Karnataka High Court

Sri. Yallaiah vs State Of Karnataka on 5 January, 2024

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                                                              NC: 2024:KHC:538
                                                        CRL.RP No. 446 of 2016




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 5TH DAY OF JANUARY, 2024

                                             BEFORE
                            THE HON'BLE MR JUSTICE G BASAVARAJA
                       CRIMINAL REVISION PETITION NO. 446 OF 2016
                   BETWEEN:

                   SRI. YALLAIAH,
                   S/O SRINIVAS,
                   AGED ABOUT 24 YEARS,
                   RESIDENT OF MADDAKKANAHALLI VILLAGE,
                   GOWDAGERE HOBLI - 572 153,
                   SIRA TALUK,
                   TUMKUR DIST.
                                                                 ...PETITIONER
                   (BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

                   AND:

                   STATE OF KARNATAKA,
                   BY TOWN POLICE STATION,
Digitally signed   TUMKUR - 572 101.
by SANDHYA S
                                                                ...RESPONDENT
Location: High
Court of
Karnataka          (BY SRI. M.R. PATIL, HCGP)

                          THIS CRL.RP IS FILED U/S.397(1) R/W 401(1) OF CR.P.C
                   PRAYING TO SET ASIDE THE JUDGMENT DATED 08.02.2016 ON
                   THE FILE OF THE VI ADDL. DIST. AND S.J., TUMKUR, PASSED
                   IN CASE BEARING CRL.A.NO.58/2013 AND THE JUDGMENT
                   AND ORDER OF CONVICTION DATED 30.03.2013 PASSED BY
                   THE PRL. C.J.M., TUMKUR IN CASE BEARING C.C.NO.476/2011
                   CONSEQUENTLY ALLOW THE CRL.A.NO.58/2013.
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                                                 NC: 2024:KHC:538
                                           CRL.RP No. 446 of 2016




      THIS PETITION, COMING ON FOR HEARING, THIS DAY,

THE COURT MADE THE FOLLOWING:


                               ORDER

This revision petitioner had filed this revision petition

against the judgment of conviction and order of sentence

passed by the Principal Chief Judicial Magistrate, Tumkur in CC

No.476/2011 dated 30.03.2013 (for short hereinafter referred

as 'trial Court'), which is confirmed by the VI Additional District

and Sessions Judge, Tumkur in Crl.A.No.58/2013 dated

08.02.2016.

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 case are that:

On 20.11.2010 at about 9.30 a.m., while CW1/PW1

Smt.Kanthamma was proceeding towards her house from

Railway Station to Chikkapete and when she came near Church

Circle, Tumkur Town at that relevant point of time, the accused

came from backside and snatched her golden Mangalya Chain

weighing about 40 grams and ran away from that spot. Based

on the information of CW1, a case was registered against the

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accused and after investigation, Investigating Officer submitted

the charge sheet for the alleged commission of offence

punishable under section 392 of Indian Penal Code. After filing

charge sheet, case was registered in CC.No.476/2011, accused

was enlarged on bail and substance of charges framed against

the accused for the commission of offence punishable under

section 392 of Indian penal code and the same were read over

and explained to the accused. Having understood the same,

accused pleaded not guilty and claimed to be tried.

4. To prove the guilt of accused, 10 witnesses were

examined as PWs.1 to 10 and got marked 8 documents as

Exs.P1 to P8 and one material object Mangalya chain was

marked as M.O.1. On closure of prosecution side evidence,

statement of accused under Section 313 of Cr.P.C. was

recorded. Accused had totally denied the material evidence

found against him, but he did not chose to lead any defence

evidence on his behalf.

5. On hearing the arguments, the trial Court convicted

the accused for the commission of offence punishable under

Section 392 of IPC and sentenced to undergo rigorous

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imprisonment for a period four years and also fine of

Rs.5,000/-. In default of payment of fine, he shall further

undergo simple imprisonment for three months.

6. Being aggrieved by the judgment of conviction and

order of sentence, accused preferred an appeal before VI

Additional District and Sessions Judge, Tumkur in

Crl.A.No.58/2013. The same came to be dismissed. Being

aggrieved by the judgment of Appellate Court, as well as trial

Court, the revision petitioner has filed this revision petition.

7. The learned counsel appearing on behalf of revision

petitioner/accused has submitted his arguments that, the

impugned judgment passed by trial Court which is confirmed by

the appellate Court is contrary to law and facts. The judgment

of the Courts below are not justifiable for the reason that the

nature of the alleged offence does not attract offence under

Section 390 of Indian Penal Code and punishment under

section 392 of Indian Penal Code without proper application of

mind, the learned trial Judge has convicted the accused for the

commission of offence punishable under Section 392 of Indian

Penal Code which is bad in law, the entire observation of the

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learned trial Court is based only on presumptions and

conjunctions which are not relevant to the circumstances of the

case. Both Courts have failed to appreciate the evidence on

record in accordance with law and facts. Further, it is submitted

that even if this Court has come to conclusion that the accused

has snatched the chain from PW1, then it comes under the

provisions of Section 379 of Indian Penal Code, which is

punishable with imprisonment for three years or with fine or

both. The accused had already undergone judicial custody for a

period of 7 months 15 days and the said period may be

considered as setoff and release the accused.

8. As against this, learned High Court Government

Pleader Sri. M.R. Patil has submitted his arguments that, the

trail Court has properly appreciated the evidence on record in

accordance with law and facts and the appellate Court has also

confirmed the judgment of conviction and sentence passed by

the trial Court and there are no grounds to interfere with the

impugned judgment of conviction and sentence passed by the

trial Court which is confirmed by the appellate Court. On all

these grounds, he sought for dismissal of this revision petition.

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9. Having heard the arguments on both sides, the

following points would arise for my consideration:

i) Whether both the Courts have committed an error

in coming to the conclusion that the accused has

committed the offence punishable under Section

392 instead of Section 379 of Indian Penal Code?

ii) Whether the revision petitioner/accused had made

out grounds to interfere with the impugned

judgment of conviction and order of sentence

passed by the trial Court, which is confirmed by the

Appellate Court?

(ii) What order?

10. My answer to the above points are as under:

            Point No.(1) :        In the affirmative,


            Point No.(2) :        Partly in the affirmative,

            Point No.(3) :        As per final order.

                                                   NC: 2024:KHC:538





Regarding Point No.1 and 2:

11. I have carefully examined the materials placed

before this Court. It is the case of prosecution that on

20.10.2010 at about 9.30 a.m., while PW1 Smt. Kanthamma

was proceeding towards the house from railway station to

Chikkapete and when she came near church circle, at that time,

the accused came from backside and snatched her golden

Mangalya Chain weighing about 40 grams and ran away from

that spot. After investigation, Investigating Officer has

submitted the charge sheet for the alleged commission of

offence punishable under Section 392 of Indian Penal Code.

12. Before the appreciation of evidence on record, it is

appropriate to mention here as to essential ingredients to prove

the offence under Section 390 of the Indian Penal Code, 1860.

The same reads as follows:

a) "if in order to the committing of theft; or

b) in committing the theft; or

c) in carrying away or attempting to carry away property obtained by theft;

d) the offender for that end i.e. any of the ends contemplated by (a) to (c);

e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of

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instant death or of instant hurt or instant wrongful restraint."

13. In the case on hand, PW1-Kanthamma has deposed

in her evidence that on 20.11.2010 at about 9.30 a.m., while

she was proceeding near church circle holding two bags, at that

time, a thief came from backside and snatched her golden

Mangalya Chain and ran away from that spot. When she

shouted, public and police came and then ran away behind the

said person and caught hold of him and brought to the police

station and then she lodged a complaint to the police as per

Ex.P1 and thereafter police have conducted Mahazar as per

Ex.P2 and also deposed as to another Panchanama Ex.P3. She

has identified her golden Mangalya Chain M.O No.1. PWs 2 to 5,

said to be the eye witnesses to the incident, have deposed as

to alleged incident. PWs-3 and 6 have denied the statement

recorded by the Investigating Officer under Section 161 of

Cr.P.C which were marked as EXs.P4 and 5. PW8 is the gold

smith, who has examined the M.O No.1. PW9 and PW10 are the

investigating officers who have deposed as to their respective

investigation.

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14. On a careful examination of entire evidence on record,

I do not find any ingredients to attract the provision of Section

390 of Indian Penal Code which is punishable under Section 392

of Indian Penal Code. Both Courts have not properly

appreciated the facts of the prosecution of case and wrongly

framed the charge against the accused for the commission of

offence punishable under Section 392 of Indian Penal Code

instead of Section 379. Hence, the conviction of accused under

Section 392 of IPC, is not sustainable under law.

15. On careful scrutiny of the entire evidence on record, I

am of the considered opinion that the prosecution has

established the case for the commission of offence punishable

under Section 379 of Indian Penal Code which is punishable

with imprisonment for three years or fine or both.

16. The learned counsel for the revision petitioner has

submitted that the accused has not been convicted in any cases

prior to the alleged commission of offence punishable under

Section 379 of Indian Penal Code. The prosecution papers

reveal that, at the time of commission of offence the age of

accused was 21 years. Considering the age, occupation, nature

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and gravity of offence, so also, antecedents of accused and also

keeping in the mind of provision of Section 6 of Probation of

Offenders Act, 1958, it is just and proper to impose sentence

for a period of 7 months 15 days, which the accused had

already undergone under judicial custody. The order sheet

reveals that accused had already paid the fine amount.

Accordingly, I answer point No (1) in the affirmative in point

No.2 partly in the affirmative.

Regarding Point No.3:

17. For the aforesaid reasons and discussions, I proceed

to pass the following:

ORDER

i. Revision petition filed by the revision petitioner is partly allowed.

ii. The Judgment of conviction and order of sentence passed by the Principal Chief Judicial Magistrate, Tumkur in CC.No.476/2011 dated 30.03.2013 which is confirmed by the VI Additional District and Sessions Judge, Tumkur in Crl.A.No.58/2013 dated 08.02.2016, is modified as under:

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                                                     NC: 2024:KHC:538





            "The      accused   is       convicted   for   offence

punishable under Section 379 of Indian Penal Code and undergo simple imprisonment for 7 months 15 days and the fine of Rs.5,000/- (Accused have already undergone in judicial custody for a period of 7 months 15 days and paid fine of Rs.5,000/-). The period of sentence already undergone by the accused during trial shall be setoff under section 428 of Cr.P.C."