Karnataka High Court
Sri Singe Gowda vs State Of Karnataka on 8 October, 2020
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8th DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION No.488 of 2011
C/W
CRIMINAL REVISION PETITION No.489 of 2011
IN CRL.RP.No.488/2011
BETWEEN
SRI SINGE GOWDA
S/O SRI NINGE GOWDA,
AGED ABOUT 46 YEARS,
RESIDING AT GUNDATHUR VILLAGE,
H.D. KOTE TALUK,
MYSORE DISTRICT.
...PETITIONER
(BY SRI R.CHANDRASHEKAR &
SRI K.N.MOHAN, ADVOCATES)
AND
STATE OF KARNATAKA
BY BEECHANAHALLI POLICE STATION,
H.D. KOTE TALUK,
MYSORE DISTRICT.
...RESPONDENT
(SRI V.M.SHEELAVANT, SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE
THE ORDER DATED 01.02.2011 PASSED BY THE III
ADDITIONAL AND SESSIONS JUDGE, MYSORE IN CRL.A.No.69
OF 2010 AND CONFIRMING THE ORDER DATED 27.05.2010
PASSED BY THE JMFC, H.D.KOTE IN C.C.NO.325 OF 2007.
2
IN CRL.RP.No.489/2011
BETWEEN
SRI SINGE GOWDA
S/O SRI NINGE GOWDA,
AGED ABOUT 46 YEARS,
RESIDING AT GUNDATHUR VILLAGE,
H.D. KOTE TALUK,
MYSORE DISTRICT.
...PETITIONER
(BY SRI R.CHANDRASHEKAR AND
SRI K.N.MOHAN, ADVOCATES)
AND
STATE OF KARNATAKA
BY BEECHANAHALLI POLICE STATION,
H.D. KOTE TALUK,
MYSORE DISTRICT.
...RESPONDENT
(SRI V.M. SHEELAVANT, SPP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE
THE ORDER DATED 27.05.2010 PASSED BY THE JMFC,
H.D.KOTE IN C.C.No.325 OF 2007.
THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD & RESERVED FOR ORDERS ON 01.10.2020 AND COMING
ON FOR PRONOUNCEMENT through VIDEO CONFERNCING, THIS
DAY THE COURT PRONOUNCED THE FOLLOWING:
ORDER
Both these Revision Petitions are filed by the same petitioner/accused being aggrieved by the judgment of conviction and order of sentence passed by the III Additional Sessions Judge, Mysore, (for short 'First 3 Appellate Court') in Crl.A.Nos.69/2010 and 103/2010 dated 01.02.2011 arising out of the judgment passed by the JMFC, H.D.Kote (for short 'Trial Court') in CC.No.325/2007 dated 27.05.2010.
2. The status of the parties before the trial Court is retained for the sake of convenience.
3. Heard the arguments of learned counsel for the petitioner and learned State Public Prosecutor for the respondent-State.
4. The case of the prosecution is that on the complaint of PW.1-Nagaraju, Beechanahalli Police Station registered the case against the accused and filed the charge sheet against him for the offences punishable under Sections 323, 324 and 435 of IPC. It is alleged in the complaint that on 02.04.2007, at 11.00 p.m., when the complainant Nagaraju was near the arrack shop, the accused insisted the complaint to bring arrack from the shop. For that the complainant told the accused that arrack is not available at 4 that time. Therefore, the accused assaulted the complainant with a stone and caused injuries also kicked the complainant. The dispute was pacified by PW.4-Sanneswamy. Thereafter, the complainant came and stayed in his house along with his mother. At about 2.00 O' Clock in the early morning, the accused came near the house of the complainant and knocked the door. When the complainant refused to open, the accused set fire on the livestock kept in the backyard of the house of the complainant thereby, the accused caused loss and committed offences punishable under Sections 323, 324 and 435 of IPC. After taking cognizance, the learned Magistrate framed the charges. The accused denied the charges and claimed to be tried.
The prosecution, in all examined 11 witnesses as per PWs.1 to 11, got marked 9 documents as per Ex.P.1 to P.9 and two material objects as per M.Os.1 and 2. After conclusion of the evidence, the Trial Court recorded the statement of the accused under Section 313 of Cr.P.C. and convicted the accused for the offence punishable under 5 Section 435 of IPC and acquitted the accused for the offences punishable under Sections 323 and 324 of IPC. Assailing the conviction under Section 435 of IPC, the accused preferred Crl.A.No.69/2010 and against the acquittal of the accused for the offences punishable under Sections 323 and 324 of IPC, the State preferred Crl.A.No.103/2010. Both the appeals were heard together by the First Appellate Court. The appeal filed by the accused against conviction under Section 435 of IPC came to be dismissed and the appeal filed by the State came to be allowed by convicting the accused for the offence punishable under Section 324 of IPC by imposing fine of Rs.1,000/-, in default to undergo three months imprisonment. Being aggrieved by the judgments in both the appeal, the accused is before this Court.
5. Learned counsel for the petitioner/accused strenuously contented that the judgments of both the Court are not sustainable in respect of finding the accused guilty of the offence. Though, the prosecution examined 6 number of witnesses, all the witnesses have turned hostile and not supported the case of the prosecution except PW.1-complainant and PW.2-mother of PW.1, who are the interested witnesses. Another eyewitness who pacified the quarrel also turned hostile. PWs.5 and 6 also turned hostile. As per the evidence of PW.1, the accused came in the night and knocked the door of his house. When he refused to open, the accused set fire on the livestock in the backyard of his house. But they have not seen the accused at the time of setting fire. The evidence of PW.2, the mother of PW.1, goes to show that somebody knocked the door and thereafter, it was found that there was fire on the livestock kept in the backyard of their house. Learned counsel contented that as per the evidence of PW.2, there was fencing around the house. In order to reach the backyard, one has to go through the house but the house was locked from inside by PWs.1 and 2. Such being the case, the question of accused going behind the house and setting fire on the livestock kept in backyard is not possible. This aspect has not been considered by the Trial 7 Court as well as the First Appellate Court. He further contented that the injuries are simple in nature and as per the evidence of the doctor, the said injuries can be caused due to falling. Therefore, the accused is entitled for acquittal. Though, the Trial Court rightly acquitted the accused for the offences punishable under Sections 323 and 324 of IPC, but wrongly convicted the accused for the offence punishable under Section 435 of IPC and the First Appellate Court committed error in convicting the accused. Hence, he prayed for setting aside of the same.
6. Per contra, learned State Public Prosecutor supported the judgment of the First Appellate Court for having convicted the accused for the offences punishable under Sections 324 and 435 of IPC and contended that the evidence of the doctor clearly corroborates with the evidence of PW.1 and Ex.P.7-wound certificate in respect of proving the assault made by the accused on PW.1 on the said date i.e on 02.04.2007, at 11.00 p.m. Though the eyewitness turned hostile, but that itself is not a ground to 8 reject the evidence of the injured eyewitness as he has categorically stated that the accused assaulted him when he replied that no arrack is available at that time. The evidence of PW.1 corroborates with the evidence of the doctor and the eyewitness in order to prove the assault made by the accused on the complainant. The name of the accused is also found in Ex.P.7-wound certificate. He further contended that the evidence of PWs.1 and 2 corroborates with each other in respect of quarrel between the accused and the complainant and setting fire on the livestock kept in the backyard of the house. Therefore, he prayed for dismissal of both the criminal revision petitions.
7. Upon hearing the arguments and on perusal of the record and the evidence, it goes to show that PW.1 is the complainant. He has supported the prosecution case in respect of the complaint given to the Police as per Ex.P.1. PW.2 is the mother of PW.1. She has also supported the evidence of PW.1. PW.7, who is the brother of PW.1, is not an eyewitness to any of the incident, but he came to 9 know about the incident and he has also turned hostile. All other witnesses have turned hostile and not supported the case including all panch witnesses. PW.4, who is the eyewitness to the incident when the accused assaulted the complainant at 11.00 p.m. on 02.04.2007, has turned hostile and not supported the case of the prosecution. Therefore, PW.1-complainant is the only witness available to the prosecution in respect of the assault by the accused at 11.00 p.m. in front of the arrack shop. PW.1 has categorically stated in his evidence that when he was proceeding in front of Mustafa Shop, the accused came near and asked him to bring arrack packet, for that PW.1 replied that it is not available. At that time, the accused took a stone and assaulted him on the shoulder and caused injures. He also stated that the accused also kicked him and caused simple injures. However, PW.1 did not lodge any complaint against the accused immediately after the incident, PW.4 pacified the quarrel. The evidence of PW.1 in respect of the sustaining injuries has been corroborated by the evidence of PW.8-doctor and Ex.P.7- 10 wound certificate. The doctor found two injuries on his back, one on his left side shoulder joint and tenderness over right forehead, but that was simple in nature. The evidence of PW.8-doctor also shows that he has given treatment to PW.1 and even in Ex.P.7, he has mentioned the assault made by the accused. Except the suggestion that when a person falls on a rough surface in a drunken state such injuries may be caused, but it is not on the record that PW.1 was in a drunken state when he was taken to the hospital and PW.1 has not lodged any complaint immediately after the incident. He has lodged the complaint only after setting fire on the livestock kept in the backyard of his house. Therefore, the assault on PW.1 by the accused cannot be doubted. The injuries found on PW.1 are fully corroborated by the evidence of PW.8 and Ex.P.7-wound certificate. It was also corroborated by the evidence of the Investigating Officer. Therefore, the prosecution is successful in proving the assault on PW.1 by the accused on 2.4.2007. Therefore, the Trial Court committed wrong in acquitting the accused for the offence 11 punishable under Section 324 of IPC, but the First Appellate Court has rightly held that there is evidence and the evidence of PW.1 cannot be disbelieved without any reason.
8. However, in respect of Section 435 of IPC, setting fire and causing mischief or loss, the prosecution has relied upon the evidence of PWs.1 and 2. Though PW.1 has stated that at 2 O'clock, the accused came and knocked the door of his house and thereafter, the accused set fire on the livestock in the backyard of the house, but the evidence of PW.2 who was also present in the same house has stated that somebody knocked the door and they did not open the door. Later, there was fire on the livestock in the backyard of the house and one person was running away from the place. But there is no categorical evidence to show that the accused himself came to the house and set fire. That apart, the evidence of PW.2 goes to show that in order to go to the backyard of the house, they have to go through the house and then reach the backyard. 12 This clearly goes to show that in order to go to the backyard of the house of the PW.1, one has to go through the house but not otherwise. Therefore, the accused going to the backyard through the house when the door was not opened is not possible. That apart, if the accused wanted to set fire on the livestock in the backyard of the house of the accused and cause mischief or damage to the livestock, he could have straightaway went into the house to reach the backyard of the house and set fire and the question of knocking the door and asking PW.1 to open the door at 2 O'clock in the night, thereafter setting fire does not arise. The suggestion was made by PWs.1 and 2 that the complainant tried to marry the daughter of the accused and the accused refused as such there was enmity between them and taking advantage of the same, the accused assaulted PW.1. In view of the enmity there is every possibility of presuming that the accused might have caused fire is not ruled out. Therefore, the evidence of PWs.1 and 2 in respect of the accused causing loss by setting fire to the livestock in the backyard of the house of 13 PW.1 is not acceptable and it was not proved beyond reasonable doubt. There is every chance of fire being caused by somebody else, as admitted by PW.1 that he used to smoke beedi. Therefore, the benefit of doubt shall have to be extended to the accused in respect of causing fire or mischief in order to punish him under Section 435 of IPC. However, there is material evidence placed on record to punish the accused under Section 324 of IPC. Therefore, the judgment of conviction and sentence passed by the Trial Court and upheld by the First Appellate Court for the offence under Section 435 of IPC requires to be set aside and the accused is entitled for acquittal.
9. As regards the finding of guilt in respect Section 324 of IPC by the First Appellate Court required to be upheld. However, the First Appellate Court imposed fine of Rs.1,000/- for the offence punishable under Section 324 of IPC though the charges were framed for the offence under Section 323 and 324 of IPC. The offence under Section 324 of IPC is a major offence punishable with three years 14 of imprisonment or fine or with both. Such being the case, imposing of Rs.1,000/- as fine is not correct. Though there was no appeal by the State against the lesser punishment or for enhancement of sentence, however, this Court being the revisional Court is having power to call for the records to verify the correctness of the findings and sentence passed by the Court inferior to this Court under Section 397 of Cr.P.C. Therefore, though the accused was found guilty for the offence under Section 324 of IPC, the punishment imposed by the First Appellate Court to pay a fine of Rs.1,000/- is meager which is required to be enhanced to Rs.5,000/- in order to mould the relief and to meet the ends of justice. Accordingly, I pass the following order:
Criminal Revision Petition No.488/2011 is allowed. The conviction and sentence passed by the Trial Court in CC No.325/2007 and upheld by the First Appellate Court is hereby set aside. The petitioner is acquitted for the offence under Section 435 of IPC.15
Criminal Revision Petition No.489/2011 is dismissed. However, the sentence is modified and the accused is directed to pay a fine of Rs.5,000/- for the offence under Section 324 of IPC in default, to undergo three months' simple imprisonment. The fine amount shall be paid to PW.1 as compensation under Section 357(3) of Cr.P.C.
Accordingly, both the criminal revision petitions are disposed of.
Office to send a copy of this order to the Trial court along with the records to collect the fine amount from the accused/petitioner.
Sd/-
JUDGE mv