Partly allowed

Venkateshreddy @ Imtiyaz v. the State of Karnataka

Karnataka HC13 Oct 2023CRL.RP/100025/2017

Case brief

AI extract

What is this about?

The Karnataka High Court partially allowed a criminal revision petition against a conviction for lurking house-trespass and theft. While upholding the conviction, the Court modified the sentence, reducing the term to match the period of judicial custody (427 days) undergone by the accused, who had no prior criminal record.

What did the court decide?

Conviction confirmed; sentence modified to 427 days rigorous imprisonment; fine forfeited; period of detention set off.

Venkateshreddy @ Imtiyaz Vs the State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 13^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA

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CRIMINAL REVISION PETITION NO. 100025 OF 2017

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BETWEEN:

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VENKATESHREDDY ALIAS IMTIYAZ S/O. NAGARAJ REDDY, AGE: 32 YEARS, OCC: DRIVER MINI BOAT, R/O: HOSUR, 3^RD CROSS, SHANTINAGAR, TQ: KRISHNAGIRI, DIST: DHARMAPURI, (NOW AT VASCO AIRPORT ROAD, SHANTINAGAR, KAREWAD, JOSALINE PATRA)

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…PETITIONER

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SAMREEN AYUB DESHNUR

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Digitally signed by SAMREEN AYUB DESHNUR Date: 2023.10.20 13:27:44 +0530

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(BY SRI R.H. ANGADI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, (VIDYAGIRI POLICE STATION, DHARWAD REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD.

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…RESPONDENT

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(BY SRI PRAVEEN UPPAR, AGA)

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Here is a corrected version of the text with improved grammar and punctuation:

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE (CR.P.C.). THE PETITIONER SEEKS TO KINDLY

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REQUEST THAT THE REVISION PETITION BE ALLOWED AND THAT THE JUDGMENT AND ORDER OF CONVICTION/SENTENCES IN CRIMINAL APPEAL NO. 120 OF 2016, DATED 30.11.2016, BY THE LEARNED IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, CONFIRMING THE JUDGMENT/ORDER OF CONVICTION PASSED IN CRIMINAL CASE NO. 147 OF 2014, DATED 17.06.2016, BY THE LEARNED III ADDITIONAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE, DHARWAD, BE SET ASIDE. CONSEQUENTLY, THE ACCUSED SHOULD BE ACQUITTED FOR THE OFFENSES PUNISHABLE UNDER SECTION 380 AND 454 OF THE INDIAN PENAL CODE AND TO CALL FOR THE RECORDS.

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IN THIS PETITION, ARGUMENTS BEING HEARD, JUDGMENT RESERVED, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The revision petitioner/accused has preferred this Revision petition against the judgment of conviction and order of sentence dated 17^th June, 2016 passed in CC No.147 of 2014 on the file of III Additional Senior Civil Judge And Chief Judicial Magistrate, Dharwad (for short, hereinafter referred to as the "trial Court”) which is confirmed by the IV Additional District & Sessions Judge vide order dated 30^th November, 2016 passed in Criminal Appeal No.120 of 2016.

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For the sake of convenience, the parties in this Revision

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Petition are referred to as per their status and rank before the trial Court.

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The prosecution presents the following brief facts:

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On January 30, 2014, between 9.40 am to 5.00 pm, at 4th Cross, Dhaneshwari Nagar, PW1 was lurking and trespassing into a house. He forcefully broke open the door lock and proceeded to steal various golden ornaments, including a chain, earrings, and finger rings, with a total weight of 25.5 grams and an estimated value of Rs. 53,500/-. These items were stored in an almirah within the house. As a result, the accused stands charged with offences punishable under Section 454 and 380 of the Indian Penal Code. Following the submission of charge sheet, the learned Magistrate took cognizance of the case, and it was registered as CC No.147 of 2014. The accused was apprehended under a body warrant since he was already in judicial custody due to other cases. Subsequently, the charges were formally brought against the accused for the alleged commission of the offence. Upon comprehending the charges,

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the accused entered a plea of not guilty and requested to be tried.

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To prove the guilt of the accused, in all, eleven witnesses were examined as PWs1 to 11 and got marked twelve documents as Exhibits P1 to P12. The statement under Section 313 of Code of Criminal Procedure was recorded and though accused has totally denied the evidence of prosecution witnesses, but did not chose to lead any evidence on his behalf.

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After hearing the arguments, the trial court convicted the accused for the commission of offences punishable under Sections 454 and 380 of the Indian Penal Code. The court sentenced the accused to three years of rigorous imprisonment and imposed a fine of Rs.3,000/- for the offence under Section 454 of the Code of Criminal Procedure. In case of default in paying the fine, the accused was to undergo an additional three months of rigorous imprisonment. Additionally, the accused was sentenced to two years of rigorous imprisonment and a fine of Rs. 2,000 for the offense under Section 380 of the Code of Criminal Procedure, with an additional three months of rigorous

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imprisonment in case of default. Both sentences were to run concurrently, and a set-off was granted for the period of judicial custody.

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The accused appealed the judgment of conviction and the sentence to the appellate court, but the appellate court dismissed the appeal on November 30, 2016. Aggrieved by the judgments of conviction and sentencing handed down by both the trial and appellate courts, the accused has filed this revision petition.

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The learned counsel representing the Revision Petitioner

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has argued that the judgment of conviction and the order of sentencing passed by both courts are erroneous, perverse, and capricious and, therefore, should be set aside. It is contended that both courts failed to properly consider the oral and documentary evidence in accordance with the law and the facts of the case. The counsel further pointed out that there are no eyewitnesses to the alleged crime in question, and even the seizure witnesses have turned hostile to the prosecution's case. Given the absence of any substantial evidence regarding the

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recovery of evidence or the accused's possession of it, it is argued that the courts should have acquitted the accused. Moreover, it is emphasized that the evidence of PW8, who is the owner of the jewelry shop from which the articles were claimed to be recovered, is not trustworthy as it does not fully support the prosecution's case. As a result, the counsel seeks the allowance of this revision petition.

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7.1. Alternatively, the counsel for the revision petitioner

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has also raised the issue of the accused's detention. The accused has been in judicial custody for 427 days, and the alleged offences are not punishable with death or life imprisonment. The accused has no prior convictions before this alleged offence, and he is a 43 year-old professional driver, serving as the sole breadwinner for his family. It is suggested that if this court upholds the judgment of conviction and the order of sentencing, which has already been confirmed by the appellate court, this court may consider the period of detention in judicial custody as the sentence for the alleged offence.

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As against this, Sri Praveen Uppar, learned Additional Government Advocate appearing for respondent submits that both the courts have properly appreciated the evidence on record in accordance with law and facts and that there are no grounds to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court which is confirmed by the appellate Court and sought for dismissal of this revision petition.

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Having heard the arguments on both sides and perusal

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of records, the following points would arise for my consideration in this revision petition.

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Whether the revision petitioner has made out a ground to interfere with the judgement of conviction and order of sentence passed by trial court, which is confirmed by the appellate court?

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Whether the revision petitioner has made out ground to modify the sentence of trial court which is confirmed by the appellate court?

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3. What order?

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9. My answer for the above points is as under:

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Point no.1: In the negative; Point no.2: in the affirmative;

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Point no.3: as per final order.

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I have carefully examined the materials presented before this Court. Based on the complaint filed by a 57-year-old woman, Smt. P.L. Elizabeth, as per Exhibit P1, the Vidyagiri Police registered a case under Crime No. 26 of 2014 and filed a First Information Report as per Exhibit P9 on January 31, 2014, against an unknown person for offences punishable under Sections 380 and 454 of the Indian Penal Code. On the same day, the police visited the crime scene and conducted a spot mahazar as per Exhibit P3, in the presence of witnesses known as panchas. During the mahazar, the police also collected fingerprints. Subsequently, the investigating officer arrested the accused and conducted an interrogation. Based on a voluntary statement given by the accused, as per Exhibit P13, the police recovered stolen articles and prepared a seizure mahazar in the

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presence of witnesses. The police also recorded statements from witnesses, and after a thorough investigation, the investigating officer filed a charge sheet against the accused for the alleged offenses. To support the prosecution's case, PW1, P.L. Elizabeth, provided clear testimony regarding the contents of the complaint as outlined in Exhibit P1. She also testified about the recovery of the stolen articles at the direction of the accused.

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PW2-Kallappanna Kottur Shettar, and PW3-Ravi Kaskar, acted as witnesses to the spot mahazar and testified about the contents of Exhibit P3-Mahazar. In contrast, PWs4Shivaji Matrubhavannavar, PW5-Somaiah Hiremath, and PW6Anwar Naikwadi, who were designated as witnesses to the seizure mahazars (Exhibits P4 and P5), acknowledged their signatures on the mahazars but did not provide testimony regarding the contents of these documents. Regrettably, they turned hostile to the prosecution's case and were crossexamined by the senior Additional Public Prosecutor. PW7Jimmy Jadhav, did not support the prosecution's case. As for PW8-Raju Sanu Mounesh, the purported witness to mahazar

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Exhibit P6, he admitted to his signature on the mahazar but did not offer details about its contents. In addition, PW9-Mylarappa Moganavara, holding the designation HC No.1161, and PW10Sharananappa L, a Police Inspector, along with PW11Chennakeshava Tengrikara, an Inspector of Police, provided testimony concerning their respective roles in the investigation and the submission of the final report against the accused for the alleged commission of the offense.

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On re-appreciation of evidence on record and also relying upon the judgment of the Hon'ble Supreme Court, the appellate Court has confirmed the judgment of conviction and order of sentence passed by the trial Court. On further reappreciation/re-examination and reconsideration of the evidence on record, I do not find any legal infirmities/illegalities in the impugned judgment of conviction and order of sentence passed by the trial Court which is confirmed by the appellate Court. Hence, I answer point No.1 in the negative.

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Regarding point No.2:

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With regard to the sentence imposed by the trial Court is concerned, the trial Court has sentenced the accused as under:

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“ In view of conviction, the accused is sentenced to undergo rigorous imprisonment for a period of e years and shall pay a fine of Rs.3,000/- for the offence punishable under Section 454 of IPC and in default of payment of fine, he shall undergo R.I. for a period of 3 months.

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The accused is sentenced to undergo rigorous imprisonment for a period of 2 years and shall pay a fine of Rs.2,000/- for the offence punishable under Section 380 of IPC and in default of payment of fine, he shall undergo R.I. for a period of 3 months.

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Both the sentences shall run concurrently. ”

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The sentence passed by the trial Court is also confirmed by the appellate Court.

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This Court has received the report from the Superintendent of Central Prison, Dharwad as to the period of detention of the accused in judicial custody. That on 15^th

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August, 2023, vide letter No. kEkAdha/nya.vi-1/1604/2023-24 , the Superintendent of Central Prison, Dharwad, has submitted the custody certificate of the accused in detail, which reveals that, including remission, the accused is in judicial custody for 427 days. Now the age of the accused is 43 years. The trial Court, in its judgment of conviction and order of sentence, has observed that the accused has not previously been convicted in any case prior to this impugned judgment of conviction and order of sentence passed against him. The offence punishable under Section 454 Indian Penal Code contemplates that Whoever commits lurking house-trespass or house-breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years. The offence punishable under Section 380 of Indian Penal Code is punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

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15. Section 3 of Probation of Offenders Act, 1958 envisages as under:

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“ When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition”.

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16. In that view of the matter, considering the age, occupation and the dependants on accused, so also, the nature and gravity of offence and the worth of the stolen articles and antecedents of the accused prior to commission of offence, I am

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of the considered opinion that it is just and proper to reduce the sentence passed by the trial Court which is confirmed by the appellate Court, for a period of 427 days instead of three years for the offence punishable under Section 454 Indian Penal Code and for a period of two years for the offence punishable under Section 380 of Indian Penal Code.

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15. Accordingly, I answer point No.2 in the affirmative. In the result, I proceed to pass the following:

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O R D E R

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Revision petition is partly allowed;

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Judgment of conviction dated 17^th June, 2016 passed in CC No.147 of 2014 on the file of III Additional Senior Civil Judge And Chief Judicial Magistrate, Dharwad (for short, hereinafter referred to as the "trial Court”) which is confirmed by the IV Additional District & Sessions Judge vide order dated 30^th November, 2016 passed in Criminal Appeal No.120 of 2016 are confirmed;

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The sentence passed by the III Additional Senior Civil Judge And Chief Judicial Magistrate, Dharwad, dated 17^th June, 2016 in CC No.147 of 2014 which

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is confirmed by the appellate Court vide judgment of conviction and order of sentence 30^th November, 2016 in Criminal Appeal No.120 0f 2016 is modified as under:

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(i) The Revision petitioner/accused is sentenced for commission of offence punishable under Section 454 and 380 of Indian Penal Code, for a period of 427 days.

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(ii) Fine amount if any in deposit by the accused/revision petitioner, shall be forfeited to government;

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(iii) Both sentences shall run concurrently;

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(iv) The period of detention already undergone by the accused shall be set off as contemplated under Section 428 of Code of Criminal Procedure.

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(v) Registry shall transmit the copy of this order along with the records to the trial Court.

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Sd/JUDGE

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lnn

Venkateshreddy @ Imtiyaz v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Venkateshreddy @ Imtiyaz v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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