Tabrej Vs State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C., PRAYING TO CALL FOR THE RECORDS AND TO SET ASIDE THE JUDGMENT DATED 04.07.2011 PASSED BY I ADDL. CIVIL JUDGE IN C.C.NO.351/2004 AND JUDGMENT DATED 30.11.2017 PASSED BY I ADDL. DISTRICT AND SESSIONS JUDGE U.K.KARWAR SITTING AT SIRSI IN CRL.APPEAL.NO.104/2011 FOR OFFENCES PUNISHABLE U/SECTION 323 AND 506 OF IPC AND CONSEQUENTLY ACQUIT THE ACCUSED.

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

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CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition is directed against the judgment of conviction and order of sentence dated 04.07.2011 passed in C.C.No.351/2004 by the I Addl.Civil Judge, Sirsi confirmed in Crl.A.No.104/2011 vide judgment dated 30.11.2017 by the I Addl.District and Sessions Judge, U.K., Karwar sitting at Sirsi.

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Parties to this revision petition are referred to as per their rank before the trial Court.

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It is the case of the petitioner/accused that, accused Nos.1 to 4 are charge sheeted by the PSI, New Market Police Station, Sirsi for the offences punishable under Sections 341, 324, 307, 504, 506 r/w.34 of IPC. The records of this case reveal that during the pendency of the criminal case before the JMFC, Sirsi, accused no.4 died and the case against him stood abated. Accused nos. 1 to

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3 faced trial.

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According to the case of the prosecution, on 15.9.2003 at about 4.30 p.m. all the accused in furtherance of their common intention to commit the offence of assault, have committed criminal trespassed into the chamber of the complainant in Suvarna Cooperative Society, Sirsi, wrongfully restrained the complainant from moving from his chamber, accused no.1 assaulted the complainant with steel bracelet and accused

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no.2 assaulted the complainant with hands and thereafter torn the banian, shirt of the complainant and threatened that if he does not cancel the suretyship of Amanulla Khan and Abdul Sattar Honnavar and return the gold ornaments pledged in the Society, they will break his limbs and do away the life of the complainant and thereafter, ran away from the said place.

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The Investigation Officer, on completion of the investigation filed the charge sheet against the accused for the aforesaid offences. The Jurisdictional Magistrate took cognizance of the offences. Copies of the Police papers were furnished to the accused as contemplated under Section 207 of Cr.PC. Thereafter, the charges against the accused for the aforesaid offences were read over to them in the language known to them and they pleaded not guilty, claimed to be tried.

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To prove the guilt of the accused, prosecution in

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all examined 14 witnesses from PWs.1 to PW.14 and got

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marked Exs.P1 to P11 and closed prosecution evidence. On behalf of defence, no witness was examined. MO Nos.1 to 4 were marked.

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The learned trial Court on hearing the arguments and on assessment of the evidence found the accused guilty of committing the offences under Sections 323 and 506 of IPC and sentenced them as under:

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"Accused Nos.1 and 2 are sentenced to pay fine of Rs.1000/- (One thousand only) each for the offence punishable U/sec.323 of IPC. In default of payment of fine, they shall undergo simple imprisonment for a period of three months each.

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Further, Accused Nos.1 and 2 are sentenced to pay fine of Rs.10,000/(Ten thousand only) each for the offence punishable under Section 506 of IPC. In default of payment of fine, they shall undergo Simple Imprisonment for a period of Six months each.

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Further, Acting under section 357 Cr.P.C, a sum of Rs.10,000/- (Ten thousand only) out of fine amount, b paid to the complainant (PW.1) as compensation.

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Material objects No.1 to 4 are ordered to be destroyed after appeal period as they are worthless.

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Supply free copy of judgment to the accused no.1 and 2"

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This judgment of conviction and order of

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sentence was challenged by accused nos.1 and 2 before the I Additional District and Sessions Judge, U.K. Karwar sitting at Sirsi by preferring a Crl.A.No.104/2011. The learned lower appellate Court on hearing the arguments and on evaluation of the evidence confirmed the said judgment and order of sentence by passing judgment dated 30.11.2017. This is how now accused nos. 1 and 2 are before this Court challenging the judgments of the Courts below.

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The learned counsel for the petitioner/accused,

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Sri. Vishwanath Hegde submits that, none of the witnesses

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have supported the case of the prosecution. The eye witnesses so examined in the shape of PWs.5, 7 and 8 though speak with regard to witnessing of said incident but, in the cross-examination they have given a go bye. But, believing the evidence of these witnesses, the trial Court has convicted the accused and sentenced them. Even there are material contradictions in the evidence of complainant. The complainant, out of animosity foisted a false case against the accused persons. He would further submit that, the prosecution has not proved its case beyond all reasonable doubt. Therefore, he would submit that, the witnesses so examined on behalf of the prosecution were sought to be cross-examined and in their cross-examination, they have given different version. There are material contradictions, omissions in the evidence of these witnesses. There is no proper appreciation of evidence by the Court below in coming to such conclusion. Therefore, as the ingredients of offences under Sections 323, 506 of IPC are missing, it is prayed to

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allow the revision petition and set aside the impugned judgments.

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As against this submission, the learned Smt. Mala Bhute, Additional Government Advocate submits that, the learned trial Court as well as the first appellate Court have properly assessed the evidence of the witnesses such as PW.5, 7 and 8. She would submit that, though they have given some different version in the cross-examination, the evidence of the complainant being vital plays an important role. Therefore, she would submit that, no interference is required into the impugned judgments. According to her submission, both the Courts have properly appreciated the evidence and have rightly concluded that, the said incident has taken place, PW.1 was assaulted by the accused. She justifies the reasons and finding assigned by the learned trial Court, as well as first Appellate Court in passing the impugned judgments. Hence, she prays to dismiss the revision petition.

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I have given my anxious consideration to the

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arguments of both the side and perused the record.

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In view of rival submissions of both the side,

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the points that would arise for my consideration are:

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(i) Whether the learned trial Court as well as the first appellate Court have committed any error in convicting and sentencing the accused for the offences under Sections 323 and 506?

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(ii) If so, whether the impugned judgment and award require interference by this Court?

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My findings on the above questions are in the

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affirmative for the following reasons:

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It is the case of the petitioners that, assault on the

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person of the complainant by the accused nos. 1 to 3 is not admitted. Accused no.3 is no more and was acquitted by the learned trial Court. It is pointed out by the

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prosecution that, the accused in furtherance of their common intention to commit the offence of assault, wrongfully trespassed into the chamber of the complainant in Suvarna Co-op. Society, Sirsi, wrongfully restrained him from moving from his chamber, gave life threat to him and assaulted on his person. To ascertain the veracity of such allegations one has to read the evidence placed on record by the prosecution.

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PW.1 complainant-victim as per the case of the prosecution has come before the trial Court and speaks in line with the contents of the complainant. It is stated that, he has been working for the last 23 years in Suvarna Cooperative Society, Sirsi as General Manager. The said Bank is situated near Devikere Cross. The building where the said Bank is situated belongs to one S.S.Bhat. He states, that on 15.9.2003 at about 4.30 p.m. when he was in his Chambers, Tabrej and Ganesh (accused nos. 1 and 2) came tried to assault him and spoke to him in filthy language. They gave threat to cancel the surety for loan

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availed by one Atheshmulla Amanulla Khan to which loan one Amnulla and Abdul Sattar Honnavar have given surety. The same be cancelled and forced return the gold ornaments kept as surety, otherwise they will break his limbs. He states, accused Tabrej forcefully caught hold his neck and by using the steel bracelet assaulted him on his forehead. Accused Ganesh assaulted him with his hands. Because of this, he sustained injuries on his left shoulder and there were assault marks on the left cheek and left thigh. His shirt and banian were torn. Tabrej hit him with

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the boot. He further states that, later, they went to the strong room which is situated next to his chamber and tried to snatch away the gold ornaments. When he and his colleagues joined, they took the complainant to the downstairs where two persons by name Mahesh and Abed were standing and they all went away in a autorikshaw. After this incident, he removed his torn shirt and banian and wore another shirt after getting it from home. Then went to the police station to file complaint. Further he

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stated that, he went to Government Hospital and took treatment.

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He has been cross-examined at length. He is specific in his cross-examination that, he had not produced any document to show that, the said borrower Atheesh Mullah was defaulter in repayment of loan. According to him, when the incident took place, PW.8 was present in his chamber. His chamber is full of glass walls. He admits that if anybody or the customer speaks inside the chamber, the said talks could not be heard by the outsiders. He cannot say who brought the banian and shirt and gave to him. When he went to the police station at 5. to 5.15 p.m. at that time, accused nos. 1 and 2 were there in the police station. It is the defence of the accused that, there was refusal to return the gold ornaments by the complainant, therefore, they went to the police station to lodge a complaint. That means, when complainant went to the police station, these accused nos. 1 and 2 were already there in the police station. In the cross-examination at

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page no.7, it is categorically stated by PW.1 that, though there was assurance by Abdul Sattar to deposit the loan amount and take away his gold ornaments, for this assurance of depositing the loan amount, this PW.1 had not agreed. He denied the suggestion that, as there was refusal by the complainant therefore, accused nos. 1 and 2 went to the police station to lodge a complainant. He deposed ignorance to that effect. Further, he states that, he had showed the injuries sustained by him to his left cheek and left thigh to the doctor. But, wound certificate is silent to that effect. PW.12 Doctor Madhusudan has stated only two injuries on the person of the complainant, when he medically examined him at 6.45 p.m on 15.9.2003. Therefore, we find a quite contradictory evidence with regard to the injuries suffered by the complainant in the alleged incident.

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Further, he has stated that, in his chambers lockers were searched in which the gold ornaments were kept and this fact is not told by him. On that day, at about

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4.30 p.m about 7 to 8 customers were there in the bank.

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At that time, accused dragged him to a considerable distance and at that time, 50 to 60 people gathered.

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On perusal of his chief-examination as well as cross-examination, it shows that, the said incident took

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place at 4.30 p.m. when he was in his chambers. According to him, accused Tabrej and Ganesha came to his chamber started assaulting him and abused him in filthy language and also gave a life threat to him. He

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further states that, accused Tabrej caught hold his neck and assaulted him by using steel bracelet. Because of this he sustained injuries on his forehead and left shoulder. The prosecution has produced the wound certificate to show that he had sustained multiple abrasions on forearm and also heamatoma on his forehead and injuries in simple in nature. With regard to the assault on the person of the complainant on the forearm, there is no evidence. Though he states that, he had pain in his left cheek and left thigh, the wound certificate is very much silent about the same.

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He states that, the accused tried to take away the gold ornaments from the strong room situated by the right side of his chambers. All of them, dragged the accused persons, took them outside the chambers. Two persons fell down and they were accused Mahesha and Abeeb. Further, he states that, the people gathered there and on seeing the gathering of people, accused went away in a rickshaw. For the first time, without any averments in the complaint, he had stated so many facts in his chief examination. Further, he states that, the bolt put to the partition to his chamber had come out and the glass put to the chambers were broken into pieces. The panchanama is very much silent about the said bolt and the so called bolt is not seized by the police.

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PW.2 Gopal Subray Shet is a signatory to panchanama has spoken about the incident. He has stated that, the said Suvarna Co-operative Bank is situated on Devikere Road. CW.8 showed him the place where incident took place. There were banian and a shirt. The glass

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pieces were there on the floor. He has stated in the crossexamination that, he is signatory to Ex.P2 but, he does not know what is written in it. Thus, nothing worth is elicited from his mouth in the cross-examination by the prosecution.

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PW.3 is Ravi is also one of the customers who was called by Market Police on 15.9.2003. It was about 6 to 7 p.m. He recognized the steel bracelet which was used for the assault. It was seized from accused Tabrej. He denied a suggestion regarding assault on the left cheek as well as on thigh of the Manager of the Bank.

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PW.4 Divyaspathi is also a panch witness. He has stated that, police have taken his signature on panchanama. He has stated that, he can identify his signature on it but, he does not know what was written in it.

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PW.5 Ramdas is an employee of Suvarna Co-operative Bank. He has stated that, while he was on

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duty on 15.9.2003, at about 4.00 p.m. accused nos. 1 and 2 initially asked the peon where is the chamber of the Manager and suddenly tresspassed into the chamber of the Manager. He has spoken in line with the version of the complainant. Further, in the cross-examination, he has admitted the facts about his employment in the Suvarna Co-op.Bank and the date of the incident. His evidence is full of contradictions and omissions. We find improved evidence spoken to by this witness.

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PW.6 Dayananda is also an Assistant Manager

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in the said Suvarna Co-operative Society, Sirsi. He has stated, that on 15.9.2003 at about 4.00 p.m., when he was in the counter of the bank, accused 1 and 2 came and asked him that, they want to talk with the Manager. He sent them to the Chambers of the Manager. They were talking. At that, time he heard the loud sound. One Abdul Sattar had signed as surety for the loan obtained by Athesh Mulla. They asked the Manager to return the gold ornaments which were pledged by Abdul Sattar. Manager

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refused to return as they are pledged against the loan taken by Athesh Mulla. At that time, accused no.1 came and attacked on the Manager due to which, Manager's shirt and banian were torn and there were injuries on his person. By that time, accused no.2 dragged the Manager to the ground floor. They all bombarded to rescue him. On hearing the screaming sound, the public gathered. At that time, the accused went away in a auto which was parked outside the Bank. But in the cross-examination, there are some improvements in his evidence and also

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exaggerations.

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PW.7 is Govardhan Gundu who was working as Attender in the said Bank. He has also spoken in line with evidence of PW.6 regarding the incident. But. in the crossexamination he has denied all the allegations. He has been declared as hostile witness to the prosecution case. Nothing worth is elicited in the cross-examination.

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PW.8 Mohan Vasudev Manakambe is a Director

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of Suvarna Co-operatiave Bank, Sirsi and has stated that, he knows the complainant. He states that, accused no.1 Tabrej came inside the chamber of PW.1 and started assaulting the Manager stating that as he has not released the gold ornaments kept in the Bank. He has stated that, he is a Director of the Bank and would solve the problem. But, the accused told him not to do and dragged the Manager to the ground floor and there again, he assaulted on the complainant. Then the accused went away in a auto rikshaw. Later, Police came and they took the complainant to the Police Station. He has stated that, accused no.2 did not accompany accused no.1 to the chambers of the complainant and has not attempted to assault the Manager. Evidence of this witness is quite contrary to the evidence of PW.1.

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PW.9 is one Pundaleek is a shop keeper. He has

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stated that, he had closed his shop on the day of incident.

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Therefore, his evidence does not help the case of the prosecution as he has not seen the incident.

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PW.10 Athaf Ahmad Khan and PW.11

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Mohammad Rafeeq are running fruits shops near Suvarna Co-operative Bank. They have denied about witnessing the incident. Thus, their evidence is not worth to be considered.

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PW.12 is Dr.Madhusudan has stated that, on 15.9.2003 at about 6.45 p.m. with history of assault, a patient by name Vijayakumar aged about 44 years came to his hospital. On examining him, he found multiple abrasions over left fore arm over its volar aspect measuring 2 cms x 1 cm each and haematoma over left side of forehead measuring 3 x 2 cms. He has stated that, the said injuries are simple in nature. He has been crossexamined by the defence wherein, he has stated that, the said injuries may happen when a person falls on the ground. His evidence can be accepted to the extent of

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examining the complainant and issuing of Ex.P9 the wound certificate.

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PW.13 Athes Mullah is the person who has availed loan from the said Bank. But, he has stated that, he does not know who stood surety for his loan. He has been turned hostile.

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PW.14 Sri B.Gireesh PSI, New Market Police Station, Sirsi at the relevant time, stated that, on 15.9.2003, the complainant gave written complaint vide Ex.P1. He registered the same in Crime No.106/2003. He took custody of Tabrej and Ganesh who are accused nos. 1 and 2 in the present case. He has also seized the steel bracelet used for assault marked as MO No.1.

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In all criminal cases panchas are the authors of the panchanama and investigation officers are the supervisors of the investigation. Unless there is corroborative evidence, the evidence of these Investigation Officers become formal in nature. To the

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extent of conducting investigation and filing of the charge sheet, the evidence of these police officers is to be accepted.

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On perusal of the entire evidence stated by the witnesses, particularly of PW.1, it shows that, he is not consistent as to what time the said incident has taken place. Such evidence requires corroboration. In the absence of corroboration, the case of the prosecution cannot be accepted. On scrupulous reading of the evidence placed on record, most of the witnesses have turned hostile especially PW.7 who was Attender of the Bank, PW.8 Director of the Bank who was stated to be with the complainant at the time of incident and PW.9 a shop keeper nearby.

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On overall reading of the entire evidence placed on record by the prosecution, no eye witnesses have supported the case of the prosecution. That means the

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ingredients of the offences so alleged against the accused are not fulfilled by the prosecution.

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The prosecution evidence is full of

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contradictions, omissions and discrepancies. PW is evidence is full of improvements with exhaustive evidence. The other employees of the Bank who were really present and witnessed the incident are not examined. The witnesses who are examined are not consistent about the alleged assault on the person of PW.1-complainant. Based upon the evidence of PW.1 that, accused assaulted him and gave a life threat to him, it cannot be stated that, he was really assaulted as alleged by him. His own evidence shows that, when a request was made to return the gold, he refused. Accused nos.1 and 2 were in the police station when he went to police station. It is the defence of accused nos.1 and 2 that, when PW.1 refused to return the pledged gold ornaments, they went to police station to lodge complaint. Perhaps to defeat the complaint of accused nos.1 and 2, PW.1 must have designed a

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complaint. He has not whispered about his refusal to

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return the gold ornaments in his complaint.

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The learned trial Court as well as the first appellate Court have not properly appreciated the evidence in proper perspective. Just believing the evidence of PW.1 and evidence of the Investigating Officer, have wrongly come to the conclusion that, accused are guilty of the offences so alleged against them and when there is no proper appreciation of the evidence by

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both the Courts below, this Court can very well exercise its power under Section 397 of Cr.P.C and interfere into such judgments. In view of discussions made above, the prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. A doubt arises in the case of prosecution and that benefit of doubt has to be extended to the accused. Therefore, the accused are entitled for acquittal by giving benefit of doubt.

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Resultantly, I pass the following:

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ORDER

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i. Criminal Revision petition is allowed .

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ii. The judgment of conviction and order of sentence passed in CC No.351/2004 dated 04.07.2011 by the I Addl. Judicial Magistrate First Class at Sirsi and confirmed in Crl.A.No.104/2011 dated 30.11.2017 by the I Addl. District and Sessions Judge, U.K.Karwar sitting at Sirsi, are hereby set aside.

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iii. Consequently, accused nos.1 and 2 are acquitted of the charges punishable under Sections 323 and 506 read with Section 34 of IPC.

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iv. Their bail bonds if any shall stand cancelled.

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v. Fine amount if paid by the accused, shall be refunded to the accused forthwith digitally on due verification.

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vi. Send the operative portion of the judgment to the trial Court as well as first appellate Court forthwith for compliance through mail.

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vii. Send back the trial Court records along with a copy of the judgment forthwith. So also send the copy of the judgment of the first appellate court for reference.

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Sd/( RAMACHANDRA D. HUDDAR) JUDGE

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Sk/List No.: 1 Sl No.: 2

Tabrej v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Tabrej v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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What the court decided

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Statutes considered

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