Karnataka High Court
Prabhudda @ Akhil S/O Baburao Kamble vs The State on 17 January, 2023
Author: V. Srishananda
Bench: V. Srishananda
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
CRIMINAL REVISION PETITION No.200085/2021
BETWEEN:
PRABHUDDA @ AKHIL S/O BABURAO KAMBLE
AGE: 27 YEARS, OCC: STUDENT,
R/O MAHADEVI COLONY, SHIVAPUR ROAD,
BASAVAKALYAN, DIST. BIDAR-585327
... PETITIONER
(BY SRI SHIVALING N. PADSHETTY, &
SRI SHANKAR GOUDA.M, ADVOCATES)
AND:
THE STATE THROUGH
STATION BAZAR P.S.,
REPRESENTED BY ADDL. S.P.P.
HIGH COURT OF KARNATAKA
KALABURAGI-585105.
... RESPONDENT
(BY SMT.MAYA.T.R, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO
SET ASIDE THE ORDER DATED 13.08.2021 PASSED BY
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THE I ADDL. DIST. AND SESSIONS JUDGE, KALABURAGI
IN CRL. APPEAL NO.04/2020 AND ALSO ORDER DATED
10.12.2019 PASSED BY THE PRL. CIVIL JUDGE AND JMFC
KALABURAGI IN C.C. 1877/2014 AND DIRECT THE
PETITIONER BE ACQUITTED OF THE OFFENCES ALLEGED
AGAINST HIM.
THIS PETITION COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri Shivaling N. Padshetty, learned counsel for the revision petitioner and Smt. Maya T.R., learned High Court Government Pleader.
2. This Revision Petition is filed by the accused under Section 397 read with section 401 of Cr.P.C., with the following prayer.:
"Hence it is prayed that the Hon'ble court may pleased to call for the records of lower Courts and set aside the order dated 13/08/2021 passed by the I Addl. Dist. & Sessions Judge, Kalaburagi in Crl. Appeal No. 04/2020 and also order dated 10/12/2019 3 passed by the Prl. Civil Judge and J.M.F.C., Kalaburagi in C.C.No.1877/2014 and direct the petitioner be acquitted of the offences alleged against him, in the interest of justice and equity."
3. Brief facts of the case for disposal of the petition are as under:
Complainant being the Executive in Blue Dart Courier Company Limited was dealing in the business of delivering parcels/courier to its customers. They were dispatching valuable articles which were purchased by the customers through online shopping basis. On 16.01.2014, at about 5.00 p.m., as usual outlet of the company was closed and the staff members after locking the shutters went to their houses. However, there were several shopping articles like mobile phones, laptops, clothes etc., kept in the office premises which were to be delivered to the concerned buyers worth Rs.8,13,717/-. On 4 17.01.2014 at about 8.40a.m., as usual the complainant and other employees came to the office premises and noticed that somebody had broke open the locks put on to the shutters and by removing shutters stolen away the valuables which were kept on the previous day. After noticing the same, the Executive of the Blue Dart Courier lodged a complaint with the jurisdictional police and police after registering the case investigated the matter and filed the charge sheet against the accused for the offences punishable under Sections 457 and 380 of IPC.
4. On receipt of the charge sheet, learned Magistrate took cognizance of the aforesaid offences and after securing the presence of the accused, charges were framed. Accused pleaded not guilty, hence trial was held.
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5. In order to prove its case, the prosecution examined 9 witnesses as P.Ws.1 to 9 and relied on 7 documentary evidences which are marked and exhibited at Ex.P.1 to P.7. Stolen articles were seized by the Investigating Officer during the course of investigation from the custody of the accused which were also produced before the learned Magistrate and marked and exhibited as M.Os.1 to 56.
6. On conclusion of the recording of evidence, the trial Magistrate recorded the statement of the accused under Section 313 of Cr.P.C., wherein accused denied all the incriminating materials found against him in the case of the prosecution. Accused did not offer any explanation in writing as is contemplated under Section 313 (5) of Cr.P.C.
7. Thereafter, learned Magistrate heard the parties in detail and after considering the material on 6 record in a judicious manner, convicted and sentenced the accused as under:
"Accused is sentenced for the rigorous imprisonment of 2 years for the offence punishable U/Sec.457 IPC and he shall pay fine amount of Rs.10.000/-.
Accused is further sentenced for the rigorous imprisonment of 2 years for the offence punishable U/Sec.380 IPC and he shall pay fine amount of Rs.10,000/-.
The imprisonment for the offences punishable U/Secs. 457 and 380 IPC shall run concurrently to Accused.
Out of the fine amount recovered from the accused, Rs.5,000/- shall be defrayed to the expenses of the State.
The remaining fine amount of Rs.15,000/- recovered from the Accused shall be paid to the P.W.1 (first informant).
In default of payment of fine, the accused shall undergo simple imprisonment for 7 3 months each for the offences under Section 457 and 380 IPC."
8. Being aggrieved by the said judgment of conviction, accused preferred an appeal before the I-Additional District and Sessions Court in Criminal Appeal No.04/2020.
9. Learned Sessions Judge, after securing the records and hearing the parties in detail dismissed the appeal of the revision petitioner by judgment dated 13.08.2021 by confirming the judgment of conviction passed by the trial Court.
10. Being aggrieved by the judgments passed by the learned trial judge and first appellate Court, the accused has presented the present revision petition on the following grounds:
• That the order of the learned Sessions Judge, dismissing the appeal filed by the petitioner is improper and illegal and the same is liable to be set aside.8
• That the order of conviction and fine imposed by the trail Court is contrary to law, evidence and probabilities of the case.
• That the courts below while passing the judgment and order have failed to understand the real defense of the petitioner.
• That it would expedient to submit that in the trail of the case, the prosecution has produced the M.O.1 to 56 in complete open physical conditions without any packing and seal. In other words the nature, condition, form, size, carves designs, colors, brand etc. of the M.O.1 to M.O.56 are outwardly available to watch.
• That as per evidence witness PW4, there are three shutters to their courier office with separate locks, but the spot panchanama Ex.P3 is not clear which would disclose the locks of which shutter was broke down and even the I.O. PW9 9 has not seized broken locks of the premises.
• Hence, there are contradictions and omissions in regard to the fact about breaking of locks of the courier office and trespassing thereto and hence the prosecution has utterly failed to prove the house breaking as per explanation made in sec. 445 of IPC as to bring home the guilt of the accused u/sec. 457 of IPC.
• That as per prosecution case, the commission of offence was in the night between 16/01/2014 and 17/01/2014. Hence, the articles which retained/ remained undelivered in the office at the end of day of 16/01/2014 must have stolen by the petitioner/ accused.
• And accordingly the detail report about retained/remained undelivered articles was though already prepared at the end of that day itself and forwarded the same to their Head Office, the complainant PW.1 has not given the copy of the same 10 to the police while lodging complaint, would creates serious doubt.
• Whereas, it is their case that the articles in the list Ex.P.2 are the same articles which were stolen by petitioner/accused i.e. M.O.1 to M.O.56. But as per evidence of I.O. PW9, the articles shown in Ex.P.2 are the articles which were sending to Kalaburagi office, on 18/1/2014, of which mail Ex.P2 is having sent from their courier's head office.
• That on the other hand, the I.O. PW9 would deposed that the articles stated in the complaint and recovered articles are tallying with each other, hence he could say that the articles are stolen one.
• Hence, the articles which were said to be stolen is not at all recognized and identified at very first instance of the incident.
• Wherefore, the alleged discovery of
articles M.O.1 to M.O.56 under
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panchanama Ex.P.4 would lose its
significance.
• That it has been admitted by the
prosecution witnesses, neither the
complainant nor his official had
knowledge about the exact goods inside the parcels or the packets.
• Thus, the BLUE DART being the courier company concerning of business transporting and dispatching the goods of concerned buyers and without producing and tally of its airways bills and chit pasted on the packet, prosecution case could not be believed.
• That the prosecution also failed to prove with cogent evidence that the petitioner/accused has given voluntarily statement and on basis said statement articles under panchanama Ex.P.4 is having discovered.
• That the clear admission of seizer panch witness PW2 that on the day of conducting panchanama Ex.P.4, there 3- 12 5 police personals, CW1, CW3 and he himself were present and except they eight persons no other else were present, would demonstrate that alleged recovery of articles is not in accordance principles of provision Sec. 27 of Evidence Act.
• Further, evidence of said panch witness PW2 that police have seized the open sealed packing cover and non open sealed pack under panchanama Ex.P4. But with the production of all articles in open outwardly watchable of its nature, condition, form, size, carves designs, colors, brand etc. during the trail, would falsify the alleged discovery articles M.O.1 to M.O.56 from the possession of petitioner/accused.
• That the courts below have did not rely the cross examination of I.O. PW9 in respect of fact about lodging of belated complaint.
• That the approach of the courts below is erroneous and ill-legal.
13• That the prosecution has totally failed to establish that the stolen articles are having belonging to online shopping and the same were being transported through BLUE DART courier.
• Hence the appellant is entitled for an order of acquittal and further grounds will be urged at the time of final arguments of the appeal."
11. Reiterating the grounds urged in the revision petition, Sri Shivaling N. Padshetty, learned counsel for the petitioner sought for allowing the petition. He vehemently contended that prosecution failed to establish nexus between the stolen articles and the seized articles that of the accused and therefore, he sought for allowing the petition and contended that accused is innocent of the offences and he has been falsely implicated in the case and sought for allowing the petition.
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12. Per contra, learned High Court Government Pleader opposes the revision grounds by contending that stolen articles were seized from the custody of the accused and completes the offence under Section 380 of IPC and same were stolen from the office premises of the complainant by breaking open the shutters and lock that were put on the shutters of the outlet and therefore, offence under Section 457 is made out and sought for dismissal of the revision petition.
13. In view of the rival contentions of the parties, and having regard to the scope of the Revisional jurisdiction, the following points would arise for consideration:
1. Whether the finding recorded by the trial Court confirmed by the First Appellate Court that accused is guilty of the offences punishable under Sections 457 15 and 380 of IPC is suffering from legal infirmity and thus, calls for interference?
2. Whether the sentence passed by the trial Court is excessive?
3. What order?
14. In the case on hand, prosecution witness especially P.W.1 and other employees and panch witnesses have supported the case of the prosecution. Further, Investigating Officer who is examined on behalf of the prosecution has categorically deposed that during the course of investigation, they apprehended the accused and they have recovered from him MOs.1 to 56 from the custody of accused and no explanation whatsoever is forthcoming on record to say that accused is innocent of the offences especially when the stolen articles were seized from the custody of the accused.
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15. In a matter of this nature, accused is bound to offer his explanation about the seized material objects especially when it is a defence of the accused that he has been falsely implicated in the case. In the case on hand, no such explanation is offered by the accused that at the time of recording the statement of accused under Section 313(5) of Cr.P.C., nor adduced any defence evidence.
16. It is highly unimaginable that in order to falsely implicate the accused/petitioner in the case of this nature, why would the police implant Mos.1 to 56 worth Rs.8,13,717/- in the case is a question that remains unanswered especially in view of the fact that no previous of animosity or enmity as against the accused is nurtured either by the complainant or by the Investigating Officer.
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17. These aspects of the matter have been rightly appreciated by the trial Court and First Appellate Court in the appeal.
18. On the contrary, the findings recorded by the trial Court confirmed by the First Appellate Court is based on the sound and logical reasons. Therefore, this Court is of the considered opinion that the grounds urged in the revision petition is hardly sufficient to hold that impugned judgments are suffering from legal infirmity or perversity and thus calls for interference. Accordingly, point No.1 is answered in the negative.
19. Insofar as sentence is concerned, admittedly, accused is a first time offender and he did not have any criminal antecedents.
20. It is settled principle of law that role assigned to the trial Court while passing an order of 18 conviction on the merits of the matter in recording a finding that accused is guilty or not guilty is altogether different from passing an order of sentence against the convict.
21. In a given case especially when the accused offender is convicted for the first time, it is mandatory for the learned trial Court to bestow his attention to the provisions of law on Probation of Offenders Act.
22. In this regard this Court places reliance on the judgment of the Hon'ble Apex Court in the case of Gulzar v. State of M.P reported in (2007) 1 SCC 619, the relevant portion of the said judgment is as under:
"12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less, to 19 any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the PO Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification, if any, attached to conviction of an offence under any law, the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co- exist at the same time in the same area. Such co- existence would lead to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act, as applicable at the same time in a given area, cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore, by virtue of Section 8(1) of the General Clauses Act, where the provisions of the Act have been brought into force, the provisions of Section 360 of the Code are wholly inapplicable".20
23. Applying the principle of law enunciated in the aforesaid judgment to the case on hand, accused petitioner is entitled to have the benefit of probation under Section 4 of the Probation of Offenders Act.
24. Learned High Court Government Pleader, submits that if this Court for the first time in the revision is intending to grant benefit of probation to the accused, report from the Probation Officer is necessary.
25. Taking note of the fact that incident is of the year 2014 and 8 years have already been elapsed and there is no complaint against the accused, asking a report from the Probation Officer at this instance of time and for that purpose remitting the matter to the trial Court would result in futile exercise.
26. Accordingly, this Court is of the considered opinion that accused is entitled for grant of probation 21 as he is a first time offender. Hence, point No.2 is answered partly in affirmative.
27. In view of the findings of this Court on point Nos.1 and 2 as above, the following order is passed:
ORDER Criminal revision petition is allowed in part.
While maintaining the conviction of revision petitioner for the offences punishable under Sections 457, and 380 of IPC, sentence of imprisonment ordered by the trial Court confirmed by the First Appellate Court is hereby set aside.
Accused is granted probation in terms of Section 4 of the Probation of Offenders Act and directed to execute a bond in a sum of Rs.25,000/- with two sureties for the likesum to the satisfaction of the trial Court for his good behavior which shall be in force for 22 a period of 2 years from the date of execution of bond.
Insofar as fine is concerned, if the accused revision petitioner has not paid the fine imposed by the trial Court, he shall pay fine forthwith.
Violation of any of the conditions of probation would result in restoration of sentence of imprisonment ordered by the trial Court and confirmed by the First Appellate Court.
Time is granted to execute the bond and payment of fine amount or balance of fine amount, if any, till 10.02.2023.
Office is directed to return the Trial Court Records with a copy of this judgment forthwith.
Sd/-
JUDGE VNR