Yallappa @ Kachayalaya S/O. Jatappa Gollar Vs the State of Karnataka

…RESPONDENT (BY SRI. PRAVEEN K. UPPAR, AGA FOR RESPONDENT) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C., SEEKING TO ALLOW THE PETITION AND CALL FOR RECORDS AND SET ASIDE THE IMPUGNED ORDER DATED 03.05.2016 PASSED BY THE LEARNED PRL. DISTRICT AND SESSIONS JUDGE, DHARWAD, IN CRIMINAL APPEAL NO.67 OF 2015, CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION PASSED IN C.C.NO.13 OF 2013 DATED 17.06.2015 PASSED BY THE LEARNED PRL. CIVIL JUDGE AND JMFC, DHARWAD AND CONSEQUENTLY ACQUIT THE PETITIONER.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition is directed against the judgment of conviction and order of sentence dated 17.06.2015, passed in passed in C.C. No.13/2013 by the Principal Civil Judge and JMFC-II Court, Dharwad (for short, ‘the Trial Court’) confirmed in Crl.A.No.67/2015 dated 03.05.2016, by the Principal District & Sessions Judge, Dharwad (for short, ‘the First Appellate Court).

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Parties to this revision petition are referred to

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as per their rank before the Trial Court for convenience.

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That accused were charge sheeted by the police

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Sub Inspector, Sub Urban Police Station for the offences punishable under Sections 457 and 380 of IPC as because, one complainant by Somalingappa Channabasappa Antaratani, filed a complaint before the Sub-Urban Police Station, stating, that on 08-04-2012 he had been to Hubli along with his family members. When he returned to home

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at 10 p.m., he noticed breaking of door of his house on the back side and also opening of the almeras kept in his house and all the articles and the clothes were scattered. He noticed the theft of silver articles, 2 gold coins, cash of Rs.14,000/- from his house. So also, pachche stone worth Rs.6000/-, 2 small rings each weighing 5 grams that is valuing Rs. 13,000/-, 1 Dabu, Udadara, Attaradani, 2 small lotaS, one big silver lota, 3 spoons, 1 silver plate, 2 silver big lotas, 5 Aarishina Kumkum battalu, 1 gilaganji, 1 krishna idol, 1 Olalli, total worth of Rs.30,000/- had been stolen. According to him the incident of theft has taken place in between 11.00am and 10.00pm on that day. He lodged a complaint before the Sub Urban police station on 09-04-2012 which was registered in Cr.No.56/2012 for the offences punishable under Sections 457 and 380 of IPC. During the course of the investigation, the accused was apprehended and at his instance certain articles were seized which are marked as MOs.1 to 5. After completion of the investigation, the police have filed the charge sheet against the accused.

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The learned Magistrate took the cognizance of the offences. Supplied the copies of the police paper under Sections 207 of Cr.P.C.

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On hearing the arguments of both the side, the charges were framed against the accused for the offences punishable under Sections 457 and 380 of IPC. He pleaded not guilty and claimed to be tried.

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Before the Trial Court, to prove the guilt of the accused, prosecution, in all examined 12 witnesses as P.Ws.1 to P.Ws.12 and got marked documents as per Ex.Ps.1 to Ex.Ps.13 and also MOs.1 to 5. On closure of the evidence of the prosecution, the accused was questioned under Section 313 of Cr.P.C. so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence on his behalf.

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The learned trial Court on hearing the

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arguments and on evaluation of the evidence on record,

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found the accused guilty of committing the offences punishable under Sections 457 and 380 of IPC, and sentenced him to undergo simple imprisonment for a period of three years and to pay fine of Rs.5,000/- with default sentence for the offence punishable U/s. 457 of IPC and further the accused is sentenced to undergo simple imprisonment for 2 years and to pay fine of Rs.3,000/with default sentence for the offence punishable U/s.380 of IPC.

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This judgment of conviction and order of sentence was challenged by the accused before the First Appellate Court by filing Criminal Appeal No.67/2015. The learned First Appellate Court vide judgment dated 03.05.2016 confirmed the judgment of conviction and order of sentence passed by the Trial Court. This is how the accused is now before this Court in this revision petition challenging the judgments of both the Courts below.

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The learned counsel for the revision petitioner,

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Sri. R.H Angadi, submits that, though the prosecution is

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able to prove the theft of MO Nos.1 to 5, the recovery of

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the said articles, from the accused is not duly proved in accordance with law. He would submit that so called offence has taken place on 09.04.2012. The accused was apprehended on 04.08.2012. There was a gap of about 4 months in apprehending the accused. According to his submission, the recovery pancha has not supported the case of the prosecution. Even another pancha to the said recovery is also not examined so also when the accused was apprehended in the afternoon on 04.08.2012, the neigbouring persons who were very much available were also not examined. Therefore, he would submit that the learned trial Court as well as the learned First Appellate Court, have failed to appreciate the evidence in proper perspective. He submits that though it is alleged by the prosecution that the accused is a habitual offender, but, he has not been convicted in any other case. A false case is foisted against the petitioner being innocent person. He

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is aged 60 years now. There was no occasion for him to commit the offence in the manner alleged by the prosecution. He submits that both the Courts below have committed illegality in convicting and sentencing the accused person. He prays to allow the revision petition and acquit the accused by setting aside the impugned judgments.

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As against this submission, Sri. Praveen K. Uppar, the learned AGA submits that though the recovery is not proved, but, the other circumstance do establish that the accused has committed the lurking of trespass into the house of the complainant and committed the theft of MOs.1 to 5. He would further submits that the learned trial Court has evaluated the evidence and on examining the evidence placed on record, has found the accused guilty. The learned First Appellate Court has also reevaluated the evidence. He would submit that there was no explanation offered by the accused when he was examined under Section 313 of Cr.P.C. Therefore,

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inference can be draw that he is the real offender. Hence,

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he prays to dismiss the revision petition.

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I have given my anxious consideration to the arguments advanced by both the sides and perused the papers. The only point that would arise for consideration of this Court is as under:

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i) Whether the petitioner-accused has made out grounds to interfere into the judgment of conviction passed by the Trial Court and confirmed by the First Appellate Court?

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My answer to the above point is in the affirmative for the following:

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REASONS

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It is the specific case of the prosecution that, there was theft of the gold ornaments as well as silver articles kept in the house of the complainant Somalingappa Channabasappa Antaratani. According to PW1-the complainant on 08.04.2012, himself and his family members with children went to Hubli. At about

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10.00 pm, he returned to the house. When he opened the house, he noticed that back door of his house is broken and there was a commission of the theft of the gold ornaments and silver articles kept in the house worth Rs.30,000/-. So also he noticed absence of two gold coins. He also noticed that the articles kept in the cupboard were scattered in the house. To that effect, he lodged complaint to the police station as per Ex.P1. On search, he noticed two gold coins in the house were fallen on the ground. According to him, after three months of filing the complaint, the police called him to the police station and showed the gold and silver articles in the police station. He identifies them. He gave a further statement before the police on 04.08.2008.

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This PW1 has been cross examined by the

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defence. He deposed ignorance about that who has committed the theft of the articles. He simply says that the articles worth Rs.30,000/- were the subject matter of the theft from his house. He being the complainant he is

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not an eye witness to the said incident of theft. His evidence is to be accepted to the extent that there was a theft of the silver articles kept in his house. To that extent I believe the evidence of PW1.

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PW2-Sunilreddy Maidur is pancha to Ex.P2 wherein he stated that on 09.04.2012 in between 8.30 am and 10.00am, the police came to the scene of offence i.e. house of the complainant and conducted the panchanama as per Ex.P2. He is a signatory to the said panchanama. The presence of PW2 cannot be disbelieved as there is no effective cross examination to that effect by the defence. That means, in the presence of PW2, the police have prepared the panchanama of scene of offence as per Ex.P2. Likewise, PW3 Anant V.Kulkarni is also one of the pancha to Ex.P2. In the same manner stated by PW.2, this witness has stated about his presence. To that extent, the evidence of PWs.2 and 3 is to be accepted and there is no effective cross examination directed to them.

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From reading the evidence of PW1, PW2 and PW3, it can be stated that, the prosecution is able to prove the theft of the articles kept in the house of the complainant and to that effect, the complaint was lodged by the complainant as per Ex.P1.

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Merely because the prosecution is able to prove the theft of the articles, it does not mean that it was accused who has committed the theft. To ascertain the same, we have to read the evidence of other witnesses who have been examined by the prosecution

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In a case of present nature, the recovery of the articles at the instance of the accused plays an important role. PW4 Sunilkumar Holalgundi is Pancha to Ex.P3. But according to the evidence of PW4, none of the articles were seized in his presence and from the possession of the accused. He has been declared as hostile witness by the prosecution. But nothing worth is elicited from the mouth of this witness so as to disbelieve his version. Therefore,

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the evidence of PW4 cannot be accepted as Tribunal evidence. His evidence has to be discarded.

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PW.5 Savitarani Andaratani, is none other than the complainant’s wife. According to her, when they returned to their house, they noticed about the commission of the theft of the articles stated in the complainant. When they enquired the neighbours, they did not given any answers and thereafter, she filed a complaint. She was called to the police station and there certain articles were shown to her and she identifies these as MOs.1 to 5. Evidently, she was not an eye witness to the incident. She has deposed so much ignorance in her cross- examination. Her evidence is on par with the evidence of PW1. Therefore, to the extent of commission of the theft as stated by PW1, evidence of PW5 is to be accepted.

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20. PW6 Dr. Ramalingappa Antartani is the brother

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of the complainant. He too states with regard to the theft

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from the house of the complainant. To that extent, evidence of PW6 is to be accepted.

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PW7 Khandoba Motte is a person who has received the telephone call about commission of the theft from the house of the complainant. According to him, the police came to the house of the complainant and prepared the list. At the time of preparing the list, 2-3 articles were found. He has given a statement before the police and he identifies MOs.1 to 5. The evidence of this PW7 has to be accepted to the extent of receipt of the complaint and also finding of 2-3 articles so also identifying MOs.1 to 5 only. To that extent, I believe the evidence of PW7.

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PW8-Mahindra Kurtakotti was a Head Constable at Sub-Urban Police Station at the relevant time. According to him, on 04.08.2012 as per the instruction of P.S.I. he was checking the vehicles. At that time, he apprehended the accused at Shivaji Circle and produced him before PSI. He identifies MOs.1 to 5. He has given statement as per Ex.P5. It is the case of the prosecution

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that when the accused was apprehended on 04.08.2012 and produced before PSI, on interrogation he gave a confession statement stating that he has committed the theft of these MOS.1 to 5. But the seizure pancha as stated supra has been turned hostile. At the instance of accused, no articles were seized as per the case of the prosecution. Only on apprehension of accused by PW8, certain articles were seized. How this accused is being in possession of those articles has not been explained by this PW8.

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PW9-Ravi Nayak, Dy.SP the IO in the case and conducted investigation and filed charge sheet. According to his evidence, accused was apprehended at Shivaji Circle and produced before him. He states that the accused has produced certain articles which are MOs.1 to 5. But to show that accused was real culprit, no evidence is placed on record by the prosecution. Except, the evidence of PW4 who has been turned hostile, there is no evidence placed on record that it was the accused who was the real culprit

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in the commission of crime in the manner stated by the prosecution.

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PW10-Shivanand Manakar, states that on

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04.08.2012 at Shivaji Circle, when he went to patrolling duty at Saidapur, he noticed that in a suspicious manner, the accused was moving with a plastic bag. When enquired, the accused did not give answer. Therefore, he was brought to the police station. He confessed that he has committed the theft of the articles from the house of the complainant. If evidence of PW8 and PW10 is compared with each other, according to PW8, he was checking the vehicle at that time, he apprehended the accused. But, this PW10 speaks otherwise. There is no consistency in the evidence of PW8 and PW10 with regard to the real apprehension of the accused in the manner alleged by the prosecution. PW11 Muragesh Channanavar was PSI who set the criminal law in motion. To the extent

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of registering the crime and prepared panchanma, the evidence of PW11 is to be accepted.

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PW12-Raju Ramdas Raikar is a person who has examined the silver articles. There is no dispute with regard to the same by the defence.

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On scrupulous reading of the evidence of the witnesses, first of all, the said offence has taken place on 08.04.2012. As per the case of the complainant, immediately, complaint was filed. But, the accused was apprehended for the first time on 4.08.2012. PW4, the seizure pancha has been turned hostile. Only based upon the evidence of PW8 and PW10, it cannot be stated that there was real apprehension of the accused in the manner stated by the prosecution. I find inconsistent evidence of PW8 and PW10 to that effect. Merely, because certain articles are seized at the instance of the accused, it does not mean that he is the real culprit. So also, in a case of present nature, it is the duty of the prosecution to bring home the guilt of the accused. After four months of alleged incident, the accused was apprehended and certain articles were shown to the complainant and his wife in the

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police station. This gives room to doubt the case of the prosecution. In a case of present nature as stated supra, complainant’s evidence can be accepted to the extent of theft in his house. Recovery panchas evidence plays an important role in the case of present nature. When recovery pancha PW4 has been turned hostile, the other pancha who was very much available is not examined by the prosecution and neighbours who were very much present when the accused apprehended are not examined. It is fatal to the case of the prosecution.

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The learned trial Court has not properly appreciated the evidence and has wrongly come to the conclusion that there were recovery of the articles, therefore, the accused is found guilty. The learned First Appellate Court has also drawn the inference that there is no explanation offered by the accused in 313 statement. Therefore, accused is liable to be convicted and rightly the

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learned trial Court has convicted. But this finding of the learned trial Court is perverse and capricious as the

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prosecution has utterly failed to prove the guilt of the accused beyond all reasonable doubt. The chain of circumstance with regard to the commission of offence is not duly proved in accordance with law. Therefore, a doubt arises and that benefit of doubt has to be extended to the accused. To show that accused is a habitual offender, no evidence is placed on record by the prosecution. It is fairly submitted by the learned counsel for the petitioner that, in all the so called criminal cases registered against the accused, he was acquitted. This fact is not disputed by the prosecution. In view of the same, the revision petition filed by the petitioner succeeds and deserves to be allowed. The impugned judgments passed by the learned trial Court as well as the learned First Appellate Court are liable to be set aside.

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Resultantly, I pass the following:

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ORDER

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i. The Criminal Revision Petition filed by the

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petitioner-accused is allowed.

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ii. The judgment of conviction and order of sentence passed by the Trial Court in C.C. No.13/2013 dated 17.06.2015 by the Principal Civil Judge and JMFC, Dharwad, confirmed in Crl.A.No.No.67/2015 dated 03.05.2016, by the Principal District & Sessions Judge, Dharwad are hereby set aside.

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