Karnataka High Court
Syed Fayaz S/O Basumiya vs The State Through M.B. Nagar P.S on 15 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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CRL.RP No.200002 of 2019
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL REVISION PETITION NO.200002 OF 2019
(397)
BETWEEN:
SYED FAYAZ S/O BASUMIYA
AGE: 30 YEARS, OCC: BUSINESS,
R/O MIZGURI, KALABURAGI
...PETITIONER
(BY SRI NANDKISHORE BOOB, ADVOCATE)
AND:
THE STATE THROUGH M.B. NAGAR P.S.
Digitally signed NOW REPRESENTED BY,
by SHILPA R
TENIHALLI ADDL. SPP, HCKB AT KALABURAGI
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.RP IS FILED U/S 397 AND 401 OF CR.P.C
PRAYING TO CALL FOR THE RECORDS OF LOWER COURT AND
ALLOW THIS REVISION PETITION AND SET ASIDE THE
JUDGMENTS OF CONVICTION AND ORDERS OF SENTENCE
PASSED BY THE LEARNED PRESIDING OFFICER OF IIIRD
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KALABURAGI,
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CRL.RP No.200002 of 2019
IN CRIMINAL APPEAL NO.80/2015, DATED 05.11.2018, THE
LEARNED IVTH ADDITIONAL CJ AND JMFC COURT,
KALABURAGI, IN C.C.NO.4416/2011, DATED 30.09.2015,
WHICH ARE ANNEXED AS ANNEXURE- A AND B RESPECTIVELY,
IN VIEW OF THE REASONS AS STATED ABOVE.
THIS PETITION, COMING ON FOR DICTATING ORDERS,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the
petitioner/accused No.1 challenging the judgment of
conviction and order of sentence passed by IV Additional
Civil Judge and JMFC, Kalaburagi in C.C.No.4416/2011
dated 30.09.2015, whereby the learned Magistrate has
convicted the accused/appellant herein for the offence
punishable under Section 392 of IPC by imposing rigorous
imprisonment for a period of three years with fine of
Rs.5,000/- which is confirmed by the III Additional District
and Sessions Judge, Kalaburagi in Criminal Appeal
Noo.80/2015 vide judgment dated 05.11.2018.
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2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them
before the Trial Court.
3. The brief factual matrix leading to the case are
as under:
It is the case of the prosecution that on 01.03.2011
at 8-00 p.m. the complainant was returning to her home
near Hanuman Temple, GDA Colony, Kalaburagi city after
attending the function of her colleague. It is further
alleged that at that time two persons came on Hero
Honda Motorbike bearing registration No.KA-28-U-397
and one person got down and followed the informant in
order to watch the proceedings and accused No.1 was
riding the motorcycle and came from opposite direction
and snatched away the Mangalasutra from the neck of the
complainant. Thereafter both the accused fled on the
motorcycle and in this regard, the complainant lodged
first information report with the police which is registered
in Crime No.27/2011 against unknown persons for the
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offence under Section 392 of IPC. On the same day, as
per the spot shown by the complainant, the mahazar was
also drawn. Subsequently, the accused were arrested on
16.05.2011 in a different crime and on interrogation, they
revealed their involvement in this Crime. Then, the
investigating officer in the said case recorded the
confessional statements of the accused and at the
instance of the accused, he recovered the stolen
Mangalasutra. Then, the investigation was continued in
this case and the stolen property was given to the interim
custody of the complainant. After completing the
investigation, the charge-sheet came to be submitted.
4. Initially the accused was in custody in a
different crime and his presence was secured under body
warrant. He was represented by his counsel and
prosecution papers were furnished to him as contemplated
under the law. The charge was framed and read over to
the accused and he pleaded not guilty and claimed to be
tried.
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5. To prove the guilt of the accused, the
prosecution has examined in all 9 witnesses as P.W.1 to
P.W.9 and also placed reliance on 6 documents marked at
Exs.P.1 to P.6 and one material object. After conclusion of
the evidence of the prosecution, the statement of accused
under Section 313 of Cr.P.C is recorded to enable the
accused to explain the incriminating evidence appearing
against him in the case of the prosecution. The case of
the accused is of total denial and he did not choose to lead
any oral and documentary evidence in support of his
defense.
6. After hearing the arguments and after
appreciating the oral and documentary evidence, the
learned Magistrate has convicted the accused for the
offence punishable under Section 392 of IPC by imposing
rigorous imprisonment for a period of three years with a
fine of Rs.5,000/- with default clause.
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7. Being aggrieved by this judgment of conviction
and order of sentence, the accused approached the
learned III Addl. Sessions Judge, Kalaburagi in Criminal
Appeal No.80/2015. The learned Sessions Judge after re-
appreciating the oral and documentary evidence,
dismissed the appeal filed by the appellant/accused No.1.
8. Being aggrieved by these concurrent findings of
conviction, the appellant/accused No.1 is before this Court
by way of this revision petition.
9. Heard the arguments advanced by the learned
counsel for revision petitioner and the learned High Court
Government Pleader. Perused the records.
10. The learned counsel for revision petitioner would
contend that the accused was arrested in a different crime
and he was implicated in this case falsely, as the
investigating agency was not able to trace the real culprits.
He would contend that the mahazar witness PW-4 and 8
did not support the case of the prosecution and entire case
of the prosecution is based on testimony of the police
officers, which cannot be looked into, without there being
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collaboration by independent witness. He would also
contend that PW-2 being a spot mahazar has turned
hostile and it is hard to accept the contention of the
prosecution that MO-1 was kept as it is without encashing
the same by way of alienation. Hence, he would contend
that the evidence of the prosecution is not convincing and
as such he would urge that both the Courts below have
committed an error in convicting the accused. Hence, he
would seek for allowing the revision petition by acquitting
him. Alternatively, he would contend that considering the
age of the petitioner the sentence of imprisonment may be
set aside and it may be restricted to fine.
11. Per contra, the learned High Court Government
Pleader would support the judgment of conviction and
order of sentence passed by the Courts below. He would
contend that PW-3, 5 and 9 have supported the case of the
prosecution and there is no reason for disbelieving the
evidence of police officers, as their evidence is above
suspicion. He would also contend that, though PW-4 and 8
have turned hostile, they did not explain what compelled
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them to sign the mahazar Ex.P-3. He would also contend
that the petitioner is a habitual offender involved in a
number of cases, and hence he does not deserve any
leniency. Hence, he would seek for dismissal of the
revision petition.
12. After hearing the arguments and after perusing
the records, now the following point would arise for my
consideration:
"Whether the judgment of conviction and the
order of sentence passed by the Trial Court and
confirmed by the Appellate Court are perverse,
arbitrary and illegal, so as to call for any
interference by this Court?"
13. The allegations of the prosecution discloses that
on 01.03.2011 at 8:00 p.m. while the complainant was
returning to the home by walk, near Hanuman
Temple,G.D.A. Colony, Kalaburagi city, the accused came
on Hero Honda bike and snatched away the golden
Mangalsutra chain from her neck. In this regard the
complainant has lodged a complaint on the same day and
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a mahazar as per Ex.P-2 was done. The complainant is
examined as PW-1 and in her evidence she has reiterated
the complaint allegations. However, her cross examination
reveals that she was not in a position to identify the
accused and her evidence further discloses that she was
summoned to the police station seven months later. He
would contend that her stolen Mangalasutra chain is
marked as MO-1 and she has identified the same. It is
also evident from her evidence that the police have shown
the accused informing that, they are the persons who have
committed the offence. When this witness was examined,
the accused No.1/appellant was absent and exemption
application was filed. However, it is submitted that
identity of accused No.1 was not at all disputed. Now it is
argued that identification parade was not conducted.
14. Further, in the cross examination it is elicited that
when the chain was snatched from the neck of the
complainant, it was late evening and she was not able to
identify the assailant. By making such a suggestion, the
defense has admitted that there was a robbery, in
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response to snatching away the Mangalasutra chain
belonging to the complainant. Now the only issue remains
is recovery and since she was not able to identify the
culprits, the identification parade loses its importance.
15. PW-2 spot mahazar witness has turned hostile.
However, his evidence has no relevancy in view of the
admission of robbery.
16. PW-4 and 8 are two seizure mahazar witnesses.
They denied that on 25.10.2011 they have accompanied
the police and the accused produced the Mangalasutra
chain in their presence, which was seized by drawing
mahazar as Ex.P-3. Both these witnesses have turned
hostile and were cross examined by the prosecution. But,
they did not support the case of the prosecution. But,
interestingly both these witnesses have admitted their
presence and admitted their signatures on the mahazar.
They did not explain as to what compelled them to sign the
mahazar. It is not their case that their signatures were
obtained under coercion or otherwise. Under such
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circumstances, hostility of PW-4 and 8 itself cannot be a
ground for acquittal.
17. PW-9 is a material witness and he deposed that
on 25.10.2011, at 1 a.m. he along with CW-9 to 19 was on
patrolling in respect of crime No.48/2011 and at that time
they apprehended the accused and on interrogation, the
accused revealed his involvement in this crime. He has
further deposed that he has recorded the voluntary
statement of accused and the accused lead the police
officers and panchas to his house and produced MO-1,
which was seized by drawing mahazar as per Ex.P-3. His
evidence also discloses that the accused has also given
voluntary statement as per Ex.P-6 and the voluntary
statement which led to the recovery is admissible in
evidence, though it may not be admissible pertaining to
the confession of guilt. In the cross examination a simple
formal denial was made asserting that the recovery in that
case has nothing to do with recovery in the present case.
Even the recovery in presence of Panchas was denied in
the cross examination.
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18. Further, the evidence of PW-9 is again
collaborated by evidence of PW-3 and 5. The evidence of
PW-3, 5 and 9 is consistent regarding apprehension of the
accused on 25.10.2011 and recovery of the material
objects at the instance of accused. There is no hard and
fast rule that the evidence of the investigating officers or
police officers shall not be accepted and the evidence of
police officers can be accepted, if it is above suspicion. In
the instant case, considering the cross examination the
evidence of official witnesses is above suspicion. Hence,
the hostility of PW-4 and 8 does not have any relevancy in
the instant case.
19. PW-6 has deposed regarding registering the case
and PW-7 is the investigating officer. The evidence led by
the prosecution establishes that the accused has
committed offence as alleged.
20. Both the Courts below have appreciated the oral
and documentary evidence in proper perspective. This
revision petition is against the concurrent findings of both
the Courts below and nothing was placed on record to
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show that both the Courts have failed to appreciate the
evidence in a proper way or erroneously ignored the
material evidence. Both the Courts below have properly
appreciated the evidence on record and considering these
findings, question of interference on factual aspects does
not arise at all. The oral and documentary evidence
establishes that both the Courts have rightly convicted the
accused for the offence punishable under Section 392 of
IPC.
21. Learned counsel for the appellant would contend
that the petitioner was in custody after obtaining body
warrant in this case for nearly 1 year and 9 months and
the same period may be set off by enhancing the fine to
the extent of Rs.50,000/-. It is necessary to note here
that the accused by using motor vehicle snatched away the
Managalsutra chain on the complainant in the evening
hours. Such incidents regularly happen in the remote areas
and the younger generation has thought it as an easy way
to get their livelihood or to meet their lavish life. It is
evident that such incidents normally occur in the early
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morning or late evening and targeted group is of women or
aged persons. Such menace is required to be curbed and
the petitioner is also required to feel the pinch of the
offence.
22. The offence punishable under Section 392 of IPC
is punishable with imprisonment, which may extend to a
period of 10 years with fine. In the instant case, learned
Magistrate imposed rigorous imprisonment for a period of
3 years with fine of Rs.5,000/-. The petitioner was aged
about 24 years as on the date of robbery and as on today
he is around 38 to 39 years. It is also submitted that he is
having children and a number of dependants and now he is
running a garage. Considering these aspects and
considering the fact that that the offence is said to have
taken 13 years back, it may not be proper to impose
rigorous imprisonment for a period of 3 years. However,
considering the nature and gravity of the offence the
imprisonment should be proportionate to the offence and
in my considered opinion the accused is required to be
imprisoned for a period of 2 years with fine of Rs.25,000/-,
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which would serve the purpose. Further, he is also entitled
for set off, as per the law. In view of these facts and
circumstances, revision petition needs to be allowed in
part, insofar as it relates to sentence portion is concerned.
Accordingly, the point under consideration is partly
answered in affirmative. Hence, I proceed to pass the
following orders.
ORDER
The revision petition is allowed in part
insofar the sentence portion is concerned.
The judgment of conviction passed by IV
Addl. Civil Judge and JMFC; Kalaburagi in
C.C.No.4416/2011 dated 30.09.2015 for the
offence punishable under Section 392 of IPC and
confirmed by III Addl. Sessions Judge,
Kalaburagi in Crl.A.No.80/2015, dated
05.11.2018 stands confirmed.
However, the sentence of rigorous
imprisonment of 3 years with fine of Rs.5,000/-
stands modified and the accused is directed to
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under go rigorous imprisonment for a period of 2
years with a fine of Rs.25,000/-, in default he
shall under go further simple imprisonment for
another 3 months. The period of detention of
accused in custody in this case, after obtaining
the body warrant is set off as against the
sentence imposed under Section 428 Cr.P.C.
The revision petitioner/accused No.1 is
directed to surrender before the learned
Magistrate within 4 weeks from today.
Send back the records to the Trial Court,
along with a copy of this Order with direction to
learned Magistrate to secure the presence of the
revision petitioner/accused No.1 for serving the
balance sentence and for recovery of the balance
fine amount.
Sd/-
JUDGE
RSP,NJ
