Mohana Alias Boja vs The State Of Karnataka
2022 Latest Caselaw 5659 Kant

                             1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 29TH DAY OF MARCH, 2022

                         BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.55/2013

BETWEEN

1 . MOHANA ALIAS BOJA
    AGED ABOUT 34 YEARS
    S/O THIMMAIAH
    HOSUR VILLAGE, KODAVI COLONY
    HUNSUR TALUK
    MYSORE DIST-571 105

2 . KRISHNA ALIAS NAGARAJU
    AGED ABOUT 36 YEARS
    S/O PUTTACHARI
    KALENAHALLI VILLAGE
    HUNSUR TALUK
    MYSORE DIST.-571 105
                                           ...PETITIONERS
(BY SRI P NATARAJU, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY HUNSUR TOWN POLICE
STATION, HUNSUR
REP.BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BANGALORE-560 001.
                                           ... RESPONDENT

(BY SMT. RASHMI JADHAV, HCGP)
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     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER PASSED BY THE PRESIDING OFFCER, FTC, HUNSUR
IN CRL.A.NO.296/2007, DATED:22.11.12 AND ETC.

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


                              ORDER

Heard the learned counsel appearing for the petitioners

and learned High Court Government Pleader appearing for the

State.

2. The factual matrix of the case of the prosecution is

that in between the night hours of 18.11.2002 till the morning

hours of 19.11.2002, these two petitioners along with absconded

accused No.3 committed theft of Bajaj M80 scooter bearing

No.KA09-6025 from the house of the complainant at Hunsur

Town which was parked in front of the house of the complainant

and the same was belonged to the complainant and

subsequently, the complaint was lodged on 14.01.2003 and

based on the complaint, the police have registered the case and

investigated the matter and recovery was also made from PW3

who had stated that he had purchased the said vehicle from

accused Nos.1 and 3. The police have filed the charge-sheet

after completion of the investigation for the offence punishable

under Section 379 of IPC. These petitioners were secured before

the Trial Court and both of them have not pleaded guilty. The

prosecution in order to prove its case, examined PW1 to PW10

and got marked the documents at Ex.P1 to P7 and MO1 which is

subject matter of theft vehicle. The Trial Court after considered

the evidence on record particularly, the evidence of PW3 and

also the evidence of PW1 who lost the vehicle and also

considered the recovery mahazar witnesses, convicted the

petitioners for the aforesaid offence and imposed sentence for a

period of one year to the petitioners. Hence, an appeal is filed in

Crl.A.No.296/2007. The Appellate Court also on re-appreciation

of both the oral and doc evidence, confirmed the judgment of

the Trial Court and dismissed the appeal. Hence, the present

revision petition is filed before this Court.

3. The learned counsel appearing for the petitioners

would vehemently contend that both the Courts have committed

an error relying upon the interested witnesses and evidence is

also inconsistent and the evidences of the prosecution witnesses

are not acceptable and also failed to take note of delay in

lodging the complaint. The counsel would vehemently contend

that the alleged incident was taken place on 18.11.2002 and the

complaint was given on 14.01.2003 i.e., almost lapse of two

months and the same has not been properly considered by both

the Courts and the recovery is also doubtful and hence, it

requires interference of this Court.

4. Per contra, the learned High Court Government

Pleader appearing for the State would submit that PW1 is the

complainant who had lodged the complaint and recovery is made

at the instance of accused Nos.1 and 3 from PW3. The vehicle

was recovered from the possession of PW3 and PW3

categorically deposed that he had purchased the said vehicle for

an amount of Rs.6,500/- and out of that he had paid the amount

of Rs.3,000/- and there is no any ill-will against the accused

persons with PW3 and hence, Trial Court in detail discussed the

same and accepted the evidence of the prosecution. The

Appellate Court also on reconsideration of material available on

record discussed the same and taken note of the middle portion

of Ex.P5 i.e., voluntary statement of the accused persons

wherein it is stated that if they are taken to the house of one

Nataraju i.e., PW3, they are able to show the sold vehicle to him

and hence, MO1 has been seized from the possession of PW3

and Appellate Court also on re-appreciation of material on record

rightly confirmed the judgment of the Trial Court and hence, it

does not require interference of this Court.

5. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record, the point that would arise for consideration are

(1) Whether the Trial Court has committed an error

in convicting the petitioners for the offence

punishable under Section 379 of IPC and the

Appellate Court also committed an error in

confirming the order of the Trial Court and whether it

requires interference of this Court exercising the

revisional jurisdiction?

(2) What order?

Point No.1:

6. Having heard the respective counsel appearing for

the parties and also on perusal of the material available on

record it is clear that the case of the prosecution is that the

vehicle was stolen from the house of PW1 which was parked in

front of the house of PW1 and no doubt, there was a delay in

lodging the complaint i.e., the theft was taken place on

18.11.2002 and the complaint was filed on 14.01.2003. But the

fact is that the recovery was made at the instance of accused

Nos.1 and 3 from the possession of PW3 who deposed that he

had purchased the same from accused Nos.1 and 3. It is the

case of the prosecution that all these accused have committed

the theft of the subject matter of the vehicle. But in the

voluntary statement it is stated that accused Nos.1 to 3 when

they have apprehended took the panchas as well as the

Investigating Officers to the house of PW3 and showed the

vehicle and it is not in dispute that the recovery of the vehicle

was made from the possession of PW3 and PW3 also deposed

that he had purchased the same from accused Nos.1 and 3 and

there is no enmity between accused persons and PW3. The said

fact has been considered by the Trial Court in paragraph 17. It

is also the evidence of PW3 that he had purchased the said

vehicle just 15 days prior to taking the vehicle from the police

who came to his house along with accused persons and panch

witnesses. The learned counsel for the petitioners vehemently

contend that the panch witnesses have not supported the

recovery of the vehicle but the fact is that the subject matter of

vehicle which is marked as MO1 was recovered from the

possession of PW3 is not in dispute. PW3 has categorically

deposed that it was purchased from accused Nos.1 and 3 and

the same was in his possession. When such being the case,

even panch witnesses have turned hostile, now, the evidence of

PW3 is a material evidence. The Trial Court in paragraph 12

discussed in detail about the prosecution evidences available on

record including Ex.P5 and a voluntary statement given by the

accused leading the Investigating Officer and panch witnesses to

the house of PW3. Having considered the material on record,

both the Courts have discussed in detail regarding the theft of

vehicle and recovery of the same from the possession of PW3

and PW3 also in turn gave the evidence against accused Nos.1

and 3 stating that he had purchased the same from them. But

the fact is that, accused No.2 was also along with accused Nos.1

and 3 when recovery was made and the same is also spoken by

the prosecution witnesses. Hence, I do not find any reason to

interfere with the finding of the Trial Court as well as Appellate

Court since both the Courts have taken note of evidences

particularly, the evidence of PW1, PW3 and also other official

witnesses and only this Court can exercise the revisional

jurisdiction if finding of the Trial Court is perverse and not based

on the any material and nothing is found that cogent evidence

has not been considered by the Trial Court. Hence, I answer

point No.1 as negative.

7. With regard to the sentence is concerned, the vehicle

which was subject matter of the theft is Bajaj M80. It is the

evidence of PW3 that he had purchased the same for the value

of Rs.6,500/- and out of that he had paid an amount of

Rs.3,000/-. This incident was taken place in the year 2002 and

almost 20 years back when the case was registered against the

petitioners, they are aged between 23 and 25 years and also

taken note of the fact that there are no other criminal

antecedents against these petitioners thereafter. When such

being the case, it is appropriate to impose fine instead of

sending them for undergo substantive sentence. Having

considered the value of the vehicle and also the incident is of the

year 2002, it is appropriate to impose fine of Rs.20,000/- each

petitioners and no substantive sentence is required against

them. The said fine amount is payable within eight weeks from

today. If the petitioners have failed to pay the fine amount

before the Trial Court within the stipulated time, they shall

undergo sentence as imposed by the Trial Court.

Point No.2:

8. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is allowed in part.

The sentence is converted as fine and directed to pay fine

of Rs.20,000/- each within eight weeks from today and out of

that amount, Rs.10,000/- shall be payable to the complainant

and remaining amount of Rs.30,000/- shall be vest with the

State. If the petitioners have failed to deposit the amount within

the stipulated time, they shall undergo substantive sentence as

imposed by the Trial Court.

Sd/-

JUDGE

SN