Sri Srikantaradya vs Union Of India
2021 Latest Caselaw 6858 Kant

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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.241/2012

BETWEEN

SRI SRIKANTARADYA
S/O LATE BASAVARAJA ARADHYA,
AGED ABOUT 36 YEARS,
R/O MARBALLI VILLAGE,
JAYAPURA HOBLI, MYSORE,
MYSORE DIST.
                                     ...PETITIONER
(BY SRI B.S.VENKATANARAYANA, AMICUS CURIAE)

AND

UNION OF INDIA
BY RAILWAY PROTECTION FORCE,
POLICE STATION,MYSORE
                                    ...RESPONDENT
(BY SRI V.K.NARAYANA SWAMY, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGEMENT DATED 4.2.2012
IN CRL.A.NO.157/2011 ON THE FILE OF THE I - ADDL.
DISTRICT AND SESSIONS JUDGE, MYSORE, CONFIRMING
THE JUDGMENT DATED 29.11.2011 IN C.C.NO.933/2005
ON THE FILE OF THE III - ADDL. SENIOR CIVIL JUDGE
AND CHIEF JUDICIAL MAGISTRATE, MYSORE.
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     THIS CRIMINAL REVISION PETITION COMING ON
FOR HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-

                            ORDER

Heard learned Amicus Curiae and learned counsel for

the respondent and perused the records.

2. Accused is in revision challenging the order

passed in C.C.No.933/2005 on the file of the III Additional

Senior Civil Judge and CJM, Mysore by Judgment dated

29.11.2011 whereby he has been convicted for the offence

punishable under Section 3(a) Railway Property (Unlawful

Possession) Act, 1966 (hereinafter referred to as 'RP (UP)

Act' for short) and sentenced to undergo simple

imprisonment for one year with fine of Rs.1,000/-, with

default sentence to undergo simple imprisonment for three

months, which was confirmed in Criminal Appeal

No.157/2011, on the file of the I Additional District &

Sessions Judge, Mysore by judgment dated 04.02.2012.

3. Brief facts of the case are as under:

Accused has been charge sheeted for the offence

punishable under Section 3(a) of RP(UP) Act. The case of

the prosecution is that on 05.04.2004 at about 10 a.m., in

front of Diamond Gujari Shop, Dodda Gujari Market in

Lashkar Mohalla, Mysore, accused was found in possession

of one white plastic bag containing one number of B.G.

brake block and one number of railway broken solar panel

valued at Rs.1000/- without proper licence and therefore,

the head of the raid party seized the same and drafted the

mahazer and filed a report. There afterwards, case came

to be registered against the accused for the offence

punishable under Section 3(a) of RP(UP) Act. The same

was investigated and charge sheet came to be filed against

the accused for the aforesaid offence.

4. The presence of the accused was secured

before the learned Magistrate and plea was recorded.

Accused pleaded not guilty and as such, trial was held.

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

prosecution in all examined 5 witnesses as PWs.1 to 5 and

relied on 12 documentary evidence which were marked

and exhibited as Exs.P1 to 12 and material objects namely

brake plate and solar panel marked as M.Os.1 and 2.

6. On conclusion of the prosecution evidence,

accused statement as contemplated under Section 313

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

incriminatory circumstances found in the prosecution

evidence. However, accused did not choose to lead any

evidence nor place his version on record by examining

himself or by placing necessary written submission as is

contemplated under Section 313(5) Cr.P.C.

7. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

for the aforesaid offence and sentenced as aforesaid.

8. Being aggrieved by the same, accused

preferred an appeal in Criminal Appeal No.157/2011.

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

is in the Revision Petition.

9. In the Revision Petition, the following grounds

are raised:

"1. The judgement of conviction and sentence passed by the trial court and appellate courts are wholly illegal and contrary to the facts of the case.

2. The courts below erred in holding that the prosecution has established the possession of Railway property by the accused without considering that the ingredients of the offence are not proved by the cogent evidence.

3. The courts below relied upon the official witnesses only without examining independent witnesses to base the conviction.

4. The courts belowerred in relying upon the evide of PW-1 and PW-2 which were full of contradiction.

5. The courts below failed to note that the MOs 1 & 2 recovered does not have special marks to say that they belonged to Railways.

6. The courts below erred in relying upon Ex.P-3 Mahazar wherein there is contradictions in the place of theft.

7. The courts below erred in relying upon the volunary statements of the accused as per Ex.P2 which is inadmissible under the provisions of Secs. 24 and 26 of the Indian Evidence Act and U/s 161 of Cr.P.C.

8. The Courts below erred in awarding of punishment of imprisonment for one year and fine of Rs.1000/- which is harsh in the circumstances of the case."

During the pendency of the Revision Petition,

learned counsel for the Revision Petitioner failed to appear

before the Court and pursue the matter. Accordingly,

this Court by order dated 16.11.2021, appointed

Sri B.S. Venkatanarayana as Amicus Curiae to assist the

Court. Learned Amicus Curiae took time on the previous

occasion that he would find out the whereabouts of the

Revision Petitioner, if any. However, he fairly submits that

the registered post issued by him returned with an

endorsement that 'no such person' and he is unable to

contact the Revision Petitioner and argued the matter by

reiterating the grounds urged in the Revision Petition and

contended that both the courts have wrongly convicted the

accused resulting in miscarriage of justice and sought for

allowing the Revision Petition.

10. Per contra, Sri V.K.Narayanaswamy

representing the Union of India, Railway Protection Force,

supported the impugned judgment by contending that

admittedly, the head of the raid party and other team

members did not posses any previous animosity or enmity

against the accused to falsely implicate in the case and

seizure stands proved by placing necessary oral and

documentary evidence on record and sought for dismissal

of the Revision Petition.

11. 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 is guilty of the offence punishable under Section 3(a) RP (UP) Act, 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?"

12. In the case on hand, seizure of MOs.1 and 2

under Ex.P1 stands proved by placing necessary oral and

documentary evidence on record. PW.1 M. Marilingu being

the authorized officer found the accused near Diamond

Gujari Shop at Dodda Gujari Market, Lashkar Mohalla,

Mysore, wherein the accused holding a polythin cover

containing MOs.1 and 2. Being suspicious about the same,

head of the party raided him and seized the material

objects as MOs.1 and 2 and there was no proper

explanation and there afterwards, he was brought before

the Railway Protection Force Police Station and case came

to be registered.

13. Before the Court, the contents of the mahazer

has been reiterated by PW.1 and other prosecution

witnesses. It is pertinent to note that there is no previous

enmity or animosity between the prosecution witnesses

and accused. In the absence of any such previous enmity,

why would PW.1 falsely implicate the accused that too by

implanting MOs.1 and 2 is a question that remains

unanswered by the defense. Further, MOs.1 and 2 are not

freely available material and it is exclusively belonged to

the railways. Under such circumstances, this Court is of

the considered opinion that the trial Magistrate has rightly

appreciated the materials available on record and

convicted the accused for the aforesaid offence and passed

a proper sentence, which is the minimum sentence for the

offence under Section 3(a) RP (UP) Act.

14. Learned Judge in the First Appellate Court not

only re-appreciated the materials available on record but

also supplemented additional reasons to substantiate the

finding reached by the learned trial Magistrate while

dismissing the appeal.

15. This Court having limited Revisional

jurisdiction, reconsidered the entire materials available on

record. On such reconsideration, this Court is of the

considered opinion that materials available on record does

not warrant interference in the Revisional jurisdiction in

the well reasoned orders passed by both the Courts and

accordingly, point No.1 is answered.

16. Insofar as sentence is concerned, learned

Magistrate has ordered minimum sentence for the offence

punishable under Section 3(a) of RP (UP) Act. No case is

made out by the Revision Petitioner to reduce the same. In

fact, if the Court is required to reduce the minimum

sentence, it has to assign further reasons for the same. No

such further reasons are forthcoming and no mitigating

circumstances are also placed on behalf of the Revision

Petitioner. Accordingly, the effort made by the learned

Amicus Curiae to get in touch with the Revision Petitioner

has also resulted in futile exercise inasmuch as registered

cover sent by the Amicus Curiae is returned with an

endorsement 'no such person'. Under such circumstance,

the sentence ordered by the trial Magistrate confirmed by

the First Appellate Court is just sentence and accordingly,

it requires no interference by this Court in this revision.

Hence, point No.2 is answered in negative and pass the

following:

ORDER

Revision Petition sans merit and hereby dismissed.

Time is granted till 15.01.2022 for the Revision Petitioner to surrender before the trial Magistrate.

Sd/-

JUDGE

KA*