Sri Yarriswamy vs State Of Karnataka
2022 Latest Caselaw 8545 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF JUNE 2022

                           BEFORE

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

   CRIMINAL REVISION PETITION No.927 OF 2013

BETWEEN:

Sri Yarriswamy,
S/o Channamallappa,
Aged about 22 years,
Agriculturist,
R/o Bommasamudra,
Challakere Taluk,
Chithradurga District-577 522.                 .. Petitioner

 ( By Sri S.Javeed, Amicus Curiae )

AND:

State of Karnataka,
The Circle Inspector of Police,
Challakere Police Station,
Challakere,
Chithradurga District-577 522.                 .. Respondent

 ( By Sri Rahul Rai K., HCGP)

      This Criminal Revision Petition is filed under Section 397
of Cr.P.C. praying to call for the entire records from the
Principal District and Sessions Judge at Chitradurga in
Crl.Appeal No.90/2012 on its entirety before this Hon'ble Court,
to set aside the impugned orders passed by the Lower Courts
below at JMFC at Challakere in CC.No.83/2011 on its file and
the order dated 8.11.2012 produced at Annexure-A, to set
aside the impugned order dated 20.04.2013, passed by the
learned Principal Dist. and Sessions Judge at Chitradurga in
                                                      Crl.R.P.No.927/2013
                                  2


Criminal Appeal No.90/2012, produced at Annexure-B and to
pass such other order/s or directions that may be necessary
upon the facts and circumstances of the case and to allow this
petition, as prayed for with cost, in the interest of justice and
equity.

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

                              ORDER

The present petitioner was tried as accused by the

Court of learned Judicial Magistrate First Class,

Challakere, (hereinafter for brevity referred to as the

`trial Court') in C.C.No.83/2011, for the offences

punishable under Sections 457, 380 of Indian Penal Code,

1860 (hereinafter for brevity referred to as the `IPC') and

was convicted by the judgment of conviction and order on

sentence dated 08.11.2012 and was sentenced

accordingly.

Aggrieved by the same, the accused preferred an

appeal in Criminal Appeal No.90/2012, before the learned

Prl.District and Sessions Judge, Chitradurga, (hereinafter

for brevity referred to as the `Sessions Judge's Court'), Crl.R.P.No.927/2013

which after hearing both side, dismissed the appeal filed

by the accused by its judgment dated 20.04.2013. Being

aggrieved by the same, the accused has preferred the

present revision petition.

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

trial Court was that, on the night of the date 16.09.2010,

the accused has committed lurking hour trespass by

entering into the temple of Sri Renuka Yallamma at

Ramajogihalli, within the limits of complainant-Police

Station by breaking the lock put to the door of the said

temple and committed theft of two silver Mukha Padma of

Goddess, five silver umbrellas, Nagara Hede, Nosery and

two golden eyes of the Goddess and subsequently

converted the silver articles into ingot weighing about

2.959 Kgs., as such, has committed the offences

punishable under Sections 457 and 380 of 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 guilt Crl.R.P.No.927/2013

against the accused, the prosecution got examined in all

eleven witnesses from PW-1 to PW-11 and got marked

documents from Exs.P-1 to P-7 and produced three

material objects at MO-1 to MO-3. 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 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 24.05.2022, appointed learned

counsel - Sri. S. Javeed, as Amicus Curiae for the

petitioner/accused to represent him in this case.

Crl.R.P.No.927/2013

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.

8. 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 counsel from both side,

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 committed the alleged offences punishable under Sections 457, 380 of the Indian Crl.R.P.No.927/2013

Penal Code, 1860, warrants any interference at the hands of this Court?

11. Learned Amicus Curiae for the petitioner

submitted two points in his arguments. The first being

that the prosecution could not able to prove the alleged

spot of the offence. His second point of argument, which

is also his main point of argument is that the alleged

recovery of the alleged stolen articles were not proved by

the prosecution, as such, the guilt of the accused was not

proved beyond reasonable doubt. He concluded his

arguments stating that a serious doubt has crept in the

case of the prosecution, as such, the benefit of doubt be

extended to the accused.

12. Learned High Court Government Pleader in his

very brief argument, which appears to be a preparation

being made in the Court, submitted that the recovery has

been proved in the evidence of PW-11 and the spot of the

offence also has been proved by the prosecution, as such, Crl.R.P.No.927/2013

the prosecution has proved the case beyond reasonable

doubt.

13. Admittedly, in the instant case, there are no eye

witnesses to the alleged incident. The alleged place of

theft is said to be the temple of Goddess Sri Renuka

Yellamma in a village. The allegation of the prosecution

against the accused is of committing the offences

punishable under Sections 457 and 380 of IPC. In order to

prove its case, the prosecution examined eleven witnesses

as PW-1 to PW-11.

14. PWs.1 and 2 are projected as witnesses to the

scene of offence panchanama. Both of them have stated

that they have signed the said panchanama when the

police have come to the spot in connection with theft of

the ornaments of the temple. Both of them have not only

identified the scene of offence panchanama at Ex.P-1, but,

also have identified their signatures therein. In such

circumstances, merely because in the cross-examination

they have stated that they do not know as to what are all Crl.R.P.No.927/2013

written in Ex.P-1 would not take away the evidentiary

value of either Ex.P-1 or that of the evidence of PW-1 and

PW-2 that they have signed as witness to the scene of

offence panchanama, which according to them, has been

drawn in the temple premises where a theft had taken

place. The scope of the scene of offence panchanama at

Ex.P-1 being very limited only to show as to what is the

place where the alleged incident/offence is said to have

taken place, the evidence given by PWs.1 and 2 to the

extent that they were the panchas and have signed the

said panchanama knowing as to the nature of the

document, is sufficient to show that they have shown that

they had the knowledge that it was the scene of offence

panchanama. Thus, the first point of argument of learned

Amicus Curiae for the petitioner that the spot of the

offence has not been established by the prosecution is not

acceptable.

15. Among the remaining witnesses examined by the

prosecution are, PW-3 - Appanna Reddy, who is a resident Crl.R.P.No.927/2013

of the same village and according to whom, several of the

stolen articles, more particularly, the golden ornaments

were offered to the Goddess by his father. The witness

has also stated that, apart from golden ornaments, the two

golden eyes, umbrellas, Mukha Padma were all have been

stolen. Though his evidence is mainly about the alleged

incident of theft, however, the second para of his evidence

is about he identifying MO-1 and MO-2 which are said to

be two golden eyes of the Goddess. The witness has

identified those two articles as the one that were offered to

the Goddess by his father.

Though this witness was subjected to a detailed

cross-examination, however, he adhered to his original

version and could able to inspire confidence in the Court to

believe his evidence that MO-1 and MO-2 were the articles

offered to the Goddess by his father. However, he

no where whispered anything about the role of the accused

in the alleged incident of theft.

Crl.R.P.No.927/2013

16. PW-7-Thippeswamy, is the Priest of the temple,

who has stated that it is through his daughter-in-law the

alleged incident of theft came to the notice at first since he

had sent her to the temple to open the doors of the temple

in the aftrenoon of 17.09.2010. She noticing that the

latches of the door of the temple were broken and some

articles appears to have been stolen, intimated the same

to this witness, who in turn, confirmed the alleged theft of

certain gold and silver ornaments and lodged a complaint

with the police as per Ex.P-5. He too has stated that

police had visited the spot and had drawn a scene of

offence panchanama, wherein, he had identified his

signature at Ex.P-1(d). The witness further stated that, at

later point of time, he came to know of recovery of two

golden eyes of Goddess and received the interim custody

of the same by applying to the Court.

This witness was subjected to a detailed cross-

examination, wherein he has given more details as to how Crl.R.P.No.927/2013

he came to know about the alleged incident and has given

some more details of the alleged stolen articles.

Thus, the evidence of PW-7 would further corroborate

the evidence of PW-3 about the alleged incident of theft.

However, no where he has stated that, to his knowledge,

it was the accused who has committed the alleged theft.

Though he stated that the police have shown him the

accused as the culprit, however, the very statement itself

go to show that the said information is only a hearsay, but,

not to the personal knowledge of the witness.

17. PW-8 -Devaraj, being the resident of the same

village has also spoken about the alleged incident of theft.

He too has stated that it was through the daughter-in-law

of PW-7, the incident came to the light. Except stating

about the alleged incident of theft of certain gold and silver

articles, this witness has not thrown much light about the

incident, however, he has identified MO-1 to MO-3 stating

that the same were belonging to the temple property.

Still it is not known that when MO-3 was an ingot of silver, Crl.R.P.No.927/2013

which according to the Investigating Officer, was converted

by the accused after getting silver articles melted, how

come this witness identifies the ingot as that of the temple.

18. Barring the above witness, the other important

witnesses who according to the prosecution have played an

important role are the witnesses to the alleged recovery of

the stolen articles at the instance of the accused and the

Investigating Officer.

Among these, the first person is PW-4, who

admittedly is a Police Sub-Inspector of the complainant-

Police Station at the relevant point of time. He has stated

that 04.12.2010, in the night, while he was on rounds

duty, he stopped two persons going on a motorcycle and

enquired them. Since one among them ran away from the

place, he informed the same to the station, as such, his

staff could able to catch one person, who according to him

is the present accused (Petitioner). He produced him

before the Circle Inspector of Police. Thus, the evidence of

PW-4 would not throw much light on the alleged incident, Crl.R.P.No.927/2013

but, only says that his staff apprehended the accused.

However, no reasons are stated by PW-4 as to for what

reason they got suspicion against the present accused.

19. PW-5 Prasanna-Goldsmith, was shown as pancha

to the scene of offence panchanama at Ex.P-3. He has

stated that he has put his signature to the said

panchanama at the time when in the complainant police

station the ingots were got weighed. He has specifically

stated that he was not taken anywhere and he alone has

signed it and in his presence no articles were seized.

After treating him hostile the prosecution though

subjected the witness to cross-examination, but, it could

not get any support from him.

20. Interestingly the Investigating Officer i.e., PW-9

who claims to have recovered the alleged stolen articles at

the instance of the accused, also has not spoken about the

role of PW-5 in his investigation. Had he really taken PW-5

with him to the place of the alleged recovery of the stolen Crl.R.P.No.927/2013

articles and got those articles weighed from PW-5, he

should have necessary mentioned about the same in his

evidence. For the reasons best known to him, being an

expected responsible Police Officer, he has not given any

details in that regard.

On the contrary, it is PW-11 who has stated about

the role of PW-5 Prasanna in his evidence and has stated

that when the police had brought the accused to his

Jewellery shop, the articles placed by him before the police

were weighed by the said Prasanna (PW-5) and this is the

only nexus about PW-5 and his role in the investigation

which we can find in the evidence available in the matter.

If the evidence of PW-11 is to be appreciated and

considered, there had to be necessarily a corroborative

evidence from none else than the Investigating Officer.

Further, if the supporting evidence by the alleged panchas

is also available, then, it would land the prosecution case

on a safer footing, at least, on the alleged point of Crl.R.P.No.927/2013

weighing of the stolen articles at the time of alleged

recovery.

21. However, in the instant case, neither PW-5 has

stated that he was taken to the shop of PW-11 and was

made to weigh the alleged ornaments said to have been

produced by PW-11 before the police nor the Investigating

Officer i.e., PW-9, who claims to have recovered the

alleged stolen articles, has spoken anything about the role

of PW-5. On the contrary, PW-5 has categorically stated

that his signature was obtained on the said panchanama at

Ex.P-3 in the Police Station where certain ingots were got

weighed. Thus, the very person from whom the alleged

articles were said to have been appraised/weighed himself

has not supported the case of the prosecution, but, shown

that the alleged act of weighing was done in the police

station. Therefore, the evidence of PW-11 that PW-5 had come

and weighed the articles proves to be not safe to believe, more

importantly, for the reason that the Investigating Officer

himself has stated about PW-5 weighing articles in the Crl.R.P.No.927/2013

Jewellery shop of PW-11 in his presence. Therefore, one of

the major link for alleged recovery has not been

established by the prosecution.

22. The next witness whom the prosecution

examined projecting as a pancha for the seizure

panchanama at Ex.P-3 was PW-10 Veeresh. The said

witness in his evidence has stated that on the date of the

alleged panchanama, the police had summoned him to the

police station and shown him the accused stating that he is

a thief having committed the theft at three to four places.

Thereafter, himself, joined by police, accused and a person

of Jewellery shop and one more by name Tippeswamy

went in a Jeep to a place called Gajendragad, Gadag

District. There they went to the Jewellery shop where the

person belonging to the said shop gave the golden and

silver items. The witness has stated that he could not

speak as to what those articles since they were large in

number. One Goldsmith by name Prasanna, who was with

them, was weighing them and assessing their values and Crl.R.P.No.927/2013

the police were writing. The witness has seen the said

writing at Ex.P-3 and identified his signature therein. The

witness has stated that he could not identify those articles

if shown to him now.

23. A careful reading of the evidence of PW-10 would

go to show that it was the police who took him,

accompanied by the accused to Gajendragad, but, not at

the instance of the accused.

Secondly, while going to the said place Gajendragad

and to the shop of the Jeweller, the person belonging to

the said Jewellery shop was also accompanying them,

which means, from the Police Station up to the Jewellery

shop, a person of Jewellery shop was altogether with the

police, this witness and the accused. Therefore, it is highly

doubtful to believe that it was the accused who led the

entire team to the Jewellery shop at Gajendragad.

Thirdly, no where the witness says that in the shop,

the accused and the shop owner were identified mutually

and that at the request or at the instance of the accused, Crl.R.P.No.927/2013

the shop owner produced the articles said to have been

produced by him. On the other hand, PW-10 says that

the moment they visited the said shop, a person belonging

to the shop placed several of the articles before the police.

Therefore, it is highly doubtful that he identified the

accused and at the request of the accused, PW-11

produced the articles alleged to have been given by the

accused subsequent to the alleged theft. Therefore, the

evidence of PW-10 gives an impression that the production

of those alleged articles by the shop owner (it ought to be

PW-11 since PW-11 says that it is he who produced those

articles), was a voluntary act of PW-11, but, not at the

instance of the accused.

Fourthly, had really the articles were produced in the

presence of PW-10 and that he witnessed as to which are

all the articles that were produced at the instance of the

accused by PW-11, then, he was expected to identify those

articles since the articles in identifiable condition were only

two i.e., two golden eyes of Goddess at MO-1 and MO-2.

Crl.R.P.No.927/2013

Admittedly, MO-3 - the ingot, is the melted version of

other alleged stolen silver articles. Even the two golden

eyes also being a peculiar type of ornament, there was all

the possibility of the witness remembering those articles

and identifying them. However, the witness has stated

that he cannot identify any of the articles. This also

creates a doubt in the alleged participation of PW-10 in the

alleged seizure of the articles said to have been taken by

the Investigating Officer i.e., PW-9.

Lastly, according to PW-10, who has stated in his

cross-examination that he was informed by the police in

the evening at 5.00 O'Clock, whereas, according to

panchanama at Ex.P-3, the alleged seizure panchanama

was drawn between 7.50 a.m. to 9.15 a.m. Neither the

prosecution has made any attempt to elicit details to weed

away the discrepancy nor the Investigating Officer has

given any details about the said discrepancy. As such,

when PW-10 was taken to the spot, at what time the

panchanama was drawn is not clear and there is Crl.R.P.No.927/2013

contradiction in the version of PW-10 to that of the

evidence of PW-9 and the document at Ex.P-3. These

above discrepancies in the case of the prosecution makes

it very much unsafe to believe the evidence of PW-10 in

the alleged seizure of the articles.

24. The last witness who speaks about the alleged

recovery of the articles is PW-11, who according to the

prosecution, is the owner of the Jewellery shop at

Gajendragad. He has stated in his evidence that on

05.12.2010, the Investigating Officer took a Goldsmith,

accused and two witnesses to his shop. He also stated

that accused had given him silver ingots and two golden

eyes. When enquired by the police, he came to know that

they were stolen articles and he gave all those articles that

were given to him by the accused to the police when the

police asked to produce them. The said police after getting

them weighed and evaluated by Prasanna (PW-5), seized

them. The witness apart from identifying the accused in

the Court, has also identified MO-1 to MO-3.

Crl.R.P.No.927/2013

This witness was subjected to a detailed cross-

examination from the accused side.

25. A careful analysis of the evidence of PW-11 would

go to show that, even if it is believed that on 05.12.2010,

the police, accompanied by the Goldsmith, two panchas

and accused, had been to his shop, this witness has not

stated that it was at the instance of the accused, he placed

any of those articles before the police. But, he has

specifically stated that since the police asked him, he gave

them all the articles.

Secondly, the witness has stated that accused had

given a silver ingot and two golden eyes. He also stated

that he gave all those articles given to him by the accused

to the police, which articles the police got weighed and

evaluated by PW-5 and made a writing in that regard. The

said writing, according to the prosecution, is the seizure

panchanama at Ex.P-3. If the said seizure panchanama at

Ex.P-3 is perused, it is clear that the alleged seizure said to

have been taken place in the shop of PW-11 on Crl.R.P.No.927/2013

05.12.2010 was not just confined to the articles at MO-1 to

MO-3, but, it involves several other silver and golden

articles. Thus, the alleged seizure shown to have been

made from the shop of PW-11 was not of just MO-1 to

MO-3, but, involves various other valuable articles, about

which neither PW-11 has whispered nor PW-5 - Prasanna

nor even the Investigating Officer i.e., PW-9. On the other

hand, the statement of PW-11 that accused had given him

only three articles and all that articles given by the

accused were produced by him before the police which are

at MO-1 to MO-3 would go to show that it was three

articles that were seized by the police on the said day,

whereas, the seizure panchanama is totally contrary to this

and mentions about larger number of articles.

26. Therefore, when there are serious discrepancies

between the evidence given by the prosecution witnesses

and the document at Ex.P-3 and also a serious doubt that

has crept in the case of the prosecution through the

evidence of none else than the alleged Goldsmith, who was Crl.R.P.No.927/2013

examined as PW-5, it is highly unsafe to believe that the

alleged recovery of MO-1 to MO-3 were made at the

instance of accused and accused alone.

27. However, both the trial Court, as well as Sessions

Judge's Court without analysing and appreciating the

evidence in their proper perspective have hastily jumped

to a conclusion that since MO-1 to MO-3 were identified by

PW-11 and PW-3 and evidence of PW-11 also mentions

that accused had given those articles to him, the recovery

is proved. Since the said conclusion is now proved to be

not a proper conclusion, which could have been arrived at

after proper appreciation and analysing of the evidence

placed before it, on the other hand, since major doubt still

exist in the case of the prosecution, the trial Court ought

to have given the benefit of doubt to the accused and the

Sessions Judge's Court also since has committed the same

error by confirming the impugned judgment, both those

judgments now warrants interference at the hands of this

Court.

Crl.R.P.No.927/2013

28. 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 08.11.2012, passed by the

learned Judicial Magistrate First Class, at Challakere,

in C.C.No.83/2011, holding the accused guilty of the

offence punishable under Section 457 and 380 of the

Indian Penal Code, 1860, which was further

confirmed by the judgment and order dated

20.04.2013, passed by the Principal District and

Sessions Judge at Chitradurga, in Criminal Appeal

No.90/2012, are hereby set aside, except the order

regarding confiscation of MO-1 to MO-3 to the State;

[iii] The revision petitioner (accused) - Sri.

Yarriswamy, S/o. Channamallappa, Aged about 22

years, Agriculturist, R/o. Bommasamudra, Challakere

Taluk, Chithradurga District-577522, stands Crl.R.P.No.927/2013

acquitted of the offences punishable under Section

457, 380 of the Indian Penal Code, 1860.

I am constrained to make an observation that the

better preparation by the learned High Court Government

Pleader in the matter would be highly appreciated.

The Court, while acknowledging the services rendered

by the learned Amicus Curiae for the revision petitioner -

Sri. S. Javeed, recommends honorarium of a sum of not

less than `4,000/- payable to him by the Registry.

Registry to transmit a copy of this order to both the

trial Court and also to the Sessions Judge's Court along

with their respective records forthwith.

Sd/-

JUDGE

bk/