Karnataka High Court
Mallappa vs The State Of Karnataka on 1 December, 2023
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NC: 2023:KHC-D:14049
CRL.RP No. 100206 of 2016
C/W CRL.RP No. 100207 of 2016
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
CRIMINAL REVISION PETITION NO. 100206 OF 2016 (397)
C/W
CRIMINAL REVISION PETITION NO. 100207 OF 2016
IN CRL.RP NO. 100206/2016
BETWEEN:
MALLAPPA S/O. LAXMAN KURANI,
AGE:27 YEARS OCC: COOLIE,
R/O: KUMBARHALLA,
TAL: JAMAKAHNDI DIST: BAGALKOT
...PETITIONER
(BY SRI. HARISH S MAIGUR, ADVOCATE)
AND:
SAMREEN THE STATE OF KARNATAKA,
AYUB
DESHNUR REPRESENTED BY PSI RURAL P.S.,
JAMAKHANDI,
THROUGH S.P.P.,
Digitally signed
by SAMREEN HIGH COURT OF KARNATAKA,
AYUB
DESHNUR DHARWAD BENCH.
Date:
2023.12.06 ...RESPONDENT
11:12:28 +0530
(BY SRI. M.B. GUNDAWADE, ADDL.SPP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC.
397 R/W SEC. 401 OF CR.P.C., PRAYING TO ALLOW THE
PETITION AND SET ASIDE THE IMPUGNED JUDGMENT PASSED
IN CRIMINAL APPEAL NO. 3/2013, DATED 08/07/2016 PASSED
BY THE LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE,
BAGALKOT, TO SIT AT: JAMAKHANDI, AT JAMAKHANDI,
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NC: 2023:KHC-D:14049
CRL.RP No. 100206 of 2016
C/W CRL.RP No. 100207 of 2016
CONFIRMING THE ORDER PASSED IN C.C.NO. 102/2011,
PASSED BY THE PRINCIPAL CIVIL JUDGE AND 1ST ADDL. JMFC
AT JAMAKHANDI, DATED 29/12/2012 AND CALL FOR THE
RECORDS.
IN CRL.RP NO. 100207/2016
BETWEEN:
NITYANAND S/O. SIDDAPPA PUJARI,
AGE:24 YEARS OCC: COOLIE,
R/O: KUMBARHALLA,
TAL: JAMAKHANDI, DIST: BAGALKOT.
...PETITIONER
(BY SRI. HARISH S. MAIGUR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY PSI RURAL P.S.,
JAMAKHANDI,
THROUGH S.P.P.,
HIGH COURT OF KARNATAKA, DHARWAD BENCH.
...RESPONDENT
(BY SRI. M.B. GUNDAWADE, ADDL.SPP)
THIS CRIMINAL REVISION PETITION IS FILED IS U/SEC.
397 R/W SEC. 401 OF CR.P.C., SEEKING TO ALLOW THE
PETITION AND SET ASIDE THE IMPUGNED JUDGMENT PASSED
IN CRIMINAL APPEAL NO. 44/2013, DATED 08/07/2016
PASSED BY THE LEARNED I ADDL. DISTRICT AND SESSIONS
JUDGE, BAGALKOT, TO SIT AT: JAMAKHANDI, AT:
JAMAKHANDI, CONFIRMING THE ORDER PASSED IN C.C.NO.
102/2011, PASSED BY THE PRINCIPAL CIVIL JUDGE & 1ST
ADDL. JMFC, AT JAMAKHANDI, DATED 29/12/2012. AND
CONSEQUENTLY ALLOW THE PETITION FILED BY THE
PETITIONER AND CALL FOR RECORDS.
THESE PETITIONS, COMING ON FOR FURTHER HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-D:14049
CRL.RP No. 100206 of 2016
C/W CRL.RP No. 100207 of 2016
ORDER
These two revision petitions arise out of common judgment of conviction and order on sentence passed by the Principal Civil Judge and I-Additional JMFC at Jamakhandi (for short "Trial Court") in C.C.No.102/2011 dated 29.12.2012 and confirmed by the I-Additional District and Sessions Judge, Bagalkot sitting at Jamakhandi (for short "First Appellate Court") in Criminal Appeal No.3/2013 and Criminal Appeal No.44/2013 vide two separate judgments dated 08.07.2016.
2. Accused No.1 in C.C.No.102/2011 preferred appeal in Crl.A.No.3/2013 and accused No.2 in C.C.No.102/2011 preferred appeal in Crl.A.No.44/2013 challenging the judgment of the Trial Court, but both the appeals were dismissed against which accused No.1 filed Crl.R.P.No.100206/2016 and accused No.2 filed Crl.R.P.No.100207/2016.
3. For the purpose of convenience, the parties to this revision petition are referred to as per their rank before the Trial Court.
4. The Trial Court acquitted accused No.3 and 4 and the State has not preferred any appeal against them. -4-
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5. Brief and relevant facts leading to these revision petitions are as under:
One Appanna Goudappa Balulmatti lodged a complaint on 01.09.2010 at 6.30 p.m., by appearing before the Assistant Sub-Inspector of Police, Jamakhandi Rural Police Station alleging that in the address mentioned in the complaint he is residing with his family. He has got a landed property bearing R.S.No.106 situated at Linganur village. By the side of his landed property, there exist a stream belongs to the Government. During rainy season, for three months water flows in the said stream and for the purpose of irrigating his landed property, he has installed an Electric Motor. It is stated by him that on 20.08.2010 as usual he switched off the said Electric Motor at 9.00 p.m. and returned to his house. On 21.08.2010 in the morning at 9.00 a.m. when he went to his landed property to start his Electric Motor for the purpose of irrigating his crops, he noticed missing of his Texmo Company 3 HP electric motor worth Rs.5,000/-. He came to know that, some unknown persons have committed theft of his electric motor.
With these allegations, he lodged a complaint before the -5- NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 Jamakhandi Rural PS, which was registered in Crime No.131/2010 and the criminal law was set in motion.
6. The records of the case do reveal that during the course of investigation, accused No.1 to 4 were arrested and at the instance of accused No.1 and 2, the said electric motor as well as one motorcycle were seized based upon the voluntary statement of accused No.1 to 4. The investigation officer went to the scene of offence and conducted panchanama and after arresting all the accused, seized the electric motor pertaining to this case and after completion of investigation by fulfilling the formalities of investigation, has filed charge sheet against the accused persons.
7. To substantiate the case of the prosecution, the prosecution let in evidence of eight witnesses before the Trial Court as PW1 to PW8 and got marked Ex.P1 to Ex.P7 and signatures thereon. So also, got marked material object as M.O.1 and closed the prosecution evidence. The learned Trial Court after closure of evidence of the prosecution, having heard the arguments of both sides, found accused No.1 and 2 guilty of the offence under Section 379 of IPC and sentenced them to -6- NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 undergo simple imprisonment for a period of six months. Accused No.1 has already undergone 72 days custody and accused No.2 has already undergone 16 days custody. This judgment of conviction and sentence passed by the Trial Court was challenged by accused No.1 and 2 by preferring the aforesaid appeals before the First Appellate Court. However, the said appeals were dismissed by confirming the judgment of the Trial Court. This is how both the accused have filed these revision petitions challenging both the judgments.
8. It is argued by the counsel for the petitioners Sri. Harish M Maigur, advocate, that there is no evidence placed on record by the prosecution that it was accused No.1 and 2, who have committed the offence. So far as recovery of M.O.1- Electric Motor is concerned, it is not duly proved in accordance with law. He submits that, in a case of present nature, recovery of material object from the possession of the accused plays an important role. When recovery is not proved in accordance with law, the accused persons cannot be held guilty of committing offence under Section 379 of IPC. The PSI, Jamakhandi has made an attempt to arrest accused persons on false and flimsy grounds. He submits that, the evidence of witnesses do not -7- NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 inspire any confidence in the mind of the Court to prove that, accused No.1 and 2, have committed the offence. Therefore, it is submitted that, as there is no linking evidence connecting these accused persons in the commission of the alleged crime, it is prayed by the counsel for the petitioners in both the petitions to allow the criminal petitions and set aside the judgment of the Courts below.
9. As against this submission, learned Additional SPP Sri.M.B.Gundawade submits that the evidence of PW4 and PW7 is clear about the seizure of M.O.1 from the possession of accused persons. Therefore, when there is seizure of the said M.O.1 from the possession of the accused persons, their evidence can be accepted. The Trial Court as well as the First Appellate Court has rightly appreciated the evidence placed on record and found accused No.1 and 2 guilty of committing offence under Section 379 of IPC. It is submitted that, accused No.1 and 2 are responsible for the commission of theft of M.O.1 from the lawful possession of the complainant. Hence, it is prayed by him to dismiss both the criminal revision petitions. -8-
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10. I have given my anxious consideration to the arguments of both the sides and meticulously perused the records.
11. The points that would arise for consideration is as under:
"i) Whether the findings of the trial Court which is confirmed by the First Appellate Court with regard to commission of guilt of theft of M.O.1-electric motor by the accused No.1 and 2 suffers from infirmity, perversity and require interference by this Court?"
12. So far as complaint is concerned, the complainant in his complaint has stated with regard to theft of his Texmo 3 HP Electric Motor, which was installed in his property bearing R.S.No.106 of Linganur village. According to him, on 20.08.2010 at 9.00 p.m. as usual he switched off the said Electric Motor and returned to his house. On 21.08.2010 when he went to his landed property at 9.00 a.m. to start the electric motor, he found it missing. The said motor was worth Rs.5000/-. According to him, the said theft was committed on 20.08.2010 but he lodged the complaint on 01.09.2010. There is a delay in filing the complaint. The said delay has not been -9- NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 explained by the complainant either in complaint or spoken to before the Court.
13. The investigating officer visited the place of incident and conducted panchanama as per Ex.P2 in the presence of panchas. Thus, the theft of electric motor alleged by the complainant is proved by the prosecution through the evidence of complainant as well as the contents of the complaint.
14. Merely because the prosecution is able to establish the theft of M.O.1-electric motor from the lawful possession of the complainant, that does not mean that it was accused No.1 and 2, who have committed the offence. In a case of present nature, recovery of M.O.1 from the possession of accused No.1 and 2 plays an important role. If a person is found in possession of the property, the presumption is that either he may be owner of the property or he is receiver of stolen property from others or he has stolen it etc. In this case, to ascertain the same, we have to read the oral and documentary evidence led by the prosecution.
15. Ex.P3 is the seizure panchanama prepared by the police. As per the contents of Ex.P3, at the instance of accused
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NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 No.1 and 2, the said panchanama was prepared and there was a seizure of motorcycle as well as 3HP Texmo Company current motor. At the instance of the accused only Ex.P4 is prepared.
16. Evidently, the PW1-complainant in this case is not an eyewitness to the incident. According to him, he lodged a complaint on noticing missing of M.O.1 from his landed property. Thereafter, after 10 to 12 days, he was called by the police and there police showed the motor to him. He identified that the said electric motor belongs to him. He also deposed with regard to preparation of panchanama by the police after filing of the complaint. So, to the extent of he lodging complaint and identifying M.O.1, the evidence of this PW1 has to be accepted.
17. PW2-Hoovappa Bharamappa Huhakar and PW3- Dyamanna Murigenappa Amuti are panchas to Ex.P2. These two witnesses have completely turned hostile and nothing worth is elicited from their mouth so as to disbelieve their version spoken in their examination-in-chief. Therefore, the evidence of PW2 and PW3 would not help the case of the prosecution.
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18. PW4-Basappa Ammanna Mali is a witness, who was called upon by the police to the police station. When he went to the police station, he noticed the presence of accused No.1 as well as electric motor and also a motorcycle. It was the police, who showed the said motorcycle and electric motor to this witness. That means, at the instance of the accused persons M.O.1 has been seized by the police as per the case of the prosecution. But evidence of PW4 shows that, it was police who showed the motorcycle and current motor to him. He was not accompanied with the police when the said seizure was conducted. According to him, in his presence Ex.P4 was prepared. It is the case of the prosecution that, at a bus stand the accused were found in possession of the said motorcycle as well as electric motor. But there, the police have not seized the material objects and have brought it to the police station and then seized them. A quite interesting investigation has been carried out by the police that though they found the motorcycle and current motor at bus stand, but no panchanama was prepared at that place. It was the police who showed the said material objects to the witness as per the evidence of this PW4. So, where exactly the said material objects were found and
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NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 from whose possession the said material objects were seized is missing in this case.
19. PW5-Manju Devendrappa Badiger also speaks in similar words. According to his evidence, he was also called by the police to the police station. There, he found the presence of accused persons. The police took him along with accused persons to the place where the accused took and panchanama was prepared. At the instance of the accused persons, spot panchanama was prepared. In his presence no seizure was conducted. Whether the accused were really in possession of the said theft materials is not explained by this witness.
20. PW6-Basappa Balavalamatti is a witness in whose presence the said M.O.1 was seized in the police station. Whether really the accused were found in possession of the said material objects has not been explained by this witness also. He has been turned hostile.
21. Then remains the evidence of PW7-the police officer. Based upon the complaint, he went to the scene of occurrence after registering the crime and set the criminal law into motion. To the extent of conducting investigation, his
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NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 evidence has to be accepted. So, also PW8-Balachandra Dundappa Lakkam, PSI, was the investigation officer at the relevant time.
22. In a case of present nature, on scrupulous reading of the evidence of the witnesses, the very seizure of the said M.O.1 from the possession of accused with identification of accused as real persons, who were found in possession of the said M.O.1, is missing. The said seizure was conducted in police station in the presence of the witnesses. So, there is no proper investigation being done by the investigating officer so as to prove the very recovery of M.O.1 from the possession of the accused persons. So, in the absence of acceptable evidence with regard to seizure, the other evidence placed on record by the prosecution would not help the case of the prosecution.
23. As it is a case of theft, the recovery of the material object plays an important role, which is missing in this case. Therefore, if all these factual features coupled with the position of law with regard to recovery of M.O.1 is read together, a doubt arises in the case of prosecution and that benefit of doubt has to be extended to the accused persons. Therefore,
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NC: 2023:KHC-D:14049 CRL.RP No. 100206 of 2016 C/W CRL.RP No. 100207 of 2016 the prosecution has utterly failed to prove the guilt of the accused persons beyond reasonable doubt. Though it is argued by the learned Additional SPP that in a revision, this Court cannot sit as an appellate Court but as there is no proper reasons assigned by the Trial Court as well as the First Appellate Court to hold accused No.1 and 2 guilty of committing the theft this Court has to interfere into such findings. Therefore, the revision petitions filed by the petitioners-accused No.1 and 2 deserve to be allowed. Accordingly, for the aforesaid reasons, I answer the above point in favour of accused No.1 and 2 and against the prosecution. Resultantly, I pass the following:
ORDER
i) Both the revision petitions are allowed.
ii) The judgment of conviction and order on sentence passed by the Trial Court against accused No.1 and 2 for the offence under Section 379 of IPC, which is confirmed by the First Appellate Court are hereby set aside.
iii) Consequentially, accused No.1 and 2 are acquitted of the charges leveled against them for the offence under Section 379 of IPC.
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iv) The bail bonds of the accused No.1 and 2 shall stand cancelled and they are set at liberty.
v) The deposit of fine amount, if any, made by the accused No.1 and 2 is ordered to be refunded to them digitally on proper identification.
vi) Send back the records along with a copy of this judgment.
Sd/-
JUDGE YAN LIST NO.: 1 SL NO.: 14