Karnataka High Court
Ramesh vs State By on 11 March, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.1040/2012
C/W.
CRIMINAL REVISION PETITION NO.1041/2012
IN CRIMINAL REVISION PETITION NO.1040/2012:
BETWEEN:
RAMESH
AGED ABOUT 40 YEARS
S/O LATE RAJANNA
NEAR SRI ANJANEYA TEMPLE
IMMADIHALLI, WHITEFILED
BENGALURU-560 048. ... PETITIONER
(BY SMT.SHRUTHI S.P., ADVOCATE FOR
SRI M.VINAYA KEERTHY, ADVOCATE)
AND:
STATE BY
TURUVEKERE POLICE,
TURUVEKERE,
TUMAKURU DISTRICT. ... RESPONDENT
(BY SMT.RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 13.08.2012, PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR IN
CRIMINAL APPEAL NO.2/2012 CONFIRMING AND MODIFYING
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THE JUDGMENT DATED 23.06.2011, PASSED BY THE CIVIL
JUDGE (SR. DN.) AND JMFC, TURUVEKERE IN C.C.NO.453/2009.
IN CRIMINAL REVISION PETITION NO.1041/2012:
BETWEEN:
RAMESH
AGED ABOUT 40 YEARS
S/O LATE RAJANNA
NEAR SRI ANJANEYA TEMPLE
IMMADIHALLI, WHITEFILED
BENGALURU-560 048. ... PETITIONER
(BY SMT.SHRUTHI S.P., ADVOCATE FOR
SRI M.VINAYA KEERTHY, ADVOCATE)
AND:
STATE BY
TURUVEKERE POLICE,
TURUVEKERE,
TUMAKURU DISTRICT. ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE IMPUGNED ORDER DATED 13.08.2012, PASSED BY
THE PRESIDING OFFICER, FAST TRACK COURT, TIPTUR IN
CRIMINAL APPEAL NO.56/2011 CONFIRMING AND MODIFYING
THE JUDGMENT DATED 23.06.2011, PASSED BY THE CIVIL
JUDGE (SR. DN.) AND JMFC, TURUVEKERE IN C.C.NO.453/2009.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
These two revision petitions are filed by the common petitioner/accused challenging the conviction and sentence passed in C.C.No.453/2009 dated 23.06.2011 by the Senior Civil Judge & JMFC., Turuvekere and also dismissal of the appeal filed by the petitioner in Crl.A.No.56/2011 and enhancement of sentence passed in Crl.A.No.02/2012 sentenced him to undergo Simple Imprisonment for a period of six months and to pay a fine of Rs.3,000/-, in default of payment of fine, to undergo simple imprisonment for further period of one month for an offence punishable under Section 457 of IPC and sentenced to undergo simple imprisonment for one year and to pay fine of Rs.5,000/-, in default of payment of fine, to undergo simple imprisonment for further period of two months for an offence punishable under sections 380 of IPC.
2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State in both the petitions. 4
3. The factual matrix of the case of the prosecution is that on 16.11.2009 during night time, the accused broke open the lock of the house and stolen gold and silver ornaments. Hence, a case has been registered for the offences punishable under Sections 457 and 380 of IPC. Thereafter, this petitioner was arrested. After investigation, the Police have filed the charge-sheet.
4. The Trial Court after considering both oral and documentary evidence placed on record convicted this petitioner for both the offences punishable under Sections 457 and 380 of IPC and the same is challenged in Crl.A.No.56/2011. The State also filed an appeal challenging the quantum of sentence and prays to enhance the quantum of sentence. Hence, the present revision petitions are filed.
5. Learned counsel appearing for the petitioner would submit that the Trial Court had failed to take note of the material available on record; only the prosecution relied upon the finger print found and none of the eyewitnesses depose that the petitioner had committed the theft. The Trial Court has failed to 5 appreciate the fact that none of the witnesses deposed with respect to the fact that it was the petitioner who committed the theft. Only based on the weak piece of evidence i.e., finger prints were found on a tiffin box, which has surprisingly not part of panchanama but was connivingly included subsequently, and the same is relied upon by the Trial Court. Learned Counsel also reiterates the grounds urged in the appeal memo. Further, the learned counsel brought to the notice of this Court that the evidence available on record also not consistent and cogent to convict the petitioner. The P.W.1 is not an eyewitness, who is the complainant.
6. The prosecution mainly relied upon the evidence of P.W.4, who is the receiver of the ornaments. In the cross- examination, a suggestion was made that this petitioner never visited to his shop along with CWs.6 and 7 and the said suggestion was denied. But no material is placed and only relied upon the finger prints found on a tiffin-box. Hence, it requires an interference of this Court.
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7. Per contra, the learned High Court Government Pleader appearing for the respondent - State would submit that P.W.4 is the receiver of the stolen articles and he categorically says that he is the regular customer of the said shop and he only came along with other CWs.6 and 7 and he has received the articles and within two days, the police came and recovered the same and he handed over the said articles to the police. When there is a recovery at the instance of this petitioner from the shop of P.W.7 both the Trial Court as well as the Appellate Court considered the material available on record. The learned High Court Government Pleader for the State would submit that he is a habitual offender. Taking into note of the said fact into consideration, the Appellate Court also enhance the sentence for a period of one year for an offence punishable under Section 380 of IPC and for six months in respect of an offence punishable under Section 457 of IPC. There are no grounds to interfere with by exercising the revisional jurisdiction.
8. Having heard the learned counsel for the petitioner and the learned counsel for the respondent-State and also on 7 perusal of the material available on record, the points that would arise for consideration of this Court are:
(i) Whether the Trial Court as well as the
Appellate Court committed an error in
convicting the revision petitioner for the offences punishable under Sections 457 and 380 of IPC and the orders passed by both the Courts are perverse as against the evidence available on record and whether this Court can exercise the revisional jurisdiction?
(ii) What order?
Point No.(i)
9. Having heard the respective counsel and also on perusal of the material on record, these two revision petitions are filed one with regard to enhancement of sentence and another with regard to conviction. On perusal of the records, it is seen that the Trial Court convicted the petitioner and sentenced to undergo simple imprisonment for a period of one month and imposed fine of Rs.500/- for the offence punishable under Section 457 of IPC. In default of payment of fine, to undergo additional sentence for one week. In respect of the 8 offence punishable under Section 380 of IPC, the Trial Court sentenced the petitioner to undergo simple imprisonment for a period of two months and imposed fine of Rs.1,000/-. In default of payment of fine, to undergo simple imprisonment for 15 days which was questioned by the State in Crl.A.No.02/2012.
10. The petitioner has also filed an appeal in Crl.A.No.56/2011 against the judgment and order of sentence. The appeal filed by the petitioner was dismissed and the appeal filed by the State is allowed and the order of sentence passed by the Trial Court is modified sentencing the petitioner to undergo simple imprisonment for a period of six months and imposed a fine of Rs.3,000/-. In default of payment of fine, to undergo simple imprisonment for further period of one month for the offence under Section 457 of IPC. In respect of the offence under Section 380 of IPC, the Appellate Court sentenced the petitioner to undergo simple imprisonment for a period of one year and imposed a fine of Rs.5,000/-. In default of payment of fine, to undergo simple imprisonment for further period of two 9 months. Hence, these two revision petitions are filed before this Court.
11. The main contention of the revision petitioner before this Court is that there are no eye witnesses to the incident. Admittedly, there are no eye witnesses. As on the date of the alleged incident, the complainant was also not in the house and he came to know only subsequent to the theft of article from his house. But, the prosecution mainly relies upon the evidence of P.W.4, who is the receiver of stolen articles. He categorically in the evidence says that this petitioner brought the gold and silver articles and handed over the same and requested to melt the same and prepare a new article. The same is also elicited in the cross-examination of Public Prosecutor when the witness was treated as hostile in part. It is also elicited that he has produced the gold and silver articles pertaining to the three separate crimes and mahazar was drawn in terms of Ex.P3. In the cross-examination, it is suggested that for the first time, he is seeing the petitioner and the same was denied but, the witness volunteers to state that he is a permanent customer of 10 the said shop. It is also suggested that he did not accompany C.Ws.6 and 7. The said suggestion was denied and nothing worth is elicited in the cross-examination of P.W.4.
12. P.W.5 is an Inspector, who is a part of recovery of gold and silver articles and he speaks with regard to the finger prints found on the tiffan box. He was also subjected to cross- examination. In the cross-examination, he says that he got confirmed the finger prints in the computer.
13. P.W.8 is the other witness, who speaks with regard to the finger print taken in the house of P.W.1 and with regard to the fact that he come to know that the finger print matches with the finger print of this petitioner.
14. The material also disclose that this petitioner himself took the police and showed the house of complainant, wherein mahazar was drawn in terms of Ex.P5. P.W.1 also identified the stolen articles marked as M.Os.4 and 5 i.e., gold and silver ornaments which were handed over to P.W.4. The P.W.4 also deposed that this petitioner is a regular customer and he only 11 handed over the stolen articles i.e., M.Os.4 and 5 and the same were seized. The witnesses i.e., P.Ws.3, 4 and 6 to 8 also depose with regard to receipt of report and the fact that thereafter only, this petitioner was apprehended.
15. Having considered the material available on record, both the Trial Court as well as the Appellate Court have considered the material on record i.e., M.Os.4 and 5, which are the stolen articles belonging to P.W.1.
16. P.W.7 also categorically deposed that this petitioner himself brought and handed over both silver and gold articles. Apart from recovery, the Trial Court also mainly relied upon the finger print of left index finger of this petitioner, who was also an accused in Crime No.92/2001 in Tiptur Police Station.
17. P.W.5 is a witness, who gave the attendance report and also the finger print certificate of the petitioner as per Ex.P8 and Ex.P9 to the Investigating Officer. In the cross-examination of P.W.5 also, nothing is elicited with regard to the finger print 12 on the steel tiffin box and the same matches with the finger print of the petitioner.
18. When all these materials are relied upon by the Trial Court as well as the Appellate Court and also taking into note of the fact that three cases were registered against him and this petitioner was apprehended in connection with another crime and thereafter only, the involvement of this petitioner came to light in committing the offence and he only took the panch witness and also the police and showed the house of the complainant. When such material is available on record, I do not find any error committed by the Trial Court as well as the Appellate Court in re-appreciation of material available on record. Hence, I do not find any ground to come to an other conclusion. Unless the order of the Trial Court and the Appellate Court is perverse and not considered the cogent evidence available on record, the question of invoking revisional jurisdiction does not arise.
19. With regard to the sentence is concerned, the Trial Court sentenced the petitioner to undergo simple imprisonment 13 for a period of one month for the offence under Section 457 of IPC and for a period of two months for the offence under Section 380 of IPC and ordered that the said sentence shall run concurrently. However, the Appellate Court modified the same enhancing the sentence for a period of six months and one year for the offences punishable under Sections 457 and 380 IPC respectively.
20. Having considered the material on record, this Court has to consider only the material available on record and not the other two cases which are registered against the petitioner. With regard to the fact that the petitioner is a habitual offender, no other material is produced, except the seizure in other connected cases. Hence, it is appropriate to reduce the sentence of the petitioner for a period of three months in respect of the offence under Section 457 of IPC and six months in respect of offence under Section 380 of IPC, as there are no other material to evidence the fact that the petitioner was convicted in other cases. There is no alteration or modification in respect of the fine imposed by the Appellate Court.
14Point No.(ii)
21. In view of the discussions made above, I pass the following:
ORDER
(i) Crl.R.P.No.1040/2012 filed by the petitioner in respect of the conviction is dismissed.
(ii) Crl.R.P.No.1041/2012 filed by the petitioner in respect of the sentence is allowed-in-part.
The sentence for the offence under Section 457 of IPC is modified as three months as against six months and the sentence for the offence under Section 380 of IPC is modified as six months as against one year ordered by the Appellate Court.
(iii) The fine amount in respect of both the offences stands unaltered.
Sd/-
JUDGE cp*/ST