Karnataka High Court
Khadar S/O Hussainsab Bepari vs The State Of Karnataka on 6 February, 2024
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
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CRL.RP No. 100274 of 2016
C/W CRL.RP No. 100015 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.VISHWAJITH SHETTY
CRIMINAL REVISION PETITION NO. 100274 OF 2016
(397)
C/W
CRIMINAL REVISION PETITION NO. 100015 OF 2018
IN CRL.RP NO.100274/2016:
BETWEEN:
DILLEPPA
S/O. VEERAPPA MUDIGOUDAR,
AGE: 31 YEARS, OCC: FRUITS BUSINESS,
R/O: RAMAGOONDANHALLI,
TQ: BYADAGI, DIST: HAVERI.
...PETITIONER
(BY SRI PRASHANT MATHAPATI, AMICUS CURIE)
Digitally
signed by AND:
SUJATA
SUBHASH STATE OF KARNATAKA,
PAMMAR
BY ASI OF HALAGERI P.S.,
Date: TQ: RANEBENNUR, DIST: HAVERI,
2024.02.14
13:19:59 REPT. BY STATE PUBLIC PROSECUTOR,
+0530 HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA.
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 OF CR.P.C., SEEKING TO SET
ASIDE THE JUDGMENT DATED 28.03.2016 PASSED BY II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, HAVERI
(SITTING AT RANEBENNUR) IN CRIMINAL APPEAL NO.28/2011
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CRL.RP No. 100274 of 2016
C/W CRL.RP No. 100015 of 2018
AND TO SET ASIDE THE CONSEQUENTIAL JUDGMENT DATED
07.06.2011 PASSED BY THE PRINCIPAL CIVIL JUDGE AND I
ADDITIONAL JMFC, RANEBENNUR IN CRIMINAL CASE
NO.561/2007.
IN CRL.RP NO.100015/2018:
BETWEEN:
KHADAR
S/O. HUSSAINSAB BEPARI,
AGE: 29 YEARS, OCC: SCULPTOR,
R/O: BYADAGI, DIST: HAVERI,
...PETITIONER
(BY SRI N. P. VIVEKMEHTA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ADDL. S.P.P.,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH,
HIGH COURT BUILDING,
DHARWAD.
...RESPONDENT
(BY SMT. GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 AND 401 OF CR.P.C., SEEKING TO SET ASIDE
THE ORDER OF THE II ADDL. DISTRICT AND SESSIONS JUDGE,
HAVERI(SITTING AT RANEBENNUR) DT.28.03.2016
DISMISSING THE CRL.APL.NO.38/11 AND THE JUDGMENT AND
ORDER OF COURT OF THE PRL. CIVIL JUDGE AND I ADDL.
JMFC, RANEBENNUR DTD. 07.06.2011 AND CONVICTED ON
13.06.2011 PASSED IN C.C.NO.561/2007 AND ACQUIT
PETITIONER (ACCUSED NO.2) FOR THE OFFENCES
PUNISHABLE UNDER SECTION 457 & 380.
THESE PETITIONS, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 100274 of 2016
C/W CRL.RP No. 100015 of 2018
ORDER
1. These two criminal revision petitions are filed
by accused Nos.1 and 2, challenging the judgment and
order of conviction and sentence passed by the Court of
the Principal Civil Judge and I Addl.JMFC, Ranebennur in
C.C.No.561/2007 dated 07.06.2011 and the judgment and
order dated 28.03.2016 passed in Crl.Appeal No.38/2011
and Crl.Appeal No.28/2011 by the Court of the II
Addl.District and Sessions Judge, Haveri sitting at
Ranebennur.
2. Heard the learned counsel for the parties.
3. It is the case of the prosecution that on
05.07.2007 at about 2:30 a.m., accused broke open the
shutter of Halaswamy Temple and committed theft of
coins worth Rs.3616/- and currency notes worth Rs.1208/-
. During the course of investigation in the case, petitioners
were arrested. Investigation in the case was completed
and charge sheet was filed against them for the offences
punishable under Sections 380 and 457 of IPC. Since
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petitioners pleaded not guilty and claimed to be tried
before the trial Court, prosecution in support of its case
had examined 5 witnesses as PW1 to PW5 and got marked
7 documents as Exs.P1 to P7. Six material objects were
marked as MOs.1 to 6. On behalf of the defence, no oral or
documentary evidence was placed before the Court.
4. The Trial Court thereafter heard the arguments
addressed on both sides and convicted the petitioners for
the offences punishable under Sections 457 and 380 of IPC
and sentenced them to undergo simple imprisonment for a
period of 1 year each for the offence punishable under
Section 457 of IPC and for the offence punishable under
Section 380 of IPC. It was ordered that the sentence
would run concurrently. The said judgment and order of
conviction and sentence passed by the trial Court was
confirmed in Crl.Appeal No.38/2011 and Crl.Appeal
No.28/2011 by the Court of the II Add.District and
Sessions Judge, Haveri sitting at Ranebennur vide its
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judgment and order dated 28.03.2016. It is under these
circumstances, the petitioners are before this Court.
5. Learned amicus curiae appearing on behalf of
petitioner No.1 in Crl.RP.No.100274/2016 and the learned
counsel for the petitioner appearing on behalf of petitioner
in Crl.RP.No.100015/2018 submit that the recovery of the
stolen articles has not been proved in the present case.
Except the recovery, there is nothing to connect the
petitioners to the crime. Therefore, the trial Court as well
as the Appellate Court were not justified in convicting the
petitioners and prays to allow the petitions.
6. Per contra, learned High Court Government
Pleader has argued in support of the impugned judgment
and order. She submits that PW4, who is the pancha to
Ex.P4 recovery mahazar has supported the case of the
prosecution. Therefore the recovery is proved.
Accordingly, she prays to dismiss the revision petitions.
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7. The prosecution in order to substantiate its case
against the petitioners and to prove its charges against
them beyond reasonable doubt had examined 5 witnesses
as PW1 to PW5. PW1 Veerappa Murigeppa Pujar, who is
the complainant in the present case was serving as a
Pujari of Halaswamy temple at the relevant point of time.
He has deposed that on 05.07.2007 when he came to the
temple at about 6.00 a.m., he saw that the lock of the
shutter of the temple was broke open and the temple
board was also broken and he noticed that the money
which was in the hundi was stolen. He also has spoken
about he lodging the complaint as Ex.P1. He also has
stated that on 07.07.2007, he had gone to the police
station to identify the money that was stolen. During the
course of cross-examination, this witness has stated that it
cannot be said that how much amount exactly was
available inside the hundi. He also stated that he does not
have any knowledge about the articles seized and the
money which was identified by him.
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8. PW2 is a panch to the spot mahazar and he has
identified MOs.1 to 5. PW3 who is the panch witness to the
seizure mahazar has turned hostile to the case of the
prosecution. PW5 is another pancha to Ex.P4 seizure
mahazar and he also has turned hostile to the prosecution
case.
9. PW4 is another pancha to seizure mahazar
Ex.P4. Though this witness has supported the case of the
prosecution, during his cross examination, he has stated
that he is not in a position to describe the location and
boundary of the house of the accused. He also stated that
he does not know the neighbourers of house of the
accused. He has deposed that police had gone inside the
house of the accused and brought the stolen article from
the house. It is the specific case of the prosecution that
stolen article were kept in the cattle shed near the house
of the accused and alleged seizure was from the cattle
shed near the house of the accused No.1. None of the
neighbourers are examined in this case. Considering the
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statement made by PW4 during the course of his cross
examination, a serious doubt arises whether the seizure
was made as stated in Ex.P4. In addition to the same,
PW4 undisputedly was the President of Halaswamy Temple
Committee and therefore he is a interested witness. He
cannot be considered as an independent witness. PW5 is
the investigating officer who has received the complaint
and registered FIR. This witness has spoken about the
investigation conducted by him and about arresting the
accused, on 07.07.2007 who allegedly were moving in a
suspicious manner near the temple. During the course of
cross examination, he has admitted that accused No.1 is a
fruit merchant and accused No.2 is a carpenter.
10. For the purpose of connecting the petitioners to
the alleged crime, the prosecution has solely relied on the
alleged recovery of stolen articles from them. PW3 and 4
therefore would be the material witness for the purpose of
proving recovery in accordance with law. PW3 has turned
hostile to the case of the prosecution and he has virtually
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denied that he had signed the seizure mahazar Ex.P4.
Even the evidence of PW4 cannot be completely believed
in view of the statement made by him during the course of
his cross-examination. In addition to the same he is also
an interested witness. Therefore it would be difficult to
solely rely on the evidence of PW4 and convict the
petitioners for the alleged offence. Under these
circumstances, I am of the view that the Courts below
were not justified in convicting the petitioners for the
alleged offences. The impugned judgment and order of
conviction and sentence passed by the Courts below
therefore cannot be sustained. Accordingly, the following:
ORDER
Criminal revision petitions are allowed.
The impugned judgment and order of conviction
and sentence passed by the Court of the Principal Civil
Judge and I Addl.JMFC, Ranebennur in
C.C.No.561/2007 dated 07.06.2011 and the judgment
and order dated 28.03.2016 passed in Crl.Appeal
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No.38/2011 and Crl.Appeal No.28/2011 by the Court
of the II Add.District and Sessions Judge, Haveri
sitting at Ranebennur are set aside and the petitioners
are acquitted of the offences alleged against them.
Fine amount deposited by them, if any, shall be
refunded and their bail bonds stands cancelled.
The services of learned amicus curiae is placed on
record and his legal fees is fixed at Rs.7500/-.
Sd/-
JUDGE
KGK
