STATE OF KARNATAKA v. MOHAMMED ASHRAF

prosecution before the Trial Court is that on 23.08.2012 at about 3.30 p.m. within the limits of Subramanya Police Station at Kalmadka, Mucchila Village, Sullia Taluk, the accused persons along with one Juvenile in Conflict with Law (hereinafter referred to as ‘JCWL’) formed unlawful assembly to achieve their common object rioting by wrongly restraining C.W.2 from moving KSRTC bus bearing registration No.KA-09/F-7958 and the accused persons along with JCWL named Mohammed Asif have abused C.W.2 with filthy language and intentionally have insulted him to provoke to commit breach of public peace. They also caused voluntary simple hurt to C.W.1 by their hands and legs and caused bodily pain to him. They also torn the uniform of C.W.1 by causing obstruction to - 4 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 discharge duty as public servant and deterred to do his official duty as conductor of KSRTC bus, then the passengers in that bus have intervened and pacified the incident. Thereafter, the C.W.1 was taken to PHC, Sullia and got treatment.

3. Based on the first information furnished by C.W.2, who is the driver of the KSRTC bus, the police have recorded the statement of C.W.1 at PHC Hospital on the very same day at 8.00 p.m. and crime was registered in Crime No.76/2012 for the offence punishable under Sections 147, 341, 504, 323, 332 and 353 read with Section 149 of IPC. The Investigating Officer has conducted the investigation and recorded the statement of witnesses and accused persons and later they have been enlarged on bail. The Investigating Officer also collected the wound certificate pertaining to C.W.1 and after investigation, filed the charge-sheet.

4. The respondents/accused appeared before the Court and denied the charges leveled against them. The - 5 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 prosecution examined the witnesses as P.Ws.1 to 10 and got marked the documents as Exs.P1 to P6(a) and also marked M.Os.1 and 2 i.e., kaki colour shirt and kaki colour pant and the defence have not led any evidence and only got marked the document as Ex.D1 i.e., the statement recorded under Section 162 of Cr.P.C. of P.W.3.

5. The Trial Court, having considered both oral and documentary evidence placed on record, not accepted the case of the prosecution and acquitted the accused persons, in coming to the conclusion that there are contradictions in the evidence of the witnesses. Being aggrieved by the order of acquittal, an appeal is filed in Crl.A.No.5033/2017 and the First Appellate Court, on re- appreciation of both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court accepting the reasoning given by the Trial Court and comes to the conclusion that the Trial Court has properly appreciated the evidence of P.Ws.1 to 3 and 8 and 9 and it does not require any interference. Being aggrieved by the - 6 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 said judgment of acquittal and confirmation of the same by the First Appellate Court, the present revision petition is filed before this Court.

6. The main contention of the learned HCGP for the petitioner is that the evidence of P.Ws.1 to 3 is consistent and no material contradictions in their evidence. The witnesses P.Ws.1 and 2 i.e., the driver and the conductor have categorically deposed as to how the incident has taken place. It is their evidence that two of them boarded the bus and galatta has taken place with regard to return of change and thereafter, when the bus reached near Mucchila, the accused persons secured other accused persons and all of them have dragged the complainant from the bus and assaulted him. He would also submit that the injured was taken to PHC Hospital and the Doctor is also examined as P.W.9 and her evidence is clear that she has found injuries and wound certificate is also issued in terms of Ex.P5 and evidence of P.Ws.1 to 3, P.W.8-Investigating Officer and P.W.9-Doctor inspite of - 7 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 corroborated piece of accused, the Trial Court comes to an erroneous conclusion there are contradictions, particularly with regard to the amount is concerned and not in respect of incident of assault. The First Appellate Court also committed an error in not considering the evidence of the witnesses, particularly the injured witness i.e., P.Ws.1 and 2, who is the conductor and driver of the KSRTC bus and P.W.3 is other witness, who witnessed the incident and the First Appellate Court also magnified the statement of the witnesses as four persons, six persons and eight persons when they revealed about the incident is concerned and when there is no proper identification, the very approach of the Trial Court and the First Appellate Court is erroneous. He would also submit that M.Os.1 and 2 belong to conductor i.e., uniform which have been torn at the time of the incident is produced before the Court and the same is not discussed. He would further submit that the First Appellate Court not discussed anything about the evidence of the Doctor, who was examined as P.W.9 and without discussing the evidence of P.W.9, the First - 8 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 Appellate Court committed an error. Hence, it requires interference by exercising the revisional jurisdiction.

7. Per contra, learned counsel respondents/accused would submit that the Trial Court discussed in detail in Para Nos.15 and 16 with regard to the incident is concerned and taken note of the evidence of P.W.1 and Ex.P1 does not contain any visible injuries and also he admits that if any altercation happen in the bus, it will happen in routine so, it will not amount to any big thing and witness had admitted that, except insult caused by the accused persons and no restraint to his official duty was caused and his evidence can be seen in Para No.3 of the evidence that even bus has stopped in several stops and even bus has crossed the Bellare police station, that, he has not informed the incident. Hence, taking note of evidence of P.W.1 and the statement of the complainant at Ex.P1, rightly comes to the conclusion that the evidence of P.W.4 not supports the case of the prosecution, who is an independent eye witness according - 9 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 to the prosecution and P.W.3 claim that he is an independent and an interested witness and when both the Courts have found contradictions in the evidence of witnesses, rightly acquitted the accused persons.

8. Having heard the learned counsel HCGP for the petitioner-State learned counsel respondents/accused, this Court has to re-analyze the material on record exercising the revisional jurisdiction and no doubt, this Court cannot venture to appreciate the evidence, the Court has to only look into the legality and correctness of the order. Having considered the matter within the ambit of scope of revision petition, this Court has to consider the evidence available on record and the very approach of the Trial Court and the First Appellate Court.

9. Having perused the evidence of P.W.1, he reiterates with regard to how the incident has taken place and says that incident has taken place on 23.08.2012 at

3.30 p.m., and when two of them have boarded the bus at - 10 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 the first instance and taken the ticket for Rs.20/- and he gave the amount of Rs.500/- and the P.W.1 had returned the change of Rs.480/-. But some time later, he started to claim that the conductor has given the change short of Rs.100/- and quarreled with him, thereafter, they secured other four accused persons and dragged him from the bus and assaulted him. Both the Courts have failed to take note of the incident which has taken place at Mucchila and according to the case of the prosecution also, other four accused persons stopped the bus at Mucchila and dragged the complainant. The P.W.1 also reiterated the same in his evidence and even he identified the accused persons before the Court and he says that his uniform were also torn in view of the said incident and also he categorically says that Mucchila, four persons topped the bus and dragged him and assaulted him on his cheek left hand and also fiisted on his chest and he lost the money which was in his pocket. He gave the statement in terms of Ex.P1 and mahazar also contains his signature in terms of Ex.P2. No doubt, in the cross-examination, he categorically admits - 11 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 about the accused persons, he had collected the details from the driver, who has been examined as P.W.2 and he also categorically says that he had made the statement before the Doctor that they assaulted with their hands and not stated before the Doctor that they assaulted with any iron rod. He also admits that at the spot, the driver has not revealed his name and while giving the complaint after collecting the details from the driver, he mentioned the name of the accused persons and also says in the cross- examination that when he was dragged from the bus, he lost the money and also he admits that the place in which they dragged him, the same is a public place. He cannot tell whether the amount was spread at the spot or not when he was dragged.

11. The other witness is PW2 who is the driver and he also categorically says that when the two accused persons have boarded the bus at Pajapalla, he heard the galata sound and when the bus reached near Muchila, four persons came and stopped the bus. Immediately all of - 12 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 them dragged PW1 from the bus and assaulted and fisted him on his chest and assaulted on his hand and legs as a result he lost his conscious. Immediately, he was taken to the hospital and also he says PW1 uniform was torn. He categorically says that he had seen the accused persons who have assaulted PW1, but later he collected their names and also specifically mentioned the name of accused Nos.1 to 5 and also he says that there were six persons. He identifies one of the accused person at the spot and he also identifies the accused persons before the Court and there are some discrepancy in mentioning the names of the accused persons. The fact that he was not having any acquaintance with the accused persons at the earliest point of time is not in dispute. He also categorically says the same in his evidence and earlier he had not seen them and only passengers have revealed their names. When the police came to the spot, he revealed their names also. He also says that the bus was stopped at the place of incident. Thereafter, the bus was - 13 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 taken to the police station. It is suggested that PW3 and PW4 are relatives and the said suggestion was denied.

12. The other witness is PW3, the PW3 also speaks he was very much present in the bus when the incident was taken place and he also re-iterates the evidence of PW1 and PW2 with regard to the assault also, as a result he had sustained injury and he categorically says that accused persons are also fisted on his chest and also torn his cloth. In the cross-examination he admits that he did not disclose the name of the accused persons to the police, the same is marked as Ex.P1 in the cross- examination. It is suggested that M.O.1 and M.O.2 are created for the purpose of this case and the said suggestion was denied.

13. The other witnesses have not supported the case of the prosecution i.e., PW4 to PW7. The other witness PW8 the witness who conducted investigation i.e., investigating officer and also he deposes that on receipt of the complaint and registration of the - 14 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 case, he apprehended the accused persons and produced before the Court. He recorded the statement of PW3 and PW4. He admits that he had received the information at around 8.30. On receipt of information through phone, he went to spot and admits that he went to spot after 6 hours of incident.

14. The other witness is PW9-Doctor who treated the injured in the hospital, she also issued the wound certificate in terms of Ex.P5 and identifies her signature. In the cross-examination, she admits that while admitting the injured persons, they used to mention the ward number and also admits that while giving the statement, did not disclose the name of the accused persons.

15. Having re-considered the evidence available on record, the evidence of PW1, PW2 and PW3 is consistent with regard to the incident is concerned and also assault is concerned that the incident was taken place when the two accused persons have boarded the bus at Pajapalla and when the galata was taken place, it is the case of the - 15 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 prosecution that they secured other four accused persons and when the bus reached Muchila at that time, they came and gave stop signal and immediately the four accused persons were boarded the bus and assaulted the conductor. The witnesses PW1 to PW3 speaks about the same. No doubt some discrepancy in naming the accused persons by PW2, the same has been magnified by the Appellate Court in appreciating the evidence. The Court cannot expect the mathematical niceties while appreciating the evidence available on record. Both the Courts have not considered the evidence available on record and particularly when the incident was taken place at 3.30 p.m., on 23.08.2012 and immediately the injured was taken to the P.H.C at Sullia Hospital and report also reveals that he has sustained injuries i.e., injury Nos.1 and

2. Both the Courts below have not taken note of the fact that at the time of incident, even injured PW1 was not aware of the names of accused persons. He categorically says that while giving the complaint in terms of Ex.P1, he came to know about the assailants names through CW2 - 16 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 i.e., PW2 who has been examined before the Trial Court and his evidence is also very clear that after the incident only passengers have revealed the names of the accused persons and also while lodging the compliant in terms of Ex.P1, specifically the names of the accused persons also stated and incident was taken place at 3.30 p.m., and injured statement was recorded in the P.H.C on the same day at 8.00 p.m. The Trial Court committed an error in making an observation in paragraph No.15 that Ex.P1 does not reveals the nature of injuries and Ex.P1 is only the statement of injured and the document of Ex.P5 is the wound certificate which clearly discloses the nature of injuries.

16. It is important to note that PW1 to PW3 consistently deposed before the Court that accused persons fisted on his chest and also on perusal of the wound certificate-Ex.P5, it is very clear that he had sustained injury on his chest also i.e., injury No.2, pain in right side of chest and also tenderness in right forearm - 17 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 and hand and also the evidence of all the three witnesses PW1 to PW3 consistently deposed before the Court that they assaulted on his hands and also on the chest. All these materials are not been considered by the Trial Court. Instead of picked up only the contradictions with regard to the evidence is concerned that too in paragraph No.15. The Trial Court makes an observation that Ex.P1 does not contains any visible injuries and Ex.P1 is the complaint, the Trial Court cannot expect visible injuries in the complaint and the very approach of the Trial Court is erroneous and also in appreciating the evidence of PW3 in paragraph No.16 though extracted the evidence of PW3 in the said paragraph, taken note that those boys have abused the conductor with filthy language and also taken note of when the bus reached Muchhila, four others have boarded the bus, they pulled out the conductor from the bus and kicked him with legs. Though it is stated in paragraph No.16, the Trial Court while discussing the evidence of PW2, comes to the conclusion that in paragraph No.17 that PW2 is the resident of his place, but - 18 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 he says that he cannot identify the accused persons before the Court by their names, in this regard he stated that he has not given any particulars about the names of the accused persons before the Police and also the Ex.D1 which was confronted to the witness given more credence and also the witness PW4 though turned hostile and fail to consider the evidence of witnesses particularly the PW1 to PW3 and also the evidence of the Doctor. The Doctor categorically says that the injured has not revealed the names of persons who fisted on chest, but, at the time of treating only, narrated the incident where the same was taken place. Even PW1- complainant was also not aware of names of the accused persons. Only subsequently comes to know about their names through the Driver – PW2. The witness PW2 also re-iterates the same in his evidence. When such being the case, the Trial Court and also the Appellate Court not appreciated the evidence available before the Court in a right perspective. The witness PW3 who is an independent witness also spoken with regard to the evidence and incident is concerned. When an injured - 19 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 himself deposes and identified the accused persons before the Court with regard to the assault made to him and his evidence ought not to have discarded by the Trial Court and also by the Appellate Court. Both the Courts below have committed an error.

17. It is important to note that the material objects MO.1 and MO.2 are also marked before the Trial Court and MO.1 and MO.2 are the Kaki colour shirt and Kaki colour pant of the PW1 who was on duty on the particular date and also material clearly discloses that the bus was stopped at Muchila and immediately they boarded the bus and dragged the conductor at the spot and assaulted him. The Trial Court fails to take note of the material available on record. Though there was no any common object when the incident was taken place at the first instance when they boarded the bus at Pajapalla, but subsequent to that they gathered near Muchila and assaulted. Though ingredients of Section 143 and 149 of IPC i.e., unlawful assembly not attracts, the Trial Court ought to have taken - 20 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 note of the evidence available on record with regard to the offences under Section 324 R/w Section 149 of IPC and also offence under Section 341 of IPC with regard to all of the accused persons have joined together and committed offence. The fact that both of them are on government duty and they were discharging their duty as public servant i.e., conductor and driver on particular date. The material available on record clearly attracting the offence punishable under Section 332 of IPC that is voluntarily causing hurt to deter public servant from his duty and also Section 353 of IPC, assault or criminal force to deter public servant from discharge of his duty. These ingredients are not been considered by the Trial Court. The Trial Court while passing an order and while formulating the point for consideration in paragraph No.8 not considered the offences punishable under Section 332, Section 353 of IPC, eventhough the charge has been framed. The Trial Court invoked Section 324 of IPC instead of Section 323 of IPC and it appears that the Trial Court has not even considered the charges framed against the accused - 21 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 persons while passing an order of acquittal and without looking into the material available on record, erroneously proceeded to acquit the accused. The Appellate Court also fails to take note of the said fact into consideration, inspite of the evidence available on record, particularly the evidence of PW1 to PW3 and documentary evidence of Ex.P5 i.e., wound certificate which clearly discloses the incident and also the bus was stopped at the spot and after the incident, the bus was taken to the police station. All these materials were not considered by the Trial Court. Even the Appellate Court also while re-appreciating the evidence, not discussed the evidence of the witness PW9 - Doctor who treated the injured in the hospital and erroneously confirmed the judgment of the Trial Court. Hence, the judgment of acquittal of the Trial Court and also the confirmation by the appellate Court requires interference.

18. In view of the discussions made above, I pass the following: - 22 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 ORDER i) The Criminal Revision Petition is allowed in part. ii) The accused persons are convicted for the offences punishable under Section 323, 332, 353 R/w Section 34 of Indian Penal Code. iii) The accused persons are sentenced to undergo imprisonment for a period of six months for the offence punishable under Section 332 of IPC and also to pay fine of Rs.5,000/-(Rupees Five Thousand only). In default of payment of fine, they shall undergo imprisonment for a period of two months. iv) The accused persons are also sentenced to undergo imprisonment for a period of six months for the offence punishable under Section 323 of IPC and also to pay fine of Rs.1,000/-(Rupees one Thousand only). In default of payment of fine, they shall undergo imprisonment for a period of fifteen days. - 23 - NC: 2024:KHC:8647 CRL.RP No. 1193 of 2018 v) The accused persons are also sentenced to undergo imprisonment for a period of six months for the offence punishable under Section 353 of IPC and also to pay fine of Rs.5,000/-(Rupees Five Thousand only). In default of payment of fine, they shall undergo imprisonment for a period of one month. vi) In respect of rest of the other accusation is concerned, the judgment of the Trial Court is confirmed. Sd/- JUDGE ST,RHS List No.: 1 Sl No.: 26