Karnataka High Court
Murthy Alias Beedi Murthy vs The State Of Karnataka on 8 July, 2008
IN THE HIGH COURT OF KARNATAKA AT BANGALORVEO
DATED THIS THE 8*" DAY or JULY 2008 I I
BEFORE
THE HON'BLE MR..IusTIcE i<.N.KESHAVAh.IAF'IAYAjif»:.I§IE'II I
CRIMINAL REVISION PETITION .NQ.6f26l2IOG6I, A I
BETWEEN:
MURTHY ALIAS SEED! MURTHY--.._ @%
AGED ABOUT 34 YEARS I
900: coox
R10 GANESH COLONY ._
BHADRAVATHI, ~
DIST: SHIMOGA I " I 1
V I ; I PETITIONER
(By Sri. R B DEsHPfij.NDEE_. ADv:)
MIL
THE STATE {)IIIFvIIII'@v'II"3.IVII':'\"VI'II"5~III(_\fi'...__' V I
" II I ...RESPONDENT
(By '$ri';MIG.ANJAI'4'AI'MD'RTIIY. SPF) "*T.Hls ..ICR|MINA--L----«REV|SlON PETITION Is FILED UfS.397 I4-0'52 BY THE PETITIONER PRAYING THAT THIS HON'BI;E, 'COURT MAY BE PLEASED TO SET ASIDE E"'-JUDGMENT ORDER DATED 7.2.2006 PASSED BY P.O., FTC~*I|. SHIHIQCSA, IN CRi..A.NO.40I2005 AND JUDGMENT AND OR'D.'ERV_v'D.A'.FED 31.3.2005 PASSED BY THE ADDITIONAL JMFCL, BHADRAVATHI, IN C.C.NO.6389!2004 AND ACQUIT TI-IE PETITIQNER.
WTHIS CRIMINAL REVISION PETITION COMING ON FOR "IV-IEr'=.~RING THIS DAY. THE coum' MADE THE FOLLOWING:
if , _Q___e_u_2_.e_3.
The accused No.1 in cc No.6389i20t'34 on the nice Civil Judge .zr.nn. 3. Additional awe. Bhadravathi. dgtpteeeda - this Revision Petition. under Section_s....'.3u? and" " V questioning the legality and correctn,ess;"'s::fi' the 'of:
conviction and sentence dated ;E:l:2005*-passedlthecttlpealmed Magistrate and the judgment of thelllllearued Juclge dated 7.2.2006 passed in Cfi.A.lsloy;-40i'?;O0,«5l.ifldisiniseing the said appeal and upholding the je_dgmentg_efl'the
2. The nlew_Temu1i;Pol€ice.; Bhadravatht; filed charge sheet against:v't'hisVlreuts'ion ddddsdd No.1 and another person by name¥Dhananjaye.as accused No.2 for the offence punishable under V EPC. interalia alleging that on at 1€l.fiGv--...P.«M. the two accused persons unlawfully gained_ the property belonging to the VlSL Factory and 'attempted theft of the water pipe measuring 12 h in g length "and lunch the accused were lilting away the pipe from the it 'V V spet.,_CW's 1 and 2 who were the security ofticers of private security lfin9cei'llvvorl¢ing in the Vlst. Factory, Bhadravathi caught hold of it "accused No.1 while accused No.2 ran away from the place and disappeared in darkness after throwing away the pipe. Thus, the 9V accused has committed an offence punishabie under Section 379 IPC.
3. According to the prosecution alter the incident. _CW.1 Shivakumar. came to the Police Station and iodged cornplaint.._as per Ex.P.1 and produced accused No.1 before the Poilé'e1;e _ on the complaint. case in Cr.No.87i2€}04 for the under Section 379 IPC came to be Nos.t and 2 and accused No.1 nes4arrest--ed';-- Dufing"--l.inuestig£;tion,V r the lnvestigating Officer visited the'l'seene of oceanen-cellvseieed the pipe which was lying thereend ti§ie.émahaiar-Ex.P.2 and after c'empieting the investigation. fiieci charge sheet "accused. Upon service of summons. t;4eth., the"4V'a_cca:sed appeared before the learned Magistrate and guilty for the charges levelled against in and cleirned_ to be tried.
4..-._'Duririg trial. the prosecution examined CWs.1 and 2 who tnevsecurity personnei as PWs.t and 2. CW3-Ameer Jan. the $"ecs.:.rity Officer as PW.3, CW.6-K.Basappa, PS1 and CW5- _,v_lsiarasappa. Head Constable as PWs.4 and 5 respectively. Atter V' the prosecution ciosed its side of evidence, learned Magistrate examined accused Nest and 2 under Section 313 Cr.P.C wherein the accused denied all the incriminating circumstances appearing against them. The accused did not choose to evidence. The defence of the accused was one of denial that of false implication. 4
5. After hearing both sidesrt-h_e learned» uagiségateey his judgment under revision held that._thVe*vprssecution' --h.asgs5roved the guilt of accused No.1 beuonuall:reasnnatileiijideuht for the charge levelled against him. in witnesses were unable to identilji as culprit. the teamed Magistrate charge levelled against him. Nelliyand his counsel regarding sentence.' thetearhedA'«llll'a{ristrate sentenced accused No.1 to undergo simple irnprisonreent. for a period of two years and to pay i35i-1;'9§i0J- snare default to pay tine. to undergo simple months for the offence punishable under $ectien Aggrieved by the said judgment of conviction and sentence. the accused No.1 tiled appeal before the Sessions i iffJiudlgje. Shimoga. in Crl.A.No.40!2005. The Presiding Officer of ' Shimoga. to whom the appeal was assigned, after hearing " wbioth sides. by the judgment under revision. upheld the judgment of the learned Magistrate and consequently dismissed the appeal. Being aggrieved by the judgments of the Courts below. the accused No.1 has presented this Revision petition, interalia contending that the judgments of the Courts below are iilegai, arbitrary, capricious and are not based on any cogent and convincing ev.idjenc_'e,".;~a"s such. the judgments sufiec from iilegality and K they are liable to be set aside.
6. I have heard the teamed c.oura'$a§fivaopearingiuior--.th1aj. revision petitioner and the leamedV_Fui>lic F'5'rosecut_oi",ior.tii«e..$tate.i
7. The learned counsel for the "rovision";>etitioi1er"c§iuring the course of arguments. in addition the urged in the Revision Petition, contended taat:tno:_e\éijaeiace pieced by the prosecti:tion--_ie 'no independent witaees has been examined'to4_'prof¢e"~the.Vcharg;e'eV.levelied against the accused and that tand '2. highly interested witnesses, therefore, in the afln3¢!.._corroiioration from the independent witnesses. the hot right in accepting the evidence of PWs.1 and 2 to-record ocniiiction. He further coraended that on the basis of eviderioe on record, the guilt of the accused for the charge gV":"_iev_eil:ojd against him cannot be held as proved beyond aii ' reasonable doubt, therefore. the Courts beiow ought to have acquitted the revision petitioner--accused No.1. He further contended that the Courts below have not considered the question @ with another person eespassed into the property of the VISL factory and tried to commit theft of iron pipes. marked as M.O.1 and at that time. accused No.1 was caught red-handed by Pws 1 and 2..Thus there is concurrent finding by the two courts below in this..Vre'g_a':d. Perusal of the evidence of ?Ws 1 and 2 indicates that:'the' _ has not seriously disputed during the cross--exarnin--ation, and 2 the fact that Pws 1 and 2 were vLroi*l<in:o'Aa.s the vast. fadory on 11.10.2004arabourt1%o;oo p.niv.77Qn: the other' $ hand. the suggestions put to and "2.V_during 2i.ij1eWcross- examination indicate that the accujsggi"admitted'his presence near the VlSL factory at the re!evant:proint.:of According to the suggestion put to 1 iri this'~re_gar'd.ijon the date and time of the aileged incident1;«the«:accused' No.1 was proceeding there fully drunk and accusation ageinstthern about piiferage.jAfaiseh,rAirnpiicatedvaccused No.1 in the case. Thus the 'JV"-..pre'eence'ri.of'*accused'"N'o.i at the piece of the incident at the vtime has been admitted by the accused. Though an.d't2_ have been cross-examined at length. nothing has 'r__been eiicited to discredit their testimony about accused No.1 A X" another person coming there and trying to commit theft of iron pipe marked as M.O.1. The evidence of Pws 1 and 2 that they "caught hold of accused No.1 at the scene of occurrence and later produced him before the police are corroborated from other documentary evidence. Learned Counsei for the revision pet-i*.ioner pointing out to the answers elicited from P.W.4 in t%t'e*i¢'ross<- examination to the effect that on the next day, he arrested ' accused and produced thorn before thefieuért, contendedwlthate_the_ in whole case of the prosecution that accused i*to.1'iiwas handed and produced before thepolice on"! L' be accepted. No doubt, P.lN.4 in t_h_e'crossfexamination has stated that he arrested the two o:ntthe_'L'next_»»day and produced them before the Court. HAoxeever, i.'is'V'"quite contrary to the contents ofrentanid the information sent to the relativies about his arrest. which are found ineijnali¢¢;.ri at pages 22, 23 and 24.
According. to«theseV_recerds--;V_:'accused No.1 was arrested during the night of 11i1"0i.2t)04,"Therefore. the answers elicited, in the cross- ~'"~d_,_exain'ination..l_of P;Wv.v4------«as noticed above, has not in any way 'a:fFet:tedvth'e of Pws 1 and 2.
11, According to the defence of the accused. there were 'x__inciden~!s".of theft of iron pipes and other articles from the vast. A 51" premises and in that regard, there were ailegations against AF?Ws"1 and 2 who were working as security guards. therefore, in Herder to cover up the said accusation against them, they have faisely implicated the accused. Except the suggestions put to Pws 1 and 2 in this regard, which have been denied by them, there is no W other circumstance to indicate that Pws 1 and 2 were facing the allegation of dereliction of duty.
12. Mere suggestions put to witnesses during thefcross- examination woutd not amount to substantive avi-o'encs,_'__i' suggestions put to Pws 1 and 2 in the cross«examination_:'are not _ shown to be acceptable. There is nothing in 'the"cross...§x'arnination'¥ of PWs 1 and 2 to indicate that theyA:'h__aiagany arouse or against the accused so as to falsehrtiiiitepticate'theme in ttiewcase. No i' doubt. the prosecution V has neitiier"t_;'*cit'ed_ noriexamined any independent witnesses. Maren baciaursejiitthe»prosecution has not been able to fine tindepenfient't.h_evevic!ence of PW:-3 1 and 2 cannot be rejec!:edt_ir31«toto[!t-.is the duty of the Courts to scrutinize the evidence"piaced'b§;I'Athe" prosecution and find out as to whether the eiridence such iNitn'esses is acceptable or not and it is not the V' of the courts to Afindifautt with the prosecution in not examining i___sc-ine' 'wit.nesses. Though during the cross-examination of and is elicited that at the time of the incident several "v._pei'SOiISti'ili'Br$ moving around to go to the factory. there is no A 51' " indication in the evidence of 1'-'Ws t and 2 that any of those persons had opportunity to see accused No.1 along with another person V to commit theft of iron pipe within the VISL factory premises. Therefore. having regard to the facts and circumstances of the case. it is not possible to hold that there were any other as H and his family members. He further contended that the Courts below have not set out any reasons as to why the benefttVe'ot*the provisions of PD Act, cannot be extended to the % petitioner, therefore, the sentence ordered thee./.:lea_n':ed'i d Magistrate and confirmed by the iearned $e_ssions__ to be altered and the benefit efthe viproidvisions required to be extended to the accueedlrevision. _eetitione'r,'
16. The ieamed ._retienee reported judgment of the Hon'bte the case of CHANDRE8Hi@lA.'t§HAF§tfeL¢ tie. snare MAR reperud in 2090 scc the judgment of the trial Court indicatee that learnVed"5l_legi_se'ate has considered the qaefiion as to whether the entitled for the benefit of the provieions. of Having regard to the fact that the accused .'"i*io.V"i" haiefeontnjittedvvand'heinous offence against the complainant against the State in general affecting the interest of has held that ifthe benefit of the provisions of *-.P.O Aetris extended to the accused, the public woutd lose morale "oer upon the Courts. Therefore. the learned Magistrate has heid V" that accused No.1 is not entitled for the benefit of the provisions of no Act, & 12:'.
17. Thus it is ciear that the iearnod Magietrme has considered the question as to whether the accused No.1 is entitiod for the benefit of the provisions of PD Act. in the reported decision mentioned above, the Hon'bie Supreme Court has n.otjiced'ftha none of the courts below have considered "
applicability of Section sec of Cr.P.C mass'menniora,smear V V' The Hon'b|e Supreme Court white considering 'tite"'<:aseV accused who had been found guiityifi the or'-fence_ under = . S' Section 379 IPC. having regard to_t:he.:faete an.d'*eircAe:~n§stances of the case. has extended tneV:r'benefits.j_ot'.Sections .368 of Cr.P.C and ordered the release of the.Vap,o_ei|antAtherei'n the PI) Act on good conduct of sentencing-hir*n. The question whether or not an ecceséede pjersfoniis to the benefit of the provisions of PD Act 'op"cn:_"..the facts and circumstances of each caso.}gh'io"~doubtL' th.VeVv_prei:'isions of PD Act are appiicabie to the the accusedipetitioner has been found guilty. be autornaticaiiy stated that the accused is entiiied foirithe" benefit of the provisions of PO Act. S " 1'3'. According to Section 3 of the P.0 Act when a person is .' iioendii guitty of having committed an offence punishabie under it "Section 379 or Section 380 or Section 381 or Section 404 or Section 420 of the Indian Penal Code and if no previous conviction is proved against him and the Court by which the person is found %/ T guilty is of the epinion that having regard to the circumstances of the case including the nature of the offence and the character of the offender. it is expedient so to do. then, the Court may instead of sentencing him to any punishment. reiease him on probation of good conduct under Section 4 or release him after due
19. According to Section 4. the Court is _ release an offender on probation of good condust:.':'e proviso to Section 4(1), the Court shall eiregt'?'re:§ase offender on probation of good conduct :znless-- it is thstthew -' offender or his surety. if any. has a'e'tiVik'ed piace.of"aeode;orHregular occupation in the place oiier_'iA4l1ieh"'th'e:';CoLi"rt,'exercisesiurisdiction or in hiii¢hllliheeei£;nen£é§r isjiileéety :o.liheé during the period for which he entersinto the V' _; '20;.Accor'e'in_g' to siixb-section (2) of Section 4, before making iinder sub-section (1), the Court shalt take into thjis.r"eport if any of the probation officer concerned in retation to tiieecase.
' " 2%; Having regard to the facts and circemaances of this
-' 'c--sse":and having regard to the fact that there is no convincing T "niateriai to show that the accused has a permanent abode within the jurisdiction of the trial Court and a permanent evocation therein. it is not proper to extend the benefit of either Section 3 or Section 4 of the 13.0 Act. The revision petitioner is not entitied for the benefit of the provisions of R0 Act. Therefore, the decision reiiectepon by the learned Counsel for the revision petitioner referred: to' does not appiy to the facts of this case.
22. However, having regard to ttzeiacts andivxcir-sju4nista_nceaV it of the case. I am of the consideredthat tithe"
imprisonment ordered by the learned Magistrate'fi$ra~.i.perieci3 ofi2 years is on the higher side. Ha_tfirig_ regard"t--el_:the_iiads and circumstances of the case;~«.th*.-2interest1:of'}uidi'ce_wouid be met ifthe revision petitioner is senteneed..toV--.unde.rgoVi3i."'ior a period of 6 months in addition'tr2»iipeyrr:eni:_otfih'e .of"i2's;e1V,iooo1-. To this extent, the ictfsentencejpessed trial Court requires to be modifiedvleylaiiowing'tijVis_Vlre~*ri§iian" petition in part. in this view of the znatter,_l point N'o.2'"accor'dingly and proceed to pass the v A « ..... .. e Order A 21$.' revision petition is allowed in part. The judgment of Z'"._V"'convicticnt'passed by the iearned Magistrate and affirmed by the V."V'.leemi§d Sessions Judge convicting accused Nocilrevision petitioner wfcir the offence punishable under section 379 IPC are upheld. However, in modification of the sentence ordered by the learned Magistrate. the accesed No.1Irevision petitioner is sentenced to 5 ' ' -the" senten ce";
undergo S.l for a period of 6 months and to pay a fine of Rs.t___,G00i~ for the aforesaid offence and in default to pay the fine amount; '~.1i0 undergo SJ for 2 months.
24. The accused Noflrevision petitioneris"'enti:ie'd'~»fg;:VVthgV "
set off of the period under custody deringgnu-ea tfiali.niTneles;:l_Aane' surety bonds of the accused Norillreyision';.ietitionearV:'a;¥e'ordered to * be cancelled. The accused No.1!:rev'isionV petitioner: is ordered to surrender himself before the'jéeaniedi.'!u1eei:"é§.rate yithiniisti days lrom today. Upon such Asurrende_r,dth.e shall commit the accused to the"§.zi5§son:to serire sehtence ordered. if the accused Nofi!re?§?isior:'llpetitioherlfaits epipear before the learned Magistflate _Vliithin.'vVtheA3'4abeue'-said period, the learned Magistrate shall tal<e__ 'Steps~.._tol:.'A'--s§c--;;re "the presence of the accused No.ilrovisionknetvitioner andcommit him to the prison to serve out ._ directed to send back the records to the Court below withavcopy of this order.
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