Karnataka High Court
Suresh S/O Yallappa Shivpure vs The State Of Karnataka on 2 June, 2023
Bench: Anil B Byabkj
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 2nd DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100189 OF 2014
C/W
CRIMINAL REVISION PETITION NO. 100190 OF 2014
CRIMINAL REVISION PETITION NO. 100191 OF 2014
CRIMINAL REVISION PETITION NO. 100192 OF 2014
CRIMINAL REVISION PETITION NO. 100193 OF 2014
IN CRIMINAL REVISION PETITION NO. 100189 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS,
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
Digitally
NOW AT PRESENT LAXMI NARSINGH
signed by J
MAMATHA
SINGANKERI, DHARWAD.
J ...PETITIONER
Date:
MAMATHA 2023.05.28
20:02:39 -
0700
(BY SRI. MANOJ BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.31/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.27/2012 DATED 19.01.2013.
IN CRIMINAL REVISION PETITION NO. 100190 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH
SINGANKERI, DHARWAD.
...PETITIONER
(BY SRI. MANOJ BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.32/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.60/2012 DATED 19.01.2013.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
IN CRIMINAL REVISION PETITION NO. 100191 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS,
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH,
SINGANKERI, DHARWAD.
...PETITIONER
(BY SRI. MANOJ BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.33/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.61/2012 DATED 19.01.2013.
IN CRIMINAL REVISION PETITION NO. 100192 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS,
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH
SINGANKERI, DHARWAD.
...PETITIONER
-4-
CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
(BY SRI. PRAVEEN KUMAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SRI. PRAVEEN K. UPPAR, HCGP)
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.34/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.62/2012 DATED 19.01.2013.
IN CRIMINAL REVISION PETITION NO. 100193 OF 2014
BETWEEN:
SURESH S/O. YALLAPPA SHIVPURE
AGE: 32 YEARS, OCC: BUSINESS
R/O: BHIMASHANKAR NAGAR,
NAI ZINDAGI SOLAPUR,
NOW AT PRESENT LAXMI NARSINGH,
SINGANKERI, DHARWAD.
...PETITIONER
(BY SRI. PRAVEEN KUMAR FOR SRI. ANAND R. KOLLI, ADVS.)
AND:
THE STATE OF KARNATAKA
REP BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
THROUGH VIDYAGIRI PS,
DHARWAD.
...RESPONDENT
(BY SHRI PRAVEEN K. UPPAR, HCGP)
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
***
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT AND ORDER
PASSED BY THE PRINCIPAL DISTRICT AND SESSION JUDGE,
DHARWAD, IN CRIMINAL APPEAL NO.35/2013, DATED 18.08.2014 IN
CONFIRMING THE ORDER PASSES BY III-ADDL. SR. CIVIL JUDGE &
CJM, DHARWAD, IN CRIMINAL CASE NO.63/2012 DATED 19.01.2013.
THESE CRIMINAL REVISION PETITIONS COMING ON FOR
FINAL HEARING AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR ORDER ON 20.03.2023, THIS DAY, THE COURT,
MADE THE FOLLOWING:
ORDER
Revision petitioner-accused feeling aggrieved by
judgment of First Appellate Court on the file of Prl. District and
Sessions Judge, Dharwad as shown in the chart below preferred
these revision petitions.
Sl.
Revision Petition Appeal before the First Criminal case before the
Numbers Appellate Court Trial Court
No.
Crl.R.P.100189/2014 Crl.A.No.31/2013 CC.No.27/2012
1 Judgment dated 18.8.2014 Judgment dated 19.1.2013
2 Crl.R.P.100190/2014 Crl.A.No.32/2013 CC.No.60/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
3 Crl.R.P.100191/2014 Crl.A.No.33/2013 CC.No.61/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
4 Crl.R.P.100192/2014 Crl.A.No.34/2013 CC.No.62/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
5 Crl.R.P. 100193/2014 Crl.A.No.35/2013 CC.No.63/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
2. Parties to the revision petitions are referred with their
rank as assigned before the trial Court for the sake of
convenience.
3. These revision petitions are arising out of crime
No.813/2011 of Keshwapur police station, Hubballi on the basis
of complaint filed by Sri.A.R.Badiger, Assistant Police
Commissioner, dated 18.11.2011. The accused is common in all
these cases for the same offences and recovery of stolen
properties are effected on the basis of voluntary statement of
accused. Hence, all these revision petitions are taken up
together for disposal by this common order.
4. The factual matrix leading to the case of prosecution in all
these cases can be stated in nutshell to the effect that on
18.11.2011 at 3.30 p.m. Sri.A.R.Badiger, Assistant Police
Commissioner, Hubballi Town, North Division received credible
information that a person on pulsar bike is coming to sell stolen
gold ornaments to the jewelry shop situated near
Madhurachetana Garden of Keshwapur, Hubballi. In pursuance of
such information, proceeded to the spot along with staff. They
kept watch at nearby place. After some time, a person came on
CRL.RP No. 100189 of 2014 C/w.CRL. RP.
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100192/2014 AND 100193/2014
black colour Bajaj Pulsar vehicle and looking around in a
suspicious manner. On seeing police, tried to escape from the
place. However, the police staff apprehended him. The
apprehended person, disclosed his name as Sri.S.Y.Shivpure. On
enquiry with regard to contents of plastic bag in his possession,
he did not give any satisfactory answer. Therefore, on securing
the panch witnesses, article Nos.1 to 10 shown in the complaint
with Bajaj Pulsar Vehicle bearing No. KA-25-S/8769 came to be
seized under panchanama. Accused was brought to police station
along with seized articles and filed complaint leading to
registration of case in crime No.183/2011 of Keshwapur police
station, Hubballi.
5. The seized properties from the possession of accused and
at the instance of accused based on his voluntary statement
were pertaining to different cases registered in Vidyagiri police
station. Hence, transfer of records and seized properties were
given to Vidyagiri police station, Dharwad. The following is the
chart showing the cases registered under different crime
Numbers based on complaints filed with respect to theft incident.
CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
Sl.No. Complainant Crime No. Police Criminal
station case.No.
1 Parushuram 131/2011 Vidyagiri 27/2012
Bheemappa Lamani
2 Srirang Vamanrao 164/2011 Vidyagiri 60/2012
Hulyalkar
3 Udaya Nageshwarao 166/2011 Vidyagiri 61/2012
Nersekar
4 B.M.Marulradhaya 177/2011 Vidyagiri 62/2012
5 Srivatsa 192/2011 Vidyagiri 63/2012
Parimalagouda
Aparanji
The accused was secured before Trial Court through process of
law. The Trial Court on being prima facie satisfied of the
material placed on record, framed charges against accused in
all the cases for the offences punishable under Sections 457
and 380 of IPC. Accused in all the cases pleaded not guilty and
claimed to be tried. The prosecution has relied on oral and
documentary evidence in respective cases and material objects
identified by the complainant in all cases respectively.
6. On closer of prosecution side, statement of accused in all
the cases under 313 of Cr.P.C came to be recorded. Accused
denied all incriminating material evidence appearing against him
CRL.RP No. 100189 of 2014 C/w.CRL. RP.
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100192/2014 AND 100193/2014
and claimed false case is filed. The accused examined his sister
as DW.1 and got marked two documents as Ex.D.1 and 2.
7. The Trial Court after having heard arguments of both
sides and on appreciation of evidence on record convicted the
accused in all cases for the offences punishable under Sections
457 and 380 of IPC and imposed sentence as per order of
sentence in respective cases as per the chart referred above.
8. Accused feeling aggrieved by judgment of conviction and
order of sentence preferred the appeals as referred above on the
file of Prl. District and Sessions Judge, Dharwad. The First
Appellate Court, on re-appreciation of evidence on record
dismissed all criminal appeals and confirmed the judgment of
conviction. However, the First Appellate Court has modified the
order of sentence by judgment dated 18.8.2014 in all the cases.
9. Revision petitioner-accused challenging the concurrent
finding of both the courts below contended that recovery of
stolen articles either from the possession or at the instance of
accused has not been proved by prosecution out of the material
evidence placed on record. The evidence of recovery pach
witnesses and that of investigating officer cannot be relied in
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100192/2014 AND 100193/2014
view of infirmities found during the course of their cross
examination. The reasons assigned by both courts below in
holding that the prosecution has proved the recovery of stolen
articles from the possession and at the instance of accused
cannot be legally sustained. There was enough material evidence
in the form of DW.1 and documents at EXs.D.1 and 2 to show
that accused was arrested along with his family members much
prior to 18.11.2011 and both courts below have ignored the
complaint filed by sister of accused dated 14.11.2011 about
illegal detention of accused and his family members. The
approach and appreciation of oral and documentary evidence by
both courts below are not based on any sound reasoning and
cannot be legally sustained. Therefore, prayed for allowing all
revision petitions and to set aside judgment of conviction and
order of sentence. Consequently, to acquit accused in all the
cases from the charges leveled against him.
10. In response to notice, learned HCGP has appeared for
respondent in all the cases.
11. Heard arguments of both sides.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
12. The prosecution alleges that on the strength of credible
information received by Sri.A.R.Badiger, Assistant Police
Commissioner, Hubballi Town, North Division. Accused was
apprehended on 18.11.2011 while he was proceeding to sell
stolen articles in a jewelry shop situated at Madhurachetana
Garden of Keshwapur, Hubballi. The accused has failed to give
satisfactory answer about the contents of plastic bag found in his
possession. Therefore, on securing two independent panch
witnesses, the articles shown in the complaint along with Bajaj
Pulsar Vehicle bearing No. KA-25 S/8769 came to be seized
under the panchanama. On the basis of the said complaint, case
was registered in crime No.183/2011 of Keshwapur police
station for the offences punishable under Sections 41 (i) (d)
R/w. Section 102 of Cr.P.C. and Section 379 of IPC. Thereafter,
on the basis of voluntary statement of accused, 20 articles
shown in the recovery panchanama came to be recovered at the
instance of accused from his house. The seized stolen properties
are found to be related to different cases registered in Vidyagiri
police station as per the chart referred above. Hence, transfer of
records and seized properties were given to PSI, Vidyagiri police
station, Dharwad.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
13. The recovery of articles from the possession of
accused shown in the complaint filed by Sri.A.R.Badiger,
Assistant Police Commissioner, Hubballi Town, North Division
and recovery of articles from the house of accused at his
instance based on voluntary statement, the recovery panch
witnesses and investigating officer are common to respective
recovery panchanama. However, the evidence of prosecution
witnesses are appreciated separately in order to avoid any
confusion.
14. I) Crl.R.P.No.1000189/2014:- The prosecution
in this case to prove the charges leveled against accused relied
on evidence of PWs.1 to 8 and documents at Exs.P.1 to 11, so
also got identified M.O.1. Accused lead defence evidence by
examining his sister as DW.1 and relied on documents EXs.D.1
and 2.
15. PW.1 complainant has field complaint-Ex.P.1
alleging that on 19.9.2011 at 6.00 a.m. found the back door
latch was broken and fell on the ground. On verification, the
purse containing cash of Rs.2,000/-, one Navagraha gold ring
and TVS motorcycle bearing No.KA-25/S-8769 were not found.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
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100192/2014 AND 100193/2014
On suspecting that somebody has committed theft of the said
articles by breaking open the latch from back side door of house
filed complaint. On the basis of complaint, FIR came to be
registered in crime No.131/2011 of Vidyagiri police station.
16. The incident of theft in the house of complainant is
not seriously disputed. Therefore, the prosecution is only
required to prove the recovery of articles belonging to the
complainant either from the possession of accused or at his
instance.
17. PW.3 is Manager of Durga wines has spoken about
parking of TVS motor cycle bearing No. KA 25/S-8769 and
identified by the complainant which came to be seized under
panchanama as per Ex.P.3 and identified his signature Ex.P.3(b).
The evidence of this witness is not seriously challenged except
suggesting that he has signed in the police station on the
panchanama at Ex.P.3, which he has denied. The same is also
certified by the evidence PW.8, who has seized the said motor
cycle under panchanama-Ex.P.3, both PWs. 3 and 8 have
identified the seized motorcycle. There is nothing worth material
that has been brought on record during the course of their cross
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
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100192/2014 AND 100193/2014
examination to disbelieve their evidence. Therefore, prosecution
has proved seizer of TVS Pulsar motorcycle bearing No.KA.25/S-
8769 belongs to complainant under panchanama -Ex.P.3.
18. PW.1-complainant has spoken about theft of
Navagraha gold ring kept in the bed room of his house. The
independent recovery panch witness PW.4 has not supported the
case of prosecution. However, Co-panch P.W.5 to recovery
panchanama Ex.P.6 supported the case of prosecution and
spoken about recovery made under the recovery panchanama at
Ex.P.6. The witness was partly declared as hostile by the
prosecution. However, during the cross examination by learned
APP, witness has admitted suggestion put to him as per the case
of prosecution. The evidence of this witness, reveals about
presence of accused and police staff, further recovery of articles
shown in the recovery panchanama at Ex.P.6 and he has signed
all panchanama after contents of the panchanama were read
over to him.
19. PW.7 is investigating officer has deposed to the
effect that on 19.11.2011 secured PWs.4 and 5 panch witnesses.
The accused led police officials and panch witnesses to Shringar
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
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100192/2014 AND 100193/2014
jewelry shop situated at Gandhi Chowk, Dharwad. The accused
asked owner of shop to produce articles shown by accused and
accordingly, PW.6-Nagaraj Palankar has produced the gold
articles sold by the accused and the same were seized by
panchanama at Ex.P.6.
20. PW.6 is owner of Shringar jewelry shop situated at
Gandhi chowk, Dharwad and deposed to the effect that accused
has sold gold articles stating that family members are unwell
and for their treatment, money is required. The gold rings,
necklace, bangles and Navagraha ring produced by him were
seized under panchanama and accordingly, he has given
statement before the police. Though this witness has been
subjected to cross examination, nothing worth material has been
brought on record, so as to discredit the evidence of this witness
having produced gold articles sold by accused at his instance in
the shop, which were seized under panchanama-Ex.P.6.
Therefore, the prosecution out of the evidence of PWs.5, 6 and
investigating officer-PW.7 has proved the recovery of seized TVS
Victor Motorcycle bearing No.KA.25/S-8769 under panchanama
at Ex.P.3 and Navagraha gold ring under panchanama as per
Ex.P.6.
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CRL.RP No. 100189 of 2014 C/w.CRL. RP.
NO. 100190/2014, 100191/2014,
100192/2014 AND 100193/2014
21. II) Crl.R.P.No.100190/2014:- The prosecution
to prove the charges leveled against the accused relied on the
evidence of PWs.1 to 9 and documents at Exs.P.1 to 6.
22. The complainant-Srirang Vaman Rao Hulyalkar filed
complaint-Ex.P.1 regarding theft incident alleging that on
22.10.2011 at about 3.50 a.m. he was awakened by his wife and
found that door of the window was closed and saw some persons
fled away from the place latching the door from out side. On
verification, found that articles in the house were scattered and
locker was opened. One Sony digital camera and cash of
Rs.50,000/- was stolen and accordingly, filed complaint as per
Ex.P.1. PW.1 has shown the spot to the police and police
prepared panchanama at Ex.P.2.
23. After one month, out of stolen properties, seized
cash of Rs.30,000/- was got released from the court and he
identifies the same appearing in the photographs at Ex.P.3 and
4. The lost digital Sony camera was not traced. On all these
allegations complaint was registered in Crime No.164/2011 of
Vidyagiri police station.
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24. The material independent witness PW.5-
Mahadevappa Rajappa Gudimani has not supported the case of
prosecution. However, evidence of PW.6-Praveen Huligeppa
Hotagar has partly supported the case of prosecution. However,
after treating witness hostile, during cross examination admitted
all suggestions put by learned APP as per the case of prosecution
about recovery of 20 articles under panchanama Ex.P.6.
25. Investigating officer PW.7 deposed to the effect that
accused has given voluntary statement Ex.P.9. On 19.11.2011,
accused led police officials, PWs.5 and 6 panch witnesses to the
house situated at Laxmisingankeri, Dharwad and produced 20
articles from his house, which were seized under panchanama
Ex.P.6. Witnesses have also identified signatures of PWs.5 and 6
on the panchanama and that of LTM of accused. The seized cash
from the house of accused was produced by accused came to be
identified from photographs at Exs.P.4 and 5. The cash was
ordered to be released to the interim custody of complainant.
The defence counsel though has subjected PWs.6 and PW.7 to
cross examination, nothing worth material has been brought on
record regarding recovery of cash of Rs.30,000/- produced by
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accused from his house came to be seized under panchanama
Ex.P.6.
26. III) Crl.R.P.No.100191/2014:-The prosecution
to prove the charges leveled against accused relied on the
evidence of PWs. 1 to 8 and documents at Ex.P.1 to 11, so also
got identified Mo.1 to 5. The accused relied on the evidence of
his sister DW1 and documents at Ex.D.1 and 2.
27. The complainant with regard to the theft incident
has filed complaint-Ex.P.1 alleging that on 20.3.2011 at about
1.15 a.m. when he came back to the house after getting
treatment to his son from KLE hospital, Belagavi found latch of
the house was broken and door was opened when he entered his
house from the back side found that bed room door was opened.
On verification, found two gold chains and three gold rings
weighing 28 grams have gone in theft. On these allegations,
complaint was filed and case was registered in crime
No.166/2011 of Vidyagiri police station as per Ex.P.11.
28. PW.1 has deposed about the theft incident taken
place in the house on 23.10.2011 and filing of complaint at
Ex.P.1, further shown the spot to police and spot panchanama at
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Ex.P2 was prepared. After one month, Vidyagiri police station
directed complainant to approach Keshwapur police station
where accused before the Court was shown and he identified two
gold chains and three gold rings as per M.O.1 to 5. The incident
of theft in the house of complainant and gold ornaments were
stolen from his house is not serious in dispute.
29. The material witness for recovery of stolen articles
is PW.3 Prasanna Gururaj Indrali and he has deposited to the
effect that himself and CW.7 were called for the purpose of
panchanama. The police officials and accused were present and
the owner of Jewelry shop Goutam Bhandari has produced gold
articles which were sold by the accused and the same were
seized under panchanama Ex.P.3. The seized gold articles have
been identified by this witness as per M.O.1 to 5. The owner of
Jewelry shop PW.5 has not supported the case of prosecution.
30. The prosecution relies on the evidence of
investigating officer PW.6-Prabhugouda D.K., who has deposed
to the effect that accused gave voluntary statement as per
Ex.P.9 on 18.11.2012 and he has secured PW.3 and CW.7 as
panch witnesses. Accused led police officials and panch
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witnesses to Jewelry shop of CW.9 (PW.5) Goutam Bhandari.
The accused has asked owner to produce jewelry sold to him and
owner produced articles, which were seized under panchanama-
Ex.P.3.
31. The defence counsel though subjected PW.3 and
PW.6 to lengthy cross examination, nothing worth material has
been brought on record to discredit their evidence regarding
recovery of M.O.1 to 5 under panchanama at Ex.P.3. The
evidence of P.Ws.1, 3 and 6 would go to show that gold
ornaments M.O.1 to 5 stolen from the house of complainant
were recovered at the instance of the accused.
32. IV) Crl.R.P.No.100192/2014:- The prosecution
in order to prove the allegations made against accused relied on
the evidence of PWs. 1 to 8 and documents at Ex.P.1 to 8, so
also identified one Nokia Mobile hand set as M.O. 1. Accused
examined his sister as D.W.1, so also relied Exs.D.1 and 2.
33. One B.M.Marularadhya filed complaint Ex.P.1
alleging that on 31.10.2011 at 4.10 a.m. somebody is making
moment in the house. On coming out of the bed room, light was
found switched off. The latch of door was break opened and one
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Nokia N-73 mobile was found stolen. On these allegations,
complaint came to be filed and case was registered in Crime
No.177/2011 of Vidyagiri police station.
34. Complainant-PW.1 during the course of his evidence
has stated about the theft incident in his house and Nokia N-73
mobile was stolen and filed complaint-Ex.P.1. PW.1 further
deposed to the effect that he has shown the spot of incident to
the police and panchanama was prepared Ex.P.2. After one
month was called to Keshwapur police station and he identified
the mobile set M.O.1. Panch witness to the spot panchanama
has certified evidence of PW.1 regarding preparation of
panchanama as per Ex.P.2. The theft incident and mobile was
stolen from the house of complainant is not in dispute.
35. Recovery of panch witness PW.3 has not supported
the case of prosecution. The another co-panch to recovery
panchanama PW.4 has spoken about the accused leading panch
witnesses and police staff to his house. Thereafter, accused has
produced articles from his house and the same were seized
under panchanama-Ex.P.3. This witness has been partly
declared as hostile witness. However, during the course of cross
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examination by learned APP, he has admitted all the suggestions
put to him as per the case of prosecution. On perusal of
evidence of this witness, it would go to show that his evidence is
consistent with regard to accused leading the police officials and
panch witness to his house and producing the articles which
were seized under panchanama Ex.P.3.
36. The investigating officer PW.7 has deposed to the
effect that on 19.11.2011, accused led the police officials and
pachas to his house and produced 20 articles, which were seized
under panchanama-Ex.P.3 in the presence of PWs.3 and 4. The
Nokia N-73 mobile is identified by complainant and investigating
officer PW.7, which was seized among other articles under
panchanama at Ex.P.3. The defence counsel though has
subjected PWs. 4 and 7 to lengthy cross examination, but
nothing worth material has been brought on record, so as to
discredit their evidence to prove the recovery of M.O.1 -Mobile
under panchanama at Ex.P.3. Therefore, the prosecution has
proved recovery of M.O.1 mobile at the instance of accused
under panchanama at Ex.P.3.
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37. V) Crl.R.P.No.1000193/2014:- The prosecution
relied on evidence of PWs. 1 to 9 and documents at Exs.P.1 to 9,
so also got identified M.O.1 and 2. Accused relied on evidence of
his sister DW.1 and documents at Exs.D.1 and 2.
38. Complainant Srivatsa P Aparanji filed complaint as
per Ex.P.3 alleging that on 24.10.2011 at about 5.30 a.m. the
mother of complainant informed that somebody is standing out
side the house and complainant found that door of the house
was opened and bolt attached to the door was broken. On
verification, the mobile belongs to him and his father i.e. Sony
ericsson and Samsung mobiles were found missing. Therefore
filed complaint-Ex.P.3. On the basis of the said complaint, case
was registered in Crime No.192/2011 at Ex.P.8. The incident of
theft of mobile from the house of complainant is not in dispute.
39. PWs.4-complainant has spoken about theft incident
and filed complaint as per Ex.P.3. Thereafter, shown the spot to
the police and panchanama was prepared at Ex.P.1. After one
month, he was called to Keshwapur police station, where he
identified Sony ericsson and Samsung mobiles shown at Sl.Nos.
2 and 3 of recovery panchanama-Ex.P.2. PW.3 is independent
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recovery panch witness to the panchanama Ex.P.2. However he
has not supported the case of the prosecution. Another recovery
panch witness PW.5 has partly supported the case of
prosecution. However, witness during the course of cross
examination by learned APP, has admitted all the suggestions
put to him as per the case of prosecution. On perusal of
evidence of this witness PW.5, it would go to show that accused
has produced 20 articles from his house and same were seized
under panchanama. PW.8 investigating officer and he has
deposed to the effect that accused has given voluntary
statement as per Ex.P.5 and led the police officials and panch
witnesses to his house and produced 20 articles, which were
seized under panchanama. The two mobiles seized under the
panchanama-Ex.P.2 were at Sl.Nos.2 and 3, which were
identified by complainant-PW.3 and also by investigating officer
PW.8. The recovery of two mobiles M.O.1 and 2 under
panchanama at Ex.P.2 has been proved by the prosecution out
of the evidence of PWs.5 and 8- investigating officers.
40. The defence of the accused is that he was taken
from Hubballi bus stand with his two wives and six children, on
10.11.2011 and brought to police station, further they have
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been illegally detained in the police station. On 14.11.2011,
sister of the accused Yellamma filed complaint against the police
official and in support of such defence, DW.1 was examined and
she has spoken about her brother/accused with his two wives
and children were brought by police from Hubballi bus stand on
10.11.2011. On going to police station, she enquired regarding
release of the accused with two wives and children, police
officials refused to release them. Therefore, she went back to
Sollahapur and filed complaint on 14.11.2011. On going through
the evidence of DW.1, it would go to show that no any action
was taken about the alleged incident of the accused with his two
wives and children were brought by police from Hubballi bus
stand on 10.11.2011 till 14.11.2011 and also no any explanation
has been offered for not taking any steps.
41. According to prosecution case, accused was
arrested on 18.11.2011 while he was proceeding to sell gold
articles in the jewelry shop situated at Madhurachetana Garden
of Keshwapur, Hubballi and the accused was produced before
the Magistrate when he was arrested on 18.11.2011 at Hubballi
bus stand. The accused has not complained that he was arrested
along with two wives and children on 10.11.2011 and kept in
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illegal detention. The evidence placed on record by the
prosecution would go to show that accused is residing on
Laxmisingankeri, Dharwad. DW.1 has not offered any
explanation as to the reasons why they came Hubballi to board
bus to proceeding to Sollapur. Therefore, both courts below were
justified in rejecting the evidence of DW.1 on alleged illegal
detention of accused from 10.11.2011 to 18.11.2011. The courts
below have rightly appreciated the recovery evidence by
independent witnesses and that of investigating officer, further
justified in holding that recovery of articles under recovery
panchanama has been proved by the prosecution. There are no
any valid grounds to deviate from the finding recorded by both
courts below.
42. Insofar as imposition of sentence is concerned, in
all the cases referred above, the Trial Court has convicted the
accused for the offences punishable under Sections 457 and 380
of IPC and sentenced to under go imprisonment of three years
each and pay fine of Rs.5,000/-. In default of payment of fine
amount sentenced to undergo imprisonment for three months
each. The First Appellate Court has modified the sentence of
imprisonment for 2 ½ years for each offences under Sections
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457 and 380 of IPC and to pay fine of Rs.4,000/- for each of the
offences. In default to pay fine, sentenced to under go simple
imprisonment for two months for each of offences. The sentence
passed in all the cases referred above are ordered to run
concurrently. The First Appellate Court for the reasons recorded
in paragraph 26 to 29, referring to the judgment of Hon'ble Apex
Court has rightly extended benefit in terms of Section 427 (1) of
Cr.P.C. and was justified in modifying the sentence of
imprisonment. The finding recorded by the First Appellate Court
with regard to the sentence is based on sound reasoning and the
same does not call for any interference. Consequently, proceed
to pass the following:
ORDER
The revision petition filed by revision petitioner/accused
as per the following table are hereby dismissed.
Revision Petition Appeal before the First Criminal case before the
Sl.No.
Numbers Appellate Court Trial Court
1 Crl.R.P.100189/2014 Crl.A.No.31/2013 CC.No.27/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
2 Crl.R.P.100190/2014 Crl.A.No.32/2013 CC.No.60/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
3 Crl.R.P.100191/2014 Crl.A.No.33/2013 CC.No.61/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
4 Crl.R.P.100192/2014 Crl.A.No.34/2013 CC.No.62/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
5 Crl.R.P.100193/2014 Crl.A.No.35/2013 CC.No.63/2012
Judgment dated 18.8.2014 Judgment dated 19.1.2013
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The judgment passed by the First Appellate Court on the
file of Prl. District and Sessions Judge, Dharwad as referred
above are confirmed.
Office is directed to transmit the Trial Court records along
with copy of this order.
(Sd/-)
JUDGE
Vb/-
