Dastagir @ Babu S/O Late Ameer Jan vs State By Railway Police Reptd By Sr ... on 11 August, 2008

[Cites 3, Cited by 2]

Karnataka High Court

Dastagir @ Babu S/O Late Ameer Jan vs State By Railway Police Reptd By Sr ... on 11 August, 2008

Bench: N.Ananda

IN THE HIGH mum OF KARNATAKA AT   *

mrrao THIS THE um DAY    

BEFORE    .
ms aormm MR.Ji:$:-tics 5:;   
§,}RIl\¢1_INAL. Rswsgou  no.9sz2oQ_§ 5
BETWEEN:    ' % " ' 
1. Dastaﬁ" @_Eiahu  V
S/0. Lat¢~'1§1:;§:t:r dang 

S "9. Late: V' " 

III  Edga

% k%  {3yé£iyums~  85 A.N.R  Advocates)

 ﬁg 9 .* K 

S*a{a:t.sI : ByVRé:i:i§p::§Ly Police
Rcpg'-by  "V 

   High Court Buikiings
" « _   Rerspowmznt

   (gay Sri Sanjay Gawda, Advocate)



This revision petition is fiied under sections .397' 40   _
Cr.P.C., praying to set aside the judgment of coséyictiori  _ 
sentence passed by 1!} Add}. Civil Judge (Jr.Dr;.--;»..8§'.VJI§iFC. at ' ~..
Tumkur in C.C.No.964/ I995 dated 11, 10.2005 and Vcr5n§irmedfin'iV..
Cri.A.l*io.i'22/2005 dated 29.1C3.2005,';bon,_i;hej file"of'-._Pra&iding A'
Officer. F'I'C--lI.Tumkur8setc.   "  A' _ ~  

This revision petition  foriﬁniai 'i;«h.i3V r.V'iay,i
the Court made the following:      

    
Petitioners 1 85 2   "try as aec-used 1

as 2} wen:   2 fur an oﬁirnce

punishable iiig)  Railway Pmopcrtzies
 A§::'£,::V'1i9é6VVV_(f§<3r short, 'the Act') in
---of in Addl. Givii Juﬁge (Jr.Dn.)

85 JMFC    M "

 é  is' mg of prosecution;- on 04.04.1995 at

    AS! of Railway Protection Force and

  watch at K.M.69l8--9, accused 1 85 2 went:

 pmpczties. Accused No.1 was found in

if of one railway signal transmission aoﬁd Ind and

  qtacuscd No.2 was found in possession oftwo ra11w' ay algal'

ii rods. when thc ASI of Railway Protection Force inttrmgatcd

r\>  "



accused 1 as 2, they  to have  _

same ﬁmn railway dumping yard of    '4 " V» 

Accused 1 as 2 were arrested.   AA
ehmgesheet was ﬁled againstV'éu<v:;f.1setVi n;[ «SraV 2 

oﬁenoe.

3. During trial,    . ' and
documents as    Material
objects i.e.,   95.05.} to 4 and
one axclvbiadé 

"on appreciation of evidence

of PWS 1     relevant time accused 1 85 2

 _ ' wem«.feend   possession cf xailway properties.

  1 85 2 were convicted ibr an oﬂfenoe

 section 3(3) of the Act and sentenced them

V . to eiadeige iﬁiprieonment for a period of one year. Aggzicved

 accused 1 G5 2 ﬁled Criminal Appml

  PF_e;'i2'2/ 2005 before the Fast Track Court-ii at 'I'umkur. The

  Sessions Judge by judment dated 29.12.2005,

V dismissed the appeal and conﬁrmed the judgment of

P52' C$A,\_,¥£>,\_.v.«nL._ ,



conviction. Therefore, accused 1 35 2 an: bcfbrc this 

invoking sections 397 &s 401 Or. P. C.

5. in view of ooncunent hdmgs   'a.

learned tna' Iuiudgc and I--appellate tvfiudgtég    -. f15I§'f '

this Court to refer to a decisioxm.-;;om-;:i%  A1R*_?38i  *

(in the case of State of  Vg.   illath
Jathavedan   Court has
hckb   _ 2 .  .

  would not

   thc  Court to re-
a; ipI6pI'iatc   ﬁnd come to its own
concIu§ait:3;1 ﬁn "  when the evidence has
'V  by the Iaagisiratc as
 as the Skéséiohs Judge in appeal, unicss any
 --..gL*4;i13g« £€:ature is brought to the notice of the
which wouki othctwise tantamount
A  toV_'vg3:*:)§:3ATmisca11iage of justice. On scrutinizing
thffilnpumed judgment of the High Court fmm

AA ' ._thé' aforesaid stand-point. we havc no hesitation

V' " "to come to the conclusion that the High Court
exceeded its jurisdiction in interfering with the
conviction of the respondernt by reapprrcciating
tht: oral 1;-vidcnoc. The High Court also

gm c"P{'\/\ 0'"""L*"'



 _ respeizlcietit.

committed further error in not examining several   

items of evidence relied upon by the Additi_:t$11a§!'_'V-1   

Sessions Judge, while conﬁrming the  

of the respondent. In this (if the    &

impugned judgment of the unsustainable in law and_ we,V"aeoo1di11guiyV. } "

aside the same." ' V H

6. in View of what eitpm, can Iwappieciate the below have committed glarjzig i:ibn_.epfevidence. I nave» learned Counsel for peﬁtioncrs Gowda, Learned Counsel for ' ,8... taken through evidence and judments er

9. 1 «'35 2 were caught md handed when they four railway signal ﬁansmission rods by the Railway Protection Force and his staﬁ. On e1::qmry' , " 1 & 2 made confessional stafeitnents that they had N ' £7'---"""OLL\f removed said railway signal transznission rods railway dumping yard. L. K

10. The evidence of PW1 cvidezwe of PW$ 2 85 3. Accused 1 65 Vhésite L _ M.Os.1 to 4 are railway uniawful possesﬁion of r§n'1Way S did not have any Ina-tive to 1 65 2. The learned trial Judge' on " has held accused 'bf under section 3(a) of Sessions Judge on 11:-

app1evc:i.fatio1'1 " 12vi§lcA1iQSa:V"~'IK1Vas conﬁrmed the judgment of * " ..... .. « ' thmugh judgnents of the Courts below wi't}i"'I;eft$Ii:i.i:}nV. 1'fsfJ evidence on nwoznzl, 1 do not ﬁnd that .. have committad any glann' g errors in of evidence. Therefore, I do not find any ﬁgﬁixids to interfere with iztapugned judgment of conviction. N r s '--J

12. The learned Counsel for accused 1 as 2. ~ V. judgment of the Supreme Court, reported in M 3'82 (in the case of Nirmal Lal Gupta;'Ve. "Sta_te~,of;

submitted clause (a) 'of section :3 of the the Court to either award impristinment elf' or 'V both. In the aforesaid V jugigxnexit, vv"S}1§Z)I'e"3?'l1t:--..C0}t1I't has "4. on the pmsné-s£or§ we sectiop. i§S'tﬂf.:WAVe is evident, it has two clauees. 'Q-1) aﬁfardf punishment for first '' (b) operates to award pni;ii5Ll4:meﬁt.«i'£)tfA't11;e or subsequent 0ﬂ'enQe._ Vtiiiferenﬂy. W'he1eae» "f:J_r' __the "maximvum term of impﬁsoﬁﬂaeﬁt' imposed can be upitp 5 _ " term of upto one year, and thereieie 4a[ma.11d':a1:e it shall not be for a "V one" unless and until for adequate reasons to be judgment of the court, a lesser ofﬁfnipﬁeonment had been awarded. it is gray that the sentence of iznprisonmeut is 5'-"'V'Q€f'""' 8 compaltmentalised. The other alternate punishment is inaposiﬁon of ﬁne. Wheireas 'H1616-"'-.> is no maximum limit of the ﬁne impoeable, heat; which can in no event be excessive i.- ' unreasonable, there is, on the same minimum of Rs.10€)O ﬁne impeeabie, « until for Sliitlciai and adequzitc mentioned in the judgxnent of imposeti was less than 'e1g;:e'--e,thoi.1se1§ici'V. This too has its own oqm15eII*t1iie31t. 'C1auee,{a1) ﬁves a chobe " either award imprisenment or is the 'A determines whether ':£i1{5B§i'_: ASlL;0u1d be awarded er ﬁne alone" mf1:,oth should be awarded. It " _§iS thus titat it is not obligatory on the V" to award impxtieenment as a '' Once it is so understood it is comprehend that a Iilinimum se:_ite;1ee'a1one thereunder ie imposable to which ti;e_ 1~P1'obation of Oﬂenders Act would not be " ' ..,.apg§1icab1e."

In the case on hand, there is no material on record to aocused 1 85 2 heart' criminal antecedents and they we aim Eve"

were convicted for similar oﬁenees. Amused 1 & 2 of age. Considering these extenuating I', ' considered opinion sentence It-quixes e 4'

13. In the result, I pass the oansa The revision petitinn is The Vjndment of onnvicﬁon of 'a;;.i§m;;ishab1e under section 3(a) of the Act :is sentence is modiﬁed." 31;, =3. A' n1t~-"ﬁsentenced to undergo iniprisnvnxnent months and pay a ﬁne of Rs.5,O00/-Vt' to undergo iinprisonment for a , '_ one 1:nnntl:;____each. Oﬁce is directed to send back 3 copy of this order.

Sd/-

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