Parveez Pasha S/O Firoz Pasha vs The State By Tilak Park
2022 Latest Caselaw 10406 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 6TH DAY OF JULY, 2022

                              BEFORE

 THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

    CRIMINAL REVISION PETITION No.155 OF 2012

BETWEEN:

Parveez Pasha
S/o. Firoz Pasha age 24 years,
Resident of 2nd Cross,
P.H. Colony, Tumkur.
                                                      ..Petitioner
(By Sri. Prabhugoud B. Tumbigi, Amicus Curiae)

AND:

The State by Tilak Park
Police Tumkur through
State Public Prosecutor
High Court of Karnataka
Bangalore.
                                                     .. Respondent

(By Sri. K. Nageshwarappa, High Court Govt. Pleader)

                                  ****
     This Criminal Revision Petition is filed under Section 397 and
401 of the Code of Criminal Procedure, 1973, with the following
prayer:
         " 1) That the lower court's records of C.C.No.2617/2006,
   from the 3rd Additional Civil Judge (Jr. Div.) and JMFC Court
   Tumkur, as well as records of Cri.Appeal No.51/2008 from the Fast
   Track Court-III Tumkur may please be called for;
                                                        Crl.R.P.No.155/2012
                                    2


          2) That the judgment and Order dated 16-09-2011 of
   confirmation of conviction of petitioner passed in Criminal Appeal
   No.51/2008 of Fast Track Court-III Tumkur may please be set
   aside to meet the ends of justice and equity.
          3) that any other relief for which the petitioner is entitled
   may also be granted."


      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day, the
Court made the following:

                              ORDER

The present petitioner was accused in

C.C.No.2617/2006, in the Court of the III Additional Civil

Judge (Jr.Dn.) and Judicial Magistrate First Class, at

Tumakuru, (hereinafter for brevity referred to as "the Trial

Court"), who, by the judgment of conviction and order on

sentence dated 04-03-2008 of the Trial Court, was convicted

for the offence punishable under Section 380 of the Indian

Penal Code, 1860 (hereinafter for brevity referred to as "the

IPC") and was sentenced accordingly.

Aggrieved by the same, the accused preferred an appeal

in Criminal Appeal No.51/2008, in the Court of the Fast Track

Court-III at Tumkur, (hereinafter for brevity referred to as Crl.R.P.No.155/2012

the "the Sessions Judge's Court"), which, after hearing both

side, dismissed the appeal, confirming the impugned

judgment of conviction and order on sentence passed by the

Trial Court in C.C.No.2617/2006. It is challenging the

judgments of conviction and order on sentence passed by both

the Trial Court as well the learned Sessions Judge's Court, the

accused/petitioner herein has preferred the present revision

petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on the date 06-06-2006, when PW-1

(CW-1) had kept his golden chain in his house at

Sadashivanagara, within the limits of the complainant Police

Station and had gone to take bath, he noticed that the said

chain was found missing when he finished his bath and saw to

it. He searched for the said chain in his house and thereafter,

kept quiet for some time without proceeding further in the

matter. After some time, through Newspaper, he came to Crl.R.P.No.155/2012

know that the complainant Police had recovered some quantity

of stolen articles including a golden chain, as such, he went to

the Police Station on the date 17-08-2006. On finding his

stolen chain in the Police Station and identifying the same, he

lodged a complaint with the Police. According to the him

(complainant), after registering the complaint, the Police

visited the spot and drew a scene of offence panchanama.

After completing the investigation, the Police filed charge

sheet against the accused for the offence punishable under

Section 380 of the IPC.

3. The accused appeared in the Trial Court and

contested the matter through his counsel. The accused

pleaded not guilty. As such, in order to prove the alleged guilt

against the accused, the prosecution got examined in all five

(5) witnesses from PW-1 to PW-5, got marked documents

from Exs.P-1 to P-4(b) and produced onr Material Object at Crl.R.P.No.155/2012

MO-1. However, neither any witness was examined nor any

documents were got marked on behalf of the accused.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

6. In view of the fact that the learned counsel for the

revision petitioner (accused) failed to appear before this Court on

several dates of hearing, this Court by its reasoned order dated

16-06-2022, appointed learned counsel - Sri. Prabhugoud B.

Tumbigi, as Amicus Curiae for the petitioner/accused, to represent

him in this case.

7. Learned Amicus Curiae for the accused/revision

petitioner and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

Crl.R.P.No.155/2012

8. Heard the learned counsels from both side. Perused

the materials placed before this Court including the impugned

judgments passed by both the Courts and also the Trial Court

and Sessions Judge's Court's records.

9. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

10. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that, the accused has committed the alleged offence under Section 380 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court?

11. Learned Amicus Curiae for the petitioner (accused)

in his brief argument submitted that, there is an inordinate

delay in lodging the complaint which has not been Crl.R.P.No.155/2012

satisfactorily explained by the complainant. With more

emphasis, he submitted that the Investigating Officer who is

said to have conducted the investigation in this matter has not

been examined by the prosecution which is fatal to the case of

the prosecution. He also submitted that, due to non-

examination of the Investigating Officer, the alleged recovery

of the alleged stolen articles at the alleged instance of the

accused also has not been proved. However, both the Trial

Court and the Sessions Judge's Court have erroneously held

the accused guilty of the alleged offence punishable under

Section 380 of the IPC.

12. Learned High Court Government Pleader for the

respondent-State in his argument submitted that, the delay in

lodging the complaint has been satisfactorily explained by the

complainant in his complaint itself. He further submitted that

the non-examination of the Investigating Officer is not fatal to

the case of the prosecution. He also submitted that, since the Crl.R.P.No.155/2012

recovery at the instance of the accused has been proved by

the other material witnesses examined by the prosecution, the

non-examination of the Investigating Officer would not, in any

manner, weaken the case of the prosecution, as such, both

the Trial Court and the Sessions Judge's Court since have

appreciated the evidence placed before them in their proper

perspective and rightly convicted the accused for the alleged

guilt, interference in the impugned judgments is not

warranted.

13. Among the five witnesses examined by the

prosecution, PW-1 is the complainant, who, in his

examination-in-chief has reiterated the contentions taken up

by him in his complaint, which complaint he has identified and

got marked as Ex.P-1. He has stated that though his chain

was found lost on the date 06-06-2006, however, he kept

quiet. Subsequently, based upon a Newspaper report about

the recovery of some golden ornaments by the Police, he went Crl.R.P.No.155/2012

to the complainant Police Station, where, after seeing his lost

chain and identifying the same, lodged the complaint. He has

also stated that the Police had drawn a scene of offence

panchanama on the spot shown by him as per Ex.P-2.

Further, the witness has stated that some days afterwards,

the Police had brought the accused to his house, who stated

before the Police that, he had stolen the golden chain from

the said house, in which regard also, a panchanama was

drawn, which this witness has identified at Ex.P-3.

Thus, according to the evidence of PW-1, before he

could lodge his complaint on 17-08-2006, there was already

the alleged recovery of the golden chain, which, according to

the prosecution, was at the instance of the accused.

Therefore, it could not be the case of the prosecution that

after the complaint dated 17-08-2006, they apprehended the

accused and recovered the stolen golden chain at MO-1 at the

instance of the accused under a panchanama. However,

according to the learned High Court Government Pleader for Crl.R.P.No.155/2012

the respondent, the seizure of the articles was not only at the

instance of the accused, but also it was under a seizure

panchanama as per Ex.P-4.

With great emphasis, learned High Court Government

Pleader for the respondent State submitted that, the recovery

of the stolen article i.e. MO-1 was made on 21-08-2006, at the

instance of the accused, to which act, PW-2 was present as a

pancha and has witnessed the incident by subscribing his

signature as a witness to the seizure panchanama at Ex.P-4.

14. A reading of the evidence of PW-2 (CW-2) - Yateesh

would go to show that, he has stated that, about one and a

half years prior to the date of his evidence i.e. on 24-01-2008,

the Police had summoned him to the Police Station and in the

Police Station, the accused No.3 was present. In the very

next breath, the said witness has stated that since his chain

was also stolen, he had been to the Police Station to lodge a

complaint. Thus, in his very opening statement itself, he has Crl.R.P.No.155/2012

made two contradictory statements, in as much as, initially

stating that the Police had summoned him to the Police

Station and subsequently stating that he himself had been to

the Police Station to lodge a complaint regarding his missing

golden chain.

He has further stated that at that time, the accused No.3,

who, according to him was the accused present in the Court,

was also present. Whether the accused in the instant case was

the accused No.3, or was he a sole accused is not clear. Thus,

this witness calling the present accused as the third accused is

also not the case of the prosecution as the case of the

prosecution is that the present petitioner was the sole accused in

the alleged commission of the crime in the instant case.

The said witness, i.e. PW-2 has further stated that, after

he seeing the accused in the Police Station, the accused stated

that it was him who had stolen the chain of PW-2 and also

revealed about he committing theft of several other

articles at different places and that he would show those Crl.R.P.No.155/2012

articles if he is taken to his house at Poorus Colony.

Accordingly, he led them to his house at Poorus Colony.

By stating as above, PW-2 has given more emphasis

about the accused producing the alleged stolen chain of this

witness, rather than the alleged stolen chain of PW-1 the

complainant.

PW-2 has further stated that the accused led them to his

house and from inside of his house, he brought and produced

Tape Recorder, batteries and golden chains. The Police drew a

seizure panchanama in his presence and the witness has

identified the said panchanama and his signature therein at

Exs.P-4 and P-4(a) respectively.

It is relying upon the said evidence of PW-2 and alleged

seizure panchanama at Ex.P-4, learned High Court

Government Pleader vehemently submitted that the recovery

at the instance of the accused has been proved beyond

reasonable doubt and the recovery has been established by Crl.R.P.No.155/2012

the oral evidence of PW-2 coupled with the documentary

evidence at Ex.P-4.

15. A careful perusal of the documentary evidence at

Ex.P-4 would go to show that the said Mahazar is shown to

have been drawn on the date 21-08-2006. Even according to

PW-1 the complainant, by the time he went to the Police

Station on the date 17-08-2006, his alleged stolen article was

already there in the Police Station, as such, it is after

identifying his lost chain in the Police Station, he proceeded to

lodge a complaint. That means, at least four days prior to the

alleged seizure panchanama at Ex.P-4, the alleged stolen

article of the complainant which is at MO-1 was already there

before the Police in the Police station. Therefore, it cannot be

deduced that the stolen article at MO-1, as identified by PW-1

was seized under a panchanama at Ex.P-4.

In addition to the above, a careful reading of the

document at Ex.P-4 also would go to show that, nowhere in Crl.R.P.No.155/2012

the said panchanama, it is mentioned that the golden chain

said to have been stolen from the house of PW-1 was the one

among other items said to have been produced by the accused

under the said panchanama at Ex.P-4.

On the other hand, a combined reading of the evidence

of PW-2 with the documentary evidence at Ex.P-4 would go to

show that, PW-2 was intended to say and has stated that,

since his chain also was stolen and accused was alleged to

have revealed in the Police Station before him that he would

produce the stolen articles and the accused led them to his

house and produced certain articles which appears to have

included the alleged stolen chain of PW-2 but not of PW-1,

which is the subject matter of the present case. Therefore,

Ex.P-4, is, in no way, connected to the alleged seizure

panchanama or recovery said to have been made by the Police

in the instant case.

This is further more supported by the evidence of none

else than PW-2 himself, who, in his very same evidence, has Crl.R.P.No.155/2012

further stated that, the accused produced the chain at MO-1 in

the Police Station itself. Stating so, PW-2 has identified the

chain at MO-1 in the Court. That categorical statement made

by none else than PW-2 who is said to be the pancha to Ex.P-4

would further make it clear that, the alleged seizure shown to

have been made in Ex.P-2 was with respect to some other

articles, but not with MO-1 and that if at all MO-1 was

secured/traced by the Police, that was not in the Police

Station, but anywhere outside. Therefore, the argument of

the learned High Court Government Pleader that the evidence

of PW-2 corroborated by the documentary evidence at Ex.P-4

would establish the recovery made at the instance of the

accused, is not acceptable.

16. The above finding further gets corroboration in the

evidence of PW-3 and PW-5. According to PW-3, he is one

more pancha to the alleged seizure panchanama at Ex.P-4.

The said witness has stated that, the accused led them to his Crl.R.P.No.155/2012

house at Poorus Colony and from his house produced golden

chain, Tape Recorder and batteries which the Police seized by

drawing a seizure panchanama as per Ex.P-4. Except stating

this, the witness has not stated that the said golden chain

alleged to have been produced by the accused in his house

was the very same golden chain which was at MO-1.

Therefore, the golden chain said to have been produced by the

accused from his house and said to have been seized under

Ex.P-4 cannot be the chain at MO-1.

Admittedly, PW-5 is a Police Constable working in the

complainant Police Station. He has stated that on the date

21-08-2006, which is admittedly, four days after the

registration of the complaint in the instant case, the Police

Inspector accompanied by this witness and panchas, based on

suspicion, apprehended the accused who was moving near Crl.R.P.No.155/2012

Caltex Circle, B.H. Road. After apprehending him, he

produced him before the Police Sub-Inspector in the Police

Station. There, in the Police Station, at the enquiry of the

Police Inspector, the accused produced a chain, which was in

his possession, in front of the Police Inspector and then he led

them to his house and from the house produced five batteries,

six Tape Recorders and two golden chains, which the Police

Inspector seized by drawing a seizure panchanama as per

Ex.P-4. Thus, according to PW-5, the first golden chain said to

have been recovered at the instance of the accused was not

at his house, but in the Police Station. The said recovery was

not on 17-08-2006 i.e. when the complainant went to the

Police Station and identified his lost chain in the Station, but it

was four days thereafter, that was on 21-08-2006, as such,

the chain alleged to have been produced by the accused in the

Police Station cannot be the one at MO-1. Further, it is also

not the evidence of PW-5 the Police Constable that, the

remaining two chains said to have been produced by the Crl.R.P.No.155/2012

accused from his house also included the chain at MO-1.

Therefore, the alleged production of the articles from the

house of the accused which were said to have been seized

under Ex.P-4 cannot include the chain at MO-1. For this

reason also, the alleged recovery of the chain at MO-1, which

according to the learned High Court Government Pleader was

under a panchanama at Ex.P-4, has not stood proved.

17. It is in the above circumstance, it was very much

necessary for the prosecution to examine the Investigating

Officer who is said to have recorded the voluntary statement

of the accused and is said to have seized, if any, of golden

chains, more particularly, MO-1, at the instance or from the

possession of the accused. Therefore, though it cannot be

held that, in all cases, necessarily the Investigating Officer

must be examined, however, in those cases where in order to

prove the alleged guilt of the accused beyond all reasonable

doubts, the circumstances warrants that the Investigating Crl.R.P.No.155/2012

Officer should necessarily be examined, in such cases he has

to be necessarily examined. The instant case is one such case

where since the evidence of other prosecution witnesses

including the alleged pancha to the seizure panchanama could

not able to establish the alleged seizure of the article or the

alleged recovery at the instance of the accused, it was very

much necessary for the prosecution to examine the

Investigating Officer.

Admittedly, in the instant case, the Investigating Officer

has not been examined. Further, as analysed above, the

evidence of neither PW-2 nor PW-3, in any manner, inspires

confidence to believe their version as true. The evidence of

PW-2 is full of major contradictions within itself and the

evidence of PW-4 and PW-5 also gives a different picture than

what the prosecution's case is, whereas both the Trial Court

as well the Sessions Judge's Court, without appreciating

the evidence placed before them in their proper

perspective, have merely embraced the statement of PW-2 Crl.R.P.No.155/2012

that at the instance of the accused, a seizure panchanama was

made as per Ex.P-4 and after seeing that, the complainant has

identified the chain at MO-1, have hastily jumped to a

conclusion that, the prosecution has proved the alleged guilt

against the accused beyond all reasonable doubts. Since the

said finding of the Trial Court is now proved to be a perverse

and an erroneous finding, the same warrants interference at

the hands of this Court.

Accordingly, I proceed to pass the following:

ORDER

[i] The Criminal Revision Petition stands

allowed.

[ii] The impugned judgment of conviction

and order on sentence dated 04-03-2008, passed

by the III Additional Civil Judge (Jr.Dn.) and

Judicial Magistrate First Class, at Tumakuru, in

C.C.No.2617/2006, holding the accused guilty of

the offence punishable under Section 380 of the Crl.R.P.No.155/2012

Indian Penal Code, 1860, which was further

confirmed by the judgment and order dated

16-09-2011, passed by the Court of the Fast Track

Court-III, at Tumkur, in Criminal Appeal

No.51/2008, are hereby set aside;

[iii] The revision petitioner (accused) -

Parveez Pasha, S/o. Firoz Pasha, age 24 years,

Resident of 2nd Cross, P.H. Colony, Tumkur, stands

acquitted of the offence punishable under Section

380 of the Indian Penal Code, 1860.

However, the order passed by the Trial Court,

with respect to MO-1 remains un-altered.

The Court, while acknowledging the services rendered by

the learned Amicus Curiae for the revision petitioner -

Sri. Prabhugoud B. Tumbigi, recommends honorarium of a

sum of not less than `4,000/- payable to him by the Registry.

Crl.R.P.No.155/2012

Registry to transmit a copy of this order to both the Trial

Court and also the learned Sessions Judge's Court along with

their respective records, immediately.

Sd/-

JUDGE

BMV*