Sri Honnappa vs The State Of Karnataka
2024 Latest Caselaw 25177 Kant

Karnataka High Court

Sri Honnappa vs The State Of Karnataka on 22 October, 2024

Author: V Srishananda

Bench: V Srishananda

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                                                     NC: 2024:KHC:42508
                                                 CRL.RP No. 988 of 2016




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 22ND DAY OF OCTOBER, 2024

                                     BEFORE
                    THE HON'BLE MR JUSTICE V SRISHANANDA
                  CRIMINAL REVISION PETITION No.988 OF 2016

            BETWEEN:

            1.    SRI HONNAPPA
                  S/O HANUMANTHAPPA
                  AGED ABOUT 59 YEARS
                  R/O GANGAMAN GANG NO.10
                  WORKING SECTION
                  ENGINEER OFFICE, S.W.RAILWAY
                  DAVANAGERE-577002

            2.    SRI DADAPEER
                  S/O SHAFIULLA
                  AGED ABOUT 41 YEARS,
                  R/O BASAVESHWARA GINNING
                  FACTORY COMPOUND,
                  K.R.ROAD
                  DAVANAGERE-577002
                                                         ...PETITIONERS
Digitally   (BY SRI JAVEED S, AMICUS CARIAE)
signed by
MALATESH    AND:
KC
Location:   1.  THE STATE OF KARNATAKA
HIGH            BY RPF SOUTH WESTERN RAILWAY,
COURT OF
KARNATAKA       DAVANAGERE
                REPRESENTED BY STATE PUBLIC PROSECUTOR
                HIGH COURT BUILDINGS
                BANGALORE-560 001
                                                    ...RESPONDENT
            (BY SMT.WAHEEDA.M.M, HCGP)
                 THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 CR.P.C
            PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
            CONVICTION DATED 17.11.2015 MADE IN C.C.NO.686/2007 BY THE
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                                            NC: 2024:KHC:42508
                                       CRL.RP No. 988 of 2016




J.M.F.C.-I COURT, DAVANAGERE AND THE JUDGMENT AND ORDER
DATED 04.06.2016 IN CRL.A.NO.132/2015 BY THE I ADDL. DIST.
AND S.J., DAVANAGERE AND ACQUIT THEM OF THE OFFENCES WITH
WHICH THEY WERE CONVICTED BY THE COURTS BELOW.

    THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM:    HON'BLE MR JUSTICE V SRISHANANDA


                         ORAL ORDER

Heard Sri Javeed S, learned Amicus Curiae on behalf of

the revision petitioner and Smt.Waheeda M.M., learned High

Court Government Pleader for the respondent.

2. Accused No.2 is the revision petitioner No.2 who has

suffered an order of conviction for the offence punishable under

Section 3(a) of Railway Protection (Unlawful Properties) Act,

1966, in C.C.No.686/2007 dated 17.11.2015 on the file of the

Judicial Magistrate First Class, First Court, Davanagere City,

confirmed in Crl.A.No.132/2015 dated 04.06.2016 on the file of

the I Addl. District and Sessions Judge, Davanagere.

3. Facts in brief which are utmost necessary for disposal of

the revision petition are as under:

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A charge sheet came to be filed by the Railway Police

stating that accused No.1 being the gangman working in

railways had stolen away certain properties belonging to the

Railway Department which were marked as M.Os.1 to 48 and

after stealing away those properties, sold the same in second

hand market to accused No.2/revision petitioner No.2 who

purchased the same.

4. On credible information, the raid party conducted the raid

in the shop of accused No.2 and then seized the material

objects-M.Os.1 to 48 and filed the charge sheet against

accused Nos.1 and 2.

5. Presence of accused was secured and charge was framed.

Accused pleaded not guilty and therefore, trial was held.

6. In order to establish the case of the prosecution,

prosecution examined twelve witnesses as P.Ws.1 to 12 and

placed on record 22 documents which were exhibited and

marked as Exs.P.1 to 22 and also placed on record the seized

material objects from the custody of accused No.2 which were

marked as M.Os.1 to 48.

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7. Cross-examination of prosecution witnesses did not yield

any positive materials to disbelieve the oral testimony except

minor contradictions.

8. On conclusion of recording of evidence, accused

statement as is contemplated under Section 313 of the Code of

Criminal Procedure was recorded, wherein, accused denied all

incriminatory material and did not chose to place any rebuttal

evidence nor any written statement as is contemplated under

Section 313(4) of the Code of Criminal Procedure.

9. Thereafter, the learned Trial Judge heard the parties and

convicted the accused and sentenced them to pay fine of

Rs.1,000/- and also to undergo simple imprisonment for a

period of one year, with default sentence of two months

imprisonment.

10. Being aggrieved by the same, both the accused preferred

an appeal before the District Court in Crl.A.No.132/2015.

11. Learned Judge in the First Appellate Court after securing

the Trial Court Records, re-appreciated the material evidence

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on record and dismissed the appeal confirming the order of

conviction and sentence passed by the learned Trial Judge.

12. Being further aggrieved by the same, accused have

preferred the present revision petition.

13. Accused No.1 said to have died and therefore, case

against him stood abated.

14. Learned Amicus Curiae representing the accused No.2

reiterating the grounds urged in the revision petition,

contended that both the Courts have not properly appreciated

the material evidence on record and sought for allowing the

revision petition and acquit the accused No.2.

15. Alternatively, he contended that in the event this Court

upholding the conviction, the sentence may be altered by

enhancing the fine amount.

16. Per contra, learned High Court Government Pleader

opposes the revision grounds. She further contended that

admittedly, accused No.2 is the receiver of stolen property

which is railway property. Therefore, under Section 3 of the

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Railway Protection (Unlawful Properties) Act, 1966, no leniency

can be shown as against accused No.2 and therefore, revision

petition has to be dismissed in toto.

17. Having heard the arguments of both sides, this Court

perused the material on record, meticulously.

18. On such perusal of the material on record, following

points would arise for consideration.

(i) Whether the prosecution has successfully established that the accused persons are responsible for the commission of the offence punishable under Section 3(a) of the Railway Protection (Unlawful Properties) Act, 1966?

(ii) Whether the impugned judgment suffers from legal infirmity, perversity, and thus calls for interference by this Court?

(iii) Whether sentence is excessive?

(iv) What Order?

19. REGARDING POINT Nos.1 AND 2: In the case on hand,

seizure of material objects vide M.Os.1 to 48 from the custody

of accused No.2 stands established by placing necessary oral

and documentary evidence on record. The panch witnesses

have supports the case of the prosecution, so also the

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properties seized (M.Os.1 to 48) by the raid team are not freely

available material in the market.

20. Therefore, it is for the revision petitioner No.2/accused

No.2 to convince the Court as to from whom he got possession

of those material objects. It is also pertinent to note that

recovery is based on the voluntary statement of accused No.1,

who is now dead.

21. Since the recovery of stolen property is from the custody

of accused No.2, having regard to the language employed by

the legislature under Section 3(a) of the Railway Protection

(Unlawful Properties) Act, 1966, offence stands established.

22. No explanation whatsoever is forthcoming from the

revision petitioner No.2 as to possession of the property while

recording the accused statement or by leading defence

statement.

23. Under such circumstances, in the light of the material

placed on record especially prosecution witnesses who are

totally stranger to the revision petitioner No.2 who did not

nurture previous enmity or animosity as against the revision

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petitioner No.2 so as to falsely implicate him in the case,

learned Trial Judge was justified in convicting the revision

petitioner No.2 for the offence punishable under Section 3(a) of

the Railway Protection (Unlawful Properties) Act, 1966.

24. Learned Judge in the First Appellate Court on re-

appreciating the material evidence on record, has confirmed

the finding the learned Trial Judge.

25. Therefore, this Court is of the considered opinion that the

material on record is sufficient enough to maintain the order of

conviction as against the revision petitioner No.2 for the

aforesaid offences which has been recorded by the learned Trial

Judge confirmed by the learned Judge in the First Appellate

Court.

26. In view of the foregoing discussion, point Nos.1 and 2 are

answered in the affirmative and negative, respectively.

27. REGARDING POINT No.3: Accused No.2 who is the

revision petitioner No.2 submits that he has got a wife and

three daughters to maintain and he is now doing coolie work to

eke out his livelihood. He also points out that accused No.1 did

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not disclose that he has stolen away M.Os.1 to 48 from the

railway yard and therefore, under the bonafide impression, he

received the said articles for which he should not be penalized.

28. Since accused No.1 is no more and accused No.2 is only

the receiver of the stolen property and he being not an habitual

offender and he did not know that M.Os.1 to 48 are railway

properties, he could be given the benefit of reduction in

sentence, taking note of the fact that under Section 411 of the

Indian Penal Code, there is no fixed term of imprisonment.

29. Taking note of the fact that revision petitioner No.2 has

now agreed to pay enhanced fine amount and also taking note

of the age of the revision petitioner No.2 having a wife and

three unmarried daughters to maintain, this Court is of the

considered opinion that by enhancing the fine amount in a sum

of Rs.15,000/- over above Rs.1,000/- ordered by the learned

Trial Judge, the custody period already undergone by him for a

period eight days during the trial shall be treated as the period

of imprisonment and on the ground of paying enhanced fine

amount, balance imprisonment period needs to be set-aside.

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30. In view of above discussion, point No.3 is answered partly

in the affirmative.

31. REGARDING POINT No.4: In view of finding of this Court

on point Nos.1 to 3 as above, the following:

ORDER

(i) The revision petition is allowed in part.

(ii) While maintaining the conviction of revision petitioner No.2 for the offence punishable under Section 3(a) of the Railway Protection (Unlawful Properties) Act, 1966, the sentence is modified to the effect that the period of imprisonment for a period of eight days already undergone by revision petitioner No.2 is treated as the period of imprisonment for the aforesaid offence and revision petitioner No.2 is directed to pay enhanced fine amount of Rs.15,000/- in addition to Rs.1,000/-

imposed by the learned Trial Judge, (in all Rs.16,000/-) on or before 31st December 2024, failing which order of trial Court stands restored.

(iii) The service rendered by learned Amicus Curiae is placed on record with appreciation.

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Fee of learned Amicus Curiae is fixed at Rs.5,000/-.

(iv) Office is directed to return the Trial Court Records along with copy of this judgment, forthwith.

Sd/-

(V SRISHANANDA) JUDGE kcm