Karnataka High Court

Sri D Shiva vs The State Of Karnataka on 1 December, 2021

Bench: V Srishananda

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 1ST DAY OF DECEMBER, 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.983/2012

BETWEEN

SRI D SHIVA
S/O AMMU,
AGED ABOUT 26 YEARS,
R/A. PALLAKERE ESTATE
GUHYA VILLAGE, SIDDAPUR
VIRAJPET TALUK
KODAGU-571211
                                        ...PETITIONER
(BY SRI L S SHEKAR, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY SIDDAPURA P.S

                                        ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

      THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 04.08.2012 PASSED BY
THE P.O., F.T.C., VIRAJPET IN CRL.A.NO.88/2007 AND
CONFIRM THE JUDGMENT AND ORDER DATED 28.02.2007
PASSED BY THE PRL. C.J. (JR. DN.) & J.M.F.C., VIRAJPET
IN C.C.NO.752/2006.
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     THIS CRIMINAL REVISION PETITION COMING ON
FOR FURTHER HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                              ORDER

Heard Sri L.S.Shekar, learned counsel for the Revision

Petitioner and Sri V.S.Vinayaka, learned High Court

Government Pleader and perused the records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction for the offences

punishable under Sections 324 and 326 of IPC and 427

and was let on probation by the learned Magistrate which

was modified by the learned Judge in the first Appellate

Court by confirming the order of conviction but imposing

the imprisonment of seven years for the offence

punishable under Section 326 IPC

3. Brief facts of the case are as under:

A complaint came to be filed before Siddapura Police

Station on 16.10.2005 contending that in front of Pallakere

Society in Guhya Village of Siddapura, accused persons

with a common intention, picked up quarrel with the

complainant on the ground that he had a love affair with

the sister of the accused and voluntarily assaulted the

complainant on the forehead, near the right eye and also

on the mouth, whereby the complainant sustained

grievous injury and lost two tooth and one tooth got loosen

and thereby committed offences and sought for action. The

Police after registering case against the accused persons

and after thorough investigation, charge sheet came to be

filed against the accused for the aforesaid offences.

4. The presence of the accused persons were

secured before the learned Magistrate and charge was

framed. Accused pleaded not guilty and as such, trial was

held.

5. In order to prove the case of the prosecution,

prosecution in all examined 5 witnesses as PWs.1 to 5.

and relied on 9 documentary evidence, which were

exhibited and marked as Exs.P1 to 9 and also two Material

objects namely two clubs and glass pieces as MOs.1 and 2.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.P.C were recorded, wherein accused persons denied all

the incriminatory materials found against them. However,

accused persons did not place any explanation on record

nor filed any written submissions as is contemplated under

Section 313(5) Cr.P.C. about the incident nor examined

themselves as witnesses to have their version on record.

Thereafter, learned Magistrate heard the parties in detail

and passed an order of conviction convicting the accused

persons for the aforesaid offences and let the accused on

probation.

7. Being aggrieved by the said order of letting the

accused persons on probation, State preferred an appeal

to the District Court, Virajpet in Criminal Appeal

No.88/2007. It is pertinent to note that accused persons

did not challenge the order of conviction convicting the

accused persons for the aforesaid offences. Learned Judge

in the First Appellate Court after securing the records,

reappreciated the entire materials on record and found

that the Trial Judge was wrong in allowing the accused

persons to be let on probation as the Trial Magistrate has

convicted the accused persons for the offences as

aforesaid under section 326 IPC and modified the order

passed by the Trial Magistrate and sentenced the accused

for seven years for offence punishable under Section 326

IPC. Being aggrieved by the same, the accused is before

this Court.

8. Learned counsel for the Revision Petitioner

Sri.L.S.Shekar vehemently contended that materials on

record do not indicate that the accused persons committed

an offence punishable under Section 326 IPC.

9. In the Revision Petition, following grounds are

raised:

"A) Section 377 of the Code of Criminal Procedure, 1973 reads as hereunder:

377. Appeal by the State Government against sentence.-

(1) Save as other provided in sub-section (2), the State Government may, in any case of conviction on

a trial held by any court other than a High Court, direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy-

(a) to the Court of Session, if the sentence is passed by the Magistrate, and

(b) to the High Court, if the sentence is passed by any other court.

(2) ..............

(3) When an appeal has been filed against the sentence on the ground of inadequacy, the Court of Session or, as the case may be, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence.

A bare reading of the above provision goes to show that an appeal under section 377 to a Court of Session is permissible only in cases where a Magistrate convicts an accused and also passes a sentence and when the State Government is unhappy with the sentence passed by the Magistrate, the may prefer appeal against the sentence.

In the instant case, the learned Magistrate who had conducted trial, convicted the accused, but did not pass any order as to sentence. On the other hand, learned Magistrate while hearing on the sentence, called for report of the Probation Officer and after satisfying itself as to the Good behaviour of the accused, released the accused on probation.

It is submitted that when no sentence is passed by the Magistrate, the question of an appeal against

sentence under section 377 do arise. The Course open to the State Government is to file a revision as to the irregularity committed by the Magistrate in not passing a sentence and then calling for report of probation officer. In this view of the matter, the impugned order of the Court of Sessions calls for interference.

(B) It is submitted that when the appellate Court makes up its mind as to enhancement of sentence, it is mandatory on the part of the Appellate Court to give notice of its intention to enhance the sentence and hear the accused or his counsel on sentence.

In the instant case, the Appellate Court arbitrarily has passed the impugned order without affording any opportunity of being heard on sentence to the accused. As such the appellate Court committed a serious error in law and as such the order of the appellate Court calls for interference.

C) It is submitted that the rule of natural justice requires that the sentence imposed on the accused cannot be enhanced without giving notice to the accused and the opportunity to be heard on the proposed action.

In the instant, when the case was transferred from Madikeri to Virajpet, without giving any opportunity to the accused on being heard on the sentence, the Appellate Court Arbitrarily has passed

the impugned order. As such the impugned order calls for interference.

D) It is submitted that only in certain category of offences are punishable with death or imprisonment for life. These category of offences mostly the ones which are against the State or in rarest of the rare cases. In case of an offence punishable under Section 326 of IPC, the punishment imprisonment for life, or imprisonment for 10 years and fine. So it is not a case falling under the category of death or imprisonment for life.

The first appellate court erred in confusing itself as to the punishment explained in section 4 of the Probation of Offenders Act, 1958, where it reads as hereunder:

4. Power of court to release certain offenders on probation of good conduct - (1) When any person is found guilty of having committed an offence not punishable with death or imprison for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:

Provided that the court shall not direct such release of an offender unless it is satisfied that the

offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction on in which the offender is likely to live during the period for which he enters in to the bond.

A bare reading of the above provision goes to show that the section is not applicable to the cases where the punishment is death or imprisonment for life.

The intension of the legislature is clear in this regard. The section is not intended to interpreted as not applicable to cases which are death separately and for offences punishable with imprisonment for life separately. It is not applicable to the offences which are punishable with death or imprisonment for life.

Section 326 of IPC is punishable with imprisonment for life or imprisonment for 10 years and fine.

The appellate court has wrongly appreciated this aspect of the matter in coming to the conclusion that the Section 326 is punishable with imprisonment for life and as such section 4 of the Probation of Offenders is not applicable. As such the order of the first appellate court is liable to be set aside.

E) It is submitted that the first appellate Court has lost sight of the fact that from the date of filing of the appeal to the date of the order of the Appellate Court, the developments which would have taken place. In gap of five years, the petitioner herein who

had executed a bond along with a surety for his good behaviour has completed the bond period of three years and has not involved himself in of the offending acts so as to cause any injury or harm to the society at large. When such is the case, the appellate court erred in awarding him a sentence after lapse of probation period. This amounts to double jeopardy. As such the order of the appellate court is liable to be set aside.

F) The intention of the legislature in asking the courts to issue show cause notice in appeals under section 377 is to afford an opportunity to the accused to argue either for an acquittal or for a lesser sentence.

Mere issue of show notice is not sufficient. An opportunity should be given to the accused to argue for an acquittal or for a lesser sentence.

In the instant case, the Appellate court, which received the file from the Fast Track Court in Madikeri, without affording any such opportunity to the accused, has passed the impugned order immediately on the very second date of hearing, which is unsustainable in law. As such the order of the appellate Court is liable to be set aside.

(G) Limitation: The revision petition is in time.

(H) The petitioner has not filed any other petition seeking the same or similar reliefs."

Reiterating the above grounds, learned counsel for the

Revision Petitioner has contended that in the absence of

any X-ray certificate produced by the accused, mere loss

of two tooth as per the say of the complainant itself cannot

be ground to convict the accused for the offence

punishable under Section 326 IPC. He also contended that

in the mahazer, the lost tooth in the incident is not

recovered by the police and therefore, there is every

possibility that an old injury is taken advantage by the

complainant to falsely implicate accused persons for the

offence punishable under Section 326 IPC and therefore,

sought for allowing the revision petition. He further

contended that in the event of this Court confirming the

order of conviction, grant of probation may be considered

as is ordered by the Trial Magistrate by scaling down the

offence from 326 IPC to 324 IPC by enhancing the

reasonable sum of money towards the fine.

10. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that when once the Trial Magistrate has recorded an order

of conviction for the offence punishable under Section 326

IPC, the Trial Magistrate was not having power to grant

probation by resorting to the provisions of the Probation of

Offenders Act and therefore, State ought to have preferred

an appeal before the Fast Track, Virajpet and learned

Judge in the first Appellate Court has rightly re-appreciated

the entire materials on record and rightly passed the

impugned order and sought for dismissal of the Revision

Petition.

11. Insofar as the alternate plea is concerned,

learned High Court Government Pleader contended that

mere non recovery of lost teeth itself has not caused any

serious dent to the case of the prosecution and therefore,

sought for dismissal of the Revision Petition in toto.

12. In view of the rival contentions and having

regard to the scope of the revisional jurisdiction, following

points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused persons are guilty of the offences punishable under Sections 326, 324 and 427 IPC, which was modified by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

13. In the case on hand, the incident that occurred

on 16.10.2005 in front of Pallakere Society of Guhya

Village of Siddapura Taluk stands established by placing

necessary oral and documentary evidence on record.

Admittedly, PW.1 has sustained injuries on the mouth,

near the right eye and on forehead as could be seen from

the wound certificate. However, the materials on record

especially the spot mahazer if considered carefully, the

investigating agency is not able to recover the lost teeth in

the incident. However, the Trial Magistrate proceeded

based on the wound certificate issued by PW.4, came to

the conclusion that the injury is a grievous injury. What is

a grievous injury is defined in Section 320 of the IPC. No

doubt, in 320 IPC is mentioned that loss of teeth is a

grievous injury. However, in the absence of recovery of

lost teeth based on the history narrated by PWs.1 to 4 has

classified the injury as grievous injury. There is no

supporting or corroborating materials on record to classify

the injury is a grievous injury. Under such circumstances,

the Trial Magistrate recording an order of conviction for

the offence punishable under Section 326 IPC itself has

resulted in error of jurisdiction. Unfortunately, the learned

Judge in the first Appellate Court did not have any detailed

discussion while confirming the order passed by the Trial

Magistrate in convicting the accused for the offence

punishable under Section 326 IPC. Accordingly, a case is

made out by the accused to scale down the offence from

326 to 324 IPC. This aspect of the matter is also available

from the order passed by the Trial Magistrate, when he

granted the probation. All that was missing from the

reasoning recorded by the Trial Magistrate was that it

should not have convicted the accused for the offence

under Section 326 IPC and granted the probation. In

stead, if he had convicted the accused for 324 IPC and

granted probation, the order of the Trial Magistrate could

have been perfectly valid. Having not done so, the learned

Judge in the first Appellate Court had revised the

sentencing portion of the order of Trial Magistrate and

granted seven years imprisonment for the accused

persons. This Court, for the reasons discussed supra,

having scaled down the offence from 326 to 324 IPC is

now entitled to grant probation to the accused by

enhancing the fine amount.

14. Accordingly, this Court is of the considered

opinion that if the accused No.1/Revision Petitioner is

directed to execute a bond in a sum of Rs.1,00,000/- with

one surety for the like sum to the satisfaction of the Trial

Court for his good behaviour, which shall be in force for a

period of two years and ordered to pay fine of

Rs.1,00,000/- inclusive of the fine amount already

imposed by the learned Judge in the first Appellate Court,

ends of justice would be met. Out of fine amount, if a sum

of Rs.90,000/-is ordered to be paid as compensation to

PW.1 for reconstruction of the teeth, the ends of justice

would also meet. Accordingly, points are answered and

pass the following:

ORDER

i. Revision Petition is allowed-in-part.

ii. Accused/Revision Petitioner is convicted for the offence punishable under Section 326 IPC and directed to execute a bond for a sum of Rs.1,00,000/- with one surety for the like sum to the satisfaction of the Trial Court for his good behavior, which shall be in force for a period of two years and also directed to pay fine of Rs.1,00,000/-.

iii. Out of fine amount recovered, PW.1 is entitled to a sum of Rs.90,000/- as compensation as is contemplated under Section 357 Cr.P.C.

iv. If the accused failed to pay fine of Rs.1,00,000/- and failed to execute a bond or if there is any breach of bond condition, the order of conviction and sentence passed by the

learned Judge in the first Appellate Court stands automatically restored.