Allowed

Sri Parveez Pasha v. State by Tilak Park Ps

Karnataka HC10 Oct 2022CRL.RP/420/2012

Case brief

AI extract

What is this about?

The High Court allowed the revision petition, setting aside convictions for theft under Section 380 IPC. The court held that contradictory evidence of panchas regarding recovery and failure to examine the Investigating Officer rendered the findings perverse.

What did the court decide?

Impugned judgments of conviction and sentence set aside; petitioners acquitted under Section 380 IPC.

Sri Parveez Pasha Vs State by Tilak Park Ps — Cheating and Forgery | Karnataka HC (2022)

¶1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10^TH DAY OF OCTOBER, 2022

¶2

BEFORE

¶3

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

¶4

CRIMINAL REVISION PETITION No.420 OF 2012

¶5

BETWEEN:

¶6

Sri. Parveez Pasha S/o. Sri. Firoz Pasha Aged about 25 years, R/o. 6^th Cross, P.H. Colony, Tumkur.

¶7

..Petitioner

¶8

(By Sri. Prabhugoud B. Tumbigi, Amicus Curiae )

¶9

AND:

¶10

State by Tilak Park P.S. Tumkur, rep. by its Special Public Prosecutor.

¶11

.. Respondent

¶12

(By Sri. Vinayaka V.S., High Court Govt. Pleader)

¶13

¶14

This Criminal Revision Petition is filed under Section 397 of the Code of Criminal Procedure, 1973, with the following prayer:

¶15

" a) to call for the entire records in both the cases viz.,

¶16

[i] in respect of the Order dated 04-03-2008 passed by the Hon'ble Civil Judge & J.M.F.C. Tumkur, in C.C.No.2615/2006;

¶17

Crl.R.P.No.420/2012

¶18

¶19

[ii] in respect of the Order dated 16-09-2011 passed by the Hon'ble Fast Track-III, Tumkur, in Crl.Appeal No.50/2008, dismissing the petitioner's said Appeal, ordering conviction of the petitioner under Section 380 of I.P.C. imposing a imprisonment for 2 years.

¶20

b] to set aside both the orders.

¶21

c] to grant the petitioner such other and further relief as deemed fit and proper under the facts and circumstances of the case, in the interest of justice."

¶22

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

¶23

O R D E R

¶24

The present petitioner was accused in

¶25

C.C.No.2615/2006, in the Court of the III Additional Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, at Tumakuru, (hereinafter for brevity referred to as “the Trial Court”), who, by the judgment of conviction and order on sentence dated 04-03-2008 of the Trial Court, was convicted for the offence punishable under Section 380 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as “the IPC”) and was sentenced accordingly.

¶26

Crl.R.P.No.420/2012 3

¶27

Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.50/2008, in the Court of the Fast Track Court-III at Tumkur, (hereinafter for brevity referred to as the “the Sessions Judge’s Court”), which, after hearing both side, dismissed the appeal, confirming the impugned judgment of conviction and order on sentence passed by the Trial Court in C.C.No.2615/2006. It is challenging the judgments of conviction and order on sentence passed by both the Trial Court as well the learned Sessions Judge’s Court, the accused/petitioner herein has preferred the present revision petition.

¶28

The summary of the case of the prosecution in the Trial Court was that, on the date 05-05-2006, when PW-1 (CW-1) - Smt. Naveena had kept her golden Maangalya chain on the table in her mother's house at Vinoba Nagar, Tumkur, within the limits of the complainant Police Station and had gone to take bath in the late evening at about 10:30 p.m.,

¶29

Crl.R.P.No.420/2012 4

¶30

after completing the bath, when she came out and searched for her Maangalya Chain, the same was found missing. Suspecting that somebody has committed theft of her Maangalya chain, which was weighing 35 grams and valued at Rs.20,000/-, she lodged a complaint to the Police as per Ex.P1. The Police after completing the investigation claimed to have recovered the said Maangalya chain from the custody of the accused, filed charge sheet against him for the offence punishable under Section 380 of the IPC.

¶31

The accused appeared in the Trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the alleged guilt against the accused, the prosecution got examined in all five (5) witnesses from PW-1 to PW-5, got marked documents from Exs.P-1 to P-3(a) and produced one Material Object at MO-1. However, neither any witness was examined nor any documents were got marked on behalf of the accused.

¶32

Crl.R.P.No.420/2012 5

¶33

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

¶34

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

¶35

In view of the fact that the learned counsel for the revision petitioner (accused) failed to appear before this Court on several dates of hearing, this Court by its reasoned order dated 04-07-2022, appointed learned counsel - Sri. Prabhugoud B. Tumbigi, as Amicus Curiae for the petitioner/accused, to represent him in this case.

¶36

Learned Amicus Curiae for the accused/revision petitioner and learned High Court Government Pleader for the respondent - State are physically appearing in the Court.

¶37

Heard the learned counsels from both side in the morning session as well in the afternoon session. Perused the

¶38

Crl.R.P.No.420/2012 6

¶39

materials placed before this Court including the impugned judgments passed by both the Courts and also the Trial Court and Sessions Judge’s Court’s records.

¶40

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

¶41

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

¶42

Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge’s Court that, the accused has committed the alleged offence punishable under Section 380 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

¶43

PW-1 (CW-1) – Smt. Naveena is the complainant in the case, who, in her examination-in-chief, has reiterated the contentions taken up by her in her information to the Police

¶44

Crl.R.P.No.420/2012 7

¶45

which is at Ex.P-1. She stated that on the night at about 10:30 p.m., on the date 05-05-2006, the golden Maangalya chain worn by her was kept on a table in her mother’s house when she went to take the bath. However, after taking the bath, she found that the said golden chain was missing, as such, she suspected that the same was stolen by somebody. She further stated that three months thereafter, the Police informed her that her stolen golden Maangalya chain was recovered. She made an application in the Court of law and secured its interim custody. Stating so, she has identified the alleged stolen Maangalya chain at MO-1.

¶46

The witness was subjected to a detailed crossexamination, wherein she adhered to her original version.

¶47

PW-2 (CW-2) – Yateesha, who admittedly is the husband of PW-1 has stated about the alleged theft of the golden Maangalya chain and further stated that three months after they lodged the complainant, the Police informed them

¶48

Crl.R.P.No.420/2012 8

¶49

that the stolen article was traced by them. He went to the Police Station where the Police showed him the accused and stated that the accused was the thief who had stolen the said golden Maangalya chain. The witness further stated that the accused led them to a Jewellery Shop and asked the owner of the Jewellery Shop to produce the Maangalya chain said to have been given by him to the shop people. Since the prosecution case was otherwise and that the alleged recovery at the instance of the accused was said to have been made in the house of the accused, the witness was permitted to be treated as hostile and the prosecution was permitted to crossexamine him.

¶50

During the cross-examination made by the prosecution, the witness (PW-2) admitted all the suggestions made by the prosecution to him as true and admitted that the accused has produced the golden chain from his house in the presence of Police, in which regard, a recovery panchanama was drawn as per Ex.P-3. He has also stated that, prior to that, the Police

¶51

Crl.R.P.No.420/2012

¶52

¶53

had also drawn a scene of offence panchanama in his presence at Ex.P-2. The witness has identified both the panchanamas at Ex.P-2 and Ex.P-3 and also the alleged stolen article at MO-1.

¶54

This witness also was subjected to a detailed crossexamination from the accused's side, wherein he adhered to his original version.

¶55

PW-3 (CW-3)- Manjunath has stated that, the Police have drawn the scene of offence panchanama as per Ex.P-2 in his presence and the recovery of the stolen article was also made in his presence. He has stated that the Police took him to the house of the accused where the golden chain, tape recorder, batteries and several other articles were produced by the accused and the Police drew a panchanama by seizing those articles. This witness has identified the panchanama at Ex.P-3 and the alleged golden chain at MO-1.

¶56

This witness also was subjected to a detailed crossexamination from the accused's side.

¶57

Crl.R.P.No.420/2012 10

¶58

PW-4 (CW-7) –Manjunath, Police Constable of the respondent Police Station has stated that, upon the instructions by his superior, who was conducting the investigation in the matter, on the date 21-06-2006, he apprehended the accused on suspicion and produced him before the Investigating Officer. The witness also stated that upon the information of the accused, the stolen golden chain and few other stolen articles were recovered at the instance of the accused.

¶59

PW-5 (CW-5) – Nagabhushanaradhya, Head

¶60

Constable, has stated that while he was the Station House Officer of the respondent Police station on the date 06-05-2006, the complainant appeared before him and lodged a complaint as per Ex.P-1 and thereafter he prepared an FIR and sent it to the Court. He also stated that he drew a scene of offence panchanama as per Ex.P-2 in the matter and

¶61

Crl.R.P.No.420/2012 11

¶62

handed over the further investigation in the matter to another Police Officer.

¶63

It is based upon these evidence, the learned Amicus Curiae for the petitioner/accused has submitted that the entire case of the prosecution, though based upon the alleged recovery said to have been made at the instance of the accused, but has utterly failed to prove the alleged recovery. He submitted that there are contradictions in the evidence of PW-2 and PW-3 about the alleged recovery said to have been made in their presence. PW-2, at one breadth has stated that the recovery of the stolen article was in a Jewellery Shop, however, in the very same evidence, at a later stage, he has admitted in the cross-examination by the prosecution that the said recovery was at the house of the accused, as such, his evidence is not trustworthy. He also submitted that the evidence of PW-3 is also not reliable since he too has not

¶64

Crl.R.P.No.420/2012

¶65

¶66

shown that it was at the instance of the accused, the alleged recovery of MO-1 was made.

¶67

He further submitted that the non-examination of the Investigating Officer before whom the accused is alleged to have given his voluntary statement is also fatal to the case of the prosecution.

¶68

Per contra, the learned High Court Government Pleader for the respondent – State submitted that, the recovery is established through Ex.P-3 and also by the evidence of PW-2 and PW-3. Though some inconsistencies or variations are there, they are very minor and that they are not fatal to the case of the prosecution. He also submitted that when the alleged recovery is established through Ex.P-3 and by the evidence of PW-2 and PW-3, the non-examination of the Investigating Officer would not be a serious lacuna in the case of the prosecution.

¶69

Crl.R.P.No.420/2012

¶70

¶71

With this, he submitted that both the Trial Court and the Sessions Judge's Court since have appreciated these aspects in their proper perspective, the impugned judgments do not warrant any interference at the hands of this Court.

¶72

The evidence of PW-1, who is the complainant speaks only about the alleged theft of her alleged golden Maangalya chain which is at MO-1. Admittedly, she has not spoken anything about the alleged role of the accused in the alleged theft of the article. Even according to her, it is only because the Police stated to her that it was the accused who had committed the theft, she stated that the accused has committed the theft, as informed to her by the Police. As such, her evidence, except showing that the alleged incident of theft had taken place, would not take the case of the prosecution any further in holding the accused as guilty for the alleged offence.

¶73

Crl.R.P.No.420/2012 14

¶74

It is only on the evidence of PW-2 and PW-3, who are mainly said to be the panchas to the alleged recovery said to have been made at the instance of the accused, the entire case of the prosecution is based upon.

¶75

PW-2 (CW-2) - Yateesha, admittedly, is the husband of PW-1 and PW-3 is also admittedly a relative of PW-2. Both of them have stated that the recovery was made in their presence. However, the said stray statement that they were panchas to the recovery panchanama cannot be admitted without a thorough analysis of their evidence.

¶76

When the evidence of PW-2 is analysed, it can be seen that though he has identified his signature at Ex.P-3, but no where in his evidence he has stated as to what is the nature of the said document. A mere identification of his signature in a document would not ipso facto get the said document identified by the witness in a particular manner. It was required of him to mention as to what the said document was

¶77

Crl.R.P.No.420/2012 15

¶78

and why he had subscribed his signature to the said document. As such, merely because he has identified his signature in the document, by that itself, it cannot be taken that Ex.P-3 has stood established in his evidence.

¶79

Secondly, the said witness, in his examination-in-chief has stated that, three months after the date of incident of theft, the Police summoned him to the Police Station and shown him the accused, who was present in the Police Station, stating that he was the one who has committed the theft of golden Maangalya chain. The witness also stated that the accused led them to a Jewellery Shop and asked the shop person to produce the Maangalya chain which was said to have been given by him. Thus in his examination-in-chief, he mentioned it categorically that the alleged recovery was in the Jewellery Shop and it was the Jewellery Shop person who produced the said Maangalya chain at MO-1 before them. However, as the case of the prosecution was otherwise and

¶80

¶81

Crl.R.P.No.420/2012

¶82

that the alleged recovery was from the house of the accused, the witness was permitted to be treated as hostile and the prosecution was permitted to cross-examine him.

¶83

In his cross-examination, the prosecution appears to have read out his statement given before the Investigating Officer, suggesting to the witness that the recovery was made in the house of the accused and the golden article at MO-1 was produced by the accused at his house. The witness admitted the said suggestion as true.

¶84

Merely because PW-2 has admitted the suggestion made to him by the prosecution in his cross-examination as true, by that itself, it cannot be held that the evidence of this witness is reliable and trustworthy and that the alleged recovery stands proved. It is for the simple reason that, when the prosecution made a suggestion to the witness in his cross-examination and

¶85

got admission from him, it was also required of the prosecution to have got elicited from the witness as to why did the witness earlier stated that the recovery was in a Jewellery Shop, but

¶86

Crl.R.P.No.420/2012 17

¶87

not in the house of the accused. Unless a convincing reason was brought out from the evidence of the witness as to why he gave a different version of the alleged recovery, merely because he has admitted a suggestion about the recovery in his cross-examination would not take away the evidentiary value of the statements made by him in his examination-inchief. Thus the evidence of PW-2 stands on two contradictory versions of statements, one that the alleged recovery was said to have been made in a Jewellery Shop and secondly, the said recovery was said to have been made in the house of the accused. Therefore, the said evidence of PW-2 that the recovery was made in his presence is not safe to believe.

¶88

In addition to the above, even according to PW-2, it was not the accused who took this witness and other panchas to his house, but it was the Police who took them to the house of the accused. Further the witness has also stated that the accused and the Police entered the house and he was standing

¶89

Crl.R.P.No.420/2012 18

¶90

outside. Therefore, it is not known as to what transpired inside the house, when a golden chain is said to have been shown to this witness as the one recovered at the instance of the accused in his house. Thus, the evidence of PW-2 itself makes it very unsafe to believe his evidence.

¶91

The evidence of PW-3 is also in no way better than that of the evidence of PW-2. This witness though has stated that he went to the house of the accused, but has specifically stated that it was the Police who took him and other panchas to the house of the accused. Therefore, the question of the accused leading the panchas and the Police to his house has not been spelt or whispered by this witness. Further, this witness has also stated that when the article was seized in the house of the accused, the Police and the accused were inside the house and he was outside the house. That means, even according to this witness, he was not an eye witness to the alleged recovery and what all has happened has happened

¶92

Crl.R.P.No.420/2012 19

¶93

inside the house of the accused and that this witness was only standing outside.

¶94

To the height of the above, the witness (PW-3) has also stated that, he has subscribed his signature to the alleged recovery panchanama in the Police Station. Thus, there is nothing on record either in the evidence of PW-2 or PW-3 to show that, the recovery was made at the instance of the accused and that it was the accused who led them to his house and also that the recovery panchanama at Ex.P-3 was drawn on the spot in the presence of these panchas. Therefore, merely because PW-2 and PW-3 have stated that they were the panchas to the recovery panchanama and have identified MO-1 in the Court, that itself would not prove the recovery. As such, the argument of the learned High Court Government Pleader for the respondent-State that the evidence of PW-2 and PW-3 establishes/proves the recovery panchanma at Ex.P-3, is not acceptable.

¶95

Crl.R.P.No.420/2012 20

¶96

For the above reason, when the evidence of PW-2 and PW-3 is not inspiring confidence to believe about the alleged recovery, it was incumbent upon the prosecution to examine the Investigating Officer before whom the accused was said to have given his alleged voluntary statement which is alleged to have led to the alleged recovery of MO-1. As such, though normally, when the alleged recovery is said to have been proved, the non-examination of the Investigating Officer would not be fatal to the case of the prosecution, however, in the instant case, since the evidence of PW-2 and PW-3 was not sufficient to hold that the recovery has been proved by the prosecution, rather it has retained some serious doubt in their versions, it was very much required of the prosecution to examine the Investigating Officer.

¶97

However, both the Trial Court and the Sessions Judge's Court have not considered these aspects in their proper perspective. Both the Courts appear to have been

¶98

Crl.R.P.No.420/2012 21

¶99

carried away by the evidence of PW-2 and PW-3, without noticing these serious discrepancies and variations in their evidence and also by wrongly holding that the recovery has been proved, it has ignored the necessity of examining the Investigating Officer, who conducted the investigation in this matter, which has led both the Courts to hold the accused as guilty of the alleged offence. Since the said finding of both the Trial Court and the Sessions Judge’s Court is now proved to be erroneous and perverse, the same calls for interference at the hands of this Court.

¶100

Accordingly, I proceed to pass the following:

¶101

O R D E R

¶102

[i] The Criminal Revision Petition stands

¶103

allowed.

¶104

[ii] The impugned judgment of conviction and order on sentence dated 04-03-2008, passed by the III Additional Civil Judge (Jr.Dn.) and Judicial Magistrate First Class, at Tumakuru, in

¶105

¶106

Crl.R.P.No.420/2012

¶107

C.C.No.2615/2006, holding the accused guilty of

¶108

the offence punishable under Section 380 of the Indian Penal Code, 1860, which was further confirmed by the judgment and order dated 16-09-2011, passed by the Court of the Fast Track Court-III, at Tumkur, in Criminal Appeal No.50/2008, are hereby set aside;

¶109

[iii] The revision petitioner (accused) – Sri. Parveez Pasha, S/o. Sri. Firoz Pasha, Aged about 25 years, Resident of 6^th Cross, P.H. Colony, Tumkur, stands acquitted of the offence punishable under Section 380 of the Indian Penal Code, 1860.

¶110

However, the order passed by the Trial Court, with respect to interim custody of MO-1 making it absolute remains un-altered, without any modification.

¶111

Crl.R.P.No.420/2012 23

¶112

The Court, while acknowledging the services rendered by the learned Amicus Curiae for the revision petitioner - Sri. Prabhugoud B. Tumbigi, recommends a honorarium of a sum of not less than `4,000/- payable to him by the Registry, without any delay.

¶113

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

¶114

Sd/JUDGE

¶115

BMV*

Sri Parveez Pasha v. State by Tilak Park Ps

Case brief

What is this about?

What did the court decide?

Sri Parveez Pasha v. State by Tilak Park Ps

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mr Vishnu Khatija Vs State of Karnataka

Sri H S Yashwanth Vs State of Karnataka

K. Narendra Kumar Sharma Vs Mr. Ramdip Kumar Gupta

Sri Chandarashekar Vs Umashankar K S

Smt. a.S.Shamala Vs Sri Anil Kumar

K Shankar Naik Vs K R Sampath