Karnataka High Court
Arun @ Pintu vs State Of Karnataka By S.H.O on 10 March, 2020
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL APPEAL No.69 OF 2014
BETWEEN:
Arun @ Pintu,
Aged about 22 years
S/o. Late Krishnappa
R/at No.62, 3rd Cross
Near Iddu House, Bandepalya,
Garvebhavipalya,
Bangalore City - 560 068.
...Appellant
(By Dr. J.S. Halasetti, panel advocate of
High Court Legal Services Committee)
AND:
State of Karnataka by S.H.O.
Madivala Police Station,
Rep.by S.P.P.
Bangalore City - 560 068.
...Respondent
(By Sri.Showri H.R., HCGP)
****
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C praying to set aside the judgment of conviction and
order on sentence dated 04-01-2014 passed by the LI
Additional City Civil and Sessions Judge at Bangalore City
Crl.A.No.69/2014
2
in S.C.No.73/2013, convicting the appellant/accused for
the offences punishable under Sections 427 and 326 of IPC
and sentencing to undergo Simple Imprisonment for two
years and to pay fine of `1,000/-, in default to pay fine, to
undergo simple imprisonment for three months for the
offence punishable under Section 326 of IPC and to
undergo simple imprisonment for three months for the
offence punishable under Section 427 of IPC, etc.
This Criminal Appeal coming on for Hearing, this day,
the Court delivered the following:
JUDGMENT
The present appellant as the sole accused was tried and later convicted by the LI Additional City Civil and Sessions Judge at Bangalore City (hereinafter referred to as `Trial Court' for brevity), in Sessions Case No.73/2013, by its judgment of conviction and order on sentence dated 04-01-2014, for the offences punishable under Sections 427 and 326 of the Indian Penal Code, 1860 (hereinafter referred to as `IPC' for brevity) and was sentenced accordingly. It is against the said judgment of conviction and order on Crl.A.No.69/2014 3 sentence, the appellant/accused has preferred this appeal.
2. The summary of the case of the prosecution before the Trial Court is that, PW-2 - Somashekara the complianant and the victim in this matter was running a provision store in the name and style of 'M/s. Sneha Provision Store' at Gangamma Circle, Hosapalya Main Bandepalya, Bengaluru. On 24-10-2012, at about 7:15 p.m., the accused went to the said shop of PW-2 - Somashekara and all of a sudden, destroyed and damaged the bottles and the contents of the bottles including the eatables which were stored in the bottles in the shop of PW-2 and also using a razor which he was possessing inflicted several injuries upon PW-2 - Somashekhara.
Initially, the complaint lodged by none else than the alleged victim was for the offences punishable Crl.A.No.69/2014 4 under Sections 427, 324 of IPC. However, after investigation, the charge sheet was filed against the accused for the offences punishable under Sections 427 and 307 of IPC. Charges were framed accordingly for the offences punishable under Sections 427 and 307 of IPC.
3. Since the accused pleaded not guilty, in order to prove the charges leveled against the accused, the prosecution examined in all nine witnesses from PW-1 to PW-9 and got marked documents from Exhibits P1 to P5(a). Material Objects from MO-1 to MO-5 were marked from the prosecution side.
Neither any witnesses were examined nor any documents were marked as exhibits from the side of the accused.
Crl.A.No.69/20145
4. After hearing both side, the Trial Court by its impugned judgment dated 04-01-2014, convicted him for the offences punishable under Sections 427 and 326 of IPC and sentenced him accordingly. It is against the said judgment of conviction and order on sentence, the accused has preferred this appeal.
5. The trial Court records were called for and the same are placed before this Court.
6. The appellant/accused earlier was being represented by his counsel. However, when the matter was listed for final hearing, the said learned counsel for the appellant had remained absent. Considering the fact that the appeal was of the year 2014 and causing further delay in disposing of the matter was not in the best interest of justice, this Court by its detailed order dated 04-03-2020 Crl.A.No.69/2014 6 appointed learned counsel Dr.J.S. Halasetti, a panel advocate from the Legal Services Committee of this Court, to appear on behalf of the appellant and conduct the case of the appellant in this matter. Accordingly, the said learned counsel from the panel of Legal Services Committee of this Court is representing the appellant in the matter.
7. Heard arguments of the learned panel advocate from the Legal Services Committee of this Court for the appellant and the learned High Court Government Pleader for the respondent State.
8. Perused the material placed before this Court including the impugned judgment and also Trial Court records.
9. For the sake of convenience, the parties would be referred to as per their ranks before the Trial Court.
Crl.A.No.69/20147
10. The points that arise for my consideration in this appeal are:-
1] Whether the prosecution has proved beyond reasonable doubt that on 24-10-2012 at 7:15 p.m., the appellant/accused went to the shop of PW-2 - Somashekhara which was situated at Gangamma circle, within the limits of complainant - Police Station and caused damage to the articles kept in the shop and thereby caused mischief to the tune of `10,000/- and also assaulted PW-2 - Somashekhara with a razor and inflicted injuries upon him with an intention to cause his death and thereby has committed the offences punishable under Sections 427 and 326 of IPC?
2] Whether the judgment of conviction
and order on sentence deserves any
interference at the hands of this Court?
11. From the evidence of the prosecution witnesses, the undisputed facts remain that, PW-2 - Crl.A.No.69/2014 8 Somashekhara, at the relevant point of time, was running a provision store/shop under the name and style of 'M/s. Sneha Provision Stores' at Gangamma Circle at Hosapalya Main in Bandeplaya, Bengaluru, within the limits of complainant - Police Station. PW-8
- Smt. Roopa is the wife of said PW-2 -Somashekhara. The house of PW-2 - Somashekhara was to the next of his shop. PW-4 - Jayamma is the elder sister of PW-2 - Somashekhara and mother of PW-8 - Roopa, as such, she is also the mother-in-law of PW-2 - Somashekhara.
12. Regarding the incident, it is PW-2 - Somashekhara, PW-4 - Jayamma, PW-6 - Govindaraju and PW-8 - Roopa, who have given their evidence.
13. PW-2 (CW-1) - Somashekhara, in his evidence, has stated that, on the date of incident Crl.A.No.69/2014 9 (25-11-2012), in the evening at about 7:45 p.m., when he was doing business in his shop, the accused went there and broke the show-case with his leg, due to which, the glass bottles kept inside the show-case fell down and its contents were scattered. The accused came inside his shop holding a blade between his two fingers of his hand, inflicted bleeding injuries by assaulting him on his hands, stomach and left cheek, due to which, the shirt, pant and banian worn by him got blood stains. Though he had caught hold of the accused in the beginning, but due to the bleeding injuries, when he left him, the accused ran away from the place. The witness also stated that CW-8 to CW-10 have witnessed the incident. His wife CW-7 - Roopa took him to Manasa Nursing Home for treatment and after getting the first-aid there, he went to St.John's Hospital and took further treatment. Crl.A.No.69/2014 10 On the next day, he lodged a complaint before the Police as per Ex.P-2. The place of offence was also shown to the Police by himself and his wife. The Police drew the scene of offence panchanama as per Ex.P-1 in the spot and also collected his blood stained pant, shirt and banian in the spot and collected the broken glass pieces also from the spot under the said panchanama.
The witness has further stated that about one and a half months prior to the date of incident, accused No.1 demanded for a cigarette with his wife who was in the shop. Since his wife refused to give him a cigarette, he threw the coin box kept in the shop outside and while his wife was picking up the coins, the accused assaulted her with his blade. In that connection, he had cautioned the accused. It is as a revenge to the said act, the accused has Crl.A.No.69/2014 11 committed the offences. The witness has identified MO-1 to MO-5 including a razor at MO-5. The witness was subjected to a detailed cross-examination, wherein he adhered to his original version.
14. PW-4 - Jayamma has stated in her evidence that, at the time of incident, she was sitting outside the house of CW-1 (PW-2), who after hearing the yelling noise from the wife and children of CW-1, went to the shop of CW-1. She saw the accused inflicting injuries on the left hand of CW-1 with a blade. Then they shifted CW-1 to a Hospital the accused had also caused bleeding injuries on the left cheek, stomach and hands of CW-1.
The witness has further stated that since CW-1 had refused to give a cigarette on credit basis to the accused, he had assaulted him.
Crl.A.No.69/201412
15. PW-6 (CW-9) - Govindaraju has stated that he knows the complainant who was running a provision store at Bandeplaya. On the date of incident, which was on 24-10-2012, at about 7:30 p.m., while he was standing near the shop of CW-1, the accused went there and broke the bottles kept in their shop. When CW-1 questioned, the accused assaulted CW-1 on his face, stomach and hands with a razor causing bleeding injuries and ran away from the place. The witness stated that he too left the place. He also stated that he does not know why the accused did such an act.
16. PW-8 (CW-7) - Roopa the wife of PW-2, in her evidence has stated that, on the date of the incident, at about 7:15 p.m., after hearing the sound of a bottle falling on the ground from their shop, she rushed to the shop from the house which was Crl.A.No.69/2014 13 adjacent to her house. She saw the accused present in her shop with a blade in his possession and her injured husband who had sustained bleeding injuries to his face, hands and stomach. Her injured husband had held the accused. When she yelled, her husband left the accused, who ran away from the place.
The witness has further stated that she sent her husband to Hospital and then she took him to St.John's Hospital. She also stated that since she had refused to give a cigarette on credit basis on an earlier occasion to the accused, as a revenge, the accused has assaulted her husband. The witness adhered to her version even in her cross-examination also.
17. In the light of the above evidence of the material witnesses, the first argument of the learned counsel for the appellant was that, there is a delay in lodging the complaint by nearly twenty-three hours. Crl.A.No.69/2014 14
No doubt, the alleged incident, even according to the complainant, had occurred on 24-10-2012 at about 7:15 p.m., and the complaint at Ex.P-2 shows that the complaint was registered on 25-10-2012 at about 6:35 p.m. The complainant in his evidence has stated that, immediately after the incident, since he had sustained bleeding injuries, he was initially taken to a Hospital by name Manasa Nursing Home, where first-aid was given and thereafter for higher treatment to St. John's Hospital, Bengaluru. He has also stated that he was got admitted to the said Hospital at 11:00 p.m., on that night and for one day, he was admitted in the said Hospital as an in-patient.
According to PW-3 (CW-14), the Assistant Sub- Inspector of the respondent - Police Station, the complainant himself appeared before him on 25-10-2012 in the evening at about 6:35 p.m. and Crl.A.No.69/2014 15 lodged a complaint as per Ex.P-2, which means, since the complainant was in-patient in the Hospital for a day after the incident, he could not approach the Police Station on the very same day.
18. Though the learned counsel for the appellant further submitted that the Hospital authorities also have not registered the case as a Medico-Legal Case (MLC) and intimated the Police by sending the Medico-Legal intimation. But, by that itself, the allegations made in the complainant against the accused cannot be ignored or taken as false. It is also for the reason that, the Doctor who has treated the injured and who was examined as PW-5 in his evidence has stated that, on 24-10-2012, at 8:30 p.m., while he was in casualty, the injured Somashekhara (CW-1) was brought to him with the history of assault. Further, the Wound Certificate Crl.A.No.69/2014 16 issued by him which he has got marked at Ex.P-4 also shows that the patient was brought by his wife Roopa with the alleged history of assault on the same day at about 7:30 p.m. Therefore, merely because a Medico- Legal Case intimation was not shown to have been given to the Police, by that itself, the prosecution case cannot be doubted.
19. PW-2, PW-4, PW-6 and PW-8 have uniformly stated that, it was the accused and accused alone who has assaulted PW-2 inflicting injuries upon him. The evidence of PW-2, himself being an injured in the incident, has given no scope to disbelieve the alleged assault said to have been made by the accused upon him. The narration of the incident as described by all these material witnesses i.e. PW-2 PW-5, PW-6, and PW-8 clearly go to show that, the Crl.A.No.69/2014 17 accused after damaging some articles kept in the shop of PW-2, assaulted him.
20. PW-4 - Jayamma has stated that when she went to the shop after hearing the yelling noise of her daughter and children, she saw the accused inflicting injuries on the hand of PW-2 with a blade. However, a careful comparison of the evidence of PW-4 and PW-8 reveals that according to PW-4, it is only after she hearing the yelling noise of her daughter who is the wife of PW-2 - Somashekhara and children of PW-2, she went to the shop.
21. PW-8 - Roopa who is said to be the wife of PW-2 - Somashekhara, in her evidence has stated that, when she went to the shop, her husband had already sustained injuries and accused was found there holding a blade in his hand. It is then, she cried Crl.A.No.69/2014 18 and yelled. The said witness i.e. PW-8 did not specifically say that she has seen the accused inflicting injures upon her husband. Thus, when PW-8 herself has not seen the accused inflicting the injuries upon her husband, then, when PW-4 has come to the shop after she heard the yelling noise of PW-8, she could not have seen the accused inflicting any other or additional injuries upon PW-2. As such, the evidence to the extent of PW-4 seeing the accused inflicting injuries upon the hand of PW-2 does not find any support. However, the evidence of both PW-4 and PW-8 have come in uniformity and corroborate the evidence of PW-2 that, it was accused and accused alone who has inflicted injuries upon PW-2 - Somashekhara. Further, the evidence of PW-8 that she saw the accused holding a blade in his hand and her blood stained husband holding accused could not Crl.A.No.69/2014 19 be shaken in her cross-examination. So also, the evidence of PW-4 that she saw the accused with a razor in her hand when she went to the shop also could not be shaken in her cross-examination.
22. Added to the above, the evidence of independent witness who is PW-6 - Govindaraju would further go to show that, he was an eye witness to the alleged incident and as he was seeing, the accused not only broke certain articles in the shop of PW-2, but also inflicted injuries upon him. According to the said witness, accused had made use of a razor in the commission of the crime. Though an attempt was made in his cross-examination to show that he was a friend of PW-2, as such, an interested witness, but, the witness has not admitted the said suggestion except stating that he only knows PW-2. Merely because a person knows an other person, by that Crl.A.No.69/2014 20 itself it cannot be inferred that, that other person is an interested witness. Therefore, the argument of the learned counsel for the appellant on the point that PW-6 is an interested witness, is not acceptable. On the other hand, the evidence of PW-2, PW-4, PW-6 and PW-8 would clearly go to establish that in the incident that has taken place on 24-10-2012, at about 7:15 p.m., in the shop of PW-2, the accused had caused some damage to some of the articles in the shop of PW-2 and also inflicted injuries upon him.
23. The nature of injuries said to have been found on the body of the injured PW-2 has been explained in detail by PW-5 - Doctor, who, in his evidence, has stated that, he has noticed the following injuries upon the injured Somashekhar who was brought to his Hospital on the night of the alleged Crl.A.No.69/2014 21 date of incident with a history of assault near his residence.
(1) Cut lacerated wound over left side forehead measuring 5 cm. x 0.5 cm.
(2) Cut lacerated wound over left cheek measuring 15 cm. x 1 cm.
(3) Cut lacerated wound over left forearm measuring 5 cm. x 3 cm. x 2 cm. and another cut lacerated wound measuring 5 cm. x 1 cm. x 1 cm.
(4) Two cut lacerated wound over right forearm measuring 1 cm x 1 cm each.
(5) Cut lacerated wound over left hand dorsum measuring 3 cm x0.5 cm.
(6) Cut lacerated wound over left lumbar region measuring 10 cm x 1 cm.
The Doctor has opined that among the six injuries sustained by the victim, injuries 1 and 2 were grievous in nature and the remaining injuries were simple. The Doctor has further stated that those injuries are possible to be caused when a person is Crl.A.No.69/2014 22 assaulted with a razor at MO-5. The witness (PW-5) has identified the Wound Certificate at Ex.P-4, stating that, he has issued the said Wound Certificate in that connection. However, the point to be noticed here is, as submitted by the learned counsel for the appellant, the Doctor has not noticed any injuries on the abdomen region or upon stomach of the injured.
Thus, the details about inflicting the injuries upon PW-2 as given by PW-2, PW-4 and PW-8, though corresponds and tallies with respect to other injuries sustained on the face, cheek and fore-arm of the injured, but there is no corresponding injuries upon the stomach region though it was alleged to have been inflicted by the accused, as per the evidence of PW-2, PW-4 and PW-8. However, mere non-presence of an injury on the stomach portion itself would not make the case of the prosecution doubtful, since the Crl.A.No.69/2014 23 material witnesses including the injured himself have given a detailed account of various other injuries inflicted by the accused upon PW-2. Thus, the medical evidence also corroborates the evidence of PW-2, PW-4, PW-6 and PW-8 that, PW-2 had sustained injuries on the above parts of his body.
24. The place of incident, according to the prosecution is the shop premises of PW-2. In that regard, as per the Investigating Officer, a scene of offence panchanama was drawn as per Ex.P-1. PW-2 the complainant has stated that it was himself and his wife who had shown the spot to the Police to enable them to draw the scene of offence panchanama. However, the witness to the said panchanama who was examined as PW-1 has not supported the case of the prosecution. Except stating that the said panchanama bears his signature, he has clearly and Crl.A.No.69/2014 24 categorically stated that, no scene of offence panchanama was drawn in his presence at the spot. Still, the unimpeachable evidence of PW-2, PW-4, PW-6 and PW-8 that the alleged incident has taken place in the shop of PW-2 would over take the hostility of the evidence of PW-1 with respect to proving of the spot of the offence.
25. The next question which would remain is, whether the alleged weapon at MO-5 which is described as a 'razor' was the weapon used in the commission of the crime and whether the alleged act of accused in inflicting injuries upon PW-2 would constitute the offences punishable under Section 326 of IPC.
On this point, it is once again the evidence of PW-2, PW-4, PW-6, PW-8 and PW-9 and the Investigating Officer would become very material. Crl.A.No.69/2014 25
PW-2 in his complaint as well in his evidence has described the weapon as a 'blade'. He has stated that the accused holding a 'blade' between his two fingers has inflicted injuries upon him. He has identified the said article at MO-5 as the weapon used by the accused, which article was described as a 'razor' with a small plastic handle.
PW-4 - Jayamma, the sister-cum-mother-in-law of the injured PW-2, who claims to be an eye witness to the incident has stated that, the weapon used by the accused in assaulting PW-2 was a 'blade'. Though she stated that she can identify the said 'blade', but, for the reasons best known to the prosecution, it did not get the article at MO-5 identified by the said witness. As such, PW-4 did not see the weapon at MO-5 in the Court and identify it.
Crl.A.No.69/201426
Similarly, even PW-8 - Roopa, the wife of PW-2 has also described the weapon as a 'blade'. She has stated that when she rushed to the spot, she saw the accused holding a 'blade' in his hands. However, even she was also not shown with the weapon at MO-5 and asked to identify the said weapon. As such, according to PW-4 and PW-8, the weapon used in the commission of the crime was a 'blade'.
PW-6 the independent eye witness has described the weapon as a 'razor'. Though the Trial Court has recorded that the said witness has identified MO-5, but there is no clear mentioning that the said witness has identified the said article describing the same under which name, whether as a 'blade' or as a 'razor'.
The Investigating Officer who claims to have seized the said weapon is PW-7. The said witness in Crl.A.No.69/2014 27 his evidence has stated that, when he apprehended the accused on 09-11-2012 and arrested him, after interrogating the accused, he seized a 'razor' with an orange colour plastic handle from him which was used in the commission of the crime. In that regard, he has drawn a seizure panchanama as per Ex.P-5. The witness under the said seizure panchanama who was examined as PW-9 has not supported the case of the prosecution and he has turned hostile to the case of the prosecution. As such, even in the absence of independent witness supporting the alleged seizure of the weapon, still, if the statement of the Investigating Officer regarding the description of the weapon is to be believed, it is a 'razor' with an orange colour plastic handle. Neither PW-4 nor PW-8 has spoken about the 'blade' which they are said to have found in the possession of the accused having any handle to it. As Crl.A.No.69/2014 28 such, whether the description used as 'blade' by PW-4 and PW-8 and the description used by PW-6 as 'razor', so also by PW-7 as 'razor' would correspond to one and the same object at MO-5, is ambiguous. It is more so because, as already observed, the prosecution has failed to show the weapon at MO-5 to PW-4 and PW-8 and get it identified by them. Had the said witnesses identified the said article as 'blade' and used in the commission of the crime, the alleged description of the very same instrument as a 'razor' could have been taken as a synonymous term used by the witnesses differently in their evidence for a single object.
Added to this, the evidence of PW-7 no where mentions as to how the said weapon was found with the possession of the accused. Though he says that the said weapon was in the possession of the accused Crl.A.No.69/2014 29 and the same was seized in the presence of panchas, but as brought out to the notice of the Court by the learned counsel for the appellant, the alleged seizure panchanama at Ex.P-5 mentions that the accused is said to have stated that he had already delivered the weapon to the Police, which means, the alleged seizure of the weapon was not made from the possession of the accused, but it was made from the possession of the Police. Therefore, when the alleged possession of MO-5 with the accused is filled with lot of suspicion and ambiguity, it is not safe to believe that it is with MO-5 and MO-5 alone, the injuries found on the injured was inflicted by the accused. As such, though it is proved beyond all reasonable doubts that, it was the accused and the accused alone who had inflicted injuries upon PW-2, but the prosecution could Crl.A.No.69/2014 30 not able to prove that those injures were inflicted with no other weapon than the one at MO-5.
26. It is keeping in mind the above description that the prosecution could not able to prove that MO-5 was the weapon used in the commission of the crime, the applicability and attraction of Section 326 of IPC, for which the accused is convicted, is to be looked into.
Section 326 of IPC reads as below:-
326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance Crl.A.No.69/2014 31 which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
By a reading of the said Section, it is clear that, in order to hold that the accused has voluntarily caused grievous hurt/injuries upon the victim, there must be use of a dangerous weapon or some dangerous means, what those means are also clearly explained in the said Section. In view of the fact that the prosecution could not able to establish that it is MO-5 and MO-5 alone by which the accused has inflicted injuries upon the victim, it cannot be held that those injuries found on the victim were caused with any instrument used for shooting, stabbing or cutting, or any instrument which when used as a Crl.A.No.69/2014 32 weapon of offence was likely to cause death, as such, though it is established that the accused has voluntarily caused grievous hurt on the person of PW-2, but the prosecution has failed to prove that, it was attracting Section 326 of IPC. When Section 326 of IPC would not attract in the case on hand and since it is established that the accused voluntarily has caused grievous hurt to PW-2, then, the offence that would be attracted would be not the one punishable under Section 326 of IPC, but it is the one punishable under Section 325 of IPC. But the Trial Court did not make out the said difference and merely because MO-5 was produced by the prosecution and shown to have been identified by PW-2 and Investigating Officer, it proceeded to convict the accused for the offence punishable under Section 326 of IPC. As such, the accused cannot be held guilty for the offence Crl.A.No.69/2014 33 punishable under Section 326 of IPC, but he is required to be held guilty for the offence punishable under Section 325 of IPC.
27. With respect to the conviction of the accused for the offence punishable under Section 427 of IPC is concerned, no doubt, PW-2, PW-4, PW-6 and PW-8 have uniformly stated that accused caused some damages to some of the articles kept in the provision store of PW-2, however, none of these witnesses, anywhere in their evidence, have stated to what was the value of the alleged damaged articles. Section 427 of IPC is attracted only when the loss or damage caused amounts to `50/- or upwards.
Though learned High Court Government Pleader in his argument submitted that, in the present day, when it is stated that the show case was broken and Crl.A.No.69/2014 34 some bottles were damaged, it can be presumed that the loss would be to the extent of more than `50/-, due to lack of evidence regarding the value of the damage caused, I am unable to accept the said argument of the learned HCGP.
When PW-2 - Somashekhara, being the owner of the shop has stated that, some articles of his shop were damaged, nothing had prevented him in mentioning as to what those articles that were damaged and what was the extent of the loss suffered by him. However, he was silent on the said aspect in his evidence. Similarly, his wife PW-8 - Roopa has also not whispered anything in her evidence. Apart from this, even an independent eye witness - PW-6 as well the Investigating Officer i.e. PW-7 have also not at all whispered anything about the same in their evidence. In the absence of any quantification or Crl.A.No.69/2014 35 damage caused to the articles, the offence that would be attracted is not the one punishable under Section 427 of IPC, but it would be the one punishable under Section 426 of IPC. It is for this limited extent of modifying the judgment of conviction only, the impugned judgment deserves interference.
28. So far as the sentence ordered by the Trial Court for the proven guilt is concerned, since the simple imprisonment of two years and a fine of `1,000/- and in default of payment of fine, a further simple imprisonment of three months is prescribed for the offence punishable under Section 326 of IPC and now the proven guilt is the one punishable under Section 325 of IPC, the same requires a slight modification.
So far as the sentence ordered by the Trial Court for the proven guilt is concerned, since the simple Crl.A.No.69/2014 36 imprisonment of two years or with fine or with both is prescribed for the offence punishable under Section 427 of IPC and now the proven guilt is the one punishable under Section 426 of IPC, the same requires a slight modification.
Accordingly, I proceed to pass the following:
ORDER [i] The appeal filed by accused/appellant is allowed in part.
[ii] The judgment of conviction passed by the learned LI Additional City Civil and Sessions Judge at Bangalore City, in Sessions Case No.73/2013 dated 04-01-2014, is modified to the extent that the accused/appellant - Sri. Arun @ Pintu, S/o. late Krishnappa, aged about 22 years, Resident of No.62, 3rd Cross, Near Iddu House, Bandepalya, Crl.A.No.69/2014 37 Garvebhavipalya, Bangalore, is acquitted of the offence punishable under Section 326 of IPC, however, he is convicted for the offence punishable under Section 325 of IPC.
[iii] Further, the accused/appellant is also acquitted for the offence punishable under Section 427 of IPC, however, he is convicted for the offence punishable under Section 426 of IPC.
[iv] Accordingly, the sentence of two years' simple imprisonment ordered for the offence punishable under Section 326 of IPC is also modified and the accused is sentenced to undergo simple imprisonment for a period of one year six months and to pay a fine of `1,000/- and in default of payment of fine, to undergo simple imprisonment for two more months for the offence punishable under Section 325 of IPC.
Crl.A.No.69/201438
[v] Further, the accused is sentence to undergo simple imprisonment for two months for the offence punishable under Section 426 of IPC.
[vi] Both substantive sentences shall run concurrently.
[vii] The accused/appellant is also entitled for the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973;
[viii] The rest of the order of the Trial Court passed in the impugned judgment remains unaltered;
Registry to transmit a copy of this judgment along with Trial Court records to the Trial Court immediately.
The Court acknowledges the services rendered by Dr.J.S. Halasetti, learned panel advocate from the High Court Legal Services Committee. While acknowledging the assistance rendered by him in this Crl.A.No.69/2014 39 case, the Court recommends to consider the remuneration payable to him to an amount not less than a sum of `5,000/-.
Sd/-
JUDGE BMV*