Karnataka High Court
Shafiulla vs State Of Karnataka on 7 April, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1271/2021
C/W.
CRIMINAL REVISION PETITION NO.1259/2021
IN CRIMINAL REVISION PETITION NO.1271/2021:
BETWEEN:
SHAFIULLA
S/O ABDUL SUBHAN SAB
AGE: 48 YEARS
R/O. OLD BARLINE ROAD
LASHKAR MOHALLA
SHIVAMOGGA-577 201. ... PETITIONER
(BY SRI J.A.KITTUR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KOTE POLICE STATION
SHIVAMOGGA-577 201
NOW REPRESENTED BY SPP.,
STATE OF KARNATAKA
HIGH COURT BUILDING
BENGALURU-560 001.
2. MAZAR AHMED
S/O NISAR AHMED
AGE: 42 YEARS
OCC: FRUIT BUSINESS
LASHKAR MOHALL, GALIB STREE
2
SHIVAMOGGA-577 201.
(VIDE COURT DATED 15.02.2022 R-2 IS DELETED)
... RESPONDENTS
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER PASSED BY THE III
ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN CRIMINAL
APPEAL NO.222/2019 DATED 02.09.2020 AND ACQUIT HIM FOR
THE OFFENCE PUNISHABLE UNDER SECTION 326 OF IPC.
IN CRIMINAL REVISION PETITION NO.1259/2021:
BETWEEN:
SHAFIULLA
S/O ABDUL SUBHAN SAB,
AGE: 48 YEARS,
R/O OLD BARLINE ROAD,
LASHKAR MOHALLA,
SHIVAMOGGA-577201. ... PETITIONER
(BY SRI J.A.KITTUR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KOTE POLICE STATION
SHIVAMOGGA-577 201
NOW REPRESENTED BY SPP.,
STATE OF KARNATAKA
HIGH COURT BUILDING
BENGALURU-560 001.
2. MAZAR AHMED
S/O NISAR AHMED
AGE: 42 YEARS
3
OCC: FRUIT BUSINESS
LASHKAR MOHALL, GALIB STREE
SHIVAMOGGA-577 201.
(VIDE COURT DATED 15.02.2022 R-2 IS DELETED)
... RESPONDENTS
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER PASSED BY THE COURT OF
III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN CRIMINAL
APPEAL NO.11/2020 DATED 02.09.2020 INSOFAR AS RELATING
TO ENHANCEMENT OF THE SENTENCE FOR THE OFFENCE
PUNISHABLE UNDER SECTION 326 OF IPC.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These petitions are filed under Section 397 read with Section 401 of Cr.P.C., praying to set aside the judgment and order passed by the III Additional Sessions Judge, Shivamogga in Crl.A.No.222/2019 and Crl.A.No.11/2020, respectively, dated 02.09.2020, acquit the appellant/petitioner and insofar as relating to enhancement of the sentence, respectively, for an offence punishable under Section 326 of IPC. 4
2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case of the prosecution before the Trial Court is that one Mazar Ahamed had lodged a complaint against the petitioner herein on 25.11.2014, stating that he is residing with his family at Lashkar Mohalla, Galib Street, Shivamogga, and he kept washing machine in the fruit godown situated near Al-Hi-UI School, and on 25.11.2014 at 5:00 p.m, on seeing the son of the accused detaching motor from the washing machine and running from the spot, he went to the house of accused Shafi and informed him that his son had removed the motor from the washing machine and he questioned as to why he taught lesson of committing theft, and immediately, the accused got enraged under the impression that he called his son as thief and abused him as '¸ÀÆ¼É ªÀÄUÀ£É' and assaulted him with his hands on his face, shoulder and head and one Shoib who was standing beside him, told that it is not sufficient to assault with hands and immediately, he went to the 5 house of accused and brought chopper and handed over to accused and Shoib held his neck and accused by abusing him as '¸ÀÆ¼É ªÀÄUÀ£É' and assaulted on his nose and near right eye on the back side of chopper and caused bleeding injury and ran away from the spot by holding chopper. On the basis of first information, a case was registered, investigated the matter and filed the charge-sheet for the offences punishable under Sections 323, 326, 504, 506 read with Section 34 of IPC.
4. The prosecution in order to prove the case relied upon the evidence of PWs.1 to 6 and the documentary evidence
- Exs.P1 to 7 and also got marked the material object MO.1- Machchu. The accused/petitioner has not led any defense evidence before the Trial Court.
5. The Trial Court after considering the both oral and documentary evidence placed on record convicted the petitioner for the offence punishable under Section 326 of IPC and imposed fine of Rs.5,000/-. In respect of the offences punishable under Sections 504 and 506 of IPC, imposed sentence for a period of three months with a fine of Rs.2,000/- and ordered, the 6 sentence shall run concurrently. If the petitioner fails to pay the fine amount, he should undergo one month simple imprisonment. Being aggrieved by the judgment of conviction and order on sentence, both the petitioner as well as the State filed Crl.A.No.222/2019 and Crl.A.No.11/2020, respectively. The Appellate Court on re-appreciation of the evidence available on record allowed the appeals-in-part and enhanced the sentence from six months to two years and acquitted the petitioner/accused for the offences punishable under Sections 323, 504, 506 of IPC. Hence, the present revision petitions are filed by the petitioner/accused before this Court.
6. The main contention of the learned counsel for the revision petitioner before this Court is that already the petitioner was in custody for a period of three months and 23 days before suspending the sentence after passing an order of the judgment of the Appellate Court. The learned counsel also would submit that the issue was only for a trivial issue regarding an allegation of detaching the motor from the washing machine; suddenly he enraged and abused. The complaint is also very clear that when 7 the son was called as thief, he was enraged. Hence, the Court has to take note of the said fact also.
7. Per contra, the learned High Court Government Pleader appearing for the respondent - State would submit that Ex.P5-Wound Certificate discloses the fracture. Apart from that, in order to prove the same, Ex.P6 - x-ray is also produced and an injured witness also supported the case of the prosecution. Both the Courts have considered the evidence available on record and there are no grounds to interfere with the findings of the Trial Court as well as the Appellate Court. The Appellate Court rightly enhanced the sentence considering the gravity of the offence and the nature of injury i.e., fracture. Hence, it does not require any interference of this Court.
8. Having heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State and on perusal of the material available on record, the points that would arise for consideration of this Court are:
8
(i) Whether the Trial Court has committed an error in convicting the petitioner for an offence punishable under Section 326 of IPC?
(ii) Whether the Appellate Court has committed an
error in confirming the conviction for an
offence punishable under Section 326 of IPC?
(iii) Whether the Appellate Court has committed an error in enhancing the sentence from six months to two years?
(iv) Whether it requires an interference of this Court by exercising the revisional jurisdiction?
(v) What order? Point Nos.(i) to (iii):
9. Having heard the respective counsel and also on perusal of the material available on record, both the Courts have given the concurrent finding. The revision petitioner's counsel not argued on merits with regard to the conviction is concerned;
but his argument is only with regard to the sentence part is concerned. The learned counsel would submit that he had 9 already served the sentence for a period of three months and 23 days i.e., almost four months and the same may be given set off and this Court can consider the same for enhancing the fine amount for the remaining sentence is concerned.
10. Having considered the said submission and also on perusal of the material available on record, the Court has to take note of the circumstances under which an incident was taken place. The allegation against the son of the accused is that he had detached the motor from the washing machine and at that time he enraged and assaulted with backside of the chopper and not used the front side of the chopper, as a result, he had suffered the fracture. Having taken note of the circumstances under which the incident has taken place and this incident was taken place in the year 2014; almost 8 years have been elapsed and also the petitioner is aged about 48 years as on today. Considering the nature of injury and also no material with regard to whether he took treatment as an inpatient and when he had already served the sentence for a period of three months and 23 days, this Court can enhance the fine amount instead of 10 Rs.5,000/- for an offence punishable under Section 326 of IPC, it is appropriate to enhance in-lieu of substantive sentence to Rs.30,000/- and given set off the sentence which he had already underwent. The sentence of two years also on higher side and the same not commensurate with the gravity of the offence. Hence, I answer point Nos.(i) and (ii) as 'negative' and point No.(iii) is 'partly affirmative'.
Point No.(iv & v):
11. In view of the discussions made above, I pass the following:
ORDER
(i) The revision petitions are allowed in part.
(ii) The impugned judgment and order of the Trial Court and the Appellate Court are modified giving set off of the sentence undergone for a period of three months and 23 days as substantive sentence.
(iii) The petitioner is directed to pay a fine of Rs.30,000/-. On deposit, out of that Rs.25,000/- is payable in favour of the 11 injured - P.W.1 and the remaining amount of Rs.5,000/- shall vest with the State. The said amount is payable within six weeks from today. In default of payment of fine amount within six weeks, he shall undergo sentence for a period of six months.
(iv) The Registry is directed to send the Trial Court records and the Appellant Court records, forthwith.
Sd/-
JUDGE cp*