Shekappa vs The State Of Karnataka
2022 Latest Caselaw 1297 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 31 S T DAY OF JANUARY, 2022

                         BEFORE

THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR

 CRIMINAL REVISION PETITION NO.493 OF 2012


BETWEEN:

1.   Shekapp a
     S/o Raddepp a @ Bharamappa Bandiwadd ar,
     Age: 25 years, Occ: Agriculture,
     R/o. Nareg al, Taluk:Ron.

2.   Hanamanth @ Ap payya
     S/o Timmanna Bandiwadd ar,
     Age:26 years, Occ: Agriculture,
     R/o. Nareg al, Taluk:Ron.

3.   Shivanand,
     S/o Timmanna Kavalad @ Haranshikari,
     Age:25 years, Occ: Agriculture,
     R/o Tirlapur, Taluk:Navalag und .
                                       ...Petitioners
(By Smt. Sohani Holla, Amicus curiae)


AND:

The State of Karnataka
Throug h CPI, Ron.
                                                  ...Respondent
(By Sri K.S.Abhijith, HCGP)


     This   Criminal   Revision   Petition   is    filed   under
Section 397 read with 401 of Cr.P.C., praying to set
aside the judgment and ord er of sentence p assed in
                              :: 2 ::


C.C.No.363/2009 by the Civil Judge (Jr.Dn.) and JMFC,
Ron, d ated 24.10.2011 and the judgment and order
passed by the District and Sessions Judg e, Gad ag in
Crl.A.No.34/2011 dated 30.03.2011 and allowing the
this revision petition.


     This Criminal    Revision         Petition   coming   on    for
hearing    through   video    conferencing        this   d ay,   the
Court mad e the following:


                          ORDER

The petitioners were tried in the Court of

Judicial Magistrate First Class, Ron in

C.C.No.363/2009 for the offences punishable

under Sections 457 and 380 read with Section 34

of IPC.

2. The learned Magistrate having found

them guilty of the said offences, sentenced each of

them to simple imprisonment for a period of two

years and fine of Rs.500/- with default sentence of

three months simple imprisonment for the offence

under Section 380 of IPC and simple imprisonment :: 3 ::

for a period of three years with fine of Rs.1,000/-

with default sentence of six months simple

imprisonment for the offence under Section 457 of

IPC.

3. Aggrieved by this judgment, the

petitioners preferred an appeal to the Sessions

Court, Gadag. By judgment dated 30.3.2012, the

Sessions Court dismissed the appeal and confirmed

the judgment of the trial court and hence this

revision petition.

4. The prosecution case is that the

petitioners committed theft of 5 LCD computer

monitors, 5 key boards, 1 server, 4 thin clients

and 5 mouse which were kept in a room in the

building of Government Kannada Boys High School,

Naregal. In the morning of 2.7.2009, when the

door of the room where the computers had been

kept was opened, it was found that theft had taken

place. The matter was informed to the Block :: 4 ::

Education Officer over the phone and the report

was made to the police at 2.30 p.m. on the same

day. This resulted in registration of FIR.

Investigation was held and the accused came to be

charge sheeted.

5. The prosecution relied on 17 witnesses -

PW.1 to 17, 11 documents - Ex.P.1 to P.11 and

P.11(a) and 22 material objects - MO.1 to 22.

6. Having found that the recovery of the

stolen articles being established, the trial court

came to conclusion that the petitioners had

committed theft and sentenced them as stated

above. The appellate court also concurred with

the findings of the trial court and held that there

was no reason to discard the testimonies of the

witnesses in whose presence the stolen articles

were recovered.

:: 5 ::

7. Smt. Sohani Holla, learned Amicus Curiae

for the petitioners argued that both the courts

below have not properly appreciated the evidence.

Though the prosecution has come up with a theory

that at the instance of the accused the stolen

articles were recovered, the panchas have not

identified the stolen articles. In the FIR it is

stated that the computers of Wipro Company had

been stolen, but in the seizure panchanama there

is no such description and in this view it cannot be

said that the articles which were seized based on

the confession statement given by the accused

were the same articles which were said to have

been stolen. She further submits that in case this

court comes to conclusion that revision petition is

to be dismissed, the petitioners may be released

by extending the benefit under the Probation of

Offenders Act.

:: 6 ::

8. Learned Government Pleader Sri.

K.S.Abhijith submitted that it was at the instance

of first accused viz., Shekhappa that the stolen

articles were recovered. The accused had kept all

the stolen property in the land belonging to

PW.10, who has supported the prosecution. The

independent witnesses to seizure panchanama

have also supported. The Head Master, who is

examined as PW.3 and another witnesses PW.6

have identified the stolen articles and in this view

there is no infirmity in the appreciation of

evidence. When both the courts below have

consistently held the accused guilty of the

offences, there is no scope for interference in this

writ petition.

9. I have considered the arguments and

perused the trial court records. Needless to say

that in the case of theft, recovery at the instance

of the accused plays a significant role. Hardly :: 7 ::

direct evidence is available and therefore when all

the circumstances point to the involvement of the

accused, they can be found guilty of the offences.

In this case, the allegation is that they broke open

the lock of the door of the room where the

computer and their accessories were kept. After

apprehension of the accused, one of them i.e.,

Shekhappa led the investigating officer to the land

of PW.10 and showed the place where the stolen

articles were hidden. PW.4 and 5 are the

independent witnesses to the seizure panchanama.

These two witnesses have testified the fact of

seizure at the instance of first accused. PW.10,

the land owner has also given evidence that the

police had come to his land with the accused for

the purpose of recovery and that he also saw

recovery made by the police at the instance of the

accused. Moreover the stolen articles were

identified by PW.3 - the Head Master of the

School, PW.6 - a teacher and PW.9 - a student of :: 8 ::

the school. Though PW.3 has stated in the

examination-in-chief that the computers were of

Wipro Company make, it is not a material

discrepancy in the evidence of prosecution.

Identification of the stolen property is important.

Evidence to this effect is available and in this view

I do not find any infirmity in the findings recorded

by the trial court and the appellate court. Findings

on facts cannot be disturbed.

10. It is now examined whether there is a

case for extending benefit of Probation of

Offenders Act. On 18.1.2022, the Government

Pleader was directed to obtain report regarding

antecedents of the petitioners. The Government

Pleader has submitted a report stating that the

petitioners are not involved in any other criminal

case and that they are the first time offenders.

The sentencing structure provided in sections 457

and 380 of IPC indicate that benefit under section :: 9 ::

4 of the Probation of Offenders Act, 1958 can be

given.

11. Now having regard to the report given by

the Government Pleader that the petitioners are

not involved in any criminal case, I am of the

opinion that they can be released on probation

instead of sentencing them to imprisonment.

Therefore the petitioners are given the benefit

under section 4 of the Probation of Offenders Act

and they are directed to execute a bond for

Rs.50,000/- and provide two sureties for the

likesum to the satisfaction of Magistrate for their

good behaviour and keeping peace in the society.

They shall undertake that in case of breach of

conditions within three years from the date of

bond, they shall appear before the court and

receive sentence if they are called upon to do so.

:: 10 ::

12. Before accepting the bond from the

petitioners and their sureties, the court below

shall satisfy about their permanent addresses.

13. The judgment of the trial court and the

appellate court are thus modified and the appeal is

partly allowed.

The Legal Services Authority is hereby

directed to pay Rs.10,000/- to Smt. Sohani Holla

for her services as Amicus Curiae.

Sd/-

JUDGE

sd