Karnataka High Court
The State Of Karnataka vs N Gopala Prabhu on 30 May, 2016
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2016
:BEFORE:
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL REVISION PETITION NO. 1047/2015
BETWEEN:
THE STATE OF KARNATAKA,
REP. BY STATE PUBLIC PROSECUTOR,
BENGALURU - 574 201.
... PETITIONER
(BY SRI. CHANDRASHEKARAIAH.S., HCGP.)
AND:
N. GOPALA PRABHU,
S/O SUNDARA PRABHU,
AGED 45 YRS.,
R/AT NEKRE HOUSE,
CHIKKAMUDNOORU VILLAGE,
PUTTUR TALUK,
DAKSHINA KANNADA - 574 201.
... RESPONDENT
(BY SRI. S.VISHWAJITH SHETTY, ADV.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 CR.P.C. BY THE STATE FOR THE PETITIONER PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT AND ORDER DTD 31.03.2015 PASSED IN
CRL.A.NO.60/2008 ON THE FILE OF THE V ADDL. DIST. AND
S.J., D.K., MANGALORE SITTING AT PUTTUR, D.K., MANGALORE
SITTING AT PUTTUR, D.K., AND THE JUDGMENT AND ORDER
DTD 27.11.2006 PASSED IN C.C.NO.679/2000 ON THE FILE OF
THE ADDL. CIVIL JUDGE (JR.DN.) AND JMFC, PUTTUR, D.K.,
FOR THE OFFENCE P/U/S 457 AND 380 OF IPC.
2
THIS CRIMINAL REVISION PETITION COMING ON FOR
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The State has come up with this criminal revision petition calling in question the judgment of the Additional Civil Judge (Jr.Dn.) and JMFC, Puttur in C.C. No.679/2000 and also the judgment passed in Criminal Appeal No.60/2008 by the V-Additional District and Sessions Judge, D.K., Mangalore, under which the trial court and the First Appellate Court have concurrently passed the judgment acquitting the accused (respondent herein) for the offences punishable under Sections 457 and 380 of IPC. There is some delay in preferring this revision petition.
2. As the matter is heard with consent of the counsels appearing on both sides on merits, the delay in filing the revision petition, considering the grounds urged in the affidavit filed in support of the application, the application is hereby allowed and the delay of 86 days in filing the petition is hereby condoned. 3
3. The brief factual matrix that emanate from the records are that, PW.1-Krishna Murthy and PW.2 Kanchana are husband and wife residents of Narimogru village in Puttur Taluk. They lodged a complaint stating that on 17.07.1998 they had been to the house of the parents of PW.2-Kanchana to attend pooja in their house. They returned to the house night at 11.00 'O' Clock and they found some body had broke open the back door of their house and committed theft of gold ornaments worth Rs.33,000/-. Making such allegations, it appears the complaint came to be lodged and the same was registered by the police, and after due investigation, filed charge sheet against the respondent herein in C.C. No.679/2000. After securing the presence of the accused, it appears the charges have been framed against the accused for the above said offences and he was tried before the trial court .
4. In order to bring home the guilt of the accused, the prosecution has examined as many as 21 witnesses and got marked 25 documents as per Ex.P1 4 to Ex.P25-A and also got marked 7 material objects - Mos. 1 to 7.
5. The trial Court after thorough appreciation of the evidence on record, came to the conclusion that the prosecution has not proved the case beyond reasonable doubt. There is no question of identification of the accused because of the simple reason that, PWs. 1 & 2 or any other persons have not seen the accused person committing the aforesaid crime. Though an attempt was made by the police to get the accused identified by PWs. 1 & 2 in the Police Station, in my opinion, it cannot be an identification at all and it is a farse identification. Apart from the above, the prosecution has mainly relied upon two important circumstances i.e., recovery of MO.7-Iron Rod at the instance of the accused and finding the pledged gold ornaments belonging to PWs.1 & 2 with S.K. Goldsmith Co-operative Society. It is alleged that after committing theft, the accused person has deposited the said gold ornaments in the said Co-operative Society to secure 5 loan. The above said two circumstances have been disbelieved by the trial Court on the ground that the prosecution has not proved the said allegations beyond reasonable doubt. At Para- 24 of the judgment, the trial Court has given reasons that, there is delay in lodging the complaint itself and there is a specific allegation that the accused has broke-open the back door of the house of the complaint and broken the reaper of the said door etc. But the trial Court has disbelieved the same on the ground that, no witnesses have spoken about the door being broken and no witness has stated that they heard any sound at the time of accused committing theft. Even the evidence of PWs.1 & 2 has been disbelieved by the trial court, because they have not lodged the complaint immediately after the incident and even the neighbours have not spoken anything about PWs. 1 & 2 telling them with regard to any theft in their house. At Para-27 of its judgment, the trial Court has also observed that even 30 days prior to the arrest of the accused, the police have already examined 6 the Bank Manager of S.K. Goldsmith Co.Op. Society, and came to know that the accused has deposited the said gold jewels in the said Society for the purpose of getting loan. Therefore, the trial Court has rightly come to the conclusion that the police had already knew that the gold ornaments are in the S.K. Goldsmith Co.op. Bank, Puttur. Therefore, there is no question of recovery at the instance of the accused subsequent to his arrest, because the gold ornaments were kept in the bank was very much known to the police. Therefore, the recovery was also held to be farse, as such, the trial Court disbelieved the case of the prosecution and ultimately acquitted the accused.
6. Being aggrieved by the said judgment, the State has preferred appeal before the V-Additional District and Sessions Judge. On re-appreciating the factual aspects, the First Appellate Court also definitely came to the conclusion that the prosecution has not proved the case beyond reasonable doubt. 7
7. When both the courts on appreciation of oral and documentary evidence and by giving findings on facts, have acquitted the accused person, in my opinion, while exercising powers under the revisional jurisdiction either under Sections 397 or 401 of Cr.P.C., this court is debarred from re-appreciating the oral evidence on record, unless the appreciation made by the trial court or the First Appellate Court has caused any miscarriage of justice to the other party, I do not find any strong reason to differ from the opinion expressed by the trial court and the Appellate Court. Therefore, the revision petition filed by the State deserves to be dismissed at the admission stage itself. Accordingly, the petition is dismissed.
Sd/-
JUDGE KGR*