C G Channappa S/O Gurusiddappa vs State By Kote Police
2022 Latest Caselaw 3573 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 3RD DAY OF MARCH, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

          CRIMINAL REVISION PETITION NO.330/2013

BETWEEN:

C.G.CHANNAPPA,
S/O GURUSIDDAPPA,
AGED ABOUT 27 YEARS,
TEACHER ,
R/O NIBAGUR VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT-577 501.                    ... PETITIONER

            (BY SRI R. SHASHIDHARA, ADVOCATE)

AND:

STATE BY KOTE POLICE,
CHITRADURGA-577 506.                           ... RESPONDENT

                (BY SRI K.S. ABHIJITH, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397(1) READ WITH 401 OF CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 27.02.2013 PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, F.T.C,
CHITRADURGA IN CRL. APPEAL NO.33/2012 CONFIRMING THE
JUDGMENT DATED 18.02.2012 PASSED BY THE 2ND ADDL.
SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA, IN
C.C.NO.501/2011 AND ACQUIT THE PETITIONER BY ALLOWING
THIS R.P.

     THIS CRIMINAL REVISION PETITION COMING ON FOR
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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                                ORDER

Heard the learned counsel for the petitioner and the

learned High Court Government Pleader appearing for the

respondent-State.

2. The factual matrix of the case of the prosecution is

that on 17.03.2010 at about 3.30 p.m. at Holalkere road when

the complainant had parked his Hero Honda Splendor Plus

bearing registration No.KA-16/L-7379 on the left side of the

road, the same was missing and the same was subsequently

recovered from the backyard of the house of the

petitioner/accused No.1. Hence, the police have registered the

case and investigated the matter and filed the charge-sheet for

the offence punishable under Section 379 of IPC. The

prosecution in order to prove their case, examined P.W.1 to

P.W.7 and got marked the documents at Exs.P.1 to 10(a). The

Trial Judge after considering both oral and documentary

evidence available on record, convicted the accused and

sentenced for one year. The Trial Court in paragraph No.18

discussed in detail regarding seizure of the vehicle and also

taken note of the evidence of P.W.6 and P.W.7 Investigating

Officer and also evidence of P.W.1 complainant and comes to the

conclusion that the prosecution has proved the case.

3. Being aggrieved by the judgment of the Trial Court,

Crl.A.No.33/2012 is filed and the Appellate Court on re-

appreciation of the evidence on record, particularly in paragraph

No.22 discussed regarding the evidence of cross-examination of

P.W.1 and so also discussed in detail the evidence of prosecution

witnesses and the reasons are assigned in paragraph No.29. In

order to prove the fact that the said backyard belongs to the

petitioner, no documents are produced, but comes to the

conclusion that in the cross-examination, nothing is suggested to

the Investigating Officer. The Appellate Court also relied upon

the evidence of P.W.6 that the vehicle was seized and mahazar

was drawn in terms of Ex.P.7. Regarding ownership also not

suggested to any witnesses. Hence, comes to the conclusion

that the Trial Court has not committed any error and dismissed

the appeal. Hence, the present revision petition is filed before

this Court.

4. The learned counsel for the petitioner would

vehemently contend that first of all, in order to show that the

backyard belongs to the petitioner, no material is collected and

apart from that, the vehicle belongs to the complainant P.W.1

also no documents is secured. The learned counsel submits that

in the complaint, vehicle number, chassis numbers and engine

number are given different, but in seizure mahazar Ex.P.7,

different vehicle number is seized and different chassis number

and engine number. Even assuming that the petitioner has

changed the vehicle number, the chassis number and engine

number ought to have been tallied and they are not tallying and

the vehicle number and chassis number are not secured before

the Court also to which complaint is given by P.W.1. These are

the contradictions which are not been considered by the Trial

Court and hence it requires interference of this Court.

5. The learned High Court Government Pleader

appearing for the respondent-State submits that the case of the

prosecution is that after committing the theft of the vehicle, the

petitioner had changed the vehicle number and hence the said

discrepancy will not go to the root of the case. The learned

counsel submits that the evidence of P.Ws.1, 6 and 7

corroborates each other and both the Trial Court and the

Appellate Court have considered the same and hence there are

no grounds.

6. Having heard the learned counsel for the petitioner

and the learned High Court Government appearing for the

respondent-State and also on perusal of the material on record,

the points that arise for the consideration of this Court are:

(i) Whether the Trial Court and the Appellate Court have committed an error in not appreciating the material on record and perverse order has been passed and whether this Court can exercise the revisional jurisdiction that the order suffers from any legality and correctness.

      (ii)    What order?

Point No.(i):

7. Having heard the respective learned counsel and also

on perusal of the material available on record, it is the case of

the prosecution that the vehicle belonging to P.W.1 is No.KA-16-

L-7379 and no doubt, in the FIR, the same number is mentioned

and also while framing the charge, the very same number is

mentioned. The prosecution also relies upon Ex.P.1, wherein the

chassis number and engine number is mentioned as

05G16F20236 and 05G15E17543 respectively. The prosecution

relies upon the seizure mahazar Ex.P.7, wherein the vehicle

number is mentioned as KA-35-E-7920 and no doubt, even

admitting the case of the prosecution that immediately after

committing the theft, the vehicle number was changed, but

chassis number is mentioned as 97J19F03561 and engine

number is 95JN703614. First of all, the vehicle number not

tallies and apart from that, the chassis number and engine

number also not tallies with the complaint Ex.P.1. The vehicle,

which was seized is also different in terms of Ex.P.7(a).

8. It is important to note that the prosecution mainly

contend that the said vehicle was parked in the backyard of the

house of the petitioner. The said house belongs to the petitioner

also, no documents is collected and the very contention of the

prosecution is that the same has not been disputed. But the fact

that when the vehicle was seized in the backyard, whether the

said backyard belongs to the petitioner, it is the burden on the

prosecution to prove the same because the vehicle was not

seized in the conscious possession of the petitioner and the

same is in the backyard and ought to have proved that the same

was recovered from the backyard to the petitioner. Apart from

that, the vehicle which was seized in terms of Ex.P.7 is different

from the contents of the complaint Ex.P.1. The complainant has

given the complaint in respect of different vehicle and seizure is

in respect of different vehicle and this main discrepancy has not

been pointed out by the Trial Court and also the Appellate Court

and both the Courts have committed an error in not considering

Ex.P.7. The Trial Court mainly relies upon the seizure of the

vehicle in terms of Ex.P.7 and the very seizure of the vehicle is

different from the complainant's version, who has been

examined as P.W.1 and when the very vehicle was not seized,

which was involved in committing of theft, the very case of the

prosecution goes to the root of the prosecution case. These

materials are not considered by the Trial Court and the Appellate

Court and in a casual manner convicted the accused.

9. On perusal of the judgment of the Trial Court, in

paragraph No.18 relied upon the mahazar i.e., Ex.P.7 and also

comes to the conclusion that mahazar witness is P.W.6, who is

an independent witness and the evidence of P.W.6 also cannot

be relied upon since the vehicle seized is different vehicle. The

prosecution relies upon the evidence of P.W.7 Investigating

Officer, but the Trial Court comes to the conclusion that the

evidence of P.Ws.1, 6 and 7 corroborates with the prosecution

case and the said approach is erroneous and manifestly an error

committed by the Trial Court in appreciation of the material on

record. When such being the case, it is a fit case to exercise the

powers under Section 401 of Cr.P.C. to exercise the revisional

jurisdiction. This Court can exercise the revisional jurisdiction

when the Trial Court as well as the Appellate Court manifestly

committed an error and the same is not sustainable in the eye of

law and suffers from legality and correctness of the order and

hence by exercising the powers under Section 401 of Cr.P.C., the

order passed by the Trial Court requires to be set aside.

Point No.(ii):

10. In view of the discussions made above, I pass the

following:

ORDER

The petition is allowed and the impugned judgment of

conviction passed by the Trial Court dated 18.02.2012 in

C.C.No.501/2011 and the order passed by the Appellate Court

dated 27.02.2013 in Crl.A.No.33/2012 confirming the same are

set aside. The amount in deposit, if any, is ordered to be

refunded in favour of the petitioner, on proper identification.

Sd/-

JUDGE

MD