Narasimha Murthy Vs State of Karnataka by

THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCES DATED 21.03.2016 PASSED BY THE CIVIL JUDGE AND J.M.F.C., THIRTHAHALLI IN C.C.NO.764/2004 AND ALSO SET ASIDE THE CONFIRMED JUDGMENT AND ORDER DATED 18.12.2017 PASSED BY THE III ADDITIONAL SESSIONS JUDGE, SHIVAMOGGA IN CRL.A.NO.37/2016 AND CONSEQUENTLY ACQUIT THE PETITIONER FROM THE ALLEGED CHARGES.

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NC: 2026:KHC:14717 CRL.RP No. 65 of 2018

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HC-KAR

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri.Basavaraju T. A., learned counsel for the revision petitioner and Sri.K.Nageshwarappa, learned High Court Government Pleader for the State/respondent.

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Revision petitioner is accused No.2 who has suffered an order of conviction for the offence punishable under Sections 392 and 452 of Indian Penal Code (hereinafter ‘IPC’ for short) and directed to undergo rigorous imprisonment for a period of one year and simple imprisonment for a period of one year for the aforesaid offences respectively with fine amount of Rs.3,000/- each for each of the offences with default sentence of one month simple imprisonment which was confirmed in Crl.A.No.37/2016.

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HC-KAR

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Facts in the nutshell which are utmost

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necessary for disposal of the present revision petition are as under:

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3.1. A complaint came to be lodged with Thirthahalli

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Police Station by Nalini (P.W.1) by contending that when she was in the house on 14.06.2004, three persons forcibly entered her house and threatened the complainant by showing the deadly weapons and thereafter, tied her in the bedroom with the help of ropes and snatched the gold ornaments, silk sarees and other valuable gold and silver articles worth Rs.2,94,792/- and thereafter, confined her in the pooja room and ran away from the spot.

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3.2. Complaint was received at about 11.45 a.m. on 14.06.2004 and thereafter, police registered the case and conducted detailed investigation inter alia arrested all the accused persons and filed charge sheet.

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HC-KAR

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3.3. Recovery of the gold and silver articles and silk

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sarees was part of the charge sheet based on the voluntary statement offered by accused Nos.1 to 3.

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After due trial, accused persons were convicted

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and sentenced as referred to supra.

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Being aggrieved by the same, accused No.2

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alone filed an appeal as accused Nos.1 and 3 died during the pendency of the trial.

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Said appeal was heard by the learned Judge in the First Appellate Court and by considered judgment dated 18.12.2017, appeal came to be dismissed.

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Being further aggrieved by the same, accused No.2 is before this Court, in this revision petition.

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Learned counsel for the revision petitioner reiterating the grounds urged in the revision petition vehemently contended that identification of the present revision petitioner is not established before the Trial Court and accused Nos.1 and 3 having died, entire blame is put

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HC-KAR

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on the present revision petitioner without there being any plausible evidence placed on record and thus, sought for allowing the revision petition.

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Alternatively, he would contend that in the event, this Court, upholding the order of conviction, having regard to the limited scope of revisional

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jurisdiction, this Court may consider the enhancing the fine amount by directing the custody period already undergone by the accused as period of sentence for the proved offence taking note of the fact that incident is 24 years old and revision petitioner is now well settled in the society having a family to maintain.

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He would further contend that revision petitioner is now working as a pastor in the Church assisting the Father and doing social work and therefore, sought for showing lenience.

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Per contra, learned High Court Government Pleader for the State/respondent while opposing the

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HC-KAR

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revision grounds would contend that recovery of the robbed articles based on the voluntary statement given by all the accused persons is the basis for filing the charge sheet for the offence punishable under Sections 392 and 452 of IPC which has been established before the Trial Court with proper and cogent evidence on record and therefore, hardly there is any scope to revise the well reasoned judgments passed by both the Courts and thus sought for dismissal of the revision petition.

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Insofar as alternate submission is concerned, offence under Sections 392 and 452 of IPC are heinous in nature only on the ground that accused Nos.1 and 3 are no more and at present, accused is working as pastor in the Church would not ipso facto act as a mitigating circumstance for showing lenience to the revision petitioner and sought for dismissal of the revision petition in toto .

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

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HC-KAR

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On such perusal of the material on record, it is crystal clear that robbed articles from the house of the complainant are recovered by the Thirthahalli Police during the course of investigation after apprehending all the accused persons including the present revision petitioner.

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Admittedly, those recoveries are based on the voluntary statements given by the accused persons.

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Fact remains that a helpless lady has been robbed that too in her house in a broad day light in Thirthahalli Town.

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Taking note of the material evidence placed on record and identification of the accused persons before the Court and recovered articles and the sarees being identified by the complainant, the order of conviction recorded by the learned Trial Magistrate confirmed by the First Appellate Court needs no interference that too in the revisional jurisdiction.

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HC-KAR

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Having said thus, the alternate submission made on behalf of the revision petitioner needs

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consideration.

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Admittedly, revision petitioner is not having any criminal antecedents. The punishment imposed by both the Courts was capable of consideration under the Probation of Offenders Act.

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However, since the revision petitioner is not having any criminal antecedents and is a first time offender and now working as a pastor in the Church, assisting the Father of the Church at Birur and revision petitioner is also indulged in social service, custody period already undergone by the revision petitioner, if treated as period of imprisonment, by enhancing the fine amount in a sum of Rs.60,000/- which can be paid as compensation to P.W.1, would meet the ends of justice in the attendant facts and circumstances of the case.

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HC-KAR

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21. Accordingly, the following:

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ORDER

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i. 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 Sections 392 and 452 of IPC, custody period already undergone by the revision petitioner if treated as period of imprisonment by enhancing the fine amount in a sum of Rs.60,000/- payable in two installments before the Trial Court, first installment to be paid on or before 25.03.2026 and second installment is to be paid on or before 10.04.2026.

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iii. On receipt of entire fine amount, same shall be paid as compensation to P.W.1 – Nalini under due identification.

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