Karnataka High Court
Sanket S/O Rama Naik vs The State Of Karnataka on 19 March, 2025
Author: V.Srishananda
Bench: V.Srishananda
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NC: 2025:KHC-D:5076
CRL.RP No. 100134 of 2023
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
CRIMINAL REVISION PETITION NO.100134 OF 2023
(397(CR.PC)/438(BNSS))
BETWEEN:
1. SANKET S/O. RAMA NAIK,
AGE: 26 YEARS, OCC. HOTEL WORK/ AGRICULTURE,
R/O. KANGOD, TQ. SIDDAPURA,
DIST. UTTARA KANNADA, PIN CODE: 581355.
2. SHANTHOSH S/O. RAMESH NAIK,
AGE: 26 YEARS, OCC. HOTEL WORK/AGRICULTURE,
R/O. KANGOD, TQ. SIDDAPURA,
DIST. UTTARA KANNADA, PIN CODE: 581355.
...PETITIONERS
(BY SRI LAXMESH P. MUTAGUPPE, ADVOCATE)
AND:
Digitally
signed by V THE STATE OF KARNATAKA
N BADIGER
VN
Date:
BY STATE PUBLIC PROSECUTOR,
BADIGER 2025.03.29
11:51:58
HIGH COURT OF DHARWAD, DHARWAD-580022.
+0530 THROUGH SIDDAPURA P.S.,
TQ. SIDDAPURA, DIST. UTTARA KANNADA-581355.
...RESPONDENT
(BY SRI PRAVEENA Y. DEVAREDDIYAVARA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397
R/W. 401 OF CR.P.C. SEEKING TO SETTING ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED 21.12.2022 IN
CRL.A NO. 5012/2022 PASSED BY THE I ADDL. DISTRICT AND
SESSIONS JUDGE, U.K. KARWAR, SITTING AT SIRSI CONFIRMING
THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED
07.01.2022 PASSED BY THE CIVIL JUDGE AND J.M.F.C. SIDDAPURA
IN C.C.NO. 122/2018 IN RESPECT OF OFFENCE P/U/SECTIONS 457,
380 OF IPC AND THE PETITIONERS/ACCUSED NO.2 AND 3 MAY BE
ACQUITTED BY ALLOWING THIS REVISION PETITION.
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CRL.RP No. 100134 of 2023
THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri Laxmesh P. Mataguppe, learned counsel for
revision petitioners and Sri Praveena Y. Devareddiyavara,
learned High Court Government Pleader for respondent.
2. Accused Nos.2 and 3, who suffered an order of
conviction in C.C. No.122/2018 for the offence punishable
under Sections 457 and 380 of Indian Penal Code, (for
short, 'IPC') which got confirmed in Crl.A.No.5012/2022,
are the revision petitioners.
3. Facts in the nutshell which are utmost
necessary for the disposal of the revision petition are as
under:
A complaint came to be lodged with Siddapur Police
Station on 22.11.2017 stating that on 23.11.2017 about
1:00 a.m. in Shiralagi High School within the jurisdiction of
Siddhapura Police Station, there was a theft of two Indane
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Gas Company cylinders worth Rs.6,000/-. Police after
investigation, filed charge sheet against the revision
petitioner and other accused persons. Six cylinders were
recovered from the custody of the accused No.1, which
was showed in a shed. Based on the recovery made by the
police and voluntary statement of the accused No.1
coupled with other material on record, charge sheet came
to be filed.
4. Learned Trial Magistrate took cognizance and
after due trial, revision petitioner was convicted for the
offence punishable under Sections 457 and 380 of IPC.
Recovery of the stolen cylinders from three different
places of which two cylinders belonging to the
complainant-school is the factum that weighed the learned
Trial Judge to record an order of conviction taking note of
the fact that there was no explanation offered by the
accused persons.
5. Thereafter, Trial Judge imposed sentence as
under:
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"The accused persons are found guilty for
the offences punishable under Sec 457 and
380 of Indian Penal Code.
Acting U/Sec. 248(2) of code of criminal
procedure the accused persons are convicted
for the offences Punishable U/Section 457
and 380 of Indian Penal Code.
Accused persons are sentenced to under go
simple imprisonment for the terms 2 years for
the offence punishable U/sec. 457 of I P C
and pay a fine of Rs.3,000/- each in default of
payment of fine accused persons shall under
go simple imprisonment of 3 months.
Further Accused persons are sentenced to
under go simple imprisonment for the terms
2 years for the offence punishable U/sec. 380
of I P C and pay a fine of Rs.3,000/- each in
default of payment of fine accused persons
shall under go simple imprisonment of 3
months.
The sentence imposed as above shall run
concurrently.
Property seized under P.F.No.72/2017
which is registered under P.R.No16/2018
Item No. 1 Motorcycle interim order passed
by this court on 1-1-2018 made absolute and
Item No.2 is being worthless order to be
destroy after expiry of appeal period.
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Property seized under P.F.No.73/2017,
which is registered under P.R.No.16/2018
Item No. 3 interim order passed by this
court on 14-2-2018 made absolute."
6. Being aggrieved by the same, accused filed an
appeal before the District Court in Crl.A.No.5012/2022
along with accused No.3.
7. Learned Judge in the First Appellate Court after
securing the records and hearing the parties in detail,
dismissed the appeal of the accused and confirmed the
order of conviction and sentence passed by the learned
Trial Judge.
8. Being further aggrieved by the same, accused
Nos.2 and 3 are before this Court in this revision petition.
9. Sri Laxmesh P. Mataguppe, learned counsel for
revision petitioners reiterating the grounds urged in the
revision petition vehemently contended that solely on the
basis of the voluntary statement given by the accused
No.1, present petitioners have been falsely implicated in
the incident and therefore, order of conviction recorded by
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the Trial Magistrate confirmed by the First Appellate Court
suffers from legal infirmities and perversity and thus
sought for allowing the revision petition.
10. He would further contend that recovery of the
cylinders is also from the place which was in the exclusive
control of accused No.1. Therefore, no offence is made
out as against the present petitioners and sought for
allowing the present petition.
11. Alternatively, Sri Laxmesh would contend that
in the event this Court upholding the order of conviction,
may consider the fact that the present petitioners are first
time offenders and therefore, the custody period from
24.11.2017 to 05.12.2017 may be treated as period of
imprisonment by enhancing the fine amount reasonably.
12. Per contra, Sri Praveena Y. Devareddiyavara,
learned High Court Government Pleader for respondent
supports the impugned judgments.
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13. He would further contend that in a matter of
this nature, recovery of the stolen articles from one
accused would be sufficient enough to maintain the order
of conviction against all accused persons especially
material placed on record would indicate that but for the
active assistance of the petitioners herein the act of theft
could not have been committed.
14. He would further contend that the no
explanation is offered by the accused persons at the time
of recording of accused statement. Therefore, the learned
Trial Judge was justified in recording an order of conviction
based on the material on record and sought for dismissal
of the revision petition.
15. He would also contend that to people like
revision petitioners are if shown mercy, similarly placed
perpetrators of the crime would get encouraged and may
indulge in such repeated offences and therefore, sought
for dismissal of the revision petition in toto.
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16. Having heard the arguments of both the sides
in detail, this Court perused the material on record
meticulously.
17. On such perusal of the material on record,
following points would arise for consideration:
1) Whether the accused-revision petitioners make out a
case that the impugned judgments are suffering from
legal infirmity and perversity and patent factual error
and thus calls for interference?
2) Whether the sentence needs modification?
3) What order?
Regarding points No.1 and 2:
18. In the case on hand, recovery of the stolen
cylinders stands established by placing cogent evidence on
record. Six cylinders were recovered from a shed wherein
it was hidden and was in exclusive control of accused
No.1. No doubt, the owner of the shed has turned partly
hostile to the case of the prosecution. But other material
evidence placed on record including the photographs
would go to show that six cylinders were recovered from
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the shed. Voluntary statement of the accused No.1 led to
recovery of six stole cylinders.
19. Therefore, Investigation Agency filed charge
sheet not only against the first accused but also against
the revision petitioners based on his statement. Voluntary
statements of present petitioners were also recorded after
their arrest. Motorbike which was used in the incident is
also sized by the Investigating Agency. Absolutely there
was no contra material placed on record on behalf of the
accused at the time recording accused statement with
regard to the recovery of stolen cylinders.
20. It is pertinent to note that cylinders belonging
to Indane Gas Company and other companies, is not a
freely available commodity in the society.
21. In the absence of any previous enmity or
animosity why would the investigate agency implant six
cylinders only to foist a case against the petitioners is a
question that remains unanswered.
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22. Material evidence placed on record would go to
show that the complainant-school lost two cylinders in the
month of November, 2017. The complaint came to be
registered only on 22.02.2018; that is after the cylinders
were traced and based on the voluntary statement given
by the accused.
23. The recovery having been proved and stolen
articles have been recovered, is a significant factor in a
matter of this nature where offences under Sections 457
and 380 of IPC are alleged.
24. Therefore, the material evidence on record has
been rightly appreciated by the learned Trial Judge while
recording an order of conviction of the petitioners along
with accused No.1 for the offences punishable under
Sections 457 and 380 of IPC.
25. Admittedly, the learned Judge in the First
Appellate Court in the light of the grounds urged by the
revision petitioners re-appreciated the material evidence
on record and by supplementing the additional reasons to
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maintain the conviction, dismissed the appeal of the
accused.
26. Oral testimony of PW-5 wherein identification of
the accused has been discussed by the learned Judge in
the First Appellate Court so also oral evidence of PW-6
have been taken note of by the learned Judge in the First
Appellate Court while upholding the order of conviction.
Evidence of mahazar witnesses was also discussed by the
learned Judge in the First Appellate Court so also oral
testimony of PW-3 and 4 has been noted by the learned
Judge in the First Appellate Court while upholding the
order of conviction.
27. Having regard to the limited revisional
jurisdiction, this Court cannot revisit into the factual
aspects of the matter to offset the finding recorded by
both the Courts with sound and logical reasons.
28. Therefore, conviction of the revision petitioners
for the offence punishable under Sections 457 and 380 of
IPC needs to be maintained in this revision as well.
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29. However, there is some force in the argument
put forth on behalf of the revision petitioners that they are
first time offenders and there are no criminal antecedents.
Under such circumstances, the Trial Court ought to have
taken note of beneficial provisions of Probation of
Offenders Act.
30. Unfortunately, such a course has not been
adopted by both the Courts in the impugned judgments.
Therefore, taking note of the fact that accused persons
were in custody from 24.11.2017 to 05.12.2017, directing
the said period as the period of imprisonment for the
aforesaid offences by enhancing the fine amount in a sum
of Rs.40,000/- payable by each of the accused would meet
the ends of justice. Accordingly, points No.1 and 2 are
answered in negative and partly affirmative.
Regarding point No.3 :
31. In view of the findings of this Court on points
No.1 and 2, as above, following order is passed.
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ORDER
(i) Criminal Revision Petition is allowed in part.
(ii) While maintaining the conviction of the
accused for the offences punishable under
Sections 457 and 380 of IPC, custody period
of already undergone by the revision
petitioners is treated as period of
imprisonment by enhancing the fine amount
in a sum of Rs.40,000/- payable by each of
the accused in two equal installments, one on
30.04.2025 and second on 15.05.2025.
(iii) Failure to pay the enhanced fine amount
would automatically result in restoration of
the sentence of imprisonment as ordered by
the Trial Magistrate confirmed by the First
Appellate Court.
Office is directed to return the Trial Court records with
copy of this order for issuing the modified conviction order.
SD/-
(V.SRISHANANDA)
JUDGE
NAA
CT:PA
