Karnataka High Court
Sri.Hanuma Naik vs State Of Karnataka on 10 January, 2023
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No. 100034 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO. 100034 OF 2016
BETWEEN:
1. SRI.HANUMA NAIK S/O KASHYA NAIK,
AGE: 25 YEARS, OCC: DRIVER,
R/O: SUSHEELA NAGAR, SANDUR,
DIST: BALLARI.
2. SRI.MALLIKARJUN NAIK S/O RAMA NAIK
AGE ABOUT 33 YEARS,
R/O: VENKATAGIRI THANDA,
SANDUR TALUK,
DIST: BALLARI.
...PETITIONERS
(BY SRI RAJENDRA R. PATIL, ADVOCATE FOR
SRI SRINAND A. PACHHAPURE, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KOTTUR POLICE STATION,
KOTTUR, TQ: KULIGI,
NOW REP. BY SPP,
Digitally signed by
SUJATA SUBHASH
HIGH COURT OF KARNATAKA,
PAMMAR
Location: HIGH COURT
OF KARNATAKA,
DHARWAD BENCH,
DHARWAD BENCH.
DHARWAD.
...RESPONDENT
(BY SRI RAMESH CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397(1)
R/W SEC.401 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
JUDGMENT PASSED BY III ADDL. DIST. & SESSIONS JUDGE,
BALLARI SITTING AT HOSAPETE IN CRL. APPEAL NO.5034/2015
DATED 28/01/2016, CONFIRMING THE JUDGMENT PASSED BY THE
SENIOR CIVIL JUDGE & JMFC, KUDLIGI IN C.C. NO.166/2013 DATED
20/01/2014 CONVICTING THE ACCUSED / REVISION PETITIONERS
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 457, 380 R/W
201 OF IPC AND ACQUIT THE REVISION PETITIONERS.
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CRL.RP No. 100034 of 2016
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed under Section 397(1) R/w Section 401 of the Code of Criminal Procedure (for short, hereinafter referred to as 'Cr.P.C.') challenging the judgment of conviction passed by the Senior Civil Judge and JMFC., Kudligi in C.C.No.166/2013 dated 20.01.2015 for the offences punishable under Sections 457, 380 R/w Section 201 of IPC and confirmed in Crl.A.No.5034/2015 dated 28.01.2016 on the file of III Additional District and Sessions Judge, Ballari sitting at Hospete.
2. For the sake of convenience, parties herein are referred with the original ranks occupied by them before the Court.
3. The brief factual matrix leading to the case are that, on 02.07.2013 at Basaveshwara Nagar, Kottur between 11.15 a.m. to 12.15 p.m. both the accused have -3- CRL.RP No. 100034 of 2016 committed lurking house trespass in the house belonging to the complainant by breaking open the main door which is used for human dwelling in order to commit theft from the said house. It is also alleged that, thereafter they have trespassed in the house and committed the theft of golden and silver ornaments from Godrej Almirah weighting about 146.05 Grams of gold and 520 Grams of silver and fled on two wheeler. It is also alleged that, thereafter they went to SBI ATM booth and drawn an amount of Rs.3,000/- by using the Card of the complainant and also by using other ATM Cards of CW.16 and CW.10 drawn Rs.1,000/- and Rs.2,000/- respectively and thereby they committed theft of amount by misusing these ATM Cards of CW.1, 10, 15 and 16. On the basis of the complaint, the investigating officer registered the crime and under took investigation. The accused were arrested in a different case and on interrogation they revealed their involvement in this case and their presence was secured on body warrant and recovery was also done in the said case. Then the -4- CRL.RP No. 100034 of 2016 investigating officer filed charge sheet. Subsequently, the charge was framed under Section 454 and 380 R/w 34 of IPC against the accused. The prosecution has got examined in all 18 witnesses and also placed reliance on 28 documents marked as Ex.P.1 to 28 and 7 material objects as MO.1 to 7.
4. After conclusion of the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded to enable the accused to explain the incriminating evidence appearing against them in the case of the prosecution. The case of the accused is of total denial and they did not choose to lead any oral or documentary evidence.
5. Having heard the arguments and after perusing the records, the learned Magistrate has convicted the accused for the offences punishable under Sections 457, 380 R/w 201 of IPC and has also given a set off. Being aggrieved by this judgment of conviction, the appeal in -5- CRL.RP No. 100034 of 2016 Crl.A.No.5034/2015 is filed before the III Additional District and Sessions judge and the appeal came to be dismissed. Hence, the revision petitioners are before this Court challenging the concurrent findings.
6. Heard the arguments advanced by the learned counsel for the revision petitioners and learned High Court Government Pleader. Perused the records.
7. The learned counsel for the revision petitioners would submits that the petitioners have already undergone sentence of imprisonment of more than 1 year 9 months and sentence imposed is for 2 years but there is no order regarding sentence being run concurrently. Hence, he would request that the fine imposed to the tune of Rs.1000/- may be enhanced and by restricting the sentence of imprisonment for the period undergone by the accused-revision petitioners in custody.
8. Per contra, learned High Court Government Pleader would support the judgment of conviction passed -6- CRL.RP No. 100034 of 2016 by the Trial Court and confirmed by the First Appellate Court and submits that, considering gravity of the offence, revision petitioners does not deserve any leniency. Hence, he would seek for rejection of the revision petition.
9. Having heard the arguments and perusing the records, it is evident that the charge was framed under Sections 454 and 380 of IPC. However, the Trial Court has convicted both the revision petitioners for the offences punishable under Sections 457 and 380 R/w Section 201 of IPC. The charge was not framed for the offence punishable under Section 457 of IPC. But the conviction was passed for the offences punishable under Section 457 of IPC which is lurking house trespassed by night. Admittedly, in the instant case the offence alleged in the lurking house trespass in the day itself and hence the ingredients of Section 457 are not attracted but the ingredients of Section 454 IPC are attracted. Accordingly, the charge was also framed properly. However, while convicting without alteration of the charge, the learned -7- CRL.RP No. 100034 of 2016 Magistrate as well as the First Appellate Court have convicted the revision petitioners for the offence punishable under Section 457 of IPC without giving any opportunity. This approach of both the Courts below is erroneous.
10. However, at the same time, it is also evident that the imprisonment for 2 years with a fine of Rs.1,000/- was imposed for the said offences, which is within the purview of Section 454 of IPC also. The evidence on record does disclose that there is a recovery at the instance of the present petitioners and the petitioners were involved in similar offences and are habitual offenders. It is also evident that earlier in Crl.A.No.5017/2015 was got dismissed by the Appellants before the Sessions Judge but later on, again they filed Crl.A.No.5034/2015. No reasons were offered for withdrawal of the First Appeal and filing the Second Appeal. However, the records disclose that, both the Courts below have committed an apparent error on the -8- CRL.RP No. 100034 of 2016 face of the records by imposing the sentence by convicting the revision petitioner in respect of an offence of which charge is not framed and which is in higher rank compared to the offence framed under the charge. Looking to these facts and circumstances to that extent the revision petition needs to be allowed. There is material evidence and both the Courts below have appreciated the oral and documentary evidence and as such the question of interference in this judgment of conviction does not arise at all, except modifying the sentence from 457 IPC to 454 of IPC.
11. The records further discloses that, the accused have undergone the sentence of imprisonment in the custody from 1 year 9 months 10 days. The sentence of imprisonment imposed by the Court is for 2 years for both the offences. However, the Court has not passed any order as to whether the sentence shall run concurrently or separately. But when there is no specific order, it is to be presumed that the sentences have to run concurrently. -9- CRL.RP No. 100034 of 2016 The Trial Court has also imposed the fine of Rs.1,000/- which appears to be meager one. The learned counsel for the revision petitioners would submit that, the fine may be enhanced and the sentence of imprisonment may be restricted to the period undergone in the custody by giving a set off. Looking to the facts and circumstances, I do consider that the submission made by the learned counsel for the revision petitioner is well founded and requires a needful consideration. The fine of Rs.1,000/- imposed for the offences punishable under Sections 457/ 454 of IPC needs to be enhanced to Rs.5,000/- each. In the same way sentence for the offences punishable under Section 380 of IPC R/w 201 of IPC requires to be enhanced to Rs.5,000/- in place of Rs.1,000/-. The order of conviction is to be modified for the offences punishable under Section 454 rather than Section 457 of IPC. As such the revision petition needs to be allowed in part and accordingly, I proceed to pass the following:
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CRL.RP No. 100034 of 2016 ORDER
i) The revision petition is allowed in part.
ii) The judgment of conviction passed by the Trial Court and confirmed by the Appellate Court so far as it relates to Section 457 is set aside. However, the revision petitioners/ accused are convicted for the offence punishable under Section 454 R/w 201 of IPC in place of offence under Section 457 of IPC.
iii) The sentence imposed by both the Courts modified and the accused are directed to undergo sentence of imprisonment, which they have already undergone in the custody by giving a set off and each of them are further directed to pay a fine of Rs.5,000/- each for the offences punishable under Sections 454 and 380 of IPC. In default, they are required to undergo a simple
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CRL.RP No. 100034 of 2016
imprisonment for further a period of 6
months.
iv) Send back the Trial Court records to the concerned Court with a directions to secure the presence of the petitioners-accused and get deposited the fine amount, if not deposited or else commit them for serving the default sentence.
Sd/-
JUDGE SSP List No.: 1 Sl No.: 32