Karnataka High Court
J B Shivakumar vs State Of Karnataka on 16 May, 2024
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CRL.RP No. 1408 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR. JUSTICE S RACHAIAH
CRIMINAL REVISION PETITION NO. 1408 OF 2016
BETWEEN:
J B SHIVAKUMAR
S/O LATE BOMMEGOWDA
AGED ABOUT 44 YEARS
'D' GROUP EMPLOYEE AT
TARIKERE COURT, R/O P.K.S.
GENERAL HOSPITAL QUARTERS
BIRUR POST, KADUR TALUK - 577 548.
...PETITIONER
(BY SRI. SRI.P.P.HEGDE, SR. COUNSEL FOR
SRI SUBBA REDDY K N, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY TARIKERE
POLICE STATION, TARIKERE
CHIKKAMAGALURU DISTRICT - 577 101.
(REPRESENTED BY STATE
PUBLIC PROSECUTOR
HIGH COURT COMPLEX, BANGALORE)
...RESPONDENT
(BY SRI. RAHUL RAI K, HCGP)
THIS CRL.RP IS FILED U/S. 397 R/W S.401 CR.P.C
PRAYING TO QUASH THE IMPUGNED JUDGMENT DATED
30.8.2016 IN CRL.APPEAL NO.183/2015 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
CHIKKAMAGALURU VIDE ANNEXURE - A AND ETC.,
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 20.02.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:
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CRL.RP No. 1408 of 2016
ORDER
1. This Criminal Revision Petition is filed by the petitioner,
being aggrieved by the judgment of conviction and order
of sentence dated 05.12.2015 in C.C.No.213/2012 on the
file of the Senior Civil Judge and JMFC at Kadur and its
confirmation judgment and order dated 30.08.2016 in
Crl.A.No.183/2015 on the file of the Principal District and
Sessions Judge at Chikkamagaluru.
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 on 21.03.2012, at
about 1.00 a.m., accused No.1 - Shivakumar said to have
called Gajendra - PW.1 who was working as night
watchman in the Court building of Tarikere and came
near the Court along with accused No.2 in an ambulance
which was being driven by accused No.2 and entered the
Court premises and took two bags of Koramandal cement
worth of Rs.640/- along with two centering poles.
4. It is further stated that when accused No.2 was
proceeding in front of Birur Police station, he was asked
to stop his vehicle at around 12.20 a.m., by the police,
namely, Lakshman. Further, accused No.2 was asked to
open the door of the ambulance, when he opened the
door, it was noticed that two bags of cement and two
poles were in the ambulance. When the said police
enquired accused No.2 regarding the items, he confessed
that the items were loaded by accused No.1.
Immediately, the police along with accused No.2 came
back to the Court premises in search of accused No.1,
however, by that time, accused No.1 was not there in the
premises.
5. PW.1 lodged a complaint regarding the theft of cement
bags and two centering poles at around 1.30 a.m. Based
on the complaint, the jurisdictional police have registered
a case in Crime No.72/2012 for the offence punishable
under section 381 of Indian Penal Code (for short 'IPC').
After conducting investigation, charge sheet is submitted
for the aforesaid offence.
6. To prove the case of the prosecution, the prosecution
examined 9 witnesses as PWs.1 to 9 and got marked 19
documents as Exs.P1 to 19 and also got marked two
material objects as M.Os.1 and 2. On the other hand, the
accused examined two witnesses as DW.1 and DW.2 and
got marked 10 documents as Exs.D1 to D10. The Trial
Court recorded the conviction for the offence under
Section 379 of IPC and the Appellate Court confirmed the
order of the Trial Court.
7. Heard Sri.P.P.Hegde, learned Senior Counsel for
Sri.Subba Reddy K.N, learned counsel for the petitioner
and Sri.Rahul Rai.K, learned High Court Government
Pleader for the respondent - State.
8. It is the submission of the learned Senior Counsel for the
petitioner that the findings of the Trial Court and the
Appellate Court are perverse and illegal and the said
findings are required to be set aside.
9. It is further submitted that though PW.1 in his evidence
stated that the accused No.1 had called him through
telephone and asked him to open the door of the cement
godown, the Investigating Officer did not collect the
evidence regarding the said call detail records to
substantiate the said contention.
10. It is further submitted that the alleged theft is doubtful
for the reason that the Court premises was being watched
by two watchmen, if accused No.1 had been to the Court
premises to take the cement bags, another watchman
must have seen him. Though PW.1 stated in his evidence
that another watchman namely Bharath was also deputed
to watch the Court premises on the date of incident, the
Investigating Officer has not cited the said Bharath as a
witness to the case. This creates doubt about the
incident.
11. It is further submitted that the accused No.1 has been
implicated in this case falsely in order to make him to
suffer from the criminal case. In fact, none of the
witnesses have spoken about accused No.1. The
evidence of P.W.1 contains some contradictions and
improvements. In fact, the recovery has not been made
at the instance of accused No.1. Therefore, the
conviction ought not to have been recorded against
accused No.1, however, the Trial Court and the Appellate
Court recorded the conviction only on the basis of the
evidence of P.W.1 which is contrary to the evidence on
record. Therefore, the said conviction is liable to be set
aside. Making such submission learned Senior Counsel
prays to allow the petition.
12. Per contra, the learned High Court Government Pleader
for the respondent - State vehemently justified the
findings of the Courts below and submitted that the stolen
items were seized by Birur police when it was being
transported. The name of accused No.1 was entered in
the FIR at the instance of accused No.2 and further, the
inclusion of name of accused No.1 has been corroborated
by PW.1. Therefore, there is no infirmity or error in the
findings of the Courts below in recording the conviction.
Hence, the petition deserves to be dismissed. Making
such submission, the learned High Court Government
Pleader prays to dismiss the petition.
13. Having heard learned counsel for the respective parties
and also perused the findings of the Courts below, it is
relevant to refer to the evidence of all the witnesses.
14. PW.1 was working as a watchman as on the date of the
alleged incident. He was asked to open the door where
the cement bags were kept in the room. He said to have
opened the door and accused No.1 along with accused
No.2 took two bags of cement and two centering poles
and went away. Ex.P1-complaint discloses that it was
lodged around about 1.30 a.m. In the said complaint, it
has not been stated as to how P.W.1 went to the police
station and lodged a complaint. However, in his
evidence, he has deposed that immediately after the
incident, he informed the Magistrate and on his
instructions, he lodged a complaint. It is needless to say
that the Magistrate has not been cited as a witness to the
incident.
15. According to P.W.1, he along with another watchman
were deputed to do watchman duty on the date of
incident. However, another watchman has not been
informed regarding the incident and he has been cited as
a witness to the incident. This aspect of the Investigating
Officer creates doubt about the incident. Therefore, the
evidence of P.W.1 in my considered opinion considered as
not satisfactory to record the conviction.
16. Further, on reading of the evidence of PW.8 who was
working as head constable, it appears that he and CW.8
were working at Birur police station in their respective
positions and they have been deputed to inspect the
vehicle in the main road. He said to have received a
message regarding the transportation of two cement bags
and two centering poles in an ambulance. Based on the
said information, he stopped an ambulance which was
coming from Tarikere side, by that time, one person
stopped ambulance and got down from the ambulance
and ran away from the spot. However, he managed to
apprehend accused No.2. P.W.8 asked accused No.2 to
open the door of the ambulance and on opening the said
door, he found two cement bags and two centering poles.
After having noticed the items in the ambulance, he said
to have informed the Inspector of Police through wireless
message and it is stated that the said Inspector of Police
came to the spot around 4.00 a.m., and conducted spot
mahazar and seized the items.
17. As per the evidence of PW.9 who was working as a
Inspector of Police, it appears that on receiving the
information from P.W.8, he went to Birur police station
and conducted spot cum seizure mahazar which is
marked as Ex.P10 in presence of PWs.2 and 3. However,
both PWs.2 and 3 have turned hostile and not supported
the case of the prosecution regarding the presence of
cement bags and centering poles in the ambulance.
18. The evidence of P.W.7 is most significant to determine
the case. According to P.W.7, he was working as a writer
to his contractor namely Sathyanarayana. Even though
he deposed in his evidence that he went to the work on
the following date of the incident and noticed the theft of
two bags of cement and two centering poles, he did not
chose to lodge a complaint. In the cross-examination, he
admitted that there are no documents to show that
cement bags were kept in the premises. When P.W.7
admitted that no documents were there to show that
there was a stock of cement bags, it cannot be said that
accused No.1 took cement bags along with accused No.2
and went away from the spot. Moreover, nothing has
been recovered at the instance of accused No.1.
19. It is needless to say that both the Courts have committed
error in recording the conviction based on the evidence of
P.W.1, even though his evidence is not clinching and
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believable. Since the entire case is based on the
evidence of sole witness, the Courts ought to have
scrutinized the evidence of PW.1 thoroughly while
analyzing it. There are some contradictions and
improvements in the said evidence. The said aspects
have not been taken into consideration. Therefore, the
findings of the Courts below in recording the conviction
are required to be set aside.
20. In the light of the observation 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 05.12.2015 passed in
C.C.No.213/2012 by the Senior Civil Judge
and JMFC at Kadur and the judgment and
order dated 30.08.2016 passed in
Crl.A.No.183/2015 by the Principal District
and Sessions Judge at Chikkamagaluru are
set aside.
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iii) The petitioner / accused is acquitted for the
offence punishable under Section 379 of
IPC.
iv) Bail bonds executed, if any, stand
cancelled.
Sd/-
JUDGE
un
