MAHESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Though the accused have preferred appeal against the judgment of Fast Track Court, Bengaluru in Criminal Appeal No.7/2011, the appeal is treated as revision filed under sec. 397 read with sec. 401 of the Code of Criminal Procedure (' Cr.P.C .' for short), and disposed of. If reasons can be given as to why this appeal should be treated as revision, they are as follows: Kodigehalli Police, Bengaluru charge sheeted the accused for prosecuting them for the offences under Ss. 454 and 380 of Indian Penal Code (' IPC ' for short). The Chief Metropolitan Magistrate before whom trial was held, convicted the accused for the offence under sec. 379 IPC instead of sec. 380 IPC and acquitted them of the offence under sec. 454 IPC. Aggrieved by the judgment, the State preferred an appeal under sec. 377(1)(a) of Cr.P.C., not for enhancing the sentence, but for convicting them for the offences under Sec. 454 and 380 IPC. By the judgment impugned before this court, the Fast Track Court modified the judgment of the Chief Metropolitan Magistrate and held the accused guilty of the offences under Sec. 454 and 380 of IPC and sentenced them. Against the judgment of Fast Track Court, i.e., of a Sessions Court convicting the accused or confirming the judgment of conviction passed by Magistrate, in an appeal, the Code of Criminal Procedure does not provide for further appeal in the nature of second appeal as provided in Code of Civil Procedure. However the High Court can exercise revisional jurisdiction against such a judgment in an appeal. Hence this appeal is treated as revision petition.

(2.) The allegation leveled against the accused were that on 11/5/2009, in between 12.30pm and 6.30pm they broke open the door of house of PW2 Amita Anand and stole gold items marked MO1 to MO5 during trial. FIR was registered at the instance of PW2. When the accused were arrested in connection with another theft case, they gave confession statement disclosing the theft committed by them in the house of PW2. Based on the confession statement, the investigating officer seized MO1 to MO5 from the shops where the accused had sold the gold items in the presence of the witnesses, and ofcourse at the instance of the accused. Ultimately charge sheet was laid against the accused.

(3.) The trial court held that the prosecution failed to provide evidence to establish the offence under sec. 454 IPC and therefore acquitted the accused of that offence. But in regard to offence of theft, the trial court gave finding that the evidence brought on record by the prosecution proved the offence punishable under sec. 379 IPC, instead of the offence punishable under sec. 380 IPC. To come to this conclusion, the trail court recorded the findings thus: PW1 would establish the fact of arresting the accused when they were about to commit theft in a building belonging to a society. PW15, the investigating officer recorded the voluntary statement of accused while interrogating them, and this led to seizure of MO1 to MO5 which had been sold to PW4, PW5, PW7 and PW10. Thereafter the accused led the investigating officer to the shops of PW4, PW5, PW7 and PW10 and recovered gold items MO1 to MO5 by drawing mahazars in the presence of PW9, PW11, PW13, PW14 and PW16. The oral evidence of these mahazar witnesses could be believed. PW2 identified her jewellery after seizure and this much of evidence was found to be sufficient for recording conviction for the offence under sec. 379 IPC.