Allowed

Dastagir v. State by Psi

Karnataka HC4 Jan 2024CRL.RP/583/2016

Case brief

AI extract

What is this about?

Revision against conviction for attempted theft (Section 511 IPC) after trespass into VISL Factory. The High Court found investigative lapses regarding the unseized rope and the 20-foot compound wall created reasonable doubt, set aside the concurrent convictions and allowed the revision.

What did the court decide?

Judgment of conviction and sentence in C.C.No.1104/2012 confirmed in Crl.A.No.118/2015 set aside against the revision petitioner; revision allowed.

Dastagir Vs State by Psi — Cheating and Forgery | Karnataka HC (2024)

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NC: 2024:KHC:353 CRL.RP No. 583 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF JANUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE G BASAVARAJA CRIMINAL REVISION PETITION NO. 583 OF 2016

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BETWEEN:

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DASTAGIR S/O. AJEEJ KHAN, AGED ABOUT 32 YEARS, R/O RAILWAY GATE, HANUMANTHAPPA SHED, OLD TOWN, BHADRAVATHI, SHIMOGA DISTRICT-577 301.

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…PETITIONER

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(BY SRI. HARISH B. SHIRALKOPPA, ADVOCATE FOR SRI. B.S. PRASAD, ADVOCATE)

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AND:

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Digitally signed by SANDHYA S Location: High Court of Karnataka

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STATE BY PSI, NEW TOWN POLICE STATION, BHADRAVATHI, SHIMOGA-577 301. REP. BY S.P.P., HIGH COURT OF KARNATAKA, BANGALORE-01.

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(BY SRI. M.R. PATIL, HCGP)

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…RESPONDENT

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THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 07.04.2015 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND JMFC AT BHADRAVATHI IN C.C.NO.1104/2012 AND ALSO SET ASIDE THE JUDGMENT AND ORDER DATED 24.02.2016 PASSED BY THE IV ADDL. DIST. AND S.J., SHIVAMOGGA, SITTING AT BHADRAVATHI IN CRL.A.NO.118/2015.

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

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ORDER

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The accused/revision petitioner has preferred this revision petition against the judgment of conviction and order of sentence passed by the Principal Civil Judge and JMFC, Bhadravathi in C.C.No.1104/2012 dated 07.04.2015, which is confirmed by the IV Addl. District and Sessions Judge, Shimoga, sitting at Bhadravathi in Crl.A.No.118/2015 dated 24.02.2016.

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The rank of the parties in this appeal are referred to as per their status before the trial Court.

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The brief facts of the prosecution case is that

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during the intervening night of 14/15.02.2012 at 4.30 a.m. accused Nos.1 to 3 with common intention wrongfully trespassed into the premises of VISL Factory by jumping the compound and tried to commit theft of iron materials at structure shop of the VISL Factory. At that time, CW.2/PW.2-Bommegowda and CW.3/PW.3Lakshminarayana caught hold of accused No.1 red handed and gave the information to PW.1-K.Siddaramappa.

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Thereafter PW.1 filed first information before the Paper Town Police, who registered this case in crime No.24/12. On investigation, investigating officer submitted charge sheet against accused Nos.1 to 3 for commission of offences punishable under Sections 380 and 511 of IPC.

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After filing of charge sheet case was registered against accused Nos.1 to 3 in C.C.No.1104/2012 and summons was issued to accused. During pendency of the case, accused No.2 passed away. Hence, the charges framed against accused Nos.1 and 3 for the commission of offence punishable under Sections 380 and 511 of IPC. The same was read over and explained to the accused, having understood the same, the accused pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, 6 witnesses

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were examined as PW1 to PW6 and 5 documents were marked at Ex.P1 to Ex.P5. On closure of prosecution side evidence, statement of the accused under Section 313 of Cr.P.C was recorded. The accused has denied the evidence

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NC: 2024:KHC:353 CRL.RP No. 583 of 2016

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of prosecution witnesses, however not chosen to lead any

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defence evidence on his behalf.

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Having heard the arguments on both sides, the trial court has acquitted the accused for the commission of offence punishable under Section 380 of IPC and convicted the accused for the offence punishable under Section 511 of IPC and sentenced to undergo rigorous imprisonment for a period of one year with fine of Rs.1,000/- each. In default to pay fine, accused shall undergo Simple Imprisonment for a period of three months. Being aggrieved by the judgment of conviction and order of sentence, the accused has preferred the appeal before the IV Addl. District and Sessions Judge, Shimoga sitting at Bhadravathi in Crl.A.No.118/2015 and the same was dismissed on 24.02.2016. Being aggrieved by this judgment passed by both the Courts, the revision petitioner/accused has preferred this revision petition.

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The learned counsel for the revision petitioner has submitted his arguments that the judgment passed by

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both the Courts are contrary to law, evidence on record and probabilities of the case. The impugned judgments are illegal, arbitrary, capricious and opposed to sound principles of law. Both the Courts have not properly appreciated the evidence on record in accordance with law and facts. On all these grounds sought to allow the revision petition.

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As against this, the learned High Court Government Pleader has submitted his arguments that the trial Court has passed the judgment of conviction and order on sentence in accordance with law and facts which is confirmed by the appellate Court that there are no grounds to interfere with the impugned judgment passed by both the Courts and on all these grounds sought for dismissal of the revision petition.

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Having heard the arguments on both sides and

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perusal of records, the following points would arise for my consideration:

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(i) Whether the revision petitioner/accused has made out the grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial court which is confirmed by the appellate Court on the ground that the judgments are illegal, capricious and opposed to sound principles of law?

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(ii) What order?

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My answer to the above points are as under:

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Point No.(1) : Affirmative,

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Point No.(2) : As per final order.

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Regarding Point No.1:

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I have carefully examined the materials placed

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before this Court. It is the case of the prosecution that on 14/15.02.2012 at about 4.30 a.m. the accused have entered the premises of VISL Factory premises, Bhadravathi by climbing the compound with an intention to commit theft of scrap iron materials thereby committed offence punishable under Sections 380 and 511 of IPC.

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NC: 2024:KHC:353 CRL.RP No. 583 of 2016

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To substantiate the case of the prosecution 6 witnesses were examined as PW.1 to PW.6 and Ex.P1 to Ex.P5 were marked. No material objects were marked on behalf of the prosecution. Ex.P1 is the complaint filed by PW.1-K.Siddaramappa the security guard of VISL Factory in which he has stated that on 14.02.2012 at about 4.30 a.m. three accused climbed the compound of VISL Factory and entered the premises of the factory. On seeing them by their staff Bommegowda and Lakshminarayana both were chased the said three persons among them two persons fled away and apprehended the accused No.1Shekhara @ Seemenne Shekhara, S/o Pandu, Ambedkar Nagar, Bhadravathi. On enquiry he revealed the name of the other two accused. Further it is stated that the accused entered into the factory premises illegally with an intention to commit theft. PW.1 has reiterated the averments made in the complaint. PW.2-Bommegowda and PW.3-Lakshminarayana are also examined. During the course of cross examination of PW.1 to PW.3 they have categorically admitted in their evidence that the height of

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the compound of VISL Factory is 20 feet cement wall. On the top of the compound wall 4-5 feet barbed wires fence is installed. Further they have clearly admitted that without any assistance of ladder or rope one cannot climb the compound wall. Further during the course of cross examination of PW.1 he has clearly admitted that the security staff have produced the rope which was tied to the angle, same was also handed over to the police, but the investigating officer has not seized the same. The investigating officer-PW.6 has not explained anything as to non production of the material piece of evidence i.e., rope said to have been used for climbing the compound wall which is about 20 feet height. Even Ex.P2-spot mahazar also reveals the same. The investigating officer has not discussed anything as to the rope produced by the security staff. These serious lapses committed by the investigating officer reveals that the accused have not entered into the premises of the VISL Factory. The exact place of apprehension of accused No.1 is also not disclosed in the complaint-Ex.P1. The material witnesses PW.1 to PW.3

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have clearly deposed in their evidence that they do not know how the accused have entered into the premises of the factory. Only on the basis of the statement given by accused No.1 the investigating officer has arraigned accused Nos.2 and 3 as accused. The investigating officer has not made any efforts to collect the material piece of evidence to insert the name of accused Nos.2 and 3. The material evidence of prosecution witness PW.1 to PW.3 will create reasonable doubt as to the apprehension of accused No.1 at the relevant point of time. The trial Court has also acquitted the accused for the commission of offence punishable under Section 380 of IPC. If really the accused have attempted to commit theft in the premises of the factory, the trial Court ought to have convicted the accused for the commission of the offence punishable under Sections 380 and 511 of IPC. Though the trial Court has acquitted the accused for the commission of offence under Section 380 of IPC, the trial Court has committed an error in convicting the accused for the commission of the offence under Section 511 of IPC only, which is not

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sustainable under law. Both Courts have not properly appreciated the evidence on record in accordance with law and facts. The impugned judgment of conviction and order on sentence passed by the trial Court which is confirmed by the appellate Court is illegal, perverse capricious and against the sound principles of law. Hence, I answer point No.1 in the affirmative.

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Regarding Point No.2:

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For the aforesaid reasons and discussions, I proceed to pass the following:

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ORDER

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(i) The revision petition is allowed .

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(ii) The judgment of conviction and order on sentence passed by the Prl. Civil Judge and JMFC, Bhadravathi in C.C.No.1104/2012 dated 07.04.2015, which is confirmed by the IV Addl. District and Sessions Judge, Shimoga sitting at Bhadravathi in Crl.A.No.118/2015 dated 24.02.2016 are

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NC: 2024:KHC:353 CRL.RP No. 583 of 2016

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set aside only against the revision petitioner.

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(iii) Send copy of this judgment along with the

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trial Court records to the trial Court.

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Sd/JUDGE

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List No.: 1 Sl No.: 16

Dastagir v. State by Psi

Case brief

What is this about?

What did the court decide?

Dastagir v. State by Psi

Case brief

What is this about?

What did the court decide?

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