Kenchaiah vs The State Of Karnataka
2021 Latest Caselaw 681 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF JANUARY 2021

                         BEFORE

        THE HON'BLE MR. JUSTICE V. SRISHANANDA

        CRIMINAL REVISION PETITION NO.14 OF 2015

BETWEEN:

1.     KENCHAIAH
       S/O SANNAHANUMAIAH,
       AGED ABOUT 46 YEARS,
       AGRICULTURIST,
       R/AT KATHRIKEHAL,
       KANDIKERE HOBLI,
       C.N. HALLI TALUK,
       TUMAKURU DISTRICT - 572 214.

2.     HANUMANTHAIAH
       S/O GUDDADATHIMMAIAH,
       AGED ABOUT 41 YEARS,
       AGRICULTURIST,
       R/AT KATHRIKEHAL,
       KANDIKERE HOBLI,
       C.N. HALLI TALUK,
       TUMAKURU DISTRICT - 572 214.
       (NOW A-2 IN J.C)
                                          ...PETITIONERS
(BY SRI. CHANDRASHEKARA K A., ADVOCATE)

AND:

THE STATE OF KARNATAKA
BY THE POLICE OF
                                 2


CHIKKANAYAKANAHALLI POLICE STATION,
TUMAKURU DISTRICT - 572 214.
                                                  ...RESPONDENT
(BY SRI. MAHESH SHETTY, HCGP)



     THIS CRL.RP FILED U/S. 397 AND 401 OF CR.P.C PRAYING
TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE
PASSED IN C.C.NO.516 OF 2010 DATED 02.01.2014 PASSED BY
THE PRINCIPAL CIVIL JUDGE AND JMFC, C.N. HALLY AND
CONFIRMED BY THE V ADDL. DISTRICT AND S.J., TIPTUR IN
CRL.A.NO.10001 OF 2014, DATED 7.4.2014 AND ACQUIT THE
PETITIONERS FOR THE OFFENCE PUNISHABLE UNDER SECTION
324 AND 506 READ WITH 34 OF IPC.

     THIS CRL.RP COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:


                           ORDER

Heard Sri. K.A.Chandrashekara, learned counsel for

revision petitioners and learned High Court Government

Pleader on behalf of the State Public Prosecutor.

2. This revision petition is filed by the accused challenging

the order passed in C.C.No.516/2010 on the file of Principal Civil

Judge & JMFC, Chikkanayakanahally dated 2nd January 2014

whereby the accused came to be convicted and sentenced and

the said order was confirmed in Crl.A.No.10001/2014 on the file

of V Additional District & Sessions Judge, Tiptur by its judgment

dated 7th April 2014.

3. Parties are referred to as accused and prosecution for

the sake of convenience.

4. Sri. K.A.Chandrashekara, learned counsel appeared

through video conference and his colleague appeared before this

court and filed memo of retirement. Since the revision petition

is of the year 2015, the memo of retirement is rejected and time

was granted to the learned counsel to address the arguments.

Sri.K.A.Chandrashekar, learned counsel addressed his

arguments through video conference.

5. The brief facts which are necessary for the disposal of

this revision petition are as under:

The Police Sub-Inspector, Chikkanayakanahally Police

Station filed a charge-sheet against the accused persons in

pursuance of the complaint which came to be lodged on

15.07.2010 in Crime No.117/2010. The learned Magistrate took

cognizance of the offences alleged against the accused and

secured the presence of the accused persons and charges were

framed against the accused persons. The accused pleaded not

guilty and trial was held. In order to prove the case of

prosecution, prosecution in all examined 6 witnesses as PWs.1 to

6 and relied on 4 documents which were marked and exhibited

as Exs.P1 to Ex.P4 and 2 material objects were marked as MOs.1

and 2. The accused statement as contemplated under Section

313 of Cr.P.C. was recorded by the learned Magistrate wherein

accused persons denied all incriminatory materials which were

put to them and did not choose to lead any defence evidence.

6. Learned Magistrate heard the Assistant Public

Prosecutor and the defence counsel and convicted the accused

and passed the following order:

"Acting under section 248(2) Cr.PC., the accused No.1 and 2 are hereby convicted for the offences punishable under sec.324, 506 R/w 34 of IPC.

Acting under section 248(1) Cr.PC., the accused No.1 and 2 are hereby acquitted for the offence punishable under sec.504 R/w 34 of IPC.

Properties - MO-1 one Stone in PR No.153/2012 of this case, same is worthless, shall be destroyed after the appeal period is over.

Properties - MO-2 one Sickle in PR No.153/2012 of this case, same is valuable one, shall be confiscated to the state after the appeal period is over.

ORDERS REGARDING SENTENCE.

"Accused No.1 & 2 are hereby sentenced to undergo Simple imprisonment for 4 months and to pay fine of Rs.1000/- each for the offence punishable under section 324 R/w 34 of IPC. In case of default to pay fine amount, shall undergo Simple Imprisonment for one month.

Accused No.1 & 2 are hereby sentenced to pay a fine of Rs.500/- each for the offence punishable under section 506 R/w of 34 of IPC. In default to pay fine, shall undergo S.I., for twenty days.

Acting under section 357(3) Cr.PC., accused No.1 and 2 are hereby directed to pay compensation to the victim CW1 in a sum of Rs.1000/- each.

Substantive sentence to run concurrently and default sentence shall run consequently.

Furnish copy of the Judgment to the accused, at free of cost."

7. Being aggrieved by the said conviction order, the

accused preferred Crl.A.No.10001/2014 on the file of V

Additional District & Sessions Judge, Tiptur.

8. Learned Judge in the First Appellate Court secured the

records and after hearing the parties in detail, confirmed the

judgment passed by the learned Magistrate. It is those

judgments which are subject-matter of this revision petition.

9. Learned counsel for the revision petitioners

Sri.K.A.Chandrashekar vehemently contended that both courts

have grossly erred in convicting the accused persons for the

offence punishable under Sections 324 and 506 of IPC. He

further contended that the prosecution evidence was not

sufficient enough to establish the charges leveled against the

accused beyond reasonable doubt and prayed for allowing the

revision petition and sought acquittal of the accused persons.

He pointed out that in the case on hand, investigating officer is

not examined which is fatal to the prosecution and thus prayed

for allowing the revision petition.

10. Alternatively, learned counsel also contended that the

sentence passed by the Trial Court as well as First Appellate

Court is excessive and thus sought for modifying the sentence in

the event of this court concurring with the judgment of

conviction passed by the Trial Court confirmed by the First

Appellate Court.

11. Per contra, learned High Court Government Pleader

representing the State Public Prosecutor supported the

impugned judgment and prayed for dismissal of the revision

petition. Insofar as sentence is concerned, learned High Court

Government Pleader submits that the learned Magistrate has

taken into consideration the provisions of the Probation of

Offenders Act, 1958 (hereinafter referred to as 'the PO Act' for

short) and denied the relief which is bluntly a discretionary order

and thus sought for maintaining the sentence as well by

dismissing the revision petition.

12. In view of the rival contentions, the following points

arise for consideration:

1) Whether the revision petitioners make out an error apparent on record in the impugned judgments in holding that the accused persons are guilty of the offence under Sections 324 and 506 IPC?

2) Whether the sentence passed by the Trial Court and confirmed by the First Appellate Court in the impugned judgment, is excessive?

This court answers point No.1 in negative and point No.2 partly

in the affirmative, for the following reasons:

13. POINT NO.1: In the case on hand, the accused

persons and the complainant are from the same village and in

fact are the owners of the neighbouring agricultural lands.

Therefore, there is no dispute as to the identity of the accused

persons. According to the complainant, the accused persons

assaulted her by picking up quarrel with stone as well as sickle.

According to the testimony of the injured complainant, she

sustained injuries i.e., lacerated wound on the right hand

measuring 12½ cms. The said injury could not have caused

unless by use of a sharp weapon. The other injury found as is

noted in the wound certificate Ex.P2 could be caused by any

blunt object. In the case on hand, MO-1 is stone which is blunt

object. The investigation agency collected necessary materials

and in the cross-examination of PW-1, there is not even a

suggestion that accused persons did not assault the complainant

on the date of incident. In the absence of said suggestion, the

learned Magistrate convicting the accused for the offence under

Sections 324 and 506 IPC, is perfectly justified. Non-

examination of the investigating officer in the case on hand is

not fatal to the case of the prosecution as the evidence on record

would clearly indicate that there was no improvement made by

the prosecution witness so as to confront such contradictions to

the investigating officer. No flaw in the investigation is also

available on record so as to get clarification from the

investigation officer.

14. The other material witnesses have also supported

the case of prosecution which clearly indicate that as on the

date of incident, the accused persons picked up quarrel in

the land belonging to the complainant and assaulted her

and they also gave life threat to her. Thus, the finding

recorded by the learned Magistrate that the accused have

committed offences under Sections 324 and 506 of IPC is

well-founded. Learned Judge in the First Appellate Court

re-appreciated the said aspect of the matter while

maintaining the order of conviction in its proper perspective

after re-visiting and re-appreciating the entire material on

record. Accordingly, this court is of the considered opinion

that the revision petitioners are unable to point out any

error apparent on record in reaching a finding that the

accused persons have committed offence under Sections

324 and 506 of IPC and accordingly point No.1 is answered

in the negative.

15. POINT NO.2: Insofar as sentence is concerned,

there is some force in the arguments advanced on behalf of

the revision petitioners. In fact, the reasons whatsoever

assigned by the learned Magistrate for not granting the

benefit under the PO Act, especially when there is no

previous criminal history alleged against accused persons,

is erroneous. A stray observation is made in the judgment

of the learned Magistrate that the accused persons are not

entitled for the benefit of PO Act as no reasons are assigned

to deny such a benefit. What is the material that was

placed before the learned Magistrate which would come in

the way of extending the benefit of the PO Act is not even

mentioned in the impugned judgment of the learned

Magistrate. Mere mentioning that no good reason is

forthcoming to release the accused under the PO Act is not

in compliance of the provisions of the PO Act.

16. It is settled principle of law that extending the

benefit of the PO Act is mandatory duty cast on the

Magistrate, especially in the absence of any previous

criminal conduct that is placed by the prosecution. Under

the circumstances, this court is of the considered opinion

that having regard to the nature of the offence alleged

against the accused persons, the benefit of the PO Act

should have been granted by the learned Magistrate to the

accused persons.

17. Unfortunately, the First Appellate Court did not

bestow its attention to this aspect of the matter and

therefore necessity has arisen for this court to extend the

benefit of the PO Act to the revision petitioners-accused

persons. Learned High Court Government Pleader submits

that in the event of this court extending the benefit of the

PO Act to the accused persons, report of the Probationary

Officer is necessary. Having regard to the fact that the

incident is of the year 2010 and in the last decade there is

no complaint by the complainant as against the accused,

obtaining report of the Probationary Officer at this distance

of time, insofar as accused persons are concerned, would

result in futile exercise. Ends of justice would be met if the

accused persons are directed to execute a bond in a sum of

Rs.25,000/- each for their good behaviour which shall be in

force for a period of two years from today and if any breach

is there to the terms of the bond, restoring the order of

conviction passed by the learned Magistrate would be

appropriate sentence in the facts and circumstances of the

case. At this stage, learned High Court Government

Pleader also submits that awarding only a sum of

Rs.1,000/- as compensation to the injured is on the lower

side and therefore while granting the benefit of the PO Act

to the accused persons, this court may enhance the fine

amount to the accused persons and suitable compensation

be ordered to the injured.

18. This court finds force in such a contention urged

on behalf of prosecution. Accordingly, directing each of the

accused persons to pay fine of Rs.5,000/- each for the

offence under Section 324 r/w 34 of IPC and Rs.1,000/-

each for the offence under Section 506 r/w 34 of IPC with

default sentence of simple imprisonment of six months and

one month, respectively, would meet the ends of justice in

the facts and circumstances of the case on hand.

Accordingly, point No.2 is answered partly in affirmative.

19. Hence, this court proceed to pass the following:

ORDER

The Revision Petition is allowed in part.

While maintaining the conviction for the offence under Section 324 r/w 34 and Section 506 r/w 34 of IPC, the accused persons are directed to pay fine of Rs.5,000/- each for the offence under Section 324 r/w 34 of IPC with default sentence of simple imprisonment for six months and Rs.1,000/- each for the offence under Section 506 r/w 34 of IPC with default sentence of simple imprisonment for one month.

Out of the fine amount, a sum of Rs.10,000/- is ordered to be paid as compensation to the injured, PW-1.

The accused persons shall execute a bond in a sum of Rs.25,000/- for their good behaviour which shall be in force for a period of two years

and in the event of any breach of bond conditions, the sentence of imprisonment of four months as ordered by the learned Magistrate and confirmed by the First Appellate Court shall stand restored.

The accused persons shall deposit the enhanced fine amount on or before 10.02.2021 and also execute the bond to the satisfaction of the Trial Court on or before 10.02.2021.

Registry is directed to remit the Trial Court records with the copy of this order at the earliest.

SD/-

JUDGE

RD/PL*