Court allows the revision petition in order to protect the accused from being falsely accused leading to miscarriage of justice: Karnataka High Court

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF DECEMBER 2021 THE HON BLE MR. JUSTICE V. SRISHANANDA CRIMINAL REVISION PETITION NO.1395 2021 1 . CHIRANJEEVI S O RAMAKRISHNA AGED ABOUT 29 YEARS OCC : LABOURER R O CHANNAKESHAVAPURAM YARAGUNTLU DHARMAVARAM ANANTHAPURA ANDRA PRADESH 515 671 2 . G. ISAK S O GURUVAYYA AGED ABOUT 33 YEARS OCC LABOURER R O RAVALACHURU DHARMAVARAM ANANTHAPURA ANDRA PRADESH 515671 3 . P RAJASHEKAR S O VENKATESH AGED ABOUT 34 YEARS OCC LABOURER R O RAJENDRANAGARA DHARMAVARM TOWN ANANTHAPURA ANDRA PRADESH 515671 BY SRI UMESH FOR SRI R B DESHPANDE ADVOCATES) THE STATE OF KARNATAKA BY PAVAGADA POLICE STAION PAVAGADA CIRCLE TUMKUR DISTRICT 561202 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS BENGALURU 560001) BY SRI V.S.VINAYAKA HCGP) THIS CRL.RP IS FILED U S.397 R W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 17.07.2019 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC PAVAGADA IN C.C.NO.429 2011 CONFIRMED BY THE JUDGMENT AND ORDER DATED 08.10.2021 PASSED BY IV ADDITIONAL SESSIONS JUDGE TUMAKURU SITTING AT MADHUGIRI IN CRL.A.NO.5014 2019 AND ACQUIT THE PETITIONER OF THE CHARGES LEVELED AGAINST THEM. THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY THE COURT MADE THE FOLLOWING: Though this matter is listed for admission today with the consent of both the parties the matter is taken up for final disposal. Heard Sri Umesh learned counsel representing Sri R.B.Deshpande for the Revision Petitioners and Sri V.S. Vinayaka learned High Court Government Pleader for respondent State and perused the records. in revision before this Court the order of conviction passed in CC No.429 2011 confirmed in Criminal Appeal No.5014 2019 whereby the order of conviction convicting the accused for the offence punishable under Section 392 read with Section 34 IPC and sentenced as under: "ಆ(cid:2)ೋ(cid:6) ಸಂ(cid:9)ೆ(cid:10) ೧ !"ಾಹ#(cid:27)ಾದ ಅಪ(cid:2)ಾಧ&ೆ’ 2 ವಷ#ಗಳ &ಾಲ &ಾ(cid:2)ಾ(cid:27)ಾಸ ಮತು ತ0ಾ ರೂ.5 000 ದಂಡªÀನು2 34ಸ0ಾ56ೆ. ಆ(cid:2)ೋ(cid:6)ತರು ದಂಡವ£ÀÄß 7ಾವ(cid:19)ಸಲು 3ಫಲ(cid:27)ಾದ(cid:31) ಆ(cid:2)ೋ(cid:6)ತರು. 9ಾಲು’ ದಂಡ ಪ> >@ಾ ಸಂ(cid:22)(cid:23)ೆ ಅ(cid:30)ಯ(cid:31) ಈ ಪ>ಕಣದ ಸಂಗ(cid:19) 3ದ(cid:10)Cಾನಗಳ£ÀÄß ಗಮನದ(cid:31)9ೊಂದ ವ(cid:10) @ಾ5ದು= ಅªÀgÀÄ ಪ(cid:12)Eಾರ ಹಣವನು2 ಪFೆಯಲು ಅಹ#(cid:2)ಾ5ರು(cid:23)ಾಪ(cid:12)Eಾರದ Hತ ರೂ.10 000 ಹಣವನು2 ಆ(cid:2)ೋ(cid:6)ತರ 7ಾವ(cid:19)Dದ ದಂಡದ ಹಣದ(cid:31) Gೕಡಲು ಆ6ೇ!ಸ0ಾ5ರುತ 6ೆ. 3. ಆ(cid:2)ೋ(cid:6) ಸಂ(cid:9)ೆ(cid:10): ೧ ಈ(cid:16)ಾಗ0ೇ 3JಾರKಾ4ೕ£À ಅಪ(cid:2)ಾ4ಗLಾ5 ಇದ= ಭಂO&ಾ9ೆಯ(cid:31) ದ= ಾ0ಾಅ4ಯನು2 ಕಲಂ 428 ದಂಡ ಪ> >@ಾ ಸಂ(cid:22)vÉ ಅ(cid:30)ಯ(cid:31) ವPಾವಟುR Cಾಡಲು ಆ6ೇ!ಸ0ಾ56ೆ." Brief facts of the case are as under: A complaint came to be lodged contending that on 03.10.2011 at about 2.30 a.m. when the complainant while returning from his routine business i.e. milk vending and curd at various branches and by collecting the amount in the milk van bearing No.AP 03 Y 2307 near the land of one Narasimhappa on Venkatapura Gounipalli Road accused Nos.1 to 3 came in Bajaj Discover motorcycle bearing No.AP 21 AH 5382 and intercepted the milk van and used the force and smeared the chilly powder into the eyes of the complainant and took away Rs.49 462 from the custody of the complainant. The jurisdictional Police after registering the case investigated the matter in detail and filed a charge sheet against the accused Revision Petitioners for the offence punishable under Section 392 read with Section 34 IPC. The presence of the accused persons were secured and charges were framed. Accused Nos.1 to 3 pleaded not guilty and case against accused No.4 came to be bifurcated by filing split up charge sheet. Since the accused pleaded not guilty the trial was held. In order to prove the case of the prosecution prosecution in all examined 12 witnesses including the complainant mahazer witnesses and investigating agency as PWs.1 to 12 and in all 17 documents were relied as Exs.P1 to 17. Prosecution also relied on the material objects namely knife chilly powder mobile telephone Rs.7 000 cash China Set mobile phone mobile sim and cash of Rs.8 000 Rs.6 500 and Rs.5 342 cash bags as MOs.1 to 12. On conclusion of the prosecution evidence accused statement as contemplated under Section 313 Cr.P.C. was recorded wherein the accused persons denied all the incriminatory circumstances. However they did not offer their version to the incident by examining themselves or by placing written submission as is contemplated under Section 313(5) Cr.PC. Thereafter the trial Magistrate heard the parties in detail and passed an order of conviction convicting the accused persons for the aforesaid offence and sentenced as referred to supra. Being aggrieved by the same accused persons preferred an appeal before the Sessions Court in Criminal Appeal No.5014 2019. Learned Judge in the First Appellate Court after securing the records and hearing the parties in detail and after re appreciating the materials available on record ultimately dismissed the appeal of the accused persons confirming the judgment and order of conviction and sentenced passed by the trial Magistrate by judgment dated 8.10.2021. 10. Being aggrieved by the same the accused Nos.1 to 3 have preferred this Revision Petition with the following grounds: 1. That conviction and sentence passed by the courts below are contrary to law evidence on record and probabilities of the case. 2. That courts below have not considered the facts and circumstances of the case in proper prospective. 3. That judgments of courts below are illegal arbitrary capricious and opposed to sound principles of law. 4. That courts below have committed serious error in convicting the petitioners when the prosecution has failed to prove the guilt of the petitioners. 5. That the courts below ought to have taken into consideration that the prosecution has miserably failed to prove the case beyond all reasonable doubt. 6. That courts below have committed serious error in relying on interested testimony of Pw s 1 4 to 6 9 to 12 when their evidence is not corroborated the contents complaint and their statement before police. 7. That courts below have committed serious error in relying on the evidence of Pw s 1 4 to 6 9 to 12 when their evidence is full of material omissions contradictions not cogent and reliable. 8. That courts below have acquitted the petitioners on the ground that evidence of PW1 complainant does not reveals about the test identification parade held as the prosecution projected which goes to root of the case. Under these circumstances benefit of doubt ought to have been extended to the petitioners by the courts below. 9. That courts below have committed serious error in relying on official witnesses wherein prosecution relied. PW2 panch Ex.P.2 spot mahazar has not supported the case of the prosecution as the same was prepared in the police station. The fact that PW4 PW5 are the panch witnesses official witnesses acted on say of PW8 Tahasildar which goes to root of the prosecution case. Further petitioners accused No.1 to 3 are implicated upon their voluntary statement. Thus all the facts and circumstances leads that recovery is not proved by the prosecution by cogent and reliable evidence and thus benefit of doubt ought to have been extended to the petitioners in the alleged case of the prosecution. 10. That courts below ought to have acquitted the Petitioners on the ground that there is no evidence to connect the petitioners with alleged incident. PW5 6 are interested witness as they are official witness Further P.W 3 and 11 have not supported the case of the 11. That the courts below ought to have acquitted the petitioners accused No.1 to 3 on the ground that prosecution has suppressed very genesis of the incident as courts below have acquitted the petitioners for the offences under Section 120(B) IPC which goes to root of the prosecution case. Thus benefit of doubt ought to have been extended to the petitioners in the alleged case of the prosecution. 12. That courts below have committed serious error in convicting the petitioners for the offence under Section 392 r w 34 IPC when prosecution has failed to adduce any cogent and reliable evidence in that regard. 13. That Courts below ought to have accepted the defence of the petitioners and acquitted them. 14. That entire approach of the case by the courts below is erroneous misconceived and the came has resulted in miscarriage of justice. 15. That courts below have committed serious error in not extending the benefit of provisions of Section 3 and 4 of the probation of offenders Act to the petitioners. The sentence imposed is too harsh and disproportionate." Reiterating the above grounds Sri Umesh learned counsel representing Sri.R.B.Deshpande contended that both the Courts have not properly appreciated the materials available on record and falsely convicted the accused persons resulting in miscarriage of the justice and therefore sought for allowing the Revision Petition. Alternatively he contended that since the accused persons time offenders without any criminal antecedents the trial Court and First Appellate Court ought to have considered the grant of probation to the Revision Petitioners and prayed for allowing the Revision Petition to that extent. 11. Per contra learned High Court Government Pleader supported the impugned judgment contending that after registering the case police were able to apprehend accused Nos.1 to 3 and recovered cash of Rs.7 000 Rs.8 000 Rs.6 500 and Rs.5 342 and the cash bag which was in the custody of the complainant as on the date of incident and same has been marked before the trial Court and why would the police implant such huge cash only with an intention to get false conviction against the accused persons in the absence of any previous animosity or enmity and therefore judgment of the trial Magistrate is based on sound and logical reasons and same has been properly reappreciated by the learned Judge in the First Appellate Court in the light of the grounds raised in the appeal memorandum and thus sought for dismissal of the Revision Petition. Insofar as alternate plea is concerned if the accused persons shown any leniency the same would send wrong message to the Society at large and sentence ordered by the Court must act as a deter such perpetrators of the crime and therefore sought for dismissal of the Revision Petition in toto. In view of the rival contentions and having regard to the scope of the Revisional jurisdiction the following points would arise for consideration: 1.Whether the finding recorded by the trial Magistrate that accused persons are guilty of the offence punishable under Section 392 read with Section 34 IPC and confirmed by First Appellate Court is suffering from patent factual defects legal infirmity perversity or error of jurisdiction and thus calls for interference 2. Whether the sentence is excessive " In the case on hand admittedly the incident has taken place in the early hours on 03.10.2011 when the complainant was returning from his routine business of milk vending and collection of cash. At that juncture the accused persons came on the motorcycle and intercepted the milk van and snatched away the cash bag from the custody of the complainant after throwing the chilly powder. The Police after registering the case investigated the matter and apprehended the accused persons and test identification parade was conducted by the Executive Magistrate i.e. Tahsildar. The Tahsildar is examined before the Court. Admittedly the complainant and the Tahsildar did not nurture any previous animosity or enmity against the accused persons so as to falsely implicate the Revision Petitioners in the case. Mere panch witness turning hostile to the case of the prosecution would not cause serious dent to the case of the prosecution in a matter of this nature. Further cash of Rs.7 000 Rs.8 000 Rs.6 500 and Rs.5 342 and cash bag were recovered by the police at the instance of voluntary statement given by the accused persons which was marked as MO.4 MO.8 MOs.10 to 12. While recording the accused statement accused persons did not offer any proper explanation either by examining themselves or by placing written submission as is contemplated under Section 313(5) of Cr.P.C. It is not the case of the accused either that they have been picked up from their house and on account of previous ill will between the complainant and accused they have been falsely implicated in the case. Under such circumstances in the absence of any contra evidence placed by the accused trial Magistrate came to the right conclusion that accused persons are responsible for the offence alleged against them and prosecution is successful in proving the charges leveled against the accused beyond all reasonable doubt by placing cogent and convincing reasons. 15. Learned Judge in the First Appellate Court in the light of the grounds urged in the appeal Memorandum reappreciated the materials available on record and rightly concluded that the judgment and order of conviction passed by the trial Magistrate is based on sound and logical reasons and dismissed the appeal. 16. Having regard to the scope of the Revisional jurisdiction this Court reconsidered the materials available on record and is satisfied that none of grounds urged in the Revision Petition holds merit so as to interfere with the well reasoned order passed by the trial Magistrate and confirmed by the First Appellate Court. Accordingly point No.1 is answered in the negative. Insofar as sentence is concerned admittedly the Revision Petitioners are the first time offenders as is confirmed by the learned High Court Government Pleader. Under such circumstances following the dictums of the Hon’ble Apex Court: i. In the case of Chandreshwar Sharma v. State of Bihar reported in 9 SCC 245 at paragraph No.3 it is held as under: “3. The appellant herein was convicted under Sections 379 and 411 I.P.C. and was sentenced to rigorous imprisonment for one year as 3.5 Kg. of non ferrous metal was recovered from his possession. On an appeal being filed the conviction under Section 379 was affirmed. The appellant carried the matter in revision but the revision also stood dismissed. All along the case of the appellant was that the recovery from the tiffin carrier kept on the cycle would not tantamount to recovery from the possession of the appellant and this contention has been negative and rightly so. When the matter was listed before this Court a limited notice was issued as to why the provisions of Section 360 of the Criminal Procedure Code should not be made applicable Pursuance to the said notice Mr. Singh the learned standing counsel for the State of Bihar has entered appearance. From the perusal of the judgment of the learned Magistrate as well as the Court of Appeal and that of the High Court it transpires that none of the forums below had considered the question of applicability of Section 360 of the Cr.P.C. Section 361 and Section 360 of the Code on being read together would indicate that in any case where the Court could have dealt with an accused under Section 360 of the Code and yet does not want to grant the benefit of the said provision then it shall record in its judgment the specific reasons for not having done so. This has apparently not been done inasmuch as the Court overlooked the provisions of Sections 360 and 361 of the CrPC. As such the mandatory duty cast on the Magistrate has not been performed. Looking to the facts and circumstances of the present case we see no reasons not to apply the provisions of Section 360 of the Cr.P.C. We accordingly while maintain the conviction of the appellant direct that he will be dealt with under section 360 and as such we direct that the appellant be released on probation of good conduct instead of sentencing him and he should enter into a bond with one surety to appear and receive the sentence when called upon during the period of one year for the purpose in question. The bond for a year shall be executed before the learned Chief Judicial Magistrate Ranchi within 3 weeks from today. The appeal is disposed of accordingly.” ii. In the case of Gulzar v. State of M.P reported in 2007) 1 SCC 619 it has been held as under: 12. Section 360 of the Code relates only to persons not under 21 years of age convicted for an offence punishable with fine only or with imprisonment for a term of seven years or less to any person under 21 years of age or any woman convicted of an offence not punishable with sentence of death or imprisonment for life. The scope of Section 4 of the P.O. Act is much wider. It applies to any person found guilty of having committed an offence not punishable with death or imprisonment for life. Section 360 of the Code does not provide for any role for Probation Officers in assisting the courts in relation to supervision and other matters while the PO Act does make such a provision. While Section 12 of the PO Act states that the person found guilty of an offence and dealt with under Section 3 or 4 of the PO Act shall not suffer disqualification if any attached to conviction of an offence under any law the Code does not contain parallel provision. Two statutes with such significant differences could not be intended to co exist at the same time in the same area. Such co existence would to anomalous results. The intention to retain the provisions of Section 360 of the Code and the provisions of the PO Act as applicable at the same time in a given area cannot be gathered from the provisions of Section 360 or any other provision of the Code. Therefore by virtue of Section 8(1) of the General Clauses Act where the provisions of the Act have been brought into force the provisions of Section 360 of the Code are wholly inapplicable". The trial Magistrate is bound to consider the grant of probation. In the facts and circumstances of the case and in the absence of any criminal antecedents to the Revision Petitioners this Court is of the considered opinion that accused persons are entitled for grant of probation by directing them to execute a bond in a sum of Rs.50 000 with one surety for the likesum to the satisfaction of the Trial Court for their good behavior which shall be in force for a period of 2 years and ordered to pay fine of Rs.50 000 each inclusive of the amount already imposed by the trial Magistrate ends of justice would be met. Accordingly point No.2 is answered and following order is 1. Criminal Revision Petition is allowed in part. 2. While maintaining the conviction of the accused persons for the offence punishable under Section 392 IPC the accused persons are directed to execute a bond in a sum of Rs.50 000 each with one surety for the likesum to the satisfaction of the trial Court which shall be in force for a period of two years for their good behavior and ordered to pay fine of Rs.50 000 each inclusive of the amount already imposed by the trial Magistrate and confirmed by the First Appellate Court for the offence punishable under Section 392 read with Section 34 IPC. 3. Time is granted for the accused persons to pay the fine amount and to execute bond till 31.01.2022. 4. If there is any violation of the bond conditions or non payment of fine the order of the trial Magistrate automatically stands restored. Office is directed to return the trial Court records with a copy of this order forthwith. Sd JUDGE 

Summary: The criminal revision petition is filed under section 397 ( speaks about calling for records to exercise powers of revision) with 401( High court’s power of revision) of CRPC by the Accused to set aside the judgement and order of conviction on 17/07/2019 by the principal civil judge and judicial magistrate first class and again the same judgement is confirmed by the Additional session judge , but it was allowed by High court of Karnataka through the learned bench led by the HON’BLE MR. JUSTICE V. SRISHANANDA in the case between chiranjeevi vs State of Karnataka (C.R.P. NO.1395/2021) on 20th December 2021 Brief facts of the case are that the sri Umesh, learned counsel representing Sri R.B.Deshpande, for the Revision Petitioners and Sri V.S. Vinayaka, learned High Court Government Pleader for respondent-State and perused the records. Accused presented before the honourable court challenging the judgement of the judicial magistrate first class and additional session judge to the conviction of the Accused. A Complaint was logged by the Complainant , contending that on 03.10.2011 at about 2.30 a.m., when the complainant while returning from his routine business that is milk vending and curd at various branches and by collecting the amount in the milk van bearing No.AP-03-Y-2307 near the land of one Narasimhappa on Venkatapura Gounipalli Road, accused Nos.1 to 3 came in Bajaj Discover motorcycle bearing No.AP-21-AH-5382 and intercepted the milk van and used the force and smeared the chilly powder into the eyes of the complainant and took away Rs.49,462/- from the custody of the complainant. The jurisdictional Police after registering the case, investigated the matter in detail and filed a charge sheet against the accused/Revision Petitioners for the offence punishable under Section 392 read with Section 34 IPC. The position of the accused persons were secured and arrested by the police and charge sheet was filed against them for the offences they have committed. Accused Nos.1 to 3 Pleaded not guilty and case against accused No.4 came to be bifurcated by filing split up charge sheet. Since the acused pleaded not guilty, the trial was held. In order to prove the case of the prosecution, Prosecution in all examined 12 witnesses including the Complainant, mahazer witnesses and investigating agency as prosecution witnesses from 1 to 12 and in all 17 documents were relied as Exs.P1 to 17. Prosecution also relied on the material objects namely knife, chilly powder, mobile telephone, Rs.7,000/- cash, china set mobile phone, mobile sim and cash of Rs.8,000/-, Rs.6,500/- and Rs.5,342/- cash bags as MOs.1 to 12. On conclusion of the prosecution evidence, accused statement as contemplated under Section 313Cr.P.C. was recorded, wherein the accused persons denied all the incriminatory circumstances. However, they did not offer their version to the incident by examining themselves or by placing written submission as is contemplated under section 313(5) Cr.PC. After hearing both the parties, the trail magistrate passed an order of conviction covicting an accused for the aforesaid offence and sentenced as refered to earlier. Being aggrieved by the order of trail magistrate , accused persons Preferred an appeal before the Sessions Cour. Learned Judge in the first appellate court after securing the records and hearing both the parties in detail and after re-appreciating the materials available on record, ultimately dismissed the appeal of the accused persons confirming the judgment and order of conviction and sentenced passed by the trial Magistrate by judgment Dated 8/10/2021. Being aggrieved by the order of session court, the accused Nos.1 to 3 have decided to go for revision petition with the following grounds: That conviction and sentence passed by he courts below are contrary to law, evidence On record and probabilities of the case; That courts below have not considered the facts and circumstances of the case in proper prospective; That judgments of courts below are illegal, arbitrary, capricious and opposed to Sound principles of law; That courts below have committed serious error in convicting the petitioners when The prosecution has failed to prove the guilt of the petitioners; etc. Reiterating the above grounds Sri Umesh learned counsel from the applent side contended that both the courts have not properly appreciated the materials available on record and falsely convicted the accused persons resulting in miscarriage of the justice and therefore, asked for allowing the revision petition. He also contended that since the accused persons are the first time offenders without any criminal antecedents, the trial Court and First appellate Court ought to have considered the grant of probation to the Revision. On the other hand, learned high court government pleader supported the impugned judgment contending that after registering the case police were able to apprehend accused Nos.1 to 3 and recovered whole cash which was stolen and the case bag which was in the custody of the complainant as on the date of incident and same has been marked before the trial Court and why would the police implant such huge cash only with an intention to get false conviction against the accused persons in the absence of any previous animosity and therefore, judgment of the trial Magistrate is based on sound and logical reasons and same has been properly reappreciated by the learned Judge in the first appellate Court in the light of the grounds raised in the appeal memorandum and thus, sought for dismissal of the revision petition. Insofar as alternate plea is concerned, if the accused persons shown any leniency, the same would send Wrong message to the Society at large and sentence ordered by the court must act as a deter to such perpetrators Of the crime and therefore, sought for dismissal of the revision petition in too. In view of the rival contentions and having regard to the scope of the Revisional jurisdiction, the following points would arise for consideration such as: “1.Whether the finding recorded by the trial magistrate that accused persons are guilty of the offence punishable under Section 392 read with Section 34 IPC and confirmed by first appellate court is suffering from patent factual defects, legal infirmity, perversity or error of Jurisdiction and thus, calls for interference? 2.Whether the sentence is excessive?” Regard to the scope of the Revisional jurisdiction, this Court reconsidered the materials available on record and is satisfied that none of grounds urged in the revision petition holds merit so as to interfere with the well reasoned order passed by the trial magistrate and confirmed by the First Appellate Court. The court relied on the precedent of Chandreshwar Sharma Vs State of Bihar Where the court released the accused released the accused on the ground that a bond of certain sum shall be deposited and to receive the same sentence when called upon to do so. In case of Gulzar vs state of MP same was held. After hearing both the council’s and records presented presented by their learned council before the honorable court, court allowed the criminal revision petition and directed the accused persons to execute a bond in a sum of Rs.50,000/- each with one surety for the likesum to the satisfaction of the trial Court, which shall be in force for a period of two years for their good behavior. Click here to read the judgement  Judgement Reviewed by Sugam Anand Mishra