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Karnataka High Court · body

2001 DIGILAW 358 (KAR)

STATE OF KARNATAKA v. RAMANNA

2001-04-17

K.SREEDHAR RAO

body2001
K. SREEDHAR RAO, J. ( 1 ) THE state has preferred the appeal against the judgment of acquittal rendered by the first additional munsiff and judicial magistrate first class in c. c. No. 5714 of 1994. The respondents 1 to 4 are the accused, who are charge-sheeted for the offence punishable under sections 447, 504, 506 (2) and 427 read with Section 34 of the Indian Penal Code. On 21-7-1994 at about 12. 00 midnight, the accused persons alleged to have trespassed into the site belonging to rangegowda, the complainant examined as P. W. 1, demolished the latrine room with crow-bar and pickaxe and caused damage to the property to an extent of Rs. 2,000/ -. When p. w. 1 came and questioned, the accused persons abused him and threatened to kill him if he were to interfere and made physical advances for assaulting. P. w. 1 escaped and goes to the house of the psi situated nearby the scene. The wife of psi was present in the house. The said lady gave a telephonic message to the police station and the message was received by P. W. 7, the head constable who came to the scene immediately along with two other beat constables and found the accused persons at the scene and on arrival of the police, the accused threw the crow-bar, pick-axe and ran away. Next day morning the complaint was submitted by P. W. 1 registered as fir. The investigation is taken up and on completion of the investigation, the charge-sheet is filed. ( 2 ) IN the trial court, seven witnesses were examined. P. w. 1 is the complainant-rangegowda. P. w. 2, puttamma the wife of P. W. 1. P. w. 3 is the beat constable who accompanies P. W. 7 to the scene and P. W. 4 is the psi, who conducted the investigation and filed the charge-sheet. P. w. 5 is one huchappa, a neighbour residing by the side of the disputed site and testifies to the fact that on 21-7-1994 around 12. 30 in the midnight, after hearing the noise of quarrel, he opened the shutters of his window and found the accused persons attempting to demolish the walls of the latrine and also speaks about the arrival of the police and accused decamping from the scene. P. w. 6 is the spot mahazar witness. 30 in the midnight, after hearing the noise of quarrel, he opened the shutters of his window and found the accused persons attempting to demolish the walls of the latrine and also speaks about the arrival of the police and accused decamping from the scene. P. w. 6 is the spot mahazar witness. P. w. 7 is the head constable, who came to the scene on the telephonic information received and also testifies to the fact that he found the accused persons at the scene with incriminating weapons in their hands and running away from the scene after his arrival. ( 3 ) THE trial judge has gone into unnecessary discussion on the academic aspects of law without properly noticing on the basic material facts regarding the legal position of fir marked at ex. P. 5. In view of earlier telephonic message during midnight, the fir registered in the morning at around 9. 00 a. m. at ex. P. 5 was not construed as fir and considered it as only a statement under Section 161 (3) of the Criminal Procedure Code. However, all that discussion was really not necessary since from the evidence of P. W. 7 and also from the evidence of P. W. 1, it does disclose that whatever information given by the wife of the psi to the police on telephone lacks the requisites of fir under Section 156 of the Criminal Procedure Code. P. w. 7 categorically says he was not able to make out the name of the informant and the details of the offence were also not made known. Some cryptic message is said to have been received. Therefore, under the circumstances, such a message cannot be considered as a fir and the only authentic and legally first information has been lodged under ex. P. 5. ( 4 ) IN the cases where fir registered bona fidely by the investigating officer becomes inadmissible as being hit by Section 162 of the Criminal Procedure Code the prosecution case cannot be thrown out solely on the ground that there is no fir. The supreme court in somappa vamanappa madar and shankarappa revanappa kaddi v state of mysore, at para 12 has held thus:". . . . . The supreme court in somappa vamanappa madar and shankarappa revanappa kaddi v state of mysore, at para 12 has held thus:". . . . . WE agree with the learned counsel that the statement recorded from P. W. 5 cannot be used as fir so far as his comment on the particulars given regarding the deceased and the accused is concerned we feel that as they were recorded during investigation, it is probable that the particulars were obtained when the accused who was in custody was questioned. The rejection of ex. P. 9 as fir would not detract the testimony of the eye-witnesses which will have to be assessed on its own merits. . . . . . . . . . ". ( 5 ) WHEN the testimony of the witnesses otherwise convincingly establish the case of the prosecution, the court cannot overlook such material. In other words, the defective or inadmissibility of fir in evidence does not render the investigation a nullity if it is otherwise credible and acceptable. ( 6 ) THE trial court has grossly erred in not appreciating the evidence of P. W. 7 who, besides being as an eye-witness to the incident. Since by the time he arrives at the spot, he finds the accused persons with pickaxe and crow-bars and on seeing him and the other police constables, the accused ran away. The accused are identified by him. The neighbour P. W. 3-ramachandra also testifies to the fact that around midnight, he hears the noise of the quarrel, he gets up, switch on the light in his house and through the windows he finds the accused damaging the walls. The evidence of p. ws. 7 and 3 fully corroborate the version of p. ws. 1 and 2, who are the complainant and his wife to establish that the accused did indulge in the alleged acts amounting to the aforesaid offences. The trial court has attached unnecessary importance to minor inconsistencies regarding the manner of occurrence. ( 7 ) REGARDING motive, evidently the material placed by the prosecution discloses that there is a dispute between the parties besides there were already complaints filed against each other on earlier occasions. The evidence discloses that the walls were damaged valuing approximately to an extent of Rs. 3,000/- as per the evidence of P. W. 6. ( 7 ) REGARDING motive, evidently the material placed by the prosecution discloses that there is a dispute between the parties besides there were already complaints filed against each other on earlier occasions. The evidence discloses that the walls were damaged valuing approximately to an extent of Rs. 3,000/- as per the evidence of P. W. 6. However, in the charge, the value of damage is only to an extent of Rs. 2,000/- which does not appear to be a material inconsistency. ( 8 ) THE trial court has overlooked clinching material placed by the prosecution and has erred in acquitting the accused. Therefore, the judgment of the trial court is liable to be set aside and the accused are to be convicted for an offence punishable under Section 427 of the Indian Penal Code and for an offence under Section 506 first part of Indian Penal Code. Since there is no convincing material to show that the accused had committed the offence envisaged in the second part of Section 506 of the Indian Penal Code, accordingly, the accused are convicted for an offence punishable under sections 447, 427 and 506 read with Section 34 of the Indian Penal Code. ( 9 ) THE scheme of sentencing under the Provisions of Indian Penal Code provides the punishments of imprisonment and fine or both. For some of the heinous offences, the sentence of imprisonment and fine is made concurrent. But, some of the offences like the one in question, the sentence of imprisonment or fine is provided as alternative. In such situation, it is the discretion of the court either to award sentence of imprisonment or fine or both. The court is given the choice of any one of them or both of them. Therefore, depending upon the motive for the commission of offence, the magnitude of mischief inflicted on the victim and to bring about the necessary desired effect of deterrence, the courts have to follow a pragmatic and equitable sentencing policy. It is not imperative and wise on the parts of the courts to always adopt sentence of imprisonment when the alternative sentence of imposition of fine is provided. It is not imperative and wise on the parts of the courts to always adopt sentence of imprisonment when the alternative sentence of imposition of fine is provided. ( 10 ) THE Provisions of sub-section (4) of Section 354 of the Criminal Procedure Code declare that when an offence is punishable with imprisonment of one year or more and when the court imposes a sentence of imprisonment of a term less than three months, it shall record reasons for awarding such sentence and unless the sentence is one of the imprisonment till raising of the court or unless the case was tried summarily under the Provisions of this court. On a meaningful reading of the Provisions, the mandate of the Section to impose a minimum of three months of imprisonment is applicable to cases where the sentence of imprisonment and fine are made concurrent. The Provisions cannot be construed to mean that the sentence of imprisonment is imperative where discretion is given to court in the matter of sentence of imprisonment or fine. Therefore, the true purport of the Provisions of sub-section (4) of Section 354 of the Indian Penal Code would apply to the cases where the sentence of imprisonment and fine is concurrent and does not apply where it is alternative when choice is given to the court to impose any one of the modes of sentence provided. ( 11 ) CONSIDERING the facts of the case, nearly six years have elapsed from the date of commission of offence. The victims are gravely wronged by the mischievous act of the accused. Despite legal proof available on record, the accused have remained virtually scot-free. Except undergoing the ordeal of trial deserving legal punishment has not visited upon the accused. The state of affairs virtually make a mockery of the system in the public view. Even otherwise, in cases like this, mere sentence of imprisonment without fine would only bear a face of sadistic retributory theory and equally imposing sentence of imprisonment and as well heavy fine may be too harsh a sentence. At this late hour, sentencing the accused to imprisonment may also not appear to be just and proper. Even otherwise, in cases like this, mere sentence of imprisonment without fine would only bear a face of sadistic retributory theory and equally imposing sentence of imprisonment and as well heavy fine may be too harsh a sentence. At this late hour, sentencing the accused to imprisonment may also not appear to be just and proper. At the same time, balancing the interests of the state and as well the victims and the society at large if sentence of heavy fine is imposed, that would meet the ends of Justice besides would reimburse the state of whatever expenses incurred in conducting the investigation and as well if a portion of it is given to the victim as compensation it will satisfy the wrong done and punishment of heavy fine also gives a clear message to have an effect of deterrence on the people. In that view, i propose to convict the accused for the offences punishable under sections 447, 427 and 506 read with Section 34 of the Indian Penal Code and sentence the accused to pay a fine of Rs. 500/- each for the offence punishable under Section 447 of the Indian Penal Code, Rs. 500/- each for an offence punishable under Section 506 of the Indian Penal Code and Rs. 1,000/- each for an offence punishable under Section 427 of the Indian Penal Code and each of the accused shall pay a total fine of Rs. 2. 000/ -. Out of the fine amount, Rs. 5,000/-is to be paid as compensation to P. W. 1. --- *** --- .