Dismissed

Father Gregory Seravo v. the State of Karnataka

Karnataka HC20 Jan 2023CRL.RP/922/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging acquittal in a case involving assault inside a church. The court held that the trial court's finding of acquittal was correct due to inconsistencies in prosecution evidence and the legal bar against converting acquittal to conviction under Section 401(3) Cr.P.C.

What did the court decide?

The revision petition was dismissed, and the Trial Court and Appellate Court records were directed to be returned.

Father Gregory Seravo Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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CRL.RP No. 922 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CRIMINAL REVISION PETITION NO. 922 OF 2013

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BETWEEN:

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FATHER GREGORY SERAVO S/O LATE PIAD SERAVO, AGED ABOUT 60 YEARS R/O OUR LADY OF POMPAI CHURCH, GURUPURA-KAIKAMBA, KINNIKAMBLA POST, MANGALORE TALUK, D.K.-574151.

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…PETITIONER

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(BY SRI. G. DESU REDDY, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REPRESENTED BY PUBLIC PROSECUTOR D.K., MANGALORE. REPRESENTED BY STATE PUBLIC PROSECUTOR OFFICE OF THE ADVOCATE GENERAL, HIGH COURT BUILDING, BANGALORE-560001.

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SYMEN MASCARENHAS S/O BAPTIST MASCARENHAS AGED: MAJOR, R/O BLOSSOMMANE, BELUVAYEE PETE AND VILLAGE-575001 MANGALORE TALUK.

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MATHEW MASCARENHAS S/O SYMEN MASCARENHAS AGE: 22 YEARS R/O BLOSSOMMANE

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CRL.RP No. 922 of 2013

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BELUVAYEE PETE AND VILLAGE-575001 MANGALORE TALUK.

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GILBERT BRAGANJA S/O JOSEPH BRAGANJA, AGE: 50 YEARS, IN FRONT OF BELUVAYEE CHURCH, BELUVAYEE VILLAGE-575001, MANGALORE TALUK.

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JOHN S NAZARATH AGED ABOUT 56 YEARS S/O DUMING NAZARATH, KESARAGADDE, VELUVAYEE-575001 MANGALORE TALUK.

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…RESPONDENTS

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(BY SRI. SHANTHIBHUSHAN, ASSISTANT SOLICITOR GENERAL FOR RESPONDENT NO.1;

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SRI. R.B. DESHPANDE, ADVOCATE FOR RESPONDENT NOS.2 TO 5)

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THIS CRL.RP IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE JUDGMENT OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE DATED 11.09.2013 IN CRL.A.NO.30/2010 AFFIRMING THE JUDGMENT OF THE LEARNED CIVIL JUDGE (JR.DN.) AND J.M.F.C., MOODABIDRI DATED 05.02.2010 IN C.C.NO.555/2006 AND PUNISH RESPONDENTS NO.2 TO 5 APPROPRIATELY.

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THIS PETITION, COMING ON FOR FINAL DISPOSAL, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner, being the complainant, has filed this revision petition challenging the judgment of acquittal dated 05.02.2010 passed by the Civil Judge (Jr. Dvn.) and J.M.F.C., Moodabidri (henceforth referred to as 'Trial Court' for short) in

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CRL.RP No. 922 of 2013

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C.C.No.555/2006. The petitioner has also challenged the judgment dated 11.09.2013 passed by the II Addl. District and Sessions Judge, Dakshina Kannada, Mangalore (henceforth referred to as 'Appellate Court' for short) in Crl.A.No.30/2010.

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The case of the prosecution hinged on a complaint

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lodged by the petitioner herein, that on 19.03.2006, the accused with a common intention to create commotion, entered the Church, where the petitioner was a Priest and when he was offering prayers, the accused No.1 held him by his neck, while accused Nos.3 and 4 assaulted with hands and accused No.2 assaulted him with a wooden stick on his neck, back and other parts of the body. The accused No.1 also assaulted Mr. Anthony Menezas, who tried to intervene, causing injury to his little finger of the left hand. The accused No.1 allegedly threatened to kill the complainant. A case in Crime No.42/2006 was registered for the offences punishable under Sections 323, 324, 341, 506 read with Section 34 of IPC. The investigating officer took up investigation and seized the wooden stick, recorded the statement of the complainant, statement of Anthony Menezas, conducted a spot mahazar and thereafter,

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CRL.RP No. 922 of 2013

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filed a charge-sheet accusing the accused of committing offences punishable under Sections 341, 323, 324, 325, 506 read with Section 34 of IPC.

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The Trial Court took cognizance of the said offences and issued process to the accused. The accused appeared and they were released on bail. Copies of the charge-sheet were furnished to the accused and their plea was recorded. The accused denied the allegations and prayed that they be tried. The prosecution examined PW.1 to PW.9 and marked Exs.P1 to P5 and a material object as MO.1. The statements of the accused was recorded under Section 313 of Cr.P.C. who denied the incriminating evidence against them and produced certain documents in defence.

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Based on the oral and documentary evidence, the Trial Court held that the accused had filed PCR Nos.16/2005 and 17/2005, where they claimed that the complainant and the accused were at loggerheads as the complainant had constructed a huge house, which had 11 rooms for his use and occupation, out of the funds of the church , despite opposition

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CRL.RP No. 922 of 2013

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by the devotees and residents of the village. The Trial Court therefore, held that the complainant and the accused were up in arms against each other. The Trial Court held that PW.1 was the complainant, who claimed that on 19.03.2006 there were 100 - 150 parishioners and that when he raised for an affirmation, the accused rushed to the dais and accused No.1 caught hold of him by his neck and threatened to kill him, while accused No.2 assaulted him with a stick. He claimed that when accused No.1 released him, the accused No.2 again assaulted him and when PW.1 tried to avoid being hit, his right hand was injured. He claimed that the accused No.2 also assaulted him with a stick below his chest on the left side and on the left side of his neck. He claimed that accused Nos.3 and 4 assaulted him on his back when accused No.1 had held him. He alleged that CW2 to CW8, who rushed to the dais, extricated him. However, accused No.1 caught hold of the little finger of CW.2 and twisted it, resulting in a fracture of his left finger. He alleged that the accused threatened to kill those who attempted to saved him. He claimed that he was taken to the hospital by CW.4 and CW.5, where his statement (Ex.P1) was recorded.

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CRL.RP No. 922 of 2013

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He identified the spot mahazar drawn on the next day as Ex.P2

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and also identified the signature thereon.

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The Trial Court noticed that CW.2 was the eye-

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witness, who was examined as PW.2, who supported the prosecution and deposed on the same lines as PW.1. PW.3 was another eye-witness, who also deposed on the same lines as PW.1 and PW.2. He however, claimed that there was no animosity between the PW.1 and the accused, but deposed that all of them were good to each other till the date of the incident. PW.4 was the Doctor, who treated PW.1, who deposed that PW.1 had suffered a abrasive wound measuring 3 cm in his right hand and abrasive wound on the left neck measuring 1 cm, which was simple in nature. She identified the wound certificate as Ex.P3 and claimed that the said wounds could be caused by MO.1. PW.5 was a witness to the spot mahazar, who identified Ex.P2. PW.6 claimed that on 21.3.2006, when he was at the police station, he was asked to sign certain blank papers. This witness denied that he had signed any spot mahazar and was therefore, treated as a hostile witness. PW.7 was the witness to the spot mahazar and seizure mahazar of MO.1, who

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CRL.RP No. 922 of 2013

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also turned hostile. PW.8 was the investigating officer, who drew the mahazar at Ex.P2 and seized MO.1 under Ex.P4 and recorded the statements of the witnesses, in whose presence the spot mahazar and MO.1 were seized. PW.9 was the Medical Officer at Alvas Hospital, Moodabidri, where PW.2 was treated and he deposed about the injuries sustained by PW.2 on 19.03.2006. He found that the little finger of the left hand of PW.2 was fractured. He identified the wound certificate as Ex.P5. The Trial Court noticed that there were severe inconsistencies and improvements in the case of PW.1, which belied the case of the prosecution. During course of his crossexamination, PW.1 claimed when the accused assaulted him at the prayer meet, none of the parishioners saved him, which was contrary to what was claimed in Ex.P1. The Trial Court therefore, doubted the claim of PW.1 in his complaint as well as in his chief-examination that the persons in the prayer meet had saved him. It also held that PW.1 admitted that the accused had threatened him earlier but he had not lodged any complaint in that regard. Therefore, it held that there was a feud between the accused and PW.1 even prior to the date of

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CRL.RP No. 922 of 2013

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the incident i.e., 19.03.2006. It noticed the evidence of PW.1 that there was animosity between PW.1 and the accused over the construction of a huge house for PW.1 at a huge cost out of the funds of the Church. The Trial Court held that though there were 100 - 150 people in the prayer meet, except CW.2 to CW.8, there was no one else to testify about the incident as PW.2 and PW.3 were interested witnesses. It also noticed the evidence of PW.2 that no one amongst 150 persons assembled, stopped the accused from going on to the dais. Though PW.2 claimed he was sitting in front of the dais, he made no attempt to save PW.1 from being assaulted. PW.3 also deposed that nobody tried to save PW.1. The Trial Court after considering these material evidence, doubted the case of the prosecution as none of the prosecution witnesses spoke about anyone attempting to save the complainant/PW.1 from being assaulted. It held that in view of the previous animosity between them and the private complaints lodged by the accused against complainant/PW.1 and in view of the fact that the injuries were simple in nature, held that the prosecution did not prove the case beyond doubt and hence, acquitted the accused.

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CRL.RP No. 922 of 2013

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Being aggrieved by the said judgment acquitting the accused, the State filed Crl.A.No.30/2010 before the Appellate Court. The Appellate Court after perusing the material on record and reconsidering the evidence, dismissed the appeal and upheld the judgment of acquittal.

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The complainant being aggrieved by the said

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judgment of acquittal has filed this revision petition before this Court.

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The learned counsel for the petitioner/complainant submitted that the evidence on record established the fact that the accused were present in the Church on 19.03.2006. He also submitted that the evidence of PW.2 and PW.3 corroborated the evidence of PW.1 and the seizure of MO.1 was also proved. Therefore, he contended that the Trial Court and the Appellate Court committed an error in acquitting the accused. He submitted that the wound certificate of PW.1 also established that he was assaulted. He therefore, prayed that the judgments of the Trial Court and the Appellate Court be set aside.

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CRL.RP No. 922 of 2013

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Per contra, the learned counsel for the accused submitted that this revision petition is not maintainable since the petitioner did not challenge the order of acquittal before the Appellate Court. The learned counsel invited the attention of the Court to sub-Section (4) of Section 401 of Cr.P.C. and contended that this revision petition cannot be entertained. He submitted that an appeal against the judgment of the Trial Court is not maintainable before this Court, but is maintainable before the Sessions Court and therefore, the petitioner cannot even have the benefit of sub-section (5) of Section 401 of Cr.P.C. On facts, he contended that the Trial Court has assessed the evidence and has found that there were enormous inconsistencies in the evidence of PW.1 and PW.3 and therefore, there was a genuine doubt about the offence in the manner made out by the prosecution. He also contended that there was an ongoing feud between the petitioner and the accused concerning using funds of the devotees for the construction of a huge bungalow for the petitioner/complainant within the Church compound. He therefore, contended that the complainant unnecessarily implicated the accused in the

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CRL.RP No. 922 of 2013

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offence. He further submitted this court cannot reconsider the evidence on record to overturn a judgment of acquittal in view of sub-section (3) of Section 401 of Cr.P.C.

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I have considered the submissions made by the learned counsel for the petitioner/complainant as well as the learned counsel for the respondent Nos.2 to 5/accused and the learned High Court Government Pleader for the respondent No.1/State.

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Since the learned counsel for the petitioner has raised a fundamental question regarding the jurisdiction of this Court to entertain a revision petition against the judgment of acquittal passed by the Trial Court in C.C.No.555/2006, it is appropriate to extract Section 401 of Cr.P.C., which is as below:-

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" 401. High Court's powers of revision .—(1)

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In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391

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CRL.RP No. 922 of 2013

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or on a Court of Session by section 307 and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392.

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(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

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(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one conviction.

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(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.

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(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."

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CRL.RP No. 922 of 2013

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In the case on hand, the State had challenged the judgment of acquittal passed by the Trial Court in Crl.A.No.30/2010, which was dismissed in terms of the judgment dated 11.09.2013. This revision petition was filed on 13.12.2013 i.e., after the disposal of Crl.A.No.30/2010. Therefore, filing an appeal before the Appellate Court would be a mere formality. This Court has admitted this revision petition and therefore, the question of maintainability of this revision petition has paled into insignificance. Further more, relegating the petitioner back to the Appellate Court would be wasteful exercise resulting in consumption of judicial time. Therefore, without going into the larger question whether this revision petition is maintainable or not, having regard to the peculiar facts of this case, the revision petition is held to be maintainable. However, in the ordinary course, this revision petition would not have been entertained in view of the express bar contained in sub-section (4) of Section 401 of Cr.P.C.

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On facts, the evidence of PW.1 and PW.3 do not instill confidence regarding sanity of prosecuting the accused. PW.1 has departed from his chief examination and has claimed

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CRL.RP No. 922 of 2013

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in his cross-examination that no one attempted to save him from the assault by the accused. PW.1 clearly resiled from the evidence that he lead in the chief examination, thus creating a doubt about the complicity of the accused in the alleged offence. The evidence of PW.2 and PW.3 also did not help the prosecution to establish the guilt of the accused beyond doubt. Even otherwise, since this Court is not empowered to convert a finding of acquittal to one of conviction in view of the bar contained in sub-section (3) of Section 401 of Cr.P.C., it is inevitable that the judgment of the Trial Court acquitting the accused is upheld.

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In view of the above, this revision petition lacks merit and is dismissed .

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The Registry is directed to forthwith return the Trial Court as well as the Appellate Court records.

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Sd/JUDGE

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PMR

Father Gregory Seravo v. the State of Karnataka

Case brief

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Father Gregory Seravo v. the State of Karnataka

Case brief

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