Sri. Doddesha vs State of Karnataka

N. Ananda, J.—The appellant was arrayed as accused No 2 in C.C. No. 455/2006. Accused 1 and 2 were tried for offences punishable u/s 392 read with Section 34 IPC. The learned Trial Judge on appreciation of evidence convicted accused 1 and 2 and sentenced them to undergo simple imprisonment for one month and to pay fine of Rs. 500/- each in default to undergo simple imprisonment for one month. Accused No. 2 was in judicial custody for a period of more than one month. The learned Trial Judge held the period of detention undergone as substantive sentence of imprisonment. The learned Trial Judge convicted accused No. 1 to undergo simple imprisonment for a period of one month and pay a fine of Rs. 500/-. Accused 1 and 2 were happy with the lenient sentence of imprisonment imposed by the Trial Court. Therefore, they did not challenge the judgment of conviction made by the Trial Court. The State preferred Criminal Appeal No. 99/2007 for enhancement of sentence. The learned Judge of the First Appellate Court reconsidered the judgment of the Trial Court, confirmed the conviction of accused 1 and 2 for an offence punishable u/s 392 read with Section 34 IPC. The learned Judge of First Appellate Court having regard to the nature of offence and sentence provided for an offence punishable u/s 392 IPC, enhanced the sentence of imprisonment to a period of two years and gave set off of the period of detention undergone during the trial. The learned Judge of First Appellate Court has confirmed the sentence of fine imposed by the Trial Court. I have heard Sri Ashok Kumar, learned counsel for accused No. 2 and learned Government Advocate for State.

The judgment of the Trial Court convicting the accused for an offence punishable u/s 392 read with Section 34 IPC had attained finality in criminal appeal filed by State for enhancement of sentence. The learned Judge of First Appellate Court having regard to the provisions of section 377(3), reconsidered the judgment of the Trial Court and confirmed the judgment of conviction and enhanced the sentence. There are concurrent findings of the Trial Court and the First Appellate Court on the guilt of accused for an offence punishable u/s 392 read with Section 34 IPC. Therefore, what needs to be considered in this appeal is whether the learned Judge of First Appellate Court was justified in enhancing the sentence of imprisonment and confirming the sentence of fine imposed by the Trial Court. Accused No. 2 had committed an offence u/s 392 which is punishable with imprisonment extending upto ten years and fine.

The learned counsel for accused submitted that accused does not bear criminal antecedents. Therefore, an opportunity may be given to accused to reform himself by reducing the sentence of imprisonment.

The learned Government Advocate submits that the nature of offence committed by accused does not warrant any lenience in the matter of sentence. On hearing the learned counsel for parties and also having regard to the afore stated aggravating and mitigating circumstances, I deem it proper to pass the following

ORDER

The appeal is accepted in part. The conviction of accused No. 2 for an offence punishable u/s 392 read with Section 34 IPC is confirmed. The sentence is modified.

Accused No. 2 is sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs. 50,000/-, in default to pay fine, accused No. 2 shall undergo rigorous imprisonment for a period of three months for an offence punishable u/s 397 read with Section 34 IPC.

The period of detention undergone by the accused during trial is given set off u/s 428 Cr.P.C.