In a criminal revision against convictions for theft and possession of stolen property, the High Court found the conviction sustainable but altered consecutive sentences to concurrent terms due to the lapse of time, granting set-off.
Sentence of consecutive imprisonment altered to concurrent; set-off under Section 428 CrPC granted.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 14TH DAY OF NOVEMBER 2018
BEFORE
THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL. R. P. NO.554 OF 2011
BETWEEN:
M. CHINNAPPA S/O LATE NEELAMMA AGED 28 YEARS, RESIDING AT HANSI VILLAGE, HAGARI BOMMANAHALLI TQ, BELLARY DISTRICT. (NOW DURESS AT CENTRAL PRISON AT BELLARY)
…PETITIONER
(BY SRI. T. HANUMAREDDY, ADV.)
AND:
STATE OF KARNATAKA BY H.B. HALLI POLICE STATION REP. BY SPP, HIGH COURT BUILDINGS, BANGALORE-01.
…RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
THIS CRL.R.P. IS FILED UNDER SECTION 397(ii) CR.P.C. BY THE ADVOCATE FOR THE PETTIIONER PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET-ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE RENDERED IN CC NO.88/98 DATED 24.03.2001 AND
2
CONFIRMED BY THE APPELLATE COURT IN CRL.A. NO.22/2001 DATED 11.08.2005 RESPECTIVELY AND ACQUIT THE PETITIONER FROM BOTH THE CHARGES IN CC NO.88/98 DATED 24.03.2001 AND CRL.A. NO.22/2001 DATED 11.08.2005 RESPECTIVELY.
THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, THIS COURT MADE THE FOLLOWING:
ORDER
The petitioner/accused No.1 has filed this revision petition against the concurrent findings of the Courts below, wherein, the Trial Court convicted him along with two other accused for the offence punishable under Sections 380 and 454 of IPC and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- each, in default to pay fine, to undergo further rigorous imprisonment for two months for the offence punishable under Section 380 of IPC and further, sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- each, in default to pay the fine, to undergo rigorous imprisonment for two months for the offence punishable under Section 454 of
3
IPC. The Trial Court ordered that both the sentences shall run consecutively.
4
the son of the complainant had fell down from the top and sustained injuries to head etc. and he is in the hostel room. This was informed to the complainant and others by PW-4. On 22.3.1996, at about 8.00 a.m., the complainant, his wife and another son went to Sandur after locking the doors of the house to enquire the hostel Superintendent. However, they found that the son of the complainant was hale and healthy. They also came to know that no such phone call was made from the hostel. When the complainant and others returned home at about 8.00 p.m., they found that the house of the complainant was burgled and a number of valuables were stolen. A complaint was lodged to that effect and a case was registered against unknown persons.
5
and after completion of investigation, charge sheet came to be filed.
the trial Court convicted accused Nos.1 to 3 and passed the sentences as noted above. The appellate Court after re-appreciating the evidence and material on record, acquitted accused No.3 and confirmed the conviction and sentence passed by the trial court against accused Nos.1 and 2.
6
means, the articles were shown to PW-1 on 24.03.1996, whereas, the mahazar is drawn recovering the stolen articles from the accused on 28.03.1996 as per Ex.P-3. He would further submit that according to PW-6-Panch witness, it is the police who have taken the panchas to the house of the accused and showed the recovery. Hence, he submitted that the recovery is not proved. He further submitted that the evidence of PW-8-Fingerprint Expert also cannot be accepted. Accordingly, he submits that the Courts below have erroneously convicted the accused without sufficient material on record and therefore, seeks to set aside the judgment and order of conviction and sentence passed by the Courts below.
7
establish the recovery made at the instance of accused No.1. The evidence of Fingerprint Expert also supports the prosecution case. He further submitted that the revision preferred by accused No.2 against the impugned judgment and order of conviction and sentence has already been dismissed by this Hon’ble Court. Accordingly, he seeks to dismiss the revision petition.
8
not mentioned the date on which the stolen articles got seized from the accused. The same is also not elicited by the defence in the cross-examination of PW-1. Merely because PW-1 has stated that on the next day morning, CPI and PSI have shown half of the items and he identified those golden articles, would not mean that the said articles were shown prior to drawing up of mahazar Ex.P-3.
9
deposed in his evidence that the golden items were seized by the police from the possession of accused No.1. PW-6 has identified those golden ornaments. He has also identified the panchanama at Ex.P-3.
the report as per Ex.P-7. He has deposed that the foot print of surface lifted and compared with one suspected right foot print of one Chinna @ Channa (accused No.1), is identical.
10
01.07.2009. While passing the judgment, the following observations were also made:
“ 3. In view of concurrent findings recorded by the trial court and I Appellate Court, it is necessary to refer to judgment of Supreme Court reported in AIR 1999 S.C. 981 , wherein the Supreme Court has held:
“ In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any findings, sentence or order. But the said revisional power cannot be equated with the power of an Appellate Court nor can it be treated even as a second Appellate Jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal.”
judgment and order passed by the trial Court as well as the appellate Court, I find no illegality in the said
11
judgment, convicting the accused/petitioner for the offences punishable under Sections 380 and 454 of the Indian Penal Code. There are no justifiable grounds to interfere with the impugned judgment in this revision petition.
the trial Court has ordered that both the sentences shall run consecutively. Considering that the incident is of the year 1996 and there is a long lapse of time and also considering that there are no other criminal background against the petitioner herein, I am of the view that the sentence imposed by the trial Court ordering that “both the sentences shall run consecutively” which is confirmed by the appellate Court needs to be altered and accordingly, I pass the following order:
The Criminal Revision Petition filed by the accused/petitioner is hereby dismissed. The sentences imposed against the petitioner for the offences punishable
12
under Section 380 and 454 of IPC shall run concurrently. The petitioner is entitled for set off under Section 428 of the Code of Criminal Procedure.
Sd/JUDGE
JTR/Kmv
3 issues framed by the court
Whether the trial court's concurrent findings of guilt and sentence in theft and possession of stolen property cases warrant interference in revision.
Whether the sentence of consecutive imprisonment imposed by the trial court necessitates alteration due to the lapse of time.
Whether the relief of set-off under Section 428 of CrPC should be granted to the petitioner.
Colour shows how this judgement treated each authority
AIR 1999 S.C. 981Explained¶51
3 provisions across 2 enactments
M. CHINNAPPA S/O LATE NEELAMMA
STATE OF KARNATAKA
MOHAMMAD NAWAZ
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
