence as an eye witness, he has been cited as mahazar witness in the charge-sheet. Hence, the evidence of P.W.3 not inspires the confidence of the Court. Both the Courts have failed to take note of the contradictions in the evidence of P.Ws.2 and 3, wherein P.W.2 says that he only showed the accused to the police in the chief evidence but, in the cross-examination, he says that already the accused were there in the police station and recovery is also made at the instance of P.W.2 and the only recovery witness is P.W.3 and in the cross-examination of P.W.3 also, regarding recovery is concerned, it is elicited that there are no specific identification marks are found on M.Os and also he does not know the contents of the mahazar.

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When such being the case, the Trial Court and the Appellate Court have not considered the material on record in proper perspective. The impugned judgment of the Trial Court as well as the Appellate Court, looking into the material on record, suffers from perversity. Though P.W.2 says that an amount of Rs.125/- and Rs.85/- was recovered at the instance of accused Nos.1 and 2, in the voluntary statement of accused Nos.1 and 2, it is only mentioned that Rs.85/- was recovered at their instance and there is no explanation with regard to seizure of Rs.125/- from the accused No.1 and the same is also contrary to the documentary evidence and the voluntary statement of accused. These are the glaring errors on the part of the prosecution witnesses which have not been considered by the Trial Court as well as the Appellate Court. When the Trial Court and the Appellate Court have given perverse finding, it is a fit case to exercise the revisional jurisdiction to set aside the order of the Trial Court and the Appellate Court. Hence, I answer point No.(1) as ‘affirmative’.

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Point No.(2)

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In view of the discussions made above, I pass the

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following:

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ORDER

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(i) The criminal revision petition is allowed. The impugned judgment of conviction and sentence dated 30.09.2009 in C.C.No.23887/2008 passed by the Chief Metropolitan Magistrate, Bengaluru City and the impugned judgment of conviction and sentence dated 26.03.2010 in Crl.A.No.819/2009 passed by the Fast Track Sessions Court XVI Bengaluru City are hereby set aside.

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(ii) If any fine is deposited, refund the same in favour of the petitioner on proper identification.

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(iii) The registry is directed to pay a sum of Rs.5,000/- to the Amicus Curie appointed by this Court on behalf of the petitioner.

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Sd/JUDGE

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Swetha @ Raju v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Swetha @ Raju v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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