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6. He would further contend that being the
member of Gram panchayath, Hireharakuni village,
petitioner casually enquired the complainant as to why he
visited Gram panchyath office on 02.09.2015. The said
incident has been misused by the Police in foisting a false
case against the accused on account of previous enmity
and therefore very registration of the case and genesis of
the crime as is enunciated by the prosecution has not at
all taken place and witnesses are all persons who are
inimical towards the accused which has been lost sight of
by the investigation agency and learned judges in the
Courts below and sought for allowing the revision petition.
7. He would further contend that to maintain the
conviction of the accused for the offence under Sections
353 and 506 of IPC, hardly there is any material on record
and thus sought for allowing the revision petition.
8. Alternatively, Sri.Goodwala would contend that
in the event this Court upholding the order of conviction
taking note of the fact that accused is a first time offender,
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the custody period already undergone by the accused for a
period of three days may be treated as period of
imprisonment by enhancing the fine amount reasonably.
9. Per contra, Sri.Praveena Y Devareddiyavara
learned High Court Government Pleader supports the
impugned judgments.
10. He would further contend that very fact that
accused was rescued by others shows that there was a
confinement. He would also contend that material on
record would show that there is a physical assault and
manhandling of complainant by the accused which has
been rightly appreciated by the trial judge as well as by
the Magistrate in the First Appellate Court and sought for
dismissal of revision petition.
11. He would further contend that no mercy or
leniency can be shown for the people like accused who
dare not to take law into their own hand and assault the
police in uniform and showing any lenience to such people
would only result in encouraging the perpetrators of the
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crime in the society to indulge in similar activities and
sought for dismissal of the revision petition in toto.
12. 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.
1) Whether revision petitioner would make out a case that
the impugned judgment passed by the trial judge and
modified by the learned judge in the first appellate court
is suffering from legal infirmity and perversity and thus
calls for interference?
2) Whether the sentence is excessive?
3) What order?
13. In the case on hand, accused being the member
of Gram Panchayath, Hireharakuni village in Kundagol limit
police station is not in dispute. So also presence of the
accused on 02.09.2015 between 5.30 p.m to 6 p.m., in
the office of Gram Panchayath, Hireharakunai is also not in
dispute.
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14. According to the accused, he causally enquired
the complainant Shivabasappa Challadi as to why he had
visited there. But, according to the prosecution, not only
accused enquired him but also misbehaved with him and
ultimately assaulted him and confined him in the Gram
Panchayath office.
15. It is the prosecution case that somebody else
rescued the complainant and thereafter case came to be
registered. Prosecution witnesses have completely
supported the case of the prosecution despite searching
cross examination.
16. In the absence of any previous enmity or
animosity pleaded and proved before the Court, the
alternate theory of foisting a false case against the
accused by the complainant stands not established. Mere
suggestions to the prosecution witnesses that there
existed a previous enmity between the accused and
complainant would not be sufficient enough to doubt the
case of the prosecution.
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17. Further, learned judge in the first appellate
Court taking note of the proved facts, acquitted the
accused for the offence under Section 323 and 332 of IPC.
While so acquitting the accused for the aforesaid offences,
there is a detailed discussion with regard to factual
aspects by the learned judge in the first appellate Court.
18. Further, State did not choose to file any appeal
against the acquittal of the accused for the offence under
Section 323 and 332 of IPC and therefore, it has become
final insofar as State is concerned.
19. On careful perusal of the material evidence on
record, the conviction order recorded by the learned trial
judge and confirmed by the judge in the First Appellate
Court for the offences under sections 342, 353 and 506 of
IPC stands established.
20. Having regard to the limited scope of revisional
jurisdiction as is held in the case of Amit Kapoor vs.
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Ramesh Chander and another1, this court is of the
considered opinion that reconsideration of the factual
aspects by this Court would not arise in the limited scope
of revisional jurisdiction. Though, it was argued at length
with vehemence by Sri.Saidq N. Goodwala, in upsetting
the findings of facts recorded by the trial magistrate and
confirmed by First Appellate Court.
21. However, with the limited scope of revisional
jurisdiction this Court did reconsider the material evidence
in the grounds of revisional grounds.
22. Admittedly, the uniform worn by the
complainant at the time of incident is torn by the accused
which is marked as MO.1. Further, complainant has been
deputed for patrolling duty on the day of the incident when
such is the factual aspect of the matter, presence of the
complainant in the Gram Panchayath office is for the
official purpose and accused has no role whatsoever
question the complainant as to his presence in Gram
(2012) 9 SCC 460
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Panchayath office. No proper explanation is forthcoming in
the accused statement as to the day of incident that took
place on 02.09.2015.
23. Mere denial of the incriminatory circumstances,
nor suggesting the prosecution witnesses that there exists
previous enmity between the complainant and accused
would not be sufficient enough to hold that prosecution
case has not established or order of suffering from legal
infirmities or perversity so as to interefere in the revisional
jurisdiction.
24. In view of the foregoing discussion, this Court is
of the considered opinion that conviction of the revision
petitioner for the offence punishable under Sections 342,
353 and 506 IPC as is modified by the First Appellate
Court needs no interference in this revision petition and it
is noticed that it is an isolated incident.
25. Admittedly, accused/revision petitioner is a first
time offender. The trial Magistrate took into consideration
of the said aspect of the matter and duty of the trial
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Magistrate and the learned judge in the first appellate
Court to find out what exactly is the appropriate
punishment for the proved offences.
26. While so considering the quantum of sentence
trial judge and judge in first appellate Court ought not to
have missed out the benevolent provisions of probation of
offenders Act.
27. It is settled principal of law and requires no
emphasis that role to be played by the Courts by
considering the guilt or otherwise of the accused is
altogether different from the role to be played by the very
same judge at the time of sentencing a particular accused
in a given case in regard to the proved offences.
28. Taking note of these aspects of the matter, this
Court is of the considered opinion that by enhancing fine
amount in a sum of Rs.40,000/- and directing the period
of custody already undergone by the accused if treated as
period of imprisonment, ends of justice would be met.
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Accordingly point No.1 is answered in the negative and
point No.2 is answered partly in the affirmative.
Regarding point No.3
29. In view of finding of this Court on point Nos.1
and 2, the following order is passed.
ORDER
(i) Criminal revision petition is allowed in part.
ii) While maintaining the conviction of the
accused for the offence under Sections 343, 353
and 506 of IPC in the judgment of the First
Appellate Court which was modified the
judgment of the trial Court in CC No.39/2016,
custody period of 3 days between 5.09.2015 to
08.09.2015 is treated as period of imprisonment
for the aforesaid offences by enhancing the fine
amount in a sum of Rs.40,000/-. To be paid on
or before 30.04.2025.
(iii) Failure to make the payment of enhanced
fine amount, accused shall undergo simple
imprisonment for a period of six months for the
aforesaid offenses.
(iv) Out of the fine amount, sum of Rs,25,000/-
is ordered to be paid as compensation to the
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complainant (inclusive of Rs.5,000/- ordered by
the learned trial Magistrate) under due
identification.
(v) Office is directed to return the trial court
records with copy of this order forthwith for
issue of modified conviction order.
SD/-
(V.SRISHANANDA)
JUDGE
HMB
CT:PA
