Sri.Jabbiulla @ Jabi vs State Of Karnataka
2023 Latest Caselaw 7372 Kant

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                                                            NC: 2023:KHC:38399
                                                      CRL.RP No. 542 of 2016




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 30TH DAY OF OCTOBER, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         CRIMINAL REVISION PETITION NO.542 OF 2016

                   BETWEEN:


                   1.    SRI JABBIULLA @ JABI
                         SON OF FAYAZ
                         AGED ABOUT 28 YEARS
                         RESIDING AT RANGANATH
                         EXTENSION, HAROHALLI
                         KANAKAPURA TALUK-562117
                         RAMANAGARA DISTRICT.

                   2.    SRI NAVEENA
                         SON OF RAJANNA
                         AGED ABOUT 28 YEARS
                         RESIDING AT KAGALLAHALLI VILLAGE
                         HAROHALLI HOBLI
                         KANAKAPURA TALUK-562117
Digitally signed         RAMANAGARA DISTRICT.
by SHARANYA T
                                                                ...PETITIONERS
Location: HIGH
COURT OF
KARNATAKA                   (BY SRI NITHIN GOWDA K.C., ADVOCATE FOR
                               SRI PRASANNA KUMAR P., ADVOCATE)
                   AND:

                   1.    STATE OF KARNATAKA
                         BY BANNERGHATTA POLICE STATION
                         BENGALURU DISTRICT
                         REPRESENTED BY STATE PUBLIC PROSECUTOR
                         HIGH COURT OF KARNATAKA
                         HIGH COURT BUILDINGS
                         BANGALORE-560001.
                                                              ...RESPONDENT
                                     (BY SRI M.R.PATIL, HCGP)
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                                                NC: 2023:KHC:38399
                                         CRL.RP No. 542 of 2016




     THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 21.09.2011 PASSED BY
THE ADDL. CIVIL JUDGE (JR.DN) AND JMFC, ANEKAL IN
C.C.NO.402/2010, THEREBY CONVICTING THE PETITIONERS
FOR THE OFFENCE P/U/S.384 R/W 34 OF IPC.


     THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:


                             ORDER

Heard the petitioners' counsel and also the counsel

appearing for the State.

2. The revision petition is filed against the

judgment of conviction for the offence punishable under

Section 384 r/w Section 34 of IPC convicting the

petitioners/accused Nos.1 and 3 and sentencing them to

suffer simple imprisonment for a period of one year with

fine of Rs.200/- each and in default of payment of fine, to

undergo simple imprisonment for 15 days and accused

No.2 was released by invoking Section 428 of Cr.P.C. and

given set off.

NC: 2023:KHC:38399 CRL.RP No. 542 of 2016

3. Being aggrieved by the order of the conviction

and sentence, an appeal is filed in Criminal Appeal

No.63/2011 and the Appellate Court having re-assessed

the evidence, confirmed the judgment of the Trial Court.

Hence, this revision petition is filed before this Court.

4. The factual matrix of case of the prosecution

before the Trial Court that on 10.1.2010 at about 4.00

p.m., on Bannerghatta-Kaggalipura Road, near VNR Bande

CWs.1 and 2 have came in a motorcycle bearing

No.KA.01/EC.8198 and standing there and talking each

other. At that time, accused Nos.1 to 3 have came there

and pretended to ask the address. Accused Nos.1 to 3

have shown the knife to CW2 and robbed three gold rings

and one gold chain and bracelet. Accused Nos.1 to 3 have

further robbed 2 gold rings from CW1. Accused Nos.1 to 3

have gone in their motorcycle bearing No.KA.02 EB.9583.

Hence, the complainant has filed the complaint before

CW14 Chandra, HC-585 of Bannerghatta Police Station.

CW14 has received the complaint and registered the same

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in Crime No.22/2010 and registered the FIR and handed

over the investigation to CW15. CW15 has drawn the spot

panchanama and arrested accused Nos.1 to 3 on

25.2.2010 and recorded the confession statements and

seized MOs.1 to 10 under the Panchanama and CWs.1 and

2 identified the properties and also the accused persons.

The police investigated the matter and filed the charge

sheet for the offence punishable under Section 384 r/w 34

of IPC.

5. The accused persons were secured and they

have denied the charges leveled against them and pleaded

not guilty and claim to be tried.

6. The prosecution in order to prove the case

examined PWs.1 to 8 and got marked the documents

Exs.P1 to P8 and also MOs.1 to 10 are marked. The

defence have not led any evidence, only 313 statement of

the accused was recorded. The Trial Court having

considered the evidence of PWs.1 and 2 and also the

evidence of PW3 and also PW4 who is the receiver of the

NC: 2023:KHC:38399 CRL.RP No. 542 of 2016

ornaments convicted the petitioners herein. The

petitioners have filed an appeal and Appellate Court also

on re-assessed the evidence confirmed the judgment of

conviction and sentence. Being aggrieved by the

conviction as well as the confirmation, the present revision

petition is filed before this Court.

7. The main contention of the petitioner's counsel

before this Court is that the very finding recorded by the

Trial Court as well as the confirmation made by the

appellate Court are erroneous and no material is placed

which is credible to consider the evidence of prosecution

witnesses and the witnesses speaks about the accused

persons were arrested and hence the PW1 and PW2 were

went and identified and no test identification is conducted

to identify the accused persons. The incident was taken

place allegedly on 16.01.2010 and accused persons were

apprehended on 25.02.2010 according to the prosecution

and there was a gap of 40 days in apprehending them and

also the M.Os' which are relies upon by the prosecution

are not that of the PW1 and PW2 and contradictions in the

NC: 2023:KHC:38399 CRL.RP No. 542 of 2016

evidence of PW1 and PW2 has not been considered by

both the Courts.

8. The counsel also would vehemently contend

that the PW3 is also a stock witness and he categorically

admits that he use to visit the police station and use to

call him as witness. Inspite of it, the same has been

accepted by both the Courts. The counsel also would

vehemently contend that the PW4 is none other than the

owner of jewellery shop and his evidence also not inspired

the confidence of the Court and he claims that on the very

same day came with five finger rings, a chain and a

bracelet and came and sold those for an amount of

Rs.50,000/- and they came along with Police and he had

produced the articles which he had received and the police

have drawn the mahazar in terms of Ex.P3. But, in the

cross-examination he categorically admits that only they

came and pledge three finger rings and one chain and

other articles were not pledged with him and on the

request of the police, he had purchased five rings and one

NC: 2023:KHC:38399 CRL.RP No. 542 of 2016

chain and given to the Police and inspite of his admission

convicted the petitioners herein and other witnesses are

police witnesses and the PW5 has not supported the case

and the PW6 and PW7 are the police witnesses and also

the counsel submits that seized knife, in terms of the

seizure it is mentioned as having wooden handle and in

the cross-examination he says it is a button knife and

these are the discrepancies which are not taken note of by

both the Courts.

9. Per Contra, the counsel in support of his

argument also he relied upon the judgment reported in

(2023) 1 Supreme Court Cases 180 and the counsel

brought to notice of this Court with regard to conducting of

test identification parade and principles discussed in the

judgment and no such test identification parade is

conducted and the very identification is also before the

police and hence this judgment is aptly applicable to the

case on hand.

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10. The counsel appearing for the State would

submits that the accused persons have been identified by

the PW1 and PW2 by the victims and also the counsel

would vehemently contend that the ornaments which have

been robbed were also seized at the instance of the

persons who have sold the same with PW4 and the seizure

is also proved by examining the witness PW3 and these

are the materials which have been considered by the Trial

Court as well as the Appellate Court and not committed

any error in appreciating both oral and documentary

evidence. Hence, it does not requires any interference by

exercising the revisional power.

11. Having heard the petitioners' counsel and also

the counsel appearing for the State and also on perusal of

material and principles laid down in the judgment referred

supra, the point that would arise for consideration of this

Court are:

1) Whether both the Courts have committed an error in appreciating both oral and documentary evidence?

NC: 2023:KHC:38399 CRL.RP No. 542 of 2016

2) Whether the order suffers from legality and correctness?

3) Whether the revision petitioner has made out the ground to exercise the revisional power?

4) What order?

POINT Nos:1 to 3:

12. Having heard the counsel for revision

petitioners and also the counsel appearing for the

respondent, the accusation made against this petitioner

that these two petitioners along with accused No.2 on

16.01.2010 at about 4.00 p.m., surrounded the PW1 and

PW2 and robbed total five gold rings, one gold chain and

one bracelet and they came in the motor cycle bearing No.

KA -02/EB-9583. In order to substantiate this accusation,

the prosecution mainly relies upon the evidence of PW1 to

PW8.

13. Having perused the evidence of PW1, no doubt

the he re-iterates accusation made against the petitioners

herein in his oral evidence and he speaks about the

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seizure of the very articles belongs to him and also the

articles belongs to the PW2 and also identifies the

signature in Ex.P1 - complaint. He categorically says that

after the arrest, both of them were called to the police

station and they went and identified the accused persons

and in the afternoon also brought one more accused and

he also identified the other accused, he also says that the

very same articles were seized at the instance of PW4 and

he got it released the same. He has also identified the M.O

Nos.8 and 9 i.e., weapons which were used causing threat,

but in the cross-examination, he admits that he had not

written the complaint i.e., Ex.P1 but, he had visited the

police station 3-4 times and also went to the police on the

date of arrest and police have not recorded his further

statement and there were three accused persons in the

station and accused persons are not identified along with

other persons. It was not told to identify along with other

persons. The evidence of PW2 is in the similar line of

evidence of PW1 but, in the cross-examination, she admits

that she cannot tell who came and attacked from back side

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and she has also visited police station 3-4 times and she

gave the bills for having purchased the gold and

thereafter, police gave the ornaments, but categorically in

the cross-examination admits that the golden articles

which have given to her are not belongs to them and

police called and told that they have received the gold

ornaments and identified the ornaments on 25th itself, she

has not identified the accused persons along with other

persons. There were only three persons in the police

station and other witness who is the witness for recovery

of gold ornaments from the shop of receiver and drawing

of mahazar in terms of Ex.P3, but in the cross-examination

he admits that he has not signed on the articles which

have been seized and also except the signature on Ex.P3,

they have not obtained any signature. He admits that

those type of articles are available outside and not having

any specific identification marks and also he categorically

admits that he used to visit Banneraghatta Police Station

frequently and also the police used to help him frequently

and he used to do as the police tells him but not always

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and he also says that he is one of the witness in a murder

case and also he had signed the same at the request of

the police. The other witness is PW4 who is the receiver of

the gold ornaments and he says that they came and sold

the articles and when they came along with the police, he

had produced ornaments and mahazar was drawn and

identified the M.O Nos.1 to 8. In the cross-examination he

says that he has received only three ring finger and only

chain and the same are pledged with him and not pledged

any other gold ornaments. But, he says that when the

police requested him he had produced five gold rings and

one chain and the same is purchased and given to the

police.

14. Having re-assessed the material available on

record, it is a fit case to exercise a revisional power and

the very evidence of the PW1 and PW2 is not consistent

with each other and the PW2 evidence is contrary to the

evidence of PW1. The PW1 has identifies the ornaments

which have been seized, but the PW2 has categorically

says that the gold ornaments which are given to them are

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not belongs to them and also police told her that they

have received the gold ornaments and called her and it is

the evidence of PW1 that after the arrest, all of them are

taken to the shop of PW4 and mahazar was drawn in

terms of Ex.P3 and the PW1 identifies that the same are

belong to them i.e., M.O Nos.1 to 7 but, the PW2 Evidence

is contrary to the evidence of PW1 and also test

identification parade is not conducted and the incident was

taken place on 16.01.2010 and arrested on 25.02.2010

and according to the PW2, on the very same day, they

have informed that they have already seized the gold

ornaments but, the evidence of PW1 is contrary to the

same. Apart from that the PW3 is the seizure mahazar

witness from the shop of PW4 and he is a stock witness

and he used to says that frequently he used to visit the

Banneraghatta Police Station and police have also

frequently help him and he is also a witness to a murder

case and he used to hear the words of the police but not

always and his evidence is also not credible to comes to a

conclusion that this recovery has been proved by the

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prosecution. The other witness is PW4 is contrary in his

chief evidence, he says that the accused persons came on

16.01.2010 and on the very same day they have sold the

gold ornaments but, in the cross-examination they have

pledged only three finger ring and a chain and not bracelet

and his evidence is also contrary and at one breath he

says that they came and sold and another breath he says

that they came and pledged the articles except those three

finger ring and a chain and not pledged any other articles

and when such material articles are available before the

Court and the same goes to the very route of the case of

the prosecution and no doubt other witnesses are police

witnesses and evidence of PW1, PW2, PW3 and PW4 not

inspires the confidence of the Court and the Trial Court

and also the appellate Court committed an error in

accepting the evidences of these witnesses and fails to

take note of material contradictions available on record

and hence it is a fit case to exercise the revisional

jurisdiction and no test identification parade is conducted

and principles laid down in the judgment of the Apex Court

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is also aptly applicable to the case on hand, when the PW1

and PW2 were not having any acquaintance with the

accused persons and only apprehended only after 40 days

and only cause the threat and robbed the gold ornaments

and ought to have conducted the Test identification parade

and only called the PW1 and PW2 and showed the accused

in the police station and they identified them and naturally

they have identified those persons in the Court also, but

the Court has considered the identification of the accused

persons before the Court, since they were identified in the

police station after the arrest and the evidence of

prosecution witnesses not inspires the confidence, inspite

of it both the Courts convicted the petitioner and

confirmed the same and there is no any other antecedent

against these petitioners.

15. In view of the discussions made above, I pass

the following:

ORDER

The Revision Petition is allowed.

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The judgment of conviction and sentence passed in

C.C No.402/2010 dated 21.09.2011 is hereby set-aside.

The bail bonds executed by the petitioners stands

cancelled.

Sd/-

JUDGE

AP,RHS