Nagaraja vs State By Psi
2023 Latest Caselaw 5214 Kant

                                    CRL.R.P. 1143/2015
                           1

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 3RD DAY OF AUGUST, 2023

                       BEFORE

   THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR

 CRIMINAL REVISION PETITION NO.1143 OF 2015

BETWEEN:

NAGARAJA S/O PUTTAPPA,
AGE: 35 YEARS,
R/O HONNATTI HOSUR VILLAGE
BHADRAVATHI TALUK
SHIMOGA DISTRICT-577 301
                                         ....PETITIONER

(BY SRI. HARISH .B. SHIRALA KOPPA, ADVOCATE FOR
    SRI. PRASAD .B.S, ADVOCATE)

AND:

STATE BY PSI,
NEW TOWN POLICE
BHADRAVATHI
SHIMOGA DISTRICT-577 301
                                        ...RESPONDENT
(BY SRI. MAHESH SHETTY, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT AND ORDER DATED 20.06.2013 PASSED BY
THE CIVIL JUDGE AND ADDL. JMFC, BHADRAVATHI IN
C.C.NO.327/2011 AND ALSO SET ASIDE THE JUDGEMENT
AND ORDER DATED 24.07.2015 PASSED BY THE IV ADDL.
DIST. AND S.J., SHIMOGA, SITTING AT BHADRAVATHI IN
CRL.A.NO.146/2013.
                                              CRL.R.P. 1143/2015
                                 2

     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED FOR ORDERS ON 01.08.2023,
COMING ON FOR 'PRONOUNCEMENT OF ORDER' THIS DAY,
THE COURT MADE THE FOLLOWING:

                              ORDER

This Revision Petition is filed by Accused No.2 under

Section 397 read with 401 of Cr.P.C. challenging the judgment

of conviction and order of sentence dated 20.06.2013 passed

by the Civil Judge and Additional JMFC, Bhadravathi in CC

No.327/2011 and confirmed by IV Additional District and

Sessions Judge, Shivamogga sitting at Bhadravathi, in

Criminal Appeal No.146/2013 vide judgment dated

24.07.2015.

2. For the sake of convenience, the parties herein are

referred with the original ranks occupied by them before the

trial Court.

3. The brief factual matrix leading to the case are

that, on the intervening night of 14.10.2010 and 15.10.2010,

a theft was committed in the house of the complainant

situated near Chandralaya, Hutha Colony, Bhadravathi Town,

by breaking open the lock of the door and the golden CRL.R.P. 1143/2015

ornaments and a DVD were stolen from the house of the

complainant. A crime was registered on the basis of the FIR

against un-known persons. Subsequently, Accused No.1 was

apprehended in a different crime and on interrogation, he

narrated the commission of theft in this case and as such, he

was interrogated and at his instance, the stolen material

object i.e., a gold chain was recovered from the shop of CW.4

under a seizure mahazar. During the course of investigation,

the present petitioner/Accused No.2 was apprehended and his

confessional statement was recorded and he was remanded to

judicial custody and subsequently, he was enlarged on bail.

The Investigating Officer recorded the statement of witnesses

and found that there is sufficient material evidence as against

Accused Nos.1 & 2 and hence, he submitted the charge sheet

against Accused Nos.1 & 2 for the offence punishable under

Sections 457 and 380 r/w. 34 of IPC.

4. The prosecution papers were furnished to the

counsel appearing for the Accused No.2/revision petitioner and

the charge under Sections 457 and 380 of IPC was framed and

read over. The petitioner/Accused No.2 pleaded not guilty and

claimed to be tried.

CRL.R.P. 1143/2015

5. To prove the guilt of the petitioner/Accused No.2,

the prosecution has examined in all Ten witnesses and also

placed reliance on Six documents marked at Exs.P1 to P6. MO

No.1 also got marked, which is the broken piece of the lock of

the house of the complainant. After conclusion of the

evidence of the prosecution, the statement of

petitioner/Accused No.2 under Section 313 of Cr.P.C. is

recorded to enable the accused to explain the incriminating

evidence appearing against him in the case of prosecution.

The case of accused is of total denial. Accused Nos.1 & 2 did

not choose to lead any oral or documentary evidence in

support of their defence.

6. After having heard the arguments and on

appreciating the oral as well as documentary evidence, the

learned Magistrate has convicted both Accused Nos. 1 & 2 by

imposing Rigorous Imprisonment for a period of two years and

fine of Rs.1,000/-, with default sentence for each offences.

7. Being aggrieved by the said judgment of

conviction and order of sentence, Accused No.2/Revision

Petitioner herein has approached the V-Additional Sessions CRL.R.P. 1143/2015

Judge, Shivamogga, sitting at Bhadravathi in Criminal Appeal

No.146/2013 and the learned Sessions Judge after re-

appreciating the oral as well as documentary evidence, has

dismissed the appeal by confirming the judgment of conviction

and order of sentence passed by the trial Court. Against these

concurrent findings, Accused No.2 is before this Court by way

of this revision petition.

8. Learned counsel for the petitioner/Accused No.2

has contended that, neither there is any recovery from the

custody of the present petitioner/accused nor he was present

at the time of recovery and he would also contend that the

mahazar witnesses have turned hostile and the present

petitioner was arrested subsequent to recovery, and during

recovery, only Accused No.1 was present. He would also

contend that, though the allegations disclose theft of Gold

Chain and Necklace along with DVD, but recovery is only in

respect of Gold Chain and no explanation was offered

regarding other properties and hence, he would contend that,

it creates a doubt in the mind of the Court regarding the

genuineness of recovery. He would contend that, both the

courts below have failed to appreciate any of these aspects CRL.R.P. 1143/2015

and mechanically convicted the petitioner/accused, which calls

for interference. Hence, he would seek for allowing the

petition by setting aside the impugned judgment of conviction

and order of sentence passed by both the courts below.

9. Per contra, the learned HCGP would contend that,

PW.3 is a star witness and he has specifically identified both

Accused No.1 & 2 as they have sold the golden ornaments to

him and his evidence is not impeached. He would contend

that, when both Accused Nos.1 & 2 together have sold the

golden ornaments, then common intention can be gathered.

He would contend that both the courts below have highlighted

the role played by the petitioner/accused No.2 and hence, the

judgment of conviction and order of sentence passed by both

the courts below are well-reasoned and does not call for any

interference. Hence, he would seek for rejection of the

revision petition.

10. Having heard the arguments and perusing the

records, now the following point would arise for my

consideration:-

CRL.R.P. 1143/2015

"Whether the judgment of conviction and order of sentence passed by the trial Court and confirmed by the Appellate Court are arbitrary, erroneous and illegal so as to call for any interference by this Court?"

11. It is the specific contention of the prosecution

that, on the intervening night of 14.10.2010 and 15.10.2010,

the golden ornaments and a DVD were stolen from the house

of the complainant and he set the law in motion by lodging a

complaint as per Ex.P1 on 15.10.2010. The complainant is

not an eyewitness and he has simply set the law in motion.

Further theft in the house of complaint is not under dispute.

12. As per the case of prosecution, at the instance of

Accused No.1, the stolen articles were recovered from PW.3

and PW.3 has identified both Accused Nos. 1 & 2, as they have

sold the golden ornaments to him under the guise of sickness

of their mother. In the instant case, admittedly no recovery

was made at the instance of the present petitioner, who has

arraigned as Accused No.2. Admittedly, he was arrested

subsequent to the recovery. However, the recovery is done at

the instance of Accused No.1.

CRL.R.P. 1143/2015

13. Both seizure mahazar witnesses viz., PW.4 and

PW.5 have turned hostile. PW.1 is the complainant and PW.9

is his wife and they are circumstantial witnesses and their

evidence simply discloses that, theft was committed in their

house. PWs.3 & 4 are the material witnesses in this case.

PW.3 has specifically deposed that, both Accused Nos. 1 & 2

have approached him and sold the golden ornaments under

the guise of sickness of their mother and since they are

acquainted to him, without much enquiry, he purchased the

golden ornaments brought by them. He has further deposed

that, subsequently, the police visited his shop on 16.12.2010

along with Accused No.1 and he produced a gold chain and the

same was recovered by drawing a seizure mahazar. Though

this witness was cross-examined at length, nothing was

elicited so as to impeach his evidence. No enmity is

forthcoming so that PW.3 could give false evidence against

Accused No.2. Apart from that, this witness has specifically

identifies the present petitioner (Accused No.2) as well as

Accused No.1 before the Court for having sold the golden

ornaments and he further specifically asserts that, they are

acquainted with him, as they were dealing with him earlier CRL.R.P. 1143/2015

also. Under such circumstances, when the evidence of PW.3 is

not impeached, question of recovery being done only from

Accused No.1 and no recovery is done from Accused No.2, has

no relevancy. The evidence of PW.3 would clearly establish

that both Accused Nos. 1 & 2 together have sold the golden

ornaments and both the courts below have appreciated this

aspect in proper perspective and analised the evidence.

14. PW.4 deposed regarding he being summoned to

the shop of PW.3 and his evidence is also regarding recovery

at the instance of Accused No.1, from the shop of PW.3. PW.3

fully supports the case of prosecution and identifies both the

accused Nos. 1 & 2 for having sold the golden ornaments.

Nothing worthy has been elicited during the cross-examination

of this witness. PW.10 is the Investigating Officer and he

deposed regarding investigation done by him.

15. The main ground of the arguments of the learned

counsel for the petitioner is that, no recovery was done at the

instance of the present petitioner/Accused No.2 as his arrest

was subsequent to recovery. But, interestingly, PW.3 has

specifically identified the Accused No.2 for having CRL.R.P. 1143/2015

accompanied Accused No.1 during the sale of golden

ornaments to him. This part of evidence is not at all

impeached during the course of entire evidence. Hence, the

arguments advanced by the learned counsel for the revision

petitioner/accused No.2 in this regard does not have any

relevancy. The contention raised regarding non-recovery of

gold necklace is not a ground to hold that the present

petitioner is innocent. The evidence on record is sufficient to

prove the guilt of the accused No.2/revision petitioner beyond

all reasonable doubt. Both the courts below have appreciated

the oral and documentary evidence in detail and have rightly

convicted the accused. Further, both the courts below have

imposed reasonable sentence against the present

petitioner/Accused No.2 and hence, question of interfering

with the said sentence portion also does not arise at all. As

such, the judgment of conviction and order of sentence cannot

be said to be arbitrary, erroneous or illegal so as to call for

any interference by this Court. Hence, the point under

consideration is answered in the negative and accordingly, I

proceed to pass the following:-

CRL.R.P. 1143/2015

ORDER

i) The Revision Petition stands dismissed.

ii) The impugned judgment of conviction and order of Sentence dated 20.06.2013 passed by the trial Court viz., Additional JMFC, Bhadravathi, in C.C.No.327/2011 for the offence under Sections 457 and 380 of IPC and confirmed by the Appellate Court viz., IV Additional Sessions Judge, Shivamogga sitting at Bhadravathi, in Criminal Appeal No.146/2013 vide judgment dated 24.07.2015, stand confirmed.

iii) Bail bonds stand cancelled.

iv) The Registry is directed to send back the original records to the concerned trial Court along with a copy of this order, with a direction to secure the presence of the Accused No.2/revision petitioner herein for the purpose of serving the remaining portion of sentence of imprisonment and for recovery of fine amount, if any.

Sd/-

JUDGE

KGR*