Karnataka High Court
Md. Sameerkhan S/O Md Wahabkhan vs The State Of Karnataka on 22 November, 2023
Author: K Natarajan
Bench: K Natarajan
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NC: 2023:KHC-K:8820
CRL.RP No. 200084 of 2019
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL REVISION PETITION NO. 200084 OF 2019
BETWEEN:
MD. SAMEERKHAN,
S/O MD WAHABKHAN,
AGE: 30 YEARS,
OCC: SALESMAN, R/O: PLOT NO.66,
NOW MOHD NAGAR ERAKUNTA
CHANDRAYANGUTTA,
HYDERABAD-500 005.
...PETITIONER
(BY SRI. R.S. LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY ITS TOWN POLICE STATION BIDAR,
Digitally signed
by KHAJAAMEEN
REP. BY HIGH COURT GOVT. PLEADER,
L MALAGHAN HCK KALABURAGI - 585 103.
Location: High
Court Of ...RESPONDENT
Karnataka
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.RP IS FILED U/S 397 PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION DATED
08.11.2019 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, BIDAR IN CRIMINAL APPEAL NO. 59/2019
IN DISMISSING THE APPEAL PREFERRED BY THE PETITIONER,
THEREBY, CONFIRMING THE JUDGMENT AND ORDER OF
CONVICTION DATED 19.06.2019 PASSED BY THE ADDL.
SENIOR CIVIL JUDGE AND JMFC, COURT, BIDAR IN
C.C.NO.64/2019 IN RESPECT OF OFFENCES P/U/SEC. 454, 380
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CRL.RP No. 200084 of 2019
R/W 34 OF IPC AND ACQUIT THE PETITIONER/ACCUSED NO.1
OF THE SAME.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by petitioner-accused No.1
under Section 397 of Cr.P.C. challenging the concurrent
findings of conviction and sentence passed by the Principal
District and Session Judge, Bidar, in Criminal Appeal
No.59/2019 dated 08.11.2019 upholding the conviction and
sentence passed by the Additional Senior Civil Judge and JMFC
Court, Bidar in C.C. No.64/2019 dated 19.06.2019.
2. Heard the arguments of learned counsel for the
petitioner and learned High Court Government Pleader.
3. The petitioner was the accused and respondent was
the prosecution before the trial Court. The rank of the parties is
retained for the sake of convenience.
4. The case of prosecution is that New Town Police, Bidar
filed charge sheet against the present petitioner and accused
No.2 for the offences punishable under Sections 454 and 380 of
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IPC alleging that on 15.05.2018 between 12.30 a.m. and 2.00
p.m., the accused persons trespassed into the house of
complainant situated at Raghavendra colony, Rangamandir,
and committed the theft of gold ornaments and cash, and
thereby, they committed the offences punishable under
Sections 454 and 380 of IPC. During investigation, the police
found that this petitioner was arrested in some other case and
on the voluntary statement of the petitioner, a long chain and
two bangles were seized by the police and filed charge sheet in
this case. The accused were in custody and trial was faced by
them by pleading not guilty. The prosecution examined 10
witnesses and the statement under Section 313 of Cr.P.C. of
the accused was recorded. Finally, the trial Court found
petitioner-accused No.1 and accused No.2 guilty and convicted,
and sentenced them to undergo imprisonment of 2 years for
each of the sentence with fine of Rs.5,000/-. Being aggrieved
by the same, both the accused persons challenged the same,
under the appeal in Criminal appeal No.59/2019, where the
learned Sessions Judge allowed the appeal of accused No.2 and
acquitted him. Whereas, the appeal of this petitioner i.e.
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accused No.1 was dismissed on 08.11.2019. Hence, the
petitioner-accused No.1 is before this Court.
5. The learned counsel for the petitioner-accused No.1
has contended that the case is based upon the voluntary
statement as well as the recovery of ornaments in some other
case. The panch witness-P.W.1 has turned hostile. There is no
eye witness to the incident. The evidence is purely based upon
the circumstantial evidence and the evidence of P.W.1 discloses
that the chance finger print was found in the house of the
complainant. The evidence of prosecution creates a doubt.
Therefore, the benefit of doubt shall be extended to the
petitioner-accused. Hence, prayed for allowing the petition.
6. Alternatively, the learned counsel for the petitioner
has also contended that the petitioner was in custody for more
than almost 16 months and the sentence was given only two
years and the same shall be given set off and reduce the
sentence by 16 months. Accordingly, prayed for allowing the
petition.
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7. Per contra, learned High Court Government Pleader
has seriously objected the petition and contended that the
petitioner is a habitual offender and there is positive evidence
for connecting the petitioner-accused in the crime and hence,
prayed for dismissing the petition.
8. Having heard the arguments of learned counsel for
the parties, perused the records.
9. The points that arise for consideration are :
(i) Whether the findings of both the appellate Court as
well as the trial Court call for interference by this Court ?
(ii) What order ?
10. Perused the records, especially the evidence of 10
witnesses relied upon by the prosecution before the trial Court.
P.Ws.1 and 2 are the panch witnesses in whose evidence
Ex.P.1-panchanama was marked and both of them have turned
hostile. P.Ws.3 and 5 are the panch witnesses to the spot
panchanama where the complaint has been registered against
the unknown persons for theft and lurking trespass. The
evidence of P.W.4, who is the complainant, discloses that when
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he was out of station, his house was burgled and there was
theft of Rs.2.00 lakhs and other gold ornaments. Regarding
the evidence of P.W.4, and P.Ws.3 and 5, the factum of theft
was proved by the prosecution.
11. P.W.9 is the head constable who registered FIR and
P.W.10 is the investigation officer, who has collected the
evidence from the spot. The finger print was collected and sent
to the FSL. Whereas P.W.6-finger print expert given the
evidence and report was at Ex.P.11.
12. During investigation, the PSI of Dabirpura police
station arrested the petitioner in Crime No.93/2018. During
the voluntary statement, the petitioner admitted the
commission of offence in this case and subsequently, the
presence of the petitioner was secured under the body warrant
and the evidence was collected, and stolen articles were
recovered at the instance of the petitioner-accused.
Admittedly, M.Os.1 and 2 are the gold ornaments which were
stolen from the house of P.W.4-complainant and they were
identified by P.W.4 in the Court. The recovery was based upon
the voluntary statement of accused which is admissible under
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Section 27 of Indian Evidence Act. As per the evidence of
P.Ws.6 and 7, the finger print of this petitioner was matching
with the finger print taken by the Hyderabad police in some
other case. From the evidence of P.Ws.3, 5 and 9, as stated
above, the factum of theft was proved by the prosecution.
13. M.Os.1 and 2 - gold ornaments, which were seized,
have been recovered on the voluntary statement of the
accused, which is admissible under Section 27 of the Evidence
Act. The chance finger print of the accused that was taken out
from the place of commission of offence, i.e. from the house of
P.W.4, has been proved by the prosecution from the evidence
of P.Ws.6 and 7 and the investigation officer.
14. From this evidence, the prosecution is successful in
proving the case that the petitioner-accused committed the
theft in the house of P.W.4. Considering the evidence, the trial
Court has rightly convicted the petitioner for the offences
punishable under Sections 380 and 454 of IPC. The appellate
Court has rightly re-appreciated the evidence and dismissed the
appeal. Therefore, this Court does not find any error in
convicting the petitioner-accused No.1 by the trial Court, which
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was upheld the appellate Court. However, the punishment
awarded by the trial Court was two years with fine of
Rs.5,000/- each.
15. As per the contention of the learned counsel for the
petitioner, the petitioner was in custody during the trial from
05.01.2019 till passing of the judgment by the trial Court on
19.06.2019, and during the appeal, he was continuously in
custody both, in this case and some other case. Finally, this
Court suspended the sentence only on 26.02.2020 and
subsequently, in March 2020, he has been released. On
calculation, the petitioner was in custody for almost 14 months.
Therefore, if the sentence is reduced to one year from two
years with some fine, it would meet the ends of justice.
16. Accordingly, I pass the following order:
(i) The petition is allowed in part.
(ii) The findings of conviction of sentenced passed by
both the Courts below are hereby upheld.
(iii) However, the sentence is modified and reduced to
one year each, 2 months each that is 14 month for the offences
punishable under Sections 454 and 380 of IPC with fine of
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Rs.5,000/- for each sentence and, in default of payment of fine,
he shall undergo simple imprisonment for 4 months.
(iv The fine amount is said to be deposited. Hence The
bail bond of the petitioner is cancelled.
(v) Office is directed to send the copy of this order and
the trial Court records to the trial Court, forthwith.
Sd/-
JUDGE
CS
