Karnataka High Court
Sri. Ghouse Pasha vs State By on 7 June, 2024
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CRL.RP No. 478 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE UMESH M ADIGA
CRIMINAL REVISION PETITION NO. 478 OF 2016
BETWEEN:
SRI. GHOUSE PASHA
@ GHOUSE KHAN
S/O C H ANWAR,
AGED ABOUT 36 YEARS,
R/AT:KIDWAI NAGARA,
29TH WARD, CHINTAMANI TOWN,
CHIKKABALLAPURA DISTRICT- 563 121.
PRESENTLY R/AT:
AGRAHARA MAIN ROAD,
CHINTAMANI TOWN,
CHIKKABALLAPURA DISTRICT - 563 121.
...PETITIONER
(BY SRI. DEEPAK J, ADVOCATE (ABSENT))
Digitally signed AND:
by D HEMA
Location: HIGH
COURT OF STATE BY
KARNATAKA SRINIVASAPUR POLICE STATION
SRINIVASAPURA TALUK,
KOLAR DISTRICT,
REPRESETNED BY S.P.P.
HIGH COURT OF KARNATAKA,
BANGALORE-560 001.
...RESPONDENT
(BY SRI. K NAGESHWARAPPA, HCGP)
THIS CRL.RP FILED UNDER SECTION 397 R/W 401
CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO
SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE
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CRL.RP No. 478 of 2016
DATED 10.09.2014 PASSED IN C.C.NO.87/2010 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC, SRINIVASPURA AND
JUDGMENT DATED 12.02.2016 PASSED IN CRL.A.NO.57/2014
ON THE FILE OF THE PRL. DISTRICT AND S.J., AT KOLAR.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is directed against judgment
dated 12.02.2016 passed by Principal District and Sessions
Judge, Kolar in Crl.A.No.57/2014.
2. The brief facts of the case are that on
20.12.2009 at intervening night in Gunthuvaripalli village
at Government Kannada Primary School, the accused and
two others criminally trespassed and open the lock of the
cooking room (Kitchen) of the school and removed the HP
gas cylinder and committed theft of the cylinder worth of
`2,500/- and carried the cylinder in Maruthi Car. PW-3
was residing near the school. Hearing the sound of
breaking of lock, PW-3, got up and thought that someone
was breaking the lock. In the meanwhile, the revision
petitioner along with two others were said to be carrying
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the said cylinder in Maruthi Car. PW3 immediately woke
up PW4- Govindappa and both of them chased the car in
their motor cycle and stopped them and accused No.1 was
caught red handed along with gas cylinder and car. The
revision petitioner was driving the car and two others were
inmates of the said car. Accused No.2 and 3 were said to
be escaped from the spot. PWs.3 and 4 intimated the said
fact to PW1-Narasimhappa, the teacher who was serving
in the said school on 21.12.2009. PW.1 lodged the
complaint to the jurisdictional police as per Ex.P1.
3. On the basis of Ex.P1, respondent - Police
registered a case in Cr.No.304/2009. The matter was
investigated by PWs.5 and 6 and on conclusion of the
investigation they have submitted the charge sheet
against accused No. 1 to 3 for the offence punishable
under section 457 and 380 IPC to the Court of Principal
Civil Judge and JMFC, Srinivaspur took cognizance and
registered the case as C.C.No.87/2010.
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4. Accused No.1 was apprehended and accused
No.3 was said to be absconding. The learned trial judge
secured the presence of accused Nos.1 and 2; supplied
the copy of the charge sheet and enclosures to them and
after hearing them, charges were framed. Accused No.1
and 2 pleaded not guilty and claimed to be tried.
5. The prosecution in support of its case examined
PWs.1 to 7 and got marked as Exs.P1 to P14 and closed its
evidence. The learned Magistrate examined the accused
under Section 313 of Cr.P.C and recorded their answers.
6. The learned trial Judge after hearing both the
parties and appreciating the evidence available on record
convicted accused No.1 for the offence punishable under
Section 457 and 380 of IPC and acquitted accused No.2.
Thereafter, hearing accused No.1 sentenced him to
undergo simple imprisonment for 3 years along with fine
of Rs.5,000/- and in default of paying the same, the
accused is sentenced to undergo simple imprisonment for
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6 months for the offence punishable under Section 457 of
IPC. Further, the learned trial Judge has not sentenced
the accused for the offence punishable under Section 380
of IPC separately.
7. Accused No.1 challenged the said judgment
passed in C.C.No.87/2010 in Crl.A.No.57/2014 before
Court of Principal District and Sessions Judge, Kolar. The
learned Sessions Judge after hearing both the parties and
on re-appreciating the evidence available on record,
dismissed the appeal by impugned judgment dated
12.02.2016.
8. Being aggrieved by the same, accused No.1 has
preferred this revision petition on the grounds mentioned
in the revision petition.
9. None appears for the revision petitioner though
the matter is of the year 2016 and sufficient time was
granted to the revision petitioner to prosecute the case.
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10. I have heard learned High Court Government
Pleader for respondent - State.
11. The following points emerges for my
determination:
i. Whether the findings of the Courts below is
perverse, illegal and arbitrary and
interference by this Court is required?
ii. Whether the punishment imposed by the
Court below is disproportionate to the
offence committed by the revision
petitioner?
12. The star witness in this case are PWs.3 and 4.
PW3 is eye witness and had seen accused Nos.1 and 2,
breaking open the lock of the kitchen of the School.
Thereafter, PW.3 woke PW.4 up. By that time, the
accused No.1 was said to be removed the gas cylinder
from the kitchen of the school and were taking it in
Maruthi car. Immediately, PWs.3 and 4 chased the car
and were able to stop it. They apprehended the revision
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petitioner, who was the driver of the Maruthi car and also
found the gas cylinder in the said car.
13. During the evidence, they have fully supported
the case of the prosecution. In thorough cross examination
by learned counsel for the accused No.1, nothing was
brought out to disbelieve their evidence. It is not the
defense of accused No.1/revision petitioner that they had
any enmity to give false evidence against them.
14. PW1. is the complainant and teacher of the said
school. He has also stated about the incident. He was
stated that on the basis of the information given by PWs.3
and 4 he lodged the complaint on the next day morning.
As per Ex.P1, the stolen gas cylinder was seized from the
possession of accused No.1, which was carried in the car.
PWs.5 and 6 are the investigating officers. They have
stated in detail about the investigation done by them. It is
true that in the cross-examination of PW5, he did not say
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regarding the ownership of the car, which was driven by
revision petitioner at the time of his apprehension.
15. That may not be reason to disbelieve the
evidence of PWs.3 and 4 or the case of the prosecution.
Material facts which shall be proved is whether accused
No.1 commited theft of gas cylinder from the Kitchen of
the school. That fact is proved.
16. Both the trial Court as well as first appellate
Court appreciating and re-appreciating the evidence
properly came to right conclusion. There is no reliable
evidence against accused No.2 and even nothing was
seized from his custody to connect him with the guilt.
Only on the basis of confession of accused No.1, without
sufficient evidence accused No.2 could not be convicted.
Therefore, rightly he was acquitted by the trial Court that
cannot be a reason for acquitting accused No.1 also.
17. Most of the grounds of the revision petition are
pertaining to re-appreciating of the evidence. The trial
Court has thoroughly appreciated evidence and first
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appellate Court has also re-appreciated the evidence
properly. Under Section 397 of Cr.P.C., this Court cannot
re-appreciate the evidence on record unless glaring
mistake has been committed while considering the
evidence. There is no illegality in the findings of the Court
below.
18. For the aforesaid reasons, I answer question
No.1 in the 'Negative'.
19. The trial Court convicted the revision petitioner
for the offence punishable under Section 457 of IPC and
sentenced him to undergo imprisonment for a period of
three years along with fine of `5,000/-. According to
charge, the gas cylinder stolen was worth `2,500/-, which
is punishable under Section 380 of IPC. The punishment
prescribed for the offence punishable under Section 380 of
IPC is imprisonment of either description for a term, which
may extend to seven(7) years and shall also be liable to
fine.
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20. For the offence punishable under Section 457 of
IPC, if the lurking house-trespass or house-breaking by
night in order to commit theft, then the term of the
imprisonment may extend to fourteen(14) years. Looking
to the age of revision petitioner, value of stolen article and
pending of this case for last about 14 years, it is felt that
some leniency has to be given while imposing the
sentence. Accordingly, the sentence of imprisonment is
reduced to one year and he shall pay fine of `5,000/- and
in default of payment of fine, he shall further undergo
imprisonment as awarded by the trial Court. Accordingly,
question No.2 is answered 'Partly in the affirmative' and
pass the following:
ORDER
i. The revision petition is allowed in part.
ii. The conviction of revision petitioner for the
offence punishable under Section 380 and
457 is confirmed and sentenced imposed by
the trial Court and confirmed by the first
appellate Court is modified.
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iii. The revision petitioner shall undergo
rigorous imprisonment for a period of one
year and shall pay fine of `5,000/-, in
default of payment of fine, he shall further
undergo imprisonment of six(6) months for
the offence punishable under section 380
and 457 of IPC and is entitled for set-off as
provided under Section 428 of Cr.P.C.
iv. Bail bond executed by the revision
petitioner stands cancelled.
v. The accused - revision petitioner shall
surrender before the trial Court within a
period of forty five days (45) from the date
of this order, to undergo sentence.
vi. Registry is directed to send the records
back to the trial Court along with the copy
of the judgment forthwith.
Sd/-
JUDGE
AG
