Dismissed

Nagappa Yallappa Gotanavar v. the State of Karnataka

Karnataka HC1 Dec 2022CRL.RP/100086/2014

Case brief

AI extract

What is this about?

State filed criminal revision to confirm conviction for theft and burglary. Bench upheld concurrent findings that accused had no explanation for possession of stolen gold. Relied on Sections 114 and 106 of Evidence Act to presume guilt. Petition dismissed and orders confirmed.

What did the court decide?

Criminal revision petition dismissed; orders of conviction and confirmation of Civil Judge and Sessions Court confirmed.

Nagappa Yallappa Gotanavar Vs the State of Karnataka — Cheating and Forgery | Karnataka HC (2022)

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CRL.RP No. 100086 of 2014

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 1^ST DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE S.RACHAIAH CRIMINAL REVISION PETITION NO. 100086 OF 2014 (397)

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BETWEEN:

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NAGAPPA YALLAPPA GOTANAVAR, AGE: 44 YEARS, OCC: AGRICULTURE & COOLIE, R/O. KURABAGONDA, TQ & DIST: HAVERI.

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GURUSWAMI KENCHAPPA DURGANNANAVAR, AGE: 26 YEARS, OCC: AGRICULTURE & COOLIE, R/O. KURABAGONDA, TQ & DIST: HAVERI.

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SMT. YALLAWWA W/O. DURGAPPA PELANAVAR, AGE: 34 YEARS, OCC: COOLIE, R/O. KURABAGONDA, TQ & DIST: HAVERI.

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BASAVANTAPPA HANUMANTAPPA KANAKAPUR, AGE: 34 YEARS, OCC: COOLIE, R/O. KURABAGONDA, TQ & DIST: HAVERI.

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HANUMANTAPPA DURAGAPPA KERUDI, AGE: 32 YEARS, OCC: COOLIE, R/O. KURABAGONDA, TQ & DIST: HAVERI.

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Digitally signed by VIJAYALAXMI M BHAT Location: HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. Date: 2022.12.17 15:46:01 +0530

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BASAPPA HANUMANTAPPA HEDACHI, AGE: 36 YEARS, OCC: AGRICULTURE, R/O. KURABAGONDA, TQ & DIST: HAVERI.

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…PETITIONERS

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(BY SRI. SHIVASAI M. PATIL., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, R/BY SPP, DHARWAD BENCH HIGH COURT, DHARWAD. SUB INSPECTOR BYADGI POLICE STATION.

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…RESPONDENT

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(BY SRI. RAMESH CHIGARI., HCGP ADVOCATE)

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CRL.RP No. 100086 of 2014

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THIS CRIMINAL REVISION PETITION IS FILED U/S. 397 AND 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND THE SENTENCE ORDER DATED 15.07.2013 PASSED BY THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI SITTING AT RENEBEENUR IN CRIMINAL APPEAL NO.71/2008 PARTLY ALLOWING AND CONFIRMING THE JUDGMENT AND ORDER DATED 07.10.2008 PASSED BY THE CIVIL JUDGE (JR.DIV) AND JMFC, BYADAGI IN CC NO.629/2002 AND ACQUIT THE PETITIONER NOS.1 TO 6 FOR THE CHARGES LEVIED AGAINST THEM.

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

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ORDER

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This criminal appeal is filed by the State seeking to set aside the judgment and order dated 15.07.2013 in Crl.A.No.71/2008, on the file of learned II Addl. District and Sessions Judge, Haveri and confirm the judgment and order passed in C.C.No.629/2002 dated 07.10.2008 on the file of learned Civil Judge (Jr.Dn.) and JMFC, Byadagi.

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2. Brief facts of the case are as under;

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On 28.07.2002 in the midnight 3:00 a.m., the complaint

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has lodged the complaint stated that, the accused Nos.1 to 6 in furtherance of common intention committed theft in his house

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by breaking the bars of the window and entered into house or trespassed into the house and committed theft of gold

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CRL.RP No. 100086 of 2014

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ornaments and suitcase containing Rs.2,000/-. The complainant has lodged the complaint before the jurisdictional police. The police have registered the case for the offences punishable under Sections 457, 380, R/w. Section 34 of IPC conducted the investigation and submitted the charge sheet.

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To prove the case of the prosecution the

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prosecution examined 10 witnesses as PW.1 to PW.10 and got marked Ex.P.1 to Ex.P.7 and also identified MO.1 to MO.6.

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The Trial Court convicted the accused Nos.1 to 6 for the offence punishable under Sections 457 and 380 R/w. 34 of IPC. Being aggrieved by the judgment of conviction passed by the Trial Court, the accused have preferred an appeal before the Sessions Court, the Sessions Court after considering the document and also the evidence of the witnesses confirmed the judgment of conviction passed by the Trial Court. Hence, the petitioner filed this revision petition.

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Heard Sri. Shivasai M. Patil., the learned counsel for the petitioner submits that, the judgment of conviction passed by the Trial Court and it’s confirmation order passed by the

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CRL.RP No. 100086 of 2014

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Appellate Court are liable to be set aside as it is contrary to the

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facts and evidence of the case.

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It is further submitted that, there are no eye witnesses to the incident and the police have falsely implicated the accused persons in this case. Even though, the alleged recovery and its identification appears to be doubtful, the Trial Court convicted the accused based on the identification of the article is unsustainable and against to the principle of law.

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Per contra , Sri. Ramesh B. Chigari, the learned High Court Government Pleader, while justifying the judgment of conviction and also its confirmation order of the Appellate Court submits that, the accused are habitual offenders, there are several cases pending against them. These cases are connected together to ascertain the veracity of the accused persons. He further submits that, the recovery in all the three cases have been proved through the witnesses and the complainant has identified the articles which were stolen from his house. No explanations were offered by the accused regarding the possession of these Gold articles. Therefore, the conviction order of the Trial Court and its confirmation by the Appellate Court requires no interference.

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CRL.RP No. 100086 of 2014

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After having heard the rival contention of the

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parties and perused the documents available on record, the points which arise for my consideration are;

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Whether the Trial Court and the Appellate Court considered the materials and evidence properly without committing any error or perversity?

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Whether the petitioner made out a grounds to interfere with the concurrent findings of the Trial Court and the Appellate Court ?

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To answer the above points, it is necessary to analyze the evidence of all the witnesses and their role in this case. PW.1 is the complainant, PW.2 and PW.3 are the witnesses to the spot panchanama, which is marked as Ex.P.2 and also the panch witnesses have supported the case regarding the seizure of MO.1 to MO.6 articles.

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It is noticed that, the theft has taken place in the house of PW.1 and MO.1 to MO.5 gold ornaments have been stolen from his house and accused No.1 to No.6 have been arrested in this case and they have confessed before the respondent-police regarding their involvement in the theft. Based on the confessional statement of the accused, the gold

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CRL.RP No. 100086 of 2014

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articles stolen from the house of PW1 were recovered from PW.6, who stated to have purchased the gold ornaments from accused Nos.1 to 6 for a sum of Rs.20,000/-. PW.6 identified the accused persons and also deposed before the Court regarding the recovery of gold articles and he has supported the case. The said seizure mahazar is marked as Ex.P.3. The evidence of PW.6 is believable and trustworthy to the case of the prosecution. PW.3 and PW.4 are the relevant witnesses to the spot mahazar. They have supported the case of the prosecution.

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Taking into consideration the evidence of PW.1, PW.2 and PW.3 with regard to the spot panchanama and the evidence of PW.6 with regard to the seizure of gold articles which are identified as MO.1 to MO.6 held sufficient to draw the adverse inference. Section 114 of the Indian Evidence Act outlines the power of the Court in terms of presuming certain facts are likely to happen with due consideration being given to the common course natural events, human conduct and public and private business as connected to the facts of the specific case. As per the illustrations mentioned, the Court has liberty to presume the following:

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CRL.RP No. 100086 of 2014

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“If a person is found in the possession of

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stolen goods immediately after the theft has occurred, then that person presumed to be either the thief or has received stolen goods with the knowledge that they are stolen, unless he can prove otherwise. Similarly, Section 106 of the Indian Evidence Act deals with “when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.”

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In this case, the accused Nos.1 to 6 have shown the

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person and the place to whom the golden articles were sold and the said articles were recovered at the instance of accused persons. The recovery is proved through the evidence of PW6 and further, PW6 identified the persons. Therefore, Section 106 of Indian Evidence Act squarely applicable to the case. When the Trial Court recorded the statement under Section 313 of Cr.P.C. and if any incriminating material were raised and go against the accused, it is their duty to explain to rebut the incriminating materials. Failing to explain the circumstances under which the gold articles were in their possession, it is presumed to be stolen articles and the accused must have

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CRL.RP No. 100086 of 2014

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stolen from somebody or some place. Therefore, the judgment of conviction of the Trial Court and its confirmation order passed by the Sessions Court requires no interference. Hence, this Court declined to interfere with the judgment of conviction passed by the Trial Court.

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In light of the observation made in the above the point No.1 is answered in the ‘affirmative’ and point No.2 in the ‘negative’. Hence, I proceed to pass the following;

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ORDER

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i) The criminal revision petition filed by the petitioner stands dismissed .

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ii) The order in C.C. No.629/2002 dated 07.10.2008 passed by the Civil Judge (Jr. Div) and JMFC, Byadagi and it’s confirmation order passed in Criminal Appeal No.71/2008 dated 15.07.2013 passed by the II Additional District and Sessions Judge., Haveri, are hereby confirmed.

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Sd/JUDGE

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Nagappa Yallappa Gotanavar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Nagappa Yallappa Gotanavar v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

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