IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN CRIMINAL REVISION PETITION NO.372 OF 2011 BETWEEN:
1. CHANDAPPA @ CHANDRAPPA S/O. ERAPPA, AGED ABOUT 55 YEARS, AGRICULTURIST, RESIDENT OF HALE SIDDAPURA, BHADRAVATHI TALUK.
2. DHYANI @ GNANESHWARA S/O. SIDDAPPA, AGED ABOUT 41 YEARS, AGRICULTURIST, RESIDENT OF HOSA SIDDAPURA, BHADRAVATHI.
... PETITIONERS (BY SRI MAHESH R. UPPIN, ADVOCATE) AND:
INDRAPPA S/O. BANAPPA, AGED ABOUT 56 YEARS, RESIDENT OF OLD SIDDAPURA VILLAGE, BHADRAVATHI.
... RESPONDENT (SERVED AND UNREPRESENTED) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 8-3-2011 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT, BHADRAVATHI, IN CRIMINAL APPEAL NO.94 OF 2010, IN SO FAR AS CONVICTING THE PETITIONERS.
THIS CRIMINAL REVISION PETITION BEING RESERVED FOR ORDERS ON 14-12-2018 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
O R D E R The revision petition is filed by the petitioners under Section 397 of the Code of Criminal Procedure to set aside the judgment of conviction and sentence dated 1-9-2010 passed by the Principal Civil Judge (Junior Division) and Additional Judicial Magistrate First Class, (hereinafter referred to as ‘Magistrate’) Bhadravathi, in Criminal Case No.3085 of 2005 for the offences punishable under Sections 323, 506 and 392 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘the I.P.C.’). However, by the judgment dated 8-3-2011, the Presiding Officer, Fast Track Court, Bhadravathi, in Criminal Appeal No.94 of 2010, modified the judgment and sentence passed by the Magistrate, and convicted accused Nos.1 and 2 for the offence punishable under Section 379 of the I.P.C. and sentenced to undergo simple imprisonment for one month and to pay a fine of Rs.2,000/- each, in default of payment of fine, they shall undergo simple imprisonment for a period of fifteen days.
2. The ranks of the parties before the trial Court are retained for the sake of brevity.
3. The factual matrix of the case of the prosecution is that, the respondent filed a private complaint before the Principal Civil Judge and Judicial Magistrate First Class, Bhadravati, against the accused for the offences punishable under Sections 379, 506 and 511 read with Section 34 of the I.P.C. The complaint has been referred to the Police for investigation and the Police registered the F.I.R. against the accused. After completion of investigation, they filed ‘B’ Final Report. The complainant challenged the said report before the trial Court and after recording the statement of the complainant and another witness, the learned trial Judge issued process under Section 204 of the Code of Criminal Procedure for the offences punishable under Sections 323, 392 and 506 read with Section 34 of the I.P.C. The charges were framed, the accused pleaded not guilty and claimed for trial. The complainant examined himself as P.W.1 and another witness as P.W.2 and got marked one document. Statement has been recorded under Section 313 of the Code of Criminal Procedure for which the accused have denied incriminatory evidence appearing against them in the evidence, but they have not entered into any defence. After hearing the parties, the learned trial Judge found the guilt of the accused for the offences punishable under Section 323, 392 and 506 read with Section 34 of the I.P.C. Being aggrieved by the same, the accused preferred an appeal before the Fast Track Court, Bhadravathi, in Criminal Appeal No.94 of 2010. After hearing both side, the learned Sessions Judge partly allowed the appeal by setting aside the judgment of conviction and sentence for the offences punishable under Sections 323, 392 and 506 read with Section 34 of the I.P.C., but convicted the accused for the offence punishable under Section 379 of the I.P.C. and sentenced the accused, as stated above.
4. Learned counsel for the petitioners/accused contended during the course of the arguments that the lower Appellate Court has rightly considered that offences under Sections 323, 392 and 506 read with Section 34 are not attracted, but wrongly convicted the accused under Section 379 of the I.P.C. The lower Appellate Court has failed to consider that the complainant has not proved the fact that he was the owner of the fertilizer in question. The case was not proved beyond reasonable doubt. Therefore, both the Courts below erroneously appreciated the evidence and hence, he prayed for allowing the petition.
5. The respondent is served and unrepresented.
Since revision petition Court has power to verify the records of the Courts below to find out any irregularity or illegality committed in the judgment and sentence passed by the Courts below. Since the case being the oldest matter, it is taken up for disposal, as no prejudice would be caused to the respondent/complainant.
6. On perusal of the records which clearly shows that the respondent/complainant examined as P.W.1 and another witness as P.W.2 and marked only one document, i.e. a slip for having purchased the manure. The complainant has stated that he owned a bicycle for distribution of the milk to his customers. On 18-7-1995 at 7:00 a.m., accused Nos.1 and 2 forcibly took the fertilizer bag and bicycle from his custody. At that time, the accused have assaulted him. Though he went to the Police Station to lodge a complaint, but the Police did not entertain the complaint. Hence, he has filed a private complaint before the Magistrate. Mr. Ramanna, P.W.2, came to the spot to get milk and he is an eyewitness to the incident. In the cross- examination, the complainant has admitted that he owes some amount to the accused and in this connection, accused demanded the money, when the complainant was not able to pay, they took the bicycle and manure. The said evidence was appreciated by the Courts below. However, there is no document produced by the complainant for sustaining injury and has not examined the Doctor or produced any Medical Certificate for having treated for injury. There is no weapon used by the accused to attract Section 392 of the I.P.C. and also there is no proper evidence to show that accused threatened to do away with the life of the complainant. Therefore, the Magistrate erred in holding that the accused found guilty for the offences punishable under Sections 323, 392 and 506 read with Section 34 of the I.P.C. The learned Sessions Judge re- appreciated the evidence and rightly came to the conclusion that the offence made out is only under Section 379 of the I.P.C. When the accused were enforcing payment of debt from the complainant and when the complainant was not able to pay back, accused said to have taken bicycle and manure.
Therefore, the offence under Sections 392 and 323 of the I.P.C. is not attracted. Even otherwise, if the accused assaulted the complainant, there must be injury or Medical Certificate. No such Medical Certificate produced before the Court and as per the evidence of P.W.2, both of them quarreled. Therefore, the Sessions Judge rightly came to the conclusion that the offence under Section 379 of the I.P.C. is attracted. As per the ingredients of Section 378 of the I.P.C., any person takes the property of another person without consent, the offence would attract only 379 of the I.P.C. Therefore, there is nothing to interfere with the reasons for convicting the accused under Section 379 of the I.P.C. At this stage, learned counsel for the petitioner contended that the punishment prescribed under Section 379 of the I.P.C. is with fine or imprisonment for three years or with both. Therefore, he prays for imposing only fine amount, instead of imprisonment.
7. Looking to the provisions of Section 379 of the I.P.C., which does not mandate to impose minimum sentence of imprisonment. Therefore, considering the facts and circumstances of the case, the dispute arises between the accused and the complainant, when accused demanded the money from the complainant and when the complainant was not able to pay, the accused took the bicycle and manure.
8. Therefore, keeping in mind the background of the case, I feel it is just and proper to impose only a fine instead of imprisonment, which will meet the ends and justice.
9. Accordingly, the revision petition is partly allowed. The judgment of conviction dated 8-3-2011 passed by the Fast Track Court, Bhadravathi, in Criminal Appeal No.94 of 2010, is confirmed for the offence punishable under Section 379 of the I.P.C., but the sentence is modified that accused Nos.1 and 2 are ordered to pay a fine of Rs.5,000/- each (Rupees five thousand only) and in default of payment of fine, they shall undergo simple imprisonment for one month each. Accused Nos.1 and 2 are directed to deposit the fine amount within a period of four weeks from the date of receipt of a copy of this order. Out of the fine amount, Rs.5000/- (Rupees five thousand only) shall be paid to Mr. Indrappa, P.W.1, as compensation.
A copy of this order be sent to the Courts below along with the lower Court records.
SD/- JUDGE kvk