Karnataka High Court
Khadar vs The State on 23 January, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 554 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO. 554 OF 2012
BETWEEN:
1. KHADAR
S/O ABDUL VAHADSAB,
AGED ABOUT 30 YEARS,
JAI BHEEMA NAGAR,
HARIHARA.
2. JABIVULLA
S/O GHOUSE MOHIDDIN,
AGED ABOUT 20 YEARS,
JAI BHEEMA NAGAR,
HARIHARA.
3. MADARSAB
S/O LATE HANEEFSAB,
Digitally signed
by MALATESH AGED ABOUT 42 YEARS,
KC
Location: HIGH JAI BHEEMA NAGAR
COURT OF
KARNATAKA HARIHARA.
4. MAHABOOB @ MANNA MAHABOOB
S/O BUDENSAB
AGED ABOUT 38 YEARS,
JAIBHEEMA NAGAR,
HARIHARA.
...APPELLANTS
(BY SRI. DILRAJ ROHIT SEQUEIRA, ADVOCATE)
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CRL.A No. 554 of 2012
AND:
THE STATE
REPRESENTED BY THE
HARIHARA TOWN POLICE
REP. BY THE STATE PUBLIC PROSECUTOR.
...RESPONDENT
(BY SRI. RAHUL RAI K., HCGP)
THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION DATED
28.03.2012 PASSED BY THE PRL. DISTRICT AND SESSIONS
JUDGE, DAVANAGERE IN S.C.NO.4/2010 - CONVICTING THE
APPELLANTS/ACCUSED NOS.1 TO 4 FOR THE OFFENCE
P/U/S.341 AND 333 R/W. 34 OF IPC. AND THE
APPELLANTS/ACCUSED ARE SENTENCED TO PAY A FINE OF
RS.250/- EACH (RUPEES TWO HUNDRED AND FIFTY ONLY) FOR
THE OFFENCE P/U/S.341 R/W. SEC.34 OF IPC. IN DEFAULT OF
PAYMENT OF FINE, ACCUSED NO.1 TO 4 SHALL UNDERGO S.I.
FOR A PERIOD OF 15 DAYS. FURTHER, THE
APPELLANTS/ACCUSED NOS.1 TO 4 ARE HEREBY SENTENCED
TO UNDERGO S.I. FOR A PERIOD OF TWO YEARS AND TO PAY
A FINE OF RS.500/- EACH (RUPEES FIVE HUNDRED ONLY), IN
DEFAULT OF PAYMENT OF FINE, ACCUSED NO.1 TO 4 SHALL
UNDERGO S.I. FOR A PERIOD OF TWO MONTHS, FOR THE
OFFENCE UNDER SECTION 333 R/W. 34 OF IPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 554 of 2012
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri.Dilraj Rohit Sequeria, learned counsel for
the appellant and the learned HCGP.
2. Four of the accused persons who have been
convicted for the offence punishable under Sections-341
and 333, read with Section-34 of IPC in S.C.No.4/2010, on
the file of Principal District & Sessions Judge, Davanagere
by the judgment dated 28.03.2012 are the appellants in
the present appeal.
3. Facts in brief which are utmost necessary for
disposal of the appeal are as under:
A complaint came lodged with Jaibheemnagar,
Harihara Town Police Station, alleging that on 23.10.2006,
at about 4.30 p.m., at Jai Bheem Nagar, Harihara in front
of the house of accused No.3, the complainant viz., one
Sri.S.B.Shivappa, being the Lineman of BESCOM had been
there to attend his work. At that juncture, in furtherance
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of common intention, all the appellants/accused came
there and voluntarily picked up a quarrel with the
complainant, by saying that why he has put off the lights
and wrongly restrained him from free movement and also
obstructed him from discharging his official work. When
the same was resisted by the complainant, the accused
persons abused the complainant in filthy language and
they caused fist injury on his nose. Other members of
public who gathered at the spot, pacified the quarrel and
rescued the complainant. As a result of the assault, the
complainant suffered injury on the right hand finger and
bleeding injury on his nose.
4. Based on such complaint, Harihara Town Police
registered a case against the accused persons and filed
the charge-sheet, after a detailed investigation for the
offence punishable under Sections-341, 504, 333 and 353
read with Section - 34 of IPC.
5. Learned Trial Magistrate took cognizance of the
offence and committed the matter to the Sessions Court.
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Thereafter, the learned Sessions Court Judge secured the
presence of the accused persons who were on bail and
framed charges for the aforesaid offences.
6. Accused pleaded not guilty. Therefore, trial was
held.
7. In order to bring home the guilt of the accused,
in all seven witnesses were examined on behalf of the
prosecution as PW-1 to PW-7, comprising of Complainant
Mahazar Witnesses, the Doctor who issued the Wound
Certificate, Higher official of the complainant, and the
Investigating Agency.
8. The prosecution also placed on record five
documentary evidence, which were executed and marked
as Exhibits-P1 to P5 comprising of the complaint, spot
mahazar, certificate issued by PW-6 that complainant was
deputed to attend the work near the house of the Accused
No.3, FIR and Wound certificate.
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9. Thereafter, the learned trial judge proceeded to
record the accused statement as is contemplated under
Section - 313 of Cr.P.C. All the accused denied all the
incriminating materials found against them, but did not
place any written submissions placing their version about
the incident as is contemplated under Section - 313 (4) of
Cr.P.C. Accused persons did not also place on record any
defence evidence.
10. Subsequent thereto, learned Sessions Judge
heard the arguments of the parties and on cumulative
consideration of oral and documentary evidence placed on
record, convicted the accused for the offences punishable
under Section - 341 and 333 read with Section-34 of IPC
and acquitted the accused persons for other offences and
sentenced the accused as under:
"Acting under Section-235(2) of Cr.P.C., accused
No.1 to 4 are hereby sentenced to pay a fine of
Rs.250/- each (Rupees two hundred and fifty only)
for the offence under Section-341 r/w 34 of the IPC.
In default of payment of fine, accused Nos.1 to 4
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shall undergo simple imprisonment for a period of
15 days.
Further, acting under Sec. 235(2) of Cr.P.C.,
accused No.1 to 4 are hereby sentenced to undergo
simple imprisonment for a period of two years and
to pay a fine of Rs.500/- each (rupees five hundred
only) for the offence under Sec. 333 r/w. 34 of IPC.
shall undergo simple imprisonment for a period of
two months.
MO - 1 cutting pliers is ordered to be confiscated to
State after the appeal time is over.
The period of detention if any is ordered to be given
set under Sec.428 of Cr.P.C."
11. Being aggrieved by the same, all the accused
persons have preferred the present appeal.
12. Sri. Sri.Dilraj Rohit Sequeria, learned counsel
appearing for the appellants/accused, submitting the
grounds urged in the appeal memorandum, vehemently
contended that the entire incident, when viewed
cumulatively, there were no ingredients that has been
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placed on record by the prosecution in the form of
necessary oral and documentary evidence, so as to affirm
the order of conviction under Sections-341 and 333 read
with Section - 34 of IPC and the finding recorded by the
Learned Trial Judge in the impugned judgment has thus
resulted in miscarriage of justice and sought for allowing
the appeal.
13. Alternatively, Sri.Dilraj Rohit Sequeria, learned
counsel appearing for the appellants/accused, contended
that in the event this Court upholding the order of
conviction may take into consideration that, it is an
isolated incident and none of the appellants are possessing
any criminal antecedents and they are the first time
offenders. Therefore may consider the grant of probation
or since the accused persons are now in custody, the
custody period already undergone may be treated as
period of imprisonment by enhancing the fine amount
reasonably.
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14. Per contra, the learned High Court Government
Pleader, Sri.K.Rahul Rai, supports the impugned
judgment. He contended that admittedly, the complainant
was deputed to attend the official work as per the
certificate issued at PW-6, which is marked as Exhibit-P3
and when the complainant had been to the place of the
incident, where he was required to attend the official work,
all the accused persons voluntarily picked up the quarrel
with the accused and started abusing and assaulting him
mercilessly. Ultimately, resulting in bleeding injury on the
nose of the complainant, which is depicted at Exhibit-P5,
wound certificate. Therefore, all ingredients which are
required to attract the offence punishable Sections-341
and 333 of IPC has been established by the prosecution by
placing cogent and convincing evidence on record and thus
prayed for dismissal of the appeal.
15. Insofar as the alternate submission is
concerned, Sri.Rahul Rai submitted that if such
submissions are accepted by this Court, the same would
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result in encouraging similarly placed perpetrators of the
crime and send a wrong message to the society and thus
sought for dismissal of the appeal in toto.
16. Having heard the parties in detail, the following
points would arise for consideration:
1. Whether the Prosecution is successful in
establishing all the ingredients to uphold the order of
conviction under Sections-341, 333 read with Section
- 34 of IPC?
2. Whether the impugned judgment is suffering
from legal infirmity or perversity and thus calls for
interference?
3. Whether the sentence is excessive?
4. What order?
Regarding Point No.1 And 2 :
17. In the case on hand, the complainant being the
Lineman of BESCOM who had been deputed to attend the
electrical work near the house of accused No.3 i.e., near
the place of incident on 23.10.2006 at about 4.30 p.m., is
established by placing oral and documentary evidence on
record, especially, Exhibit-P3, Certificate issued by PW-6,
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who is the Official Superior of the complainant, who has
deposed before the Court about the deputation of the
complainant to attend the electrical work.
18. Admittedly, the complainant had no previous
enmity or animosity with the accused persons. However,
the power was cut-off on account of certain other
deficiencies. Therefore, the complainant had been to the
place of the incident. At that juncture, all the accused
persons voluntarily picked up the quarrel and not only
abused the complainant but also assaulted him. Wound
Certificate marked at Exhibit-P5 depict the injuries
sustained by the complainant. There is no delay in lodging
the complaint nor there is any dispute about the identity of
the accused.
19. Under these circumstances, the material on
record would go to show that the action attributable by the
accused were in the nature of restraining the free
movement of the complainant and also assaulting a
Government Servant, whereby the offences under
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Sections-341 and 333 of IPC stands established by placing
cogent and convincing evidence on record. Cross-
examination of the complainant and other witnesses did
not yield any positive material, so as to disbelieve the case
of the complainant in toto.
20. Further, in the absence of any previous enmity
or animosity, why would PW-1 falsely implicate the
accused persons in the matter of this nature, is a question
that remains unexplained by the accused. Crowning all
these aspects of the matter, accused persons did not place
their version about the incident at the time of recording
the accused statement.
21. Under such circumstances, the conviction order
recorded by the learned Sessions Judge for the offence
punishable under Sections-341 and 333 read with section-
34 of IPC needs no interference by this Court.
22. Moreover, acquittal of the accused persons for
the other offences alleged against them shows that there
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is total application of the mind by the learned Trial Judge
to the material evidence on record.
23. Therefore, this Court is of the considered
opinion that the impugned judgment does not suffer from
any legal infirmity or perversity, so as to set- aside the
same.
24. In view of the foregoing discussion point no.1 is
answered in the Affirmative and point no.2 in Negative.
Regarding point no.3:
25. Accused persons jumped the bail before this
Court. Therefore a Coordinate Bench of this Court had
directed the accused persons to join the prison. It is
submitted at the Bar that the accused persons are in
custody for a period of morethan two months, same is
depicted from the records.
26. Taking note of the fact that the accused
persons are first time offenders and the offence alleged
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against them, probation could have been granted to them
by the learned Trial Judge. Considering the fact that the
learned trial judge himself has not granted probation, this
Court is of the considered opinion that the custody period
already undergone by the accused prison shall be treated
as period of imprisonment of the aforesaid offences and by
enhancing the fine amount in a sum of Rs.20,000/-
payable by each of the accused / appellants. Enhanced
fine, a sum of Rs.20,000/- (Rs.500 + Rs.20,000) shall be
paid each of the accused, on or before 10.02.2025, failing
which they shall undergo imprisonment as ordered by the
learned Sessions Judge.
27. Out of the fine amount recovered, if a sum of
Rs.50,000/- (Rupees Fifty Thousand Only) is ordered as
compensation to be paid to the complainant - PW-1, under
Section -357 of Cr.P.C., under due identification would
meet the ends of justice. Accordingly, point no.3 is
answered Partly in the Affirmative.
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Regarding point no.4:
28. In view of the finding of this Court on point
Nos.1 to 3, following order is passed:
ORDER
i. Criminal appeal is Allowed In Part.
ii. While maintaining the conviction of the accused
persons for the offences punishable under
Sections-341 and 333 read with Section-34 of
IPC, the custody period already undergone by
the accused persons is hereby treated as period
of imprisonment for the aforesaid offences by
enhancing the fine amount in a sum of
Rs.20,500/- (500 + 20,000) payable by each of
the appellants for the aforesaid offences on or
before 10.02.2025, failing which they shall
undergo imprisonment as ordered by the Trial
Magistrate.
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iii. Out of the fine amount recovered, a sum of
Rs.50,000/- (Rupees Fifty Thousand Only) is
ordered as compensation to be paid to the
complainant - PW-1, under Section -357 of
Cr.P.C., under due identification.
iv. Office is directed to return the trial court courts,
along with a copy of this order forthwith.
Sd/-
(V SRISHANANDA)
JUDGE
JJ
CT:SNN
