Basha @ Khaleel Basha Vs the State of Karnataka

THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.09.2018 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN CRL.A.NO.98/2016 AND THE JUDGMENT AND ORDER DATED 18.11.2016 PASSED BY THE CIVIL JUDGE AND JMFC, SORABA, IN C.C.NO.77/2008 (CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 457, 380 OF IPC) AND ACQUIT THE PETITIONER/ACCUSED NO.1 OF ALL THE CHARGES LEVELED.

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THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.10.2025, THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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CAV ORDER

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Challenging judgment dated 28.09.2018 passed by V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar, in Crl.A.no.98/2016 confirming judgment of conviction and order of sentence dated 18.11.2016 passed by learned Civil Judge and JMFC, Soraba, in C.C.no.77/2008, this revision petition is filed.

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Sri PB Umesh, learned counsel appearing for Sri Ravindra B. Deshpande, Advocate for petitioner submitted revision petition was by accused no.1 against concurrent findings convicting him for offences punishable under Sections 457 and 380 of Indian Penal Code, 1872, (' IPC ', for short) and sentencing him to undergo simple imprisonment for period of one year each with fine of Rs.5,000/- and in default to pay fine, to undergo simple imprisonment for three months each.

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As per prosecution, on night of 25.09.2007, accused committed lurking house trespass by breaking open

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door lock and entering into room of Kummuru Government Higher Primary School and committing theft of one LPG cylinder kept there worth Rs.1200/-. And at 1:30 a.m. on 04.10.2007, when police on beat duty near Hospete Hakkalu and stopped Esteem Car, they found four persons inside car including accused along with three LPG cylinders. On being apprehended, they admitted to have committed theft of LPG cylinders from Kummuru School.

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After registration of FIR and completion of investigation, charge-sheet was filed against three accused. As accused no.2 was absconding, case against him was split-up. In order to establish charges, prosecution relied on eight witnesses examined as PWs.1 to 8, documents marked as Exs.P1 to P7 and MOs.1 and 2. It was submitted, PW.5 - witness to Ex.P1 - Mahazar, turned hostile and did not support prosecution case. However, accused were appraised of incriminating material, their denial of same was recorded as their statement under Section 313 of Code of Criminal Procedure, 1973, (' Cr.P.C ', for short). Accused did not lead any rebuttal evidence.

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It was submitted, though prosecution has failed to establish charges beyond reasonable doubt and same was highlighted by accused, without proper consideration, learned Trial Judge, proceeded to pass impugned order of conviction. Even though accused challenged it, appeal was dismissed without proper appreciation leading to this revision.

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It was submitted, there were several material inconsistencies in prosecution version. PW.1 deposed that on 04.10.2007, when he was on night patrol, one Esteem car was found transporting three gas cylinders including one belonging to School of PW.4 - complainant. But, in cross-examination, he stated that vehicle transporting Gas Cylinders was an Omni Car and reiterated same in further cross-examination. It was submitted, said inconsistency was fatal to prosecution case.

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It was submitted, PW.2 stated to be witness to Ex.P1 - Mahazar admitted that he was unaware of contents of Ex.P1 and further stated that when he went to School, there were no one else. And during cross-examination of PW.3, an admission that mahazar was not drawn at spot and Gas

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cylinder numbers were not noted was elicited. And though PW.4 stated that Ex.P2 - Mahazar was signed in School, his statement that door of School Kitchen was not sturdy would materially contradict case of prosecution that door lock was broken. It was submitted that PW.4 specifically admitted that Ex.P1 - Mahazar were signed in Police Station.

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It was submitted, PW.5 did not support prosecution case at all. While PW.6 admitted that vehicle used for alleged transportation was not seized at all. He also admitted that he was not party to Ex.P1 - mahazar and that accused were apprehended by other Police. It was submitted, PW.8 cited as mahazar witness admitted that he was not summoned to be mahazar witness and further admitted to have signed mahazar in police station. PW.7 - investigating Officer admitted drawing of panchanama. A suggestion made that panchanama was not drawn at spot was denied.

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It was submitted, as per complainant, incident occurred on 25.09.2007, whereas, complaint was lodged on 26.09.2007, indicating delay of one day in filing complaint. It was further submitted, admittedly there were no eye witnesses

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and prosecution had failed to disclose and establish role of each of accused in commission of offences as alleged. It was submitted, charge-sheet did not include Section 34 of IPC amongst charges. It was contended, both Courts failed to notice that prosecution was relying mainly upon official witnesses to establish charges. They failed to note said witnesses would be duty bound to support prosecution and as such, would be interested witnesses. Further, Exs.P4 to P.6 indicated drawing of Ex.P.7 - mahazar at police station. It was submitted, when prosecution failed to establish necessary ingredients for constituting commission of offences either under Sections 457 or 380 of IPC, order of conviction passed were unsustainable and sought for allowing revision petition.

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On other hand, Sri Harish Ganapathy, learned HCGP opposed petition. It was submitted, prosecution had substantiated its case against accused by examining no less than 8 witnesses and 7 documents, apart from two material objects. It was submitted, except PW.5, all other witnesses supported prosecution case. It was submitted, both Courts on

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careful evaluation of same, had concurrently convicted accused for offences punishable under Sections 457 and 380 of IPC.

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It was submitted, all prosecution witnesses including PW.1 had consistently described vehicle in which stolen Gas Cylinder was being transported by mentioning its registration number. Under such circumstance, discrepancy in description of vehicle as Omni Car, while stating it to be a Esteem Car in Examination-in-chief would not be material so as to render findings of trial Court and appellate Court as perverse.

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It was submitted, PW.4 had specifically stated that

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entry into Kitchen room of School was by breaking open lock. Therefore, statement by PW.4 that School Kitchen door could be broke open with slight force would not erase or dilute his deposition about manner of accused gaining entry into School Kitchen. It was further submitted, there was no denying of fact that stolen Gas Cylinder was found in vehicle along with accused. Hence, ingredients for commission of offences as alleged. Further, omission to mention Section 34 of IPC in charge-sheet would not be fatal, as same was duly added and

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mentioned in charges framed against accused and trial held with such inclusion. On above grounds, sought for dismissal of revision petition.

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Heard learned counsel and perused material on

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record.

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From above, this revision petition is by accused

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no.1 and 3 against concurrent findings, convicting them for offences under Sections 457 and 380 of IPC i.e. offences of theft in dwelling house and lurking house trespass.

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In order to constitute offence under Section 380 of IPC, prosecution would require to establish following

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ingredients namely:

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i) theft; ii) in a dwelling house; iii) used for custody of property.

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Likewise, for offence under Section 457 of IPC,

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prosecution would require to establish following ingredients namely:

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i) trespass or house-breaking at night; ii) with intention to commit offence.

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Apart from above, since four accused were arraigned, prosecution would require either to establish that they committed offences with common intention rendering each of them equally liable for punishment of conviction.

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It is seen, prosecution relied on eight witnesses, seven exhibits and two material objects. While passing impugned judgment, trial Court examined, whether prosecution proved that on night of 25.09.2007 accused committed lurking house trespass by breaking open lock entering kitchen of School and committed theft of LPG Cylinder kept there and committed offences punishable under Sections 457 and 380 of IPC.

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To establish commission of offences as alleged, PW.1, police officials i.e., constable who had intercepted Car and apprehended accused was examined as PW.1, who deposed that on night of 04.10.2007, when he along with other police was on night beat duty at Hosapete Hakkalu, they intercepted one car with accused and in it transporting three LPG Cylinders one of which was on investigation found to be Gas Cylinder stolen from School.

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His statement is supported by PW.3, who accompanied PW.1 on night patrol on 04.10.2007 and PWs.6 and 7 - Investigation Officers, who deposed about registration of FIR, conducting investigation, arrest of accused, drawing up of mahazar, seizure of damaged lock and filing of charge-sheet. Mahazar witnesses were examined as PWs.2, 5, and 8. Except PW.5, others deposed about drawing of mahazar at place of incident and seizure of broken lock. Apart from above, complainant is examined as PW.4.

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First ground urged is discrepancy in description of car, stating it to be a white Esteem Car bearing registration no.KA-25-N-3141 in examination-in-chief, but, in crossexamination stating it, as Omni Car.

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Perusal of impugned judgments do not indicate that such contention was urged before trial/Appellate Court. Normally, a vehicle is identified by its registration number, which is clearly stated in chargesheet, in depositions of PWs.1 and 3. Moreover, there is no specific suggestion about implicating different vehicle for purpose of charge. Therefore,

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discrepancy cannot be stated to be material so as to upset conviction.

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Next contention is about admission by PW.2 about being unaware of contents of Ex.P1 - Mahazar and stating that during his visit to school, there were no others and PW.4 admitting about signing Mahazar in P.S., discrediting Mahazar. However, Mahazar was drawn by PW.7-I.O., who duly supported it.

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While passing impugned judgment, trial Court observed that in cross-examination of PW.4-complainant, suggestions were made by accused about drawing of mahazar at place of incident and PW.4 signing it in P.S., would amount to admission by accused about drawing of mahazar at school and therefore his admission that it was signed at Police Station would not discredit mahazar.

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Insofar as admission by PW.4 about door of School Kitchen being weak and liable to break open with slight push, to contend that prosecution failed to establish house breaking or that such building was used for custody of property. It is

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seen, there is no dispute about School Kitchen having a door with lock. Seizure of Broken lock MO-2 is established by Ex.P1 - Mahazar. Hence, regardless of such door being weak, its usage for custody of property cannot be disputed.

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Admittedly, there are no eye-witnesses or circumstantial witnesses/evidence to implicate each of accused to commission of offences as alleged. Prosecution case relies heavily on recovery of stolen LPG Cylinder from vehicle in which accused were traveling.

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Column-17 of charge-sheet filed does not either mention that accused had acted with common intention nor Section 34 of IPC was invoked by prosecution. Section 34 of IPC is included only at time framing of charges by trial Court. In fact, none of prosecution witnesses also deposed about common intention of accused.

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Prosecution case at best establishes accused were traveling in a Car from which three LPG Cylinders (including stolen one) were recovered, which would not be sufficient to support their conviction. In this regard, it would be useful to

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refer to decision of Hon'ble Supreme Court in case of SD

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Shabuddin v. State of Telangana , reported in 2025 INSC

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999 , wherein it is held:

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"9 . Learned counsel for the appellant strenuously urged that the prosecution has failed to prove beyond reasonable doubt that the property held by the appellant is a stolen property, and belonged to the deceased. To bring home the charges under Section 411 IPC, the prosecution must establish that the person receiving or retaining the stolen property must have knowledge or belief that the same is a stolen property. Mere possession of the stolen property is not enough, and it must be proved by the prosecution that there was knowledge about the property being stolen. Hence, the belief or knowledge factor is sine qua non to give a finding of guilt for offence punishable under Section 411 IPC.

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9.1. It was further contended that in the present case, the prosecution has failed to prove that the appellant had either knowledge or belief that the money that he had received from accused-Moulana was stolen property. This assertion is further fortified by the concurrent acquittal of both of the accused persons under Section 379 IPC by the High Court and the Trial Court. As both of them were acquitted for the offence of theft, the Courts below grossly erred to return a finding that the appellant was guilty for dishonestly receiving stolen property under Section 411 IPC."

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Similar view is expressed in Jasdeep Singh v.

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State of Punjab , reported in (2022) 2 SCC 545 .

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Thus, prosecution was required to establish that all accused had acted with common intention, but records do not

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reveal any material to said effect nor impugned judgments contain any discussion about said aspect. As such, they would be contrary to material on record and perverse.

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In view of above, Revision Petition is allowed . Judgment dated 28.09.2018 passed by V Addl. District and Sessions Judge, Shivamogga, sitting at Sagar, in Crl.A.no.98/2016 confirming judgment of conviction and order of sentence dated 18.11.2016 passed by learned Civil Judge and JMFC, Soraba, in C.C.no.77/2008, is set-aside. Petitioneraccused no.1 is acquitted of offences punishable under Sections 457 and 380 of IPC.

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Sd/(RAVI V HOSMANI) JUDGE

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Psg*/AV/GRD List No.: 1 Sl No.: 50

Basha @ Khaleel Basha v. the State of Karnataka

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Basha @ Khaleel Basha v. the State of Karnataka

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