Karnataka High Court

Prasanna vs State By Halebeedu Police on 5 January, 2024

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                                                              NC: 2024:KHC:741
                                                        CRL.RP No. 792 of 2017




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 5TH DAY OF JANUARY, 2024

                                               BEFORE
                            THE HON'BLE MR JUSTICE G BASAVARAJA
                         CRIMINAL REVISION PETITION NO.792 OF 2017
                   BETWEEN:

                   1.    PRASANNA
                         S/O MANJAPPA
                         AGED ABOUT 27 YEARS
                         RESIDENT OF BOOKASAGARA VILLAGE
                         KADURU TALUK-577 101
                         CHIKKAMAGALORE
                         DISTRICT
                                                                 ...PETITIONER
                   (BY SRI. CHETHAN B, ADVOCATE)

                   AND:
                   1. STATE BY
                      HALEBEEDU POLICE
                      BELUR TALUK-573 115
Digitally signed      HASSAN DISTRICT
by SANDHYA S
Location: High
Court of
Karnataka                REPRESENTED BY STATE PUBLIC PROSECUTOR
                         HIGH COURT OF KARNATAKA
                         BANGALORE-560 001
                                                             ...RESPONDENT
                   (BY SRI M.R. PATIL, HCGP)

                        THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
                   TO SET ASIDE THE JUDGMENT DATED 01.07.2017 PASSED BY
                   THE V ADDL. DIST. AND SESSIONS JUDGE, HASSAN IN
                   CRL.A.NO.26/2016 AND JUDGMENT DATED 05.01.2015
                   PASSED BY THE SENIOR CIVIL JUDGE AND J.M.F.C., BELUR IN
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                                              NC: 2024:KHC:741
                                        CRL.RP No. 792 of 2017




C.C.NO.73/2014.I.A.NO.1/2017         FOR    SUSPENSION         OF
SENTENCE AND BAIL.

     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:
                            ORDER

Accused No.2-Prasanna has preferred this Revision

Petition against the judgment of conviction and order of

sentence dated 05th January, 2015 passed in CC No.588 of

2012 (new CC No.73 of 2014) by the JMFC, Belur (for brevity,

hereinafter referred to as the "trial Court") which is confirmed

by the V Additional District and Sessions Judge, Hassan in

Criminal Appeal No.27 of 2016 vide judgment and order dated

01st July, 2017 (for brevity, hereinafter referred to as the

"Appellate Court").

2. For the sake of convenience, the parties in this appeal

are referred to as per their status and rank before the trial

Court.

3. The brief facts of the prosecution case are that, on 06th

December, 2011 at about 11.00 am, CW1/PW1,along with her

husband and others, had visited Sri Puradamma Temple and

were offering prayers and PW1-Rekhamani and PW4-Bhagya

were preparing food, at that time, accused came from backside

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and forcibly snatched the gold chain from her neck. Thus,

accused had committed offence under Section 392 read with

Section 34 of Indian Penal Code. After filing charge sheet,

cognizance was taken and case was registered in CC No.73 of

2014. Accused 1 and 2 were secured under body warrant and

thereafter they have obtained bail. Charges were framed

against the accused for commission of offence under Section

392 read with Section 34 of Indian Penal Code. The same was

read over and explained to the accused. Accused having

understood the same, pleaded not guilty and claimed to be

tried. During the course of trial, accused No.1 reported to be

dead. Hence, case against accused No.1 was abated on 27th

May, 2015.

4. To prove the guilt of accused No.2, nine witnesses were

examined as PWs1 to 9 and seven documents were marked as

Exhibits P1 to P7 and one Material Object as MO1. On closure

of prosecution side evidence, statement of the accused under

Section 313 of Code of Criminal Procedure was recorded and

the accused has totally denied the evidence of prosecution, but

he has not chosen to lead any defence evidence.

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5. Upon hearing the parties, the trial Court convicted the

accused No.2 for commission of offence under Section 392

Indian Penal Code and sentenced to undergo rigorous

imprisonment for two years and payment of fine of Rs.10,000/-

in default of payment of fine, to further undergo simple

imprisonment for three months. Being aggrieved by this

judgment of conviction and order of sentence the accused

preferred appeal before the Appellate Court in Criminal Appeal

No.26 of 2016. Same came to be dismissed on 01st July, 2017.

Being aggrieved by the judgment of conviction and order of

sentence by both courts, accused No.2-Prasanna has preferred

this Revision Petition.

6. Learned Counsel appearing for the petitioner Sri

Chetan B., submits that the judgments of conviction and order

of sentence are illegal, invalid and unsustainable in law and the

same require to be interfered with by this Court in this Revision

Petition. The Court below has grossly erred in not appreciating

the evidence on record and the same has resulted in

miscarriage of justice. He submits that at the time of lodging

the complaint, the identity of the accused was not revealed and

it was registered against two unknown persons. The trial Court

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has not appreciated the fact that the persons who were

identified in the Police Station were one Devaraj and Rajesh

and not the accused/revision petitioner herein. The trial Court

has not appreciated that there was delay in lodging complaint.

The delay was not properly explained. The properties which

were recovered at the instance of witnesses to recovery

mahazar, have not supported the case of prosecution. Even

otherwise their evidence is contrary to each other. The trial

Court has not properly appreciated the evidence on record in

accordance with law. The Appellate Court has also not properly

appreciated the evidence on record in accordance with law and

facts. It is further submitted that there is no ingredient to

attract offence punishable under Section 392 read with Section

34 of Indian Penal Code. On all these grounds the learned

counsel sought to allow the revision petition.

7. On the other hand, learned High Court Government

Pleader Sri M.R. Patil, submits that the trial Court has properly

appreciated the evidence in accordance with law and facts, so

also the Appellate Court has properly appreciated the evidence

on record and has rightly dismissed the appeal. Hence, there

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are no grounds for interference by this Court and accordingly,

sought to dismiss the Revision Petition.

8. Having heard the learned counsel for the parties and

on perusal of records, the following points would arise for my

consideration:

1. Whether the revision petitioner has made out a

ground to interfere with the impugned judgment

of conviction and order of sentence passed by the

trial Court which is affirmed by the Appellate

Court is illegal, perverse and not maintainable in

law?

2. What Order?

9. My answer to the above points areas under:

Point No.1: in the affirmative;

Point No.2: as per final order.

Regarding Point No.1:

10. I have carefully examined the material placed before

this Court. It is the case of the prosecution that on 06th

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December, 2011 at about 11.00 am, CW1/PW1, along with her

husband and others, had visited Sri Purudamma Temple and

were offering prayers and PW1-Rekhamani and PW4-Bhagya

were preparing food. At that time, accused came from

backside and forcibly snatched the gold chain from her neck.

Thus, accused had committed offence under Section 392 read

with Section 34 of Indian Penal Code. The alleged incident took

place on 06th December, 2011. The complaint came to be filed

on 07th. December, 2011 at 2.30 pm. On the basis of this

complaint, the Belur Police have registered a case in Crime

No.213 of 2011 against two unknown accused, aged about 25

years for the commission of offence punishable under Section

392 of Indian Penal Code. On the same day, the police have

visited the spot and conducted spot panchnama in the presence

of panchas as per Exhibit P2. That on 28th July, 2012, the

Police have arrested accused 1 and 2 on suspicious grounds

and during their interrogation, the Investigating Officer has

recorded voluntary statement and at the instance of voluntary

statement, the police have seized the property from the

possession of accused No.1-Devaraj through seizure mahazar

Exhibit P5. PW1-Rekhamani has deposed in her evidence as

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stated in Exhibit P1-complaint. Further, she has deposed that

after six months from the date of complaint,the Circle Inspector

of Police has informed that they have recovered a gold

mangalya chain and hence she and her husband went to police

station. Police have shown the accused and also informed that

the name as Prasanna and Devaraju. PW2-Lakshman Prasad

husband of PW1, has deposed in his evidence as to the theft of

gold chain of his wife. Further, he has deposed that after

recovery of gold chain by Police, the police have summoned

them for identification of the same and accused. They went to

Belur Station for identification of gold chain as well as accused.

Police have shown two persons viz. Devaraju and Halesh.

Halesh is not accused in this case. He has not deposed

anything against the present accused Prasanna. This witness

has been treated as hostile witness and with the permission of

the Court, the prosecution has cross-examined. In his cross-

examination, when the learned Assistant Public Prosecutor has

suggested the name of Prasanna, he had admitted. The trial

Court has not provided an opportunity to the accused to cross-

examine the witnessPW2 and the prayer sought by the counsel

for the accused was rejected.

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11. PW3-Ravi has not supported the case of prosecution.

In his examination-in-chief, he has also stated that the police

have shown accused Devaraju and Halesh. He has not deposed

anything about this accused-Prasanna.

12. PW4-Bhagya has not deposed anything against the

present accused.

13. PW5-Manjunath and PW6-Nanjesha have deposed as to

the mahazar conducted by the police as per Exhibit P2.

14. PW8-Indiresh, the attestor to the seizure mahazar

Exhibit P5, has not supported the case of prosecution.

15. PW7-M. Rangaiah and PW9-B.K. Manjaiah have

deposed as to their respective investigation.

16. Exhibit P5-mahazar reveals that Investigating Officer

has seized mangalya chain from the possession of accused

No.1. Investigating Officer has also deposed the same. It is an

admitted fact that the Investigating Officer has not received

mangalya chain from the possession of accused No.2-Prasanna.

The evidence of PWs2 and 3 reveals that the police, after the

arrest of the accused, the police have shown accused No.1-

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Devaraju and another accused Halesh and have not shown this

accused-Prasanna to PWs2 and 3. Even in the complaint and

the evidence of PW1, they have not disclosed the description of

persons who have robbed the chain. PW1 has also not

specifically stated anything against this accused-Prasanna. On

a careful scrutiny of the entire evidence produced before this

Court, I do not find anything cogent, clinching, corroborating,

believable and trustworthy evidence against the accused No.2.

However, the trial Court, without proper appreciation of

evidence on record in accordance with law and facts,

mechanically, has convicted the accused No.2-Prasanna which

is not sustainable under law. Even the Appellate Court, on re-

appreciation of evidence on record, also ignored the actual

facts of the case and evidence of the prosecution witnesses.

Hence, the judgment of conviction and order of sentence

passed by the trial Court which is confirmed by the trial Court is

liable to be set aside as same is illegal, capricious, perverse and

not sustainable under law. Accordingly, I answer the Point

No.1 in the affirmative.

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Regarding Point No.2:

17. For the foregoing reasons and discussion, I proceed to

pass the following:

ORDER

1. Criminal Revision Petition is allowed;

2. The judgment of conviction and sentence dated

05th January, 2015 passed in CC No.588 of 2012

(new CC No.73 of 2014) by the JMFC, Belur is set

aside. Consequently, the judgment and order

dated 01st July, 2017 passed in Criminal Appeal

No.27 of 2016by the V Additional District and

Sessions Judge, Hassan is also set aside;