Honappa vs The State
2023 Latest Caselaw 512 Kant

                             1




              IN THE HIGH COURT OF KARNATAKA
                     KALABURAGI BENCH

       DATED THIS THE 09TH DAY OF JANUARY, 2023

                          BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION No.200012/2018


BETWEEN:

HONAPPA S/O SHIVAPPA HARIJAN
AGE:33 YEARS, OCC: AGRICULTURE,
R/O BENKAL VILLAGE,
TQ: DEVADURGA
DIST: RAICHUR-584 111

                                           ... PETITIONER
(BY SRI RAVI K. ANOOR, ADVOCATE)

AND:

THE STATE THROUGH
DEVADURGA POLICE STATION,
DIST. RAICHUR
REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
AT KALABURAGI BENCH-585 107
                                          ... RESPONDENT

(BY SRI VEERANAGOUDA MALIPATIL, HCGP)


       THIS    CRIMINAL   REVISION   PETITION   IS   FILED
UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET
                               2




ASIDE      THE   JUDGMENT    PASSED     BY   THE   LEARNED
JUDICIAL MAGISTRATE FIRST CLASS, DEVADURGA DATED
11.02.2015 AND FURTHER THE SAME BEING CONFIRMED
BY THE LEARNED PRINCIPAL SESSIONS JUDGE, RAICHUR
IN   CRL.APPEAL     NO.09/2015     BY   JUDGMENT     DATED
23.03.2018.


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

                        ORDER

Heard Sri Ravi K. Anoor, learned counsel for the

revision petitioner and learned High Court Government

Pleader and perused the records.

2. This revision petition is filed by the accused,

who suffered an order of conviction in C.C.No.463/2011 on

the file of learned JMFC, Devadurga by judgment dated

11.02.2015, whereby he has been convicted for the

offence punishable under Sections 429 of IPC which was

confirmed in Criminal Appeal No.09/2015 on the file of the

Principal Sessions Judge, Raichur by judgment dated

23.03.2018.

3. Brief facts of the case are as under:

The case of the prosecution is that on 01.04.2011 at

about 3.00 p.m., in gairana land adjoining to the leased

land of the accused situated at B.Ganekal village, six cows

and two calves of the complainant were grazing the grass

and consumed paddy grass put up in the land and ate

poisonous tablets mixed with the cattle feed. The same

was kept by the accused with an intention to protect paddy

grass stored in gairana land of the accused. When such

being factual aspect, six cows of complainant consumed

the poisonous cattle feed which was kept along with the

paddy grass and died at about 5.30 p.m., in the house of

complainant whereby complainant was put to loss to the

tune of Rs.34,000/-. After receipt of the said complaint,

Devadurga Police registered a case in Crime No.75/2011

for the offence punishable under Section 429 of IPC and

after thorough investigation filed the charge sheet.

4. Learned Magistrate on receipt of the charge

sheet took cognizance of the offence punishable under

Section 429 of IPC and registered a case in

C.C.No.463/2011. Presence of the accused was secured

and charges were framed. Accused pleaded not guilty and

therefore, trial was held.

5. In order to prove its case, the prosecution in

all examined 9 witnesses comprising of panch witnesses,

Investigating Officer and veterinary doctor who issued post

mortem report marked and exhibited at Ex.P.4 to P9.

Prosecution relied on 10 documentary evidence which were

marked and exhibited at Ex.P.1 to P.10 comprising of

complaint, spot panchanama, post mortem reports and

FIR. Prosecution also relied on 2 material objects marked

at M.O.1 Pot and M.O.2, sample grass.

6. On conclusion of the recording of evidence, the

trial Magistrate recorded the accused statement under

Section 313 of Cr.P.C., wherein accused denied all the

incriminating evidence found against him in the case of the

prosecution.

7. Therefore, learned Magistrate heard the parties

in detail and after considering the material on record in a

judicial manner, convicted the accused for the offence

punishable under Section 429 of IPC and sentenced the

accused to undergo simple imprisonment for a period of 2

years for the offences punishable under Section 429 of IPC

and also directed to pay a sum of Rs.20,000/- as

compensation by acting under Section 357 of Cr.P.C.

8. Being aggrieved by the said conviction

judgment, accused preferred an appeal before the Principal

Sessions Judge, Raichur in Criminal Appeal No.9/2015.

9. Learned Sessions Judge, after securing the

records and hearing the parties in detail, dismissed the

appeal of the revision petitioner and confirmed the

judgment of conviction by his judgment dated 23.03.2018.

10. Being aggrieved by both the judgments, the

accused has presented the present revision petition on the

following grounds:

¾ That, the impugned judgment and order of conviction and sentence recorded by the learned trial judge is contrary to law, facts and evidence on record. Hence the same is liable to be set aside.

¾ The reasons assigned by the learned trial judge while passing the impugned judgment and order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned judgment and order of conviction and sentence, resulting in substantial miscarriage of justice to the case of revision petitioner.

¾ That, there is contrary evidence revealed from the oral evidence and medical evidence has rendered the prosecution case doubtful and the trail court in this regard has not appreciated evidence on record.

¾ That, the reasons given by the trail court in believing interested witnesses 1s not proper and there are number of contradictions in the evidence of these witnesses. 1The reasons given are not proper and contrary to principles of criminal jurisprudence.

¾ That, admittedly there are no eye witnesses to the incident and the entire case of the prosecution is based on circumstantial evidence which is not connecting the revision petitioner.

¾ That, both the courts below have erred in drawing a presumption that the incident has accused near the field where the petitioner was cultivating. Thus, no provision of law give such a presumption to be drawn.

¾ That, the courts have ignored the most important material facts of recovery as the alleged seizure where the paddy husk was stored is different from the one produced before the court.

¾ That, there is no material on record either direct or circumstantial to connect the revision petitioner to the incident. PW-1 Complainant and Pw-3, 4& 6 are not the witnesses to the Occurrence in question and their evidence is hearsay in nature and same has no relevance in untolding prosecution case.

¾ That, the panch Witness Pw-2 has also not testified regarding contents of both mahazar marked at Ex.P.2 and P.3 said to have been conducted near land of Sharangouda is also defective, because the pot containing paddy husk and paddy gross was not seized under said mahazar.

¾ That, the Pw-5 was said to have conducted post mortem Over six dead cattle's, the said veterinary doctor Pw-5 has also not given any opinion regarding cause of death of all deceased cattle's. the said Doctor elaims that he had sent the Vicera of dead cattle to FSL but unfortunately the police have not received FSL report till today.

¾ That some more grounds will be urged at the time of arguments.

11. Reiterating the grounds urged in the revision

petition Sri Ravi K. Anoor, learned counsel for the

petitioner vehemently contended that both the courts have

not properly appreciated the material on record and

committed serious error in convicting the revision

petitioner and sought for allowing the revision petition.

12. As an alternate argument, he submitted that

since accused is a first time offender, the trial Court ought

to have considered grant of probation and contended that

same is not having been discussed by the learned trial

judge or by the first appellate Court, he sought for

granting of probation and allowing the petition.

13. Per contra, learned High Court Government

Pleader opposes the revision petition and submits that

there is no legal or factual aspect error committed by both

the courts and therefore, sought for dismissing the revision

petition.

14. Insofar as grant of benefit of probation is

concerned, learned High Court Government Pleader

submits that grant of probation is not even argued before

the trial Court or before the first appellate Court and

therefore, for the first time the said argument is put forth

before this Court and sought for dismissal of the revision

petition in toto.

15. In view of the rival contentions of the parties,

and having regard to the scope of the Revisional

jurisdiction, the following points that would arise for

consideration are:

1. Whether the revision petitioner has made out a case that both the courts have erred in law in convicting the accused for the offence punishable under Section 429 of IPC?

       2.   Whether     there       is   any   error     of
            jurisdiction?

       3.   Whether the sentence is excessive?

       4.   What order?

16. In the case on hand, death of six cows

belonging to the first informant is not in dispute and the

death has taken place consuming poisonous substance by

the cows. The same is proved by oral evidence of

Dr.N.H.Rathod, PW.5, who is a veterinary doctor examined

on behalf of the prosecution who issued Exs.P.4 to P.9 post

mortem reports.

17. The spot mahazar, recovery of seizure of

M.O.1 and sample grass as M.O.2, establish that cows

have grazed the paddy grass stored in the gairana land of

the accused.

18. In the absence of any previous enmity or

animosity between the complainant and accused, why

would the complainant falsely implicate accused in respect

of death of six cows the question remains unanswered.

These aspects are rightly appreciated by the learned trial

Magistrate after considering the oral and documentary

evidence placed on record in its proper perspective.

19. Learned first Appellate Judge, dealt with the

prosecution evidence placed on record in detail and also

re-appreciated the material evidence on record and

recorded a categorical finding that the prosecution is

successful in establishing that accused revision petitioner

has committed an offence under Section 429 of IPC

inasmuch as he had kept the poisonous tablets along with

cattle feed in his land where the paddy grass has been

stored and therefore, the act attributable to the

accused/revision petitioner under Section 429 of IPC

stands established by placing necessary cogent and

convincing evidence on record.

20. Admittedly, the learned Magistrate had the

jurisdiction to entertain the complaint and pass appropriate

judgment. Therefore, on factual aspect, the revision

petitioner is unable to make out a case that finding

recorded by the learned trial Magistrate and learned First

Appellate Judge convicting the accused under Section 429

of IPC.

21. Therefore, the argument put forth on behalf of

the revision petitioner that both the courts have commited

legal and factual error in convicting the revision petitioner

cannot be countenanced in law.

22. Having said thus, the question of grant of

probation is not even argued on behalf of the revision

petitioner before the learned Magistrate and therefore,

learned Magistrate did not consider grant of probation.

Unfortunately, learned Sessions judge being the appellate

authority, did not bestow its attention to grant of

probation.

23. It is now settled principles of law and requires

no emphasis that the role of Court while passing the order

of conviction is altogether different from role of the Court

while passing appropriate sentence in respect of given

offence where the accused has been convicted.

24. The principles of law enunciated in the case of

Gulzar vs. State of Madhya Pradesh reported in

(2007)1 SCC 619 clearly enunciates the same. The

relevant paragraphs thus read as under:

"11. Where the provisions of the P.O. Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the P.O. Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or

the provisions of the P.O. Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the P.O. Act are further noticed in sub-

section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the P.O. Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.

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

13. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area."

25. Applying the said principles of law enunciated

in the aforesaid decision to the case in hand, since the

accused is a first time offender, the trial Court is duty

bound to consider grant of probation to the revision

petitioner. Even though grant of probation is not

canvassed as a ground on behalf of revision petitioner

before the First Appellate Court.

26. Further, learned Judge in the first appellate

Court did not bestow his attention to grant of probation

more so, after recording a finding of conviction for the

revision petitioner more so while confirming the conviction

order in respect of the revision petitioner.

27. Since it is the mandatory duty of the Court to

consider grant of probation, both the courts have not

exercised the said powers, there is an error of jurisdiction,

to that extent in the judgments passed by both the courts

which are subject matter of the present revision petition.

However, it is also noticed that compensation that is

ordered by the learned trial Magistrate under Section 357

of Cr.P.C., is not part of the fine and the learned

Magistrate has granted the compensation in a sum of

Rs.20,000/- in respect of death of six cows belonging to

the complainant.

28. It is in this regard the argument that is put

forth on behalf of revision petitioner that learned

Magistrate had the powers to impose only Rs.5,000/- as

the fine and since no fine is imposed and only

compensation in a sum of Rs.20,000/- is ordered for the

complainant has resulted in miscarriage of justice.

29. Since this Court is now intending to grant

probation to the revision petitioner by resorting to the

power vested under this Court under Section 4 of the

Probation of Offenders Act, by acting under Section 5 of

the Probation of Offenders Act, the compensation awarded

by the trial Court needs to be enhanced to Rs.40,000/- in

respect of death of six cows.

30. Accordingly, ends of justice would be met by

granting probation to the revision petitioner by directing

him to execute a bond in a sum of Rs.25,000/- which shall

be in force for a period of two years for his good behavior

with one surety for the likesum to the satisfaction of the

trial Court and enhancing compensation from Rs.20,000/-

to Rs.40,000/- in respect of death of six cows would meet

the ends of justice.

31. Accordingly, point No.3 is answered partly in

affirmative.

32. In view of finding of this Court on point Nos.1

to 3 as above, the following order is passed:

ORDER

Revision petition is allowed in part.

i. While maintaining the conviction of revision

petitioner for the offence punishable under Section 429 of

IPC, revision petitioner has been granted probation

directing him to execute a bond in a sum of Rs.25,000/-

along with one surety to the satisfaction of the trial Court

for his good behavior which shall be in force for a period of

two years and ordered to pay compensation of Rs.40,000/-

(Rs.20,000/- ordered by the learned Magistrate and

Rs.20,000/- enhanced by this Court, in all Rs.40,000/-) to

the complainant in respect of death of six cows.

ii. Time is granted to execute the bond and to pay

enhanced compensation till 04.02.2023.

iii. It is made clear that violation of any one of the

conditions of probation or non payment of compensation

as ordered by the learned Magistrate and enhanced by this

Court, the punishment of two years ordered by the trial

Magistrate and confirmed by the first appellate Court

stands automatically restored.

Sd/-

JUDGE

VNR