Allowed

Ramesh v. State of Karnataka

Karnataka HC14 Dec 2020CRL.RP/652/2011

Case brief

AI extract

What is this about?

The High Court allowed two criminal revision petitions filed by petitioners convicted of theft under Section 379 IPC. The Court found the conviction unsustainable due to lack of independent evidence regarding recovery, contradictions in prosecution witnesses evidence, and absence of proof regarding police deputation.

What did the court decide?

The impugned orders of conviction and sentence are set aside, and the petitioners are acquitted of the charge under Section 379 IPC.

Ramesh Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2020)

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MRS. JUSTICE K.S.MUDAGAL

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CRIMINAL REVISION PETITION No.1036/2011 c/w CRIMINAL REVISION PETITION No.652/2011

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Crl.R.P.No.1036/2011

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BETWEEN :

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MANJU PRAKASH S/O LINGANNA AGED ABOU 21 YEARS RESIDING AT NEAR PARK T.P.KAILASAM ROAD, SAPTHAGIRI EXTENSION TUMKUR …PETITIONER

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(BY SRI.SHIVARAJ NAIK, ADVOCATE FOR SRI.ARUN KUMAR Y.H., ADVOCATE)

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AND :

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STATE OF KARNATAKA BY N.E.P.S. TUMKUR … RESPONDENT

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(BY SRI. H.R.SHOWRI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 20.07.2010 PASSED BY THE PRESIDING OFFICER, FTC-I, TUMKUR IN CRL.A. NO.116/2008 AND ORDER DATED:05.07.2008 PASSED BY THE ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) AND CJM, TUMKUR IN C.C. NO.2183/2006.

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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CRL.R.P.NO.652/2011

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BETWEEN :

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RAMESH S/O JAYANNA AGED ABOUT 23 YEARS RESIDING AT SIDE BY PARK T.P.KAILASAM ROAD TUMKUR …PETITIONER

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(BY SRI.SOMASHEKHARA, ADVOCATE FOR SRI.M.SHASHIDHARA, ADVOCATE)

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AND :

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STATE OF KARNATAKA BY N.E.P.S. TUMKUR

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… RESPONDENT

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(BY SRI. H.R.SHOWRI, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 20.07.2010 IN CRL.A.NO.112/2008 C/W CRL.A. NO.116/2008 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I, TUMKUR AND ORDER DATED:05.07.2008/23.07.2008 PASSED BY THE ADDITIONAL CIVIL JUDGE (SENIOR DIVISION) AND C.J.M., TUMKUR IN C.C. NO.2183/2006.

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THESE CRIMINAL REVISION PETITIONS COMING ON FOR HEARING THIS DAY, THE COURT THROUGH PHYSICAL HEARING MADE THE FOLLOWING:

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O R D E R

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“Whether the impugned order of conviction and sentence passed against the petitioners for the offences punishable under Section 379 of IPC suffer any

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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illegality, impropriety and incorrectness ?” is the question involved in this case.

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The petitioner in Crl.P.No.652/2011 was accused No.1 and petitioner in Crl.P.No.1036/2011 was accused No.2 in C.C.No.2183/2006 on the file of the Additional Civil Judge (Sr.Dn) and CJM, Tumkur. The petitioners were prosecuted in the said case on the basis of the charge sheet filed by New Extension Police in Crime No.112/2006 of their Police Station.

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The case of the prosecution was as follows: i) On 23.06.2006 at about 2.10 p.m. PW.1

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Raju L.P., a Professor filed Ex.P1 the complaint in the New Extension Police Station alleging that on 22.05.2006 at about 9.00 p.m. somebody has stolen his Hero Honda Splendor motor bike No.KA-06 L 2476 which was parked in front of his house. In the complaint, he had mentioned the colour, chassis number and engine number of the vehicle.

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ii) On the basis of such complaint, PW.5 registered the FIR Ex.P5 in Crime No.112/2006 for the

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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offence punishable under Section 379 of IPC and submitted the same to the trial Court.

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iii) On 24.06.2006 at 5.30 p.m. when PW.4 PC 831 and CW.7 PC 868 were on patrol duty apprehended the petitioners along with the bike on suspicion and produced them before PW.5 with the report as per Ex.P4.

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iv) PW.5 interrogated the petitioners and their interrogation revealed that they had stolen the said motor bike from the house of PW.1.

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v) PW.4 recovered the vehicle under the mahazar Ex.P3 in the presence of PW.3-Venkatesh and CW.5 –Shivakumar the Mahazar witnesses.

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vi) The investigation revealed that the motor cycle was the subject matter of the complaint Ex.P1, therefore, PW.5 got identified that through PW.1.

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vii). PW.5 conducted the spot mahazar as per Ex.P2. Since the investigation revealed the involvement of the petitioners in Crime No.112/2006, he filed the charge sheet.

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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The trial Court on taking cognizance summoned the petitioners and tried them for the offence under Section 379 of IPC. On hearing the parties, the trial Court convicted the petitioners for the offence under Section 379 IPC and sentenced them to imprisonment of 2 years and fine of Rs.3,000/- with default sentence. The motor cycle was marked at M.O.1 and that was ordered to be released to the custody of PW.1.

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The petitioners challenged the said order of conviction and sentence before Fast Track Court I, Tumkur in Crl.A.Nos.112/2008 and 116/2008. The First Appellate Court on hearing the parties by the impugned judgment and order dismissed the appeal confirming the judgment and order of the trial Court.

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Sri Somashekhara, learned counsel seeks to assail the impugned order of conviction and sentence of the Courts below on the following grounds:

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i) That except interested testimony of PWs.4 and

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5 absolutely there was no independent evidence to connect the petitioners to the crime.

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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ii) There was no material to show that PW.4 was on patrol duty and he apprehended the petitioners and the consequent recovery.

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iii) The Courts below were absolutely unjustified in convicting and sentencing the petitioners on the basis of interested testimony of PWs.4 and 5.

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iv) There was inordinate delay in filing the complaint.

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In support of his contention he relies on the judgment of the Kerala High Court in M.A.Thomas @ Thadi Thomas vs. CI of Police, Meenangady¹ .

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Learned HCGP submits that both the Courts on appreciation and reappreciation of the evidence concurrently held that the charge against the petitioners is proved and therefore, there is no scope for interference in the revisional jurisdiction by this Court. He further submits that PW.4 and 5 are the independent official witnesses and they have no animosity to implicate the petitioners falsely.

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1 LAWS (KER) 2018 10 17

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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It is not in dispute that there was theft of M.O.1 Motor cycle KA-06 L 2476 and that belonged to PW.1. The drawing of the spot mahazar Ex.P2 after the registration of FIR has no bearing in connecting the petitioners to the crime.

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The case of the prosecution was based on

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the following two circumstances:

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i) The alleged arrest and recovery of M.O.1 from the custody of the petitioners in the Police Station on 24.06.2006;

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ii) Identification of M.O.1. by PW.1 in the police station on 24.06.2006.

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The burden of proving the aforesaid facts beyond reasonable doubt was on the prosecution.

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The petitioners disputed the theory of deputation of PW.4 for patrolling duty during the intervening night on 23.06.2006 and 24.06.2006 and their apprehension by him and CW.7. There cannot be any dispute that assignment of duty in the police station will be by a written order. But the Investigating Officer

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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did not collect and produce any such record or Station House Dairy extract to show that PW.4 and CW.7 were deputed to the patrolling duty.

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As per the report Ex.P4 allegedly submitted by PW.4, the petitioners were found with motor byke KA 04 EE 7385. As per the complaint, the motor cycle number of the complainant was KA 06 L 2476. According to the prosecution, the petitioners had tampered the number plate of the vehicle and altered that from KA-06 L 2476 to KA 04 EE 7385.

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According to PW.1 and the evidence of PW.4, PW.1 identified the vehicle on the basis of engine and Chassis number. Then how the Investigating Officer got the vehicle identified through PW.1 was not explained by him. He does not even state that after the interrogation of the petitioners, he secured PW.1 and got the property identified.

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The alleged seizure was in the Police Station. PW.3 the alleged seizure mahazar witness

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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states that by the time he reached the police station, some Hero Honda vehicles were there in the Police Station and he came to know that they were stolen vehicles. He states that the Police took his signatures on some documents. Therefore it is not his case that the vehicle was recovered from the custody of the petitioners at their instance or on the basis of information revealed by them.

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PW.1 in his chief-examination deposed that he filed the complaint on 23.06.2006 and after two months of filing the complaint, police brought the petitioner near his house and drew the spot mahazar. That was contrary to the version of the prosecution that on the next day of filing the complaint, petitioners were apprehended and the vehicle was recovered.

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PW.1 was a professor. He had no satisfactory explanation for filing the complaint belatedly. He states that he is aware that the complaint has to be lodged soon after the theft and he had no impediment to file the complaint immediately. But, he

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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says that he was searching for the vehicle and therefore he did not file the complaint. He admits that he filed the complaint on the direction of the Police.

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Since PW.5 registered FIR, he will be interested to see that it will be taken to a logical end. Therefore the evidence of PWs.4 and 5 has to be cautiously analysed. Under such circumstances, the admission of PW.1 that he filed the complaint on the direction of the Police assumes significance. So also the evidence of PW.1 that after two months of filing of the complaint, the Police brought the accused near his house and revealed him about the recovery of the vehicle demolishes the story of the prosecution.

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Such material contradictions in the evidence of PWs.1, 3, 4 and 5 and non production of the order of deputation of PW.4 to the patrol duty create reasonable doubt about the deputation of PW.4, apprehension of the petitioners and recovery of the vehicle as alleged by the prosecution. Whenever a doubt arises in the case, it

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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is settled principle that the benefit of such doubt should go to the accused.

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In M.A.Thomas’s case relied on by the learned counsel for the petitioner, it was held that on the basis of the seizure alone the accused cannot be convicted unless the recovery as contemplated under Section 27 of the Indian Evidence Act, 1872 is established. It was further held that in the absence of proper legal evidence to prove the case beyond reasonable doubt, the accused was entitled to acquittal.

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In this case also, there was no acceptable legal evidence to prove the recovery. The trial Court and the first appellate Court acted contrary to the established principles of burden of proof in a case based on circumstantial evidence.

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For the aforesaid reasons the impugned

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order of conviction and sentence suffer illegality, impropriety and incorrectness. Therefore the petitions are allowed.

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Crl.R.P.No.1036/2011 c/w Crl.R.P.No.652/2011

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The impugned order of conviction and sentence dated 05.07.2008 passed by the trial Court in C.C. No.2183/2006 and confirmed by the First Appellate Court in Crl.A.Nos.112/2008 and 116/2008 are hereby set aside.

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The petitioners are acquitted of the charge for the offence punishable under Section 379 of IPC.

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The fine amount deposited, if any, shall be refunded to the petitioners. The order with regard to release of the vehicle to the complainant is maintained.

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akc

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Sd/JUDGE

Ramesh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Ramesh v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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