Dismissed

Sri Abbas v. State of Karnataka

Karnataka HC8 Feb 2021CRL.RP/1100/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a criminal revision petition challenging conviction and sentence for theft under Section 379 IPC. Upholding lower courts' findings based on witness testimony regarding the accused driving the stolen vehicle and identification evidence, the Court found no grounds for interference.

What did the court decide?

The Criminal Revision Petition stands dismissed as devoid of merits.

Sri Abbas Vs State of Karnataka — Criminal Trial and Appeal | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY 2021

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BEFORE

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THE HON’BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

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CRIMINAL REVISION PETITION No.1100 OF 2011

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BETWEEN:

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Sri. Abbas, S/o. Abdul Rahiman, R/at Bithupade Pelathaddy Bottu, Bondanthila Village, Padu Post, Mangalore.

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..Petitioner

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(By Ms. Shridevi Bhosale for Amar Correa Associates)

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AND:

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State of Karnataka by Mangalore North Police, Rep. by State Public Prosecutor, High Court of Karnataka, At Bangalore.

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.. Respondent

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(By Sri. Thejesh P. High Court Govt. Pleader)

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This Criminal Revision Petition is filed under Section 397 and Section 401 of Cr.P.C. praying to call for the records in C.C.No.3051/2006 and set aside the judgment and order of conviction dated 15-04-2011 in Crl.A.No.160/2008 passed by the III Additional District and Sessions Judge, D.K. Mangalore; and set aside the judgment dated 21-04-2008 in C.C.No.3051/2006, passed by the Court of J.M.F.C. (II Court) Mangalore, D.K. etc.

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Crl.R.P.No.1100/2011

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This Criminal Revision Petition coming on for Final Hearing, through Physical Hearing/Video Conferencing Hearing this day, the Court made the following:

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O R D E R

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The present petitioner was tried as an accused by the Court of the J.M.F.C (II Court) Mangalore, D.K., (hereinafter for brevity referred to as the “Trial Court”) in C.C.NO.3051/2006, for the offence punishable under Section 379 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as the “IPC”) and was convicted by the judgment of conviction and order on sentence dated 21-04-2008.

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Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.160/2008 in the Court of the III Additional District and Sessions Judge, D.K., Mangalore (hereinafter for brevity referred to as the “Sessions Judge’s Court”), which after hearing both side dismissed the appeal filed by the accused by its judgment dated 15-04-2011. Not satisfied with the same, the accused has preferred the present revision petition.

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The summary of the case of the prosecution in the

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Trial Court was that, on 02-12-2004 in between 8:00 p.m. to 8:15 p.m., the present petitioner (accused No.2) joined by other

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three accused has committed theft of a motor Car bearing registration No.KA-19/N-5145 which was parked in front of Roopavani Theatre located in front of Central Market, Mangalore, within the limits of complainant Police Station and thereby has committed the offence punishable under Section 379 of the IPC.

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The charge sheet against the remaining accused was split-up, as such, the criminal case was confined for trial only as against the present petitioner who was accused No.2 in the charge sheet.

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In order to prove the alleged guilt against the accused, the prosecution got examined in all nine witnesses from PW-1 to PW-9 and got marked documents from Exs.P-1 to P-11(a). Neither any witness was examined nor any documents were marked as exhibits from the side of the accused.

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After hearing both side, the Trial Court by its impugned judgment of conviction and order on sentence dated 21-04-2008 convicted the accused No.2 before it (present petitioner) for the offence punishable under Section 379 of the IPC and sentenced him accordingly.

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Crl.R.P.No.1100/2011 4

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As observed above, the appeal challenging the said judgment of conviction filed in the learned Sessions Judge's Court in Criminal Appeal No.160/2008 also came to be dismissed. Aggrieved by the same, the petitioner (accused No.2) has filed the present petition.

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The respondent - State is being represented by the learned High Court Government Pleader.

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The Trial Court and the Sessions Judge’s Court’s records were called for and the same are placed before this Court.

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Heard the arguments from both side. Perused the materials placed before this Court including the Trial Court and Sessions Judge’s Court’s records.

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For the sake of convenience, the parties would be henceforth referred to as per their rankings before the Trial Court.

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After hearing the learned counsels for the parties, the only point that arise for my consideration in this revision petition is:

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Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge’s Court that the accused committed the alleged offence

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Crl.R.P.No.1100/2011

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punishable under Section 379 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

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Learned counsel for the petitioner in her arguments submitted that, though the theft of the Car on the date, time and place alleged in the charge sheet is not denied or disputed by the present petitioner (accused No.2), however, she seriously disputes the alleged involvement of the present petitioner in the alleged commission of the crime. Learned counsel submits that, the seizure of the Car has not been proved, in view of the fact that the panchas for the alleged Car seizure panchnama and the Investigating Officer who had seized the Car have not been examined by the prosecution.

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While placing a certified copy of the common judgment in Sessions Case Nos.144/2006 and 6/2008 dated 05-01-2009 passed by the Fast Track Court at Mangalore, learned counsel vehemently submitted that the said Sessions Cases, wherein the present petitioner was accused No.8, since has ended in an acquittal, the seizure is not proved, as such, the present case automatically withers away.

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Learned counsel further submits that, admittedly, the motor Car was not seized from the possession of the present

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Crl.R.P.No.1100/2011 6

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petitioner (accused No.2). Further the evidence of PW-3 about the seizure of the Car has not been further corroborated by other evidence.

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Finally stating that even according to the prosecution, the

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motor Car was in the possession of the accused No.1 but not with the present petitioner, as such, the guilt against the present petitioner could not be proved by the prosecution beyond all reasonable doubts, she prays for acquittal of the accused from the alleged offence.

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Learned High Court Government Pleader for the respondent in his argument submitted that the case of the prosecution is that, the stolen Car was seized in Crime No.192/2004 of Bajpe Police Station. However, when the said Car is admittedly a stolen Car, it becomes immaterial about proving the alleged seizure panchanama. He further submitted that PW-3 has categorically stated that, it was the present accused who was driving the Car at the time when the alleged offence of robbery took place. Therefore, when the present petitioner was driving the stolen motor Car and the said Car is proved to be a stolen Car, the prosecution has clearly proved the guilt against the accused.

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He also submits that the evidence of PW-8 - Tahsildar who

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conducted the Test Identification Parade (TIP) clearly establishes the fact of identification of the accused, which corroborates the evidence of PW-3 that, it was the present accused also, joined by the other accused whose case has been split up, have committed the offence of theft.

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It is not in dispute that, the motor Car bearing registration number KA-19/N-5145 was stolen on the night at about 8:00 p.m. on 02-12-2004 from the place where it was parked in front of Roopavani Talkies located in front of the Central Market Gate at Mangaluru, within the limits of the complainant Police Station.

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In that regard, PW-1 - Victor Raviraj Soans has given his evidence that, he is the complainant in this case whose complaint has also been marked at Ex.P-1. The said evidence that PW-1 is the owner of the Car since it was sold to him has been further corroborated by the evidence of PW-2 - Sri. Ravindra Rai who has stated that, he is the RC owner of the Car and had sold the said Car to PW-1, however, transfer of ownership of the Car in the RC book was pending. Therefore, the fact remains that, on the alleged date, time and place, the

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Crl.R.P.No.1100/2011

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motor Car bearing registration number KA-19/N-5145 was stolen

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from the alleged place as stated in the charge sheet.

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The next question would be, whether the accused was one among the alleged culprits who were said to have committed the alleged theft of the Car. It is on that regard, the alleged seizure of the Car and the alleged involvement of the accused plays an important role in the matter.

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Regarding the seizure of the Car, even according to the prosecution, the said motor Car was seized in Crime No.192/2004 of Bajpe Police Station. The evidence of the Investigating Officer, i.e. PW-7 would go to show that, while he was under investigation of the present case, he came to know through PW-1 that, on 06-05-2005, the stolen motor Car was seized by the Bajpe Police in their Station Crime No.192/2004. Then he requested for the documents of the seizure from the said crime and after receiving the same, he has adopted the same in the present case.

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In his cross-examination, he has given some more details

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in that regard by stating that, he has not seized the Car by himself and in this case he has collected the documents of the

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Crl.R.P.No.1100/2011

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seizure of the Car from the said Bajpe Police Station. Except eliciting the said detail in his cross-examination, no suggestion was made to the said witness denying the alleged seizure of the Car and also denying the receipt of the documents by the said Investigating Officer with respect to the seizure of the Car in Crime No.192/2004 of Bajpe Police Station.

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Secondly, PW-1 in his evidence has stated that after he lodging the complaint in this connection, the complainant Police had drawn a scene of offence Panchanama as per Ex.P-2 and subsequently, in the month of January, he received a telephone call from Panambur Police and he was called for identification of the Car. Accordingly he went there and identified the Car with the help of its engine and chassis number and he also got released the said motor Car. Even in his crossexamination, he reiterated that, after the theft of his Car, he has seen it for the first time in the Panambur Police Station. The said statement of the witness that his Car was not only stolen, but it was also shown to him in a different Police Station under a different crime number, has not been specifically denied in his cross-examination.

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Crl.R.P.No.1100/2011 10

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Same is the evidence of PW-2, who too has stated that, it

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is through PW-1, he came to know that the stolen Car was traced by the Police and accordingly he, joined by PW-1, has identified the Car in the Police Station. Therefore, the stolen Car was required by a different Police Station and PW-1 and PW-2 went to that Police Station for identifying the said Car as the owners of the Car, stands proved.

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In the above background, when the alleged theft of

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the Car and its further identification by the owners of the Car is proved, who was found in the possession of the Car at some relevant point of time, would be of great importance. It is in that regard, the evidence of PW-3 (CW-5) - Robert Castelino plays an important role. The said witness has stated that he has been doing the finance business in the form of releasing the unreleased pledged gold articles on behalf of pledgor and purchasing the same in Mangaluru. In that connection, at the call of one Sri. Sharief (who incidentally is one among the accused in this Crime as Mohammed Sharief @ Sharief)) on 15-12-2004, he accompanied him to go to Moodabidre along with

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a cash of a sum of `3,00,000/- to get release of some ornaments which were said to have been pledged by the said

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Crl.R.P.No.1100/2011 11

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Sharief in the Moodabidre Society. He has stated that, at that

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time he was being accompanied by said Sharief and another person. The driver of the said Car was the present accused - Sri. Abbas. The witness has identified the accused in the Court as the one who was driving the said Car at that time. The witness has further stated that, on the way instead of going to Moodabidre, the driver and the other inmates took a deviation and entered a different route and when questioned by him, they stopped at a particular place where few people from outside, armed with deadly weapons including Talwar (sword) approached him and at the point of the blade of the sword, they robbed him of cash which he was possessing. It is in that connection, he has lodged a complaint with the Police.

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The witness has further stated that, about 15 to 20 days

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after the said crime, he was summoned by the complainant Police therein. Accordingly, he went to the place intimated by the Police and identified the Car in which he was travelling at the time of dacoity. He has stated that in the presence of panchas and as identified by him, the Investigating Officer in that crime in which he was the complainant seized the said Car. He has identified the copy of the said seizure panchanama at Ex.P-4 and

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Crl.R.P.No.1100/2011 12

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his signature at Ex.P-4(a). He has identified the said Car also through its photographs from Exs.P-5 to P-8. Though he was subjected to a detailed cross-examination, but nothing could be elicited in his cross-examination favouring the accused, rather he

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has given some more details about the seizure of the Car and identity of the accused as a driver of the said Car. It is worth to notice that, in his cross-examination, it was not suggested to this witness that the accused was not driving the said Car at the time of the alleged incident. This witness (PW-3) in order to substantiate that he has seen the accused, has further stated in his cross-examination that in his complaint before the Police, he has given a detailed description of the identification of the accused. Thus, the witness has shown that he was clear and specific in noticing the identity of the accused and also identifying the accused. Therefore, it prima-facie answers the first point of argument of the learnt counsel for the petitioner about the seizure of the Car.

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Even though the alleged panchas and the Investigating Officer in that other case, i.e. Crime No.192/2004 of Bajpe Police Station have not been examined, but non-denial of the evidence of PW-7 that the stolen Car was seized by the Bajpe Police and

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Crl.R.P.No.1100/2011

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that he had collected the document of seizure which is at Ex.P-4, has not been specifically denied and more importantly when PW-3 himself has stated that it was in his presence, the said Car was seized and also has identified the said Car, it clearly establishes that the Car was seized by the Police which is the stolen Car in the present case.

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Regarding the identity of the accused, learned counsel for the petitioner vehemently submitted that, it is PW-3 who is said to have identified the accused. However, the very same witness has not identified the accused in the said Sessions Case Nos.144/2006 and 6/2008.

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A reading of the evidence of PW-3 in the instant case would clearly go to show that, he claims to have not only seen the accused driving the stolen Car, but also has identified the accused in the present case as the one who was driving the Car at the time of incident. Though according to the learned counsel for the petitioner, he has failed to identify the accused in the Court in Sessions Case Nos.144/2006 and 6/2008, but it is not his case that prior to the evidence of PW-3 in the present case, he had already failed to identify

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the accused in Sessions Case Nos.144/2006 and 6/2008.

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Had the recording of evidence in Sessions Case Nos.144/2006 and 6/2008 was on a subsequent date, then, the witness could have been confronted with his evidence regarding the identification of the accused in C.C.No.3051/2006. Admittedly, no such exercise in either of the case has been done. As such, merely because a witness is said to have not identified an accused in some other crime for some other offence would not ipso facto make the identification of the accused in a different crime under different circumstances for a different offence, suspectable. It cannot be forgotten of the fact that the alleged identification of the accused in S.C.Nos.144/2006 and 6/2008 was in connection with a different crime, i.e. Crime No.192/2004 of Bajpe Police Station which was for the offence under Section 395 of the IPC. Whereas, the case on hand is under a different crime in a different Police Station for the offence punishable under Section 379 of the IPC. Here also, the role of PW-3 is to the extent that, on the date of the alleged

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incident, i.e. on 15-12-2004, in his complaint before the Bajpe Police Station, it was the present accused No.2/petitioner herein who was driving the motor Car in question. Therefore, subsequent to the alleged theft of the motor Car, it is established through the evidence of PW-3 that, the present accused was found in possession and control of the motor Car.

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The identification of the accused by PW-3 is further corroborated by the evidence of PW-8 - U.G. Naik - the then Tahsildar of Bhatkal Taluk, who has categorically stated that, while he was working as Tahsildar of Mangalore Taluk, he has conducted the Test Identification Parade on three different dates and he had summoned the present PW-3 (CW-5) also to identify the accused and when seven accused persons of the same age were shown to the witness in a group, the said witness, i.e.PW-3 (CW-5) has identified the accused No.2 - Sri. Abbas. Stating so, the said Tahsildar (PW-8) has also identified the present petitioner (accused No.2 in the Trial Court) as the very same accused whom PW-3 (CW-5) identified as the accused driving the motor Car at the time of the alleged incident. The said unshaken evidence of PW-8 - Tahsildar further corroborates that the identification of the accused by PW-3 was also proved and it was

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the present accused and accused alone who was found in driving the stolen motor Car on the alleged date of the other incident, i.e. on 15-12-2004.

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Learned counsel for the petitioner also canvassed a point that, the motor Car was not seized from the custody or possession of the present accused No.2 (present petitioner). Whereas, according to the Police, it is seized from the possession of the accused No.1. As such also, the nexus between the alleged offence and the present accused cannot be established.

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The said argument of the learned counsel also is not acceptable for the reason that, if according to the prosecution, the alleged accused persons are in total four in numbers, i.e. accused Nos.1 to 4, including the present accused No.2, and when an offence is said to have been committed by more than one accused together, it is not necessary that the stolen article must be found in possession of each one of them. Furthermore, as already observed, PW-3 has found that it is the present petitioner (accused No.2) who was driving the Car in which he was traveling on 15-12-2004. Therefore, this clearly would go to establish that it is the present petitioner (accused No.2),

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Crl.R.P.No.1100/2011 17

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joined with the other accused Nos.1 to 3, has committed the theft of the motor Car bearing registration No.KA-19/N-5145.

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It is appreciating these evidence placed before them in their proper perspective, both the Trial Court as well the learned Sessions Judge's Court since have rightly convicted the accused for the guilt punishable under Section 379 of the IPC and have sentenced him accordingly, which quantum of sentence also is proportionate to the gravity of the proven guilt against the accused, I do not find any reason to interfere in the said judgments.

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Accordingly, I proceed to pass the following:

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O R D E R

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The Criminal Revision Petition stands dismissed

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as devoid of merits .

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Registry to transmit a copy of this order to both the Trial Court and also to the Sessions Judge’s Court along with their respective records forthwith.

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JUDGE

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Sd/-

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BMV*

Sri Abbas v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri Abbas v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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