Karnataka High Court

Nithesh Moras @ Roshan Rodrigues vs The State on 13 June, 2025

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                                                         CRL.RP No. 417 of 2018


                      HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                               DATED THIS THE 13TH DAY OF JUNE, 2025

                                               BEFORE
                               THE HON'BLE MR JUSTICE G BASAVARAJA
                          CRIMINAL REVISION PETITION NO. 417 OF 2018
                                      (397(Cr.PC) / 438(BNSS))
                      BETWEEN:

                      NITHESH MORAS @ ROSHAN RODRIGUES
                      S/O NICHOLAS RODRIGUES
                      AGED ABOUT 28 YEARS
                      R/O HOUSE NO.173
                      KESHAVA NAGAR, PADIL
                      KARIMANELU HOUSE, VENUR
                      BELTHANGADY TALUK
                      D.K.DISTRICT-574 225
                                                                   ...PETITIONER
                      (BY SRI. T. RADHAKRISHNA SHETTY, ADVOCATE)

                      AND:


Digitally signed by
                      THE STATE
LAKSHMINARAYAN N
Location: HIGH
                      KAVOOR POLICE STATION
COURT OF
KARNATAKA             MANGALURU
                      REPRESENTED BY STATE PUBLIC PROSECUTOR
                      HIGH COURT OF KARNATAKA AT
                      BANGALORE-560 001
                                                                 ...RESPONDENT
                      (BY SRI. M.R. PATIL, HCGP)

                             THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
                      PRAYING TO SET ASIDE THE ORDER PASSED BY THE HON'BLE
                      III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, MANGALORE,
                      D.K., IN C.C.NO.29/2010, DATED 02.06.2014 AND ALSO THE
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                                            NC: 2025:KHC:20300
                                       CRL.RP No. 417 of 2018


HC-KAR



CONFIRM ORDER PASSED BY THE HON'BLE I ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MANGALORE IN CRL.APPEAL
NO.143/2014,    DATED     12.04.2017     AND      ACQUIT   THE
APPELLANT/REVISION      PETITIONER   WHO     IS   IN   JUDICIAL
CUSTODY.

     THIS PETITION, COMING ON FOR FURTHER HEARING,

THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM:     HON'BLE MR JUSTICE G BASAVARAJA


                        ORAL ORDER

The revision petitioner has preferred this revision

petition against the judgment of conviction and order on

sentence passed by the III Additional Senior Civil Judge

and J.M.F.C., Mangalore, D.K in C.C.No.29/2010 dated

02.06.2014, which is confirmed by the I Additional District

and Sessions Judge, D.K., Mangalore in Crl.A.No.143/2014

dated 12.04.2017.

2. Parties to this revision petition are referred to

as per their rank before the Trial Court.

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3. The brief facts leading to this revision petition

are that:

The Kavoor Police of Mangalore city have filed the

charge sheet against the accused under Sections 457 and 380

of IPC. It is alleged by the prosecution that, on 24.07.2009,

during early hours, about 1.30 a.m, at Kuloor Junction,

Padukodi village of Mangalore taluk, the accused along with one

Juvenile has committed lurking house trespass into the shop of

the complainant and committed theft of mobile sets worth

Rs.24,250/- and in pursuance of the same, the complainant has

given complaint to the police and the concerned police have

registered the complaint and after investigation they have filed

charge sheet against the accused for the offence punishable

under Sections 457 and 380 of IPC.

4. After filing the charge sheet, cognizance was taken

by the Magistrate and case was registered in C.C.No.29/2010,

summons was issued to the accused. In response to the

summons, accused appeared before the Trial Court and

enlarged on bail.

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5. On hearing, the charges were framed against the

accused for the alleged commission of offences punishable

under Sections 457 and 380 of IPC and same was read over

and explained to the accused in the language known to him.

Having understood the same, accused pleaded not guilty and

claimed to be tried.

6. To prove the guilt of the accused, the

prosecution had examined 7 witnesses as PW.1 to PW.7

and 4 documents were marked as Exs.P1 to P4. Accused

had totally denied the evidence of prosecution witnesses,

and submitted his written statement under Section 313 of

Cr.P.C, but he has not chosen to lead any defence

evidence on his behalf.

7. Having heard the arguments on both sides, the

Trial Court has convicted the accused for the commission

of the offences punishable under Sections 457 and 380 of

IPC and passed the sentence.

8. Being aggrieved by the judgment of conviction

and order on sentence passed by the Trial Court, the

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accused has preferred the appeal before the I Additional

District and Sessions Judge, D.K., Mangalore, in

Crl.A.No.143/2014, same came to be dismissed on

12.04.2017.

9. Being aggrieved by this judgment of conviction

and order on sentence passed by the Trial Court, which is

confirmed by the Appellate Court, the revision petitioner

has preferred this revision petition.

10. Learned counsel for the revision petitioner

would submit that the revision petitioner has not

committed any offence as alleged against him; there are

absolutely no reasonable grounds to believe that revision

petitioner has committed the alleged offence. The

allegations made in the complaint are totally false.

Further, he would submit that the material witnesses have

supported the case of the prosecution. The alleged theft

took place on 24.07.2009 at 1.30 a.m at Kuloor Junction,

Padukodi village. After a lapse of 36 days, the police have

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arrested this accused and prepared seizure mahazar -

Ex.P4. The prosecution has not placed any materials to

show that the police officials were deputed to trace out the

accused in Crime No.89/2009. The accused was falsely

implicated in this case. The recovery is not proved by the

prosecution by placing legally acceptable evidence before

this Court. However, the Trial Court has convicted the

accused without proper appreciation of the evidence on

record. The Appellate Court has also failed to appreciate

the evidence on record in accordance with law and facts.

Hence, he sought to allow this revision petition.

11. As against this, Sri. M.R.Patil, learned High

Court Government Pleader, would submit that both the

Courts have properly appreciated the evidence on record

in accordance with law and facts and there are no grounds

to interfere with the impugned judgment of conviction and

order on sentence passed by the Trial Court, which is

confirmed by the Appellate Court. Hence, he sought for

dismissal of the revision petition.

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12. Having heard the arguments of both sides and

on perusal of the records, the following points would arise

for my consideration.

1. Whether the impugned judgment of conviction and order on sentence passed by the Trial Court, which is confirmed by the Appellate Court, is illegal, perverse, capricious and suffers from legal infirmities?

2. What order?

13. My answers to the above points are as under:

     Point No.1:        In the affirmative.

     Point No.2:        As per the final order.


Regarding Point No.1

14. It is the case of the prosecution that, in the

early hours on 24.07.2009, at Kuloor Junction, Padukodi

village of Mangalore taluk, the accused, along with one Juvenile

has committed trespass into the shop of the complainant and

committed theft of mobile sets worth Rs.24,250/- and in

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pursuance of the same, the complainant has given complaint to

the police and the concerned police have registered the

complaint and after investigation, they have filed charge sheet

against the accused for the offences punishable under Sections

457 and 380 of IPC. On the basis of the complaint filed by

PW.1 - Sri. Sirajuddin, the owner of Mobile Shop as per Ex.P1,

on 25.07.2009 at 18.30 hours, the Kavoor police registered the

case in Crime No.89/2009 against the unknown accused for the

offences punishable under Sections 454, 457 and 380 of IPC

and submitted FIR to the Court on 27.07.2009 at 10.45 a.m.

The date and time of the dispatch to the Court is shown in

column No.15 of the FIR that on 25.07.2009 at 19 hours, the

FIR was dispatched to submit the same to the Court. However,

only after two days i.e., on 27.07.2009 at 10.45 a.m, the FIR

came to be submitted to the Court. The delay in submitting the

FIR to the Court has not been explained by the prosecution.

The Investigation Officer, the PW.7 has not whispered anything

in this regard. The delay in submitting the FIR to the Court will

create reasonable doubt as to the alleged act on the part of the

accused.

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15. It is the case of the prosecution that the

Investigating Officer has conducted the spot mahazar as per

Ex.P2 in the presence of panchas on 26.07.2009. Though the

mahazar was conducted on 26.07.2009, he has not submitted

the same to the Court. Only at the time of filing the charge

sheet, Ex.P2 is produced by the Investigating Officer. Before

filing the FIR to the Court, the Investigating Officer has

conducted this mahazar on 26.07.2009. In this regard also,

the Investigating Officer has not explained anything. This

conduct of Investigating Officer will also create doubt about this

mahazar.

16. It is the case of the prosecution that on

30.08.2009, the PSI and the Head Constable 1799 - Vijaya Raj,

PC 329 - Rajesh Alva and PC 566 - Isaac were deputed on

special duty to trace out the accused and properties involved in

the crimes registered in their police station. They were

proceeding in the departmental jeep bearing registration

No.KA-19-N-454 and reached near Nanthur junction, Kavoor, at

10.15 a.m and found this accused Roshan Rodrigues, who was

possessing one bundle in his hand. On seeing them, the

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accused tried to escape, and then they apprehended him and

enquired as to the plastic bundle held by him. He has not

properly answered. On enquiry, he revealed that he was

released from the jail on 18.07.2009. Since there is a financial

crisis, he and Sandeep committed theft of mobiles on

14.07.2009 and they have sold some mobiles and have

remaining mobiles in their possession. The Investigating

Officer has not produced any documents to show that this

accused was in judicial custody and he was released on

18.07.2009. This Ex.P4 does not reveal that these mobiles are

pertaining to the property stolen on 24.07.2009. The

Investigating Officer has not placed any materials to show that

they were deputed to trace out the accused and properties

involved in old cases pertaining to the police station.

17. PW.2 - Sri. Musthafa and PW.3 - Roshan Koreya,

said to be attesters to the seizure mahazar - Ex.P4, have not

supported the case of the prosecution. Even in their cross-

examination, they have categorically denied the contents of

Ex.P4 and also seizure of 7 Nokia mobiles, said to have been

seized by the police. Another interesting point is that, the

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complainant has also put his signature on Ex.P4. PW.1 has also

deposed that he has put his signature on Ex.P4 as Ex.P4(b).

18. PW.7, the Investigating Officer, has not deposed his

evidence as to the presence of PW.1 at the time of seizure of

this mahazar. Even another Police Constable, PW.6 -

Sri. Rajesh Alva, has also not deposed as to presence of PW.1

at the time of seizure of these properties. PW.1 also not

deposed in his examination-in-chief that police summoned him

to the police station and took him to the spot of seizure

mahazar. However, police have taken their signature on Ex.P4

- seizure mahazar. It is admitted fact that Investigating Officer

has not summoned the local panchas to conduct the mahazar -

Ex.P4. The mahazar witnesses have not supported the case of

the prosecution even in their cross-examination made by the

Assistant Public Prosecutor after treating them as hostile

witnesses. The prosecution has failed to elicit any favourable

answers from them. The delay in submitting the FIR to the

Court and conducting spot panchanama - Ex.P2 before

submitting FIR to the Court and obtaining of signature of the

complainant on Ex.P4 not being explained by the Investigating

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Officer, will create doubt about the arrest of the accused on

30.08.2009 as alleged by the prosecution. The materials

placed before me clearly indicates that the Investigating Officer

has created Ex.P4 - seizure mahazar only for implication of this

accused. Without proper investigation the IO has mechanically

submitted the charge sheet against the accused, which is not

sustainable under law.

19. Viewed from any angle, I do not find any legally

acceptable evidence placed before this Court. However, both

the Courts have not properly appreciated the evidence on

record in a perspective manner and passed the impugned

orders. Hence, the judgment of conviction and order on

sentence passed by the Trial Court, which is confirmed by the

Appellate Court is illegal, perverse, capricious and suffers from

legal infirmities. Hence, I answer the above point No.1 in the

affirmative.

Regarding Point No.2.

20. For the aforesaid reasons and discussions,

I proceed to pass the following:

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ORDER

1. The revision petition is allowed.

2. The judgment of conviction and order on sentence passed in C.C.No.29/2010 by the III Additional Senior Civil Judge and J.M.F.C., Mangalore, D.K. dated 02.06.2014, which is confirmed by I Additional District and Sessions Judge, D.K., Mangalore, in Crl.A.No.143/2014 dated 12.04.2017, are set aside.