- 1 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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: THE STATE KAVOOR POLICE STATION 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 Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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. - 3 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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. - 4 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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 - 5 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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 - 6 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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. - 7 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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 - 8 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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. - 9 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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 - 10 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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 - 11 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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 - 12 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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: - 13 - HC-KAR NC: 2025:KHC:20300 CRL.RP No. 417 of 2018 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. 3. The accused is acquitted for the offences punishable under Sections 457 and 380 of IPC. 4. Fine amount deposited, if any, by the accused shall be refunded to him in accordance with law. 5. Registry is directed to send back the Trial Court Records along with a copy of this order. Sd/- (G BASAVARAJA) JUDGE AM List No.: 1 Sl No.: 11