Karnataka High Court
Sri Shivagangaiah @ Gangaiah vs State By Kora Police on 9 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1264/2011
C/W
CRIMINAL REVISION PETITION NO.1214/2011
BETWEEN:
1. SRI.SHIVAGANGAIAH
ALIAS GANGAIAH,
S/O LATE DODDAIAH,
AGED ABOUT 37 YEARS,
RESIDENT OF K.BOMMANAHALLI,
BELLAVI HOBLI,
TUMKUR TALUK AND DISTRICT.
2. SRI.RAMAKRISHNA,
S/O SRI.NAGARAJAIAH,
AGED ABOUT 32 YEARS,
RESIDENT OF K.BOMMANAHALLI,
BELLAVI HOBLI,
TUMKUR TALUK
TUMKUR DISTRICT.
... PETITIONERS
(COMMON IN BOTH PETITIONS)
(BY SRI.M.G.RAMAKRISHNAIAH, ADVOCATE)
2
AND:
STATE BY KORA POLICE,
TUMKUR.
...RESPONDENT
(COMMON IN BOTH PETITIONS)
(BY SRI.V.S.VINAYAKA, HCGP)
CRIMINAL REVISION PETITION NO.1264/2011 IS
FILED UNDER SECTION 397 AND 401 OF CR.P.C. PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
24.10.2008 PASSED IN C.C.NO.2123/05 ON THE FILE OF
II ADDL. C.J. (JR.DN.) AND JMFC, TUMKUR AND ORDER
DATED 29.10.2011 PASSED BY THE P.O., FTC-III, TUMKUR
IN CRL.A.NO.2/2009 AND 23/2009.
CRIMINAL REVISION PETITION NO.1214/2011 IS
FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
24.10.08 PASSED IN C.C.NO.2123/05 ON THE FILE OF THE
II ADDL. C.J., (JR.DN.) AND JMFC., TUMKUR AND ORDER
DATED 29.10.11 PASSED BY THE P.O., FTC - III, TUMKUR
IN CRL.A.NO.2/2009 AND 23/2009.
THESE CRIMINAL REVISION PETITIONS COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
These two revision petitions are filed by the accused in CC No.2123/2005 on the file of the II Additional, Civil Judge (J.D.) and JMFC, Tumkur, 3 whereby the accused persons came to be convicted for the offence punishable under Sections 323, 324 and 504 of IPC; modified by the First Appellate Court (FAC) whereby the accused persons were convicted for the offence punishable under sections 324, 326 and 504 of IPC.
2. Brief facts of the cases are as under:
Upon a complaint lodged by one Chikkanna S/o Huliyappa, resident of Bommanahalli village, Bellavi Hobli, Tumkur Taluk, the jurisdictional police registered a case in crime No.114/2005 for the offences punishable under Sections 323, 324 and 504 of IPC, investigated the matter and ultimately laid a charge sheet for the aforesaid offences against the accused /revision petitioners (hereinafter referred to as the accused).4
The learned Magistrate recorded the plea wherein the accused persons pleaded not guilty and claimed for trial. In order to establish the case of the prosecution, the prosecution in all examined 11 witnesses as PWs.1 to 11 and relied on the documentary evidence which were exhibited and marked as Exs.P1 to P7. The wooden club was marked as MO.1 by the prosecution. Thereafter, the learned Magistrate recorded the Statement of the accused persons as contemplated under Section 313 of the Cr.P.C. wherein the accused persons have denied all the incriminating materials and did not chose to lead any evidence.
The learned Magistrate, after hearing the parties, convicted the accused persons for the offences punishable under Sections 323, 324 and 504 of IPC and sentenced the accused as under:
"The Accused persons are Sentenced to pay a fine of Rs.500/-(Rs. Five Hundred) each in default 5 of payment of fine amount, the Accused persons shall undergo Simple Imprisonment for a period of 15 days, inrespect of the offences punishable under Section 323 of IPC.
The Accused persons are also sentenced to pay a fine of Rs.1,000/-(Rs.One Thousand) each, and in default of payment of fine amount, the Accused persons shall undergo Simple Imprisonment for a period of 30 days, in respect of the offence punishable under Section 324 if IPC.
Further, the Accused persons are also Sentenced to pay a fine of Rs.500/- each (Rs.Five Hundred only), in default of payment of fine amount, the Accused persons shall undergo Simple Imprisonment for a period of 15 days, in respect of the Offence punishable under Section 504 of IPC.
The imprisonments in respect of the default of payment of fine shall run consecutively."
Being aggrieved by the same, the accused persons filed an appeal before the Presiding Officer, Fast Track Court-III, Tumkuru, in Crl.A.No.2/2009 so also the State preferred an appeal seeking 6 enhancement of the sentence which is numbered as Crl.A.No.23/2009.
Learned Judge of the First Appellate Court, after securing the presence of the accused and hearing of the parties, modified the judgment passed by the learned Magistrate and convicted the accused persons for the offence punishable under sections 324, 326 and 504 of IPC and acquitted the accused persons for the offence punishable under Section 323 of IPC. Being aggrieved by the same, the accused are in revision petitions.
3. Learned counsel for the revision petitioners Sri Ramakrishnaiah, contended that the learned JMFC misread the materials on record and wrongly convicted the accused persons for the offence punishable under Sections 323, 324 and 504 IPC and learned First Appellate Court without taking a charge 7 for the offence punishable under Section 326 of IPC for the first time though the Appellate Court convicted the accused persons for the offences punishable under Section 326 of IPC which is per se illegal and sought for acquittal by filing this revision petition. He also contended that the materials available on record was hardly sufficient to convict the accused persons for any offences much less for the offences punishable under Sections 324, 326 and 504 of IPC. A trivial issue has been blown out of proportion by the complainant and the police having colluded with the complainant have filed a false charge sheet against the accused persons. He also contended that the materials on record did not establish any of the offences in as much as there is a total inconsistency in the case of the prosecution and therefore, the accused persons are entitled for an acquittal, which has been wrongly reappreciated by the learned Judge of the 8 First Appellate Court by modifying the order of sentence passed by the learned Magistrate convicting the accused persons for the offences punishable under Section 326 of IPC and therefore sought for allowing the revision petitions.
Alternatively, learned counsel for the accused persons prayed that in the event, this Court confirming the order of the learned Magistrate, the accused persons are entitled for grant of probation as they are the first time offenders and there are no previous criminal records and after this incident also there are no instances where the accused persons have misbehaved in the Society. He also pointed out that in the absence of any cogent evidence on record, the First Appellate Court ought not to have convicted the accused persons for the offence punishable under Sections 324, 504 and 326 of IPC and therefore, this 9 Court restoring the conviction of the trial Court and grant probation to the accused persons.
4. Per contra, learned HCGP while supporting the impugned judgments contended that the wound Certificate-Ex.P3 clearly indicates that PW1 had sustained grievous injury in as much as there are two fractures noted in the right hand of PW1 and the same has not been properly appreciated by the learned Magistrate and therefore, by exercising power vested in the IPC, the learned Judge of the First Appellate Court has rightly convicted the accused for the offence punishable under Section 326 of IPC noting the fractured injuries sustained by PW1 in Ex.P3. He also pointed out that since the appeal is the continuation of the original proceedings, the First Appellate Court has every power to reappreciate the factual aspects and having noted that two fracture injuries sustained by PW1, First Appellate Court has rightly convicted the 10 accused persons for the offences punishable under Section 326 of the IPC by allowing the appeal of the State and partly allowing the appeal filed by the accused persons.
He further argued that PW.1 and PW.3 being the injured eyewitnesses, their evidence has to be kept on a higher pedestal than an ordinary eye witness and in the absence of any previous enmity or animosity, the testimony of PWs.1 and 3 cannot be doubted and he further contended that the doctor who was examined as PW11 has issued Wound Certificates-Exs.3 and 4 corroborated the oral testimony of PWs.1 and 3 and panch witnesses have supported the case of the prosecution and therefore, the prosecution was successful in establishing all ingredients punishable under Sections 323, 324, 326 and 504 of IPC and therefore, the impugned judgments are perfectly valid 11 and sought for dismissal of the revision petitions filed by the accused.
Insofar as the alternate submission is concerned, learned High Court Government Pleader vehemently contended that since the offence under Section 326 of IPC is punishable with the maximum of life imprisonment, the Probation of Offenders Act has no application in the facts and circumstances of the case. He further contended that even if the argument of the learned counsel for the revision petitioners has to be accepted, the report of the Probation Officer is necessary and this Court cannot grant probation and therefore sought for dismissal of the revision petitions.
5. Having regard to the scope of the revision petitions, following points would arise for consideration:
i. Whether the findings recorded by the learned Magistrate that the accused persons are guilty 12 of the offences punishable under sections 323, 324 and 504 of IPC is just and proper?
ii. Whether the finding recorded by the First Appellate Court in appreciating the order setting aside the finding of the learned Magistrate and convicting the accused for the first time by the First Appellate Court without there being any charge framed for the offence punishable under Section 326 of IPC is justifiable in law?
iii. Whether the sentence is excessive?
6. In the case on hand, the incident has occurred on 4.9.2005 at about 3.30 p.m. in the agricultural land bearing Sy.No.36, Chikkonahalli village, Bellavi Hobli, Tumkur Taluk and District, wherein the accused persons have assaulted PWs.1 and 3 with hands and wooden (niligiri) club stand established by placing necessary oral and 13 documentary evidence on record. The complaint given by the complainant is corroborated by the oral testimony of the complainant as well as his wife- Jayamma. The wound certificates produced and marked as Exs.P3 and P4 sufficiently corroborates the oral testimony of PWs.1 and 3 wherein PW.1 has sustained number of injuries and two fractured injuries on the right hand so also the injuries sustained by PW3 is depicted in Ex.P4. The Doctor who is examined as PW11 has classified injury Nos.2 and 4 in Ex.P3 as grievous injuries and injury Nos.1, 3, 5 and 6 are simple injuries. Insofar as the injuries sustained by another injured PW3-Jayamma is concerned, PW11-Doctor has classified as simple injuries. When the materials available on record depicts that there are two fractured injuries, the proper course for the prosecution was to seek for alteration of charges or filing of an additional charge 14 sheet for the offence punishable under Section 326 of IPC.
7. It is pertinent to note that the wound certificates-Exs.P3 and P4 is the part of the charge sheet document. Learned Magistrate, while framing the charge, did not notice the fractures mentioned by the Doctor in Ex.P3. Therefore, the case warranted for framing of charge against the accused persons under section 326 of IPC. Neither the prosecution nor the learned Magistrate has bestowed their attention to the said aspect of the matter. Learned Magistrate has proceeded with the trial and ultimately convicted the accused persons for the offence punishable under Sections 323, 324 and 504 of IPC. Being aggrieved by the same, the revision petitioners have filed a Criminal Appeal in Crl.A.No.2/2009 and being aggrieved by the lesser sentence and seeking 15 enhancement of sentence, the State also preferred an Criminal Appeal in Crl.A.No.23/2009.
8. Learned Judge in the First Appellate Court, without framing a charge under section 326 of IPC and also without affording an opportunity for the accused to face trial for the offence punishable under Section 326 of IPC, straightaway convicted the accused persons for the offence punishable under Section 326 of IPC placing reliance solely on Ex.P3 and coupled with oral testimony of the doctor-PW11. It is a settled principle of law that no accused person can be convicted for an offence for a higher offence for which he has not been charged. It is always open for the Court to bring down the offence for which the accused has been charged but vice-versa it is impermissible. Under such circumstances, the First Appellate Court without affording an opportunity for the accused persons to face a charge under Section 16 326 of IPC for the first time, the accused persons have been convicted for the offence punishable under Section 326 of IPC by accepting the appeal grounds urged on behalf of the prosecution thus resulting in grave injustice and therefore, needs to be interfered.
9. Insofar as the confirmation of the finding of the First Appellate Court in respect of the offence punishable under Section 324 of IPC is based on sound reasons. Learned Magistrate has rightly appreciated the materials on record and convicted the accused persons for the offence punishable under sections 323, 324 and 504 of IPC. Under these circumstances, the finding recorded by the learned Magistrate needs to be restored and the finding recorded by the learned Judge of the First Appellate Court insofar as convicting the accused persons for the offences punishable under Section 326 of IPC is concerned needs to be set aside. Furthermore, even 17 though in Ex.P3 there is a mention that there is a fractured injury, the original X-ray certificate or Radiological Report is also not filed by the prosecution to substantiate the charge, if any under Section 326 of IPC. The Division Bench of this Court, in the case of State v. Sheenappa Gowda and Others reported in (2011)4 KCCR 2759 has held as under:
"11. Point No. 2: In view of our answer to point No. 1, the finding given by the learned Sessions Judge convicting the accused under Section 324 of I.P.C. by modifying the finding of the trial Court that the accused have committed the offence punishable under Section 326 of I.P.C. is entitled to be confirmed. However, the sentence imposed for the offence punishable under Section 324 of I.P.C., is liable to be enhanced as per the final order."18
10. Thus, the findings recorded by the First Appellate Court needs to be set aside convicting the accused for the offence punishable under section 326 IPC needs to be set aside and the conviction order passed by the learned Magistrate for the offence punishable under Sections 323, 324 and 504 of IPC needs to be restored. Accordingly, Point Nos.1 and 2 are answered in affirmative and Point No.3 is answered partly in negative.
11. Having recorded the finding on point Nos.1 and 2 as above, the argument put forth on behalf of the revision petitioners /accused persons are being the first time offenders are entitled for grant of probation as it is the mandatory duty of the convicting Court to consider the grant of probation.
12. In the case on hand, while hearing the parties on the question of sentence, learned 19 Magistrate did consider the grant of probation. Learned counsel for the defence therein has also relied upon the Division Bench judgment reported in 2004 (2) KCCR S.N.151. However, learned Magistrate refused to grant probation by recording a finding that there is no bona fide ground made out to apply the provisions of Probation of Offenders Act, 1958 (for short 'PO Act'). However, the First Appellate Court proceeded to convict the accused persons for the offence punishable under Section 326 IPC as there is no application of probation for the offence punishable under Section 326 of IPC.
13. The material on record clearly indicates that the accused persons did not have any previous criminal records. The incident has occurred in a spur of moment. On a fateful day, a small or a trivial issue has taken a bad shape ended in accused persons assaulting PWs.1 and 3 with hands and the wooden 20 club-MO1 resulting in the injuries noted by PW11 in Exs.P3 and P4. In the absence of any cogent evidence placed on record, the offence punishable under Section 326 IPC being set aside by this Court as discussed supra, the accused persons are entitled for the benefit available under the provisions of the PO Act. In this regard, this Court placed reliance on the following judgments:
i. (2000) 9 SCC 245 Chandreshwar
Sharma v. State of Bihar.
ii. 2007(1) SCC 619 Gulzar v. State of
Madhya Pradesh.
14. Therefore, the learned counsel has made out a case for grant of probation. Insofar as the objection of the learned HCGP that a report from the Probation Officer is necessary. It is seen that the incident has occurred on 4.9.2005 about 16 years 21 ago. During the trial there is no complaint that the accused persons have misbehaved all along, the behavior of the accused persons did indicate that they did not have any adverse remarks. Only for the purpose of grant of probation and by calling the report from the Probation Officer, if the matter is remitted to the trial Magistrate at this distance of time, it would only result in futile exercise. Accordingly, it is necessary for this Court to exercise the power vested in this Court to grant probation to the accused persons. If the accused persons are directed to execute a bond in a sum of Rs.25,000/- each with one surety for the likesum for their good behaviour, which will be in force for a period of two years and out of the enhanced fine amount, if a portion of the fine amount is paid as compensation to PWs.1 and 3 under the provisions of Section 357 of Cr.P.C., ends of justice 22 would be met. Accordingly, Point No.3 is answered and pass the following:
ORDER i. Criminal Revision Petition filed by the accused persons in Crl.P.No.1264/2011 and Crl.P.No.1214/2011 are disposed of.
ii. While maintaining the conviction of the accused persons for the offence punishable under Sections 323, 324 and 504 of IPC, the accused persons are directed to pay a fine of Rs.5,000/- each for the offence punishable under Section 323 of IPC, Rs.10,000/- each for the offence punishable under Section 324 of IPC and Rs.1000/- each for the offence punishable under Section 504 of IPC and execute a bond in a sum of Rs.25,000/- each with one surety for the likesum to the satisfaction of the learned 23 Magistrate for their good behaviour, which shall be in force for a period of two years.
iii. In default of payment of fine amount, the accused persons shall undergo simple imprisonment for a period of 03 months 01 year and 02 months respectively.
iv. It is made clear that any violation of the conditions, the order of the learned Magistrate stands automatically restored.
v. Out of the fine amount of Rs.32,000/-, a sum of Rs.20,000/- is ordered to be paid to PW1 as compensation, Rs.10,000/- to PW3 after due identification and the balance amount of Rs.2,000/- is ordered to be adjusted towards the defraying expenses of the State.24
vi. The accused persons are granted time till
15.12.2021 to pay fine amount and to execute the bond.
Let a copy of this order and the trial Court records shall be transmitted to the trial Court forthwith.
Sd/-
JUDGE TL