Karnataka High Court
H M Jayaram S/O Marijappa vs State Of Karnataka on 28 August, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALGRE DATED THIS THE 28° DAY OF AUGUST 2009 os, BEFORE CRIMINAL REVISION PETITION NO.733/2006 BETWEEN: a H.M.Jayaram, S/o Marijappa, Aged about 25 years, Maroor Village, Thithimathi, Virajpet Taluk, =~ 0... _ ~ Kodagu. © 0 PETITIONER (By Sri N.Ravindrasiath Kamath, Adv.) AND: a State of Karnataka, _ By Ponnampet Police Station, ». Ponriampet, Kodagu District, By its Sub-Inspector. ...RESPONDENT
(Sri R.S.Bhat. HCGP) "This -Crl.RP. is filed u/S.397 & 401 Cr.P.C. praying to set aside the order dated 24.3.2004 passed by the Pri.C.JQr.Dn.) & IMFC, Virajpet in C.C.No.404/2003 and order dated 8.2,2006 passed by the Addl. District & S.J, FTC, Virajpet in Cri.A.No.23/04.
This Crl.RP. coming on for hearing this day, the Court made the following:
RDER Convicted accused is in revision against the. judgment in criminal Appeal No.23/04 dated 08. 02 x 2006 "
on the file of the Judge, Fast / Track Court, "Viraipet confirming the judgment _ in CL, No. 404/03. dated 24.03.2004 on the file Pof civil Judge: (Jr. Dn.) & MFC, Virajpet convicting the petitioner for offences punishable under Sections 380 and 454 of eC,
2. sca beri un Ravindranath Kamath ang. the Government Pleader, Sri K.Subramanya Bhat. The substance of allegation on the basis of which the petitioner was arraigned, tried and ultimately convicted is traceable to the complaint of P.W.1, L.V.Narayana in "which he alleged that he was living along with his family consisting of wife and children and on 14.06.2002, he had gone.out along with his wife locking the cupboard and the a door leaving the key on the lintel of the door for the other ° _tnembers of the family to use. When he returned, he ; noticed in the absence of his family members, some miscreants had trespassed in the premises and gained which the prosecution has examined in all 9 witnesses. and placed reliance on 16 documents. Considering. the evidence, the learned trial Judge found accused | Ho.t "
second accused, Raju. Aggrieved by the same, he ecb es appeal before the District and Sessions Judae, Fast Track | Court in criminal appeal No. 23/2004, "But the learned Sessions Judge found no merit: and dis tissed the appeal. Against the said concurrent f Findings, che is before this Court ina revision petition. .
a. Learned counsel fo the petitioner would contend that the. 'evidence brought on record through P.wW1 Narayana was: not worthy of credence as, in the complaint, "he had reported that some miscreants had managed to "gain entry. in to the house using some key and thereafter removed" the articles from the unlocked cupboard.
a "Whereas | in the further statement recorded on 15.09.2002 heh has changed his version to say that as per their : understanding whoever leaves in the last would keep the key in the lintel of the door so that the other members of house. He submits that this statement was not given in the complaint and is therefore an improvement to faiseiv implicate the accused. Secondly would contend that the - exact date on which the alleged thet has taken place: is | not mentioned but in the further statement he states that. 11.09.2002 is the date on "which theft must have taken place. He submits that such 'statements. are-at variance and only to implicate the accused # petitioner. He submits that as far as recovery of gola ornaments as per the report of the pawn borker and: others is » concerned, it does not establish' the. charge under Seci tions 380 or 354 of IPC.
Lastly 'he would contend. that sentence imposed is harsh and seeks reduction. -
5. Wir K.S.Bhat, learned HCGP supports the " imp ugned judgment and refers to the evidence of P.Ws.1, 3, 4, 5 and 6. He would contend that the complainant had a clearly averred in his report that his wife Lakshmi and : daughter Kumari had noticed loss of articles on 14.09.2002 ~awhen they wanted to go to the hospital. Till that time, they had. not discovered the loss of articles. A complaint suspected the petitioner as accused as he was working in the neighbourhood and was fully aware of the life pattern of the complainant and his family members. Besides, he -
instance of the accused from Pawn Broker P.W 6, Parastnal establishes the charge for offerice under Section 380 of IPC. On this ground he. submits that the judgment impugned has been rendered examining the evidence in its correct perspective and needs no interference.
6. Keeping in mind what is submitted by both the sides i have perused the records again. It is evident from the P.WaA, Narayana reported loss of articles on 14.09.2002 ard in the said report, he had suspected that ~ petitioner may be involved. In the further statement \ submitted on 15.09.2002, he has informed the officer only regarding the availability of the key on the lintel of the .. door. As far as description of articles is concerned, he has vividly furnished the description in the first complaint : "itself, Second aspect to be noticed is that the officer in charge of the investigation has acted on the statement of Se ee Ee arrested on 15.09.2002 and on interrogation he nas given a voluntary statement on the basis of which she. led the police to the shop of P.W6 from where the golet ornaments "
were recovered as per MOs 1 to 6.. This part of 'the prosecution evidence certainly has-stood the test of ios. examination by the accused and it is noticed that the petitioner accused has not been able to salvage anything in the cross examination 'to nullity the incriminating aspects emerging there from. In fact, the only plea put forward by the: accused is denial' simplicitor. The fact that the accused was" "aware of the life pattern of the complainant _ Family. As. not disputed seriously and it is further noticed that the: alleged theft must have happened ve some time on 11.09.2002 when the key was left ws unattended. The evidence would also disclose that the cupboard of which the key was left on the lintel of the 7 door, if a person would gain entry into the house then he a could gain easy access to the cupboard.
7. In the circumstances, the evidence of the complainant and the evidence of P.W.2 Kumari establishes the seizure of the articles MOs 1 to 6. The material on record certainly is incriminating in nature. I do net find any reason to differ with the conclusion reached by the :
trail Court as it establishes the charge against th the accused regarding theft of gold ornamenis. Since 'the: theft has. taken place in the house which was locke d cur indoubtedly. the act of the accused in gaining entry amounts to lurking trespass and since the theft has been committed, it amounts to lurking trespass and attracts second part of Section 454 of Ipc exposing the. petitioner to punishment to undergo imprise ment up to 10 years. As far as offence under Section 380 s concerned, he has to undergo punishment up to-7 months.
6. 'Learned trial Judge has sentenced him to undergo 7 RE RE for. two 0 years on each count and also to pay find of Rs:3,000/-. Learned counsel has also brought out from the * evidence on record that along with the petitioner one more ; person by name Raju were put to trial but the learned ; judge nas interpreted evidence in favour of Raju and acquitted him. Whereas the same evidence has been used there is no material with regard to recovery which. was only at the instance of petitioner herein. Therefore that ground is not available to the accused. However, in tiie matter of imposing punishment, taking into consideration the young age of the petitioner. and as ; there is ono.
allegation that he has indulged in any other offences of this nature, the imposition of impns -orment for a period of 2 years is on the higher s side. According y, the sentence of imprisonment, of two years. impose ad upon the accused for the offences under Section 380 and 454 IPC are set aside. 9, In the circumstances, 'the accused is sentenced to undergo imprisonment 'for a period of two months for offence under Section 380 of IPC and for a period of three ymoviths? for offence under Section 454 of IPC. Both the "sentences are to run concurrently,
10. If the accused has already undergone imprisonment during trial, he is entitled to set off as permissible under Section 428 of Cr.P.C. The accused is directed to surrender before the trial Court to undergo sentence: within a period of two weeks from the date of