Karnataka High Court
Sri Pramod K K vs The State Of Karnataka on 11 December, 2023
-1-
NC: 2023:KHC:45055
CRL.RP No. 807 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 807 OF 2013
BETWEEN:
SRI. PRAMOD K.K,
S/O LATE KRISHNA,
AGED ABOUT 43 YEARS,
R/AT KOYILKALATHIL HOUSE,
PUDUPANAM GRAMA, VADAGARA TALUK,
CALICUT, KERALA STATE - 672 005.
...PETITIONER
(BY SRI. G. MURALIDHAR, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
Digitally HIGH COURT BUILDINGS,
signed by BANGALORE - 560 001.
SUMITHRA R
...RESPONDENT
Location:
HIGH COURT (BY SMT. N. ANITHA GIRISH, ADVOCATE)
OF
KARNATAKA
THIS CRL.RP IS FILED U/S.397(2) OF CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 11.12.2008 PASSED BY THE ADDL. C.J. (JR. DN.) AND
J.M.F.C., PUTTUR, D.K. IN C.C.NO.925/2007 AND THE
JUDGMENT AND ORDER DATED 24.09.2013 PASSED BY THE V
ADDL. DIST. AND S.J., D.K., MANGALORE SITTING AT PUTTUR,
-2-
NC: 2023:KHC:45055
CRL.RP No. 807 of 2013
D.K. IN CRL.A.NO.6/2009 AND ACQUIT HIM OF THE OFFENCES
WITH WHICH THEY WERE CONVICTED BY THE COURTS BELOW.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision Petitioner/accused No.3 feeling aggrieved by
the judgment of First Appellate Court, on the file of V
Additional District and Sessions Judge, Dakshina Kannada,
Mangalore sitting at Puttur, Dakshina Kannada in Criminal
Appeal No.6/2009 dated 24.09.2013, confirming the
judgment of the Trial Court, on the file of the Additional
Civil Judge and JMFC, Puttur in C.C.No.925/2007 dated
11.12.2008, preferred this Revision Petition.
2. Parties to the Revision Petition are referred with
their ranks as assigned in the Trial Court for the sake of
convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on
perusal of the Trial Court records, including the judgment
NC: 2023:KHC:45055
of both the courts below, the following point arise for
consideration:
1) Whether the impugned judgment under
Revision is perverse, capricious and
legally not sustainable and call for any
interference by this Court?
5. The factual matrix leading to the case of the
prosecution can be stated in the nutshell to the effect that
the family members of the complainant Siraz Ulhaq had
gone to Kerala in the last week of January 2007. In the
intervening night of 27.01.2007 to 28.01.2007 watching
that there were nobody in the house have break opened
the lock of the house. Accused after entering inside the
house, they committed theft of 15 items of gold jewels
worth Rs.2,04,000/- and cash of Rs.1,49,100/- kept in the
almira of the house. On 29.01.2007 in the early morning,
when the complainant Siraz Ulhaq along with his family
members returned to the house, came to know about the
house was break-opened and theft in the house.
Thereafter, the complainant Siraz Ulhaq filed the complaint
NC: 2023:KHC:45055
before Puttur Town Police Station and the case was
registered in Crime No.14/2007.
6. On 16.02.2007, PW15-Mukunda Nayak has
received credible information that four persons who were
sitting at Puttur Railway Station beneath the flyover, were
sharing the jewellry. On receiving such credible
information, PW15-Mukunda Nayak along with his staff
members went to the spot and found four persons beneath
the flyover and they were sharing gold jewellery. They
were apprehended by PW15. On verification, the jewellry
found in the possession of the accused which were articles
theft from the house of the complainant Siraz Ulhaq. The
accused during the course of interrogation have revealed
that some of the gold articles are sold by them to jewelry
shop in the name of Sona Bazar at Vodagare, Kerala. At
the instance of accused Nos.1 and 4, the jewelry sold to
the jewelry shop came to be recovered. The Investigating
Officer after completion of investigation, filed the charge
NC: 2023:KHC:45055
sheet for the offences punishable under Sections 457 and
380 of the IPC.
7. The Trial Court after hearing the arguments of
both the sides and on appreciation of materials placed on
record before it, convicted accused Nos.1 to 3 for the
offences alleged against them imposed sentence as per
the order of sentence.
8. Accused No.3 has questioned the correctness and
legality of the said judgment of the Trial Court before the
First Appellate Court on the file of V Additional District and
Sessions Judge, Dakshina Kannada, Mangalore, sitting at
Puttur, Dakshina Kannada in Criminal Appeal No.6/2009.
The First Appellate Court after re-appreciation of the
evidence confirmed the judgment of Trial Court, by
dismissing the appeal.
9. Learned counsel for accused No.3 has argued that
the materials recovered under the seizure panchanama,
Ex.P3 to P5 has not been proved by the prosecution, as
NC: 2023:KHC:45055
there was no description of the stolen properties from the
house of the complainant-Siraz Ulhaq. PW10-Mohammed
Shaid owner of the jewelry shop and PW12-Prakash
worker of the said jewelry shop have not identified the
accused who have sold the gold articles to them. The
prosecution has failed to establish that the nexus between
the theft incident in the house of the complainant-Siraz
Ulhaq and the stolen properties alleged to have been
recovered from accused Nos.1 and 4 are the one belonging
to the complainant PW1- Siraz Ulhaq. The evidence of
officials PW8-Chandramohan and PW9-Bhaskar who have
accompanied PW15-Mukunda Nayak cannot be relied,
since their evidence is not supported by the independent
witnesses. The contrary findings recorded by both the
Court below, which cannot be legally sustained and seeks
interference of this Court.
10. On the other hand, the learned High Court
Government Pleader has argued that accused Nos.1 to 4
were arrested by the police officials beneath the flyover
NC: 2023:KHC:45055
near the railway station while they were sharing the
jewellry in their possession and PW15-Mukunda Nayak,
the Investigation Officer of the case has arrested all of
them. Further the accused have not offered any
explanation for the jewellry found in their possession. The
recovery evidence under the panchnama Ex.P3 and P4 is
supported by PW2-Mohammed Ali and independent PW4-
Abdul and PW5-Gopal, the police officials PW8-Chandra
Mohan and PW9-Bhaskar who have accompanied PW15-
Mukunda Nayak also substantiate the recovery made from
the possession of accused under the panchnama Ex.P3 and
the recovery of articles under the panchnama Ex.P4 at the
instance of the accused. The Courts below have rightly
appreciated the oral and documentary evidence placed
before it and justified in convicting the accused for the
offences alleged against them.
11. The Trial Court has convicted accused Nos.1 to 3
for the offences punishable under Sections 457 and 380 of
the IPC. Accused Nos.1 and 2 have not challenged the
NC: 2023:KHC:45055
order of judgment of conviction and order of sentence as
they were in judicial custody and undergone the sentence.
Accused No.4-Mohammed Salim (juvenile in conflict with
law) separate case is registered against him. It is only
accused No.3 who challenged the judgment of conviction
and order of sentence before the First Appellate Court as
well as in the present Revision Petition.
12. On perusal of the complaint allegation Ex.P1 and
the evidence of PW1- Siraz Ulhaq, PW2-Mohammed Ali,
PW3-Vahiduddin, PW6-Fathima W/o complainant PW1,
PW7-Jamila, PW11-Arun S Raane and PW13-Jubaida, it
would go to show that the complainant along with his
family members, by locking the house on 27.01.2007 to
28.01.2007, had gone to Kerala and returned in the early
morning on 29.01.2007. When complainant PW1- Siraz
Ulhaq with his family members came to the house, he
found that the lock of the house was broke opened and
after entering the house, found that 15 items of gold
jewels worth of Rs.2,04,000/- and cash of Rs.1,49,100/-
NC: 2023:KHC:45055
kept in almira in the house have gone in the theft.
Therefore, PW1- Siraz Ulhaq immediately filed the
complaint before the Puttur Town Police Station in the
morning, which came to be registered in Crime
No.14/2007 by PW15-Mukunda Nayak.
13. The evidence of PW11- Arun S Raane would go to
show that he has issued the Assessment Extract copy-
Ex.P6, which stands in the name of PW13-Jubaida. The
evidence of PW13-Jumeda would go to show that she has
sold the house to PW1- Siraz Ulhaq under the agreement
about 8 years back and it was not registered. About two
years back, she has executed the sale deed in favour of
PW1- Siraz Ulhaq. The evidence of above referred
witnesses and in the light of the complaint Ex.P1, it would
go to show that the prosecution has proved the incident of
the theft in the house of PW1- Siraz Ulhaq.
14. The prosecution to apart from proving theft
incident in the house of the complainant, PW1- Siraz
- 10 -
NC: 2023:KHC:45055
Ulhaq, must also prove that the stolen articles in this case
are belonging to PW1- Siraz Ulhaq and the same has been
recovered from the possession of the accused. The
prosecution in order to prove the recovery of stolen
articles from the possession of the accused and at the
instance of accused Nos.1 and 4, relied on the oral
testimony of PW1- Siraz Ulhaq, PW2-Mohammed Ali, co-
brother of complainant-PW1. The independent panch
witnesses PW4-Abdul and PW5-Gopal to prove the
recovery of stolen properties from the possession of
accused Nos.1 to 4 under the panchanama Ex.P3 and P4.
The prosecution further relied on the oral evidence of
PW10- Mohammed Shaid and PW12-Prakash owner and
the worker of Sona Jewelers from where the gold articles
sold by accused Nos.1 and 4 has been recovered. It is the
evidence of the Investigation Officer PW15-Mukunda
Nayak that on 16.02.2007 while he was in the police
station, he received credible information that four
unknown persons beneath the flyover of Puttur Railway
Station were sharing the jewellries and they are waiting
- 11 -
NC: 2023:KHC:45055
for the arrival of the train proceeding from Subramanya to
Mangalore. In pursuance of such information, he
proceeded to the spot along with PW8- Chandra Mohan
and PW9-Bhaskar. On reaching the place at the platform
of Puttur Railway Station, four persons on seeing the
police officers, tried to escape from the place, however,
they have been apprehended. On enquiry, they have not
given any satisfactory information regarding the gold
articles found in their possession, he immediately secured
two panch witnesses and a gold smith. The articles
M.O.Nos.1 to 12 were recovered under the panchnama
Ex.P3 in presence of two independent panch witnesses
PW4-Abdul and PW5-Gopal. Thereafter, at the instance of
the accused, M.O.Nos.14 to 24 came to be recovered
under the recovery panchnama Ex.P4. PW1- Siraz Ulhaq
and PW2-Mohammed Ali were also secured at the said
place before commencing the recovery proceedings. PW1-
Siraz Ulhaq and PW2-Mohammed Ali have also spoken
about the preparation of recovery panchanama Ex.P3 and
P4 and M.O.Nos.1 to 24 came to be recovered. PW1- Siraz
- 12 -
NC: 2023:KHC:45055
Ulhaq and PW6-Fathima have identified the stolen articles
from their house.
15. Accused Nos.1 and 4 gave voluntary statements
Ex.P12 and P13. In pursuance of such voluntary
statements, they led the police officials and the panch
witnesses to the jewellery shop. At the instance of accused
Nos.1 and 4, PW10- Mohammed Shaid and PW12-Prakash,
owner and worker of Sona Jewelry shop, produced one
gold ingot and two pieces of gold and the same was
recovered under the panchanama Ex.P5, which PW15-
Mukunda Nayak identified as per M.O.No.13. It is in the
evidence of PW1- Siraz Ulhaq and PW2-Mohammed Ali
that after one month of theft incident in the house of the
complainant- Siraz Ulhaq, they were called near Puttur
Railway Station and spoken about the recovery of gold
articles under the panchanama Ex.P3 and P4. The gold
articles have been identified by PW1- Siraz Ulhaq.
However, PW2- Mohammed Ali though has spoken about
PW1- Siraz Ulhaq and himself were called to Puttur
- 13 -
NC: 2023:KHC:45055
Railway Station for recovery of articles and identified his
signature Ex.P3(b) and P4(b), he cannot tell as to whether
he has signed Ex.P5. Therefore, he is partly declared as
hostile witness for the prosecution and though he has
been subjected to prosecution, no material has been
brought on record regarding the recovery of gold articles
from the possession of the accused under panchanama
Ex.P3 and P4. Therefore, the evidence of PW2-Mohammed
Ali can be relied only to the extent which he has spoken.
PW4-Abdul is the panch witness and PW5-Gopal is the gold
smith who was called PW15-Mukunda Nayak near Puttur
Railway Station. According to the case of the prosecution,
M.O.Nos.1 to 24 came to be recovered under the recovery
panchanama Ex.P3 and P4. PW4-Abdul has stated that on
16.02.2007 he was called to Puttur Railway Station and
police had apprehended four accused persons and 12 gold
articles and cash were recovered under the panchanama
Ex.P3 and he has signed Ex.P3(c). Thereafter, accused
have taken the police officials and panch witnesses from
Kotecha hall to the place where the iron rod and the gold
- 14 -
NC: 2023:KHC:45055
articles, kept in a plastic box, were concealed. It is at their
instance, one iron rod, three rold gold pieces were
recovered under the panchanama Ex.P4. PW5-Gopal gold
smith has also deposed to the fact that on 16.07.2007, he
was called to Puttur Railway Station and there were four
persons apprehended by the police and from them, 12
gold articles were recovered and he has verified the
genuineness of the gold articles and signed the recovery
panchanama Ex.P3 and identified his signature at
Ex.P3(d). PW5-Gopal has further deposed to the fact that
thereafter the accused took the police officials to the place
where the iron rod and the plastic box were concealed. On
going to the spot, one plastic box containing a ladies
purse, one iron rod and three rold gold articles were
recovered under the panchanama Ex.P4. The evidence of
PW8-Chandra Mohan and PW9-Bhaskar the police officials
is that they accompanied investigation officer PW15-
Mukunda Nayak on the strength of credible information
and went to Puttur Railway Station where they found four
persons sharing the gold articles and they have been
- 15 -
NC: 2023:KHC:45055
apprehended. The articles found in their possession were
recovered under recovery panchanama Ex.P3 and P4, so
also identified M.O.Nos.1 to 24 recovered under recovery
panchanama Ex.P3 and P4.
16. Learned counsel for the accused has vehemently
argued that PW4-Abdul is a friend of PW1 complainant and
PW5-Gopal gold smith has come to the place after PW15-
Mukunda Nayak alleged to have found gold articles from
the accused. Therefore, their evidence cannot be relied to
prove the seizure panchanama under Ex.P3 and P4. It is
further argued that the description of the stolen properties
has not been given by the complainant PW1 in the
complaint Ex.P1 and there is no evidence to show that the
seized articles belonged to them. The evidence of PW1-
Siraz Ulhaq and his wife PW6-Fathima would go to show
that the seized gold articles were kept in the almira of
their house and the said articles are belonged to them. As
the gold articles which were used for so many years before
the incident of theft, it may not be possible to remember
- 16 -
NC: 2023:KHC:45055
them after such a long time with description. The non-
disclosure of the description of the stolen articles also
cannot be a ground to disbelieve their evidence since PW1-
Siraz Ulhaq and PW6-Fathima have sufficient acquaintance
of items in their house and their identification cannot be
lightly brushed aside only because the description of the
properties have not been given by PW1 in the complaint-
Ex.P1. It is true that PW4 Abdul has admitted that he is a
friend of PW1- Siraz Ulhaq, just because he is a friend of
PW1- Siraz Ulhaq, his entire evidence cannot be brushed
aside. There is also evidence of independent witness of
PW5-Gopal who has verified the stolen articles which were
in the possession of the accused under the recovery
panchanama Ex.P3 and P4 and accused Nos.1 to 4 were
very much present, so also both PW4-Abdul and PW5-
Gopal have identified accused Nos.1 to 3 before the Court
and articles M.O.Nos.1 to 24 under seizure panchanama
Ex.P3 and P4 came to be recovered. There are no valid
reasons to disbelieve the evidence of the above referred
- 17 -
NC: 2023:KHC:45055
witnesses to prove the recovery under the panchanama
Ex.P3 and P4.
17. The prosecution to prove the recovery of gold
articles at the instance of accused Nos.1 and 4 pursuant to
their voluntary statements as per Ex.P12 and P13, relied
on the evidence of PW10-Mohammed Shaid and PW12-
Prakash, owner and worker respectively of Sona Jewelers.
The evidence of both the witnesses would only go to show
that two persons have sold the gold articles and they have
not identified accused Nos.1 and 4 brought by the police
as the persons who sold the gold articles to PW10-
Mohammed Shaid. The evidence of PW1- Siraz Ulhaq and
PW2-Mohammed Ali who are the interested witnesses to
the recovery panchanama Ex.P5 would only go to show
that there is a recovery of gold ingot which was seized
from the custody of PW10 Mohammed Shaid under the
recovery panchanama Ex.P5. The said recovery is related
to accused Nos.1 and 4 and accused No.1 has not
challenged judgment of conviction and order of sentence
- 18 -
NC: 2023:KHC:45055
against him. The said recovery evidence under recovery
panchanama Ex.P5 does not speak anything about
accused No.3. Therefore, that part of evidence of PW10-
Mohammed Shaid and PW12-Prakash in not identifying
accused Nos.1 and 4 cannot come in the way of deciding
the case against accused No.3 insofar as recovery at the
instance of accused Nos.1 to 4 under the recovery
panchnama Ex.P5 is concerned. The prosecution out of the
above recovery evidence of PW4-Abdul and PW5-Gopal
and that apart, PW1-Siraz Ulhaq, PW2-Mohammed Ali has
proved the recovery of M.O.Nos.1 to 24 from the
possession of the accused under the recovery panchanama
Ex.P3 and P4. The said evidence is further corroborated by
the evidence of PW8-Chandra Mohan and PW9-Bhaskar,
who had accompanied the investigation officer PW15-
Mukunda Nayak the Investigation Officer, though they
have been subjected to lengthy cross examination by the
defence counsel, nothing worth material has been brought
on record to disbelieve their evidence regarding recovery
- 19 -
NC: 2023:KHC:45055
evidence of stolen articles recovered under the recovery
panchanama Ex.P3 and P4.
18. The Courts below have rightly appreciated the
oral and documentary evidence placed on record and
justified in holding that accused Nos.1 to 3 have
committed lurking house tress pass of PW1 during the
night and committed theft which attract the ingredients of
offences under Sections 457 and 380 of the IPC. The
findings recorded by both the Courts is based on the
material evidence on record and the same does not call for
any interference of this Court.
19. Now coming to imposition of sentence is
concerned, the Trial Court has imposed sentence of simple
imprisonment for six months for the offences under
Sections 457 and 380 of the IPC and to pay a fine of
Rs.2,000/- for each of the offences. Looking to the facts
and circumstances of the case, both the Courts have
extended sufficient leniency in imposing the sentence and
- 20 -
NC: 2023:KHC:45055
the same does not call for any interference of this Court.
Consequently, proceed to pass the following:
ORDER
Revision Petition filed by the revision
petitioner/accused No.3, is hereby dismissed being devoid
of merits.
Registry is directed to send back the records to the
Trial Court with a copy of this order.
SD/-
JUDGE
CH
CT: BHK
