Sri Ullas S/O Sripad Raikar Vs the State of Karnataka

(BY SRI PRAVEEN Y. DEVAREDDYAVAR, ADVOCATE) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., SEEKING TO CALL FOR RECORDS AND TO SET ASIDE THE JUDGMENT OF CONVICTION PASSED, SENTENCE AND FINE IMPOSED AGAINST THE PETITIONER/ACCUSED NO.2 IN C.C.NO.84 OF 2010 DATED 30.06.2011 ON THE FILE OF THE JMFC COURT, YELLAPUR AND CONFIRMED BY THE I ADDL. DISTRICT AND SESSION JUDGE U.K. KARWAR, SITTING AT SIRSI IN CRL. APPEAL NO.96 OF 2011 DATED 15.09.2017, ACQUITTING THE PETITIONER FROM ALL THE CHARGES/PLEA AND FINE DEPOSITED BY THE PETITIONER, BE ORDERED TO BE REFUNDED TO THE PETITIONER.

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THIS PETITION, COMING ON FOR FINAL HEARING, ORDER WAS MADE THEREIN AS UNDER:

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)

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Heard Sri.S.R.Hegde and Sri.Praveen Devareddyavar,

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learned High Court Government Pleader for the parties.

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Accused No.2 who suffered an order of conviction in CC No.84/2010 dated 30.06.2011 on the file of Judicial Magistrate First Class, Yellapur for the offence punishable under Section 394 of IPC and ordered to undergo one year simple imprisonment and to pay fine of Rs.2,000/- which was confirmed in Crl.A.No.96/2011 dated 15.09.2017 on the file of I Additional District and Sessions Judge, Karwar, is the revision petitioner.

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Facts in the nutshell which are utmost necessary for disposal of the revision petition are as under:

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3.1. Accused No.1 and Santosh (accused No.2) were

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charge sheeted for the offence punishable under Section 394 of IPC and Section 98 of the Karnataka Police Act.

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Charge sheet came to be filed by Yellapur police based on the investigation conducted by them on the complaint whereunder it was alleged that on 20.10.2010 at about 8. p.m. near Tilak Chowk, Yellapura Town, accused Nos.1 and 2 with an intention to commit robbery, managed to efface the chassis number of a motorcycle and put a fake number plate to show that the registration number of bike as KA.30.K.2159.

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3.2. When they spotted complainant – Jayashree who

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was waiting for C.W.2 near the provisions store, accused No.1 came and purchased a chocolate. In the guise of purchasing a chocolate, taking advantage of the loneliness of the complainant he snatched her mangalsutra. While so snatching, there was an injury caused to the complainant. Thereafter, with the aid of accused No.2, accused no.1 tried to escape.

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3.3. On hearing the alarm raised by the complainant, C.W.7 chased the accused persons and intercepted them near Akbargalli cross. At that juncture, accused No.2 with

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an intention to escape away from the clutches of C.W.7, bitten his left hand. However, he was unsuccessful in escaping from the spot as other general public gathered there and were able to capture both the accused persons.

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Based on the complaint lodged by Jayashree, Yellapur Police registered the case and accused persons were taken to the custody. Based on their statement, snatched managalsutra was recovered from the custody of accused No.1.

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After thorough investigation, charge sheet came

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to be filed inter alia seizing the motorcycle on which the accused persons were trying to escape away from the

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place of incident and also noted that they have manipulated the chassis, engine and registration number of the motorcycle.

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On receipt of the charge sheet, learned Trial Judge took cognizance of the offences and framed

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charges. Accused pleaded not guilty and thereafter, trial was held.

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Prosecution in order to bring home the guilt of

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the accused persons, examined 16 witnesses as P.W.1 to 16 and 15 documentary evidence were placed on record which were exhibited and marked as Exs.P.1 to 15.

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Material objects were three in number which were also marked as MO.1 to 3 consisting of mangalsutra chain, piece of mangalsutra and motorcycle with which accused Nos.1 and 2 tried to escape.

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Detailed cross-examination of the prosecution witnesses did not yield any positive materials inasmuch as the witnesses stood the searching cross-examination and recovery of MO.1 to 3 has also been established by placing cogent and convincing evidence on record.

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Thereafter, learned Trial Judge recorded the accused statement as is contemplated under Section 313 of Cr.P.C. wherein accused has denied all the incriminatory

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circumstances but failed to place their version on record nor laid any defence evidence.

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Thereafter, Learned Trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record especially, identification of the accused persons have been established by the complainant and C.W.7 and recovery of the material objects from the custody of the accused persons, convicted the accused persons and sentenced as referred to supra.

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Both the accused persons filed separate appeals before the First Appellate Court in Crl.A.Nos.96/2011 and 101/2011.

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Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and in the light of the appeal grounds raised in the respective appeals, reappreciated the material

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evidence on record and dismissed both the appeals by considered judgment dated 15.09.2017.

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It is submitted that accused No.1 did not choose to take up the matter further; whereas, being aggrieved by the order of conviction passed by the learned Trial Judge confirmed by the First Appellate Court, accused No.2 has filed the present revision petition.

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Sri.S.R.Hegde, learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that learned Trial Judge failed to note that the recovery of the precious ornaments is from the custody of accused No.1.

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He would further submit that at the most, material evidence on record would only indicate the action attributable to the accused No.2 is to the offence traceable under Section 324 of IPC and therefore, sought for allowing the revision petition atleast in part.

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Alternatively, he would also contend that revision petitioner is now aged about 42 years and is married person and well settled with his family and having two children to maintain. At this distance of time, if he is directed to join the prison, untold hardship will be caused not only to the revision petitioner but also his family members.

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He would further emphasize the fact that it is an isolated incident and there is no criminal antecedents for the revision petitioner. So also, there is no complaint against the revision petitioner post the present incident. Thus, sought for taking a lenient view by directing the custody period already undergone by him as period of imprisonment by enhancing the fine amount reasonably.

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Per contra, Sri.Praveen Devareddyavar, learned High Court Government Pleader supports the impugned judgments.

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He would further contend that in the matter of this nature, there need not be recovery of robbed articles from both the accused persons. Fact remains that it was a joint act committed by both the accused persons inasmuch as when accused No.1 snatched MO.1 from the neck of the complainant, it is accused No.2 who was able to flee away from the spot on a motorcycle wherein engine, chassis and registration number were manipulated by both the accused persons.

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He would further contend that it is a premeditated act of both the accused persons and but for the active assistance given by accused No.2, accused No.1 could not have accomplished the act of snatching MO.1 from the neck of the complainant.

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He would also contend that C.W.7 chased the accused persons, in order to escape away from their clutches, accused No.2 bitten the hand of C.W.7 which is established by examining C.W.7 before the Court and injury certificate that has been placed on record.

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He would further contend that, material

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evidence available on record would be sufficient enough to maintain the conviction of both the accused persons for the aforesaid offences.

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Insofar as alternate submission is concerned, learned High Court Government Pleader contends that if any leniency is shown for the people like the revision petitioner, it would not only send a wrong message to the society but also encourages similarly placed perpetrators of the crime to indulge in such activities in future and therefore, sought for dismissal of the revision petition.

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Having heard the parties in detail, this Court perused the material on record meticulously.

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On such perusal of the material on record, following points would arise for consideration:

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1. Whether the revision petitioner makes out a case that impugned judgments are suffering from legal infirmity or perversity or patent factual error so as to call for interference in this revisional jurisdiction?

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2. Whether the sentence needs modification?

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3. What order?

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REG.POINT No.1:

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In the case on hand, on the date of incident itself, by virtue of C.W.7 chasing accused No.1 on a motorcycle and intercepted them near Akbargalli and thereafter, general public were able to apprehend the revision petitioner and accused No.1 stands established by placing cogent and convincing evidence on record.

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Based on the complaint lodged by Jayashree, Yellapur Police registered the case and apprehended accused persons were taken to the custody by the police and on enquiry, MO.1 to 3 have been recovered from the custody of accused Nos.1 and 2.

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Admittedly, MO.3 – motorcycle was used in the incident. Chassis, engine and registration number of the motorcycle were manipulated by both the accused persons which in to be construed as sufficient preparation to commit the act of Robbery.

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All these factors when viewed cumulatively, there was a premeditated plan for robbing and for which accused Nos.1 and 2 are equally responsible.

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It is pertinent to note that when once MO.1 was snatched from the neck of the complainant, it is accused No.2 who took accused No.1 on the MO.3-motorcycle and tried to flee away from the spot. If they were successful in doing so, the incident could not have been nabbed by the police at all. It is C.W.7 who chased them and was successful in apprehending accused Nos.1 and 2.

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Further, recovery of MO.1 to 3 under the panchanama has been established by the prosecution by examining panch witnesses. MO.1 and 2 is identified by

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the complainant and she has identified the accused persons also before the Court.

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All these factors when viewed cumulatively, arguments put forward on behalf of the revision petitioner since there is no recovery of the valuable material from the custody of accused No.2, he cannot be held responsible for the offence punishable under Section 394 of IPC cannot be countenanced in law.

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On the contrary, material evidence placed on record, would sufficiently establish the role played by accused No.2 in the incident as well. Therefore, point No.1 is to be answered in negative having regard to the limited scope of revisional jurisdiction as is held in Amit Kapoor

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v. Ramesh Chander and Another reported in (2012)9 SCC 460.

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REG.POINT No.2:

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Sri.S.R.Hegde, learned counsel for the revision

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petitioner made an alternate submission that since the

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accused is now aged about 42 years and having family to maintain including a girl child. Taking note of the fact that it is an isolated incident and revision petitioner is not having any criminal antecedents, custody period of 10 days already undergone by the revision petitioner may be treated as period of imprisonment by enhancing the fine amount reasonably.

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Sri.Praveen Devareddyavar, learned High Court Government Pleader however opposed the said submission.

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Taking note of the fact that it is an isolated incident especially in the absence of criminal antecedents to the revision petitioner and there is no complaint post the present incident against the revision petitioner, this Court is of the considered opinion that enhancing the fine amount in a sum of Rs.1,00,000/- payable by accused No.2, if the custody period already undergone by him is treated as period of imprisonment for the offence punishable under Section 394 of IPC, as there is no

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minimum punishment prescribed for the said offence, ends of justice would be met.

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Further, out of the fine amount recovered, sum of Rs.75,000/- is ordered to be paid as compensation to the complainant and sum of Rs.10,000/- to C.W.7 – P.W.4, ends of justice would be served better. Accordingly, point No.2 is answered partly in the affirmative.

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REG.POINT No.4:

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In view of the findings of this Court on point Nos.1 to 3 as above, following:

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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 the revision petitioner/accused No.2 for the offence punishable under Section 394 of IPC, custody period of 10 days already undergone by the revision petitioner is treated as period of imprisonment for the said offence by directing

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the revision petitioner to pay enhanced fine amount of Rs.1,00,000/- (Rs.1,00,000/- + Rs.10,000 = Rs.1,10,000/-) on or before 30.03.2025 failing which the revision petitioner shall undergo imprisonment as ordered by the learned Trial Judge confirmed by the First Appellate Court.

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iii. Further, out of the fine amount recovered, sum of Rs.75,000/- is ordered to be paid as compensation to P.W.1 – Jayashree and sum of Rs.10,000/- to P.W.4 - Srinivas Murdeshwar as compensation under due identification.

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Office is directed to return the Trial Court Records

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with copy of this order forthwith after issuing modified conviction warrant.

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Sd/(V.SRISHANANDA) JUDGE

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KAV CT:PA List No.: 2 Sl No.: 52

Sri Ullas S/O Sripad Raikar v. the State of Karnataka

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Sri Ullas S/O Sripad Raikar v. the State of Karnataka

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