Karnataka High Court
Mohammed Siddique Shariff vs The State Of Karnataka on 18 November, 2021
Author: V. Srishananda
Bench: V. Srishananda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1137/2021
BETWEEN
MOHAMMED SIDDIQUE SHARIFF
S/O MOHAMMED RAFI
AGED ABOUT 33 YEARS
R/AT NO.81, NEW NO.131
BAZAR STREET, KTAR ROAD
NEELASANDRA
BANGALORE 560 047
...PETITIONER
(BY SRI A.S.KULKARNI, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY INDIRANAGAR POLICE STATION
BANGALORE -560 038
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE 560 001
...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND
2
ORDER ON SENTENCE DATED 21.03.2019 PASSED BY THE
X ADDL.C.M.M., MAYO HALL UNIT, BENGALURU IN
C.C.NO.53103/2016 AND THE JUDGMENT AND ORDER
DATED 14.07.2021 PASSED BY THE XXVI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, MAYO HALL,
BENGALURU IN CRL.A.NO.25106/2019.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Though this matter is listed for admission today, with the consent of both the parties, the matter is taken up for final disposal.
2. Heard Sri A.S.Kulkarni, learned counsel for the Revision Petitioner and learned High Court Government Pleader for the respondent -State and perused the records.
3. The Revision Petitioner was convicted for the offences punishable under Sections 353 and 332 of IPC in C.C.No.53103/2016 and ordered to undergo simple imprisonment for six months and one year for the aforesaid offences and six months for the offence punishable under Section 504 IPC, which was modified in 3 Criminal Appeal No.25106/2019 whereby the First Appellate Court modified the sentence of six months to one month simple imprisonment for the offence punishable under Section 353 IPC and from one year to six months for the offence punishable under Section 332 and acquitted the accused for the offence punishable under section 504 IPC. Being aggrieved by the same, the accused is in revision before this court.
4. Brief facts of the case are as under:
Upon a complaint lodged by Sri Ranganath, a traffic Head Constable, Indranagar Police Station, registered a case against the accused for the offences punishable under Sections 353, 332 and 504 IPC. The complaint averments reveals that on 04.01.2016 at about 10.40 a.m. at Old Madras Road, 80 feet Road Junction, Indranagar, when PW.1 being the Head Constable of the Indranagar Police Station was on duty near Vivekanandanagar Metro Station Signal junction, accused came from CMH Hospital Road on his two wheeler bearing No.KA-04-U-5155 and despite the 4 red signal, he stopped vehicle on zebra line crossing and PW.1 told the accused to take back the vehicle behind the zebra line and at that juncture, accused picked up a quarrel with PW.1 and abused him in filthy language and also ran the motorcycle over the legs of PW.1 whereby PW.1 sustained injury and people, who were surrounded nearby apprehended the accused and took him to the Indranagar Police Station. The complaint was duly investigated and charge sheet came to be filed against the accused for the aforesaid offences. The accused was summoned before the Trial Court and charge was framed. After understanding the contents of the charge, the accused pleaded not guilty and therefore, trial was held.
5. In order to prove the case of the prosecution, the prosecution in all examined 8 witnesses as PWs.1 to 8 and relied on the 9 documentary evidence which were exhibited and marked as Exs.P1 to 9. Accused statement as contemplated under Section 313 Cr.P.C. was recorded and thereafter, the arguments were heard. In the accused 5 statement, accused denied all the incriminatory circumstances. After hearing the parties in detail, learned Trial Magistrate came to the conclusion that prosecution is successful in establishing the charges leveled against the accused persons and sentenced the accused as aforesaid.
6. Being not satisfied with the order of the learned Magistrate, accused preferred an appeal before the First Appellate Court in Criminal Appeal No.25106/2019. Learned Judge in the First Appellate Court secured the records and after considering the oral and documentary evidence on record and in the light of the arguments advanced by the parties, upheld the conviction of the accused for the offences punishable under sections 353 and 332 of IPC and set aside the conviction order passed under Section 504 of IPC. Further, the sentence portion was also modified by the learned first Appellate Court from six months to one month simple imprisonment and one year to three months simple imprisonment for the offences punishable under Sections 353 and 332 IPC. Being not 6 satisfied with the same, the accused has preferred this Revision Petition.
7. Learned counsel for the Revision Petitioner Sri A.S.Kulkarni, contended that it is a mistake of fact that accused has instead of taking the vehicle back in the spur of moment used accelerator resulting in the incident which has been blown out of the proportion. He also contended that when accused was told by PW.1 to take back the vehicle, there was a scuffle in between PW.1 and accused but the same is not with an intention as the accused was in great tension at relevant point of time. He also contended that the accused being the first time offender, the Trial Court and First Appellate Court ought to have considered the grant of probation to the accused and sought for allowing the Revision Petition.
8. Per contra, learned High Court Government Pleader supported the impugned judgment and contended that when a person without respect to law, has picked up quarrel with PW.1 and thereafter wards ran over the 7 motorcycle on the legs of PW.1, no mercy can be shown by this Court to the accused and sought for dismissal of the Revision Petition.
9. In view of the rival contentions and having regard to the scope of the Revisional jurisdiction, the following points would arise for consideration:
"1. Whether the finding recorded by the learned Magistrate and modified by the first Appellate Court that the accused is guilty of the offences punishable under Sections 353, 332 IPC is suffering from legal infirmity or perversity and thus, calls for interference?
2. Whether the sentence is excessive?"
10. In the case on hand, the incident has taken place on 04.01.2016 at about 10.40 a.m. in broad day light in a traffic junction near Vivekananda Metro Station, Indranagar. The complaint averments, oral testimony and other materials on record reveals that while jumping the signal, stopped the motorcycle bearing No.KA-04-U-5155 on the zebra line traffic. PW.1 being the traffic Head 8 Constable, noticed that accused has parked his motorcycle on the zebra line, came to the spot and told him to take back the motorcycle behind the zebra line as the zebra line is meant for pedestrians to cross the Road. At that juncture, accused got enraged and picked up quarrel with PW.1 and not only abused him in filthy language but also ran over the motorcycle on his legs resulting in the injury caused to PW.1. The public, who were present near the junction, apprehended the accused and thereafter he was taken to the Police Station and a complaint came to be lodged by PW.1, which was duly investigated and ultimately charge sheet came to be filed. The material evidence has been rightly appreciated by the Trial Magistrate as there was no previous enmity or animosity between PW.1 and the accused. Therefore, the question of false implication of the accused was ruled out and material evidence on record did indicate that the accused committed the offences punishable under Sections 353 and 332 of IPC. Therefore, the Trial Magistrate rightly 9 convicted the accused for the offences punishable under Sections 353, 332 and 504 IPC.
11. However, learned judge in the first Appellate Court on appeal by the accused, modified the conviction order and the sentence by appreciating the grounds urged on behalf of the Revision Petitioner whereby the accused was acquitted for the offence punishable under Section 504 IPC and imprisonment period ordered by Trial Magistrate for a period of six months and one year for the offences punishable under sections 353 and 332 IPC was modified as one month and three months respectively.
12. The learned Trial Judge as well as the learned Judge in the first Appellate Court have rightly appreciated the materials on record and therefore, recorded the finding that the accused is guilty of the offences punishable under Sections 353 and 332 IPC. This Court on re-appreciation of the entire materials on record, does not find any legal infirmity of whatsoever on the contrary both the judgments are based on sound and logical reasons. Under 10 such circumstances, point No.1 is answered in the negative.
13. Insofar as the sentence is concerned, it is crystal clear that the accused is a first time offender and there is no materials on record to show that he was having criminal antecedents.
14. As rightly contended by the learned counsel for the Revision Petitioner, in such circumstances, Trial Magistrate ought to have taken note of the said aspect of the matter and granted the benefit of probation as is contained in Probation of Offenders Act.
15. It is settled principle of law and requires no emphasis that while passing an order of conviction the role to be adopted by the Trial Judge is something different than the role to be played by the Trial Magistrate while awarding sentence. Whenever a Court proceeds to sentence a person who is a first time offender, it is mandatory duty of the learned Magistrate to consider the 11 grant of probation. In the case on hand, such a procedure is not adopted by the learned Trial Magistrate and ignored by the learned Judge in the first Appellate Court.
16. Since there is no criminal antecedents against the Revision Petitioner, this Court is of the considered opinion that the Revision Petitioner is entitled for grant of probation. However, it is also seen from the judgment of the Trial Magistrate and learned judge in the first Appellate Court, no compensation is also awarded to PW.1 by Court out of the fine amount. Under such circumstance, awarding fine of Rs.10,000/- each for the offences punishable under Sections 353 and 332 of IPC and directing the accused executing bond in a sum of Rs.50,000/- with one surety which shall be in force for the period of two years for his good behavior would not only meet the ends of justice but also serve the purpose of passing an appropriate sentence in the facts and circumstance of the present case. Accordingly, point No.2 is answered and following order is passed:
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ORDER
1. Criminal Revision Petition is allowed-in-part.
2. While maintaining the order of conviction of the accused for the offences punishable under Sections 353 and 332 of IPC, accused is directed to execute a bond in a sum of Rs.50,000/- with one surety for the likesum to the satisfaction of the Trial Court, which shall be in force for a period of two years for his good behavior and also to pay fine of Rs.10,000/- each for the offences punishable under Sections 353 and 332 of IPC, with default sentence of six months simple imprisonment.
3. Time is granted for the accused/Revision Petitioner to pay fine and execute a bond till 20.12.2021.
4. It is made clear that any violation of the bond conditions or payment of fine would result in forfeiture of bond and the order passed by the first Appellate Court would automatically restored.
5. Out of the fine amount recovered, a sum of Rs.15,000/- is ordered to be paid as compensation to PW.1 under proper identification.13
Office to return the trial Court records with a copy of this order forthwith.
Sd/-
JUDGE KA*