Criminal Appeal No. 554 of 2012 · The High Court
Case Details
- 1 - NC: 2025:KHC:2908 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, AGED ABOUT 42 YEARS, JAI BHEEMA NAGAR HARIHARA. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA 4. MAHABOOB @ MANNA MAHABOOB S/O BUDENSAB AGED ABOUT 38 YEARS, JAIBHEEMA NAGAR, HARIHARA. (BY SRI. DILRAJ ROHIT SEQUEIRA, ADVOCATE) …APPELLANTS - 2 - NC: 2025:KHC:2908 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: - 3 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012
Legal Reasoning
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 - 4 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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. - 5 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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. - 6 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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 - 7 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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. In default of payment of fine, accused No.1 to 4 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 - 8 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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. - 9 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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 - 10 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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, - 11 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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 - 12 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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 - 13 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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 - 14 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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. - 15 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 Regarding point no.4: 28. In view of the finding of this Court on point Nos.1 to 3, following order is passed:
Decision
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. - 16 - NC: 2025:KHC:2908 CRL.A No. 554 of 2012 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 List No.: 1 Sl No.: 51 CT:SNN