Muniraja and Others vs State of Karnataka

A.S. Pachhapure, J.

The appellants have challenged their conviction and sentence for the offence punishable under Sections 143, 144, 147, 148, 448, 427, 323, 324, 355, 506 read with Section 149 IPC on a trial held by the Sessions Judge, Bangalore Rural.

The facts reveal that on 02.03.2009 at 2.00 p.m. the appellants and other accused formed an unlawful assembly with a common object to cause murder of C.Ws. 11 and 2 (P.Ws. 3 and 4) and armed with the weapons like rod, chopper etc., said to have caused the injuries. On a complaint of this incident filed by P.W. 3 under Ex. P4, in the course of investigation, the spot mahazar was held, statements were recorded, injured were sent to the hospital for treatment. The injury certificates were collected. The weapons were seized and on completion of investigation, chargesheet was laid against the appellants and other accused for the aforesaid offences inclusive of Section 307 IPC.

In the trial, the prosecution examined P.Ws. 1 to 13, got marked the documents Exs. P1 to P21 and Mos. 1 to 10. After recording the statement of accused, D.W. 1 was examined as defence witness and in his evidence, Exs. D1 to D6 were recorded. The Trial Count heard the counsel and on appreciation of the evidence on record, convicted the appellants and other accused for the aforesaid offences, except Section 367 IPC. So far as the female accused are concerned, they have been granted the benefit of probation and convicted the appellants for the charge under Section 506 IPC and ordered them to undergo imprisonment for one year and to pay fine of Rs. 2,000/- each and lesser sentence was awarded for the other offences. Aggrieved by the conviction and sentence, the present appellants have approached this Court in appeal.

Heard the learned Counsel for the appellants and learned High Court Government Pleader.

The point that arises for my consideration is:

"Whether the appellants have made out any grounds to warrant interference in their conviction and sentence for the offence under Sections 143, 144, 147, 148, 448, 427, 323, 324, 355, 506 read with Section 149 IPC?"

Learned Counsel for the appellants submit that the Trial Court had granted the benefit of probation to the female accused and has committed an error in rejecting that request of appellants. He submits that there is no material against the accused No. 19 and he was not at the place of incident at the relevant point of time and his conviction is improper and illegal.

On the other hand, learned High Court Government Pleader supporting the judgment and order submits that it is not a fit matter where the probation may be granted and conviction of accused No. 19 is just and proper.

Perusal of the material placed on record reveals that there is a civil dispute between P.W. 4, the husband of complainant and accused No. 11 who is the sister of P.W. 4. P.W. 4 was in possession of the 5 guntas of land which he received from his parents and in this context accused No. 11 had sought for a share in the said land. It is 5 guntas of land adjoining in the gomal area.

It is not in dispute that the appellants and also the injured are the persons who are poor and come from the backward community. In fact, the accused had approached the High Court in WP 17335-355/2008 against the government official putting forth their demand for gomal area adjoining the suit property of the injured and even the High Court taking into consideration the fact that the accused were poor persons and had no shelter directed the Government not to evict them. Anyhow, it is in this context that there has been a dispute between the injured and the appellant.

It is relevant to mention here that the female accused had been granted the benefit of probation and the request was made even on behalf of the appellants to grant the same. For the reason that the appellants are males, it appears that the Trial Court has not extended the benefit. So far as the offence for which the appellants have been convicted, the maximum sentence is 2 years and the appellants have been convicted and directed to undergo the imprisonment for one year.

Looking to the material placed on record. I do not see any reasons to reject the request of appellants and extend the benefit of probation as the same has been granted to female accused who are also responsible for the same offence.

So far as appellant No. 10 (accused No. 19) is concerned, he has been convicted for the aforesaid offences, despite his defence that he was not at the place of incident at the relevant point of time. It is relevant to mention here that P.W. 13 is the investigating officer and he had collected the phone call details of appellant No. 10 during the course of investigation and on the basis of said information collected, had not filed the chargesheet against him. It is in the due course of trial that appellant No. 10 was arrayed as accused and he has also been convicted. Ex. D3 is the phone call details and it reveals that at the relevant point of time, to mean at 2.00 p.m. on the date of incident, he had participated in the rally at a distance of 10 km from the place of incident.

Perusal of the phone call details would clearly reveal that at the time when the incident occurred, he was at a distance of 10 km. It is not possible for him to be present and participate in the crime. The Trial Court has not accepted this document for the reason that it has not been certified by the authorities who issued Ex. D3. It is relevant to note that it is not the accused who has produced this document. It is the investigating officer who collected and it was made available in the prosecution file and the document which has been produced by the prosecution is got admitted in the evidence and marked as Ex. D3.

When the prosecution produces some documents, with the purpose to rely upon the same, the benefit can be taken by the accused by relying upon such document and under circumstances of proof of the document is not mandatory. The contents of Ex. D3 would clearly establish that the appellant No. 10 was elsewhere and not within the place of incident, the benefit of doubt could have been extended to appellant No. 10 as probable defence was established by him on the basis of document produced by the prosecution. Therefore, the conviction of appellant No. 10 (accused No. 19) is improper and requires to be set aside.

It is relevant to note that P.W. 4 has suffered injury, so he has to be compensated, despite the fact that appellants 1 to 9 are to be extended the benefit of probation. They can be directed to pay compensation so that the amount of compensation paid may be given to the injured P.W. 4 as compensation for the injury suffered. In the circumstances, appellants Nos. 1 to 9 are directed to pay compensation of Rs. 3,600/- each and on deposit of the said compensation, it shall be paid to P.W. 4 the injured.

For the aforesaid reasons, the appeal is allowed in part confirming the conviction of appellants 1 to 9. They are extended the benefit of probation. They shall be released on probation of good conduct for a period of three years on their executing a bond for a sum of Rs. 50,000/- each. Appellants 1 to 9 shall deposit the compensation of Rs. 3,000/- each. On deposit of the said compensation, the same shall be paid to the injured P.W. 4 - K.C. Gopinath. Conviction and sentence for the offence under Sections 143, 144, 147, 148, 448, 427, 323, 324, 355, 506 read with Section 149 IPC as against appellant No. 10 (accused No. 19) is set aside. He is acquitted of the said changes.