Karnataka High Court
Shiva S/O Kannayya Gouda vs The State Of Karnataka on 25 November, 2022
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CRL.RP No. 100059 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE S.RACHAIAH
CRIMINAL REVISION PETITION NO. 100059 OF 2014
BETWEEN:
SHIVA S/O KANNAYYA GOUDA
AGED: 35 YEARS, OCC: COOLIE,
R/O: KANCHINABAGILU,
TQ: ANKOLA, DIST: KARWAR.
...PETITIONER
(BY SRI S. V. YAJI, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY SPP, HIGH COURT KARNATAKA,
DHARWAD BENCH, DHARWAD
...RESPONDENT
(BY SRI RAMESH B. CHIGARI, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
Digitally signed by
VIJAYALAXMI M BHAT
AND 401 OF CR.PC. SEEKING TO SET ASIDE THE JUDGMENT
Location: HIGH COURT OF
KARNATAKA, DHARWAD
BENCH, DHARWAD.
AND ORDER OF CONVICTION DATED 05.12.2006 PASSED BY
Date: 2022.12.13 16:09:26
+0530 THE JMFC ANKOLA IN CRIMINAL CASE NO.251/2006
DIRECTING THE PETITIONER/ACCUSED TO UNDERGO FOR SIX
MONTHS AND TO PAY FINE OF RS.500/- IN DEFAULT OF
PAYMENT OF FINE TO UNDERGO FOR ONE MONTH AND WHICH
IS CONFIRMED BY THE JUDGMENT AND ORDER DATED
24.09.2012 PASSED BY THE COURT OF SESSION JUDGE, FAST
TRACK COURT-I UTTARA KANNADA KARWAR IN CRIMINAL
APPEAL NO.184/2006 BY ALLOWING THE REVISION PETITION
AND ACQUITTING THE PETITIONER.
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CRL.RP No. 100059 of 2014
THIS PETITION COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition is filed by the petitioner being aggrieved by the judgment and order of conviction dated 05.12.2006 in C.C.No.251/2006 on the file of the JMFC., at Ankola and the confirmation order passed dated 24.09.2012 in Crl.A.No.184/2006 on the file of the Sessions Judge, Fast Track Court-I, Uttara Kannada, Karwar, wherein the petitioner- accused is convicted for the offence punishable under Section 379 of IPC and sentenced into undergo simple imprisonment for six months and also pay fine of Rs.500/-. In default of payment of fine, he shall further undergo simple imprisonment for one month.
2. Brief facts of the case are as follows:
On 25.04.2006 at about 12 noon PW1 has lodged a complaint stating that somebody has stolen 20 feet telephone cable having 400 telephone lines, totally worth of Rs.6,000/- from Ajjikatta Bridge, situated on Ankola-Karwar Road. The complaint has been lodged by the complainant against unknown persons. Based on the information given by the complainant, the Police have registered the case in Crime -3- CRL.RP No. 100059 of 2014 No.102/2006 for the offence punishable under Section 379 of IPC.
3. To prove the case of the prosecution, the prosecution has examined 5 witnesses i.e., PW1 to PW5 and got marked as Ex.P.1 to Ex.P.5 and also identified 6 Material Objects, MO1 to MO6.
4. The Trial Court after appreciating the oral and documentary evidence on record, convicted the accused for the offence punishable under Section as stated above (supra).
5. Heard Sri S. V. Yaji, learned counsel for the petitioner and Sri Ramesh B. Chigari, learned HCGP for the State.
6. Sri S. V. Yaji, learned counsel for the petitioner submits that the judgment of conviction recorded by both the Courts are erroneous, illegal and contrary to the facts and law. Therefore, liable to be set aside.
7. It is further submitted by the learned counsel for the petitioner is that, the complaint has been lodged against unknown persons and the accused falsely implicated in this case. Though, the seizure mahazar witnesses namely, PW2 and PW3 said to have supported the case of the prosecution, their evidence is suspicious and the Trial Court ought not to -4- CRL.RP No. 100059 of 2014 have acted upon the evidence of these witnesses because, PW- 3 is a retired police official and might have been planted as witness.
8. It is further submitted that, the Trial Court and the Appellate Court failed to appreciate the evidence in proper perspective resulting in conviction of the accused, which is erroneous and unsustainable.
9. Per contra, the learned HCGP justifying the judgment of conviction/ concurrent findings of the conviction recorded by both the Courts, submits that, though the name of the accused has not find a place in FIR or complaint, on suspicion, the accused was arrested. On enquiry being made, the accused has shown the place where he has kept the Cable Wire weighing 10.5 kgs it was found in the forest area. The same has been identified and supported by PW3 significant. There is no material to discredit the evidence of PW3 regarding the seizure of stolen Copper Wire. Therefore, the Trial Court has rightly convicted the accused and the Appellate Court has also appreciated it properly and confirmed the judgment of conviction. Therefore, he prays to dismiss the petition.
10. After having heard both the learned counsel for the respective parties and after having gone through the -5- CRL.RP No. 100059 of 2014 documents produced, the points which arise for my consideration are:
i) Whether the concurrent findings of the conviction passed by both the courts are justifiable?
ii) Whether the petitioner has made out grounds to interfere with the concurrent findings of the conviction passed by both the subordinate Courts?
11. To answer the above said points, it is necessary to analyze the evidence of all the witnesses. PW1 is the complainant and also Telephone Junior Officer. PW2 is the panch witness to the spot panchanama, which is marked as Ex.P2. Ex.P3 is the panch to the seizure panchnama. The said seizure panchanama is marked as Ex.P3. Ex.P4 is the Investigating Officer. PW5 is the Lineman of Telephone Department.
12. The evidence of PW2 and PW3 are the relevant in this case to arrive to a conclusion as to whether the Trial Court and the Appellate Court appreciated in proper manner or not? PW2 states that on 25.04.2006 at about 1.00pm the Police stated to have conducted the spot panchanama near Ajjikatti Bridge, where PW2 has noticed that 20 meters of Telephone Cable was cut and removed and remaining cable was laying -6- CRL.RP No. 100059 of 2014 there. He also deposed that, one more co-pancha was with him. However, the said co-panch was not examined in this case. In spite of lengthy cross examination, he with stood the cross examination and supported the case of the prosecution.
13. PW3 is the witness to seizure mahazar of stolen Copper Wire weighing 10.5kgs. He has deposed that, when he was near Baleguli Cross, the Police have called him and requested to him to be a panch to the said seizure panchanama. He further states that he went along with the Police and also the accused, in a Jeep near Kanchinabagilu, just 4 kms from the Baleguli Cross. There, the accused led them to a forest towards the Eastern side and showed the place where he had kept a Plastic Bag and one Blade.
14. There the said stolen Copper Wire has been seized at the instance of the accused and PW3 has supported the case of the prosecution. It is to be noticed that, PW3 has admitted that he was retired Assistant Police Sub-Inspector (PSI) and he knows about the investigation and Case Dairy and he further admitted in the cross examination that, he has conducted several investigation, when he was working as the Assistant Sub-Inspector, thus being the fact, the evidence of this witness could be seen as doubtful.
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15. The evidence of PW3 though supported the case of the prosecution, arrest of the accused in connection with the stolen of Copper Wire leads to doubtful and suspicion. No where in the complaint, name of the accused finds a place and there is no whisper regarding the arrest of the accused even on the basis of suspicion.
16. On careful perusal of the entire records, it appears that accused is neither a habitual offender nor involved in any other cases. Such being the fact arrest of the accused in connection with the Copper Wire theft appears to be doubtful and alleged seizure is also doubtful. This aspects should have been considered by the Trial Court. Merely, because, PW3 has supported the case of the prosecution regarding the seizure of stolen Copper Wire would not be sufficient to implicate accused in connection with the theft of Copper Wire.
In the light of the observations made above, the judgment of conviction passed by the Trial Court and its confirmation order passed by the Appellate Court are required to be set aside. Accordingly, the points which arose for my consideration are answered as:
a) Point No.1 answered in the negative.
b) Point No.2 answered in the affirmative.
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CRL.RP No. 100059 of 2014
17. Hence, I proceed to pass the following:
ORDER
i) The Criminal Revision Petition is allowed.
ii) The judgment of conviction and order of sentence dated 05.12.2006 in CC No.251/2006 passed by the learned JMFC., at Ankola and its confirmation order dated 24.09.2012 in Crl.A.No.184/2006 passed by the learned Sessions Judge, Fast Track Court-I, Uttara Kannada, Karwar are set aside.
iii) The accused-petitioner is acquitted for the offence under Section 379 of IPC.
iv) The bail bonds executed, if any, stands cancelled.
Sd/-
JUDGE SSP List No.: 1 Sl No.: 16