Karnataka High Court

Sri Hanumantha vs State Of Karnataka on 22 December, 2021

Bench: V Srishananda

                         1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 22ND DAY OF DECEMBER, 2021

                      BEFORE

    THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.1097/2021

BETWEEN:

SRI.HANUMANTHA,
S/O JAVOORAPPA,
AGED ABOUT 26 YEARS,
R/AT SHIVANI VILLAGE AND POST,
TARIKERE TALUK,
CHIKKAMAGALURU DISTRICT - 577 101.
                                       ... PETITIONER
(BY SRI.MOIDEEN ARAFAT, ADVOCATE FOR
    SRI.SACHIN B.S., ADVOCATE)

AND:

STATE OF KARNATAKA,
BY AJJAMPURA POLICE, AJJAMPURA,
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
                                       ...RESPONDENT
(BY SRI.V.S.VINAYAKA, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER    SECTION 397 READ WITH 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT
DATED 05.09.2020 IN CRL.A.NO.195/2019 ON THE FILE
OF II ADDITIONAL DISTRICT AND SESSIONS JUDGE,
                                  2

CHIKKAMAGALURU, THEREBY DISMISSING THE APPEAL
FILED BY THE PETITIONER AND CONFIRMING THE
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE
DATED 28.12.2018 IN C.C.NO.366/2012 ON THE FILE OF
CIVIL JUDGE AND J.M.F.C., TARIKERE IN SO FAR AS THE
PETITIONER    AND    CONSEQUENTLY      ALLOW    THE
CRL.A.NO.195/2019 AS PRAYED FOR.


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

                          ORDER

Though this matter is listed for admission, with

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

for final disposal.

2. Heard Sri. Moideen Arafat for Sri. Sachin B.

S., learned counsel appearing for the revision

petitioner and Sri. V. S. Vinayaka, learned High Court

Government Pleader for respondent-State and

perused the records.

3. This Revision Petition is filed by the

accused, who has suffered an order of conviction

under Sections 457 and 380 of the Indian Penal Code,

1860 ('IPC' for shot) in C.C.No.366/2012 dated

28.12.2018 and ordered to undergo simple

imprisonment for two years and fine of Rs.5,000/-

with default sentence of six months simple

imprisonment for the offence punishable under

Sections 457 and 380 of IPC, which was confirmed in

Crl.A. No.195/2019 by judgment dated 05.09.2020 by

the II Additional District and Sessions Judge,

Chikkamagaluru.

4. Brief facts of the case are as under:

A complaint came to be lodged by the

complainant on 11.08.2011 at Gourapura village.

When the complainant was out of station by locking

the door of his house and on the same day, in the

night at about 1.30 a.m., the accused with an

intention to commit theft in dwelling house during

night hours, break opened the inter-lock of the door of

the house of the complainant and opened the Godrej

Almirah lock with the help of rod, stolen 17.900 grams

gold chain, 30.400 grams gold ear rings, 3.00 grams

gold plain ear rings, 3.00 grams gold rings, 38.880

grams gold hand bangles from the Godrej Almirah.

The complainant having noticed the same, lodged the

complaint against unknown persons at the first

instance. On receipt of the complaint, the police

investigated the matter inter-alia apprehended the

accused and based on the voluntary statement given

by the accused, the police were able to recover the

gold ornaments from the custody of the accused and

laid a charge sheet for the offences punishable under

Sections 457 and 380 of IPC.

5. Learned Magistrate took cognizance of the

alleged offences and secured the presence of the

accused and framed the charge. The accused pleaded

not guilty and therefore, the trial was held.

6. In order to prove the case of the

prosecution, in all, 10 witnesses were examined as

PWs.1 to 10 and relied on 12 documentary evidences,

which were exhibited and marked as Exs.P1 to P12

and also Material Objects, which were exhibited and

marked as MOs.1 to 3.

7. The complainant reiterated the contents of

the complaint so also the panch witnesses supported

the case of the prosecution whereby, the police were

able to seize MOs.1 to 3 from the custody of the

accused.

8. In pursuance of the voluntary statement

given by him, the defence is unable to elicit any worth

material to disbelieve the testimony of the prosecution

witnesses. Thereafter, the accused statement as is

contemplated under Section 313 of Cr.P.C. was

recorded wherein, the accused denied all the

incriminating materials. Further, the accused failed to

place his version about the incident on record by

examining himself or placing any written submissions

on record as is contemplated under Section 313(5) of

Cr.P.C.

9. Thereafter, the learned trial Magistrate

heard the parties in detail and recorded an order of

conviction, convicting the accused for the aforesaid

offences and passed the sentence as referred to

supra.

10. Being aggrieved by the same, the accused

has preferred an appeal before the II Additional

District and Sessions Judge, Chikkamagaluru in Crl.A.

No.195/2019.

11. The learned Judge in the First Appellate

Court secured the records and after hearing the

parties in detail, by judgment dated 05.09.2020,

dismissed the appeal and confirmed the order passed

by the learned Magistrate. Being aggrieved by the

same, the accused is in revision.

12. In the revision petition the following

grounds have been raised:

x "The impugned judgment passed by the Appellate Court is contrary to law, facts and evidence on record and hence same is liable to be set aside.

x The impugned Judgment passed by the Court below is based on the consideration of irrelevant material placed on record by the Respondent. Under such circumstances the impugned Judgment passed by Court Below is liable to be set aside.

x The Court Below has not considered the contention raised by the Petitioner in proper perspective. Under such circumstances impugned judgment passed by the Court Below is liable to be set aside. x The finding recorded by the Court Below while passing the impugned Judgment is patently perverse, erroneous contrary to the material placed on record and laws laid down by the Hon'ble Apex Court.

x The Court below has examined 10 witnesses and marked 12 exhibits. The

Courts below failed in evaluating the evidence of the witnesses and proceeded to convict the petitioner on the basis of presumptions and assumptions.

x The Court below erred in not considering that the complainant has not furnished any documents for having purchased MO.1 to 3 gold ornaments and complaint averments are not in consonance with the evidence of complainant.

x The Court below erred in not considering that complaint was lodged on 13.08.2011 but further statement of complainant was recorded on 09.07.2012. The evidence of PW1 and 2 not corroborated with their 161 statement. Under such circumstances the conviction of petitioner is illegal and same has to be set-aside x The police have implicated the petitioner in the above case which was registered as C.C. No.366 of 2012 for the incident took place on 11.08.2011 and in another case which was registered as C.C. No.377 of 2012 for the incident which took place on 05.05.2011. Where in the both cases petitioner was arrested on the same day i.e.,09.07.2012 and prosecution examined same witnesses i.e., PW6 to 10 to implicate the petitioner. The PW6 who is mahazar witness in the both cases, where both the mahazars has been conducted on the basis of voluntary statement of petitioner but PW6 turned hostile in C.C. No.377 of 2012. It is evident that the whole case of

prosecution nothing but sham and created one to implicate the petitioner.

x When the prosecution has failed to prove the ingredients of the offence punishable under Sections 457 and 380 of IPC is not attracted and the prosecution having failed to prove the case beyond reasonable doubt, the Court Below committed an error in convicting the Petitioner for the said offence.

x It is submitted that, there is no sufficient and legally acceptable evidence to convict the Petitioner in the said offence.

x When the reasons of the Court Below has read as a whole and read in a proper context, it is quite evident that the Court Below has committed an error in dismissing the Appeal and confirming the Order of Conviction. The Trial Court has committed a legal error in appreciating the evidence to reach at the conclusion that the petitioner is guilty.

x The said finding recorded by the Court Below totally perverse and unreasonable. The Court Below based on the innumerable material has drawn an influence on the base of conjectures and sumarizes and the Court Below has given goby to the provisions of the Indian Evidence Act for convicting the petitioner.

x The Petitioner reserved liberty to urge Additional grounds at the time of arguments, if need arises.

x Viewed from any angle the impugned Judgment passed by the Court Below is contrary to law and hence same is liable to be set aside."

13. Sri. Moideen Arafat, learned counsel

appearing for the revision petitioner vehemently

contended that both the Courts have not properly

appreciated the material evidence on record and

wrongly convicted the accused resulting in miscarriage

of justice and therefore, sought for allowing the

revision petition.

14. Alternatively, learned counsel appearing for

the revision petitioner contended that since the

accused is a first time offender, this Court may grant

probation by enhancing the fine amount.

15. Per contra, learned High Court Government

Pleader supported the impugned judgments by

contending that the valuable MOs.1 to 3 are recovered

at the instance of the accused. In a matter of this

nature, the seizure of stolen property at the instance

of the accused proves all the ingredients to attract the

offences alleged against the accused and therefore,

the impugned judgements are based on sound and

logical reasons and prayed for dismissal of the revision

petition.

16. Insofar as alternate plea is concerned, he

contended that the valuable Material Objects since

being recovered at the instance of the accused and

the accused has lurked into the house of the

complainant in the night hours, no mercy can be

shown for such persons and if any leniency shown, it

would encourage the perpetrators of the crime and

therefore, sought for dismissal of the revision petition

in toto.

17. In view of the rival contentions urged by

the learned counsel for the parties, the following

points would arise for consideration:

"1 Whether the finding recorded by the

learned Magistrate that the accused is guilty of the offence punishable under Sections 457 and 380 of IPC which is confirmed in Crl.A. No.195/2019 is suffering from legal infirmity or perversity and thus calls for interference?

2. Whether the sentence is excessive?"

18. In the case on hand, admittedly, the

complaint came to be lodged by the complainant

stating that on 11.08.2011, there was a theft in the

house of the complainant in the intervening night

hours of 11.08.2011 and 12.08.2011 when he was out

of station by locking the door of his house. Soon after

he came to know about the incident, there is no delay

in lodging the complaint. After thorough

investigation, the Police have apprehended the

accused person and also able to recover MOs.1 to 3

from the custody of the accused. Based on the

voluntary statement given by him, seizure of the

MOs.1 to 3 stands established. It is pertinent to note

that the Investigation Agency did not posses any

previous enmity or animosity against the accused so

as to falsely implicate the accused by implicating the

valuable MOs.1 to 3 in the case. Therefore, as rightly

argued by the learned High Court Government Pleader

that the recovery of the stolen property is from the

custody of the accused in pursuance of the voluntary

statement given by the accused proves all the

ingredients to attract the offences.

19. Moreover, there is no explanation offered

by the accused about the incident. Under such

circumstances, the trial Magistrate has rightly

appreciated the material evidence on record and has

rightly convicted the accused for the aforesaid

offences by assigning sound and logical reasons.

20. Learned judge in the First Appellate Court

in the light of the grounds urged in the appeal

memorandum, has re-appreciated the material

evidence on record and came to the conclusion that

the prosecution has successfully proved all ingredients

to attract the aforesaid offences and the reasons

assigned by the trial Magistrate is sound and logical

and has rightly dismissed the appeal.

21. This Court in the light of limited scope of

revisional jurisdiction has reconsidered the materials

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

revision petitioner.

22. As rightly contended by the learned High

Court Government Pleader, the seizure of the stolen

property from the custody of the accused in pursuance

of the voluntary statement given by the accused,

which were marked as MOs.1 to 3 and in the absence

of any previous enmity or animosity between the

Investigating Agency and the accused, why would the

police falsely implicate the accused is a question that

remained unanswered. Therefore, this Court is of the

considered opinion that the findings recorded by the

learned trial Magistrate confirmed by the First

Appellate Court is based on sound and logical reasons

and does not suffer from any legal infirmity or

perversity so as to seek interference by this Court in

this revision petition. Accordingly, point No.1 is

answered in the negative.

23. Insofar as sentence is concerned, it is well

established principles of law that the role to be played

by the Court while passing an order of conviction is

different from the role to be played by the Court while

passing the appropriate sentence in a given case. In

this regard this Court gainfully places reliance on the

following cases:

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 negatived 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 CrPC. 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 PO 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".

24. Applying the said principles enunciated in

the above decisions to the case on hand, the trial

Magistrate ought to have taken note of that the

accused is a first time offender and in the absence of

any previous criminal antecedents with regard to the

accused, the trial Magistrate ought to have granted

probation to the accused. Unfortunately, learned

judge in the First Appellate Court has also failed to do

so. Accordingly, this Court is of the considered

opinion that if the accused is directed to execute a

personal bond in a sum of Rs.25,000/- with one surety

for the likesum to the satisfaction of the trial Court for

his good behavior, which shall be in force for a period

of two years and to pay fine of Rs.25,000/- for the

offences punishable under Sections 457 and 380 of

IPC, would meet the ends of justice. Accordingly,

point No.2 is answered partly in the affirmative and

pass the following:

ORDER

1. Criminal Revision Petition is allowed-in-

part.

2. While maintaining the conviction of the revision petitioner - accused for the offences punishable under Sections 457 and 380 of IPC, the revision petitioner - accused is directed to execute a personal bond in a sum of Rs.25,000/- with one surety for the likesum to the satisfaction of the trial Court for his good behavior, which shall be in force for a period of two years and to pay fine of Rs.25,000/- in all for the offences punishable under Sections 457 and 380 of IPC inclusive of the fine amount imposed by the trial Magistrate and confirmed by the First Appellate Court payable on or before 31.01.2022.

3. It is made clear that any violation of the bond

condition or payment of the fine amount, the

order of the trial Magistrate confirmed by the

First Appellate Court stands restored

automatically.