Karnataka High Court
State Of Karnataka vs Navaz P.M on 12 December, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:51181
CRL.RP No. 1074 of 2018
C/W CRL.A No. 1346 of 2018
CRL.A No. 1566 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 1074 OF 2018
C/W
CRIMINAL APPEAL NO. 1346 OF 2018
CRIMINAL APPEAL NO. 1566 OF 2018
IN CRL.RP No. 1074/2018
BETWEEN:
STATE OF KARNATAKA
REPRESENTED BY
SUB INSPECTOR OF POLICE
D K MANGALURU DISTRICT
BY STATE PUBLIC PROSECUTOR
Digitally HIGH COURT BUILDING, BENGALURU-01
signed by ...PETITIONER
MALATESH
KC (BY SMT. WAHEEDA M M., HCGP)
Location:
HIGH
COURT OF AND:
KARNATAKA NAVAZ P.M.
AGED ABOUT 37 YEARS,
S/O SULAIMAN
RESIDING AT LAKE VIEW
NO.408, GUJJARA KERE
JEPPU, MANGALURU
...RESPONDENT
(BY SRI.NISHIT KUMAR SHETTY., ADVOCATE)
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NC: 2024:KHC:51181
CRL.RP No. 1074 of 2018
C/W CRL.A No. 1346 of 2018
CRL.A No. 1566 of 2018
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401
CR.P.C PRAYING TO ALLOW THE ABOVE CRIMINAL
REVISION PETITION BY MODIFYING THE SENTENCE
IMPOSED BY THE COURT OF SESSIONS, D.K.,MANGALURU
ON 30.06.2018 IN CRL.A.NO.100/2017 AND IMPOSE
MAXIMUM SENTENCE AGAINST THE
RESPONDENT/ACCUSED NO.2, FOR THE OFFENCE
P/U/S.381 OF IPC.
IN CRL.A NO. 1346/2018
BETWEEN:
SRI ADIL @ MOHAMMAD ADIL
S/O BAVA
AGED ABOUT 20 YEARS
R/AT IN FRONT OF PANDYARAJA BALLAL HOSTEL
MUKKACHERRY, ULLAL
MANGALORE, D.K. - 577 101.
...APPELLANT
(BY SRI. HARSHA G, ADVOCATE
SRI. SACHIN B S.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH PUBLIC PROSECUTOR
D.K. MANGALORE
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001.
...RESPONDENT
(BY SMT. WAHEEDA M M. HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION DATED 30.06.2018,AND
SENTENCE DATED 05.07.2018, PASSED BY THE
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NC: 2024:KHC:51181
CRL.RP No. 1074 of 2018
C/W CRL.A No. 1346 of 2018
CRL.A No. 1566 of 2018
PRINCIPAL SESSIONS JUDGE, D.K., MANGALORE IN
CRL.A.NO.100/2017, CONVICTING THE APPELLANT/
ACCUSED NO.1 FOR THE OFFENCE P/U/S 381 OF IPC AND
ETC.
IN CRL.A NO. 1566/2018
BETWEEN:
NAVAZ P M
S/O SULAIMAN
AGED ABOUT 37 YEARS
R/A LAKE VIEW, NO.408
GUJJARAKERE, JEPPU
MANGALORE DK-575005 ...APPELLANT
(BY SRI. NISHIT KUMAR SHETTY.,ADVOCATE)
AND:
STATE OF KARNATAKA
BY POLICE INSPECTOR
MANGALORE EAST POLICE STATION
REPRESENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE-560001
...RESPONDENT
(BY SMT. WAHEEDA M M. HCGP)
THIS CRL.A. IS FILED UNDER SECTION.374(2) CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION DATED 30.06.2018 AND SENTENCE DATED
02.07.2018, PASSED BY THE PRINCIPAL SESSIONS
JUDGE, D.K., MANGALORE IN CRL.A.NO.100/2017-
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE
OFFENCE P/U/S 411 OF IPC AND ETC.
THIS PETITION AND APPEALS, COMING ON FOR
ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS
UNDER:
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NC: 2024:KHC:51181
CRL.RP No. 1074 of 2018
C/W CRL.A No. 1346 of 2018
CRL.A No. 1566 of 2018
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL ORDER
1. Though the matters are listed for orders, with the consent of the parties, they are taken up of for inal disposal.
2. Crl.RP.No.1074/2018 filed by the State and Crl.A.Nos.1346/2018 and 1566/2018 filed by accused Nos.1 and 2, are arising out of the same judgment passed by the trial Magistrate confirmed by the learned Judge in the First Appellate Court.
3. While the State is seeking for enhancement of the fine amount in respect of accused No.2 imposed by the First Appellate Court, accused Nos.1 and 2 have challenged the validity and correctness of the judgment passed by the First Appellate Court in reversing the order of acquittal and convicting the accused for the offences punishable under Sections 379 and 411 of IPC and imposing the fine amount of Rs.1,00,000/- to accused No.1 and Rs.50,000/- to accused No.2. -5-
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4. Facts in the nutshell, which are utmost necessary for disposal of these matters.
A complaint came to be lodged with the Mangaluru Police Station by the owner of the cloth shop. The complaint averments reveal that the complainant was running the cloth shop in the name and style of the 'Sagar Dressers' and for the purpose of business, he has purchased a huge quantity of cloth and stored in his shop. The business timings of the shop was from 9 a.m. to 8 p.m. After the business hours were over, the shop would be locked. However, the complainant noticed that there was a shortage of clothes and on proper search, he came to know on 18.12.2014 that the watch man told the complainant that some quantity of the clothes were stored in the generator room. He also revealed the name of accused No.1 namely, Adil, who has thieved the clothes from the shop and kept in the generator room for the purpose of selling them in second hand market. On enquiry, accused No.1 admitted that he had duplicated the -6- NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 keys of the lock which was put to the main door and with the help of those duplicate keys, he had opened the main door and thieved the clothes worth Rs.11 ½ Lakhs. After thieving the clothes, he said to have sold the same to Marina Fashion, proprietor of which, is accused No.2.
5. Based on the complaint, the Police registered the case and investigated the matter. During the course of such investigation, accused Nos.1 and 2 were apprehended and based on their voluntary statements, portion of the stolen clothes were seized and charge sheet came to be filed.
6. On receipt of the charge sheet, the learned trial Magistrate took cognizance, secured the presence of the accused persons and recorded the plea. Accused pleaded not guilty. Therefore, the trial was held.
7. In order to bring home the guilty of the accused persons, prosecution in all examined 19 witnesses and placed on record 28 documents.
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8. Certain answers were obtained in the evidence of the prosecution witnesses, who have supported the case of the prosecution which would prima-facie establish that the prosecution could not establish the nexus between the recovered stolen articles and the accused persons and therefore, the learned Magistrate acquitted the accused after hearing the arguments on merits of the matter.
9. State preferred an appeal against the order of the Trial Magistrate before the learned judge in the First Appellate Court.
10. Learned judge in the First Appellate Court after condoning the delay in the filing the appeal, heard the parties in detail and on reappreciation of the material available on record noted that there was no explanation whatsoever offered by the accused in respect of recovery of portion of the stolen clothes at the instance of the voluntary statement given by the accused and the material evidence in the form of oral testimony of PW-1 and the watch man was sufficient enough to establish that the -8- NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 clothes which was seized from the generator room was thieved by the accused No.1 and portion of the clothes were sold to accused No.2, reversed the order of acquittal and convicted the accused and sentenced as under:
"Accused No.2 is sentenced to pay fine of Rs.50,000/-. In default to pay fine amount, Accused No.2 shall suffer imprisonment for five months. Office is directed to furnish free copy of Judgment to accused No.2.
Issue conviction warrant against accused No.2, if accused No.2 fails to pay the fine amount.
Issue NBW against A-1. Returnable by
11.07.2018."
11. Being aggrieved by the same, accused Nos.1 and 2 have filed the appeals as aforesaid and the State has filed the revision petition seeking for enhancement of sentence insofar accused No.2 is concerned.
12. Having heard the parties, this Court perused the material available on record meticulously. -9-
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13. On such perusal of the material available on record, it is crystal clear that while recording the accused statement, accused persons have not offered any explanation whatsoever with regard to incriminating circumstances as found against them.
14. Learned judge in the First Appellate Court has placed reliance on oral testimony of PW-11, PW-12, PW-14, PW- 15 and PW-16. Among them, PW-14 has been working in the shop of the complainant and he has been present while Ex.P3-Mahazar was drawn. PW-15-Abdul Hameed deposed about he being working as an Accountant in the shop of PW-1 and was also a sales man in the shop of accused No.1. Keeping the clothes bundles in the generator room and used to sell the same to accused No.2, was established by placing the necessary evidence on record.
15. PW-16 deposed that he apprehended accused No.2 and on enquiry, accused No.2 has given information with regard to the receipt of bundles of clothes from accused
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NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 No.1. The seized clothes mentioned in Ex.P18-photographs under Ex.P2-Mahazar having been recovered and in the absence of any plausible explanation by the accused persons with regard to the seizer of the clothes, learned judge in the First Appellate Court recording an order of conviction by setting aside the order of trial Court.
16. The voluntary statements of accused Nos.1 and 2 were marked on behalf of the prosecution vide Ex.P20 and Ex.P21. Perusal of the voluntary statements would go to show that it is accused and accused alone, who knew about the incident and admissible portion having been marked and pursuant to the said voluntary statements, recovery has taken place.
17. As such, this Court is of the considered opinion that the order of the First Appellate Court in reversing the finding of the trial Court and convicting accused needs no interference.
18. No doubt, it is one of the celebrated principles of criminal jurisprudence that the Appellate Court should be
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NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 slow while interfering with the order of acquittal as is held in the case of CHANDRAPPA AND OTHERS VS. STATE OF KARNATAKA reported in (2007) 4 SCC 415. However, the appellate powers are not totally taken of, if there is a misjudging of the material evidence on record by the trial Judge.
19. All that the learned judge in the First Appellate Court has reappreciated the very same material evidence on record and has noted that there was no explanation whatsoever forthcoming from the accused for the seized clothes at the instance of the voluntary statements given by them.
20. Moreover, accused No.1 was the employee of the complainant. Complainant did not chose to file any complaint against the accused for a long period. It is only after he noticed that there was a shortage in the quantity of the clothes that were stored in his shop, he entertained the doubt. When there was deep search for the missing clothes bundles, the watch man, who did not nurture any
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NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 enmity or previous animosity as against the accused No.1 as a dutiful servant informed about the storing clothes in the generator room.
21. On further enquiry, accused No.1, who revealed about the incident by using the duplicate keys. The said material of facts as law site of the learned Trial Magistrate while recording an order of acquittal against the accused.
22. Therefore, this Court that too while considering two divergent opinions in respect of an incident, has to exercise due care and caution while accepting version as against the another.
23. This Court is not oblivious of the fact that in a given case if two views are permissible, the view that favours the accused must be preferred.
24. But in the case on hand, the missing clothes bundles worth to the tune of Rs.11 ½ Lakhs. What is recovered, is portion thereof. Therefore, for hoisting a false case, nobody would make out a statement that he lossed 11 ½
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NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 Lakhs worth clothes bundles from his shop that too against his own employee, which did not happen for sufficient period of time and portion of the stolen clothes bundles having been recovered could not have been implanted either by complainant or by the investigating agency only with an intention to secure the order of conviction against the accused Nos.1 and 2.
25. Therefore, this Court is of the considered opinion that order of conviction recorded by the trial Magistrate confirmed by the First Appellate Court needs no interference.
26. Having said thus, State has filed revision petition seeking enhancement of the fine amount and awarding the imprisonment. Incident is an isolated incident. Learned judge in the First Appellate Court noted that there was no criminal antecedents to the accused persons.
27. Therefore, the learned judge in the First Appellate Court while appreciating the material facts of the case, took into consideration yet another celebrated principles of
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NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 criminal jurisprudence that the Courts are required to hate the crime and not the criminals, ordered fine amount alone instead of ordering sentence of imprisonment and fine.
28. Said exercise of the discretionary power by the learned judge in the First Appellant Court, is in the exclusive arena while sentencing the accused persons that too before the First Appellate Court.
29. State is unable to establish before the Court that improper exercise of the jurisdiction while sentencing the accused nor is in a position to establish before the Court that the case demands a compulsory imprisonment period even for a shorter period.
30. Taking note of the language employed in the penal sections under Sections 379 and 411 of IPC, wherein the legislature itself has bestowed sufficient discretion for the trial Judge or the judge, who convicts accused for the first time at the appellate stage, this Court is unable to accept the grounds urged in the revision petition that the case demands the enhanced sentence or enhance sentence
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NC: 2024:KHC:51181 CRL.RP No. 1074 of 2018 C/W CRL.A No. 1346 of 2018 CRL.A No. 1566 of 2018 either in the form of enhancement in the fine amount or compulsory imprisonment.
31. Having said thus, accused No.1 being the employee of the shop, he having lost his job and is now seeking out his livelihood in some other shop for a meager salary, imposing of the fine amount in a sum of Rs.1,00,000/- would act as harsh to him.
32. Taking note of the same, the fine amount insofar accused No.1 needs a reduction from Rs.1,00,000/- to Rs.75,000/-. Thus, from the above discussion, the following:
ORDER
i) Criminal revision petition field by the State is dismissed.
ii) Criminal appeal filed by accused No.1 is allowed in part, while maintaining the order of conviction of the accused No.1 for the offence punishable under section 379 of IPC, the fine amount ordered by the First Appellate Court in a sum of Rs.1,00,000/- is reduced to Rs.75,000/-.
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iii) Criminal appeal filed by accused No.2 is allowed in part, while maintaining the order of conviction of the accused No.2 for the offence punishable under section 411 of IPC, the fine amount ordered by the First Appellate Court in a sum of Rs.50,000/- is reduced to Rs.40,000/-.
iv) Time is granted to accused Nos.1 and 2 to pay modified fine amount on or before 10.01.2025 failing which, they shall undergo default sentence ordered by the First Appellate Court. In view of disposal of the main appeal, all pending IAs consigned to records.
Sd/-
(V SRISHANANDA) JUDGE HA List No.: 1 Sl No.: 9