Karnataka High Court
Sri Pradeepa @ Kabhali vs The State Of Karnataka on 27 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.RP No. 468 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL REVISION PETITION NO. 468 OF 2021
BETWEEN:
1. SRI. PRADEEPA @ KABHALI
S/O MAHENDRAPPA
AGED ABOUT 27 YEARS
AGRICULTURIST
R/AT SANYASI KODAMAGGI
HOSUR VILLAGE
BHADRAVATHI TALUK
SHIVAMOGGA DISTRICT-577301
...PETITIONER
(BY SRI. CHETAN JADHAV, SENIOR COUNSEL)
AND:
Digitally signed 1. THE STATE OF KARNATAKA
by DEVIKA M BY HOLEHONNUR POLICE STATION
Location: HIGH BHADRAVATHI TALUK
COURT OF REPRESENTED BY THE
KARNATAKA
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560001
...RESPONDENT
(BY SRI. M.DIVAKAR MADDUR, HCGP)
THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF
CR.P.C PRAYING TO SETTING ASIDE THE ORDER OF
CONVICTION AND SENTENCE DATED 09.02.2021 PASSED BY
THE LEARNED BY THE IV ADDITIONAL DISTRICT AND
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CRL.RP No. 468 of 2021
SESSIONS JUDGE, SHIVAMOGGA SITTING AT BHADRAVATHI
IN CRL.A.NO.5016/2020 THEREBY CONFIRMING THE
JUDGMENT AND ORDER OF CONVICTION AND SENTENCE
PASSED BY THE LEARNED I ADDITIONAL CIVIL JUDGE AND
JMFC, BHADRAVATHI ON 04.09.2019 IN C.C.NO.1097/2018.
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
1. Heard the learned counsel for revision petitioner
and also the learned High Court Government Pleader for
State.
2. This revision petition is filed against the order of
conviction and sentence passed by the Trial Court in
C.C.No.1097/2018 dated 04.09.2019 for the offence
punishable under Section 379 of Indian Penal Code and
confirmation order passed by the First Appellate Court in
Crl.ANo.5016/2020 dated 09.02.2021.
3. The factual matrix of case of the prosecution
before the Trial Court is that on 05.03.2017, accused
Nos.1 and 2 committed theft of Arecanuts of two quintal
which were kept in the Areca shed and the same was
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recovered at the instance of PW4 and PW8 since the
accused Nos.1 and 2 have sold the same to both of them
and on account of tracing of Arecanuts, on 18.08.2017
case has been registered and investigated the matter and
filed the Charge Sheet. The Trial Court issued the
summons and accused was secured and he did not plead
guilty. In order to prove the case of prosecution against
the accused persons, examined PW1 to PW11 and got
marked documents Ex.P1 to Ex.P14 and sample of
Arecanuts was marked as MO.1. The Trial Court having
considered the evidence of prosecution witnesses
particularly PW4 and PW8 from whom the Arecanuts were
recovered and also considering the other witnesses, comes
to the conclusion that prosecution has proved the case
against the accused persons and the accused have also
not lead any defense evidence. Being aggrieved by the
said order, an appeal is filed in Crl.A.No.5016/2020 before
the First Appellate Court. The First Appellate Court on
re-appreciation of both oral and documentary evidence
placed on record and in paragraph Nos.27 and 28 taken
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note of complaint of Ex.P1 and also the evidence of
witnesses particularly the evidence of PW9 who lodged the
compliant in terms of Ex.P1 and there was no any cross-
examination of PW11 except denying that he visited the
spot and drawn the mahazar and prepared the rough
sketch. Having assessed the evidence of the prosecution,
the First Appellate Court also comes to the conclusion that
does not find any reason to say that the said Arecanuts
were not seized at the instance of the accused from CW6
and CW7 and it does not belongs to the CW1 and also
comes to the conclusion that in the course of cross-
examination, it is denied that the accused was not given
any such voluntary statement and based on the voluntary
statement of the accused, only recovery is admissible and
in respect of the same, remaining cannot be relied upon,
but comes to the conclusion that CW6 and CW7 have
clearly deposes that at about 4 months of sale of
Arecanuts by the accused persons, the Police brought the
accused and minor contradictions does not affect the
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prosecution case and accepted the reasoning given by the
Trial Court.
4. Being aggrieved by the concurrent finding of
both the Trial Court and First Appellate Court, the present
revision petition is filed before this Court. The main
contention of the counsel appearing for the petitioner that
according to prosecution, theft was committed on
05.03.2017 and recovery was made on 18.08.2017 and
there was an inordinate delay in filing the complaint as
well as recovery. The complaint was registered on
07.03.2017 inspite of incident was taken place on
05.03.2017 and also with regard to the purchase of
Arecanuts from the accused and material particulars of the
date of purchase, identity of the Arecanuts and recovery of
the Arecanuts from the purchasers, there is a discrepancy
in the evidence. The investigation conducted by the PW11
is not fair and proper. The counsel also brought to notice
of this Court that mahazar conducted in the Police Station
and the same is admitted by the witnesses. There are
material contradictions with regard to the recovery is
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concerned and the very recovery is doubtful. Inspite of it,
the Trial Court and First Appellate Court accepted the case
of prosecution. The counsel would vehemently contend
that PW11 has clearly admitted that at the time of
recovery of Arecanuts from the purchasers, no mahazar
was conducted and there is no evidence as to on what
date the accused was sold the Arecanuts to the CW6 and
CW7. The very appreciation of evidence of both the Courts
is nothing but perversity and lost sight of contradictions
elicited from the mouth of prosecution witnesses.
5. Per Contra, the counsel appearing for the
respondent-State would vehemently contend that even
though there was two days delay in lodging the complaint
and recovery is made at the instance of the accused
through CW6 and CW7. Both the CW6 and CW7 who have
been examined as PW4 and PW8 have supported the case
of the prosecution and regarding identity of the Arecanuts
also, the complainant identified the same and there is a
credible evidence that these petitioners only have
committed theft of Arecanuts and mahazar witnesses
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evidence also credible and hence it does not requires any
interference.
6. Having heard the learned counsel for the
petitioner and also the learned counsel for the respondent
and also on perusal of material available on record, the
point that would arise for consideration of this Court are:
1) Whether the Trial Court and First Appellate
Court committed an error in appreciating
the evidence and the same amounts to
perversity and whether the impugned
orders suffers from its legality and
correctness?
2) What Order?
7. Having heard the counsel for respective parties
and also on perusal of material, particularly the factual
aspect of case of prosecution is that on 05.03.2017, two
quintal of Arecanuts which were kept in the Areca shed
belongs to the CW1 was missing and hence compliant was
given and the same was recovered on 18.08.2017 and
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hence, invoked the offence punishable under Section 379
of Indian Penal Code.
8. The prosecution in order to substantiate the
charges, mainly relies upon the evidence of PW1 and PW3,
the PW1 is the complainant and he says that they kept the
Arecanuts in the gowdon and with regard to the theft of
Arecanuts is concerned, he filed a complaint in terms of
Ex.P1. The Police have investigated the matter and in the
cross-examination it is elicited that house of accused No.2
is neighboring house of the PW1 and also admits that
accused Nos.1 and 2 are the Areca nut growers. It is
suggested in the cross-examination that there was a
galata between two family with regard to the conservancy
road and the same is denied but admits that there is a
conservancy road in between both the house of accused
No.2 and PW1. He also admits that witnesses are known to
him and also admits in the cross-examination that they
kept the same in the gowdon and it was locked.
9. The PW2 is the mahazar witness that is spot
mahazar and PW3 is the father of the PW1 and his
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evidence also in the similar evidence of PW1 and he only
says that accused only disclosed with the Police that they
committed theft of Arecanuts and the same was seized.
10. The other witness is PW4, according to the
prosecution who is the purchaser and he is the mahazar
witness to the Ex.P4 that is recovery of the Areca nut. He
says that he came to know about the accused No.2 while
selling the Arecanuts and did not disclose anything and
only Police informed about theft of Arecanuts and he
identifies the accused No.2. In the cross-examination, he
admits that he is not having any license to purchase the
Arecanuts and also not having any document of receipt for
having purchased the stolen article and also he admits
that he only took the Arecanuts and handed over the same
to the Police. The very evidence of PW4 goes to the very
route of the prosecution since he himself says that he took
the Arecanuts and handed over the same to the Police.
Hence, the very case of prosecution that recovery was
made at the instance of the accused through PW4 and
PW8 is doubtful.
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11. The other witness is PW8 and he also says that
he signed the mahazar in the Police Station that is Ex.P5
with regard to the recovery at his instance. The Police
seized one bag of Areca nut and says accused persons sold
four times 85 Kg each and Police have seized the same
after four months, but the accused persons told that the
same belongs to them, but through Police only came to
know about that the same was stolen Arecanuts, but he
claims that stolen Arecanuts bag was seized from him. In
the cross-examination, he admits that he has not
preserved any document from whom the Arecanuts were
purchased and Police came to know about the same after
3-4 months. The Police have not drawn any mahazar near
his house and also not taken any photographs for drawing
of mahazar.
12. The important witness is PW5 and he is the
mahazar witness and in his evidence he says that PW4 and
PW5 mahazar witnesses, but he had signed the same in
the Police Station. At the time of drawing of Ex.P4 and
Ex.P5, Police seized the same from CW6 and CW7 that is
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PW4 and PW8, but he again says that accused No.1
produced the same and seized the same from accused
No.1 and also says that the same was seized from CW7.
The PW6 is also the mahazar witness. The PW7 says that
he came to know about the theft of Arecanuts and
mahazar was drawn. The PW11 who conducted the
investigation and PW10 is the person who suspected and
apprehended the accused persons and he gave the reports
in terms of Ex.P8. He admits that while apprehending the
accused persons, he has not conducted any mahazar and
PW11 also says that CW1 told him that accused persons
sold the Arecanuts to CW6 and CW7. He gave notice to the
CW6 and CW7 to produce the Arecanuts and accordingly,
CW6 produced the same and seized. In the cross-
examination of PW11, he admits that he went to the spot
on the next day and he did not enquire how many
Arecanut bags were there in the gowdon and also he did
not mention the same in the Charge Sheet and also he did
not enquire from which plantation the same was harvested
and he did not enquire how many days back the same was
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harvested and also he did not recover any document for
having sold the same to the CW6 and CW7 and also he did
not enquire with regard to whether they are having license
to purchase the Areca nut.
13. Having considered the main evidence of PW1
and PW3 and they have not given any description in
respect of the Arecanuts is concerned and also MO.1 is
only a sample of Arecanuts and no bags were seized. It is
important to note that PW11 says that he gave the notice
to the CW6 and CW7 and they have produced the same
and drawn the mahazar and hence, the very case of
recovery at the instance of the accused from PW4 and
PW8 is also not proved by the prosecution. The evidence
of prosecution is contrary to the case of prosecution. The
PW11 says that he gave the notice and they have
produced. The witnesses says that seizure was made in
the Police Station and not in the house of PW4 and PW8
and there are material contradictions also. The PW5
evidence also contrary to the recovery is concerned. When
such being the case, when the recovery is not at the
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instance of the accused and only they came to know about
the same on apprehending the accused persons that they
have sold the Arecanuts to PW4 and PW8, but PW4 and
PW8 evidence is very clear that they only produced the
same based on the notice issued to them and recovery not
made at the instance of the accused persons that they
only took the I.O and other panch witnesses to the house
of PW4 and PW8. Hence, the same cannot be a recovery in
the eye of law.
14. It is important to note that according to
prosecution, theft was made on 05.03.2017 and recovery
was made on 18.08.2017 and normally in a course of
purchase and sale, nobody will keep the Arecanuts for a
period of 5 ½ months if they are businessman and they
used to purchase and sell the same in the market or to
any buyer and the very recovery also belongs to the PW1
and PW3, there is no description at all, nothing is seized
with regard to the same was in the bag and bags are not
seized and with regard to the identity of the same also,
the same belongs to the PW1 and PW3 also, there is no
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description and nothing in the case of the prosecution and
only PW10 says that only on suspicion, apprehended the
accused persons and no mahazar was drawn while
apprehending and only he gave the report. The PW11 also
categorically says that he did not conduct any mahazar at
the spot while seizing the same from CW6 and CW7, but
he categorically says that CW6 and CW7 only brought the
Arecanuts to the Police Station and produced the same
and these are the materials which are found and both the
Courts lost sight of contradictions and seizure is also not
at the instance of the accused and only on issuance of
notice, the same is produced in Police Station. When such
evidence is accepted by Trial Court as well as First
Appellate Court, both the Courts have committed an error
in not considering the matter in a proper prospective and
when the finding is not legal and recovery is not legal,
question of convicting and sentencing the petitioner does
not arise.
15. This revision petition is also filed by accused
No.2. Though reason was assigned by First Appellate Court
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in paragraph No.28 and observation is made that
voluntary statement of accused is admissible in evidence
only with regard to recovery and discovery and reliance
can be placed on the so called voluntary statement of the
accused, but relied upon the evidence of CW6 and CW7
that about four months of sale of Arecanuts by the
accused persons, Police brought the accused. In the case
on hand, no recovery at the instance of the accused and
hence, the finding of the Trial Court is not legal and
impugned order also suffers from its legality and
correctness. Hence, I answer the point as 'Affirmative'.
16. In view of the discussions made above, I pass
the following:
ORDER
i) The Revision Petition is allowed.
ii) The impugned order of conviction and sentence
passed in C.C.No.1097/2018 dated 04.09.2019
is set-aside. Consequently, confirmation order
passed in Crl.A.No.5016/2020 dated
09.02.2021 is also set-aside.
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iii) The accused No.2/revision petitioner is
acquitted for the offence punishable under
Section 379 of Indian Penal Code.
iv) Bail bonds are cancelled and if any fine amount
is deposited, ordered to return the same in
favour of the revision petitioner on proper
identification.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
