Thippeshi vs State By
2021 Latest Caselaw 5480 Kant

                       1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 04th DAY OF DECEMBER, 2021

                    BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.618/2012


BETWEEN:

  1. THIPPESHI S/O MANJAPPA
     AGED ABOUT 30 YEARS,
     WORKER IN GANESHA SAW MILL
     GANAPATHI ROAD,
     HOLALKERE TOWN,
     CHITRADURAGA DISTRICT

  2. KESHAVA @ KESHAVA POWAR
     S/O MUKUNDANAIAK,
     AGED ABOUT 37 YEARS
     R/O NEAR RAILWAY STATION,
     HOLALKERE TOWN
     CHITRADURAGA DISTRICT

  3. NAGARAJU
     S/O INDRAPPA,
     AGED ABOUT 29 YEARS
     R/O NEAR RAILWAY STATION,
     HOLALKERE TOWN
     CHITHRADUGRA DISTRICT
                                   ... PETITIONERS

(BY SRI. D.GANGADHARA, ADVOCATE)
                                  2

AND:

STATE BY TIPTUR TOWN POLICE
TIPTUR
TUMKUR DISTRICT
                                              ...RESPONDENT
(BY SRI. V.S.VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.PC
PRAYING TO SET ASIDE THE ORDER DATED 7.1.12
PASSED IN CR.A.NO.72/11, ON THE FILE OF PO FTC,
TIPTUR AND ALSO THE EARLIER ORDER DATED 4.7.11
PASSED IN C.C.NO.924/10 PASSED BY THE SENIOR CIVIL
JUDGE AND JMFC, TIPTUR

     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
                              ORDER

Heard Sri. D. Gangadhara, learned counsel

appearing for the revision petitioners and Sri. V. S.

Vinayaka, learned High Court Government Pleader

appearing for the respondent and perused the records.

2. The accused persons, who suffered an order of

conviction for the offence punishable under Section 379 of

the Indian Penal Code, 1860 in C. C. No.924/2010 was

ordered to undergo Rigorous Imprisonment for three years

and to pay fine of Rs.5,000/- each, in default of payment

of fine, they shall undergo Rigorous Imprisonment for

fifteen days, which was confirmed in Crl.A. No.72/2011 by

judgment dated 07.01.2012. Being aggrieved by the

same, the revision petitioners are preferred this revision

petition.

3. Brief facts of the case are as under:

Tiptur Town Police have registered a case against the

revision petitioners on the complaint that on 19.05.2010

during night hours in front of the house of

T.S.Nagabhushana situated at Tagore School Road,

Housing Board Colony, Tiptur. A Bajaj Discovery Motor

bike was thieved by some unknown persons. The police

after registering the case, investigated the matter and

found that the vehicle was in possession of the accused

persons - revision petitioners. After thorough

investigation, the police laid a charge sheet against the

revision petitioners.

4. The presence of accused persons were secured

and plea was recorded. Accused pleaded not guilty

therefore, the trial was held. In order to prove the case of

the prosecution, the prosecution in all, examined ten

witnesses as PWs.1 to 10 and has relied on four

documentary evidences, which were exhibited and marked

as Exs.P1 to P4 and one material object as MO.1

Motorcycle.

5. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

Cr.PC was recorded wherein the accused persons denied all

the incriminatory circumstance found against them.

However, accused persons did not place their version on

record either by examining themselves or by filing written

submissions as is contemplated under Section 313 (5)

Cr.P.C.

6. Thereafter, the trial Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

persons for the offence punishable under Section 379 IPC

and sentenced as under:

"On conviction accused person 1 to 3 are sentenced to undergo Rigorous Imprisonment for 3 years and to pay fine of Rs.5,000/- each, I/d to pay fine, they shall under go R.I for fifteen days."

7. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.72/2011.

Learned Judge in the First Appellate Court after securing

the records and hearing the parties in detail, dismissed the

appeal and confirmed the order of conviction and sentence

passed by the learned Magistrate. Thereafter, the accused

persons are in this Revision Petition.

8. In the Revision Petition, the following grounds

are raised:

The petitioners submits that the order of the learned JMFC has grossly erred in relying upon the untrusted and unbelievable prosecution witnesses. Also, the learned JMFC has grossly erred in not considering

the material omission and contradictions in the evidence of PWS.

It is submitted that the order of the trial court and as well as the appellate court have not given sufficient opportunity to the petitioners to examine the witnesses and to prove their case.

It is submitted that the trial court has erred by convicting the petitioners which out to have acquitted the petitioners. The order of the trial court and as well as the Appellate court is opposed to the law and facts and probabilities of the case and the same order is liable to be set aside.

It is submitted that judgement of courts below is based on only presumptions, surmises, conjectures which are not relevant to the circumstances of the case. The courts below failed to see that proper procedure was not followed during the trial. It is submitted that the petitioners begs to leave to urge any other grounds at the time of argument of the matter on merit.

It is submitted that aggrieved by the order of the lower appellate court the petitioner is approaching this Hon'ble court seeking the

relief of interference of this Hon'ble court to set aside the impugned order dated 07-01- 2012 passed in Crl. Appeal No.72/2011.

This Hon'ble court got ample power and jurisdiction to try this matter and to grant the relief to the petitioner.

It is submitted that there is delay in filing this appeal for which the petitioners has filed separate application for condoning the delay in filing this appeal."

Re-iterating the above grounds, learned counsel for

the Revision Petitioners vehemently contended that both

the Courts have not properly appreciated the materials

available on record and wrongly convicted the accused

persons and therefore, sought for the allowing Revision

Petition. He also pointed out that the prosecution failed to

establish the nexus between the thieved motorcycle and

accused persons and therefore, the trial Magistrate ought

not to have convicted the accused for the aforesaid

offences and sought for allowing the Revision Petition.

Alternatively, he contended that since the accused persons

are the first time offenders, the trial Magistrate ought to

have granted the benefit of probation.

9. Per contra, learned High Court Government

Pleader supported the impugned judgment contending that

the materials available on record clearly indicate that the

prosecution is successful in establishing the nexus between

the thieved motorcycle and the accused persons. He

pointed out that the materials available on record in the

form of oral testimony of PWs.1 to 3 clearly indicate that

there was a theft of motorcycle and the same was traced

by the Police during the course of investigation. He pointed

out that the thieved motorcycle was in the custody of the

accused persons and PW.4 is the seizure mahazer witness,

who specifically deposed about the contents of the seizure

mahazer and police have seized the motorcycle marked at

MO.1 from the custody of accused persons and therefore,

the materials available on record has been rightly

appreciated by the trial Magistrate and re-appreciated by

the learned judge in the First Appellate Court and sought

for dismissal of the Revision Petition. He also pointed out

that in a matter of this nature, the recovery of the stolen

article from the custody of the accused would be a main

ingredient to attract the offence under Section 379 IPC and

in the absence of any plausible or possible explanation

offered by the accused about the possession of the seized

motorcycle, the materials available on record sufficiently

established that the accused persons are guilty of the

offence punishable under Section 379 IPC and sought for

dismissal of the Revision Petition. He also pointed out that

in a matter of this nature, no mercy can be shown and

accused cannot be dealt leniently and sought for dismissal

of the Revision Petition in toto.

10. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points would arise for consideration:

"1. Whether the finding recorded by the learned Magistrate that accused persons are guilty of the offence punishable under Section 379 IPC, which was confirmed by the First

Appellate Court is suffering from legal infirmity, perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

11. In the case on hand, admittedly the motorcycle

marked at MO.1 bearing No.KA.44.E.4747 was stolen away

in front of the house of the complainant on 19.05.2010 in

the night hours. On receipt of the complaint, Police

registered a case against the unknown persons at the first

instance and thereafter, found that the motorcycle in the

custody of the accused persons and they proceeded to

Nijalingappa Extention, Davanagere and seized the

motorcycle. The materials available on record, in the form

of voluntary statement given by the accused persons on

their apprehension has also sufficiently corroborates the

same. The seizure mahazer witness-PW.4 has supported

the case of the prosecution. Therefore, the prosecution is

able to establish the nexus between the seized motorcycle

and accused persons. Admittedly, PW.4 or investigating

agency did not nurture any previous enmity or animosity

against the accused persons so as to falsely implicate them

in the case. Further, no explanation forthcoming from the

accused persons in respect of the possession of the stolen

motorcycle by them. At the time of recording an accused

statement, they have denied all the incriminatory

circumstance and did not offer any possible or plausible

explanation about the possession of the motorcycle by

them. Under such circumstance, the trial Magistrate while

appreciating the materials available on record in a proper

manner, recorded a finding that the accused persona are

guilty of the offence punishable under Section 379 IPC and

the same has been rightly re-appreciated by the learned

judge in the First Appellate Court in the Criminal Appeal by

the accused persons.

12. Even after re-considering the entire case of the

Revision Petitioners and having regard to the limited scope

of the Revision Petition, this Court is of the considered

opinion that the finding recorded by the trial Magistrate

and confirmed by the First Appellate Court that the

accused persons are guilty of the offence punishable under

Section 379 IPC is not suffering from any legal infirmity or

perversity and accordingly, point No.1 is answered in the

negative.

13. Insofar as sentence is concerned, admittedly,

no explanation is forthcoming from the accused persons

about the possession of the stolen motorcycle. No

mitigating circumstances are also placed before the trial

Court or before First Appellate Court by the accused

persons. The trial Magistrate has taken into consideration

the relevant aspect of the matter and passed an order of

conviction and sentenced as aforesaid. In a matter of this

nature, sentencing of rigorous imprisonment is uncalled for

and accordingly, the same is need to be reduced to simple

imprisonment. Hence, to that extent, point No.2 is

answered partly in negative and pass the following:

ORDER

1. Revision Petition is allowed-in-part.

2. While maintaining the order of conviction for the offence punishable under Section 379 IPC, the order of three years rigorous imprisonment is modified to three years simple imprisonment and to pay fine of Rs.5,000/- each. With default of fine amount, sentence to undergo rigorous imprisonment for 15 days.

3. The accused persons granted time to surrender before the trial Magistrate on or before 15.01.2022.

Office is directed to return the trial court records

with a copy of this order forthwith.

Sd/-

JUDGE

VBS/KA