Prakash S/O Kashappa Hulkeri Vs the State of Karnataka

PRAKASH S/O KASHAPPA HULKERI, AGE:43 YEARS, OCC: SERVICE IN DHABA, R/O. HOLAKUNDA, TQ. & DIST. KALABURAGI, NOW AT NEAR KHARGES HOUSE BASAVA NAGAR KALABURAGI-585103

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…APPELLANT

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(BY SRI ASHOK MULAGE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, THROUGH CHOWK POLICE STATION, KALABURAGI, NOW REPRESENTED BY ADDL. SPP.

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Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka

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(BY SRI GOPAL KRISHNA YADAV, HCGP)

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…RESPONDENT

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CRL.A. FILED U/S.374(2) OF CR.P.C PRAYING TO, ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT AND ORDER PASSED BY THE III ADDL. DISTRICT AND SESSONS JUDGE, KALABURAGI, IN S.C.NO.190/2011 DATED:02.12.2016 AND ACQUIT THE ACCUSED/APPELLANT FOR THE OFFENCES CHARGED AGAINST HIM IN THE ABOVE CASE.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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NC: 2025:KHC-K:1697 CRL.A No. 200009 of 2017

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ORAL JUDGMENT

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This appeal is filed by the appellant/accused No.2 seeking to set aside the judgment of conviction and order on sentence dated 02.12.2016 passed in S.C.No.190/2011 by the learned III Addl. District and Sessions Judge, Kalaburagi.

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Factual matrix of the case are as under :

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It is the case of the complainant that he was working as a goldsmith and running a shop in that regard. On 08.10.2009, he was going to the house of Smt. Kavitha Kattimani, who was known to him on his Hero Honda Motorcycle bearing Reg.No.KA-32/7262. By that time, a

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Tata Sumo vehicle came behind his motorcycle and dashed. Consequently, he fell down. In the meantime, four persons got down from the Tata Sumo and took him into the Tata Sumo. Thereafter, they showed the knife and committed robbery of gold locket weighing 10 gms, two gold finger rings, one mobile phone and other relevant

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documents viz., pan card, driving license and ATM card etc.

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It is further stated that in addition to the

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aforesaid articles and items, they are stated to have taken the key of the treasury and thrown him out of the Tata

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Sumo and went away. The complainant after taking assistance from the passerby, called his assistance and asked him to bring Rs.500/- from his shop. The son of his elder brother went to the shop and saw that gold weighing 350 gms was stolen from the said shop. Thereafter, he lodges a complaint against the unknown persons. The respondent police have registered a case in Cr.No.159/2009 for the offences stated supra. After conducting investigation submitted the charge sheet.

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To prove the case of the prosecution, the prosecution examined 13 witnesses as P.Ws.1 to 13 and got marked 20 documents as Exs.P.1 to P.20 and also identified 26 material objects as M.Os.1 to 26.

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The Trial Court after arrived at a conclusion

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held that the accused are found guilty for the offences punishable under Sections 365, 506, 395, 307, 457, 380 of IPC.

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Heard Sri. Ashok Mulage, learned counsel for the appellant, Sri Gopalkrishna B. Yadav, learned High Court Government Pleader for respondent.

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It is the submission of the learned counsel for

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the appellant that the appellant is innocent of the alleged offences. However, the Trial Court recorded the conviction against him which is perverse, illegal and arbitrary.

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It is further submitted that all the witnesses are related witnesses. The alleged recovery has not been proved properly. Evidence of all the witnesses contained lot of improvements, contradictions and omissions. All these facts ought to have been considered thoroughly by the Trial Court while appreciating the evidence. As the Trial Court did not go in to the merit of the case properly,

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resultantly, the impugned is passed which is liable to be set aside.

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9. Per contra , the learned HCGP vehemently

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justified the judgment of the Trial Court and submitted that the gold ornaments stolen from the shop of the complainant were recovered at the instance of the accused. As per the averments of the complaint, the complainant was assaulted, robbed and also took his shop key and stolen gold ornaments kept in the treasury. The prosecution has proved the case beyond reasonable doubt. Therefore, it is not appropriate to interfere with the findings of the Trial Court. Making such submissions, the learned HCGP for the respondent – State prays to dismiss the appeal.

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Having heard learned counsel for the respective parties and also perused the findings of the Trial Court, it appears that P.W.1 had been kidnapped and robbed by the accused and others. P.W.1 in his evidence admitted that accused No.2 was working along with him in his shop.

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In his complaint, he stated that some unknown persons had kidnapped him in the Tata Sumo and stolen the gold articles. In the FIR, a case has been registered against the unknown persons. During investigation the name of accused No.2 had been implicated. Even though P.W.1 stated some unknown persons have taken key for the

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purpose of committing robbery in his shop, the fact remains that in his evidence he deposed that even accused No.2 was also having the key of the shop.

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Be that as it may, the evidence of P.W.1 did not disclose about the recovery of any items from accused No.2. Further, in the cross-examination, he admitted that he had never seen accused Nos. 2 to 5 prior to the incident. Such being the case, accused No.2 was working in his shop, prior to the incident appears to be doubtful and his evidence is not believable. Acting on the evidence of such witness and recording the conviction, even without conducting identification parade of the accused persons would be, in my considered view, is highly illegal and

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NC: 2025:KHC-K:1697 CRL.A No. 200009 of 2017

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arbitrary. Therefore, the said findings of the Trial Court in recording the conviction is liable to be set aside.

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In the light of the observation made above, I

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proceed to pass the following:

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ORDER

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i) The Criminal Appeal is allowed. ii) The judgment of conviction and order on sentence dated 02.12.2016 passed in Special Case No.190/2011 by the learned III Addl. District and Sessions Judge, Kalaburage is set aside.

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iii) The appellant / accused is acquitted for the offences punishable under Sections 365, 506, 395, 307, 457, 380 of IPC.

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iv) The bail bond, executed if any, shall stand cancelled.

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Sd/(S RACHAIAH) JUDGE

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JS/List No.: 1 Sl No.: 36 CT:PK

Prakash S/O Kashappa Hulkeri v. the State of Karnataka

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Prakash S/O Kashappa Hulkeri v. the State of Karnataka

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