Karnataka High Court
Mr. Manikantan @ Mani vs The State By S.I Of Police Of Kavoor ... on 18 January, 2024
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NC: 2024:KHC:2426
CRL.RP No.370 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO.370 OF 2017
BETWEEN:
1. MR. MANIKANTAN @ MANI
S/O MURUGAN,
AGED 28 YEARS
R/AT DOOR NO.3-138/1,
DIVYA NAGARA, TODLAGUDDE,
KAVOOR, MANGALURU.
2. MR ANANDA S
AGED 28 YEARS
S/O SOMANATHA,
R/AT NEAR SRI CHAMUNDESHWARI TEMPLE,
KUNJATHBAIL POST, KAVOOR, MANGALURU.
3. MR. GURURAJA
Digitally signed AGED 29 YEARS,
by SANDHYA S S/O THUKARAMA NAIKA,
Location: High
Court of R/AT MATHASHRI SARASWATHI NILAYA,
Karnataka D.NO.3/120/2, THODLAMAJALU,
KUNJATHABAIL POST, MANGALURU.
4. MR PAVAN KUMAR K V
S/O K VASU NAIKA,
AGED 25 YEARS,
R/AT KULLAKUMERU HOUSE,
PUNACHA VILLAGE, MUDAMBAILU POST,
BANTWAL TALUK.
...PETITIONERS
(BY SRI. P.P.HEGDE, SENIOR COUNSEL A/W
SRI. GAURAV G.K., ADVOCATE)
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NC: 2024:KHC:2426
CRL.RP No.370 of 2017
AND:
THE STATE BY S.I OF POLICE OF
KAVOOR POLICE STATION,
MANGALURU
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP.)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT OF CONVICTION AND THE
ORDER OF SENTENCE DATED 19.02.2015 PASSED BY THE I
ADDL. SENIOR CIVIL JUDGE AND C.J.M., MANGALOARE IN
C.C.NO.11/2013 AND ALSO THE JUDGMENT DATED 23.02.2017
PASSED BY THE PRL. DIST. AND S.J., D.K., MANGALORE IN
CRL.A.NO.83/2015 DISMISSING THE APPEAL OF THE
PETITIONERS HEREIN AND ACQUIT THE PETITIONERS HEREIN
IN C.C.NO.11/2013 ON THE FILE OF THE I ADDL. SENIOR
CIVIL JUDGE AND C.J.M., MANGALORE.
THIS PETITION, COMING ON FOR FURTHER DICTATION,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Revision Petitioners 1 to 4 who are accused No.3 to 6 respectively, have preferred this revision petition against the judgment of conviction and order of sentence passed by the I Additional Senior Civil Judge at JMFC, Mangaluru, Dakshina Kannada (for brevity, hereinafter referred to as the "trial Court"), passed in CC No.11 of 2017 dated 19th February, 2015, which was confirmed by the Principal District and -3- NC: 2024:KHC:2426 CRL.RP No.370 of 2017 Sessions Judge, Dakshina Kannada (for brevity, hereinafter referred to as the "Appellate Court") in Criminal Appeals No.61 of 2015 and 83 of 2015 dated 23rd February, 2017.
2. For the sake of convenience, the parties in this revision petition are referred to as per their status and rank before the Trial Court.
3. Brief facts of the prosecution case is that on 27th February, 2012 at 11.00 pm within the limits of Kavoor Police Station at KPTCL Building of Kavoor junction, Mangaluru, accused 1 to 6 with a common object of committing theft of the electrical articles kept by PW1/CW1 in the godown, forcibly broke open the lock and trespassed the KPTCL and committed theft of 20 bags of bolt and nuts and other electrical goods worth of Rs.1,62,250/- which were transported by accused in tipper lorry bearing No.KA-19/B-8321 and shifted the same to the house of accused No.4 and also with the help of Xylo jeep bearing registration No.KA-19/C-5899 for commission of theft. Thus, accused have committed offence punishable under Section 457 and 380 Indian Penal Code. After filing of charge sheet, case was registered in CC No.11 of 2013 and summons -4- NC: 2024:KHC:2426 CRL.RP No.370 of 2017 was issued. In response to issuance of summons, accused appeared before the trial Court and enlarged on bail. The charges were framed for the alleged theft of offence, same was read over and explained to the accused. Accused pleaded not guilty and claimed to be tried.
4. To prove the guilt of the accused, thirteen witnesses were examined as PWs1 to 13 and thirty documents were got marked as Exhibits P1 to P30. On closure of the evidence of prosecution side, statement of accused under Section 313 of Code of Criminal Procedure was recorded. The accused have totally denied the evidence of prosecution witnesses, but have not chosen to lead any defence evidence on their behalf. Having heard the arguments on both sides, the trial Court convicted the accused for commission of offence punishable under Section 457 and 380 of Indian Penal Code and sentenced to undergo simple imprisonment for a period of one year with fine of Rs.1,000/- for commission of offence punishable under Section 457 Code of Criminal Procedure; further the accused were sentenced to undergo simple imprisonment for a period of three years with fine of Rs.5,000/- for the offence punishable under Section 380 of Indian Penal Code. Being aggrieved the -5- NC: 2024:KHC:2426 CRL.RP No.370 of 2017 judgment of conviction and order of sentence, the accused 1- Rajesh @ Nagaraj and accused 2-Sharanappa have preferred the Criminal Appeal No.61 of 2015 and the present accused 3 to 6 have preferred Criminal Appeal No.83 of 2015 before the Appellate Court. The appellate Court, clubbed both the appeals and by its common judgment dated 23rd February, 2017, dismissed the appeals. Being aggrieved by the judgment of the appellate court as well as the trial Court, the present revision petition is preferred by accused 3 to 6.
5. Sri P.P. Hegde, learned Senior Counsel appearing on behalf of Sri Gaurav G.K., learned counsel for the revision petitioners argued that initially the case was registered against the unknown accused and during the course of investigation only, the Investigating Officer arrested accused 1 and 2 and on interrogation, the Investigating Officer inserted the name of present revision petitioners without any evidence, except the recovery of article MO1 from behind the house of accused No.4. At the instance of accused No.3, as per Exhibit P12-Mahazar, the Investigating Officer has inserted the present revision petitioners as accused. There is no cogent or corroborative evidence to prove the content of Exhibit P12-seizue mahazar. -6-
NC: 2024:KHC:2426 CRL.RP No.370 of 2017 PW3-attestor to Exhibit P12, not supported the case of prosecution. The evidence of PW5 is not consistent with the averments made in Exhibit P12. The prosecution has not placed any material to show that who was the owner of the house shown in mahazar Exhibit P12, so also, Investigating Officer has not collected any material as to who were the residents of the house shown in mahazar Exhibit P12. The tipper lorry seized by the Investigating Officer does not belong to the revision petitioners/accused 3 to 6. The accused 3 to 6 not at all concerned with the seized lorry. The Xylo jeep seized by the police, also not belong to the accused and the same belong to PW9 who is the mother of PW4, who has not supported the case of the prosecution. PWs7 and 8 who are the attesters to the Mahazar-Exhibit P14, also not supported the case of the prosecution. Absolutely, there are no materials to attract the offence punishable under Sections 457 and 380 of Indian Penal Code. Further, the trial Court has failed to appreciate evidence on record in accordance with law and facts and convicted the accused, which is illegal, capricious, perverse and not sustainable under law. The appellate court has also not properly appreciated the evidence on record in accordance -7- NC: 2024:KHC:2426 CRL.RP No.370 of 2017 with law and confirmed the judgment of conviction and order of sentence passed by the trial Court. On all these grounds, the learned Senior Counsel sought to allow the revision petition.
6. As against this, Sri M.R. Patil, learned High Court Government Pleader submits that the trial Court has appreciated the evidence on record in accordance with law and facts and passed the judgment of conviction and order of sentence against the accused. The appellate court also has properly appreciated the evidence on record in accordance with law and confirmed the judgment of conviction and order of sentence passed by the trial Court, which cannot be interfered with. On all these grounds, the learned High Court Government Pleader sought to dismiss the revision petition.
7. Having heard the learned senior Counsel and also the learned High Court Government Pleader for the parties, the following points would arise for my consideration in this revision petition:
1. Whether the revision petitioners have made out a ground to interfere with the judgment of conviction and order of sentence passed by the trial Court which is confirmed by the appellate -8- NC: 2024:KHC:2426 CRL.RP No.370 of 2017 court as illegal, perverse, capricious and not sustainable under law:
2. What order?
8. I have carefully examined the material placed before this Court. It is the case of the prosecution that on the intervening night of 27th and 28th February, 2012 within the limits of Kavoor Police Station, with a common object of committing the theft the accused trespassed the KPTCL Building of Kavoor junction, Mangaluru, where electrical goods were stocked by PW1/CW1, forcibly broke open the lock of the KPTCL godown with the help of hammer and unlawfully entered into the said premises and committed theft of 20 bags of bolt and nuts and other electrical goods worth of Rs.1,62,250/- and shifted the same in tipper bearing No.KA-19/B-8321 of which the accused No.1 was the driver and accused 3 and 4 came to the spot in a Xylo jeep bearing registration No.KA-19/C-5899 belong to accused No.4 along with accused No.6 and all the accused entered the godown and committed theft of two bags of bolt and nuts and also committed theft of two bundles of aluminum rope and loaded the same into tipper lorry and unlawfully kept the same in the house of accused No.4. The worth of property -9- NC: 2024:KHC:2426 CRL.RP No.370 of 2017 is Rs.1,62,250/-. Thus, accused have committed offence punishable under Section 457 and 380 Indian Penal Code.
9. On a careful examination of the charges framed against the accused, it is crystal clear that, accused 3 to 6 who are the revision petitioners herein, have not committed lurking house trespass or break-open the lock of the KPTCL godown nor committed any offence punishable with imprisonment as contemplated under Section 457 of Indian Penal Code. With regard to offence punishable under Section 380 of read with Section 34 of Indian Penal Code is concerned, the prosecution has examined 13 witnesses.
10. PW1-Pushpananda Shetty, the complainant who is the contractor of KPTCL, has deposed as to the theft of articles from godown. He has deposed that he has lodged complaint to the police as per Exhibit P1 on 29th February, 2012, i.e. after lapse of two days from the date of occurrence of alleged incident. On receiving the complaint, Kavoor Police have registered a case in Crime No.40 of 2012 against unknown accused for commission of offence punishable under Sections 457 and 380 of Indian Penal Code and submitted First
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 Information Report to the court on 29th February, 2012 as per Exhibit P21. Thereafter, the police visited the spot and conducted spot panchanama in the presence of panchas as per Exhibit P2.
11. During the course of investigation, I.O. has arrested the accused on 09.03.2012. Thereafter, police have interrogated the accused 1 to 4 and recorded their voluntary statement. Based on this voluntary statement the Investigating Officer has secured the panchas and recovered properties shown in Exhibit P12-seizure mahazar in presence of panchas PW3 and PW5. PW3-Balakrishna Rai has deposed regarding the mahazar conducted by the police as per Exhibit P12, but he has not whispered anything against the accused therefore, this witness is treated as hostile witness by the prosecution. During cross-examination made by the Assistant Public Prosecutor, he has admitted the suggestion made by the APP that the police have seized the properties at the instance of accused No.2-Ananda under MO No.1. During the cross- examination of PW3, he has admitted that police have seized the MO No.1 on 29th March, 2012 and police have summoned him to police station on 29th March, 2012. PW5-Viond another
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 attester to the mahazar Ex.P12, he has deposed as to the mahazar conducted by the police as per Exhibit P12 and also seizure of properties. Thereafter, the investigating officer has inserted the same in property register in PF No.9/2012 and submitted the report to the police on 10.03.2012.
12. At this stage, learned senior counsel submits that on 12th December, 2012 on behalf of Accused No.1, an application was filed under section 457 of Code of Criminal Procedure to release i) TVS Star City Motor Cycle No: KA-19/V-2221; ii) Driving License iii) Election Identity Card and iv) Xiaomi Dual Sim Mobile Phone with BSNL and Uninor Sims; v) Bracelet and
vi) cash of Rs.3,520/- (Rupees Three Thousand Five Hundred and Twenty only) which are seized on 07th March, 2012 from the petitioner and detained in illegally without reporting same to the court. In this application it is stated that the petitioner/Accused No.1 Nataraj @ Rajesh illegally arrested on 07th March, 2012 and detained him in illegal custody till 09th March, 2012. After filling this application the trial court has passed an order on 12th April, 2012 calling upon the reports from the Investigating Officer as to the illegal seizure of properties shown in the application. The memo also sent to the
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 Investigating Officer as per Exhibit D1 and in Exhibit D1 the court has sent intimation to the Investigating Officer as under:
"As per the above cited order of this Court, you are hereby called upon to file your report regarding non reporting nor the return of the alleged seized and retained, i) TVS Star City Motor Cycle No: KA-19/V-2221;
ii) Driving License iii) Election Identity Card and iv) Forme Dual Sim Mobile Phone with BSNL and Uninor Sims; v) Bracelet of vie mized metals and vi) cash of Rs.3,520/-
(Rupees Three Thousand Five Hundred and Twenty only from the Petitioner / Accused No.2, Nataraj @ Rajesh, Aged 29 years, S/o Appunni R/O Kelagummana Estate, Mudigere Taluk, Chikkamagaluru on 07.03.2012, belonging to him, by 16.04.2012."
13. The learned counsel for revision petitioner filed memo as per Exhibit D2 after receiving the property. Exhibit D2 reveals as under:
"The undersigned respectfully submits that in view of unconditional return of i) TVS Star City Motor Cycle No:
KA-19/V-2221; ii) Driving License iii) Election Identity Card and iv) Forme Dual Sim Mobile Phone to the Petitioner / Accused No:2 on 13.04.2012 by Sri. Siddappa, the P.S.I., attached to Kavoor P.S., Mangalore, out of the six illegally seized and retained items since 07.03.2012."
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14. The learned senior counsel drew the attention of this court that the application filed on behalf of accused No.1 reveals that on 07th March, 2012, the Investigating Officer has arrested the accused and detained in illegal custody and the Investigating Officer has not reported as to the seizure of properties shown in the application filed under 457 of Code of Criminal Procedure. When the court has called the report from the Investigating Officer as to the seizure of property illegally as shown in the application and on receiving the memo from the court as per Exhibit D1, the Investigating Officer has released the property. Thereafter, the learned counsel for the petitioner i.e accused No.1, filed memo as per Exhibit D2 that Investigating Officer has released the property unconditionally. This conduct of Investigating Officer reveals that he has arrested the accused on 07th March, 2012 but he has not intimated the court as to the arrest of the accused at the earliest point of time and he has also not submitted the seizure report to the court at the earliest point of time as required under section 102 of Code of Criminal Procedure. The contents of Exhibit P12 reveals that the alleged incident took placed on 09th February, 2012 but the contents of Exhibit P12
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 panchanama reveals that the accused have committed theft on 27th March, 2012 and there is an over-writing while mentioning the date as 27th March, 2012. During the course of cross- examination of Investigating Officer, PW11 has not disputed the contents of Exhibits D1 and D2 but he has pleaded his ignorance about the release of properties. PW11 who has seized the property under mahazar Exhibit P12, has not deposed anything as to the date mentioned in Exhibit P12 as 27th March, 2012. PW11 has also not whispered anything as to delay in submitting the seizure report to the court as required under Section 102 of Code of Criminal Procedure. PW3 one of the attester to the mahazar Exhibit P12 has deposed in his examination-in-chief in paragraph 3 that the police summoned him to the police station as to the arrest of the accused who has stolen the properties on 29th March, 2012. It is the case of prosecution that the Investigating Officer arrested the accused on 09th March, 2012 at 12.00 pm near pump well circle, Mangalore. The arrest memo also reveals that accused no.1 - Nataraj @ Rajesh and accused No.2-Sharanappa arrested by the police on 09th March, 2012 at 12.00 pm near Pump Well, Mangalore City and another arrest memo pertaining to accused
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 no.3-Manikantan and accused no.4 Ananda, reveals that Investigating Officer has arrested them on 09th March, 2012 at 15.00 hrs. near Vidya Shaale, Jyothi nagar, Mangalore city. The contents of application filed on behalf of Accused No.1 under section 457 of Code of Criminal Procedure for release of properties which are illegally sealed from the possession of accused No.1 and release of properties by the Investigating Officer and the contents of Exhibit D2 reveals that the Investigating Officer has arrested the accused 1 to 4 on 07th March, 2012 at 12.00 pm. Though the Investigating Officer arrested the accused on 07th March, 2012, the investigating officer has not produced the accused within 24 hrs. from the date and time of arrest of accused before the court. Investigating Officer has suppressed the fact as to the arrest of accused no. 1 to 4 who are arrested on 07.03.2012. The Investigating Officer has created the documents i.e arrest memo in which he stated that he has arrested the accused 1 and 2 on 09th March, 2012 at 12.00 pm and he arrested the accused on 09th March, 2012 at 15.00 hrs. The Investigating Officer has not whispered anything as to the contents of Exhibits D1 and D2 and he has not explained why he has seized
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 the properties from the possession of the accused no.1 as shown in the application filed on behalf of accused no.1 and he has not explained why he has not inserted the properties which were seized from the possession of the accused no.1 which are shown in the application filed under 457 of Code of Criminal Procedure in property register. This conducts of Investigating Officer and also inconsistent dates of theft shown in Exhibit P12 reveals the Investigating Officer has suppressed the material facts and he has prepared the seizure mahazar in the police station and submits the same to the Court on 10th March, 2012.
The Investigating Officer has not seized any property from the possession of accused 5 and 6 only on the basis of voluntary statement of accused 1 to 4, the Investigating Officer has inserted accused 5 and 6 without any cogent, corroborative, believable and trust worthy evidence, when this court has opined that the prosecution has failed to prove the seizure of properties and mahazar Exhibit P12 at the instance of accused 1 to 12, the question of involving accused 5 and 6 does not arise.
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 A careful examination of above said lapses, material omissions and contradictions will create reasonable doubt as to the seizure of properties said to have been seized from the possession of the accused no.1 under mahazar Exhibit P12. Accordingly both Courts have failed to appreciate the evidence on record in accordance with law and facts. Hence the Judgment of conviction and order on sentence passed by the trial Court, which is confirmed by the appellate court is illegal, perverse and capricious and opposed to law and facts. Accordingly, I answer point No.1 in the affirmative. Regarding Point No.2:
For the aforesaid reasons and discussions, I proceed to pass the following:
ORDER
i) Revision Petition is allowed;
ii) The Judgment of Conviction and order on sentence passed by the 1st Additional Senior Civil Judge, Mangalore in CC.No 11/2013 dated 19.02.2015 which is confirmed by the Principal
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NC: 2024:KHC:2426 CRL.RP No.370 of 2017 Session Judge, Dakshina Kannada, Mangalore in Crl.A No.61/2015 and 83/2015 dated 23.03.2017 are set aside. The revision petitioner/Accused No.3 to 6 (Manikantan Mani, Gururaj, Nagaraja and Pavankumar) are acquitted for the commission of offences punishable under sections 457 and 380 of Indian Penal Code;
iii) Fine amount if any deposited by the accused, shall be returned to the accused in accordance with law.
iv) Send the copy of this order along with TCR to the concerned court.
Sd/-
JUDGE LNN,THM List No.: 1 Sl No.: 11