Karnataka High Court
Honappa vs The State on 9 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION No.200012/2018
BETWEEN:
HONAPPA S/O SHIVAPPA HARIJAN
AGE:33 YEARS, OCC: AGRICULTURE,
R/O BENKAL VILLAGE,
TQ: DEVADURGA
DIST: RAICHUR-584 111
... PETITIONER
(BY SRI RAVI K. ANOOR, ADVOCATE)
AND:
THE STATE THROUGH
DEVADURGA POLICE STATION,
DIST. RAICHUR
REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
AT KALABURAGI BENCH-585 107
... RESPONDENT
(BY SRI VEERANAGOUDA MALIPATIL, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET
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ASIDE THE JUDGMENT PASSED BY THE LEARNED
JUDICIAL MAGISTRATE FIRST CLASS, DEVADURGA DATED
11.02.2015 AND FURTHER THE SAME BEING CONFIRMED
BY THE LEARNED PRINCIPAL SESSIONS JUDGE, RAICHUR
IN CRL.APPEAL NO.09/2015 BY JUDGMENT DATED
23.03.2018.
THIS PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Ravi K. Anoor, learned counsel for the revision petitioner and learned High Court Government Pleader and perused the records.
2. This revision petition is filed by the accused, who suffered an order of conviction in C.C.No.463/2011 on the file of learned JMFC, Devadurga by judgment dated 11.02.2015, whereby he has been convicted for the offence punishable under Sections 429 of IPC which was confirmed in Criminal Appeal No.09/2015 on the file of the Principal Sessions Judge, Raichur by judgment dated 23.03.2018.
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3. Brief facts of the case are as under:
The case of the prosecution is that on 01.04.2011 at about 3.00 p.m., in gairana land adjoining to the leased land of the accused situated at B.Ganekal village, six cows and two calves of the complainant were grazing the grass and consumed paddy grass put up in the land and ate poisonous tablets mixed with the cattle feed. The same was kept by the accused with an intention to protect paddy grass stored in gairana land of the accused. When such being factual aspect, six cows of complainant consumed the poisonous cattle feed which was kept along with the paddy grass and died at about 5.30 p.m., in the house of complainant whereby complainant was put to loss to the tune of Rs.34,000/-. After receipt of the said complaint, Devadurga Police registered a case in Crime No.75/2011 for the offence punishable under Section 429 of IPC and after thorough investigation filed the charge sheet.
4. Learned Magistrate on receipt of the charge sheet took cognizance of the offence punishable under 4 Section 429 of IPC and registered a case in C.C.No.463/2011. Presence of the accused was secured and charges were framed. Accused pleaded not guilty and therefore, trial was held.
5. In order to prove its case, the prosecution in all examined 9 witnesses comprising of panch witnesses, Investigating Officer and veterinary doctor who issued post mortem report marked and exhibited at Ex.P.4 to P9. Prosecution relied on 10 documentary evidence which were marked and exhibited at Ex.P.1 to P.10 comprising of complaint, spot panchanama, post mortem reports and FIR. Prosecution also relied on 2 material objects marked at M.O.1 Pot and M.O.2, sample grass.
6. On conclusion of the recording of evidence, the trial Magistrate recorded the accused statement under Section 313 of Cr.P.C., wherein accused denied all the incriminating evidence found against him in the case of the prosecution.
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7. Therefore, learned Magistrate heard the parties in detail and after considering the material on record in a judicial manner, convicted the accused for the offence punishable under Section 429 of IPC and sentenced the accused to undergo simple imprisonment for a period of 2 years for the offences punishable under Section 429 of IPC and also directed to pay a sum of Rs.20,000/- as compensation by acting under Section 357 of Cr.P.C.
8. Being aggrieved by the said conviction judgment, accused preferred an appeal before the Principal Sessions Judge, Raichur in Criminal Appeal No.9/2015.
9. Learned Sessions Judge, after securing the records and hearing the parties in detail, dismissed the appeal of the revision petitioner and confirmed the judgment of conviction by his judgment dated 23.03.2018.
10. Being aggrieved by both the judgments, the accused has presented the present revision petition on the following grounds:
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¾ That, the impugned judgment and order of conviction and sentence recorded by the learned trial judge is contrary to law, facts and evidence on record. Hence the same is liable to be set aside.
¾ The reasons assigned by the learned trial judge while passing the impugned judgment and order of conviction and sentence are erroneous and as such he has slipped into an error and passed the impugned judgment and order of conviction and sentence, resulting in substantial miscarriage of justice to the case of revision petitioner.
¾ That, there is contrary evidence revealed from the oral evidence and medical evidence has rendered the prosecution case doubtful and the trail court in this regard has not appreciated evidence on record.
¾ That, the reasons given by the trail court in believing interested witnesses 1s not proper and there are number of contradictions in the evidence of these witnesses. 1The reasons given are not proper and contrary to principles of criminal jurisprudence.
¾ That, admittedly there are no eye witnesses to the incident and the entire case of the prosecution is based on circumstantial evidence which is not connecting the revision petitioner.
¾ That, both the courts below have erred in drawing a presumption that the incident has accused near the field where the petitioner was cultivating. Thus, no provision of law give such a presumption to be drawn.
¾ That, the courts have ignored the most important material facts of recovery as the alleged seizure where the paddy husk was stored is different from the one produced before the court.7
¾ That, there is no material on record either direct or circumstantial to connect the revision petitioner to the incident. PW-1 Complainant and Pw-3, 4& 6 are not the witnesses to the Occurrence in question and their evidence is hearsay in nature and same has no relevance in untolding prosecution case.
¾ That, the panch Witness Pw-2 has also not testified regarding contents of both mahazar marked at Ex.P.2 and P.3 said to have been conducted near land of Sharangouda is also defective, because the pot containing paddy husk and paddy gross was not seized under said mahazar.
¾ That, the Pw-5 was said to have conducted post mortem Over six dead cattle's, the said veterinary doctor Pw-5 has also not given any opinion regarding cause of death of all deceased cattle's. the said Doctor elaims that he had sent the Vicera of dead cattle to FSL but unfortunately the police have not received FSL report till today.
¾ That some more grounds will be urged at the time of arguments.
11. Reiterating the grounds urged in the revision petition Sri Ravi K. Anoor, learned counsel for the petitioner vehemently contended that both the courts have not properly appreciated the material on record and committed serious error in convicting the revision petitioner and sought for allowing the revision petition. 8
12. As an alternate argument, he submitted that since accused is a first time offender, the trial Court ought to have considered grant of probation and contended that same is not having been discussed by the learned trial judge or by the first appellate Court, he sought for granting of probation and allowing the petition.
13. Per contra, learned High Court Government Pleader opposes the revision petition and submits that there is no legal or factual aspect error committed by both the courts and therefore, sought for dismissing the revision petition.
14. Insofar as grant of benefit of probation is concerned, learned High Court Government Pleader submits that grant of probation is not even argued before the trial Court or before the first appellate Court and therefore, for the first time the said argument is put forth before this Court and sought for dismissal of the revision petition in toto.
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15. In view of the rival contentions of the parties, and having regard to the scope of the Revisional jurisdiction, the following points that would arise for consideration are:
1. Whether the revision petitioner has made out a case that both the courts have erred in law in convicting the accused for the offence punishable under Section 429 of IPC?
2. Whether there is any error of jurisdiction?
3. Whether the sentence is excessive?
4. What order?
16. In the case on hand, death of six cows belonging to the first informant is not in dispute and the death has taken place consuming poisonous substance by the cows. The same is proved by oral evidence of Dr.N.H.Rathod, PW.5, who is a veterinary doctor examined on behalf of the prosecution who issued Exs.P.4 to P.9 post mortem reports.
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17. The spot mahazar, recovery of seizure of M.O.1 and sample grass as M.O.2, establish that cows have grazed the paddy grass stored in the gairana land of the accused.
18. In the absence of any previous enmity or animosity between the complainant and accused, why would the complainant falsely implicate accused in respect of death of six cows the question remains unanswered. These aspects are rightly appreciated by the learned trial Magistrate after considering the oral and documentary evidence placed on record in its proper perspective.
19. Learned first Appellate Judge, dealt with the prosecution evidence placed on record in detail and also re-appreciated the material evidence on record and recorded a categorical finding that the prosecution is successful in establishing that accused revision petitioner has committed an offence under Section 429 of IPC inasmuch as he had kept the poisonous tablets along with cattle feed in his land where the paddy grass has been 11 stored and therefore, the act attributable to the accused/revision petitioner under Section 429 of IPC stands established by placing necessary cogent and convincing evidence on record.
20. Admittedly, the learned Magistrate had the jurisdiction to entertain the complaint and pass appropriate judgment. Therefore, on factual aspect, the revision petitioner is unable to make out a case that finding recorded by the learned trial Magistrate and learned First Appellate Judge convicting the accused under Section 429 of IPC.
21. Therefore, the argument put forth on behalf of the revision petitioner that both the courts have commited legal and factual error in convicting the revision petitioner cannot be countenanced in law.
22. Having said thus, the question of grant of probation is not even argued on behalf of the revision petitioner before the learned Magistrate and therefore, learned Magistrate did not consider grant of probation. 12 Unfortunately, learned Sessions judge being the appellate authority, did not bestow its attention to grant of probation.
23. It is now settled principles of law and requires no emphasis that the role of Court while passing the order of conviction is altogether different from role of the Court while passing appropriate sentence in respect of given offence where the accused has been convicted.
24. The principles of law enunciated in the case of Gulzar vs. State of Madhya Pradesh reported in (2007)1 SCC 619 clearly enunciates the same. The relevant paragraphs thus read as under:
"11. Where the provisions of the P.O. Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the P.O. Act and the Code wanted to obviate. Yet the legislature in its wisdom has obliged the Court under Section 361 of the Code to apply one of the other beneficial provisions; be it Section 360 of the Code or 13 the provisions of the P.O. Act. It is only by providing special reasons that their applicability can be withheld by the Court. The comparative elevation of the provisions of the P.O. Act are further noticed in sub- section (10) of Section 360 of the Code which makes it clear that nothing in the said Section shall affect the provisions of the P.O. Act. Those provisions have a paramountcy of their own in the respective areas where they are applicable.
12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended 14 to co-exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable
13. Enforcement of Probation Act in some particular area excludes the applicability of the provisions of Sections 360, 361 of the Code in that area."
25. Applying the said principles of law enunciated in the aforesaid decision to the case in hand, since the accused is a first time offender, the trial Court is duty bound to consider grant of probation to the revision petitioner. Even though grant of probation is not canvassed as a ground on behalf of revision petitioner before the First Appellate Court.
26. Further, learned Judge in the first appellate Court did not bestow his attention to grant of probation 15 more so, after recording a finding of conviction for the revision petitioner more so while confirming the conviction order in respect of the revision petitioner.
27. Since it is the mandatory duty of the Court to consider grant of probation, both the courts have not exercised the said powers, there is an error of jurisdiction, to that extent in the judgments passed by both the courts which are subject matter of the present revision petition. However, it is also noticed that compensation that is ordered by the learned trial Magistrate under Section 357 of Cr.P.C., is not part of the fine and the learned Magistrate has granted the compensation in a sum of Rs.20,000/- in respect of death of six cows belonging to the complainant.
28. It is in this regard the argument that is put forth on behalf of revision petitioner that learned Magistrate had the powers to impose only Rs.5,000/- as the fine and since no fine is imposed and only 16 compensation in a sum of Rs.20,000/- is ordered for the complainant has resulted in miscarriage of justice.
29. Since this Court is now intending to grant probation to the revision petitioner by resorting to the power vested under this Court under Section 4 of the Probation of Offenders Act, by acting under Section 5 of the Probation of Offenders Act, the compensation awarded by the trial Court needs to be enhanced to Rs.40,000/- in respect of death of six cows.
30. Accordingly, ends of justice would be met by granting probation to the revision petitioner by directing him to execute a bond in a sum of Rs.25,000/- which shall be in force for a period of two years for his good behavior with one surety for the likesum to the satisfaction of the trial Court and enhancing compensation from Rs.20,000/- to Rs.40,000/- in respect of death of six cows would meet the ends of justice.
31. Accordingly, point No.3 is answered partly in affirmative.
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32. In view of finding of this Court on point Nos.1 to 3 as above, the following order is passed:
ORDER Revision petition is allowed in part.
i. While maintaining the conviction of revision petitioner for the offence punishable under Section 429 of IPC, revision petitioner has been granted probation directing him to execute a bond in a sum of Rs.25,000/-
along with one surety to the satisfaction of the trial Court for his good behavior which shall be in force for a period of two years and ordered to pay compensation of Rs.40,000/-
(Rs.20,000/- ordered by the learned Magistrate and Rs.20,000/- enhanced by this Court, in all Rs.40,000/-) to the complainant in respect of death of six cows.
ii. Time is granted to execute the bond and to pay enhanced compensation till 04.02.2023.
iii. It is made clear that violation of any one of the conditions of probation or non payment of compensation 18 as ordered by the learned Magistrate and enhanced by this Court, the punishment of two years ordered by the trial Magistrate and confirmed by the first appellate Court stands automatically restored.
Sd/-
JUDGE VNR