Karnataka High Court

Hrishikesh vs The State Of Karnataka on 4 July, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                      CRL.RP No. 471 of 2021




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 4TH DAY OF JULY, 2024

                                             BEFORE
                        THE HON'BLE MR JUSTICE V SRISHANANDA
                      CRIMINAL REVISION PETITION NO. 471 OF 2021
                BETWEEN:

                      HRISHIKESH
                      S/O LATE VASUDEVA
                      AGE ABOUT 39 YEARS,
                      R/AT MAHAMAYA A.K. NAGAR,
                      KUTHPADI, UDUPI TALUK,
                      UDUPI DISTRICT - 576 122
                                                                ...PETITIONER
                (BY SRI. JAYANTHA POOJARY., ADVOCATE)

                AND:

                      THE STATE OF KARNATAKA
                      BY UDUPI TOWN POLICE STATION,
                      UDUPI,
Digitally
signed by             UDUPI DISTRICT - 576 101,
YAMUNA K L            REP. BY STATE PUBLIC PROSECUTOR,
Location:             HIGH COURT OF KARNATAKA,
High Court of
Karnataka             BANGALORE - 560 001.
                                                               ...RESPONDENT
                (BY SRI. VINAY MAHADEVAIAH, HCGP FOR R/STATE)

                       THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
                PRAYING TO SET ASIDE THE ORDER DATED 10.08.2015 MADE
                IN C.C.NO.45/2010 PASSED BY THE ADDITIONAL CIVIL JUDGE
                AND    JMFC,   UDUPI   AND    CONFIRMED   IN   ORDER   DATED
                04.02.2021 MADE IN CRL.A.NO.54/2015 PASSED BY THE
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                                       CRL.RP No. 471 of 2021




PRINCIPAL DISTRICT AND SESSIONS JUDGE, UDUPI AND TO
ACQUIT THE PETITIONER FOR THE OFFENCE P/U/S 457,380 OF
IPC.

       THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,

THE COURT MADE THE FOLLOWING:

                           ORDER

Heard Sri.Jayantha Poojary and learned High Court

Government Pleader.

2. Accused who suffered an order of conviction in

C.C.No.45/2010, for the offence punishable under

Secitons-457 and 380 of IPC and sentenced to one year

imprisonment and fine of Rs.5,000/-, for the offence under

Section-457 of IPC and 2 years rigorous imprisonment and

fine of Rs.5,000/- for the offence punishable under

Seciton-380 of IPC, with default sentence, confirmed in

Criminal Appeal No.54/2021, has preferred this revision

petition.

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3. Facts in brief, which are utmost necessary for

disposal of the revision petition are as under:

Manager of Vijaya Bank, Udupi lodged a complaint

with Udupi town police on 03.11.2009 contending that on

02.11.2009 at about 3.45 p.m., the revision petitioner in

the guise of attending the repair work of air-conditioner,

has managed to remain in the strong room in the said

bank and hidden himself in between the cabinets that was

stored in the strong room. Thereafter taking advantage of

the fact that the bank was closed for the day for

transaction, at about 9.00 p.m., with the tools that he had

brought, forcefully opened the Almirah and stolen away

Rs.20,000, which was kept outside the cash box and

removed the cash box using the key and took away a sum

of Rs.62,093/-.

4. Next day morning when the Manager and the

Assistant Manager of the Bank entered the strong room,

noticed the accused in the strong room and on enquiry

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came to know about the incident and apprehended the

accused and handed over him to the Town Police. Police

after registering a case, conducted a thorough

investigation, seized the material objects, including the

cash of Rs.82,093/- from the custody of the accused and

filed the charge-sheet.

5. Presence of the accused was secured before the

Trial Magistrate and charges were framed. Accused

pleaded not guilty and therefore trial was held.

6. In order to prove the case of the complainant,

Sri.T.Monappa Shetty, Smt.Malini V. Shetty, Smt.Gloria

D'souza, Sri.Suresh R. Shetty, Sri.Ashok, Sri.Maruthi J

Nayak and Sri.S.V.Girish, were examined as witnesses and

the Investigation Officer was examined as PW-7.

Complaint, Spot Mahazar, FIR and Seizure Mahazar were

marked as Exhibits-P1 to P5. 26 Material Objects

comprising of cash bag, tools, battery, soap piece, empty

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parle-G biscuit cover, water bottle were marked as MO-1

to MO-26.

7. On conclusion of the recording of the

prosecution evidence, the accused statement as is

contemplated under Section-313 of Cr.P.C. was recorded

wherein the accused has denied all the incriminating

circumstances that were put to him found in the

prosecution case.

8. Accused did not offer any explanation

whatsoever as is contemplated under Section-313(4) of

Cr.P.C., nor adduced any defence evidence.

9. Thereafter, learned Trial Magistrate heard the

parties, on appreciation of the material evidence on record

convicted the accused for the offence punishable under

Section-457 and 380 of IPC and sentenced as referred to

supra.

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10. Being not satisfied with the judgment of the

conviction passed by the Trial Magistrate, the accused

preferred appeal before the First Appellate Court in

Criminal Appeal No.54/2021.

11. Learned Judge in the First Appellate Court after

securing the records and hearing the parties, in the light of

the grounds urged in the appeal memorandum, dismissed

the appeal by a judgment dated 04.02.2021 and

confirmed the order of conviction and sentenced passed by

the Trial Magistrate.

12. Being further aggrieved by the same, the

accused is before this Court in this revision.

13. Sri.Jayantha Poojary, learned counsel for the

revision petitioner reiterating the grounds urged in the

revision petition, contended that the accused who went

inside the strong room for attending the repair work of the

air-conditioner with regard to the ATM machine, had an

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asthma attack and he fell unconscious and remained in the

strong room and without noticing his presence, the

security personnel of the bank had closed the door of the

strong room as well as the main door, resulting in the

presence of the accused in the strong room till next day.

Therefore, the conviction of the accused for offence

punishable under Sections-457 and 380 of IPC is thus

incorrect.

14. He also pointed out that the accused entered

the Bank with the permission letter and therefore, there

cannot be any offence under Section-457 of IPC, inasmuch

as there was no criminal intention in forcefully entering

into the prisms of the Bank and therefore conviction of the

accused under Section-457 of IPC is incorrect.

15. He further pointed on record that the material

on record would not point out that the accused has stolen

away an amount of Rs.82,093/- as is contended by the

prosecution and only with an intention to foist a false case,

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the amount that was there in the bank was implanted and

the accused was convicted falsely and sought for allowing

the revision petition.

16. Alternatively, Sri. Jayantha Poojary contended

that there is no criminal antecedents to the accused and

he is a married person with two young children to be

reared and therefore, in the event of this Court

maintaining the order of conviction, leniency may be

shown and custody period already undergone by the

accused may be treated as period of imprisonment by

enhancing the fine amount and sought for allowing the

revision in part.

17. Per contra, Sri.Vinay Mahadevaiah, learned

High Court Government Pleader opposes the revision

grounds and contends that admittedly the accused did not

offer any explanation while recording the accused

statement under Section-313 of Cr.P.C., about the

argument that is now put forth by the learned counsel for

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the revision petitioner in this revision, and in the absence

of any plausible explanation of presence of the accused in

the strong room of the bank, all ingredients of the offences

punishable under Sections-457 and 380 of IPC stands

proved, inasmuch as a sum of Rs.82,093/- has been

seized from the custody of the accused and the mahazar

witnesses have supported the case of the prosecution and

sought for dismissal of the revision petition.

18. He also pointed out that in a matter of this

nature, if the Court shows any leniency or mercy to the

accused, the same would send a wrong message to the

society at large and sought for dismissal of the revision

petition in toto.

19. Having heard the learned counsel for the parties

in detail, this Court perused the material on record

meticulously. On such perusal on record, the following

points would arise for consideration:

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i) Whether the prosecution is successful in

establishing all the ingredients of the offence

punishable under Sections-457 and 380 of IPC?

ii) Whether the impugned judgment is suffering

from legal infirmity or perversity?

iii) Whether the sentence is excessive?

REGARDING POINT (i) AND (ii):

20. In the case on hand, even according to the

complaint averments, accused gained entry into Vijaya

Bank, Udupi in the guise of attending a repair work of the

air-conditioner. Accused represented that he has been

sent by the Head Office to attend the AC repair work and

believing the same, he was allowed inside the bank. It is

the case of the complainant that in the guise of washing

the hand, the accused somehow gained entry inside the

strong room. Admittedly, the AC repair work was in

respect of the ATM machine and there was no necessity for

the accused to go inside the strong room. Gaining an entry

into the bank, though legal, gaining an entry into the

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strong room without the proper permission and making

necessary entries in the register that has been maintained

in the bank, would amount to trespassing into the strong

room. Not only the said fact stands established, but also

fact remains that till next day the accused was found in

the strong room itself.

21. On 03.11.2009, when the officials of the Bank

entered the strong room, he noticed the presence of the

accused. He also noticed that there was damage to the

Almirah and there was missing cash. Police have seized

from the custody of the accused a sum of Rs.82,093/-,

which has been produced as a material object before the

Trial Magistrate marked as MO-2.

22. Panch witnesses to the seizure mahazar have

supported the case of the prosecution. It is the further

case of the prosecution that an enquiry accused revealed

what transpired on the previous night and based on that a

complaint came to be lodged.

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23. In a matter of this nature, the seizure of the

stolen articles completes all ingredients of the offence.

Therefore, the contention urged on behalf of the revision

petitioner that the prosecution case is suffering from

necessary evidentiary aspects with regard to ingredients to

attract the offence alleged against the accused cannot be

countenanced in law. Assuming for a moment that the

contentions urged on behalf of the revision petitioner is to

be believed, accused did not choose to submit the same

before the Trial Magistrate either orally or by filing

necessary written submissions as is contemplated under

Section-313(4) of Cr.P.C.

24. If at all accused has suffered ill-health,

especially had breathing problem and lost his

consciousness, i.e., should have been in the said state for

all time to come. More so, having regard to the fact that

there was no proper ventilation in the strong room.

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25. Under such circumstances, the theory of the

accused loosing consciousness, is only a ruse to escape

from the rigors of law. As such, the same cannot be

countenanced by this Court, that too, in the revisional

jurisdiction.

26. The material evidence on record, especially the

seizure panchanama, apprehension of the accused in the

strong room by the bank officials and handing over him to

the Police and recovery of the soap piece, empty biscuit

packet, empty water bottle, would indicate the intention

that was nurtured by the accused.

27. It is also pertinent to note that none of the

prosecution witnesses, did not nurture any previous

enmity or animosity against the accused, so as to falsely

implicate him in the case. Assuming that they wanted to

falsely implicate the accused, there was no necessity to

implant a sum of Rs.82,093/-. Any smaller amount would

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also have been implanted by the Police, if at all they

falsely intended to implicate the accused.

28. Therefore, the conviction order recorded by the

trial court and confirmed by the first appellate court,

needs no interference by this Court. Accordingly, point No.

(i) is answered in affirmative and point No. (ii) in the

negative.

REGARDING POINT NO.(iii)

29. Sri.Jayantha Poojary learned counsel contended

that in the event this Court is maintaining the conviction,

taking note of the fact that the accused is now aged 42

years and has got a family to maintain with two young

school going children are there, and there is no other

complaint against the accused all these years and he is

now eking out his livelihood by attending a car mechanic

shop in repairing the AC units of the cars, a lenient view

may be taken and the custody period already undergone

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may be treated as period of custody for the aforesaid

offences and by enhancing the fine amount.

30. Learned High Court Government Pleader

however opposed the said submission by stating that if

any leniency is shown, it would send a wrong message to

the society.

31. It is always a celebrated principle in the field of

sentencing policy that 'every sinner has got a future' and it

is also equally celebrated principle, while passing an

appropriate sentence in a given case, the principle that

'the crime is to be hated not the criminal'.

32. Keeping in background these two celebrated

principles, which would practically govern the field the

sentencing policy in India, the role that is to be played by

the Court while passing an order of conviction is different

from the role that is to be played while passing

appropriate sentence in the given case.

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33. Therefore, in the background of the above

principles, when the material on records is appreciated

taking note of the fact that the accused is now 42 years

and he does not have any criminal antecedents and the

incident that has occurred on the ill-fate day of the

accused is an isolated incident and the accused was in

custody from 03.11.2009 till 17.11.2009 and thereafter he

did not misuse the bail condition, also taking into the fact

that there is no compliant against the accused all these

years, this Court is of the considered opinion, that custody

period already undergone by the accused can be treated

as imprisonment for the offence punishable under Sections

457 and 380 of IPC by enhancing the fine amount in a

sum of Rs.50,000/-, inclusive of the fine amount already

imposed by the Trial Magistrate confirmed by the First

Appellate Court, would meet the ends of the justice.

34. More so, taking note of the fact that he has two

young school going children and their future will also be at

stake if the accused is sent to prison. However, if there is

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a failure to deposit the fine amount as ordered by the trial

court, the sentence ordered by the trial court needs to be

restored.

35. Accordingly, point No.(iii) is answered partly in

affirmative.

18. In view of the finding of this Court on point

Nos.(i) to (iii), following:

ORDER

i) Revision petition allowed in part, while

maintaining the conviction of the accused for

the offence punishable under Sections-457 and

380 of the IPC, the sentence ordered by the

Trial Court confirmed by the First Appellate

Court is modified as under.

ii) The custody period already undergone by the

accused is treated as period of imprisonment

for the offence punishable under Sections-457

and 380 of IPC and accused is directed to pay a

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fine of Rs.50,000/- (Rupees Fifty Thousand)

inclusive of the fine amount already imposed by

the Trial Court confirmed by the First Appellate

Court.

iii) Time is granted for the accused till 15.07.2024,

to pay the balance fine amount, failing which