Mr Vincent D Souza @ Vinci vs The State Of Karnataka
2021 Latest Caselaw 6186 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 15TH DAY OF DECEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

  CRIMINAL REVISION PETITION NO.1381/2016
      C/W CRIMINAL REVISION PETITION
     NOS.1382/2016, 214/2017, 1362/2016,
   1363/2016, 213/2017, 215/2017, 216/2017

IN CRL.RP NO.1381/2016
BETWEEN

MR. VINCENT D' SOUZA @ VINCI
AGED ABOUT 52 YEARS
S/O LATE LADIN D SOUZA
RESIDING AT ULLALA HOIGE
NEAR RAILWAY BRIDGE
JEPPINAMOGARU VILLAGE
MANGALORE TALUK
D.K-575 001.
                                    ...PETITIONER
(BY SRI SURESH.C.S, ADVOCATE)

AND

THE STATE OF KARNATAKA
MANGALURU EAST POLICE STATION
REPRESENTED BY PUBLIC PROSECUTOR
BANGALORE
                                    ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)
                          2

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE
DATED 23.09.2016 PASSED BY THE PRL. S.J., D.K.,
MANGALURU IN CRL.A.NO.47/2015 AND JUDGMENT AND
SENTENCE DATED 18.07.2014 PASSED BY THE II ADDL.
SR.   C.J.  AND   C.J.M., MANGALURU,   D.K.   IN
C.C.NO.81/2013 AND CONSEQUENTLY BE PLEASED TO
ACQUIT THE APPELLANT OF THE OFFENCES ALLEGED IN
THE ABOVE CASE.

IN CRL.RP NO.1382/2016

BETWEEN

MR VINCENT D' SOUZA @ VINCI
AGED ABOUT 52 YEARS,
S/O LATE LADIN D' SOUZA,
R/AT ULLALA HOIGE,
NEAR RAILWAY BRIDGE,
JEPPINAMOGARU VILLAGE,
MANGALORE TLAUK, D.K-575 001
                                      ...PETITIONER
(BY SRI SURESH C S, ADVOCATE)

AND

THE STATE OF KARNATAKA
MANGALORE EAST POLICE
REPRESENTED BY PUBLIC PROSECUTOR,
BANGALORE
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE
PASSED BY THE PRL. S.J., D.K., MANGALURU DATED
24.09.2016 IN CRL.A.NO.48/2015 AND JUDGMENT AND
SENTENCE PASSED BY THE II ADDL. SR. CIVIL JUDGE AND
                          3

C.J.M., MANGALORE, D.K, IN C.C.NO.64/2013 ON
19.07.2014 AND CONSEQUENTLY PLEASED TO ACQUIT
THE APPELLANT OF THE OFFENCE ALLEGED IN THE ABOVE
CASE AND ADMIT THIS CRL.RP.

IN CRL.RP NO.214/2017

BETWEEN

MR NAVEEN SEQUERA
AGED 42 YEARS,
SON OF LATE MONTHU SEQUEIRA
RESIDING AT
BEHIND OLD SRI KRISHNA TALKIES
PERMANNUR POST
THOKKOTTU MANGALURU
TALUK, D.K.DISTRICT
                                      ...PETITIONER
(BY SRI P P HEGDE, ADVOCATE)

AND

THE STATE
THROUGH THE SUB INSPECTOR OF POLICE
MANGALURU EAST POLICE STATION,
MANGALURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU
                                      ...RESPONDENT
(BY SRI V.S.VINAYAKA, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND THE ORDER OF SENTENCE DATED 11.03.2014
PASSED BY THE PRL. SENIOR CIIVL JUDGE AND C.J.M.,
MANGALORE IN C.C.NO.24/2013 AND ALSO THE
                          4

JUDGMENT DATED 08.09.2016 PASSED BY THE III ADDL.
DIST. AND S.J., D.K., MANGALORE IN CRL.A.NO.74/2014,
DISMISSING THE APPEAL OF THE PETITIONER HEREIN
AND ACQUIT THE PETITIONER HEREIN IN C.C.NO.24/2013
ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND
C.J.M., MANGALORE.
IN CRL.RP NO.1362/2016

BETWEEN

MR. VINCENT D SOUZA @ VINCI
AGED ABOUT 52 YEARS
S/O LATE LADIN D SOUZA
RESIDING AT ULLALA HOIGE
NEAR RAILWAY BRIDGE
JEPPINAMOGARU VILLAGE
MANGALORE TALUK
D.K-575 001
                                       ...PETITIONER
(BY SRI SURESH C S, ADVOCATE)

AND

THE STATE OF KARNATAKA
URVA P.S., MANGALORE,
REPRESENTED BY PUBLIC PROSECUTOR
BANGALORE

                                      ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE
PASSED BY THE III ADDL. DIST. AND S.J., MANGALORE
DATED 08.09.2016 IN CRL.A.NO.73/2014 AND JUDGMENT
AND SENTENCE PASSED BY THE PRL. SR. CIVIL JUDGE
AND   C.J.M., MANGALORE DATED       11.03.2014 IN
C.C.NO.123/2013.
                          5


IN CRL.RP.NO.1363/2016

BETWEEN

MR. VINCENT D SOUZA @ VINCI
AGED ABOUT 52 YEARS
S/O LATE LADIN D SOUZA
RESIDING AT ULLALA HOIGE
NEAR RAILWAY BRIDGE
JEPPINAMOGARU VILLAGE
MANGALORE TALUK
D.K -575 001
                                     ...PETITIONER
(BY SRI SURESH C S, ADVOCATE)

AND

THE STATE OF KARNATAKA
URVA POLICE STATION,
MANGALORE
REPRESENTED BY PUBLIC PROSECUTOR
BANGALORE
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

      THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE
DATED 8.09.2016 PASSED BY THE III ADDL. DIST. AND
S.J., MANGALORE CITY IN CRL.A.NO.74/2014 AND
JUDGMENT AND JUDGMENT AND SENTENCE DATED
11.03.2014 PASSED BY THE PRL. SR. C.J. AND C.J.M.,
MANGALORE IN C.C.NO.24/2013 AND CONSEQUENTLY BE
PLEASED TO ACQUIT THE APPELLANT OF THE OFFENCE
ALLEGED.
                          6

IN CRL.RP.NO.213/2017

BETWEEN

MR NAVEEN SEQUEIRA
AGED 42 YEARS,
SON OF LATE MONTHU SEQUEIRA,
RESIDING AT BEHIND
OLD SRI. KRISHNA TALKIES,
PERMANNUR POST,
THOKKOTTU, MANGALURU TALUK,
D.K.DISTRICT
                                     ...PETITIONER
(BY SRI P P HEGDE, ADVOCATE)

AND

THE STATE-THROUGH THE
SUB INSEPCTOR OF POLICE,
MANGALURU EAST POLICE STATION,
MANGALURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND THE ORDER OF SENTENCE DATED 19.07.2014
PASSED BY THE II ADDL. SENIOR CIVIL JUDGE AND CJM,
MANGALORE D.K., IN C.C.NO.64/2013 AND ALSO THE
JUDGMENT DATED 24.09.2016 PASSED BY THE PRL. DIST.
AND S.J., D.K., MANGALORE IN CRL.A.NO.48/2015
DISMISSING THE APPEAL OF THE PETITIONER HEREIN.
                          7

IN CRL.RP.NO.215/2017

BETWEEN

MR NAVEEN SEQUEIRA
AGED 42 YEARS,
SON OF LATE MONTHU SEQUEIRA,
RESIDING AT BEHIND OLD
SRI. KRISHNA TALKIES,
PERMANNUR POST,
THOKKOTTU, MANGALURU TALUK,
D.K.DISTRICT
                                      ...PETITIONER
(BY SRI P.P.HEGDE, ADVOCATE)

AND

THE STATE-THROUGH THE
SUB INSEPCTOR OF POLICE,
MANGALURU EAST POLICE STATION,
MANGALURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND THE ORDER OF SENTENCE DATED 11.03.2014
PASSED BY THE PRINCIPAL SR. CIVIL JUDGE AND C.J.M.,
MANGALORE IN C.C.NO.123/2013 AND ALSO THE
JUDGMENT DATED 8.09.2016 PASSED BY THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN CRL.A.NO.73/2014 DISMISSING THE
APPEAL OF THE PETITIONER HEREIN.
                          8

IN CRL.RP.NO.216/2017

BETWEEN

MR NAVEEN SEQUEIRA
AGED 42 YEARS,
SON OF LATE MONTHU SEQUEIRA,
RESIDING AT BEHIND
OLD SRI. KRISHNA TALKIES,
PERMANNUR POST,
THOKKOTTU, MANGALURU TALUK,
D.K.DISTRICT
                                     ...PETITIONER

(BY SRI P P HEGDE, ADVOCATE)

AND

THE STATE-THROUGH THE
SUB INSEPCTOR OF POLICE,
MANGALURU EAST POLICE STATION,
MANGALURU
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU
                                     ...RESPONDENT
(BY SRI V.S.VINAYAKA, HCGP)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
AND THE ORDER OF SENTENCE DATED 18.7.2014 PASSED
BY THE II ADDL. SENIOR CIVIL JUDGE AND CJM,
MANGALORE D.K., IN C.C.NO.81/2013 AND ALSO THE
JUDGMENT DATED 23.09.2016 PASSED BY THE PRL. DIST.
AND S.J., D.K., MANGALORE IN CRL.A.NO.47/2015
DISMISSING THE APPEAL OF THE PETITIONER HEREIN
AND ACQUIT THE PETITIONER HEREIN IN C.C.NO.81/2013
                           9

ON THE FILE OF THE II ADDITIONAL SR. CIVIL JUDGE AND
C.J.M., MANGALURU.

     THESE CRIMINAL REVISION PETITIONS COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                       ORDER

The Revision Petitioners are the accused persons as

depicted below:

 Crl. RP.     Crl.     CC Nos.    Order of sentence and
  Nos.       Appeal                   fine imposed
              Nos.

1381/2016 47/2015     81/2013     Three   years   rigorous
                                 imprisonment and fine of
                                 Rs.5000/-   each,    with
                                 default sentence, simple
                                 imprisonment    for    six
                                 months.


1382/2016 48/2015     64/2013    Three    years   rigorous
                                 imprisonment and fine of
                                 Rs.5000/-    each,   with
                                 default sentence, simple
                                 imprisonment    for    six
                                 months.

214/2017    74/2014   24/2013    Two     years    Rigorous
                                 imprisonment and fine of
                                 Rs.5000/-    each,   with
                                 default sentence, simple
                                 imprisonment    for    six
                                 months.



1362/2016 73/2014    123/2013   Two     years    Rigorous
                                imprisonment and fine of
                                Rs.5000/-    each,   with
                                default sentence, simple
                                imprisonment    for    six
                                months.

1363/2016 74/2014    24/2013    Two     years    Rigorous
                                imprisonment and fine of
                                Rs.5000/-    each,   with
                                default sentence, simple
                                imprisonment    for    six
                                months.

213/2017   48/2015   64/2013    Three    years   rigorous
                                imprisonment and fine of
                                Rs.5000/-    each,   with
                                default sentence, simple
                                imprisonment    for    six
                                months.

215/2017   73/2014   123/2014   Two     years    Rigorous
                                imprisonment and fine of
                                Rs.5000/-    each,   with
                                default sentence, simple
                                imprisonment    for    six
                                months.

216/2017   47/2015   81/2013    Three    years   rigorous
                                imprisonment and fine of
                                Rs.5000/-    each,   with
                                default sentence, simple
                                imprisonment    for    six
                                months.

2. Brief facts of the case are as under:

Revision Petitioners faced trial in CC Numbers as

referred to supra for the charges punishable under Section

392 of IPC. The complaint averments reveals that on

23.11.2011 at about 9.15 p.m., in front of Jugul Hall,

Mallikatte, Mangaluru, accused persons came on a

motorcycle bearing No.KA-19-ED-3014 and forcibly

snatched gold chain from the neck of the complainant

weighing 31 grams and 900 mili grams. Based on the

complaint lodged by the complainant, jurisdictional police

namely Mangaluru East Police registered a case in Crime

No.195/2011 (Kadri) and the same was investigated. After

thorough investigation, the charge sheets were laid.

Similar were the complaints in the other cases also. In all,

four cases were registered against the accused persons

almost on similar grounds. Police during the investigation

inter alia apprehended the Revision Petitioners and based

on the voluntary statements recorded by the investigating

agency, the police were able to seize the golden

ornaments, which were stolen by the Revision Petitioners.

3. The presence of the accused persons were

secured before the Criminal Court. Charges were framed in

each of the cases and accused persons pleaded not guilty

and as such, the trial was held.

4. In order to prove the case of the prosecution,

the prosecution in all examined the complainant, mahazer

witnesses, investigating agency and also documentary

evidence, which were compliant, seizure mahazer,

photographs of the seized ornaments, spot mahazer and

material objects namely the golden ornaments, which were

seized by the police in respect of each of the cases. The

seized gold ornaments were also identified and they were

also exhibited before the Court either in the form of

photograph or by placing the material objects themselves.

5. On conclusion of the prosecution evidence,

accused statements as contemplated under Section 313

Cr.P.C were recorded, wherein the accused persons denied

all the incriminatory circumstances found in the

prosecution evidence. However, accused persons did not

choose to offer their version to the incident at the time of

recording accused statements or by placing any written

submissions as is contemplated under Section 313(5)

Cr.P.C.

6. Thereafter, learned Magistrate heard the

parties in detail and came to the conclusion that the

prosecution is successful in proving that there exists a

nexus between the seized gold ornaments and accused

persons and convicted the accused persons for the

aforesaid offences and sentenced as referred to supra in

the table.

7. Being aggrieved by the same, the Revision

Petitioners approached the first appellate Court in Criminal

Appeals Numbers as stated supra. Learned Judge in the

First Appellate Court, after considering the materials

available on record and re-appreciating the same,

dismissed the appeals filed by the accused persons

whereby the order of conviction and sentence passed by

the trial Magistrate stood confirmed.

8. Being aggrieved by the same, the accused

persons have filed these Revision Petitions with the

following grounds:

The impugned judgment of conviction is contrary to law and facts of the case, weight of evidence, circumstances of the case and as such the same is irregular, illegal, improper, arbitrary, and injudicious. Hence the same is liable to be set aside. The trial Court has not appreciated the evidence on record in the correct legal perspective. Non-holding of test identification parade is fatal to the case of the prosecution.

The trial Court has erred in convicting the accused for the offences under Section 392 of IPC. The reasons assigned by the trial Court to convict the petitioner are erroneous and not at all convincing.

The trial Court convicted the petitioner on the presumption, suspicion and surmises on the part of the prosecution evidence and probabilities of the case..

The trial Court has failed to appreciate the inconsistencies and improbabilities in the evidence of the prosecution witnesses.

The ingredients of offence under Section 392 of IPC are not satisfied in the present case.

The trial Court and the appellate Court have failed to apply the correct principles of law in appreciating the evidence.

Without prejudice, it is further submitted that the sentence inflicted by the trial Court is highly excessive and harsh.

The judgments of the Courts below are unsustainable both in law and on facts.

The trial Court ought to have acquitted the petitioner herein holding that the prosecution has miserably failed to prove the case against Accused No.2 beyond reasonable doubt.

The impugned judgments have resulted in serious miscarriage of justice.

(Common in Crl. R.P.Nos.213/2017, 216/2017, 214/2017 & 215/2015)

There is no corroboration in the oral evidence of witnesses of the prosecution.

(common in Crl.RP Nos.214/2017 and 215/2017)

It is humbly submit that the judgment and sentence passed by the learned Appellate Court are opposed by the law, facts, circumstances and probabilities of

the case and thus the judgment of the court below is liable to be set-aside.

That the lower court ought not to have given credence to the interested, contradictory, uncorroborated and doubtful testimony of the witnesses to base conviction of the Appellant as there is no iota of cogent, reliable and trust worthy evidence to connect the appellants to the alleged incident.

The trial court failed to look into the aforesaid aspect and failed to look into the documents produced and relied upon by the appellant, and comes to the wrong conclusion and convicted the appellant. That the petitioner was an handicapped due to the train accident for that appellant was lost his right leg since from 30-6-2008. Hence the appellant was not properly walk and drive the vehicle including the Two wheeler as such one leg man cannot involved in the robbery the petitioner herein produce the Medical Records as Annexure 'C' of the kind perusal of this Hon'ble Court.

The petitioner Court failed to look and also failed to appreciate the aforesaid aspect raised by the appellant, and comes to the wrong notion and convicted the appellant for the offence alleged therein.

Viewed from any angle, the learned Magistrate has not appreciated the materials in the case in the right

perspective and the judgment and sentence passed by the learned magistrate are bad in law and thus to same are liable to be set-aside.

The Appellant craves for the kind indulgence of this Hon'ble Court to allow him to raise additional grounds at the time of hearing of the Appeal. It is humble submitted that the Appellant has not filed any other Appeal challenging the judgment of the Trail Court.

(Common in Crl.RP Nos. 1381/2016,1382/2016, 1362/2016 and 1363/2016)

It is humbly submitted that the judgment and conviction passed by the learned Principal District and Sessions judge and 2nd Addl Senior Civil and CJM ,Mangalore is not based on any congest, proper, sufficient and reliable evidence and as such, is liable to be set-aside.

That after scrutiny the evidence of complainant before the police station and evidence before the court there is lot of contradiction. That CW No. 1 before the court has not identified the appellant, she identified only the accused No.2. This shows the prosecution has not proved the allegation against the appellant. Further, complainant has not identified the accused before the I.O. Further as per complaint the Petitioner was aged about 20 to 30 years. As such CW.1 was not known the face of the accused/Petitioner at the incident spot. Further I.O

has not done identified parade for the identity of the accused in police station or in judicial custody that there was two years delay..

(Common in Crl.RP.Nos.1381/2016 and 1382/2016)

The lower court ought to have acquitted the appellant at least by extending the benefit of doubt to them, by consideration the fact that there is no corroboration in the oral evidence of the witnesses examined before the Court and the documentary evidence relied on by the prosecution. There is no nexus between the alleged chain pieces seized in the case and that of the lost chain of CW.No.1 as well as the motor cycle alleged to have been involved in the case. Admittedly in the compliant of the CW.No.1, the culprits are unknown persons aged in between 25 and 30 years and there is no whisper regarding the descriptions of the motor cycle used by the culprits. Even with regard to the involvement of the appellant in the alleged incident which took place on 23.11.2011 and the appellant arrested on 22.06.2013, there is no iota of evidence connect them with the alleged incident as there is no test of identification parade held in this regard.

That the trail court has not considered that there was a delay in filing of the complaint that the alleged incident occurred on 23.11.2011 and complaint was

filed on 24.11.2011 for that no explanation from the prosecution.

(in Crl.RP. 1381/2016)

The lower court ought to have acquitted the appellant at least by extending the benefit of doubt to them, by consideration the fact that there is no corroboration in the oral evidence of the witnesses examined before the Court and the documentary evidence relied on by the prosecution. There is no nexus between the alleged chain pieces seized in the case and that of the lost chain of CW.No.1 as well as the motor cycle alleged to have been involved in the case. Admittedly in the compliant of the CW.No.1, the culprits are unknown persons aged in between 25 and 30 years and there is no whisper regarding the descriptions of the motor cycle used by the culprits. Even with regard to the involvement of the appellant in the alleged incident which took place on 03.10.2012 and the appellant arrested on 24.11.2012, there is no iota of evidence connect them with the alleged incident as there is no test of identification parade held in this regard.

(in Crl.RP No.1382/2016)

It is humbly submitted that the judgment and conviction passed by the learned 3rd Addl. District and Sessions judge and PRL Senior Civil and CJM, Mangalore is not based on any congest, proper,

sufficient and reliable evidence and as such, is liable to be set-aside.

The lower court ought to have acquitted the appellant at least by extending the benefit of doubt to them, by consideration the fact that there is no corroboration in the oral evidence of the witnesses examined before the Court and the documentary evidence relied on by the prosecution. There is no nexus between the alleged chain pieces seized in the case and that of the lost chain of CW.No.1 as well as the motor cycle alleged to have been involved in the case. Admittedly in the compliant of the CW.No.1, the culprits are unknown persons aged in between 25 and 30 years and there is no whisper regarding the descriptions of the motor cycle used by the culprits. Even with regard to the involvement of the appellant in the alleged incident which took place on 09.08.2012 and the appellant arrested on 23.01.2013, there is no iota of evidence connect them with the alleged incident as there is no test of identification parade held in this regard.

(Common in Crl.RP.Nos.1362/2016 and 1363/2016)

Reiterating the above grounds, Sri Suresh C.S. and Sri T.P.

Hegde, vehemently contended that both the Courts have

not properly appreciated the materials available on record

and wrongly convicted the accused persons and sought for

allowing the Revision Petitions. They also contended that

the prosecution has utterly failed to establish the nexus

between seized gold ornaments and accused persons

especially the Revision Petitioner Vincent D' Souza in

Criminal Revision Petition Nos. 1381/2016, 1382/2016,

1362/2016 and 1363/2016 is handicapped person and

therefore, he could not have been involved in the offence,

which fact has been totally ignored by both the Courts and

sought for allowing the Revision Petitions. They further

contend that in the event of this Court confirming the

order of conviction, the Court may take lenient view in

reducing imprisonment period by granting probation and

also to set aside the imprisonment of the accused by

granting probation.

10. Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that the police did not nurture any previous enmity or

animosity against the Revision Petitioners. Therefore, the

arguments put forth on behalf of the Revision Petitioners

that the accused persons have falsely implicated in the

case by implanting the golden ornaments itself is

misconceived and therefore, cannot be countenanced in

law and sought for dismissal of the Revision Petitions.

11. Insofar as the alternate contention is

concerned, learned High Court Government Pleader

contended that since each of the accused persons are

convicted in four cases, the grant of probation cannot be

considered by this Court and therefore, sought for

dismissal of the Revision Petitions.

12. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points would arise for consideration are:

"1. Whether the finding recorded by the Trial Magistrate that the accused persons are guilty of the offence punishable under Section

392 IPC and confirmed by the first Appellate Court is suffering from legal infirmity, patent factual defects, error of jurisdiction or perversity and thus, calls for interference?

2. Whether the sentence is excessive?"

13. In the case on hand, the investigating agency

recovered in all 17 grams and 279 mili grams of gold

ornaments from the custody of accused No.1 and 14

grams and 630 mili grams from the custody of accused

No.2. In respect of each of the cases, the investigating

agency got the complainant to the Police Station and got

identified the seized gold ornaments. In such visits, the

complainants have identified their respective stolen gold

ornaments.

14. Admittedly, the investigating agency did not

possess any previous enmity or animosity against the

accused persons/Revision Petitioners to falsely implicate

them by implanting such a costly gold ornaments into the

case. No explanation whatsoever is forthcoming from the

accused with regard to the possession of the above said

gold ornaments. Admittedly, the prosecution witnesses are

also strangers to the accused persons. When such is the

position why the panch witnesses or complainants would

depose falsely against the accused/Revision Petitioners is a

question that remains unanswered by the Revision

Petitioners. Crowning all that they did not offer any

explanation whatsoever that it is not the case of accused/

Revision Petitioners either that they have been picked up

from their respective houses and falsely implicated in the

case. When such is the factual aspects of the matter, the

trial Magistrate after considering the oral and documentary

evidence on record especially taking note of the fact that

the valuable gold ornaments being seized from the custody

of accused Nos.1 and 2, came to the conclusion that they

were snatched away from the respective complainants and

recorded a finding that the action of the accused persons is

punishable under Section 392 IPC and therefore, rightly

recorded a finding that the accused persons are guilty of

the offences alleged against them and passed an order of

conviction. The trial Magistrate after hearing accused, in

two cases passed an order of three years rigors

imprisonment and fine Rs.5,000/- each in each of the

cases and in two cases, trial Court has granted two years

rigors imprisonment and fine of Rs.5,000/- each. It is to be

noted that in all the four cases the Revision Petitioners

having been convicted, the question of granting probation

would not arise in such circumstances.

15. This court after reconsidering the materials

available on record and in the light of the grounds urged in

the Revision Petitions, is of the considered opinion that no

case is made out by the Revision Petitioners to hold that

the impugned judgments are suffering from legal infirmity,

patent factual defects or error of jurisdiction. Therefore,

the irresistible conclusion that this Court can reach is to

hold the point No.1 is in the negative and accordingly,

answered.

16. Insofar as sentence is concerned, the

accused/Revision Petitioners namely Vincent D'Souza @

Vinci is now aged 50 plus years and Naveen Sequiera is

now aged 40 plus years. Vincent D'Souza is physically

disabled person as he has met with railway accident and

he has lost the right leg up to the knee level. Under such

circumstances, taking note of the fact that they are now

leading happy married life and there is no further

complaints against the Revision Petitioners, this Court is of

the considered opinion that the sentence as ordered by the

trial Magistrate and confirmed by the first Appellate Court

is reduced to one year simple imprisonment instead of

period mentioned supra in the table and ordered to pay

fine of Rs.15,000/- each in each of the cases and in default

of payment of fine, sentence to undergo six months of

simple imprisonment, would meet the ends of justice.

Accordingly, point No.2 is answered and pass the

following:

ORDER

1. The Criminal Revision Petitions are allowed-in-part.

2. While maintaining the conviction of the accused persons/Revision Petitioners for the offence

punishable under Section 392 IPC, accused persons are convicted in each of the cases and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.15,000/- in each of the cases with a default sentence of six months simple imprisonment.

3. Time is granted till 31.1.2022 to pay the fine amount.

4. It is made clear that in the event of failure to pay the fine amount, order of the Trial Court shall stand restored.

5. Further, it is made clear that the sentence ordered shall run consecutively that is one after the other.

6. The accused persons/Revision Petitioners are entitled to take the benefit of set off against the sentence of imprisonment under Section 428 of Cr.PC. in the first case.

Sd/-

JUDGE

KA*