Suresh vs State Of Karnataka By
2024 Latest Caselaw 6370 Kant

Karnataka High Court

Suresh vs State Of Karnataka By on 4 March, 2024

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                                                   NC: 2024:KHC:8860
                                              CRL.RP No. 798 of 2017




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 4TH DAY OF MARCH, 2024               R
                                     BEFORE
                     THE HON'BLE MR JUSTICE S RACHAIAH
                CRIMINAL REVISION PETITION NO. 798 OF 2017
            BETWEEN:
            SURESH,
            AGED ABOUT 32 YEARS,
            S/O KRISHNAPPA LAMINI,
            R/AT HANUMAN DEVARA GUDI,
            KALASAPURA LAMANE THANDA,
            MUNDARAGI TALUK,
            GADAG DISTRICT - 582 118.
                                                       ...PETITIONER
            (BY SRI. G.C. SRIHARSHA, ADVOCATE FOR
                SRI. NISHIT KUMAR SHETTY, ADVOCATE)
            AND:

            STATE OF KARNATAKA BY
            BAJPE POLICE STATION,
            MANGALURU TALUK, D.K.
            REPRESENTED BY
Digitally
            STATE PUBLIC PROSECUTOR,
signed by   HIGH COURT BUILDINGS,
SUDHA S
Location:   BANGALORE - 560 001.
HIGH                                                  ...RESPONDENT
COURT OF
KARNATAKA   (BY SRI. RAHUL RAI K., HCGP)
                  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 DATED 06.10.2016 MADE IN C.C.NO.531/2012 BY
            THE COURT OF I ADDL. SENIOR CIVIL JUDGE AND CJM,
            MANGALORE D.K., AND THE JUDGMENT AND ORDER DATED
            05.07.2017 MADE IN CRL.A.NO.155/2016 BY THE PRL. S.J.,
            D.K., MANGALORE.

                 THIS PETITION, COMING ON FOR FURTHER HEARING,
            THIS DAY, THE COURT MADE THE FOLLOWING:
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                                                   NC: 2024:KHC:8860
                                              CRL.RP No. 798 of 2017




                               ORDER

1. This Criminal Revision Petition is filed by the

petitioner being aggrieved by the judgment of conviction and

order of sentence dated 06.10.2016 in

C.C.No.531/2012 on the file of I Additional Senior Civil Judge

and C.J.M., Mangaluru, D.K., wherein the petitioner has been

convicted for the offences punishable under Sections 457 and

380 of Indian Penal Code (for short "IPC"), against which the

petitioner had filed an appeal. The Appellate Court by its

judgment and order dated 05.07.2017 in Crl.A.No.155/2016

dismissed the appeal confirming the judgment of conviction and

order of sentence passed by the Trial Court.

2. The ranks of the parties in the Trial Court will be

considered henceforth for convenience.

Brief facts of the case:

3. It is the case of the prosecution that in the

intervening night of 13/14-02-2012, the accused with an

intention to gain wrongfully entered into the shop of CW.1

situated near the petrol bunk, Bajpe by removing roof tiles and

committed theft of 21 mobiles, one laptop and other spare

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parts of the mobiles worth of Rs.1,50,000/- including cash of

Rs.53,000/-.

4. On the basis of the complaint lodged by the

complainant-Mr.Abdul Hafeez on 14.02.2012, the respondent

police registered the case against the petitioner in Crime

No.45/2012. After conducting the investigation, submitted

charge sheet for the offences punishable under Sections 457

and 380 of IPC.

5. To prove the case of the prosecution, the

prosecution has The prosecution examined 7 witnesses as

PWs.1 to 7 and got marked 15 documents as Exhibits P1 to P15

and none of the items got marked. The Trial Court after

appreciating the oral and documentary evidence on record,

recorded the conviction and the Appellate Court confirmed the

same. Being aggrieved by the same, the petitioner has

preferred this revision petition seeking to set aside the

concurrent findings.

6. Heard Sri.G.C.Sriharsha, learned counsel appearing

on behalf of Sri. Nishit Kumar Shetty, learned counsel

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appearing for the petitioner and Sri Rahul Rai.K., learned High

Court Government Pleader for the respondent - State.

7. It is the submission of the learned counsel for the

petitioner that the concurrent findings of the Courts below

recording the conviction are perverse and illegal. Hence, the

same is liable to be set aside.

8. It is further submitted that the petitioner has been

falsely implicated in this case. Nothing has been recovered at

the instance of the accused. The items which were recovered at

the instance of the accused have not been produced before the

Trial Court. In the absence of production of those documents,

it cannot be said that the accused has committed a theft.

However, the Courts below failed to take of this aspect and

recorded the conviction and concurrently held that the accused

is guilty for the offences stated supra which appears to be

erroneous and not proper.

9. It is further submitted that the method in which,

the voluntary statement of the accused has been recorded is

contrary to the guidelines issued by the Hon'ble Supreme Court

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in the case of Subramanya Vs. State of Karnataka1.

Therefore, the said voluntary statement ought to have been set

aside and the alleged recovery effected on the strength of said

voluntary statement should have been rendered as ineffective.

However, both the Courts have failed to take note of the said

aspect and recorded the conviction which is required to be set

aside. Making such submission, the learned counsel for the

petitioner prays to allow the petition.

10. Per contra, learned High Court Government Pleader

(for short 'HCGP') vehemently justified the findings recorded by

the Courts below in convicting the accused. The learned HCGP

submits that the voluntary statement of the accused which

leads to the recovery is relevant and admissible as per Section

27 of the Indian Evidence Act, 1872.

11. It is further submitted that the voluntary statement

of the accused led the Investigating Officer to recover several

items which were stolen by the accused. The witnesses who

were present while conducting the seizure mahazar have

supported the case of the prosecution. Therefore, the Courts

2022 SCC OnLine SC 1400

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below have considered the said recovery and recorded the

conviction which contains no infirmity nor error. Hence, it may

not be proper to interfere with the said findings. Making such

submission, the learned HCGP prays to dismiss the petition.

12. After having heard the learned counsel for the

respective parties and also perused the findings of the Trial

Court, it appears that the prosecution examined seven

witnesses and also marked several documents. PW.1 being a

complainant has lodged a complaint against an unknown

person, however, subsequently, he came to know that the

accused had committed theft of the items mentioned in Ex.P1.

He has supported the case of the prosecution, however, he was

not an eyewitness to the incident.

13. PW.2 is the witness to spot mahazar which is

marked as Ex.P2 and recovery of mobile phones which is

marked as Ex.P9. Further, he states that the accused took him

along with other police officials to his house and handed over

one laptop, 19 mobiles, memory cards, chargers and batteries

to the police. The police have seized the said items under the

mahazar which is marked as Ex.P10. Further, two mobiles

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have been seized through his friend under seizure mahazar

which is marked as Ex.P11. He has supported the case of the

prosecution.

14. PW.6 was working as a Civil Engineer at

Mookambika Constructions stated to be the witness to the

seizure mahazar of mobile phones. However, he has not

supported the case of the prosecution. Except the evidence of

PW.2, none of the witnesses have supported regarding seizure

mahazar. No doubt, the photographs of the stolen mobiles

were produced and got it marked as Exs.P3, P4 and P5,

chargers and memory cards and batteries were marked as

Ex.P6 and the laptop is marked as Ex.P7. Mere marking of

those photos would it sufficient to prove the case of theft is a

matter for consideration.

15. Before going to the other aspects, it is relevant to

refer to the judgment of the Trial Court wherein the prosecution

has not produced any material objects to substantiate the case

of theft. No doubt, the alleged recovery is said to have taken

place on the strength of the voluntary statement of the

accused. Whether the said voluntary statement was recorded

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in accordance with law or not has to be considered along with

the dictum of the Hon'ble Supreme Court in the case of

Subramanya Vs. State of Karnataka stated supra. The

Hon'ble Supreme Court in paragraphs No. 83 and 84 of the said

judgment observed as under:

"83. The first and the basic infirmity in the evidence of all the aforesaid prosecution witnesses is that none of them have deposed the exact statement said to have been made by the appellant herein which ultimately led to the discovery of a fact relevant under Section 27 of the Evidence Act.

84. If, it is say of the investigating officer that the accused appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence, the site of burial of the dead body, clothes etc., then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses would arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence etc. When the accused while in custody makes such statement before the two independent witnesses (panch-witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a

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particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch-witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."

16. On careful reading of the dictum of the Hon'ble

Supreme Court, it is clarified that before recording the

voluntary statement of the accused, securing the presence of

the panch witnesses and recording the voluntary statement in

the presence of the said panch witnesses are sine quo non to

effect the recovery in terms of Section 27 of the Indian

Evidence Act.

17. In the present case, the voluntary statement of the

accused which leads to the recovery and the said portion is

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marked as Ex.P15. On perusal of the said voluntary statement,

none of the independent witnesses have signed the voluntary

statement as witnesses. Therefore, the said voluntary

statement is contrary to the law laid down by the Hon'ble

Supreme Court and such voluntary statement even though it

leads to the recovery of the stolen articles would be rendered

as unacceptable and acting on such voluntary statement and

recorded the conviction, certainly, it requires to be set aside.

18. In the light of the observations made above, I

proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of sentence

dated 06.10.2016 passed in C.C.No.531/2012 by

the I Additional Senior Civil Judge and C.J.M.,

Mangaluru, D.K. and the judgment and order

dated 05.07.2017 passed in Crl.A. No.155/2016

by the Principal Sessions Judge, Dakshina

Kannada, Mangaluru, are set aside.

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(iii) The petitioner is acquitted for the offences

punishable under Sections 457 and 380 of IPC.

(iv) Bail bonds executed, if any, stands cancelled.

Sd/-

JUDGE

JS/UN

CT:SNN