- 1 - CRL.RP No. 717 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 717 OF 2018 BETWEEN: HABEEB RAHIMAN S/O LATE ABBU HUSSAIN, AGED ABOUT 35 YEARS R/AT: HOUSE NO.4/80, BRAMARAGUDI, BRAMARA KUTLU KALLIGE VILLAGE, BANTWAL TALUK D.K. DISTRICT-574222. …PETITIONER (BY SRI. LETHIF B., ADVOCATE) AND: THE STATE OF KARNATAKA BY MANGALURU SOUTH POLICE STATION, REP. BY S.P.P., HIGH COURT BUILDING, BANGALORE-560001. …RESPONDENT (BY SRI. M. DIVAKAR MADDUR, HCGP) THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT ORDER IN CRL.A.NO.290/2013 DATED 18.09.2017 PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE AND JUDGMENT AND ORDER DATED 06.08.2013 IN C.C.NO.33/2012 PASSED BY THE II ADDITIONAL SENIOR CIVIL JUDGE AND C.J.M., MANGALORE BY ALLOWING THE ABOVE REVISION PETITION AND ACQUIT THE PETITIONER. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - CRL.RP No. 717 of 2018 THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 07.07.2026, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH CAV ORDER Heard learned counsel for the petitioner and the learned High Court Government Pleader for the respondent. 2. This revision petition is filed against the concurrent finding of conviction and sentence passed in C.C.No.33/2012 and confirmation order passed in Criminal Appeal No.290/2013 and prayed this Court to set aside the conviction and sentence. 3. The factual matrix of case of the persecution is that on 04.07.2011 in the house belonging to C.W.1 and C.W.2, when the accused was repairing the broken cot and since the accused persons have not brought any instruments, C.W.2 has provided screwdriver and cutting pliers and other instruments to repair the cot. After repairing the cot, and thereafter, while repairing the water tap, at the advice of accused No.2, accused No.1 has stolen Mangalasutra having 18 havalas and 16 astapatti, totally weighing 80 grams worth Rs.1,25,000/- which - 3 - CRL.RP No. 717 of 2018 was kept in the drawer of dressing table in the bedroom of the house of complainant and thereby, the accused Nos.1 and 2 have committed the offence punishable under Section 380 of IPC. Hence, case was registered in Crime No.116/2012 and thereafter, investigation was conducted and recovery is made at the instance of accused and charge-sheet was filed. The accused did not plead guilty when they were summoned and claimed for trial. 4. The prosecution examined P.Ws.1 to 10 and got marked the documents Exs.D1 to D10 and M.O.1 and defence also got confronted document Exs.D1 to D4. 5. The Trial Judge having considered material available on record, convicted both the accused and sentenced to undergo imprisonment for a period of 2 years with fine of Rs.3,000/- for the offence punishable under Section 380 of IPC. The same was challenged before the First Appellate Court in Criminal Appeal No.290/2013. The First Appellate Court also confirmed the same. Being aggrieved by dismissal of the appeal as well as conviction and sentence, the present revision petition is filed before this Court. - 4 - CRL.RP No. 717 of 2018 6. The main contention urged by learned counsel for the petitioner/accused No.1 before this Court is that both the Courts below failed to appreciate the evidence of the prosecution witnesses. The Trial Judge on the evidence of P.W.5 and P.W.9, who are the official witnesses to the case of prosecution, convicted the petitioner. But, the independent witnesses have totally turned hostile to the case of prosecution. The counsel would contend that the Courts below considered the evidence of P.W.2 and P.W.3, who are the mahazar witnesses for spot mahazar and they have not fully supported the case of prosecution. The counsel would vehemently contend that very registration of case and recovery at the instance of the accused is doubtful and the same was taken note of by this Court while considering the revision petition filed by accused No.2 in Crl.R.P.No.1212/2017. The counsel would further contend that when the Co-ordinate Bench while considering the revision petition of accused No.2 comes to the conclusion that very seizure is doubtful and the allegations against both accused Nos.1 and 2 are similar. The case of prosecution is that this accused was arrested and recovery was made at the instance of this accused from the house of P.W.4. The counsel also vehemently contend that this petitioner was in custody for - 5 - CRL.RP No. 717 of 2018 almost more than six months from 09.07.2011 to 16.07.2011 during investigation and after conviction also, he was in jail from 13.02.2018 to 10.08.2018 till the date of suspension of sentence. The counsel also vehemently contend that the Trial Court has failed to consider Probation of Offenders Act and ought to have considered the same. 7. Per contra, the learned High Court Government Pleader for the respondent would submit that the evidence of P.Ws.4 to 6 is consistent regarding recovery at the instance of this accused and the Trial Court mainly considering the evidence of P.W.1, P.W.4, P.W.5 and P.W.6 and other official witnesses rightly convicted and sentenced the accused and question of exercising the power under revision does not arise and scope of revision is very limited. He would also submit that order of this Court acquitting accused No.2 will not come to the aid of this petitioner, since the very allegation against this petitioner is that he himself committed theft and sold the theft articles to P.W.4 and the recovery is also proved. 8. Having heard learned counsel appearing for the revision petitioner and also learned High Court Government Pleader appearing for the respondent-State and also reasoning - 6 - CRL.RP No. 717 of 2018 given by this court while acquitting accused No.2, the points that would arise for consideration of this Court are: (i) Whether the petitioner/accused No.1 is entitled for acquittal and the order of Trial Court and the First Appellate Court suffers from its legality and correctness? (ii) What order? Point No.(i) 9. Having heard respective counsel and also material available on record, the accusation made against this petitioner is that when accused Nos.1 and 2 went to the house of P.W.1 and P.W.5 to do repair work, the accused No.1 committed an offence of theft of Mangalasutra and 16 astapatti worth Rs.1,25,000/- and the same was sold to P.W.4 and recovery is made at the instance of this accused. At the time of selling the same, both accused Nos.1 and 2 went to P.W.4 and sold the same. Having perused the material on record, specific allegation made against this accused is that, at the instance of this accused itself, recovery is made. The evidence of prosecution is P.W.1. is the complainant and P.W.2 and P.W.3 are the mahazar witnesses and clinching witnesses are P.W.4 to - 7 - CRL.RP No. 717 of 2018 P.W.6 with regard to recovery at the instance of this accused is concerned. The witness P.W.1 speak about lodging of complaint and allegation made in the complaint. P.W.2 and P.W.3 are the mahazar witnesses to Ex.P2. Ex.P3 is the seizure mahazar. 10. P.W.4 is the witness, who had purchased M.O.1- Mangalasutra. In his evidence, he says that both accused Nos.1 and 2 came to him and sold Mangalasutra stating that the same belongs to wife of accused No.2 and he paid the amount of Rs.19,500/-. Thereafter, police brought accused No.1 to his shop and he took him to the house where he had kept the stolen article and recovery was made by drawing mahazar in terms of Ex.P3 and he also identifies his signature as Ex.P3(a). This witness was subjected to cross-examination and he categorically admits that he never did the business of pledging articles. It is also his evidence that accused No.2 was accompanied by accused No.1 and identifies accused No.1 stating that he is his relative and he gave the amount of Rs.19,500/- and the said amount was business amount for 10 days. It is his evidence that when the police came to his house, time was around 12.00 p.m. But, he categorically admits that when the police came to his house, no other persons were there and police took the said Mangalasutra and drawn the - 8 - CRL.RP No. 717 of 2018 mahazar. But, he cannot tell the person, who prepared the mahazar and the police were in police dress and neighbours did not come to the spot. Having taken note of evidence of P.W.4, it is very clear that only police personnel were there at the spot of seizure and no other persons were there and all the persons were in police dress. 11. P.W.5 is the wife of P.W.1 and she reiterates the evidence of P.W.1. In her cross-examination, she speaks nothing with regard to recovery as per Ex.P3. But, she was further examined and she identifies her signature in Ex.P3 as Ex.P3(c). In her further examination, she says that M.O.1 was recovered. But, in the cross-examination, she admits that after having handed over M.O.1, police showed the accused and she had signed Ex.P3 in the police station. Hence, it is clear that she is not a witness for recovery at the instance of this accused. 12. P.W.6 is a witness, in whose presence recovery was made. In his evidence, he says that he was called to the police station and he do not know, who gave his phone number to call him to police station. He says that accused No.1 and C.W.1 were present. But, during the course of cross-examination, he - 9 - CRL.RP No. 717 of 2018 categorically says that police have not recorded the statement in the police station and even, he did not speak to the accused on that day. But, he says that all of them went to the house of P.W.4. The statement made by him were confronted to this witness and he denies the same and the same are marked as Exs.D1 to D4. He also categorically admits that in the shop, no documents were seized from P.W.4 and no mahazar was drawn in the shop and the same was drawn in the house. But, while seizing the articles, his signature was not taken and affixed on the seized articles. 13. P.W.7 is Proprietor of M/s. Coastal printers and the visiting card in respect of the said company is marked as Ex.P5. His evidence is not material. 14. P.W.8 is the H.C., who speaks about seizure and also identifies his signature in Ex.P3 as Ex.P3(d). In his evidence, he says that panch witnesses also came along with him and this evidence is contrary to the evidence of P.W.4., in whose house seizure was made, since P.W.4 categorically says that no other persons, except the police and all the police persons were in police dress and he also categorically admits that his signature was not taken in the seized articles. - 10 - CRL.RP No. 717 of 2018 15. P.W.9 conducted the investigation and in his evidence he says that, no document for having taken accused No.1 into custody, but produced the accused along with the report. But, he says that along with him, accused, two police personnel, complainant and two panchas were there. This evidence is also contrary to the evidence of P.W.4. 16. P.W.10 is P.C, who apprehended the accused. 17. Having reassessed the material available on record, no doubt, the revisional Court cannot reassess the evidence, but the Court has to take note whether there is any miscarriage of justice. Having appreciated the evidence available on record, recovery is made at the instance of this accused according to the prosecution, that too, from the house of P.W.4. But, the evidence of P.W.4 is very clear that, except police, no other persons were there. But, the prosecution examined independent witness P.W.6 and his evidence is contrary to the evidence of P.W.4 and the official witness, who has been examined as P.W.7 categorically deposes that his signature was not taken on the seized articles and ought to have taken the same, in order to prove the fact of seizure. When such material is available before the Court and when there is a glaring error - 11 - CRL.RP No. 717 of 2018 on the part of Trial Court and the First Appellate Court in appreciating the evidence and failed to take note of very evidence of P.W.4, who is the purchaser of the articles and seizure was made in his house, in his evidence, he categorically says that no other persons other than the police and all the persons were in police dress, but he never speaks about the fact that in the presence of panch witnesses, articles were seized. This evidence does not inspire the confidence of the Court and both the Courts have lost sight of evidence available on record and in order to prove the fact of recovery, there must be cogent evidence before the Court and the same is not found. 18. This Court also while considering the case of accused No.2 in Crl.R.P.No.1212/2017 comes to the conclusion that very recovery is doubtful and extended the benefit of doubt in favour of accused No.2. In paragraph No.19, this Court comes to the conclusion that very seizure of Mangalasutra is doubtful and the fact remains that P.W.4 did not disclose the names of P.W.5 and P.W.6. P.W.5 categorically admitted that she had signed the mahazar in the police station and only on handing over the seized articles, the police showed the accused. Hence, the evidence of P.W.5 and P.W.6 cannot be believed and it appears to be doubtful. - 12 - CRL.RP No. 717 of 2018 19. Having reassessed the material available on record, it is very clear that accused No.1 also stands in the same footing as accused No.2. Even though there is recovery at the instance of this accused, the same does not inspire the confidence of the Court, since the same is doubtful and the order of the Trial Court and the First Appellate Court suffers from its legality and correctness warranting interference at the hands of this Court by exercising revisional powers or otherwise, it amounts to miscarriage of justice. Hence, I answer point No.(i) is ‘affirmative’. Point No.(ii) 20. In view of the discussion made above, I pass the following: ORDER (i) The criminal revision petition is allowed. (ii) The petitioner/accused No.1 is acquitted for the offence punishable under Section 380 of IPC. Consequently, the judgment of conviction and sentence passed by the Trial Court in C.C.No.33/2012 dated 06.08.2013 and also the confirmation order passed by the First Appellate Court in Criminal Appeal No.290/2013 dated 18.09.2017 are set aside. - 13 - CRL.RP No. 717 of 2018 (iii) The bail bond executed by the revision petitioner, if any stands cancelled. Sd/- (H.P.SANDESH) JUDGE ST