Sri.Hanuma Naik vs State Of Karnataka
2023 Latest Caselaw 608 Kant

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                                                          CRL.RP No. 100034 of 2016


                       IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                              DATED THIS THE 10TH DAY OF JANUARY, 2023

                                                   BEFORE
                             THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                            CRIMINAL REVISION PETITION NO. 100034 OF 2016
                       BETWEEN:

                       1.    SRI.HANUMA NAIK S/O KASHYA NAIK,
                             AGE: 25 YEARS, OCC: DRIVER,
                             R/O: SUSHEELA NAGAR, SANDUR,
                             DIST: BALLARI.

                       2.    SRI.MALLIKARJUN NAIK S/O RAMA NAIK
                             AGE ABOUT 33 YEARS,
                             R/O: VENKATAGIRI THANDA,
                             SANDUR TALUK,
                             DIST: BALLARI.
                                                                      ...PETITIONERS
                       (BY SRI RAJENDRA R. PATIL, ADVOCATE FOR
                       SRI SRINAND A. PACHHAPURE, ADVOCATE)

                       AND:

                       STATE OF KARNATAKA
                       BY KOTTUR POLICE STATION,
                       KOTTUR, TQ: KULIGI,
                       NOW REP. BY SPP,
Digitally signed by
SUJATA SUBHASH
                       HIGH COURT OF KARNATAKA,
PAMMAR
Location: HIGH COURT
OF KARNATAKA,
DHARWAD BENCH,
                       DHARWAD BENCH.
DHARWAD.

                                                                      ...RESPONDENT
                       (BY SRI RAMESH CHIGARI, HCGP)

                            THIS CRIMINAL REVISION PETITION IS FILED U/SEC.397(1)
                       R/W SEC.401 OF CR.P.C., PRAYING TO SET ASIDE THE IMPUGNED
                       JUDGMENT PASSED BY III ADDL. DIST. & SESSIONS JUDGE,
                       BALLARI SITTING AT HOSAPETE IN CRL. APPEAL NO.5034/2015
                       DATED 28/01/2016, CONFIRMING THE JUDGMENT PASSED BY THE
                       SENIOR CIVIL JUDGE & JMFC, KUDLIGI IN C.C. NO.166/2013 DATED
                       20/01/2014 CONVICTING THE ACCUSED / REVISION PETITIONERS
                       FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 457, 380 R/W
                       201 OF IPC AND ACQUIT THE REVISION PETITIONERS.
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                                    CRL.RP No. 100034 of 2016




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


                            ORDER

This revision petition is filed under Section 397(1)

R/w Section 401 of the Code of Criminal Procedure (for

short, hereinafter referred to as 'Cr.P.C.') challenging the

judgment of conviction passed by the Senior Civil Judge

and JMFC., Kudligi in C.C.No.166/2013 dated 20.01.2015

for the offences punishable under Sections 457, 380 R/w

Section 201 of IPC and confirmed in Crl.A.No.5034/2015

dated 28.01.2016 on the file of III Additional District and

Sessions Judge, Ballari sitting at Hospete.

2. For the sake of convenience, parties herein are

referred with the original ranks occupied by them before

the Court.

3. The brief factual matrix leading to the case are

that, on 02.07.2013 at Basaveshwara Nagar, Kottur

between 11.15 a.m. to 12.15 p.m. both the accused have

CRL.RP No. 100034 of 2016

committed lurking house trespass in the house belonging

to the complainant by breaking open the main door which

is used for human dwelling in order to commit theft from

the said house. It is also alleged that, thereafter they have

trespassed in the house and committed the theft of golden

and silver ornaments from Godrej Almirah weighting about

146.05 Grams of gold and 520 Grams of silver and fled on

two wheeler. It is also alleged that, thereafter they went

to SBI ATM booth and drawn an amount of Rs.3,000/- by

using the Card of the complainant and also by using other

ATM Cards of CW.16 and CW.10 drawn Rs.1,000/- and

Rs.2,000/- respectively and thereby they committed theft

of amount by misusing these ATM Cards of CW.1, 10, 15

and 16. On the basis of the complaint, the investigating

officer registered the crime and under took investigation.

The accused were arrested in a different case and on

interrogation they revealed their involvement in this case

and their presence was secured on body warrant and

recovery was also done in the said case. Then the

CRL.RP No. 100034 of 2016

investigating officer filed charge sheet. Subsequently, the

charge was framed under Section 454 and 380 R/w 34 of

IPC against the accused. The prosecution has got

examined in all 18 witnesses and also placed reliance on

28 documents marked as Ex.P.1 to 28 and 7 material

objects as MO.1 to 7.

4. After conclusion of the evidence of the

prosecution, the statement of the accused under Section

313 of Cr.P.C. was recorded to enable the accused to

explain the incriminating evidence appearing against them

in the case of the prosecution. The case of the accused is

of total denial and they did not choose to lead any oral or

documentary evidence.

5. Having heard the arguments and after perusing

the records, the learned Magistrate has convicted the

accused for the offences punishable under Sections 457,

380 R/w 201 of IPC and has also given a set off. Being

aggrieved by this judgment of conviction, the appeal in

CRL.RP No. 100034 of 2016

Crl.A.No.5034/2015 is filed before the III Additional

District and Sessions judge and the appeal came to be

dismissed. Hence, the revision petitioners are before this

Court challenging the concurrent findings.

6. Heard the arguments advanced by the learned

counsel for the revision petitioners and learned High Court

Government Pleader. Perused the records.

7. The learned counsel for the revision petitioners

would submits that the petitioners have already undergone

sentence of imprisonment of more than 1 year 9 months

and sentence imposed is for 2 years but there is no order

regarding sentence being run concurrently. Hence, he

would request that the fine imposed to the tune of

Rs.1000/- may be enhanced and by restricting the

sentence of imprisonment for the period undergone by the

accused-revision petitioners in custody.

8. Per contra, learned High Court Government

Pleader would support the judgment of conviction passed

CRL.RP No. 100034 of 2016

by the Trial Court and confirmed by the First Appellate

Court and submits that, considering gravity of the offence,

revision petitioners does not deserve any leniency. Hence,

he would seek for rejection of the revision petition.

9. Having heard the arguments and perusing the

records, it is evident that the charge was framed under

Sections 454 and 380 of IPC. However, the Trial Court

has convicted both the revision petitioners for the offences

punishable under Sections 457 and 380 R/w Section 201

of IPC. The charge was not framed for the offence

punishable under Section 457 of IPC. But the conviction

was passed for the offences punishable under Section 457

of IPC which is lurking house trespassed by night.

Admittedly, in the instant case the offence alleged in the

lurking house trespass in the day itself and hence the

ingredients of Section 457 are not attracted but the

ingredients of Section 454 IPC are attracted. Accordingly,

the charge was also framed properly. However, while

convicting without alteration of the charge, the learned

CRL.RP No. 100034 of 2016

Magistrate as well as the First Appellate Court have

convicted the revision petitioners for the offence

punishable under Section 457 of IPC without giving any

opportunity. This approach of both the Courts below is

erroneous.

10. However, at the same time, it is also evident

that the imprisonment for 2 years with a fine of Rs.1,000/-

was imposed for the said offences, which is within the

purview of Section 454 of IPC also. The evidence on

record does disclose that there is a recovery at the

instance of the present petitioners and the petitioners

were involved in similar offences and are habitual

offenders. It is also evident that earlier in

Crl.A.No.5017/2015 was got dismissed by the Appellants

before the Sessions Judge but later on, again they filed

Crl.A.No.5034/2015. No reasons were offered for

withdrawal of the First Appeal and filing the Second

Appeal. However, the records disclose that, both the

Courts below have committed an apparent error on the

CRL.RP No. 100034 of 2016

face of the records by imposing the sentence by convicting

the revision petitioner in respect of an offence of which

charge is not framed and which is in higher rank compared

to the offence framed under the charge. Looking to these

facts and circumstances to that extent the revision petition

needs to be allowed. There is material evidence and both

the Courts below have appreciated the oral and

documentary evidence and as such the question of

interference in this judgment of conviction does not arise

at all, except modifying the sentence from 457 IPC to 454

of IPC.

11. The records further discloses that, the accused

have undergone the sentence of imprisonment in the

custody from 1 year 9 months 10 days. The sentence of

imprisonment imposed by the Court is for 2 years for both

the offences. However, the Court has not passed any order

as to whether the sentence shall run concurrently or

separately. But when there is no specific order, it is to be

presumed that the sentences have to run concurrently.

CRL.RP No. 100034 of 2016

The Trial Court has also imposed the fine of Rs.1,000/-

which appears to be meager one. The learned counsel for

the revision petitioners would submit that, the fine may be

enhanced and the sentence of imprisonment may be

restricted to the period undergone in the custody by giving

a set off. Looking to the facts and circumstances, I do

consider that the submission made by the learned counsel

for the revision petitioner is well founded and requires a

needful consideration. The fine of Rs.1,000/- imposed for

the offences punishable under Sections 457/ 454 of IPC

needs to be enhanced to Rs.5,000/- each. In the same

way sentence for the offences punishable under Section

380 of IPC R/w 201 of IPC requires to be enhanced to

Rs.5,000/- in place of Rs.1,000/-. The order of conviction

is to be modified for the offences punishable under Section

454 rather than Section 457 of IPC. As such the revision

petition needs to be allowed in part and accordingly, I

proceed to pass the following:

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CRL.RP No. 100034 of 2016

ORDER

i) The revision petition is allowed in part.

ii) The judgment of conviction passed by the

Trial Court and confirmed by the Appellate

Court so far as it relates to Section 457 is

set aside. However, the revision

petitioners/ accused are convicted for the

offence punishable under Section 454 R/w

201 of IPC in place of offence under Section

457 of IPC.

iii) The sentence imposed by both the Courts

modified and the accused are directed to

undergo sentence of imprisonment, which

they have already undergone in the custody

by giving a set off and each of them are

further directed to pay a fine of Rs.5,000/-

each for the offences punishable under

Sections 454 and 380 of IPC. In default,

they are required to undergo a simple

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CRL.RP No. 100034 of 2016

imprisonment for further a period of 6

months.

iv) Send back the Trial Court records to the

concerned Court with a directions to secure

the presence of the petitioners-accused and

get deposited the fine amount, if not

deposited or else commit them for serving

the default sentence.

Sd/-

JUDGE

SSP