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2022 DIGILAW 415 (KAR)

Santhosh Veeranna v. State

2022-03-28

H.P.SANDESH

body2022
JUDGMENT 1. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the State. 2. The factual matrix of the case before the Trial Court is that on 19/6/2009 at about 9.15 p.m., this petitioner along with other accused person came and purchased the Pan packets from the shop of the complainant and asked for water, accordingly, the complainant gave the water to them. When PW1 has to return the remaining amount of Rs.3.00 to the petitioner, this petitioner snatched the gold chain worth of Rs.40,000.00 weighing 30 grams from her neck. Hence, the case was registered for the offence punishable under Sec. 392 of IPC. The police after registration of the case, investigated the matter and filed the charge-sheet. The petitioner and other accused were secured and both of them have denied the charges leveled against them and the prosecution examined the witnesses at PW1 to PW10 and got marked the documents at Ex.P1 to P7 and also marked MO1 - gold chain which was the subject matter of the robbery. The petitioner not led any defence evidence. The Trial Court after considering both the oral and documentary evidence, convicted the petitioner and other accused person for the offence punishable under Sec. 392 of IPC and sentenced them to undergo for a period of six months and also to pay a fine of Rs.1,000.00 in default, they shall undergo simple imprisonment of another ten days. Being aggrieved by the order of the Trial Court, an appeal was preferred by the petitioner along with other accused person in Crl.A.Nos.161/2011 and 163/2011 respectively. The Appellate Court also on re-appreciation of both oral and documentary evidence, dismissed the appeal. Being aggrieved by the orders of conviction and confirmation, the present revision petition is filed before this Court. 3. The learned counsel appearing for the petitioner would submit that there is no corroborative evidence to convict the petitioner and the recovery of the ornament also not proved by the respondent-police. Ex.P3 is the recovery mahazar and PW4 and PW5 are the panch witnesses to the recovery mahazar and both of them turned hostile to the case of the prosecution. The learned counsel appearing for the petitioner would submit that there is no corroborative evidence to convict the petitioner and the recovery of the ornament also not proved by the respondent-police. Ex.P3 is the recovery mahazar and PW4 and PW5 are the panch witnesses to the recovery mahazar and both of them turned hostile to the case of the prosecution. Inspite of the same, both the Courts have committed an error in convicting the petitioner and there is no test identification parade and when the witness-PW1 not having the acquaintance with the petitioner, ought to have conducted the test identification parade and the same is not conducted and hence, it requires interference of this Court. 4. Per contra, the learned High Court Government Pleader appearing for the State would submit that the complainant is the victim who lost the gold chain and the counsel would submit that the specific allegation against this petitioner is that he only snatched the gold chain from the neck of PW1. The counsel also would submit that PW8 and PW11 have spoken with regard to the committing the offence of robbery and recovery of MO1 and hence, both the Courts have rightly considered the evidence available on record. The counsel also would submit that there are no criminal antecedents against the petitioner. The counsel would submit that PW9 identified the petitioner saying that this petitioner along with other accused person were used to come and use the coin booth belonged to PW9 and she has given evidence with regard that both the accused person were near the shop of PW1 prior to the alleged incident and same is also considered by the Trial Court and hence, it does not requires interference of this Court. 5. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record, the point that would arise for the consideration of this Court are: 1. Whether the Trial Court as well as Appellate Court have committed an error in convicting the petitioner for the offence punishable under Sec. 392 of IPC and confirming the said order and whether it requires interference by this Court exercising the revisional jurisdiction? 2. What order? 6. Whether the Trial Court as well as Appellate Court have committed an error in convicting the petitioner for the offence punishable under Sec. 392 of IPC and confirming the said order and whether it requires interference by this Court exercising the revisional jurisdiction? 2. What order? 6. Having heard the respective counsel appearing for the parties and also on perusal of the material available on record, the prosecution mainly relied upon the evidence of PW1 to PW7 and out of PW1 to PW7, PW1 is the victim and no doubt, PW4 to PW6 have turned hostile to the case of the prosecution but PW9 in her evidence deposed that prior to the alleged incident, she had seen this petitioner along with other accused person near the shop of PW1. PW1 also reiterated in her evidence in consonance with the contents of Ex.P1-complaint that both of them came near her shop and asked for Pan packet and while returning the remaining amount, the petitioner snatched the gold chain from her neck and the said gold chain was recovered at the instance of accused No.1 in his house. PW1 also identified the present petitioner. When such being the case, the very contention of the petitioner counsel that no test identification parade was not conducted cannot be accepted as the same is required, when the witnesses have not properly identified the accused persons and also when they are not having any prior acquaintance with the accused persons. Admittedly, the alleged incident was occurred at about 9.15 p.m and the Court also again accepted the evidence of other witness i.e., PW9 who categorically deposed before the Court that she had seen both the accused persons near the shop of PW1 before committing the offence of robbery. PW11 the then Circle Inspector also deposed before the Court that PW8 and PW11 were also witnessed for recovery and though PW4 to PW6 have turned hostile, the official evidence cannot be discarded only on the ground that they are the police officials and there must be answers elicited from the mouth of those witnesses to disbelieve the evidence of the official witnesses and the same is not found and hence, I do not find any error committed by both the Courts in appreciation of evidence. This Court can interfere with the findings of both Courts if there are any perverse findings given and the evidence placed before the Courts are not properly appreciated. But in the case on hand, both the Courts have considered both the oral and documentary evidence in a right perspective and hence, I do not find any grounds to interfere with the orders of both the Courts exercising the revisional jurisdiction. 7. The learned counsel for the petitioner also submits that the petitioner is aged about 20 years at the time of the alleged incident and he is not having any criminal antecedents. Having taken note of the said fact, it is an offence of robbery of gold chain of PW1 and also having taken note of the sentence imposed by the Trial Court is only for a period of six months and the same is not harsh as contended by the petitioner counsel and the question of reducing the sentence does not arise in keeping the gravity of the offence, it is an offence against the society at large as well as in order to make the wrongful gain and hence, it is not a fit case even to reduce the sentence. 8. The learned counsel for the petitioner also relied upon the decision of the Apex Court reported in AIR 1983 SC 654 wherein the Apex Court taken note of the age of the petitioner who is below the age of 20 years at the time of commission of the offence and his father is a retired school teacher and brothers and sisters have well settled and the parents are keen to improve the appellant and are ready to supervise and exercise control over him. Hence, he may be enlarged on bail invoking Sec. 4 of Probation of Offenders Act (for short 'PO Act'). Having considered the principles laid down in the judgment referred supra, no doubt, the Apex Court invoked PO Act while releasing the appellant and wherein the reasons are given that the appellant was below the age of 20 years at the time of commission of offence. Having considered the principles laid down in the judgment referred supra, no doubt, the Apex Court invoked PO Act while releasing the appellant and wherein the reasons are given that the appellant was below the age of 20 years at the time of commission of offence. No doubt, in the case on hand also at the time of the alleged offence, the petitioner was aged about 20 years and the other reason given by the Apex Court is that the father of the petitioner is a retired school teacher and his family members are well settled and here is a case that no such information is available before the Court about the background of the family members of the petitioner and also this petitioner was in custody for a period of 65 days during the trial and the remaining sentence is less than a period of four months. Having taken note of the said fact that there is no material found to exercise the discretion to invoke PO Act, I do not find any force in the contention of the learned counsel for the petitioner to release the petitioner invoking the PO Act. Accordingly, the revision petition is dismissed.