Karnataka High Court
Dastagir vs State By Psi on 4 January, 2024
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CRL.RP No. 583 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 583 OF 2016
BETWEEN:
DASTAGIR
S/O. AJEEJ KHAN,
AGED ABOUT 32 YEARS,
R/O RAILWAY GATE, HANUMANTHAPPA
SHED, OLD TOWN, BHADRAVATHI,
SHIMOGA DISTRICT-577 301.
...PETITIONER
(BY SRI. HARISH B. SHIRALKOPPA, ADVOCATE FOR
SRI. B.S. PRASAD, ADVOCATE)
AND:
STATE BY PSI,
NEW TOWN POLICE STATION,
BHADRAVATHI, SHIMOGA-577 301.
REP. BY S.P.P., HIGH COURT OF KARNATAKA,
Digitally signed by BANGALORE-01.
SANDHYA S
Location: High ...RESPONDENT
Court of
Karnataka (BY SRI. M.R. PATIL, HCGP)
THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT AND ORDER DATED 07.04.2015 PASSED BY
THE LEARNED PRL. CIVIL JUDGE AND JMFC AT BHADRAVATHI
IN C.C.NO.1104/2012 AND ALSO SET ASIDE THE JUDGMENT
AND ORDER DATED 24.02.2016 PASSED BY THE IV ADDL.
DIST. AND S.J., SHIVAMOGGA, SITTING AT BHADRAVATHI IN
CRL.A.NO.118/2015.
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 583 of 2016
ORDER
The accused/revision petitioner has preferred this
revision petition against the judgment of conviction and
order of sentence passed by the Principal Civil Judge and
JMFC, Bhadravathi in C.C.No.1104/2012 dated
07.04.2015, which is confirmed by the IV Addl. District
and Sessions Judge, Shimoga, sitting at Bhadravathi in
Crl.A.No.118/2015 dated 24.02.2016.
2. The rank of the parties in this appeal are
referred to as per their status before the trial Court.
3. The brief facts of the prosecution case is that
during the intervening night of 14/15.02.2012 at 4.30
a.m. accused Nos.1 to 3 with common intention
wrongfully trespassed into the premises of VISL Factory by
jumping the compound and tried to commit theft of iron
materials at structure shop of the VISL Factory. At that
time, CW.2/PW.2-Bommegowda and CW.3/PW.3-
Lakshminarayana caught hold of accused No.1 red handed
and gave the information to PW.1-K.Siddaramappa.
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Thereafter PW.1 filed first information before the Paper
Town Police, who registered this case in crime No.24/12.
On investigation, investigating officer submitted charge
sheet against accused Nos.1 to 3 for commission of
offences punishable under Sections 380 and 511 of IPC.
4. After filing of charge sheet case was registered
against accused Nos.1 to 3 in C.C.No.1104/2012 and
summons was issued to accused. During pendency of the
case, accused No.2 passed away. Hence, the charges
framed against accused Nos.1 and 3 for the commission of
offence punishable under Sections 380 and 511 of IPC.
The same was read over and explained to the accused,
having understood the same, the accused pleaded not
guilty and claimed to be tried.
5. To prove the guilt of the accused, 6 witnesses
were examined as PW1 to PW6 and 5 documents were
marked at Ex.P1 to Ex.P5. On closure of prosecution side
evidence, statement of the accused under Section 313 of
Cr.P.C was recorded. The accused has denied the evidence
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of prosecution witnesses, however not chosen to lead any
defence evidence on his behalf.
6. Having heard the arguments on both sides, the
trial court has acquitted the accused for the commission of
offence punishable under Section 380 of IPC and convicted
the accused for the offence punishable under Section 511
of IPC and sentenced to undergo rigorous imprisonment
for a period of one year with fine of Rs.1,000/- each. In
default to pay fine, accused shall undergo Simple
Imprisonment for a period of three months. Being
aggrieved by the judgment of conviction and order of
sentence, the accused has preferred the appeal before the
IV Addl. District and Sessions Judge, Shimoga sitting at
Bhadravathi in Crl.A.No.118/2015 and the same was
dismissed on 24.02.2016. Being aggrieved by this
judgment passed by both the Courts, the revision
petitioner/accused has preferred this revision petition.
7. The learned counsel for the revision petitioner
has submitted his arguments that the judgment passed by
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both the Courts are contrary to law, evidence on record
and probabilities of the case. The impugned judgments are
illegal, arbitrary, capricious and opposed to sound
principles of law. Both the Courts have not properly
appreciated the evidence on record in accordance with law
and facts. On all these grounds sought to allow the
revision petition.
8. As against this, the learned High Court
Government Pleader has submitted his arguments that the
trial Court has passed the judgment of conviction and
order on sentence in accordance with law and facts which
is confirmed by the appellate Court that there are no
grounds to interfere with the impugned judgment passed
by both the Courts and on all these grounds sought for
dismissal of the revision petition.
9. Having heard the arguments on both sides and
perusal of records, the following points would arise for my
consideration:
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(i) Whether the revision petitioner/accused
has made out the grounds to interfere with
the impugned judgment of conviction and
order on sentence passed by the trial court
which is confirmed by the appellate Court on
the ground that the judgments are illegal,
capricious and opposed to sound principles of
law?
(ii) What order?
My answer to the above points are as under:
Point No.(1) : Affirmative,
Point No.(2) : As per final order.
Regarding Point No.1:
10. I have carefully examined the materials placed
before this Court. It is the case of the prosecution that on
14/15.02.2012 at about 4.30 a.m. the accused have
entered the premises of VISL Factory premises,
Bhadravathi by climbing the compound with an intention
to commit theft of scrap iron materials thereby committed
offence punishable under Sections 380 and 511 of IPC.
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11. To substantiate the case of the prosecution 6
witnesses were examined as PW.1 to PW.6 and Ex.P1 to
Ex.P5 were marked. No material objects were marked on
behalf of the prosecution. Ex.P1 is the complaint filed by
PW.1-K.Siddaramappa the security guard of VISL Factory
in which he has stated that on 14.02.2012 at about 4.30
a.m. three accused climbed the compound of VISL Factory
and entered the premises of the factory. On seeing them
by their staff Bommegowda and Lakshminarayana both
were chased the said three persons among them two
persons fled away and apprehended the accused No.1-
Shekhara @ Seemenne Shekhara, S/o Pandu, Ambedkar
Nagar, Bhadravathi. On enquiry he revealed the name of
the other two accused. Further it is stated that the
accused entered into the factory premises illegally with an
intention to commit theft. PW.1 has reiterated the
averments made in the complaint. PW.2-Bommegowda
and PW.3-Lakshminarayana are also examined. During the
course of cross examination of PW.1 to PW.3 they have
categorically admitted in their evidence that the height of
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the compound of VISL Factory is 20 feet cement wall. On
the top of the compound wall 4-5 feet barbed wires fence
is installed. Further they have clearly admitted that
without any assistance of ladder or rope one cannot climb
the compound wall. Further during the course of cross
examination of PW.1 he has clearly admitted that the
security staff have produced the rope which was tied to
the angle, same was also handed over to the police, but
the investigating officer has not seized the same. The
investigating officer-PW.6 has not explained anything as to
non production of the material piece of evidence i.e., rope
said to have been used for climbing the compound wall
which is about 20 feet height. Even Ex.P2-spot mahazar
also reveals the same. The investigating officer has not
discussed anything as to the rope produced by the security
staff. These serious lapses committed by the investigating
officer reveals that the accused have not entered into the
premises of the VISL Factory. The exact place of
apprehension of accused No.1 is also not disclosed in the
complaint-Ex.P1. The material witnesses PW.1 to PW.3
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have clearly deposed in their evidence that they do not
know how the accused have entered into the premises of
the factory. Only on the basis of the statement given by
accused No.1 the investigating officer has arraigned
accused Nos.2 and 3 as accused. The investigating officer
has not made any efforts to collect the material piece of
evidence to insert the name of accused Nos.2 and 3. The
material evidence of prosecution witness PW.1 to PW.3 will
create reasonable doubt as to the apprehension of accused
No.1 at the relevant point of time. The trial Court has also
acquitted the accused for the commission of offence
punishable under Section 380 of IPC. If really the accused
have attempted to commit theft in the premises of the
factory, the trial Court ought to have convicted the
accused for the commission of the offence punishable
under Sections 380 and 511 of IPC. Though the trial Court
has acquitted the accused for the commission of offence
under Section 380 of IPC, the trial Court has committed an
error in convicting the accused for the commission of the
offence under Section 511 of IPC only, which is not
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sustainable under law. Both Courts have not properly
appreciated the evidence on record in accordance with law
and facts. The impugned judgment of conviction and order
on sentence passed by the trial Court which is confirmed
by the appellate Court is illegal, perverse capricious and
against the sound principles of law. Hence, I answer point
No.1 in the affirmative.
Regarding Point No.2:
12. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
(i) The revision petition is allowed.
(ii) The judgment of conviction and order on
sentence passed by the Prl. Civil Judge
and JMFC, Bhadravathi in
C.C.No.1104/2012 dated 07.04.2015,
which is confirmed by the IV Addl.
District and Sessions Judge, Shimoga
sitting at Bhadravathi in
Crl.A.No.118/2015 dated 24.02.2016 are
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set aside only against the revision
petitioner.
(iii) Send copy of this judgment along with the
trial Court records to the trial Court.
Sd/-
JUDGE
NS
