Karnataka High Court
V S Ranganath vs The State Of Karnataka By Shikaripur ... on 5 July, 2013
1 Crl.A 1746/06
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 5TH DAY OF JULY, 2013
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.1746 OF 2006
BETWEEN:
1. V.S. Ranganath,
S/o. Muniswamy,
Aged about 45 years,
2. Umesha,
S/o. Muniswamy,
Aged about 50 years,
3. Abhimanyu,
S/o. Muniswamy,
Aged 42 years,
All are Coolies,
R/o. Chuchugundi Village,
Shikaripura Taluk,
Shimoga District. ... APPELLANT/S
[By Sri. N.G. Parameshwarappa, Adv. [absent].
Sri. A.V. Ramakrishna, Adv. - Amicus Curiae]
AND:
The State of Karnataka
By Shikaripur Police. ... RESPONDENT/S
[By Sri. Vijayakumar Majage, HCGP.]
2 Crl.A 1746/06
This Crl.A. is filed u/Section 374(2) Cr.P.C.
against the Judgment dt. 18.7.06 passed by the
Dist. & S.J., FTC-II, Shimoga, in S.C. No.128/05 -
convicting the appellant/accused No.1 and 8 for
the offences p/u/Ss. 323, 504 r/w. Section 34 of
IPC and u/S.436 r/w. Section 34 of IPC and
convicting the appellant/accused No.2 for the
offence p/u/S.436 r/w. Section 34 of IPC and
sentencing the appellants/accused Nos.1 and 8 to
pay a fine of Rs.100/- each for the offence
p/u/S.504 r/w. Section 34 of IPC I.D., S.I. for 10
days and are imposed with a fine of Rs.500/- each
I.D., S.I. for 2 months for the offence p/u/S.324
r/w. Section 34 of IPC and further sentencing the
appellants/accused Nos.1, 2 and 8 to undergo S.I.
for a period of 4 years and to pay a fine of
Rs.2,000/- each I.D., S.I. for 6 months for the
offence p/u/S.436 r/w. Section 34 of IPC.
This Crl.A. coming on for Final Hearing, this
day the Court delivered the following:
JUDGMENT
The appellants have challenged their conviction and sentence for the offence punishable under Sections 504, 324, 436 r/w. 34 IPC on a trial held by the Fast Track Court, Shimoga.
2. The facts relevant for the purpose of this appeal are as under:
3 Crl.A 1746/06
There was a civil dispute between the complainant and the appellants to an extent of an area of 7 ft. adjacent to the house of the complainant. There was an Order of status quo by the Civil Court between the parties and the same was vacated. On 27.03.2005, at about 4.00 p.m., P.W.1-Jayarama was digging the ground to insert a peg to reconstruct the cattle shed, which was destroyed by the appellants, a day earlier to the incident, the prosecution alleges that the appellants and other accused formed an unlawful assembly with common object to cause assault, entered the shed by causing obstruction to the complainant and said to have assaulted him and others with the club and set the shed on fire. P.W.1 and 3 sustained injuries due to the assault by the appellants and therefore, P.W.1-Jayarama approached the Police and submitted his complaint- Ex.P1.4 Crl.A 1746/06
During the investigation, the spot-mahazar- Ex.P3 was held in the presence of P.Ws.6 and 7 and the injured were sent to the hospital for treatment. Statements of the witnesses were recorded and wound certificates were collected. The assessment register extract and photographs of the property was secured and upon completion of the investigation, a charge-sheet came to be filed for the aforesaid offences.
During the trial, the prosecution examined P.Ws.1 to 12 and got marked the documents Ex.P1 to 8 and M.Os.1 to 6. Statements of the appellants were recorded under Section 313 Cr.P.C. The accused examined D.Ws.1 and 2.
The trial Court after appreciation of the material on record, convicted the appellants for the charge under Sections 504, 324, 436 r/w. 34 IPC and ordered the appellants to undergo imprisonment for 4 years for the offence 5 Crl.A 1746/06 punishable under Section 436 r/w. 34 IPC and fine for other offences. Aggrieved by the conviction and sentence, the present appeal is filed.
3. Learned counsel for the appellants is absent and hence, I have heard Sri. A.V.Ramakrishna, learned Amicus Curiae for the appellants and also the learned High Court Government Pleader.
4. P.W.1 is the complainant, whereas P.W.2 is his wife and P.W.3 is their daughter. In the evidence of these 3 witnesses there is a specific allegation that accused Nos.1, 7 and 8 assaulted them with the club. It is important to note that the injury certificates have been produced at Exs.P4 and 5 and the prosecution has examined the doctors-P.Ws.8 and 9. The perusal of the material placed on record reveals that appellant Nos.1 and 2 were responsible for causing the injury and the evidence of the witnesses so far as the assault is 6 Crl.A 1746/06 consistent, cogent and trustworthy. That apart, accused No.7 has not preferred any appeal against his conviction and sentence for the offence under Sections 504, 324 r/w. 34 IPC. Even the independent witnesses i.e., P.Ws.4 and 5 have seen the assault with club on P.Ws.1 to 3.
5. So far as the offence punishable under Section 436 r/w. 34 IPC is concerned, none of the witnesses i.e., either P.Ws.1 to 3 or P.Ws.4 and 5 have seen actually as to who set the shed on fire. They state in their evidence that when the appellants entered the house inside, by the time they came out, the shed was on fire. So, the scrutiny of the material placed on record does not indicate any one of these appellants having set fire, rather it is difficult to accept the version of the prosecution that the appellants/accused have shared common intention in setting fire to the shed. When a person intends to set fire, it will not be within the knowledge of the other. 7 Crl.A 1746/06 Therefore, so far as sharing common intention is concerned, there is no material on record. Furthermore, there is no evidence as to who actually set fire to the shed and the witnesses state that all the 3 appellants went inside and while they came out, the shed was on fire. Therefore, in the absence of any material about the specific act of anyone of the accused, rather it is improper to apply the provisions of Section 34 IPC. To this extent, there is no material on record. So, when it is not sure as to which accused has set fire to the shed, the benefit of doubt has to be given to each of the accused. Therefore, the conviction of the appellants for the offence punishable under Section 436 r/w. 34 IPC is improper and erroneous.
In the result, the appeal is allowed in part, affirming the conviction and sentence for the offence punishable under Section 324 IPC. The conviction of the appellants/accused for the 8 Crl.A 1746/06 offence punishable under Section 436 r/w. 34 IPC and the sentence thereon is set aside. The appellants/accused are acquitted of the said charge. The appellant/accused are entitled to the set of under Section 428 Cr.P.C. The trial Court is directed to secure the appellants to undergo the remaining sentence.
The fee of the learned Amicus Curiae is fixed at Rs.5,000-00 and the State shall pay the same.
Sd/-
JUDGE.
Ksm*