Partly allowed

Hanumanthanaik v. State by Basavapatna Police

Karnataka HC13 Jun 2024CRL.RP/14/2021

Case brief

AI extract

What is this about?

Criminal Revision Petition challenging conviction for theft and attempt. Court upheld conviction due to sufficient recovery of stolen goods and lack of animosity. Enhanced fine to Rs. 15,000 but treated prior custody as imprisonment, restoring default sentence only upon non-payment.

What did the court decide?

Fine enhanced to Rs. 15,000 each; done time treated as sentence; default sentence restored if fine unpaid by 30.06.2024.

Hanumanthanaik Vs State by Basavapatna Police — Criminal Trial and Appeal | Karnataka HC (2024)

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1 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE V SRISHANANDA

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CRIMINAL REVISION PETITION NO. 14 OF 2021 (397)

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BETWEEN:

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HANUMANTHANAIK SON OF HALANAIK, AGED ABOUT 39 YEARS, COOLIE,

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RESIDENTS OF KABALA VILLAGE, DODDAGHATTA POST, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 544.

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Digitally signed by V KRISHNA Location: High Court of Karnataka

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MURTHYNAIK. S SON OF BAVANAIK, AGED ABOUT 42 YEARS, COOLIE, RESIDENTS OF KABALA VILLAGE, DODDAGHATTA POST, CHANNAGIRI TALUK, DAVANAGERE DISTRICT-577 544.

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…PETITIONERS

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(BY SRI. HIREMATHAD MAHESHIAH RUDRAYYA.,ADVOCATE)

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AND:

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STATE BY BASAVAPATNA POLICE DAVANAGERE, REP BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560 001.

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…RESPONDENT

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(BY SRI. CHANNAPPA ERAPPA.,HCGP)

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2 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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THIS CRL.RP. IS FILED U/S. 397 R/W 401 CR.P.C. BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER SENTENCE PASSED IN THE IMPUGNED JUDGMENT AND ORDER IN CRL.A.NO.88/2015 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, DAVANAGERE DATED 23.10.2020 SO FAR AS THE PETITIONERS IS CONCERNED, CONSEQUENTLY SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI IN C.C.NO.129/2014 DATED 13.07.2015.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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Heard Sri. Hiremathad Maheshiah Rudrayya, learned counsel for the revision petitioner and Sri. Channappa Erappa, learned High Court Government Pleader for respondent.

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This revision is by accused Nos.1 and 3, who support an order of conviction in CC.No.135/2013(old), which is renumbered as CC.No.129/2014 on the file of the learned Senior Civil Judge and JMFC, Channagiri for the offences punishable under Section 380 read with Section 511 of IPC and sentenced to undergo one year simple imprisonment for the offence punishable under Section 380 read with Section 511 of IPC with fine of Rs.1,000/- and default sentence of three months, which was confirmed in the Criminal Appeal.No.88/2015 by the judgment, dated 23.10.2024.

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Facts in brief which are atmost necessary for disposal of the present revision petition are as under:

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A complaint came to be lodged with Basavapatna Police Station on 04.09.2013 stating that on 01.09.2013 in between 07:30.p.m., and 06:00.a.m., at Kabbala Village, the accused persons have stolen the paddy bags, which was stocked in the cattle shed in the house of the complainant worth Rs.25,000/-. Again on 02.09.2013 at about 8:30.p.m., when the accused visited the house of the complainant to steal the remaining paddy bags, which were also kept in the same cattle shed, all the accused persons were apprehended. Some how they escaped from the clutches of the complainant and CW4. Immediately, thereafter the information was furnished to the Police. Police registered the case against the three accused persons for the offences punishable under Section 380 read with Section 511 of IPC based on the information lodged to them on 04.09.2013.

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After registering the case, Police continued the investigation and apprehended the accused persons on 05.09.2013. On enquiry, Police were able to recover the 20 bags of paddy, which were stolen away by the accused persons

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4 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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on 01.09.2013. After thorough investigation, Police also filed the charge sheet against the accused persons for the aforesaid offences.

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Accused, who are enlarged on bail, appeared before the learned Magistrate and charges were framed.

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Accused pleaded not guilty, therefore, the trail was

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held.

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In order to prove the case of the prosecution, in all 9 witnesses were examined by the prosecution as PW1 to 9 and 5 documents were placed on record by the prosecution, which were executed and marked as Ex.P1 to 5 comprehensive of complainant, spot mahazar, seizure mahazar, reporting, FIR and statements.

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Prosecution witnesses supported the case of the prosecution and the samples drawn from 20 bags of paddy were shown to the prosecution witnesses and they identified samples, which were seized under the seizure mahazar at Ex.P3.

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The detail cross-examination of the prosecution witnesses did not yield any positive materials so as to disbelieve the version of the prosecution.

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5 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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Later on accused statement has contemplated under Section 313 of Cr.P.C was recorded by the learned Trial Magistrate. Accused persons pleaded not guilty denied all the incriminating circumstances. They did not offer any explanation as is contemplated under Section 313(4) in writing.

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Thereafter, the learned Trial Magistrate heard the parties and convicted the accused persons for the offences punishable under Section 380 read with Section 511 of IPC and passed an order of sentence.

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" Considering the facts and circumstances of the case A 1 to 3 are sentenced to under go Simple Imprisonment for a period of one year and to pay fine of Rs.1,000/- each for the offence punishable under Section 380 IPC in default of payment of the fine amount they shall further undergo SI for a period of 3 months.

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A1 to 3 are further sentenced to under go SI for a period of 6 months and to pay fine of Rs.500/each for the offence punishable u/s 511 of IPC in default of payment of fine amount they shall undergo SI for a period of one month.

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Both the sentence to run concurrently."

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Being aggrieved by same, accused Nos.1 to 3 preferred an appeal before the District Court, Davanagere in Criminal Appeal.No.88/2015. During the pendency of appeal, accused No.2 died.

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Learned Judge in the First Appellate Court after securing the records, heard the parties in detail and noted the death of accused No.2 and confirmed the judgment of conviction and order of sentence passed by the learned Trial Magistrate by dismissing the appeal of the accused persons by judgment, dated 23.10.2020.

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Thereafter, accused Nos.1 and 3 are before this Court by way of the present revision petition.

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Sri. Hiremathad Maheshiah Rudrayya, learned counsel for the revision petitioners reiterating the grounds urged in the revision petition contended that material evidence placed on record is hardly sufficient to order of conviction for the offences punishable under Section 380 read with Section 511 of IPC and therefore, sought for allowing the revision petition.

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He also pointed out that the samples said to have been drawn from the seized paddy bags are freely available,

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commodity in any agriculturalist house and therefore, in the absence the samples being tallied with the original paddy bags said to have been seized by the prosecution and produced before the Court, there was no possibility of recording order of conviction under Section 380 read with Section 511 of IPC and the alleged attempt of theft again on 04.09.2013 is not established by placing any cogent evidence on record and oral evidence of PW1 and 4 are nothing but self serving testimony and therefore, sought for allowing the revision petition.

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He further pointed out that PW7, who is an independent witness having turned hostile to the case of the prosecution, a serious dent has been caused to the case of the prosecution and thus sought for allowing the revision petition.

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Alternatively, he contended that in the event of this Court maintaining the conviction, taking note of the fact that accused Nos.1 and 3 are poor people and are now eking out their livelihood by doing coolie, Court may consider the custody period of Simple Imprisonment and allow them to pay fine of Rs.1,000/- for the offence under Section 380 read with Section 511 of IPC and they may be released.

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Per contra, learned High Court Government Pleader supports the impugned judgments by contending that the seizure mahazar, while PW2 establishes seizure by placing necessary evidence on record.

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He pointed out that why would the Police implant 20 paddy bags for the sake of obtaining an order of conviction against the revision petitioner in the absence any previous enmity and animosity and therefore, case of the prosecution stands established.

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He further pointed out that drawing of the sample from each of the bag is found under seizure mahazar itself and the same is produced before the Court as the paddy was fast decaying substance was entrusted to the interim custody of the complainant during the trial and therefore, non-production of the entire 20 bags of paddy stolen by the accused persons did not cause any serious dent in the case of the prosecution.

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He also pointed out that the theft committed by the accused persons came to be light, when they again attempted to steal the paddy bags on 04.09.2013. When they again visited the cattle shed of the complainant, for steeling the remaining bags of the paddy, they were apprehended by CW1

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9 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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and CW4, but the accused persons were successful in escaping from their clutches. Therefore, the prosecution version is properly established by placing cogent and convincing evidence of record.

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He also argued out that based on the complaint lodged by the complainant on 05.09.2013 itself, when the accused persons were arrested and based on the information given by them, paddy bags were seized and seizure mahazar witnesses have supported the case of the prosecution. He further contended that merely PW7 turning hostile to the case of the prosecution has not weakened the case of the prosecution to any extent so as to disbelieve the whole of the prosecution story as false and sought for dismissal of the revision petition.

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In so far as the alternate submission made by the counsel for the revision petitioner, learned High Court Government Pleader submitted that in a matter of this nature, showing any mercy would send a wrong message to the society and therefore, no mercy can be shown to the revision petitioner.

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10 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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He also pointed out that there is one more criminal case on the similar case on the similar charges against the accused persons and therefore, they are habitual offenders and no mercy can be shown for the accused persons.

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Having heard the parties in details, this Court

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perused the material on record meticulously.

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On such perusal, following points would arise for consideration:

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"1. Whether the prosecution has successfully established the offences alleged against the accused

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persons under Section 380 read with Section 511 of IPC.

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2. Whether the impugned judgment is suffering from legal infirmity, and perversity and

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thus also calls for interference.

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3. Whether the sentence is excessive."

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29. Regarding point Nos.1 and 2: In the case on

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hand, the prosecution story reveals that the complainant notice that between 07:30.p.m., and 06:00.a.m., of 01.09.2013 and 02.09.2013, complainant noticed missing of 20 bags of paddy from his cattle shed. Again on 04.09.2013, complainant and

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11 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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CW1 was able to spot accused Nos.1 to 3 in the cattle shed in the process of stealing the remaining paddy bags. There was hue and cry and CW1 and 4 tried to catch the accused persons. Accused persons over all provoked accused Nos.1 to 3 and CW1 and escaped away from the scene. Immediately thereafter, upon consulting the villagers, the complainant lodged a complaint with the police on 04.09.2013.

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Based on the on details given by the complainant in the complaint and about the incident that took place, police registered the case and commenced the investigation and were able to arrest the accused persons on 05.09.2013.

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Based on the voluntary information given by the accused when they were in custody, Investigation Officer was able to seize 20 bags of paddy, which were found missed from the cattle shed of the complainant under seizure mahazar EX.P3.

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Samples were drawn in the presence of mahazar witnesses from each of the bag and they were retained for the purpose of investigation and trial and the remaining paddy was produced before the Court and the learned Trial Magistrate

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12 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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handed over the interim custody taking note of the fact that the paddy is a fast decaying substance.

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Thereafter, detailed investigation has been made and charge sheet came to be filed. Prosecution witnesses except PW7 has supported the case of the prosecution in toto.

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Mere PW7 turning hostile to the case of the prosecution, as rightly contended by the learned High Court Government Pleader did not cause any serious dent to the case of the prosecution in disbelieving the version of the prosecution. Recovery of the stolen article is a important ingredient while establishing the offence under Section 380 of IPC. The same has been rightly appreciated by the learned Trial Magistrate and in the absence of any previous enmity or animosity nurtured by the complainant or other prosecution witnesses so as to falsely implicate the accused persons in the case, learned Trial Magistrate was justified in recording an order of conviction against the accused persons.

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Accused thereafter, preferred an appeal before the District Court Davanagere. Learned Judge in the First Appellate Court after securing the records heard the arguments in detail in the light of the grounds raised in the appeal memorandum

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and on re-appreciation of material on record not only confirmed the order of conviction, but also the sentence passed by the learned Trial Magistrate by supplying the cogent and convencing reasons.

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This Court, in this revision petition, cannot revisit into the factual aspects unless they are patently defective. The material on record is sufficient enough to maintain the order of conviction against the accused persons. Therefore, having regard to the scope of the revisional jurisdiction, this Court is of the view considered the opinion that the material on record is sufficient enough to maintain the conviction, which has been rightly appreciated by both the Courts. Accordingly, points No.1 and 2 are answered in the affirmative and negative respectively

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Regarding point No.3: Learned counsel for the revision petitioner contended that sentence of one year for the offence under Section 380 IPC is working harsh so for as the accused persons are concerned and sentence of 6 months for the offence under Section 511 of IPC is again on the excessive side so for as the accused persons are concerned.

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It is the submission of the learned High Court Government Pleader that one more case on the similar charges are filed against the accused persons. However, neither the revision petitioners nor the learned High Court Government Pleader is in a position to place on record what is the result of another criminal proceedings that was launched against the accused persons.

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Taking note of the fact that accused persons were in the custody for a period of one month during the investigation period, this Court is of the view consider opinion that enhancing the fine in a sum of Rs.15,000/- each apart from the fine already imposed by the learned Trial Magistrate in a sum of Rs.1,000/- and Rs.500/- for the offences punishable under Section 380 read with Section 511 of IPC and ordering that custody already undergone as period of imprisonment would meet the ends of hands of interest of justice taking note of the financial conditions of the accused persons. Accordingly, point No.3 is answered partly affirmative and the following order is passed:

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15 - NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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ORDER

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i) Criminal revision petition is allowed-in part.

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ii) While maintaining the conviction of accused persons for the offences punishable under Section 380 read with Section 511 of IPC, the custody period already undergone by accused Nos.1 and 3, who are revision petitioners for the offence punishable under Section 380 read with Section 511 of IPC is treated as period of imprisonment.

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iii) Accused persons are directed to pay fine of Rs.15,000/- each in addition to some of Rs.1,000/- and Rs.500/ordered by the learned Trial Magistrate on or before 30.06.2024.

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iv) In the event of the accused revision petitioners failing to make the payment of fine amount on or before

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NC: 2024:KHC:20899 CRL.RP No. 14 of 2021

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30.06.2024, the order of sentence

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passed by the Trial Magistrate stands automatically restored.

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v) Office is directed to return the Trial Court Records with copy of this order forthwith.

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Sd/JUDGE

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PHM List No.: 1 Sl No.: 27

Hanumanthanaik v. State by Basavapatna Police

Case brief

What is this about?

What did the court decide?

Hanumanthanaik v. State by Basavapatna Police

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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