Sri P a Shashikumar Vs the State of Karnataka

(BY SRI K.NAGESHWARAPPA, HIGH COURT GOVERNMENT PLEADER) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENTS AND ORDERS PASSED ON 02.07.2018, IN THE COURT OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, KOLAR IN CRIMINAL APPEAL NO.28/2016, AND THE JUDGMENT AND ORDER OF CONVICTION DATED 07.09.2016, IN C.C.NO.187/2014, PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,

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NC: 2026:KHC:13964 CRL.RP No. 763 of 2018

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HC-KAR

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KOLAR AND ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 392 OF INDIAN PENAL CODE.

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THIS PETITION, 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 M.R. Nanjunda Gowda, learned counsel for the revision petitioner and Sri K. Nageshwarappa, learned High Court Government Pleader for the respondent/State.

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Revision petitioner is the accused who suffered an order of conviction dated 07.09.2016 for the offence punishable under Section 392 of Indian Penal Code in C.C.No.187/2014, on the file of Principal Senior Civil Judge and CJM., Kolar, confirmed in Criminal Appeal No.28/2016, dated 02.07.2018, on the file of Principal District and Sessions Judge, Kolar.

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Before the Trial Magistrate, the revision petitioner has been sentenced as under:

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“The accused is sentenced to undergo rigorous imprisonment for a period of 3 years and further sentenced to pay a fine of Rs.5,000/- IDSI for 90 days for the offence punishable U/s. 392 of the IPC.

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NC: 2026:KHC:13964 CRL.RP No. 763 of 2018

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HC-KAR

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The interim order passed by this court in giving custody of the golden mangalya chain to the applicant shall become absolute after completion of the appeal period.

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I call upon the office to issue certified copy of this judgement at free of cost to the accused forthwith.”

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

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4.1 Kolar town police filed a charge against the accused after thorough investigation in respect of a complaint lodged by Smt. Prabhavatamma, a housewife, which was registered in Cr.No.271/2013 for the offence punishable under Section 392 of Indian Penal Code.

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The gist of the prosecution case is that on 06.12.2013 at about 09.00 p.m., when the complainant was sweeping the front yard of her house and was filling the water, some unknown person came there and snatched the gold chain from her neck, weighing about 40 grams and ran away from the spot.

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HC-KAR

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5.1. During the course of investigation petitioner was

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apprehended and the snatched gold chain was recovered from his room which was hidden in his room. The gold chain was worth Rs.1,35,000/-. Gold chain is identified by the complainant after the same was recovered from the custody of the accused, pursuant to voluntary statement given by the accused under Section 27 of the Indian Evidence Act.

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Learned Trial Magistrate after securing the presence of the accused, framed the charges and accused pleaded not guilty. Therefore trial was held. After due trial, accused came to be convicted as there was no explanation forthcoming from the accused as to possession of the recovered gold chain marked at M.O.1.

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Order of conviction and sentence was challenged before the First Appellate Court.

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Learned judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-appreciation of the material evidence on record dismissed the appeal on merits.

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HC-KAR

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Being further aggrieved by the same, accused is before this court.

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Sri. M. R. Nanjunda Gowda, learned counsel for the revision petitioner with vehemence contended that contradictions elicited in the case of the prosecution through cross examination of the prosecution witnesses is totally ignored by the learned trial judge while convicting the accused resulting in miscarriage of justice.

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He would further contend that learned judge in the First Appellate Court mechanically dismissed the appeal, which has further resulted in miscarriage of justice and sought for allowing the revision petition.

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Alternatively, Sri M.R. Nanjunda Gowda would contend that in the event this Court upholding the order of conviction, taking note of the fact that the accused is a first time offender and is now leading his life decently by working as an Engineer and is a married person with family to maintain,

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the custody already undergone by the revision petitioner may be treated as period of imprisonment for the offence punishable under Section 392 of Indian Penal Code by enhancing the fine

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NC: 2026:KHC:13964 CRL.RP No. 763 of 2018

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HC-KAR

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amount reasonably, which can be paid as compensation to the complainant as well.

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Per contra, Sri K. Nageshwarappa, learned High Court Government Pleader would oppose the grounds of revision on all counts.

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He would further contend that the concurrent finding of fact that the accused is guilty of the offence punishable under Section 392 of Indian Penal Code is based on cogent and convincing material evidence placed by the prosecution beyond reasonable doubt and therefore order of conviction needs no interference.

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Insofar as alternate submission is concerned, learned High Court Government Pleader would contend that people like the present revision petitioner are allowed to go scot-free only by treating the period of custody as period of imprisonment, it would encourage similarly placed perpetrators of the crime and sends a wrong message to the society 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 in a matter of this nature, recovery of the robbed item strengthens the case of prosecution.

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Crowning all these things, no explanation is forthcoming from the accused as to possession of the gold chain in his room nor it was his case that he has purchased the same for his family members. He had no capacity to purchase such a valuable gold chain to possess the same in his room.

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Taking note of these aspects of the matter and pursuant to the voluntary statement given by him, M.O.1 being recovered from the custody of the accused from his room, would be sufficient enough to conclude that the accused has snatched the gold chain from the neck of the complainant.

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M.O.1 is identified by the complainant and the same was the chain which was snatched from her neck.

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All these factors when viewed cumulatively, few minor contradictions that are elicited in the cross examination of the witnesses of the prosecution should not come in the way of affirming the order of conviction recorded by the Trial Magistrate, confirmed by the First Appellate Court.

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HC-KAR

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Having said so, admittedly accused is a first time offender, in the absence of criminal antecedents, taking note of the fact that accused is now a family person, leading his life decently by working as an Engineer, this Court is of the considered opinion that if the custody period already undergone is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.75,000/-, ends of justice would be met. Entire sum of Rs.75,000/- can be paid as compensation to the complainant as well.

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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 accused for the offence punishable under Section 392 of Indian Penal Code, the custody period already undergone by the revision petitioner is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.75,000/- payable on or before 10.04.2026, failing which the sentence stands restored automatically.

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HC-KAR

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(iii) On receipt of the fine amount, entire fine amount shall be paid as compensation to complainant under due identification.

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

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Sd/(V SRISHANANDA) JUDGE

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MR List No.: 1 Sl No.: 67

Sri P a Shashikumar v. the State of Karnataka

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Sri P a Shashikumar v. the State of Karnataka

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