Karnataka High Court
Sri S N Siddesh vs The State Of Karnataka on 27 September, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 114 of 2015
NC: 2023:KHC:35164
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 114 OF 2015
BETWEEN:
SRI. S.N. SIDDESH,
AGED ABOUT 23 YEARS,
S/O. HANUMANTHAPPA,
TARAGARA,
R/O SIDDARAMESHWARA BADAVANE,
DAVANAGERE - 577 002.
...PETITIONER
(BY MS. THANIMA BEKAL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY K.T.J. NAGAR POLICE STATION,
Digitally DAVANAGERE.
signed by REPRESENTED BY
RENUKAMBA STATE PUBLIC PROSECUTOR,
KG HIGH COURT BUILDINGS,
Location: BANGALORE - 560 001.
High Court of ...RESPONDENT
Karnataka (BY SRI. JAIRAM SIDDI, HCGP)
THIS CRL.RP IS FILED U/S.397 OF CR.P.C PRAYING TO
SET ASIDE THE JUDGEMENT AND ORDER OF CONVICTION
DATED:07.01.2014 MADE IN C.C.NO.49/2012 BY THE COURT
OF JMFC-II, DAVANAGERE AND THE JUDGMENT AND ORDER
DATED:30.12.2014 MADE IN CRL.A.NO.3/2014 BY THE COURT
OF II-ADDL.DIST AND SESSIONS JUDGE, DAVANAGERE AND
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CRL.RP No. 114 of 2015
NC: 2023:KHC:35164
ACQUIT HIM OF THE OFFENCES WITH WHICH HE WAS
CONVICTED BY THE COURTS BELOW.
THIS PETITION, COMING ON FOR FURTHER ARGUMENTS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the revision petitioner/accused under Section 397 of Cr.P.C., challenging the judgment of conviction and order of sentence passed by the JMFC II Court, Davanagere in C.C.No.49/2012 dated 07.01.2014 and confirmed by II Additional Sessions Judge, Davanagere in Crl.A.No.3/2014 vide judgment dated 30.12.2014.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Trial Court.
3. The brief facts of the case are as under:
The accused/revision petitioner was charge sheeted for the offences punishable under Sections 435 and 427 of the IPC. It is the contention of the prosecution that on the intervening night of 11.09.2011 and 12.09.2011 i.e., at 1.00 am on 12.09.2011 accused out of his revenge against -3- CRL.RP No. 114 of 2015 NC: 2023:KHC:35164 the complainant, trespassed in the compound wall of the complainant and set fire the Motor cycles bearing Reg.No.KA-17/EC-8381, KA-17/V-4678 and KA-17/X-1484 with the help of raw paddy grass and there by caused damage to the tune of Rs.90,000/- to the complainant by his act of mischief. On the basis of the complaint, the investigating officer registered the crime and apprehended the accused. Initially, the accused was remanded in custody and subsequently, he was enlarged on bail. The investigating officer thereafter, recorded the statement of witnesses and submitted the charge sheet against the accused for the offences punishable under Section 427 and 435 of the IPC.
4. After submission of the charge sheet, as there are sufficient grounds to proceed against the accused, the cognizance of the offences was taken by the learned Magistrate. The accused has appeared through his counsel and prosecution papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. -4- CRL.RP No. 114 of 2015
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5. After hearing both the parties, the learned Magistrate had framed charges under Sections 427 and 435 of the IPC. Accused pleaded not guilty and claimed to be tried.
6. To prove the guilt of the accused, the prosecution has examined in all 7 witnesses and also placed reliance on 7 documents marked at Ex.P1 to Ex.P7 and 4 material objects. After conclusion of the evidence of the complainant, the statement of the accused under Section 313 of Cr.P.C. is recorded to enable the accused to explain the incriminating evidence appearing against him in the case of the prosecution. The case of the accused is of total denial. He did not choose to lead any oral and documentary evidence in support of his defence.
7. After having heard the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused under Section 248(2) of Cr.P.C. for the offences punishable under Sections 435 and 427 of the IPC. He has imposed -5- CRL.RP No. 114 of 2015 NC: 2023:KHC:35164 sentence of imprisonment for a period of one year for the offence punishable under Section 435 of the IPC and further imposed imprisonment for a period of six months for the offence punishable under Section 427 of the IPC and further directed that both the sentences shall run concurrently.
8. Being aggrieved by this judgment of conviction and order of sentence, the accused has approached the II Additional Sessions Judge, Davanagere in Crl.A.No.3/2014. The learned Sessions Judge, after re-appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by the learned Magistrate. Against these concurrent findings, the revision petitioner is before this Court by way of this revision.
9. Heard the arguments advanced by the learned counsel for the revision petitioner and the learned High Court Government Pleader for the respondent/State. Perused the records.
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10. Learned counsel for the revision petitioner would contend that the alleged offences are said to have taken place on 12.09.2011 at about 1.00 a.m., and in the early morning itself the complaint came to be lodged. He would further assert that, however, the statement of the eye witness PW.2 was recorded on 16.10.2011 and this delay in recording the statement of the sole eye witness was not explained. She would also assert that the entire case of the prosecution is based on the sole testimony of PW.2 who claims to be a eye witness and hence, it creates suspicion regarding the case of the prosecution. He would further assert that even if the evidence of PW.2 eye witness is taken into consideration it would simply amount to trespassing in the compound wall of the complainant, but it will not prove the offence either under Sections 435 or under Section 427 of the IPC. Hence, he would contend that both the Courts below have failed to appreciate this aspect and in a mechanical way convicted the accused by relying on the sole testimony of PW.2 which has resulted -7- CRL.RP No. 114 of 2015 NC: 2023:KHC:35164 in miscarriage of justice. As such, he would seek interference in the judgment of conviction and order of sentence.
11. Per contra, the learned High Court Government Pleader would support the judgment of conviction and order of sentence passed by the trial Court and confirmed by the learned Sessions Judge. He would contend that PW.2 is a eye witnesses and all other witnesses have corroborated the evidence of the prosecution and the accused has not given any explanation in his 313 of Cr.P.C., statement. He would also contend that the offence is punishable with imprisonment upto the period of seven years and the trial Court has imposed imprisonment for one year which is reasonable, and sought for dismissal of the revision.
12. Having heard the arguments and after appreciating the oral and documentary evidence, now the following point would arise for my consideration. -8- CRL.RP No. 114 of 2015
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1. Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the learned Sessions Judge are perverse, arbitrary and erroneous so as to call for any interference by this Court?
13. It is the specific case of the complainant that his relationship with the accused are strained. According to the complainant, three 2 wheelers belonging to complainant, CW.5 and CW.6 were parked within the compound wall of his house and on 12.09.2011 at about 1.00 am, some body set fire against the said vehicles and immediately he doused the fire and lodged the complaint. He would also assert that CW.2 had reported that, at 11.30 pm he had seen the accused jumping his compound wall and hence, he asserted that the accused had committed this mischief due to animosity. This witness was cross-examined at length and admittedly he is not an eye witness, but the fact that his vehicle along with other two wheelers were set on fire is not disputed. It is also elicited that the accused has got a certain animosity -9- CRL.RP No. 114 of 2015 NC: 2023:KHC:35164 towards him and the accused used to quarrel with the uncle of the complainant, but this animosity is not sufficient to prove that the accused was falsely implicated in this case.
14. PW.2 is a star witness in the instant case. In his evidence, he deposed that his house is situated in siddaligneshwara area and it is in front of the house of the complainant. He further deposed that CW.3 is his neighbour and he asserted that he his working in Mayashree Bar and Restaurant. His evidence further discloses that his working hours is from morning 10.00 am to 11.30 pm and he further deposed that on 12.09.2011 night at 12.45 hours after having his dinner he was walking in front of his house and he suddenly heard certain sound nearly compound wall of the complainant and immediately he rushed there and found that three bikes were set on fire and he also specifically deposed that he has seen accused jumping out of the compound wall of the complainant. He further deposed that then he reported
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CRL.RP No. 114 of 2015
NC: 2023:KHC:35164 the complainant and they doused the fire and in this regard a complaint was lodged. This witness was cross- examined and in the cross examination it was elicited that he and the complainant were friends. However, he denied that CW.3 is also his friend. It is elicited that he returned to his house after completing his work at 12 pm in the night. He has specifically asserted in his cross examination that he had seen that the bikes were set on fire during the cross examination. A suggestion was made to him under:
DgÉÆæ ¨ÉAQ ºÀaÑzÀÝ£ÀÄß PÀuÁßgÉ PÀArgÀĪÀÅ¢®è JAzÀgÉ ¸Àj.
15. This suggestion clearly establish that the vehicles belonging to the complainant and his relatives were set on fire and the only defence is that, this witness has not seen the accused setting the fire during the entire cross-examination of PW.2. There is no denial of the claim that he had seen the accused jumping out of the compound wall of the complainant.
16. PW.3 is another circumstantial witness and accordingly, PW.4 is a circumstantial witness. PW.5 is spot
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CRL.RP No. 114 of 2015
NC: 2023:KHC:35164 mahazar witness and he has also deposed regarding drawing spot mahazar. PW.6 is another circumstantial witness while PW.7 is the investigating officer and he has a deposed regarding the investigation.
17. All along it is asserted by the learned counsel for the revision petitioner that though the incident took place in the early morning on 12.09.2011, but the statement of PW.2 was recorded on 16.10.2011 and there is inordinate delay in recording the statement which is not explained by the prosecution. However, in the cross examination of PW.2 regarding recording a statement or delay in recording the statement, nothing was elicited and no questions were posed to the witness. Further, during the cross examination of PW.7, the investigating officer also no such cross-examination was made regarding delay recording the statement. First time this argument was advanced in this regard in revision and since, the same was not elicited in the cross-examination, it does not have any relevancy. Apart, from that in the cross-examination
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NC: 2023:KHC:35164 of PW.3 accused has not denied the statement of the evidence of PW.2 that he has seen accused jumping out of the compound premises of the complainant. The accused has not explained the circumstances for trespassing into the compound premises of the complainant. In fact the investigating officer ought to have submitted charge sheet for criminal trespass also but that was also not done. The oral and documentary evidence on record clearly establish that it is the accused who has committed mischief of setting fire the vehicles parked in the compound wall of the complainant.
18. Both the Courts have appreciated the oral and documentary evidence in proper perspective and have rightly convicted the accused. No illegality or infirmity is found in the judgment of conviction.
19. The learned Magistrate as sentenced the accused for the offence under Section 427 as well as under
Section 435 of the IPC. Section 427 of the IPC deals with mischief causing damage of property to the extent of more
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NC: 2023:KHC:35164 than Rs.50/-, while Section 435 of IPC deals with mischief by fire causing damage to a property of more than Rs.100/-. Section 435 of IPC is a larger offence and 427 is only mischief which merges with 435 of IPC. Hence, the learned Magistrate has erred in imposing independent sentence for the offence punishable under Section 427 of IPC. As such imposition of the sentence for the offence under Section 427 of IPC calls for interference.
20. Learned counsel for the revision petitioner would contend that the sentence of imprisonment for one year appears to be harsh and seeks a reduction in the sentence on the grounds the age of the revision petitioner, who was aged about 21 years when the alleged offences were said to have been convicted.
21. The offence under Section 435 of the IPC is punishable with imprisonment which may extend upto 7 years and shall also be liable to pay a fine. Hence, the mandate of the Section discloses that imposition of a fine is also mandatory. However, the learned Magistrate did
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NC: 2023:KHC:35164 not impose any fine. But at the same time, the State has not challenged the sentence portion. The learned counsel for the revision petitioner is seeking remission in the sentence of imprisonment. Admittedly, there is a certain animosity between the complainant and the accused. The accused had set fire to the three bikes belonging to the complainant and his relatives and caused damage to the tune of Rs.90,000/-. Looking at these facts and circumstances, and looking at the nature of the offence and age of the accused, the sentence of imprisonment of one year appears to be on the higher side.
22. Considering these facts and circumstances, in my opinion, it is just and proper to impose a sentence of imprisonment for a period of four months on the revision petitioner with a fine of Rs.10,000/- which would serve the purpose and he is required to undergo default sentence also. As such, the point under consideration, is partly answered in the affirmative so far as it relates to the sentence portion. Hence, I proceed to pass the following:
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NC: 2023:KHC:35164 ORDER
1. The revision petition is allowed in part so far as it pertains to the sentence.
2. The judgment of conviction passed by JMFC II Court, Davanagere in C.C.No.49/2012 dated 07.01.2014 and confirmed by II Additional Sessions Judge, Davanagere in Crl.A.No.3/2014 dated 30.12.2014 stands confirmed.
3. The sentence so for as it relates to the offence under Section 427 of IPC is set aside as it merges with the offence punishable under Section 435 of IPC.
4. The sentence for the offence punishable under Section 435 of IPC is modified and the accused/revision petitioner is directed to undergo simple imprisonment for a period of four months with a fine of Rs.10,000/- for the offence punishable under Section 435 of the IPC, in default he shall undergo further imprisonment for a period of one year.
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5. The bail bonds executed by the revision petitioner/accused shall stand cancelled.
6. The revision petitioner/accused is also entitle for a period of set off under Section 428 of Cr.P.C.
7. Send the records along with the copy of this order to the trial Court with direction to secure the accused to serve the balance sentence and for collection of the fine.
Sd/-
JUDGE URN List No.: 1 Sl No.: 10