Karnataka High Court
Md.Jaffer S/O Shabbir Jahagirdar vs The State Of Karnataka on 11 December, 2023
Author: K Natarajan
Bench: K Natarajan
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CRL.RP No. 200078 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE K NATARAJAN
CRIMINAL REVISION PETITION NO. 200078 OF 2017
BETWEEN:
MD. JAFFER
S/O SHABBIR JAHAGIRDAR,
AGED ABOUT 34 YEARS, OCC: GOUNDI,
R/O: AHMED NAGAR, AZADAPUR ROAD,
TALUK AND DISTRICT: KALABURAGI - 585 201.
...PETITIONER
(BY SRI. GANESH NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH M.B.NAGAR POLICE STATION,
TALUK AND DISTRICT: KALABURAGI,
REPRESENTED BY
Digitally ADDL. STATE PUBLAIC PROSECUTOR,
signed by B
NAGAVENI HIGH COURT BUILDING, KALABURAGI - 585 207.
Location: ...RESPONDENT
High Court
Of Karnataka (BY SMT. ANITA M. REDDY, ADVOCATE)
THIS CRL.RP IS FILED U/S 397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF
CONVICTION AND SENTENCE DATED: 05.02.2011 PASSED BY
THE II ADDL. SESSIONS JUDGE AT KALABURAGI IN
CRL.APPEAL NO.36/2008 AND THEREBY CONFIRMING
UPHOLDING THE JUDGMENT PASSED BY III ADDL. JMFC AT
KALABURAGI IN C.C.NO.1365/2006 DATED: 12.01.2007.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
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CRL.RP No. 200078 of 2017
ORDER
This petition is filed by the petitioner/accused under
Section 397 read with 401 of Cr.P.C. for setting aside the
judgment of conviction and sentence passed by the First
Appellate Court, II Additional Sessions Judge, Kalaburagi in
Crl.A.No.36/2008 by reversing the judgment of acquittal for the
offence punishable under Sections 454 and 380 of IPC.
2. Heard the arguments of learned counsel for the
petitioner and learned HCGP for the State.
3. The petitioner is the accused and respondent was
prosecution before the Trial Court. The ranks of the parties
before the First Appellate Court are retained for the sake of
convenience.
4. The case of the prosecution is that, the M.B. Nagar
Police Station, Kalaburagi filed charge sheet against the
petitioner/accused for the offence punishable under Sections
454 and 380 of IPC. It is alleged that on 03.08.2005, CW1-
complainant one Amrutharao filed complaint to the police
alleging that his house was break opened and the golden
ornaments were stolen by somebody. After registering the FIR,
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during the investigation the accused was arrested by the
Station bazaar Police and huge properties were recovered by
the police, then the complainant was called to the Station
Bazaar Police Station. He has identified these golden
ornaments and later the charge sheet was filed against this
appellant/accused. The accused was pleaded not guilty and
claimed to be tried. Accordingly, the prosecution examined 8
witnesses, got marked 13 material objects and 5 documents.
The accused was examined under Section 313 of Cr.P.C., he
has denied the incriminating evidence adduced against him, but
not entered into any defence. Accordingly, after hearing the
arguments, the Trial Court found appellant/accused not guilty
and he has been acquitted on 12.01.2007 in CC.No.1365/2006.
Being aggrieved by the judgment of acquittal, the State
prepared the appeal before the District Judge and the District
Judge after hearing the appeal reversed the judgment and
convicted the accused, which is under challenged.
5. Learned counsel for the appellant/accused has
contended the judgment of the First Appellate court is
erroneous. The Trial Court rightly acquitted the accused and
observed that the recovery panch witness for recovery mahazar
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P.W.4 was not from the locality, he is from some other place.
Therefore, the evidence of the prosecution witnesses are
insufficient to prove the guilt of the accused. Therefore, prayed
for allowing the petition and setting aside the judgment of the
First Appellate Court and to confirm the judgment of acquittal
passed by the Trial Court.
6. Per contra, learned HCGP supported the judgment of
the First Appellate Court and contended that the factum of theft
was proved by the prosecution and examined P.W.1 to P.W.3.
The recovery of the golden ornaments were proved from the
evidence of P.W.4 and P.W.6. The P.W.5, P.W.7 and P.W.8
are the Investigating Officers who apprehended the accused
and recovered the golden ornaments on the voluntary
statement of the accused under Section 27 of Evidence Act,
which is admissible. Merely the case dairy was not produced by
the Investigating Officer, before the Trial Court, the Trial Court
committed error in acquitting the accused. Therefore, the First
Appellate Court rightly re-appreciated the evidence and
reversed the judgment. Hence prayed for dismissing this
revision petition.
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7. Having heard the arguments and perused the records,
the point that arises for my consideration is,
(1) Whether the First Appellate Court
committed error in reversing the judgment of
acquittal and convicting the appellant is liable
to be set aside?
It is well settled, it is a revision and not First Appellate Court
for re-appreciating the evidence on record. However, the First
Appellate Court reversed the judgment, of the trail Court
Therefore, it is necessary to verify the evidence adduced by the
prosecution before the Trial Court.
8. The P.W.1 who is the complainant-Amruthrao has
stated, he has filed the complaint as per Ex.P1 alleging that
when he was out of the house, there was theft in his house,
somebody broke opened the door and stolen the golden
ornaments and he went to the police station and lodged the
complaint as per Ex.P.1.
9. The police who registered the FIR, P.W.5/ASI who
received Ex.P.4-FIR and visited the Spot and prepared the spot
Panchanama as per Ex.P.2 in the presence of P.W.2/Mallinath
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and P.W.3/Gurusharam. The factum of theft was not denied by
the accused and there is no effective cross examination to
disbelieve the evidence of P.W.1 to P.W.3, where the
prosecution was successful in proving that there was theft of
golden articles from the house of the P.W.1 on 03.08.2005, in
the night hours. As per the evidence of P.W.7, he has filed the
charge sheet where the accused was arrested by the Station
Bazaar Police Station and there was a recovery made by the
police on the voluntary statement of the accused. The articles
from M.O.1 to M.O.12 were recovered from the P.W.6. The
confession statement made by the accused is not admissible
under Sections 24, 25 and 26 of the Evidence Act, except
Section 27, Of there is a recovery which is admissible. On the
voluntary statement of the accused, the Investigating Officer
secured the presence of P.W.4/Mallikargun who is a Senior
Assistance in Electrical Department as panch witness and the
accused lead them to the shop of the P.W.6 one Sudesh where
the accused sold the golden ornaments of 220 gms for
Rs.70,000/-. The evidence of P.W.6 and P.W.4 corroborates
each other, regarding the first instance when the accused sold
100 gms of gold for Rs.30,000/- and after some time, he has
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sold 120 gms of gold for Rs.40,000/-, which were seized by the
Investigating Officer under the panchanama, as per Ex.P.3 in
the presence of P.W.4 from the P.W.6. The evidence of P.W.4,
P.W.6 and P.W.7 corroborates to each other in respect of
recovery of golden ornaments, which was stolen from the
house of P.W.1 and the same was identified by the P.W.1 in the
evidence. The P.W.8 is another Investigating Officer in this
case. Ofcourse, the accused was arrested by some other police
station and the recovery was made by some other police
station and these police have categorically stated, the golden
ornaments were recovered from P.W.6, which was stolen from
the house of P.W.1, which was identified by the P.W.1., P.W.2
and P.W.6 and the Investigating Officer.
Considering the entire evidence on record, the
prosecution was successful in proving the guilt of the accused,
where the accused broke opened the door with an axe and
stolen the golden ornaments from the house of the P.W.1. The
MO-13 is the broken lock and bolt which were also identified by
the P.W.1. The Trial Court acquitted the appellant/accused
only on the ground, the case dairy was not produced for the
perusal of the court, which is not correct. The case dairy is
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only meant for the investigation officers for updating the day to
day investigation done in the particular case. It is not
permitted to give copy to the defence counsel for verifying the
same, except that the charge sheet shall be produced before
the court, a copy shall be supplied to the accused under Section
207 of Cr.P.C. Therefore, the Trial Court committed error in
holding, that the case dairy is not produced and doubting the
case of the prosecution, is not correct. Therefore, the First
Appellate Court re-appreciated the evidence on record, rightly
found the accused guilty and convicted him for offence
punishable under Sections 454 and 380 of IPC. Considering the
entire evidence on record, I am of the view the Trial Court
committed error in acquitting the appellant accused as the First
Appellate Court rightly convicted the petitioner/accused for the
offence punishable under Sections 454 and 380 of IPC.
On perusal of the sentence passed by the First Appellate
Court, the accused is sentenced to undergo imprisonment for a
period of two years and to pay fine of Rs.500/- in default of
payment of fine to undergo three months for the offence
punishable under Sections 454 and 380 of IPC, where the
offence committed by the accused is heinous one and he is also
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a habitual offender. He has committed offences in various
cases and several cases were registered and several properties
were acquired at the instance of the accused. Therefore, I am
of the view, it is not fit case for the accused to be released on
probation of offenders act, 1958 he is habitual offender, he has
committed offence which is heinous one. Therefore, I am of
the view, even the sentence passed by the First Appellate Court
need not be reduced or modified and judgment of the first
appellant Court does not call for interference.
Accordingly revision petition field by the petitioner is
hereby dismissed.
Sd/-
JUDGE
AKV
CT:SK
