- 1 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 1057 OF 2019 BETWEEN: 1. SRI. SANTHOSHKUMAR @ SANTHOSH AGED ABOUT 40 YEARS S/O SRI. SHANKARNAIKA, AGRICULTURIST AND AUTO DRIVER R/O HOLEGANGUR DODDAKOPPANAHALLI POST BHADRAVATHI – 577 245. …PETITIONER (BY SRI. K.S.GANESHA, ADVOCATE) AND: 1. THE STATE OF KARNATAKA BY BIRUR POLICE REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. …RESPONDENT (BY SRI. K. NAGESHWARAPPA, HCGP) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 11.06.2019 PASSED IN CRL.A.NO.115/2018 BY THE II ADDITIONAL DISTRICT AND SESSION JUDGE, CHIKKAMAGALURU, CONFIRMING THE JUDGMENT OF CONVICTION AND SENTENCE DATED 02.07.2018, PASSED IN C.C.NO.48/2015 BY THE SENIOR CIVIL JUDGE AND JMFC AT KADUR. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 THIS PETITION COMING ON FOR ADMISSION THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for the petitioner and learned HCGP for the respondent-State. 2. The present revision petition is filed against the conviction and sentence imposed against the petitioner for the offence punishable under Section 392 IPC. 3. The factual matrix of the case of the prosecution is that on 08.07.2014 at 4.30 p.m., the complainant Smt. Shwetha has lodged a complaint with Birur police, wherein she has alleged that on 07.07.2014 at 8.20 p.m., while she was going along with C.W.2-Deepak at Sri Ganapati Temple Road, Rajajinagar, Birur Town, the accused Nos.1 and 2 came there in a pulsar motor cycle and when the accused persons tried to snatch the mangalya gold chain from the neck of C.W.1, since she caught hold the chain tightly, the pillion rider snatched half portion of gold chain and another half portion has remained with C.W.1. Upon receiving the complaint, the police have - 3 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 registered the case, investigated the matter and filed the charge sheet. 4. The accused persons were secured and they did not plead guilty and hence, the prosecution examined the witnesses as P.Ws.1 to 18 and got marked the documents as Exs.P1 to P21 and M.O.1-Gold chain is also marked. The defence have not led any evidence, but they were subjected to 313 statement. 5. The Trial Court having considered both oral and documentary evidence placed on record, convicted the accused for the offence punishable under Section 392 read with Section 34 of IPC. The same was challenged before the First Appellate Court and the First Appellate Court gave the benefit of doubt in favour of the accused Nos.2 and both of them have filed Crl.A.Nos.115/2018 and 34/2019. The appeal filed by this petitioner was numbered as Crl.A.No.115/2018. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record, confirmed the judgment of the Trial Court and dismissed the appeal and other appeal filed by the accused No.2 was allowed and he was - 4 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 acquitted on the ground that he has not been identified by the witnesses. Hence, benefit of doubt was given in favour of accused No.2. Therefore, the present petition is filed by petitioner-accused No.1 before this Court. 6. The main contention of the learned counsel for the petitioner before this Court is that P.W.1 says that both accused Nos.1 and 2 came in the motorcycle and accused, who was sitting behind the motorcyclist snatched the chain. Learned counsel would vehemently contend that P.W.1 in her evidence says that she has given the description of the accused and the same is not mentioned in the complaint. She also categorically admits that police called her to identify the accused and she went and identified the accused and also categorically admits that prior to 28.10.2014, accused was shown to her and at that time, both the accused were there in the police station and she has seen the accused in Test Identification Parade and when such admission is given by P.W.1, the Trial Court and the First Appellate Court ought not to have relied upon the evidence of P.W.1. Learned counsel would contend that when the accused persons were shown to P.W.1 before the Test Identification Parade, the Test Identification Parade cannot be relied upon. - 5 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 7. Learned counsel for the petitioner would vehemently contend that the First Appellate Court while acquitting the accused No.2 made an observation that recovery is not proved and the witnesses P.Ws.5 and 6 evidence cannot be looked into and the same yardstick applies to this petitioner, when discretion is exercised in favour of accused No.2. Hence, the Trial Court committed an error in convicting the petitioner and the First Appellate Court committed an error in relying upon the evidence of P.Ws.1 and 2. Learned counsel for the petitioner would submit that evidence of P.W.2 is contrary to the evidence of P.W.1 and he categorically says that C.W.2 took her and shown the accused, when they were in the other Court and prior to that he had not seen the accused. Hence, the case of the prosecution that P.Ws.1 and 2 were together at the time of incident cannot be relied upon. The counsel for the petitioner also would vehemently contend that the prosecution witnesses who have been examined have turned hostile except PW1 and PW2 and even recovery made from the jewelry shop and witness also says that police came and showed the accused and they have drawn the mahazar and nothing is recovered from his shop. In the cross-examination also nothing is elicited - 6 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 from the mouth of owner of jewelry shop. When such being the case, the Trial Court ought not to have convicted the petitioner. 8. Per contra, the learned counsel appearing for the State would vehemently contend that the very case of the prosecution is that both accused Nos.1 and 2 came in the motorcycle and snatched the chain belongs to PW1. The counsel would vehemently contend that though PW2 says that for the first time, he had seen the accused before the Court, evidence of PW1 is clear that immediately when the accused were apprehended, she was called to the police station and she identified the accused. Inpsite of answer given by PW1 that she had seen the accused persons prior to the test identification parade when she called to the police station itself is enough to convict the accused also in the complaint also PW1 categorically stated that if accused are apprehended, she can identify them. Accordingly, she identifies the accused in the police station when they were apprehended. 9. The counsel for the State also brought to notice of this Court that PW3 and PW4 speak about conducting of spot - 7 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 mahazar where incident was taken place and they have supported the case of the prosecution. Though PW5 and PW6 have turned hostile, in the cross-examination of PW5, he categorically admits that mahazar was drawn in the jewelry shop in terms of Ex.P13 and when suggestion was made that these accused persons took them to the jewelry shop and given instructions to stop the vehicle near the jewelry shop, same is admitted saying that accused only took them to Bhadravathi and shown the shop where gold articles were pledged and also the owner of the jewelry shop identified the accused persons who pledged the gold articles with him and in the cross- examination except eliciting the answer from their mouth that they does not know why they have drawn the mahazar, the evidence of PW5 has not been disputed by the accused. So also PW6 though turned hostile, similar answers are elicited from his mouth that accused persons only took them to the shop where they have pledged the gold articles and also categorically says that even valuer also brought to the police station and all of them went to the Bhadravathi and accused only given signal to stop the vehicle and took them to the Raghavendra jewelry and shown the shop and also the owner - 8 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 of the shop also admitted that accused persons have pledged the gold articles with him and all these answers elicited from the mouth of PW5 and PW6 and except with regard to the contents are not known to them. 10. The other witness i.e., PW11 also turned hostile. But having considered the evidence of PW11, it is very clear that he only gave the gold articles which was pledged with him. Hence, in view of the evidence of PW5, PW6 and PW11 even though they turned hostile, the Court has to take note of the said fact into consideration and the material clearly discloses that this petitioner was identified by the PW1 and First Appellate Court while acquitting accused No.2 given benefit of doubt since there was no proper identification hence, this Court cannot exercise the revisional jurisdiction. The counsel also would vehemently contend that the scope of revision is very limited. If evidence considered by the Trial Court is not legal and if there is any perversity and orders suffers from its legality and correctness, then only this Court exercise the revision petition. - 9 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 11. Having heard the learned counsel appearing for the respective parties and on perusal of the material available on record, the points that would arise for consideration of this are: 1. Whether the Trial Court and the First Appellate Court committed an error in convicting and sentencing this petitioner for the offence punishable under Section 392 of IPC and the sentence commensurate with the charges leveled against the petitioner and whether it requires interference of this Court by exercising the revisional jurisdiction? 2. What order? 12. Having heard the learned counsel appearing for the respective parties and on perusal of the material available on record, it discloses that it is the case of the prosecution that on 07.07.2024 at about 8.00 p.m., when PW1 was returning from the temple at that time, accused Nos.1 and 2 came in the motorcycle and snatched the golden chain and when she hold the chain tightly, the pillion rider was able to get half portion of the chain and they escaped from the spot. No doubt, there is a - 10 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 delay of one day in lodging the complaint but she categorically says that she went to the police station but did not gave the complaint and on arrival of her husband, on the next day, lodged the complaint. 13. The main contention of the counsel for the petitioner that test identification parade was conducted subsequently and also with regard to the test identification parade is concerned, she categorically admits that before conducting test identification parade, she had seen the accused in the police station itself and hence, her evidence cannot be relied upon. If any such answer is elicited from the mouth of the witness, but the fact is that when accused were apprehended, PW1 was called upon to the police station to identify the accused persons and accordingly, she went to the police station and identifies the accused persons. It is important to note that in the complaint itself she categorically says that accused persons came in the motorcycle and she can identified those two boys who came and snatched the chain. When such averment is made in the complaint, accordingly, she went and identified the accused in the police station and hence, even there was no need to conduct test identification parade - 11 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 when PW1 already identified the accused but test identification parade is conducted and no value could be attached to the test identification parade. Hence, there is a force with regard to the submission of the counsel. But the fact is that PW1 who identified the accused before the Court as well as before the police station stating that this petitioner and other accused came in the motorcycle and snatched her chain and the very answer elicited from the mouth of PW1 which has been extracted in the revision petition in the ground, same will not make any difference at all since PW1 categorically says that prior to test identification parade, she already went and identified the accused in the police station itself. 14. Other contention of the counsel for the petitioner that recovery has not been proved. But the fact that when the mahazar is conducted, PW3 and PW4 were present and their evidence is not discredited by the accused. However, main contention of the petitioner that PW5 and PW6 have turned hostile and answer elicited from their mouth in the cross- examination that whether accused persons were fair or not has not been spoken specifically but it is elicited from the mouth of PW5 and PW6 is similar with regard to the fact that accused - 12 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 only led the panch witnesses as well as IO to the shop of PW11 and PW11 also admitted that accused gave the chain and same was mentioned in the mahazar in terms of Ex.P13. When such answer elicited from the mouth of PW5 and PW6 treating them as hostile, accused counsel not disputed the same during the course of examination except suggestion made to Ex.P13 and the prosecution evidence has not been discarded with regard to PW5 and PW6 is concerned. No doubt, PW11 who is the owner of the jewelry shop has turned hostile and the very evidence of PW5 and PW6 who are the independent witnesses who went along with the police and accused to the shop of PW11 they categorically deposed that accused persons only led them to the jewelry shop and accused were identified by the owner of the shop and also informed the police that they came and pledged the gold chain and mahazar was drawn regarding seizure is concerned. When such material is available on record, very contention of the counsel for the petitioner that evidence of PW5 and PW6 cannot be relied upon is not accepted. 15. No doubt, the learned counsel for the petitioner brought to notice of this Court that PW2 says that CW1 only - 13 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 took him and showed the accused when they were in other Court and same cannot be a ground to extend the benefit in favour of the petitioner when PW1 identified the accused and also given evidence that she went and identified the accused in the police station. Having considered the evidence of PW1 which coupled with the evidence of PW5 and PW6 and also IO who took this petitioner to the shop of PW11 and recovery is made. The very contention that recovery also doubtful and the counsel contend that when the benefit of doubt extended in favour of accused No.2 and this petitioner also may be extended benefit of doubt. The said contention also cannot be accepted since there is a positive evidence with regard to identification of accused No.2 is concerned when PW1 categorically identified this petitioner and recovery is also made at the instance of this petitioner and though PW5, PW6 and PW11 turned hostile and even hostile evidence cannot be discarded in toto when incriminating evidence elicited from the mouth of PW5 and PW6 treating them as hostile and the entire portion of the evidence cannot be discarded when portion which was supported in favour of the prosecution also can be looked into even in a case of hostile witness. Hence, I do not find any - 14 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 error committed by both the Courts in appreciating both oral and documentary evidence placed on record. The scope of revision is very limited and only when the order suffers from its legality and correctness, this Court can exercise the revisional jurisdiction. Hence, I do not find any error on the part of both the Courts in appreciating the evidence available on record. 16. However, taking into note of the sentence of two years, the counsel for the State would contend that there is no criminal antecedents of similar offences committed by the petitioner herein. When such submission is made and also when there is no material to the fact that he is an habitual offendor, when offence invoked is Section 392 of IPC and when there is no criminal antecedents, it is appropriate to reduce the sentence for a period from two years to one year enhancing the fine amount from Rs.10,000/- to Rs.20,000/- instead of confirming the imprisonment of two years. Hence, I answer the above point as partly in the affirmative. Point No.2 17. In view of the discussions made above, I pass the following: - 15 - NC: 2025:KHC:3988 CRL.RP No. 1057 of 2019 ORDER The revision petition is allowed in part. The sentence ordered by the Trial Court in C.C.No.48/2015 is reduced to one year enhancing the fine amount to Rs.20,000/- against Rs.10,000/-. Out of the said fine amount of Rs.20,000/-, Rs.15,000/- is ordered to be paid to PW1 on proper identification and Rs.5,000/- shall vest with the State. Sd/- (H.P.SANDESH) JUDGE ST/SN List No.: 1 Sl No.: 37