(Prayer: This Crl.a is filed u/s.374 (2) of Cr.p.c (old) u/sec. 415 of BNSS (new) praying to i) admit the present appeal; ii) call for the records from the trial court and; iii) after hearing allow this appeal thereby set aside the judgment of conviction dt. 04.03.2024 and order of sentence dt.05.03.2024 passed in sessions case no.236/2021 (arising out of horti p.s crime no.108/2019) by the Honourable iv addl. district and sessions judge, Vijayapura and acquit the appellants of all the charges u/s. 324 and 323 r/w s.34 IPC.)

Oral Judgment:

1. Appellants have preferred this appeal against the judgment of conviction dated 04.03.2024 and order on sentence dated 05.03.2024 passed by the IV-Additional Sessions Judge, Vijayapura, in S.C.No.236/2021 (for short, ‘the Trial Court’).

2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

3. The factual matrix of the case is that, the complainant viz. Savita and her mother Shantabai-CW.10 are staying at Koluragi village. The accused No.1 and 2 are relatives among themselves. The complainant, CW.10- Shantabai and accused were staying in the same locality. There is an open space belonging to CW.11 Shyamaraygouda @ Shyamaray Biradar by the side of house of CW.10-Shantabai. The accused No.1 was urinating in the said open space for the past several days. For that, the CW.10 Shantabai was repeatedly requesting him not to urinate in the said space as it was a residential locality and woman folk sit in front of their houses. For that, both accused 1 and 2 had abused her in filthy language and also gave life threat to her stating that, one day they would finish her.

4. In this background on 14.09.2019 at 07.00 p.m, the accused No.1-Babu Makanapur again urinated in the open space beside the house of the CW10. When CW10 objected for the same, being enraged by the same on 15.09.2019 at 07.30 p.m. both accused came in front of the house of CW10 stating that, she was repeatedly harassing them by restraining them from urinating in the said space and today they would finish her. Thereby the accused No.1 with an intention to commit her murder, assaulted with club and caused injuries on the back side of her head, mouth and caused grievous and simple injuries to her. When the complainant Savita tried to pacify, accused No.1 assaulted her with same club and caused injuries to her. The accused No.2 abused her in filthy language and assaulted with hands and caused simple injuries to her and thereby tried to commit murder of CW.10-Shantabai.

5. After incident the injured Shantabai-CW.10 and complainant were taken to hospital. The MLC yadi was sent to Horti Police Station. Thereafter, CW16-M.S. Biradar went to B.L.D.E. Hospital and received the complaint lodged by the complainant Savita and registered the case in Horti Police Station in Cr.No.108/2019 and sent FIR to the court. He visited scene of offence, conducted the spot panchanama, seized the club and taken the photographs. He recorded further statements of the complainant, CW6 to CW.9 and recorded statement of CW5 at BLDE Hospital. On 18.09.2019 CW.1-Savita produced the clothes worn by CW10 at the time of incident. He conducted panchanama and recovered them. He recorded statement of CW.11. On the same day, he received the extract of scene of offence. He also recorded statement of CW.10. On 21.09.2019 the accused were found and he arrested them and sent them to Judicial Custody. After receipt of injury certificate, he sent the club and injury certificate to the Medical Officer and obtained his opinion. He also sent the clothes of injured and club to RFSL, Belagavi for chemical examination. Pending receipt of FSL report, he submitted the charge-sheet against the accused.

6. After filing the charge-sheet, case was registered in C.C.No.821/2020. Thereafter case was committed to the Sessions Court and the same was registered in S.C.No.236/2021. All the accused appeared before the Trial Court and were enlarged on bail. On hearing, the Trial Court has framed the charges for the alleged offences, the same was read over and explained to the accused in the language known to them. Having understood the same, they pleaded not guilty and claimed to be tried.

7. To prove the guilt of the accused, the prosecution has, in all, examined 16 witnesses as PWs.1 to 16 and got marked 18 documents as Exs.P1 to P18. On closure of prosecution side evidence, the statement under Section 313 of Cr.P.C. was recorded. The accused have denied the incriminating circumstances appearing against them and they did not choose to lead any defence evidence on their behalf, however, during the course of cross-examination of prosecution witnesses, 8 documents were marked as Exs.D1 to D8.

8. Having heard the arguments on both sides, the Trial Court has acquitted the accused for the offence under Sections 307, 504, 506 read with Section 34 of IPC and convicted the accused for the offence under Sections 323 and 324 read with Section 34 of IPC. Being aggrieved by the judgment of conviction and order on sentence, the appellants have preferred this appeal.

9. The learned counsel for the appellants has urged the following grounds:

                  (i) The Judgment of Conviction and order on sentence passed by the learned Judge is against the facts & materials on record & against the settled principles of criminal jurisprudence & suffers from non-application of mind. The impugned judgment resulted in miscarriage of justice to appellants.

                  (ii) The learned Judge has committed a serious error in convicting the Appellants without appreciating the evidence in its proper perspective. The reasons assigned by the learned judge to arrive at the conclusion are against the facts, materials and evidence brought on record by the prosecution.

                  (iii) It is further submitted that, the trial court has not appreciated the evidence adduced by the prosecution in its correct perspective. It is submitted that the prosecution mainly relies on the evidence of close relatives & partisan witnesses. No doubt, the evidence of close relatives & partisan witnesses cannot be outrightly discarded, their evidence requires close scrutiny of the Court. It is submitted that, none of the witnesses, other than the immediate family members of Complainant, have supported the case of the prosecution. It is submitted that, the prosecution mainly relies upon the evidence of PW1, PW6 & PW12 to bring home the charge under Section 323, 324 r/w Section 34 IPC. It is submitted that, the evidence of these witnesses is contrary to the evidence deposed by each other making it highly unsafe to be relied upon. The trial court has clearly overlooked the material discrepancies in the evidence of these witnesses. On this count alone the trial court ought to have held that the prosecution has failed to establish the case against the Appellants for the offences punishable under section 323, 324 r/w Section 34 IPC.

                  (iv) It is submitted that the motive attributed to the happening of the very incident is that the Appellant used to urinate in the open site abutting the house of the PW- 12/Smt.Shantabai and the said Shantabai used to repeatedly object for the same. On an overall appreciation of the evidence & the factual matrix, it is clear that the motive put forth by the prosecution is farce & make believe one.

                  (v) Without prejudice to the above submission, it is submitted that the trial court has imposed sentence which is disproportionate & harsh for the offence for which it has convicted the Appellants. The trial court has ignored the elementary principle of penology & sentencing. The trial court, without assigning any proper and valid reason, has imposed harsh sentence of imprisonment to Appellants. It is also submitted that, the sentence imposed by the trial court is not proportionate to the nature of offence. It is further submitted that, the Hon'ble Apex Court as well as this Court have held that the sentencing policy should though be punitive, yet be reformative in nature. The very approach of the trial court appears to be vindictive. Considering the totality of circumstances, the trial court ought to have taken a liberal view & ought to have imposed minimum sentence. The sentence of imprisonment imposed is highly harsh and disproportionate considering the entirety of circumstances.

                  (vi) It is further submitted that the trial court has not at all appreciated the case of the Appellants in the light of human probabilities and the same has vitiated its findings. The reasons assigned by learned Judge in convicting the Appellants are illegal, erroneous, incorrect & perverse. On all these grounds, learned counsel prays to allow the appeal.

10. As against this, learned High Court Government Pleader would submit that, the Trial Court has properly appreciated the materials on record in accordance with law and facts and prays to dismiss the appeal.

11. Having heard the arguments on both sides and on perusal of materials placed before this Court, the following points would arise for my consideration:

                  (1) Whether the Trial Court is justified in convicting the accused for the offences punishable under Sections 323, 324 read with Section 34 of IPC?

                  (2) Whether the Trial Court is justified in passing sentence for 3 months and to pay find of Rs.5,000/- each, for the offence punishable under Section 324 read with Section 34 of IPC?

                  (3) Whether the Trial Court is justified in sentencing the accused to undergo simple imprisonment of 1 month each and to pay Rs.1,000/- each for the offence punishable under Section 323 read with Section 34 of IPC?

                  (4) What order?

12. My answer to the above points are as under:

                  Point No.1 : In the Affirmative

                  Point No.2 : Partly in the affirmative

                  Point No.3 : Partly in the affirmative

                  Point No.4 : As per final order:

Regarding Point No.1:

13. I have examined the materials placed before this Court.

14. The Investigating Officer submitted the charge- sheet against the accused to the Trial Court for the offences punishable under Sections 323, 324, 307, 504 and 506 read with Section 34 of IPC. The Trial Court has acquitted the accused for the offence under Sections 307, 504, 506 read with Section 34 of IPC. The learned High Court Government Pleader would fairly submit that the State has not preferred appeal against the acquittal of accused for the offence under Sections 307, 504, 506 read with Section 34 of IPC.

15. With regard to the offence under Sections 323 and 324 read with Section 34 of IPC are concerned, it is the case of the prosecution that on the alleged date, time and place, in furtherance of common intention, accused 1 and 2 voluntarily assaulted complainant-PW.1/Savitha and PW.12-Shaantabai with club and hands and caused injuries.

16. PW1-Savita and PW12-Shantabai Baradol, have clearly deposed in their evidence as to the assault made by the accused. PW.6 has supported to the case of the prosecution. The evidence of injured witness also supports to the case of the prosecution. The Medical Officer-PW11 who has examined the injured has also deposed as to the treatment extended to the injured. The mahazar witness has also supported to the case of the prosecution.

17. On careful examination of entire material on record, it is clear that on 15.09.2019 at 7:00 p.m. the accused Nos.1 and 2 with regard to urinating in the open space of Shyamraya, picked up quarrel with Shantabai- PW.12 and accused No.1 assaulted her with club and caused simple injuries to her. Similarly, when PW.1- Savita tried to intervene in the matter, both accused assaulted her with hands and club and also caused injuries to her. Thus, the accused have committed offence punishable under Sections 323 and 324 read with Section 34 of IPC.

18. The Trial Court has properly appreciated the evidence on record in its proper perspective. In this regard, I do not find any factual or legal error in the judgment of conviction passed against accused for the offences punishable under Section 323, 324 read with Section 34 of IPC. Accordingly, I answer point No.1 in the Affirmative.

Regarding Point No.2 and 3:

19. With regard to the quantum of sentence for the commission of offence under Sections 323 and 324 of IPC are concerned, the Trial Court has passed order on quantum of sentence. The operative portion of the said order reads as under:

                  “Acting U/s.235 of Cr.P.C., the accused Nos.1 and 2 are hereby sentenced to undergo simple imprisonment for 03 months each and to pay fine of Rs.5,000/- each, for the offence punishable U/Sec. 324 R/w Sec. 34 of IPC and they shall undergo default sentence of S.I. for a period of 15 days.

                  The accused Nos.1 and 2 are sentenced to undergo simple imprisonment for 01 month each and to pay fine of Rs.1,000/-each, for the offence punishable U/Sec. 323 R/w Sec. 34 of IPC and they shall undergo default sentence of S.I. for a period of 10 days.

                  Both sentences shall run concurrently.

                  Bail bonds and surety bonds of accused stand cancelled.

                  The accused Nos.1 and 2 are entitled for set off U/s.428 of Cr.P.C, for the period of detention during investigation, enquiry and trial, if any.

                  Out of fine amount, Rs.5,000/- each shall be paid to the complainant and injured respectively after proper identification and verification in accordance with law and balance of Rs.2,000/-shall be remitted to the State.

                  The office is directed to forward a copy of Judgment to the Deputy Commissioner, Vijayapura and copy of the same shall be supplied to the accused at free of cost.

                  The Member Secretary, District Legal Services Authority, Vijayapura is directed to determine the compensation to the complainant and injured Shantabai as per Victim Compensation Rules provided U/s.357A(5) of Cr.P.C.

                  The office is directed to forward the copy of Judgment to the Member Secretary, District Legal Services Authority, Vijayapura.

                  M.Os.1 to 3 being worthless be destroyed, after expiry of appeal period.”

20. The offence under Section 323 read with Section 34 of IPC is punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. The offence under Section 324 of IPC is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Though the offences are punishable with three years, the Trial Court has not released the accused under the provision of Probation of Offenders Act, 1958. The Trial Court has not assigned any reasons for not invoking the provisions of Sections 3 & 4 of Probation of Offenders Act, 1958.

21. It is submitted by the learned counsel for the appellants that the accused have not been convicted for any offences prior to this judgment and they are rustic villagers and poor agriculturists. Considering the nature and gravity of offences, and considering the injuries sustained by the PW12, and also previous antecedents of the appellants, it is just and proper to modify the sentence only to the extent of payment of fine and also to pay compensation to PW.12 under Section 5 of the Probation of Offenders Act, 1958. Accordingly, I answer point Nos.2 and 3 partly in affirmative.

Point No.4:

22. For the aforesaid reasons and discussions, I proceed to pass the following:

ORDER

                  (1) The appeal is allowed in-part;

                  (2) The judgment of conviction dated 04.03.2024 passed by the IV-Addl. Sessions Judge, Vijayapura, in S.C.No.236/2021 is hereby confirmed;

                  (3) The order on sentence dated 05.03.2024 passed by the IV-Addl. Sessions Judge, Vijayapura, in S.C.No.236/2021 is modified as under:

                  i) Accused 1 and 2 shall pay a fine of Rs.5,000/- each for the commission of offence under Section 324 read with Section 34 of IPC. It is submitted that fine amount is already deposited by the accused. If it is so, the Trial Court is directed to confiscate the said amount to the Government;

                  ii) Accused 1 and 2 shall pay a fine of Rs.1,000/- each for the offence under Section 323 of read with Section 34 of IPC. It is submitted that the fine amount is already deposited by the accused. If it is so, the Trial Court is directed to confiscate the said amount to the Government;

                  iii) Accused No.1 shall pay compensation of Rs.15,000/- to PW12;

                  iv) Accused No.2 shall pay compensation of Rs.10,000/- to PW12;

                  v) The appellants shall deposit the said compensation amount before the Trial Court within 30 days from this day, in default of payment of compensation amount, accused 1 and 2 shall undergo simple imprisonment for a period of 3 months;

                  vi) After depositing of the total amount of Rs.25,000/- by the accused 1 and 2, the Trial Court is directed to pay the same to PW.12 by issuing necessary notice to her in accordance with law.

                  The registry is directed to send a copy of this judgment along with TCR to the Trial Court.