Karnataka High Court
Md.Jaffer S/O Shabbir Jahagirdar vs The State Of Karnataka on 11 December, 2023
Author: K Natarajan
Bench: K Natarajan
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NC: 2023:KHC-K:9152
CRL.RP No. 200078 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL REVISION PETITION NO. 200078 OF 2017
BETWEEN:
MD. JAFFER
S/O SHABBIR JAHAGIRDAR,
AGED ABOUT 34 YEARS, OCC: GOUNDI,
R/O: AHMED NAGAR, AZADAPUR ROAD,
TALUK AND DISTRICT: KALABURAGI - 585 201.
...PETITIONER
(BY SRI. GANESH NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH M.B.NAGAR POLICE STATION,
TALUK AND DISTRICT: KALABURAGI,
REPRESENTED BY
Digitally ADDL. STATE PUBLAIC PROSECUTOR,
signed by B
NAGAVENI HIGH COURT BUILDING, KALABURAGI - 585 207.
Location: ...RESPONDENT
High Court
Of Karnataka (BY SMT. ANITA M. REDDY, ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND SENTENCE DATED: 05.02.2011 PASSED BY
THE II ADDL. SESSIONS JUDGE AT KALABURAGI IN
CRL.APPEAL NO.36/2008 AND THEREBY CONFIRMING
UPHOLDING THE JUDGMENT PASSED BY III ADDL. JMFC AT
KALABURAGI IN C.C.NO.1365/2006 DATED: 12.01.2007.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-K:9152
CRL.RP No. 200078 of 2017
ORDER
This petition is filed by the petitioner/accused under Section 397 read with 401 of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the First Appellate Court, II Additional Sessions Judge, Kalaburagi in Crl.A.No.36/2008 by reversing the judgment of acquittal for the offence punishable under Sections 454 and 380 of IPC.
2. Heard the arguments of learned counsel for the petitioner and learned HCGP for the State.
3. The petitioner is the accused and respondent was prosecution before the Trial Court. The ranks of the parties before the First Appellate Court are retained for the sake of convenience.
4. The case of the prosecution is that, the M.B. Nagar Police Station, Kalaburagi filed charge sheet against the petitioner/accused for the offence punishable under Sections 454 and 380 of IPC. It is alleged that on 03.08.2005, CW1- complainant one Amrutharao filed complaint to the police alleging that his house was break opened and the golden ornaments were stolen by somebody. After registering the FIR, -3- NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017 during the investigation the accused was arrested by the Station bazaar Police and huge properties were recovered by the police, then the complainant was called to the Station Bazaar Police Station. He has identified these golden ornaments and later the charge sheet was filed against this appellant/accused. The accused was pleaded not guilty and claimed to be tried. Accordingly, the prosecution examined 8 witnesses, got marked 13 material objects and 5 documents. The accused was examined under Section 313 of Cr.P.C., he has denied the incriminating evidence adduced against him, but not entered into any defence. Accordingly, after hearing the arguments, the Trial Court found appellant/accused not guilty and he has been acquitted on 12.01.2007 in CC.No.1365/2006. Being aggrieved by the judgment of acquittal, the State prepared the appeal before the District Judge and the District Judge after hearing the appeal reversed the judgment and convicted the accused, which is under challenged.
5. Learned counsel for the appellant/accused has contended the judgment of the First Appellate court is erroneous. The Trial Court rightly acquitted the accused and observed that the recovery panch witness for recovery mahazar -4- NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017 P.W.4 was not from the locality, he is from some other place. Therefore, the evidence of the prosecution witnesses are insufficient to prove the guilt of the accused. Therefore, prayed for allowing the petition and setting aside the judgment of the First Appellate Court and to confirm the judgment of acquittal passed by the Trial Court.
6. Per contra, learned HCGP supported the judgment of the First Appellate Court and contended that the factum of theft was proved by the prosecution and examined P.W.1 to P.W.3. The recovery of the golden ornaments were proved from the evidence of P.W.4 and P.W.6. The P.W.5, P.W.7 and P.W.8 are the Investigating Officers who apprehended the accused and recovered the golden ornaments on the voluntary statement of the accused under Section 27 of Evidence Act, which is admissible. Merely the case dairy was not produced by the Investigating Officer, before the Trial Court, the Trial Court committed error in acquitting the accused. Therefore, the First Appellate Court rightly re-appreciated the evidence and reversed the judgment. Hence prayed for dismissing this revision petition.
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NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017
7. Having heard the arguments and perused the records, the point that arises for my consideration is, (1) Whether the First Appellate Court committed error in reversing the judgment of acquittal and convicting the appellant is liable to be set aside?
It is well settled, it is a revision and not First Appellate Court for re-appreciating the evidence on record. However, the First Appellate Court reversed the judgment, of the trail Court Therefore, it is necessary to verify the evidence adduced by the prosecution before the Trial Court.
8. The P.W.1 who is the complainant-Amruthrao has stated, he has filed the complaint as per Ex.P1 alleging that when he was out of the house, there was theft in his house, somebody broke opened the door and stolen the golden ornaments and he went to the police station and lodged the complaint as per Ex.P.1.
9. The police who registered the FIR, P.W.5/ASI who received Ex.P.4-FIR and visited the Spot and prepared the spot Panchanama as per Ex.P.2 in the presence of P.W.2/Mallinath -6- NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017 and P.W.3/Gurusharam. The factum of theft was not denied by the accused and there is no effective cross examination to disbelieve the evidence of P.W.1 to P.W.3, where the prosecution was successful in proving that there was theft of golden articles from the house of the P.W.1 on 03.08.2005, in the night hours. As per the evidence of P.W.7, he has filed the charge sheet where the accused was arrested by the Station Bazaar Police Station and there was a recovery made by the police on the voluntary statement of the accused. The articles from M.O.1 to M.O.12 were recovered from the P.W.6. The confession statement made by the accused is not admissible under Sections 24, 25 and 26 of the Evidence Act, except Section 27, Of there is a recovery which is admissible. On the voluntary statement of the accused, the Investigating Officer secured the presence of P.W.4/Mallikargun who is a Senior Assistance in Electrical Department as panch witness and the accused lead them to the shop of the P.W.6 one Sudesh where the accused sold the golden ornaments of 220 gms for Rs.70,000/-. The evidence of P.W.6 and P.W.4 corroborates each other, regarding the first instance when the accused sold 100 gms of gold for Rs.30,000/- and after some time, he has -7- NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017 sold 120 gms of gold for Rs.40,000/-, which were seized by the Investigating Officer under the panchanama, as per Ex.P.3 in the presence of P.W.4 from the P.W.6. The evidence of P.W.4, P.W.6 and P.W.7 corroborates to each other in respect of recovery of golden ornaments, which was stolen from the house of P.W.1 and the same was identified by the P.W.1 in the evidence. The P.W.8 is another Investigating Officer in this case. Ofcourse, the accused was arrested by some other police station and the recovery was made by some other police station and these police have categorically stated, the golden ornaments were recovered from P.W.6, which was stolen from the house of P.W.1, which was identified by the P.W.1., P.W.2 and P.W.6 and the Investigating Officer.
Considering the entire evidence on record, the prosecution was successful in proving the guilt of the accused, where the accused broke opened the door with an axe and stolen the golden ornaments from the house of the P.W.1. The MO-13 is the broken lock and bolt which were also identified by the P.W.1. The Trial Court acquitted the appellant/accused only on the ground, the case dairy was not produced for the perusal of the court, which is not correct. The case dairy is -8- NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017 only meant for the investigation officers for updating the day to day investigation done in the particular case. It is not permitted to give copy to the defence counsel for verifying the same, except that the charge sheet shall be produced before the court, a copy shall be supplied to the accused under Section 207 of Cr.P.C. Therefore, the Trial Court committed error in holding, that the case dairy is not produced and doubting the case of the prosecution, is not correct. Therefore, the First Appellate Court re-appreciated the evidence on record, rightly found the accused guilty and convicted him for offence punishable under Sections 454 and 380 of IPC. Considering the entire evidence on record, I am of the view the Trial Court committed error in acquitting the appellant accused as the First Appellate Court rightly convicted the petitioner/accused for the offence punishable under Sections 454 and 380 of IPC.
On perusal of the sentence passed by the First Appellate Court, the accused is sentenced to undergo imprisonment for a period of two years and to pay fine of Rs.500/- in default of payment of fine to undergo three months for the offence punishable under Sections 454 and 380 of IPC, where the offence committed by the accused is heinous one and he is also -9- NC: 2023:KHC-K:9152 CRL.RP No. 200078 of 2017 a habitual offender. He has committed offences in various cases and several cases were registered and several properties were acquired at the instance of the accused. Therefore, I am of the view, it is not fit case for the accused to be released on probation of offenders act, 1958 he is habitual offender, he has committed offence which is heinous one. Therefore, I am of the view, even the sentence passed by the First Appellate Court need not be reduced or modified and judgment of the first appellant Court does not call for interference.
Accordingly revision petition field by the petitioner is hereby dismissed.
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JUDGE AKV List No.: 1 Sl No.: 40 CT:SK