IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.1278 of 2018 BETWEEN STATE BY SARGURU POLICE STATION, SARGURU, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU – 01.
... PETITIONER (BY SRI K.P. YOGANNA, HCGP) AND 1. DEVENDRA KUMAR SONI, S/O BASANTHILAL SONI, AGED ABOUT 61 YEARS, RESIDING AT CHOPAT VILLAGE, ALIRAJ PUR DISTRICT – 457 887. MADHYA PRADESH STATE.
2. MOR SINGH S/O DIPLA, AGED ABOUT 33 YEARS, RESIDING AT BAMORI VILLAGE, KUKSHI TALUK, DHAR DISTRICT, MADHYA PRADESH – 454 331.
3. DINESH THAKUR, S/O PUL SINGH, AGED ABOUT 33 YEARS, RESIDING AT BAMORI VILLAGE, KUKSHI TALUK, DHAR DISTRICT, MADHYA PRADESH – 454 221.
4. MOHAN, S/O CHETU @ TER SINGH, AGED ABOUT 48 YEARS, RESIDING AT BAMORI VILLAGE, KUKSHI TALUK, DHAR DISTRICT, MADHYA PRADESH – 454 221.
5. CHOTA MOHAN @ KOR SINGH, S/O SURAJ, AGED ABOUT 43 YEARS, RESIDING AT JULAVANI VILLAGE, BAGA TALUK, DHAR DISTRICT, MADHYA PRADESH – 454 221.
6. SHIVA @ SHIVA NARAYANA, S/O RAMACHANDRA SHARMA, AGED ABOUT 51 YEARS, RESIDING AT MANGALI VILLAGE, SANWER TALUK, INDORE DISTRICT, MADHYA PRADESH – 453 551.
7. HARI SINGH, S/O LATE MUNNA, AGED ABOUT 37 YEARS, RESIDING AT DEVAD VILLAGE, KUKSHI TALUK, DHAR DISTRICT, MADHYA PRADESH – 454 331.
8. RAJENDRA PURI, S/O JAGADISH PURI, AGED ABOUT 40 YEARS, RESIDING AT HAVUD VILLAGE, SANWER TALUK, INDORE DISTRICT, MADHYA PRADESH – 454 331.
(Notice to R.1 to 8 dispensed with) ... RESPONDENTS THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 02.07.2018 PASSED IN CRIMINAL APPEAL No.127/2017 ON THE FILE OF THE COURT OF VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE AT MYSURU SITTING AT HUNSUR AND MODIFY THE JUDGMENT AND ORDER DATED 20.01.2017 PASSED IN C.C.No.457/2015 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, HEGGADADEVANAKOTE BY IMPOSING MAXIMUM SENTENCE PROVIDED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 457, 380 READ WITH 34 OF IPC.
THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This revision petition is preferred by the State being not satisfied with the judgment of sentence dated 02.07.2018 passed by the VIII Additional District & Sessions Judge, Mysuru, Sitting at Hunsur, in Crl.A.No.127/2017, enhancing the sentence imposed by the Additional Civil Judge and JMFC, Heggadadevanakote, in CC No.457/2015 dated 20.01.2017.
2. The case the prosecution is that respondent Nos.1 to 8 are accused Nos.1 to 5 and 7 to 9 before the Additional Civil Judge and JMFC, Heggadadevanakote, having been charge-sheeted for the offence punishable under Sections 457 and 380 of IPC. The respondents pleaded guilty for the charges framed against them. After hearing the learned Assistant Public Prosecutor as well as the counsel for the accused, the Trial Court sentenced the respondents to undergo simple imprisonment for two years and to pay fine of Rs.2,000/- each, in default, to undergo simple imprisonment for six months for the offence punishable under Section 380 of IPC. Further, the accused were sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,000/- each, in default, to undergo simple imprisonment for one month for the offence punishable under Section 457 of IPC. The accused were said to be in custody from 10.08.2015. Therefore, the benefit of set off was also given by the Trial Court under Section 428 of Cr.P.C. Being aggrieved by the sentence passed by the Trial Court, the accused preferred an appeal before the VIII Additional District and Sessions Judge, Mysuru, sitting at Hunsur, in Crl.A.No.54/2018 and the State also being not satisfied with the sentence imposed preferred an appeal in Crl.A.No.127/2017 seeking enhancement of sentence. The First Appellate Court after hearing the arguments of both sides, allowed the appeals. However, enhanced the sentence passed by the Trial Court from two years to two years ten months with fine of Rs.2,000/- each for the offence under Section 380 of IPC and from one year to one year six months with fine of Rs.1,500/- each, in default, to undergo simple imprisonment for four months for the offence under Section 457 of IPC. The First Appellate Court also permitted the accused to undergo the sentence as per Section 427 of Cr.P.C. Being aggrieved by the judgment passed by the First Appellate Court, the State preferred the present revision petition on the ground that the sentence passed by the Trial Court as well as the First Appellate Court is not sufficient under the provisions of Sections 457 and 380 of IPC. Under Section 457 of IPC, the punishment is extended upto fourteen years and the punishment under Section 380 of IPC is extended upto seven years. But, both the Courts below have imposed meager punishment and also the Courts below have failed to appreciate the provisions of Section 428 of Cr.P.C. in respect of the period of detention already undergone by the accused during trial. The accused were in judicial custody in various cases. Therefore, the issuance of notice is dispensed with.
3. Upon hearing the learned High Court Government Pleader appearing for the petitioner-State and on perusal of the judgment, it shows that the Sarguru Police have registered a case against unknown persons and later, these accused Nos.1 to 8 were arrested by the Police. It is also brought to the notice of this Court that various Police Stations in Hunsur Taluk, Mysuru District have registered various cases against these accused for the similar offence under Sections 457 and 380 of IPC wherein, in other cases, the accused were said to have break opened the doors of the schools and stolen the gas cylinders as well as Palm Oil packets from the kitchen. In this case, the accused said to have committed lurking of trespass by break opening the shutter of the Bakery in front of K.S.R.T.C. bus-stand, Sarguru Town and stolen cash of Rs.3,500/-. These accused have pleaded guilty and it appears that they are in judicial custody for more than four years as on the date of passing of the judgment by the Trial Court as well as the First Appellate Court. The Trial Court, after considering the plea of guilty by the accused, sentenced the accused to undergo simple imprisonment for two years with fine of Rs.2,000/- for the offence under Section 380 of IPC and to undergo simple imprisonment for one year with fine of Rs.1,000/- for the offence under Section 457 of IPC. The First Appellate Court, considering the background of the case and the facts and circumstances of each case, allowed the appeal filed by the State and enhanced the sentence to two years ten months and to pay fine of Rs.2,000/- for the offence under Section 380 of IPC and one year six months with fine of Rs.1,500/- for the offence under Section 457 of IPC. The First Appellate Court assigned various reasons for enhancing the sentence stating that the accused are in judicial custody for more than four years in other cases. In a similar case, this Court has also dismissed the revision petitions filed by the State in Crl.RP Nos.1318/2017 and 1319/2019 on 12.01.2018.
4. No doubt, Section 380 of IPC provides for imprisonment which may extend to seven years and Section 457 of IPC for lurking house-trespass, the imprisonment term extends to five years. If it is for theft, it is extended upto fourteen years. However, both the Sections not at all mandate for minimum sentence under these provisions. Therefore, it is the discretion given to the Magistrate for awarding sentence depending upon the gravity of the offence committed in each case. This Court, in Crl.RP Nos.1318/2017 and 1319/2019, disposed off on 12.01.2018, has also considered this aspect at para-9 of the order, which is 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. ”
5. In view of the decision of this Court already passed in respect of same accused, I do not find any reason to interfere with the sentence imposed by the First Appellate Court, which is already enhanced by ten and six months for the offences under both Sections and the fine amount is also enhanced for the offence under Section 457 of IPC. Therefore, I do not find any illegality or error committed by the Courts below requiring enhancement of sentence. Therefore, the revision petition being devoid of merit is liable to be dismissed.
Accordingly, the criminal revision petition is dismissed.
Sd/- JUDGE mv