Rafeeq S/O Sattar Sab vs The State Of Karnataka
2022 Latest Caselaw 7290 Kant

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           IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

        DATED THIS THE 23RD DAY OF MAY, 2022

                           BEFORE

           THE HON'BLE MRS.JUSTICE M.G. UMA

         CRIMINAL APPEAL NO.200143/2016


Between:

Rafeeq S/o Sattar Sab,
Age: 35 Years,
Occ: Agriculture,
R/o: Hupla Village,
Tq: Bhalki, Dist: Bidar.
                                          ... Appellant

(By Sri. Sanjay A.Patil, Advocate)


And:

The State of Karnataka through
The Police, Rural Police Station,
Bhalki, Dist: Bidar,
Represented by Addl. SPP
High Court of Karnataka,
Bench at Kalaburagi.
                                        ... Respondent

(By Sri Veeranagouda Malipatil, HCGP)
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     This Criminal Appeal is filed under Section
374(2) of Cr.P.C., praying to set aside the impugned
judgment     of   conviction       dated   03.09.2016   and
sentence dated 23.09.2016 passed by the Additional
District and Sessions Judge, Bidar sitting at Bhalki in
S.C.No.71/2014, thereby convicting the appellant for
the offences punishable under Sections 504 of IPC and
sentencing him to undergo S.I. for period of Six
months and to pay fine of Rs.2,000/- in default S.I.
for one month, further convicting appellant for the
offences punishable under Section 448 of IPC and
sentencing him to undergo S.I. for period of Six
months and to pay fine of Rs.2,000/- in default S.I.
for one month, further convicting appellant for the
offence punishable under Section 366 R/w 511 and
sentencing him to undergo S.I. for 5 years and to pay
fine of Rs.10,000/- in default S.I. for 2 months; and
acquit the appellant of all charges in S.C.No.71/2014
on the file of Additional District and Session Judge, at
Bidar sitting at Bidar.


     This appeal coming on for Hearing, this day, the
Court delivered the following:
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                         JUDGMENT

The accused being the appellant is before this Court

challenging the impugned judgment of conviction dated

03.09.2016 and order of sentence dated 23.09.2016

passed in S.C.No.71/2014 on the file of the learned

Additional District and Sessions Judge, Bidar, Sitting at

Bhalki (hereinafter referred to as 'Trial Court') convicting

the accused for the offences punishable under Section 448

of IPC and sentencing him to undergo simple imprisonment

for a period of six months and to pay a fine of Rs.2,000/-;

under Section 504 of IPC and sentenced him to undergo

simple imprisonment for a period of six months and to pay

a fine of Rs.2,000/-; and under Section 366 r/w Section

511 of IPC and sentenced him to undergo simple

imprisonment for a period of five years and to pay a fine of

Rs.10,000/-, with default sentence.

2. Brief facts of the case are that, the

Investigating Officer filed charge sheet against the accused

for the offences punishable under Sections 504, 448, 366

r/w Section 511 of IPC alleging that on 10.06.2013 at

10.00 p.m., the accused had brought Tata Sumo bearing

registration No.KA-39-M-546, abused the informant in

filthy language, criminally trespassed into his house,

attempted to kidnap the wife of the informant and thereby,

he committed the above said offences.

3. The Trial Court after securing the presence of

the accused framed charges and the accused pleaded not

guilty. The prosecution in order to prove its contention

examined PWs.1 to 12 and got marked Exs.P1 to P8. The

accused denied all the incriminating materials available on

record, but has not chosen to lead any evidence in support

of his defence. However, he got marked Exs.D1 to D4

during cross-examination of the prosecution witnesses.

4. Considering these material on record, the Trial

Court proceeded to convict the accused as stated above.

5. Being aggrieved by the impugned judgment of

conviction and order of sentence passed by the Trial Court,

the accused is before this Court.

6. Heard Sri Sanjay A. Patil, learned counsel for

the appellant and Sri Veeranagouda Malipatil, learned High

Court Government Pleader for the respondent-State.

7. Learned counsel for the appellant submitted

that the prosecution has failed to prove the guilt of the

accused beyond reasonable doubt. The Trial Court placed

reliance only on the interested version of PWs.2 and 6 to

convict the accused. When the prosecution has failed to

prove the guilt of the accused beyond reasonable doubt,

the Trial Court should have acquitted the accused,

extending the benefit of doubt. The impugned judgment

of conviction and order of sentence passed by the Trial

Court is not supported by sound reasoning. Therefore, the

same is liable to be set aside. The Trial Court has also not

taken into consideration Exs.D1 to D4 marked on behalf of

the accused. Considering the material on record, the Trial

Court should have acquitted the accused.

8. Alternatively, the learned counsel submits that

the sentence imposed by the Trial Court for the offence

punishable under Section 366 r/w Section 511 of IPC is

very harsh. The maximum sentence that could be

imposed for the said offence is five years and the Trial

Court imposed the same with fine of Rs.10,000/-. There

are no reasons for imposing maximum punishment on the

accused. Therefore, leniency may be shown while

imposing sentence. Accordingly, he prays for allowing the

appeal and for setting aside the judgment of conviction

and order of sentence passed by the Trial Court.

9. Per contra, learned High Court Government

Pleader supporting the impugned judgment of conviction

and order of sentence passed by the Trial Court submitted

that PW.2 is the informant who lodged the first information

as per Ex.P2. The victim is examined as PW.5, who is

none other than the wife of PW.2. Both these witnesses

have supported the case of prosecution. PWs.6, 7, 11 and

12 are the eyewitnesses who have also supported the case

of prosecution. All other prosecution witnesses have also

deposed supporting the case. Taking into consideration all

the materials placed before the Court, the Trial Court

proceeded to convict the accused. There are no grounds

to interfere with the impugned judgment of conviction and

order of sentence passed by the Trial Court. Therefore, he

prays for dismissal of the appeal.

10. Perused the materials on record. Considering

the rival contentions of the parties, the following point

would arise for my consideration:

"Whether the appellant has made out a ground to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?"

My answer to the above point is 'Partly in

Affirmative' for the following:

REASONS

11. It is the contention of prosecution that the

accused came to the house of the informant-PW.2 on

10.06.2013 at 10.00 p.m., abused him in filthy language

and criminally trespassed into his house. It is further

contended that the accused tried to kidnap PW.5 the wife

of PW.2 and thereby, committed offences punishable under

Sections 448, 504, 366 r/w Section 511 of IPC. To prove

its contention, the prosecution examined PWs.1 to 12.

12. PW.1 is the witness for the spot mahazar Ex.P1

who has fully supported the case of the prosecution.

13. PW.2 is the informant who has also supported

the case of the prosecution. During the course of cross-

examination, the witness stated that even in the earlier

complaint lodged by him against the accused, Jeep bearing

No.KA-39-M-456 is referred to. The witness denied the

suggestion that he lodged a false complaint against the

accused.

14. PWs.3 and 4 are witnesses to the seizure

mahazar Ex.P3 and stated that the jeep in question was

seized in their presence under the seizure mahazar.

15. PW.5 is the victim and wife of PW.2. This

witness has also fully supported the case of the

persecution and deposed against the accused about the

offence committed by him. She stated that the accused

abused her husband and thereafter, criminally trespassed

into the house. The accused dragged her and PW.2 out of

the house by manhandling them. The witness speaks

about the presence of eyewitnesses at the scene of

occurrence and also gives description of the jeep in which

the accused came to the spot. During the course of cross-

examination, the witness denied the suggestion that the

accused has not committed any offence as alleged and that

the false complaint is filed against him.

16. PWs.6, 7, 11 and 12 are the eyewitnesses to

the incident. They have also supported the case of the

prosecution. Even though these witnesses were cross-

examined at length, nothing has been elicited from them

to disbelieve their version.

17. PW.8 is the Panchayat Development Officer

who issued Exs.P5 and P6 and he is a formal witness.

PW.9 is the Police Constable who carried the FIR to the

jurisdictional Magistrate. PW.10 is the Investigating

Officer who investigated and filed charge sheet against the

accused. He has also fully supported the case of the

prosecution and nothing has been elicited during the

course of cross-examination.

18. The accused got marked Exs.D1 to D4 which

are the portions of statements of the witnesses about the

earlier case registered against the accused during the year

2009. The registration of earlier case during the year

2009 for having committed similar offence is admitted by

the accused. Even though the accused is examined under

Section 313 of Cr.P.C., the accused has not stated

anything about the said criminal case. However, the

accused only stated that the son of the informant was his

classmate and the informant lodged a false complaint

against him. The evidence of the material witnesses i.e.,

PW.2, 5, 6 7, 11 and 12 is not shaken during the course of

cross-examination. Nothing has been attributed against

PWs.6, 7, 11 and 12 who are examined as eyewitnesses to

the incident. The evidence of victim-PW.5 is also not

controverted. The FIR was registered on 11.06.2013 at

1.00 p.m., for the offence that was committed on

10.06.2013 at 10.00 p.m. Therefore, there is prompt

lodging of FIR. The prosecution is successful in proving

the guilt of the accused beyond reasonable doubt. Even

though the accused contended that a false complaint is

registered against him, he is not successful in probabilizing

the same.

19. I have gone through the impugned judgment

of conviction passed by the Trial Court. It has taken into

consideration the evidence of the material witnesses and

arrived at a right conclusion. The accused has not made

out any ground to interfere with the impugned judgment of

conviction passed by the Trial Court. Therefore, I am of

the opinion that the accused is liable for conviction for the

above said offences.

20. Regarding alternative submission made by the

learned counsel for the appellant, I have perused the

material on record and the sentence imposed by the Trial

Court for various offences. The accused is sentenced to

undergo imprisonment for a period of six months each and

to pay fine of Rs.2,000/- each for the offences punishable

under Sections 504 and 448 of IPC. I do not find any

reason to interfere with the same. However, the

maximum imprisonment that can be imposed for the

offence punishable under Section 366 of IPC is ten years

with fine. The accused is convicted for the offence

punishable under Section 366 r/w Section 511 of IPC, as

the accused attempted to commit the offence punishable

under Section 366 of IPC. Section 511 of IPC prescribes

punishment for attempting to commit offences punishable

with imprisonment for life or other imprisonment. For such

attempt to commit an offence where there are no express

provision is made for punishment, the same is punishable

with imprisonment for a term which may extend to one-

half of the longest term of imprisonment provided for that

offence or with such fine as provided for the offence or

with both.

21. In the present case, even though the

prosecution is successful in proving the guilt of the accused

for the offence punishable under Section 366 r/w Section

511 of IPC, there is no reason to impose the maximum

imprisonment. Therefore, I am of the opinion that the

contention raised by the learned counsel for the appellant

with regard to quantum of sentence imposed on the

accused for the offence punishable under Section 366 r/w

Section 511 of IPC needs to be upheld.

22. Looking to the facts and circumstances of the

case, I am of the opinion that the ends of justice would be

met if the accused is sentenced to undergo simple

imprisonment for a period of three years and to pay fine of

Rs.25,000/- for the offence punishable under Section 366

r/w Section 511 of IPC. Hence, my answer to the above

point is 'partly in the affirmative' and I proceed to pass the

following:

ORDER

(i) Criminal Appeal filed by the accused is hereby

allowed in part.

(ii) The judgment of conviction dated 03.09.2016

and the order of sentence dated 23.09.2016 made in

S.C.No.71 of 2014 on the file of Additional District and

Sessions Judge, Bidar, sitting at Bhalki, convicting and

sentencing the accused to undergo simple imprisonment

for six months and to pay a fine of Rs.2,000/- and in

default of payment of fine, to undergo simple

imprisonment for a period of one month for the offences

punishable under Sections 448 and 504 of IPC, is hereby

confirmed;

(iii) The judgment of conviction of the accused for

the offence under Section 366 r/w Section 511 of IPC is

also confirmed. However, the order of sentence imposed

by the Trial Court to undergo simple imprisonment for five

years and to pay a fine of Rs.10,000/- and in default of

payment of fine to undergo simple imprisonment for two

months is herby modified;

(iv) The accused is sentenced to undergo simple

imprisonment for a period of three years and to pay a fine

of Rs.25,000/- and in default of payment of fine to

undergo simple imprisonment for a period of eight months

for the offence punishable under Section 366 read with

511 of IPC.

(v) Registry is directed to return the Trial Court

records with a copy of this judgment to the Trial Court for

information and necessary action.

Sd/-

JUDGE

NB*/BGN