Durgesh vs State By Rural Police
2021 Latest Caselaw 5436 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 4TH DAY OF DECEMBER, 2021

                       BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.875/2017
                  C/W
 CRIMINAL REVISION PETITION NO.11/2017
                  C/W
 CRIMINAL REVISION PETITION NO.481/2017

IN CRL.RP.NO.875/2017

BETWEEN

SRI. KUMARA
S/O PUTTAIAH
AGED ABOUT 28 YEARS
RESIDING AT
MALALURU VILLAGE & POST
CHIKAMAGALUR TALUK
& DISTRICT -577 101
                                    ...PETITIONER
(BY SRI SUNDARESH H C, ADVOCATE)

AND

STATE BY RURAL POLICE
CHIKAMAGALUR
REP. BY S.P.P ., HIGH COURT
BENGALURU -560001
                                    ...RESPONDENT
(BY SRI VINAYAKA.V.S, HCGP)
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     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 06.08.2014 PASSED BY THE I
ADDL. SENIOR CIVIL JUDGE AND JMFC, CHIKAMAGALURU
IN C.C.NO.737/2012 CONFIRMED BY THE II ADDL. S.J.,
CHICKAMAGALURU      IN  CRL.A.NO.108/2014  DATED
05.12.2016.

IN CRL.RP.NO.11/2017

BETWEEN

DURGESH
S/O BHADRAIAH,
AGE 37 YEARS,
OCC:AGRICULTURE
R/O KESUVINAMANE VILLAGE,
MUGTHIHALLI POST,
CHKAMAGALUR DISTRICT-577 101
                                     ...PETITIONER
(BY SRI K DIWAKARA, ADVOCATE)

AND

STATE BY RURAL POLICE
CHIKAMAGALUR
REPRESENTED BY SPP, HIGH COURT
BANGALORE-01
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND SENTENCE DATED 06.08.2014 PASSED BY THE I
ADDL. SR. CIVIL JUDGE AND JMFC, CHIKKAMAGALURU IN
C.C.NO.737/2012 CONFIRMED BY THE II ADDL. S.J.,
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CHIKKAMAGALURU BY ORDER DATED 05.12.2016      IN
CRL.A.NO.108/2014 AND ALLOW THIS CRL.RP.

IN CRL.RP.NO.481/2017

BETWEEN

1 . SANTHOSH
    S/O LAXMANA
    AGED ABOUT 28 YEARS,
    OCC:AGRICULTURAL COOLIE,
    R/O BIKKIMANE VILLAGE
    CHIKKAMAGALUR TALUK
    AND DISTRICT-577101

2 . MANJUNATHA
    S/O KRISHNAIAH,
    AGED ABOUT 23 YEARS,
    OCC:AGRICULTURAL COOLIE,
    R/O BIKKIMANE VILLAGE,
    CHIKKAMAGALUR TALUK
    AND DISTRICT-577101.
                                   ...PETITIONERS
(BY SRI UMESH.P.B, FOR
SRI R.B.DESHPANDE, ADVOCATES)

AND

THE STATE OF KARNATAKA
BY CHIKKAMAGALURU RURAL POLICE STATION,
CHIKKAMAGALURU DISTRICT-577101.

(REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560001).
                                   ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)
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      THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 5.12.2016 PASSED BY THE II ADDITIONAL
SESSIONS       JUDGE,       CHIKKAMAGALURU     IN
CRL.A.NO.108/2014 AND CONFIRMING THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
6.08.2014 PASSED BY THE I ADDITIONAL SR. CIVIL
JUDGE      AND    J.M.F.C.,   CHIKKAMAGALUR    IN
C.C.NO.737/2012 (CONVICTING FOR THE OFFENCE P/U/S
341, 354, 353 R/W 34 OF IPC) AND ACQUIT THE
PETITIONERS OF THE CHARGES LEVELED AGAINST THEM.

     THESE CRIMINAL REVISION PETITIONS COMING ON
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                         ORDER

Heard Sri H.C.Sundaresh, learned counsel for the

Revision Petitioners and learned High Court Government

Pleader for the respondent and perused the records.

2. These Revision Petitions are filed by the

accused persons, who suffered an order of conviction in

C.C.No.737/2012 on the file of I Additional Senior Civil

Judge & JMFC, Chikmagalur by judgment dated

06.08.2014, whereby they have been convicted for the

offence punishable under Sections 341, 504, 354 and 353

read with Section 34 IPC which was confirmed in Criminal

Appeal No.108/2014 on the file of the II Additional

Sessions Judge at Chikkamagaluru by judgment dated

05.12.2016.

3. Brief facts of the case are as under:

A complaint came to filed contending that on

15.09.2011 at about 9.15 p.m., ASI, Rural Police received

a MLC report from the Govt. Hospital about the injured

victims in the hospital with a history of assault.

Accordingly, ASI, Rural police proceeded to the Govt.

Hospital and enquired the injured persons. In the Hospital,

the ASI recorded the statement of injured conductor of

KSRTC bus bearing No.KA-18 F-0124 stating that when

she was on duty, the accused persons, who are the

passengers were misbehaved with her and also caused

actions, which resulted in outraging the modesty of the

women and also to discharge the official work by the Govt.

servant and she reported the same to the driver of the bus

and when the driver of the bus enquired about the

incident, the accused persons also assaulted the driver and

conductor, resulted in bodily injury to the driver and

conductor and sought for action against the accused

persons. The case was registered in crime No.258/2011

and the same was investigated in detail and ultimately,

culminated in filing charge sheet against the accused

persons for the aforesaid offences.

4. The presence of the accused persons were

secured and charge was framed. The accused persons

pleaded not guilty and therefore, the trial was held.

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

prosecution in all examined 11 witnesses as PWs.1 to 11

comprising of injured witnesses, mahazer witnesses,

Doctor and Investigating Agency. The prosecution also

relied on 8 documentary evidence which were marked and

exhibited as Exs.P1 to P8. Among them, Ex.P4 is the

working certificate, Ex.P6 is the FIR and Exs.P7 and P8 are

the wound certificates issued by PW.10 Doctor.

6. On conclusion of the prosecution evidence,

accused statements as contemplated under Section 313

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

all the incriminatory circumstances found in the

prosecution evidence. However, accused did not choose to

lead any evidence nor place their version on record by

adducing oral evidence or filing a written submissions as is

contemplated under Section 313(5) Cr.P.C.

7. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

for the aforesaid offences and sentenced as under:

"The accused No.1 to 4 shall undergo simple imprisonment for one year for the offences punishable under section 353 of IPC and they shall also liable to pay fine of Rs.1,000/- each. In default of payment of fine amount, they shall undergo further simple imprisonment for one month.

The accused No.1 to 4 shall undergo simple imprisonment for one year for the offences punishable under section 354 of IPC and they shall

also liable to pay fine of Rs.1,000/- each. In default of payment of fine amount, they shall undergo further simple imprisonment for one month.

The accused No.1 to 4 shall undergo simple imprisonment for one month for the offences punishable under section 341 of IPC and they shall also liable to pay fine of Rs.500/- each. In default of payment of fine amount, they shall undergo further simple imprisonment for five days."

8. Being aggrieved by the same, accused persons

preferred an appeal in Criminal Appeal No.108/2014.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

persons are in the Revision Petitions.

9. Learned counsel for the Revision Petitioners in

chorus contend that both the Courts have not properly

appreciated the materials available on record and wrongly

passed an order of conviction and sentence resulting in

miscarriage of justice and sought for allowing the Revision

Petitions. Learned counsel for the Revision Petitioners also

contended that the materials available on record did not

establish the ingredients required to attract the offences

alleged against the accused persons and materials

available on record is not properly appreciated by both the

courts and sought for allowing the Revision Petitions. They

also contend that trivial incident has been blown out of

proportion by prosecuting agency and there is no nexus

between the accused persons and the injuries said to have

been sustained by the driver and conductor of the bus in

question and thus, sought for allowing of the Revision

Petitions. Alternatively, learned counsel for the Revision

Petitioners contend that in the event of this Court

maintaining the order of conviction for the aforesaid

offences, since the accused persons are the first time

offenders, the Trial Magistrate ought to have considered

the grant of probation which has been ignored by the

learned Judge in the first Appellate Court and sought for

grant of benefit of probation to the accused persons before

this Court.

10. Per contra, learned High Court Government

Pleader vehemently contended that materials on record

clearly establish all the ingredients required to attract the

offences alleged against the accused persons which has

been rightly appreciated by the Trial Magistrate and re-

appreciated by the learned Judge in the first Appellate

Court and sought for dismissal of the Revision Petitions. He

further contended that the materials on record especially

oral testimony of the injured witnesses is corroborated by

the PW.9-Doctor who has issued the wound certificates

marked at Exs.P7 and P8 and it is not the case of accused

persons that they have were not the passengers of the bus

in question and sought for dismissal of the Revision

Petitions. He also pointed out that the materials available

on record clearly indicate that injuries sustained by the

driver and conductor, who have categorically deposed

before the Court with graphic details about the incident

and therefore, there is no legal infirmity in the finding

recorded by the trial Magistrate and confirmed by the

learned Judge in the First Appellate Court and sought for

dismissal of the Revision Petition in toto. He also

contended that insofar as alternate plea is concerned,

since by the action of the accused persons not only PWs.1

and 2, but also other passengers were put to

inconvenience and such actions of the accused persons

cannot be dealt leniently as it would send the wrong

message to the society at large and also encourage the

perpetrators of the crime and sought for dismissal of the

Revision Petitions in toto.

11. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

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 341, 504, 354 and 353 read with Section 34 IPC, which was confirmed by the First Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

12. In the case on hand, there is no dispute that

PW.1-Baby was the Conductor and PW.2-Rudrappa was

the Driver of the KSRTC Bus, who were on duty on

15.09.2011. The incident that occurred within the bus is

deposed to by PWs.1 and 2 with graphic details.

Admittedly, the accused/Revision Petitioners were the

passengers in the bus. The incident as is deposed to by the

PWs.1 and 2 has been established by placing necessary

oral and documentary evidence on record. The injuries

found on the body of PWs.1 and 2 is mentioned in Exs.P7

and P8 issued by Doctor-PW.10. Therefore, the oral

testimony of PWs.1 and 2 is sufficiently corroborated by

the medical evidence. In the absence of any explanation

offered by the accused persons as to the incident and

trend of cross examination would clearly establishes that

the accused persons in order to escape from the rigors of

law, tried to give a different color to the incident but failed

to do so. Admittedly, PWs.1 and 2 are total strangers to

the accused persons. When such is the factual aspect, why

would PWs.1 and 2 create a wound certificates in the form

of Exs.P7 and P8 by inflicting themselves and file a false

case against the accused persons is a question that

remained unanswered. Therefore, the trial Magistrate was

justified in appreciating the materials available on record

especially the oral testimony of PWs.1 and 2 coupled with

medical evidence and holding that the accused persons are

the guilty of the aforesaid offences. The same has been

rightly re-appreciated by the learned Judge in the First

Appellate Court. In view of the categorical findings

recorded by the trial Magistrate and First Appellate Court

in the light of the grounds urged in the Revision Petitions,

this Court on reconsideration of the entire materials

available on record, does not find any legal infirmity or

perversity or patent factual defect so as to interfere with

the Revisional jurisdiction to arrive at altogether different

conclusion. Accordingly, point No.1 is answered in the

negative.

13. Insofar as the sentence is concerned,

admittedly, the Revision Petitioners are the first time

offenders. There is no criminal antecedents against the

accused persons. Further, the role of a Court while passing

an order of conviction is altogether different from the role

that is to be played at the time of sentencing. The said

legal principles are enunciated in the following cases:

i. In the case of Chandreshwar Sharma v. State

of Bihar reported in (2000) 9 SCC 245 at paragraph

No.3, it is held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the

matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed.

Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under

section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

ii. In the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, it has been held as under:

"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found

guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".

14. In a matter of this nature, the trial Magistrate

having mandatory duty to consider the grant of probation.

The trial Magistrate however, while passing the sentence

did not even bestow its attention to the grant of probation

or otherwise. All that could be found from the order of

sentence is that PW.1 being the lady, trial Magistrate has

not considered the grant of probation. Mere fact that PW.1

is a lady, would not come in the way of considering the

grant of probation. Unfortunately, learned Judge in the

First Appellate Court also failed to take notice of the said

aspect of the matter. Accordingly, this Court is of the

considered opinion that the accused/Revision Petitioners

have made out a case for grant of probation as they are

the first time offenders. If the accused persons are

directed to execute a bond for their good behavior and

ordered to pay enhanced fine amount, ends of justice

would be met. Accordingly, point No.2 is answered partly

in the affirmative and pass the following:

ORDER

(i) Criminal Revision Petitions are allowed-in-part.

(ii) While maintaining the order of conviction for the aforesaid offences, each of the accused persons are directed to execute a bond in a sum of Rs.50,000/- with one surety for the like sum to the satisfaction of the trial Court for their good behavior, which shall be in force for a period of two years from the date of execution and ordered to pay fine of Rs.25,000/- each inclusive of the fine already

imposed by the trial Magistrate for all the offences on or before 15.01.2022.

(iii) Out of the fine amount recovered, a sum of Rs.50,000/- is ordered to be paid to PW.1 as compensation and a sum of Rs.25,000/- is ordered to be paid to PW.2 as compensation and balance sum of Rs.25,000/- shall vest with the State towards defraying expenses.

It is made clear that if there is any default in

payment of fine amount or any violation of bond

conditions, order passed by the trial Court stands

automatically restored.

Ordered accordingly.

Sd/-

JUDGE

KA*