Dismissed

Ms. Erica v. Smt. Charumathi

Karnataka HC14 Oct 2024CRL.RP/285/2023

Case brief

AI extract

What is this about?

Defacto complainant challenged concurrent acquittals in a criminal revision over an anonymous threatening message sent to her mobile. The High Court found no material linking the respondent to the message and held the prosecution failed to secure witnesses despite coercive steps. Revision petition dismissed at admission stage; rights in split-up charge sheet against accused No.1 left unaffected.

What the court decided

AI extract

Ms. Erica Vs Smt. Charumathi — Criminal Trial and Appeal | Karnataka HC (2024)

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NC: 2024:KHC:41500 CRL.RP No. 285 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION No.285 OF 2023

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BETWEEN:

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MS. ERICA AGED ABOUT 53 YEARS, NO.28, GOWRIKUNJ, PALACE CROSS ROAD, BENGALURU - 560020.

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…PETITIONER (BY SRI AMIT ANAND DESHPANDE, ADVOCATE) AND:

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SMT. CHARUMATHI C/O G.R. NAIDU, AGED ABOUT 46 YEARS, MAKEUP ARTIST, R/AT NO. FF-1, EMIRILGRTANDOUR, 19/4, DAVID ROAD, COOKS TOWN, BENGALURU

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Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA

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…RESPONDENT

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(BY SRI NAIK VENKATRAMAN NAGAPPA, ADVOCATE)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 19.09.2022 PASSED BY THE LXIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-70), BENGALURU IN CRL.APPEAL No.1340/2019, CONFIRMING THE ORDER OF ACQUITTAL PASSED BY THE 8^TH A.C.M.M., BENGALURU IN C.C.No.16503/2013 DATED 14.05.2019 FOR THE OFFENCE P/U/S 507 R/W 34 OF IPC., BY CONVICTING THE RESPONDENT FOR THE SAID OFFENCES BY ALLOWING THIS CRIMINAL REVISION PETITION.

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NC: 2024:KHC:41500 CRL.RP No. 285 of 2023

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Amit Anand Deshpande, learned counsel for the revision petitioner and Sri Naik Venkataraman Nagappa, learned counsel for the respondent.

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Revision petitioner is the defacto complainant, challenging the order of acquittal dated 14.05.2019, recorded in C.C.No.16503/2013, on the file of VIII Additional CMM at Bengaluru which was confirmed in Crl.A.No.1340/2019, dated 19.09.2022, on the file of LXIX Additional City Civil and Sessions Judge, Bengaluru.

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Facts in brief which are utmost necessary for disposal of the revision petition are as under:

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On 29.11.2012 respondent herein who was the accused No.2 along with split up accused No.1 allegedly sent an anonymous threat message from mobile telephone bearing No.08880546400 to complainant’s mobile telephone bearing No.9342140005. The message reads as “This is to warn you that your son’s life is in danger” :

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3 - NC: 2024:KHC:41500 CRL.RP No. 285 of 2023

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In this regard, a complaint was lodged by the complainant with High Ground police. Police registered the case under Section 507 Cr.P.C., and after thorough investigation filed the charge sheet against the respondent/accused No.2 and split up charge sheet filed against accused No.1 under Section 501 r/w Section 34 IPC.

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Presence of the accused No.1 was not secured and accused No.2 appeared before the Court.

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Plea was recorded, accused pleaded not guilty and trial was held.

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In order to substantiate the case of the prosecution four witnesses were examined as P.Ws.1 to 4 and seven documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to P.7 and the material object, which is the mobile telephone, through which the alleged message was sent, was marked at M.O.1.

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Learned Trial Magistrate after exhausting all possible remedies in securing remaining prosecution witnesses, closed the side of the prosecution. Thereafter recorded the accused statement as is contemplated under Section 313 Cr.P.C.

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Accused No.2 denied all the incriminating

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circumstances, but did not place any defence evidence on record.

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Thereafter learned Trial Magistrate heard the parties and noted that the material evidence placed on record by the prosecution was hardly sufficient to convict the accused No.2 for the offence punishable under Section 507 IPC and acquitted the accused.

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While so acquitting the accused, the learned Trial Judge has taken into consideration the principles of law enunciated in the judgments that were cited at the Bar and noted that the material evidence on record was not sufficient to record an order of conviction.

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Learned Trial Judge also noted that in the evidence of P.W.3, wherein the case came to be registered as NCR No.110/2012 and an endorsement was issued to the complainant.

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P.W.3 in the course of cross-examination, has answered that complainant has not personally visited P.W.3 for lodging the complaint, but it was given to C.W.9 and he does not remember who was the Station House Officer on

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29.11.2012 and on 30.11.2012 and he has not recorded any non-cognizable report.

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Being aggrieved by the said order of acquittal, the defacto complainant filed an appeal before the District Court in Crl.A.No.1340/2019.

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Learned Judge in the First Appellate Court after securing the records heard the parties in detail and by reappreciating the material evidence on record dismissed the appeal of the complainant and confirmed the order of acquittal.

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Learned judge in the First Appellate Court also noted that P.W.1 in her cross-examination has admitted that when she received such a message on her telephone, she had suspicion about Smt. Shyamala. She admits that Smt.Shyamala and second accused are intimate friends.

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Learned Judge in the First Appellate Court also noted that the electronic evidence is not brought on record in a proper manner in the absence of furnishing the certificate under Section 65B of the Indian Evidence Act and dismissed the appeal.

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Being aggrieved by the same, the defacto

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complainant has filed the present revision petition on the following grounds:

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The order of Acquittal passed by both the courts below is opposed to the facts and circumstances of the case.

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Both the courts below failed to appreciate the material evidence available on record and have straight away proceeded to pass the order of acquittal which is unsustainable and liable to be set aside.

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In the impugned order the learned Trial Judge has failed to appreciate the reliable / cogent and convincing evidence of complainant against the accused persons. the materials on record was sufficient enough to record the order of conviction, which course has not been followed by the learned Trial Judge.

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The learned Trial Judge has failed to follow the procedure established for conducting the trial. The procedure adopted by the learned Trial Judge in giving up the witnesses of the charge sheet is fatal and makes the impugned order highly vulnerable.

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It is submitted that the presence of CW2 and 3 is not secured and they have been dropped from leading their evidence. It is pertinent to note that, giving up of witnesses is not the correct procedure. So the procedure adopted by the Learned Trial Judge in dropping these witnesses is incorrect and on this ground alone impugned order is liable to be set aside. By order dated 14.8.2018 summons were ordered to CW2 to 4. By order dated

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10.10.2018 the non- bailable warrants were issued to CW2 to 4 and on 11.12.2018 no orders were passed as regards CW 2 to 4. On 11.1.2019 also no orders were passed as regards CW2 to 4. On 1.3.2019 also interestingly summons is issued as regards CW2 to 5 when the earlier order dated 10.10.2018 issuing NBW to CW2 to 4 was in force. On 22.3.2019 also NBW was got issued to CW2 to 5. By order dated 9.4.2019 the proclamation was ordered as against CW2 to 5. And summonses were ordered to CW 6 to 10. By order dated 3.5.2019 the proclamation on CW2 to 5 was held to be served and they were dropped. The trial court ought to have proceeded with attachment and sale of the properties of these witnesses and ought not to have dropped these witnesses. Hurriedly the matter is disposed of which has resulted in serious miscarriage of justice. It is submitted that the impugned order is misconceived and the evidence given by PW1 has not been properly appreciated. It appears that the Learned Magistrate has relied upon the 161 statement of the complainant rather than the examination in chief The witness has consistently deposed that the threatening message was received on her mobile and it is specifically stated in the cross examination that the accused persons had sent the threatening messages to the mobile of the complainant. The evidence of PW1 is sufficient enough to arrive at the guilt of the accused. It is submitted that the finding recorded at Para No.13 are falsified by the evidence of PW1 in her cross examination in Para No.3 about 11^th line from the top. Therefore the finding recorded in Para No.3 that nothing is attributed to accused No.2 by the

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complainant is misconceived. It is to be noted that evidence given by witness stands on higher pedestal than that of the statement recorded under section 161 of Cr.P.C. It is to be noted that the Hon'ble Constitution Bench of the Hon'ble Supreme Court of India in Hardeep Singh's case has clearly laid down the principle that, the statement recorded under section 161 of Cr.P.C. cannot be termed as evidence. In view of this matter the findings recorded in Para 14 and 15 of the impugned judgment cannot be sustained. The reasoning recorded in Para 15 is highly absurd and it is unsustainable. It is to be noted that much is spoken about the voluntary statement of the accused No. 1 in Para 16, 17 and 18. of the impugned order. It is to be noted that it is not a confession solely based on which the guilt of the accused is sought to be proved but provisions of section 29 and section 133 of the evidence act have not at all been looked into before recording the impugned order. Therefore in view of the provisions of section 29 and 133 of the Indian evidence Act, the impugned order is liable to be set aside.

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The cross examination of PW4 also clearly proves the case of the complaint. In Para No.1 for about 15^th line from the top it is clearly stated by the 10 that from the investigation it was revealed that the accused no.2 gave a mobile to accused no 1 after typing a threatening message to be sent by the accused no. 1 after typing a threatening message to be sent by the accused No.1. Interestingly in page no.2 of her cross examination, suggestion is denied by the 10 wherein the ownership of the mobile of accused No.2 was disputed. And it is

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pertinent to note that suggestion is denied by the 10 that call details had been not secured in this case. Therefore, the findings recorded in Para no.25 are perverse and in contradiction to what is stated by the PW4 in her cross examination. So also the findings recorded in Para No.26 are in contradiction to what is stated by PW 1 in her cross examination.

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 The Learned Magistrate has failed to appreciate the fact that mobile which was seized by the 10 on 12.6.2013 has been identified and it is very important to note that the IO had written letters dated 20.12.2012 and 29.12.2012 to the Police Inspector of Sheshadripuram, Bangalore, for ascertaining in whose name the seized mobile was standing. Therefore the finding recorded in Para No.24 gets negated by the evidence of this witness. It is pertinent to note that the findings recorded in Para 33 and 34 are also falsified by the evidence given by the 10. It is recorded in Para 34 of the impugned order that the prosecution has not proved that mobile bearing no.9342140005 belongs to the complainant and that the finding is recorded that the entire incident itself has not taken place. And further, in the very same paragraph it is found that by mistake the message was sent to the mobile of complainant. This finding is against and contrary to the material on record. Therefore, it appears that the Learned Magistrate has got himself misconceived while arriving at the findings. Nowhere in the entire evidence given by PW 1 it is stated that by mistake that the threatening message was sent by Accused No 1 to the mobile of complainant. It is to be noted that the

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impugned order more particularly findings in Para no.35 are perverse and are without any application of mind. The impugned order is not based on correct appreciation of facts. It is important to note that the 10. PW 4 in his cross examination upon the suggestion by the accused no.2 has clearly stated in her cross examination dated 13.5.2019 that mobile bearing no.9342140005 belongs to complainant. When the accused No.2 does not dispute the ownership of the mobile bearing no.9342140005 belonging to the complainant, findings recorded in the Para no.34 of the impugned order are liable to be set aside. And even the evidence of PW2, 3 and 4 are not property appreciated and the impugned order is highly unsustainable in the eye of law.

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Further it is important to note that the finding recorded in Para no.15 is incorrect in as much as there was no dispute with regard to receipt of the threatening message in the mobile of the complainant.

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The observations made in Para no.21 and 22 are in support of the case of prosecution because the voluntary statement given by accused no. 1 is consistent with the evidence of PW1. Therefore the impugned order is highly unsustainable in the eye of law.

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The finding recorded in Paras 28 and 29 are absolutely in contradiction to what is stated by PW4. Much weightage is given to the evidence given by PW3 which has nothing to do with the complaint. In fact, PW4 has registered the NCR and has taken up the investigation. Therefore findings in Para no.28 and 29 are in ignorance of the exhibit Pl. In exhibit P1 on the top of the exhibit

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necessary action is directed to be taken as per law and it is directed to Police Inspector PW3 G Kumar is neither the Police Inspector nor the Station House officer on the date of receiving the complainant from the office of the Commissioner of Police. the learned Magistrate has got himself misconceived while appreciating evidence on record, more particularly that of PW3 and 4.

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The learned Sessions Judge has committed a serious illegality in not disposing of the interim application 1/2019 filed by the Petitioner seeking production of the additional evidence on merit as recorded in para-19 of the impugned order. Therefore non-consideration of the same makes the impugned order highly illegal and in correct and therefore the impugned order may kindly be set aside.

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The learned Sessions Judge in para-18 of the impugned order has clearly found that the message sent was not pre-text message and it was not a saved message and Accused No.1 stating in his voluntary statement that, it was sent accidentally is in correct. and it is further recorded in the said para that there are lapses on the part of the I.O. while arriving at the conclusion. In very same para it is recorded that the proclamation order was not complete and the same was not in accordance with law for securing the presence of CW.2 and 3 and further it is recorded that the case has been pending for more than 10 years and therefore there should be an end to the litigation. This finding is erroneous.”

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Sri Amit Anand Deshpande, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, vehemently contended that both the Courts have not properly appreciated the material on record and wrongly passed an order of acquittal against the respondent resulting in miscarriage of justice and sought for allowing the revision petition.

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Sri Deshpande further contended that the learned Trial Magistrate having not taken necessary precaution in securing the presence of the witnesses and passing an order of acquittal has resulted in perversity, which has been totally ignored by the learned Judge before the First Appellate Court, though canvassed before the First Appellate Court as a ground of appeal. Therefore, impugned orders are perverse in nature, seeking interference of this Court by admitting the revision petition.

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Per contra, Sri Naik Venkataraman Nagappa, learned counsel for the respondent/accused No.2 contended that an order of acquittal passed by the duly constituted Court reinforces innocence of the accused and order of acquittal confirmed by the First Appellate Court resulting in triple

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innocence of the accused. Therefore, having regard to the scope of the revision, this Court need not admit the matter for further consideration and sought for dismissal of the revision petition.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that a case came to be filed and registered as NCR No.110/2012. Had that been so, how without the permission of the Magistrate, a case came to be investigated and filed the charge sheet itself is a question that has not been taken note of before securing the presence of the accused No.2 by the Trial Magistrate.

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Even otherwise, the incident said to have occurred by sending a message to the mobile telephone on 29.01.2012 at 11.45 p.m. Message read as referred to supra on its own would not per se result in filing of FIR. Therefore, the police rightly acted in issuing NCR report.

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Be it what it may, there is no material evidence on record that accused No.2 who is the respondent in this revision petition is the person who sent the message except for the fact

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that the mobile telephone bearing No.08880546400 belonged to the second accused.

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Admittedly, as against the first accused, who is said to have sent the message is absconding and no steps are taken by the prosecution to secure his presence, split up charge sheet filed against the said accused.

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Taking note of these aspects of the matter and also taking note of the merits of the matter, learned Trial Judge has recorded an order of acquittal.

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Further, the contentions urged on behalf of the revision petitioner that there was no proper opportunity, resulting in miscarriage of justice, is also far from truth inasmuch as the learned Trial Magistrate has taken all necessary steps to procure the presence of remaining prosecution witnesses which is depicted from the material on record.

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It is the duty of the prosecution to secure the witnesses and for that purpose coercive steps have also been taken. Despite the same, if the presence of the witnesses are not secured by the prosecution, it should not lie in the mouth of

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the revision petitioner that there is miscarriage of justice on account of the improper conduct of the trial.

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Sri Naik also brought to the notice of the Court that

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there was an application was filed seeking in assisting of the prosecution and such an application was allowed by the learned Trial Magistrate. Despite the same, if the complainant is not able to get the details of whereabouts of the remaining witnesses and proper service of the summons to the witnesses have not been taken place, the same cannot be termed either perverse or resulting in miscarriage of justice.

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These aspects of the matter has been rightly noted by the learned Trial Judge and thereafter proceeded to pass an order of acquittal.

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Learned Judge in the First Appellate Court reappreciating the material evidence on record and concurred with the findings recorded by the learned Trial Judge. Acquittal order passed by the First Appellate Court not only dealt with all contentions urged on behalf of revision petitioner, but also supplemented additional reasons for upholding the order of acquittal.

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Having regard to the scope of the revision petition,

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this Court is of the considered opinion, matter does not require any further consideration.

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Accordingly, following:

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ORDER

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(i) Revision grounds are meritless. Accordingly, admission is declined.

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(ii) Consequently, revision petition is dismissed.

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(iii) However, it is made clear that the observations made by this Court shall not affect the rights of the complainant or prosecution in the split up charge sheet as against the accused No.1.

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Sd/- (V SRISHANANDA) JUDGE

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List No.: 1 Sl No.: 41

Ms. Erica v. Smt. Charumathi

Case brief

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What the court decided

Ms. Erica v. Smt. Charumathi

Case brief

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