Karnataka High Court
Iliyas vs The State Of Karnataka By on 20 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:7710
CRL.RP No. 416 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO.416 OF 2016
BETWEEN:
ILIYAS
S/O CHAMAN SAB,
AGED ABOUT 40 YEARS,
OCC: AGRICULTURE,
R/O CHIKKAJAMBUR VILLAGE,
SHIKARIPURA TALUKA,
SHIMOGA DISTRICT-577 427.
...PETITIONER
(BY SRI P B UMESH, ADVOCATE FOR
SRI RAVINDRA B DESHPANDE, ADVOCATE)
AND:
Digitally signed
by DEVIKA M THE STATE OF KARNATAKA BY
Location: HIGH HOSANAGAR POLICE STATION,
COURT OF
KARNATAKA HOSANAGAR,
SHIMOGA DISTRICT-577 418.
(REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU-560 001.)
...RESPONDENT
(BY SMT. PUSHPALATHA B, ASPP)
THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
-2-
NC: 2025:KHC:7710
CRL.RP No. 416 of 2016
CONVICTION AND SENTENCE DATED 18.01.2013 PASSED
BY THE CIVIL JUDGE AND JMFC, HOSANAGAR IN
C.C.NO.808/2005 AND ETC.
THIS PETITION, COMING ON FOR FINAL HEARING,
THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL ORDER
This petition is filed challenging the judgment of
conviction and sentence dated 18.01.2013 passed in
C.C.No.808/2005 by the Trial Court and the judgment
dated 21.12.2015 passed in Crl.A.No.17/2013 by the First
Appellate Court.
2. Heard the learned counsel appearing for the
respective parties.
3. The factual matrix of the case of the
prosecution is that on 02.11.1997 during night hours
accused No.1 with accused No.2 and 3 with the help of
accused No.5 broken the lock of property room of Munsiff
and JMFC Court, Hosanagar and stolen sandalwood worth
NC: 2025:KHC:7710
of Rs.44,400/-. The complainant is the sheristedar of
Hosanagar Court. Police have seized 7 kg 400 grms of
sandalwood which was sold to accused No.2 and scooter
number KA17-E-1326 used for transportation and 11 kg
800 grms of sandalwood kept in Sorab for sale and 541 kg
800 grms of sandalwood kept in Mavinahole forest on the
basis of voluntary statements of accused. Accused No.4 is
a receiver of stolen articles and thereby committed an
offence.
4. In order to prove the charges leveled against
the accused persons, the prosecution examined 18
witnesses as PW1 to PW18 and got marked the documents
at Ex.P1 to P16 and also seized MO1 to MO73. The Trial
Court having considered the evidence available on record,
convicted all the accused persons and the said order was
challenged before the First Appellate Court by this
petitioner in Crl.A. No.17/2013 and the First Appellate
Court also confirmed the judgment of the Trial Court in
giving the reasons in paragraphs 30 and 31. Being
NC: 2025:KHC:7710
aggrieved by the said concurrent finding of both the
Courts, the present revision petition is filed.
5. The learned counsel for the petitioner would
vehemently contend that the prosecution failed to prove
the case against this petitioner since there is no any
incriminating evidence against him and only an allegation
against this petitioner is that when the police went to seize
the sandalwood, this petitioner ran away from the spot but
the fact is that this petitioner was not in the house and at
his instance, nothing was recovered. The only case of the
prosecution is that the house belongs to this petitioner
wherein sandalwood were seized but panch witness - PW5
has not supported the case of the prosecution with respect
to the seizure is concerned. The counsel also would
vehemently contend that when the petitioner was not at
the spot and document is also not placed before the Court
to show that, that house belongs to this petitioner, the
Trial Court ought not to have convicted this petitioner and
the First Appellate Court ought not to have confirmed the
NC: 2025:KHC:7710
said order. The counsel also brought to notice of this
Court the judgment of the Trial Court with regard to this
petitioner is concerned wherein an observation is made in
paragraph 15 that in 313 statement, accused has not
explained about the said incident. When, he was not
identifies the same, that cannot be a ground to convict
him and the First Appellate Court also committed an error
in confirming the order of the Trial Court. When the First
Appellate Court comes to a conclusion that regarding
accused No.4, no doubt, no incriminating the materials
have been seized at the instance of this petitioner. But the
statement of the other accused is that they have sold the
stolen articles to accused No.4 and stolen articles were
recovered from the house of accused No.4 at the instance
of other accused persons and comes to the conclusion that
seizure of incriminating articles even if it be at the
instance of other accused that clearly establishes the
nexus between the stolen articles and accused No.4 and
confirmed the judgment of the Trial Court hence, the very
approach of the First Appellate Court is erroneous.
NC: 2025:KHC:7710
6. Per contra, the learned counsel appearing for
the State would vehemently contend that when the
recovery was made at the instance of accused Nos.1 to 3
in the house of accused No.4, accused No.4 ran away from
the spot and though he has not been identified and
recovery is not at his instance, but the fact that the same
was recovered from his house is not in dispute and
accused Nos.1 to 3 only led the panch witnesses as well as
IO to the house of this petitioner and said fact is taken
note of by both the Courts and hence, it does not require
any interference of this Court.
7. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record the points that would arise for consideration of
this Court that:
1. Whether the Trial Court committed an error in
convicting and sentencing this
petitioner/accused No.4 and the First
Appellate Court committed an error in
NC: 2025:KHC:7710
confirming the judgment of the Trial Court
and whether the said orders suffer from its
legality and correctness and whether this
Court can exercise the revisional jurisdiction?
2. What order?
Point No.1
8. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, it discloses that charges leveled against this
petitioner is that he had received the sandalwood billets
and same was a stolen article and same is also recovered
from the house of this petitioner. It is important to note
that no doubt, prosecution examined several witnesses
that is PW1 to PW18 and also got marked several
documents. It is the case of the prosecution that accused
Nos.1 to 3 led the investigating team as well as panch
witnesses to the house of this petitioner. It is the case of
the prosecution is that this petitioner ran away from the
spot and they seized the sandalwood from the house of
NC: 2025:KHC:7710
this petitioner. In order to prove the fact that the said
house belongs to this petitioner, no material is collected by
the IO. It is important to note that recovery is not at the
instance of this petitioner or from this petitioner and only
based on the statement of other accused persons that
they have sold the stolen sandalwood to this petitioner,
this petitioner has been arrayed as accused. Though it is
contend that the same was recovered from the house of
this petitioner at the instance of other accused persons,
but no incriminating evidence against this petitioner and
same is observed by the First Appellate Court but comes
to the conclusion that seizure of incriminating articles even
if it be at the instance of other accused that clearly
establishes the nexus between the stolen articles and
accused No.4. In order to show the nexus also nothing is
placed on record except the statement of co-accused and
based on the co-accused statement, this petitioner cannot
be convicted. It is also important to note that the First
Appellate Court made an observation that once the
recovery is shown to be from the house of accused No.4
NC: 2025:KHC:7710
under a panchanama in the presence of panchas by the
responsible police officer and when this fact is spoken to
by these witnesses, burden would be on accused No.4 to
prove the contrary namely that he has never been in
occupation of the said house. Hence, the First Appellate
Court committed an error in making such an observation.
At the first instance, it is the burden on the prosecution to
prove the same and in order to prove the same no
document is collected to show that the said house belongs
to this petitioner and recovery also not at the instance of
this petitioner or from this petitioner and only based on
the statement of accused Nos.1 to 3 that house belongs to
this petitioner, the petitioner arrayed as accused No.4 and
in order to prove the said fact, nothing is placed on record
and the First Appellate Court made an observation of
proving the same in a negative manner that accused Nos.1
to 3 and mahazar witness have spoken about the same
and this petitioner has to disprove the same and that is
not the principle in the criminal jurisprudence. The
accused can give the explanation and explained the same
- 10 -
NC: 2025:KHC:7710
if incriminating evidence is placed against him but nothing
is placed on record with regard to any incriminating
evidence against this petitioner. When such being the
case, the question of not giving any explanation under
Section 313 does not arise. Thus, both the Courts have
proceeded in an erroneous manner. I have already made it
clear that unless incriminating evidence is placed before
the Court, the question of giving explanation under
Section 313 does not arise. The First Appellate Court also
committed an error in placing burden on this petitioner to
prove the same. Hence, the very finding of both the
Courts are not legal and hence, judgment of conviction
and sentence passed by both the Courts suffers from its
legality and correctness. Hence, it requires interference of
this Court. Hence, I answer the above point as
affirmative.
Point no.2
In view of discussions made above, I pass the
following:
- 11 -
NC: 2025:KHC:7710
ORDER
The revision petition is allowed.
The judgment of conviction and sentence dated
18.01.2013 passed in C.C.No.808/2005 by the Trial Court
and confirmation of the judgment of the Trial Court by the
First Appellate Court in Crl.A.No.17/2013 dated
21.12.2015 are hereby set aside.
The petitioner/accused No.4 is acquitted for the
offences invoked against him.
If any fine amount is deposited by this petitioner is
ordered to release in his favour on proper identification.
The bail bond executed by the petitioner is hereby
stand cancelled.
Sd/-
(H.P.SANDESH)
JUDGE
SN
