Allowed

Sri Ravishankar v. State by New Extension Police

Karnataka HC20 Jul 2021CRL.RP/237/2012

Case brief

AI extract

What is this about?

Criminal Revision Petition challenging conviction and enhancement of sentence for robbery. Court upheld conviction as evidence was cogent and significant witnesses were impartial. However, it held that denial of probation was erroneous and directed the accused to execute a bond instead of immediate imprisonment.

What did the court decide?

Revision allowed in part; conviction maintained but term of imprisonment substituted by order to execute a bond for period of two years.

Sri Ravishankar Vs State by New Extension Police — Cheque Dishonour | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF JULY, 2021 BEFORE

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THE HON’BLE MR.JUSTICE V.SRISHANANDA CRIMINAL REVISION PETITION NO.237 OF 2012

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BETWEEN :

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SRI.RAVISHANKAR, S/O LATE SATHYANARAYANA, AGED ABOUT 22 YEARS, R/O 8^TH CROSS, VIDYANAGARA, TUMKUR. NATIVE OF MIRJI EXTENSION, MAILARLINGESHWARA MAIN ROAD, HIRIYUR TOWN, CHITRADURGA DISTRICT. …PETITIONER

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(BY SRI.BHARGAV G., ADVOCATE FOR SRI.C.R.GOPALASWAMY, ADVOCATE)

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AND :

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STATE BY NEW EXTENSION POLICE, TUMKUR. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE – 560 001.

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…RESPONDENT (BY SRI SHOWRI H.R., HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED

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16.08.2011 PASSED BY THE ADDL. SENIOR CIVIL JUDGE AND CJM, TUMKUR IN C.C.NO.2022/08 AND ORDER DATED 06.01.2012 PASSED BY THE P.O., FTC–II, TUMKUR IN CRL.A.NO.84/2011.

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THIS CRIMINAL REVISION PETITION COMING ON OR HEARING THIS DAY THROUGH VIDEO CONFERENCING, THE COURT MADE THE FOLLOWING:-

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ORDER

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The revision petition is filed by the accused, who

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has been convicted for the offence punishable under Section 392 of IPC by judgment dated 16.08.2011 passed by the Additional Civil Judge & CJM, Tumkuru which was confirmed in Crl.A.No.84/2011 by the Fast Track Court, Tumkuru by judgment dated 06.01.2012.

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Brief facts which are necessary for the disposal of the revision petition are as under:

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CWs.1 and 2 when were proceeding on the road in Kuvempu Nagar, 2nd Block, Tumakuru, on 16.08.2008 at about 8.00 P.M. somebody came from hind side and tried to snatch gold chain which was worn by CW.2.

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Thereafter, CW.1 and others chased the accused and caught hold of him and handed over to Police.

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Police registered a crime No.149/2008 for the offence punishable under Section 392 of IPC and after detailed investigation, filed charge sheet against the accused.

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Learned Magistrate took cognizance of the offence and framed charge against the accused and accused pleaded not guilty and the trial was held. In order to bring home guilt of the accused, seven witnesses were examined as PWs.1 to PW.7 and five documents were relied on by the prosecution which were exhibited and marked as Exs.P.1 to P.7.

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On behalf of the defence, the charge sheet is marked at Ex.R.1.

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On conclusion of the prosecution evidence,

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learned Magistrate has recorded statement of the accused as contemplated under Section 313 of Cr.P.C. whereas, the accused denied all the incriminating circumstances put to him and he did not offer any explanation to the incident.

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After hearing the arguments, the learned Magistrate convicted the accused for the offence punishable under Section 392 of IPC and ordered to undergo Simple Imprisonment for a period of two years and to pay a fine of Rs.1,000/- with default sentence of 15 days Simple Imprisonment.

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Being aggrieved by the order passed by the learned Magistrate, the accused preferred an appeal before the Fast Track Court, Tumakuru in Crl.A.No.84/2011.

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Learned Judge in the Fast Track Court, Tumkuru secured the records and after hearing the parties in detail, confirmed the judgment of conviction and order of sentence passed by the learned Magistrate.

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Being aggrieved by both the orders, the revision petitioner is before this Court in this revision petition.

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Learned counsel for the revision petitioner

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Sri Bhargav.G representing Sri C. R. Gopalaswamy vehemently contended that both the Courts have not properly appreciated the material available on record and passed the order of conviction on surmises and conjectures. He further argued that both the Courts have failed to note that the incident said to have been occurred at 8.00 P.M. and there was no proper light to identify the accused and Police have falsely implicated

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the accused in the incident who was a PUC student as on the date of incident. He further argued that the mental disorder of the petitioner was not taken into consideration by the trial Magistrate and therefore, the trial Court ought not to have proceeded with the trial against the accused. He also pointed out that the material available on record was hardly sufficient to convict the accused for the offence punishable under Section 392 of IPC and prayed to allow the revision petition.

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Per contra, learned HCGP Sri H. R. Showri supported the impugned judgment and with vehemently contended that the accused was captured by CW.1 and other general public soon after the incident and therefore, the identity of the accused was sufficiently established.

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He further argued that CWs.1 and 2 being total strangers to the accused who did not possess any previous enmity or animosity against the accused, have categorically deposed about the incident and accused coming from hind side while CWs.1 and 2 were walking on the public road and tried to snatch the chain in the neck of CW.2 and it was a failed attempt and as such, the material available on record clearly establishes all ingredients required to establish the offence under Section 392 of IPC and therefore, the learned trial Magistrate and learned Judge in the First Appellate Court justified in passing the impugned orders.

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He also pointed out that having regard to scope of this Court in the revisional jurisdiction hardly any case is made out by the revision petitioner to interfere with well reasoned and logical order passed

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by both Courts and prayed for dismissal of the revision petition.

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In view of rival contentions, the points that would arise for consideration are as follows:

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1. Whether the finding recorded by the learned Magistrate that the accused is guilty of offence punishable under Section 392 of IPC, is suffering from patent defect, legal infirmity and perversity so as to call for interference by this Court?

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2. Whether the sentence is excessive?

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In the case on hand, the oral testimony of CWs.1 and 2 who were examined as PWs.1 and 2 categorically establish the incident. The complaint averments are reiterated by PWs.1 and 2 in their examination-in-chief and they have given a graphical details of the incident. Admittedly, when accused

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failed to snatch the chain, PWs.1 and 2 have raised an alarm and PW.1 chased the accused along with other general public, who wanted to escape away from the scene and captured him and handed over the accused to the Police. There is no delay in lodging the complaint.

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As rightly argued by the learned High Court Government Pleader, PWs.1 and 2 did not possess any previous enmity or animosity to falsely implicate the accused in the case. Therefore, their testimony assumes greater significance in proving the incident as is propounded by the prosecution which has been rightly appreciated by the trial Magistrate and reappreciated by the learned judge in the First Appellate Court while upholding the order of conviction.

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Therefore, the material available on record especially the oral testimony of PWs.1 and 2 and other

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material which are collected by the Investigating Agency clearly establishes that the accused did try to snatch the gold chain belonging to PW.2 on the date of incident that is on 16.08.2008 at around 8.00 P.M. when PWs.1 and 2 were going on walk near Kuvempu Nagar, 2nd Block, Tumkuru.

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Since the attempt is made to rob the gold chain, all ingredients required to attract the provisions under Section 392 of IPC is established by the prosecution with cogent and convincing evidence on record and therefore the concurrent finding of fact recorded by both Courts does not suffer from any legal infirmity or patent defect or error of jurisdiction or law and therefore, the same needs to be confirmed.

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Having said thus, it is seen that there was no criminal antecedents to the accused. He was a student aged about 18 to 19 years as on the date of

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incident and pursuing II PUC. In the absence of any criminal antecedents, the trial Magistrate was duty bound to consider the grant of probation to the accused. It is settled principle of law that after convicting the accused, the convicting Court has to consider grant of probation in a given case and it is a mandatory duty prescribed by the statute.

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In the case on hand, there is no discussion in that regard. Learned trial Magistrate has simply brushed aside the submission made on behalf of accused stating that the accused was detained in jail for a period of 15 days and he has also jumped the bail once and therefore, the benefit under the provisions of the Probation of Offenders Act, 1958 (‘the PO Act’ for short) cannot be granted to him.

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Jumping the bail is not a ground to deny the grant of probation under the provisions of the PO

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Act. Therefore, this Court is of the considered opinion that the trial Magistrate has failed to exercise the power vested in him under the provisions of the PO Act considering the case of the accused while passing the appropriate sentence.

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Unfortunately, the First Appellate Court also did not bestow its attention to the said aspect of the matter.

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However at this stage, the learned HCGP Sri Showri H.R., vehemently contended that if this Court for the first time in the revisional jurisdiction is granting probation, the report from the Probation Officer is necessary.

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Admittedly, the incident is of the year

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It is submitted at the bar by the learned counsel for the petitioner that the accused / petitioner is now well settled in the society and leading a decent

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life. There is no other complaint against him or any criminal cases filed against him. In the absence of previous antecedents, at this distance of time, calling for the report from the Probation Officer would only result in a futile exercise. Therefore, this Court is of the considered opinion that while maintaining the conviction of the accused / appellant, if he is ordered to execute a bond in a sum of Rs.20,000/- with one surety for the likesum for his good behavior for a period of two years, the ends of justice would be met.

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Hon’ble Justice Sri Krishna Iyer in a judgment has stated that ‘every saint has a past and every prisoner has a future’. This is the silver line which runs to the reformative theory while sentencing an accused, the Courts have to bear in mind all principles governing awarding appropriate sentence in a given case and while doing so, cannot

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lose sight of the beneficial provisions carved out under the provisions of the PO Act.

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In view of the foregoing discussion, point No.1 is answered in negative and point No.2 is answered partly in the affirmative. Accordingly, the following order is passed:

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ORDER

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1. Revision petition is allowed in-part.

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2. While maintaining the conviction of the accused for the offence under Section 392 of IPC, the accused is directed to execute a bond in a sum of Rs.20,000/- with one surety for the likesum to the satisfaction of the trial Magistrate within four week which shall be enforced for a period of two years for his good behavior.

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3. Any breach in the bond conditions, the accused liable to undergo sentence of imprisonment as ordered by the trial

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Magistrate and confirmed by the First Appellate Court.

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Office is directed to return the trial Court records with a copy of this order for facilitating the accused / petitioner to execute a bond.

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Ordered accordingly.

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Sd/JUDGE

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HA/-

Sri Ravishankar v. State by New Extension Police

Case brief

What is this about?

What did the court decide?

Sri Ravishankar v. State by New Extension Police

Case brief

What is this about?

What did the court decide?

What the court decided

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