Karnataka High Court
Sri Santhoshkumar @ Santhosh vs The State Of Karnataka on 28 January, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 1057 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 1057 OF 2019
BETWEEN:
1. SRI. SANTHOSHKUMAR @ SANTHOSH
AGED ABOUT 40 YEARS
S/O SRI. SHANKARNAIKA,
AGRICULTURIST AND AUTO DRIVER
R/O HOLEGANGUR
DODDAKOPPANAHALLI POST
BHADRAVATHI - 577 245.
...PETITIONER
(BY SRI. K.S.GANESHA, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY BIRUR POLICE
REP. BY THE STATE PUBLIC PROSECUTOR
Digitally signed
by DEVIKA M HIGH COURT OF KARNATAKA
Location: HIGH BENGALURU - 560 001.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED
11.06.2019 PASSED IN CRL.A.NO.115/2018 BY THE II
ADDITIONAL DISTRICT AND SESSION JUDGE,
CHIKKAMAGALURU, CONFIRMING THE JUDGMENT OF
CONVICTION AND SENTENCE DATED 02.07.2018, PASSED IN
C.C.NO.48/2015 BY THE SENIOR CIVIL JUDGE AND JMFC AT
KADUR.
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CRL.RP No. 1057 of 2019
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL ORDER
Heard learned counsel for the petitioner and learned
HCGP for the respondent-State.
2. The present revision petition is filed against the
conviction and sentence imposed against the petitioner for the
offence punishable under Section 392 IPC.
3. The factual matrix of the case of the prosecution is
that on 08.07.2014 at 4.30 p.m., the complainant
Smt. Shwetha has lodged a complaint with Birur police, wherein
she has alleged that on 07.07.2014 at 8.20 p.m., while she was
going along with C.W.2-Deepak at Sri Ganapati Temple Road,
Rajajinagar, Birur Town, the accused Nos.1 and 2 came there in
a pulsar motor cycle and when the accused persons tried to
snatch the mangalya gold chain from the neck of C.W.1, since
she caught hold the chain tightly, the pillion rider snatched half
portion of gold chain and another half portion has remained
with C.W.1. Upon receiving the complaint, the police have
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registered the case, investigated the matter and filed the
charge sheet.
4. The accused persons were secured and they did not
plead guilty and hence, the prosecution examined the
witnesses as P.Ws.1 to 18 and got marked the documents as
Exs.P1 to P21 and M.O.1-Gold chain is also marked. The
defence have not led any evidence, but they were subjected to
313 statement.
5. The Trial Court having considered both oral and
documentary evidence placed on record, convicted the accused
for the offence punishable under Section 392 read with Section
34 of IPC. The same was challenged before the First Appellate
Court and the First Appellate Court gave the benefit of doubt in
favour of the accused Nos.2 and both of them have filed
Crl.A.Nos.115/2018 and 34/2019. The appeal filed by this
petitioner was numbered as Crl.A.No.115/2018. The First
Appellate Court on re-appreciation of both oral and
documentary evidence placed on record, confirmed the
judgment of the Trial Court and dismissed the appeal and other
appeal filed by the accused No.2 was allowed and he was
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acquitted on the ground that he has not been identified by the
witnesses. Hence, benefit of doubt was given in favour of
accused No.2. Therefore, the present petition is filed by
petitioner-accused No.1 before this Court.
6. The main contention of the learned counsel for the
petitioner before this Court is that P.W.1 says that both
accused Nos.1 and 2 came in the motorcycle and accused, who
was sitting behind the motorcyclist snatched the chain. Learned
counsel would vehemently contend that P.W.1 in her evidence
says that she has given the description of the accused and the
same is not mentioned in the complaint. She also categorically
admits that police called her to identify the accused and she
went and identified the accused and also categorically admits
that prior to 28.10.2014, accused was shown to her and at that
time, both the accused were there in the police station and she
has seen the accused in Test Identification Parade and when
such admission is given by P.W.1, the Trial Court and the First
Appellate Court ought not to have relied upon the evidence of
P.W.1. Learned counsel would contend that when the accused
persons were shown to P.W.1 before the Test Identification
Parade, the Test Identification Parade cannot be relied upon.
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7. Learned counsel for the petitioner would
vehemently contend that the First Appellate Court while
acquitting the accused No.2 made an observation that recovery
is not proved and the witnesses P.Ws.5 and 6 evidence cannot
be looked into and the same yardstick applies to this petitioner,
when discretion is exercised in favour of accused No.2. Hence,
the Trial Court committed an error in convicting the petitioner
and the First Appellate Court committed an error in relying
upon the evidence of P.Ws.1 and 2. Learned counsel for the
petitioner would submit that evidence of P.W.2 is contrary to
the evidence of P.W.1 and he categorically says that C.W.2
took her and shown the accused, when they were in the other
Court and prior to that he had not seen the accused. Hence,
the case of the prosecution that P.Ws.1 and 2 were together at
the time of incident cannot be relied upon. The counsel for the
petitioner also would vehemently contend that the prosecution
witnesses who have been examined have turned hostile except
PW1 and PW2 and even recovery made from the jewelry shop
and witness also says that police came and showed the accused
and they have drawn the mahazar and nothing is recovered
from his shop. In the cross-examination also nothing is elicited
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from the mouth of owner of jewelry shop. When such being
the case, the Trial Court ought not to have convicted the
petitioner.
8. Per contra, the learned counsel appearing for the
State would vehemently contend that the very case of the
prosecution is that both accused Nos.1 and 2 came in the
motorcycle and snatched the chain belongs to PW1. The
counsel would vehemently contend that though PW2 says that
for the first time, he had seen the accused before the Court,
evidence of PW1 is clear that immediately when the accused
were apprehended, she was called to the police station and she
identified the accused. Inpsite of answer given by PW1 that
she had seen the accused persons prior to the test
identification parade when she called to the police station itself
is enough to convict the accused also in the complaint also PW1
categorically stated that if accused are apprehended, she can
identify them. Accordingly, she identifies the accused in the
police station when they were apprehended.
9. The counsel for the State also brought to notice of
this Court that PW3 and PW4 speak about conducting of spot
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mahazar where incident was taken place and they have
supported the case of the prosecution. Though PW5 and PW6
have turned hostile, in the cross-examination of PW5, he
categorically admits that mahazar was drawn in the jewelry
shop in terms of Ex.P13 and when suggestion was made that
these accused persons took them to the jewelry shop and given
instructions to stop the vehicle near the jewelry shop, same is
admitted saying that accused only took them to Bhadravathi
and shown the shop where gold articles were pledged and also
the owner of the jewelry shop identified the accused persons
who pledged the gold articles with him and in the cross-
examination except eliciting the answer from their mouth that
they does not know why they have drawn the mahazar, the
evidence of PW5 has not been disputed by the accused. So
also PW6 though turned hostile, similar answers are elicited
from his mouth that accused persons only took them to the
shop where they have pledged the gold articles and also
categorically says that even valuer also brought to the police
station and all of them went to the Bhadravathi and accused
only given signal to stop the vehicle and took them to the
Raghavendra jewelry and shown the shop and also the owner
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of the shop also admitted that accused persons have pledged
the gold articles with him and all these answers elicited from
the mouth of PW5 and PW6 and except with regard to the
contents are not known to them.
10. The other witness i.e., PW11 also turned hostile.
But having considered the evidence of PW11, it is very clear
that he only gave the gold articles which was pledged with him.
Hence, in view of the evidence of PW5, PW6 and PW11 even
though they turned hostile, the Court has to take note of the
said fact into consideration and the material clearly discloses
that this petitioner was identified by the PW1 and First
Appellate Court while acquitting accused No.2 given benefit of
doubt since there was no proper identification hence, this Court
cannot exercise the revisional jurisdiction. The counsel also
would vehemently contend that the scope of revision is very
limited. If evidence considered by the Trial Court is not legal
and if there is any perversity and orders suffers from its legality
and correctness, then only this Court exercise the revision
petition.
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11. Having heard the learned counsel appearing for the
respective parties and on perusal of the material available on
record, the points that would arise for consideration of this are:
1. Whether the Trial Court and the First Appellate
Court committed an error in convicting and
sentencing this petitioner for the offence
punishable under Section 392 of IPC and the
sentence commensurate with the charges
leveled against the petitioner and whether it
requires interference of this Court by exercising
the revisional jurisdiction?
2. What order?
12. Having heard the learned counsel appearing for the
respective parties and on perusal of the material available on
record, it discloses that it is the case of the prosecution that on
07.07.2024 at about 8.00 p.m., when PW1 was returning from
the temple at that time, accused Nos.1 and 2 came in the
motorcycle and snatched the golden chain and when she hold
the chain tightly, the pillion rider was able to get half portion of
the chain and they escaped from the spot. No doubt, there is a
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delay of one day in lodging the complaint but she categorically
says that she went to the police station but did not gave the
complaint and on arrival of her husband, on the next day,
lodged the complaint.
13. The main contention of the counsel for the
petitioner that test identification parade was conducted
subsequently and also with regard to the test identification
parade is concerned, she categorically admits that before
conducting test identification parade, she had seen the accused
in the police station itself and hence, her evidence cannot be
relied upon. If any such answer is elicited from the mouth of
the witness, but the fact is that when accused were
apprehended, PW1 was called upon to the police station to
identify the accused persons and accordingly, she went to the
police station and identifies the accused persons. It is
important to note that in the complaint itself she categorically
says that accused persons came in the motorcycle and she can
identified those two boys who came and snatched the chain.
When such averment is made in the complaint, accordingly, she
went and identified the accused in the police station and hence,
even there was no need to conduct test identification parade
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when PW1 already identified the accused but test identification
parade is conducted and no value could be attached to the test
identification parade. Hence, there is a force with regard to the
submission of the counsel. But the fact is that PW1 who
identified the accused before the Court as well as before the
police station stating that this petitioner and other accused
came in the motorcycle and snatched her chain and the very
answer elicited from the mouth of PW1 which has been
extracted in the revision petition in the ground, same will not
make any difference at all since PW1 categorically says that
prior to test identification parade, she already went and
identified the accused in the police station itself.
14. Other contention of the counsel for the petitioner
that recovery has not been proved. But the fact that when the
mahazar is conducted, PW3 and PW4 were present and their
evidence is not discredited by the accused. However, main
contention of the petitioner that PW5 and PW6 have turned
hostile and answer elicited from their mouth in the cross-
examination that whether accused persons were fair or not has
not been spoken specifically but it is elicited from the mouth of
PW5 and PW6 is similar with regard to the fact that accused
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only led the panch witnesses as well as IO to the shop of PW11
and PW11 also admitted that accused gave the chain and same
was mentioned in the mahazar in terms of Ex.P13. When such
answer elicited from the mouth of PW5 and PW6 treating them
as hostile, accused counsel not disputed the same during the
course of examination except suggestion made to Ex.P13 and
the prosecution evidence has not been discarded with regard to
PW5 and PW6 is concerned. No doubt, PW11 who is the owner
of the jewelry shop has turned hostile and the very evidence of
PW5 and PW6 who are the independent witnesses who went
along with the police and accused to the shop of PW11 they
categorically deposed that accused persons only led them to
the jewelry shop and accused were identified by the owner of
the shop and also informed the police that they came and
pledged the gold chain and mahazar was drawn regarding
seizure is concerned. When such material is available on
record, very contention of the counsel for the petitioner that
evidence of PW5 and PW6 cannot be relied upon is not
accepted.
15. No doubt, the learned counsel for the petitioner
brought to notice of this Court that PW2 says that CW1 only
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took him and showed the accused when they were in other
Court and same cannot be a ground to extend the benefit in
favour of the petitioner when PW1 identified the accused and
also given evidence that she went and identified the accused in
the police station. Having considered the evidence of PW1
which coupled with the evidence of PW5 and PW6 and also IO
who took this petitioner to the shop of PW11 and recovery is
made. The very contention that recovery also doubtful and the
counsel contend that when the benefit of doubt extended in
favour of accused No.2 and this petitioner also may be
extended benefit of doubt. The said contention also cannot be
accepted since there is a positive evidence with regard to
identification of accused No.2 is concerned when PW1
categorically identified this petitioner and recovery is also made
at the instance of this petitioner and though PW5, PW6 and
PW11 turned hostile and even hostile evidence cannot be
discarded in toto when incriminating evidence elicited from the
mouth of PW5 and PW6 treating them as hostile and the entire
portion of the evidence cannot be discarded when portion which
was supported in favour of the prosecution also can be looked
into even in a case of hostile witness. Hence, I do not find any
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error committed by both the Courts in appreciating both oral
and documentary evidence placed on record. The scope of
revision is very limited and only when the order suffers from its
legality and correctness, this Court can exercise the revisional
jurisdiction. Hence, I do not find any error on the part of both
the Courts in appreciating the evidence available on record.
16. However, taking into note of the sentence of two
years, the counsel for the State would contend that there is no
criminal antecedents of similar offences committed by the
petitioner herein. When such submission is made and also
when there is no material to the fact that he is an habitual
offendor, when offence invoked is Section 392 of IPC and when
there is no criminal antecedents, it is appropriate to reduce the
sentence for a period from two years to one year enhancing the
fine amount from Rs.10,000/- to Rs.20,000/- instead of
confirming the imprisonment of two years. Hence, I answer the
above point as partly in the affirmative.
Point No.2
17. In view of the discussions made above, I pass the
following:
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ORDER
The revision petition is allowed in part.
The sentence ordered by the Trial Court in
C.C.No.48/2015 is reduced to one year enhancing the fine
amount to Rs.20,000/- against Rs.10,000/-. Out of the said
fine amount of Rs.20,000/-, Rs.15,000/- is ordered to be paid
to PW1 on proper identification and Rs.5,000/- shall vest with
the State.
Sd/-
(H.P.SANDESH)
JUDGE
ST/SN
