Karnataka High Court
Suresh S/O Yallappa Shivpure vs The State Of Karnataka on 2 June, 2023
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100189 OF 2014
C/W
CRIMINAL REVISION PETITION NO. 100190 OF 2014
CRIMINAL REVISION PETITION NO. 100191 OF 2014
CRIMINAL REVISION PETITION NO. 100192 OF 2014
CRIMINAL REVISION PETITION NO. 100193 OF 2014
IN CRIMINAL REVISION PETITION NO. 100189 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS,
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
Digitally
NOW AT PRESENT LAXMI NARSINGH
signed by J
MAMATHA
SINGANKERI, DHARWAD.
J ...PETITIONER
Date:
MAMATHA 2023.05.28
20:02:39 -
0700
(BY SRI. MANOJ BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.31/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.27/2012 DATED 19.01.2013.
IN CRIMINAL REVISION PETITION NO. 100190 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH
SINGANKERI, DHARWAD.
...PETITIONER
(BY SRI. MANOJ BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.32/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.60/2012 DATED 19.01.2013.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
IN CRIMINAL REVISION PETITION NO. 100191 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS,
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH,
SINGANKERI, DHARWAD.
...PETITIONER
(BY SRI. MANOJ BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.33/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.61/2012 DATED 19.01.2013.
IN CRIMINAL REVISION PETITION NO. 100192 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS,
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH
SINGANKERI, DHARWAD.
...PETITIONER
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
(BY SRI. PRAVEEN KUMAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.34/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.62/2012 DATED 19.01.2013.
IN CRIMINAL REVISION PETITION NO. 100193 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH,
SINGANKERI, DHARWAD.
...PETITIONER
(BY SRI. PRAVEEN KUMAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.35/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.63/2012 DATED 19.01.2013.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
FINAL HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 20.03.2023, THIS DAY, THE COURT,
MADE THE FOLLOWING:
ORDER
Revision petitioner-accused feeling aggrieved by judgment of First Appellate Court on the file of Prl. District and Sessions Judge, Dharwad as shown in the chart below preferred these revision petitions.
Sl.
Revision Petition Appeal before the First Criminal case before the
Numbers Appellate Court Trial Court
No.
Crl.R.P.100189/2014 Crl.A.No.31/2013 CC.No.27/2012
1 Judgment dated 18.8.2014 Judgment dated 19.1.2013
2 Crl.R.P.100190/2014 Crl.A.No.32/2013 CC.No.60/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
3 Crl.R.P.100191/2014 Crl.A.No.33/2013 CC.No.61/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
4 Crl.R.P.100192/2014 Crl.A.No.34/2013 CC.No.62/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
5 Crl.R.P. 100193/2014 Crl.A.No.35/2013 CC.No.63/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
2. Parties to the revision petitions are referred with their rank as assigned before the trial Court for the sake of convenience.
3. These revision petitions are arising out of crime No.813/2011 of Keshwapur police station, Hubballi on the basis of complaint filed by Sri.A.R.Badiger, Assistant Police Commissioner, dated 18.11.2011. The accused is common in all these cases for the same offences and recovery of stolen properties are effected on the basis of voluntary statement of accused. Hence, all these revision petitions are taken up together for disposal by this common order.
4. The factual matrix leading to the case of prosecution in all these cases can be stated in nutshell to the effect that on 18.11.2011 at 3.30 p.m. Sri.A.R.Badiger, Assistant Police Commissioner, Hubballi Town, North Division received credible information that a person on pulsar bike is coming to sell stolen gold ornaments to the jewelry shop situated near Madhurachetana Garden of Keshwapur, Hubballi. In pursuance of such information, proceeded to the spot along with staff. They kept watch at nearby place. After some time, a person came on -7- CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 black colour Bajaj Pulsar vehicle and looking around in a suspicious manner. On seeing police, tried to escape from the place. However, the police staff apprehended him. The apprehended person, disclosed his name as Sri.S.Y.Shivpure. On enquiry with regard to contents of plastic bag in his possession, he did not give any satisfactory answer. Therefore, on securing the panch witnesses, article Nos.1 to 10 shown in the complaint with Bajaj Pulsar Vehicle bearing No. KA-25-S/8769 came to be seized under panchanama. Accused was brought to police station along with seized articles and filed complaint leading to registration of case in crime No.183/2011 of Keshwapur police station, Hubballi.
5. The seized properties from the possession of accused and at the instance of accused based on his voluntary statement were pertaining to different cases registered in Vidyagiri police station. Hence, transfer of records and seized properties were given to Vidyagiri police station, Dharwad. The following is the chart showing the cases registered under different crime Numbers based on complaints filed with respect to theft incident. -8-
CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
Sl.No. Complainant Crime No. Police Criminal
station case.No.
1 Parushuram 131/2011 Vidyagiri 27/2012
Bheemappa Lamani
2 Srirang Vamanrao 164/2011 Vidyagiri 60/2012
Hulyalkar
3 Udaya Nageshwarao 166/2011 Vidyagiri 61/2012
Nersekar
4 B.M.Marulradhaya 177/2011 Vidyagiri 62/2012
5 Srivatsa 192/2011 Vidyagiri 63/2012
Parimalagouda
Aparanji
The accused was secured before Trial Court through process of law. The Trial Court on being prima facie satisfied of the material placed on record, framed charges against accused in all the cases for the offences punishable under Sections 457 and 380 of IPC. Accused in all the cases pleaded not guilty and claimed to be tried. The prosecution has relied on oral and documentary evidence in respective cases and material objects identified by the complainant in all cases respectively.
6. On closer of prosecution side, statement of accused in all the cases under 313 of Cr.P.C came to be recorded. Accused denied all incriminating material evidence appearing against him -9- CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 and claimed false case is filed. The accused examined his sister as DW.1 and got marked two documents as Ex.D.1 and 2.
7. The Trial Court after having heard arguments of both sides and on appreciation of evidence on record convicted the accused in all cases for the offences punishable under Sections 457 and 380 of IPC and imposed sentence as per order of sentence in respective cases as per the chart referred above.
8. Accused feeling aggrieved by judgment of conviction and order of sentence preferred the appeals as referred above on the file of Prl. District and Sessions Judge, Dharwad. The First Appellate Court, on re-appreciation of evidence on record dismissed all criminal appeals and confirmed the judgment of conviction. However, the First Appellate Court has modified the order of sentence by judgment dated 18.8.2014 in all the cases.
9. Revision petitioner-accused challenging the concurrent finding of both the courts below contended that recovery of stolen articles either from the possession or at the instance of accused has not been proved by prosecution out of the material evidence placed on record. The evidence of recovery pach witnesses and that of investigating officer cannot be relied in
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 view of infirmities found during the course of their cross examination. The reasons assigned by both courts below in holding that the prosecution has proved the recovery of stolen articles from the possession and at the instance of accused cannot be legally sustained. There was enough material evidence in the form of DW.1 and documents at EXs.D.1 and 2 to show that accused was arrested along with his family members much prior to 18.11.2011 and both courts below have ignored the complaint filed by sister of accused dated 14.11.2011 about illegal detention of accused and his family members. The approach and appreciation of oral and documentary evidence by both courts below are not based on any sound reasoning and cannot be legally sustained. Therefore, prayed for allowing all revision petitions and to set aside judgment of conviction and order of sentence. Consequently, to acquit accused in all the cases from the charges leveled against him.
10. In response to notice, learned HCGP has appeared for respondent in all the cases.
11. Heard arguments of both sides.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014
12. The prosecution alleges that on the strength of credible information received by Sri.A.R.Badiger, Assistant Police Commissioner, Hubballi Town, North Division. Accused was apprehended on 18.11.2011 while he was proceeding to sell stolen articles in a jewelry shop situated at Madhurachetana Garden of Keshwapur, Hubballi. The accused has failed to give satisfactory answer about the contents of plastic bag found in his possession. Therefore, on securing two independent panch witnesses, the articles shown in the complaint along with Bajaj Pulsar Vehicle bearing No. KA-25 S/8769 came to be seized under the panchanama. On the basis of the said complaint, case was registered in crime No.183/2011 of Keshwapur police station for the offences punishable under Sections 41 (i) (d) R/w. Section 102 of Cr.P.C. and Section 379 of IPC. Thereafter, on the basis of voluntary statement of accused, 20 articles shown in the recovery panchanama came to be recovered at the instance of accused from his house. The seized stolen properties are found to be related to different cases registered in Vidyagiri police station as per the chart referred above. Hence, transfer of records and seized properties were given to PSI, Vidyagiri police station, Dharwad.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014
13. The recovery of articles from the possession of accused shown in the complaint filed by Sri.A.R.Badiger, Assistant Police Commissioner, Hubballi Town, North Division and recovery of articles from the house of accused at his instance based on voluntary statement, the recovery panch witnesses and investigating officer are common to respective recovery panchanama. However, the evidence of prosecution witnesses are appreciated separately in order to avoid any confusion.
14. I) Crl.R.P.No.1000189/2014:- The prosecution in this case to prove the charges leveled against accused relied on evidence of PWs.1 to 8 and documents at Exs.P.1 to 11, so also got identified M.O.1. Accused lead defence evidence by examining his sister as DW.1 and relied on documents EXs.D.1 and 2.
15. PW.1 complainant has field complaint-Ex.P.1 alleging that on 19.9.2011 at 6.00 a.m. found the back door latch was broken and fell on the ground. On verification, the purse containing cash of Rs.2,000/-, one Navagraha gold ring and TVS motorcycle bearing No.KA-25/S-8769 were not found.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 On suspecting that somebody has committed theft of the said articles by breaking open the latch from back side door of house filed complaint. On the basis of complaint, FIR came to be registered in crime No.131/2011 of Vidyagiri police station.
16. The incident of theft in the house of complainant is not seriously disputed. Therefore, the prosecution is only required to prove the recovery of articles belonging to the complainant either from the possession of accused or at his instance.
17. PW.3 is Manager of Durga wines has spoken about parking of TVS motor cycle bearing No. KA 25/S-8769 and identified by the complainant which came to be seized under panchanama as per Ex.P.3 and identified his signature Ex.P.3(b). The evidence of this witness is not seriously challenged except suggesting that he has signed in the police station on the panchanama at Ex.P.3, which he has denied. The same is also certified by the evidence PW.8, who has seized the said motor cycle under panchanama-Ex.P.3, both PWs. 3 and 8 have identified the seized motorcycle. There is nothing worth material that has been brought on record during the course of their cross
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 examination to disbelieve their evidence. Therefore, prosecution has proved seizer of TVS Pulsar motorcycle bearing No.KA.25/S- 8769 belongs to complainant under panchanama -Ex.P.3.
18. PW.1-complainant has spoken about theft of Navagraha gold ring kept in the bed room of his house. The independent recovery panch witness PW.4 has not supported the case of prosecution. However, Co-panch P.W.5 to recovery panchanama Ex.P.6 supported the case of prosecution and spoken about recovery made under the recovery panchanama at Ex.P.6. The witness was partly declared as hostile by the prosecution. However, during the cross examination by learned APP, witness has admitted suggestion put to him as per the case of prosecution. The evidence of this witness, reveals about presence of accused and police staff, further recovery of articles shown in the recovery panchanama at Ex.P.6 and he has signed all panchanama after contents of the panchanama were read over to him.
19. PW.7 is investigating officer has deposed to the effect that on 19.11.2011 secured PWs.4 and 5 panch witnesses. The accused led police officials and panch witnesses to Shringar
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 jewelry shop situated at Gandhi Chowk, Dharwad. The accused asked owner of shop to produce articles shown by accused and accordingly, PW.6-Nagaraj Palankar has produced the gold articles sold by the accused and the same were seized by panchanama at Ex.P.6.
20. PW.6 is owner of Shringar jewelry shop situated at Gandhi chowk, Dharwad and deposed to the effect that accused has sold gold articles stating that family members are unwell and for their treatment, money is required. The gold rings, necklace, bangles and Navagraha ring produced by him were seized under panchanama and accordingly, he has given statement before the police. Though this witness has been subjected to cross examination, nothing worth material has been brought on record, so as to discredit the evidence of this witness having produced gold articles sold by accused at his instance in the shop, which were seized under panchanama-Ex.P.6. Therefore, the prosecution out of the evidence of PWs.5, 6 and investigating officer-PW.7 has proved the recovery of seized TVS Victor Motorcycle bearing No.KA.25/S-8769 under panchanama at Ex.P.3 and Navagraha gold ring under panchanama as per Ex.P.6.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014
21. II) Crl.R.P.No.100190/2014:- The prosecution to prove the charges leveled against the accused relied on the evidence of PWs.1 to 9 and documents at Exs.P.1 to 6.
22. The complainant-Srirang Vaman Rao Hulyalkar filed complaint-Ex.P.1 regarding theft incident alleging that on 22.10.2011 at about 3.50 a.m. he was awakened by his wife and found that door of the window was closed and saw some persons fled away from the place latching the door from out side. On verification, found that articles in the house were scattered and locker was opened. One Sony digital camera and cash of Rs.50,000/- was stolen and accordingly, filed complaint as per Ex.P.1. PW.1 has shown the spot to the police and police prepared panchanama at Ex.P.2.
23. After one month, out of stolen properties, seized cash of Rs.30,000/- was got released from the court and he identifies the same appearing in the photographs at Ex.P.3 and
4. The lost digital Sony camera was not traced. On all these allegations complaint was registered in Crime No.164/2011 of Vidyagiri police station.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014
24. The material independent witness PW.5- Mahadevappa Rajappa Gudimani has not supported the case of prosecution. However, evidence of PW.6-Praveen Huligeppa Hotagar has partly supported the case of prosecution. However, after treating witness hostile, during cross examination admitted all suggestions put by learned APP as per the case of prosecution about recovery of 20 articles under panchanama Ex.P.6.
25. Investigating officer PW.7 deposed to the effect that accused has given voluntary statement Ex.P.9. On 19.11.2011, accused led police officials, PWs.5 and 6 panch witnesses to the house situated at Laxmisingankeri, Dharwad and produced 20 articles from his house, which were seized under panchanama Ex.P.6. Witnesses have also identified signatures of PWs.5 and 6 on the panchanama and that of LTM of accused. The seized cash from the house of accused was produced by accused came to be identified from photographs at Exs.P.4 and 5. The cash was ordered to be released to the interim custody of complainant. The defence counsel though has subjected PWs.6 and PW.7 to cross examination, nothing worth material has been brought on record regarding recovery of cash of Rs.30,000/- produced by
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 accused from his house came to be seized under panchanama Ex.P.6.
26. III) Crl.R.P.No.100191/2014:-The prosecution to prove the charges leveled against accused relied on the evidence of PWs. 1 to 8 and documents at Ex.P.1 to 11, so also got identified Mo.1 to 5. The accused relied on the evidence of his sister DW1 and documents at Ex.D.1 and 2.
27. The complainant with regard to the theft incident has filed complaint-Ex.P.1 alleging that on 20.3.2011 at about 1.15 a.m. when he came back to the house after getting treatment to his son from KLE hospital, Belagavi found latch of the house was broken and door was opened when he entered his house from the back side found that bed room door was opened. On verification, found two gold chains and three gold rings weighing 28 grams have gone in theft. On these allegations, complaint was filed and case was registered in crime No.166/2011 of Vidyagiri police station as per Ex.P.11.
28. PW.1 has deposed about the theft incident taken place in the house on 23.10.2011 and filing of complaint at Ex.P.1, further shown the spot to police and spot panchanama at
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 Ex.P2 was prepared. After one month, Vidyagiri police station directed complainant to approach Keshwapur police station where accused before the Court was shown and he identified two gold chains and three gold rings as per M.O.1 to 5. The incident of theft in the house of complainant and gold ornaments were stolen from his house is not serious in dispute.
29. The material witness for recovery of stolen articles is PW.3 Prasanna Gururaj Indrali and he has deposited to the effect that himself and CW.7 were called for the purpose of panchanama. The police officials and accused were present and the owner of Jewelry shop Goutam Bhandari has produced gold articles which were sold by the accused and the same were seized under panchanama Ex.P.3. The seized gold articles have been identified by this witness as per M.O.1 to 5. The owner of Jewelry shop PW.5 has not supported the case of prosecution.
30. The prosecution relies on the evidence of investigating officer PW.6-Prabhugouda D.K., who has deposed to the effect that accused gave voluntary statement as per Ex.P.9 on 18.11.2012 and he has secured PW.3 and CW.7 as panch witnesses. Accused led police officials and panch
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 witnesses to Jewelry shop of CW.9 (PW.5) Goutam Bhandari. The accused has asked owner to produce jewelry sold to him and owner produced articles, which were seized under panchanama- Ex.P.3.
31. The defence counsel though subjected PW.3 and PW.6 to lengthy cross examination, nothing worth material has been brought on record to discredit their evidence regarding recovery of M.O.1 to 5 under panchanama at Ex.P.3. The evidence of P.Ws.1, 3 and 6 would go to show that gold ornaments M.O.1 to 5 stolen from the house of complainant were recovered at the instance of the accused.
32. IV) Crl.R.P.No.100192/2014:- The prosecution in order to prove the allegations made against accused relied on the evidence of PWs. 1 to 8 and documents at Ex.P.1 to 8, so also identified one Nokia Mobile hand set as M.O. 1. Accused examined his sister as D.W.1, so also relied Exs.D.1 and 2.
33. One B.M.Marularadhya filed complaint Ex.P.1 alleging that on 31.10.2011 at 4.10 a.m. somebody is making moment in the house. On coming out of the bed room, light was found switched off. The latch of door was break opened and one
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 Nokia N-73 mobile was found stolen. On these allegations, complaint came to be filed and case was registered in Crime No.177/2011 of Vidyagiri police station.
34. Complainant-PW.1 during the course of his evidence has stated about the theft incident in his house and Nokia N-73 mobile was stolen and filed complaint-Ex.P.1. PW.1 further deposed to the effect that he has shown the spot of incident to the police and panchanama was prepared Ex.P.2. After one month was called to Keshwapur police station and he identified the mobile set M.O.1. Panch witness to the spot panchanama has certified evidence of PW.1 regarding preparation of panchanama as per Ex.P.2. The theft incident and mobile was stolen from the house of complainant is not in dispute.
35. Recovery of panch witness PW.3 has not supported the case of prosecution. The another co-panch to recovery panchanama PW.4 has spoken about the accused leading panch witnesses and police staff to his house. Thereafter, accused has produced articles from his house and the same were seized under panchanama-Ex.P.3. This witness has been partly declared as hostile witness. However, during the course of cross
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 examination by learned APP, he has admitted all the suggestions put to him as per the case of prosecution. On perusal of evidence of this witness, it would go to show that his evidence is consistent with regard to accused leading the police officials and panch witness to his house and producing the articles which were seized under panchanama Ex.P.3.
36. The investigating officer PW.7 has deposed to the effect that on 19.11.2011, accused led the police officials and pachas to his house and produced 20 articles, which were seized under panchanama-Ex.P.3 in the presence of PWs.3 and 4. The Nokia N-73 mobile is identified by complainant and investigating officer PW.7, which was seized among other articles under panchanama at Ex.P.3. The defence counsel though has subjected PWs. 4 and 7 to lengthy cross examination, but nothing worth material has been brought on record, so as to discredit their evidence to prove the recovery of M.O.1 -Mobile under panchanama at Ex.P.3. Therefore, the prosecution has proved recovery of M.O.1 mobile at the instance of accused under panchanama at Ex.P.3.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014
37. V) Crl.R.P.No.1000193/2014:- The prosecution relied on evidence of PWs. 1 to 9 and documents at Exs.P.1 to 9, so also got identified M.O.1 and 2. Accused relied on evidence of his sister DW.1 and documents at Exs.D.1 and 2.
38. Complainant Srivatsa P Aparanji filed complaint as per Ex.P.3 alleging that on 24.10.2011 at about 5.30 a.m. the mother of complainant informed that somebody is standing out side the house and complainant found that door of the house was opened and bolt attached to the door was broken. On verification, the mobile belongs to him and his father i.e. Sony ericsson and Samsung mobiles were found missing. Therefore filed complaint-Ex.P.3. On the basis of the said complaint, case was registered in Crime No.192/2011 at Ex.P.8. The incident of theft of mobile from the house of complainant is not in dispute.
39. PWs.4-complainant has spoken about theft incident and filed complaint as per Ex.P.3. Thereafter, shown the spot to the police and panchanama was prepared at Ex.P.1. After one month, he was called to Keshwapur police station, where he identified Sony ericsson and Samsung mobiles shown at Sl.Nos. 2 and 3 of recovery panchanama-Ex.P.2. PW.3 is independent
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 recovery panch witness to the panchanama Ex.P.2. However he has not supported the case of the prosecution. Another recovery panch witness PW.5 has partly supported the case of prosecution. However, witness during the course of cross examination by learned APP, has admitted all the suggestions put to him as per the case of prosecution. On perusal of evidence of this witness PW.5, it would go to show that accused has produced 20 articles from his house and same were seized under panchanama. PW.8 investigating officer and he has deposed to the effect that accused has given voluntary statement as per Ex.P.5 and led the police officials and panch witnesses to his house and produced 20 articles, which were seized under panchanama. The two mobiles seized under the panchanama-Ex.P.2 were at Sl.Nos.2 and 3, which were identified by complainant-PW.3 and also by investigating officer PW.8. The recovery of two mobiles M.O.1 and 2 under panchanama at Ex.P.2 has been proved by the prosecution out of the evidence of PWs.5 and 8- investigating officers.
40. The defence of the accused is that he was taken from Hubballi bus stand with his two wives and six children, on 10.11.2011 and brought to police station, further they have
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 been illegally detained in the police station. On 14.11.2011, sister of the accused Yellamma filed complaint against the police official and in support of such defence, DW.1 was examined and she has spoken about her brother/accused with his two wives and children were brought by police from Hubballi bus stand on 10.11.2011. On going to police station, she enquired regarding release of the accused with two wives and children, police officials refused to release them. Therefore, she went back to Sollahapur and filed complaint on 14.11.2011. On going through the evidence of DW.1, it would go to show that no any action was taken about the alleged incident of the accused with his two wives and children were brought by police from Hubballi bus stand on 10.11.2011 till 14.11.2011 and also no any explanation has been offered for not taking any steps.
41. According to prosecution case, accused was arrested on 18.11.2011 while he was proceeding to sell gold articles in the jewelry shop situated at Madhurachetana Garden of Keshwapur, Hubballi and the accused was produced before the Magistrate when he was arrested on 18.11.2011 at Hubballi bus stand. The accused has not complained that he was arrested along with two wives and children on 10.11.2011 and kept in
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 illegal detention. The evidence placed on record by the prosecution would go to show that accused is residing on Laxmisingankeri, Dharwad. DW.1 has not offered any explanation as to the reasons why they came Hubballi to board bus to proceeding to Sollapur. Therefore, both courts below were justified in rejecting the evidence of DW.1 on alleged illegal detention of accused from 10.11.2011 to 18.11.2011. The courts below have rightly appreciated the recovery evidence by independent witnesses and that of investigating officer, further justified in holding that recovery of articles under recovery panchanama has been proved by the prosecution. There are no any valid grounds to deviate from the finding recorded by both courts below.
42. Insofar as imposition of sentence is concerned, in all the cases referred above, the Trial Court has convicted the accused for the offences punishable under Sections 457 and 380 of IPC and sentenced to under go imprisonment of three years each and pay fine of Rs.5,000/-. In default of payment of fine amount sentenced to undergo imprisonment for three months each. The First Appellate Court has modified the sentence of imprisonment for 2 ½ years for each offences under Sections
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014, 100192/2014 AND 100193/2014 457 and 380 of IPC and to pay fine of Rs.4,000/- for each of the offences. In default to pay fine, sentenced to under go simple imprisonment for two months for each of offences. The sentence passed in all the cases referred above are ordered to run concurrently. The First Appellate Court for the reasons recorded in paragraph 26 to 29, referring to the judgment of Hon'ble Apex Court has rightly extended benefit in terms of Section 427 (1) of Cr.P.C. and was justified in modifying the sentence of imprisonment. The finding recorded by the First Appellate Court with regard to the sentence is based on sound reasoning and the same does not call for any interference. Consequently, proceed to pass the following:
ORDER The revision petition filed by revision petitioner/accused as per the following table are hereby dismissed.
Revision Petition Appeal before the First Criminal case before the
Sl.No.
Numbers Appellate Court Trial Court
1 Crl.R.P.100189/2014 Crl.A.No.31/2013 CC.No.27/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
2 Crl.R.P.100190/2014 Crl.A.No.32/2013 CC.No.60/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
3 Crl.R.P.100191/2014 Crl.A.No.33/2013 CC.No.61/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
4 Crl.R.P.100192/2014 Crl.A.No.34/2013 CC.No.62/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
5 Crl.R.P.100193/2014 Crl.A.No.35/2013 CC.No.63/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
The judgment passed by the First Appellate Court on the file of Prl. District and Sessions Judge, Dharwad as referred above are confirmed.
Office is directed to transmit the Trial Court records along with copy of this order.
(Sd/-) JUDGE Vb/-