Karnataka High Court
Sri. Dattaguru vs The State By Soraba Ps on 30 January, 2026
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
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NC: 2026:KHC:5221
CRL.RP No. 1311 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 1311 OF 2018
BETWEEN:
SRI. DATTAGURU,
S/O. SHIVARAM,
AGED ABOUT 44 YEARS,
NEHARU NAGARA,
SHIRALAKOPPA,
SHIVAMOGGA - 577 428.
...PETITIONER
(BY SRI.DERICK ANIL, ADVOCATE)
AND:
THE STATE BY SORABA PS,
REPRESENTED BY SPP,
HIGH COURT BUILDING,
Digitally CUBBONPARK,
signed by BANGALORE - 560 001.
KAVYA R ...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
Location:
High court THIS CRL.RP IS FILED UNDER SECTION.397 R/W 401
of Karnataka CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO
SET ASIDE THE JUDGMENT /ORDER DATED 29.09.2018
PASSED BY THE LEARNED V ADDITIONAL DISTRICT AND
SESSIONS JUDGE SHIVAMOGGA AT SAGAR IN
CRL.A.NO.10008/2018 CONFIRMING THE JUDGMENT OF THE
LEARNED SENIOR CIVIL JUDGE AND J.M.F.C., SORABA DATED
16.02.2018 FOR THE OFFENCES P/U/S 457 AND 380OF IPC IN
C.C.NO.16/2013 AND ACQUIT THE PETITIONER IN THE ABOVE
CASE.
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NC: 2026:KHC:5221
CRL.RP No. 1311 of 2018
HC-KAR
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY
ORAL ORDER
Accused No.1 is before this Court in this Criminal revision petition filed under Section 397 read with Section 401 of Cr.PC, with a prayer to set aside the judgment and order of conviction and sentence passed in C.C.No.16/2013 by the Court of Senior Civil Judge and JMFC, Soraba, dated 16.02.2018 and the judgment and order passed in Crl.A.No.10008/2018 dated 29.09.2018 by the Court of V Additional District and Sessions Judge, Shivamogga sitting at Sagar.
2. Heard the learned counsel for the parties.
3. Petitioner and another were charge sheeted for offence punishable under Sections 457 and 380 of IPC by Soraba Police Station, Shivamogga and were tried for the said offence in C.C.No.16/2013 by the Court of Senior Civil Judge and JMFC, Soraba. It is the case of the prosecution -3- NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR that on 19.01.2012 at night, accused Nos.1 and 2 broke open the lock of the school in Government Primary School of Chitturu Village, Soraba Taluk and committed theft of two Indane Gas Cylinders. Based on the first information submitted by PW.1-Karibasappa, Headmaster of the school, FIR was registered against unknown persons, and during the course of investigation, accused Nos.1 and 2 were arrested. After completing investigation, charge sheet was filed against them for the aforesaid offences. Since the accused had claimed to be tried before the Trial Court, the prosecution in order to substantiate its charges against the accused had examined 10 charge sheet witnesses as PWs.1 to 10 and got marked 10 documents as Exs.P.1 to P.10. On behalf of the defence, no oral or documentary evidence was placed on the record. The Trial Court after hearing arguments addressed on both sides, convicted accused Nos.1 and 2 for the charge sheeted offence and sentenced them to undergo simple imprisonment for a period of one year for the offences. -4-
NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR The said judgment and order of conviction and sentence passed by the Trial Court was confirmed in Crl.A.No.10008/2018 by the Court of V Additional District and Sessions Judge, Shivamogga sitting at Sagar, by judgment and order dated 29.09.2018. Aggrieved by the aforesaid two judgments and order of conviction and sentence passed by the Courts below, accused No.1 is before this Court.
4. Learned counsel for the petitioner having reiterated the grounds urged in the petition submits that Trial Court has failed to properly appreciate the oral and documentary evidence placed on the record and thereby has erred in convicting the petitioner for the charge sheeted offences. He submits that no case is made out by the prosecution for offence punishable under Section 457 of IPC. Petitioner has been acquitted in all the other three cases which were registered against him on similar charges. Petitioner is a married man having family. Accordingly, he prays to allow this petition. -5-
NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR
5. Per contra, learned HCGP has opposed the petition. He submits that oral and documentary evidence clearly makes out a case for the charge sheeted offences against the accused. The sentence imposed on the accused by the Courts below is also just and proportionate. Accordingly, he prays to dismiss the petition.
6. According to the prosecution, on the night of 19.01.2012, accused had broke open the lock of the door of Government Primary School, Chitturu Village, Soraba Taluku and had committed theft of two Indane Gas Cylinders. FIR in this regard was registered on 23.01.2012, based on the first information submitted by PW.1-Karibasappa, who is the Headmaster of the aforesaid school. During the course of his deposition, he has explained the reason for the delay caused in filing the FIR. He has also stated that after the gas cylinders were recovered, he was summoned by the police and the gas cylinders were identified. PW.2-Somashekhara was the -6- NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR school teacher in Government Primary School, Chitturu Village, Soraba Taluku. His deposition corroborates the deposition of PW.1. PW.3-Nalamurthy is a punch witness to spot panchanama Ex.P.3 and this witness has also supported the case of the prosecution. PW.4 is a important witness, who had purchased the gas cylinders stolen by the accused. This witness has stated that accused Nos.1 and 2 met him and informed that they are vacating their house at Shirlkoppa and were willing to sell their Indane Gas Cylinders and accordingly, he had purchased two Indane Gas Cylinders from them for a sum of Rs.2,000/-. He has also stated that after a period of about nine months thereafter, police came to his house and recovered the stolen gas cylinders and a mahazar was drawn as per Ex.P.5 for which he has signed. PW.5 is another independent panch witness to spot panchanama Ex.P.2 and this witness also has supported the case of the prosecution. PW.6-Kumara G H is a panch witness to Ex.P.5 and the deposition of this witness corroborates the -7- NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR deposition of PW.4-Madhu S.H. PW-7 is the Head Constable of Police, who had arrested the accused and produced them before Higher Officer. PW.8 is the retired Assistant Sub-Inspector, who had received the first information and registered FIR. PW.9-Mahabaleshwara S.N, was the Police Sub-Inspector during the relevant time, before whom the arrested accused were produced. He also speaks about recovery of the stolen gas cylinders from PW.4, based on the voluntary statement of accused Nos.1 and 2. PW.10-Shantamma was a cook in the school in which theft was committed by accused Nos.1 and 2, she has identified the gas cylinders which were recovered from PW.4.
7. Perusal of the deposition of the aforesaid witnesses and also the documents got marked by the prosecution as per Exs.P.1 to P.10 would go to show that the prosecution had proved beyond reasonable doubt about the theft of gas cylinders from the school at Soraba by accused Nos.1 and 2. It is relevant to note here that -8- NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR the stolen articles were recovered from PW.4, based on the confession statement of accused Nos.1 and 2. The punch witnesses to the recovery mahazar, Ex.P.5 have supported the case of the prosecution and even PW.4 from whom the stolen articles were recovered has also supported the case of the prosecution. In addition to that, there is a presumption available against the accused as provided under Section 114 of the Indian Evidence Act, 1872.
8. Accused have been charge sheeted in the present case for offences punishable under Sections 380 and 457 of IPC. Section 380 of IPC reads as follows:
380. Theft in dwelling house, etc. Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.-9-
NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR
9. Considering the charges levelled against the accused and also having regard to the oral and documentary evidence available on record, it is apparent that the prosecution has made out a case against accused Nos.1 and 2 for offence punishable under Section 380 of IPC. Section 457 of IPC provides for punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment up to seven years. Lurking house trespass is defined under Section 443 of IPC, house breaking is defined under Section 445 of IPC and house breaking by night is defined under Section 446 of IPC. Sections 443, 445 and 446 of IPC reads as follows:
"Section-443. Lurking house-trespass. Whoever commits house-trespass having taken precautions to conceal such house-trespass from some person who has a right to exclude or eject the trespasser from the building, tent or vessel which is the subject of the trespass, is said to commit "lurking house- trespass".
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NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR Section-445. House breaking. A person is said to commit "house-breaking" who commits house- trespass if he effects his entrance into the house or any part of it in any of the six ways hereinafter described; or if, being in the house or any part of it for the purpose of committing an offence, or, having committed an offence therein, he quits the house or any part of it in any of such six ways, that is to say- First. If he enters or quits through a passage by himself, or by any abettor of the house-trespass, in order to the committing of the house-trespass. Secondly. If he enters or quits through any passage not intended by any person, other than himself or an abettor of the offence, for human entrance; or through any passage to which he has obtained access by scaling or climbing over any wall or building.
Thirdly. If he enters or quits through any passage which he or any abettor of the house-trespass has opened, in order to the committing of the house- trespass by any means by which that passage was not intended by the occupier of the house to be opened.
Fourthly. If he enters or quits by opening any lock in order to the committing of the house-trespass, or in
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NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR order to the quitting of the house after a house- trespass.
Fifthly. If he effects his entrance or departure by using criminal force or committing an assault or by threatening any person with assault. Sixthly. If he enters or quits by any passage which he knows to have been fastened against such entrance or departure, and to have been unfastened by himself or by an abettor of the house-trespass. Explanation. Any out-house or building occupied with a house, and between which and such house there is an immediate internal communication, is part of the house within the meaning of this section. Section-446. House-breaking by night. Whoever commits house-breaking after sunset and before sunrise, is said to commit "house-breaking by night"."
10. The ingredients for invoking the offence punishable under Section 457 of IPC is prima facie absent in the present case against accused Nos.1 and 2. Allegation against the accused in the present case is that they had broke open the lock of the door of the school and had gained entry to the school and committed theft. But
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NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR the oral and documentary evidence placed on record by the prosecution is not sufficient enough to arrive at a definite conclusion that on the night of 19.01.2012 accused Nos.1 and 2 had broke open the door of the school and had gained entry to the school. There is a delay of four days in filing the complaint. Ex.P.2 spot mazahar would go to show that the broken lock was not found at the spot. None of the charge sheet witnesses have stated that the door of the room in which the gas cylinders were kept was under lock.
11. Under the circumstances, I am of the opinion that there is no sufficient material available on record to convict the accused for the offence punishable under Section 457 of IPC. Therefore, the judgment and order of conviction and sentence passed against the petitioner/accused No.1 for offence punishable under Section 457 of IPC cannot be sustained. However, I am of the opinion that the prosecution has made out a case
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NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR beyond reasonable doubt against the petitioner for offence punishable under Section 380 of IPC.
12. Learned counsel for the petitioner has brought to the notice of this Court that in the other three criminal cases registered against the petitioner for similar offences, he has been acquitted. He also has submitted that petitioner is a married man and having children and has prayed to show leniency while sentencing him for offence punishable under Section 380 of IPC. In my considered opinion, if the order of sentence passed by the Trial Court against the petitioner for offence punishable under Section 380 of IPC is modified. The same would served the ends of justice. Accordingly, the following:
ORDER i. The Criminal revision petition is partly allowed.
ii. The judgment and order of conviction and sentence passed against the petitioner by the
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NC: 2026:KHC:5221 CRL.RP No. 1311 of 2018 HC-KAR Courts below for offence punishable under Section 380 of IPC is confirmed and is set aside insofar as it relates to convicting and sentencing the petitioner for offence punishable under Section 457 of IPC.
iii. The order of sentence passed against the petitioner for the offence punishable under Section 380 of IPC is modified and for the said offence, petitioner is sentenced to undergo simple imprisonment period of one month and also pay fine of Rs.5,000/- (Rupees Five Thousand only) and in default, he shall undergo simple imprisonment for a further period of 15 days.
Sd/-
(S VISHWAJITH SHETTY) JUDGE KVR List No.: 1 Sl No.: 28