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Karnataka High Court · body

2008 DIGILAW 523 (KAR)

Kareem v. State by Sira Police, Tumkur

2008-09-18

K.N.KESHAVANARAYANA

body2008
Judgment : 1. The accused 1 to 4 in CC No. 888 of 1999 on the file of the Civil Judge (Junior Division) and Judicial Magistrate First Class at Sira, have presented this revision petition under Section 397 of the Criminal Procedure Code, 1973, questioning the legality and correctness of the judgment of conviction and sentence dated 23-9-2002 passed by the learned Magistrate convicting these petitioners for the offences punishable under Sections 143, 144, 147, 148, 323, 324 and 326 read with Section 149 of the Indian Penal Code, 1860 and sentencing them to undergo imprisonment for various periods for the aforesaid offences and also the judgment dated 26-10-2005 passed by the Presiding Officer, Fast Track Court No. IV, Tumkur, in Criminal Appeal No. 51 of 2002, dismissing the said appeal and affirming the judgment of conviction and sentence passed by the learned Magistrate. 2. Sira Police filed charge-sheet against these petitioners and four others, for the aforesaid offences alleging that on 9-8-1999 at about 9.30 p.m., when C.W. 2-Jaithun W/o. Hussain Sab, was sleeping in her house in Davood Palya, Sira Taluk, the accused 1 to 8 by forming themselves into an unlawful assembly, armed with deadly weapons came near her house, pushed the door and trespassed into her house by abusing C.W. 2 (P.W. 2) in filthy language, and when she came out of the house and brought C.W. 3 (P.W. 3)-Vazeer, he was assaulted on the head by chopper, at that time C.W. 1 (P.W. 1)-S.H. Hassan Sab, C.W. 4 (P.W. 4)-Raheem and C.W. 5 (P.W. 5)-Basha come there, all the accused assaulted C.Ws. 1, 4 and 5 with clubs and other weapons causing them grievous injuries, thereby, the accused committed the aforesaid offences. 3. According to the prosecution, the case was registered on the basis of the complaint lodged by P.W. 1-Hassan Sab. During the investigation, all the eight accused persons were arrested and after completing investigation charge-sheet was laid. The learned Magistrate, who took cognizance of the offences alleged, secured the presence of the accused persons. All the accused pleaded not guilty for the charges levelled against them and claimed to be tried. During the trial, the prosecution examined P.Ws. 1 to 11, got marked Exs. P.1 to P. 7. During the examination of the accused under Section 313 of the Cr. P.C., the accused persons denied all the incriminating circumstances appearing against them. All the accused pleaded not guilty for the charges levelled against them and claimed to be tried. During the trial, the prosecution examined P.Ws. 1 to 11, got marked Exs. P.1 to P. 7. During the examination of the accused under Section 313 of the Cr. P.C., the accused persons denied all the incriminating circumstances appearing against them. The accused persons did not choose to lead any defence evidence. The defence of the accused persons was one of total denial and that of false implication. 4. The learned Magistrate, after hearing both sides and on assessment of oral and documentary evidence, by judgment dated 23-9-2002 held that the prosecution has proved beyond all reasonable doubt the guilt of the accused 1 to 4 only for the charges levelled against them. He further held that the prosecution has failed to prove the charges levelled against accused 5 to 8. In that view of the matter, the learned Magistrate convicted the petitioners herein who were arraigned as accused 1 to 4 for the aforesaid offences and sentenced them to undergo imprisonment for various periods and also to pay fine for the aforesaid offences. Being aggrieved by the said judgment of conviction and sentence, the petitioners herein filed appeal before the learned Sessions Judge at Tumkur in Criminal Appeal No. 51 of 2002. The learned Presiding Officer, Fast Track Court No. IV, Tumkur, to whom the appeal was assigned, after hearing the learned Counsel appearing for the appellants and also the Public Prosecutor, by judgment dated 26-10-2005 concurred with the judgment of the learned Magistrate and affirmed the judgment of the learned Magistrate convicting the petitioners for the aforesaid offences. In that view of the matter, the learned Sessions Judge dismissed the appeal. Being aggrieved by the concurrent judgment of the Courts below, the petitioners have presented this appeal inter cilia. contending that the Courts below have not properly appreciated the evidence on record in its proper perspective and that the Courts below have failed to see that the evidence on record do not establish beyond reasonable doubt the guilt of the petitioners herein for the aforesaid offences. It is also contended that the Courts below have committed serious error in law in convicting the petitioners for the aforesaid offences with the aid of Section 149 of the IPC after acquitting the accused 5 to 8. It is also contended that the Courts below have committed serious error in law in convicting the petitioners for the aforesaid offences with the aid of Section 149 of the IPC after acquitting the accused 5 to 8. In other words, it is their contention that to attract the provisions of Section 149 of the IPC, there should be unlawful assembly comprising of not less than five persons and since the learned Magistrate has recorded a definite finding that the prosecution has failed to prove the charges levelled against accused 5 to 8 and acquitted them, the Courts below could not have convicted the petitioners herein for the offences punishable under Section 143 and other offences with the aid of Section 149 of the IPC. Therefore, it is contended that the conviction recorded by the Courts below as against these petitioners for the aforesaid offences is bad in law and is liable to be set aside. 5. I have heard the arguments of the learned Counsel appearing for the petitioners and also the learned Public Prosecutor for the State and perused the records. 6. During the course of the argument, learned Counsel appearing for the petitioners, in addition to reiterating the grounds urged in the revision petition, contended that the complainant and the prosecution witnesses on the one hand and the accused petitioners on the other hand are close relatives and now they are living in harmony in their village and at the intervention of the elders of the village, they have entered into a compromise and the complainant has agreed to compound the offence, for which the petitioners have been convicted. Therefore, permission be accorded to compound the offence by recording the compromise. 7. On the other hand, the learned Public Prosecutor contended that as the concurrent finding of two Courts have been questioned in this revision petition, there is no ground to interfere with the said judgment of the Courts below. He further contended that having regard to the fact that the accused persons have been convicted for the offence punishable under Section 326 of the IPC which is non-compoundable offence, the said offence cannot be compounded as sought for. He sought to support, the reasonings of the Courts below. 8. He further contended that having regard to the fact that the accused persons have been convicted for the offence punishable under Section 326 of the IPC which is non-compoundable offence, the said offence cannot be compounded as sought for. He sought to support, the reasonings of the Courts below. 8. In viewof the above, the points that arise for consideration is: (1)Whether the Courts below were justified in convicting the petitioners herein for the offences punishable under Sections 143, 144, 147 and 148 read with Section 149 of the IPC, after acquitting the accused 5 to 8? .(2) Whether the Courts below were justified in convicting the petitioners for the offences punishable under Sections 323, 324 and 326 read with Section 149 of the IPC? .(3) Whether the permission as sought for, to compound the offence can be granted? 9. Point No. 1.-As noticed above, the petitioners herein were charge-sheeted along with four other persons for the offences punishable under Sections 143, 147, 148 and 149 of the IPC; apart from the offences punishable under Sections 323, 324 and 326 read with Section 149 of the IPC. 10. After full fledged trial, the Trial Court recorded a finding that the prosecution has satisfactorily proved the guilt of only four accused persons namely 1 to 4 for the aforesaid offences and that the prosecution has failed to prove the guilt of the accused persons namely 5 to 8 for the aforesaid offences. 11. In that view of the matter, the Trial Court acquitted the accused 5 to 8. On account of this, only four accused remained. 12. Section 141 of the IPC defines unlawful assembly. According to this section, an assembly of five or more persons is designated as "an unlawful assembly", if the common object of the persons composing that assembly is to commit any one of the acts set out therein. Therefore, from the above, it is clear that to call an assembly as "an unlawful assembly", it should comprise not less than five persons and all of them should share a common object. The learned Magistrate has recorded a definite finding that the prosecution has failed to prove the guilt for the charges levelled against accused 5 to 8. In other words, according to the learned Magistrate, accused 5 to 8 have not committed any offences. The learned Magistrate has recorded a definite finding that the prosecution has failed to prove the guilt for the charges levelled against accused 5 to 8. In other words, according to the learned Magistrate, accused 5 to 8 have not committed any offences. This means accused 5 to 8 were not the members of the alleged assembly. If that is so, there were only four persons left in the assembly namely accused 1 to 4, who are the petitioners herein. In that event, the said assembly cannot be termed as "an unlawful assembly" within the meaning of Section 141 of the IPC. 13. To punish a person for offences punishable under Sections 143, 144, 147 and 148, first of all he should be a member of "an unlawful assembly". With the aid of Section 149 of the IPC, all the members of the unlawful assembly are made responsible for the act of any one of them. If the "assembly" of persons said to have committed acts alleged, cannot be termed as "an unlawful assembly", within the meaning of Section 141 of the IPC, the members of such "assembly" cannot be held guilty of the offences punishable under Sections 143, 147 and 148 with the aid of Section 149 of the IPC. 14. The Apex Court, in the case of Nethala Pothuraju and Others vs. State of Andhra Pradesh ( AIR 1991 SC 2214 : (1992)1 SCC 49 : 1991 Cri. L.J. 3133 (SC); had an occasion to consider this aspect of the matter. The relevant observation of the Apex Court are found in para 4 which reads thus: "4. In our view, there is force in the contention of the learned Counsel for the appellants. The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 of the IPC. It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime. The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Section 148 and on applying Section 149 of the IPC on the ground that they formed an unlawful assembly along with some unidentified persons. The prosecution case from the very beginning was that accused 1 to 7, the named persons, formed the unlawful assembly. The prosecution case from the very beginning was that accused 1 to 7, the named persons, formed the unlawful assembly. Accused 4 to 7 having been acquitted, the remaining three appellants cannot be convicted under Section 148 and on applying Section 149 of the IPC" 15. The observations of the Apex Court extracted above squarely applies to the facts of this case. Even in the case on hand also it is the definite case of the prosecution that accused 1 to 8, the named persons formed the unlawful assembly. It is not the case of prosecution that apart from the eight accused persons, there were some other unidentified persons who were involved in the crime. In that view of the matter, I am of the considered opinion that the learned Magistrate, after acquitting accused 5 to 8 could not have convicted accused 1 to 4, who are the petitioners herein for the aforesaid offences. Therefore, the judgment of the Trial Court and the judgment of the Sessions Court convicting the petitioners for offence punishable under Sections 143, 147 and 148 with the aid of Section 149 of the IPC cannot be sustained and the same is liable to be set aside. 16. In view of the above, I answer the Point No. 1 accordingly. 17. Point No. 2.-The learned Magistrate has convicted the petitioners also for the offences punishable under Sections 323, 324 and 326 read with Section 149 of the IPC. For the reason stated above, while discussing Point No. as the assembly of these four accused persons cannot be termed as unlawful assembly, these petitioners cannot be convicted for the offences aforesaid with the aid of Section 149 of the IPC. Now, the question is whether the petitioners could be convicted for the aforesaid offences with the aid of Section 34 of the IPC? 18. This question is also answered by the Apex Court in Nethala Pothurajus case. At para 5, it has been observed thus: "5. The question still remains as to whether the appellants can be convicted under Section 302 read with Section 34 of the IPC. Both Sections 149 and 34 of the IPC deal with a combination of persons who become liable to be punished as sharers in the commission of offences. At para 5, it has been observed thus: "5. The question still remains as to whether the appellants can be convicted under Section 302 read with Section 34 of the IPC. Both Sections 149 and 34 of the IPC deal with a combination of persons who become liable to be punished as sharers in the commission of offences. The non-applicability of Section 149 of the IPC is, therefore, no bar in convicting the appellants under Section 302 read with Section 34 of the IPC, if the evidence discloses commission of an offence in furtherance of the common intention of them all". 19. From the above observation, it is clear that both Sections 149 and 34 of the IPC deal with combination of persons who become liable to be punished as sharers in the commission of offence. The Apex Court has clearly held non-applicability of Section 149 of the IPC is no bar for convicting the accused persons for the offences for which they are found guilty with the aid of Section 34 of the IPC, if the evidence discloses the commission of such offence in furtherance of the common intention of all of them. 20. The evidence on record clearly establishes that these petitioners numbering four came near the house of the complainant at about 9.30 p.m. on 9-8-1999 along with deadly weapons like clubs, sickle etc., and trespassed into the house of the complainant, and when she escaped from the clutches of these petitioners and brought P.W. 3, these petitioners assaulted P.W. 3 on the head by a chopper, causing him grievous injury and when P.Ws. 1, 4 and 5, came there, they were also assaulted as a result of which, P.W. 1 sustained fracture of both bones of left forearm, for which, he underwent surgery in the hospital. The very fact that all these persons went near the house of the complainant in the night at about 9.30 p.m. armed with weapons would be sufficient to indicate that all of them had shared common intention to commit criminal violence on the complainant. The very fact that all these persons went near the house of the complainant in the night at about 9.30 p.m. armed with weapons would be sufficient to indicate that all of them had shared common intention to commit criminal violence on the complainant. Therefore, having regard to the concurrent finding of the Courts below about the incident and in the light of the law laid down by the Honble Supreme Court in the aforesaid decision, I am of the opinion that these petitioners are liable to be convicted for offences punishable under Sections 323, 324 and 326 of the IPC with the aid of Section 34 of the IPC though not with the aid of Section 149 of the IPC. In this view of the matter, I answer point No. 2 accordingly. 21. Of course, as noticed earlier, during the course of the argument, it was submitted that the parties have entered into a compromise and the complainant has agreed to compound the offence as they are close relatives and are now living in harmony in the village. However, the offence punishable under Section 326 is not a compoundable offence. 22. The question whether the Courts have power to compound a non-compoundable offence has been considered by the Apex Court in several decisions. In Ram Lal and Another vs. State of Jammu and Kashmir AIR 1999 SC 895 : (1999) 2 SCC 213 , the Apex Court in the light of legislative ban imposed by sub-section (9) of Section 320 of the Cr. P.C., has clearly held that an offence which law declares to be non-compoundable even with the permission of the Court, cannot be compounded at all. In this decision, their lordships have further held that offence under Section 326 of the IPC is admittedly non-compoundable and therefore, they cannot accede to the request of the learned Counsel to permit the same to be compounded. However, the Apex Court, taking into consideration the facts and the parties have come to a settlement and the victims have no grievance against. the accused persons and considering the further fact that the appellant therein has already undergone imprisonment for about 6 months, took a lenient view and reduced the imprisonment for the period of custody already undergone. Again in Jalaluddin Vs. State of Uttar Pradesh 2001 Cri. the accused persons and considering the further fact that the appellant therein has already undergone imprisonment for about 6 months, took a lenient view and reduced the imprisonment for the period of custody already undergone. Again in Jalaluddin Vs. State of Uttar Pradesh 2001 Cri. L.J. 4944 (SC): (2002)9 SCC 561 , the Apex Court, reiterated that as the offence under Section 326 of the IPC is not compoundable, it cannot be compounded. Therefore, the Apex Court rejected the application filed before the Court for compounding. However, in this case also, the Apex Court having regard to the facts, that the occurrence had taken place on 24-12-1979, and since the complainant as also the accused were close relatives who were stated to be living amicably, they reduced the sentence to the period already undergone. Recently in Manish Jalan vs. State of Karnataka 2008 (6) kar. L.J. 228 (SC): (2008) 8 SCC 225 , the Apex Court has rejected prayer for compounding non-compoundable offences in the light of sub-section (9) of Section 320 of the IPC. In this decision also, the Apex Court, in view of the fact that the mother of the victim has no grievance against the appellant (accused) and has prayed for some compensation, observed that lenient view can be taken in the matter and sentence of imprisonment can be reduced. Ultimately, the Apex Court sentenced the appellant therein who was found guilty for the offences punishable under Sections 279 and 304-A of the IPC, for the period already undergone and directed him to pay compensation of Rs. 1,00,000/- to the mother of victim, in addition to the fine ordered. Therefore, from the above decisions of the Honble Supreme Court, it is clear that the offence punishable under Section 326 of the IPC is not compoundable, therefore, Court cannot permit said offence to be compounded. 23. In view of the above, request of the learned Counsel appearing for the petitioners to permit compounding of offence punishable under Section 326 of the IPC, cannot be acceded to. Hence, it is rejected. 24. The learned Magistrate has sentenced the petitioners to undergo simple imprisonment for 3 months for the offence punishable under Section 323 of the IPC; simple imprisonment for four months for the offence punishable under Section 324 of the IPC and rigorous imprisonment for six months for the offence punishable under Section 326 of the IPC. Hence, it is rejected. 24. The learned Magistrate has sentenced the petitioners to undergo simple imprisonment for 3 months for the offence punishable under Section 323 of the IPC; simple imprisonment for four months for the offence punishable under Section 324 of the IPC and rigorous imprisonment for six months for the offence punishable under Section 326 of the IPC. However, all these sentences have been ordered to run concurrently. In effect, the petitioners have been imprisoned for the maximum period of six months and therefore, are required to undergo imprisonment for that period. 25. The incident in question has occurred on 9-8-1999 nearly about 9 years ago. The incident appears to have occurred at the background of certain civil disputes. There is no serious dispute between the complainant as well as the victims, that they are close relatives and they are all residents of Dawood Palya in Sira Taluk. It appears that after this incident, these petitioners are not involved in any incident of similar nature. It is stated by the complainant and the other injured persons, who are before this Court in person that they and the petitioners are living in harmony in the village. Under these circumstances, there is considerable force in the submission of the learned Counsel appearing for the petitioner, that if at this stage, the petitioners are sent to jail, it is likely to result in hardship to them and it may also lead to disharmony between them. 26. Having regard to the aforesaid facts and in view of the fact that now the complainant as well as the other injured persons submitted that they have compounded the offences with the petitioner so that they can live peacefully in the village, it is just and proper for this Court to take a lenient view with regard to sentence, in the light of the observation made by the Honble Supreme Court in the aforesaid two decisions. However, at the same time, it cannot be forgotten that P.W. 2 had suffered fracture of both bones of the right arm and the two other victims had suffered grievous injury. Therefore, they are required to be compensated for the injuries suffered by them. However, at the same time, it cannot be forgotten that P.W. 2 had suffered fracture of both bones of the right arm and the two other victims had suffered grievous injury. Therefore, they are required to be compensated for the injuries suffered by them. In Hari Singh vs. Sukhbb-Singh and Others AIR 1988 SC 2127 : (1988)4 SCC 551 , the Apex Court has emphasised the need for making liberal use of provisions contained in Section 357 of the Cr. P.C. In para 10, the Apex Court has observed thus: . "10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a inconstructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way". In Dilip S. Dahanukar v Kotak Mahindra Company Limited and Another (2007)6 SCC 528 : 2007 Cri. L.J. 2417 (SC) : 2007 AIR SCW 2425, explaining the scope and the purpose of imposition of fine and/r grant of compensation, the Apex Court has observed thus in para 38: “38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub-section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a Judge". In Manish Jalalns case, the Apex Court has referred to the two decisions i.e., Hari Singh and Dilip S. Dahanukar and has observed thus in para 14: "14. However, in awarding compensation, it is necessary for the Court to decide if the case is a fit one in which compensation deserves to be awarded. If the Court is convinced that compensation should be paid, then the quantum of compensation is to be determined by taking into consideration the nature of the crime, the injury suffered and the capacity of the convict to pay compensation etc.". 27. Keeping in mind the principles laid down by the Apex Court in the decisions referred to supra, I am of the considered opinion that the interest of justice would be met if the petitioners herein are sentenced to imprisonment for the period they were in custody during the trial and they are made to pay substantial amount as fine so that from out of the said fine, the injured persons could be compensated. In view of the above discussion, I pass the following: Order Revision petition is allowed in part. The judgment of the Courts below convicting the petitioners for the offences punishable under Sections 143, 144, 147, 148 and 149 of the IPC are hereby set aside, and they are acquitted of those charges. In view of the above discussion, I pass the following: Order Revision petition is allowed in part. The judgment of the Courts below convicting the petitioners for the offences punishable under Sections 143, 144, 147, 148 and 149 of the IPC are hereby set aside, and they are acquitted of those charges. In modification of the order of the Magistrate convicting the petitioners herein for the offence punishable under Sections 323, 324 and 326 of the IPC read with Section 149 of the IPC, these petitioners are convicted for the offences punishable under Sections 323, 324 and 326 read with Section 34 of the IPC. The substantive sentence of imprisonment, is reduced to the period they were in custody during the trial of the case. Each of the petitioners are directed to pay fine of Rs. 20,000/-for the aforesaid offences. In default of payment of fine amount, each of them are directed to undergo rigorous imprisonment for three months. Upon realisation of the fine amount, a sum of Rs. 50,000/- is ordered to be paid to P.W. 1-Hasansab s/o. Karim Sab and out of the remaining, sum of Rs. 8,000/- is ordered to be paid to each of P.Ws. 3, 4 and 5 who are also the injured persons, as compensation.