Ameensab S/O Imamsab Maiyar, And ... vs The State Of Karnataka
2022 Latest Caselaw 1248 Kant

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         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

     DATED THIS THE 28TH DAY OF JANUARY, 2022

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200031/2017


BETWEEN:

1 . AMEENSAB
S/O IMAMSAB MAIYAR,
AGE: 76 YEARS OCC: AGRI.

2 . MAHIBOOBSAB
S/O AMEENSAB MAIYAR
AGE: 47 YEARS, OCC: AGRI.

3 . IMAMSAB
S/O AMEENSAB MAIYAR
AGE: 31 YEARS, OCC: AGRI.

4 . RAMAJANSAB
S/O AMEENSAB MAIYAR
AGE: 36 YEARS, OCC: AGRI.

5 . AKBARSAB
S/O AMEENSAB MAIYAR
AGE: 34 YEARS, OCC: AGRI.

6 . TARABAI
W/O AMEENSAB MAIYAR
AGE: 71 YEARS, OCC: H.H
                               2



7 . HAJEESAB
S/O MAHAMMADSAB MAGARE
AGE: 51 YEARS, OCC: AGRI

8 . NARASUSAB
S/O MAKABULSAB MAIYAR
AGE: 41 YEARS, OCC: AGRI
ALL ARE R/O BOLCHICKKALAKI
NOW AT NANDYAL,
 TQ: & DIST: VIJAYPUR                        ..PETITIONERS

(BY SRI. SHIVANAND V PATTANASHETTI, ADV.)

AND:

THE STATE OF KARNATAKA
R/ BY ADDL. SPP
HIGH COURT OF KARNATAKA
KALABURGI BENCH,
(TRHOUGH BABALESHWAR P.S.
DIST: VIJAYAPUR).                      ...     RESPONDENT

(BY SRI. SHARANABASAPPA M. PATIL, HCGP)

       THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING        TO,    SET     ASIDE         THE         JUDGMENT
DATED:20.01.2017 PASSED BY THE III ADDL. SESSIONS
JUDGE     AT     VIJAYAPUR,   IN   CRL.A.NO.36/2015         AND
FURTHER BE PLEASED TO SET ASIDE THE JUDGMENT OF
CONVICTION           AND      ORDER          OF         SENTENCE
DATED:30.07.2015 PASSED BY THE II ADDL. J.M.F.C.AT
VIJAYAPUR       IN   C.C.NO.332/2009       FOR    THE    OFFENCE
PUNISHABLE U/S 143, 147, 148, 324, 506 R/W 149 OF
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IPC AND ACQUIT THE PETITIONERS, IN THE INTEREST OF
JUSTICE AND EQUITY.

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

                             ORDER

Heard Sri Shivanand V. Pattanashetti, leaned counsel

for the Revision Petitioner/accused and Sri

Sharanabasappa M. Patil, learned High Court Government

Pleader for respondent/State and perused the records.

2. The present Revision Petition is by the accused

who have suffered an order of conviction in

C.C.No.332/2009, which was confirmed in Criminal Appeal

No. 36/2015 for the offences punishable under Sections

143, 147, 148, 324 and 506 read with Section 149 of IPC

and ordered to undergo imprisonment and payment of fine

with default sentence as under:

Fine in Offence Imprisonment Default sentence Rs.

Section 143 Simple                        500/- Simple
of IPC      imprisonment                   each imprisonment





              for Six months              for one month

Section 147 Simple                 500/- Simple
of IPC      imprisonment            each imprisonment
            for Six months               for one month

Section 148 Simple                 500/- Simple
of IPC      imprisonment            each imprisonment
            for one year                 for 2 months
Section 324 Simple                 500/- Simple
of IPC      imprisonment            each imprisonment
            for two year                 for three months

Section 506 Simple                 500/- Simple
of IPC      imprisonment                 imprisonment
            for six months               for one month



     3.    Brief facts of the case are as under:

Upon a complaint lodged by Raja Sab S/o. Abdul

Sab, Bableshwara police registered a case in Crime No.

148/2008, for the aforesaid offences.

4. Police after registering the case filed charge

sheet against the accused persons/Revision Petitioners

herein for the offence punishable under sections 143, 147,

148, 324 and 506 of IPC.

5. In the complaint, it is contended that the

complainant is a resident of Nandyala village and they

have an agricultural land and in that, himself and his wife

and others were residing there itself. On 19.2.2008 in the

afternoon, when the complainant drank the water and was

proceeding near the gutter situated adjacent to the road,

the accused persons came there and picked up quarrel

with the complainant and assaulted him with the spade

and stone and thereafter, gave him life threat. His wife

and his younger brother came to the rescue of the

complainant and at that juncture the accused persons also

assaulted them. Thereafter, the accused persons ran away

from the spot and complainant went to the Police Station

and lodged the complaint.

6. Police after thorough investigation filed charge

sheet against the accused. Presence of the accused

persons were secured by the learned Trial Magistrate and

plea was recorded. Accused pleaded not guilty and hence

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

prosecution, prosecution in all examined eight witnesses as

PWs.1 to 8 and 7 documents were relied on which were

exhibited and marked as Exs.P1 to P7. Prosecution also

relied on material objects Mos.1 & 2 which are spades said

to have been used in the incident.

7. On conclusion of the prosecution evidence

accused statement as contemplated under section 313

Cr.PC., was recorded, wherein, the accused persons

pleaded not guilty and denied the incriminatory

circumstances that were put to them. However, accused

persons did not choose to place their version on record by

examining any one of them as witness or filed any written

statement as is contemplated under section 313(5)

Cr.PC.,

8. Thereafter, learned Trial Magistrate heard the

parties in detail and passed an order of conviction

convicting the accused persons as referred to supra.

9. Being aggrieved by the same, the accused

persons preferred an appeal before the District Court in

Criminal Appeal No. No.36/2015. Learned Judge in the

learned First Appellate Court, secured the records and

heard the parties in detail. On re-appreciation of the

entire material evidence on record, the learned District

Judge dismissed the appeal filed by the accused and

confirmed the order of conviction and sentence passed by

the learned Trial Magistrate. Being aggrieved by the

same, the accused persons have preferred this Revision

Petition.

10. In the Revision Petition, following grounds

have been raised:

¾ That, judgment of conviction and order of sentence passed by the courts below is manifestly illegal and against the facts and evidence on record and also against the well established principles governing the criminal law. Hence deserves to be set-aside.

¾ That, the both the courts ought to have held that, the offences punishable Us 143 148, are not separate offences and these alleged offences are covered or merged with the other offences and

thereby, there is no necessity to give findings on the alleged offences separately.

¾ That, the provisions of Sec 143 147, indicates the intention of the accused towards the victims and thereby, the prosecution has utterly failed to prove the common intention of the accused by way of evidence and this fact has not at all considered by the both the courts, while passing the impugned Judgment and order.

¾ The evidence or the PW-1 is to be looked into he has treated as hostile by the prosecution at the first instance and during the course of the cross examination he has supported the case of the prosecution. but it is well settled principle of law that, when a witness treated as hostile, then his testimony should be looked into the scrutinized manner and the findings or the courts below not disclosing on what basis the it applied its scrutinized manner and on what basis the both the courts believed the evidence of the PW-1. 9I That. the PW-2 is one of the relative of the victims, who is acted as pancha and he has not at all stated anything during the course of the evidence. Therefore, the recovery of the weapons as alleged are falsely implicated in the present case on hand

and strangely this witness's say has disbelieved by the courts below without recording any reason.

¾ That, the evidence of the PW-2. disclosing that. there is no recovery of the alleged weapons from the scene of occurrence and therefore, to prove the guilt of the accused, the prosecution should establish the case, beyond all the reasonable doubts. Hence, the alleged weapons shown as MO's in the present .ase on hand, can be available commonly and there is no specification has been shown. while allegedly recovering the alleged MO's and even the PW-i has not at all said any identification regarding the alleged MO's and therefore, the observations and reasoning's of the both the courts in respect of disbelieving the evidence of the PW-2 is totally erroneous.

¾ That, the PW-3 is the Wife of the PW-I and she is also become an interested witness and it is well settled principles of law that, the evidence of the relatives, should be scrutinized in the scrutinized and minute manner and the observations and reasoning's of the courts below is not disclosing why the evidence of this witness should be believed.

¾ That, the I.O. has not at all shown the weapon to the said witness and also not collected the opinion of the said witness, regarding the injuries and MOs

and so also, the witness deposed that, such injuries may be caused with them. Therefore, there is no clear opinion of the PW-7, regarding the happening of the injuries by MOs only. Therefore, the evidence of PW-7 will be contradictory to the evidence of PW-1 to 4 and under such a circumstances the benefit of doubt lies in favour of the accused persons.

¾ That, when the medical report and evidence of victims are contradictory to each other then the case and alleged happenings will become doubtful and under such a circumstances the benefit of doubt lies in favour of the accused and this point has not at all observed by the both the courts.

¾ That, the said witnesses are the interested witnesses and so also close relatives and also they are unable to say why the other independent witnesses have not included in the present case on hand and also the I.O. has at all explained regarding about this aspect, as the alleged incident allegedly' taken place in the public place, wherein several lands and

¾ That, the courts below have failed to appreciate the case of the prosecution and the evidence adduced on behalf them is riddled with bristling inconsistencies, discrepancies and contradictions. In fact, there is not even an iota of evidence, let alone

prima-facie evidence to connect the petitioner with the alleged offence and both the court below have failed to appreciate the evidence in its right prospective and hence the judgments of courts below as resulted in grave miscarriage of justice.

¾ That, the courts below have passed the judgment on assumptions, surmises and conjectures to base its judgment and both the courts below have given a complete go bye to the basic concept of proof beyond reasonable doubt and this has resulted in grave miscarriage of justice.

¾ That the courts below have passed the judgment on assumptions, surmises and conjectures to base its judgment and both the courts below have given a complete go bye to the basic concept of proof beyond reasonable doubt and this has resulted in grave miscarriage of justice.

¾ That the view of matter the courts below ought to have given benefit of doubt to the petitioners and acquitted them.

11. Re-iterating the above grounds, the learned

counsel for the Revision Petitioners Sri Shivanand

Pattanashetti, vehemently contended that both the courts

have wrongly convicted the accused. He further

contended that a trivial incident has been blown out of

proportion by the complainant in order to take advantage

of the situation and false case has been filed against the

accused persons and sought for allowing the Revision

Petition.

12. Alternatively, Sri Pattanshetti, contended that

both the courts have failed to grant the benefit of

probation to the accused persons specially when they are

first time offenders with no criminal antecedents. The

reasons recorded by the learned Trial Magistrate that

accused persons are majors and therefore, they are not

entitled for grant of probation cannot be countenanced in

law and sought for granting probation.

13. Per contra, the learned High Court Government

Pleader opposes the revision grounds and supports and the

impugned judgments by contending that the injured

eyewitnesses have supported the case of the prosecution

in toto. He further contended that the accused persons

cannot be granted probation in the absence of the report

from the probation officer and therefore sought for

dismissal of the petition.

14. In view of rival contentions of the parties 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/petitioners are

guilty of the offences punishable under Sections 143,

147, 148, 324, 506 read with Section 149 of 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?"

15. In the case on hand, the complainant injured

eyewitnesses examined as PW.1. He deposed before the

Court in conformity with the complaint averments with

graphic details about the incident. Admittedly, the other

two witnesses who are injured in the case are the wife and

younger brother of the complainant, who are examined as

PWs.3 and 4. They have supported the case of the

prosecution. These three witnesses did not possess any

previous enmity or animosity against the accused persons.

The incident according to the prosecution has occurred in

respect of sharing of the water between the adjacent

lands. On the day of the incident, there was a quarrel and

the injuries sustained by the injured persons are depicted

in wound certificates marked at Exs.P4, P5 and P6. The

doctor - PW.7 who has issued Exs.P4 to P6 deposed before

the Court that he has examined the injured witnesses on

09.10.2008 between 6.40 p.m. to 6.55 p.m. and issued

Exs.P4 to P6. According to Exs.P4 to P6, there are simple

injuries on the body. The wound certificates marked at

Exs.P4 to P6 clearly mention that the injuries are sustained

on account of the assault.

16. There is no delay in lodging the complaint and

delay in examination of the injured witnesses by the

doctor. The cross examination of the prosecution

witnesses did not yield any useful material so as to

disbelieve the version of the prosecution. Moreover, the

accused persons did not place any version about the

incident either by examining themselves or filing any

written submission as is contemplated under Section

313(5) of Cr.P.C. Under such circumstances, the learned

Magistrate has rightly appreciated the oral testimony

coupled with the medical evidence and other documentary

evidence on record in recording a categorical finding that

the accused persons are guilty of the alleged offences.

17. The learned Judge in the first appellate Court

has bestowed his attention to the appeal grounds and re-

appreciated the material evidence on record. After such

re-appreciation, the learned Judge in the first appellate

Court not only agreed with the conclusion reached by the

learned trial Magistrate and also supplemented the

additional reasons for maintaining such a conviction.

18. This Court having regard to the limited scope

of the revisional jurisdiction reconsidered the material

evidence on record. The prosecution case is sufficiently

established by examining three injured witnesses, who are

examined as PWs.1, 3 and 4. The doctor, who is examined

as PW.7 has issued Exs.P4 to P6. The medical evidence on

record corroborates the oral testimony of the injured

witnesses. There is no delay in lodging the complaint and

the accused persons are not strangers to the complainant.

Under such circumstances, this Court is of the considered

opinion that the finding recorded by the trial Court and

confirmed by the first appellate Court is just and proper

and is not suffering from any patent factual defect, error of

jurisdiction or legal infirmity and thus calls no interference

from this Court. Accordingly, point No.1 is answered in the

negative.

19. Regarding point No.2: The trial Magistrate has

passed an order of sentence as referred to supra. While

passing the order of sentence, the counsel for defence has

raised the question of granting probation. However, the

trial Magistrate has taken into consideration that the

accused persons are major and therefore, there is no

special reasons to grant the benefit of Probation of

Offenders Act (for short 'P. O. Act'). It is to be noted that

the role to be played by a Court while passing an order of

conviction is altogether different from the role to be played

while passing an order of sentence. It is the mandatory

duty of the convicting Court to bestow its attention to the

provisions of the P. O. Act. More so, the accused persons

are first time offenders. Irrespective of the age of the

accused/petitioners, different provisions of the P. O. Act

would be considered by the trial Magistrate.

20. In this regard, this Court gainfully places its

reliance on the judgment judgments of the Apex Court in

the case of Chandreshwar Sharma v. State of Bihar

reported in (2000) 9 SCC 245, the relevant portion of the

said judgment is 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 tffin 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."

21. In the case of Gulzar v. State of M.P

reported in (2007) 1 SCC 619, the relevant portion of the

said judgment is 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".

22. It is pertinent to note that the learned judge in

the first appellate Court also did not consider the grant of

probation. No reasons whatsoever is forthcoming from the

order of the first appellate Court with regard to the grant

of probation is concerned. Therefore, applying the legal

principles enunciated in the above cases by the Hon'ble

Apex Court to the case on hand, this Court is of the

considered opinion that the accused/petitioners being the

first time offenders are entitled for grant of probation.

However, the argument putforth on behalf of the State

that the report from the Probation Officer is necessary

cannot be countenanced in law in view of the fact that the

incident is of the year 2008 and till today there is no other

complaint filed against the petitioners.

23. As such, at this stage remanding the matter

only for the purpose of getting the report from the

Probation Officer not only the time consuming but also

result in futile exercise. Accordingly, this Court is of the

considered opinion that if the petitioners are directed to

execute a bond in a sum of Rs.25,000/- each with one

surety for the likesum to the satisfaction of the trial

Magistrate for their good behavior, which shall be in force

for a period of two years and directed to pay fine of

Rs.10,000/- by each of the petitioners for all the offences,

the ends of justice would be met. Accordingly, point No.2

is answered and following:

ORDER

The revision petition is allowed in part.

While maintaining the order of conviction of the

petitioners for the offences punishable under Sections 143,

147, 148, 324, 506 read with Section 149 of IPC, the

accused/petitioners are directed to execute a bond in a

sum of Rs.25,000/- each with one surety for the likesum to

the satisfaction of the trial Magistrate for their good

behavior on or before 28.02.2022, which shall be in force

for a period of two years and to pay fine of Rs.10,000/-

each for all the offences inclusive of fine already imposed

by the trial Magistrate.

Out of the fine amount recovered, PWs.1, 3 and 4

are entitled for compensation in a sum of Rs.25,000/- each

under due identification in terms of Section 357 of Cr.P.C.

Balance amount of Rs.5,000/- shall be appropriated

towards the defraying expenses of the State.

It is made clear that any violation of the bond

condition or non-payment of the fine amount by the

accused/petitioners, the order of the trial Magistrate

stands atomically restored.

Office is directed to return the trial Court records

with a copy of this judgment forthwith.

Sd/-

JUDGE

PL*/Srt