Halappa & Ors vs State Of Karnataka

Halappa & Ors. ... Appellants

Vs.

State of Karnataka ... Respondent

JUDGMENT

R.V.RAVEENDRAN, J.

Leave granted. Heard the learned counsel.

2. The appellants (accused 1 to 4) were convicted by JMFC, Raibag,

for offences punishable under section 324 read with section 34 IPC, and

under Section 504 read with Section 34 IPC and sentenced to undergo

simple imprisonment for three months and one month respectively, to run

concurrently. The appeal and subsequent revision by the accused were

dismissed by the Sessions Judge, Gokak, and by the High Court.

3. Accused 2 is the son of accused No.1. Accused 3 is the wife of

accused No.1 and accused No.4 is the wife of accused No.2. The

complainant (PW1) and Accused No.1 are cousins. There was pre-

existing enmity between the two families. According to the complainant,

on 17.9.2003, when the complainant, his wife (PW2) and his brothers (PWs.3 and 6) were removing some agricultural implements kept by the

accused in their land, the accused came to the spot armed with clubs, and

abused and assaulted them, as a result of which the complainant, his wife

and his two brothers suffered bleeding injuries. The incident, as narrated,

was established by the evidence of injured eye-witnesses, namely, PWs.1,

2, 3 and 6. All the independent eye-witnesses (PWs.4, 7 and 8) however

turned hostile. Having appreciated the evidence of the injured eye-

witnesses and the documentary evidence, the trial court held that the

accused guilty and, consequently, convicted and sentenced them. This has

been affirmed in appeal and revision and we find no ground to interfere

with the conviction.

4. The only question remaining for consideration is whether the

benefit of the Probation of Offenders Act, 1958 (for short `the Act') and

Section 360 of Cr.P.C. ought to have been extended to the appellants.

4.1) Accused 3 and 4 are women. They did not have any criminal

record or previous conviction. Having regard to their age, character and

antecedents and the circumstances in which the offence was committed, it

is expedient that they should be released on probation of good conduct

under Section 360 of the Code of Criminal Procedure. 4.2) Accused 1 and 2 are also first offenders. The learned Magistrate

considered it unnecessary to extend them the benefit of probation, in view

of the enmity between the families of the accused and the complainant.

We fail to see how such enmity is relevant for considering probation. We

are of the view that having regard to the circumstances of the case, nature

of the offence, character of the offenders, the learned Magistrate ought to

have secured the report of the Probation Officer and then passed

appropriate order, taking note of Section 4 of the Act.

5. We, accordingly, allow this appeal, in part, as follows :

(i) The conviction is confirmed.

(ii) In regard to accused 3 and 4, the sentence is set aside, and

instead of sentencing them at once to any punishment, we direct

that they be released on their entering into personal bonds to

appear and receive sentence when called upon during a period

of one year, and in the meantime, to maintain peace and be of

good behaviour.

(iii) In regard to accused 1 and 2, the sentence is set aside and the

learned JMFC, Raibag, is directed to secure the report of the

Probation Officer in relation to the case and then pass

appropriate order in accordance with law, keeping in view the

requirements of Section 4 of the said Act.

................................J. (R V Raveendran)

New Delhi; ................................J. August 13, 2009. (P Sathasivam)