Karnataka High Court
Praveen B vs The State Of Karnataka By on 15 June, 2023
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NC: 2023:KHC:20693
CRL.RP No. 1164 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1164 OF 2015
BETWEEN:
1. PRAVEEN B
S/O DUGGAPPA GOWDA
AGED ABOUT 29 YEARS
R/O BAJANTHADKA HOUSE
IVARNADU VILLAGE
SULLIA TALUKA
DAKSHINA KANNADA DISTRICT - 574 239.
2. P BALAKRISHNA
S/O P.RAMACHANDRA
AGED ABOUT 32 YEARS
R/O DARKASTHU HOUSE
IVARNADU VILLAGE
Digitally
signed by N SULLIA TALUKA
UMA
Location: DAKSHINA KANNADA DISTRICT - 574 239.
HIGH COURT
OF
KARNATAKA 3. LOKESH K
S/O DHANANJAYA
AGED ABOUT 29 YEARS
R/O KATHLADKA HOUSE
IVARNADU VILLAGE
SULLIA TALUKA
DAKSHINA KANNADA DISTRICT - 574 239.
...PETITIONERS
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CRL.RP No. 1164 of 2015
(BY SRI P.B. UMESH, ADVOCATE FOR
SRI R B DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
SULLIA POLICE STATION
DAKSHINA KANNADA DISTRICT - 574 239.
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED 05.10.2015
IN CRL.A.NO.147/2011 PASSED BY THE V ADDL. DIST. AND
S.J., D.K., MANGALORE, SITTING AT PUTTUR, D.K. AND
JUDGMENT AND ORDER DATED 29.08.2011 IN
C.C.NO.1069/2009 PASSED BY THE CIVIL JUDGE AND JMFC,
SULLIA, D.K., AND ACQUIT THE PETITIONERS OF THE
CHARGES LEVELED AGAINST THEM.
THIS CRIMINAL REVISION PETITION, COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 1164 of 2015
ORDER
1. This revision petition is filed by the petitioners, being aggrieved by the judgment of conviction and order of sentence dated 29.08.2011 in C.C.No.1069/2009 on the file of the Court of the Civil Judge and J.M.F.C., Sullia, D.K., and its confirmation judgment and order dated 05.10.2015 in Crl.A.No.147/2011 on the file of the Court of V Additional District and Sessions Judge, D.K., Mangalore, Sitting at Puttur, wherein the petitioners / accused were convicted for the offence punishable under Sections 457 and 380 of Indian Penal Code (for short 'IPC').
2. The petitioners are the accused before the Trial Court and appellants before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the prosecution that, on 26.03.2009, a theft said to have occurred in the areca nut shop of the complainant. It is further stated that, the complainant was doing areca nut business, he had nine bags of areca nuts which were weighing 75 kgs., each. The said gunny bags were marked as NT-9. According to the prosecution, the said -4- NC: 2023:KHC:20693 CRL.RP No. 1164 of 2015 incident had occurred on 20.03.2009. However, complaint came to be lodged by the complainant on 26.03.2009. After registering the FIR, the respondent - police conducted investigation and submitted the charge sheet.
4. The prosecution, in order to prove its case, examined 9 witnesses and got marked 18 documents and also identified M.O.1 to M.O.15. On the other hand, the accused have not led any evidence nor marked any documents on their behalf. The Trial Court found that, the petitioners are guilty for the offences stated supra. On appeal being filed, the Appellate Court also confirmed the judgment of conviction passed by the Trial Court. Being aggrieved by the same, the petitioners have preferred this revision petition seeking to set aside the concurrent findings.
5. Heard Shri P.B.Umesh, learned counsel for the petitioners and Shri Rahul Rai.K., learned High Court Government Pleader for the respondent - State.
6. Learned counsel for the petitioners contending inter-alia that, the delay in lodging the complaint creates a -5- NC: 2023:KHC:20693 CRL.RP No. 1164 of 2015 doubt and the same has not been explained by the complainant properly. The said delay in lodging the complaint is fatal to the case of the prosecution. This aspect had not been considered by the Courts below while appreciating the facts and circumstances of the case.
7. It is further submitted that, the seizure mahazar has not been proved properly by the prosecution. In the absence of the said seizure mahazar, the conviction ought not have been recorded against the petitioners.
8. It is further submitted that, though the prosecution tried to prove that the bags containing areca nuts were allegedly seized at the instance of accused No.1, both PW.4 and PW.7 stated to be independent mahazar witnesses have turned hostile. However, PW.5 - Satish and PW.6 - Chetan, who are independent witnesses to the seizure mahazar, supported the seizure of autorickshaw, which is marked as Ex.P7 and seizure of areca nut gunny bags are marked as Ex.P13. They have not supported the case of the prosecution in spite of supporting the seizure mahazar of autorickshaw, therefore, the conviction ought not to have been recorded against the petitioners. -6-
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9. The prosecution also considered PWs.5 and 6 as the witnesses to seizure mahazar of areca nut, which is marked as Ex.P13. Their evidence with respect to seizure of areca nut bags ought not to have been considered by the Trial Court as PWs.5 and 6 are the stock witnesses and they were called by the investigating officer from another village. Having submitted thus, learned counsel for the petitioner seeks to allow the petition.
10. Per contra learned High Court Government Pleader (for short "HCGP") justifying the concurrent findings and submitted that, the delay has been explained properly by the complainant and it is stated in his evidence that, he was searching for the stolen goods from various known sources and therefore, he did not lodge the complaint within time.
11. It is further submitted that, mere delay in lodging the complaint may not be fatal to the case of the prosecution, since PWs.5 and 6 have supported the case of the prosecution, not only in respect of seizure of areca nut bags but also seizure of autorickshaw.
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12. It is further submitted that, the complainant was doing his business in name and style as "Nidube Traders", accordingly, the gunny bags were marked as NT-9. The said bags were seized at the instance of the accused No.1 in his house, which clearly indicates that, he had stolen five areca nut bags from the shop of the complainant. PWs.5 and 6 have supported the seizure mahazars of autorickshaw and areca nut bags. Hence, the prosecution has proved the case beyond all reasonable doubt that the petitioners have committed theft of areca nut bags and there is no error or illegality in convicting the accused / petitioners. By making such submission, learned HCGP justified the conviction recorded by the Courts below and prays to dismiss the petition.
13. Having heard the rival contentions urged by the learned counsels for the respective parties and also perused the judgments of the Courts below, the points which arise for my consideration are:
i) Whether the concurrent findings recorded by both the Courts below in convicting the petitioners -8- NC: 2023:KHC:20693 CRL.RP No. 1164 of 2015 for the offence under Sections 457 and 380 of IPC are sustainable?
ii) Whether the petitioners have made out grounds to interfere with the concurrent findings recorded by both the Courts below for conviction?
14. This Court being a Revisional Court, is precluded from appreciating the evidence of the witnesses. However, can ascertain from the evidence that any error or irregularity is committed by the Courts below in convicting the accused / petitioner. To arrive at such conclusion, the Revisional Court needs to have a cursory look not only on evidence, but also the law in that regard.
15. As per the evidence of PW.1, a theft had occurred in his shop and five bags of areca nut were stolen by unknown persons. It is further stated that, a door of the said shop was broken and the said incident had occurred on 20.03.2009. However, PW.1 lodged a complaint on 26.03.2009. In the evidence of PW.1, in spite of having knowledge about the theft of the areca nut bags, without lodging any complaint, he was -9- NC: 2023:KHC:20693 CRL.RP No. 1164 of 2015 doing areca nut business regularly from 20.03.2009 to 26.03.2009. The act of PW.1 appears to be unnatural and creates a doubt regarding theft of areca nuts in his shop.
16. The Trial Court while appreciating the evidence of PWs.5 and 6 and also the seizure mahazars, which were marked as Exs.P7 and P13, failed to notice the admission of PW.5. PW.5 in his cross-examination has admitted that, he has affixed his signature in the police station to the said mahazars. However, the evidence of PW.6, who is also a witness to the said seizure mahazars, stated that, he has affixed his signature at the spot along with PW.5. This discrepancy should be considered by the Courts below as material contradiction. Having failed to notice such material contradiction and also failed to appreciate the evidence properly and convicting the petitioners, relying on the evidence of the said seizure mahazars appears to be erroneous and the said conviction deserves to be set aside. It is needless to say that, in a case of theft, if the witnesses of seizure mahazar have not supported the case properly, the Courts cannot act upon such seizure mahazar. In this case, the prosecution has failed to prove the
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NC: 2023:KHC:20693 CRL.RP No. 1164 of 2015 seizure of areca nut bags from accused No.1. Hence, the accused persons are entitled for acquittal.
17. In the light of the observations made above, the points which arose for my consideration are answered as under:-
Point No.(i) - "Negative"
Point No.(ii) - "Affirmative"
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence dated 29.08.2011 passed in
C.C.No.1069/2009 by the Court of the Civil Judge and J.M.F.C., Sullia and judgment and order dated 05.10.2015 passed in Crl.A. No.147/2011 by the Court of the V Additional District and Sessions Judge, D.K., Mangaluru, Sitting at Puttur, D.K., are set aside.
(iii) The petitioners are acquitted for the offence under Sections 457 and 380 of IPC.
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(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE BSS List No.: 1 Sl No.: 50