Partly allowed

Chandranaik @ Tukaram v. State by Psi

Karnataka HC21 Mar 2023CRL.RP/483/2015

Case brief

AI extract

What is this about?

High Court allowed revision petition in part, maintaining conviction under Sections 504, 186, 332, 506 IPC for assaulting a public servant. Court substituted heavy fine with reduced fine and directed execution of personal bond under probation provisions.

What did the court decide?

Conviction maintained; sentence modified to include fine of Rs. 2,500 and requirement to execute personal bond for one year for good behavior.

Chandranaik @ Tukaram Vs State by Psi — Service and Employment | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21^ST DAY OF MARCH, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAMACHANDRA D.HUDDAR CRIMINAL REVISION PETITION No.483/2015

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BETWEEN :

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Chandranaik @ Tukaram S/o Manasingnaik, Aged about 29 years, Occ : Agriculturist, R/o Punabhagatta Thanda, Harapanahalli Taluk, Davanagere District - 583 125.

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… Petitioner

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(By Sri Vinaya Hegde, Advocate for Sri S.V.Shastri, Advocate)

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AND :

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State by PSI, Arasikere Police Station, Davanagere District - 583 125.

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… Respondent

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(By Sri V.S.Vinayaka, HCGP)

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This Criminal Revision Petition is filed under Section 397 R/w. Sec.401 of Criminal Procedure Code praying to set aside the judgment dated 17.04.2015 passed in Criminal Appeal No.76/2013 on the file of II Addl. District and Sessions Judge at Davangere confirming the judgment dated 22.06.2013 passed in C.C.No.602 of 2011 on the file of Court of Judicial Magistrate First Class at Harapanahalli and allow this petition with exemplary costs.

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This Criminal Revision Petition having been heard and reserved on 17.02.2023, coming on for pronouncement of orders, this day, the Court made the following :

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O R D E R

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Revision petitioner-accused has preferred this revision under Section 397 R/w Sec.401 of Code of Criminal Procedure (for short ‘Cr.P.C’) challenging the judgment of conviction and sentence passed in C.C.No.602/2011 dated 22.06.2013 by the Judicial Magistrate First Class Harapanahalli, being affirmed by the II Additional District and Sessions Judge, Davangere in Criminal Appeal No.76/2013 dated 17.04.2015.

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Brief and relevant of facts of the case are as under :

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That a complainant by name P.Laxmipathi submitted a complaint to the Arasikere Police Station alleging that at 12.15 p.m. on 24.05.2011, he was at his Punabhagatta Village Gram Panchayat and working there as Panchayat Development Officer, at that time, accused came there and started quarreling with the complainant being the

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Panchayat Development Officer of Grampanchayat alleging that he has not prepared the list of beneficiaries of residential houses of Channapur Thanda Village. Accused also abused complainant in filthy language ‘«ÄAqÀj ªÀÄUÀ£É’ and also slapped on the left cheek of the complainant and also dragged the shirt of the complainant, threw away the registers and books kept on the table and obstructed the complainant being a public servant in discharging his official duty. Accused also gave a life threat to the complainant stating that he will kill him. CWs.4 to 6 being the persons in the said office consoled the accused and pacified the quarrel. Thereafter, complainant went to the Harapanahalli Police Station and lodged a complaint which is being registered in Crime No.44/2010 for the offences punishable under Sections 504, 186, 332 and 506 of Indian Penal Code (for short, ‘IPC’).

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The Investigating Officer after registering the crime set the criminal law in motion by submitting a first information report to the court. Went to the scene of offence and conducted the spot panchanama in the

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presence of panchas, CWs.2 and 3. During the course of investigation, recorded the statement of witnesses, obtained the wound certificate. After completion of the investigation, Investigating officer has filed the chargesheet against accused person for the aforesaid offences.

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After filing charge-sheet, the jurisdictional Magistrate took the cognizance of the aforesaid offences. Secured the presence of the accused. He was enlarged on bail. Copies of the police papers were furnished to the accused as contemplated under Section 207 of Criminal Procedure Code (for short ‘Cr.P.C’)

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Having heard the arguments on framing charges, the jurisdictional Magistrate framed the charges against the accused person for the aforesaid offences and explained to the accused in Kannada in the language known to him. He pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution in all examined 13 witnesses from PWs.1 to 13 and got

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marked Exs.P.1 to P.13 and MO-1 the torn shirt. Closed prosecution evidence.

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After closure of the prosecution evidence, accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and led the defence evidence. He himself entered the witness box as DW.1, examined two witnesses by name Surendranaik and Mailarappa as DWs.2 and 3, got marked Exs.D.1 to 17, closed defence evidence.

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The learned jurisdictional Magistrate after closure of the evidence of both side and on hearing the arguments, found the accused guilty for the offences punishable under Sections 504, 186, 332 and 506 of IPC and sentenced him to pay fine of 1,000/- for the offence punishable under Section 504 of IPC and in default to undergo simple imprisonment for one month, sentenced him to pay a fine of 500/- for the offence punished under

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Section 186 of IPC and in default to undergo simple imprisonment for eight days, sentenced to undergo simple imprisonment for six months for the offences under Section 332 of IPC and also sentenced to pay of 1,000/- with default sentence and also sentenced to undergo simple imprisonment for six months and sentenced to pay fine of 1,000/- for the offence under Section 506 of IPC with default sentence with a direction to sentences shall run concurrently.

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The judgment of conviction and sentence was challenged by the accused before the II Additional District and Sessions Judge, Davangere by filing Criminal Appeal No.76/2013. The learned II Additional District and Sessions Judge, Davangere after securing the records and on hearing the argument of both side dismissed the said appeal by confirming the judgment of the trial court vide judgment dated 17.04.2015.

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These judgments that have been challenged by the revision petitioner/accused on the following grounds :-

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That the learned Trial Court though answered the points for consideration in the negative but, while giving finding answered them in the affirmative. It shows that there is no proper appreciation of evidence by the trial Court. Both the courts have believed the complainant’s evidence as gospel truth and no proper reasons are assigned to find guilty of accused. The appellate Court has simply concurred with the findings of the trial court which is erroneous. There is no material to prove the guilt of the accused and the evidence placed on record by the prosecution was not creditworthy to be accepted. When a specific stand is taken by the accused that he was not present on that day, the trial court ought to have acquitted the accused, there is no supportive evidence. It was a clear case of discharge of accused. None of the ingredients of the offences having been made out by the prosecution against accused. The evidence so led by the prosecution

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never connects the accused in the commission of the crime. Amongst the other grounds, it is prayed to allow the revision and set aside both the judgments.

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After filing this revision petition, the same came to be admitted with a direction to the accused to execute the bond for a sum of `50,000/- with two sureties. The trial court records are secured.

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Learned High Court Government Pleader took notice of this revision petition.

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Heard the arguments, perused the records.

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PW.1 the complainant has reiterated the allegations made in the complaint. The complainant P.Lakshmipathi was the Panchayat Development Officer at the relevant point of time being a public servant defined under the provisions of Indian Penal Code is not in dispute. However, to prove that he was the Government Servant at the relevant time. Ex.P.10 a covering letter addressed by

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the Executive office, Taluk Panchayat Harapanahlli is produced along with register of attendance wherein at

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Sl.No.9 name of the complainant is shown as Panchayat Development Officer of the said grampanchayat. While marking this document, the evidence shows that no objection is raised by the defence. Thus, it is proved that, PW.1 complainant was the public servant as defined under Section 21 of the Indian Penal Code at the time of the alleged incident.

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It is his specific evidence that on 24.05.2011 himself, the former President - Hanumanthappa, the present Member of the Panchayat Nagrajappa and the former Member Hanumanthappa had been to Channapura Thanda for the purpose of inspection with regard to the grant of residential houses to the beneficiaries. There, an enquiry was made with regard to the non inclusion of the name of the beneficiaries. He assured them to include the names whose names were not included and came to the Grampanchayat Office. At 12.15 afternoon suddenly, accused Chandranaik @ Tukaram entered the office and abused him in filthy language as ‘«ÄAqÀj ªÀÄUÀ£É’. At that time complainant told him to sit down and speak, but the

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accused slapped on the left cheek of complainant, dragged his shirt and threw away the registers kept on the table. CWs.4 to 6 resolved the quarrel and asked the accused to go to house. The accused warned the complainant stating that he should work properly otherwise he will take his life. He also enquired that why the names of the beneficiaries are left out. It is alleged that because of the act of the accused, he being a public servant, this accused has caused obstruction in discharging his public duties. He states that, thereafter he went to the police station and lodged complaint as per Ex.P.1. Thereafter, police came to the scene of occurrence, conducted the panchanam as per Ex.P.2 and seized MO-1 his torned shirt. Took the photographs as per E.xP.3 and Ex.P.4. He identifies the accused as the person who assaulted him.

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This PW.1 has been directed with severe cross-

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examination. It is elicited that accused used to visit the panchayat office with a request to provide him a job of construction of a bunds under Employment Scheme. But

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the complainant has not provided the job or employment to the accused.

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So far as, the presence of the CWs.1 to 6 at the panchayat office has been deposed by this PW.1. According to PW.1, accused came to the panchayat office and he was accompanied by some boys who were 4-5 in number. The Secretary, Tokanaik, Dalayat were in the office. Others were standing near the door of the Panchayat. It is stated that CW.4 has asked the accused not to do any galata. According to him, after 10 minutes of the incident, he went to the police station and lodged a complaint before Assistant Sub Inspector and thereafter he went to the hospital. He was in the hospital for half an hour and thereafter police came to the panchayat office conducted panchanama. Accused is a graduate and used to enquire about the affairs of the panchayat.

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Except the denial with regard to the said incident nothing is elicited from the mouth of PW.1 by the defence.

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PW.7 - A.K.Halappa the Secretary of the Grampanchayat, Punabhgatta. PW.9 - Jayappa and PW.10 Pandeppa T, the Taluk Executive Officer have been examined by the prosecution to prove about the said incident. PW.7 states in line with the contents of the complaint about arrival of accused at the office of Panchayat on 24.05.2011 and also speaks about galata being done by him. He states that accused abused complainant in filthy language and there were exchange of words in between the complainant and the accused. He warned the complainant that he has to work as per his say otherwise he will do what he has done to the previous Secretary. Thus, caused obstruction to the discharge of the public duties by PW.1. Accused also dragged the shirt of the complainant being marked as M.O-1.

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He has been directed with severe cross-

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examination. He says, at the time of incident there were 20-30 persons. Though lengthy cross-examination is directed but nothing worth is elicited so as to disbelieve his evidence given in the examination-in-chief. It is directed to

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PW.7 that the complainant has misappropriated the funds and he was suspended once etc. Though he admits about the suspension, but deposed ignorance about misappropriation of fund by the complainant.

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PW.9-Jayappa is an independent witness states before the Court that on 24.05.2011, it was informed by the complainant to him through telephone stating that accused in the office of Panchayat dragged him. Thereafter, this PW.9 went to the police station. There is no cross-examination directed this PW.9 by the defence.

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PW.10 - Pandeppa being the Taluk Executive Officer at the relevant time speaks about issuance of Ex.P.10 and Ex.P.11 to show that on the day of incident complainant was on duty as a public servant and he was discharging his duties as a public servant. Except the denial nothing is elicited from the mouth of this witness.

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PW.2 - Hanumanthappa and PW.3 - Nagaraj, PW.6 - Hanumanthappa state in their respective evidence that, on 24.05.2011 when they came to the panchayat

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office there was some galata, but deposed ignorance that it was accused who did galata. That means the galata which has taken place on 24.05.2011 having been spoken to by these two witnesses in their evidence.

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PW.4-Somanna, PW.5-Nandeppa are the panchas to the Ex.P.2 i.e., scene of offence. They have been turned hostile. Nothing worth is elicited from the mouth of these witnesses so as to disbelieve their evidence given in the examination-in-chief. Therefore, evidence of PWs.4 and 5 would not help to the case of the prosecution.

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PW.8-Tokyanaik an eye witnesses to the incident being the Clerk in the Grampaanchayat Punabhgatta speaks about the incident and also he came to know that accused abused complainant in filthy language. Though he has been branded as an eyewitness but he has deposed ignorance about the said incident.

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PW.12 - Ratan Singh was an Assistant SubInspector of Police who received the complaint and

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arrested the accused. According to his evidence, after registration of the complaint, he went to the scene of offence, conducted the spot panchanama in the presence of CW.2 and 3 and seized M.O-1. Though he has been directed with cross-examination but conducting the panchanama at the scene of offence is not specifically denied. So to say except the bare denial nothing is elicited. PW.13 Lakshaman Naik is the charge sheeting officer who filed the charge-sheet after collecting wound certificate Ex.P.12.

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PW.11 - Vinay Bendre was the Doctor at the relevant time who medically examined PW.1 on 24.05.2011 at 4.00 p.m. and noticed the injuries on the person of complainant. According to Doctor, complainant sustained pain on his left cheek and injury was aged 4-5 hours and it was simple injury. To that effect, he has issued Ex.P.12 the wound certificate. He has been crossexamined by the defence. It is suggested to PW.11 that he has not mentioned about witnessing of the said injury in his wound certificate. Such injury can be caused if a

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person’s cheek comes in contact with hard substance. Though the suggestion is directed to PW.11, but no similar suggestion is directed to PW.1 stating that, as PW.1’s cheek came in contact with hard substance therefore he sustained such a injury. Thus there is no effective crossexamination directed to PW.1 with regard to the injury sustained by him. Therefore, the only inference that can be drawn is because of assault by accused, the complainant must have sustained such a injury as noticed in Ex.P.12.

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Exs.P.3 and 4 are the photographs being snapped at the time of conducting panchanama and coupled with compact disk at Ex.P.5. The Investigating officer has spoken about the same. There is no denial of the fact by the defence.

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On reading of the evidence of PWs.1, 7, 9 and 12 coupled with the other evidence placed on record, it connects the link in between the crime attributed against the accused and the victim PW.1.

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Surendranaik and DW.3 - Mailarappa are examined to prove that no such incident has taken place and for the first time this accused has taken a plea of alibi. It is stated by DW.1 that as the complainant within five months of taking charge as Panchayat Development Officer has misappropriated `42,74,203/being the amount sanctioned under the employment scheme. This has been informed by the accused by giving representation to the Deputy Commissioner. He further states that no action was taken and complainant was forcing the accused to withdraw the said representation otherwise he will file a complaint against him. Not even a single sentence is directed to this PW.1 by the accused about giving of a representation against PW.1.

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DWs.2 and 3 are the persons who are followers of DW.1-accused. It is quite natural to expect their evidence to support DW.1. According to the defence witness, no such incident has taken place. The accused also relied upon various documents, such as his

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representations, letters making allegations against various authorities. The learned Trial Court while giving findings has come to the conclusion that, if at all accused wants to take action, he must take action in accordance with law and he cannot take the law into his hands.

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It is argued by the learned counsel for the petitioner/accused that there is no proper evidence being adduced against the accused person and therefore accused is entitled for acquittal. According to him, prosecution evidence suffers from material particulars and there is a doubt in the case of prosecution and that benefit is to be extended to the accused.

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As against this submission, the learned High Court Government Pleader supports the reason being assigned by both the courts and the findings thereon. He submits that injured is a best witness to speak against the accused person. According to him, based upon the solitary evidence of complainant, conviction can be based.

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It is well established principles of law that while appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole that inspires a confidence. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence, more particularly keeping in view the deficiencies, drawback and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentence torn-out of the context here or there from the evidence, attaching importance to some technical error without going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. ( Shamim v. State (GNCT of Delhi)¹ .

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It is also settled principle that minor contradictions in testimony of injured witness and minor

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1 AIR 2018 Supreme Court 4529)

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inconsistencies do not render a witness unreliable and untrustworthy. PW.1 has spoken before the Court being the injured with regard to assault being committed on him by the accused and always it is said that injured witness is placed at a highest pedestal. Though, it is argued that there is a doubt in the case of the prosecution, but the laws says that doubts would be called reasonable, if they are free from a zest for abstract speculation. Law cannot afford any favour other than truth. To constitute reasonable doubt, it must be free from an overmotional response. Doubts must be actual and substantial doubts as the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reasoned and commonsense. It must grow out in the evidence of the case. ( Bhaskar Ramappa Madar vs. State of Karnataka)² . It is settled that in appropriate cases the evidence of solitary witness itself may be sufficient for conviction.

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2 2009 Crl.L.J 2422 (SC)

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If the aforesaid principle are applied to the present facts of the case, PW.1 being the injured witness, his evidence must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The evidence of PW.1 should be relied upon in this case as there are no grounds for the rejection of his evidence and no major contradictions and discrepancies are brought on record by the defence so as to disbelieve his evidence.

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The learned trial Court as well as first appellate Court have appreciated the evidence in proper perspective and I do not find any factual or legal error in finding the accused guilty in the commission of the crime. Thus, if all these factual features coupled with the principles laid down in the aforesaid judgments are read together, the trial Court and the first appellate Court are right in finding the accused guilty. Accordingly, the trial Court has convicted the accused. The findings recorded by

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the learned Magistrate affirmed by the first appellate court is based upon the sound and logical reasons. The said judgments do not suffer from any legal infirmity or perversity so as to interfere by this Court in this revision petition.

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So far as sentence is concerned, it is laid down by the Hon’ble Supreme Court of India in catena of judgments that the role being played by the Court while passing an order of conviction is different from the role to be played by the Court while passing the appropriate sentence in a given case. In this regard we have to gainfully place the reliance on the judgment of the Hon’ble Supreme Court of India, in the case of Gulzar v. State of M.P.³ In paragraph 12, it has been held as under:

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“12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman

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3 (2007) 1 SCC 619

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convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the Courts in relation to supervision and other matters while P.O. Act does make such a provision. While Section 12 of the P.O. Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the P.O. Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to coexist at the same time in the same area. Such coexistence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the P.O. Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable.”

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If the principles so laid down in the aforesaid judgment are applied to the facts of this case, looking into the factual evidence, learned trial Magistrate ought to have taken note that accused is a graduate and first time offender. In the absence of any previous criminal antecedents with regard to the accused, the learned Trial Magistrate ought to have extended the benefit of Probation of Offenders Act. Unfortunately, the learned Judge in the first appellate Court has also failed to do so. Accordingly, this Court is of the considered opinion that if the accused is directed to execute a personal bond in a sum of 25,000/with surety likesome to the satisfaction of the Court for his good behaviour, which shall be in force for a period of one year and pay a fine of 2,500/- for the offences punishable under Sections 504, 186, 332, 506 of IPC would meet the ends of justice. Resultantly, the following :

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ORDER

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Revision Petition filed by the petitioner under Section 401 Code of Criminal Procedure is allowed in part.

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The conviction so imposed by the Judicial Magistrate First Class, Harapanahalli in C.C.No.602/2011 dated 22.06.2013, affirmed by the II Additional District and Sessions Judge, Davangere in Criminal Appeal No.76/2013 dated 17.04.2015 for the offences punishable under Sections 504, 186, 332, 506 of Indian Penal Code is maintained.

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The revision petitioner/accused is directed to execute a personal bond in a sum of 25,000/- with one surety for the likesome to the satisfaction of the trial Magistrate for his good behavour, which shall be in force for a period of one year and to pay a fine of 2,500/- in all for the offences punishable under Sections 504, 186, 332, 506 of Indian Penal Code inclusive of the fine amount imposed by the trial Magistrate and confirmed by the first appellate Court payable on or before 15.04.2023.

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It is made clear that any violation of the bond condition or payment of the fine amount, the order of the trial Magistrate confirmed by the first appellate Court stands restored automatically.

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Office is directed to return the trial court records and

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the first appellate court records with a copy of this order,

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forthwith.

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SD/JUDGE

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sk/-