Shri Chowdappa @ Baddi Chowdappa, Shri Puttanna, Shri Seenappa and Shri Mohan vs State

A.S. Pachhapure

The appellants have challenged the judgment and order convicting them for the charge under. Sections 323 and 341 of IPC on a trial held by Special Judge, Bangalore Rural. The facts relevant for the purpose of this appeal are as under:

The appellants are the sons of accused Nos. 1 and 2 who are their father and mother. Accused Nos. 1 and 2 died during the pendency of trial. The prosecution claims that accused No. 1 was doing money lending business and had advanced loan to the complainant on different occasions and a sum of Rs. 85,000/- was due and in this context, PW1 - the complainant claims that on 10.07.1995 at about 10.00 a.m. when the lorry of complainant was being taken back to his house, the accused inclusive of appellants said to have stopped the lorry and insisted the complainant to pay Rs. 2,00,000/- and as the amount was not paid, the accused said to have kicked the complainant and bet him. It is in these circumstances that a complaint came to be filed with police as per Ex. P1. During the course of investigation, spot mahazar was held, statement of witnesses were recorded and on collecting of the material documents, chargesheet came to be laid against the appellants and other accused for the charge u/s 3(1)(x) of the Act of 1989, Section 39 of Karnataka Money Lenders Act and for the offence under Sections 323 and 341 of IPC.

During the trial, prosecution examined PWs. 1 to 21 and got marked documents Exs. P1 to P51. Statement of the accused was recorded u/s 313 of Cr.P.C. The accused took a defence of total denial. The defence evidence was not led, but anyhow, they got marked the documents Exs. D1 to D3 - the contradictions in the evidence of PWs. 1 to 3. The Trial Court after hearing the counsel for parties and on appreciation of the material on record, acquitted the accused for the charge u/s 3(1)(x) of the Act of 1989 and convicted accused No. 1 for the charge u/s 39 of the Karnataka Money Lenders Act and the appellants for the charge under Sections 323 and 341 of IPC. Accused No. 1 (appellant No. 1) died during the pendency of this appeal.

I have heard learned Counsel for the appellant and learned High Court Government Pleader for the State.

The point that arise for my consideration is:

Whether the appellants have made out any grounds to warrant interference in the judgment and order of conviction and sentence for the offence under Sections 323 and 341 of IPC?

Learned Counsel for the appellant would contend that material placed on record is insufficient to award conviction for the charge under Sections 341 and 323 of IPC. Hence, he submits that the Trial Court was not justified in awarding conviction and sentence. Furthermore, he submits that the sentence awarded by the Trial Court is on the higher side.

On the other hand, learned High Court Government Pleader supports the judgment and order of the Trial Court.

PW1 is the complainant and PWs. 2 and 3 are the eye witnesses to the incident. It is the consistent version of PWs. 1 to 3 that on the date of incident, the complainant was due for a sum of Rs. 85,000/- and when he was taking his vehicle, the accused wrongfully restrained him and forcibly tried to take the lorry and at that time, said to have bet the complainant and kicked him. Though elaborate cross examination has been done so far as beating and kicking is concerned, the evidence of PWs. 2 and 3 corroborates the version of PW1. The other witnesses examined by the prosecution are to prove the offence u/s 39 of Karnataka Money Lenders Act and as the accused (appellant No. 1) died, the question of appreciating the evidence does not arise, as the case against accused No. 1 (appellant No. 1) is abated. So also the appellants have been acquitted for the charge u/s 3(1)(x) of the Act of 1989. So, the only charge for which the appellants have been convicted are for the offence under Sections 323 and 341 of IPC. Considering the material placed on record, I am of the opinion that the prosecution is able to establish the commission of offence by the appellants for the charge under Sections 323 and 341 of IPC.

So far as the sentence is concerned, the Trial Court has awarded imprisonment and also fine. The offence under Sections 323 and 341 IPC are punishable with imprisonment or sentence of fine. The matter is of the year 1995. The special case was pending for more than 10 years in the Trial Court and this appeal is pending for last more than 6 years. So taking into consideration this aspect, I am of the opinion that instead of sentence of imprisonment, an order of fine is appropriate for the said offences. In the result, the appeal is allowed in part affirming the conviction of appellants 2 to 4 (accused Nos. 3 to 5) for the offence punishable under Sections 323 and 341 of IPC. Sentence is modified and they are ordered to pay a fine of Rs. 1,000/- each in each offences and in default to undergo simple imprisonment for one month for each of the charge under Sections 323 and 341 of IPC.