Partly allowed

M C Narayana Swamy v. State of Karnataka

Karnataka HC20 Jul 2021CRL.RP/395/2012

Case brief

AI extract

What is this about?

The High Court allowed the revision petition partly. While upholding the conviction of the petitioners for assault causing hurt, the Court observed that the lower courts erred by not granting probation to the first accused, who had no prior record. The petitioners were directed to execute a bond.

What did the court decide?

Conviction maintained; Accused No.1 directed to execute a bond of Rs. 20,000 with a surety for two years. Breach will result in imprisonment.

M C Narayana Swamy Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JULY, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL REVISION PETITION NO.395/2012

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BETWEEN

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1 . M C NARAYANA SWAMY S/O LATE MASTIGOWDA AGED ABOUT 58 YEARS R/AT NO. 53, 7^TH CROSS, 6^TH BLOCK, II STAGE, NAGARBHAVI BANGALORE- 72

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2 . C V NAVEEN S/O M C VIJENDRA AGED ABOUT 23 YEARS CHITTANAHALLI VILLAGE GEJJAGARGUPPE POST MALBAL HOBLI, MAGADI TALUK RAMANAGARA DISTRICT.

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...PETITIONERS

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(BY MS.RAKSHA KEERTHANA.K, FOR SRI KEMPARAJU, ADVOCATES)

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AND

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STATE OF KARNATAKA BY JAYANAGARA POLICE STATION BANGALORE REPRESENTED BY ITS PUBLIC PROSECUTOR (BY SRI SHOWRI.H.R, HCGP)

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…RESPONDENT

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THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY PRAYING TO SET ASIDE THE ORDER DATED:9.3.11 IN C.C.NO.18250/06 ON THE FILE OF THE 2^ND ACMM, BANGALORE AND CONFIRM THE ORDER DATED:13.3.12 IN CRL.APPEAL NO.219/11 PASSED BY THE PRESIDING OFFICER, FTC-VIII, BANGALORE.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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This Revision Petition is by the accused persons in CC No.18250/2006, whereby, the accused No.1 was convicted for the offence punishable under Section 324 of IPC and ordered to undergo simple imprisonment for a period of six months and fine of Rs.2,000/- with a default sentence of two months simple imprisonment; and accused No.2 was convicted for the offence punishable under Section 323 of IPC and ordered to pay fine of Rs.2,000/- with default sentence of two months simple imprisonment, which was confirmed in Criminal Appeal No.219/2011 by judgment dated 13.3.2012 on the file of the Fast Track VIII, Bengaluru City.

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Brief facts which are necessary for disposal of

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the Revision Petition are as under:

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It is contended in the complaint that on 7.4.2006 at about 3.30 p.m., when the complainant was in his house No.8, 11th Main Road, 4th Block, Jayanagar, Bengaluru, both the accused persons with a common intention came to the complainant and picked up quarrel with him and assaulted him with their hands, legs and kicked him and accused No.1 assaulted him with a wooden repiece on his head and caused bleeding injuries. Based on the complaint, jurisdictional police registered a case against the accused persons in Crime No.115/2006 and after thorough investigation, filed charge sheet against the accused for the aforesaid offences.

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On receipt of the charge sheet, learned Magistrate took cognizance of the offences and recorded the plea.

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Accused persons pleaded not guilty and trial was held.

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In order to prove the case of the prosecution, prosecution proceeded to examine in all five witnesses as PWs.1 to 5 and relied on the documentary evidence which were exhibited and marked as Exs.P1 to P4 and also two material objects as MOs.1 & 2.

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On behalf of the defence, a complaint said to have been given by the mother of the accused against the complainant is marked as Ex.D1. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313 of Cr.PC., was recorded wherein the accused persons denied all the incriminatory circumstances. Thereafter, the learned Magistrate after hearing the arguments in detail convicted the accused No.1 for the offence punishable under Section 324 of IPC and accused No.2 for the offence punishable under Section 323 of IPC and sentenced them as aforesaid.

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Being aggrieved by the said judgment and

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order of conviction, accused persons preferred an appeal

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before the Fast Track No.VIII, Bengaluru City, in Criminal Appeal No.219/2011.

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The learned Judge in the first appellate court after securing the records and hearing the arguments in detail confirmed the judgment and order of conviction passed by the learned Magistrate.

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The learned counsel for the Revision Petitioner Kum.Raksha Keerthana, vehemently contended that both the courts have wrongly convicted the accused persons on the basis of surmises and conjunctures. She further contended that the materials on record is hardly sufficient to record an order of conviction against the accused persons. She further contended that the prosecution evidence has not been properly considered by the learned Magistrate and not properly re-appreciated by the first appellate court.

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She further contended that the learned Magistrate without taking note of the contents of Ex.D1 wherein it has been clearly mentioned that the

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complainant was harassing the mother of Accused No.1 by obstructing free movement and also creating nuisance. She further contended that mother of the first accused was residing in the first floor and complainant was residing in the ground floor and the father of the accused and the complainant had left a Will and in that regard, there is a civil suit pending between the parties and based on the said rivalry and in order to take an upper hand in the pending civil proceedings, a false case came to be filed by the complainant in order to coerce the accused persons to agree for the unlawful demand made by the complainant, which has been totally ignored by the learned Magistrate while recording an order of conviction.

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She further contended that accused No.1 is now aged 68 years and at the time of incident, he was aged 51 years and the Trial Court ought to have taken note of the absence of criminal antecedents and should have granted probation for the first accused and without granting probation, straight away convicting the accused

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and ordering imprisonment for a period of six months for the offence punishable under Section 324 IPC is thus illegal and prayed for allowing the appeal.

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Per contra, Sri H.R. Showri, learned High Court Government Pleader supported the impugned judgment and vehemently contended that the materials available on record is sufficient enough to establish all the ingredients to attract the offence under Section 323 and 324 of IPC. He also contended that the pendency of the civil proceedings in fact is the motive for the accused persons to assault the complainant with MO-1 wooden repiece resulting in blood injuries which is evident from MO-2 blood stained shirt worn by the complainant.

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He also argued that the searching cross examination on behalf of the defence has been withstood by PW-1, who is the injured eye-witness and therefore, the trial Magistrate believing the oral testimony coupled with the wound certificate marked at Ex.P3 is sufficient enough to establish the prosecution case beyond reasonable doubt

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and therefore, the learned Magistrate was justified in recording an order of conviction against the accused persons and so also the first appellate court has rightly reappreciated the materials on record and came to the conclusion that the accused have not made out any good grounds for interference and therefore, sought for dismissal of the Revision Petition.

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Having heard the arguments, following points would arise for consideration:

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(i) Whether the finding recorded by the learned Magistrate convicting the accused No.1 for the offence punishable under Section 324 IPC; and accused No.2 for the offence punishable under Section 323 IPC; is suffering from legal infirmity, patent defect or error of jurisdiction, and thus calls for interference?

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(ii) Whether the sentence passed by the learned Magistrate confirmed by the first appellate court is excessive?

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In the case on hand, in order to prove the case of the prosecution, Sri Chandrashekar, who is the

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complainant and the injured witness is examined as PW-1. He deposed before the court reiterating the complaint averments and has given an account of the incident with graphic details. He has withstood the searching cross examination on behalf of the accused and defence is unable to elicit any material so as to discredit his evidence.

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PW-2 is the witness to the spot Mahazar and he has also supported the case of the prosecution.

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PW-3 is the PSI, who has conducted the part investigation and supported the case of the prosecution.

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PW-4 is the doctor who issued the wound certificate Ex.P3 after examining the injured PW-1.

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PW-5 is the ASI who registered the case and conducted part of the investigation and handed over further investigation to PW-3 PSI and supported the case of the prosecution.

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The oral testimony of PW-1 is corroborated by the wound certificate marked at Ex.P-3. Testimony of PW-

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1 clearly establishes that on the day of incident, accused persons came to the complainant and picked up quarrel and abused him and thereafter, assaulted him with hands, legs and kicked him and assaulted him with MO-1 wooden repiece so as to cause blood injury and there is no much delay in lodging the complaint. The pendency of the civil proceedings though is a reason to be taken note of but the same would not give licence for the accused persons to assault his own brother. The alternative theory i.e., put forth by the accused stating that the complainant himself is a quarrelsome nature and was obstructing the very movement of mother to reach first floor and therefore, the mother has lodged a complaint against the complainant vide Ex.D-1 is not taken note of by the learned Magistrate is concerned, it is pertinent to note that there is no action that was initiated by the police in pursuance of the lodging of the complaint and admittedly, there is no material on record to show that the complainant was quarrelsome.

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Even if the contents of Ex.D-1 is true, it would not give any licence for Accused No.1 and Accused No.2 to

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physically assault the complainant and they should have taken necessary recourse to law. Under such circumstances, the learned Magistrate believing the prosecution version, convicted the accused persons as aforesaid.

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The learned Judge in the first appellate court re-appreciated the entire materials on record and came to the conclusion that the accused have not made out any good grounds to interfere with the well reasoned order of the learned Magistrate.

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In view of the foregoing discussion this court is unable to get persuaded by the submissions made on behalf of the Revision Petitioners. Accordingly, point No.1 is answered in Negative.

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POINT NO.2 : From the materials available on record, especially the impugned judgment and on careful perusal of the same, it is noticed that the learned Magistrate after recording an order of conviction did not grant probation as contemplated under the provisions of

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the Probation of Offenders Act to first accused. There is no discussion of whatsoever in the impugned judgment as to why probation was not granted to the accused especially in the absence of any criminal antecedents, the learned Judge in the first appellate court also unfortunately did not notice the grant of probation to the appellants therein.

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Grand of probation is mandatory duty of every Judge who records an order of conviction. In the case on hand, since both the courts have failed to consider grant of probation to accused No.1, there is error apparent on record in sentencing accused No.1 at once.

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Therefore, this court is of the considered opinion that Point No.2 needs to be answered partly in Affirmative and answered accordingly.

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In view of the foregoing discussions, following order is passed:

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ORDER

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(i) The Revision Petition is allowed in part.

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(ii) While maintaining conviction against Accused No.1 for the offence punishable under Section 324 IPC and accused No.2 for the offence punishable under Section 323 of IPC; the accused No.1 is directed to execute a bond in a sum of Rs.20,000/- for his good behavior with one surety for the likesum, which shall be in force for a period of two years, to the satisfaction of the learned Magistrate within a period of four weeks.

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(iii) If there is any breach of condition, accused No.1 is directed to undergo simple imprisonment as ordered by the Trial Court.

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(iv) Rest of the impugned judgment stands unaltered.

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Sd/-

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JUDGE

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PL*

M C Narayana Swamy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

M C Narayana Swamy v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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