Basha @ Khaleel Basha vs The State Of Karnataka
2025 Latest Caselaw 9743 Kant

Karnataka High Court

Basha @ Khaleel Basha vs The State Of Karnataka on 4 November, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                             NC: 2025:KHC:44435
                                                        CRL.RP No. 1466 of 2018


                  HC-KAR




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                        DATED THIS THE 4TH DAY OF NOVEMBER, 2025
                                            BEFORE
                           THE HON'BLE MR. JUSTICE RAVI V HOSMANI
                      CRIMINAL REVISION PETITION NO. 1466 OF 2018
                 BETWEEN:

                      BASHA @ KHALEEL BASHA
                      S/O AMEER SAB,
                      AGED 52 YEARS,
                      R/AT CHANDRAGUTTI VILLAGE,
                      SORABA TALUK,
                      SHIVAMOGGA DISTRICT - 577 429.
                                                                   ...PETITIONER
                 [BY SRI P.B.UMESH, ADVOCATE FOR
                     SRI RAVINDRA B. DESHPANDE, ADVOCATE]

                 AND:
                       THE STATE OF KARNATAKA
                       BY SORABA POLICE STATION,
                       SORABA, SHIVAMOGGA DISTRICT - 577 429.

                       REP BY STATE PUBLIC PROSECUTOR,
                       HIGH COURT BUILDINGS,
                       BENGALURU - 560 001.
Digitally signed by                                               ...RESPONDENT

GURURAJ D [BY SRI HARISH GANAPATHY, HCGP] Location: High Court of Karnataka THIS CRL.RP FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 28.09.2018 PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT SAGAR IN CRL.A.NO.98/2016 AND THE JUDGMENT AND ORDER DATED 18.11.2016 PASSED BY THE CIVIL JUDGE AND JMFC, SORABA, IN C.C.NO.77/2008 (CONVICTED FOR THE OFFENCE PUNISHABLE UNDER SECTION 457, 380 OF IPC) AND ACQUIT THE PETITIONER/ACCUSED NO.1 OF ALL THE CHARGES LEVELED.

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THIS PETITION IS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 15.10.2025, THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

CAV ORDER

Challenging judgment dated 28.09.2018 passed by V

Addl. District and Sessions Judge, Shivamogga, sitting at

Sagar, in Crl.A.no.98/2016 confirming judgment of conviction

and order of sentence dated 18.11.2016 passed by learned

Civil Judge and JMFC, Soraba, in C.C.no.77/2008, this revision

petition is filed.

2. Sri PB Umesh, learned counsel appearing for Sri

Ravindra B. Deshpande, Advocate for petitioner submitted

revision petition was by accused no.1 against concurrent

findings convicting him for offences punishable under Sections

457 and 380 of Indian Penal Code, 1872, ('IPC', for short) and

sentencing him to undergo simple imprisonment for period of

one year each with fine of Rs.5,000/- and in default to pay fine,

to undergo simple imprisonment for three months each.

3. As per prosecution, on night of 25.09.2007,

accused committed lurking house trespass by breaking open

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door lock and entering into room of Kummuru Government

Higher Primary School and committing theft of one LPG cylinder

kept there worth Rs.1200/-. And at 1:30 a.m. on 04.10.2007,

when police on beat duty near Hospete Hakkalu and stopped

Esteem Car, they found four persons inside car including

accused along with three LPG cylinders. On being apprehended,

they admitted to have committed theft of LPG cylinders from

Kummuru School.

4. After registration of FIR and completion of

investigation, charge-sheet was filed against three accused. As

accused no.2 was absconding, case against him was split-up. In

order to establish charges, prosecution relied on eight

witnesses examined as PWs.1 to 8, documents marked as

Exs.P1 to P7 and MOs.1 and 2. It was submitted, PW.5 -

witness to Ex.P1 - Mahazar, turned hostile and did not support

prosecution case. However, accused were appraised of

incriminating material, their denial of same was recorded as

their statement under Section 313 of Code of Criminal

Procedure, 1973, ('Cr.P.C', for short). Accused did not lead any

rebuttal evidence.

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5. It was submitted, though prosecution has failed to

establish charges beyond reasonable doubt and same was

highlighted by accused, without proper consideration, learned

Trial Judge, proceeded to pass impugned order of conviction.

Even though accused challenged it, appeal was dismissed

without proper appreciation leading to this revision.

6. It was submitted, there were several material

inconsistencies in prosecution version. PW.1 deposed that on

04.10.2007, when he was on night patrol, one Esteem car was

found transporting three gas cylinders including one belonging

to School of PW.4 - complainant. But, in cross-examination, he

stated that vehicle transporting Gas Cylinders was an Omni Car

and reiterated same in further cross-examination. It was

submitted, said inconsistency was fatal to prosecution case.

7. It was submitted, PW.2 stated to be witness to

Ex.P1 - Mahazar admitted that he was unaware of contents of

Ex.P1 and further stated that when he went to School, there

were no one else. And during cross-examination of PW.3, an

admission that mahazar was not drawn at spot and Gas

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cylinder numbers were not noted was elicited. And though PW.4

stated that Ex.P2 - Mahazar was signed in School, his

statement that door of School Kitchen was not sturdy would

materially contradict case of prosecution that door lock was

broken. It was submitted that PW.4 specifically admitted that

Ex.P1 - Mahazar were signed in Police Station.

8. It was submitted, PW.5 did not support prosecution

case at all. While PW.6 admitted that vehicle used for alleged

transportation was not seized at all. He also admitted that he

was not party to Ex.P1 - mahazar and that accused were

apprehended by other Police. It was submitted, PW.8 cited as

mahazar witness admitted that he was not summoned to be

mahazar witness and further admitted to have signed mahazar

in police station. PW.7 - investigating Officer admitted drawing

of panchanama. A suggestion made that panchanama was not

drawn at spot was denied.

9. It was submitted, as per complainant, incident

occurred on 25.09.2007, whereas, complaint was lodged on

26.09.2007, indicating delay of one day in filing complaint. It

was further submitted, admittedly there were no eye witnesses

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and prosecution had failed to disclose and establish role of each

of accused in commission of offences as alleged. It was

submitted, charge-sheet did not include Section 34 of IPC

amongst charges. It was contended, both Courts failed to

notice that prosecution was relying mainly upon official

witnesses to establish charges. They failed to note said

witnesses would be duty bound to support prosecution and as

such, would be interested witnesses. Further, Exs.P4 to P.6

indicated drawing of Ex.P.7 - mahazar at police station. It was

submitted, when prosecution failed to establish necessary

ingredients for constituting commission of offences either under

Sections 457 or 380 of IPC, order of conviction passed were

unsustainable and sought for allowing revision petition.

10. On other hand, Sri Harish Ganapathy, learned HCGP

opposed petition. It was submitted, prosecution had

substantiated its case against accused by examining no less

than 8 witnesses and 7 documents, apart from two material

objects. It was submitted, except PW.5, all other witnesses

supported prosecution case. It was submitted, both Courts on

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careful evaluation of same, had concurrently convicted accused

for offences punishable under Sections 457 and 380 of IPC.

11. It was submitted, all prosecution witnesses

including PW.1 had consistently described vehicle in which

stolen Gas Cylinder was being transported by mentioning its

registration number. Under such circumstance, discrepancy in

description of vehicle as Omni Car, while stating it to be a

Esteem Car in Examination-in-chief would not be material so as

to render findings of trial Court and appellate Court as

perverse.

12. It was submitted, PW.4 had specifically stated that

entry into Kitchen room of School was by breaking open lock.

Therefore, statement by PW.4 that School Kitchen door could

be broke open with slight force would not erase or dilute his

deposition about manner of accused gaining entry into School

Kitchen. It was further submitted, there was no denying of fact

that stolen Gas Cylinder was found in vehicle along with

accused. Hence, ingredients for commission of offences as

alleged. Further, omission to mention Section 34 of IPC in

charge-sheet would not be fatal, as same was duly added and

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mentioned in charges framed against accused and trial held

with such inclusion. On above grounds, sought for dismissal of

revision petition.

13. Heard learned counsel and perused material on

record.

14. From above, this revision petition is by accused

no.1 and 3 against concurrent findings, convicting them for

offences under Sections 457 and 380 of IPC i.e. offences of

theft in dwelling house and lurking house trespass.

15. In order to constitute offence under Section 380 of

IPC, prosecution would require to establish following

ingredients namely:

i) theft;

ii) in a dwelling house;

iii) used for custody of property.

16. Likewise, for offence under Section 457 of IPC,

prosecution would require to establish following ingredients

namely:

i) trespass or house-breaking at night;

ii) with intention to commit offence.

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17. Apart from above, since four accused were

arraigned, prosecution would require either to establish that

they committed offences with common intention rendering each

of them equally liable for punishment of conviction.

18. It is seen, prosecution relied on eight witnesses,

seven exhibits and two material objects. While passing

impugned judgment, trial Court examined, whether prosecution

proved that on night of 25.09.2007 accused committed lurking

house trespass by breaking open lock entering kitchen of

School and committed theft of LPG Cylinder kept there and

committed offences punishable under Sections 457 and 380 of

IPC.

19. To establish commission of offences as alleged,

PW.1, police officials i.e., constable who had intercepted Car

and apprehended accused was examined as PW.1, who

deposed that on night of 04.10.2007, when he along with other

police was on night beat duty at Hosapete Hakkalu, they

intercepted one car with accused and in it transporting three

LPG Cylinders one of which was on investigation found to be

Gas Cylinder stolen from School.

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20. His statement is supported by PW.3, who

accompanied PW.1 on night patrol on 04.10.2007 and PWs.6

and 7 - Investigation Officers, who deposed about registration

of FIR, conducting investigation, arrest of accused, drawing up

of mahazar, seizure of damaged lock and filing of charge-sheet.

Mahazar witnesses were examined as PWs.2, 5, and 8. Except

PW.5, others deposed about drawing of mahazar at place of

incident and seizure of broken lock. Apart from above,

complainant is examined as PW.4.

21. First ground urged is discrepancy in description of

car, stating it to be a white Esteem Car bearing registration

no.KA-25-N-3141 in examination-in-chief, but, in cross-

examination stating it, as Omni Car.

22. Perusal of impugned judgments do not indicate that

such contention was urged before trial/Appellate Court.

Normally, a vehicle is identified by its registration number,

which is clearly stated in chargesheet, in depositions of PWs.1

and 3. Moreover, there is no specific suggestion about

implicating different vehicle for purpose of charge. Therefore,

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discrepancy cannot be stated to be material so as to upset

conviction.

23. Next contention is about admission by PW.2 about

being unaware of contents of Ex.P1 - Mahazar and stating that

during his visit to school, there were no others and PW.4

admitting about signing Mahazar in P.S., discrediting Mahazar.

However, Mahazar was drawn by PW.7-I.O., who duly

supported it.

24. While passing impugned judgment, trial Court

observed that in cross-examination of PW.4-complainant,

suggestions were made by accused about drawing of mahazar

at place of incident and PW.4 signing it in P.S., would amount

to admission by accused about drawing of mahazar at school

and therefore his admission that it was signed at Police Station

would not discredit mahazar.

25. Insofar as admission by PW.4 about door of School

Kitchen being weak and liable to break open with slight push,

to contend that prosecution failed to establish house breaking

or that such building was used for custody of property. It is

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seen, there is no dispute about School Kitchen having a door

with lock. Seizure of Broken lock MO-2 is established by Ex.P1 -

Mahazar. Hence, regardless of such door being weak, its usage

for custody of property cannot be disputed.

26. Admittedly, there are no eye-witnesses or

circumstantial witnesses/evidence to implicate each of accused

to commission of offences as alleged. Prosecution case relies

heavily on recovery of stolen LPG Cylinder from vehicle in which

accused were traveling.

27. Column-17 of charge-sheet filed does not either

mention that accused had acted with common intention nor

Section 34 of IPC was invoked by prosecution. Section 34 of

IPC is included only at time framing of charges by trial Court.

In fact, none of prosecution witnesses also deposed about

common intention of accused.

28. Prosecution case at best establishes accused were

traveling in a Car from which three LPG Cylinders (including

stolen one) were recovered, which would not be sufficient to

support their conviction. In this regard, it would be useful to

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refer to decision of Hon'ble Supreme Court in case of SD

Shabuddin v. State of Telangana, reported in 2025 INSC

999, wherein it is held:

"9. Learned counsel for the appellant strenuously urged that the prosecution has failed to prove beyond reasonable doubt that the property held by the appellant is a stolen property, and belonged to the deceased. To bring home the charges under Section 411 IPC, the prosecution must establish that the person receiving or retaining the stolen property must have knowledge or belief that the same is a stolen property. Mere possession of the stolen property is not enough, and it must be proved by the prosecution that there was knowledge about the property being stolen. Hence, the belief or knowledge factor is sine qua non to give a finding of guilt for offence punishable under Section 411 IPC.

9.1. It was further contended that in the present case, the prosecution has failed to prove that the appellant had either knowledge or belief that the money that he had received from accused-Moulana was stolen property. This assertion is further fortified by the concurrent acquittal of both of the accused persons under Section 379 IPC by the High Court and the Trial Court. As both of them were acquitted for the offence of theft, the Courts below grossly erred to return a finding that the appellant was guilty for dishonestly receiving stolen property under Section 411 IPC."

29. Similar view is expressed in Jasdeep Singh v.

State of Punjab, reported in (2022) 2 SCC 545.

30. Thus, prosecution was required to establish that all

accused had acted with common intention, but records do not

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reveal any material to said effect nor impugned judgments

contain any discussion about said aspect. As such, they would

be contrary to material on record and perverse.

31. In view of above, Revision Petition is allowed.

Judgment dated 28.09.2018 passed by V Addl. District and

Sessions Judge, Shivamogga, sitting at Sagar, in

Crl.A.no.98/2016 confirming judgment of conviction and order

of sentence dated 18.11.2016 passed by learned Civil Judge

and JMFC, Soraba, in C.C.no.77/2008, is set-aside. Petitioner-

accused no.1 is acquitted of offences punishable under Sections

457 and 380 of IPC.

Sd/-

(RAVI V HOSMANI) JUDGE

Psg*/AV/GRD