Sri Prashanth Kotian Vs the State of Karnataka

SRI PRASHANTH KOTIAN @ PACHU AGED ABOUT 36 YEARS S/O KRISHNA POOJARY R/O UDYAVARA KALAIBAILU HOUSE NEAR GANAPATHY TEMPLE UDYAVARA VILLAGE UDUPI TALUK- 576 101

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…PETITIONER

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(BY SRI HAREESH BHANDARY.T, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA UPPINANGADY POLICE STATION UPPINANGADI

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Digitally signed UPPINANGADI by R MANJUNATHA REPRESENTED BY STATE PUBLIC PROSECUTOR Location: HIGH HIGH COURT BUILDINGS COURT OF BENGALURU – 560 001 KARNATAKA

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…RESPONDENT (BY SRI K.NAGESHWARAPPA, HIGH COURT GOVERNMENT PLEADER)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 16.4.2012 PASSED BY THE CIVIL JUDGE AND J.M.F.C., BELTHANGADY, D.K. IN C.C.NO.4/2010 AND THE

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NC: 2026:KHC:15268 CRL.RP No. 1654 of 2016 C/W CRL.RP No. 356 of 2017

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HC-KAR

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JUDGMENT AND ORDER DATED 27.2.2016 PASSED BY THE II ADDL. DIST. AND S.J., D.K., MANGALURU IN CRL.A.NO.113/2012 AND ACQUIT HIM OF THE OFFENCES FOR WHICH HE WAS CONVICTED BY THE COURTS BELOW.

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IN CRL.RP NO. 356/2017

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BETWEEN:

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PRAMOD KUMAR S/O RAJU A M AGED ABOUT 31 YEARS, R/O CHENDEHITHLU HOUSE BILINELE VILLAGE, PUTTUR TALUK D K DISTRICT.

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...PETITIONER

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(BY SRI. SUYOG HERELE E, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED UPPINANGADY POLICE STATION D K DISTRICT REPRESENTED BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE – 560 001.

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...RESPONDENT (BY SRI K.NAGESHWARAPPA, HIGH COURT GOVERNMENT PLEADER)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND THE ORDER DATED 16.04.2012 PASSED BY THE LEARNED CIVIL JUDE AND JMFC, BELTHANGADY, D.K., IN C.C.NO.4/2010 AND ALSO AFFIRMED BY THE ORDER DATED 27.02.2016 PASSED BY THE II ADDL. S.J., D.K., MANGALORE IN CRL.A.NO.108/2012 AND CONSEQUENTLY ACQUIT THE PETITIONER.

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HC-KAR

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THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Hareesh Bhandari T., learned counsel for the revision petitioner/accused No.2 in Crl.RP.No.1654/2016, Sri Suyog Herele E., learned counsel for revision petitioner/accused No.1 in Crl.RP.No.356/2017 and Sri K.Nageshwarappa, learned High Court Government Pleader for the respondent/State.

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These two revision petitions are filed by accused No.2 and 1 who suffered an order of conviction for the offence punishable under Section 392 of Indian Penal Code in C.C.No.04/2010, on the file of Civil Judge and JMFC., Belthangady, Dakshina, Kannada, confirmed in Criminal Appeal No.108/2012 and 113/2012 respectively.

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

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3.1. Belthangady Police filed a charge sheet against the revision petitioners for the offence punishable under Section 392 of Indian Penal Code.

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HC-KAR

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3.2. Charge sheet materials would reveal that on 28.11.2009 at about 11.30 a.m. when complainant was proceeding on the mud road at Hallingari of Kokkada Village, these two accused persons said to have arrived there on a motorcycle bearing registration No.K.A.19/W-5984. Accused No.1 was riding the motorcycle and accused No.2 being the pillion rider of the said motorcycle, snatched the gold karimani chain worth Rs.39,144/- from the neck of the complainant.

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3.3. Police after thorough investigation, apprehended both the accused persons and based on the voluntary statement, recovered the robbed gold chain and filed the charge sheet against the accused persons.

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Learned Trial Magistrate after securing the presence of the accused, framed the charges against the accused for the offence under Section 392 of Indian Penal Code. Since accused persons pleaded not guilty, trial was held.

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In the trial, prosecution in order to bring home the guilt of the accused examined twelve witnesses as P.W.1 to P.W.12 and placed on record thirteen documents which are

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HC-KAR

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exhibited and marked as Ex.P.1 to Ex.P.13 besides marking the gold chain as M.O.1.

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On conclusion of recording of evidence, learned Trial Magistrate put the incriminatory circumstances to the accused persons while recording the accused statement as is contemplated under Section 313 Cr.P.C. Both the accused persons have flatly denied the incriminatory circumstances, but did not offer any explanation as to the possession of the gold chain which was recovered under the recovery panchanama based on the voluntary statements given by the accused persons.

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Thereafter learned Trial Magistrate heard the arguments of the parties and connected the accused for the offence under Section 392 of Indian Penal Code and sentenced as under:

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“The accused No.1 and 2 hereby convicted and sentenced to undergo rigorous imprisonment for a period of two years and further sentenced to pay fine of Rs.1000/- each for the offence punishable under Section 392 of Indian Penal Code.

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HC-KAR

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In default to pay fine the accused No.1 and 2 shall under go further imprisonment for a period of three months.

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If the accused No.1 and 2 have suffered J.C earlier in this case, they are entitled for set off of the said period in conviction period.

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Supply free copy of the Judgment to the accused No.1 and 2.

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Issue conviction warrant.

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Order made earlier with regard to M.0.1- Thali

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chain is made absolute.

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Further order made earlier with regard to the

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interim custody of the vehicle is made absolute.”

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Being aggrieved by the same, accused persons filed appeals as referred to supra before the District Court.

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Learned judge in the First Appellate Court after securing the records heard the arguments of the parties, reappreciated the material evidence and dismissed both the appeals by considered judgment dated 27.02.2016.

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Being further aggrieved by the same, accused persons have preferred these two revisions before this court.

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Sri Hareesh Bhandary T., and Sri Suyog Herele E, learned counsel for the revision petitioners reiterating the

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HC-KAR

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grounds urged in the revision petitions would vehemently contend that both the Courts have not properly appreciated the material evidence on record and recovered M.O.1 under the voluntary statement of accused persons recorded under Section 27 of the Indian Evidence Act, is nothing but a concoction and accused persons have been falsely implicated in the case and sought for allowing the revision petition.

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They would also contend that there is no fair opportunity before the First Appellate Court and thus sought for allowing the revision petition.

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Per contra, Sri K. Nageshwarappa, learned High Court Government Pleader contended that the recovery of gold chain from the custody of the accused persons pursuant to the voluntary statement completes the offence under Section 392 of Indian Penal Code.

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He would further contend that the accused persons were admittedly strangers to P.W.1 and she has identified them before the Court and that would be sufficient enough to conclude all ingredients of the offence under Section 392 of Indian Penal Code and thus sought for dismissal of the revision petitions.

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HC-KAR

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In reply, Sri Hareesh Bhandary T., and Sri Suyog Herele E., learned counsel for the revision petitioners would contend that in the event this Court upholding the order of conviction, custody period already undergone by them may be treated as period of imprisonment as admittedly the accused persons are first time offenders having no criminal antecedents by enhancing the fine amount reasonably.

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Having heard the arguments of both sides this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that P.W.1 did not possess any previous enmity or animosity against the accused persons to depose against them.

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Admittedly, the gold chain that was snatched from the neck of P.W.1 is recovered by the Investigation Agency after their apprehension and pursuant to the voluntary statements given by them. Same is identified by P.W.1 and also accused persons.

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It is highly difficult to appreciate the alleged minor contradictions would create the doubt in the case of the prosecution inasmuch as P.W.1 has seen the accused persons for the first time, that too when they arrived at the spot and

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NC: 2026:KHC:15268 CRL.RP No. 1654 of 2016 C/W CRL.RP No. 356 of 2017

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HC-KAR

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snatched the gold chain and ran away from the spot on the motorcycle.

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In a matter of this nature, there is no sufficient explanation offered by the accused persons for the possession of the snatched gold chain marked at M.O.1. Therefore, the order of conviction recorded by Trial Magistrate, confirmed by the First Appellate Court needs no interference.

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Other lacunae like identity of accused etc., pointed out by the counsel for revision petitioners are incapable of comprehension having regard to the nature of the offence and the overwhelming material evidence placed on record on behalf of the prosecution.

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Therefore, having regard to the limited revisional jurisdiction, this Court does not find any good reasons to interfere with the order of conviction recorded by the Trial Magistrate, confirmed by the First Appellate Court.

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Having said so, the learned High Court Government Pleader did not dispute that the Revision petitioners are the first time offenders. They have now settled comfortably in the life and eking out their livelihood by decent manner.

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HC-KAR

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It is to be borne in mind that every sinner has a

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future. Therefore, the offence that has been committed for the first time by the accused persons when they were in young age should not now result in unsettling the life of the petitioners herein.

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At the same time, remaining period of sentence cannot be set aside without imposing the reasonable fine which can be paid as compensation to P.W.1.

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Accordingly, this Court is of the considered opinion that custody period already undergone by the accused if treated as period of imprisonment by enhancing the fine amount in a sum of Rs.50,000/- each, of which sum of Rs.90,000/- can be paid as compensation to the P.W.1 would meet the ends of justice.

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Accordingly, the following:

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ORDER

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(i) Revision petitions are allowed in part.

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(ii) While maintaining the conviction of the accused persons/revision petitioners for the offence punishable under Section 392 of Indian Penal Code, custody period already undergone by

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HC-KAR

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them is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.50,000/- each payable by each of the revision petitioners on or before 31.03.2026.

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(iii) On receipt of the enhanced fine amount, the learned Trial Magistrate shall secure the presence of P.W.1 and pay Rs.90,000/- as compensation under Section 357 of Code of Criminal Procedure.

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(iv) If the petitioners failed to pay the enhanced fine amount on or before 31.03.2026, the sentence of imprisonment as ordered by Trial Magistrate confirmed by the First Appellate Court stand restored automatically.

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(v) Office is directed to return the Trial Court records with copy of this order forthwith for issue of modified conviction warrant.

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(vi) Ordered accordingly.

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Sd/(V SRISHANANDA) JUDGE

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MR

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List No.: 1 Sl No.: 83

Sri Prashanth Kotian v. the State of Karnataka

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Sri Prashanth Kotian v. the State of Karnataka

Case brief

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