Karnataka High Court
Sri Samiulla @ Sami vs State By N R Pura Police on 27 March, 2023
Author: S Vishwajith Shetty
Bench: S Vishwajith Shetty
-1-
CRL.RP No. 868 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE S VISHWAJITH SHETTY
CRL.R.P. NO. 868 OF 2014
BETWEEN:
SRI SAMIULLA @ SAMI
S/O ABDUL REHAMAN
AGED 34 YEARS
OCC:HAMALI BY PROFESSION
R/O N.R. COLONY
SHIVAMOGA CITY
SHIMOGA DISTRICT.
...PETITIONER
(BY SRI PRASAD BS, ADV.)
Digitally signed
AND:
by B A STATE BY N.R. PURA POLICE
KRISHNA
KUMAR REP.BY THE PUBLIC PROSECUTOR
Location: High
Court of CHICKMAGALUR.
Karnataka
...RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)
THIS CRL.R.P IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED:3/4.09.12 PASSED
BY THE C.J. AND JMFC, N.R.PURA IN C.C.NO.195/2006 AND ALSO
SET ASIDE THE JUDGMENT AND ORDER DATED:13.3.14 IN
CRL.A.NO.164/12 PASSED BY THE PRL.SESSIONS JUDGE,
CHICKMAGALUR.
THIS PETITION, COMING ON FOR HEARING, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This Criminal Revision Petition under Section 397 R/w Section 401 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C') has been filed by the accused No.4 challenging the judgment and order of conviction and sentence passed by the -2- CRL.RP No. 868 of 2014 Court of Civil Judge & JMFC, N R Pura (for short the 'Trial Court) in C.C.No.195/2006 dated 03.09.2012 and the judgment and order passed by the Principal Sessions Judge, Chikamagaluru (for short the 'Appellate Court') in Crl.A.No.164/2012 dated 13.03.2014.
2. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State.
3. Facts leading to filing of this revision petition narrated briefly are, on the complaint of PW1, FIR was registered against unknown persons for the offences punishable under Section 454 and 380 of IPC. In the complaint it was averred that on 06.07.2005 when the complainant PW1 came back to his house at 5.30 p.m, after finishing his work, he saw the tower bolt of the back door of his house was broken and the gold ornaments and two Titan company watches which were kept in the Godrej almirah were stolen. During the course of the investigation of the said case, the Police had arrested accused nos.1 to 3 who had confessed and also had stated that accused no.4 was also present with them while committing the crime. Based on the said confession statement, the petitioner -3- CRL.RP No. 868 of 2014 was also arrested in the said case. Thereafter, charge sheet was filed against all 4 accused persons for the offences punishable under Section 454 and 380 of IPC. The accused persons claimed to be tried in the said case and therefore, the prosecution in order to prove its case had examined 14 witnesses as PW1 to PW14 and got marked 13 documents as Ex.P1 to P13.
4. The accused persons who had denied the incriminating circumstances available against them on record during the course of their section 313 of Cr.P.C, statement, however, did not choose to lead any defence evidence on their behalf, but got marked 2 documents as ExsD1 and D2. The material objects were marked as M.O.1. to M.O.5 through the prosecution witnesses. After hearing the arguments addressed on both sides the trial court by its judgement and order dated 03.09.2012 had convicted the accused persons for the offences for which they were charged. The petitioner who was accused no.4 before the Trial Court was sentenced to undergo simple imprisonment for a period of 1 year and pay fine of Rs.4,000/- and in default, to undergo simple imprisonment for 2 months for the offence punishable under Section 454 of IPC. For the -4- CRL.RP No. 868 of 2014 offence punishable under Section 380 of IPC, the petitioner was sentenced to undergo simple imprisonment for 1 year and pay fine of Rs.2,000/- and in default to undergo simple imprisonment for a period of 1 month. The said judgement and order of conviction and sentence passed by the trial court against the petitioner was confirmed by the appellate court in Crl.A.No.164/2012 on 13.03.2014. It is under this factual background, the petitioner is before this Court.
5. Learned counsel for the petitioner submits that the Courts below have erred in convicting the petitioner for the alleged offences. He submits that the recovery of small finger ring from the petitioner has not been proved by the prosecution in accordance with law. He submits that merely on the basis of confession statement of accused nos.1 to 3, the petitioner has also been arrayed as accused in the present case though there is no material available against him. Accordingly, he prays to allow the petition.
6. Per contra, learned High Court Government Pleader appearing for respondent - State has argued in support of the impugned judgment and order of conviction and sentence and prays to dismiss the petition.
-5-CRL.RP No. 868 of 2014
7. The prosecution in order to prove its case had examined 14 witnesses before the trial court. The complainant was examined as PW1. He has reiterated the averments made in the complaint Ex.P1 and has stated that one gold black beed chain, 4 small finger ring of children, one pair ear ring, one finger ring of adult and 2 Titan watches were missing from the Godrej almirah of his house. During the course of his cross- examination, he has admitted that 3 small finger rings, 1 Titan watch and one chain was found in his house by him on the next day. He has further stated that out of 4 small finger rings 1 was recovered from the house of the petitioner herein under seizure mahazar Ex.P4 for which he had signed. During the course of his cross-examination he has admitted that no mahazar was drawn in the house of the petitioner from where allegedly 1 small finger ring was recovered. He has further admitted that seizure mahazar Ex.P4 was drawn in N R Pura police station and the same was signed by him in the police station. He has also stated that on the date of drawing mahazar the accused alone had gone inside his house and the police and himself were standing out and he is not aware from where the small finger ring was brought and produced by the accused -6- CRL.RP No. 868 of 2014 No.4/petitioner. Except PW1, the other panchas who had signed Ex.P4 were not examined by the prosecution. Therefore, the recovery of small ring from the petitioner under Ex.P4 seizure mahazar has not been proved by the prosecution in accordance with law.
8. PW5 is the panch witness to Ex.P2 spot mahazar which is drawn on the next day of the incident in the house of the complainant PW.1. PW5 has spoken about drawing mahazar as per Ex.P2 and has stated that the same was drawn at the spot. However, he has stated that his signature was not taken on the said document in the spot. He has stated that on the said date the police had recovered one small finger ring from the spot. According to PW1 - complainant, only 4 small finger rings of children were found missing and out of 4 rings, 3 rings were recovered by PW.1-complainant in his house on the next day of incident and the same was also informed by him to the police. According to PW5, the other small finger ring which was found missing from the Godrej of PW1 was also recovered by the police at the spot on the next day of incident while drawing spot mahazar Ex.P2. Therefore, all 4 small finger rings which were missing from the Godrej of PW1-complainant were -7- CRL.RP No. 868 of 2014 recovered from the house of PW1 itself. The recovery of small ring on the basis of confession statement by the petitioner from his house under Ex.P4 therefore become highly doubtful.
9. The courts below have convicted the petitioner for the alleged offences based on the recovery of small ring from his house under Ex.P4. In my considered view when the material on record would go to show that out of 4 missing small rings, 3 small finger rings were recovered by PW1 on the next day in his house itself and another ring was also recovered in his house by the police while preparing spot mahazar Ex.P2, it becomes highly doubtful that the police could have recovered 1 small finger ring as alleged from the house of the petitioner on the basis of his confession statement. The courts below have failed to appreciate this aspect of the matter and have erred in convicting the petitioner for the offences for which he was charged. Ex.P4 seizure mahazar is held to be not proved by prosecution. Except recovery of 1 small ring under Ex.P4 which is pursuant to voluntary statement allegedly given by the petitioner, there is nothing on record to connect the petitioner to the crime. Under the circumstance, I am of the considered view that the Courts below were not justified in convicting the -8- CRL.RP No. 868 of 2014 petitioner for the offences for which he was charged. Accordingly, the following:-
::ORDER::
Criminal Revision Petition is allowed.
The judgment and order of conviction
and sentence passed by the Court of Civil
Judge & JMFC, N R Pura in C.C.No.195/2006
dated 03.09.2012 which was upheld by the
Court of Principal Sessions Judge,
Chikmagaluru in Crl.A.No.164/2012 on
13.03.2014 are set aside.
The petitioner is acquitted of the
offences for which he was charged.
SD/-
JUDGE
NMS