Sukesh J Salian vs The State Of Karnataka
2023 Latest Caselaw 7240 Kant

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 12TH DAY OF OCTOBER, 2023

                         BEFORE

            THE HON'BLE MRS.JUSTICE M.G. UMA

       CRIMINAL REVISION PETITION NO.665/2020
BETWEEN:
SUKESH J. SALIAN,
AGED ABOUT 34 YEARS,
S/O GANGADHAR KARKERA,
R/AT "SAVITHRINILAYA",
HEJAMADI KODI,
HEJAMADI VILLAGE,
UDUPI TALUK AND
DISTRICT - 574 103
                                               ... PETITIONER
(BY SMT: HALEEMA AMEEN, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
(PADUBIDRI POLICE STATION,
UDUPI DISTRICT), REPRESENTED
BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001
                                           ... RESPONDENT
(BY SMT: WAHEEDA M.M., HCGP)
      THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER DATED 01.09.2016 IN
C.C.NO.267/2011 PASSED BY LEARNED II ADDITIONAL CIVIL
JUDGE AND JMFC, UDUPI CONVICTING THE PETITIONER AND THE
JUDGMENT AND ORDER DATED 03.07.2020 IN CRL.A.NO.68/2016
PASSED BY PRL. DISTRICT AND SESSIONS JUDGE, UDUPI
DISTRICT, UDUPI CONFIRMING THE JUDGMENT AND ORDER OF
THE TRIAL COURT AND ACQUIT THE PETITIONER OF THE OFFENCE
FOR WHICH HE WAS CONVICTED BY THE COURTS BELOW.

     THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 13.09.2023 COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT PASSED THE
FOLLOWING:
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                                ORDER

The accused in CC No. 267/2011 on the file of the

learned 2nd Additional Civil Judge and JMFC Udupi (hereinafter

referred to as 'the trial Court' for brevity), is before this court

impugning the judgment of conviction and order of sentence

dated 01.09.2016 convicting him for the offence punishable

under Section 394 of IPC and sentencing to undergo rigorous

imprisonment for a period of 10 years and to pay a fine of

Rs.5,000/-. In default to pay fine to under go simple

imprisonment for 6 months, which was confirmed in

Crl.A.No.68/2016 on the file of learned Prl.District and

Sessions Judge, Udupi (hereinafter referred to as 'the First

Appellate Court' for brevity), vide judgment dated

03.07.2020.

2. Brief facts of the case as made out by the

prosecution is that, PW1-Kamala Kotian lodged FIR on

20.04.2011 against unknown person alleging that he came

from behind when she was opening the door of her house at

7.30 p.m. and forcibly snatched and robbed her gold chain

weighing 32 gms which was worth Rs.65,000/. The FIR was

registered in Cr.No.61/2011 against unknown persons for the

offence punishable under Section 394 of IPC and investigation

was undertaken. It is stated that the accused was

apprehended on suspicion. On questioning, he admitted

commission of offence and gave his voluntary statement. He

led the Investigation Officer and mahazar witnesses to

Suratkal Agricultural Co operative Society and informed that

he pledged the gold chain robbed from PW1 in the society and

obtained loan. The Manager of the Co-operative Society

produced the loan application submitted by the accused and

also produced the gold chain. PW1 identified the said gold

chain as that of her's. Gold chain was seized in the presence

of the mahazar witnesses under recovery mahazar. Loan

application was also seized under the mahazar. The Sample

writings and signatures of the accused were obtained under a

mahazar and forwarded the same to handwriting experts.

Hand writing experts gave report stating that the accused is

the author of the loan application. Therefore, it is the

contention of the prosecution that it was the accused who

robbed the gold chain from PW1, pledged it with Suratkal

Agricultural Co-operative Society Ltd., by submitting his

application as per Ex.P.8 and obtained loan. The accused led

the Investigation Officer and Panchas to recover the gold

chain belonging to PW1 and therefore, the final report was

filed against the accused for the above said offences.

3. The learned Magistrate took cognizance of the

offence and summoned the accused. The accused appeared

before the Trial Court in response to summons and pleaded

not guilty for the charge leveled against him. The prosecution

examined PWs.1 to 13 and got marked Exs.P.1 to 41 in

support of her contention. The accused has denied all the

incriminating materials available on record. But has not

chosen to lead any evidence in support of his defence. 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. Accordingly, convicted and sentenced him

as stated above.

4. Being aggrieved by the same, the accused has

preferred Crl.A.No.68/2016. The first Appellate Court on re-

appreciation of materials on record, confirmed the impugned

judgment of conviction and order of sentence by observing

that there are no reasons to interfere with the same.

5. Being aggrieved by the same, the accused is

before this court.

6. Heard Smt. Haleema Ameen, learned counsel for

the revision petitioner and Sri Waheeda M.M, learned HCGP

for the respondent-State. Perused the materials including the

Trial Court records.

7. Learned counsel for the revision petitioner

submitted that the prosecution has not proved the guilt of the

accused beyond reasonable doubt. FIR came to be registered

against unknown persons. Even PW1 has not identified the

accused, only on suspicion, charge sheet came to be filed

against the accused. PWs.3 and 6 have turned hostile and

they have not supported the case of the prosecution. Even

though, the prosecution examined PWs.4 and 5 they are not

the eye witnesses to the incident. When PW1 being the victim

has not identified the accused, the Trial Court and the First

Appellate Court committed an error in convicting the accused.

8. Learned counsel submitted that the evidence of

PWs.2 and 8 cannot be accepted as there is nothing on record

to support their contentions. Even though PW8 deposes that

he had prepared gold chain belonging to PW1, he had not

produced any material in support of his say. PW2 categorically

stated that it was his father who was the appraiser working

for the Co-Opertative Society. Therefore, his evidence is of no

help to the prosecution. PWs.9 to 12 are the police officials

and on the basis of their evidence, the accused cannot be

convicted.

9. Learned counsel further submitted that, PW13 is

the hand the writings expert who issued report as per

Exs.P.39, 40, and 41. Witness stated that he has examined

photocopies of writings and signatures. He never refers to the

original writings and signatures for having verified the same.

Under such circumstances, his evidence cannot be accepted.

10. She further submitted that, the Manager of the

Co-operative society, who is said to have produced the gold

chain and the loan application form before the Investigation

Officer is not examined before the trial court. Under such

circumstances there is absolutely no material to connect the

accused to the offence in question. The Trial Court and the

First Appellate Court have committed an error in convicting

the accused. Hence, she prays for allowing the revision

petition by setting aside the impugned judgment of conviction

and order of sentence, passed by trial court in the interest of

justice.

11. Per contra, learned HCGP opposing the revision

petition submitted that, PW1 has promptly lodged FIR

immediately after the incident. She had no occasion to

identify the accused. However, she identified the gold chain,

which is seen as per Ex.P.5, as the same was snatched from

her neck. PW8 is the gold smith who prepared the gold chain

for PW1 and he has fully supported the case of the

prosecution. Thus, there is no dispute with regard to identity

of the gold chain belonging to PW1. Learned counsel also

submitted that the prosecution has examined the other

witnesses i.e., PW2, PWs9 to 13 who have fully supported the

case of the prosecution. Even though there are no eye-

witness to the incident, the prosecution is successful in

proving the guilt of the accused by placing circumstantial

evidence. The sample hand writings and signatures of the

accused were verified by the hand writing expert and he

examined as PW13. He has given his report stating that the

questioned writings and signatures found on Ex.P.18 were

written by the same person who has written the sample

writings and signatures found in Exs.P.19 to 36. Therefore,

the prosecution is successful in proving the guilt of the

accused beyond reasonable doubt. The Trial Court and the

First Appellate Court rightly convicted the accused and

sentenced him as stated above. There are no reasons to

interfere with the impugned judgment of conviction and order

of sentence. Hence, he prays for dismissal of the revision.

12. 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 'Negative' for the

following:

REASONS

13. It is the specific contention of the prosecution that

the accused had caught hold of PW1 from behind and

snatched her gold chain weighing 32 gms., on 20.04.2011 at

7.30 Pm., just in front of her house. PW1 lodged the FIR as

per Ex.P.1 on the very same day at 10.30 pm. Therefore,

there was prompt lodging of first information and registration

of FIR as per Ex.P.11. against unknown person. However, on

suspicion, the accused was apprehended and produced before

the the IO. It is stated that, the voluntary statement of the

accused was recorded as per Ex.P.15. Thereafter, the accused

led IO and the mahazar witnesses to Suratkal Agricultural

Society Ltd and stated that he had pledged the gold chain

snatched from PW1 and obtained loan by submitting

application. This fact was admitted by the Manager of said Co-

operative Society and the gold chain in question was produced

before the IO. The same was identified by PW1, as the gold

chain belong to her. It was also identified by PW8 who had

prepared the gold chain for PW1. Admittedly, PW1 has got the

interim custody of the gold chain, the photo of which

produced as per Ex.P.5. Both PWs.1 and 8 have identified the

gold chain as seen in Ex.P.5.

14. PW2 is the gold smith who appraised the gold

chain in question in the Co-operative society and stated that

the accused had brought it and had obtained loan by pledging

the same. He identified the accused as well as the gold chain

in question. He also spoke about Ex.P.3, the recovery

mahazar where under the gold chain was recovered at the

instance of the accused. PW9 is the Head constable who

assisted the IO, drawn the mahazar as per Exs.P.3 and 17.

The witness stated that the accused had led the IO and the

mahazar witnesses to the Co-operative society in question

and got produced the gold chain as seen in Ex.P.5 and gold

chain recovered under Ex.P.3 and loan application submitted

by the accused was seized under Ex.P.7. The witness stated

that the loan application is as per Ex.P.18.

15. PW12 is the IO who spoke about all these facts

and circumstances. PW10 is the PSI of Padubidre police

Station who registered FIR against the unknown person in

Cr.No.61/2011, drawn spot mahazar and spot sketch as per

Ex.P.2 and 12.

16. PW7 is the doctor who examined PW1 and issued

the wound certificate as per Ex.P8. As per the wound

certificate, there was scratch wound on the radial aspect of

the neck of PW1 which supports the contention of the

prosecution that the gold chain was snatched forcibly from

PW1.

17. PW13 is the Hand writing expert, who examined

the sample writings and signatures of the accused with that of

the questioned writings and signatures marked as Q1 and Q2

in Ex.P18. He has issued the report with his opinion as per

Ex.P.39, according to which, the person who wrote the

standard writings and signatures marked as R1a to R1n, R1N1

to R1N45, R2a to R2N1 to R2N45, R3a to R3f also wrote the

questioned signatures marked Q1 to Q2. He has narrated the

way in which he compared the signatures and writings by

taking its photo copies and by enlarging the same. The said

enlarged photo copies of signatures is found as per Ex.P.40

and writings at Ex.P.41. Admitted signatures and writings are

as per Ex.P.19 to 36.

18. All the prosecution witnesses were cross-

examined by the learned counsel for the accused at length.

Nothing has been elicited from any of these witnesses to

disbelieve their version. It is true that PW1 had not identified

the accused but, she had identified the Gold chain. PW8 who

is said to have prepared the gold chain for PW1 also identified

gold chain, which is seen in Ex.P.5. It is the specific

contention of the prosecution that, on suspicion, the accused

was apprehended and his voluntary statement was recorded

as per Ex.P.15. On the basis of voluntary statement, accused

led the IO and the mahazar witnesses to Suratkal Agricultural

Co-operative Society and informed that he produced the gold

chain and loan application submitted by the accused. Even

though the Manager of Society was not examined by the

prosecution, a reasonable explanation that the Manager was

not alive is given, when the trial before the Trial Court was

conducted.

19. PW2 is the material witness, who identified the

accused and stated that he had appraised the Gold Chain

produced by the accused for the purpose of pledging the same

and obtained the loan. PW2 is the signatory to Ex.P3,

recovery mahazar, under which Gold Chain in question was

recovered. Even though PW3 and PW6 have not supported

the case of the prosecution, there are clinching materials to

connect the accused to the offence in question. When the

prosecution has proved its contention that the Gold Chain

belonging to PW1 was pledged by the accused with the

Agricultural Co-operative Society, Surathkal by introducing

himself as Suresh and submitting loan application as per

Ex.P.18, it is for the accused to explain as to how he came in

possession of Gold chain belonging to PW1.

20. The accused has not taken any defence except

totally denying the contentions taken by the prosecution. In

the statement recorded under Section 313 of Cr.P.C, except

denying the incriminating materials, he has not offered any

explanation. When all the links in the chain of circumstances

are complete to form a chain, it is to be held that the

prosecution is successful in proving the guilt of the accused

beyond reasonable doubt. Simply because PW1 has not

identified the accused, the contention of the prosecution

cannot be thrown away. Even though it is contented by the

learned counsel for the petitioner that no test identification

parade was held, under the facts and circumstances of the

case, when PW1 had not identified the accused at the time of

incident, such test identification parade was wholly

unnecessary. Therefore, I am opinion that the prosecution is

successful in proving the guilt of the accused beyond

reasonable doubt and there are no reason to falsely implicate

the accused either by PW1 or by any other witnesses. Under

such circumstances, he is liable for conviction.

21. 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 below have considered the materials on record in a

proper perspective and arrived at a right conclusion in

convicting and sentencing the accused for the above said

offence. I do not find any reason to interfere with the same.

Hence, I answer the above point in the 'Negative' and proceed

to pass the following:

ORDER

(i) The revision petition is dismissed.

(ii) The judgment of conviction and order of sentence

dated 01.09.2016 passed in CC No. 267/2011 on the file of

the learned 2nd Additional Civil Judge and JMFC Udupi, which

was confirmed vide judgment dated 03.07.2020 passed in

Crl.A.No.68/2016 on the file of learned Prl. District and

Sessions Judge, Udupi, is hereby confirmed.

Registry is directed to send back the Trial Court records

along with copy of the order.

Sd/-

JUDGE

BH