Ramesh S/O Sangappa Swamy vs The State Through
2022 Latest Caselaw 1175 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.200079/2016


BETWEEN

RAMESH S/O SANGAPPA SWAMY
NOW AGED 30 YEARS, OCC:COOLIE
R/O KUDLI VILLAGE, TQ:DEGLOOR
DIST:NANDED(MS)
                                         ...PETITIONER

(BY SRI ANIL KUMAR NAVADAGI, ADVOCATE)

AND

THE STATE THROUGH
CHINTAKI POLICE STATION,
TQ: AURAD-B, DIST:BIDAR,
REPRESENTED BY ADDL.SPP HIGH COURT
OF KARNTAKA, KALABURAGI BENCH
                                      ...RESPONDENT

(BY SRI SHARANABASAPPA M. PATIL, HCGP)


   THIS CRL.RP IS FILED U/S 397 R/W SEC. 401 OF
CR.P.C PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT DATED 16-08-
2016 OF PRL.DIST. & SESSIONS JUDGE, BIDAR IN
CRL.APPEAL NO. 44/2015 AND FURTHER BE PLEASED TO
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER
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OF SENTENCE DATED 04-11-2015 OF CIVIL JUDGE AND
JMFC AT AURAD-B IN C.C.NO. 440/2010, FOR THE
OFFENCE PUNISHABLE U/SEC. 394 OF IPC AND ACQUIT
THE PETITIONER, IN THE INTEREST OF JUSTICE AND
EQUITY.

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

                             ORDER

Heard the learned counsel for the revision petitioner

and the learned High Court Government Pleader and

perused the records.

2. This Revision Petition is filed by the accused,

who suffered an order of conviction in C.C.No.440/2010 for

the offence punishable under Section 394 of IPC, which

was confirmed in Criminal Appeal No.44/2015 on the file of

the Principal District and Sessions Judge, Bidar by

judgment dated 16.08.2016.

3. Brief facts of the case are as under:

A complaint came to be lodged by the complainant

that she is the resident of Yengunda and she is residing

with her family members in the said village and her

husband is no more. Elder son of the complainant namely

Basavaraj is residing in Bidar along with his wife and

children and the complainant is residing with her younger

son Yuvraj and his wife and children at Yenagunda and she

is in possession cows and bullocks. For maintaining those,

they kept one employee by name Ismail Sab.

4. When the matter stood thus, on 09.07.2010 in

the early morning the complainant attended all household

work and in the afternoon the complainant and her co-

sister Siddamma went to their land situated in the

outskirts of Yenagunda village. The lands of the

complainant and her co-sister are situated adjacent to

each other and thereafter, Siddamma went to her land and

the complainant was working in the agricultural land. At

that juncture, employee of the complainant tied the

bullocks to a tree and told to the complainant that he is

going to have lunch. At about 2.30 p.m. when the

complainant sitting in the temple situated in her land, the

accused came there and enquired the complainant about

the missing cow belonged to him and the complainant told

that he has not seen the same. Again the accused asked

the complainant to give water as he was feeling thirsty. At

that juncture, the complainant went nearby the temple and

brought pot of water and at that time all of a sudden

accused attacked the complainant and fell her on ground

and gagged her mouth and put a leg on her chest and

forcibly snatched the gold ornaments found on the body of

the complainant and also assaulted her with a stone and

escaped away from the scene. Thereafter, the

complainant raised alarm and hearing the hue and cry,

Shivaraj and Moula came there at about 4.00 p.m. and the

incident was informed to her elder son and thereafter, they

approached the police and lodged the complaint. The

jurisdictional police registered a case in Crime No.39/2010

for the offence punishable under Section 394 of IPC and

investigation was conducted inter alia arresting the

accused and based on the voluntary statement, the

investigation agency is able to recover the snatched gold

ornaments and ultimately laid charge sheet against the

accused for the aforesaid offence.

5. 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.

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

prosecution in all examined 16 witnesses as PWs.1 to 16

and relied on 19 documentary evidence, which were

marked and exhibited as Exs.P1 to 19. The prosecution

also relied on two material objects, which are earrings and

golden-nan as MOs.1 and 2.

7. 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 adducing oral

evidence or filing a written submission as is contemplated

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

8. Thereafter, learned Magistrate heard the

parties in detail and after considering the oral and

documentary evidence on record, convicted the accused

for the offence punishable under Section 394 of IPC and

ordered to undergo rigorous imprisonment for a period of

three years and imposed fine of Rs.10,000/- with default

sentence of six months simple imprisonment and out of

the fine amount, a sum of Rs.5,000/- was ordered to be

paid as compensation to the complainant.

9. Being aggrieved by the same, accused

preferred an appeal before the Principal District and

Sessions Judge, Bidar in Criminal Appeal No.44/2015. The

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. Being aggrieved by the

same, the accused is before this Court in this Revision

Petition.

10. In the Revision Petition, the following grounds

are raised:

1. The Judgments of conviction passed by the courts below are 5. manifestly illegal, arbitrary and against the facts and evidence on record and also against the well established principles governing the criminal law and hence deserve to be set aside.

2. That, the courts below have failed to appreciate that, the 6. prosecution case and the evidence adduced on behalf of it 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 accident and both the courts below have failed to appreciate the evidence in its right perspective and hence the judgments of courts below has resulted in grave miscarriage of justice.

3. It is a cardinal principle of criminal law that to prove the guilt , accused, the prosecution must first establish and fix the i accused and both the courts below have failed to appreciate the e the fact that the prosecution has miserably failed to establish the identity of the accused in this particular case i.e., that the present petitioner was the person who was involved in the alleged incident, firstly, in view t that admitted and very specific case of

the prosecution according to FIR that after the incident PW3, PW4 & others chased the man who committed robbery on PW1 Sangamma and caught him and handed over to the Respondent P.S. who had arrived at the spot, but it is very pertinent to mention here that the FIR was registered against unknown person and secondly no T.I. parade was conducted on the accused to fix up his identity and furthermore. all the material witnesses including PW8 Siddamma, the co-sister of PW1 Sangamma were treated hostile by the prosecution and thus when the identity of the accused involved in the incident has not been fixed, the courts below should have acquitted the petitioner on this ground itself.

4. That, it is humbly submitted that both the Courts below committed a grave error in law by relying on inadmissible evidence like marking the 161 Cr.P.C. statements of witnesses and in the absence of any cogent evidence, the testimonies of PWs.1, 3 and 4 cannot be taken into consideration to convict the accused. It is further pertinent to mention here PW.6 Sopan and PW14 Rajkumar, the witnesses to the seizure of golden ornaments MOs.1 and 2 have turned completely hostile and in the absence of even circumstantial and connecting evidence, the courts below ought not to have given a finding of guilt in view of the suspicious circumstances and material projected by the prosecution. It is humbly submitted that the prosecution is guilty of suppressing material evidence and non examination of important and

material witnesses is fatal to the case of the prosecution and has resulted in prejudice to the petitioner herein as he was denied of proving his defence and hence the interference of this court is sought for.

5. That the Court below have proceeded on assumptions, surmises and conjectures to base their judgments and the both the courts below have given a complete goby to the basic concept of proof beyond the reasonable doubt and this has resulted in grave miscarriage of justice.

11. Reiterating the above grounds, learned counsel

for the Revision Petitioner vehemently contended that the

prosecution case is not proved beyond all reasonable

doubts , inasmuch as, there is no test identification parade

conducted by the police and the complainant is not in a

position to identify the accused and she has been tutored

to identify the accused before the Court for the first time

and therefore, sought for allowing the revision petition.

12. He also pointed out that there is no nexus

between the sized gold ornaments and the incident and

police and complainant have falsely implicated the

accused/petitioner in the case and thus, sought for

allowing the Revision Petition. Alternatively, he prayed for

showing leniency and sought for granting probation.

13. Per contra, learned High Court Government

Pleader supported the impugned judgments by contending

that the materials available on record especially MOs.1 and

2 being seized in pursuance of the voluntary statement

given by the accused/petitioner, which has been

subsequently identified by the complainant establishes that

it is the accused who has snatched away the gold

ornaments marked at MOs.1 and 2 from the body of the

complainant as on the date of the incident and the accused

is involved in several other cases and therefore, sought for

dismissal of the Revision Petition.

14. In view of the rival contentions and having

regard to the scope of the Revisional jurisdiction, the

following points that would arise for consideration are:

"1. Whether the finding recorded by the learned Magistrate that the accused/petitioner is guilty of the offences punishable under

Section 394 of IPC, 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?"

15. 15 In the case on hand, the complainant, who has

been examined as PW.1 has categorically deposed before

the Court about the incident with graphic details in

conformity with the complaint averments.

16. In the cross examination of PW.1, the defence

is unable to elicit any material so as to doubt the

testimony of PW.1. Moreover, the Investigation Agency

during the course of investigation apprehended the

accused and his voluntary statement has been recorded by

the investigation officer. In pursuance of such voluntary

statement, police are able to recover MOs.1 and 2 have

been identified before the Court, which have robbed by the

accused as on the date of the incident. The injuries found

on the body of the PW.1 are depicted in Ex.P19 and the

doctor, who issued the wound certificate, has been

examined as PW.16. The panch witnesses have also

supported the case of the prosecution.

17. It is pertinent to note that neither the

complainant nor any other prosecution witnesses nurtured

any previous enmity or animosity against the revision

petitioner so as to falsely implicate him in the case. The

injuries sustained by PW.1 as deposed by PW.16

mentioned in Ex.P19 clearly corroborate the incident as is

deposed by PW.1.

18. In a matter of this nature, recovery of the

stolen articles/robbed valuable items from the custody of

the accused that too in pursuance of the voluntary

statement completes the offence and establishes a strong

nexus between the incident and the accused. These

aspects of the matter has been rightly appreciated by the

learned trial Magistrate and re-appreciated by the learned

judge in the first appellate Court.

19. This Court with the limited scope of revisional

jurisdiction reconsidered the material evidence on record.

On such reconsideration, this Court does not find any merit

in the revision petition. The trial Magistrate and the

learned judge in the first appellate Court have rightly

concluded that the prosecution is successful in establishing

the nexus between the incident and the accused. The

recovery of the stolen/robbed articles has fortified the case

of the prosecution. Mere non conducting test identification

parade itself is not sufficient enough to doubt the case of

the prosecution. Accordingly, there is no legal infirmity,

perversity or patent factual defect or error of jurisdiction in

trial Court recording a finding that the accused/petitioner

is guilty of the offence alleged against him, which has been

rightly re-appreciated by the learned Judge in the first

appellate Court. Accordingly, point No.1 is answered in

the negative.

20. Regarding point No.2: The trial Magistrate has

sentenced the accused/petitioner for a period of three

years rigorous imprisonment and imposed fine of

Rs.10,000/-. The materials on record indicate that the

petitioner is a habitual offender and therefore, no benefit

under the Probation of Offenders Act can be granted to the

accused/petitioner. Further, there is no mitigating

circumstance is placed on record so as to reduce the

sentence. Accordingly, point No.2 is also answered in the

negative and pass the following:

ORDER

The revision petition is dismissed.

The accused is granted time till 28.02.2022 to

surrender before the trial Magistrate to serve the

remaining part of the sentence.

Office is directed to return the trial Court records

with a copy of this order forthwith.

Sd/-

JUDGE

Srt