Karnataka High Court
Madappa @ Pillatti vs State Of Karnataka on 5 December, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF DECEMBER 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.341 OF 2013
BETWEEN:
Madappa @ Pillatti,
S/o Putta Mallappa,
Aged about 40 years,
R/o. Chunchanahalli Village,
Nanjangudu Taluk,
Mysore District-571301. .. Petitioner
(By Smt.Archana K.M., Amicus Curiae)
AND:
State of Karnataka,
by Office In Charge of Police Station,
Kavalande Police Station,
Nanjangud taluk,
Mysore Dist.-571 301. .. Respondent
( By Sri Vinayaka V.S., HCGP)
This Criminal Revision Petition is filed under Section 397
read with Section 401 of Cr.P.C. praying to set aside the
conviction and sentence passed by the Addl.Civil Judge and
JMFC, Nanjangud in C.C.No.195/2010 by his order dated
10.2.2012 and further set aside the order dated 11.1.2013
passed by the IV Addl.Sessions Judge at Mysore confirming the
conviction and sentence made in Criminal Appeal No.45/2012,
in the interest of justice and equity.
Crl.R.P.No.341/2013
2
This Criminal Revision Petition coming on for Hearing
through Physical Hearing/Video Conferencing Hearing this day,
the Court made the following:
ORDER
The present petitioner was tried as accused by the Court of learned Addl.Civil Judge and J.M.F.C., Nanjangudu, (hereinafter for brevity referred to as the `trial Court') in C.C.No.195/2010, for the offences punishable under Sections 457, 380, 511 of Indian Penal Code, 1860 (hereinafter for brevity referred to as the `IPC') and was convicted for the offences punishable under Sections 380, 457 of IPC by the judgment of conviction and order on sentence dated 10.02.2012 and was sentenced accordingly.
Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.45/2012, before the learned IV Addl.Sessions Judge, Mysuru, (hereinafter for brevity referred to as the `Sessions Judge's Court'), which after hearing both side, dismissed the appeal filed by the accused by its judgment dated 11.01.2013. Being Crl.R.P.No.341/2013 3 aggrieved by the same, the accused has preferred the present revision petition.
2. The summary of the case of the prosecution in the trial Court was that, on the night of 23.11.2009, PW-1 (CW-1) Channabasappa had been to his brother's house for dinner. When he came back to the house at about 11.30 p.m., he noticed the accused inside his house. Suspecting that the accused had trespassed his house for theft, he caught the accused red handed, tied him and produced the accused before the police along with his complaint at Ex.P-1. During the course of investigation, at the voluntary statement given by the accused, the police came to know that twenty days prior to 23.11.2009, the accused had committed a theft in the very same house of PW-1 and had stolen a golden Tali, silver Karadige (a very small box like container) and a Nokia Cell Phone, with a cash of `7,000/-. Claiming that at the instance of the accused, the stolen articles were recovered, the police after completing the investigation filed charge sheet Crl.R.P.No.341/2013 4 against the accused for the offences punishable under Sections 457, 380, 511 of IPC.
3. The accused appeared in the trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined seven witnesses from PW-1 to PW-7 and got marked documents from Exs.P-1 to P-7 and produced materials objects from MO-1 to MO-3. However, neither any witness was examined nor any documents were got marked on behalf of the accused.
4. The respondent - State is being represented by the learned High Court Government Pleader.
5. The trial Court and the Sessions Judge's Court's records were called for and the same are placed before this Court.
6. In view of the fact that the learned counsel for the revision petitioner (accused) failed to appear before this Crl.R.P.No.341/2013 5 Court on several dates of hearing, this Court by its reasoned order dated 29.10.2022, appointed learned counsel - Smt.Archana K.M., as Amicus Curiae for the petitioner/accused to represent him in this case.
7. Heard learned Amicus Curiae for the accused/revision petitioner and learned High Court Government Pleader for the respondent - State who are physically present in the Court and perused the materials placed before the Court and also the trial Court and Sessions Judge's Court records.
8. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court.
9. After hearing the learned Amicus Curiae for the petitioner and the learned High Court Government Pleader for the respondent, the only point that arise for my consideration in this revision petition is: Crl.R.P.No.341/2013 6
Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offence punishable under Sections 380, 457 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?
10. Learned Amicus Curiae for the petitioner in her arguments submitted that the evidence of PW-1 is not trustworthy. At one place, he has stated that he tied the accused to a pole in his house and made the police to come to his house. However, the complaint and the evidence of PW-7 shows that the complainant brought the accused to the police station by himself along with complaint at Ex.P-1. Thus, there is contradiction in the evidence of PW-1 which makes his evidence not believable.
She further stated that the alleged recovery has not been established by the prosecution. PW-6 - the Pawn Broker has stated that the Tali at MO-1 was not given by the accused, however, the police had taken it by force. Even with respect to the other articles i.e., MO-2 and Crl.R.P.No.341/2013 7 MO-3, PW-6 was not sure that it was pledged with him by the accused and by none else. Therefore, the alleged recovery is also full of contradictions, the benefit of which ought to have been given to the accused. However, the trial Court and the Sessions Judge's Court by certain assumptions and presumptions have erroneously held the accused guilty of the alleged offences.
11. Per contra, learned High Court Government Pleader for the respondent in his brief argument submitted that the accused was caught red handed by the complainant. The voluntary statement recorded by the Investigating Officer has revealed that the accused has committed theft in the house of very same complainant twenty days prior to the present incident dated 23.11.2009. It is based upon the voluntary statement of the accused, the recovery of the stolen articles has been made in the presence of panchas. The evidence of the Investigating Officer, as well as Pawn Broker proves the recovery beyond reasonable doubt. As such, it is Crl.R.P.No.341/2013 8 appreciating these facts, since both the trial Court and the Sessions Judge's Court have convicted the accused and confirmed his conviction for the alleged guilt respectively, the same does not warrant any interference at the hands of this Court.
12. A careful perusal of the charge sheet would go to show that the charge sheet alleges two offences against the accused, one is the accused wrongfully entering into the house of the complainant on the night of 23.11.2009 and alleged to have been caught red handed, which act is termed as a lurking house trespass with an intention to commit theft in the house of CW-1. The second incident is of alleged theft said to have been committed in the house of very same CW-1 twenty days prior to the second incident, which is dated 23.11.2009.
13. The charge framed against the accused by the trial Court however appears to be totally different and has resulted in the misreading of the charge sheet. The charge Crl.R.P.No.341/2013 9 levelled against the accused is of attempt to commit lurking house trespass or house breaking in the night, on the date of 23.11.2009 at about 11.30 p.m., as such, the offence under Section 457 read with Section 511 of IPC is levelled against the accused.
Second charge against the accused is of theft of a golden Tali, silver Karadige and a Nokia Cell Phone, with a cash of `7,000/- in the very same house of very same complainant on the very same day and time, as such, the charge of theft punishable under Section 380 of IPC is levelled against the accused.
Thus, according to the charge, the alleged lurking trespass in the night, as well, the offence of theft of three articles and a quantum of cash, both have taken place on the same night at the same place by the same accused.
Thus, prima facie the allegations made in the charge sheet and the charge levelled against the accused are not in synchronisation. There is apparently an error in framing Crl.R.P.No.341/2013 10 of the charge by the trial Court. However, the entire leading of the evidence by the prosecution has proceeded without disputing the charge and in the manner as though the accused has committed both the offences at the same time.
14. It is in the light of the above, when the evidence of the prosecution witnesses, who are seven in number, are seen, it can be noticed that the main witness is PW-1 (CW-1) Channabasappa, who has stated in his opening statement that since the accused had committed theft in his house about two years prior to the date of his evidence, he had lodged the complaint. However, even according to his complaint at Ex.P-1, on the night of the date 23.11.2009, no articles were stolen from his house. However, the complainant suspected that, in an alleged incident of theft which was said to have taken place about twenty days prior to the date 23.11.2009, wherein, a golden Tali, silver Karadige and a Nokia Cell Phone and a cash of `7,000/- were said to have been stolen, might have been committed by the accused. As such, with Crl.R.P.No.341/2013 11 suspicion, he had lodged the complaint. However, in his evidence, he has stated that, concluding that it was the accused who had committed the theft, he had lodged the complaint.
15. About the incident that occurred on 23.11.2009, the complainant has stated that, on the said day, the accused had come to his house to commit theft and was caught red handed. He stated that, on the said day, he had been to his elder brother's house to have dinner. After returning home in the night, he noticed that accused was inside his house and three tiles of the roof of the house were removed. After noticing the same and raising an alarm by yelling, he tied the accused there itself and informed the police. He handed over the accused to the police and lodged the complaint.
The witness further stated that a golden Tali, silver Karadige and a Nokia Cell Phone and a cash of `7,000/- were stolen in his house earlier and he also suspected that Crl.R.P.No.341/2013 12 the accused might have committed the said theft. The witness has further stated that, five to six months thereafter, the police had summoned him to the police station and shown the articles stating that they have been recovered at the instance of the accused. Stating so, the witness has identified the complaint at Ex.P-1 and a golden Tali, silver Karadige and a Nokia Cell Phone at MO-1, MO-2 and MO-3 respectively.
16. PW-2 (CW-2) Siddappa and PW-3 (CW-3) Gurumallappa have stated that, in connection with the theft, a panchanama was drawn near the house of the complainant Channabasappa, where at, their signatures were taken by the police on a mahazar. Stating so, the witness have identified their signatures on the panchanama at Ex.P-2.
17. PW-4 (CW-6) R.Krishna, the then Assistant Sub-Inspector of complainant-Police Station has stated about he visiting the scene of offence and drawing a scene Crl.R.P.No.341/2013 13 of offence panchanama as per Ex.P-3, recording the voluntary statement of the accused as per Ex.P-4 and based on the revelation, going to the shop of PW-6 - Pawn Broker and recovering the articles at MO-1 to MO-3 from his shop, recording the statements of few more witnesses and handing over further investigation to PW-8 Vijendrakumar, the other investigating Officer. He has also stated that said CW-8 has filed the charge sheet in the case.
18. PW-5 (CW-4) Lokesh though was projected as a pancha for both the scene of offence panchanama and alleged recovery panchanama, however, has supported the drawing of scene of offence panchanama as per Ex.P-3, but, did not support the case of the prosecution for drawing the recovery panchanama in his presence as per Ex.P-2.
19. PW-6 (CW-5) Dasharath Singh, the owner of Bharath Pawn Broker shop has stated that the police had Crl.R.P.No.341/2013 14 brought the accused to his shop stating that the accused had pledged stolen articles with him. After identifying the accused, he produced silver Karadagi and Cell Phone before the police stating that they were pledged with him for a sum of `500/-. However, the police stating that the accused had also pledged a golden Tali also, have forcibly collected a golden Tali from him and they drew a panchanama as per Ex.P-2.
20. PW-7 (CW-7) B.M.Nanjundaiah has stated about the complainant appearing before him in the early hours of 24.11.2009 and filing a complaint as per Ex.P-1 and producing the accused before him and also about he preparing a FIR as per Ex.P-7 and submitting the same before the Court.
The above evidence of the prosecution witnesses would go to show that, even according to PW-1, the alleged act of the accused said to have taken place on the night of 23.11.2009 was only that the accused had entered Crl.R.P.No.341/2013 15 his house, which according to the witness, by opening three tiles in the roof. Even according to the complainant, he raised an alarm and tied the accused to a pole in the house and then only informed to the police. Except the assumption of PW-1 that the accused had entered his house for committing theft, there is nothing on record to show that the accused had an intention to commit theft when he is said to have found in the house of PW-1. Moreover, though PW-1 has stated that accused was found in his house at that night, but, there is nothing on record to show, except the say of PW-1, as to how the accused entered the house. PW-1 no where has stated that while going to his brother's house, he had put a lock to the doors of the house, as such, the accused had no other way meant for anyone to enter the house. It is only the say of PW-1 that the accused had removed three tiles from the roof and entered the house, which has been denied from the accused side.
Crl.R.P.No.341/201316
21. In order to prove that the act of a person has resulted in a lurking house trespass, it is not just necessary to prove house trespass, but, it has to be proved that there is a house breaking and that house breaking was by any one of the six types shown in Section 445 of IPC and that house breaking was made with an intention to commit a criminal offence in the house where such a house breaking was made. It is only then it amount to a lurking house trespass.
In the instant case, there is nothing on record to show that the accused had entered the house of PW-1 through the roof after removing three tiles from the roof. Though PW-1 has stated that, but, none of the panchas examined by the prosecution or at least, the Investigating Officer in his evidence has stated that, an inspection of the alleged spot of the offence has shown that the accused had no other way to enter the house, except removing the tiles from the roof. Therefore, when there is no specific evidence to the effect that the complainant had applied the Crl.R.P.No.341/2013 17 lock to the house before going to his brother's house and that there were no other way for anyone to enter the house, except removing the tiles, as such, the alleged removal of three tiles in the roof had shown that accused had entered the house in an unusal manner and in an unusaul way i.e., by removing three tiles from the roof, the Court cannot presume by itself that the accused had entered the house only by removing three tiles in the roof.
Secondly, assuming for a moment that the accused was found in the house of PW-1 in the night, still, in order to convict the accused for an offence of lurking house trespass, which initially includes an offence of house trespass, the prosecution has to necessarily establish that the very purpose of the accused entering the house was for committing an offence. There is nothing on record to show that the accused had entered the house of PW-1 to commit an offence, including alleged theft. Except the say of PW-1 that by the presence of the accused, he thought that the accused had entered the house for committing Crl.R.P.No.341/2013 18 theft, there is nothing on record. In the circumstances of the case, it was necessary for the Investigating Officer to substantiate in his evidence as to looking at the scene of alleged act alleged to have been committed by the accused, how he drew an inference or what made him to draw an inference that the accused had entered the house of the complainant only with an intention to commit any criminal act, much less, the theft. Therefore, even if it is taken that the accused found in the house of PW-1/complainant on the alleged night, but, by that itself, it cannot be inferred or deduced that he had been there with an intention to commit criminal offence, much less, the theft.
22. The second phase of the charge sheet, which has been wrongly noted and that charge was framed by the trial Court was about the alleged theft.
According to the charge sheet, an alleged theft of a golden Tali, silver Karadige, Nokia Cell Phone and a cash Crl.R.P.No.341/2013 19 of `7,000/- though was said to be committed in the house of PW-1 (CW-1) himself, but, it was not on the date 23.11.2009 when the alleged lurking house breaking in the night was said to have been committed, but, it was twenty days prior to the said day. However, as observed above, the trial Court framed the charge for the alleged offence under Section 380 of IPC as though it was on the very same day of 23.11.2009, on which day, even according to the prosecution, no articles were stolen from the house of PW-1. As such, the evidence led by the prosecution remains unconnected with the charge framed by the trial Court with respect to Section 380 of IPC.
Without affecting the above observation of framing of a wrong charge against the accused, when I proceed to analyse the evidence of the prosecution witnesses on the said charge punishable under Section 380 of IPC is concerned, it can be noticed that, it is only through the alleged recovery said to have been made at the instance of Crl.R.P.No.341/2013 20 the accused, the prosecution is attempting to prove the alleged guilt against the accused.
23. Even according to the prosecution, so far as the alleged theft of four articles i.e., a golden Tali, silver Karadige, Nokia Cell Phone and a cash of `7,000/-, it is the guess work of the complainant that the accused might have committed the said theft. Even the evidence of PW-1-the complainant also shows that he suspected the hands of the accused for the alleged theft of those four articles from his house about twenty days prior to the date 23.11.2009. Thus, for proving the alleged offence punishable under Section 380 of IPC against the accused, the evidence of PW-1-complainant would not come to the rescue of the prosecution, except identifying the alleged stolen articles.
Even with respect to the identification of the alleged stolen articles by PW-1 is concerned, among the four articles said to have been stolen, the witness could able to Crl.R.P.No.341/2013 21 identify only two articles at MO-2 and MO-3. Admittedly, the alleged cash amount of `7,000/-, which was also said to be one among the stolen article, was not recovered by the police stating that the said amount was spent by the accused. The golden Tali at MO-1, though PW-1 stated that he is identifying, was revealed on his own by the very same PW-1 that it was not the very same Tali that was stolen, however, in place of the old Tali, a new Tali was made and given to him. As such, even according to PW-1/complainant, MO-1 is not the stolen article.
The evidence of PW-1 that MO-1 was not the one stolen from his house is further corroborated by the evidence of PW-6 Dasharath Singh, Pawn Broker, who too has stated that, though he returned silver Karadige and Cell Phone pledged by the accused, to the police, however, the police by force took golden Tali from his shop which was not pledged by the accused with him. The said evidence of PW-6 stands corroborated by the evidence of Crl.R.P.No.341/2013 22 PW-1 and thus MO-1 stands excluded from the identified alleged stolen articles.
24. According to the prosecution, the recovery of the alleged stolen articles was commenced at the alleged voluntary statement said to have been given by the accused before PW-4. To that extent, the evidence of PW-4 supports the case of the prosecution, where the Assistant Sub-Inspector has stated that the accused gave his voluntary statement before him as per Ex.P-4 stating that he had pledged the stolen articles and that he would take them to the place where he has pledged those articles, provided if they accompany him.
With respect to alleged recovery, which includes the accused leading the police and panchas to the shop of alleged pledgee (PW-6) and enabling the police to recover the stolen articles, the prosecution has mainly relied on the evidence of PW-2, PW-3, PW-4 and PW-5. PWs.2, 3 and 5 though were projected as panchas to the alleged seizure Crl.R.P.No.341/2013 23 panchanama at Ex.P-2, however, PW-5 has not supported the case of the prosecution and specifically stated that he is not aware of any recovery made in the instant case and that the panchanama at Ex.P-2 was not drawn in his presence. Thus, the evidence of only PW-2 and PW-3 remains.
Though PW-2 (CW-2) Siddappa in his evidence has stated that with respect to seizure of a golden Tali, silver Karadige and a Nokia Cell Phone, a panchanama was drawn, but, he himself has stated that the said panchanama was drawn near the house of PW-1 Channabasappa.
Similarly, PW-3 (CW-3) Gurumallappa has stated that the panchanama at Ex.P-2 was drawn near the house of PW-1 Channabasappa. He has not even stated as to the nature of the said panchanama. Thus, when PW-3 has not spoken about the nature of the panchanama or for what purpose the said panchanama was drawn, his mere Crl.R.P.No.341/2013 24 identifying his signature in the said panchanama would not result in the said panchanama being proved through him.
Further, though PW-2 has stated that the said Ex.P-1 was with respect to seizure of certain articles, but, according to him and so also according to PW-3, the said panchanama was drawn near the house of Channabasappa (PW-1). Neither of these witnesses have stated that Dasharath Singh, Pawn Broker has produced those articles in their presence and that at the instance of the accused, those articles were produced by the Pawn Broker.
Therefore, when according to PW-2 and PW-3, the said panchanama is said to have been drawn totally at a different place than the shop of the Pawn Broker, which is shown as the place in the panchanama at Ex.P-2, the evidence of PWs.2 and 3 also would not enure to the benefit of the prosecution. The only evidence that remains to corroborate the say of PW-4 is the evidence of Dasharath Singh - PW-6.
Crl.R.P.No.341/201325
25. Even the said witness also in his evidence has stated that it was the police who had brought the accused to his shop. Thus, nobody's evidence shows that it was the accused who had led the police and the team to the shop of PW-6 Dasharath Singh. Further, even according to PW-6, the police have recovered some more valuable articles which were unconnected with the accused.
Therefore, merely because PW-6 is said to have given articles at MO-2 and MO-3 to the police and PW-1 is shown to have identified said MO-2 and MO-3 as belonging to him, by that itself, it is not safe to hold that the recovery has been proved at the instance of the accused. The major lacuna in the evidence of PW-2 and PW-3, who are the alleged panchas to the recovery panchanama and the say of PW-6 about the police forcibly taking certain articles and revealing the alleged forced seizure as the stolen article in the instant case, which is further corroborated by the evidence of PW-1 in the identification of MO-1, further makes it unsafe to believe the version of the Crl.R.P.No.341/2013 26 prosecution with respect to the recovery and the alleged role of the accused in the alleged recovery.
However, both the trial Court and the Sessions Judge's Court did not notice these aspects in their proper perspective. On the other hand, merely because PW-1 is said to have spoken about a previous theft in his house twenty days prior to 23.11.2009 and identifying MO-1 to MO-3, have jumped to a conclusion that the recovery also has been proved, as such, the alleged guilt against the accused has stood proved.
26. Thus, the basic error committed by the trial Court in improperly framing of the charge itself would have been sufficient to allow the petition by setting aside the impugned judgments, still, further analysis of the evidence led by the prosecution would go to show that the prosecution could not able to prove the alleged guilt against the accused beyond reasonable doubt. Crl.R.P.No.341/2013 27 Accordingly, the impugned judgments warrants interference at the hands of this Court.
27. Accordingly, I proceed to pass the following:
ORDER [i] The Criminal Revision Petition stands allowed.
[ii] The impugned judgment of conviction and order on sentence dated 10.02.2012, passed by the learned Addl.Civil Judge and J.M.F.C., Nanjangudu, in C.C.No.195/2010, holding the accused guilty of the offence punishable under Section 380 and 457 of the Indian Penal Code, 1860, which was further confirmed by the judgment and order dated 11.01.2013, passed by the learned IV Addl.Sessions Judge, Mysuru, in Criminal Appeal No.45/2012, are hereby set aside;
[iii] The revision petitioner (accused) - Madappa @ Pillatti, son of Putta Mallappa, resident of Chunchanahalli village, Nanjangudu Taluk, Mysuru Crl.R.P.No.341/2013 28 District-571301, stands acquitted of the offences punishable under Sections 380, 457 of the Indian Penal Code, 1860.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for the revision petitioner - Smt.Archana K.M., recommends honorarium of a sum of not less than `4,000/- payable to her by the Registry.
Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge's Court along with their respective records without delay.
Sd/-
JUDGE bk/