IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL REVISION PETITION No.1247 of 2018 BETWEEN STATE BY SARGURU POLICE STATION, SARGURU, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU.
... 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 – 454 331.
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. RAMADCHANDRA SHARMA, AGED ABOUT 51 YEARS, RESIDING AT MANGALI VILLAGE, SANWER TALUK, INDORE DISTRICT, MADHYA PRADESH - 453 551.
7. HARI SINGA, 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.
... 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.130/2017 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.460/2015 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 filed by the State against the sentence passed by both the Courts below as against respondent No.1 herein.
2. The case of the prosecution is that Sarguru Police filed charge sheet against the respondents for the offence under Sections 457 and 380 read with Section 34 of Indian Penal Code, 1860 (IPC) on the ground that on 05.02.2015, the accused persons assembled with a common intention to commit theft during the night hours and entered into the shop of the complainant by breaking open the lock and door and committed theft of Rs.5,000/- from the cash box of footwear shop of the complainant thereby, they have been charged sheeted by the Police. The accused persons were in judicial custody in some other case They have been brought before the Court by issuance of warrant and the respondents were accused Nos.1 to 4 and 6 to 9 and pleaded guilty before the Trial Court for the alleged offence. Hence, the Trial Court convicted and sentenced them to undergo simple imprisonment for two years and to pay a fine of Rs.2,000/- each, in default to undergo simple imprisonment for 6 months for the offence under Section 380 of IPC; further to undergo simple imprisonment for one year and to pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for one month for the offence under section 457 of IPC. Being aggrieved by the meager sentence, the State preferred an appeal under Section 372 of Cr.P.C. for enhancement of sentence in Crl.A.No.130/2017. The respondents/accused also preferred an appeal in Crl.A.No.57/2018 before the VIII Additional District and Sessions Judge, Mysuru, sitting at Hunsur. After hearing the arguments, learned Sessions Judge allowed both the appeals filed by the State as well as the respondents/accused. However, the Appellate Court enhanced the sentence for the offence under Section 380 of IPC to two years 10 months with fine of Rs.2,000/- each and for the offence under Section 457 of IPC one year six months with fine of Rs.1,500/- each. However, the Appellate Court granted the benefit available to the accused persons under Section 427 of Cr.P.C. for the period of imprisonment already undergone by the respondents in other offences. The same was not granted by the Trial Court. Being not satisfied with the sentence imposed on the accused persons, the State preferred this revision petition for further enhancement of the sentence.
3. Learned High Court Government Pleader contended that the punishment prescribed for the offence under Section 380 of IPC is upto 7 years with fine or both and for the offence under Section 457 of IPC, the punishment is for 5 years if the trespass is for the purpose of theft, then the punishment prescribed is 14 years with fine or with both. But both the Courts below committed error in imposing meager punishment of two years 10 months by the First Appellate Court and two years by the Trial Court, which is not in accordance with the provisions of Indian Penal Code. Hence, prayed for enhancement of the same.
4. Issuance of notice to the respondents is dispensed with as they are in custody in some other cases.
5. Upon hearing the arguments of learned High Court Government Pleader and on perusal of the order of sentence passed by both the Courts below, it appears that the respondents are involved in number of cases and based on the charge sheet before the JMFC Court, H.D.Kote and also other Taluks like Hunsur and surrounding areas of Mysuru District, they are in judicial custody for more than 4 years as on the date of passing of the sentence by the Trial Court. This Court has also noticed that many revision petitions were filed by the prosecution seeking enhancement of sentence before this Court, which were dismissed by upholding the sentence passed by the Trial Court as well as the First Appellate Court. In view of the provisions of Section 380 of IPC sentence is extended to 7 years or fine or with both and for the offence under Section 457 of IPC for lurking of trespass, punishment is extended by five years and if it is theft, it is extended to 14 years with fine. But, the Trial Court while passing the order, ascertained the factual situation and taking into consideration that the accused persons are in jail since long for more than 4 years as on the date of passing of the order, the accused also pleaded guilty for the said offence and the First Appellate Court while considering the appeals has taken into consideration of the factual situation and enhanced the sentence. However, the sentence was enhanced only for 10 and 6 months respectively.
6. As already stated, these respondents are involved in many cases and they have not contested the case and there is no evidence adduced before the Court that the amount stolen by the accused persons were recovered by the Investigating Officer. This Court, while considering similar revision petitions also dismissed the revision petitions 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. ”
7. In view of the decision of this Court and considering the facts and circumstances of the case, I hold that the sentence passed by the Trial Court and enhanced by the First Appellate Court cannot be said to be unreasonable or meager for the offence committed by the respondents which warrants interference by this Court with the order of sentence. Therefore, the revision petition being devoid of merit is liable to be dismissed. Hence, the Criminal Revision Petition by the State is hereby dismissed.
SD/- JUDGE mv