Vijaykumar @ Viji S/O Krishnappa Vs State by H.S.R. Layout Police

THIS CRL.A IS FILED U/S.374(2)CR.P.C BY THE ADVOCATE FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT DATED 29.02.2012 (JUDGMENT PRONOUNCED ON 22.03.2012) PASSED IN S.C.NO.960/2010 BY THE PRESIDING OFFICER, FAST TRACK COURT - IX, BANGALORE - CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE OFFENCE P/U/S.395 R/W. 397 OF IPC. AND APPELLANT/ACCUSED NO.2 IS SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 07 (SEVEN) YEARS AND ALSO LIABLE TO PAY A FINE OF RS.5,000/- (RUPEES FIVE

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THOUSAND) AND I/D TO PAY THE FINE AMOUNT, HE SHALL FURTHER UNDERGO S.I. FOR A PERIOD OF TWO (2) MONTHS, FOR THE OFFENCE P/U/S.395 R/W. 397 OF IPC.

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

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ORAL JUDGMENT

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Appellant Vijaykumar, who is accused No.2 has preferred

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the appeal against the judgment of conviction and order on sentence dated 29^th February 2012 passed in SC No.960 of 2010 by the Presiding Officer, Fast Track Court-IX, Bangalore (for short "the trial Court").

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The learned Counsel appearing for the appellant would submit that HSR Layout Police filed charge-sheet against the accused for commission of offences punishable under section 395 read with Section 34 of Indian Penal Code. But the trial Court as framed charges for the offence punishable under Section 395 read with 397 of Indian Penal Code and has convicted the accused for the offence punishable under Sections 395 read with 397 of Indian Penal Code and further accused 1 to 5 are sentenced to undergo imprisonment for a period of 7 years and liable to pay fine of Rs.5,000/- each in

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default to pay the fine amount, they shall further undergo simple imprisonment for a period of two months for offence under section 395 read with 397 of Indian Penal Code. Being aggrieved by this judgment of conviction and order on sentence, accused No.5-Venkatesh, accused No.3-S Rambabu and accused No.1-Nagaraju, have preferred this appeal before this court in Criminal Appeal No.391 of 2012 connected with Criminal Appeals No.424 of 2012 and 538 of 2012. All these cases were clubbed together and the Co-ordinate Bench of this court has acquitted all the accused for the offence punishable under section 397 of Indian Penal Code and the conviction passed by the trial court in respect of offence punishable under section 395 of Indian Penal Code was confirmed and the same was modified subject to payment of enhanced fine in a sum of Rs.50,000/- payable by each of the appellants on or before 20^th March 2025. The learned Counsel would submit that the present appellant is also ready to abide by this order passed by the co-ordinate bench and the appellant is also ready to pay the enhanced fine amount of Rs.50,000/- and accordingly sought to allow the appeal by modifying the sentence passed by the trial court for offence punishable under section 395 of

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Indian Penal Code. The counsel for the appellant has produced copy of this order passed by the Co-ordinate Bench in the aforestated appeals. All the three appeals arise out of SC No.960 of 2021 dated 29^th February, 2012. The Order portion of the judgment passed by the Co-ordinate Bench reads as under:

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(i) Criminals Appeals are allowed in part;

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(ii) All the appellants are acquitted for the offence punishable under Section 397 of Indian Penal Code;

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(iii) Conviction of the appellants for the offence pujnishable under Section 395 of the Indian Penal Code is maintained and the custody period already undergone by them is treated as period of imprisonment subject to payment of enhanced fine in a sum of Rs.50,000/payable by each of the appellants on or before 20^th March, 2025;

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(iv) Failure to make payment of the enhanced fine amount, the appellants shall undergo simple imprisonment for a period of one year and six months;

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(v) Out of the fine amount recovered, Rs.25,000/each is ordered to be paid to PW7 and PW14 as compensation;

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(vi) Balance fine amount shall be appropriated towards defraying expenses of the State.

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(vii) Office is directed to return the trial Court records with copy of this judgment for issue of modified conviction warrant.

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This court has received report from the Chief Superintendent, Central prison, Bangalore. In the report it is stated that the period undergone by this accused-Vijaykumar @ Viji is from 29^th December, 2009 to 21^st March 2012, i.e. two years, two months and 23 days further from 22^nd March 2012 to 05^th July, 2012 for 3 months and 13 days. Considering the submission of the learned Counsel for the appellant and also keeping in mind, the judgment passed by the Co-ordinate Bench of this court in abovesaid criminal appeals, in view of principle of parity, at the stage, it is proper to allow this appeal only to the extent of modification of sentence. Accordingly, I proceed to pass the following:

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O R D E R

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i) Appeal is allowed in part;

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ii) Appellant is acquitted of the offence punishable under Section 397 of Indian Penal Code;

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iii) Conviction of the complainant for the offence punishable under section 395 of Indian Penal Code is maintained and the custody period undergone by the appellant is treated as period of imprisonment, subject to the appellant paying fine of Rs.50,000/- on or before 28^th November 2025;

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iv) Failure to make the payment of enhanced fine of ₹50,000/- the appellant shall undergo simple imprisonment for a period of one year and six months;

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v) Out of fine amount recovered Rs.25,000/- each is to be ordered to be paid to PW7 and PW14 as compensation;

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vi) Balance fine amount shall be appropriate towards defraying expenses of the State;

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vii) Registry is directed to return the trial court records along with copy of this judgment for issuance of modified conviction warrant.

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Sd/(G BASAVARAJA) JUDGE

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lnn/List No.: 1 Sl No.: 0

Vijaykumar @ Viji S/O Krishnappa v. State by H.S.R. Layout Police

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Vijaykumar @ Viji S/O Krishnappa v. State by H.S.R. Layout Police

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