SRI TABREZ PASHA vs THE STATE OF KARNATAKA
- Court
- Karnataka High Court
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CRL.RP No. 826 of 2022
R
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 26 DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL REVISION PETITION NO. 826 OF 2022
BETWEEN:
1. SRI TABREZ PASHA
S/O MUSTHAQ AHMED
AGED ABOUT 28 YEARS,
ST
R/AT 1 CROSS, K G MOHALLA
KOLAR TOWN
PIN-563102
…PETITIONER
(BY SRI. VENKATESHAMOUNI K.M., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP BY KOLAR RURAL POLICE STATION
KOLAR
…RESPONDENT
Digitally
signed by
MALATESH
K C
Location:
HIGH
COURT OF
KARNATAKA
(BY SRI. K. NAGESHWARAPPA, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE
ADVOCATE FOR THE PETITIONER PRAYING THAT THIS
HONBLE COURT MAY BE PLEASED TO 1.SET ASIDE THE
JUDGMENT DATED 20.11.2021 IN CRL.A.NO.9/2020 PASSED
BY THE PRL.DISTRICT AND SESSIONS JUDGE AT KOLAR AND
APPRECIATE THE JUDGMENT OF THE TRIAL COURT IN
C.C.NO.628/2015 DATED 16.08.2019 PASSED BY THE 1ST
ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M KOLAR AND
DIRECT THE ACQUITTAL OF THE PETITION/ACCUSED FOR THE
OFFENCE P/U/S 394 OF IPC.
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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL ORDER
1. Heard Sri. Venkatesha Mouni, learned counsel for the
revision petitioner and Sri. K. Nageshwarappa, learned
High Court Government Pleader.
2. Accused who has been acquitted in CC No.628/2015
for the offence punishable under Section which was
challenged by the State in Criminal Appeal No.9/2020
wherein he has been convicted for the offence punishable
under Section 394 of the Indian Penal Code and sentenced
to undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.30,000/- with default
sentence of six months is the revision petitioner.
3. At the outset, revision petition itself is not
maintainable against an order of conviction by the First
Appellate Court by reversing order of acquittal passed by
Trial Magistrate and accused ought to have filed an appeal.
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However, the revision petition is pending since 2022 and
at this distance of time, if the revision petitioner is
directed to file a separate appeal and the same needs to
be adjudicated on merits, it would result in further delay
and also miscarriage of justice and therefore by consent of
the parties, though the accused has filed the revision
petition, same is taken for consideration as an appeal by
consent of the parties.
4. Facts in the nutshell for disposal of the present
petition are as under :
4.1 A complaint came to be lodged by Sri. Narayana
Swamy, who is the husband of PW2, Smt. Susheelamma,
contending that on 30.11.2014 at about 07.15 p.m. when
said Smt. Susheelamma was traveling in an autorikshaw
bearing number KA-08-5257 in order to go to Kendatti,
when autorikshaw reached Kendatti gate, accused failed to
stop the said autorikshaw there and further moved the
autorikshaw with high speed to Gudnapura Cross on Kolar-
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Bangalore National Highway-75 and there he committed
the robbery of the gold chain with black beeds (karimani)
and when resisted, he also assaulted the Smt.
Susheelamma on the lips, forehead and face and caused
fist injury and thereby committed an offence under
Sections 392 and 394 of the Indian Penal Code.
4.2 Police after thorough investigation, filed charge sheet
against the accused after recovering the said gold black
bead chain from the custody of the accused.
4.3 Learned Trial Magistrate after receipt of charge sheet
took cognizance of the aforesaid offences and summoned
the accused and however and secured the presence of the
accused.
4.4 Charges were framed. The accused pleaded not
guilty. Therefore, trial was held.
4.5 In order to bring home the guilt of the accused,
twelve witnesses were examined as PWs.1 to 12 and
thirteen documentary evidence were placed on record
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which were exhibited and marked as Exhibit P1 to Exhibit
P13 comprising of complaint, Seizure Mahazar, spot
Mahazar, photographs, wound certificate and FIR. Portion
of the contradictory statement of one of the prosecution
witnesses namely Nagesh (PW4 was marked as Exhibit
D1) during the course of cross-examination of PW1. The
seized gold black beads chain was marked as MO1 before
the Trial Magistrate.
4.6 After conclusion of recording of evidence, learned
Trial Magistrate recorded the statement of the accused
statement as is contemplated under Section 313 of the
Code of Criminal Procedure and heard the arguments of
the parties and noted that there is a contradictory
statement in the prosecution witnesses and there is a
serious lacuna in the investigation and thus recorded in
order of acquittal.
4.7 State filed an appeal before the District Court in
Criminal Appeal No.9/2020. Learned Judge in the First
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Appellate Court, after securing the records from the Trial
Magistrate, heard the arguments of the parties and re-
appreciated the material evidence on record, allowed the
appeal of the State and convicted the accused for the
offence under Section 394 of the Indian Penal Code and
sentenced the accused to undergo rigorous imprisonment
for a period of five years and to pay Rs.30,000/- with
default sentence of six months. Said order is called in
question in this revision petition.
5. As already pointed out, accused must have filed an
appeal instead of filing a revision petition. Nevertheless,
having obtained consent by both the parties, this Court
heard the arguments of counsel for revision petitioner and
treating the present revision petition as appeal with a
wider scope.
6. Sri. Venkatesha Mouni, learned counsel for the
petitioner would contend that once there is an order of
acquittal recorded by the Trial Magistrate, wherein serious
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contradictions are found from the material evidence placed
on record by the prosecution and there is a lacuna in the
investigation, First Appellate Court ought to have
confirmed the order of acquittal as an order of acquittal
would result in reinforcing the innocence of the accused.
7. He would further emphasize that prosecution is
required to establish the case beyond all reasonable doubt
and mere suspicious at any stretch of imagination would
not take the seat of proof and therefore while re-
appreciating the material evidence on record, First
Appellate Court ought not to have ignored the
contradictions elicited in the cross-examination of
prosecution witnesses.
8. He would also contend that on the same set of
material evidence placed on record if two views are
permissible, a view which favours the accused must be
preferred. Therefore, approach of the First Appellate Court
in totally reversing the findings recorded by the Trial
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Magistrate is bad in law and thus sought for allowing the
revision petition and acquit the accused.
9. Per contra, Sri. K. Nageswarappa, learned High
Court Government Pleader, would support the impugned
Order passed by the First Appellate Court reversing the
Order of the Magistrate and convicting the accused for the
offence under Section 394 of the Indian Penal Code is just
and proper.
10. He would further point out that recovery of MO1
under seizure marked at Exhibit P2 is sufficient enough to
establish the nexus between the incident and the revision
petitioner which has been rightly appreciated by the
learned Judge in the First Appellate Court and which needs
no interference by this Court.
11. He also emphasizes that there is no explanation
whatsoever forthcoming as to the possession of MO1 by
the accused and in the absence of any previous enmity or
animosity as against the petitioner, why would PW2 would
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falsely implicate him in the case is a question that remains
unanswered on behalf of the petitioner and thus sought for
dismissing the petition.
12. Having heard the arguments of both sides, this Court
perused the material on record meticulously.
13. On such perusal of the material on record, following
points would arise for consideration:
(i) Whether the material evidence placed on record
would be sufficient enough to sustain the order of
conviction passed by the learned Judge in the First
Appellate Court for the offence punishable under Section
394 of the Indian Penal Code?
(ii) Whether the impugned judgment of the First
Appellate Court suffers from legal infirmity and
conformity and thus calls for interference?
(iii) Whether the sentence ordered by the learned
Judge in the First Appellate Court convicting the
appellant before the Appellate Court is on the higher
side?
(iv) What order?
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Regarding point Nos.1 and 2:
14. No doubt, an Order of acquittal recorded by a Trial
Magistrate would act as a reinforcement to the innocence
of the accused inasmuch as every accused must be
presumed to be innocent. However, powers of the
Appellate Court in a given case, is not limited in re-
appreciating the material evidence on record.
15. In the case of Chandrappa and others vs. State of
Karnataka reported in (2007) 4 SCC 415 , Hon'ble Apex
Court in paragraph No.42, has held as under;
42. From the above decisions, in our considered view, the
following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power and an appellate court on the evidence before it
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may reach its own conclusion, both on questions of fact
and of law.
(3) Various expressions, such as, "substantial and
compelling reasons", "good and sufficient grounds", "very
strong circumstances", "distorted conclusions", "glaring
mistakes", etc. are not intended to curtail extensive
powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of
"flourishes of language" to emphasise the reluctance of an
appellate court to interfere with acquittal than to curtail
the power of the court to review the evidence and to
come to its own conclusion.
(4) An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by the
trial court.
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16. Again in the case of Babu versus State of Kerala
reported in (2010) 9 SCC 189 ;, the Hon'ble Apex Court
in paragraph Nos.12 and 19 has held as under ;
12. This Court time and again has laid down the
guidelines for the High Court to interfere with the
judgment and order of acquittal passed by the trial court.
The appellate court should not ordinarily set aside a
judgment of d acquittal in a case where two views are
possible, though the view of the appellate court may be
the more probable one. While dealing with a judgment of
acquittal, the appellate court has to consider the entire
evidence on record, so as to arrive at a finding as to
whether the views of the trial court were perverse or
otherwise unsustainable. The appellate court is entitled to
consider whether in arriving at a finding of fact, the trial
court had failed to e take into consideration admissible
evidence and/or had taken into consideration the
evidence brought on record contrary to law. Similarly,
wrong placing of burden of proof may also be a subject-
matter of scrutiny by the appellate court. (Vide Balak
Ram v. State of U.P., Shambhoo Missir v. State of Bihar,
Shailendra Pratap v. State of U.P.3, Narendra Singh v.
State of M.P., Budh Singh v. State of U.P.5, State of U.P.
v. Ram Veer Singh, S. f Rama Krishna v. S. Rami Reddy,
Arulvelu v. States, Perla Somasekhara Reddy v. State of
A.P.9 and Ram Singh v. State of H.P.10)
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19. Thus, the law on the issue can be summarised to the
effect that in 9 exceptional cases where there are
compelling circumstances, and the judgment under
appeal is found to be perverse, the appellate court can
interfere with the order of acquittal. The appellate court
should bear in mind the presumption of innocence of the
accused and further that the trial court's acquittal bolsters
the presumption of his innocence. Interference in a
routine manner where the other view is possible should
be avoided, unless there are good reasons for
interference.
17. Keeping in view the principles enunciated in the
aforesaid decisions, an Appellate Court does have the
power to re-appreciate the material evidence despite an
order of acquittal being recorded by the Trial Magistrate
and convict the accused if there are material evidence
which would attract the ingredients of a particular offence.
18. In the case on hand, in the background of the
aforesaid legal principles, The First Appellate Court re-
appreciated the material evidence, namely the testimony
of PW2, who is the victim in the incident.
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19. It is the specific case of the prosecution that she
boarded the autorikshaw bearing No.KA-08-5257 driven
by the accused herein for visiting the Kendatti on
30.11.2014 at about 07.15 p.m. It is the specific case of
PW2 that even after reaching the Kendatti gate, the
autorikshaw was not stopped and it moved further in a
speedy manner and went to the place called Gudnapura
cross on the Kolar-Bangalore National Highway No.75,
wherein at an unknown place, autorikshaw was stopped
and overpowering the resistance offered by PW2, accused
was successful in robbing the gold chain with black beeds
from the neck of PW2.
20. In the incident, in order to overpower the resistance
offered by PW2, accused caused fist injury on the face
resulting in bleeding injury on the lips. Somehow PW2 was
able to reach home and intimated the incident to her
husband who is examined as PW1, who in turn lodged the
complaint about the incident with Kolar Rural Police, Kolar.
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21. The police after registering the case vide Exhibit P13,
thoroughly investigated the matter and filed the charge
sheet inter-alia apprehended the accused person and
recovered the MO1 from the custody of the accused under
Exhibit P2 - Mahazar.
22. In a matter of this nature, identity of the accused
and seizure of robbed article assumes a greater
significance in establishing the offence.
23. To establish an offence under Section 394 of the
Indian Penal Code, prosecution is required to establish
following ingredients:
(a) Essential Ingredients - An offence under Section
394 has following essential ingredients:
(i) That the accused was one amongst others in
committing or attempting to commit robbery;
(ii) That the accused caused hurt to any other
person while doing so;
(iii) That he did so (caused hurt) voluntarily.
24.
In the case on hand, admittedly accused is a
stranger to PW2. In the usual course, she boarded the
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autorickshaw bearing No.KA-08-5257 driven by the
accused to reach Kendathi. Pertinently at about 07.15
p.m. on 30.11.2014, when the autorikshaw reached
Kendathi gate, taking advantage of a lonely lady being the
passenger of the autorikshaw, accused drove the
autorikshaw beyond the Kendatt gate and near Gudnapura
cross, on Kolar-Bangalore National Highway No.75 road,
stopped the autorikshaw in a lonely place and tried to rob
the gold chain from the neck of PW2. PW2 has resisted the
same and accused was able to overpower PW2 by causing
fist injury as could be seen from the wound certificate
marked at Exhibit P.12, was successful in robbing the MO1
from the neck of PW2.
25. Handing over of the seized gold chain to the hands of
PW1 is depicted in Exhibit P9-photograph.
26. Autorikshaw which was seized under Exhibit P3-
Mahazar is found in Exhibit P7 and Exhibit P8-
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photographs. Accused is seen along with the autorikshaw
in Exhibit P5-photographs.
27. When these incriminatory materials were put to the
accused, under Section 313 of the Code of Criminal
Procedure, accused failed to offer any explanation to those
incriminatory materials, but denied all the incriminatory
materials.
28. Admittedly, there is no previous enmity or animosity
that existed between complainant, his wife PW2 or the
investigation agency as against the accused so as to
falsely implicate him in the incident.
29. Further, to a specific question with regard to seizure
Mahazar wherein MO1 is seized vide Exhibit P2 and
autorikshaw is seized vide Exhibit P3, accused has not
offered any explanation whatsoever.
30. Why would investigating agency implant MO1 which
is a valuable gold ornament only with an intention to
obtain an order of conviction against the accused is a
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question that remains unanswered especially in the
absence of any previous enmity or animosity.
31. Thus, material evidence on record in the considered
opinion of this Court has been rightly reappreciated by the
learned Judge in the First Appellate Court, judgment of
acquittal passed by the learned trial Magistrate.
32. Thus, this Court does not find any legal infirmity or
perversity in the finding of guilt recorded by the First
Appellate Court while convicting the accused for the
offence under Section 394 of the Indian Penal Code.
33. In the foregoing discussion, point Nos.1 and 2 are
answered 'in affirmative' and 'negative' respectively.
Regarding Point No.3:
34. Learned counsel for the revision petitioner made an
alternate submission that in the event, this Court, while
upholding the order of conviction recorded by the First
Appellate Court , custody period of 15 months may be
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treated as period of imprisonment by enhancing the fine
amount reasonably as the revision petitioner is a first time
offender.
35. Learned High Court Government Pleader for the
respondent/State however would oppose the said
submission made on behalf of the revision petitioner by
contending that accused being the driver of the auto
rickshaw, took advantage of a lonely lady being the
passenger in a auto rickshaw, drove the auto rickshaw to a
unknown place near Gudnapura cross and robbed the
chain besides causing fist injury to P.W.1 as could be seen
from the wound certificate marked at Ex.P.12 and thus,
sought for dismissal of the revision petitioner in toto .
36. He would further contend that if any lenience is
shown to the revision petitioner, similarly placed
perpetrators of the crime would get encouraged and same
may result in sending a wrong message to the society at
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large and thus, sought for dismissal of the revision
petition.
37. This Court has given anxious consideration to the
rival contentions with regard to the appropriate sentence
to be passed in the case on hand.
38. Admittedly, accused is a first time offender. It is an
isolated incident that has occurred in the year 2014.
Accused is now married and is having two children and a
wife to be maintained. He continuous to earn his livelihood
by running an auto rickshaw.
39. It is to be borne in mind that the role of Court while
passing the order of conviction is altogether different while
passing an order of sentence in a given case.
40. Learned Judge in the First Appellate Court did
consider the contentions urged on behalf of the parties
including the grant of benefit of Probation of Offenders
Act.
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41. However, Court also noted that accused has the
responsibility of taking care of his wife and children and
despite the same, benefit of Probation of Offenders Act is
not granted especially in the absence of any criminal
antecedents.
42. This Court cannot lose sight of the fact that every
sinner has a future and there is a scope of reformation in
everybody’s life. Court is also expected to keep in mind
the celebrated principles in the criminal jurisprudence that
the Courts are required to hate the crime and not the
criminal.
43. Taking note of these aspects of the matter, this Court
is of the considered opinion that if the sentence of
imprisonment is modified by directing the custody period
already undergone by the accused as period of sentence
by enhancing the fine amount in a sum of Rs.4,00,000/-
which can be paid as compensation in addition to the
compensation awarded by the learned Judge in the First
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Appellate Court ends of justice would be met. Accordingly,
point No.3 is answered partly in the affirmative.
44. REG. POINT No.4 :
In view of the findings of this Court on point Nos.1 to
3 as above, following:
ORDER
i. Revision petition is allowed in part.
ii. While maintaining the conviction of the
revision petitioner for the offence
punishable under Section 394 of IPC,
custody period already undergone by the
accused to the extent of 15 months is
treated as period of imprisonment for the
proved offence under Section 394 of IPC
and to pay enhanced fine amount of
Rs.4,00,000/- in two installments i.e., one
installment in a sum of Rs.2,00,000/- on or
before 30.04.2026 and another
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installment in a sum of Rs.2,00,000/- on or
before 31.05.2026 before the learned Trial
Magistrate.
iii. After receipt of enhanced fine amount of
Rs.4,00,000/-, same shall be paid as
compensation to P.W.2 under due
identification.
iv. Failure to pay the enhanced fine amount by
the revision petitioner as aforesaid would
result in automatic restoration of the order
of imprisonment passed by the learned
Judge in the First Appellate Court.
Office is directed to return the Trial Court Records
with copy of this order forthwith for issue of modified
conviction warrant.
Sd/-
(V SRISHANANDA)
JUDGE
SNC from paragraph Nos.1 to 31,
KAV from paragraph Nos.32 to end.
List No.: 1 Sl No.: 21