Karnataka High Court
Mohammad Rafiq @ Rafiq vs The State Of Karnataka By on 8 December, 2023
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CRL.RP No. 954 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 954 OF 2017
BETWEEN:
MOHAMMAD RAFIQ @ RAFIQ,
S/O B. HECHU SULAIMAN,
AGED ABOUT 25 YEARS,
R/AT OPP. BISMILLA HOTEL,
GUDINA BALI, B. MUDA GRAMA,
BANTWAL TALUK - 574 211.
...PETITIONER
(BY MS. POOJA KATTIMANI, ADVOCATE FOR
SRI. RAVINDRA B. DESHPANDE, ADVOCATE)
AND:
THE STATE OF KARNATAKA BY
Digitally BANTWAL TOWN POLICE STATION,
signed by BANTWAL - 574 211.
SUMITHRA R
(REPRESENTED BY STATE PUBLIC PROSECUTOR,
Location:
HIGH COURT HIGH COURT BUILDINGS,
OF BENGALURU - 560 001)
KARNATAKA
...RESPONDENT
(BY MRS. ANITHA GIRISH. N, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
23.06.2017 PASSED BY THE PRL. S.J., D.K., MANGALORE IN
CRL.A.NO.69/2015 AND THE JUDGMENT AND ORDER DATED
20.02.2015 PASSED BY THE ADDL. CIVIL JUDGE AND JMFC,
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CRL.RP No. 954 of 2017
BANTWAL D.K., IN C.C.NO.645/2009 (CONVICTED FOR THE
OFFENCE P/U/S 454, 380 OF IPC) AND ACQUIT THE
PETITIONER/ACCUSED NO.2 OF ALL THE CHARGES LEVELED
AGAINST THEM.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision Petitioner/accused No.2 feeling aggrieved by
the judgment of First Appellate Court, on the file of
Principal Sessions Judge, Dakshina Kannada, Mangaluru in
Criminal Appeal No.69/2015 dated 23.06.2017, confirming
the judgment of the Trial Court, on the file of the
Additional Civil Judge and JMFC, Bantwal, Dakshina
Kannada, Mangaluru in C.C.No.645/2009 and 532/2013
dated 20.02.2015, 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.
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4. After hearing the arguments on both sides and
on perusal of Trial Court Records, so also the judgments of
both the Courts below, the following point would arise for
consideration:
1) Whether, the impugned judgment of
the First Appellate Court under Revision
in confirming the judgment of Trial
Court in C.C.No.645/2009 is perverse
for the offence punishable under Section
454 and 380 of the IPC perverse and
legally not sustainable?
2) Whether interference of this Court is
required?"
5. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
27.06.2009 in between 8.00 AM to 6.30 PM in Nayila of
Narikombu Village, Bantwala Taluk, some unknown
persons by committing criminal tress pass for committing
the offence of theft entered in the house of complainant
from back side of the house. The said unknown persons
have committed theft of cash of Rs.1,000/-, gold plated
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one ladies watch, one gents watch and one Onida Colour
T.V. The complainant on returning to the house, in the
evening came to know about theft of articles from the
house and then he filed the complaint. The investigation
officer after carrying out the investigation, filed the charge
sheet.
6. The records of Trial Court would go to show that
accused No.1 remained absent before the Court and the
case against him was ordered to be split up. The split up
case is registered in C.C.No.532/2013. The Trial was
commenced only against accused No.2. It is thereafter,
after examination of some witnesses, accused No.1 was
secured on 08.10.2013. The charge was framed against
accused No.1. In the meantime, PW1 to PW4 were already
examined in the said case. The order sheet dated
28.03.2014 in C.C.No.532/2013 as observed by both the
Courts below disclose that the learned counsel for accused
No.1 filed memo to treat the evidence recorded in
C.C.No.645/2009 and the same was accepted by the Trial
Court. Thereafter trial proceeded against both the
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accused. The Trial Court after hearing the arguments of
both sides and on appreciation of evidence on record
convicted accused Nos.1 and 2 for the offences alleged
against them and imposed sentence as per order of
sentence. Accused Nos.1 and 2 have challenged the said
judgment of conviction and order of sentence before the
First Appellate Court in Criminal Appeal No.69/2015. The
First Appellate Court dismissed the appeal insofar as
accused No.2 is concerned and allowed the appeal filed by
accused No.1 and impugned judgment and conviction and
order of sentence in C.C.No.532/2013 came to be set
aside and the matter was remanded as against accused
No.1 to record the evidence of PW1 to 4 afresh and to
dispose of the matter in accordance with law.
7. Learned counsel for accused No.2 has argued that
the recovery of the stolen articles either from the
possession of the accused or at his instance has not been
proved by the prosecution out of the material placed on
record. The evidence of PW3-Anna Kulal auto driver in
identifying both the accused before the Court as the
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persons who have travelled in his auto rickshaw in the
police station cannot be relied. The evidence of PW4-
Manjappa, PW6-Jayarama Rao regarding the recovery of
articles from the possession of accused Nos.1 and 2 under
the panchanama Ex.P6 dated 06.07.2009 in view of the
material elicited in the cross examination of PW4 and PW6
cannot be relied. The evidence of police officials PW5-
Jayarama Rai, PW7-Vasanth Gowda, PW8-Vishwanath and
that of investigation officer PW10-Aaitappa cannot be
relied. The recovery aspect is not in consonance with the
evidence of PW4-Manjappa and PW6-Jayaram Rao, the
Court below have not properly appreciated the material
evidence placed on record and prayed for allowing the
appeal.
8. Per-contra, learned High Court Government
Pleader has argued that accused Nos.1 and 2 were found
in possession of stolen articles belonging to the
complainant. The complaint was filed Ex.P1 and the same
have been recovered under the recovery panchanama
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Ex.P6. The said fact has been corroborated by the
evidence of PW4-Manjappa and PW6-Jayaram Rao. There
are no any valid reasons to discard the evidence of police
officials witnesses PW7-Vasanth Gowda and PW8-
Vishwanath. The said evidence has been further
corroborated by the evidence of investigating officer
PW10-Aaitappa. The findings recorded by both the Courts
below in holding accused No.2 guilty for the offence
alleged against him is based on the material evidence
placed on record and the same does not warrant for any
interference by this Court.
9. On careful perusal of the oral evidence of PW1-
Ramanath and also PW2-Laxminarayan Rao who is the
neighbor of house of complainant would go to show that
they have spoken about the incident of theft in the house
of the complainant on 26.06.2009 in between 8.00 AM to
6.30 PM. The evidence of both these witnesses regarding
theft incident in the house of complainant has not been
seriously disputed by the defence.
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10. The prosecution apart from relying the evidence
of PW3-Anna Kulal and the recovery panch witnesses
PW4-Manjappa and PW6-Jayaram Rao also relies on the
evidence of PW5-Jayaram Rai, PW7-Vasanth Gowda and
PW8-Vishwanath who have accompanied the investigating
officer PW10-Aaitappa on the strength of credible
information received by investigating officer PW10-
Aaitappa went to the place at Marnebailu.
11. It is the evidence of investigating officer PW10-
Aaitappa that on 27.06.2009 the complainant has
appeared before him and filed complaint Ex.P1 and he has
registered the case in Bantwal crime No.138/2009 and
drawn the FIR Ex.P9 for the offences punishable under
Sections 454 and 380 of IPC on visiting the spot prepared
the panchanama Ex.P2.
12. PW10-Aaitappa has further deposed to the effect
that on 06.08.2009 he has received credible information
and in pursuance of the same, he proceed to the spot
along with PW5-Jayaram Rai, PW7-Vasanth Gowda and
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PW8-Vishwanath in a private vehicle. While they were
waiting at the said place at about 9.15 AM, autoriksha
bearing Reg.No.KA-19-B-8663 came from Kukkaje side of
which he had received the information. On his direction,
the police staff accompanying him have stopped the
vehicle, there were two persons in the auto rickshaw with
one Onida colour T.V. On enquiry regarding the T.V in
their possession they have not given satisfactory answer.
On suspicion, they were further enquired and they
revealed that they have committed theft of the T.V, two
watches and cash on 26.06.2009 from the house in
Narikombu Village. The articles found in possession of
accused Nos.1 and 2 were seized under the panchanama
Ex.P6.
13. On coming to the police station along with
accused Nos.1 and 2 and the seized articles, accused
Nos.1 and 2 have given voluntary statements Ex.P10 and
P11 respectively. In pursuance of such disclosure made by
accused Nos.1 and 2 they led police officials and panch
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witnesses and produced the iron rod used for gaining entry
into the house of complainant and the same came to be
seized under panchanama Ex.P7 which he identifies at
M.O.No.1. The evidence of the police officials PW5-
Jayaram Rai, PW7-Vasanth Gowda and PW8-Vishwanath is
on the same line has deposed by PW10-Aaitappa
Investigation Officer.
14. The prosecution to prove the nexus between the
theft incident and accused have committed theft of articles
belongs to the complainant mainly relies on the evidence
of PW3-Anna Kulal and the independent recovery panch
witnesses PW4-Manjappa and PW6-Jayarama Rao. It is the
evidence of PW3-Anna Kulal that about four years back
two persons have boarded that auto rikshaw at Bardoli
with some articles tied in the cloth and he has left them at
Maarnabailu, Nandavara Cross and left that place. PW3
has further deposed to the effect that on the next day, he
came to know about the theft incident in the house of
PW1-Ramanatha. It is his further evidence that after 10
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days, he was called to the police station where he has
identified accused Nos.1 and 2 before the Court as the
persons who have traveled in his auto rickshaw. This
witness has been cross examined by the defence counsel
denying the identification of accused Nos.1 and 2 who
were alleged to have traveled in his auto rickshaw. The
incident of theft took place on 27.06.2009 accused No.1
and 2 were apprehended on 06.07.2009. There is no much
time gap in between the said period and in a place like
Mardoli to Marnabailu both the accused have traveled in
his auto rickshaw and spend sufficient time in the traveling
which would sufficient enough to identify them by looking
to the face.
15. The evidence of PW4-Manjappa would go to show that
himself and PW6-Jayarama Rao were called for the
purpose of panchanama and they proceeded to Marnabailu
in private car along with the police. While they were
watching, auto rickshaw came from Kukkaje side bearing
Reg.No.KA-19-B-8663 to the place and the same was
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stopped by the police officials. There were two persons
with one T.V in their possession. On enquiry by the police
officials regarding the T.V in their possession, they have
not given satisfactory answer. On further enquiry they
revealed that they have committed theft of the T.V, two
watches and cash from the house in Narikombu Village.
The articles found in possession of accused Nos.1 and 2
were recovered under the seizer panchanama Ex.P6. PW4
has also identified the photographs of the articles under
Ex.P3 and P4.
16. Thereafter, the very same panchas accompanied
PW10-Aaitappa and both of the accused give their
voluntary statement Ex.P10 and P11 respectively and led
the police officials and panchas and shown the place where
iron rod was hidden by them which was used for opening
the door of the house of complainant to gain entry in the
said house. The said iron rod was produced by accused
came to be seized under panchanama Ex.P7. PW6-
Jayarama Rao co-pancha Ex.P6 and Ex.P7 has also spoken
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about the preparation of panchanama Ex.P6 and Ex.P7.
These two material witnesses of the prosecution PW4-
Manjappa and PW6-Jayarama Rao have been subjected to
cross examination, nothing worth material has been
brought on record, so as to discredit their evidence that
the accused were found in possession of one Onida colour
T.V and traveling in the auto rickshaw bearing No.KA-1-B-
8663, one ladies watch and one gents watch also came to
be seized from their possession. PW1 during the course of
his evidence has deposed to the effect that he was called
to the police station and shown the accused from whom
one Onida colour T.V., one ladies watch and one gents
watch came to be recovered and he has identified the
same as belongs to him. The photographs Ex.P3 and P4
are also identified by the complainant. The said evidence
has not been challenged by the defence by cross
examining PW1 in identifying the accused before the Court
and also in identifying the articles belongs to him. The
evidence of PW.4 Manjappa and PW.6 Jayarama Rao in
apprehending accused Nos.1 and 2 while they were
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traveling in the auto rickshaw bearing No.KA-19-B-8663
and they were found in possession of one colour T.V.
seized in this case and also one lady's watch and one
gents watch is consistent and there is no reason to
disbelieve their evidence. The said evidence is further
corroborated by the evidence of official witnesses PW5-
Jayarama Rai, PW7-Vasantha Gowda and PW8-
Vishwanatha.
17. There are absolutely no any valid reasons to
disbelieve their evidence regarding the recovery of one
Ondia colour T.V, one ladies watch and one gents watch
from the possession of accused Nos.1 and 2. Thus, the
prosecution out of the evidence on record has proved the
incident of theft in the house of the complainant PW1-
Ramanatha and established the nexus between the theft
incident and the stolen articles from the possession of
accused. The Courts below have rightly appreciated the
oral and documentary evidence placed on record and
justified in holding that accused No.2 has committed the
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offence punishable under Sections 454 and 380 of the IPC.
The said findings recorded by both the Courts below are
based on the material evidence placed on record and the
same does not call for any interference by this Court.
18. Now coming to the question of sentence is
concerned, the Trial Court has convicted accused No.2 and
imposed sentence of one year and fine of Rs.2,000/- and
in default of payment of fine amount they are further
sentenced to undergo additional imprisonment for three
months for the offences punishable under Sections 454 of
IPC. Accused were further sentenced to undergo simple
imprisonment for 2 years and pay a fine of Rs.3,000/- in
default of payment of fine to undergo additional
imprisonment for 3 months for the offence punishable
under Section 380 of IPC. The First Appellate Court has
affirmed the said finding of the Trial Court of the offence
punishable under Sections 454 and 380 of the IPC. The
imposition of sentence in imprisonment and also fine is
mandatory.
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19. Learned counsel for the revision petitioner who is
present before the Court submits for taking lenient view. It
is submitted that accused No.2 has no criminal
antecedents and the entire family members of accused
No.2 is dependent on his income. Looking to the facts and
circumstances of the case and the evidence placed on
record by the prosecution, this Court is of the opinion in
that imposition of sentence of imprisonment is too harsh
and warrants interference by this Court. In view of the
facts and circumstances of the case and the evidence on
record, if accused No.2 is sentenced to undergo simple
imprisonment for six months and simple imprisonment for
one year for the offences punishable under Sections 454
and 380 of the IPC by maintaining the fine amount as
ordered by the Trial Court is order to be maintained will
meets the ends of justice. Consequently, proceed to pass
the following:
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ORDER
Revision Petition filed by the revision
petitioner/accused No.2, is hereby partly allowed.
The judgment of the First Appellate Court on the file
of Principal Sessions Judge, Dakshina Kannada, Mangaluru
in Criminal Appeal No.69/2015 dated 23.06.2017 in
confirming the judgment of Trial Court on the file of
Additional Civil Judge and JMFC, Bantwal, Dakshina
Kannada, Mangaluru in C.C.No.645/2009 dated
20.02.2015 is ordered to be modified as under:
Accused No.2 is sentenced to undergo imprisonment for
a period of six months for the offence punishable under
Section 454 of the IPC.
Accused No.2 is also further sentenced to undergo
simple imprisonment for one year for the offence
punishable under Section 380 of the IPC and the fine
amount as order by the Trial Court with default sentence
maintained.
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The sentence of imprisonment imposed against
accused No.2 is order to run concurrently.
In exercise of power under Section 428 of Cr.P.C. the
period of detention, if any by accused No.2 in judicial
custody is ordered to be given set of.
Registry is directed to send the Trial Court records
along with the copy of this order.
SD/-
JUDGE
CH
CT: BHK
