Remanded

Kiran v. the State of Karnataka

Karnataka HC1 Sept 2021CRL.RP/601/2012

Case brief

AI extract

What is this about?

High Court set aside the First Appellate Court's judgment convicting the petitioner under Section 380 IPC for theft, noting the appellate court failed to re-appreciate evidence on identity and recovery. The matter was remanded for reconsideration.

What did the court decide?

Impugned judgment of First Appellate Court set aside; matter remanded to the First Appellate Court for reconsideration.

Kiran Vs the State of Karnataka — Cheque Dishonour | Karnataka HC (2021)

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Crl.R.P.No.601/2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER 2021

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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.601/2012

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BETWEEN:

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KIRAN S/O VENKATRANGANAYAKA AGED ABOUT 25 YEARS LAW STUDENT KEMPANAPURA VILLAGE CHAMARAJNAGAR TALUK CHAMARAJNAGAR DISTRICT … PETITIONER

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(BY SRI.K.A.CHANDRASHEKARA, ADV.)

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AND: THE STATE OF KARNATAKA BY THE POLICE OF SANTHEMARAHALLI POLICE STATION CHAMARAJNAGAR DISTRICT … RESPONDENT

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(BY SRI.VINAYAKA V S, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE PASSED IN C.C.NO.191/2007 DATED 28.04.2011 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC CHAMARAJANAGAR AND CONFIRMED BY THE PRESIDING OFFICER, FTC, KOLLEGAL SITTING AT CHAMARAJANAGAR IN CRL.A.NO.12/11 DATED 23.05.2012 AND ACQUIT THE PETITIONER FOR THE OFFENCE PUNISHABLE UNDER SECTION 380 OF IPC TO MEET THE ENDS OF JUSTICE.

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THIS CRIMINAL REVISION PETITION COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

Crl.R.P.No.601/2012

O R D E R

Aggrieved by the judgment of conviction and sentence passed by the Additional Civil Judge and J.M.F.C., Chamarajanagara for the offences punishable under Section 380 of IPC and confirmation of the same by the First Appellate Court, the accused has preferred the above revision petition.

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The petitioner was tried in C.C.No.191/2007 on the file of the Addl. Civil Judge and JMFC, Chamarajanagara for the offence under Section 380 of IPC on the basis of the charge sheet filed by Santhemarahalli Police in Crime No.4/2007 of their Police Station. Crime No.4/2007 was registered against the petitioner for the said offence on the basis of the complaint filed by PW.3 Rajesha.

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The case of the prosecution in brief is as

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follows:

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PW.1-Shankar was the owner of Nokia Mobile Set (M.O.1). PWs.3 and 4 were the employees in Vinayaka Bakery situated at Santhemarahalli Circle in

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Crl.R.P.No.601/2012

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Santhemarahalli village. PW.2 was running Cycle shop in front of Vinayaka Bakery. On 31.01.2007 between 9.30 and 10.30 a.m. PW.1 had plugged his M.O.1 for charging in the Vinayaka Bakery. The accused came to the bakery in the pretext of seeking water and sent PW.4 inside the bakery for fetching water. Taking advantage of his absence, the accused committed theft of M.O.1 the mobile set and escaped from the shop. When PW.1 came enquiring about the phone, PW.3 learnt about theft and filed complaint as per Ex.P3. The accused was caught near bus stand and was taken to the Police Station. The M.O.1 was recovered from him under the mahazar Ex.P2 in the presence of PW.3-the recovery mahazar witness.

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The trial Court tried the petitioner for the charge under Section 380 of IPC. The Trial Court relying on the prosecution evidence by the judgment and order dated 28.04.2011 convicted the petitioner for the offence punishable under Section 380 IPC and

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Crl.R.P.No.601/2012

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sentenced him to simple imprisonment for six months and fine of Rs.1,000/- with default sentence.

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The petitioner challenged the said judgment and order before the Fast Track Court, Kollegal sitting at Chamarajanagar. The learned Sessions Judge on hearing, by the judgment and order dated 23.05.2012 dismissed the appeal.

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Sri K.A.Chandrashekara, learned counsel for

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the petitioner accused reiterating the grounds of the revision petition assails the order of the First Appellate Court on the following grounds:

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i) The First Appellate Court has failed to exercise its jurisdiction as required under Section 381 and 356 of Cr.P.C;

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ii) There is no eye-witness to the incident. The case of the prosecution is based on recovery of M.O.1 from the petitioner and identification of the petitioner by PWs.3 and 4; and

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iii) Absolutely there is no re-appreciation and evaluation of evidence and the judgment is passed very mechanically.

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In support of his contentions he relies upon the following judgments of the Hon'ble Supreme Court:

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i) Chandrabhan Singh vs. The State of Rajasthan¹

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ii) State of Rajasthan vs. Prakash @ Gajendra²

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Sri V.S.Vinayaka, learned HCGP seeks to

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justify the impugned judgments and order on the ground that the First Appellate Court in para 7 of the judgment has re-appreciated the evidence. He further submits that when there are concurrent findings, this Court cannot interfere with the matter.

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The case of the prosecution was based on the recovery of M.O.1-stolen property and identification of the accused/petitioner by PWs.3 and 4. The First

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1 2020 SCC Online SC 865

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2 2015 AIR SCW 6729

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Crl.R.P.No.601/2012

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Appellate Court was expected to reappreciate and evaluate the evidence on the above said two aspects.

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The entire reasoning in the judgment of the First Appellate Court is in one paragraph i.e., Paragraph No.7. In the said paragraph the First Appellate Court proceeds to hold that mere non mentioning of the name of the accused in the FIR does not lead to inference of his innocence. In fact in the First information report, the name of the accused is mentioned. That itself shows the non-application of mind by the First Appellate Court.

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The First Appellate Court simply says that in the cross-examination of PWs.1 to 4 the accused has failed to elicit anything to discredit their testimony. That is all the reasoning with regard to the appreciation of evidence of PWs 1 to 4. The First Appellate Court has said nothing about the proof of identity of the accused or the proof of recovery of M.O.1 from his custody.

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Section 387 of Cr.P.C. deals with judgments of subordinate appellate Court which reads as follows:

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“387. Judgments of subordinate Appellate Court: The rules contained in Chapter XXVII as to the judgment of a criminal Court of original jurisdiction shall apply , so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate:

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PROVIDED that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered.”

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The reading of the above provision shows

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that the judgments of the subordinate Appellate Court should be as per the rules contained in Chapter XXVII of the judgments of the Criminal Court of original jurisdiction.

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Section 354 in Chapter XXVII of the Code

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deals with the contents of the judgment of criminal court of original jurisdiction which reads as follows:

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“ 354. Language and contents of judgment

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(1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353-

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(a) shall be written in the language of the court;

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(b) shall contain the point or points

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for determination , the decision thereon and the reasons for the decision .”

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The perusal of Section 354(1)(b) makes it clear that the judgment shall contain points for determination, the decision and the reasons for the decision.

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In the case on hand, the appellate Court

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should have considered the points whether identity of the accused and the recovery of M.O.1 are proved to connect the accused to the crime.

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As already pointed out, the First Appellate Court only said that nothing was elicited in the crossexamination of PWs.1 to 4 to discredit their evidence. In the similar circumstances, the Hon'ble Supreme

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Court in para 7 of the judgment in Prakash @ Gajendra ’s case referred to supra held as follows:

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“7. It is crystal clear that the High Court has not considered the evidence, neither the nature of injuries nor method and manner in which they were inflicted. The High Court has

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also not considered the aspect whether the accused intended to inflict injuries so as to cause the death. Even the circumstances to take the case out of the purview of section 302 have also not been discussed by the High Court. Simpliciter, it has been observed that a careful scrutiny of the entire evidence has been made but we find from the judgment that no such exercise has been done. Mere statement in the judgment to that effect is not enough. Evidence is not only required to be mentioned in the judgment but its evidentiary value has to be assessed carefully. No such exercise has been made .”

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(Emphasis supplied)

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18. Similarly in Chandrabhan Singh ’s case

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referred to supra the Hon'ble Supreme Court held that in the first appeal, the criminal Court is required to form its opinion on the basis of evidence on record and the opinion of the trial Court. It was observed that mere general or random observation that the prosecution has been successful in proving the guilt of the accused by adducing cogent and reliable evidence beyond all reasonable doubt does not conform the requirements of consideration of the first appeal in the criminal case.

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In this case also, the First Appellate Court has failed to exercise its appellate powers by raising the relevant points for consideration and reappreciating the evidence in the context of the findings of the trial Court and give its decision thereon. Therefore the impugned judgment and order of the First Appellate Court is set aside. The matter is remanded to the First Appellate Court for reconsideration.

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Since the matter is very old one, the petitioner shall appear before the First Appellate Court without any further notice on 04.10.2021.

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The First Appellate Court shall hear the parties and dispose of the appeal as expeditiously as possible in the light of the observations made above.

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Sd/JUDGE

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akc

Kiran v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Kiran v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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