Karnataka High Court
Sri B.R. Vasantha Kumar Nayak vs The State Of Karnataka - on 12 January, 2024
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CRL.RP No. 521 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 521 OF 2016
BETWEEN:
SRI. B.R. VASANTHA KUMAR NAYAK,
SON OF LATE RAMANNA NAYAK,
AGED 72 YEARS,
RESIDING AT "PUSHYARAGA",
SECOND KOLYA, SOMESHWARA VILLAGE,
KOTEKAR POST, MANGALURU TALUK,
D.K. DISTRICT - 575 008.
...PETITIONER
(BY SRI. P.P. HEGDE, SENIOR COUNSEL FOR
SRI. VENKATESH SOMA REDDI, ADVOCATE)
AND:
THE STATE OF KARNATAKA -
Digitally signed THROUGH THE POLICE CIRCLE INSPECTOR,
by SANDHYA S
BANTWAL CIRCLE, BANTWAL, D.K.,
Location: High
Court of REPRESENTED BY THE
Karnataka
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 01
...RESPONDENT
(BY SRI. M.R. PATIL, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 14.06.2010 PASSED IN C.C.NO.134/2003 BY THE ADDL.
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CRL.RP No. 521 of 2016
CIVIL JUDGE AND JMFC, BANTWAL AND ALSO THE JUDGMENT
DATED 29.02.2016 PASSED BY THE IV ADDL. DIST. AND S.J.,
D.K., MANGALORE IN CRL.A.NO.88/2010 AND ACQUIT THE
PETITIONER HEREIN IN C.C.NO.134/2003 ON THE FILE OF
ADDL. CIVIL JUDGE AND JMFC, BANTWAL.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The revision petitioner/accused No.3-Sri. B. R. Vasantha
Kumar Nayak has preferred this revision petition against the
judgment of conviction and order of sentence passed by the
Addl. Civil Judge and JMFC, Bantwal, Dhakhina Kannada in
C.C.No.134/2003 dated 14.06.2010 (for short hereinafter
referred to as 'trial Court'), which is modified by the IV Addl.
District and Sessions Judge, Dhaskhina Kannada, Mangaluru, in
Crl.A.No.88/2010 by judgment dated 29.02.2016.
2. The rank of the parties in this petition are referred
to as per their status before the trial Court.
3. Brief facts of the prosecution is that:
That on 15.11.2002 at about 9.30 p.m., opposite Bhadra
Gas Agency Godown at Bastipadu of Bantwal Kasba village,
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Batnwal Taluk, the Lorry bearing Reg. No.KA-10-8995 which
belongs to Deepak Sales & Service Company was carrying 300
empty cylinders worth about Rs.3,00,000/- and each cylinder
containing 14.2 kgs L.P. Gas. The accused no.1 who being the
cleaner in the said lorry along with accused no.2 with an
intention to take dishonestly out of the possession and without
the consent of lawful owner of Deepak Sales and Servicing
company and in order to commit theft, they had transported
the lorry to Madyaru of Kotekar village of Mangaluru Taluk and
sold the same to accused no.3 for Rs.300/- each. The accused
no.3 dishonestly received and purchased the stolen property by
knowing or having the reason to believe the same to be a
stolen property and the said property were concealed by him
near his house premises. Thereafter, the accused nos.1 and 2
abandoned the said lorry at Moodushedde at Mangaluru Taluk,
thereby, the accused has committed an offence punishable
under Section 379 and 411 of I.P.C.
4. After taking cognizance against the accused for the
commission of offences punishable under Section 379 and 411
of IPC, the case was registered in C.C No.134/2003. In
response to summons, accused appeared before the trial Court
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and enlarged on bail. On framing of charges by the trial Court,
same was read over and explained to the accused. Having
understood the same, accused pleaded not guilty and claimed
to be tried.
5. To prove the guilt of the accused, ten witnesses
were examined as PWs.1 to 10 and got marked eighteen
documents as Exs.P1 to P18 and three material objects were
marked as MO Nos.1 to 3. On closure of prosecution side
evidence, statement of accused under Section 313 of Cr.P.C.
was recorded. Accused No.3/revision petitioner has totally
denied the entire material evidence appearing against him, but
he did not chose to lead any defence evidence on his behalf.
6. On hearing the arguments on both sides, the trial
Court has convicted the accused Nos.1 and 2 for the
commission of offences punishable under Section 379 of IPC
and accused No.3/revision petitioner was convicted for the
commission of offences punishable under Section 411 of IPC.
7. Being aggrieved by this judgment of conviction and
order of sentence passed against the accused No.3, the
accused No.3-Sri. B. R. Vasantha Kumar Nayak has preferred
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the Criminal appeal before the IV Addl. District and Sessions
Judge, Dhaskhina Kannada, Mangaluru in Crl.A.No.88/2010.
The same came to be partly allowed and judgment of conviction
passed by the trial Court against the accused No.3 was
confirmed and order of sentence dated 14.06.2010 passed by
the Addl. Civil Judge and JMFC, Bantwal in C.C.No.134/2003
was modified. In view of the modification of this order of
sentence, accused No.3 is sentenced to undergo simple
imprisonment for one year and sentenced to pay fine of
Rs.5,000/-. In default of payment of fine, he shall undergo
simple imprisonment for six months.
8. The learned Senior counsel Sri.P.P Hegade, has
fairly submitted that considering the facts and circumstances of
this case he is not going to challenge as to the conviction
passed by the trial Court, which is confirmed by the appellate
Court, but he has submitted his argument as to the
modification of the sentence passed against this revision
petitioner. Accused No.3 has not been previously convicted for
any offences, the alleged commission of offences is the first
offence. Only allegation against accused No.3 is that he has
received the stolen property from accused Nos.1 and 2. Now
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the age of accused No.3 is 77 years and he diagnosed with
acute Bhronchitis with infective exacerbation, type II diabetes
mellitus with right foot ulcer, right leg PVOD, systemic
hypertension, ischemic heart disease and chronic kidney
disease. Hence, he sought for punishing the accused by
imposing a fine of Rs.2,000/-, as imposed by the trial Court.
On all these grounds, sought for modification of the sentence
passed by the trial Court to substantiate his arguments he has
produced the medical documents pertaining to Sri. B. R.
Vasantha Kumar Nayak, aged about 77 years and the medical
certificate issued by the Justice K. S. Hegde, charitable
Hospital.
9. As against this, the leaned HCGP Sri.M.R Patil, has
submitted his arguments, that the sentence passed by the
appellate Court is in accordance with law and facts that there
are no grounds to interfere with the impugned order of
sentence passed by the appellate Court. On all these grounds
sought for dismissal of the revision petition.
10. Having heard the arguments on the both sides, the
following points would arise for consideration:
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I. Whether the revision petitioner/accused No.3
has made out grounds to reduce the sentence
only to the extent of fine of Rs.2,000/- as
imposed by the trial Court?
II. What order?
. My answer to the above points are as under:
Point No.(1) : In the affirmative,
Point No.(2) : As per final order.
Regarding Point No.1:
11. The trial Court has convicted the accused No.3 for
commission of offences punishable under Section 411 of IPC
and sentenced to undergo simple imprisonment for a period of
two years and sentenced to pay fine of Rs.2,000/-. In default
of payment of fine, he shall undergo simple imprisonment for
six months.
12. Learned Sessions Judge has modified this order of
sentence and sentenced to undergo simple imprisonment for a
period of one year and sentenced to pay fine of Rs.5,000/-. In
default of payment of fine, he shall undergo simple
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imprisonment for six months. Though the prosecution has not
preferred any appeal for enhancement of fine amount, the
appellate Court has enhanced fine amount of Rs.2,000/- to
Rs.5,000/-, which is not permissible under law. Both Courts
have not assigned any reasons for not releasing accused No.3
under the Probation of offenders Act 1958. Accused No.3 is
now aged about 77 years and at the time of commission of
offence, his age was 67 years. Accused No.3 is diagnosed with
acute Bhronchitis with infective exacerbation, type II diabetes
mellitus with right foot ulcer, right leg PVOD, systemic
hypertension, ischemic heart disease and chronic kidney
disease.
13. Accused No.3 has already remitted the fine amount
of Rs.2,000/-, as imposed by the trial Court. Considering the
nature and gravity of offence, age, occupation, antecedents and
health condition of the revision petitioner, I am of the opinion
that it is just and proper to reduce the sentence only to the
extent of fine amount of Rs.2,000/-. Accordingly, the revision
petitioner has made out grounds to reduce the sentence.
Hence, I answer Point No.1 in the affirmative.
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Regarding Point No.2:
14. For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
i. The criminal revision petition is partly
allowed;
ii. The judgment of conviction passed by the
trial Court, which is confirmed IV Addl.
District and Sessions Judge, Dhaskhina
Kannada, Mangaluru in Crl.A.No.88/2010
dated 29.02.2016, is confirmed;
iii. The order of sentence passed by the IV
Addl. District and Sessions Judge, Dhakhina
Kannada, Mangaluru, is modified as under :
The accused No.3/revision petitioner is
sentenced to pay fine of Rs.2,000/-. Which
is already remitted by accused No.3.
iv. The sentence passed by the trial Court,
which is modified by the appellate Court to
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undergo simple imprisonment for a period
of one year, is set aside and modified as
stated above.
v. Registry to send a copy of this order along
with TCR and SCR to the concerned Courts.
Sd/-
JUDGE
AT
CT: BHK
