Karnataka High Court
Mr Vincent D Souza @ Vinci vs The State Of Karnataka on 26 July, 2023
Bench: S Rachaiah
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CRL.RP No. 562 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 562 OF 2019
BETWEEN:
MR. VINCENT D SOUZA @ VINCI
AGED ABOUT 45 YEARS
S/O LATE LADIN D SOUZA
RESIDING AT ULLALA HOIGE
NEAR RAILWAY BRIDGE
JEPPINAMOGARU VILLAGE
MANGALORE TALUK, D.K.
PIN - 575 001.
...PETITIONER
(BY SRI. SURESH CHOTTEYANDA S, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY PUBLIC PROSECUTOR
BANGALORE
MANGALORE EAST POLICE STATION
MANGALORE - 575 001.
DAKSHINA KANNADA
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C, PRAYING TO
SET ASIDE THE JUDGMENT AND SENTENCE PASSED BY THE II ADDL.
DISTRICT AND SESSIONS JUDGE, DK, MANGALORE CITY DATED:
11.01.2019 IN CRL.A.NO. 173/2014 AND JUDGMENT AND SENTENCE
PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE AND
CJM, AT MANGALORE IN C.C.NO.82/2013, DATED: 14-07-2014 &
ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED ON 20.06.2023, COMING ON FOR PRONOUNCEMENT
OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:-
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CRL.RP No. 562 of 2019
ORDER
1. This Criminal Revision Petition is filed by the
petitioner, being aggrieved by the judgment of conviction and
order of sentence dated 14.07.2014 in C.C.No.82/2013 on the
file of the Court of II Additional Senior Civil Judge & C.J.M.,
Mangalore, D.K., and its confirmation judgment and order
dated 11.01.2019 in Crl.A.No.173/2014 on the file of the Court
of the II Additional District and Sessions Judge, D.K.,
Mangaluru, has filed this revision petition seeking to set aside
the concurrent findings recorded by the Courts below, wherein
the petitioner / accused was convicted for the offence
punishable under Sections 392 r/w 34 of Indian Penal Code (for
short 'IPC').
2. The petitioner is the accused No.1 before the Trial
Court and appellant No.2 before the Appellate Court.
Brief facts of the case are as under:
3. It is the case of the prosecution that, on
21.08.2012 at about 7.00 p.m., when PW.1 was returning from
the shop to her house, near cross road, it is alleged that, the
petitioner along with other accused had snatched the golden
CRL.RP No. 562 of 2019
mangalya chain, which was approximately weighing about 3 ½
pawan which is worth of Rs.77,000/-. A complaint came to be
lodged by her, which is marked as Ex.P1. The police have
registered a case for the offence punishable under Section 392
read with 34 of IPC, conducted the investigation and submitted
the charge sheet.
4. To prove the case of the prosecution, the
prosecution examined, in all, 14 witnesses namely PWs.1 to 14
and got marked Exhibits P1 to P17 and identified M.O.1 to
M.O.5. The Trial Court after appreciating the oral and
documentary evidence on record, convicted the petitioner for
the offence stated supra. Being aggrieved by the same, the
petitioner preferred an appeal before the Appellate Court, the
Appellate Court confirmed the judgment of conviction rendered
by the Trial Court. Being aggrieved by the same, the petitioner
has preferred this revision petition seeking to set aside the
concurrent findings.
5. Heard Shri Suresh Chotteyanda S, learned counsel
for the petitioner and Shri Rahul Rai K, learned High Court
Government Pleader for the respondent - State.
CRL.RP No. 562 of 2019
6. It is the submission of the learned counsel for the
petitioner that, the concurrent findings recorded by the Courts
below without appreciating the evidence properly and also not
applied the law, hence, it is required to be set aside.
7. It is further submitted that, the evidence of PW.1,
even though, clearly indicates that the incident had taken place
at about 7.00 p.m., the Investigating Officer has not
conducted identification parade. In the absence of identification
parade, the Courts below ought not to have convicted the
petitioner for the above said offence.
8. It is further submitted that, PW.1 has admitted
that, she had no receipts for having purchased M.O.1 and
M.O.2 and it is also an admitted fact that, in the complaint, the
type of golden chain stated to have snatched from her was not
mentioned. It is also stated that, at the time of lodging the
complaint, the description of the petitioner was not mentioned,
however, it was stated that, the accused were aged between 20
to 30 years. The contradictions of the witnesses in respect of
identity of the accused was not considered by the Courts below
while appreciating the evidence of the case. Having submitted
thus, the learned counsel for the petitioner seeks to set aside
CRL.RP No. 562 of 2019
the concurrent findings recorded by both the Courts below and
prays to allow the petition.
9. Per contra, learned High Court Government Pleader
(for short 'HCGP') vehemently justified the concurrent findings
and submitted that, PW.1 in her evidence has stated that, in
the light she had seen the petitioner and after recovery of the
gold chain, she had identified the same. Based on the
recovery, it is said that, the petitioner is found guilty of the
offence.
10. It is further submitted that, the evidence of PWs.7,
8 and 9, who are the panch witnesses to the seizure mahazar
supported the case of the prosecution. The said seizure was
effected at the instance of the petitioner. Nothing is there to
disbelieve their evidence. Similarly, PWs.4 and 5 also
supported the seizure of the articles at the instance of accused
No.1/petitioner, hence, there is no infirmity in recording the
conviction. Having submitted thus, learned HCGP prays to
dismiss the petition.
11. Having heard the rival contentions urged by the
learned counsels for the respective parties and also perused the
CRL.RP No. 562 of 2019
judgments of the Courts below, the points which arise for my
consideration are:
i) Whether the concurrent findings recorded by
both the Courts below in convicting the petitioner
for the offence under Sections 392 read with 34
of IPC are sustainable?
ii) Whether the petitioner has made out
grounds to interfere with the concurrent findings
recorded by both the Courts below for conviction?
12. This Court being a Revisional Court, having regard
to the scope and limits envisaged to appreciate the facts and
law, it is necessary to have a cursory look upon the evidence
of the witnesses and also documents.
13. It is the case of the prosecution that, the mangalya
chain of PW.1 was snatched by the youths, who were coming
on the motorbike at about 7.00 p.m., in the night hours. It is
also stated that, they were wearing helmets. The learned
counsel for the petitioner raised a point that, as the prosecution
has failed to prove the identity of the petitioner, the Trial Court
ought not to have recorded the conviction. In this regard, it is
CRL.RP No. 562 of 2019
necessary to have a cursory look upon the evidence of PW.1
and also the Investigating Officer.
14. As per the evidence of PW.1, it is admitted that,
the gold chain, which is alleged to have recovered at the
instance of the petitioner contains no receipt to prove that it
belonged to PW.1. It is stated in her complaint that, M.O.1 and
M.O.2 did not contain the pendent of Ramakrishna
Paramahamsa. It is also stated that, she could not say on
which vehicle the petitioner had come and it is also admitted in
the cross-examination that, prior to the incident PW.1 has not
seen the petitioner.
15. As per the evidence of PW.11, who is stated to have
conducted the investigation has not conducted identification
parade before showing the petitioner to PW.1. Identification of
the petitioner in the Police Station by PW.1, even though, it is
stated in the complaint that, the rider and the pillion rider of
the bike were wearing helmets appears to be strange and
inappropriate and the said identification is unsustainable.
16. It is needless to say that, unless the prosecution
conducted the identification parade, in such cases, it is
inappropriate to record the conviction merely on the basis of
CRL.RP No. 562 of 2019
the recovery of the articles. The Trial Court and Appellate
Court committed error in recording the conviction of the
petitioner. Hence, the concurrent findings of conviction liable
to be set aside.
17. In the light of the observations made above, the
points which arose for my consideration are answered as
under:-
Point No.(i) - "Negative"
Point No.(ii) - "Affirmative"
ORDER
(i) The Criminal Revision Petition is allowed.
(ii) The judgment of conviction and order of
sentence dated 14.07.2014 passed in
C.C.No.82/2013 by the Court of II Additional
Senior Civil Judge & C.J.M., Mangalore, D.K. and
the judgment and order dated 11.01.2019 in
Crl.A.No.173/2014 by the Court of the II
Additional District and Sessions Judge, D.K.,
Mangaluru, are set aside.
CRL.RP No. 562 of 2019
(iii) The petitioner is acquitted for the offence under
Sections 392 read with 34 of IPC.
(iv) Bail bonds executed, if any, stand cancelled.
Sd/-
JUDGE
UN
