Karnataka High Court
Lokesh vs State Of Karnataka on 16 January, 2014
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE PRADEEP D. WAINGANKAR
CRIMINAL REVISION PETITION NO. 1045/2009
BETWEEN:
1. LOKESH
S/O VENKATASHETTY
AGED ABOUT 30 YEARS
R/AT LOKANAHALLI VILLAGE
KOLLEGALA TALUK
CHAMARAJNAGAR DISTRICT.
2. MADAIAH @ MAHADEVA
S/O MARISHETTY
AGED ABOUT 30 YEARS
R/AT LOKANAHALLI VILLAGE
KOLLEGALA TALUK
CHAMARAJNAGAR DISTRICT.
...PETITIONERS
(BY SRI Y.S. SHIVA PRASAD, ADV.,)
AND:
STATE OF KARNATAKA
BY HENNUR POLICE
REP. BY S.P.P.
HIGH COURT BUILDINGS
BANGALORE - 560001.
... RESPONDENT
(BY SRI. NASRULLA KHAN, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397(1) CR.P.C. PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION DATED 20.06.2007
PASSED BY THE ADDL. CIVIL JUDGE (JR.DN.) & J.M.F.C.,
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KOLLEGALA, IN C.C. NO. 606/2003 AND CONFORMED BY
THE APPELLATE IN CRL.A. NO. 13/2007 DATED
03.10.2009 PASSED BY DIST., AND SESIONS JUDGE,
CHAMARAJANAGAR AND ACQUIT THEM FROM THE
CHARGES P/U/S 457 AND 380 OF IPC INCLUDING THE
FINE AMOUNT IMPOSED.
THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This Criminal Revision Petition under Section 397(1) of Cr.P.C. is directed against the order dated 03.10.2009 in Criminal Appeal No.13/2007 on the file of the District and Sessions Judge at Chamarajnagar, dismissing the appeal while confirming the judgment of conviction and sentence of the accused in C.C.No.606/2003, dated 20.06.2007 on the file of the Additional Civil Judge, Junior Division and JMFC at Kollegal.
2. The revision petitioners were accused Nos.1 and 2 before the Magistrate. The case of the prosecution is that on 19.02.2002, at about 2.30 am, in TRR Camp, both the accused No.1-Lokesh and 2- Madaiah, with their common intention trespassed into 3 the inspection bunglow of complainant by removing the tiles and committed theft of Radio, Tape-Recorder, Battery and such other articles worth Rs.6,000/- belonging to the complainant and thereby they committed the offences punishable under Sections 457 and 380 of IPC. The complaint came to be lodged before the concerned Police Station, who during the course of investigation recovered the stolen articles from the possession of the accused Nos.1 and 2 and filed a charge-sheet for the offences under Section 457 and 380 of IPC on the file of the Additional Civil Judge, Junior Division and JMFC, Kollegala, who in turn took cognizance. The accused appeared before the Magistrate and they pleaded not guilty to the charges. As such, in order to establish the charges levelled against them, the prosecution examined as many as 10 witnesses as PW1 to PW10 and marked Exs.P1 to P6 apart from MO1 to MO3. The Magistrate upon hearing the arguments and upon consideration of the evidence placed on record, found both the accused guilty of the 4 offences punishable under Sections 457 and 380 of IPC and sentenced them to undergo Simple Imprisonment for a period of one year each for the offence under Sections 457 and 380 of IPC by judgment dated 20.06.2007.
3. The accused preferred Criminal Appeal No.13/2007 before the District and Sessions Judge, Chamarajanagar, who in turn upon re-appreciation of the evidence dismissed the appeal and confirmed the conviction of both the accused under Sections 457 and 380 of IPC but modified the sentence by directing them to undergo Simple Imprisonment for six months and to pay fine of Rs.1,000/- and in default to undergo Simple Imprisonment for 10 days for each of the offences. Aggrieved by the judgment of conviction passed by both the Courts below, this Revision Petition is preferred questioning the legality and correctness of the orders passed by both the Courts below.
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4. I have heard the learned counsel for the revision petitioners and learned High Court Government Pleader for the respondent-State.
5. The point that arises for my consideration is:
"Whether the impugned judgment of conviction and sentence calls for my interference?"
6. My finding is in the affirmative for the following reasons.
7. The learned counsel appearing for the petitioners would submit that both the Courts below have not appreciated the evidence placed on record in its proper perspective and thereby it has led to miscarriage of justice. As I have already stated that in order to prove the charges, the prosecution examined 10 witnesses. PW1-L.Jayashekar, who is complainant, working as a Branch Manager of Syndicate Bank, Wodeyarapalya Branch. He has stated that both the accused are not known to him, but he had seen them in 6 Honnur Police Station. His further evidence is that on 19.10.2002, on Saturday, after office hours, he had been to see the garden of one of his customer and where he stayed during that night. Next day, when he came to his house at about 12.00 noon, he noticed that by removing tiles of the roof of the house, someone entered his house and stolen Suitcase and the clothes therein and also Suitcase of the Assistant Manager, who was also residing with him in the said house apart from Radio, Watch, Tape-recorder etc., So immediately he gave information to his higher officer and went to Honnur Police Station and lodged a complaint as per Ex.P1. Further, he has stated that next day the police came and conducted panchanama of the house as per Ex.P2. On 16.06.2003, he was called to the Police Station where he was shown some of the articles that were stolen which were seized under a panchanama- Ex.P3. But, PW1 is not an eye witness and he has categorically stated that the accused were not known to him.
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8. PW2 is the Assistant Manager of Syndicate Bank. His evidence is in the same line as that of PW1. He is also not an eye witness to the incident. PW3- Siddamma, was working as maidservant in the house of PW1. Her evidence is when she opened the door of the house next day of the incident, she has found the articles in the house were scattered here and there and she also observed that the tiles of the roof were removed and immediately she passed on the information over telephone to PW1. PW4-Ningashetty, turned total hostile to the prosecution case. PW4 and PW5 are the panchas to the seizure panchanama Ex.P5 whereunder the stolen articles said to have been seized. But both of them have turned hostile. PW6-Mallikarjuna, is a pancha to the spot panchanama, who has admitted for having put his signature. PW8-Ravishbabu is Police Head Constable working in Honnur Police Station, who was entrusted with a duty to apprehend the accused and therefore he went to Lokkanahalli village along with other Police Constables where he received an 8 information that the accused No.1-Lokesh is in his house. He went to the house and arrested him and produced him before the police station and so also thereafter he went to Boredoddi village and secured the presence of another accused-Madaiah and produced before the Police Station. He has denied the suggestion for neither he went to Lokkanahalli village nor he went to Boredoddi village and secured the presence of the accused. PW9-D.Siddaraju, who also accompanied PW8 to the house of both the accused and brought them to the Police Station. PW10-Marilingaiah, who has spoken about the receipt of the complaint from the complainant and registration of the Crime No.95/2002 on the strength of said complaint and thereafter he having gone to the spot and drawn a panchanama as per Ex.P2. He has further stated for having recorded the voluntary statement of the accused and for having recovered the stolen articles-MO1 to MO3 from the possession of the accused. Both the witnesses to the seizure panchanama to stolen articles (MO1 to MO3) 9 said to have been seized have turned hostile. Though PW10-PSI has spoken about seizure of MO1 to MO3 from the possession of accused Nos.1 and 2, his evidence to that effect does not inspire the confidence of the Court. The way in which the presence of the accused has been secured from the respective houses is also doubtful. When seizure of the articles is not proved by cogent and convincing evidence, then there is no other evidence to link these accused to the alleged crime said to have been committed by them. Though the prosecution has placed some evidence on record in order to connect the accused to the alleged crime, the evidence is not sufficient so as to bring home the guilt of the accused. But both the Courts below have erroneously held that seizure has been proved, though both the witnesses to the seizure panchanama have turned hostile. Both the Courts have misread the evidence and thereby the orders passed by both the Courts below have led to miscarriage of justice. Hence, the orders call for my interference.
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9. Accordingly, Criminal Revision Petition is allowed. The order dated 03.10.2009 in Criminal Appeal No.13/2007 on the file of the District and Sessions Judge, Chamarajanagar, and Order dated 20.06.2007 in C.C.No. 606/2003 on the file of Additional Civil Judge, Junior Division and JMFC, Kollegal, are hereby set aside. Both the accused are acquitted of the charges under Sections 457 and 380 of IPC levelled against them.
Sd/-
JUDGE PMR