Partly allowed

Sri. Yallaiah v. State of Karnataka

Karnataka HC5 Jan 2024CRL.RP/446/2016

Case brief

AI extract

What is this about?

The High Court modified the conviction from robbery (S. 392 IPC) to theft (S. 379 IPC), finding no violence or fear of instant hurt. The Court imposed the sentence already undergone (7 months 15 days) and directed setoff under Section 428 CrPC, citing the accused's young age and first-time offender status.

What did the court decide?

Conviction under Section 392 IPC modified to Section 379 IPC. Sentence set off against period of 7 months 15 days already undergone in judicial custody.

Sri. Yallaiah Vs State of Karnataka — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 446 OF 2016

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BETWEEN:

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SRI. YALLAIAH, S/O SRINIVAS, AGED ABOUT 24 YEARS, RESIDENT OF MADDAKKANAHALLI VILLAGE, GOWDAGERE HOBLI - 572 153, SIRA TALUK, TUMKUR DIST.

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…PETITIONER

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(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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STATE OF KARNATAKA, BY TOWN POLICE STATION, TUMKUR - 572 101.

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…RESPONDENT (BY SRI. M.R. PATIL, HCGP)

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THIS CRL.RP IS FILED U/S.397(1) R/W 401(1) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 08.02.2016 ON THE FILE OF THE VI ADDL. DIST. AND S.J., TUMKUR, PASSED IN CASE BEARING CRL.A.NO.58/2013 AND THE JUDGMENT AND ORDER OF CONVICTION DATED 30.03.2013 PASSED BY THE PRL. C.J.M., TUMKUR IN CASE BEARING C.C.NO.476/2011 CONSEQUENTLY ALLOW THE CRL.A.NO.58/2013.

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NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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

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ORDER

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This revision petitioner had filed this revision petition against the judgment of conviction and order of sentence passed by the Principal Chief Judicial Magistrate, Tumkur in CC No.476/2011 dated 30.03.2013 (for short hereinafter referred as 'trial Court'), which is confirmed by the VI Additional District and Sessions Judge, Tumkur in Crl.A.No.58/2013 dated 08.02.2016.

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The rank of the parties in this petition are referred to as per their status before the trial Court.

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3. Brief facts of the prosecution case are that:

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On 20.11.2010 at about 9.30 a.m., while CW1/PW1 Smt.Kanthamma was proceeding towards her house from Railway Station to Chikkapete and when she came near Church Circle, Tumkur Town at that relevant point of time, the accused came from backside and snatched her golden Mangalya Chain weighing about 40 grams and ran away from that spot. Based on the information of CW1, a case was registered against the

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3 - NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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accused and after investigation, Investigating Officer submitted the charge sheet for the alleged commission of offence punishable under section 392 of Indian Penal Code. After filing charge sheet, case was registered in CC.No.476/2011, accused was enlarged on bail and substance of charges framed against the accused for the commission of offence punishable under section 392 of Indian penal code and the same were read over and explained to the accused. Having understood the same, accused pleaded not guilty and claimed to be tried.

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To prove the guilt of accused, 10 witnesses were examined as PWs.1 to 10 and got marked 8 documents as Exs.P1 to P8 and one material object Mangalya chain was marked as M.O.1. On closure of prosecution side evidence, statement of accused under Section 313 of Cr.P.C. was recorded. Accused had totally denied the material evidence found against him, but he did not chose to lead any defence evidence on his behalf.

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On hearing the arguments, the trial Court convicted the accused for the commission of offence punishable under Section 392 of IPC and sentenced to undergo rigorous

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NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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imprisonment for a period four years and also fine of Rs.5,000/-. In default of payment of fine, he shall further undergo simple imprisonment for three months.

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Being aggrieved by the judgment of conviction and order of sentence, accused preferred an appeal before VI Additional District and Sessions Judge, Tumkur in Crl.A.No.58/2013. The same came to be dismissed. Being aggrieved by the judgment of Appellate Court, as well as trial Court, the revision petitioner has filed this revision petition.

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The learned counsel appearing on behalf of revision petitioner/accused has submitted his arguments that, the impugned judgment passed by trial Court which is confirmed by the appellate Court is contrary to law and facts. The judgment of the Courts below are not justifiable for the reason that the nature of the alleged offence does not attract offence under Section 390 of Indian Penal Code and punishment under section 392 of Indian Penal Code without proper application of mind, the learned trial Judge has convicted the accused for the commission of offence punishable under Section 392 of Indian Penal Code which is bad in law, the entire observation of the

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5 - NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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learned trial Court is based only on presumptions and conjunctions which are not relevant to the circumstances of the case. Both Courts have failed to appreciate the evidence on record in accordance with law and facts. Further, it is submitted that even if this Court has come to conclusion that the accused

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has snatched the chain from PW1, then it comes under the provisions of Section 379 of Indian Penal Code, which is punishable with imprisonment for three years or with fine or both. The accused had already undergone judicial custody for a period of 7 months 15 days and the said period may be considered as setoff and release the accused.

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As against this, learned High Court Government Pleader Sri. M.R. Patil has submitted his arguments that, the trail Court has properly appreciated the evidence on record in accordance with law and facts and the appellate Court has also confirmed the judgment of conviction and sentence passed by the trial Court and there are no grounds to interfere with the impugned judgment of conviction and sentence passed by the trial Court which is confirmed by the appellate Court. On all these grounds, he sought for dismissal of this revision petition.

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NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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Having heard the arguments on both sides, the

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following points would arise for my consideration:

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i) Whether both the Courts have committed an error in coming to the conclusion that the accused has committed the offence punishable under Section 392 instead of Section 379 of Indian Penal Code?

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ii) Whether the revision petitioner/accused had made out 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?

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(ii) What order?

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My answer to the above points are as under:

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Point No.(1) : In the affirmative,

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Point No.(2) : Partly in the affirmative, Point No.(3) : As per final order.

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NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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Regarding Point No.1 and 2:

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I have carefully examined the materials placed before this Court. It is the case of prosecution that on 20.10.2010 at about 9.30 a.m., while PW1 Smt. Kanthamma was proceeding towards the house from railway station to Chikkapete and when she came near church circle, at that time, the accused came from backside and snatched her golden Mangalya Chain weighing about 40 grams and ran away from that spot. After investigation, Investigating Officer has submitted the charge sheet for the alleged commission of offence punishable under Section 392 of Indian Penal Code.

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Before the appreciation of evidence on record, it is appropriate to mention here as to essential ingredients to prove the offence under Section 390 of the Indian Penal Code, 1860. The same reads as follows:

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a) "if in order to the committing of theft; or

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b) in committing the theft; or

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c) in carrying away or attempting to carry away property obtained by theft;

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d) the offender for that end i.e. any of the ends contemplated by (a) to (c);

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e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of

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NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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instant death or of instant hurt or instant wrongful restraint."

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In the case on hand, PW1-Kanthamma has deposed in her evidence that on 20.11.2010 at about 9.30 a.m., while she was proceeding near church circle holding two bags, at that time, a thief came from backside and snatched her golden Mangalya Chain and ran away from that spot. When she shouted, public and police came and then ran away behind the said person and caught hold of him and brought to the police station and then she lodged a complaint to the police as per Ex.P1 and thereafter police have conducted Mahazar as per Ex.P2 and also deposed as to another Panchanama Ex.P3. She has identified her golden Mangalya Chain M.O No.1. PWs 2 to 5, said to be the eye witnesses to the incident, have deposed as to alleged incident. PWs-3 and 6 have denied the statement recorded by the Investigating Officer under Section 161 of Cr.P.C which were marked as EXs.P4 and 5. PW8 is the gold smith, who has examined the M.O No.1. PW9 and PW10 are the investigating officers who have deposed as to their respective investigation.

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9 - NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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On a careful examination of entire evidence on record, I do not find any ingredients to attract the provision of Section 390 of Indian Penal Code which is punishable under Section 392 of Indian Penal Code. Both Courts have not properly appreciated the facts of the prosecution of case and wrongly framed the charge against the accused for the commission of offence punishable under Section 392 of Indian Penal Code instead of Section 379. Hence, the conviction of accused under Section 392 of IPC, is not sustainable under law.

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On careful scrutiny of the entire evidence on record, I am of the considered opinion that the prosecution has established the case for the commission of offence punishable under Section 379 of Indian Penal Code which is punishable with imprisonment for three years or fine or both.

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The learned counsel for the revision petitioner has submitted that the accused has not been convicted in any cases prior to the alleged commission of offence punishable under Section 379 of Indian Penal Code. The prosecution papers reveal that, at the time of commission of offence the age of accused was 21 years. Considering the age, occupation, nature

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and gravity of offence, so also, antecedents of accused and also keeping in the mind of provision of Section 6 of Probation of Offenders Act, 1958, it is just and proper to impose sentence for a period of 7 months 15 days, which the accused had already undergone under judicial custody. The order sheet reveals that accused had already paid the fine amount. Accordingly, I answer point No (1) in the affirmative in point No.2 partly in the affirmative.

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Regarding Point No.3:

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For the aforesaid reasons and discussions, I proceed to pass the following:

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ORDER

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i. Revision petition filed by the revision petitioner is partly allowed .

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ii. The Judgment of conviction and order of sentence passed by the Principal Chief Judicial Magistrate, Tumkur in CC.No.476/2011 dated 30.03.2013 which is confirmed by the VI Additional District and Sessions Judge, Tumkur in Crl.A.No.58/2013 dated 08.02.2016, is modified as under:

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11 -

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NC: 2024:KHC:538 CRL.RP No. 446 of 2016

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"The accused is convicted for offence punishable under Section 379 of Indian Penal Code and undergo simple imprisonment for 7 months 15 days and the fine of Rs.5,000/(Accused have already undergone in judicial custody for a period of 7 months 15 days and paid fine of Rs.5,000/-). The period of sentence already undergone by the accused during trial shall be setoff under section 428 of Cr.P.C."

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iii. Send the copy of the order along with the TCR and SCR Court records to the concerned Courts.

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Sd/JUDGE

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PK CT:SNN

Sri. Yallaiah v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. Yallaiah v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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