Chiranjeevi vs The State
2021 Latest Caselaw 6820 Kant

                         1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 20TH DAY OF DECEMBER, 2021

                      BEFORE

      THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.1395/2021

BETWEEN

1.     CHIRANJEEVI
       S/O RAMAKRISHNA, AGED ABOUT 29 YEARS,
       OCC : LABOURER,
       R/O CHANNAKESHAVAPURAM,
       YARAGUNTLU, DHARMAVARAM,
       ANANTHAPURA, ANDRA PRADESH -515 671

2.     G. ISAK, S/O GURUVAYYA,
       AGED ABOUT 33 YEARS,
       OCC LABOURER, R/O RAVALACHURU,
       DHARMAVARAM, ANANTHAPURA,
       ANDRA PRADESH -515671

3.    P RAJASHEKAR
      S/O VENKATESH,
      AGED ABOUT 34 YEARS,
      OCC LABOURER, R/O RAJENDRANAGARA,
      DHARMAVARM TOWN, ANANTHAPURA,
      ANDRA PRADESH- 515671
                                    ...PETITIONERS
(BY SRI UMESH, FOR
SRI R B DESHPANDE, ADVOCATES)
                              2


AND
THE STATE
OF KARNATAKA BY
PAVAGADA POLICE STAION,
PAVAGADA CIRCLE,
TUMKUR DISTRICT -561202

(REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS,
BENGALURU -560001)
                                        ...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 ORDER OF
CONVICTION AND SENTENCE DATED 17.07.2019 PASSED
BY THE PRINCIPAL CIVIL JUDGE AND JMFC PAVAGADA IN
C.C.NO.429/2011 CONFIRMED BY THE JUDGMENT AND
ORDER DATED 08.10.2021 PASSED BY IV ADDITIONAL
SESSIONS JUDGE, TUMAKURU SITTING AT MADHUGIRI IN
CRL.A.NO.5014/2019 (CONVICTED FOR THE OFFENCE
P/U/S.392 R/W SEC.34 OF IPC) AND ACQUIT THE
PETITIONER OF THE CHARGES LEVELED AGAINST THEM.

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

                          ORDER

Though this matter is listed for admission today, with

the consent of both the parties, the matter is taken up for

final disposal.

2. Heard Sri Umesh, learned counsel representing

Sri R.B.Deshpande, for the Revision Petitioners and Sri

V.S. Vinayaka, learned High Court Government Pleader for

respondent-State and perused the records.

3. Accused is in revision before this Court

challenging the order of conviction passed in CC

No.429/2011 confirmed in Criminal Appeal No.5014/2019,

whereby the order of conviction convicting the accused for

the offence punishable under Section 392 read with

Section 34 IPC and sentenced as under:

              "ಆ ೋ   ಸಂ ೆ ೧         ಂದ 3 ರವ ೕ ೆ        ಾರ ೕಯ ದಂಡ
     ಸಂ    ೆ ಕಲಂ: 392 ಸಹ ಾಚಕ ಕಲಂ 34 ರ ಅ ಯ                   !"ಾಹ# ಾದ

ಅಪ ಾಧ&ೆ' 2 (ಎರಡು) ವಷ#ಗಳ &ಾಲ &ಾ ಾ ಾಸ ಮತು/ ತ0ಾ ರೂ.5,000/ ದಂಡªÀನು2 34ಸ0ಾ56ೆ. ಆ ೋ ತರು ದಂಡವ£ÀÄß 7ಾವ ಸಲು 3ಫಲ ಾದ ಆ ೋ ತರು. 9ಾಲು' ಂಗಳ: ;ಾ6ಾ &ಾ ಾ ಾಸ&ೆ' ಒಳ ಾಗತ/ಕ'ದು=.

              2. ಕಲಂ 357(೧) ದಂಡ ಪ>?>@ಾ ಸಂ                ೆ ಅ ಯ        ಈ
     ಪ>ಕಣದ ಸಂಗ , 3ದ Cಾನಗಳ£ÀÄß ಗಮನದ                     D&ೊಂಡು, 7ಾ>.;ಾ.
     1 ರವರು ಈ ಪ>ಕರಣದ            9ೊಂದ ವ ?/@ಾ5ದು=, ಅªÀgÀÄ ಪ Eಾರ

ಹಣವನು2 ಪFೆಯಲು ಅಹ# ಾ5ರು ಾ/ ೆ, D &ಾರಣ 7ಾ>.;ಾ.೧ ರವ ೆ ರೂ.10,000/ ಪ Eಾರ ಹಣವನು2 &ೊಡಲು Gಗ4ಪ ಸ0ಾ56ೆ.

      ಸದ    ಪ Eಾರದ     Hತ/    ರೂ.10,000/   ಹಣವನು2   ಆ ೋ ತರ
      7ಾವ Dದ ದಂಡದ ಹಣದ        Gೕಡಲು ಆ6ೇ!ಸ0ಾ5ರುತ/6ೆ.


            3. ಆ ೋ   ಸಂ ೆ : ೧       ಂದ ೩ ರವರು ಈ ಪ>ಕರಣದ

ಈ ಾಗ0ೇ 3JಾರKಾ4ೕ£À ಅಪ ಾ4ಗLಾ5 ಇದ= ಭಂO&ಾ9ೆಯ ದ= &ಾ0ಾಅ4ಯನು2 ಕಲಂ 428 ದಂಡ ಪ>?>@ಾ ಸಂ vÉ ಅ ಯ ವPಾವಟುR Cಾಡಲು ಆ6ೇ!ಸ0ಾ56ೆ."

4. Brief facts of the case are as under:

A complaint came to be lodged contending that on

03.10.2011 at about 2.30 a.m., when the complainant

while returning from his routine business i.e., milk vending

and curd at various branches and by collecting the amount

in the milk van bearing No.AP-03-Y-2307 near the land of

one Narasimhappa on Venkatapura Gounipalli Road,

accused Nos.1 to 3 came in Bajaj Discover motorcycle

bearing No.AP-21-AH-5382 and intercepted the milk van

and used the force and smeared the chilly powder into the

eyes of the complainant and took away Rs.49,462/- from

the custody of the complainant. The jurisdictional Police

after registering the case, investigated the matter in detail

and filed a charge sheet against the accused/Revision

Petitioners for the offence punishable under Section 392

read with Section 34 IPC.

5. The presence of the accused persons were

secured and charges were framed. Accused Nos.1 to 3

pleaded not guilty and case against accused No.4 came to

be bifurcated by filing split up charge sheet. Since the

accused pleaded not guilty, the trial was held.

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

prosecution in all examined 12 witnesses including the

complainant, mahazer witnesses and investigating agency

as PWs.1 to 12 and in all 17 documents were relied as

Exs.P1 to 17. Prosecution also relied on the material

objects namely knife, chilly powder, mobile telephone,

Rs.7,000/- cash, China Set mobile phone, mobile sim and

cash of Rs.8,000/-, Rs.6,500/- and Rs.5,342/- cash bags

as MOs.1 to 12.

7. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

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

all the incriminatory circumstances. However, they did not

offer their version to the incident by examining themselves

or by placing written submission as is contemplated under

Section 313(5) Cr.PC.

8. Thereafter, the trial Magistrate heard the

parties in detail and passed an order of conviction

convicting the accused persons for the aforesaid offence

and sentenced as referred to supra.

9. Being aggrieved by the same, accused persons

preferred an appeal before the Sessions Court in Criminal

Appeal No.5014/2019. Learned Judge in the First Appellate

Court after securing the records and hearing the parties in

detail and after re-appreciating the materials available on

record, ultimately dismissed the appeal of the accused

persons confirming the judgment and order of conviction

and sentenced passed by the trial Magistrate by judgment

dated 8.10.2021.

10. Being aggrieved by the same, the accused

Nos.1 to 3 have preferred this Revision Petition with the

following grounds:

"1. That conviction and sentence passed by the courts below are contrary to law, evidence on record and probabilities of the case.

2. That courts below have not considered the facts and circumstances of the case in proper prospective.

3. That judgments of courts below are illegal, arbitrary, capricious and opposed to sound principles of law.

4. That courts below have committed serious error in convicting the petitioners when the prosecution has failed to prove the guilt of the petitioners.

5. That the courts below ought to have taken into consideration that the prosecution has miserably failed to prove the case beyond all reasonable doubt.

6. That courts below have committed serious error in relying on interested testimony of Pw's 1,4 to 6, 9 to 12 when their evidence is

not corroborated to the contents in the complaint and their statement before police.

7. That courts below have committed serious error in relying on the evidence of Pw's 1,4 to 6, 9 to 12 when their evidence is full of material omissions, contradictions, not cogent and reliable.

8. That courts below have acquitted the petitioners on the ground that evidence of PW1/complainant does not reveals about the test identification parade held as the prosecution projected which goes to root of the case. Under these circumstances benefit of doubt ought to have been extended to the petitioners by the courts below.

9. That courts below have committed serious error in relying on official witnesses wherein prosecution relied. PW2/panch for Ex.P.2/spot mahazar has not supported the case of the prosecution as the same was prepared in the police station. The fact that PW4,PW5 are the panch witnesses/official witnesses acted on say of PW8/Tahasildar which goes to root of the prosecution case. Further petitioners/accused No.1 to 3 are implicated upon their voluntary statement. Thus all the facts and circumstances

leads that recovery is not proved by the prosecution by cogent and reliable evidence and thus benefit of doubt ought to have been extended to the petitioners in the alleged case of the prosecution.

10. That courts below ought to have acquitted the Petitioners on the ground that there is no evidence to connect the petitioners with alleged incident. PW5, 6 are interested witness as they are official witness Further P.W- 3 and 11 have not supported the case of the prosecution.

11. That the courts below ought to have acquitted the petitioners/accused No.1 to 3 on the ground that prosecution has suppressed very genesis of the incident as courts below have acquitted the petitioners for the offences under Section 120(B) IPC which goes to root of the prosecution case. Thus benefit of doubt ought to have been extended to the petitioners in the alleged case of the prosecution.

12. That courts below have committed serious error in convicting the petitioners for the offence under Section 392 r/w 34 IPC when prosecution has failed to adduce any cogent and reliable evidence in that regard.

13. That Courts below ought to have accepted the defence of the petitioners and acquitted them.

14. That entire approach of the case by the courts below is erroneous, misconceived and the came has resulted in miscarriage of justice.

15. That courts below have committed serious error in not extending the benefit of provisions of Section 3 and 4 of the probation of offenders Act to the petitioners. The sentence imposed is too harsh and disproportionate."

Reiterating the above grounds Sri Umesh learned counsel

representing Sri.R.B.Deshpande, contended that both the

Courts have not properly appreciated the materials

available on record and falsely convicted the accused

persons resulting in miscarriage of the justice and

therefore, sought for allowing the Revision Petition.

Alternatively, he contended that since the accused persons

are the first time offenders without any criminal

antecedents, the trial Court and First Appellate Court ought

to have considered the grant of probation to the Revision

Petitioners and prayed for allowing the Revision Petition to

that extent.

11. Per contra, learned High Court Government

Pleader supported the impugned judgment contending that

after registering the case, police were able to apprehend

accused Nos.1 to 3 and recovered cash of Rs.7,000/-,

Rs.8,000-, Rs.6,500/- and Rs.5,342/- and the cash bag,

which was in the custody of the complainant as on the

date of incident and same has been marked before the trial

Court and why would the police implant such huge cash

only with an intention to get false conviction against the

accused persons in the absence of any previous animosity

or enmity and therefore, judgment of the trial Magistrate is

based on sound and logical reasons and same has been

properly reappreciated by the learned Judge in the First

Appellate Court in the light of the grounds raised in the

appeal memorandum and thus, sought for dismissal of the

Revision Petition.

12. Insofar as alternate plea is concerned, if the

accused persons shown any leniency, the same would send

wrong message to the Society at large and sentence

ordered by the Court must act as a deter such perpetrators

of the crime and therefore, sought for dismissal of the

Revision Petition in toto.

13. 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 trial Magistrate that accused persons are guilty of the offence punishable under Section 392 read with Section 34 IPC and confirmed by First Appellate Court is suffering from patent factual defects, legal infirmity, perversity or error of jurisdiction and thus, calls for interference?

2. Whether the sentence is excessive?"

14. In the case on hand, admittedly, the incident

has taken place in the early hours on 03.10.2011, when

the complainant was returning from his routine business of

milk vending and collection of cash. At that juncture, the

accused persons came on the motorcycle and intercepted

the milk van and snatched away the cash bag from the

custody of the complainant after throwing the chilly

powder. The Police after registering the case, investigated

the matter and apprehended the accused persons and test

identification parade was conducted by the Executive

Magistrate i.e. Tahsildar. The Tahsildar is examined before

the Court. Admittedly, the complainant and the Tahsildar

did not nurture any previous animosity or enmity against

the accused persons so as to falsely implicate the Revision

Petitioners in the case. Mere panch witness turning hostile

to the case of the prosecution would not cause serious

dent to the case of the prosecution in a matter of this

nature. Further, cash of Rs.7,000/-, Rs.8,000/-,

Rs.6,500/- and Rs.5,342/- and cash bag were recovered

by the police at the instance of voluntary statement given

by the accused persons, which was marked as MO.4,

MO.8, MOs.10 to 12. While recording the accused

statement, accused persons did not offer any proper

explanation either by examining themselves or by placing

written submission as is contemplated under Section

313(5) of Cr.P.C. It is not the case of the accused either

that they have been picked up from their house and on

account of previous ill will between the complainant and

accused, they have been falsely implicated in the case.

Under such circumstances, in the absence of any contra

evidence placed by the accused, trial Magistrate came to

the right conclusion that accused persons are responsible

for the offence alleged against them and prosecution is

successful in proving the charges leveled against the

accused beyond all reasonable doubt by placing cogent

and convincing reasons.

15. Learned Judge in the First Appellate Court in

the light of the grounds urged in the appeal Memorandum,

reappreciated the materials available on record and rightly

concluded that the judgment and order of conviction

passed by the trial Magistrate is based on sound and

logical reasons and dismissed the appeal.

16. Having regard to the scope of the Revisional

jurisdiction, this Court reconsidered the materials available

on record and is satisfied that none of grounds urged in

the Revision Petition holds merit so as to interfere with the

well reasoned order passed by the trial Magistrate and

confirmed by the First Appellate Court. Accordingly, point

No.1 is answered in the negative.

17. Insofar as sentence is concerned, admittedly,

the Revision Petitioners are the first time offenders as is

confirmed by the learned High Court Government Pleader.

Under such circumstances, following the dictums of the

Hon'ble Apex Court:

i. In the case of Chandreshwar Sharma v. State of

Bihar reported in (2000) 9 SCC 245 at paragraph No.3, it is

held as under:

"3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to

rigorous imprisonment for one year as 3.5 Kg. of non- ferrous metal was recovered from his possession. On an appeal being filed, the conviction under Section 379 was affirmed. The appellant carried the matter in revision, but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant, and this contention has been negative and rightly so. When the matter was listed before this Court, a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice, Mr. Singh, the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal, and that of the High Court, it transpires that none of the forums below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code, and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done, inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such, the mandatory duty cast on the

Magistrate has not been performed. Looking to the facts and circumstances of the present case, we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly, while maintain the conviction of the appellant, direct that he will be dealt with under section 360, and as such, we direct that the appellant be released on probation of good conduct instead of sentencing him, and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate, Ranchi, within 3 weeks from today. The appeal is disposed of accordingly."

ii. In the case of Gulzar v. State of M.P reported in

(2007) 1 SCC 619, it has been held 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 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 P.O. 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".

The trial Magistrate is bound to consider the grant of

probation. In the facts and circumstances of the case and

in the absence of any criminal antecedents to the Revision

Petitioners, this Court is of the considered opinion that

accused persons are entitled for grant of probation by

directing them to execute a bond in a sum of Rs.50,000/-

with one surety for the likesum to the satisfaction of the

Trial Court for their good behavior, which shall be in force

for a period of 2 years and ordered to pay fine of

Rs.50,000/- each inclusive of the amount already imposed

by the trial Magistrate, ends of justice would be met.

Accordingly, point No.2 is answered and following order is

passed:

ORDER

1. Criminal Revision Petition is allowed-in-part.

2. While maintaining the conviction of the accused persons for the offence punishable under Section 392 IPC, the accused persons are directed to execute a bond in a sum of Rs.50,000/- each with one surety for the likesum to the satisfaction of the trial Court, which shall be in force for a period of two years for their good behavior and ordered to pay fine of Rs.50,000/- each inclusive of the amount already imposed by the trial Magistrate and confirmed by the First Appellate Court for the offence punishable under Section 392 read with Section 34 IPC.

3. Time is granted for the accused persons to pay the fine amount and to execute bond till 31.01.2022.

4. If there is any violation of the bond conditions or non payment of fine, the order of the trial Magistrate automatically stands restored.

Office is directed to return the trial Court records

with a copy of this order forthwith.

Sd/-

JUDGE

KA*