A Piche Ghani @ Abdul Ghani Vs the State of Karnataka by Madikeri Rural Police Station

A. PICHE GHANI @ ABDUL GHANI @ OIL GHANI @ BHAI, S/O LATE ABDUL REHAMAN, AGED ABOUT 60 YEARS, OCC: COOLIE, R/O. NO.135, HOSURU ROAD, GUNDLUPETE, CHAMARAJANAGARA DISTRICT-571111.

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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T.J. RAJESH @ RAJI, S/O JOSE, AGED ABOUT 35 YEARS, OCC: COOLIE, R/O NURESRYM GARAGANGA VILLAGE AND POST, BEGORO HOBLI, GUNDLUPETE TALUK, CHAMARAJANAGARA DISTRICT-571111.

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…PETITIONERS (BY SRI. P.B.UMESH, ADVOCATE FOR SRI. R.B. DESHPANDE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA, BY MADIKERI RURAL POLICE STATION, KODAGU DISTRICT-571201. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU-560001.

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…RESPONDENT (BY SRI. CHANNAPPA ERAPPA, HCGP)

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NC: 2026:KHC:26204 CRL.RP No. 1380 of 2019

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HC-KAR

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THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.PC PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 03.09.2019 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI, IN CRL.A.NO.12/2019 AND THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 21.02.2019 PASSED BY THE ADDITIONAL CIVIL JUDGE AND JMFC, MADIKERI IN C.C.NO.988/2014 (CONVICTED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 457 AND 380 OF IPC) AND ACQUIT THE PETITIONERS/ACCUSED NO.2 AND 3 OF ALL THE CHARGES LEVELED AGAINST THEM.

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THIS PETITION COMING ON FOR FINAL 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 learned counsel for the revision petitioners and the learned High Court Government Pleader appearing for the respondent-State.

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This revision petition is filed against the order passed by the Trial Court in C.C.No.988/2014, wherein the Trial Court considering the evidence of P.W.1, P.W.8, P.W.9 and P.W.10 and also the evidence of the Investigating Officer, who has been examined as P.W.16, comes to the conclusion that a theft was happened in the shop of P.W.1 and on the arrest of these two petitioners along with accused Nos.1 and 4, recovery was made at the instance of the accused i.e., pepper from

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HC-KAR

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P.W.8 and considering the evidence available on record, believed the evidence of the prosecution witnesses and convicted the accused and sentenced for a period of one year with fine of Rs.1,000/- each.

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Being aggrieved by the said order, an appeal is filed in Criminal Appeal No.12/2019 and the Appellate Court having re-assessed both oral and documentary evidence available on record, particularly considering the evidence of P.W.1 as well as the evidence of P.W.8 and recovery witnesses P.W.9 and P.W.10 and also the Investigating Officer P.W.16, comes to the conclusion that the Trial Court has not committed any error. It is also observed in paragraph No.20 that P.W.9 and P.W.10 though turned hostile, they have not given any evidence about P.W.16 visiting the shop of P.W.8. The mahazar was drawn in terms of Ex.P.10 and the defence did not choose to crossexamine the witnesses P.W.9 and P.W.10 and not disputed the evidence and their evidence supports the case of the prosecution and also the presence of P.W.16 in front of the shop of P.W.8 and P.W.8 also given the evidence that accused No.2 alone came and sold the pepper bags and the police came

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NC: 2026:KHC:26204 CRL.RP No. 1380 of 2019

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HC-KAR

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along with accused No.2 and seized the pepper bags. The Appellate Court on considering the material available on record, confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent finding, the present revision petition is filed before this Court.

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The main contention of the learned counsel for the revision petitioners is that the prosecution evidence not inspires the confidence of the Court and the evidence available on record is contradictory to each other and there is a serious error in relying upon the evidence of P.Ws.6, 8, 9, 10 and both P.W.9 and P.W.10 are the mahazar witnesses to Ex.P.10 and there are legal infirmities and inspite of it, both the Courts have committed an error in believing the evidence of P.W.8, P.W.9 and P.W.10 and it requires interference of this Court. The learned counsel also submits that the sentence imposed by the Trial Court does not commensurate with the gravity of the offence and on that ground also, the judgment of the Trial Court and the Appellate Court is not sustainable in the eye of law and both the orders suffer from its legality and correctness.

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HC-KAR

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Per contra, the learned High Court Government Pleader appearing for the respondent-State in his argument would submit that theft of pepper was taken place in the shop of P.W.1 on 05.07.2013. Immediately on the next day, complaint was lodged. P.W.1 had kept totally 25 bags of black pepper each weighing 60 kgs. and 77 kgs. of another bag of black pepper and other 4 bags of coffee and cash of Rs.2,85,000/- was kept in the drawer and locked the same and closed the shop. Based on the complaint, the Investigating Officer conducted the investigation and filed the charge-sheet. After the recovery of the amount as well as the pepper from P.W.8, the accused persons were secured and they did not plead guilty and hence, the prosecution mainly relies upon the evidence of P.W.1 to P.W.16 and also got marked the documents at Exs.P.1 to 21 and M.O.1 to M.O.8 are also marked. The main witnesses are P.W.1, P.W.6, P.W.8, P.W.9, P.W.10 and P.W.16 and their evidence is consistent and hence,

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the Trial Court rightly taken note of the material available on record and so also the Appellate Court considered the evidence available on record and no ground is made out to invoke the revisional jurisdiction.

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NC: 2026:KHC:26204 CRL.RP No. 1380 of 2019

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HC-KAR

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Having heard the learned counsel for the revision

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petitioners and the learned High Court Government Pleader, the

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points that arise for the consideration of this Court are:

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(i) Whether both the Courts have committed an error in convicting and confirming the conviction and sentence?

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(ii) Whether the order impugned suffers from its legality and correctness?

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(iii) What order?

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Point Nos.(i) and (ii):

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Having considered the material available on record,

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it is the case of the prosecution that the accused persons on 05.07.2013 committed the theft in the shop of P.W.1 by breaking open the shutters of the shop and also committed theft of 13 bags of pepper and remaining 77 kgs. of pepper, in total 887 kgs. of pepper and also committed theft of cash of Rs.2,85,000/- from the shop of P.W.1. The prosecution mainly relies upon the evidence of P.W.1, who is the owner of the shop and he reiterates with regard to the lodging of complaint in terms of Ex.P.1. Based on the complaint, the police registered the case and investigated the matter and apprehended the

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NC: 2026:KHC:26204 CRL.RP No. 1380 of 2019

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HC-KAR

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accused persons. At the instance of the accused, recovery of pepper was made from the shop of P.W.8. P.W.9 and P.W.10 are the recovery witnesses and no doubt, both of them have not fully supported the case of the prosecution. However, their evidence is very clear that mahazar was drawn in terms of Ex.P.10 in the shop of P.W.8. The seizure was made and samples were also taken. The evidence of P.W.8 is also clear that accused No.2 alone came and sold the pepper. The evidence of P.W.16 Investigating Officer is very clear that after apprehending the accused persons, they made the voluntary statements in terms of Exs.P.18 to 20. In pursuance of the voluntary statement Exs.P.18 to 20, the accused persons led the Investigating Officer as well as other panch witnesses to the shop of P.W. 8 and recovery was made.

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No doubt, the learned counsel for the revision petitioners would submit that the evidence of P.W.9 and P.W.10 cannot be believed and they have not fully supported the case of the prosecution. Though they have turned hostile in part, but defence did not even dispute the evidence of P.W.9 and P.W.10 with regard to the recovery at the instance of the

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HC-KAR

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accused and seizure of the same by drawing the mahazar in terms of Ex.P.10. Both P.W.9 and P.W.10 identifies their signature in the mahazar Ex.P.10. When such being the case, the very contention of the learned counsel for the revision petitioners that recovery is not proved cannot be accepted.

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The Trial Court and the Appellate Court taken note of the evidence of P.W.1, P.W.6, P.W.8 to P.W.10 as well as P.W.16. Hence, I do not find any error on the part of the Trial Court as well as the Appellate Court and the judgment of the Trial Court and confirmation by the Appellate Court not suffers from any legality and correctness. The scope of revision is very limited and unless the revision petitioners point out that both the orders suffer from its legality and correctness, the question of entertaining the revision petition does not arise. Hence, I do not find any ground to come to a other conclusion and I answer the point Nos.(i) and (ii) in the negative.

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Point No.(iii):

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]10. In view of the discussions made above, I pass the following:

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