Karnataka High Court
Sri Syed Asif vs State Of Karnataka on 11 October, 2023
Bench: M G Uma
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL REVISION PETITION NO.1171/2022
C/W
CRIMINAL REVISION PETITION NO.918/2021
CRIMINAL REVISION PETITION NO.1049/2021
CRIMINAL REVISION PETITION NO.1294/2022
IN CRL.RP.NO.1171/2022
BETWEEN:
SRI. VENKATESHA NAIK
S/O SHUKRANAIK
AGED ABOUT 27 YEARS
R/AT SIDDAPURA THANDA
BHADRAVATHI TALUK - 577 245
... PETITIONER
(BY SRI: SATEESH CHANDRA K.V. ADVOCATE)
AND:
STATE OF KARNATAKA
BY RURAL POLICE
BHADRAVATHI - 577 245.
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 09.04.2021 PASSED
IN CRL.A.NO.5024/2020 ON THE FILE OF THE IV ADDL. DISTRICT
AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT BHADRAVATHI,
CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 30.11.2020 PASSED IN C.C.NO.94/2016 ON THE
FILE OF THE ADDL. SENIOR CIVIL JUDGE AND J.M.F.C.,
2
BHADRAVATHI IN SO FAR AS THE PETITIONER AND
CONSEQUENTLY ALLOW THE CRL.A.NO.5024/2020 AS PRAYED
FOR.
IN CRL.RP.NO.918/2021
BETWEEN:
1. SRI SYED ASIF
S/O SYED SANAULLA
AGED ABOUT 23 YEARS
WELDING WORK
R/AT SIDDAPUR
THANDA HOSUR
BHADRAVATHI
TALUK - 577 301
2. SRI RAMA NAIK
S/O KEMYA NAIK
AGED ABOUT 31 YEARS
PLUMBER WORK
R/AT KALLAHALLI
SIRIYUR POST
BHADRAVATHI
TALUK - 577 301.
... PETITIONERS
(BY SRI: SACHIN .B.S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY RURAL POLICE
BHADRAVATHI - 577 301
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 09.04.2021 IN
CRL.A.NO.5023/2020 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT
BHADRAVATHI, CONFIRMING THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 30.11.2020 PASSED IN
3
C.C.NO.94/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, BHADRAVATHI IN SO FAR AS THE PETITIONER
AND CONSEQUENTLY ALLOW THE CRL.A.NO.5023/2020 AS PRAYED
FOR.
IN CRL.RP.NO.1049/2021
BETWEEN:
SRI YOGESHA NAIK
S/O SEVANAIK
AGED ABOUT 25 YEARS
R/AT SIDDAPURA THANDA
BHADRAVATHI TALUK - 577 301
... PETITIONER
(BY SRI: SACHIN .B.S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY RURAL POLICE
BHADRAVATHI - 577 301
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 09.04.2021 IN
CRL.A.NO.5023/2020 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT
BHADRAVATHI, CONFIRMING THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 30.11.2020 PASSED IN
C.C.NO.94/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, BHADRAVATHI IN SO FAR AS THE PETITIONER
AND CONSEQUENTLY ALLOW THE CRL.A.NO.5023/2020 AS PRAYED
FOR.
IN CRL.RP.NO.1294/2022
BETWEEN:
ASADULLA
S/O. SHAFIULLA
AGED ABOUT 27 YEARS
OCC: CARPENTER
4
R/OF SIDDAPUR, HOSUR
BHADRAVATHI - 577 501
... PETITIONER
(BY SRI: GANESH N.I., ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH PSI
RURAL POLICE STATION
BHADRAVATHI
REP. BY STATE
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE ORDER OF CONVICTION DATED 30.11.2020
PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.,
BHADRAVATHI IN C.C.NO.94/2016 AND THE JUDGMENT AND
ORDER DATED 09.04.2021 PASSED BY THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT
BHADRAVATHI IN CRL.A.NO.5024/2020 IN SO FAR AS RELATES TO
THE PETITIONER AND ACQUIT THE PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTION 392 OF IPC.
THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 21.09.2023 COMING
ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
PASSED THE FOLLOWING:
ORDER
The revision petitioner in Criminal Revision Petition
No.1171 of 2022 being accused No.1; the revision petitioner
in Criminal Revision Petition No.1049 of 2021 being accused
No.2; the revision petitioners in Criminal Revision Petition
No.918 of 2021 being accused Nos.3 and 5; and the revision
petitioner in Criminal Revision Petition No.1294 of 2022 being
accused No.4 in CC No.94 of 2016 on the file of the learned
Additional Senior Civil Judge and JMFC at Bhadravathi
(hereinafter referred to as 'the Trial Court' for brevity), are
before this Court impugning the judgment of conviction and
order of sentence dated 30.11.2020 convicting accused Nos.1
to 4 for the offence punishable under Section 392 of IPC and
sentencing them to undergo imprisonment for a period of two
years and to pay fine of Rs.5,000/- each and in default, to
undergo simple imprisonment for a period of three months;
and convicting accused No.5 for the offence punishable under
Section 414 of IPC and sentencing to undergo simple
imprisonment for a period of six months and to pay fine of
Rs.2,000/- and in default to undergo simple imprisonment for
a period of 15 days, which was confirmed vide judgment
dated 09.04.2021 passed in Criminal Appeal Nos.5023 and
5024 of 2020 on the file of the learned IV Additional District
and Sessions Judge, Shivamogga, sitting at Bhadravathi
(hereinafter referred to as 'the First Appellate Court' for
brevity).
2. Brief facts of the case are that, the Investigating
Officer in Crime No.280 of 2014 of Bhadravathi Rural Police
Station laid the final report against accused Nos.1 to 5 for the
offence punishable under Sections 392 of 414 of IPC alleging
that accused Nos.1 to 4 committed robbery in the house of
PW1 on 04.11.2014 at 9.45 p.m. by proceeding on the motor
cycle bearing registration No.KA-14-S-4524, switched off the
lights and accused Nos.1 and 2 have threatened the
complainant and PW1 by showing a knife and criminally
intimidated to cause hurt. Accused Nos.2 and 3 tied their
limbs with rope and also gagged the mouth of CW1 with a
towel and robbed the gold ornaments worth Rs.98,200/- and
two watches. It is stated that accused Nos.1 and 2 have
pledged the ear chain, ear studs and ring with Mahaveera
Pawn broker at Bhadravthi, while accused No.5 pledged the
gold rope chain with Muthoot Finance, Bhadravathi. The
incriminating materials were seized at the instance of the
accused. Therefore, it is stated that they have committed the
offences as stated above.
3. Learned Magistrate took cognizance of the
offences against the accused. The accused have pleaded not
guilty for the charges leveled against them and they claim to
be tried. The prosecution examined PWs.1 to 17, got marked
Exs.P1 to P29 and identified MOs.1 to 5 in support of its
contention. The accused have denied all the incriminating
materials available on record, but have not chosen to lead any
evidence. The Trial Court after taking into consideration all
these materials on record, came to the conclusion that the
prosecution is successful in proving the guilt of the accused
beyond reasonable doubt. Therefore, convicted and sentenced
the accused as stated above.
4. Being aggrieved by the same, accused Nos.2, 3
and 5 have preferred Criminal Appeal No.5023 of 2020 and
accused Nos.1 and 4 have preferred Criminal Appeal No.5024
of 2020. The First Appellate Court on re-appreciation of the
materials on record, dismissed the appeals by confirming the
impugned judgment of conviction and order of sentence
passed by the Trial Court.
5. Being aggrieved by the same, the accused are
before this Court by preferring four separate Criminal Revision
Petitions.
6. Heard Sriyuths K V Sateesh Chandra, B S Sachin
and N I Ganesh, learned counsel for the revision petitioners
and Sri Channappa Erappa, learned High Court Government
Pleader for the respondent - State. Perused the materials
including the Trial Court records.
7. Learned counsel for the revision petitioners
contended that the complainant who was said to be the eye
witness died during investigation and he could not be
examined before the Trial Court. PW1 is the wife of
complainant and she is said to be the eye witness to the
incident, but she has not identified the accused, as they were
covered their faces with kerchief. PWs.2 to 5 are the
witnesses to the spot mahazar and recovery mahazar and
none of these witnesses have supported the case of
prosecution. PW8 was cited as eye witness, but he has not
supported the case of prosecution. The evidence of PWs.7
and 9 is not helpful for the prosecution to establish the guilt of
the accused. Other witnesses are formal and official
witnesses. The Investigating Officer has not conducted test
identification parade to enable the eye witnesses to identify
the accused. Only on the basis of disputed recovery of
material objects, the accused were convicted, which is bad
under law. The recovery of incriminating materials are not
proved in accordance with law. Under such circumstances,
the impugned judgment of conviction and order of sentence
passed by the Trial Court and confirmed by the First Appellate
Court is liable to be set aside. Accordingly, they prays for
allowing the revision petitions.
8. Per contra, learned High Court Government
Pleader opposing the revision petitions submitted that the
prosecution is successful in proving the guilt of the accused
beyond reasonable doubt. The Trial Court and the First
Appellate Court have rightly convicted the accused. Hence,
he prays for dismissal of the revision petitions.
9. In view of the rival contentions urged by learned
counsel for both the parties, the point that would arise for my
consideration is:
"Whether the impugned judgment of
conviction and order of sentence passed by the
Trial Court, which was confirmed by the First
Appellate Court suffers from any infirmities and
calls for interference by this Court?"
My answer to the above point is in the 'Affirmative' for
the following:
REASONS
10. It is the specific contention of the prosecution that
accused Nos.1 to 4 have committed the offence punishable
under Section 392 of IPC, while accused No.5 committed the
offence punishable under Section 414 of IPC and accordingly,
they were convicted and sentenced by the Trial Court, which
was confirmed by the First Appellate Court.
11. Ex.P23 is the first information lodged by Abdul
Rehman on 05.11.2014 at 10.00 a.m. against unknown
persons stating that on 04.11.2014 at 9.30 p.m., he was
watching TV in his house. At about 9.45 p.m. his wife
observed that the light in front of the house was switched off.
Therefore, he went outside by opening the door. A boy
suddenly pushed him aside and rushed inside the house. Two
other boys by holding the knife threatened the wife of the
complainant and their limbs were tied with a rope and his
mouth was also tied with a piece of cloth. The informant
stated that his wife was forced to open the godrej at the
instance of the miscreants and they have robbed two gold
rings, a chain and cash of Rs.9,000/-. They have also robbed
the chain, ear studs with ear chain worn by the wife of the
informant. They were talking in Urdu and were wearing
t-shirt and jeans pant. They concealed their faces with a
kerchief. One of them had sustained bleeding injuries to his
face. All of them were boys aged 18 to 20 years. Therefore,
he requested the police to register the case and to investigate
on the same. Accordingly, FIR as per Ex.P24 was registered
and the investigation was undertaken. It is stated that the
incriminating materials were recovered at the instance of the
accused. Considering the same, the Trial Court and the First
Appellate Court recorded the concurrent findings that the
prosecution is successful in proving the guilt of the accused
beyond reasonable doubt.
12. PW1 - Jaibunnissa is the wife of the informant who
categorically states that she could not identify any of the
accused on the date of incident. She stated that the police
have given her chain, a ring, a pair of ear studs and ear chain.
All of them together identified as MO1. It is pertinent to note
that in the first information, there is reference to two finger
rings weighing 5 and 2 grams each, the gold chain weighing 6
grams and cash of Rs.9,000/-. Apart from that, it is stated
that the miscreants have snatched a gold ear chain and ear
studs weighing 30 grams.
13. PW2 - Devendra is the spot mahazar witness to
Ex.P1. Witness stated that the police have seized a rope, a
glouse and other materials from the spot i.e., from the house
of informant. Witness pleaded his ignorance as to which are
the materials seized under the mahazars. However, he
identified his signatures found on Exs.P2 to 5. Witness was
treated as hostile and the learned Prosecutor cross examined
the witness.
14. PW3 - Cheluvaraj is the mahazar witness to the
spot mahazar - Ex.P1. Even though, he identified his
signature found on mahazar, he has not supported the case of
prosecution. Witness was treated hostile and cross examined
by the learned Prosecutor. Similarly, PW4 - Nagesh is the
mahazar witness and he has not supported the case of
prosecution. PW5 - Thippesh is the mahazar witness to Exs.P2
and 7. This witness has also not supported the case of
prosecution. Witness states that he was taken to Muthoot
Finance by the police and a document was drafted there. He
identified the signatures on Exs.P3, 8, 12, 14. He identified
the photos of accused Nos.1 and 4. He has not identified the
knife identified as MO5 with certainty. During cross
examination, witness stated that the mahazars were written
well in advance and he does not know its contents. He signed
the mahazars at the instance of police. However, he pleaded
ignorance as to the places in which he signed the documents.
He also pleaded his ignorance as to who produced the
material objects.
15. PW6 - Pandu is the witness to Ex.P1 - the spot
mahazar and also identified Exs.P17 and 18. Nothing has
been elicited from this witness to contend that he noticed
recovery of any of these material objects seen in the photos
from any of the accused. During cross examination, witness
pleaded ignorance regarding the contents of mahazar. He
also pleaded ignorance as to who gave the information to
write the mahazars. However, he denied the suggestion that
the accused are not concerned with the material objects.
16. PW7 - Ashraf Rehaman is the son of PW1. He is a
hear say witness as he states that he learnt about the incident
from his father and mother. Witness also states that the
police informed him about recovery of gold ornaments seen in
Ex.P19. During cross examination, witness admits that he
does not know anything about the incidence, nor about
recovery of the gold ornaments. However, denied the
suggestion that accused are not related to the offence in
question and none of the material objects were recovered at
their instance.
17. PW8 - Swamy is the witness who states that there
was robbery in the house of PW1, but pleaded his ignorance
regarding the materials that were robbed. Witness stated
that after hearing the cry from the house of the informant, he
informed the fact to PW7. About 15 days thereafter, he came
to know that two persons from Hosur Taanda have committed
the robbery. This witness was treated hostile. Learned
Prosecutor cross examined this witness at length, but he
never supported the case of prosecution. During cross
examination by the learned counsel for the accused, witness
admitted that he is seeing the accused for the first time
before the Court.
18. PW9 - Sanjay is the owner of Mahaveera Pawn
Broker shop and identified accused No.1 and stated that he
had pledged few gold items in his shop during 2014. Ex.P3
was written in his shop and Ex.P7 is the pawn ticket. Witness
identified his signature in Exs.P3 and 7. Witness stated that
Ex.P7 contains the signature of accused No.1. He also
identified accused No.1 in Ex.P8, which was taken at the time
of drawing the mahazar. Witness stated that generally he
enters the details of pledging of ornaments in a ledger and
the same was not produced before the Court. However, he
states that the said ledger will be produced before DR at
frequent intervals. He denied the suggestion that he
concocted the documents at the instance of police.
19. PW10 - Ravi Naik is the brother of accused No.2.
He states that he is the owner of motor cycle seen in Ex.P20.
It was taken by accused No.2. He pleaded his ignorance that
accused No.2 used his motor cycle in the commission of
offence. Witness admitted that he got released the motor
cycle by executing the indemnity bond. During cross
examination, witness stated that on the basis of say of the
police, he is stating that accused No.2 has taken the motor
cycle. He pleaded his ignorance as to from whom the motor
cycle was seized.
20. PW11 - Venkataiah is the Police Head Constable
who was the owner of splendor motor cycle bearing
registration No.KA-14-S-4524. Witness stated that he had
sold the same in favour of PW10. He is only an circumstantial
witness to prove the ownership of motor cycle in question.
21. PW12 - M N Rajendra Naik is the Sub Inspector of
Police who found accused Nos.3 and 4 and produced before
the Investigating Officer. PW13 - C N Vasudeva is the Head
Constable who deposed before the Court on 18.03.2015. He
states that he along with CPI were on duty and gave signal to
stop the Hero Honda motor cycle. The rider had not stopped
the vehicle and they chased the motor cycle. Accused Nos.1
and 2 were riding the motor cycle and they admitted that they
have used the motor cycle in committing the robbery.
Strangely, nothing has been elicited from this witness
regarding registration number of the motor cycle. PW14 -
Jayaraj is the Sub Inspector of Police who supports the
evidence of PW13 regarding seizing of motor cycle from
accused Nos.1 and 2. This witness also does not refer to the
registration number of motor cycle. Admittedly, no mahazar
was drawn for seizing the motor cycle from accused Nos.1
and 2.
22. PW15 - M Nagaraj is the Sub Inspector of Police
who apprehended accused Nos.3 and 4 and (5) produced
before the Investigating Officer. PW16 - Ranganatha is the
Head Constable who received the first information as per
Ex.P23 and registered FIR as per Ex.P24.
23. PW17 - R Ramesh is the Investigating Officer.
This witness states about the investigation undertaken by him
by visiting the spot and drawing the spot mahazar as per
Ex.P1, seizing the material objects as seen in Exs.P2 to 4 and
the rough sketch as per Ex.P25 was also drawn. Witness
states that PWs.13 and 14 have produced accused Nos.1 and
2 before him along with Hero Honda motor cycle. They have
given their voluntary statement and offered to lead the police
to produce the gold ornaments pledged with Mahaveera Pawn
shop and Muthoot Finance. They also stated that they can
produce the knife used in the commission of offence. The said
portion of voluntary statement is produced as per Exs.P26 and
27. He seized the pawn ticket which is as per Ex.P7. He
identified ExP2 - the mahazar. Witness stated that accused
Nos.3 to 5 were produced before him and their voluntary
statement was also recorded as per Exs.P28 and 29, drawn
the mahazar as per Ex.P12.
24. It is pertinent to note that even the Investigating
Officer does not say specifically that it was accused Nos.1 and
2 or accused Nos.3 to 5 have led him either to Mahaveer
Pawn Shop or to Muthoot Finance to enable him to recover
the gold ornaments. The evidence of these witnesses in
general and the evidence of PWs.9 and 17, in particular, are
very bald.
25. PW17 also states about drawing of mahazar as
per Exs.P13 and 14 and he himself identifies the signatures of
accused No.5 in Ex.P14. Witness refers to securing the
mahazar witnesses and proceeding to pawn broker shop and
Muthoot Finance to recover the gold ornaments. Similar is the
evidence for recovering the knife used in the commission of
offence and other material objects MOs.2 to 5. Witness
specifically states that he could not conduct test identification
parade to enable the complainant and PW1 to identify the
accused.
26. Even though, the Investigating Officer - PW17
states that the accused have confessed before him regarding
the commission of offence, such information is not admissible
in evidence, in view of the bar under Section 26 of the Indian
Evidence Act. Under Section 27 of the Indian Evidence Act,
only that portion of the information received from the accused
which led to discovery is considered as a relevant fact that
could be proved by the prosecution. To prove discovery under
Section 27 of the Indian Evidence Act, there must be specific
evidence to the effect that the accused has given the
statement voluntarily offering to lead the Investigating Officer
and the mahazar witnesses to recover the incriminating
materials. Further, there must be evidence to the effect that
the accused has led the Investigating Officer and the mahazar
witnesses and produced the incriminating materials, which
were recovered under the mahazar in the presence of
witnesses. Such evidence is conspicuously missing in the
present case. Even the evidence of Investigating Officer is in
a haphazard manner and cannot be a basis for convicting the
accused.
27. Admittedly, the accused were not familiar to the
informant or to PW1. No test identification parade was
conducted by the Investigating Officer to enable PW1 - eye
witness to identify any of the accused. The prosecution
therefore relied on recovery of the incriminating materials at
the instance of the accused. But even the recovery is not
proved in accordance with law. Under such circumstances, it
cannot be said that the prosecution is successful in proving
the guilt of the accused beyond reasonable doubt. The
prosecution has made half hearted attempt to prove the guilt
of the accused. The evidence on record are not sufficient to
hold that the prosecution is successful in proving the guilt of
the accused beyond reasonable doubt. Therefore, I am of the
opinion that the accused are entitled for acquittal.
28. I have gone through the impugned judgment of
conviction and order of sentence passed by the Trial Court,
which was confirmed by the First Appellate Court. Both the
Courts have committed grave error in convicting the accused
on the basis of shabby evidence. Therefore, I am of the
opinion that the impugned judgment of conviction and order
of sentence passed by the Trial Court, which was confirmed
by the First Appellate Court are liable to be set aside.
Accordingly, I answer to the above point in the Affirmative
and proceed to pass the following:
ORDER
(i) The Criminal Revision Petitions are allowed.
(ii) The judgment of conviction and order of sentence
dated 30.11.2020 passed in CC No.94 of 2016 on the file of
the learned Additional Senior Civil Judge and JMFC at
Bhadravathi, which was confirmed vide judgment dated
09.04.2021 passed in Criminal Appeal Nos.5023 and 5024 of
2020 on the file of the learned IV Additional District and
Sessions Judge, Shivamogga, sitting at Bhadravathi, are
hereby set aside.
(iii) The accused are acquitted for the charges leveled
against them for the offences punishable under Sections 392
and 414 of IPC.
(iv) The bail bonds of the accused and that of their
sureties shall stand discharged.
Registry is directed to send back the Trial Court records
along with copy of this order.
Sd/-
JUDGE
*bgn/-
