Allowed

Sri. M. C. Nagendra v. the State of Karnataka

Karnataka HC23 Oct 2024CRL.RP/158/2017

Case brief

AI extract

What is this about?

Revision against conviction for theft of coffee bags under Sections 457/380/149 IPC. The court found recovery was not proved per Section 27 Evidence Act procedure, independent witnesses were absent, and P.W.15's evidence was discarded. Conviction by both courts below was set aside and petitioners acquitted.

What did the court decide?

Conviction and appellate confirmation set aside; petitioners acquitted; fine amount if deposited to be refunded; Rs.5,000 fee to amicus curiae.

Sri. M. C. Nagendra Vs the State of Karnataka — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC:42739 CRL.RP No. 158 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 23^RD DAY OF OCTOBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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CRIMINAL REVISION PETITION NO.158 OF 2017

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BETWEEN:

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SRI. M.C.NAGENDRA, S/O CHINNAMALLACHARI, AGED ABOUT 38 YEARS, SECURITY GUARD, R/O MUDULUKOPPALU VILLAGE, SHIRANGALA POST, KUSHALNAGAR, SOMWARPET TALUK, KODAGU DISTRICT.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI S.N.V. VEERABADRACHARI @ VEERBADRA, S/O NAGACHARI, AGED ABOUT 38 YEARS, R/O CHIKKANAYAKANAHOSALLI, SHIRANGALA POST, KUSHALNAGAR HOBLI.

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SRI H. UMESH S/O JAWAREGOWDA, AGED ABOUT 32 YEARS, R/O NEAR ANGANAVADI, HONNAPURA, HARNAHALLI HOBLI, PERIYAPATNA TALUK.

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MURTHI, S/O CHANDRANNA, AGED ABOUT 32 YEARS, R/O CHAMARYANAKOTTE, HONNAPURA, HARANAHALLI HOBLI, PERIYAPATNA TALUK.

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…PETITIONERS

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(BY SRI. SAMPATH KUMAR A.V., AMICUS CURIAE )

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NC: 2024:KHC:42739 CRL.RP No. 158 of 2017

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AND:

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THE STATE OF KARNATAKA, REPRESENTED BY THE KUSHALNAGAR POLICE STATION, KUSHALNAGAR, KODAGU DISTRICT.

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…RESPONDENT

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(BY SMT. RASHMI JADHAV, ADDL. SPP)

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 15.11.2016 PASSED BY THE I ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI IN CRL.A.NO.11/2015 AND ALSO THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 19.12.2014 PASSED BY THE ADDITIONAL CIVIL JUDGE AND J.M.F.C., SOMWARPET, SITTING AT KUSHALNAGAR IN C.C.NO.836/2008 AND ACQUITTING THE PETITIONERS FROM THE ALLEGED OFFENCES.

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THIS PETITION COMING ON FOR FURTHER HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE H.P.SANDESH

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ORAL ORDER

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Heard the amicus curiae for the petitioners and the learned Additional SPP for the respondent State.

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The present revision petition is filed challenging the conviction and confirmation passed by the Trial Court as well as the Appellate Court.

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The main contention urged by the petitioners before this Court is that there is no recovery as contemplated under

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Section 27 of the Indian Evidence Court. The learned counsel for the petitioners would vehemently contend that the main ground urged in the petition is only on the ground of technicality proving of recovery and no independent witnesses have been examined. The learned counsel submits that though P.W.15 has been examined, his evidence is only chief, that too in part, and he has not appeared before the Court to give evidence and even not subjected for cross-examination. Though P.W.1 to P.W.3 have been examined and supported before the Trial Court, they are the complainant, Manager and Accountant of the complainant. The learned counsel contend that P.W.13 is the Investigating Officer and there are no other independent witnesses. The learned counsel in support of his arguments would vehemently contend that there is no recovery of key and even though contend that duplicate key was recovered, the person was not examined and no key was handed over.

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The learned counsel for the petitioners in support of his arguments relied upon the judgment of the Apex Court in the case of BOBY v. STATE OF KERALA reported in 2023 SCC Online SC 50 and brought to the notice of this Court the discussion made by the Apex Court in paragraph No.32, wherein extraction was made in respect of the judgment in

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NC: 2024:KHC:42739 CRL.RP No. 158 of 2017

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SUBRAMANYA VS. STATE OF KARNATAKA i.e., paragraph

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Nos.83 and 84 and the procedure to be followed for recovery, in order to prove the recovery under Section 27 of the Evidence Act. Learned counsel also brought to notice of this Court discussion made in paragraph Nos.33, 37 and 38 of the judgment.

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The counsel also in support of his argument, relied upon the judgment passed by the Division Bench of this Court in Crl.A.No.1004/2017 C/w. Crl.A.No.1084/2015 and brought to notice of this Court paragraph Nos.21 to 23 and also brought to notice of this Court paragraph No.19 as to the reference of paragraph Nos.82 to 84 of the judgment in BOBY’s case (supra) regarding Section 27 of the Evidence Act and so also paragraph Nos.83 and 84 and the very same judgment of Apex Court allowing the appeal with regard to recovery has not been proved.

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Per contra, learned Additional SPP for the respondent-State would contend that though the witnesses are complainant witnesses, but P.Ws.2 and 3 speak about the recovery. Apart from that P.W.13-Investigating Officer also speaks about recovery. She also would contend that, even

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NC: 2024:KHC:42739 CRL.RP No. 158 of 2017

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coffee bags were sold and monitory consideration was also recovered at the instance of the petitioners/accused. She further submits that coffee bags are sold to C.W.13 and his evidence also can be considered.

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Having heard the learned counsel for the petitioners

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and learned Additional SPP for the respondent-State and also having considered the material on record and also the reasoning given by the Trial Court and First Appellate Court in confirming the same, this Court has to analyze whether the judgment of the Trial Court and the confirmation order passed by the First Appellate Court suffers from its perversity or illegality and whether it requires interference by exercising revisional powers.

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Having heard the learned counsel for the petitioners and learned Additional SPP for the respondent-State and also having considered the factual aspects of the case, the police have registered the case against the petitioners for the offences punishable under Sections 457 and 380 read with Section 149 of IPC and these petitioners are accused Nos.1 to 4. The Trial Court mainly relied upon the evidence of P.Ws.1 to 3 and P.W.13 and other witnesses have turned hostile. P.W.1 is the Partner of Astra Processor Coffee Unit, P.W.2 is the witness to

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spot mahazar and P.W.3 is another employee of P.W.1. No doubt, specific allegation is that these petitioners have committed the offence of theft of coffee bags and when the complainant inspected the godown, 12 bags weighing 845 kilograms worth Rs.1,22,632/- were missing. Hence, complaint was given and charge-sheet was filed and recovery was also made at the instance of these petitioners, since they sold coffee bags to C.W.13. This Court has to take note of the fact that recovery made and the evidence of P.W.15, who was not subjected for cross-examination and also his chief evidence is incomplete and his evidence was discarded. The remaining witnesses are P.Ws.1 to 3 and P.W.13, who is the Investigating Officer, who conducted recovery.

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The main contention of the learned counsel for the petitioners is that there is recovery under Section 27 of the Evidence Act, since accused themselves disclosed sale of coffee bags to C.W.13 and C.W.13 evidence is not available before the Court. The Apex Court in the judgment referred (supra) in paragraph No.32 extracted paragraph No.82, wherein Section 27 of the Evidence Act was extracted and discussed in detail in paragraph Nos.83 and 84 with regard to the procedure to be followed for recovery at the instance of the accused for the

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purpose of Section 27 of the Evidence Act. In the case on hand, there are no independent witnesses for recovery is concerned and other witnesses have turned hostile, except P.Ws.1 to 3. When such being the case, when there is no recovery and no independent witnesses evidence and evidence i.e., the evidence of P.W.15 is discarded, the Trial Court ought not to have convicted the petitioners for the offence. But the First Appellate Court though considered the evidence and reassessed the same, failed to take note of scope and ambit of Section 27 of the Evidence Act when the accused disclosed with regard to the theft of coffee bags in voluntary statement and the same has to be recovered at the instance of the independent witnesses and they must be secured to the police station to enquire regarding

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the same and draw panchanama and in order to prove the same, no material is placed on record.

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When such being the case, in view of the principles laid down in the judgment of the Apex Court in BOBY’s case, wherein also SUBRAMANYA’s case was considered and discussed in detail, particularly in paragraph No.32 i.e., paragraph No.84 of the judgment in SUBRAMANYA’s case was extracted and the Apex Court also in paragraph No.33 comes to the conclusion that prosecution has failed to prove the

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circumstance that the dead body of the deceased was recovered at the instance of Boby. In the case on hand also, allegation is made at the instance of petitioners i.e., recovery of coffee bags and the same has not been proved or established as per the procedure contemplated under Section 27 of the Evidence Act. Hence, there is a merit in the contention of the learned counsel for the petitioners. Both the Courts failed to consider the aspect of proving the recovery at the instance of the petitioners and relied upon the evidence of only interested witnesses P.Ws.1 to 3 and evidence of P.W.13 and the observation made by the Trial Court, particularly in paragraph No.24, in relying upon the evidence of P.Ws.1 to 3 and P.W.13 is erroneous and even the Trial Court also comes to the conclusion that evidence of P.W.15 is discarded in paragraph No.21 and committed an error in convicting the petitioners. Hence, it requires interference of this Court and the order impugned and also the confirmation made by the First Appellate Court suffers from its infirmity and there is no legal evidence against the petitioners and the recovery at the instance of the petitioners is not proved. Hence, it requires interference of this Court.

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