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2016 DIGILAW 48 (KAR)

Chandrashekara v. State of Karnataka

2016-01-13

A.V.CHANDRASHEKARA

body2016
ORDER : A.V. Chandrashekara, J. 1. The present revision petition is filed under Section 397, Cr.P.C. challenging the judgment of conviction and sentence passed by the JMFC, Arsikere, in C.C. 426/08 and affirmation of the same in Crl. A. 104/08 by the learned Principal Sessions Judge, Hassan, Petitioners herein were the accused in the said case registered by the respondent police for the offences punishable under Sections 457 and 380, I.P.C. Petitioners have been directed to undergo SI for a period of three years each and to pay a fine of Rs. 2,000/- vide judgment dated 5.8.2008. 2. The facts leading to the filing of the case are as follows: (a) On 27.4.2007, it is alleged, they had lurked into the house of the first informant at Arsikere and committed theft of silver articles worth Rs. 23,000/- after breaking open the padlock of the trunk. On receipt of the first information, the SHO registered a case and sent it to the court. After visiting the spot, spot mahazar was drawn and the case was handed over to PSI for further investigation. (b) The accused were arrested on 22.10.2007 by the City Market police relating to a case registered by them and during the course of investigation, the voluntary statements of the accused were recorded by the police and it was revealed to the City Market police that they had committed theft at Arsikere and sold the silver articles to Mr. Suresh of Mandya. On the basis of the voluntary statements, the stolen articles were recovered at the instance of the accused, from Suresh. Since the theft was done at Arsikere by lurking into the house of PW - 1, charge sheet was filed by Arsikere Rural police station. (c) In order to bring home the guilt of the accused, prosecution has examined in all 15 witnesses and 13 documents. Four material objects have been got marked. Accused have been examined under Section 313, Cr.P.C. but have not led evidence on their behalf. Ultimately they have been convicted and sentenced to undergo imprisonment by framing the following points for consideration as found in paragraph 6 of the judgment: 1. Four material objects have been got marked. Accused have been examined under Section 313, Cr.P.C. but have not led evidence on their behalf. Ultimately they have been convicted and sentenced to undergo imprisonment by framing the following points for consideration as found in paragraph 6 of the judgment: 1. Whether the prosecution proves beyond all reasonable doubt that on 27.4.07 during night hours these accused in furtherance of their common intention to commit theft, entered in to the house of complainant by break open door lock and thereby committed the offence punishable U/s. 457 r/w. 34 IPC? 2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time, place these accused committed theft of silver articles worth Rs. 23,000/- from the house of complainant by break open and padlock of the trunk and thereby committed an offence punishable U/s. 380 r/w. 34 IPC? 3. What Order? 3. The first informant has been examined as PW - 1. It is in his house that the theft of silver articles worth Rs. 23,000/- took place. He was not in the house since he had been to Bengaluru to look after his mother who was admitted to Shobha Nursing Home. He received a telephonic message to the effect that his house had been burgled. He came back to Arsikere and found the silver articles missing. Therefore he chose to lodge first information. Police came to the spot and spot mahazar was done. On 4.11.2007, Bengaluru police had called him to City Market police station and showed the silver articles. He identified the same as belonging to him. These articles were given to the interim custody of the complainant. 4. PW 2-Ramachandra and PW 3-Chandrashekar are witnesses to the spot mahazar drawn at Arsikere. PW - 8, PW - 9, PW - 10 and PW - 14 are all police officers. They have spoken about the arrest of the accused at Bengaluru. PW - 14 received the information that some persons had assembled in a car near Mahaveer Drug Houser of HMS Galli, O.T. Pete Cross to commit robbery. Then he went to the spot along with PWs - 9 to 12 and arrested this accused. According to him, the car which was in the front left the place immediately. 5. PW - 7 is a police constable who submitted the FIR to the court. Then he went to the spot along with PWs - 9 to 12 and arrested this accused. According to him, the car which was in the front left the place immediately. 5. PW - 7 is a police constable who submitted the FIR to the court. PW-12 is the 10 who deposed about the investigation conducted by him. Suresh, from whom the silver articles were recovered, is examined as PW - 4 and his brother - Uday Kumar attested to Ex. P3 is examined as PW - 6. The learned judge has come to the conclusion that the articles, i.e. M.Os. 1 to 4 belonged to PW - 1 and that they were recovered at the instance of the accused from PW - 4; and therefore, a specific case is made out. In this regard, they have been convicted and sentenced to undergo imprisonment as stated above. 6. The learned judge of the first appellate court has re-assessed the evidence and has come to the conclusion that the main witnesses have withstood the rigor of cross-examination and a clear case is made out for the offences punishable under Sections 457 and 380, I.P.C. 7. Learned counsel for the revision petitioner is absent. 8. Neither criminal revision petition nor criminal appeal should be dismissed for default. All efforts should be made by the Court to dispose of the matter on merits. 9. Heard Sri Rachaiah, learned HCGP. He has argued that through Mr. Suresh - PW - 4 who had received the silver articles of these petitioners has not supported the case of the prosecution, the accused have not stated anything about these silver articles being found in the house of PW - 4-Suresh, when they were examined under Section 313 of Cr.P.C. It is argued that the accused have not chosen to suggest to the PSI of City Market police station who recovered the articles i.e., M.Os. 1 to 4 that extrajudicial confession was obtained under duress. He has further argued that the Courts below have adopted right approach to the real state of affairs by properly analyzing the materials placed on record. Hence, he requests to uphold the conviction and sentence passed by the trial Court and affirmed by the First Appellate Court. 10. 1 to 4 that extrajudicial confession was obtained under duress. He has further argued that the Courts below have adopted right approach to the real state of affairs by properly analyzing the materials placed on record. Hence, he requests to uphold the conviction and sentence passed by the trial Court and affirmed by the First Appellate Court. 10. After hearing the learned HCGP and after perusal of the records, the points that arise for consideration by this Court is as follows: "Whether the trial Court has properly analyzed the evidence of material witnesses namely PW - 4-Suresh and PW-6 - R. Udayakumar, in order to come to the conclusion that the M.Os. 1 to 4 had been purchased by them from the accused and that they were handed over to the police vide Ex. P3 - seizure mahazar?" 11. The prosecution is expected to prove the guilt beyond reasonable doubt. What is reasonable doubt is dealt by the Hon'ble Supreme Court in the case of STATE OF UP vs. KRISHNA GOPAL & ANR, AIR 1988 SC 2154 . Unless the initial doubt is effectively discharged, the onus does not shift on the other side. 12. PW - 1-Nagaraj has deposed that M.Os. 1 to 4 absolutely belong to his mother and it is not in dispute. While cross examining him, counsel for the accused has not denied the identity of M.Os. 1 to 4 being the properties of PW - 4. The accused have not laid any claim over these properties. In fact, PW - 1 has identified the M.Os. 1 to 4 as belonging to the mother. There is no reasons to disbelieve his version. 13. The crucial question is as to whether the prosecution has been able to link the chain in the present case. The prosecution is expected to prove that Suresh who has been examined as PW - 4 had purchased or received M.Os. 1 to 4 from the accused and that the police seized the same under Ex. P3 - seizure mahazar. 14. Mr.Udayakumar, is examined as PW-6 and his brother - Suresh is examined as PW - 4. PW - 6 has attested Ex. P3. PW - 6 has not supported the case of the prosecution in any manner. 1 to 4 from the accused and that the police seized the same under Ex. P3 - seizure mahazar. 14. Mr.Udayakumar, is examined as PW-6 and his brother - Suresh is examined as PW - 4. PW - 6 has attested Ex. P3. PW - 6 has not supported the case of the prosecution in any manner. Even Suresh-PW - 4 has not supported the case of the prosecution, inspite of thoroughly cross examined by the learned Public Prosecutor with the permission of the Court. 15. In a case of theft, the seizure will have to be proved. The seizure is based upon the information stated to have been given by the accused, while they were in judicial custody. Such an information is always permissible under Section 27 of the Indian Evidence Act. Both the main witnesses i.e., Suresh and his brother - Udayakumar have not supported the case of the prosecution. Ex. P9 and P10 are stated to be the voluntary statement given by accused Nos. 1 and 2 to the City Market Police on 22.10.2007. Signatures of both these accused are found at Ex. P9 and 10 and PSI of City Market Police who drew Ex. P3 - seizure mahazar is examined as PW - 11. In his cross examination, he has deposed about the accused giving voluntary statement relating to the sale of M.Os. 1 to 4 to one Suresh of Mandya. During the course of cross examination, it is specifically suggested to PW - 11 that accused did not give any voluntary statement as deposed by him. 16. Voluntary statements of the accused were recorded on 22.10.2007. The delay in recovering the M.Os. 1 to 4 at Mandya Town is because of the fact that the accused had committed theft of different articles at different places and had sold them to different persons and hence time was consumed in recovery. 17. It is true that the police at Arsikere chose to draw mahazar in the house of PW 1 after the receipt of first information relating to the theft of silver articles. Though PW 4-Suresh has not supported the case of the prosecution in its entirety relating to M.Os. 17. It is true that the police at Arsikere chose to draw mahazar in the house of PW 1 after the receipt of first information relating to the theft of silver articles. Though PW 4-Suresh has not supported the case of the prosecution in its entirety relating to M.Os. 1 to 4 from being handed over the same to the City Market police at BEngaluru, he has specifically deposed that two accused persons who were before the court had been brought near his house along with Yobbannachar and the said Yobbannachar called him stating that police had come. He has specifically deposed that when he went near the police jeep, two accused were there and Yobbannachar told PW 4 to give the items to the police he had earlier given to him. 18. The entire evidence of PW 4 cannot be brushed aside on the ground that he has not supported the case of the prosecution. That portion of the evidence of PW 4 which is helpful to the prosecution will have to be definitely taken into consideration. It is not the case of PW 4 that the accused had never been brought by the police near his house. If the accused had not disclosed any information to the police vide Exs. P8 and P9, there was no necessity for the police to have gone near the house of PW 4-Suresh at Mandya. 19. As rightly pointed out by Mr. Rachaiah, learned HCGP, the accused have not whispered anything in their examination conducted under Section 313, Cr.P.C. relating to the information given by them vide Exs. P9 and P10-voluntary statements. He has further argued that the accused have not denied the signature found in Exs. P9 and P10 and it is not their case that their statements were recorded under duress or coercion. Therefore, the delay in seizing M.Os. 1 to 4 at the instance of the accused 10 days after the recording of voluntary statements cannot be blown out of proportion. In fact, the learned trial judge has referred to the deposition of PW - 4 in page 9 of the impugned judgment passed in C.C. 426/08. Therefore, the fact remains that the accused were arrested by City Market police and were brought to Mandya in a police jeep and they were present near the house of PW 4. 20. In fact, the learned trial judge has referred to the deposition of PW - 4 in page 9 of the impugned judgment passed in C.C. 426/08. Therefore, the fact remains that the accused were arrested by City Market police and were brought to Mandya in a police jeep and they were present near the house of PW 4. 20. The learned judge of the trial court has assessed the evidence of all material witnesses in the light of the recoveries made under Ex. P3 consequent upon the voluntary statements of the accused which are marked as Exs. P9 and P10. The learned judge of the first appellate court has re-assessed the entire evidence of the material witnesses in right perspective to confirm the judgment of conviction passed by the trial court. Both the Courts have adopted right approach to the real state of affairs. No illegality or perversity is found in the approach adopted by both the Courts. 21. Taking into consideration the overall circumstances of the case and the evidence of material witnesses, this court is of the considered opinion that the prosecution has successfully proved the case of the accused beyond reasonable doubt and hence the judgment passed by the courts below will have to be upheld. 22. Sections 380 and 457, I.P.C. are extracted below: "380. Theft in dwelling house, etc., - Whoever commits theft in any building tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 457. Lurking house-trespass or housebreaking by night in order to commit offence punishable with imprisonment - Whoever commits lurking house-trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years." If theft is committed by house breaking during night, the sentence of imprisonment would extend upto 14 years. The maximum punishment contemplated for the offence under Section 380, I.P.C. can extend upto 7 years. The maximum punishment contemplated for the offence under Section 380, I.P.C. can extend upto 7 years. The learned trial judge has sentenced the accused to undergo imprisonment for 3 years and has directed that the sentences to run concurrently. Hence, no illegality is found in regard to the quantum of sentence of imprisonment as well as the fine imposed upon them. In this view, no glaring illegalities are made out to invoke the revisional jurisdiction vested in this court under Section 397, Cr.P.C. Accordingly the revision petition is to be dismissed. The only relief that could be given to the accused is to give set off as provided under Section 428, Cr.P.C. in respect of their detention during trial and after conviction. 23. In the result, the following order is passed: ORDER The revision petition is dismissed. The judgment of conviction dated 5.8.2008 passed in C.C. 426/08 and affirmed in Crl.A. 104/08 is upheld. The accused are entitled for set-off under Section 428, Cr.P.C. Petitioners to surrender before the JMFC, Arsikere to serve the sentence, lest coercive steps be taken to secure their presence, by the JMFC, Arsikere. Office to secure LCR along with a copy of this judgment to the trial Court at the earliest.