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State by Hunsur Rural Police, Bengaluru v/s Mahesha @ Mahesh Kumar & Others

    Criminal Revision Petition Nos. 402, 403, 404 of 2018

    Decided On, 25 February 2019

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE K. NATARAJAN

    For the Petitioner: S.T. Naik, High Court Government Pleader. For the Respondents: ----------



Judgment Text

1. Since similar allegations are made in all these three petitions, except the place and date of occurrence of the offence, they are taken up together and disposed off by this common order.

2. Heard learned High Court Government Pleader and perused the records.

3. The respondents herein are accused in CC No.1154/2014, CC No.1168/2014 and CC No.1158/2014 on the file of the Senior Civil Judge and JMFC, Hunsur for the offence under Sections 457, 380 and 411 read with 34 of IPC.

4. The brief facts of the prosecution case in CC No.1154/2014 before the trial Court is 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 Schools of Channasoge village in Hunsur Taluk and committed theft of two gas cylinders and 20 packets of Palm Jyothi Oil and sold it to accused No.5, who knowing fully-well that the property was a stolen property, purchased the same from the accused Nos.1 to 4 and thereby committed the alleged offences. On receipt of the complaint, a case came to be registered again

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st the accused for the aforesaid offences and after completion of the investigation, charge sheet was filed against the accused persons. The accused pleaded not guilty and claimed to be tried. During trial, the accused filed an application claiming that they want to plead guilty, but the learned Assistant Public Prosecutor opposed the same on the ground that charges were already framed and at the time of framing of charges, the accused have pleaded not guilty. The learned Senior Civil Judge and JMFC, Hunsur, by order dated 02.12.2014, convicted the accused for the offences under Sections 457, 380 and 411 read with 34 of IPC and sentenced accused Nos.1 to 4 to imprisonment for a period of 7 months and to pay fine of Rs.100/- each for the offence under Section 457 of IPC and further sentenced them to imprisonment for a period of 6 months and to pay fine of Rs.100/- for the offence under Section 380 of IPC. Accused No.5 was convicted for the offence under Section 411 of IPC and was sentenced to 6 months imprisonment and to pay fine of Rs.100/-, in default, to undergo simple imprisonment for 10 days and all the accused persons were given set off and were directed to pay fine of Rs.100/- each for the offence under Section 457, 380, 411 read with 34 of IPC.

Being aggrieved by the inadequate sentence, the State preferred Crl.A.No.56/2015 before the VIII Additional District & Sessions Judge at Mysuru, sitting at Hunsur, and the learned Sessions Judge by judgment dated 07.09.2017 dismissed the said appeal confirming the order of conviction and sentence passed by the Trial Court. Being aggrieved by the aforesaid judgment of conviction and sentence passed by the Courts below, the State has preferred CrL.RP.No.402/2018.

5. As regards the facts of the prosecution case in CC No.1168/2014 is concerned, that on 07.08.2010, during the night hours, accused Nos.1 to 4 with a common intention, committed lurking house trespass by breaking open the lock of Government School at Milamburu village and committed theft of two gas cylinders and thereby, the accused committed offences punishable under Sections 457 and 380 read with 34 of IPC. On receipt of the complaint, a case came to be registered against the accused for the aforesaid offences and after completion of the investigation, charge sheet was filed against the accused persons. The accused pleaded not guilty and claimed to be tried. During trial, the accused filed an application claiming that they want to plead guilty, but the learned Additional Public Prosecutor opposed the same on the ground that charges were already framed and at the time of framing of charges, the accused have pleaded not guilty. The learned Senior Civil Judge and JMFC, Hunsur, by order dated 02.12.2014, convicted accused No.1 to 4 for the offence under Section 457, 380 read with 34 of IPC and sentenced to imprisonment for a period of 7 months and to pay fine of Rs.100/- each for the offence under Section 457 and further to undergo imprisonment for a period of 6 months and to pay fine of Rs.100/- for the offence under Section 380 of IPC and all the accused persons were given set off and were directed to pay fine of Rs.100/- each, in default, to undergo simple imprisonment for 10 days. Being aggrieved by the inadequate sentence, the State preferred Crl.A.No.49/2015 before the VIII Additional District & Sessions Judge at Mysuru, sitting at Hunsur, and the learned Sessions Judge by judgment dated 09.10.2017 dismissed the said appeal confirming the order of conviction and sentence passed by the Trial Court. Being aggrieved by the aforesaid judgment of conviction and sentence passed by the Courts below, the State has preferred CrL.RP.No.403/2018.

6. Insofar as the facts of the prosecution case in CC No.1158/2014 is concerned, that on 06.08.2010, during the night hours, accused Nos.1 to 4 with a common intention, committed lurking house trespass by breaking open the lock of the office of Government School of Naganahalli village and committed theft of two gas cylinders thereby, committed offence under Sections 457 and 380 read with Section 34 of IPC. On receipt of the complaint, a case came to be registered against the accused for the aforesaid offences and after completion of the investigation, charge sheet was filed against the accused persons. The accused pleaded not guilty and claimed to be tried. During trial, the accused filed an application claiming that they want to plead guilty, but the learned Additional Public Prosecutor opposed the same on the ground that charges were already framed and at the time of framing of charges, the accused have pleaded not guilty. The learned Senior Civil Judge and JMFC, Hunsur, by order dated 02.12.2014 convicted accused Nos.1 to 4 for the offence under Sections 457 and 380 read with 34 of IPC and sentenced them to imprisonment for a period of 7 months and to pay fine of Rs.100/- each for the offence under Section 457 and further imprisonment for a period of 6 months and to pay fine of Rs.100/- for the offence under Section 380 of IPC and all the accused persons were given set offence and were directed to pay fine of Rs.100/- each, in default, to undergo simple imprisonment for 10 days.

Being aggrieved by the inadequate sentence, the State preferred Crl.A.No.43/2015 before the VIII Additional District & Sessions Judge at Mysuru, sitting at Hunsur, and the learned Sessions Judge by judgment dated 20.09.2017 dismissed the said appeal confirming the order of conviction and sentence passed by the Trial Court. Being aggrieved by the aforesaid judgment of conviction and sentence passed by the Courts below, the State has preferred CrL.RP.No.404/2018.

7. On perusal of the judgment passed by the District and Sessions Judge at Mysuru, sitting at Hunsur, while passing the judgment under appeal, learned Sessions Judge has considered the gravity of the offence and the application filed by the accused pleading guilty, two of the accused were in jail for more than four years, two of the accused were in jail for more than two years, by relying upon the judgment of the Hon'ble Apex Court reported in the case of Alister Anthony Pareira vs. State of Maharastra, (2012) AIR SC 3802 in respect of the sentencing policy as an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done and evolved in the principles and objects of the sentencing policy and held that sentence should be determined according to the facts and circumstances of each case and it is not possible to prescribe a straight jacket formula for sentencing. A proper sentence is a composite of many factors including the nature of offence, the circumstances extenuating or aggravating the offence, the prior criminal record if any of the offender, the age, background, education, home life, social adjustment, the emotional and mental condition of the offender etc., and after considering all these factors, the District Court has dismissed the appeals filed by the State for enhancement of sentence.

8. The Trial Court while passing the order of sentence has given set off by relying upon the judgment of the Hon'ble Apex Court in the case of Atul Manubhai Parekh vs. CBI, (2010) CriLJ 2113. This Court also in respect of the same accused has upheld the sentence passed by the Trial Court as well as by the Appellate Court in Crl.RP Nos.1318/2017 and 1319/2019, dated 12.01.2018 and dismissed the revision petitions filed by the State. A copy of the same has been placed on record, which clearly indicates the same set of facts for the same accused and the Trial Court awarded the sentence of 7 months and thereafter, the same was upheld by the District Court and similarly these revision petitions were filed by the State against the judgment passed by the Courts below. Considering the age of the respondents and their avocation, in the earlier two petitions stated supra, this Court held at para-9 of the order 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. "

9. Therefore, considering the facts and circumstances of the case and this Court has also dismissed similar revision petitions filed by the State, the present revision petitions also deserve to be dismissed as there is no error or illegality committed by the Courts below. Therefore, these revision petitions do not call for any interference and are liable to be dismissed. Accordingly, the Criminal Revision Petitions are dismissed
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