w -i -I x C) fl Q C) -3 c) csNc 1 ocn Thç C — C) t. C - r — — r — — :jCCQ Cr 9 cr-i 0 C C -ci r Q — )CQ):t, )Q C) C h C C -t < C C ) C P C Q ci 1 -.,-c, I± I\) cC — -c) rz ci C -c — C cC:1_ D -1Q cro p p ?H’ C)C C -t-t)) Q ici C12 cf z)- ) 1 C)-3 C ) ) —, — — c J) 0• C r r C?C C) C)-t - C Z C — C C C!) -ci0z z -3 CC!) C12ci C 1 -ci -ci -ci C ci C ci cC -t C) C) -ci tIEi z cC cCC -3x x0z w cC C!) —3 -ci C)x > -ci C -3 z -3 — CX X C) H- C)c c ± -0 o- X cC z ‘-I> o 2 This appeal coming on for admission this day, the court delivered the following: JUDGMENT Though the matter is posted for admission, with the consent of the learned counsel for both the parties, it is taken up for final hearing 2. The appellant has challenged his conviction and sentence for the offences punishable under Sections 435 and 506(2) of IPC and the sentence thereon on a trial held by Sessions Judge, Bagalkot. 3. Sans unnecessary details, the prosecution version unfolded during the trial is as under: P.W.2-Baburajendra and P.W.6-Balsigangadhar are the brothers and P.W.3-Geeta is their sister. The accused was residing in the opposite house of P.W.2. It is the case of the prosecution that the accused was teasing P.W.3- Geeta and she was aged about 25 years and in this regard she had made a complaint to her brothers- P.W.2 and P.W.6. It is in this context, that the relations between the panics was strained. In the intervening night ot 221 and 23’ September 2009, when PW.2 and P.Wb parker! their car and motorcycle in front of their house, ii is allecd that accused to take revenge, set fire to the motor cycle in the midnight hours, and at that titne the incident was noticed by RW.2, P.W.3, P,W.6 and the family members. P,W.2- Baburajendra informed this fact to the police on phone and police advised to come in the morning to lodge the complaint. Accordingly, the complaint-Ex,P2 was filed. The investigation was held, the spot mahazar ExP, 1 was drawn in the presence of P,W, 1 and another. The Burnt motor vehicle was seized as M.O. 1, Statement of witnesses were recorded and after completion of investigation, a charge sheet came to he filed against the appellant for the aforesaid offenees. 4. During the trial, the prosecution examined P.W. 1 tO P.W.7 and in their evidence got marked ExP. I to R6 and M.O. 1. The statement of the accused was recorded under Section 313 Cr.P.C. He has taken the delence of total denial and not led any defence evidence. 4 5. The trial court after hearing the parties and on appreciation of material on record, convicted the appellant and ordered to undergo simple imprisonment for 21/2 years for the offence punishable under Section 435 of IPC and 2½ years for the offence punishable under Section 506(2) of IPC and also ordered to pay the fme with default sentence 6. Aggrieved by the conviction and sentence, the present appeal has been filed. 7. I have heard the learned counsel for the appellant and also the learned High Court Government Pleader. 8. So far as the motive is concerned, the prosecution relies upon the evidence of P.W.2, P.W.3 and P.W.6 who are the brothers and sister. P.W.3-Geeta is aged about 25 years, she states in her evidence that accused used to tease her as while she was passing on the road. She also states having complained the act of the accused to her brothers P.W.2 and P.W.6. It is in this context, that the P.W.2 had taken the appellant to task 5 and thereby the relations were strained. It is the motive which has been put forth by the prosecution, 9. So far as the incident is concerned, P.W-2 and P.W.6 are the witnesses who saw the accused at the spot where the vehicle was burning and admittedly, the house of the accused is in front and opposite to the house of P.W.2, P.W.3 and P.W.6. After hearing the explosive sound P.W.2 and P.W.6 came out in the midnight hours and saw the accused who was running towards his house and at that time when they questioned him about the act, he said that he had burnt the motor cycle and hereafter, he will burn the house and the brothers of P.W.3. Both P.W.2 and P.W.6 have stated in their evidence regarding the identity of the accused in the tube light. 10. It is relevant to note that, the houses of the complainant and the accused are opposite to each other and the witnesses state about the existence of light in front portion of the house. It is natural that there will be light in the front yard. P.W.2 and P.W.6 stated that after hearing the explosive sound they came and saw the accused running. Their version, regarding the presence of 6 witnesses at the spot is natural. The evidence of P.W.2 and P.W.6 on this aspect is consistent. Nothing is elicited in the crossexamination of P.W.2 and P.W.6 to disbelieve or discard the evidence of these witnesses. It is true that two persons including the sister who are the persons interested, by itself is not sufficient to disbelieve their evidence. Interested version has to be scrutimzecl cautiously, the presence of P.W.2 and P.W,6 at the spot after hearing explosive sound and the existence of motive as stated supra is consistent and cogent. In the circumstances, I do not find any error or illegality in the appreciation of the evidence of P.W.2 and P.W.6. 11 P.W.3 to the extent of witnessing the incident and the presence of the accused has turned hostile. It may be said that she could have entertained fear, if she supports the version of the prosecution and the accused may still cause harm her in future. When the evidence of P.W.2 and P.W6 is n consistent and co cot, I do not find the mere fact that P,W.3 turned hostile is fatal to the case. Though the iearnt..d counsel submitted, there is no independent corroboration as the incjdent occuri.ed in4- 7 the midnight at about 12.45 p.m. it is improbable, to expect the presence of independent witnesses at the spot. It may be because of this reason the prosecution examined P.W.4 and he turned hostile. It may be said that the appellant might have called him as a person who was present at the time. The fact that incident took place at midnight hours, non- examination of independent witness is not fatal to the case of prosecution. Thejt-appreciation of the evidence led by the prosecution supports the conclusion arrived at by the trial court. Therefore, there cannot be any interference so far as the conviction is concerned. 12. The trial court has awarded sentence of 2½ years imprisonment in addition to fine. The offence is punishable with imprisonment and fine and the accused was aged about 23 years at the time when the incident took place. As the accused was of young age, he might have teased the P.W.3 in the natural course and in the exceptional case, such things would happen, but that itself is not a ground to have a harsh approach, so far as sentence is concerned. Talcing into consideration the age4 S of the appellant in the circumstances stated above, I am of the opinion that simple imprisonment of 3 months would be reasonable and proper, in addition to the fine of Rs.25,000/-, in default payment of fine, simple imprisonment of 3 more months for the offence punishable under Section 435 of IPC. So far as the offence punishable under Section 506 is concerned, the punishment has to be lesser to Section 435 of IPC. In that view of the mater, the appeal is allowed in part. i) Affirming the conviction of the appellant for the offence punishable under Sections 435 and 506(2) the appellant-accused is ordered to undergo simple imprisonment for three months and to pay Rs.25,000/-, in default of payment of fine to undergo simple imprisonment for 3 months for the offence punishable under Section 435 of IPC. ii) He is ordered to undergo simple imprisonment for 2 months and to pay Rs. 1,000/ for the offence punishable under Section 506(2), in default of payment of fine to undergo simple4 9 imprisonment for 15 days. On deposit of fine amount. Ps. 20,000/’ shall be paid to P.W.2 and the remaining amount shall be credited to the State. iii) In the circumstances, the trial court is directed to secure presence of the appellant to undergo the sentence. iv) The bail bonds are cancelled. v) The appellant is entitled to set of under Section 428 Cr.P.C. Sd/ 3UDGE R m s /