Karnataka High Court
Hrishikesh vs The State Of Karnataka on 4 July, 2024
Author: V Srishananda
Bench: V Srishananda
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CRL.RP No. 471 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 471 OF 2021
BETWEEN:
HRISHIKESH
S/O LATE VASUDEVA
AGE ABOUT 39 YEARS,
R/AT MAHAMAYA A.K. NAGAR,
KUTHPADI, UDUPI TALUK,
UDUPI DISTRICT - 576 122
...PETITIONER
(BY SRI. JAYANTHA POOJARY., ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY UDUPI TOWN POLICE STATION,
UDUPI,
Digitally
signed by UDUPI DISTRICT - 576 101,
YAMUNA K L REP. BY STATE PUBLIC PROSECUTOR,
Location: HIGH COURT OF KARNATAKA,
High Court of
Karnataka BANGALORE - 560 001.
...RESPONDENT
(BY SRI. VINAY MAHADEVAIAH, HCGP FOR R/STATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 10.08.2015 MADE
IN C.C.NO.45/2010 PASSED BY THE ADDITIONAL CIVIL JUDGE
AND JMFC, UDUPI AND CONFIRMED IN ORDER DATED
04.02.2021 MADE IN CRL.A.NO.54/2015 PASSED BY THE
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CRL.RP No. 471 of 2021
PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI AND TO
ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 457,380 OF
IPC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Jayantha Poojary and learned High Court Government Pleader.
2. Accused who suffered an order of conviction in C.C.No.45/2010, for the offence punishable under Secitons-457 and 380 of IPC and sentenced to one year imprisonment and fine of Rs.5,000/-, for the offence under Section-457 of IPC and 2 years rigorous imprisonment and fine of Rs.5,000/- for the offence punishable under Seciton-380 of IPC, with default sentence, confirmed in Criminal Appeal No.54/2021, has preferred this revision petition.
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3. Facts in brief, which are utmost necessary for disposal of the revision petition are as under:
Manager of Vijaya Bank, Udupi lodged a complaint with Udupi town police on 03.11.2009 contending that on 02.11.2009 at about 3.45 p.m., the revision petitioner in the guise of attending the repair work of air-conditioner, has managed to remain in the strong room in the said bank and hidden himself in between the cabinets that was stored in the strong room. Thereafter taking advantage of the fact that the bank was closed for the day for transaction, at about 9.00 p.m., with the tools that he had brought, forcefully opened the Almirah and stolen away Rs.20,000, which was kept outside the cash box and removed the cash box using the key and took away a sum of Rs.62,093/-.
4. Next day morning when the Manager and the Assistant Manager of the Bank entered the strong room, noticed the accused in the strong room and on enquiry -4- NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 came to know about the incident and apprehended the accused and handed over him to the Town Police. Police after registering a case, conducted a thorough investigation, seized the material objects, including the cash of Rs.82,093/- from the custody of the accused and filed the charge-sheet.
5. Presence of the accused was secured before the Trial Magistrate and charges were framed. Accused pleaded not guilty and therefore trial was held.
6. In order to prove the case of the complainant, Sri.T.Monappa Shetty, Smt.Malini V. Shetty, Smt.Gloria D'souza, Sri.Suresh R. Shetty, Sri.Ashok, Sri.Maruthi J Nayak and Sri.S.V.Girish, were examined as witnesses and the Investigation Officer was examined as PW-7. Complaint, Spot Mahazar, FIR and Seizure Mahazar were marked as Exhibits-P1 to P5. 26 Material Objects comprising of cash bag, tools, battery, soap piece, empty -5- NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 parle-G biscuit cover, water bottle were marked as MO-1 to MO-26.
7. On conclusion of the recording of the prosecution evidence, the accused statement as is contemplated under Section-313 of Cr.P.C. was recorded wherein the accused has denied all the incriminating circumstances that were put to him found in the prosecution case.
8. Accused did not offer any explanation whatsoever as is contemplated under Section-313(4) of Cr.P.C., nor adduced any defence evidence.
9. Thereafter, learned Trial Magistrate heard the parties, on appreciation of the material evidence on record convicted the accused for the offence punishable under Section-457 and 380 of IPC and sentenced as referred to supra.
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10. Being not satisfied with the judgment of the conviction passed by the Trial Magistrate, the accused preferred appeal before the First Appellate Court in Criminal Appeal No.54/2021.
11. Learned Judge in the First Appellate Court after securing the records and hearing the parties, in the light of the grounds urged in the appeal memorandum, dismissed the appeal by a judgment dated 04.02.2021 and confirmed the order of conviction and sentenced passed by the Trial Magistrate.
12. Being further aggrieved by the same, the accused is before this Court in this revision.
13. Sri.Jayantha Poojary, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition, contended that the accused who went inside the strong room for attending the repair work of the air-conditioner with regard to the ATM machine, had an -7- NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 asthma attack and he fell unconscious and remained in the strong room and without noticing his presence, the security personnel of the bank had closed the door of the strong room as well as the main door, resulting in the presence of the accused in the strong room till next day. Therefore, the conviction of the accused for offence punishable under Sections-457 and 380 of IPC is thus incorrect.
14. He also pointed out that the accused entered the Bank with the permission letter and therefore, there cannot be any offence under Section-457 of IPC, inasmuch as there was no criminal intention in forcefully entering into the prisms of the Bank and therefore conviction of the accused under Section-457 of IPC is incorrect.
15. He further pointed on record that the material on record would not point out that the accused has stolen away an amount of Rs.82,093/- as is contended by the prosecution and only with an intention to foist a false case, -8- NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 the amount that was there in the bank was implanted and the accused was convicted falsely and sought for allowing the revision petition.
16. Alternatively, Sri. Jayantha Poojary contended that there is no criminal antecedents to the accused and he is a married person with two young children to be reared and therefore, in the event of this Court maintaining the order of conviction, leniency may be shown and custody period already undergone by the accused may be treated as period of imprisonment by enhancing the fine amount and sought for allowing the revision in part.
17. Per contra, Sri.Vinay Mahadevaiah, learned High Court Government Pleader opposes the revision grounds and contends that admittedly the accused did not offer any explanation while recording the accused statement under Section-313 of Cr.P.C., about the argument that is now put forth by the learned counsel for -9- NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 the revision petitioner in this revision, and in the absence of any plausible explanation of presence of the accused in the strong room of the bank, all ingredients of the offences punishable under Sections-457 and 380 of IPC stands proved, inasmuch as a sum of Rs.82,093/- has been seized from the custody of the accused and the mahazar witnesses have supported the case of the prosecution and sought for dismissal of the revision petition.
18. He also pointed out that in a matter of this nature, if the Court shows any leniency or mercy to the accused, the same would send a wrong message to the society at large and sought for dismissal of the revision petition in toto.
19. Having heard the learned counsel for the parties in detail, this Court perused the material on record meticulously. On such perusal on record, the following points would arise for consideration:
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i) Whether the prosecution is successful in establishing all the ingredients of the offence punishable under Sections-457 and 380 of IPC?
ii) Whether the impugned judgment is suffering from legal infirmity or perversity?
iii) Whether the sentence is excessive?
REGARDING POINT (i) AND (ii):
20. In the case on hand, even according to the complaint averments, accused gained entry into Vijaya Bank, Udupi in the guise of attending a repair work of the air-conditioner. Accused represented that he has been sent by the Head Office to attend the AC repair work and believing the same, he was allowed inside the bank. It is the case of the complainant that in the guise of washing the hand, the accused somehow gained entry inside the strong room. Admittedly, the AC repair work was in respect of the ATM machine and there was no necessity for the accused to go inside the strong room. Gaining an entry into the bank, though legal, gaining an entry into the
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NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 strong room without the proper permission and making necessary entries in the register that has been maintained in the bank, would amount to trespassing into the strong room. Not only the said fact stands established, but also fact remains that till next day the accused was found in the strong room itself.
21. On 03.11.2009, when the officials of the Bank entered the strong room, he noticed the presence of the accused. He also noticed that there was damage to the Almirah and there was missing cash. Police have seized from the custody of the accused a sum of Rs.82,093/-, which has been produced as a material object before the Trial Magistrate marked as MO-2.
22. Panch witnesses to the seizure mahazar have supported the case of the prosecution. It is the further case of the prosecution that an enquiry accused revealed what transpired on the previous night and based on that a complaint came to be lodged.
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23. In a matter of this nature, the seizure of the stolen articles completes all ingredients of the offence. Therefore, the contention urged on behalf of the revision petitioner that the prosecution case is suffering from necessary evidentiary aspects with regard to ingredients to attract the offence alleged against the accused cannot be countenanced in law. Assuming for a moment that the contentions urged on behalf of the revision petitioner is to be believed, accused did not choose to submit the same before the Trial Magistrate either orally or by filing necessary written submissions as is contemplated under Section-313(4) of Cr.P.C.
24. If at all accused has suffered ill-health, especially had breathing problem and lost his consciousness, i.e., should have been in the said state for all time to come. More so, having regard to the fact that there was no proper ventilation in the strong room.
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25. Under such circumstances, the theory of the accused loosing consciousness, is only a ruse to escape from the rigors of law. As such, the same cannot be countenanced by this Court, that too, in the revisional jurisdiction.
26. The material evidence on record, especially the seizure panchanama, apprehension of the accused in the strong room by the bank officials and handing over him to the Police and recovery of the soap piece, empty biscuit packet, empty water bottle, would indicate the intention that was nurtured by the accused.
27. It is also pertinent to note that none of the prosecution witnesses, did not nurture any previous enmity or animosity against the accused, so as to falsely implicate him in the case. Assuming that they wanted to falsely implicate the accused, there was no necessity to implant a sum of Rs.82,093/-. Any smaller amount would
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NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 also have been implanted by the Police, if at all they falsely intended to implicate the accused.
28. Therefore, the conviction order recorded by the trial court and confirmed by the first appellate court, needs no interference by this Court. Accordingly, point No.
(i) is answered in affirmative and point No. (ii) in the negative.
REGARDING POINT NO.(iii)
29. Sri.Jayantha Poojary learned counsel contended that in the event this Court is maintaining the conviction, taking note of the fact that the accused is now aged 42 years and has got a family to maintain with two young school going children are there, and there is no other complaint against the accused all these years and he is now eking out his livelihood by attending a car mechanic shop in repairing the AC units of the cars, a lenient view may be taken and the custody period already undergone
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NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 may be treated as period of custody for the aforesaid offences and by enhancing the fine amount.
30. Learned High Court Government Pleader however opposed the said submission by stating that if any leniency is shown, it would send a wrong message to the society.
31. It is always a celebrated principle in the field of sentencing policy that 'every sinner has got a future' and it is also equally celebrated principle, while passing an appropriate sentence in a given case, the principle that 'the crime is to be hated not the criminal'.
32. Keeping in background these two celebrated principles, which would practically govern the field the sentencing policy in India, the role that is to be played by the Court while passing an order of conviction is different from the role that is to be played while passing appropriate sentence in the given case.
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33. Therefore, in the background of the above principles, when the material on records is appreciated taking note of the fact that the accused is now 42 years and he does not have any criminal antecedents and the incident that has occurred on the ill-fate day of the accused is an isolated incident and the accused was in custody from 03.11.2009 till 17.11.2009 and thereafter he did not misuse the bail condition, also taking into the fact that there is no compliant against the accused all these years, this Court is of the considered opinion, that custody period already undergone by the accused can be treated as imprisonment for the offence punishable under Sections 457 and 380 of IPC by enhancing the fine amount in a sum of Rs.50,000/-, inclusive of the fine amount already imposed by the Trial Magistrate confirmed by the First Appellate Court, would meet the ends of the justice.
34. More so, taking note of the fact that he has two young school going children and their future will also be at stake if the accused is sent to prison. However, if there is
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NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 a failure to deposit the fine amount as ordered by the trial court, the sentence ordered by the trial court needs to be restored.
35. Accordingly, point No.(iii) is answered partly in affirmative.
18. In view of the finding of this Court on point Nos.(i) to (iii), following:
ORDER
i) Revision petition allowed in part, while maintaining the conviction of the accused for the offence punishable under Sections-457 and 380 of the IPC, the sentence ordered by the Trial Court confirmed by the First Appellate Court is modified as under.
ii) The custody period already undergone by the accused is treated as period of imprisonment for the offence punishable under Sections-457 and 380 of IPC and accused is directed to pay a
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NC: 2024:KHC:25262 CRL.RP No. 471 of 2021 fine of Rs.50,000/- (Rupees Fifty Thousand) inclusive of the fine amount already imposed by the Trial Court confirmed by the First Appellate Court.
iii) Time is granted for the accused till 15.07.2024, to pay the balance fine amount, failing which the order of sentence of imprisonment ordered by the Trial Court confirmed by the First Appellate Court, would stand automatically restored.
iv) Office is directed to return the trial court records, along with a copy of this order forthwith.
Sd/-
JUDGE JJ List No.: 1 Sl No.: 37