Karnataka High Court
Mr Janu Poojary vs The State Of Karnataka on 17 January, 2024
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NC: 2024:KHC:2250
CRL.RP No.1321 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.1321 OF 2017
BETWEEN:
MR JANU POOJARY
AGED 51 YEARS,
S/O CHINNAYYA POOJARI,
R/O SHIVAGIRI NIVASA,
SAVYA VILLAGE,
BELTHANGADI TALUK, D.K-574214
...PETITIONER
(BY SRI. H MALATESH, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BELTHANGADI POLICE STATION,
REPRESENTED BY SPP,
Digitally signed by HIGH COURT OF KARNATAKA AT BENGALURU-01
SANDHYA S
Location: High ...RESPONDENT
Court of Karnataka
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE IMPUGNED JUDGMENT DATED 05.12.2017,
IN CRL.A.NO.270/2015, PASSED BY THE LEARNED PRINCIPAL
DISTRICT AND SESSIONS JUDGE INSOFAR AS CONFIRMING
THE ORDER OF CONVICTION FOR THE OFFENCE P/U/S 338 OF
IPC AND SECTION 30 OF THE INDIAN ARMS ACT, AND ALSO
SET ASIDE THE ORDER OF CONVICTION IN C.C.NO.410/2009
DATED 18.11.2015 PASSED BY THE ADDITIONAL CIVIL JUDGE
AND JMFC BELTHNGADI, D.K.; AND ETC.
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NC: 2024:KHC:2250
CRL.RP No.1321 of 2017
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner has preferred this revision petition against the judgment passed in respect of offence punishable under Section 338 Indian Penal Code and Section 30 of the Indian Arms Act, in criminal appeal No.270 of 2015 dated 05th December, 2017 on the file of the Principal Sessions Judge, Dakshina Kannada (for brevity, hereinafter referred to as the "trial Court")
2. For the sake of convenience, the parties in this revision petition are referred to as per their status and rank before the trial Court.
3. Facts in brief leading to this revision petition are that, on an allegation against the accused that on 17th January, 2009 at 10.00 pm, at Oppanada palke of Savya village, Belthangady Taluk, the accused holding his licensed country made gun, has illegally entered into the district forest with an intention of hunting a wild animal, has negligently fired his gun pointing a wild animal, which caused injury to the informant. Subsequently, the accused was apprehended with gun. The -3- NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 Investigating Officer has visited the spot, drew seizure mahazar and spot mahazar and Investigating Officer has recorded the witnesses and on completion of investigation, Investigating Officer has submitted the charge sheet against the accused for commission of offence punishable under Section 338 of Indian Penal Code and 25 and 30 of Indian Arms Act, 1959 and Section 24(J) read with Section 104 of Karnataka Forest Act, 1969. The trial court has taken cognizance and a case was registered in CC No.410 of 2009 and summons was issued. Upon issuance of summons, the accused appeared before the trial Court and enlarged on bail. The trial Court has framed charges for commission of offence punishable under Section 338 of Indian Penal Code, Section 25 and 30 of Indian Arms Act and Section 24(J) read with Section 104 of Karnataka Forest Act, 1969. The charge was read over and explained to the Accused and having understood the same, the accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, the prosecution has examined 11 witnesses as PWs1 to 11 and 14 documents were marked as Exhibits P1 to P14 and three material objects were marked as MOs1 to 3. On closure of prosecution side evidence, the statement of the -4- NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 accused under Section 313 of Code of Criminal Procedure was recorded and accused has totally denied all the incriminating evidence produced against him, but has not chosen to lead any defence evidence on his behalf. Having heard the arguments on both sides, the trial Court has convicted the accused for commission of offence punishable under Section 338 of Indian Penal Code and sentenced to pay fine of Rs.750/-, in default of payment of fine shall undergo simple imprisonment for a period of one month. Further, the accused was sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.500/- for the offence punishable under Section 30 of Indian Arms Act, in default of payment of fine, the accused shall undergo simple imprisonment for a period of one month. The accused was further sentenced to undergo simple imprisonment for a period of three months and to pay fine of Rs.500/- for the offence punishable under Section 25(J) read with Section 104 of Karnataka Forest Act, in default of payment of fine, he shall undergo simple imprisonment for a period of one month. Being aggrieved by this judgment of conviction and order of sentence passed by the trial Court, the accused preferred appeal before the learned Sessions Judge in Criminal -5- NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 Appeal No.270 of 2015 and by its order dated 05th December, 2017, the appeal came to be partly allowed and the judgment of conviction and sentence passed by trial Court was upheld. Insofar as the sentence in respect of Section 338 of Indian Penal Code and Section 30 of Indian Arms Act is concerned, the judgment of conviction for the offence punishable under Section 24(J) read with Section 104 of Karnataka Forest Act, was set aside. Being aggrieved by the judgment of conviction under Section 338 of Indian Penal Code and Section 30 of Indian Arms Act, the accused has preferred this revision Petition.
4. Sri H. Malatesh, learned counsel appearing for the revision petitioner, fairly submits that though he has taken several contentions in the revision petition, he would restrict his argument only to the extent of modification of sentence passed by the Appellate Court. He submits that at the time of alleged commission of offence, the age of the accused was 49 years and now the accused is aged 65 years and is suffering from age related ailments, the accused was not having any motive or intention to commit the alleged offence under Section 338 of Indian Penal Code and Section 30 of Arms Act. Further, -6- NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 the learned counsel submits that the accused has not been previously convicted for any other offence and the accused has already paid the fine amount before the trial Court. On all these grounds, the learned counsel seeks for modification of sentence passed in respect of offence punishable under Section 30 of Arms Act, 1959.
5. As against this, Sri Channappa Erappa, learned High Court Government Pleader submits that the appellate court has properly appreciate the evidence on record in accordance with law and facts and that there are no grounds to modify the sentence passed by the trial Court. Accordingly, he submits to dismiss the revision petition.
6. Having heard the learned counsel appearing for the parties, the following points would arise for my consideration in this revision petition:
1. Whether the revision petitioner has made out a ground for modification of sentence passed by the trial Court which is confirmed by the Appellate Court for offence punishable under Section 30 of the Indian Arms Act?-7-
NC: 2024:KHC:2250 CRL.RP No.1321 of 2017
2. What order?
7. My answer to the above points is as under:
Point No.1: in the affirmative;
Point No.2: as per final order Regarding Point No.1:
8. I have carefully examined the material placed before this Court. The trial Court while passing the order on sentence observed as under:
"ORDER ON SENTENCE Heard on sentence from the accused and learned counsel for accused and learned A.P.P. The advocate for accused has submitted that the accused is the only earning member of the family and no relatives are there and he is having wife and children. He has falsely implicated in this case. Hence, some leniency may be shown at the time of imposing sentence.
The offence proved against the accused under section 338 of IPC which is punishable with not less then 2 years or with fine of Rs. 1,000/-.
The offence proved against the accused under Section 30 of Indian Arms Act is punishable with -8- NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 imprisonment for a term which may extent 6 months or with fine which may extent to Rs. 2000/- or with both.
The offence proved against the accused under Section 24(J) r/w section 104 of Karnataka Forest Act is punishable with imprisonment for a term which may extend to one year or with fine which may extend to Rs.2000/-.
As per the advocate for the accused, the accused is the only bread earned of the family. Hence, prayed to show some lenience at the time of imposing sentence. It is pertinent to note that, from looking to the family back ground of the accused and as he is working as a collie, and also taking into consideration of the Probation of Offender's Act is not applicable to the present case on hand. Hence, looking to the age of the accused and also his family background some leniency has been shown to the accused. Hence, I proceed to pass the following-
ORDER The accused is hereby sentenced to pay a fine of Rs. 750/- for the offences punishable U/S.338 of IPC. & In default to pay fine, he shall undergo S. I for one month.
Further, the accused shall under go S.I for a period of three months and sentenced to pay fine of Rs.500/- for the offence punishable under Section 30 of Arms Act and in default to pay fine, he shall undergo S. I for one month.-9-
NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 Further the accused shall under go simple imprisonment for 3 months and sentence to pay fine of Rs.500/- for the offence punishable under Section 24(J) r/w sec 104 of Karnataka Forest Act.
In default to pay fine, He shall undergo S.I for a period of one month.
Supply free copy of the Judgment to the accused person.
Issue conviction warrant.
M.O.3 shall be send to District Armor, Mangalore after expiry of appeal period.
M.O.1 & 2 being worth less shall be destroyed after expiry of appeal period."
9. It is appropriate to mention here as to the portion of the order passed by the appellate court in Criminal Appeal No. 270 of 2015 which reads as under:
"ORDER This appeal filed by the appellant/accused under Section 374(3) of Code of Criminal Procedure Code, is hereby allowed in part.
The Judgment of conviction passed in C.C.No.410/2009 on the file of the Additional Civil Judge & JMFC, Belthangady, is upheld, so far as, the Judgment in respect of the offence punishable under
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NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 Section 338 of Indian Penal Code and Section 30 of the Indian Arms Act.
The Judgment for the offence punishable under Section 24(j) read with Section 104 of the Karnataka Forest Act is hereby set aside."
10. The trial Court has passed sentence to pay fine of Rs.750/- for the offence under section 338 of IPC. The alleged commission of offence under Section 30 of the Indian Arms Act, 1959, is punishable with imprisonment for a period which may extend up to six months or with fine which may extend to Rs.2,000/- or with both. But the trial Court has passed the order of sentence that the accused shall undergo simple imprisonment for a period of three months and sentenced to pay a fine of Rs.500/- for the offence punishable under Section 30 of the Indian Arms Act, 1959 and in default to pay fine, to undergo simple imprisonment for a period of one month. Considering the nature and gravity of offence, age of the revision petitioner, it is just and proper to modify the sentence only to the extent of payment of fine amount of Rs.500/-, as imposed by the trial Court. Hence, I answer the point No.1, partly in the affirmative.
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NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 Regarding Point No.2:
11. For the reasons stated above, I proceed to pass the following:
ORDER
1. Revision petition is partly allowed;
2. The judgment of conviction dated 18th November, 2015 passed in CC No.410 of 2019 by the Additional Civil Judge and JMFC, Belthangady, D.K., which is confirmed by the Principal Sessions Judge, Dakshina Kannada, Mangaluru in Criminal Appeal No.270 of 2015 dated 05th December, 2017 in respect of Section 338 of Indian Penal Code and Section 30 of Indian Arms Act, are confirmed;
3. The accused has already remitted the fine amount of Rs.750/- for commission of offence punishable under Section 338 of Indian Penal Code as per the order of the trial Court;
4. The accused shall pay a fine of Rs.500/- for the commission of offence punishable under Section 30 of the Indian Arms Act, 1959. Accordingly, the sentence passed by the trial Court against the accused for the commission of offence punishable
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NC: 2024:KHC:2250 CRL.RP No.1321 of 2017 under Section 30 of Indian Arms Act, 1959, is modified;
5. It is noticed that the accused has also remitted the fine amount.
6. Send the copy of the order along with trial Court record to the concerned court.
Sd/-
JUDGE LNN List No.: 1 Sl No.: 48