Karnataka High Court
Moula Sab vs The State Of Karnataka on 6 March, 2013
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF MARCH 2013
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL REVISION PETITION NO.158/2013
BETWEEN:
MOULA SAB
S/O LATE HUSSAIN SAB
AGED 50 YEARS
OCC:CATTLE BUSINESS
R/A SOOJI MALLESHWARANAGAR
CHALLAKERE, TALUK CHALLAKERE
DISTRICT CHITRADURGA-577 501
... PETITIONER
(BY SRI SHARANAPPA MATTUR, ADV.)
AND:
THE STATE OF KARNATAKA
BY TALUKA POLICE STATION,
DISTRICT:CHITRADURGA-577 501
... RESPONDENT
(BY SRI SATISH R GIRJI, HCGP)
CRL.RP IS FILED U/S.397 & 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED
19.1.2013 PASSED BY THE ADDL. S.J., F.T.C.,
CHITRADURGA IN CRL.A.NO.59/2008 AND ALSO
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
DATED 27.06.2008 PASSED BY THE C.J. (JR. DN.) &
J.M.F.C., MOLAKALMURU IN C.C.NO.291/2006 AND
ACQUIT THE PETITIONER.
THIS PETITION COMING ON FOR ADMISSION THIS
DAY, THE COURT MADE THE FOLLOWING:
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ORDER
The petitioner (accused No.1) and accused No.2 in C.C.No.291/2006 were tried for an offence punishable under Section 379 IPC on the allegation that they had committed theft of a pair of oxen, cow and a calf belonging to first informant. The petitioner and second accused were intercepted by police, when they were transporting a pair of oxen, cow and a calf. The first informant had identified stolen animals.
2. The learned trial Judge, on appreciation of evidence of material witnesses and also evidence of Investigating Officer regarding interception of lorry and recovery of stolen animals from possession of accused has held the accused guilty of an offence punishable under Section 379 IPC and sentenced accused to undergo imprisonment for a period of 1 year 3 months and pay fine of Rs.3,000/- in default, to undergo simple imprisonment for a period of 3 months.
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3. The learned Judge of the first appellate Court, on appreciation of evidence has confirmed the findings of trial Court.
4. The learned Counsel for petitioner would submit that petitioner (accused No.1) is innocent of offence alleged against him. The only piece of incriminating evidence brought on record is that accused No.1 was found in the cabin of lorry in which these stolen animals were being transported. Therefore, the Courts below should not have held petitioner guilty of an offence punishable under Section 379 IPC. The accused does not bear any criminal antecedents. The sentence of imprisonment is also severe.
5. On hearing the learned Counsel for petitioner and after going through judgments, I find that findings recorded by the trial Court is based on proper appreciation of evidence.
6. The learned Judge of the first appellate Court on re-appreciation of evidence has confirmed the judgment of the trial Court.
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7. In the case of Johar & Others Vs. Mangal Prasad & another, reported in 2008 Crl.L.J. 1627 (2008 AIR SCW 1106), the Supreme Court has held:-
"9. Revisional jurisdiction of the High Court in terms of Section 397 read with Section 401 of the Code of Criminal Procedure is limited. The High Court did not point out any error of law on the part of the learned Trial Judge. It was not opined that any relevant evidence has been left out of its consideration by the court below or irrelevant material has been taken into consideration. The High Court entered into the merit of the matter. It commented upon the credentiality of the Autopsy Surgeon. It sought to re- appreciate the whole evidence. One possible view was sought to be substituted by another possible view.
10. Sub-section (3) of Section 401 reads as under :-
"401(3). Nothing in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction."
Technically, although Ms. Makhija may be correct that the High Court has not
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converted the judgment of acquittal passed by the learned Trial Court to a judgment of conviction, but for arriving at a finding as to whether the High Court has exceeded its jurisdiction or not, the approach of the High Court must be borne in mind. For the said purpose, we may notice a few precedents.
11. In D. Stephens vs. Nosibolla : [1951] 1 SCR 284 this Court opined :-
"10. The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal, against which the Government has a right of appeal under section 417. It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. This jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or misappreciated the evidence on record."
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12. The same principle was reiterated in Logendra Nath Jha and others vs. Polailal Biswas [1951 SCR 676] stating:
"........Though sub-section (1) of section 439 authorises the High Court to exercise, in its discretion, any of the powers conferred on a court of appeal by section 423, sub-section (4) specifically excludes the power to "convert a finding of acquittal into one of conviction.
This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could in the absence of any error on a point of law re- appraise the evidence and reverse the findings of facts on which the acquittal was based, provided only it stopped short of finding the accused guilty and passing sentence on him. By merely characterizing the judgment of the trial court as "perverse" and "lacking in perspective", the High Court cannot reverse pure findings of fact based on the trial Court's appreciation of the evidence in the case. That is what the learned Judge in the court below has done, but could not, in our opinion, properly do on an application in revision filed by a private party against acquittal....."
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8. In the case on hand, the Courts below have not committed any glaring errors in appreciation of evidence or errors of law resulting manifest justice to accused. There are no grounds to interfere with the impugned judgment.
9. As regards sentence, accused had committed theft of a pair of oxen, cow and a calf belonging to first informant, who was an agriculturist. It appears, animals were being taken for purpose of slaughtering. There are no extenuating factors in favour of accused to reduce the sentence. The petition is dismissed.
Sd/-
JUDGE nas.