Dismissed

State of Karnataka v. D.S. Shivakumar @ Kariya

Karnataka HC3 Feb 2021CRL.A/324/2011

Case brief

AI extract

What is this about?

In a criminal appeal concerning theft, the High Court dismissed the prosecution appeal challenging the acquittal of two accused persons. The Court held that the First Appellate Court correctly appreciated the evidence, noting discrepancies in seizure witness testimony and doubts surrounding the recovery marking of the stolen gold chain.

What did the court decide?

The criminal appeal filed by the State is dismissed, maintaining the order of acquittal.

State of Karnataka Vs D.S. Shivakumar @ Kariya — Quashing and FIR | Karnataka HC (2021)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶2

DATED THIS THE 03^RD DAY OF FEBRUARY, 2021

¶3

BEFORE

¶4

THE HON'BLE MR.JUSTICE ASHOK G. NIJAGANNAVAR

¶5

CRIMINAL APPEAL NO.324 OF 2011 (A)

¶6

BETWEEN:

¶7

STATE OF KARNATAKA BY UDUPI TOWN POLICE,

¶8

UDUPI. ...APPELLANT

¶9

(BY SRI K NAGESHWARAPPA, HCGP)

¶10

AND:

¶11

D.S. SHIVAKUMAR @ KARIYA, S/O BRAHMALINGA, RESIDING AT SHETTALLI VILLAGE, RAMPURA POST, SRIRANGAPATNA, MANDYA DISTRICT

¶12

JOHN ALBERT LEWIS @ KUMARA, AGED ABOUT 24 YEARS, S/O ALBERT LEWIS, R/O. MATADAHITLU, MURDESHWARA,

¶13

BHATKAL TALUK. …RESPONDENTS

¶14

(BY SRI BOPANNA & GIRI, ADVOCATES FOR R1,

¶15

SRI GIRIDHAR H, ADVOCATE AS AMICUS CURIAE FOR R2 VIDE ORDER DATED 23.02.2012)

¶16

¶17

THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT OF ACQUITTAL DT 11.01.2011 PASSED BY THE S.J. UDUPI IN CRL.A.NO.48/2010 AND RESTORE THE JUDGMENT OF CONVICTION ORDER DT 10.08.2010 PASSED BY THE II ADDL. C.J. (JR.DN) AND JMFC., UDUPI IN C.C.NO.3889 OF 2009 - CONVICTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE P/U/S 380 R/W 34 OF IPC.

¶18

THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING THROUGH PHYSICAL HEARING:

¶19

JUDGMENT

¶20

The State has filed this appeal for setting aside the judgment and order of acquittal passed in Crl.A. No.48/2010 by the Sessions Judge, Udupi and to restore the judgment and order of conviction passed in C.C. No.3889/2009 dated 10.08.2010 by the II Additional Junior Civil Judge and JMFC, Udupi.

¶21

The prosecution case is that on the

¶22

complaint filed by one Smt. Pushpa W/o U R Shet, Udupi taluk police have registered the case in P S Crime No.222/2009. The accused was arrested on 1.7.2009 and seizure mahazar was conducted and the stolen

¶23

¶24

property was recovered from the accused. After completion of the investigation, the police have filed the charge sheet against the accused respondent for the offence punishable under Section 380 read with Section 34 of IPC. The accused pleaded not guilty. In support of the prosecution case 8 witnesses were examined as PWs.1 to 8 and the documents were marked as EXs.P1 to P8.

¶25

The trial Court on appreciating the evidence

¶26

adduced by the prosecution arrived at the factual finding that the accused respondent is guilty for committing the offence punishable under Section 380 IPC. and passed order convicting the appellants for the offence punishable under Section 380 read with Section 34 IPC and sentenced them to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,000/- and also in default to pay the fine amount to undergo simple imprisonment for a further

¶27

¶28

period of one month. Being aggrieved by the said conviction the accused preferred an appeal. On hearing the counsel for the appellant and prosecution the appellate Court allowed the appeal and set aside the order dated 10.08.2010 in C.C. No.3889/2009. The State being aggrieved by the order of acquittal passed by the Sessions Court the prosecution has preferred this appeal.

¶29

Heard the submission of learned High Court Government Pleader and learned counsel for the accused No.1 who is also the Amicus Curiae for respondent No.2. Perused the orders passed in C.C. No.3889/2009 by the trial Court and the judgment and order passed in Crl.A. No.48/2010 and the records.

¶30

The present appeal is against the order of acquittal. In such a case as observed by the Apex Court, it is well settled law that High Court will not interfere with an order of acquittal merely because it

¶31

¶32

opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with the order of acquittal, merely because two views are possible. The interference of the High Court in such cases is governed by well established principles. According to these principles, it is only where the appreciation of evidence by the trial Court is capricious or its conclusions are without evidence, in such cases, the High Court may reverse the order of acquittal. The High Court will be justified in interfering where it finds that the order of acquittal is not in accordance with law.

¶33

In the present case 8 witnesses have been examined. PW.1 is the complainant and PW.2 is the husband of the complainant. PWs.3 and 4 are the witnesses for the spot mahazar. PWs.5 and 6 are the witnesses for seizure mahazar for recovery of the stolen property. PW.7 is the head constable who has arrested

¶34

¶35

the accused persons. PW.8 is the Investigating Officer who has conducted the investigation and submitted the charge sheet.

¶36

The trial Court has relied on the evidence of

¶37

PW.4 one of the seizure mahazar witnesses which is said to have been corroborated by PWs.6 and 7. The trial Court has also observed that PWs.4 and 5 have fully supported the case of the prosecution with regard to the seizure of the property and the evidence of PWs.3 to 5 is sufficient to prove the spot mahazar and seizure of the property. It is pertinent to note that according to prosecution, the stolen property namely the Mangalya chain has been seized by the police in presence of the seizure mahazar witnesses but the trial Court has nowhere mentioned whether the said stolen property was identified and marked before the trial Court or not. There is no convincing evidence to show that the stolen property which was said to have been recovered has

¶38

¶39

been produced before the Court and it was marked. Thus it creates doubt about the prosecution case and the charges of theft.

¶40

The appellate Court has discussed the

¶41

evidence of PW.2 who is the husband of PW.1. The evidence of PW.2 discloses that the police had called him near the fish market and have shown the gold article which is said to have been stolen from his house. It is elicited in the cross examination that after seizure of gold necklace by the police he went to the police station. Then CW.1 and Nagendra Achar have signed the mahazar. PWs.1 and 2 are not eye witnesses to the incident, but they have only identified MO.1 golden Karimani. On perusal of the evidence of PWs.3 to 5 there are many discrepancies or variations in their evidence. EX.P3 is the seizure panchanama drawn near fish market at Udupi. PW.4 has stated that the accused persons were arrested by the police and one of the

¶42

¶43

accused was in possession of gold chain and at the time of seizure of the gold chain, EX.P.3 panchanama was drawn. In the cross examination he has stated that in two or three cases he has given evidence. MO.1 golden Karimani chain was shown to him but he cannot say who was in possession of MO.1 gold chain.

¶44

The prosecution records disclose that PW.1 filed complaint on 01.07.2009 at 12.00 hours. On the same day the spot mahazar was conducted at the house of the complainant. Thereafter EX.P3 seizure mahazar was also conducted on 01.07.2019 evening at 5 p.m. According to prosecution within a span of two hours the accused were apprehended near Fish Market and the police have recovered the gold article. The contents of the EX.P.3 seizure mahazar discloses that the husband of the complainant Sri Ram Shet was directed to come to the spot along with the weighing scale. After his arrival the gold mangalya chain was shown to him and he has certified that the said mangalya chain is

¶45

¶46

weighing 45 grams. Thereafter both the accused are taken to the police station. It is very strange that the complainant’s husband was called to the spot along with the weighing scale to weigh the stolen property and to give the appraisal report. This appears to be a glaring doubtful circumstance.

¶47

PW.2 namely the husband of PW.1 complainant has stated that the gold chain was seized by the police in his presence. But PW.4, the mahazar witness has sated that MO.1 was shown to him and he cannot say who was in possession of MO.1 which is contrary to the evidence of PW.2 and EX.P3 mahazar. According to the prosecution MO.1 was shown to PWs.4 and 5 and it was weighed in their presence, but PW.4 has admitted in his cross examination that he do not know who else have signed the mahazar and he did not know the contents of EX.P3 mahazar.

¶48

¶49

PW.5 has stated in his cross examination

¶50

that he do not remember the weight of the seized gold chain and he do not know the contents of EX.P.3. Thus evidence of these witnesses do not inspire the confidence to believe the prosecution version.

¶51

On reappreciation of evidence placed on record it is evident that there is a clear variation between the evidence of PWs.2 and 4 and there is no convincing evidence to prove the recovery of the material object namely the gold chain. In addition to that the very circumstance of calling the complainant’s husband for weighing the gold chain and to certify the said stolen property creates doubt about the prosecution case. Considering all these aspects the First Appellate Court has allowed the appeal and acquitted the accused. Thus the impugned judgment and order is neither capricious nor erroneous.

¶52

¶53

For the aforesaid reasons this Court is of the

¶54

view that the impugned judgment in Crl.A. No.48/2010 passed by the First Appellate Court cannot be faulted with. Accordingly, I pass the following

¶55

ORDER

¶56

The appeal is dismissed.

¶57

This Court would like to place appreciation on

¶58

record the assistance given by the Amicus Curiae.

¶59

The registry is directed to pay the honorarium of

¶60

Rs.5,000/- (Rupees Five Thousand only) to the Amicus Curiae.

¶61

Sd/JUDGE

¶62

ykl

State of Karnataka v. D.S. Shivakumar @ Kariya

Case brief

What is this about?

What did the court decide?

State of Karnataka v. D.S. Shivakumar @ Kariya

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Sri Vyasaraj K R Vs Sri M K Sanna Lingappa

Mr Mohammad Jameel Pasha Vs Ms Swarnalatha

Sri Y Rajannna Vs S Mahadeva Shetty

Union of India by Vs Subramani

M/S. Sree Gokulam Chits & Finance Co. (P) Ltd. Vs Sri. Krishna

Sri. Anil Kumar S S Vs State of Karnataka by Psi