Karnataka High Court
M Somashekhar S/O Kayi Manjappa vs The State Of Karnataka on 12 December, 2023
-1-
NC: 2023:KHC-D:14566
CRL.RP No. 100097 of 2016
C/W CRL.RP No. 100096 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF DECEMBER 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100097 OF 2016
C/W CRIMINAL REVISION PETITION NO. 100096 OF 2016
IN CRL.R.P.NO. 100097 OF 2016:
BETWEEN:
M. SOMASHEKHAR S/O KAYI MANJAPPA,
AGE. 35 YEARS, OCC. ELECTRICIAN WORK,
R/O. JOLADAGUDDA AREA, DIST. CHITRADURGA.
... PETITIONER
(BY SRI. B.G. INDI, ADVOCATE FOR
SRI. K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH HUVINAHADAGALI P.S., BALLARI,
R/BY STATE PUBLIC PROSECUTOR,
SAMREEN HIGH COURT OF KARNATAKA,
AYUB DHARWAD BENCH.
DESHNUR ... RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
Digitally signed
by SAMREEN
AYUB
DESHNUR THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 R/W
Date: 2023.12.22
11:08:09 +0530 401 OF CR.P.C., PRAYING TO ALLOW THIS CRIMINAL REVISION
PETITION BY SETTING ASIDE THE JUDGMENT AND ORDER DATED
02.07.2015 PASSED BY THE HON'BLE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI SITTING AT HOSAPETE, IN
CRL.APL.NO.5056/2014, IN THE INTEREST OF JUSTICE AND EQUITY.
-2-
NC: 2023:KHC-D:14566
CRL.RP No. 100097 of 2016
C/W CRL.RP No. 100096 of 2016
IN CRL.R.P. NO.100096 OF 2016:
BETWEEN:
M. SOMASHEKHAR S/O KAYI MANJAPPA,
AGE: 35 YEARS, OCC: ELECTRICIAN WORK,
R/O: JOLADAGUDDA AREA,
DIST. CHITRADURGA.
... PETITIONER
(BY SRI. B.G. INDI, ADVOCATE FOR
SRI. K.L. PATIL, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
THROUGH HUVINAHADAGALI P.S., BALLARI,
R/BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
... RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL. SPP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397 R/W
401 OF CR.P.C., PRAYING TO ALLOW THIS CRIMINAL REVISION
PETITION BY SETTING ASIDE THE JUDGMENT AND ORDER DATED
02.07.2015 PASSED BY THE HON'BLE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, BALLARI SITTING AT HOSAPETE, IN
CRL.APL.NO.5055/2014, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE PETITIONS, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner in both these revision petitions has
challenged the common judgment of conviction and sentence
passed in Criminal Appeal Nos.5055/2014 and 5056/2014
NC: 2023:KHC-D:14566
dated 02.07.2015 passed by the learned III Additional District
and Sessions Judge, Ballari (sitting at Hosapete) wherein the
accused/petitioner had challenged the judgment of conviction
and sentence passed in CC Nos.261/2012 and 262/2012 passed
by the learned Civil Judge and JMFC, Huvinahadagali.
2. The parties to the revision petitions are referred to
as per their ranking before the Trial Court.
3. That the petitioner being accused was charge-
sheeted by the PSI, Huvinahadagali Police Station for the
offences punishable under Sections 457 and 380 of the Indian
Penal Code (hereinafter referred to as the 'IPC', for short).
4. Facts in brief leading up to these revision petitions
are as under:
5. That one Sri. Govinda Reddy lodged a complaint
before the PSI, Huvinahadagali stating that on 10.02.2011 at
about 11:00pm, he went to Ranebennur town to bring his wife
and daughter by locking the backdoor and the front door of his
house situated at Soppina Kalamma Badavane in
Huvinahadagali. On 11.02.2011, at about 7:30am when he
was in the house of his wife, he received information from the
NC: 2023:KHC-D:14566
owner of the house by name Sri. Tarikoppa Ramesh of
Huvinahadagali Town through telephone that, some miscreants
have committed theft of his house by breaking upon the lock of
the back door of his house. On receipt of said information, the
complainant, his wife and daughter rushed to their house at
about 11:30 am. He inspected his house and on seeing the
bed room, he noticed that the Godrej cupboard was open and
the clothes and papers were scattered and fallen on the
ground. He noticed theft of the gold and silver ornaments so
also two watches and a DVD player. With these allegations, he
filed a complaint on 11.02.20211 at 3:00 pm before the
Huvinahadagali Police Station and criminal law was set into
motion.
6. The said Police registered a crime in Crime No.
8/2011 for the aforesaid offences. On completion of
investigation and after following all the formalities of the
investigation, charge-sheet was filed against the accused for
the aforesaid offences.
7. During the course of investigation, the accused was
arrested and was kept in judicial custody.
NC: 2023:KHC-D:14566
8. So far as CC No.262/2012 is concerned, for similar
offences, the accused was charge-sheeted based upon the
complaint filed by one Sri. Thotanaik son of Theetyanaik of
Huvinahadagali. According to the complaint filed by the
complainant in this case, the complainant is residing in his
house at Hombali Koresh situated at Basaveshwara Nagara in
Hadagali town on rental basis. It is alleged in the complaint
that, on 21.10.2011 at about 9:00 pm, the complainant and his
family members went out of the house to Adavimallanakere
Thanda to attend the death ceremony-Kailasa
Shivaganaaradhane of his mother by locking his rented house.
It is alleged that, on 22.10.2011 at about 2:00pm when he
returned to his house along with his friend N.M. Vishwanath on
a motorcycle and opened the door with a key, he noticed that
the safe locker situated behind the door had fallen down and he
was scared and went inside the house and found that some
miscreants have stolen cash, gold and silver ornaments and a
DVD player from his house by breaking open the door lock of
his house. The total worth of articles which were stolen was
Rs.8,41,500/-. He too lodged a complaint which was registered
in Crime No.68/2011 against unknown persons for the foresaid
NC: 2023:KHC-D:14566
offences. In this case also, the Police, after completion of
investigation, filed charge-sheet against the accused.
9. To bring home the guilt of the accused in CC
No.261/2012, the prosecution in all examined 14 witnesses as
PWs.1 to 14 and got marked Exs.P-1 to P-23 with respective
signatures and so also got marked M.Os.1 to 8.
10. Likewise, to bring home the guilt of the accused in
CC No.262/2012, the prosecution in all examined 14 witnesses
as PWs.1 to 14 and got marked Exs.P-1 to P-19 with respective
signatures and also M.Os.1 to 18.
11. The learned Magistrate, on hearing the arguments
in both the cases and on assessing the evidence, found the
accused guilty of committing the offences under Section 457
and 380 of IPC and sentenced the accused to undergo one year
simple imprisonment for the offence under Section 457 of IPC
and to pay fine of Rs.1,000/- with default sentence. Similar
sentence is passed in CC No.262/2012 also.
12. These judgments of conviction and order on
sentence were challenged by the accused by preferring Criminal
Appeal Nos.5055/2014 and 5056/014 before the learned III
NC: 2023:KHC-D:14566
Additional District and Sessions Judge, Ballari, sitting at
Hosapete.
13. The first appellate Court passed common judgment
in both the appeals on 02.07.2015 and affirmed the judgment
of conviction and order on sentence passed by the learned
Magistrate and set aside the order of giving benefit of set off to
the accused.
14. This is how the petitioner is before this Court by
filing these two revision petitions challenging the judgments of
conviction and sentence passed by the trial Court and affirmed
by the first appellate Court.
15. The learned counsel Sri. B.G. Indi appearing for the
petitioner in both these petitions with all vehemence submits
that, there are no grounds to convict the accused. He submits
that the judgment of conviction and order on sentence passed
by the Courts below are contrary to law, facts of the case and
against the materials placed on record. He submits that there
is no proper appreciation of evidence by the trial Court as well
as by the first appellate Court. The legal aspect of the matter
has not been appreciated by both the Courts. The accused was
NC: 2023:KHC-D:14566
taken into custody on 28.01.2012. The Magistrate was pleased
to grant police custody of the petitioner on 28.01.2012. During
investigation, certain properties were recovered. He submits
that there is no proper appreciation evidence regarding
recovery of articles. Though the learned Magistrate has granted
set off under Section 428 of Cr.P.C. but the first appellate Court
has declined to grant set off. The main argument of the learned
counsel for the petitioner is that, in view of strict provisions of
Section 428 of Cr.P.C., as accused is convicted in various cases,
as per the mandate of the criminal jurisprudence, it is the duty
of the Court to give set off to the accused person. But the
appellate Court has lost sight of the same in both the revision
petitions. He humbly submits that the petitioner be given set
off, as already he has undergone the sentence so imposed by
the Court.
16. As against this submission, Sri. M.B. Gundawade,
learned Additional State Public Prosecutor submits that, the
Trial Court is right in declining to grant set-off. According to his
submission when the offence is proved and accused is habitual,
as a matter of right the accused is not entitled for any set-off.
NC: 2023:KHC-D:14566
Therefore he submits before the Court that, there is no ground
to interfere in the impugned judgments.
17. He further submits that, the Trial Court and first
appellate Court have rightly held the accused guilty of
committing the offences under Sections 457 and 380 of IPC.
Therefore, he prays to dismiss both the revision petitions.
18. I have given my anxious consideration to the
arguments of both sides and meticulously perused the records.
19. In view of rival submissions of both sides, the
following points that would arise for my consideration are as
under:
i) Whether the findings of the Trial Court as
well as first appellate Court in finding the accused
guilty is perverse and capricious and requires
interference by this Court?
ii) Whether the findings of the Trial Court in
declining to grant of set-off under Section 428 of
Cr.P.C., is illegal?
- 10 -
NC: 2023:KHC-D:14566
Point Nos.1 and 2 are discussed together:
20. As could be seen from the records of these revision
petitions, to bring home the guilt of the accused in
C.C.No.261/2012, prosecution relied upon the evidence in all
14 witnesses and documents were marked at Ex.P.1 to P.23.
Amongst them, PW.1 is the complainant who speaks with
regard to the theft of his house situated at Huvinahadagali
village. According to him when the said theft has taken place,
he was not in the house and he went to Ranebennur to bring
his wife and daughter. He got the information about theft from
the owner of the house. When he rushed to his house he found
missing gold and silver ornaments.
21. As per the case of the prosecution, PWs.2 and 3 are
recovery panchas, PW.5 is circumstantial witness, PW.6 is the
spot pancha, PWs.8 and 9 are the Police Constables, PWs.10
and 11 are the circumstantial witnesses and PWs.12 and 14 are
the Investigating Officers. So far as the theft of the house of
the complainant is concerned, prosecution relied upon the
evidence of PW.1-complainant, PW.6 and 7 are the panchas, so
- 11 -
NC: 2023:KHC-D:14566
also PWs.8 and 9 are the recovery panchas and the evidence of
Investigating Officer's also.
22. On reading of the evidence of all these witnesses, it
is proved by the prosecution that, there was a theft of the
house of the complainant in the intervening night of
11.02.2011 and 12.02.2011. These documents are not denied
by the defence. The police have prepared the rough sketch.
This fact is also not denied. There is recovery of the articles
identified at M.O. Nos.1 to 9. If all these factual features are
put together, it may stated that, prosecution is able to establish
the theft of the articles kept in the house of the complainant in
the manner stated by him. Thus, the prosecution is able to
prove the theft of the house of the complainant.
23. Merely because theft of the articles is proved by the
prosecution, does not mean that, there was accused and
accused alone was responsible for theft. To prove the said fact,
the prosecution relied upon the evidence of PW.1. According to
him, when he opened the almerah, he came to know that,
there was theft of Rs.5,000/- kept in the same, two watches,
gold and silver ornaments found missing. On filing of the
- 12 -
NC: 2023:KHC-D:14566
complaint, the police told that, there was a recovery of the
articles from the possession of the accused.
24. When he went to the police station, he identified
the gold necklace, ladies bracelets, gold bangles which were
marked at M.O. Nos.4 to 6. He also identified the silver plates
which are the subject matter of theft stolen by the accused.
Though PW.1 has cross examined in length, but nothing worth
is elicited from his mouth.
25. PW.2 - A. Chandrappa and PW.3 - N. Basavaraja,
are the recovery panchas they have clearly stated in their
examination-in-chief as well as cross examination that, at the
instance of the accused articles were seized. Thus, recovery
has been done as provided under the provisions of Section 27
of the Indian Evidence Act, 1872 (for short the 'Act, 1872'),
that means at the instance of the accused the said M.O.'s have
been seized by the police. There is no denial of this fact.
26. PW.4 - Akkasaali Hemachari, weighed the said
articles and stated that, the said articles were weighed as per
the request by the police. He further states that, the accused
shown the theft articles kept in his house which were stolen
- 13 -
NC: 2023:KHC-D:14566
from the house of the complainant. These articles were seized
by the police. The complainant has identified them. The
witnesses so examined in this case sated in their respective
evidence that, the said articles were seized at the instance of
the accused.
27. The Trial Court on evaluating and assessment of the
evidence placed on record, has come to the conclusion that, it
was the accused who has committed the offence. The Trial
Court has found the accused guilty. The same was confirmed
by the first appellate Court in an appeal and only there is a
refusal to grant set-off to the accused by the first appellate
Court. The said declining to grant set-off is challenged by the
revision petitioner/accused by preferring these revision
petitions.
28. So far as C.C. No.262/2012 is concerned, the
prosecution relied upon the evidence of PW.1 - complainant
Shri. L. Thotanaik. He says that, when he was not in the
house, he came to know that, there was a theft of cash, gold
ornaments, silver ornaments kept in the house so also DVD
player. Total movables worth Rs.8,41,500/- were the subject
- 14 -
NC: 2023:KHC-D:14566
matter of the theft. Thus, it is alleged by the complainant that,
he lodged the complaint and the police have recovered the
same. To bring home the guilt of the accused, the prosecution
relies upon evidence of so many witnesses in this case from
PW.1 to PW.14 and got marked Ex.P.1 to P.19, so also articles
were marked at M.O. Nos.1 to 18.
29. On reading the entire text of evidence spoken to by
the witnesses, they do suggest that, as per the voluntary
statement of the accused recorded under Section 27 of the Act,
1872, in the presence of panchas all these articles have been at
the instance of the accused by the police. The witnesses so
examined in this case being seizure panchas, recovery panchas
and spot panchas have spoken about the theft of the articles
from the house of complainant. So also they have spoken
about the seizure of the said articles at the instance of the
accused by the police. That means, theft of the articles is
proved by the prosecution. Seizure panchanama is marked at
Ex.P.3. While marking these documents no objections were
raised by the defence.
- 15 -
NC: 2023:KHC-D:14566
30. On scrupulous reading of the entire evidence in
respect of the theft, the prosecution has to prove the guilt of
the accused beyond all reasonable doubt. In a case of present
nature, when the offence under Section 457 of IPC is attributed
against the accused, it is the duty of the prosecution to prove
the guilt of the accused as well as commission of offence. From
the scene of offence panchanama and seizure panchanama, it is
proved that, there was a lurking house trespass by the accused
and the articles at the instance of the accused were seized by
the police in the presence of panchas.
31. To discredit the evidence of panchas and the
Investigating Officers, no effective cross examination was
directed to any of the witness. A presumption is very much
available under Section 114 of the Act, 1872. The law is that
when a person is found in possession of the property, either he
may be a owner of the property or he is a receiver of the
property or he his is a thief.
32. In this case, at the instance of the accused M.Os. so
marked in this case were seized. That means accused was
- 16 -
NC: 2023:KHC-D:14566
found in possession of all these articles in his house. The
panchas have supported the case of the prosecution.
33. Evidentially, accused is not the owner of the said
articles, then the presumption can be drawn against him.
When there is no explanation under Section 106 of the
Evidence Act, 1872, the presumption is very much available to
the case of prosecution, to connect the accused that he is real
culprit in the commission of offence in the manner alleged by
the prosecution.
34. If all these factual features are put together and the
evidence led by the prosecution and on evaluation of evidence
in proper perspective, it can be stated that, the prosecution is
able to prove the guilt of the accused to the hilt. Therefore, I
do not find any factual or legal error committed by the Trial
Court and first appellate Court in finding the accused guilty in
the commission of offences under Sections 457 and 380 of IPC.
The learned Trial Court is right in finding the accused guilty and
sentencing him.
35. Now the question comes that, whether the accused
is really entitled for set-off under Section 428 of Cr.P.C?
- 17 -
NC: 2023:KHC-D:14566
36. Section 428 of Cr.P.C. is reads as under:
" Where an accused person has, no conviction,
been sentenced to imprisonment for a term (not being
imprisonment in default of payment of fine), the period of
detention, if any, undergone by him during the
investigation, inquiry of trial of the same case and before
the date of such conviction, shall be set off against the
term of imprisonment imposed on him on such conviction,
and the liability of such person to undergo imprisonment
on such conviction shall be restricted to the remainder, if
any, of the term of imprisonment imposed on him:
(Provided that in cases referred to in Section 433A,
such period of detention shall be set off against the period
of fourteen years referred to in that section)."
37. On scrupulous reading of provisions of Section 428
of Cr.P.C., it says that, Section 428 of Cr.P.C. is not available
to life convicts. However such a provision is very much
available to convict for other offences. So it is very much clear
that, the accused is not a life convict. He has been charge
sheeted by the police for the offences under Sections 457 and
380 of IPC. Section 428 of Cr.P.C., speaks of sentence on
- 18 -
NC: 2023:KHC-D:14566
offender already sentence for another offence. So when a
person already undergone a sentence of imprisonment,
whether such a benefit can be extended to the accused.
38. It is laid down by the Co-Ordinate Bench of this
Court in Criminal Appeal No.100181/2019 C/w. Criminal Appeal
No.100182/2019 arising out of the complaint under Section 138
of N.I. Act. The Hon'ble Apex Court in case of Benson Vs. State
of Kerala1has laid down the law as under:
"4. According to the aforesaid communication, the
Appellant stands convicted and sentenced in 12 different
matters including the present matters which appear at
Serial Nos.9, 10, 11 and 12 in the chart. Going by the
sentence calculation, the sentence in the 9th case would
begin on 30.08.2017 and finally, the sentence in the 12th
case, after getting all benefits of set off, would be over on
02.09.2022.
5. Section 427 of the Code of Criminal Procedure,
1973 is as under:-
"427. Sentence on offender already sentenced
for another offence. - (1) When a person already
undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to
imprisonment or imprisonment for life, such
imprisonment or imprisonment for life shall
(2016) 10 SCC 307
- 19 -
NC: 2023:KHC-D:14566
commence at the expiration of the imprisonment to
which he has been previously sentenced, unless the
Court directs that the subsequent sentence shall
run concurrently with such previous sentence:
Provided that where a person who has been
sentenced to imprisonment by an order
under Section 122 in default of furnishing security
is, whilst undergoing such sentence, sentenced to
imprisonment for an offence committed prior to the
making of such order, the latter sentence shall
commence immediately.
(2)When a person already undergoing a sentence of
imprisonment for life is sentenced on a subsequent
conviction to imprisonment for a term or imprisonment for
life, the subsequent sentence shall run concurrently with
such previous sentence." In terms of sub-section (1)
of Section 427, if a person already undergoing a sentence
of imprisonment is sentenced on a subsequent conviction
to imprisonment, such subsequent term of imprisonment
would normally commence at the expiration of the
imprisonment to which he was previously sentenced.
Going by this normal principle, the sentence chart
indicated in the communication dated 27.05.2016 is quite
correct. However this normal rule is subject to a
qualification and it is within the powers of the Court to
direct that the subsequent sentence shall run concurrently
with the previous sentence.
8. We have gone through the record and
considered rival submissions. We do not find anything
incorrect in the assessment made by the Courts below
- 20 -
NC: 2023:KHC-D:14566
and in our view the orders of conviction recorded against
the appellant in the present cases are quite correct. We
also do not find anything wrong in the quantum of
sentence imposed in respect of the respective crimes.
However going by the sentence calculation, the sentence
imposed in respect of the first crime started with effect
from 20.11.2003 and the last sentence would be over by
19.08.2022, which would effectively mean that the total
length of sentences in aggregate would be around 19
years. We are not concerned with first eight matters and
sentences imposed in respect of those crimes. The
sentence in respect of 8th crime is presently running
against the appellant and would be over on 30.08.2017."
39. Further the sentence so imposed in both the
revision petitions is one year imprisonment. According to the
counsel for the revision petitioner already the accused has
undergone the said one year sentence and even till today he is
in custody. According to him section 428 of Cr.P.C., is very
much applicable to the accused.
40. On considering the judgments of the Hon'ble Apex
Court with regard to giving set-off as laid down in the case of
Atul Manubhai Parekh Vs. Central Bureau of Investigation2
and in the case of Maliyakkal Abdul Azez Vs. Assistant
(2010) 1 SCC 603
- 21 -
NC: 2023:KHC-D:14566
Collector, Kerala and Another3, the revision petitioner/accused
is entitled for set-off under Section 428 of Cr.P.C.
41. As per the records available on record, accused has
undergone for sentence of one year imprisonment. This revision
petitions are filed in the 2016 and now we are in the year 2023.
Therefore, in view of the factual features and the principles laid
down the appellate Court ought to have granted set-off. The
learned first appellate Court has committed illegality in
declining to grant set-off.
42. Resultantly, I pass the following:
ORDER
(i) Both Criminal Revision Petitions are allowed in
part.
(ii) So far the judgment of conviction and order of
sentence is concerned, is confirmed in both these
petitions.
(iii) However, the order declining to grant set-off
passed by the first appellate Court is hereby set
(2003) 2 SCC 439
- 22 -
NC: 2023:KHC-D:14566
aside and the revision petitioner/accused is entitled
for set-off under Section 428 of Cr.P.C. for the period
already undergone by him.
(iv) So far as imposing of sentence is concerned, it
is undisturbed.
(v) If the fine amount is not recovered, the
accused is directed pay the amount within one
month.
(vi) Intimate the operative portion of the order to
the concerned Superintendent of Jail regarding grant
of set-off.
(vii) Send the copy of this order to the Trial Court
as well as first appellate Court forthwith along with
the records.
Sd/-
JUDGE
Kmv upto para 14
SMM- para 15 to till end
CT : BCK
