CRL.RP/438/2013 of AMARESH Vs STATE OF KARNATAKA BY on 29 December 2022

ORDER

This Criminal Revision Petition is filed by the petitioner being aggrieved by the judgment of conviction and order of sentence dated 21.06.2011 in C.C.No.243/2010 on the file of learned JMFC at Bilagi and also its confirmation order dated 07.05.2013 in Crl.A.No.14/2012 on the file of learned Sessions Judge, Bagalkot, wherein the accused is convicted for the offence under section 379 of IPC and is sentenced to undergo rigorous imprisonment for 2½ years.

2. For the sake of convenience, the parties would be referred to as per their rankings before the trial Court.

3. Brief facts of the case are as follows:

On 27.01.2008, at about 5.15 p.m., the complainant namely Siddaramappa Talikoti lodged a complaint stating that on 26.01.2008, when he was proceeding to Galagali from Bagalkot to purchase sugar, he lost his amount while traveling in a bus. It is further stated in the complaint that he was carrying an amount of Rs.2,65,000/- and he suspected the person who was sitting next to him. It is further stated that, he has noticed about the theft when he got down from the bus and went for having cup of tea near the tea shop. Immediately, he rushed to the police station and lodged a complaint. A case came to be registered in Crime No.10/2008 for the offence under Section 379 of IPC. The police have conducted the investigation and submitted the charge sheet.

4. Heard SriM.J.Peerjade, learned counsel for the petitioner and Sri Ramesh Chigari, learned HCGP for the respondent – State.

5. Sri M.J.Peerjade, learned counsel for the petitioner submits that the police have filed a false case against the accused and Trial Court has not appreciated the evidence properly. While appreciating the evidence of the witnesses, the Trial Court committed an error, therefore, the judgment of conviction and its confirmation by the Appellate Court require to be set aside.

6. It is further submitted that, the alleged incident had taken place on 26.01.2008 and the accused was arrested on 28.01.2010. It is highly improbable that the accused was having the said amount without spending since two years. Though, the Investigating Officer stated to have recovered the amount from the accused, the recovery mahazar and its witnesses have not supported the case. It is further submitted that, the alleged recovery itself is doubtful, the Trial Court convicted the accused which is unsustainable. As such, the learned counsel for the petitioner prays to allow the petition.

7. Per contra, learned HCGP, while justifying the judgment of conviction, submits that, the PSI of Hirebagewadi police arrested the accused on 28.01.2010, on suspicion, when the accused was enquired, he was found in possession of gold ornaments and cash of Rs.6,09,000/-. The PSI prepared seizure panchanama and

registered the case in Crime No.22/2010 of Hirebagewadi P.S., for the offence under section 41(d) read with 102 of Cr.P.C., and intimated to all the police stations regarding seizure of stolen properties. The complainant police after coming to know about the intimation and about the arrest of accused, approached to the police station and interrogated the accused and conducted seizure panchama of the amount. It is further submitted that, the witnesses to the seizure mahazar have supported the case and the recovery is proved. The accused has admitted that he has committed an offence, therefore, the Trial Court rightly convicted the accused and the Appellate Court confirmed the same appropriately. Therefore, learned HCGP prays to dismiss the petition filed by the petitioner.

8. After having heard learned counsel for the parties and also perused the records, the points which arise for my consideration are:

(i) Whether the concurrent findings of conviction recorded by the both the Courts are sustainable? conviction recorded by the both the Courts are sustainable?

(ii) Whether the petitioner has made out grounds to interfere with the concurrent findings of conviction? out grounds to interfere with the concurrent findings of conviction?

9. To answer the above points, it is relevant to refer the evidence of material witnesses. PW.1 is the complainant. It is alleged in his complaint that, he has lost Rs.2,65,000/- when he was traveling to Bagalkot. PW.2 and PW.3 are the witnesses to the panchanama which was recorded while conducting the panchanama of the bus. PW.4 and PW.5 are the witnesses to the spot panchanama. PW.7 is the witness to the handbag mahazar panchanama. PW.6, PW.10 and PW.11 are the hearsay witnesses to the alleged incident. PW.8 is the recovery mahazar witness. PW.9 is the eyewitness to the incident. PW.12 is the driver of the bus.

10. Though the prosecution relied on the evidence of PW.9, he has not supported the case and he has not identified the accused. PW.8 – Basanagouda Naganagouda Patil, being the recovery mahazar witness, has deposed that, the Hirebagewadi police have drawn mahazar near mosque and the said mahazar was marked as Ex.P6. He has identified the articles seized from the possession of the accused which are marked as MO.1 to MO.12. It is to be noticed here that, PW.8 was supplying tea and food to the police officials at the police station and he was running a hotel near the police station. Therefore, the evidence of PW.8 should have been considered with independent corroboration. Appreciating the evidence as independent witness to the seizure mahazar is erroneous. Therefore, the said recovery cannot be accepted.

11. Admittedly, the police have registered a case regarding theft of Rs.2,65,000/- on 27.01.2008 and the accused was arrested on 28.01.2010. It is alleged that, amount of Rs.6,09,000/- and golden articles worth Rs.1,73,000/- were recovered at the instance of the accused in presence of PW.8 is highly improbable and unbelievable. It cannot be expected that, the accused had amount with him which he has stolen in the year 2008.

Therefore, it appears that, the Trial Court and the Appellate Court committed a grave error in holding that, the amount of Rs.2,65,000/- was recovered at the instance of the accused. Therefore, the findings recorded by the subordinate Courts with regard to recovery of the amount alleged to have stolen in the year 2008, on 28.01.2010 is unsustainable. Therefore, the concurrent findings recorded by the trial Court and the Appellate Court with regard to the conviction of the accused are liable to be set aside.

12. In the light of the observations made above, the points which arose for my consideration are answered.

Point No.1 in the “Negative”

Point No.2 in the “Affirmative”

Hence, I proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The impugned judgment of conviction and order of sentence dated 21.06.2011 in C.C.No.243/2010 on the file of the learned order of sentence dated 21.06.2011 in C.C.No.243/2010 on the file of the learned Bss JMFC, Bilagi and also its confirmation order dated 07.05.2013 in Crl.A.No.14/2012 on the file of learned Sessions Judge, Bagalkot, are set aside.

(iii) The accused is acquitted for the offence under section 379 of IPC.

(iv) The bail bonds executed, if any, stand cancelled. cancelled.

Sd/- JUDGE