Karnataka High Court
Sri Hanumantha vs State Of Karnataka on 22 December, 2021
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION NO.1097/2021
BETWEEN:
SRI.HANUMANTHA,
S/O JAVOORAPPA,
AGED ABOUT 26 YEARS,
R/AT SHIVANI VILLAGE AND POST,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 101.
... PETITIONER
(BY SRI.MOIDEEN ARAFAT, ADVOCATE FOR
SRI.SACHIN B.S., ADVOCATE)
AND:
STATE OF KARNATAKA,
BY AJJAMPURA POLICE, AJJAMPURA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
...RESPONDENT
(BY SRI.V.S.VINAYAKA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
DATED 05.09.2020 IN CRL.A.NO.195/2019 ON THE FILE
OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
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CHIKKAMAGALURU, THEREBY DISMISSING THE APPEAL
FILED BY THE PETITIONER AND CONFIRMING THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 28.12.2018 IN C.C.NO.366/2012 ON THE FILE OF
CIVIL JUDGE AND J.M.F.C., TARIKERE IN SO FAR AS THE
PETITIONER AND CONSEQUENTLY ALLOW THE
CRL.A.NO.195/2019 AS PRAYED FOR.
THIS CRIMINAL REVISION PETITION COMING ON
FOR ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Though this matter is listed for admission, with the consent of both the parties, the matter is taken up for final disposal.
2. Heard Sri. Moideen Arafat for Sri. Sachin B. S., learned counsel appearing for the revision petitioner and Sri. V. S. Vinayaka, learned High Court Government Pleader for respondent-State and perused the records.
3. This Revision Petition is filed by the accused, who has suffered an order of conviction 3 under Sections 457 and 380 of the Indian Penal Code, 1860 ('IPC' for shot) in C.C.No.366/2012 dated 28.12.2018 and ordered to undergo simple imprisonment for two years and fine of Rs.5,000/- with default sentence of six months simple imprisonment for the offence punishable under Sections 457 and 380 of IPC, which was confirmed in Crl.A. No.195/2019 by judgment dated 05.09.2020 by the II Additional District and Sessions Judge, Chikkamagaluru.
4. Brief facts of the case are as under:
A complaint came to be lodged by the complainant on 11.08.2011 at Gourapura village.
When the complainant was out of station by locking the door of his house and on the same day, in the night at about 1.30 a.m., the accused with an intention to commit theft in dwelling house during night hours, break opened the inter-lock of the door of 4 the house of the complainant and opened the Godrej Almirah lock with the help of rod, stolen 17.900 grams gold chain, 30.400 grams gold ear rings, 3.00 grams gold plain ear rings, 3.00 grams gold rings, 38.880 grams gold hand bangles from the Godrej Almirah.
The complainant having noticed the same, lodged the complaint against unknown persons at the first instance. On receipt of the complaint, the police investigated the matter inter-alia apprehended the accused and based on the voluntary statement given by the accused, the police were able to recover the gold ornaments from the custody of the accused and laid a charge sheet for the offences punishable under Sections 457 and 380 of IPC.
5. Learned Magistrate took cognizance of the alleged offences and secured the presence of the accused and framed the charge. The accused pleaded not guilty and therefore, the trial was held. 5
6. In order to prove the case of the prosecution, in all, 10 witnesses were examined as PWs.1 to 10 and relied on 12 documentary evidences, which were exhibited and marked as Exs.P1 to P12 and also Material Objects, which were exhibited and marked as MOs.1 to 3.
7. The complainant reiterated the contents of the complaint so also the panch witnesses supported the case of the prosecution whereby, the police were able to seize MOs.1 to 3 from the custody of the accused.
8. In pursuance of the voluntary statement given by him, the defence is unable to elicit any worth material to disbelieve the testimony of the prosecution witnesses. Thereafter, the accused statement as is contemplated under Section 313 of Cr.P.C. was recorded wherein, the accused denied all the 6 incriminating materials. Further, the accused failed to place his version about the incident on record by examining himself or placing any written submissions on record as is contemplated under Section 313(5) of Cr.P.C.
9. Thereafter, the learned trial Magistrate heard the parties in detail and recorded an order of conviction, convicting the accused for the aforesaid offences and passed the sentence as referred to supra.
10. Being aggrieved by the same, the accused has preferred an appeal before the II Additional District and Sessions Judge, Chikkamagaluru in Crl.A. No.195/2019.
11. The learned Judge in the First Appellate Court secured the records and after hearing the parties in detail, by judgment dated 05.09.2020, 7 dismissed the appeal and confirmed the order passed by the learned Magistrate. Being aggrieved by the same, the accused is in revision.
12. In the revision petition the following grounds have been raised:
x "The impugned judgment passed by the Appellate Court is contrary to law, facts and evidence on record and hence same is liable to be set aside.
x The impugned Judgment passed by the Court below is based on the consideration of irrelevant material placed on record by the Respondent. Under such circumstances the impugned Judgment passed by Court Below is liable to be set aside.
x The Court Below has not considered the contention raised by the Petitioner in proper perspective. Under such circumstances impugned judgment passed by the Court Below is liable to be set aside. x The finding recorded by the Court Below while passing the impugned Judgment is patently perverse, erroneous contrary to the material placed on record and laws laid down by the Hon'ble Apex Court.
x The Court below has examined 10 witnesses and marked 12 exhibits. The 8 Courts below failed in evaluating the evidence of the witnesses and proceeded to convict the petitioner on the basis of presumptions and assumptions.
x The Court below erred in not considering that the complainant has not furnished any documents for having purchased MO.1 to 3 gold ornaments and complaint averments are not in consonance with the evidence of complainant.
x The Court below erred in not considering that complaint was lodged on 13.08.2011 but further statement of complainant was recorded on 09.07.2012. The evidence of PW1 and 2 not corroborated with their 161 statement. Under such circumstances the conviction of petitioner is illegal and same has to be set-aside x The police have implicated the petitioner in the above case which was registered as C.C. No.366 of 2012 for the incident took place on 11.08.2011 and in another case which was registered as C.C. No.377 of 2012 for the incident which took place on 05.05.2011. Where in the both cases petitioner was arrested on the same day i.e.,09.07.2012 and prosecution examined same witnesses i.e., PW6 to 10 to implicate the petitioner. The PW6 who is mahazar witness in the both cases, where both the mahazars has been conducted on the basis of voluntary statement of petitioner but PW6 turned hostile in C.C. No.377 of 2012.
It is evident that the whole case of 9 prosecution nothing but sham and created one to implicate the petitioner.
x When the prosecution has failed to prove the ingredients of the offence punishable under Sections 457 and 380 of IPC is not attracted and the prosecution having failed to prove the case beyond reasonable doubt, the Court Below committed an error in convicting the Petitioner for the said offence.
x It is submitted that, there is no sufficient and legally acceptable evidence to convict the Petitioner in the said offence. x When the reasons of the Court Below has read as a whole and read in a proper context, it is quite evident that the Court Below has committed an error in dismissing the Appeal and confirming the Order of Conviction. The Trial Court has committed a legal error in appreciating the evidence to reach at the conclusion that the petitioner is guilty.
x The said finding recorded by the Court Below totally perverse and unreasonable. The Court Below based on the innumerable material has drawn an influence on the base of conjectures and sumarizes and the Court Below has given goby to the provisions of the Indian Evidence Act for convicting the petitioner.
x The Petitioner reserved liberty to urge Additional grounds at the time of arguments, if need arises.
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x Viewed from any angle the impugned Judgment passed by the Court Below is contrary to law and hence same is liable to be set aside."
13. Sri. Moideen Arafat, learned counsel appearing for the revision petitioner vehemently contended that both the Courts have not properly appreciated the material evidence on record and wrongly convicted the accused resulting in miscarriage of justice and therefore, sought for allowing the revision petition.
14. Alternatively, learned counsel appearing for the revision petitioner contended that since the accused is a first time offender, this Court may grant probation by enhancing the fine amount.
15. Per contra, learned High Court Government Pleader supported the impugned judgments by contending that the valuable MOs.1 to 3 are recovered 11 at the instance of the accused. In a matter of this nature, the seizure of stolen property at the instance of the accused proves all the ingredients to attract the offences alleged against the accused and therefore, the impugned judgements are based on sound and logical reasons and prayed for dismissal of the revision petition.
16. Insofar as alternate plea is concerned, he contended that the valuable Material Objects since being recovered at the instance of the accused and the accused has lurked into the house of the complainant in the night hours, no mercy can be shown for such persons and if any leniency shown, it would encourage the perpetrators of the crime and therefore, sought for dismissal of the revision petition in toto.
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17. In view of the rival contentions urged by the learned counsel for the parties, the following points would arise for consideration:
"1 Whether the finding recorded by the learned Magistrate that the accused is guilty of the offence punishable under Sections 457 and 380 of IPC which is confirmed in Crl.A. No.195/2019 is suffering from legal infirmity or perversity and thus calls for interference?
2. Whether the sentence is excessive?"
18. In the case on hand, admittedly, the complaint came to be lodged by the complainant stating that on 11.08.2011, there was a theft in the house of the complainant in the intervening night hours of 11.08.2011 and 12.08.2011 when he was out of station by locking the door of his house. Soon after he came to know about the incident, there is no delay in lodging the complaint. After thorough investigation, the Police have apprehended the 13 accused person and also able to recover MOs.1 to 3 from the custody of the accused. Based on the voluntary statement given by him, seizure of the MOs.1 to 3 stands established. It is pertinent to note that the Investigation Agency did not posses any previous enmity or animosity against the accused so as to falsely implicate the accused by implicating the valuable MOs.1 to 3 in the case. Therefore, as rightly argued by the learned High Court Government Pleader that the recovery of the stolen property is from the custody of the accused in pursuance of the voluntary statement given by the accused proves all the ingredients to attract the offences.
19. Moreover, there is no explanation offered by the accused about the incident. Under such circumstances, the trial Magistrate has rightly appreciated the material evidence on record and has 14 rightly convicted the accused for the aforesaid offences by assigning sound and logical reasons.
20. Learned judge in the First Appellate Court in the light of the grounds urged in the appeal memorandum, has re-appreciated the material evidence on record and came to the conclusion that the prosecution has successfully proved all ingredients to attract the aforesaid offences and the reasons assigned by the trial Magistrate is sound and logical and has rightly dismissed the appeal.
21. This Court in the light of limited scope of revisional jurisdiction has reconsidered the materials on record and in the light of the grounds urged by the revision petitioner.
22. As rightly contended by the learned High Court Government Pleader, the seizure of the stolen property from the custody of the accused in pursuance of the voluntary statement given by the accused, 15 which were marked as MOs.1 to 3 and in the absence of any previous enmity or animosity between the Investigating Agency and the accused, why would the police falsely implicate the accused is a question that remained unanswered. Therefore, this Court is of the considered opinion that the findings recorded by the learned trial Magistrate confirmed by the First Appellate Court is based on sound and logical reasons and does not suffer from any legal infirmity or perversity so as to seek interference by this Court in this revision petition. Accordingly, point No.1 is answered in the negative.
23. Insofar as sentence is concerned, it is well established principles of law that the role to be played by the Court while passing an order of conviction is different from the role to be played by the Court while passing the appropriate sentence in a given case. In 16 this regard this Court gainfully places reliance on the following cases:
i. In the case of Chandreshwar Sharma v.
State of Bihar reported in (2000) 9 SCC 245 at paragraph No.3, it is held as under:
"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non-ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negatived and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums 17 below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the CrPC. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."18
ii. In the case of Gulzar v. State of M.P reported in (2007) 1 SCC 619, it has been held as under:
"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co- exist at the same time in the same area. Such co-existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable 19 at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".
24. Applying the said principles enunciated in the above decisions to the case on hand, the trial Magistrate ought to have taken note of that the accused is a first time offender and in the absence of any previous criminal antecedents with regard to the accused, the trial Magistrate ought to have granted probation to the accused. Unfortunately, learned judge in the First Appellate Court has also failed to do so. Accordingly, this Court is of the considered opinion that if the accused is directed to execute a personal bond in a sum of Rs.25,000/- with one surety for the likesum to the satisfaction of the trial Court for his good behavior, which shall be in force for a period of two years and to pay fine of Rs.25,000/- for the 20 offences punishable under Sections 457 and 380 of IPC, would meet the ends of justice. Accordingly, point No.2 is answered partly in the affirmative and pass the following:
ORDER
1. Criminal Revision Petition is allowed-in-
part.
2. While maintaining the conviction of the revision petitioner - accused for the offences punishable under Sections 457 and 380 of IPC, the revision petitioner - accused is directed to execute a personal bond in a sum of Rs.25,000/- with one surety for the likesum to the satisfaction of the trial Court for his good behavior, which shall be in force for a period of two years and to pay fine of Rs.25,000/- in all for the offences punishable under Sections 457 and 380 of IPC inclusive of the fine amount imposed by the trial Magistrate and confirmed by the First Appellate Court payable on or before 31.01.2022.
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3. It is made clear that any violation of the bond condition or payment of the fine amount, the order of the trial Magistrate confirmed by the First Appellate Court stands restored automatically.
4. Office is directed to return the lower Court records with a copy of this order, forthwith. In view of the disposal of the main revision petition, the application - I.A. No.1/2021 also stands disposed of.
Ordered accordingly.
Sd/-
JUDGE VBS