THE STATE OF KARNATAKA v. FAROOQ

(BY MR. DHANANJAY KUMAR, ADVOCATE) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SETTING ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL PASSED IN C.C.NO.238/2012 DATED 10.07.2017 ON THE FILE OF THE LEARNED CIVIL JUDGE AND JMFC MOODABIDRI AND ALSO THE ORDER PASSED IN CRIMINAL APPEAL NO.30/2018 ON 14.11.2018 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: VINUTHA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13217 CRL.RP No. 438 of 2019 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER The State has preferred this revision petition against the judgment dated 14.11.2018 passed in Crl.A.No.30/2018 by the Principal District and Sessions Judge, D.K., Mangalore (hereinafter referred to as 'learned Sessions Judge' for short), whereby the learned Sessions Judge dismissed the appeal filed by the State by confirming the judgment of acquittal passed by the Civil Judge JMFC, Moodabidre, D.K., C.C.No.238/2012 dated 10.07.2017.

#2. The abridged facts of the prosecution case are that: On 13.09.2011 at about 12.15 p.m., PW.2-PSI along with PW.1 and other police constables had gone to the house of the respondent-accused for apprehending him in Cr.No.96/2011 for the offences punishable under Sections 365, 376, 506 r/w 34 of IPC, which was registered in his police station. It is further case of the prosecution that, when himself and other officials reached the house of the accused, the accused went inside the house and thereafter protested them by holding a machete. He also threatened them with dire consequence. However, PW.2 in order to safeguard himself and his staff, fired in a service pistol - 3 - NC: 2025:KHC:13217 CRL.RP No. 438 of 2019 one round in the air. At that time, the accused by throwing the machete ran away from the backside door of the house. Accordingly, PW.2 registered a suo moto complaint against the accused, which came to be registered in Cr.No.136/2011 for the offences punishable under Sections 353 of IPC. Later PW.4 investigated the case and laid charge sheet against the accused for the aforementioned offence before the trial Court.

#3. In order to prove the charges against the accused before the trial Court, the prosecution in total examined 4 witnesses as PW.1 to PW.4 and got marked 4 documents as Exs.P1 to P4 and got identified 3 material objections i.e., MOs.1 to 3. Though the accused has not examined any witnesses on his behalf, he got marked one document i.e., Ex.D1.

#4. After assessment of oral and documentary evidence, learned Magistrate acquitted the accused for the offence punishable under Section 353 of IPC. The said judgment of acquittal challenged by the State before the Principal District and Sessions Judge, D.K., Mangalore in Crl.A.No.30/2018. On re-assessment of entire evidence on record, learned Sessions Judge dismissed the appeal filed by - 4 - NC: 2025:KHC:13217 CRL.RP No. 438 of 2019 the State. The said judgment is challenged in this revision petition.

#5. I have heard learned HCGP Sri Rajath Subramanya the State-revision petitioner and learned counsel Sri Dhananjay Kumar for the respondent-accused.

#6. The primary contention of the learned HCGP is that both the trial Court and the First Appellate Court grossly erred while acquitting the accused without appreciating the evidence in a right perspective. He further contended that PW.1 to PW.4, being official witnesses, have categorically deposed the act committed by the accused. In such circumstances, the prosecution has proved the case against the accused beyond all reasonable doubt. However, the trial Court and the First Appellate Court, based on surmise or conjecture, acquitted the accused. Hence, the impugned judgments are liable to be set aside. Accordingly, he prays to allow the revision petition and to convict the accused for the charges levelled against him.

#7. Per contra, learned counsel for the respondent submitted that the trial Court and the First Appellate Court, after meticulously examining the evidence on record at length, - 5 - NC: 2025:KHC:13217 CRL.RP No. 438 of 2019 passed a well reasoned judgments which do not call for interference at the hands of this Court. He further contended that, there is inconsistency in the evidence of PW.1 to PW.4 so also the seizure mahazar-Ex.P1 and the compliant lodged by PW.2 as per Ex.P2. On perusal of these two documents, the genesis of the crime itself is in doubt. Further, PW.3 and PW.4, being the official witnesses, have given go-bye to the prosecution case their cross-examination. In such circumstances, the prosecution miserably failed to prove the guilt of the accused. Accordingly, the trial Court and the First Appellate Court acquitted the accused for the charges levelled against him. Hence, he prays to dismiss the revision petition.

#8. Having heard the learned counsel for both the parties and having given my anxious consideration to the documents made available before me including the judgments passed by the Trial Court and the First Appellate Court, the only point that arises for my consideration is: "Whether the First Appellate Court is justified in dismissing the appeal filed by the State-revision petitioner by confirming the acquittal judgment passed by the trial Court in C.C.No.238/2012?" - 6 - NC: 2025:KHC:13217 CRL.RP No. 438 of 2019

#9. It could be gathered from the records that on the alleged date of incident i.e., 13.09.2011, PW.2 after receiving credible information about the presence of the accused in his house, went along with his staff to apprehend him in connection with Cr.No.96/2011 and at that time, the accused resisted them with the machete and also abused them in filthy language. On perusal of Ex.P2, the complaint lodged by PW.2 depicts that after the accused fled away from the spot, PW.2 and others recovered the machete from the house of the accused and registered complaint at about 2.30 p.m. Interestingly, it could be gathered from Ex.P1-Sezuire mahazar dated 13.09.2011 that PW.2 seized the machete from the house of the accused at about 3.15 to 4.00 p.m. Hence, there arises a doubt in the mind of this Court about the raid conducted by PW.2 on the house of the accused on the alleged date of incident at about 2.30 p.m.

#10. Nevertheless on careful perusal of the evidence of PW.1, PW.3 and PW.4 i.e., the police constables, who have accompanied PW.2 to apprehend the accused, have denied their 161 statements allegedly stated before the Investigation Officer. They admitted that the accused has not shown the - 7 - NC: 2025:KHC:13217 CRL.RP No. 438 of 2019 machete to PW.2 at the time of his apprehension. Further, there are material contradictions in their evidence in respect of time of raid on the house of the accused and the seizure of machete in the house of the accused. Admittedly, the accused was not arrested in the spot on the date of the incident. In such circumstance, I am of the considered view that the trial Court and the First Appellate Court have rightly appreciated the evidence on record and passed a well reasoned judgments. Nevertheless, this revision petition, being preferred against the acquittal judgments passed by the trial Court and the First Appellate Court, there are no good grounds to interfere with the same since the same does not suffers from any perversity. Accordingly, I answer the point raised above in the affirmative and proceed to pass the following: ORDER i) The revision petition preferred by the State is dismissed being devoid of merits. Sd/- (RAJESH RAI K) JUDGE VM List No.: 1 Sl No.: 22