Karnataka High Court
Sri Mahesh @ Mahesh Bandari vs The State Of Karnataka on 4 January, 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4 T H DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL APPEAL NO.941 OF 2011
BETWEEN:
1. Sri Mahesh @ Mahesh Band ari
@ Rajend ra @ Rajend ra Band ari
Son of Pittu Bandari,
Aged about 23 years,
Resid ent of 6 t h Cross,
Kagg ad asap ura, Sriramanagara,
After Tin Factory,
Near Fortune Ap artments,
K.R.Puram, Bengaluru-560036.
2. Sri Sagar @ Sagar Bahad ur,
Son of Prakash,
Aged about 28 years,
Resid ent of 6 t h Cross,
Kagg ad asap ura, Sriramanagara,
After Tin Factory,
Near Fortune Ap artments,
K.R.Puram, Bengaluru-560036.
...Appellants
(By Sri Amit Anand Deshp ande, Advocate
appearing as amicus curiae)
AND:
The State of Karnataka
By Kodig ehalli Police Station,
Beng aluru City.
...Respondent
(By Sri Mahesh Shetty, HCGP)
:: 2 ::
This Criminal Appeal is filed under Section 374(2)
Cr.P.C. praying to set aside the order dated
25.05.2011 p assed by the P.O., FTC-XVII, Beng aluru
City in Crl.A.No.07/2011, convicting the appellants/
accused for the offences p/u/s 380 and 457 of IPC.
And etc.
This Criminal Appeal p ertaining to Beng aluru
Bench having been heard & reserved on 17.11.2022,
coming on for pronouncement this d ay, the Court
sitting at Kalaburag i Bench throug h video conferencing
pronounced the following:
JUDGMENT
Though the accused have preferred appeal against the judgment of Fast Track Court, Bengaluru in Criminal Appeal No.7/2011, the appeal is treated as revision filed under section 397 read with section 401 of the Code of Criminal Procedure ('Cr.P.C.' for short), and disposed of. If reasons can be given as to why this appeal should be treated as revision, they are as follows:
Kodigehalli Police, Bengaluru charge sheeted the accused for prosecuting them for the offences :: 3 ::
under Sections 454 and 380 of Indian Penal Code ('IPC' for short). The Chief Metropolitan Magistrate before whom trial was held, convicted the accused for the offence under section 379 IPC instead of section 380 IPC and acquitted them of the offence under section 454 IPC. Aggrieved by the judgment, the State preferred an appeal under section 377(1)(a) of Cr.P.C., not for enhancing the sentence, but for convicting them for the offences under sections 454 and 380 IPC. By the judgment impugned before this court, the Fast Track Court modified the judgment of the Chief Metropolitan Magistrate and held the accused guilty of the offences under sections 454 and 380 of IPC and sentenced them. Against the judgment of Fast Track Court, i.e., of a Sessions Court convicting the accused or confirming the judgment of conviction passed by Magistrate, in an appeal, the Code of Criminal Procedure does not provide for further appeal in the nature of second appeal as :: 4 ::
provided in Code of Civil Procedure. However the High Court can exercise revisional jurisdiction against such a judgment in an appeal. Hence this appeal is treated as revision petition.
2. The allegation leveled against the accused were that on 11.05.2009, in between 12.30pm and 6.30pm they broke open the door of house of PW2 Amita Anand and stole gold items marked MO1 to MO5 during trial. FIR was registered at the instance of PW2. When the accused were arrested in connection with another theft case, they gave confession statement disclosing the theft committed by them in the house of PW2. Based on the confession statement, the investigating officer seized MO1 to MO5 from the shops where the accused had sold the gold items in the presence of the witnesses, and ofcourse at the instance of the accused.
:: 5 ::
Ultimately charge sheet was laid against the accused.
3. The trial court held that the prosecution failed to provide evidence to establish the offence under section 454 IPC and therefore acquitted the accused of that offence. But in regard to offence of theft, the trial court gave finding that the evidence brought on record by the prosecution proved the offence punishable under section 379 IPC, instead of the offence punishable under section 380 IPC. To come to this conclusion, the trail court recorded the findings thus: PW1 would establish the fact of arresting the accused when they were about to commit theft in a building belonging to a society. PW15, the investigating officer recorded the voluntary statement of accused while interrogating them, and this led to seizure of MO1 to MO5 which had been sold to PW4, PW5, PW7 and PW10. Thereafter the accused :: 6 ::
led the investigating officer to the shops of PW4, PW5, PW7 and PW10 and recovered gold items MO1 to MO5 by drawing mahazars in the presence of PW9, PW11, PW13, PW14 and PW16. The oral evidence of these mahazar witnesses could be believed. PW2 identified her jewellery after seizure and this much of evidence was found to be sufficient for recording conviction for the offence under section 379 IPC.
4. The appellate court, while re-
appreciating the evidence, found the evidence of the witnesses and the recovery of stolen articles believable. It also held that the accused failed to offer explanation as to how they came in possession of articles that belonged to PW2. For these reasons, it recorded further findings that the offence under section 454 IPC would also get established, and consequently the offence under section 380 IPC would get proved instead of :: 7 ::
offence under section 379 IPC. After hearing on sentence, the appellate court, instead of punishing the accused for the offence under section 454 IPC, imposed sentence of imprisonment for four years and fine of Rs.5,000/- with default imprisonment for a period of 6 months for the offence under section 457 IPC. And for the offence under section 380 IPC, the accused were sentenced to simple imprisonment for three years and fine of Rs.4,000/- with default imprisonment for 6 months. Sentence of imprisonment for both the offences were made to run concurrently.
5. This court appointed learned counsel, Sri Amit Anand Deshpande, amicus-curie as the counsel for accused failed to appear.
6. Heard Sri Amit Anand Deshpande and the Government Pleader Sri Mahesh Shetty. Sri Amit Anand Deshpande, raised many points while arguing. He argued that mere identification of :: 8 ::
MO1 to MO5 by PW2 was not enough, they should have been placed in the midst of identical jewellary for identification by PW2. He also argued that mere seizure of MO1 to MO5 in the presence of mahazar witnesses in the absence of disclosure under section 27 of Evidence Act, could not have been accepted by both the courts. Relating to earlier conviction of the accused, which the appellate court observed, he argued that if at all earlier conviction should be considered, they ought of have been brought to the notice of the accused at the time of framing charges, and departure from this procedure was a serious lapse which prejudicially affected the interest of accused. Placing reliance on the following decisions, he argued for acquitted of accused by setting aside the judgments of the two courts below:
1) Bahadul Vs. State of Orissa (AIR 1979 SC 1262) :: 9 ::
2) Smt. Mathri & others Vs. State of
Punjab (AIR 1964 SC 986)
3) Dawood Vs. State of Karnataka
(Crl.A.No.100275/2018 Hon'ble High Court of Karnataka)
4) Arvind Parmar & Ors Vs. State of U.P., (Crl.A.No.5206/2018 Hon'ble High Court of Allahabad)
5) Arvind Parmar & Ors Vs. State of U.P., (Crl.A.No.5205/2018 Hon'ble High Court of Allahabad)
6) Gopal Sahu Vs. Raju Mishra & Ors (AIR 1965 Orissa 212)
7. Sri Mahesh Shetty, learned Government pleader argued that the appellate court came to correct conclusion that the offences under section 454 and 380 IPC would get established. He submitted that holding of test identification of MO1 to MO5 was unnecessary, none else other that PW2 could identify her own jewelleries. Seizure was based on disclosure made by the accused, and the witnesses examined in this behalf fully supported the prosecution. Both the courts appreciated the :: 10 ::
evidence properly. Moreover, the accused did not challenge their conviction by filing an appeal, and for all these reasons, he argued for sustaining the judgment of appellate court.
8. Considering the arguments, firstly the locus standi of the accused to approach the High Court must be dealt with. As has been already observed, the appeal is treated as a revision petition. If the court of Magistrate convicts an accused, he can prefer an appeal under section 374(3) of Cr.P.C. It is not disputed that the accused did not prefer appeal challenging the judgment of conviction passed by the trial court, though he had that right. In this context section 401(4) Cr.P.C. can referred to here. It reads:
"401 (4). Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be :: 11 ::
entertained at the instance of the party who could have appealed."
9. In view of the fact that accused did not file an appeal to the sessions court, they have no right to approach High Court under revisional jurisdiction.
10. Though it is not necessary to deal with other grounds as revision petition cannot be maintained by the accused, yet it may be stated that both the courts below have consistently held that the evidence placed by the prosecution could be believed. In revision jurisdiction, re- appreciation of evidence is not permitted unless gross perversity in appreciation of evidence is made out. No perversity is seen in appreciation of evidence. In regard to identification of MO1 to MO5, testimony of PW2 can be believed. As rightly argued by Sri Mahesh Shetty, nobody else other than PW2 could identify them. Whether evidence :: 12 ::
of such a witness could be believed or not depends on circumstances of each case, there cannot be any strait jacket formula. There are no good reasons to discard her testimony.
11. But very apparently two errors in the judgment of appellant court can be made out. The appellate court recorded conviction under section 235(2) Cr.P.C., forgetting that it was deciding an appeal. This is a trivial mistake and it can be ignored. The other error is sentencing the accused for the offence under section 457 IPC having held them guilty of offence under section 454 IPC. Section 454 and section 457 IPC are independent penal provisions. The case proved is house breaking to commit theft which is punishable under section 454 IPC. Therefore, though the accused have no right to prefer revision, this court can however suo-moto exercise revision jurisdiction to set right the error. The accused :: 13 ::
need to be sentenced for the offence under section 454 IPC along with offence under section 380 IPC.
Now the following order:
i. Each accused is sentenced to simple imprisonment for a period of one year and fine of Rs. 5,000/- with default imprisonment of two months for the offence under section 454 IPC instead of section 457 IPC.
ii. Conviction and sentence for the
offence under section 380 IPC is
retained.
iii. Imprisonment is made to run
concurrently.
iv. With the above modification of the
impugned judgment, this revision is
disposed of.
12. I have not referred to any of the
decisions cited by learned amicus curiae, as none of them is applicable to the facts of the case on hand, and observations or findings found therein :: 14 ::
are made in the context of factual positions of those cases.
13. Rs.10,000/- is fixed as remuneration payable to amicus curiae, and the same shall be payable to him by High Court Legal Services Authority.
SD/-
JUDGE KMV