Nagesh S/O Puttaraju vs State By Basavanagudi Police
2022 Latest Caselaw 3840 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

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

         CRIMINAL REVISION PETITION NO.1002/2012

BETWEEN:

NAGESH S/O PUTTARAJU
AGED ABOUT 25 YEARS
R/AT SANTHEKESGERE VILLAGE
KOTHATHI HOBLI, MANDYA TALUK
MANDYA DISTRICT-571 401.                  ... PETITIONER

   (BY SMT.SOHANI HOLLA, ADVOCATE - AMICUS CURIAE)

AND:

STATE BY
BASAVANAGUDI POLICE-560004.              ... RESPONDENT

              (BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE   THE   JUDGMENT   AND     SENTENCE    PASSED    IN
C.C.NO.11577/2008 BY THE II ACMM, BENGALURU AND
CONFIRMED PASSED BY THE P.O., F.T.C-II, BENGALURU IN CRL.
APPEAL NO.325/2011.

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

This petition is filed under Section 397 read with Section

401 of Cr.P.C., praying to set aside the judgment and sentence

dated 26.11.2011 passed in C.C.No.11577/2008 by the II

Additional Chief Metropolitan Magistrate at Bengaluru and

confirmed by the Fast Track Court-II, Bengaluru in

Crl.A.No.325/2011 on 17.07.2012 and acquit the petitioner.

2. Heard the learned amicus curiae appearing for the

petitioner and the learned High Court Government Pleader

appearing for the respondent-State.

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

that on 10.05.2008 at about 7:30 p.m, to 12.05.2008 7 a.m, the

accused committed theft of lay Brand mobile Phone Set and cash

of Rs.2,20,000/- from the cupboard of C.W.1 Company i.e.,

S.V.S. Products situated at K.R. Road, Basavanagudi, Bengaluru.

Based on the complaint, a case has been registered. The police

have investigated the matter and filed the charge-sheet against

the petitioner for an offence punishable under Section 381 of

IPC.

4. The prosecution in order to prove the charges

leveled against the petitioner relied upon the evidence of PWs.1

to 3 and got marked the documents as Exs.P1 to P6. The

petitioner/accused has not led any evidence and no documents

are marked before the Trial Court. The trial Judge after

considering both oral and documentary evidence convicted the

accused for an offence punishable under Section 381 of IPC and

sentenced him to undergo imprisonment for a period of six

months with a fine of Rs.1,000/-, in default, sentenced him for

another 45 days. Hence, an appeal is filed before the Appellate

Court in Crl.A.No.325/2011. The Appellate Court on re-

appreciation of the material available on record, confirmed the

conviction, sentence and dismissed the appeal. Being aggrieved

by the said conviction, sentence and also confirmation, the

present revision petition is filed before the Court.

5. The learned amicus curiae appearing for the

petitioner would vehemently contend that first of all the

voluntary statement is recorded in entirety and not marked a

portion of the voluntary statement, the same is not permissible.

6. The learned amicus curiae appearing for the

petitioner in support of her arguments she relied upon the

judgment of the Apex Court in the case of Mohmed

Inayatullah v. The State of Maharashtra reported in AIR

1976 SC 483, regarding discovery of fact is concerned, there

cannot be a marking of the entire voluntary statement. The

learned amicus curiae also would submit that in the case on

hand, there was a recovery of Rs.2,20,000/-, but none of the

witnesses have been examined before the Trial Court. The only

witness examined is P.W.1, ASI., who apprehended the

petitioner. P.W.2, is the complainant. P.W.3 is the Investigating

Officer, who conducted the investigation and no other

independent witnesses are examined. Both the Trial Court as

well as the Appellate Court erroneously given the finding that the

prosecution has proved the case. Hence, the order passed by

the Trial Court as well as the Appellate Court is perverse and the

same suffers from legality and its correctness. Hence, it requires

invoking of revisional jurisdiction.

7. Per contra, the learned High Court Government

Pleader appearing for the respondent-State would submit that

though PWs.1 and 3 are the official police witnesses and their

evidence cannot be brushed aside unless the evidence is given

with a malafide intention to implicate the petitioner. No

independent witness is examined to substantiate allegation of

prosecution as they had been allegedly won over by the accused.

But, evidence of official witnesses, trustworthy and credible and

prosecution case is trustworthy, no reason not to rest conviction

on basis of such evidence of official witnesses and confirmed the

conviction. In the case on hand, PWs.1 and 3's evidence is

trustworthy and reliable. Hence, this Court cannot be exercised

the revisional jurisdiction to set aside the order.

8. Having heard the learned amicus curiae appearing

for the petitioner and the learned High Court Government

Pleader appearing for the State and on perusal of the material

available on record and also considering both oral and

documentary evidence placed on record, the points that would

arise for consideration of this Court are:

(i) Whether the Trial Courts have committed an error in appreciating the evidence and relying upon Ex.P4 and it requires an interference of this Court exercising the revisional jurisdiction?

(ii) What order?

Point No.(i):

9. Having heard the respective counsel, no doubt, the

revisional jurisdiction is very limited and only the order suffers

from legality and its correctness. The Court can interfere with

the exercising of revisional jurisdiction. In the case on hand,

admittedly, the petitioner is working with the complainant i.e.,

P.W.2. The case of the prosecution is that when the amount was

kept in the cupboard along with the mobile, the same were

stolen and recovered at the instance of the petitioner herein. It

has to be noted that the learned amicus curiae brought to the

notice of this Court marking of document Ex.P4. On perusal of

Ex.P4, it discloses that it is a voluntary statement of the accused

and the entire voluntary statement is marked. Hence, the same

is not admissible in the eye of law.

10. The learned amicus curiae also brought to the notice

of this Court the judgment of the Apex Court in Mohmed

Inayatullah's (supra), the same is very clear that in the case of

discovery is concerned, only a portion to be marked not the

entire voluntary statement of the petitioner. In the case on

hand, it has to be noted that the discovery is that the amount

was recovered at the instance of the petitioner. But in the case

on hand, it has to be noted that except the complainant, no

independent witnesses have been examined before the Trial

Court. Regarding discovery or anything is unearthing from the

side of the petitioner; the same has to be proved by examining

the independent witnesses. Here is a case of the theft of mobile

as well as cash of Rs.2,20,000/-. But, the prosecution mainly

relied upon the evidence of P.W.1, who apprehended the

petitioner. P.W.3, who conducted further investigation in the

matter. The only witness is P.W.1. No other witnesses were

examined regarding recovery and proving of the recovery also,

no other witnesses. No doubt, the learned High Court

Government Pleader for the State brought to the notice of this

Court that the judgment of the Apex Court in the case of

Kulwinder Singh and another v. State of Punjab reported in

(2015) 6 SCC 674, wherein, the Apex Court also observed that

official witnesses evidence cannot be discarded. Here is a case

of recovery of money that too at the instance of the petitioner,

no independent witnesses were examined, though witnesses are

cited. Apart from that, the Trial Court accepted Ex.P4, i.e., not

legally sustainable in the eye of law. The entire voluntary

statement of the petitioner was marked and not a portion of the

discovery. Hence, there is a force in the contention of the

learned counsel for the petitioner that the evidence available

before the Court is not legally sustainable. When the legal

evidence is not available before the Court, the very conviction

against the petitioner is not sustainable and both the Courts

have committed an error in not considering the legal evidence

instead of considered the evidence of PWs.1 to 3 and out of that

two witnesses are official witnesses and one is the complainant.

Hence, the order passed by the Trial Court is perverse; the same

is also affirmed by the Appellate Court not considering the

admissibility of evidence. The Appellate Court while re-

considering the evidence of the Trial Court in a callous manner,

re-appreciated the same in paragraph Nos.15 and 16, those

witnesses, who have been examined and the documents - Exs.P1

to P4. The legality of the document of Ex.P4 has not been

discussed, only comes to the conclusion that there is no reason

to disbelieve the oral evidence of PWs.1 and 3, who

apprehended the accused and investigated the matter. Even

P.W.3 has recovered the amount of Rs.2,20,000/- as per

voluntary statement of accused in the passage of the

complainant's office alleging that the accused has kept the said

amount. It has to be noted that the amount also in the very

premises in which the amount was stolen and not outside the

premises. When these are all the aspects has not been

considered by the Appellate Court, but only comes to the

conclusion that there is recovery and no material to discard the

case of the prosecution and nothing has been elicited in the

cross-examination of PWs.1 to 3. Mere examination of the

witnesses-PWs.1 to 3 is not enough, the same has to be proved

by examining the witnesses first of all regarding recovery,

nothing has been done and no witnesses were examined and

also not considered the legal evidence and the very document -

Ex.P4 is not legally admissible when the entire document is

marked and not the portion of the voluntary statement. Hence,

the order passed by both the Trial Court as well as the Appellate

Court suffers from legality, correctness and propriety. Hence, it

requires revisional jurisdiction to set aside the order of

conviction and sentence.

Point No.(ii):

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

following:

ORDER

(i) The revision petition is allowed.

      (ii)    The     impugned     judgment     and    sentence
              dated         26.11.2011          passed            in
              C.C.No.11577/2008 by the II Additional

Chief Metropolitan Magistrate at Bengaluru and confirmed by the Fast Track Court-II, Bengaluru in Crl.A.No.325/2011 on 17.07.2012, are hereby set aside.

(iii) If any amount deposited by the petitioner is ordered to be refunded to him on proper identification.

(iv) The Registry is directed to pay the amicus curiae fee to the learned amicus curie appearing on behalf of the petitioner.

Sd/-

JUDGE

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