(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
The accused No.1 to 5 are sentenced to
undergo imprisonment for a period of three
months for the offence punishable under
Section 427 read with Section 34 of Indian
Penal Code.
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The accused No.1 to 5 are sentenced to pay
fine of Rs.500/- each for the offence punishable
under Section 504 read with Section 34 of
Indian Penal Code.
The accused No.1 to 5 are sentenced to
undergo imprisonment for a period of three
months for the offence punishable under
Section 506 read with Section 34 of Indian
Penal Code."
2. Said order of conviction and sentence is
confirmed in Crl.A.No.38/2017. Being aggrieved by the
impugned orders, the revision petitioners are before this
Court in this revision petition.
3. Heard Smt. Reshma Madiwalar, learned counsel
for Sri T. Hanumareddy, learned counsel for revision
petitioners and Smt. Girija S. Hiremath, learned High
Court Government Pleader for respondent.
4. Facts in a nutshell for disposal of the revision
petition are as under:
A complaint came to be lodged with Moka Police
alleging the commission of the offence punishable under
Sections 143, 147, 148, 341, 427, 447, 504 and 506 read
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with Section 149 of IPC, by contending that on 26.11.2013
at about 9.55 p.m., accused persons were throwing the
fire crackers inside the house of the complainant. The
same was objected by the complainant stating that 20
quintals of dry cotton is stored in the house and by the
action attributable to the accused persons, there may be
imminent danger. At that juncture, accused persons said
to have threatened the complainant that if their actions
are objected to, then they will not even hesitate to burn
the complainant alive.
5. When the matter stood thus, on 27.11.2013 at
about 5.40 a.m., when the complainant had been to
attend the nature call in his agricultural land bearing
Sy.No.123-A/1A measuring 6 acres 20 guntas, all the
accused persons formed unlawful assembly with deadly
weapons, trespassed into the said land of the complainant
and they started cutting the cotton plants. Complainant
questioned them as to why they are doing the said
mischief.
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6. At that juncture, other accused persons
wrongfully restrained the complainant from his free
movement and started assaulting him. They also gave life
threat to the complainant besides abusing the complainant
in filthy language.
7. The incident was reported to the Police. On
receipt of the complaint, Moka Police registered a case
against the accused persons and investigated the matter
in detail and filed the charge sheet for the aforesaid
offences. In the interregnum, all the accused persons
surrendered before the Trial Court voluntarily and they
were enlarged on bail.
8. Learned Trial Magistrate took cognizance of the
offences alleged against the accused persons in the charge
sheet and secured the presence of the accused persons
and after due compliance of Section 207 of Cr.P.C.,
charges were framed.
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9. All the accused persons pleaded not guilty.
Therefore, trial was held.
10. In order to bring home the guilt of the accused
persons, prosecution proceeded to examine 4 witnesses
comprising of complainant, spot mahazar witness,
eyewitness to the incident and the Investigating Officer
respectively as PW-1 to PW-4. Prosecution placed on
record 4 documents, which were exhibited and marked as
Exs.P-1 to P-4 comprising of complaint, spot mahazar,
First Information Report and Record of Rights of the land
belonging to the complainant. One material object namely,
a bag containing cut cotton plants was marked as M.O.1.
11. On conclusion of recording of evidence, learned
Trial Judge proceeded to examine the accused persons by
recording the accused statement as is contemplated under
Section 313 of Cr.P.C. Accused persons have denied all
the incriminating materials but did not choose to place
their version about the incident in writing as is
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contemplated under Section 313(4) of Cr.P.C. Accused did
not place any defence evidence either.
12. Thereafter learned Trial Judge heard the
arguments of the parties in detail and on cumulative
consideration of the oral and documentary evidence placed
on record, convicted the accused persons except for the
offence punishable under Section 447 of IPC and
sentenced as referred to supra.
13. Being aggrieved by the same, accused persons
preferred an appeal before the District Court in
Crl.A.No.38/2017.
14. The learned Judge in the First Appellate Court
after securing the records, heard the parties in detail in
the light of the appeal grounds and on re-appreciation of
the material evidence placed on record, dismissed the
appeal of the accused and confirmed the order of
conviction and sentence passed by the learned Trial
Magistrate.
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15. Being further aggrieved by the same, accused
persons are before this Court.
16. Smt. Reshma Madiwalar on behalf of Sri T.
Hanumaredy, counsel for the revision petitioner reiterating
the grounds urged in the revision petition, vehemently
contended that the material evidence placed on record are
not sufficient enough to maintain the order of conviction
and sentence passed by the learned Trial Magistrate and
confirmed by the First Appellate Court.
17. She would further contend that the complainant
and eyewitness are interested witnesses in the incident
and their testimony is not supported by sufficient
corroboratory evidence placed on record and thus,
recording an order of conviction solely on the basis of oral
testimony of PW-1 to PW-4 has resulted in miscarriage of
justice and sought for allowing the revision petition.
18. Alternatively, counsel for revision petitioners
would submit that in the event this Court upholding the
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order of conviction, taking note of the fact that the
accused are first time offenders, the sentence of
imprisonment ordered by the learned Trial Judge may be
set aside by enhancing the fine amount reasonably.
19. Per contra, Smt. Girija S. Hiremath, learned
High Court Government Pleader, would support the
impugned judgment. She would further contend that
material on record is sufficient enough to sustain the order
of conviction recorded by the learned Trial Magistrate
confirmed by the First Appellate Court.
20. She would further contend that the advice and
the request made by the complainant that not to burn
crackers into the house of the complainant is the genesis
of the crime which resulted in attack on the complainant
next day morning when PW-1 had been to his agricultural
land to attend the nature call.
21. She would also contend that it is not the
quantity of evidence that has to be appreciated for
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bringing home the guilt of the accused but it is the quality
of the evidence that has been placed on record. She would
also contend that in the absence of any previous enmity or
animosity, why did PW-1 foist a false case against the
accused persons is a question that has been annexed on
behalf of the accused revision petitioners and thus sought
for dismissal of the revision petition.
22. Insofar as alternate submission is concerned,
Smt Girija Hiremath would contend that if people like
revision petitioners are shown mercy or leniency, similarly
placed perpetrators of the crime would get encourage and
indulgence in similar activities send a wrong message to
the society and thus sought for the dismissal of the
revision petition in toto.
23. Having heard the arguments of both sides, this
Court perused the material on record meticulously. On
such perusal of the material on record, following points
would arise for consideration:
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1) Whether the impugned judgments are suffering from
patent factual error, error of jurisdiction or suffering
from legal infirmity so as to call for interference in this
revision petition?
2) Whether the sentence is excessive?
3) What order?
REGARDING POINT NO.1:
24. In the case on hand, acquaintance of the
accused persons to the complainant is not in dispute.
According to the case of the prosecution, on 26.11.2013 at
about 9.55 p.m., the accused persons were burning the
crackers. Complainant cautioned them stating that he has
stored 20 quintals dry cotton in his house and therefore
not to burn crackers.
25. Being enraged with the said advice made by the
complainant, the accused persons formed unlawful
assembly next day morning at about 5.40 a.m., when the
complainant had been to his agricultural land to attend the
nature call and all of a sudden attacked him. The accused
persons not only refrained the free movement of the
complainant but also trespassed into his land and started
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cutting grown up cotton plants. When the same was
questioned, there was an altercation and at that juncture,
the complainant was also physically attacked by the
accused persons. When complainant raised hue and cry, it
is PW-3 who came to the place of incident and rescued the
complainant. After seeing PW-3 on the spot, all the
accused persons gave life threat to the complainant and
ran away from the spot.
26. Thereafter, the incident was reported to the
police and spot mahazar was conducted wherein MO1 was
seized from the place of the incident.
27. PW-1 being complainant and injured, PW-2
being one of the mahazar witnesses to the spot
panchanama and PW-3 being the eyewitness who was able
to witness the illegal acts committed by the accused and
pacified the quarrel, have all supported the case of the
prosecution in toto by withstanding the searching cross
examination.
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28. As is rightly contended on behalf of the
prosecution, it is not the quantity of the evidence that has
to be placed on record by the prosecution to record an
order of conviction but it is the qualitative evidence that
has to be looked into.
29. When the said test is applied in the case on
hand, PW-1 to PW-3 have supported the case of the
prosecution in toto. The material evidence on record has
been rightly appreciated by the learned trail Magistrate
while recording an order of conviction for the aforesaid
offences.
30. Same is re-appreciated by the learned Judge in
the First Appellate Court while upholding the order of
conviction.
31. Therefore, having regard to the limited scope
for the revision as is held by the Hon'ble Apex Court in the
case of Amit Kapoor vs. Ramesh Chander and another1,
(2012) 9 SCC 460
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this Court has considered the material evidence on record
in the light of the revision grounds and is of the considered
opinion that the conviction recorded by the learned Trial
Magistrate affirmed by the First Appellate Court needs no
interference. Hence, point No.1 is answered in the
negative.
REGARDING POINT NO.2:
32. Admittedly, revision petitioners are first time
offenders. For the above offences, there is no minimum
punishment prescribed under the statute. Since the
revision petitioners are first time offenders, directing them
to join the prison at this distance of time would definitely
act as harsh to them.
33. Instead if the imprisonment period is set aside
by enhancing the fine amount in a sum of Rs.20,000/- to
each of the accused and a portion of it if paid as
compensation to the complainant, ends of justice would be
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met in the facts and circumstances of the case.
Accordingly, point No.2 is answered partly in affirmative.
REGARDING POINT NO.3:
34. In view of the findings of this Court on points
No.1 and 2 as above, the following order is passed.
ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
revision petitioners for the offences
punishable under Sections 143, 147, 148,
341, 427, 504 and 506 read with Section 34
of IPC, the sentence of imprisonment
ordered by the learned Trial Magistrate
confirmed by the First Appellate Court is set
aside by enhancing the fine amount in a sum
of Rs.20,000/- for all the aforesaid offences
payable by each of the accused on or before
30.03.2025.
(iii) Failure to make the enhanced payment on or
before 30.03.2025 would result in
restoration of the jail sentence ordered by
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the learned Trial Magistrate confirmed by the
First Appellate Court.
(iv) Out of the fine amount, a sum of
Rs.50,000/- is ordered to be paid as
compensation to the complainant-PW-1
under due identification. Balance fine
amount to be appropriated towards
defraying expenses of State.
(v) Office to return the Trial Court records along
with a copy of this order for issuance of
modified conviction warrant.
Sd/-
(V.SRISHANANDA)
JUDGE
NAA
CT:PA
