Karnataka High Court
Sri Shanthegowda vs The State Of Karnataka on 17 December, 2018
Author: K.Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF DECEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL REVISION PETITION NO.130 OF 2011
BETWEEN:
1. SRI SHANTHEGOWDA,
S/O KARIGOWDA,
AGED ABOUT 39 YEARS.
2. SRI SIDDEGOWDA @ SIDDA,
S/O MANJEGOWDA,
AGED ABOUT 31 YEARS.
3. SRI HIRIYANNA @ HIRIGOWDA,
S/O HIRIGOWDA,
AGED ABOUT 60 YEARS.
4. SRI RANGEGOWDA @ RANGANNA,
S/O KARIGOWDA,
AGED ABOUT 49 YEARS.
ALL RESIDENTS OF
MATHIGHATTA HOSURU VILLAGE,
HALEBEEDU HOBLI,
BELUR TALUK,
HASSAN DISTRICT.
... PETITIONERS
(BY SRI C.R. GOPALASWAMY, ADVOCATE)
2
AND:
THE STATE OF KARNATAKA
BY HALEBEEDU POLICE,
REPTD: BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE.
... RESPONDENT
(BY SRI S. CHANDRASHEKHARAIAH, H.C.G.P.)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND
SENTENCE DATED 28.05.2008 PASSED BY THE JMFC.,
BELUR IN C.C.NO.339/2004 AND DATED 8.04.2010 PASSED
BY THE PRINCIPAL SESSION JUDGE, HASSAN IN
CRL.A.73/2008.
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Revision petition is preferred against the Judgment of conviction and sentence passed by the Civil Judge (Jr.Dn) and JMFC, Belur, in CC No.339/2004 convicting the petitioner for the offences punishable under Section 419, 114 r/w 34 of IPC and the same is 3 confirmed by the Prl. Sessions Judge, Hassan in Crl.Appeal No.73/2008 vide order dated 8.4.2010.
2. The ranking of the parties are referred as they have been referred to before the trial Court.
3. The factual matrix of the prosecution case is that on 27.11.2003, during the trial before the Magistrate in C.C.No.1026/2011, after the prosecution evidence and recording 313 Cr.P.C. statement, accused persons 2 to 4 brought accused No.1 to examine him as defence witness in the name of Subramanya, who also mentioned in the charge sheet as CW-3. The examination chief of the 1st accused-Shanthegowda was recorded by the Magistrate on 12.11.2003 in the name of Subramanya and cross-examination was deferred at the request of learned APP. On 29.11.2003 when the case was taken up for the purpose of cross 4 examination, the police constable No.743 of Halebedu and brother-in-law of the complainant -one Nanjegowda, who had informed the Court that the person who came to the Court in the name of Subramanya is not Subramanya but Shanthegowda. Accordingly, he was grilled and came to know that he is not Subramanya, but Shanthegowda. The learned Magistrate obtained affidavit of Nanjegowa and PCR came to be registered against the accused No.1 and also the accused Nos.2 to 4 and they were taken into custody. Later the case was referred to the PSI, Halebeedu and registered the case, later filed the charge sheet. Accordingly, charge sheet came to be filed. The accused pleaded not guilty and claimed to be tried and to prove the case, the prosecution examined six witnesses and marked 5 documents. After hearing the counsels, the learned Magistrate found first accused 5 was guilty for the offence under Section 419 of IPC and sentenced to undergo R.I. for 8 months and pay fine of Rs.1,000/-, in default, to undergo S.I. for a month and also respondents No.2 to 4 guilty of the offences under Section 114 r/w 419 and 34 of IPC and sentenced them to undergo R.I. for 8 months and pay fine of Rs.1000/- each, and in default, to undergo S.I. for a month. Being aggrieved by the same, petitioners preferred appeal before the District and Sessions Judge, Hassan in Crl.Appeal No.73/2008, wherein the learned Sessions Judge after hearing both sides, confirmed the Judgment and sentence passed by the trial Judge. Being aggrieved by the same, the petitioners are before this court.
4. The petitioners filed revision petition on various grounds. Counsel for the petitioners strenuously argued that said Shanthegowda might have 6 brought by the accused persons for the purpose of examining as another witness, but not Subramanya and Subramanya has already been examined as a witness in the court, who could not have been present on that day. Accused No.1 not at all entered the witness box and given any evidence and order sheet refers the examination chief was done by Subramanya but there was no proper reference in respect of this accused. The FIR shows, it is Nanjegowda, who is the complainant, but it is not the actual name of the complainant. The reference by the Magistrate itself is not correct. Magistrate directing the police to file charge sheet is unknown to law. The said Subramanya was not at all examined. APP who conducted the case was also not examined. Therefore, there is lot of discrepancies and hence pray for setting aside the convictions. 7
5. Per contra, learned Govt. Pleader contended that the offence committed by the accused while conducting the proceedings before the Court. The advocate who appeared for the accused retired from the case on the same day on the same ground. However, the Investigating Officer examined the Typist of the Court as a witness, who was present in the court on that day apart from the police constable and brother-in-law of the complainant one Nanjegowda. Therefore, contended that the impugned Judgments do not call for interference. Hence, prays for dismissal of the revision petition.
6. Heard the learned counsel for the parties and perused the records.
7. The LCR in 1026/2001 is also available before the Court which was called by the Court. The order 8 sheet dated 27.11.2003 shows that accused Nos. 1 to 3 in the said case was present and the learned Magistrate examined one defence witness in the name of Subramanya. The deposition dated 12.11.2003 also available on record. The cross examination was deferred at the request of APP and on 27.11.2003. Again the said witness came to the Court for the purpose of cross-examination. At that time, P.C.No.743 of Halebeedu police informed the Court that the person who came to the Court in the name of Subramanya, was not Subramanya, but Shanthegowda. Accordingly, he was caught and on enquiry, earlier he denied and later he admitted that he was Shanthegowda and not Subramanya. Learned Magistrate obtained affidavit from Nanjegowda, a case in PCR 97/2003 registered and taken the accused Nos. 1 to 4 to custody and referred the matter to the PSI for 9 filing charge sheet. Perusal of the order sheet clearly indicates that accused No.1 himself appeared before the Court and while on cross examination he was caught and came to know that he is not Subramanya even though the said Subramanya shown as CW-3 in the charge sheet in C.C.No.1026/2001. It is not the case where accused No.1 came for giving evidence on behalf of the accused as witness No.2, as an additional witness to the defence. The order sheet of the Magistrate while recording the case may be due to anxiety mentioned and directed the police to file the charge sheet, that itself cannot said to be a illegality committed by the Magistrate. It is only a minor irregularity, since the offence was committed in his presence and due to over anxiety he might have asked to the police to file charge sheet. The irregularity will not vitiate the trial, which can be cured under Section 10 464 of Cr.P.C. Therefore, the contention of the petitioners cannot be acceptable that accused No.1 came for the Court only for giving evidence as additional witness to the defence.
8. As regards other contention, the non- examination of Subramanya, the APP and advocate for the accused in C.C.No.1026/2001, not required since the prosecution already examined six witnesses. PW-1, Court police constable who has identified the accused; PW-2-Typist of the said Court, PW3 -Nanjegowda, the complainant, who filed the affidavit identifying the accused, PW4-Ananda, panch witness; PW5- Siddegowda, a circumstantial witness, who came to court on that day is also an eye witness; PW6- Rangashetty-Investigating Officer. The presence of PW-1 to PW-5 cannot be doubted as on the date of the incident. Apart from that, the incident occurred in the 11 presence of Magistrate while conducting trial in the regular course of duty as a Judge. The typist of the Court, Police constable, who witnessed the said case have clearly stated before the Court below and supported the prosecution case. There is nothing elicited in the cross-examination of these witnesses to disbelieve their evidence. Therefore, merely the court below not examining the APP or advocate for the petitioner, is not fatal to the case of the prosecution. If at all they have examined, they were only additional witness to the prosecution case. Therefore, I do not find any error or illegality committed by the learned trial Judge while finding guilty for the offences leveled against the accused when offence committed in the presence of Magistrate which is not required to be interfered with by this Court.
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9. The learned Sessions Judge while re-
appreciating the evidence in the appeal, discussed at length and recorded a conclusion that the accused have committed the offences and confirmed the Judgment and the sentence passed by the learned Magistrate which also not call for any interference by this Court.
10. At this stage, learned counsel for the petitioner contended that the accused persons have faced the trial and have undergone ordeal for fifteen years in litigation. They are poor farmers doing coolie work and hence, prayed for showing leniency to reduce the sentence taking into consideration the sentence already undergone by the accused.
11. Section 419 of IPC provides for imprisonment to an extent of three years or fine or both. Learned Magistrate has not given any proper explanation for imposing sentence of R.I for eight months and to a pay fine of Rs.1,000/-. 13 Learned counsel for the petitioner contended that the accused were in judicial custody for eight days and requested for set off the sentence under Section 428 of Cr.P.C.
12. Per contra, learned HCGP submitted that fine amount may be increased.
13. By looking to the facts and circumstances of the case, the accused have already undergone the ordeal of trial before the Court below and before this Court for more than 14 years and they are convicted by the Court. Learned counsel also submitted that the dispute arose between the accused and the complainant in respect of theft of sheep, who are farmers. On hearing the counsel this Court feels, that there is some substance in the arguments made by the learned counsel. However, the accused cannot be set free by the Court without punishment for the offences committed by the accused, while administering justice. It should not be set as a bad precedent to those who come to the Court to give false evidence. However, looking to the facts and 14 circumstances of the case, the judgment of conviction passed by the Court below are confirmed. However, I feel that it requires little modification in respect of the sentence. It would meet the ends of justice by imposing the period of sentence already undergone by the accused during the trial for a period of eight days if given as set off under Section 428 of Cr.P.C.. Therefore, the sentence imposed by the Trial Court is hereby modified and given set off under Section 428 of Cr.P.C. for the period already undergone by the accused. However, the accused are directed to pay a fine of Rs.5,000/- each, which shall be paid before the Court below within 15 days from the date of receipt of copy of this order, failing which, the same shall be recovered as per law.
Accordingly, the petition is disposed off. Registry is directed to forward a copy of this order to the trial Court.
SD/-
JUDGE ln.