Ningappa Birappa Morkajjeri vs State Of Karnataka
2021 Latest Caselaw 3242 Kant

             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

          DATED THIS THE 27TH DAY OF AUGUST, 2021

                          BEFORE

        THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

          CRIMINAL REVISION PETITION NO.2318/2012

BETWEEN:

1.     NINGAPPA BIRAPPA MORKAJJERI
       AGED ABOUT 29 YEARS
       OCC: AGRICULTURE

2.     NAGARAJ @ NAGENDRA SIDDAPPA
       SOTTENNAVAR, AGED ABOUT 28 YEARS
       OCC: AGRICULTURE,

3.     BASAPPA,
       S/O. NAGAPPA NAREGAL,
       AGED ABOUT 31 YEARS
       OCC: AGRICULTURE

ALL ARE RESIDENTS OF ADUR VILLAGE
HANAGAL TALUK, HAVERI DISTRICT.

                                             ...PETITIONERS
(BY SRI.ARAVIND D. KULKARNI, ADVOCATE)

AND:

STATE OF KARNATAKA,
ADUR POLICE STATION,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT CIRCUIT BENCH
DHARWAD.
                                            ...RESPONDENT
(BY SRI. RAMESH B. CHIGARI, HCGP )

     THIS CRIMIANL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C. SEEKING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 07.04.2012 PASSED BY THE
SESSIONS COURT ( FAST TRACT COURT), HAVERI IN CRIMINAL
APPEAL NO.63/2008 AND ALSO THE JUDGMENT AND ORDER
DATED 08.09.2008 PASSED BY JMFC, HANAGAL IN CRIMINAL
                                   2


CASE NO 167/2005           AND    CONSEQUENTLY       ACQUIT    THE
PETITIONERS.

     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
THE RESERVED FOR ORDERS ON 23.08.2021, COMING ON FOR
'PRONOUNCEMENT OF ORDERS' THIS DAY, THE COURT MADE THE
FOLLOWING:

                                ORDER

This revision petition is filed by the accused under

Section 397 and 401 of Cr.P.C. for setting aside the

judgment of conviction and order of sentence dated

07.04.2012 passed by the Court of Sessions Judge (Fast

Track Court) at Haveri ( for short, 'Sessions Court/Judge) in

Criminal Appeal No.63/2008 and also to set aside the

judgment of conviction and order of sentence dated

08.09.2008 passed by the JMFC at Hanagal ( for short, 'trial

Court') in CC No.167/2005 by allowing the revision petition

and acquitting the revision petitioners/accused.

2. For the sake of convenience, the parties herein

are referred with the original ranks occupied by them before

the trial Court.

3. The brief facts leading to the case are that, on

14.10.2003 at about 11.00 p.m., there was theft of electrical

copper wire measuring 450 feet length connected to the

pump-set of the complainant in his land. After noticing the

same, he immediately did not lodge complaint.

Subsequently, on 17.10.2003 at about 6.00 a.m., the

complainant and other witnesses noticed that the Accused

Nos. 1 to 3 were burning the wire to collect the copper from

it in a stream near by the land of the complainant and then

the complainant and CWs. 8 to 10 surrounded these persons

and they were able to catch only accused Nos. 1 & 2, while

Accused No.3 escaped. Then the complainant has identified

his stolen wire and he lodged a complaint on 17.10.2003.

They have also produced the stolen wire along with the

accused and then the Investigating Officer undertook

investigation and recovered certain other copper and

aluminum wires at the instance of the accused and found

that there is sufficient material evidence and submitted the

charge sheet against the accused for the offences punishable

under Sections 379 and 411 read with 34 of IPC and also

under Section 98 of the Karnataka Police Act (for short, 'K.P.

Act'), which is registered in CC No.167/2005. The trial was

held and the prosecution has examined eleven witnesses and

also placed reliance on six documents as well as on eight

material objects. Then after appreciating the oral and

documentary evidence, the learned Magistrate found that the

accused have committed offences as alleged and

accordingly, convicted them by imposing sentence of six

months Simple Imprisonment with fine of Rs.500/- for the

offence punishable under Section 379 of IPC and 6 months

Simple Imprisonment with fine of Rs.500/- for the offence

punishable under Section 411 of IPC and imposing only

sentence of fine of Rs.100/- for the offence punishable

under Section 98 of the K.P. Act, with default clauses.

4. Being aggrieved by the impugned judgment of

conviction and order of sentence, the accused have preferred

appeal before the Sessions Court at Haveri in Criminal

Appeal No. 63/2008 and the learned Sessions Judge by

judgment dated 07.04.2012 dismissed the appeal by

confirming the judgment of conviction passed by the trial

Court.

5. Being aggrieved by the concurrent findings of

both the courts below, the revision petitioners/accused have

filed this revision petition.

6. Heard the arguments advanced by the learned

counsel for the revision petitioners and the learned High

Court Government Pleader ( for short, 'HCGP') appearing for

the respondent-State. The records of the Courts below are

secured and I have perused them in detail.

7. Learned counsel for revision petitioners would

contend that there is delay of three days in lodging the

complaint and it is not properly explained, and the panchas

have not fully supported the case of the prosecution. He

would also contend that there is no recovery at the instance

of Accused No.3 and no Identification Parade is conducted.

He would also contend that, as per the complaint averments,

the stolen electrical copper wire from the complainant's

pump set installed in his land was of three lines. But, the

recovered copper wire is of seven lines, which is MO.1 and as

such, there is inconsistency in complaint averments. He

would also contend that, there is no evidence to prove that

MO.1 belongs to the pump-set of the complainant and the

evidence of the complainant is silent in this regard, and the

Investigating Officers were not examined. He would also

contend that the accused have not involved in any other

crime and hence, alternately he would contend that they

may be extended the benefit of P.O. Act.

8. Per contra, the learned HCGP has denied the

allegations and has seriously objected the revision petition

contending that the complainant and other witnesses,

including recovery panchas, who are eye-witnesses, have

fully supported the prosecution case He would contend that

the material objects were recovered from Accused No.1 at

his instance and both the courts below, after appreciating

the oral and documentary evidence, have rightly convicted

the accused/revision petitioners. Hence, he would seek for

rejection of the revision petition.

9. Having heard the arguments advanced by the

learned counsels appearing on both sides and on perusing

the records, it is evident that the prosecution is relying on

the evidence of PWs. 1 to 11 and the complainant is

examined as PW.1, while PWs. 6, 7 and 10 are said to be the

eye-witnesses. The prosecution mainly relied on the

evidence of PWs. 1, 6, 7 and 10. PW.1 in his evidence

specifically deposed regarding he owning land and installing

the pump-set to Varada river and he used three lined wire

and on 14.10.2003 after switching off the motor at 6.00

p.m., he went to the house and on the next day morning,

between 7.00 and 8.00 a.m., when he came and switched on

the motor, it did not start and then, he noticed that the wire

to connect the pump-set was missing and it was cut and

stolen. He further deposed that, he brought another wire

from his house and by using the same, he switched on the

motor. He further deposed that on 17.10.2003 at about

5.30 to 6.00 a.m., he along with his son-in-law (PW.8)

came to their land and switched on the motor and while they

were returning, they noticed fire and smoke in the bank of

the stream near their land and they also smelt the smell of

burning wire and thereafter, CWs.9 and 10 were secured,

who were working in the lands nearby and they went to the

spot and there they found that the accused were burning the

wire by bundling it and they all surrounded them and they

could catch only Accused Nos. 1 & 2, while Accused No.3

fled from the spot. They further contended that, on enquiry

Accused Nos. 1 & 2 admitted regarding committing theft of

wire of pump-set in the land of the complainant and burning

the same and they took them to the police station and

lodged a complaint as per Ex.P1 on production of RTC

extract as per Ex.P2 etc.

10. The evidence of PW.1 is supported by PWs.6, 7,

and 10. Though all these witnesses have been cross-

examined at length, nothing was elicited so as to impeach

their evidence and all these witnesses have specifically

deposed about recovery of burnt wire as per MO-1. No

material is elicited in the cross-examination of these

witnesses to disbelieve their evidence or to falsely implicate

the accused in the crime. No animosity is established

between the accused and these witnesses so as to falsely

implicate the accused in the crime. Much argument is

advanced regarding disclosing the name of Manjunath as an

accused. But, this has no much relevancy, as it is to be

noted here that, though the witnesses did not specifically

disclose the name of the accused, they have identified the

accused. Further, the evidence was recorded after three

years and minor discrepancies bound to occur, and much

importance cannot be given to them. Apart from that, PWs.

1, 6 and 7 have specifically identified the accused who

involved in the incident. Apart from that, PWs. 8 and 9 have

also supported the case of the prosecution regarding seizure

of MOs. 1 & 2 in police station under mahazar-Ex.P6.

11. Further, PWs. 2 & 3 are the spot mahazar

witnesses, wherein accused were alleged to have been

burning wire and they have identified the said panchnama.

They have also identified the scene of offence and drawing

mahazars there and both the mahazars are marked at

Exs.P3 and P4.

12. Apart from that, as per the case of the

prosecution, at the instance of Accused No.1 in presence of

panchas- PWs.4 & 5, aluminum and copper wire bundles

were seized from the house of Accused No.1. Both these

witnesses have specifically deposed that Accused No.1 led

them to his house and produced three bundles of copper

wire and two bundles of aluminum wire, as per the mahazars

at Exs.P4 and P5. They have also identified these material

objects as MOs. 4 to 8. Though these witnesses are cross-

examined, nothing was elicited so as to impeach their

evidence.

13. PW.11 has simply submitted the charge sheet.

The main contention of the learned counsel for the

petitioners is that, the Investigating Officers who have

conducted investigation and who are cited as CWs. 11 & 12,

were not examined. But, non-examination of these

witnesses cannot be termed as fatal, as no contradictions or

omissions have been marked. Further, there is no reason for

discarding the evidence of PWs.1, 6, 7, 8 and 10, who have

fully supported the case of the prosecution. Further, there is

no explanation as to the recovery of MOs. 4 to 8 and it is not

the case of the accused that MOs. 4 to 8 belong to them and

they did not explain as to how they came in custody of MOs.

4 to 8. Hence, it is evident that the accused were found in

possession of stolen property ie., MOs. 4 to 8 and they are

unable to give any explanation in this regard. No doubt,

there is certain discrepancy in the evidence regarding three

line or seven line wire. But, it is to be noted here that the

evidence was recorded after lapse of three years and as such

minor discrepancies are bound to occur. Further it is not the

case of the accused that MO.1 does not pertain to the pump-

set of the complainant. No such defence is also put-forward

by the accused and the statement recorded under Section

313 of Cr.P.C. is also silent in this regard. But, in the cross-

examination, the accused tried to make-out a new case that

due to grazing of sheep in the land of the complainant, a

false complaint came to be lodged against them. However,

no such material or acceptable evidence is forthcoming in

this regard.

14. The other ground raised is that, the identification

parade was not conducted. It is to be noted here that, when

the witnesses have specifically identified Accused No.3,

mere non-holding of identification parade itself cannot be a

ground to discard the evidence led by the prosecution.

Another ground is regarding delay in filing the complaint. No

doubt, the theft was noticed by the complainant on

15.10.2003 itself but, he did not lodge a complaint and by

bringing a different wire and connecting it to his pump-set,

he started his motor. But, when they apprehended the

accused, he lodged a complaint and his conduct in this

regard cannot be termed as suspicious conduct. Further, the

other three eye-witnesses ie., PWs. 6, 7 & 10 have no

animosity against the accused to give false evidence against

the accused. Hence, the grounds urged do not have any

relevancy. Both the Courts below have appreciated the oral

and documentary evidence in detail and discrepancies

highlighted cannot go to the root of the case.

15. Learned counsel for the petitioners has placed

reliance on a decision of the Hon'ble Apex Court reported in

(2014) 1 SCC 87 (GANESHA VS. SHARANAPPA AND

ANOTHER). No doubt, in the said decision it is observed

that under Section 386 of Cr.P.C., this Court can exercise

all the powers of Appellate Court except the power to

convert a finding of acquittal into that of a conviction. It is

also held that, in exceptional cases, the High Court in

revision can set aside an order of acquittal and direct re-trail

in the case. But, this is not a case of re-trial and in the

given case, the Hon'ble Apex Court held that, finding was

based on misreading and perverse appreciation of evidence

and hence, the High Court in revision has rightly set aside

the order of acquittal, but erred in converting the order of

acquittal into conviction, instead of directing re-trial and

hence, the order was set aside. But, in the instant case,

concurrent finding of conviction is required to be considered.

The discrepancies highlighted do not go to the root of the

case so as to convert conviction into acquittal and both the

Courts below have appreciated the oral and documentary

evidence in detail and they have arrived at just decision and

have also imposed reasonable sentence. Under such

circumstances, the question of interfering with the judgment

of conviction does not arise at all.

16. The learned counsel would further contend that

the accused may be released under the provisions of the

Probation of Offenders Act, 1958 ( for short, 'P.O. Act'). But,

it is to be noted here that the accused are not only convicted

for the offence under Section 379 of IPC, but they are also

convicted for the offence punishable under Section 411 of

IPC, regarding retaining the stolen property as well as under

Section 98 of K.P. Act. It is also argued that, the accused

are not involved in any other crime. But, that cannot be a

ground for acquittal or for extending benefit of P.O.Act.

17. Looking to the facts and circumstances of the

case, this is not a fit case to extend the benefit of P.O. Act to

the accused/revision petitioners. Therefore, in the

circumstances of the case, the petition is devoid of any

merits and needs to be rejected. Accordingly, I proceed to

pass the following:-

ORDER

The petition is rejected.

Sd/-

JUDGE

KGR*