Umesh Poojary vs The State Of Karnataka
2021 Latest Caselaw 6189 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 15TH DAY OF DECEMBER, 2021

                       BEFORE

       THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO. 556 OF 2015

BETWEEN:

UMESH POOJARY,
AGED ABOUT 37 YEARS,
S/O SHESHA POOJARY,
R/AT CHIPPIBETTU,
BRAHMAVARA POST,
HANDADI VILLAGE,
UDUPI TALUK-576 201.
                                   ...PETITIONER
(BY SRI. PAVANA CHANDRA SHETTY, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
BRAHMAVARA POLICE,
REPRESENTED BY
STATE PUBLIC PROSECUTOR-560 001.
                                   ...RESPONDENT
(BY SRI. KRISHNA KUMAR K.K, ADVOCATE)

     THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C PRAYING
TO SET ASIDE THE JUDGMENT AND ORDER DATED
25.09.2013 PASSED BY THE ADDITIONAL CIVIL JUDGE
AND JMFC, UDUPI IN C.C.NO.2905/2011 AND ORDER
                                 2

DATED 22.04.2015 PASSED BY THE PRINCIPAL SENIOR
JUDGE, UDUPI DISTRICT IN CRL.A.NO.98/2013.

     THIS CRIMINAL REVISION PETITION COMING FOR
FURTHER HEARING,, THIS DAY, THE COURT MADE THE
FOLLOWING:-

                             ORDER

Heard Sri. Pavan Chandra Shetty, learned counsel

for the revision petitioner and Sri. Krishna Kumar K.K,

learned counsel for respondent and perused the records.

2. The revision petition is filed by the revision

petitioner/accused challenging the order dated

22.09.2013 passed in C.C.No.2905/2011 on the file of

the Additional Civil Judge and JMFC at Udupi, which was

confirmed in Crl.A.No.98/2013 dated 22.04.2015 passed

by the Principal Sessions Judge, Udupi District, Udupi at

Chikkamagaluru.

3. The accused, who suffered an order of

conviction under the provision of Section 380 of Indian

Penal Code and ordered to undergo rigorous

imprisonment for a period of two years, whereby the

accused came to be convicted and sentenced as under:

"Acting under Section 248(2) of Cr.P.C. the accused is hereby convicted for the offences punishable under Section 380 of IPC and sentenced to undergo rigorous imprisonment for a period of two years."

which was confirmed in Crl.A.No.98/2013.

Therefore, the revision petitioner is in this revision.

4. The brief facts of the case are as under:-

Kumara, son of Koti Poojary, Indira Nagar, Bramhavar,

Udupi Talu lodged a written complaint to the Brahmavar

Police on 22.09.2011 alleging that on 06.05.2009, at

about 11.00 p.m., during night hours after completing

dinner, he was watching T.V and thereafter he slept in

the hall of his house along with other inmates of the

house, however, they forgot to latch the door. It is

further contended in the complaint that on 07.05.2009

at about 7.00 a.m., he noticed that the chain weighing

about 19 grams worth around Rs.50,000/- was missing

from his neck and on seeing the newspaper report on

22.09.2011 and seizure of golden ornaments from the

said accused, he visited Brahmavar Police Station and

identified the gold chain shown to him by the police.

The police then registered a case in Crime No.199/2011

for the offence punishable under Section 380 of IPC and

PSI, Brahmavar Police conducted investigation and laid

charge sheet against the accused for the said offence.

After filing of the charge, the cognizance was taken and

presence of the accused was secured and charge was

framed. Since accused pleaded not guilty, trial was

held. In order to prove the case of the prosecution, the

prosecution in all examined 10 witnesses as PWs.1 to

PW.10 and relied upon eight documents, which were

exhibited and marked as Exs.P1 to P8(a) and golden

chain which was thieved were recovered from the

custody of the accused was marked at M.O.1. On

conclusion of the prosecution evidence, the accused

statement as contemplated under Section 313 of

Cr.P.C was recorded, wherein he denied all the

incriminating circumstances. Thereafter, the learned

trial judge heard the parties in detail and passed an

order of conviction, convicted the accused for the

offence punishable under Section 380 of IPC and

sentenced him to undergo rigorous imprisonment for a

period of two years.

5. Being aggrieved by the same, the accused

preferred an appeal before the District Judge in

Crl.A.No.98/2013 on the file of the Principal District

Judge, Udupi. The learned judge in the First appellate

Court secured the records and after hearing the parties

in detail by judgment dated 22.02.2015 dismissed the

appeal of the accused by confirming the order of the

sentence passed by the trial Magistrate.

6. Being aggrieved by the same, the accused

has approached this Court in this revision.

7. In the revision petition following

grounds were raised:-

• The Crime NO.199/2011 generated on the basis of crime No.74/2009 before the respondent police. When the respondent police filed C-report in Crime NO.74/2009 question of registering one more crime i.e., Crime No.199/2011 by the respondent police dated 22.09.2011 does not arise. Under this circumstances, prima-facie the main crime NO.199/2011 does not stand question of surviving one more crime number 199/2011 does not stand question of surviving one more crime No.199/2011 against the petitioner does not arise.

• PW.1 Kumar not filed any complaint against any one. But, complainant complaint in crime No.199/2011 on the basis of daily news paper report. As per PW.1/Complainant averments, he lost his chain by dated 6/7.5.2009 from his house and as per complainant averments in the complaint, because of certain obligation in the family he has not filed complaint before the police and he also specified about the filing complaint. Because of recovery he filed complaint. It shows that the background of the case. But both the 1st appellate Court as well as trial Court failed to appreciate the evidence available on record.

• PW.1 Kumar not stated anything about the petitioner herein and as per his evidence petitioner is staying half km away from

respondent police station and in which the paper publication about the episode, no such name found in the newspaper. But both the lower courts not consider the criminal conspiracy.

• As per PW.2 statement before the trial Court he has not seen the petitioner herein.

• The respondent police conducted the spot mahazar during the year 2011 after lapse of 2 ½ years and no such credible evidence not found from the PW.1 house and the learned trial court wrongly assumed that petitioner committed said offence. The learned trial Court ought not to have acted convenient evidence of prosecution witness.

• Both the trial Court as well as 1st appellate court not appreciate the evidence on the record as per legal manner and came to wrong conclusion against the material available on record.

• As per the evidence of PW.16 K.

Hoskerappa who found Revision petitioner in the Brahmavara Bus stand dated 21.09.2011 at about 8.00 a.m., and arrested the petitioner. PW.16 without any identification falsely implicated and arrested revision petitioner. And though there was no specific proof to the alleged offence against the petitioner after 2 years.

• The learned both courts failed to note that alleged theft took place on 17.04.2009 and the petitioner was arrested on 21.09.2011, after about 2 ½ years, the

respondent police without any specific identification arrested the petitioner, the possibility of recovery is almost impossible at that distance of the time.

• The learned both Courts not given much importance to facts for the C-report was already filed in the case and trial Court not to have given much importance to Ex.P9 confession statement given by Taranath Shetty.

• The seizure of the gold ornaments from the possession of the petitioner is serious doubtful one. As per the prosecution evidence the said gold ornaments have been recovered after gap of 2 years, but the learned trial Court as well as 1st appellate court not appreciated to the contention of the petitioner.

• The confession statement were not proved, the spot mahazar, seizure mahazar were proved and the entire alleged recovery is doubtful, but the same has been not considered.

• The learned trial court as well as 1st appellate court not made any attempt to ruled out the doubt established by the petitioner herein. At the time of spot mahazar and seizing the property and confession statement were not proved.

• The 1st appellate court not appreciated the contention taken by the petitioner herein and by following the trial court judgment gave the wrong findings, though petitioner

urged with trial Court documents and findings to the wrong conclusion.

• No accused or culprit not keep the theft article for such long period. Naturally the thief dispose the stolen material at the earliest, petitioner is hale from agricultural family and till today there is no allegation against him under the any provision of law of the land.

• All the material witness was the related to each other and they are belonging from very same community. Under this circumstances blindly believing the witness statement is not correct.

• The respondent police at the time of filing the C-report in the above said crime number stated that, there was no proof or evidence to recover the material from any person and also submitted that in the C- Report i.e., respondent made all honest effort to trace out person and his associates, vehicle. But, in the charge sheet the respondent police made statement and findings against their own C- report. It shows the background of the entire facts and circumstances of the case.

• Petitioner is aged about 38 years and he is doing agricultural work, till today he has committed any offence and petitioner is also have deep root in the society and now petitioner is also doing driving work.

• Petitioner not arrested at the bus stand on 21.09.2011 at about 8.00 a.m., and in the

further recording of mahazar, it shows that some more article also theft from the one Mr. Kumar house which is situated at Varamballi village of Indiranagar, Brahmavara of Udupi Taluk. But, the prosecution made him as a witness to the episode. It clearly shows that the false story of the prosecution.

• As per Mahazer in Crime NO.74/2009, petitioner house is a Mangalore tiles roofing house but unfortunately, the respondent police his house shows as Terrace house. It shows the false implication, false mahazer and false episode of the prosecution. Ultimately the trial Court also made wrong conclusion to the above subject matter, which is not correct under the eye of law.

• At any event the trial court committed serious error by applying rulings to the subject matter. The rulings are applicable when evidence is proved against the culprit. And the when prosecution not proved beyond reasonable doubt, question of order for conviction is not sustainable one.

• Petitioner is reserved his liberty to canvas certain grounds at the time argument, which is not taken in the grounds.

8. Reiterating the above grounds, Sri. Pavana

Chandra Shetty, learned counsel for revision petitioner

vehemently contended that both the Courts have not

properly appreciated the material evidence on record in

proper perspective and sought for allowing the revision

petition. He further contended that huge delay of more

than two years is not explained properly by the

complainant, which has been ignored by the trial

Magistrate and the learned Judge in the First Appellate

Court and sought for allowing the revision.

Alternatively, contended that the accused be shown

leniency and he may be granted the benefit of probation

and sought for allowing the revision petition.

9. Per contra, Sri. Krishna Kumar K.K, learned

High Court Government Pleader for respondent

supported the impugned judgment and contended that

valuable golden chain, which is marked at M.O.1 has

been seized from the custody of the accused at the

instance of voluntary statement given by accused which

clearly establishes all the required ingredients attracted

under Section 380 of IPC, which has been rightly

appreciated by both the Courts and sought for dismissal

of the revision petition.

10. In view of the rival contentions and having

regard to the limited scope of revisional jurisdiction, the

following points would arise for consideration:

i. Whether the finding recorded by the trial Magistrate that the accused is guilty of the offence punishable under Section 380 of IPC, which is confirmed by the learned judge in the First Appellate Court in Crl.A. No.98/2013 and 99/2013 is suffering from legal infirmity or perversity and thus calls for interference?

ii. Whether the sentence is excessive ?

11. In the case on hand, admittedly, the

complaint came to be filed on 22.09.2011. The incident

according to the complainant has occurred in the

intervening night of 06.05.2009 and 07.05.2009,

whereby he lost the gold chain, which was worn by him

in his neck. The complaint came to be lodged only after

seeing the paper notification that the Brahmavar police

has arrested a known thief and recovered huge quantity

of the gold ornaments. Being anxious about the lost

gold chain, the complainant also visited the police

station and identified the gold chain which was in the

custody of the police, which was recovered at the

instance of the accused. After identification of the gold

chain, he has lodged a written complaint. Admittedly,

till 22.09.2011, the complainant was not in a position to

find out whether he has lost the gold chain in the house

or sometime later. The cross-examination to PW1 and

the police witnesses clearly establishes that the accused

is totally innocent and he is no way connected with the

offence. Admittedly, the gold chain is weighing 19

grams valued around Rs.50,000/- as on the date of

complaint. In the absence of previous enmity or

animosity, the accused and the prosecution witnesses,

why would the investigation agency falsely implicate the

accused by implanting the above offence with M.O.1 is

the question that remains unanswered. Admittedly, the

Mahazar content clearly shows that the police was able

to arrest the accused in connection with some other

crime and Seizure Mahazar at Ex.P4 clearly indicate that

the police were able to seize M.O.1 under Ex.P4.

Thereafter, on the basis of the complaint, they have

visited and conducted the Spot Mahazar at Ex.P2. It is

accused, who has shown the place of incident and in

pursuance to the voluntary statement of the accused

and when these factors viewed cumulatively, this Court

is of considered opinion that prosecution is successful in

establishing the nexus between the seized gold chain

marked at M.O.1 and the accused. The same has been

rightly appreciated by the trial Magistrate and re-

appreciated by the First Appellate Court. There is no

material on record to discredit the testimony of the

prosecution witnesses or disbelieve the credibility as

well. Under such circumstances, this Court is of the

considered opinion that there is no legal infirmity or

perversity in reaching out such a finding by the trial

Magistrate or by the learned judge in the First Appellate

Court and therefore point No.1 is answered in the

'Negative'.

Re. point No.2.

12. Admittedly, the contents of Seizure Mahazar

shows that the accused in not only involved in the crime

but also involved in several other crimes and he is a

known thief. Therefore, he cannot be termed as a first

time offender so as to grant the benefit of probation. No

other points are urged either to show any leniency to

the accused. Under such circumstances, the sentence of

rigorous imprisonment ordered by the trial Magistrate is

just and proper and in the case on hand, no interference

is called for. Accordingly, point No.2 is answered in the

'Negative' and pass the following:-

ORDER

i. The Criminal Revision Petition is dismissed.

ii. Time is granted to the accused to surrender before the trial Magistrate on or before 31.12.2021.

Sd/-

JUDGE

AG