Sri Sharath Vs State by

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 19.11.2016 PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., CHIKKANAYAKANAHALLI IN C.C.NO.230/2015 AND AS WELL AS THE ORDER DATED 1.6.2017 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR IN CRL.A.NO.10038/2016 UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE.

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

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CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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HC-KAR

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ORAL ORDER

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Accused is before this Court in this petition filed under Section 397 read with 401 of Cr.PC with a prayer to set aside the judgment and order of conviction and sentence dated 19.11.2016 passed in CC.No.230/2015 by the Court of Prl. Civil Judge & JMFC, Chikkanayakanahalli, and the judgment and order dated 01.06.2017 passed in Crl.A.No.10038/2016 by the Court of V Addl. District & Sessions Judge, Tiptur.

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Heard the learned Counsel for the parties.

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Petitioner was charge-sheeted for the offences punishable under Sections 354D & 509 of IPC, and was tried for the said offences in CC.No.230/2015 by the Court of Prl. Civil Judge & JMFC, Chikkanayakanahalli.

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It is the case of the prosecution that on 08.01.2015 at about 8.00 p.m., petitioner had gone near the house of PW-2 (victim) when PW-1 & PW-3 were not at home and had harassed her to marry him and he also used to follow the victim girl wherever she went and was pestering her to marry him. It is further alleged that on 04.01.2015 at about 2.30 a.m., when

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PW-2 was sleeping in her house, petitioner came near her house and in a loud voice asked PW-2 to come out of her house and he also shouted that he intend to marry her. Based on the complaint of PW-1 - father of the victim, Chikkanayakanahalli Police had registered FIR in Crime No.1/2015 and after completing investigation, had filed charge sheet against the petitioner for the aforesaid offences.

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After receipt of summons from the Trial Court in CC.No.230/2015, the petitioner had appeared before the Trial Court and pleaded not guilty and claimed to be tried. In order to prove the charge sheet allegations, the prosecution had examined seven witnesses as PW-1 to PW-7 and got marked five documents as Exs.P-1 to P-5. In support of the defence, three witnesses were examined as DW-1 to DW-3. The Trial Court after hearing the arguments of both the sides, had convicted and sentenced the petitioner for the charge-sheeted offences. For the offence punishable under Section 354D of IPC, petitioner was sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.2,500/- and in default, to undergo simple imprisonment for a period of 15 days. For the

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offence punishable under Section 509 IPC, the petitioner was sentenced to undergo simple imprisonment for a period of one year and pay fine of Rs.2,500/- and in default, to undergo simple imprisonment for a period of 15 days. The said judgment and order of conviction and sentence passed in CC.No.230/2015 was confirmed in Crl.A.No.10038/2016 by the court of V Addl. District & Sessions Judge, Tiptur, vide judgment and order dated 01.06.2017. Being aggrieved by the aforesaid two judgment and orders of conviction and sentence passed by the courts below, the petitioner is before this Court.

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Learned Counsel for the petitioner having reiterated the grounds urged in the petition, submits that the prosecution has not examined any independent witnesses to prove the charge sheet allegations. The evidence of DW-1 to DW-3 has not been properly appreciated by the courts below. The material on record prima facie would go to show that the petitioner and PW-2 were acquainted to each other and prior to the alleged date of incident, they were talking regularly to each other for a period of nearly two years. A false complaint has been lodged by PW-1 only after a demand notice for the loan borrowed by

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him from the society in which the petitioner is employed, was made. Therefore, the judgment and order of conviction and sentence, cannot be sustained. Accordingly, he prays to allow the petition.

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Per contra, learned HCGP has argued in support of the judgment and order passed by the courts below, and submits that the oral and documentary evidence placed on record clearly makes out a case against the petitioner for the chargesheeted offences. The courts below were, therefore, justified in convicting the petitioner for the charge-sheeted offences. Accordingly, he prays to dismiss the petition.

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It is the case of the prosecution that for a period of nearly two years prior to the alleged date of incident on 08.01.2015, petitioner used to meet PW-2 near her house whenever PW-1 & PW-3 were not in the house. It is alleged that on 08.01.2015, petitioner came near the house of PW-2 when PW-1 & PW-3 were not in the house and pestered her to marry him. On 04.01.2025 at about 2.30 a.m., petitioner allegedly had come near the house of PW-2 when she was sleeping and shouted in

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a loud voice and had asked PW-2 to come out of the house and

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also shouted that he intended to marry her.

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To prove the allegations against the petitioner, the prosecution has examined seven charge-sheet witnesses. PW-1 is the father of victim girl PW-2, and PW-3 is the grand mother of the victim girl. It has come on record during the course of cross-examination of PW-1 to PW-3, that PW-1 had borrowed loan from the society in which the petitioner was employed and he had not cleared the loan dues. Perusal of the deposition of PW-1 to PW-3 would also go to show that petitioner and PW-2 were talking to each other for a period of nearly two years prior to the alleged date of incident. No complaint was filed either by PW-1 or PW-2 against the petitioner, earlier to the alleged date of incident. It has also come on record that there were many other houses situated adjacent to the house of PW-1 to PW-3. The prosecution has not examined any other independent witnesses to prove the alleged incident in question. The evidence of PW-1 to PW-3 who are interested witnesses has, therefore, remained uncorroborated.

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PW-4 allegedly had participated in the panchayath that

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was held after the incident in question. It has come on record during the course of cross-examination of this witness that he and PW-1 are members of Raitha Sangha and he also had borrowed loan from the society in which the petitioner was employed. This witness has admitted that he also had received a recovery notice from the society since he had not repaid the loan amount. From a reading of his deposition, it does not appear that he was the neighbour of PW-1 to PW-3.

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PW-5 is the panch witness to the spot mahazar Ex.P-2 and PW-6 is the Head Constable who had registered the FIR and conducted the spot inspection. This witness also had recorded the statement of PW-1 to PW-4. From the evidence of this witness, it is very clear that there is a delay of four days in lodging the FIR with regard to the alleged incident that had taken place on 04.01.2015. He also has admitted that there are overwritings in the first information and the dates have been changed.

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PW-7 is the other panch witness to the spot mahazar Ex.P-2. However, this witness has not turned hostile to the case

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of the prosecution. It is relevant to note here that the prosecution has not examined the Investigation Officer who had conducted the investigation and filed the charge sheet in the present case. The prosecution has not examined the neighbours' of PW-1 to PW-3 who would have been the best witness to state about the alleged incident that had taken place on 04.01.2015 and 08.01.2015. On the other hand, on behalf of the defence, three witnesses who were residing in the neighbourhood, have been examined and all these witnesses have stated that they were not aware of any incident that had taken place on 04.01.2015 or 08.01.2015. These witnesses also have stated that PW-1 was due to pay the loan amount to the society and recovery proceedings was initiated against him. It has also come on record that the petitioner was an employee of the society in which PW-1 & PW-4 had borrowed the loan and had not repaid the same to the society.

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Considering the overall material that are placed on record and since the evidence of PW-1 to PW-3 remains uncorroborated, I am of the opinion that the Trial Court was not justified in convicting and sentencing the petitioner for the

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charge-sheeted offences. The prosecution has failed to prove the charges leveled against the petitioner beyond reasonable doubt, and therefore, the benefit of doubt ought to have been extended to the petitioner by the courts below. Under the circumstances, I am of the opinion that the impugned judgment and order of conviction and sentence, cannot be sustained. Accordingly, the following order:

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Criminal Revision Petition is allowed. The judgment and order of conviction and sentence dated 19.11.2016 passed in CC.No.230/2015 by the Court of Prl. Civil Judge & JMFC, Chikkanayakanahalli, and the judgment and order dated 01.06.2017 passed in Crl.A.No.10038/2016 by the Court of V Addl. District & Sessions Judge, Tiptur, are set aside. Petitioner is acquitted of the charge-sheeted offences. His bail bonds, if any, stands cancelled. Fine amount, if any, deposited shall be refunded to the petitioner.

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Sd/(S VISHWAJITH SHETTY) JUDGE

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KK

Sri Sharath v. State by

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Sri Sharath v. State by

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