Allowed

Khadar S/O Hussainsab Bepari v. the State of Karnataka

Karnataka HC6 Feb 2024CRL.RP/100015/2018

Case brief

AI extract

What is this about?

Accused convicted of temple theft under Sections 457 and 380 IPC; conviction confirmed in appeal. High Court found recovery evidence unreliable as panch witnesses turned hostile or were interested, and set aside convictions, acquitting the accused.

What did the court decide?

Convictions and sentences under Sections 457 and 380 IPC set aside; petitioners acquitted; fine refunded; bail bonds cancelled.

Khadar S/O Hussainsab Bepari Vs the State of… — Criminal Trial and Appeal | Karnataka HC (2024)

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NC: 2024:KHC-D:2643 CRL.RP No. 100274 of 2016 C/W CRL.RP No. 100015 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 6^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY CRIMINAL REVISION PETITION NO. 100274 OF 2016

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(397)

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C/W

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CRIMINAL REVISION PETITION NO. 100015 OF 2018

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IN CRL.RP NO.100274/2016:

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BETWEEN:

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DILLEPPA S/O. VEERAPPA MUDIGOUDAR, AGE: 31 YEARS, OCC: FRUITS BUSINESS, R/O: RAMAGOONDANHALLI, TQ: BYADAGI, DIST: HAVERI.

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…PETITIONER

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(BY SRI PRASHANT MATHAPATI, AMICUS CURIE)

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Digitally signed by SUJATA SUBHASH PAMMAR

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Date: 2024.02.14 13:19:59 +0530

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AND:

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STATE OF KARNATAKA, BY ASI OF HALAGERI P.S., TQ: RANEBENNUR, DIST: HAVERI, REPT. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, HIGH COURT OF KARNATAKA.

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…RESPONDENT

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(BY SMT. GIRIJA S. HIREMATH, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET ASIDE THE JUDGMENT DATED 28.03.2016 PASSED BY II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI (SITTING AT RANEBENNUR) IN CRIMINAL APPEAL NO.28/2011

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NC: 2024:KHC-D:2643 CRL.RP No. 100274 of 2016 C/W CRL.RP No. 100015 of 2018

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AND TO SET ASIDE THE CONSEQUENTIAL JUDGMENT DATED 07.06.2011 PASSED BY THE PRINCIPAL CIVIL JUDGE AND I ADDITIONAL JMFC, RANEBENNUR IN CRIMINAL CASE NO.561/2007.

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IN CRL.RP NO.100015/2018:

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BETWEEN:

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KHADAR S/O. HUSSAINSAB BEPARI, AGE: 29 YEARS, OCC: SCULPTOR, R/O: BYADAGI, DIST: HAVERI,

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…PETITIONER

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(BY SRI N. P. VIVEKMEHTA, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REPRESENTED BY ADDL. S.P.P., HIGH COURT OF KARNATAKA, DHARWAD BENCH, HIGH COURT BUILDING, DHARWAD.

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…RESPONDENT

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(BY SMT. GIRIJA S. HIREMATH, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF CR.P.C., SEEKING TO SET ASIDE THE ORDER OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, HAVERI(SITTING AT RANEBENNUR) DT.28.03.2016 DISMISSING THE CRL.APL.NO.38/11 AND THE JUDGMENT AND ORDER OF COURT OF THE PRL. CIVIL JUDGE AND I ADDL. JMFC, RANEBENNUR DTD. 07.06.2011 AND CONVICTED ON 13.06.2011 PASSED IN C.C.NO.561/2007 AND ACQUIT PETITIONER (ACCUSED NO.2) FOR THE OFFENCES PUNISHABLE UNDER SECTION 457 & 380.

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THESE PETITIONS, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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3 - NC: 2024:KHC-D:2643 CRL.RP No. 100274 of 2016 C/W CRL.RP No. 100015 of 2018

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ORDER

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These two criminal revision petitions are filed by accused Nos.1 and 2, challenging the judgment and order of conviction and sentence passed by the Court of the Principal Civil Judge and I Addl.JMFC, Ranebennur in C.C.No.561/2007 dated 07.06.2011 and the judgment and order dated 28.03.2016 passed in Crl.Appeal No.38/2011 and Crl.Appeal No.28/2011 by the Court of the II Addl.District and Sessions Judge, Haveri sitting at Ranebennur.

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Heard the learned counsel for the parties.

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It is the case of the prosecution that on 05.07.2007 at about 2:30 a.m., accused broke open the shutter of Halaswamy Temple and committed theft of coins worth Rs.3616/- and currency notes worth Rs.1208/. During the course of investigation in the case, petitioners were arrested. Investigation in the case was completed and charge sheet was filed against them for the offences punishable under Sections 380 and 457 of IPC. Since

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petitioners pleaded not guilty and claimed to be tried before the trial Court, prosecution in support of its case had examined 5 witnesses as PW1 to PW5 and got marked 7 documents as Exs.P1 to P7. Six material objects were marked as MOs.1 to 6. On behalf of the defence, no oral or documentary evidence was placed before the Court.

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The Trial Court thereafter heard the arguments addressed on both sides and convicted the petitioners for the offences punishable under Sections 457 and 380 of IPC and sentenced them to undergo simple imprisonment for a period of 1 year each for the offence punishable under Section 457 of IPC and for the offence punishable under Section 380 of IPC. It was ordered that the sentence would run concurrently. The said judgment and order of conviction and sentence passed by the trial Court was confirmed in Crl.Appeal No.38/2011 and Crl.Appeal No.28/2011 by the Court of the II Add.District and Sessions Judge, Haveri sitting at Ranebennur vide its

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judgment and order dated 28.03.2016. It is under these circumstances, the petitioners are before this Court.

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Learned amicus curiae appearing on behalf of petitioner No.1 in Crl.RP.No.100274/2016 and the learned counsel for the petitioner appearing on behalf of petitioner in Crl.RP.No.100015/2018 submit that the recovery of the stolen articles has not been proved in the present case. Except the recovery, there is nothing to connect the petitioners to the crime. Therefore, the trial Court as well as the Appellate Court were not justified in convicting the petitioners and prays to allow the petitions.

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Per contra, learned High Court Government Pleader has argued in support of the impugned judgment and order. She submits that PW4, who is the pancha to Ex.P4 recovery mahazar has supported the case of the prosecution. Therefore the recovery is proved. Accordingly, she prays to dismiss the revision petitions.

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The prosecution in order to substantiate its case against the petitioners and to prove its charges against them beyond reasonable doubt had examined 5 witnesses as PW1 to PW5. PW1 Veerappa Murigeppa Pujar, who is the complainant in the present case was serving as a Pujari of Halaswamy temple at the relevant point of time. He has deposed that on 05.07.2007 when he came to the temple at about 6.00 a.m., he saw that the lock of the shutter of the temple was broke open and the temple board was also broken and he noticed that the money which was in the hundi was stolen. He also has spoken about he lodging the complaint as Ex.P1. He also has stated that on 07.07.2007, he had gone to the police station to identify the money that was stolen. During the course of cross-examination, this witness has stated that it cannot be said that how much amount exactly was available inside the hundi. He also stated that he does not have any knowledge about the articles seized and the money which was identified by him.

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PW2 is a panch to the spot mahazar and he has identified MOs.1 to 5. PW3 who is the panch witness to the seizure mahazar has turned hostile to the case of the prosecution. PW5 is another pancha to Ex.P4 seizure mahazar and he also has turned hostile to the prosecution case.

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PW4 is another pancha to seizure mahazar Ex.P4. Though this witness has supported the case of the prosecution, during his cross examination, he has stated that he is not in a position to describe the location and boundary of the house of the accused. He also stated that he does not know the neighbourers of house of the accused. He has deposed that police had gone inside the house of the accused and brought the stolen article from the house. It is the specific case of the prosecution that stolen article were kept in the cattle shed near the house of the accused and alleged seizure was from the cattle shed near the house of the accused No.1. None of the neighbourers are examined in this case. Considering the

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statement made by PW4 during the course of his cross examination, a serious doubt arises whether the seizure was made as stated in Ex.P4. In addition to the same, PW4 undisputedly was the President of Halaswamy Temple Committee and therefore he is a interested witness. He cannot be considered as an independent witness. PW5 is the investigating officer who has received the complaint and registered FIR. This witness has spoken about the investigation conducted by him and about arresting the accused, on 07.07.2007 who allegedly were moving in a suspicious manner near the temple. During the course of cross examination, he has admitted that accused No.1 is a fruit merchant and accused No.2 is a carpenter.

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For the purpose of connecting the petitioners to the alleged crime, the prosecution has solely relied on the alleged recovery of stolen articles from them. PW3 and 4 therefore would be the material witness for the purpose of proving recovery in accordance with law. PW3 has turned hostile to the case of the prosecution and he has virtually

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denied that he had signed the seizure mahazar Ex.P4. Even the evidence of PW4 cannot be completely believed in view of the statement made by him during the course of his cross-examination. In addition to the same he is also an interested witness. Therefore it would be difficult to solely rely on the evidence of PW4 and convict the petitioners for the alleged offence. Under these circumstances, I am of the view that the Courts below were not justified in convicting the petitioners for the alleged offences. The impugned judgment and order of conviction and sentence passed by the Courts below therefore cannot be sustained. Accordingly, the following:

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ORDER

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Criminal revision petitions are allowed.

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The impugned judgment and order of conviction

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and sentence passed by the Court of the Principal Civil Judge and I Addl.JMFC, Ranebennur in C.C.No.561/2007 dated 07.06.2011 and the judgment and order dated 28.03.2016 passed in Crl.Appeal

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No.38/2011 and Crl.Appeal No.28/2011 by the Court of the II Add.District and Sessions Judge, Haveri sitting at Ranebennur a re set aside and the petitioners are acquitted of the offences alleged against them. Fine amount deposited by them, if any, shall be refunded and their bail bonds stands cancelled.

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The services of learned amicus curiae is placed on record and his legal fees is fixed at Rs.7500/-.

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Sd/JUDGE

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KGK

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List No.: 1 Sl No.: 57

Khadar S/O Hussainsab Bepari v. the State of Karnataka

Case brief

What is this about?

What did the court decide?

Khadar S/O Hussainsab Bepari v. the State of Karnataka

Case brief

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