Karnataka High Court
Maruthi vs State By Hunusur Town on 2 January, 2024
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CRL.RP No. 634 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 634 OF 2015
BETWEEN:
1. MARUTHI
S/O DURGAPPA
AGED ABOUT 28 YEARS
2. HANUMAKKA
W/O LINGARAJU ALIAS DESAPPA
AGED ABOUT 43 YEARS,
BOTH ARE RESIDING AT
MARADAHATTI VILLAGE,
CHITRADURGA TALUK
& DISTRICT -577 501,KARNATAKA.
...PETITIONERS
(BY SRI. VENKATARAMAPRASAD M N.,ADVOCATE)
Digitally signed by
SANDHYA S AND:
Location: High
Court of Karnataka 1. STATE BY HUNUSUR TOWN
POLICE STATION,
REPTD. BY THE STATE PUBLIC PROSECUTOR,
AT THE HONBLE HIGH COURT COMPLEX,
BANGALORE.
...RESPONDENT
(BY SRI.M.R.PATIL, HCGP)
THIS CRIMINAL REVISION PETITION FILED U/S.397 R/W
401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING
THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE ORDER OF CONVICTION AND SENTENCE DATED 12.4.2013
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CRL.RP No. 634 of 2015
PASSED BY THE SR. C.J. AND J.M.F.F.C., HUNSUR IN
C.C.NO.235/2012 (CR. NO.9/2011) AND WHICH IS CONFIRMED
BY VIRTUE OF JUDGMENT AND CONFIRMATION ORDER DATED
16.3.2015 PASSED BY THE V ADDL. S.J., MYSURU IN
CRL.A.NO.128/2013 AND CONSEQUENTLY ACQUIT THE PETRS.
NO.1 AND 2 FROM THE ALLEGED CHARGES OF CONVICTION
AND SENTENCES.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Revision petitioner Nos.1 and 2/accused have
preferred this revision petition against the judgment of
conviction and order of sentence dated 12.04.2013 passed
in C.C. No.235/2012 by the Court of the Senior Civil Judge
& JMFC, Hunsur (hereinafter referred to as 'Trial Court' for
short) which is confirmed by the judgment dated
16.03.2015 passed in Criminal Appeal No.128/2013 by the
Court of the V Additional Sessions Judge at Mysuru
(hereinafter referred to as 'Appellate Court' for short).
2. For the sake of convenience, the parties in this
appeal are referred to as per their status and rank before
the Trial Court.
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3. The brief case of prosecution is that on
07.01.2011, during night time, at Banni Street, the
accused have committed lurking house trespass by
breaking open the lock put to the house of C.W.1
Jayaswamy and has committed theft of jewels worth
Rs.40,000/-. Thus, the accused committed offence
punishable under Sections 457 and 380 of Indian Penal
Code.
4. After filing of the charge sheet, cognizance was
taken against the accused Nos.1 and 2, the case was
registered in C.C.No.235/2012. In pursuance of the
summons, the accused Nos.1 and 2 have appeared before
the Court and enlarged on bail. Charge framed and read
over and explained to the Accused. Having understood the
same accused pleaded not guilty and claimed to be tried.
5. To prove the guilt of the accused, 9 witnesses
were examined as PWs.1 to 9 and 2 material objects were
got marked as M.O.Nos.1 and 2. On hearing the
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arguments on both sides, the Trial Court has convicted the
accused Nos.1 and 2 for the offence punishable under
Section 457 and 380 read with 34 of Indian Penal Code
and sentenced them to undergo simple imprisonment for 3
years for the offence under Section 457 of Indian Penal
Code and 2 years for the offence under Section 380 of
Indian Penal Code and to pay a fine of Rs.3,000/- each.
In default, they shall undergo simple imprisonment for
further period of 3 months each.
6. Being aggrieved by this judgment of conviction
and order of sentence, accused Nos.1 and 2 preferred
appeal before the V Additional District and Sessions Judge,
Mysuru in Criminal Appeal No.128/2013 which came to be
dismissed on 16.03.2015. Being aggrieved by the
judgment of dismissal, the revision petitioners have
preferred this revision petition.
7. It is submitted by the learned counsel for
revision petitioners that on the basis of complaint filed by
the complainant Jayaswamy, Hunsur police have
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registered the case in crime No.9/2011 for the commission
of offence punishable under Sections 457 and 380 read
with 34 of Indian Penal Code against the unknown
accused. Thereafter, the police have visited the spot and
conducted spot mahazar and after completion of
investigation, the concerned police have submitted C-
report to the Court and the same was accepted by the
Court. Subsequently, that on 10.5.2012 as per the
statement of PWs.6 and 7, the investigating officer has
arrested the accused and interrogated and recorded
voluntary statement of the accused and seized one pair of
ear hanging, one gold chain and 3 gold small rings under
mahazar. Thereafter, the investigating officer has
submitted the charge sheet against the accused Nos.1 and
2. The mahazar witnesses have not supported the case of
prosecution. Further, the Trial Court has convicted the
accused only on the basis of evidence of investigating
officer which is not sustainable under law and absolutely
there is no evidence against the accused and the Trial
Court has not properly appreciated the evidence on record
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in accordance with law and facts. On all these grounds, he
sought to allow this revision petition.
8. As against this, learned High Court Government
Pleader submits that the Trial Court has properly
appreciated the evidence on record in accordance with law
and facts and the Appellate Court has also confirmed the
judgment of conviction and order of sentence passed by
the Trial Court and that there are no grounds to interfere
with the impugned judgment of conviction and order of
sentence. Therefore, he sought to dismiss the revision
petition.
9. Having heard the arguments on both sides and
on perusal of entire records, the following points would
arise for my consideration:
i. Whether the revision petitioner has made
out the grounds to interfere with the
impugned judgment of conviction and
order of sentence passed by the Trial
Court which is confirmed by the Trial
Court?
ii. What order?
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10. My answer to the above points are as under:
Point No.1: in the affirmative
Point No.2: as per final order
Regarding point No.1:
11. I have carefully examined the material placed
before the Court.
On the basis of the complaint at Ex.P1 filed by PW.1-
Jayarama, the concerned police have registered the case
in crime No.9/2011 and submitted the First Information
Report to the Court on 08.1.2011 on account of theft of
one pair of ear hanging and one small child gold chain and
three small gold rings. Thereafter, the police have visited
the spot on the same day and conducted spot mahazar as
per Ex.P2. After investigation, the investigating officer has
submitted C-report on 13.10.2011. After submission of C-
report, the Trial Court has issued notice to the
complainant. Thereafter, on 06.01.2012, the Trial Court
has accepted the C-report. That on 11.05.2012, after
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lapse of about 1 year 5 months, accused Nos.1 and 2 have
produced before the Trial Court and they were remanded
to judicial custody, after investigation, the investigating
officer has submitted the charge sheet against accused
No.1 for the commission of offence punishable under
Section 457 and 380 of Indian Penal Code.
12. To prove the guilt of the accused in all 9
witnesses were examined as PWs.1 to 9. PW.1 -
Jayaswamy is said to be the complainant has deposed as
to the theft of property mentioned in Ex.P1-complaint and
also Ex.P2-Mahazar. Further, he deposed in his evidence
that the police have informed him that they have traced
accused Nos.1 and 2 who have committed theft in his
house.
13. PW.2- Sunitha, wife of PW.1-Jayaswamy has
deposed as to the theft of property in her house.
14. PW.3-Mahadevaiah said to be attested to Ex.P2-
Mahazar has not supported the case of prosecution.
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15. PW.4- R.N.Manju and PW.5- Sachin are said to
be attesters to Ex.P4-spot mahazar, have not supported
the case of prosecution.
16. PW.6- Sadashiva, Police constable and PW.7-
Raju - Assistant Police inspector have adduced in their
evidence that on 10.05.2012, the accused Nos.1 and 2
are moving suspiciously and on seeing them, they tried to
fled away, then apprehended them, thereafter they have
produced them before the Police Sub Inspector and
submitted the report as per Ex.P5.
17. PW.8-Ravikumar, owner of Sri. Raghavendra
Jewelry works, said to be the receiver of stolen properties
has not supported the case of prosecution.
18. PW.9-Thomas, Police Sub Inspector has
deposed as to the investigation conducted by him and
submitted the charge sheet. Further, he deposed his
evidence that on 10.05.2012, he has received the
complaint from PW.1-Jayaswamy as per Ex.P1 and on the
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same day, he visited the spot and conducted spot mahazar
as per Ex.P2. At the time of seizure, he has seized M.O.s
1 and 2 and inserted the same in PF No.2/2011.
Thereafter, he deputed the staff to trace out the property
as well as accused. Since he could not trace the accused,
he has filed C-report to the Court on 26.07.2011. On
10.5.2012, he deputed PW.6 and PW.7 for night patrolling
duty, on 11.5.2012 at about 6.30 a.m., PWs.6 and 7 have
produced the accused Nos.1 and 2 and submitted the
report as per Ex.P5. He has recorded the voluntary
statement of accused Nos.1 and 2 in which they have
admitted as to the stolen of properties from the house of
PW.1-Jayaswamy as per Exs.P8 and P9. As per voluntary
statement, the investigating officer has seized the
properties under mahazar at Ex.P4 and he has inserted the
properties P.F.No.62/2012 and recorded the statement of
one Ravikumar who is said to be the receiver of stolen
property. On 12.5.2012, he has recorded the further
statement of CWs.1 and 2 who have identified the
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properties and finally, he submitted the charge sheet
against the accused.
19. A perusal of Ex.P4 -seizure mahazar reveals
that the mahazar conducted by the police on 11.05.2012
between 9.30 a.m. to 11.00 a.m. The investigating officer
has inserted the same in PF No.2/12 and submitted the
report as per Ex.P5 with mahazar on 13.5.2012. There is
two days delay in submitting the PF along with the seizure
mahazar as per Ex.P4. PW.9-Thomas, PSI has not
explained as to the delay in submitting the property form
and seizure mahazar to the Court. Accordingly, the
investigating officer has failed to comply the mandatory
provisions of Section 102 of Code of Criminal Procedure,
1973 with respect to seizure of properties which is said to
have been seized at the instance of the accused Nos.1 and
2.
20. The investigating officer has not produced any
materials as to the efforts made by him to trace out the
accused Nos.1 and 2. After lapse of 1 year and 5 months,
the investigating officer has arrested the accused Nos.1
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and 2 and recorded their voluntary statement. On the
basis of voluntary statements, the investigating officer has
seized the properties under mahazar at Ex.P4. The
seizure mahazar witnesses have not supported the case of
prosecution so also PW.8. Hence, the prosecution has
failed to place cogent, corroborative, clinching, believable
and trust worthy evidence before the Court. However, the
Trial Court has convicted the accused mechanically without
appreciating the evidence on record in accordance with law
and facts and the same is also confirmed by the Appellate
Court which are not sustainable under law. Hence, I
answer point No.1 in affirmative.
Regarding point No.2:
21. For the aforesaid reasons and discussions, I
proceed to pass the following:
ORDER
i. Criminal revision petition is allowed.
ii. Judgment of conviction and order of
sentence dated 12.04.2013 passed in
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C.C.No.235/2012 by the Court of the
Senior Civil Judge & JMFC, Hunsur, which
is confirmed by the judgment dated
16.03.2015 passed in Crl.Appeal
No.128/2013 by the Court of the V
Additional Sessions Judge, Mysuru are set
aside.
are acquitted for the offence punishable
under Sections 457 and 380 of Indian
Penal Code.
iv. If any fine amount is paid by the accused,
the same shall be paid to them.
v. Since revision petitioner/accused No.1 is
in judicial custody, the Registry is directed
to send intimation through e-mail to
release revision petitioner/accused No.1 if
he has not involved in any other case.
vi. Registry is also directed to send copy of
this order along with records to the
concerned Courts.
Sd/-
JUDGE
SSD
