Partly allowed

Mr Shabarish @ Dolu v. the State of Karnataka

Karnataka HC20 Nov 2020CRL.RP/532/2011

Case brief

AI extract

What is this about?

In this criminal revision petition, the High Court examined the conviction and sentencing of two young men for theft and house breaking. While confirming the conviction based on recovery of stolen goods, the Court reduced the imprisonment term to the period already undergone by the petitioners, considering their age and the delay in proceedings.

What did the court decide?

Petition partly allowed; conviction confirmed but imprisonment reduced to period already undergone; fine confirmed.

Mr Shabarish @ Dolu Vs the State of… — Pension and Retirement Benefits | Karnataka HC (2020)

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Crl.R.P.No.532/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF NOVEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.532/2011

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BETWEEN :

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MR.SHABARISH @ DOLU, S/O. MUNIVENKATAPPA, AGED ABOUT 19 YEARS, RESIDING AT 4^TH CROSS, KARANJI KATTE, KOLAR - 563 101.

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MR.SHOHAIB @ BABA @ CHEANGOLIA, S/O.MOHAMMED SHARIFF, AGED ABOUT 19 YEARS, RESIDING AT 1^ST CROSS, NYAMATH BEE DARGA, KOLAR - 563 101. … PETITIONERS

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[BY SRI.S.VISWESWARAIAH, ADVOCATE ]

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AND :

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THE STATE OF KARNATAKA REP. BY SUB-INSPECTOR OF POLICE, TOWN POLICE STATION, KOLAR – 563 101.

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… RESPONDENT

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[BY SRI.H.R.SHOWRI, HCGP ]

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Crl.R.P.No.532/2011

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 01.03.2010 IN C.C. NO.478/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN.) AND CJM, KOLAR AND THE ORDER DATED 07.02.2011 IN CRL. A. NO.8/2010 ON THE FILE OF THE I-ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

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ORDER

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“Whether the impugned orders of conviction and sentence passed against the petitioners/accused for the offences punishable under Sections 457 and 380 of IPC suffer illegality, impropriety and incorrectness?” is the question involved in this case.

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The petitioners were prosecuted in C.C. No. 478/2009 on the file of the Principal Civil Judge (Sr.Dn.) and CJM, Kolar, for the offences punishable under Sections 457 and 380 of IPC, on the basis of the charge sheet filed by the Kolar Town Police in Crime No.59/2009 of their police station. The said case was registered against the petitioners on the basis of the complaint as per Ex.P2 filed by PW.3-Shankar.

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Crl.R.P.No.532/2011

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The case of the prosecution in brief was as

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follows:-

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i) PW 3 filed complaint Ex.P2 alleging that on the intervening night of 30/31.08.2009, some miscreants broke open his DVD mobile shop situated at Brahmins’ Street, Kolar Town and committed theft of five DVD players, three mobiles, one Reliance Mobile Handset, two Nokia-1100 Mobile Handsets, four Prex Branch Home Theater worth Rs.21,500/-.

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ii) PW.8-Mohan, the PSI of Kolar Town Police Station on receiving the complaint registered the First Information Report as per Ex.P7 and deputed PW.7Narayanaswamy and PC No.717 for tracing the accused and stolen property in the case.

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iii) On receiving the complaint, PW.8 drew spot mahazar-Ex.P1 in the presence of PW.1-Gopal and PW.6Ganesh.

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iv) When PW7 and PC No.717 were searching the culprits and properties, on 09.09.2009 at 5.00 p.m. on

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Crl.R.P.No.532/2011

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credible information traced the petitioners in Kamala Mahadi School, apprehended them and produced them before PW.8-PSI with the report-Ex.P6.

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v) PW.8-PSI arrested the petitioners and subjected them to interrogation. During such interrogation, the petitioners volunteered to produce the stolen properties as per their voluntary statements (Exs.P8 & P9)

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vi) Then petitioners led PW.8 and mahazar witnesses to the shop of PW.5-Amzath and produced MO Nos. 1 to 6 and PW.5 revealed that the petitioners have sold MO Nos.1 to 6 to him. MO Nos. 1 to 6 were recovered under mahazar-Ex.P3;

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vii) During investigation PW.3 identified the properties viz., MO Nos. 1 to 6. On completing the investigation, PW.8 charge-sheeted the petitioners.

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Since the petitioners denied the accusation against them, the trial Court tried them in C.C. No.478/2009. On completing the trial and on examination of the accused under Section 313 of Cr.P.C., and on hearing the parties, by the impugned judgment and order

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Crl.R.P.No.532/2011

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the trial Court convicted the petitioners for the offences punishable under Sections 457 and 380 of IPC and sentenced them to Simple Imprisonment of three years and fine of Rs.3,000/- for each of the offences. Further, in default to pay the fine amount, the trial Court directed them to undergo Simple Imprisonment for two years.

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The petitioners challenged the said judgment and order of conviction and sentence before the I Additional Sessions Judge, Kolar in Criminal Appeal No.8/2010. The First Appellate Court on hearing the parties, by the impugned Judgment and order, confirmed the order of conviction passed by the trial Court. However, the First Appellate Court modified the order of sentence reducing the sentence of imprisonment from 3 years to 2 years and the default sentence from 2 years to 3 months, and confirmed the sentence of fine amount.

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Both the Trial Court and the First Appellate

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Court based the conviction and sentence on the following grounds:-

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Crl.R.P.No.532/2011

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i) The case of the prosecution was proved by the evidence of PW.3 the victim/complainant and PW.2 the assistant of the complainant in the shop.

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ii) The theft of the materials was proved by the evidence of PW.5-Azmath, the receiver of the stolen property and the seizure mahazar - Ex.P3.

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iii) The evidence of PWs.2, 3 & 5 was corroborated by the official witnesses.

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Sri. S. Visweswaraiah, learned counsel for the

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petitioners seeks to assail the impugned order of conviction and sentence on the following grounds:-

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i) The spot-mahazar witness did not support the spot mahazar proceedings.

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ii) PW.4-Muniyappa, the seizure mahazar witness did not support the proceedings under Ex.P3.

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iii) PW.5-Azmath, the receiver of the stolen property did not support the case of the prosecution.

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iv) PW.2-Venkataram and PW.3-Shankar were interested witnesses.

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Crl.R.P.No.532/2011

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v) The impugned order of conviction suffers perversity.

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Per contra, Sri. H.R. Showri, learned HCGP

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seeks to support the impugned order of conviction and sentence on the following grounds:-

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i) The act of breaking open of the shop and commission of theft was proved by the evidence of PW.2 and PW.3.

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ii) Theft of the property by the petitioners was proved by the evidence of PW5, the receiver of the stolen property.

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iii) The seizure mahazar witness-PW.4-Muniyappa and seizure mahazar – Ex.P3 was not impeached.

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iv) There was no reason for PW.3-Shankar and the police witnesses to falsely implicate the petitioners in the case.

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v) There is no perversity in the impugned order.

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This being the revision petition under Section

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397 of Cr.P.C. against the concurrent findings of the

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Courts below on appreciation of the evidence, unless it is

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Crl.R.P.No.532/2011

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shown that the impugned orders of conviction and sentence suffer perversity, glaring illegality or impropriety, they cannot be interfered by this Court.

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To prove the charge brought against the petitioners, the prosecution was expected to prove the following facts:

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i) There was house breaking and theft in the shop of PW3;

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ii) The petitioners were the thieves.

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There were no direct witnesses to the crime. The case of the prosecution was based on the evidence of PWs.2 and 3, who are the witnesses to the shop breaking and theft. The petitioners were connected to the crime on the circumstances of recovery of the stolen property.

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PW.2 and PW.3 in their evidence deposed that, PW.3 was running an electronic goods shop in Kolar Town and during the intervening night of 30/31.08.2009, somebody broke the lock of the rolling shutter of the shop and committed theft of the articles shown in the complaint. In the cross-examination of these two witnesses, the fact

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Crl.R.P.No.532/2011

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of PW.3 running the shop and breaking open the lock of rolling shutter of the shop and commission of theft of the items, were not disputed. It was only suggested that they are deposing falsely at the behest of the police, which they denied.

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The evidence of PW.2 and PW.3 was corroborated by the fact that, soon after the incident, PW.3 filed a complaint as per Ex.P2 before PW.8-PSI and on that basis, a First Information Report (Ex.P7) was registered on 31.08.2009 at 9.00 a.m.. The endorsement of the learned Magistrate on Ex.P7 shows that the FIR was delivered to the Court on the same day at about 10.45 am. Under such circumstances, there was no reason for the trial Court to disbelieve the evidence of PW.2, PW.3 and PW.8 that, there was breaking of the lock of the rolling shutters of the shop and committal of theft in the shop of PW.3.

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Next question was “ whether the petitioners

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were the culprits ?’’. The prosecution tried to connect the petitioners to the crime on the basis of their voluntary statement (Ex.P8 & Ex.P9) and recovery mahazar Ex.P3

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and the evidence of PW.5-Azmath the receiver of the stolen property.

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According to the prosecution, the petitioners had sold MO Nos. 1 to 6 to PW.5-Azmath and at their instance, the said articles were recovered from PW.5, regarding which the mahazar- Ex.P3 was drawn. PW.8PSI, states that on registering the FIR, he deputed PW.7 and PC No.717 for tracing the stolen property and culprits and the officials so deputed apprehended the petitioners on 09.09.2009 and produced them before him at about 5.00 p.m. In the cross-examination of PW.8, the fact of PW.7 apprehending the accused and producing them before him was not disputed.

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Further, PW.5-Azmath though partially did not support the case of the prosecution, admitted in his evidence that the accused had delivered MOs. 1 to 3, the stolen DVDs to him and the police recovered them. But, he denied recovery of MOs. 4 to 6 (mobile phones). In his cross-examination, his evidence regarding recovery of MOs. 1 to 3 at the instance of the accused was not

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impeached. The said evidence was further corroborated by the evidence of PW8 the Investigating Officer. Under such circumstances, though PW.4 the seizure mahazar witness did not support the prosecution case, the Courts below rightly relied on the evidence of PW.5 & PW.8, who had no enmity against the petitioners.

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Neither in their examination under Section 313 of Cr.P.C. nor in the cross-examination of the prosecution witnesses the petitioners explained how they came in possession of MOs. 1 to 3, the stolen properties. Under such circumstances, the Courts below rightly inferred that the petitioners came in possession of those properties by way of house breaking and theft. This Court does not find any perversity, illegality or incorrectness in the order of conviction passed by the Courts below.

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So far as the sentence of imprisonment, learned counsel for the petitioners submits that, the petitioners have faced the proceedings since more than 10 years and they have already undergone detention for five (5) months and ten (10) days, and having regard to their

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age, the order of sentence may be reduced to the period of detention already undergone by them.

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Sri H.R.Showri, learned HCGP on instructions submits that, in C.C.Nos.730/2010 and 731/2010 referred to in the First Appellate Court’s judgment, on trial petitioner No.2 was acquitted on 15.11.2011. He further submits that since petitioner No.1 could not be secured in C.C.Nos.730/2010 and 731/2010, split up cases against him were registered in C.C.Nos.446/2011 and 445/2011 respectively and petitioner No.1 was acquitted on those cases on 16.04.2012.

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Admittedly, in C.C.No.375/2010 to which the

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First Appellate Court refers to in its judgment, the petitioners/accused were tried and acquitted on 21.11.2012. As on the date of the commission of the offence, as per the charge sheet records, the petitioners were aged hardly 19 years. They have faced these proceedings since past 11 years. They have already underwent the detention from 10.09.2009 to 20.02.2010 i.e., for five months ten days.

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Crl.R.P.No.532/2011

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Having regard to that, the interest of justice

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will be met by confining the sentence to the period of

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detention already undergone by the petitioners. Therefore, the petition is partly allowed.

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The impugned order of conviction of the petitioners for the offences punishable under Sections 457 and 380 of IPC is confirmed.

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The impugned order of sentence of imprisonment passed by the First Appellate Court is confined to the period of detention already undergone by the petitioners. The order of sentence of fine is confirmed.

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Sd/JUDGE

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KGR/KG

Mr Shabarish @ Dolu v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Mr Shabarish @ Dolu v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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