Akbar S/O Lalsab Shaikh vs The State Of Karnataka
2022 Latest Caselaw 1170 Kant

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           IN THE HIGH COURT OF KARNATAKA
                  KALABURAGI BENCH

       DATED THIS THE 27TH DAY OF JANUARY, 2022

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

 CRIMINAL REVISION PETITION NO.200009/2017


BETWEEN:

AKBAR S/O LALSAB SHAIKH,
AGE:27 YEARS, OCC: COOLIE,
R/O INDI ROAD, RAJPUT GALLI,
TQ & DIST:VIJAUPUR.
                                      ... PETITIONER

(BY SRI SHIVANAND V PATTANASHETTI, ADVOCATES)


AND:

THE STATE OF KARNATAKA,
R/BY ADDL.SPP ,
HIGH COURT OF KARNATAKA ,
KALABURAGI BENCH,
(THROUGH GANDHI CHOWK P.S
DIST:VIJAYPUR)
                                     ... RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED:17.12.2016 PASSED BY THE
PRL.   SESSIONS    JUDGE    AT     VIJAYAPUR,   IN
CRL.ANO.01/2016 AND FURTHER BE PLEASED TO SET -
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ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED:08.12.2015 PASSED BY THE I ADDL.
CIVIL   JUDGE    &   JMFC-I,   AT   VIJAYAPUR IN
C.C.NO.4635/2014 FOR THE OFFENCE PUNISHABLE U/S
392 OF IPC AND ACQUIT THE PETITIONER.

     THIS REVISION PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

                           ORDER

Heard Sri Shivanand V.Pattanashetti learned counsel

for the revision petitioner and learned High Court

Government Pleader for respondent/State.

2. Present revision petition is filed challenging the

order passed in C.C.No.4635/2014 whereby accused/

revision petitioner came to be convicted for the offence

punishable under Section 392 of IPC and ordered to

undergo rigorous imprisonment of two years and to pay a

fine of `5,000/- which was modified in Criminal Appeal

No.1/2016 by the Principal District and Sessions Judge,

Vijayapur by judgment dated 17.12.2016 whereby the

conviction under Section 392 of IPC was maintained and

the imprisonment period is reduced to two years to one

year and fine amount was maintained.

3. Brief facts of the case are as under :-

A complaint came to be filed by one Sri Anil Pandit

Nandral aged 33 years on 05.06.2014 stating that at about

5.45 p.m. when himself and his niece Ashwini were

proceeding near Meenakshi Chowk Book Stall for purchase

of books, a stranger came there and snatched a gold chain

weighing 12 grams and ran away. He chased him but could

not trace him. Thereafter, based on the said complaint

police registered a case in Crime No.176/2014 for the

offence punishable under Section 392 of IPC and

investigated the matter. During such investigation accused

was traced and he was arrested on 06.06.2014 and

produced before the learned Magistrate. Based on the

voluntary statement given by the accused, he produced

the stolen gold chain and police seized the same under

mahazar marked at Ex.P.4 and the same was identified by

the complainant and his niece and police filed charge-sheet

against the accused. Accused was let on bail on

07.06.2014. Thereafter, charge was framed and accused

was pleaded not guilty, therefore, trial was held.

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

eight witnesses have been examined as PWs.1 to 8 and

prosecution relied on the documentary evidences which

were exhibited and marked as Exs.P.1 to Ex.P.15 and the

stolen gold chain was marked as MO.1.

5. On conclusion of the prosecution evidence,

accused statement was recorded. Accused denied all the

incriminatory materials found against him. In the

prosecution case during recording of accused statement,

he did not chose to offer any explanation nor did not place

his version on record by filing any written submission as is

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

6. Thereafter learned Magistrate heard the parties

in detail and on appreciating the material evidence on

record, convicted the accused for the offence punishable

under Section 392 of IPC and sentenced the accused to

undergo rigorous imprisonment for a period of two years

and to pay a fine of `5,000/-.

7. Being aggrieved by the same,

accused/petitioner has preferred an appeal before the

District Court, Vijayapur. Learned Principal District Judge

secured the trial court records and after hearing the

parties by judgment dated 17.12.2016 allowed the

Criminal Appeal No.1/2016 by modifying the sentence to

one year rigorous imprisonment instead of two years

imposed by the trial court and maintained the order of

conviction and the fine amount and default sentence.

8. Being aggrieved by the same, the accused is

before this court in this revision petition.

9. In the revision petition following grounds have

been raised :-

x That, judgment of conviction and order of sentence passed by the courts below is manifestly illegal and against the facts and evidence on record and also against the well established principles governing the criminal law. Hence deserves to be set-aside.

x That, there is no identification period held in accordance with procedure provided under Karnataka Police Manual as well as U/s 9 of the Indian Evidence Act as per established principles of law and as per law investigation must conduct test identification period of persons who are to witnesses. When IO failed to follow the strangers mandatory provisions, both the courts ought to have extended the benefit of doubt to the petitioner and acquitted him.

x That, PWs-3 8 4 who are the spot panchas and recovery panchas have not supported the prosecution story and not identified the accused. Hence, both the courts ought to have given benefit of doubt to the petitioner.

x That, in Ex.P-1 there is over writing regarding weigh and value of the gold chain and there is inordinate delay in filing the complaint is not been properly appreciated by both the courts.

x That, as per the spot mahazar and also the charge sheet, the incident has taken place in front of Makandar shop and not in front of lnamdar's Book Stall and there is no any Inamdar's shop near Meenaxi Chowk, Vijayapur as per the spot mahazar. Hence, the name of shop mentioned in the complaint and also in the deposition of PW-1 is different from the name of shop mentioned in the

sketch/Ex.P-14 and also in spot mahazar Ex.P-4, under this circumstances both courts ought to have given benefit of doubt to the petitioner.

x That, PW-1 who is the complainant has also not identified the accused and she has been treated as hostile witness by the prosecution and thereafter the prosecution has failed to prove the guilt of the accused beyond reasonable doubt.

x That, the lower courts have not taken the consideration that all the witnesses are interested witnesses and they are very much interested in convicting the petitioner.

x That, reasons given by the courts below in believing interested witnesses are not proper, there are number of contradiction in the evidence of those witnesses. The courts below ought to have taken into consideration of those lacunas and then appreciated the evidence on record in the proper manner. The reasons given are not proper and contrary to principles of criminal jurisprudence.

x That, courts below failed to put the questions in respect of incriminating circumstances appearing petitioner, each material circumstances appearing in the evidence against the accused is required to be put to him failure to do so specifically, distinctly and separately, failure to do so amounts to serious irregularity. This object is based on the on the

maxim "audi alterum partem" which one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstances without affording the accused an opportunity of explaining the said incriminating circumstances.

x That, the courts below have failed to appreciate the case of the prosecution and the evidence adduced on behalf them is riddled with bristling inconsistencies, discrepancies and contradictions. In fact, there is not even an iota of evidence, let alone prima-facie evidence to connect the petitioner with the alleged offence and both the court below have failed to appreciate the evidence in its right prospective and hence the judgments of courts below as resulted in grave miscarriage of Justice.

x That, the courts below have passed the judgment on assumptions, surmises and conjectures to base its judgment and both the courts below have given a complete go bye to the basic concept of proof beyond reasonable doubt and this has resulted in grave miscarriage of justice. That, the view of matter, the courts below ought to have given benefit of doubt to the petitioner rand acquitted him.

10. Reiterating the above grounds, learned counsel

for the revision petitioner Sri Shivanand V.Pattanshetti

vehemently contended that in the case on hand, all

ingredients required to attract the offence under

Section 392 of Cr.P.C is not established by the prosecution

and at the most the incident could be one punishable

under Section 379 of IPC and therefore sought for allowing

the revision petition.

11. Per contra, learned High Court Government

Pleader supported the impugned judgment contending that

both the courts have rightly appreciated the material

evidence on record and rightly convicted the accused for

the offence punishable under Section 392 of IPC and mere

non production of the wound certificate itself is not

sufficient inasmuch as the gold chain is snatched from the

neck and some injuries could have been caused to PW.5

and therefore sought for dismissal of the revision petition.

12. In the light of the arguments put-forth and

having regard to the scope of the revisional jurisdiction,

following points would arises for consideration :-

1. Whether the finding recorded by the trial Magistrate and confirmed by the learned first appellate court that accused is guilty of the offence punishable under Section 392 of IPC is suffering from factual patient defect, error of jurisdiction, legal infirmity or perversity and thus calls for interference ?

2. Whether the sentence is excessive ?

Regarding point No.1 :

13. In the case on hand, the accused being

brought by the police on 06.06.2014 and the gold chain

which was snatched from the neck of the niece of

complainant stands established by the prosecution.

Complainant is examined as PW.1 and his niece Ashwini is

examined as PW.5. These two witnesses have categorically

deposed before the court about the incident with graphic

details. On 16.06.2014 police were also able to recover the

gold chain from the custody of the accused vide Ex.P.4

mahazar and he was also produced before the

jurisdictional Magistrate. The seizure of the chain and

production of the same before the court and marked as

MO.1 also stands established by placing oral and necessary

documentary evidences on record. Admittedly the accused

did not offer that the seized MO.1 chain belonged to him

and he has purchased the same nor produced any

document to show that he is in possession of gold chain

which is marked as MO.1. Under such circumstances, in a

matter of this nature the recovery of the stolen article

MO.1 assumes a great significance while holding the guilt

of the accused. Admittedly, PW.1 or PW.5 or for that

matter panch witness and Investigating Officer did not

nurture any previous enmity or animosity against the

accused to depose falsely.

14. The incident has occurred on 05.06.2014 and

06.06.2014 itself the police were able to trace of the

accused and recover of MO.1 chain and these aspects have

been rightly appreciated by the learned trial Magistrate

while holding that accused is guilty of the offences

punishable under Section 392 of IPC. The same is also

reappreciated by the learned Magistrate and the first

appellate court while maintaining the conviction of the

accused for the offence punishable under Section 392 of

IPC. However, as rightly contended by the learned counsel

for the revision petitioner that causing of a hurt or

voluntarily putting the fear in the mind of the victim is a

sine qua non for recording an order of conviction under

Section 390 of IPC. Robbery is defined under Section 390

of IPC which reads as under :-

"390. Robbery.--In all robbery there is either theft or extortion.

When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.

Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.

15. The ingredients to attract the offence of

robbery is one of the important condition that there must

be a voluntarily causing of hurt or attempt to cause hurt or

create a fear psyche in the person who has lost the

valuables. In the case on hand, neither in the complaint

nor in the oral testimony of PW.1 or PW.5 such a

ingredient is found. Therefore, there is sufficient force in

the arguments put forth on behalf of accused/ revision

petitioner that all ingredients to attract the offence

punishable under Section 392 of IPC is not made out by

the prosecution in the case on hand.

16. Having said thus, snatching away the gold

chain from the neck of PW.5 and recovery of the same

from the accused by the investigation agency on the very

next day under Ex.P.4 mahazar, the action of the accused

is attributable one under Section 379 of IPC.

17. Admittedly, the accused is a first time offender

and there is no previous antecedents. In a matter of this

nature when the offence is scaled down from Section 392

to 379 of IPC, the accused is entitled for grant of

probation. Even when the accused is convicted for the

offence punishable under Section 392 of IPC the learned

Magistrate or the first appellate Court should have taken

note of the provisions of Probation of Offenders Act insofar

as accused is concerned. Both the courts have failed to do

so. Accordingly, a case is made out for grant probation to

the accused for the offence punishable under Section 379

of IPC. If the accused is directed to execute a bond in a

sum of `25,000/- with one surety for the like sum for his

good behavior which shall be in force for two years and

ordered to pay a fine of `25,000/- as against `5,000/-

imposed by the trial Judge ends of justice would be met.

Accordingly, point No.1 is answered partly in the

affirmative and hence, pass the following :

ORDER

Revision petition is allowed in part.

While maintaining the order passed by the trial court

and confirmed by the first appellate court holding accused

is guilty of the offence punishable under Section 392 of IPC

and sentenced to undergo rigorous imprisonment for one

year and to pay fine of `5,000/- is modified as under :-

Accused/revision petitioner is convicted for the

offence punishable under Section 379 of IPC and ordered

to execute a bond in a sum of `25,000/- with one surety

for the likesum for his good behavior which shall be in

force for a period of two years and to pay a fine of

`25,000/- as against `5,000/- imposed by the learned

Magistrate and confirmed by the first appellate Court.

Accused/revision petitioner is granted time to deposit

the additional fine amount till 28.02.2022 and to execute

the bond.

Office is directed to return the trial court records

along with a copy of this order forthwith.

It is made clear that in the event of violation of bond

conditions or non payment of the fine amount the order

passed by the learned trial Judge which was confirmed in

Crl.A.No.1/2016 stands restored automatically.

Ordered accordingly.

Sd/-

JUDGE

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