Honnuraswamy Vs the State of Karnataka

THIS CRL.A IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT, ORDER OF CONVICTION AND SENTENCE DATED 25/8/2012 PASSED BY THE PRL. DIST. & SESSIONS JUDGE, CHITRADURGA IN S.C. No.99/2011 - CONVICTING THE APPELLANTS/ ACCUSED Nos.1 TO 6 FOR THE OFFENCES P/U/S.144, 148, 452, 324, 354 R/W.149 OF IPC.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V. SRISHANANDA

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ORAL JUDGMENT

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Heard the learned counsel Sri. A.C. Balaraj appearing for appellants No.3 to 6 and Smt. B.M. Sumithra, learned counsel for appellant No.2 and the learned High Court Government Pleader.

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Appellants are the convicts in S.C. No.99/2011

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on the file of the Principal District and Sessions Judge, Chitradurga for the offences punishable under Sections 144, 148, 324, 452, 354 read with Section 149 of the Indian Penal Code and sentenced as under :

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The facts in brief which are utmost necessary for disposal of the case are as under :

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Monakalmuru Police received a complaint that one Nallaseena supplied clothes to appellant No.1 Honnura Swamy (Accused No.1) for stitching and advanced a sum

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of Rs.8,000/-. As per the understanding, the stitched clothes were required to be returned with time bound manner as 1^st accused has undertaken the job of work of stitching the clothes. A girl by name Yaseena who is a relative of the complainant was stitching the clothes at the place where the 1^st accused was carrying out job of tailoring work and she had kept her own sewing machine at the tailoring shop run by accused No.1. There was a breach of terms of the contract between Nallaseena and the 1^st accused. Therefore, Nallaseena demanded return of the clothes and advance money.

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When the said demand was not met, Nallaseena visited the house of the 1^st accused and demanded return of the clothes as well as the advance money. He also complained to the wife of the 1^st accused Bhagyamma about the said aspect of the matter. When the demand of Nallaseena was not met with, the sewing machines installed in the tailoring centre were taken away by

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Nallaseena which included the sewing machine owned by the relative of the complainant Ms. Yaseena.

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Yaseena reported the incident to her relative Sri. Khaja Hussain and told him to enquire the 1^st accused about Nallaseena taking away the sewing machine belonging to Yaseena.

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Complainant met the 1^st accused two three times and 2^nd accused telephoned to the son of the complainant on 02.12.2010 at about 2.30 p.m., and threatened to take away the life if there is further pressure on accused No.1 with regard to the loss of sewing machine belonging to Yaseena.

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Same day at about 7.30 p.m., when

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complainant, his wife and children were watching the television in their house, in pursuance of the telephone call and previous demands, all the accused persons trespassed into the house and dragged them out of their house and

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started assaulting indiscriminately with hands, clubs and stones.

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During the course of said brawl, daughter of the complainant namely Umme Salma was also assaulted and clothes worn by were torn of, resulting in a grave insult to her. She got humiliated being unable to bear such a insult. As such she went inside the house poured kerosene on her and got herself immolated. She was shifted to the medical care. Despite best treatment, she did not survive. A complaint came to be registered by Monakalmuru Police in this regard. Based on the complaint, a crime came to be registered by Police for the offence punishable under Sections 144, 323, 324, 354, 306, 506 read with Section 149 of Indian Penal Code. After thorough investigation, police filed the charge sheet against appellants herein.

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Learned Trial Magistrate Magistrate took cognizance of the aforesaid offence and remmitted the matter to the Sessions Court for trial. Learned Sessions

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Judge secured the presence of the appellants herein and after compliance of Section 207 of the Code of Criminal Procedure, framed the charges for the aforesaid offences. Appellants pleaded not guilty. Therefore trial was held.

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To bring home the guilt of the appellants, prosecution in all examined 21 witnesses as PWs1 to 21 and marked 29 documents as Exs.P1 to P29, besides marking 9 material objects as M.Os.1 to 9.

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On conclusion of recording of evidence of the prosecution, the learned Sessions Judge recorded the accused statement as is contemplated under Section 313 of the Code of Criminal Procedure.

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Appellants denied all the incriminating materials found against them in the case of the prosecution and did not place any written submission as is contemplated under Section 313(4) of Code of Criminal Procedure, not placed any defence evidence.

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Thereafter, the learned Trial Judge heard the arguments of the parties in detail. On cumulative consideration of oral and documentary evidence placed on record, learned Sessions Judge convicted the appellants and sentenced as referred supra.

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Being aggrieved by the same, the appellants are before this Court in this appeal.

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During the course of the appeal, the 1^st appellant died, the 2^nd appellant engaged an advocate and made a request to have the services of an advocate from the Legal Services Authority as he is unable to engage an advocate of his choice. 2^nd appellant is thus represented by Smt. Sumithra.

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Learned counsel Sri. A.C. Balaraj represents the remaining appellants No.3 to 6.

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Smt. Sumithra and Sri. A.C. Balaraj vehemently contended that the learned Sessions Judge failed to appreciate the material evidence in proper perspective resulting in miscarriage of justice and sought for allowing the appeal.

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They would further contend that the material evidence on record was not sufficient to maintain the order of conviction for the aforesaid offences especially when the learned Sessions Judge has acquitted the appellants for the offence punishable under Section 306 of the Indian Penal Code.

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They further contended that there cannot be isolation of the material evidence only to acquit the appellants for the offence under Section 306 of the IPC and proceed to convict for the remaining offences thus sought for allowing the appeal.

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Alternatively, they also contend that in the event this Court upholding the order of conviction for the aforesaid offences, taking note of the fact that appellant No.1 who is the main culprit in the incident is no more, the custody period already undergone by the appellants 2 to 6 may be treated as period of imprisonment for the aforesaid offences by enhancing the fine amount reasonably.

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Per contra, Sri. Chennappa Erappa, learned

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High Court Government Pleader supports the impugned judgment. He would further contend that material on record would go to show that there was job order placed by Nallaseena with Accused No.1 and in that regard, a sum of Rs.8,000/- was paid as advance amount. When 1^st Accused failed to return the clothes after stitching and also did not return the advance amount received by him, Nallaseena had gone to the house of the 1^st accused and intimated the wife the 1^st accused Smt. Bhagyamma and demanded the money and return of clothes. When the

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demand of Nallaseena was not complied, he came to the work place of the 1^st appellant and took away all the materials found in the work place of the 1^st appellant which included a sewing machine belonging to Ms. Yaseena, who was the relative of the complainant.

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When the sewing machine owned by Yaseena was also taken away by Nallaseena, complainant enquired the appellant No.1 to make necessary arrangements to get returned the sewing machine belonging to Yaseena. When there was repeated demands, second accused telephoned to the son of the complainant on 02.12.2010 at about 2.30 p.m., and threatened the complainant that if there is further pressure exerted on him, he would take away the life of the complainant. The same was not cared by the complainant and on the same day at about 7.30 p.m., all the appellants trespassed into the house of the complainant and pulled out the members of the complainant's family and started assaulting mercilessly. He further contended that on the fateful day, when the

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daughter of the complainant namely Umme Salma being the part of the members of the complainant's family who has been pulled out, tried to resist the acts of the appellants and at that juncture, clothes worn by Umme Salma were torn of resulting in committing suicide by self immolation.

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Therefore, the prosecution is able to establish all necessary ingredients to maintain the order of conviction and thus sought for dismissal of the appeal.

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He also pointed out that the State has not

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chosen to challenge the Order of acquittal for the offence punishable under Section 306 of the Indian Penal Code and by that itself, the appellants cannot take advantage of getting an order of acquittal in respect of the remaining offences and thus sought for dismissal of the appeal.

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Insofar as the alternate submission is concerned, Sri. Chennappa Erappa contended that if the

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appellants are shown an mercy, the same would result in a bad message conveyed to the Society and would encourage similarly placed perpetrators of the crime and thus sought for dismissal.

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Having heard the parties in detail, this court perused the material on record meticulously.

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On such perusal of material on record, following

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points would arise for consideration :

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(i) Whether the material on record is sufficient enough to maintain the Order of conviction of the appellants for the offences punishable under Sections 144, 148, 452, 324, 354 R/W.149 of the Indian Penal Code?

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(ii) Whether the appellants make out a case that the impugned judgment is suffering from legal infirmity and perversity and thus sought for interference?

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(iii) Whether the sentence is excessive?

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(iv) What Order?

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28. Regarding Point Nos.1 and 2:

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In the case on hand, loss of life of Umme Salma on

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the faithful day i.e., 02.12.2010 in an brawl that took place at 7.30 p.m., stands established. Umme Salma being a part of the victim group, got insulted because of the accused / appellants tearing away her clothes worn by her and went inside the house and committed suicide by self immolation. She was shifted to the medical care, but she lost her life despite best treatment.

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Pertinent to note that the complainant had a relative by name Yaseena who was working in the tailoring Centre established by the accused No.1.

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Material on record sufficiently establish that

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there was an order received by the 1^st accused from Nallaseena on job work basis and received a sum of Rs.8,000/- as advance. Material on record would also establish that order was not carried out by the 1^st appellant and there was a demand by Nallaseena in that

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regard. In fact, Nallaseena went to the house of the 1^st appellant and told his wife Smt. Bhagyamma about non completion of the job work and demanded for money.

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When all attempts made by Nallaseena failed to recover the advance amount nor get the job get completed, he took a retaliation attitude and visited the tailoring centre of the 1^st appellant and took away all the sewing machines and other valuable articles. In such taking away of the sewing machines, one sewing machine belonging to Yaseena was also taken away by Nallaseena.

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Yaseena reported the same to her relative i.e., Khaji Hussain (complainant). To help Yaseena, complainant started demanding return of the sewing machine from the custody of Nallaseena. The 1^st accused went on postponing the same. When repeated request was not adhered, there was an ill-will developed between the complainant and 1^st accused.

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Material on record discloses that on 02.12.2010 at about 2.30 p.m., 2^nd accused who is the brother of the 1^st accused said to have telephoned the son of the complainant on 02.12.2010 and threatened that if there is further pressure they would take away the life of the complainant. After said telephone call around 2.30 p.m., at about 7.30 p.m., all the appellants rushed to the house of the complainant and picked up quarrel with the complainant and his family members forming unlawful assembly. They trespassed into the house of the complainant and pulled out the members of the complainant's family from their house and started assaulting them mercilessly. The assault was with the hands, clubs and stones.

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In the process, the daughter of the complainant

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namely Umme Salma got insulted because of tearing of her clothes and she went inside the house and poured kerosene on herself and lit the fire. Noticing the same, the appellants left the place. Umme Salma was in ablaze

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condition and with the help of neighbours and others, fire was extinguished and she was shifted to the medical care.

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However, material on record in the form of oral testimony and supportive documents would depict that Umme Salma did not survive and she lost her life despite best treatment. Postmortem report, Inquest Mahazar amply establish that she died out of the burn injuries.

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Incident was reported to the Monakalmuru

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Police by the complainant in the form of a complaint.

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Monakalmuru Police registered the case and later on investigated the matter interalia apprehended few of the appellants. Matter was investigated in detail and ultimately charge sheet came to be filed for the aforesaid offences. Prosecution witnesses consistently deposed about the Order being placed by Nallaseena with appellant No.1, order not being completed by appellant No.1, Nallaseena taking away the sewing machines installed in the tailoring centre of the 1^st appellant which consisted one sewing

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machine belonging to the relative of the complainant by name Yaseena.

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The detailed cross-examination of the

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prosecution witnesses did not yield any positive material with regard to these aspects of the matter. However, the suggestions made by the prosecution witnesses on behalf of the appellants that the incident as is not portrayed by the prosecution did not happen and appellants nowhere responsible for the suicidal death of Umme Salma was denied by the prosecution witnesses.

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The oral and documentary evidence on record

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was thus cumulatively considered by the learned Sessions Judge while convicting the appellants for the aforesaid offences and acquitting the appellant for the offence under Section 306 of the Indian Penal Code, inasmuch as there was no material on record which would abet Umme Salma to commit suicide by self immolation.

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State did not chose to challenge the order of acquittal of the appellants for the offence under Section 306 of the Indian Penal Code and therefore it has become final.

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This Court re-appreciated the factual aspects and the legal aspects in the light of the grounds urged in the appeal memorandum on behalf of the appellants. Since the prosecution has invoked the offence under Section 149 of the Indian Penal Code as well, which is held

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to be proved inasmuch as there is a clear evidence on record about the presence and participation of the appellants on the spot, the argument put-forward on behalf of the appellants that it is the individual act of accused No.1 cannot be countenanced in law. Why other appellants were present at the place of the incident on 02.12.2010 is a question that remains unanswered. In

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fact, while recording the accused statement, all the appellants have simply denied all the incriminating circumstances and did not offer any explanation

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whatsoever as to their presence or participation in the incident.

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Admittedly there was an ill-will developed between the complainant and Appellant No.1 in regard to the sewing machine taken away by Nallaseena on account of the default committed by the 1^st appellant. There was repeated demands made by the complainant to get back the sewing machine belonging to Yaseena. When there was number of demands acted as a pressure on the appellant No.1 to return the sewing machine belonging to Yaseena. In that regard, appellant No.2 being the brother of appellant No.1, called son of the complainant on 02.12.2010 over telephone and gave him a life threat.

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Pertinent to note that on the same day at about 7.30 p.m., the incident has occurred. Seized material objects including the stones and clubs. Wound certificate amply corroborates the oral testimony of the injured witnesses. No explanation is forthcoming about the alleged

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false implication on behalf of the accused. Why would the complainant and injured eye witnesses falsely implicate the appellants by let going the real culprits is a question again remains unanswered on behalf of the appellants.

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All these factors when viewed cumulatively, the oral testimony of the prosecution witnesses is sufficiently corroborated by placing the necessary documentary evidence in the form of seizure mahazar, wound certificate besides marking the very material objects as referred to supra.

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Therefore, this Court even after re-appreciation of material evidence on record does not find any infirmity whatsoever much less serious legal infirmity in recording the finding of the guilt on the part of the appellants.

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It is settled principles of law and requires no emphasis that an act committed by one of the members of the unlawful assembly would bind all the members of the

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unlawful assembly. Therefore, the arguments put-forth on behalf of the appellants in the light of the appeal grounds that there is no material on record which would pin pointedly show the individual overt acts cannot be countenanced in law.

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Taking note of the above factual aspects, this Court is of the considered opinion that the material on record would be sufficient enough to maintain the finding of the guilt on the part of the appellants. In the absence of contra-material placed on record on behalf of the appellants, the impugned judgment cannot be termed as perverse or no legal infirmities are pointed out by the appellants.

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On the contrary, the reasons assigned by the learned Trial Judge while recording the guilt of the appellants for the aforesaid offences, especially acquitting the appellants for the offence punishable under Section 306 of the Indian Penal Code shows that the impugned

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judgment is logical and based on sound reasoning and

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based on proper analysis of material evidence on record.

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In view of the foregoing discussion, point No.1 is answered 'in the Affirmative' and point No.2 is

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answered 'in the negative'.

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48. Regarding Point No.3:

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Having held point No.1 in the affirmative and point No.2 in the negative, it is the task of this Court to find out

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whether an alternative submission made on behalf of the appellants need to be considered. Taking note of the fact that the State has not preferred any appeal against the acquittal of the appellants for the offence under Section 306 of the Indian Penal Code, appellant No.1 being dead, accused Nos.2 to 6 being the first time offender, they are entitled for an order of grant of probation.

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However, since such a point was considered as negative and negated by the learned Trial Judge, this

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Court is of the considered opinion that the custody period already undergone by few of the appellants is treated as period of imprisonment by enhancing the fine amount for all the aforesaid offences in a sum of Rs.75,000/- to be paid by accused Nos.2 to 6 collectively and entire enhanced fine amount if paid as compensation to the complainant who lost his young daughter in the incident would meet the ends of justice. The entire fine amount is paid as compensation to the complainant in addition to Rs.12,500/- ordered by the learned Trial Judge would met

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the ends of justice. Accordingly, point No.3 is answered 'partly in the affirmative'.

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50. Regarding point No.4:

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In view of the findings of this Court on points No.1 to 3, following Order is passed:

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ORDER

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(i) Appeal is allowed in part.

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(ii) While maintaining the conviction of the

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appellants for the offence punishable under Sections 144, 148, 324, 452, 354 read with Section 149 of the Indian Penal Code, the custody period already undergone by the appellants is treated as a period of imprisonment for the aforesaid offence by enhancing in a sum of Rs.75,000/- to be paid by appellants No.2 to 6 (Rs.15,000/- each) in respect of all the offences on or before 28.02.2025 failing which they shall undergo simple imprisonment for a period of one year.

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(iii) On receipt of the enhanced fine amount, enhanced fine amount, the learned Trial Judge is directed to secure the presence of the complainant and pay the same as compensation (if for some reasons, the complainant is not available, the compensation shall be distributed to other dependants of Umme Salma).

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(iv) Office is directed to return the Trial Court

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Records with copy of this Order.

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Sd/(V SRISHANANDA) JUDGE

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SNC List No.: 1 Sl No.: 37 CT:SNN

Honnuraswamy v. the State of Karnataka

Case brief

What is this about?

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Honnuraswamy v. the State of Karnataka

Case brief

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