IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.1312 of 2017 BETWEEN STATE BY HUNSUR RURAL POLICE, HUNSUR, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU - 01.
... PETITIONER (BY SRI K.P. YOGANNA, HCGP) AND 1. MAHESHA @ MAHESH KUMAR, S/O. MAHADEVA SHETTY, AGED ABOUT 29 YEARS, D.No.4, RANGANATHA EXTENSION, HUNSUR – 571 105.
2. MAHADEVA @ MAHADEVANAYAKA, S/O. MUNIYAPPANAYAKA, AGED ABOUT 32 YEARS, D.No.28, 1ST WARD, RANGANATHA EXTENSION, HUNSUR – 571 105.
3. CHENNAPPA @ PETE, S/O. LATE KCP CHENNAPPA, AGED ABOUT 24 YEARS, C/O. SHIVANNA, RANGANATHA EXTENSION, HUNSUR – 571 105.
4. G. SHANKARRAO @ RAYA, S/O. GANGARAM RAO, AGED ABOUT 26 YEARS, TEMPO TRAVELS DRIVER No.79, 1ST MAIN ROAD, LAGGARE MAIN ROAD, NARASIMHASWAMY EXTENSION, HUNSUR TOWN – 571 105.
5. KUMARA @ MAVUTHA, S/O. LATE SOMASHEKAR, AGED ABOUT 30 YEARS, AUTO DRIVER, 5TH WARD, KALKUNIKE, HUNSUR – 571 105.
... RESPONDENTS (RESPONDENTS SERVED AND UNREPRESENTED) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 05.08.2017 PASSED IN CRL.A.No.72/2015 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU SITTING AT HUNSUR AND MODIFY THE JUDGMENT AND ORDER DATED 02.12.2014 PASSED IN C.C.No.1155/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HUNSUR.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned High Court Government Pleader for the petitioner.
Respondents served and unrepresented.
2. This Revision Petition is preferred by the State seeking enhancement of the sentence imposed by the Senior Civil Judge & JMFC, Hunsur, in CC No.1155/2014 vide order dated 02.12.2014, which was confirmed by the VIII Additional District & Sessions Judge, Mysuru, sitting at Hunsur, in Crl.A.No.72/2015, vide order dated 05.08.2017.
3. The brief facts of the case of the prosecution before the Trial Court is that the Hunsur Police have charge sheeted against the respondents alleging that on 17.09.2010, during the night hours, accused Nos.1 to 4, with a common intention, committed lurking house trespass by breaking open the lock of the Government School at Vinoba Colony in Hunsur Taluk and committed theft of gas cylinders and 22 packets of Palm Jyothi Oil and sold it to respondent No.5, who knowing fully well that the property was a stolen property, purchased the same from accused Nos.1 to 4 and thereby committed the alleged offences under Sections 457, 380 & 411 of IPC. The accused pleaded not guilty and claimed to be tried. Later during the trial, the accused pleaded guilty by filing a memo under Section 229 read with 241 of Cr.P.C. The same was allowed by the Trial Court and the accused were convicted. Accused Nos.1 to 4 were sentenced to imprisonment and were given set off for the period undergone by them during trial and ordered to pay fine of Rs.100/- each. Being aggrieved by the meager punishment imposed by the Trial Court, the State preferred Crl.A.No.72/2015 before the VIII Additional District and Sessions Judge, which came to be dismissed by the judgment dated 05.08.2017. Hence, this revision petition by the State.
4. Learned High Court Government Pleader contended that though the accused persons pleaded guilty and some of the witnesses were also examined, under Section 380 of IPC, the punishment of imprisonment may extend to 7 years, and shall also be liable to fine and under Section 457 of IPC, it may extend to 5 years, and shall also be liable to fine and if the offence intended to be committed is theft, the terms of the imprisonment may be extended to 14 years. Therefore, the Trial Court has committed illegality in imposing lesser sentence. The appeal filed to enhance the sentence was rejected by the District and Sessions Judge, which is also erroneous. Hence, this revision petition.
5. It is also brought to the notice of this Court that the same Police has registered many cases against these respondents and during trial and after recording the plea of guilty, the Trial Court convicted and sentenced them to undergo imprisonment and imposed fine as stated above. In all the cases, the Trial Court has convicted and sentenced accused Nos.1 to 4 and accused No.5 for 6 months, who is the receiver of the stolen articles. The Trial Court order also goes to show that respondent Nos.1 to 5 were in judicial custody for more than 5 years at the time of passing the sentence. Considering the facts and circumstances of the case, the Appellate Court dismissed the appeal by relying upon the judgment of the Hon’ble Apex Court in the case Alister Anthony Pareira vs. State of Maharastra reported in AIR 2012 SC 3802 and this Court also dismissed the revision petition filed by the State in Crl.R.P.Nos.1318/2017 and 1319/2019, by order dated 12.01.2018. This Court in the aforesaid judgment at paragraph 9 has held as follows;
“9. On a careful perusal of the above said judgments of the trial court and the First appellate Court and also by re-looking the materials on record, it is seen that the accused persons are aged between 22 and 32 years. The fact that they were eking their livelihood and earning a poultry (sic) sum by working as drivers and further the fact that, they have already undergone the period of imprisonment in some other cases, as noted by the trial Court, is also taken into consideration. The nature of the allegations is that they have committed theft of gas cylinder worth Rs.1,500/-. Considering the value of the gas cylinder, the surrounding circumstances and also the undertaking given by the accused to the effect that they have realized their wrong doing, and they would like to come to the main stream and would not indulge in any offences, both the courts below have taken a lenient view while awarding sentence. It is a fundamental rule of the criminal jurisprudence that when the parties deter themselves from committing similar offences in future, they have to realized their mistake that they have committed wrong and if wrong is committed they will not be spared. If these two things are achieved then the Court can take lenient view in imposing the sentence if there are no other allegations that the accused are anti social elements and cause damage to the Society in future also. Under the above said circumstances, both the courts below have considered these valuable aspects and considered the conduct and attitude of the accused persons as noted above. ”
6. On perusal of the sentence passed by the Trial Court shown that the trial Court has given set off under Section 428 of IPC on the ground that accused Nos.3 and 4 were produced before the Court on 26.09.2010. They are in judicial custody for more that 4 years and accused Nos.1 and 2 were in judicial custody for about 2 years and accused No.5 not participated in the crime. Therefore, he was directed to pay fine of Rs.100/-, in default, to undergo sentence for 10 days. Therefore, the contention of learned High Court Government Pleader appearing for the State that the punishment in meager, cannot be accepted.
7. Therefore, considering the facts and circumstances of the case and the respondents/accused were also convicted in number of cases and they are in custody for more than four years at the time of passing of the sentence and this Court has already dismissed the appeal filed by the State against all the five accused, who are the same respondents, in the present revision petition, the petition deserves to be dismissed. Therefore, I hold that there is no error or illegality is committed by the Court below. Accordingly, the Criminal Revision Petition is dismissed.
SD/- JUDGE mv