Partly allowed

M Kalegowda @ Kala v. the State of Karnataka

Karnataka HC30 Mar 2021CRL.RP/3/2012

Case brief

AI extract

What is this about?

The High Court held that the first appellate court lacked jurisdiction to enhance the accused's sentence during an appeal filed only by the accused. It reduced the imprisonment term to the trial court's sentence of one year six months while maintaining conviction.

What did the court decide?

Conviction maintained, sentence enhanced back to one year six months simple imprisonment as per trial court, records sent back to trial court.

M Kalegowda @ Kala Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30^TH DAY OF MARCH, 2021

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BEFORE

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THE HON'BLE MR. JUSTICE V. SRISHANANDA

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CRIMINAL REVISION PETITION NO.3/2012

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BETWEEN:

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M. KALEGOWDA @ KALA, S/O. KALA, AGED ABOUT 42 YEARS, R/O. NO.175, GOMALA, B.M. SREE NAGARA, MYSORE.

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VIJI @ RAFFIQ

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S/O. KRISHNAIAH, AGED ABOUT 42 YEARS, R/O. NO.55, GOMALA, B.M. SREE NAGARA, MYSORE

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VASU

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S/O.MEETINAIKA, AGED ABOUT 34 YEARS, R/O. NO.49, GOMALA, B.M. SREE NAGARA, MYSORE

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FAYAZ S/O. RAFFIQ AGED ABOUT 23 YEARS, R/O. NO.175, GOMALA, B.M. SREE NAGARA, MYSORE

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ANILA S/O.ARMUGAM, AGED ABOUT 23 YEARS, R/O. NO.175, GOMALA, B.M. SREE NAGARA, MYSORE ... PETITIONERS

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(BY SRI.SYED AKBAR PASHA, ADV. FOR SRI MAHANTESH S. HOSMATH, ADV.)

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AND:

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THE STATE OF KARNATAKA BY METAGALLI POLICE STATION MYSORE BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE. …RESPONDENT

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(BY SRI.K. NAGESHWARAPPA, HCGP.)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 CR.P.C, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF SENTENCE PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-IV, MYSORE IN CRL.A. NO.164/2007, DATED 31.10.2011 AND THE JUDGMENT AND ORDER OF SENTENCE PASSED BY THE JMFC (II COURT), MYSORE, IN CC NO.1037/2005, DATED 25.4.2007.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 12.3.2021, COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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This Revision Petition is by the accused in CC No.1037/2005 having suffered an order of conviction for the offence punishable under Section 379 IPC and sentenced to undergo Rigorous imprisonment for one year six months and a fine of Rs.500/- each which came to be modified by the first appellate court in sentencing the

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accused to undergo simple imprisonment for one year eight months and to pay fine of Rs.500/- each with a default sentence.

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Brief facts which are necessary for disposal of the Revision Petition are as under:

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Upon a complaint lodged by Sri Kempaiah, Assistant Executive Engineer, Irrigation Department, Varuna Nala Sub Division, Metagalli police registered a case in Crime No.106/2005 against unknown persons for the offence punishable under Section 379 read with Section 34 IPC. Thereafter, the police investigated the matter and filed charge sheet against five accused persons (Revision Petitioners herein) for the offence punishable under Section 379 read with 34 IPC.

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Case of the prosecution reveals that on 16.7.2005 within the limits of Metagalli Police Station in the night hours, near Naganahalli, the regulator-cumescape sluices, four gear boxes, gear rod [hereinafter referred to as 'stolen articles' for short] and complete set

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fixed in Varuna nala at 14 Km. was stolen by some unknown persons by separating it from axle blade.

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On 17.7.2005 when the complainant and others were supervising the Varuna nala, they found regulator and other articles have been stolen and water was flowing from the gate. Accordingly, complainant lodged a complaint. Police visited the spot and conducted spot mahazar. On 20.7.2005 at about 7.20 am when police were on patrol duty at Echalaguthi locality, they found three persons suspiciously moving around and they caught hold of them and enquired. Those three persons failed to give proper explanation and as such the police took them to custody and produced them before the investigating officer. Those persons were arrested and they gave voluntary statement and based on their voluntary statements, police visited a place near Echalaguthi which is behind the compound of note printing office of Reserve Bank of India and recovered three brass set, three handles with castron plate, 3 baring rods, 3 gear wheels and one

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supporting handle, 3 gear rods, one rod set, 3 plates, one gear rod are seized under mahazar. In pursuance of further information, police also nabbed accused Nos.4 & 5. Complainant was called to the Police Station where he identified the seized material objects. Thereafter, charge sheet was filed before the jurisdictional mahazar. Learned jurisdictional Magistrate secured the presence of the accused and framed the charge. Since accused pleaded not guilty trial was held. Prosecution in order to bring home the guilt of the accused, examined 11 witnesses as PWs.1 to 11 and relied on 19 documents which were exhibited and marked as Exs.P-1 to P-19 and material objects MOs.1 to 7 were also marked. Thereafter, accused statement was recorded as contemplated under Section 313 Cr.PC., wherein the accused denied all the incriminatory circumstances. Learned jurisdictional Magistrate after hearing the arguments of the parties in detail convicted the accused and passed the following sentence:

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"ORDER

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Accused Nos.1 to 5 are convicted and sentenced to undergo Rigorous imprisonment for one year six months and also sentenced to pay fine of Rs.500/- each. In default of payment of fine, accused shall further undergo Rigorous imprisonment for three months for the offence punishable under Section 379 read with Section 34 IPC.

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Their bail bond shall stand cancelled.

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An interim order with regard to MOs.1 to 7 is made absolute after the appeal period is over. Supply free copy of the judgment to the accused."

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Being aggrieved by the conviction judgment and order of sentence passed by the learned Magistrate accused persons preferred an appeal before Presiding Officer, Fast Track Court-IV, Mysuru, in Criminal Appeal No.164/2007. Learned Judge in the first appellate court after securing the records and hearing the parties, while maintaining the conviction, modified the sentence by passing the following order:

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" ORDER

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The appeal filed under Section 374(3) of Cr.PC. by appellants/Accused Nos.1 to 5 is hereby partly allowed as under:-

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The impugned order of conviction and sentence passed in CC No.1037/2005 dated 23.4.2007 by the JMFC (ii) Court, Mysore, is hereby modified and the appellants/accused No.1 to 5 are hereby convicted for the offence punishable under Section 379 of IPC and they shall undergo SI for one year and eight months and to pay fine of Rs.500/- each in case of default of payment of fine, they shall further undergo SI for three months."

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Being aggrieved by the same, accused persons are in revision before this court. Learned counsel for the Revision Petitioners vehemently contended that both the courts have not properly appreciated the materials on record and wrongly convicted the accused persons. It is his specific case that seizure panchnama and alleged voluntary statements are concocted by the investigating officer in collusion with the complainant and therefore,

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basing on the recovery panchanama, recording an order of conviction is per se illegal.

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He also contended that the materials available on record was hardly sufficient to attract the ingredients of Section 379 IPC and therefore, sought for allowing the Revision Petition.

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He also pointed out that both the courts have totally ignored the admissions obtained in the cross examination and failed to appreciate that the material objects MOs.1 to 7 did not belong to irrigation department. He further contended that the findings recorded by both the courts are settled principles of law and sought for allowing the Revision Petition.

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Per contra, learned High Court Government Pleader supported the impugned judgments and prayed for dismissal of the revision petition. He also argued that the material objects MOs.1 to 7 are not freely available in the open market and as such, at no stretch of imagination one

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can perceive the idea of implanting those material objects and concoct a recovery panchanama.

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He also contended having regard to the nature of offence alleged against the accused persons, the recovery is in pursuance of the voluntary statements, the finding recorded by both the courts are just and proper and prayed for dismissal of the Revision Petition.

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Having heard the arguments of both sides and on perusal of the materials on record, following points would arise for consideration:

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(i) Whether the finding recorded by the learned Magistrate has established the charge against the accused persons for the offence punishable under Section 379 of IPC and confirmed by the first appellate court is suffering from patent defect or error of jurisdiction or illegality?

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(ii) Whether the sentence is just and proper?

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Answer to the above points is in the Negative

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for the following reasons:

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REASONS :

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In the case on hand, PW-1 in the usual inspection found that there was a theft of articles and whereby the gate of Varuna nala got damaged and water was flowing. Immediately, he lodged a complaint before the jurisdictional police. Police after registering the case, were in search of the accused persons who have committed the theft of the stolen articles. While the investigating agency was on patrol duty, on 20.07.2005 they noticed three persons at about 7.00 am., near Echalagutti. Police took them to their custody and on interrogation, they apprehended three persons but they did not offer satisfactory explanation. Thereafter, when further enquiry was conducted, police were convinced that they are the persons who have committed the theft of the stolen articles and as such arrested them. During the course of investigation, apprehended the other accused persons and recorded their voluntary statements. In pursuance of their voluntary statements, police party proceeded to the place where the stolen articles were

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found. Police party recovered the stolen articles under seizure mahazar. One of the Mahazar witnesses is examined as PW-9 who supported the case of the prosecution and identified the signature on seizure mahazar marked at Ex.P2. Police constables who apprehended A1 to A3 have supported the case of the prosecution .

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It is pertinent to note that seizure mahazar witnesses or the police constables did not possess any previous enmity or animosity against the accused persons. More over, the stolen articles which were seized under Ex.P2 Mahazar are not freely available in the market so as to falsely implant in the case on hand and only in order to secure an order of conviction against the accused persons. The stolen articles are parts of a gate installed to control the water flow in the water canal namely Varuna nala. After the articles have been stolen, in order to dispose of the same, those articles were kept in an abandoned/lonely area which was in exclusive knowledge of the accused

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persons and none else. Therefore, by virtue of the voluntary statements, the important element of the case on hand namely discovery of fact as to where the stolen articles were hidden is discovered by the investigating officer. The voluntary statements were given by accused persons after they have been apprehended by police. Therefore, the finding recorded by the Trial Court that prosecution is able to establish direct nexus between the seized stolen articles and the accused persons and connect it to the complaint lodged by PW-1 whereby the offence of theft proved is proper and well reasoned. Further, in an appeal filed by the accused in the absence of Revision by the State, sentence cannot be enhanced.

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First appellate court re-appreciated the entire materials on record and upheld the finding of the learned Magistrate by supplying proper reasons and logic. It is necessary in this regard to rely on two judgments of the Hon'ble Apex Court in the case of (1) Amit Kapoor Vs. Ramesh Chander and another reported in (2012) 9

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SCC 460 and (2) State of Rajasthan vs. Fatehkaran Mehdu reported in (2017) 3 SCC 198 wherein it has been held that -

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"Revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with provisions of law, finding recorded is based on material evidence is ignored or jurisdictional discretion is exercised arbitrarily or perversely."

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In the background of the legal principles enunciated in the above pronouncements of the Hon'ble Apex Court, when the material facts of this case is analysed, in the case on hand, identity of the accused persons and their presence on 26.3.2006 and the incident as alleged by the prosecution stands established.

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As such, this court within the parameters of the revisional jurisdiction as is enunciated in the cases cited supra, whereby, the scope of the revision and principles governing the powers of the revisional court is no longer

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res integra . Hence, in view of the foregoing discussion, the irresistible conclusion that this court can reach is to hold this point in the Negative .

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Regarding point No.2 is concerned, the learned Trial Magistrate after convicting the accused persons for the offence punishable under Section 379 IPC, sentenced the accused persons for one year six months Rigorous imprisonment and ordered fine of Rs.500/each. However, the first appellate court modified the sentence as referred to supra by converting the Rigorous imprisonment into simple imprisonment. However, while so doing, the learned judge in the first appellate court even in the absence of any revision petition by the State seeking enhancement of the sentence, in the appeal filed by the accused, enhanced the period of sentence to one year eight months. What must have weighed in the mind of the first appellate court is that it is Rigorous imprisonment into simple imprisonment and therefore, period needs to be enlarged.

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It is well settled principles of law that in the absence of State seeking enhancement of the sentence, by filing an appropriate appeal or revision as the case may be, in an appeal filed by the accused, the first appellate court does not possess the power to enhance the sentence ordered by the Trial Court unless an opportunity is granted to accused to have his say in the matter of enhancement.

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Applying the legal principles enunciated in the above decision to the case on hand, even though the first appellate court modified the sentence by scaling down the type of sentence from Rigorous imprisonment to simple imprisonment, there was no power for the first appellate court to enhance the period of sentence from one year six months to one year eight months. Therefore, to that extent, in the considered opinion of this court, the impugned judgment of the first appellate court to the extent of enhancing the period of imprisonment from one year six months to one year eight months is without

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jurisdiction and accordingly, to that extent, necessity has arisen to interfere with the order of the first appellate court.

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However, having regard to the nature of the offence and in the absence of previous criminal records, first appellate court used its discretion in converting the Rigorous imprisonment into simple imprisonment. Therefore, this court is of the considered opinion that the order of the learned Magistrate sentencing the accused persons for the offence punishable under Section 379 of IPC to undergo Rigorous imprisonment of one year six months, which was modified by the first appellate court as simple imprisonment if restricted to one year six months alone would meet the ends of justice. Accordingly, point No.2 is answered and following order is passed:

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ORDER:

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Appeal is allowed in part. While maintaining the

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conviction of the Revision Petitioners/accused persons for the offence punishable under Section 379 of IPC, accused

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persons are ordered to undergo simple imprisonment for a period of one year six months only and pay fine amount as ordered by the learned Trial Magistrate. To that extent, the order of the learned Trial Magistrate is modified.

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Accused persons/Revision Petitioners are directed to surrender before the Trial Court for serving the remaining part of the sentence.

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Ordered accordingly. Send back the records to the learned Trial Magistrate forthwith.

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Sd/JUDGE

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PL*

M Kalegowda @ Kala v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

M Kalegowda @ Kala v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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