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IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 19 th DAY OF FEBRUARY 2014

BEFORE

HON’BLE MR. JUSTICE PRADEEP D. WAINGANKAR

CRIMINAL REVISION PETITION NO.1091 OF 2009

BETWEEN

1. JEEVANDAS SHETTY S/O LATE SHAMBU SHETTY AGED ABOUT 61 YEARS R/AT KATIL ROAD BAJPE, D.K.

2. PAVAN.J.SHETTY W/O JEEVANDAS SHETTY AGED ABOUT 56 YEARS R/AT KATIL ROAD BAJPE MANGALORE D.K.

3. JOHN MORAS S/O LEO MORAS AGED ABOUT 61 YEARS R/AT RAJAPALKE COMPOUND SWAMILA PADA BAJPE, MANGALORE D.K.

4. JULIET FRANKY MORAS W/O FRANKLINE MORAS AGED ABOUT 49 YEARS R/AT MAY QUEEN MORAS COMPOUND SWAMILA PADA BAJPE, MANGALORE D.K. 2

5. DONA MARK MORAS S/O MARK MORAS AGED ABOUT 42 YEARS R/AT MORAS COMPOUND SWAMILA PADA BAJPE, MANGALORE D.K.

6. HARISH POOJARY S/O LATE SANJEEVA POOJARY AGED ABOUT 56 YEARS R/AT HOTEL RADHASHREE KATIL ROAD BAJPE, MANGALORE D.K.

7. SMT.SHARADA HARISH W/O HARISH POOJARY AGED ABOUT 46 YEARS R/AT HOTEL RADHASHREE KATIL ROAD BAJPE, MANGALORE D.K.

8. CHANDAYYA SUVARNA S/O NARAYANAAYYA POOJARY AGED ABOUT 64 YEARS R/AT HOTEL TARA KATIL ROAD BAJPE, MANGALORE D.K.

9. JABAIR SHEIK S/O DAWOOD SHEIKH AGED ABOUT 59 YEARS R/AT CAR LAB GARAGE KATIL ROAD BAJPE, MANGALORE D.K.

10. SHANKER SHETTY 3

S/O LAKKANNE SHETTY AGED ABOUT 73 YEARS R/AT KARAMBAR BAJPE, MANGALORE D.K.

11. THIMMAPPA GOWDA S/O MEENA GOWDA AGED ABOUT 39 YEARS RESIDING NEAR SANESHWARA TEMPLE BAJPE, MANGALORE, D.K.

12. GOPAL GOWDA S/O KORAGA GOWDA AGED ABOUT 34 YEARS R/AT SAMILA PADAV BAJPE, MANGALORE D.K.

13. ANANDA GOWDA S/O DEVAYYA GOWDA AGED ABOUT 44 YEARS AUTORIKSHAW MECHANIC BAJPE, MANGALORE, D.K. ... PETITIONERS

(BY SRI: S.VISHWAJITH SHETTY, ADV.)

AND:

SRI.ANANDA POOJARY S/O LATE TEJAPPA JATHANNA MAJOR R/ NEAR SHANESHWARA TEMPLE KATIL ROAD BAJPE, MANGALORE, D.K. ... RESPONDENT

(BY SRI: P.P.HEGDE, ADV.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 15.10.2004 PASSED BY THE J.M.F.C., (III-COURT), MANGALORE IN C.C.NO.13093/2003 AND ORDER DATED 27.10.2009 PASSED BY THE PRINCIPAL SESSIONS JUDGE, D.K., MANGALORE IN CRL.A.NO. 352/2004 AND ACQUIT THE PETITIONERS FOR THE AFORESAID OFFENCES.

THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-

O R D E R

By an order dated 15.10.2004 in

C.C.No.13093/2000 on the file of JMFC-III Court,

Mangalore, all the revision petitioners who were accused

Nos.1 to 13 have been convicted for the offence punishable under Section 500 of IPC and have been sentenced to undergo imprisonment for three months and to pay fine of Rs.300/- each. Aggrieved by the judgment of conviction and sentence, they preferred

Crl.A.No.352/2004 before the Prl. Sessions Judge,

Dakshina , Mangalore, which came to be allowed by order dated 27.10.2009 and the order of conviction and sentence passed by the Magistrate came 5 to be set-aside and the matter has been remanded back to the Magistrate for fresh disposal in the light of the observations made in the judgment.

Questioning the legality and correctness of the order passed by the Sessions Judge, this revision petition is preferred by the accused under section 397 r/w 401

Cr.P.C.

I have heard both the learned counsel appearing for the parties. Perused the records.

2. The records reveal that on 13.5.2004, the statements of accused Nos.1 to 13 in

C.C.No.13093/2003 were recorded under Section 313 of

Cr.P.C. Thereafter on behalf of the defence, two witnesses have been examined as DW-1 and DW-2. After the defence evidence on 15.09.2004, on behalf of the prosecution, another witness by name Krishna Shettigar was examined as PW-3 and Ex-P22 came to be marked 6 through him. After examination of PW-3, no further statement of the accused came to be recorded under

Section 313 of Cr.P.C. But the incriminating circumstances that appeared in the evidence of PW-3

Krishna Shettigar has not been put to the accused, so as to give them an opportunity to explain. In other words, after examination of PW-3, the accused have not been examined under Section 313 Cr.P.C., again. But while convicting the accused, the evidence of PW-3 has been taken into account, which is per-se illegal. That is why the Sessions Judge has set-aside the judgment of conviction and sentence and remanded the matter to the

Magistrate. It appears that the petitioners were expecting a clear acquittal in view of the aforesaid defect. But the learned Sessions Judge has remanded the matter for fresh disposal meaning thereby, the learned Magistrate has to record further statement of the accused under

Section 313 Cr.P.C., so as to put the incriminating 7 circumstances appearing in the evidence of PW-3, so as to given them an opportunity to explain and to pass a judgment afresh. Therefore, I do not find any illegality or irregularity committed by the learned Sessions Judge.

Revision petition is bereft of merits. It is liable to be dismissed. Accordingly, revision petition is dismissed .

Send the records forthwith.

Sd/- JUDGE

*mn/-