Research › Search › Judgment

High Court of Karnataka · body

2025 DAILYLAW 18620 (KAR)

SRI PRADEEPA @ KABHALI v. THE STATE OF KARNATAKA

CRL.RP/468/2021 · 2025-02-27

H P Sandesh

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO. 468 OF 2021 BETWEEN: 1. SRI. PRADEEPA @ KABHALI S/O MAHENDRAPPA AGED ABOUT 27 YEARS AGRICULTURIST R/AT SANYASI KODAMAGGI HOSUR VILLAGE BHADRAVATHI TALUK SHIVAMOGGA DISTRICT-577301 …PETITIONER (BY SRI. CHETAN JADHAV, SENIOR COUNSEL) AND: 1. THE STATE OF KARNATAKA BY HOLEHONNUR POLICE STATION BHADRAVATHI TALUK REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU-560001 …RESPONDENT (BY SRI. M.DIVAKAR MADDUR, HCGP) THIS CRL.RP IS FILED UNDER SECTION 397 R/W 401 OF CR.P.C PRAYING TO SETTING ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 09.02.2021 PASSED BY THE LEARNED BY THE IV ADDITIONAL DISTRICT AND Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 SESSIONS JUDGE, SHIVAMOGGA SITTING AT BHADRAVATHI IN CRL.A.NO.5016/2020 THEREBY CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE PASSED BY THE LEARNED I ADDITIONAL CIVIL JUDGE AND JMFC, BHADRAVATHI ON 04.09.2019 IN C.C.NO.1097/2018. THIS PETITION COMING ON FOR FINAL HEARING THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL ORDER 1. Heard the learned counsel for revision petitioner and also the learned High Court Government Pleader for State. 2. This revision petition is filed against the order of conviction and sentence passed by the Trial Court in C.C.No.1097/2018 dated 04.09.2019 for the offence punishable under Section 379 of Indian Penal Code and confirmation order passed by the First Appellate Court in Crl.ANo.5016/2020 dated 09.02.2021. 3. The factual matrix of case of the prosecution before the Trial Court is that on 05.03.2017, accused Nos.1 and 2 committed theft of Arecanuts of two quintal which were kept in the Areca shed and the same was - 3 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 recovered at the instance of PW4 and PW8 since the accused Nos.1 and 2 have sold the same to both of them and on account of tracing of Arecanuts, on 18.08.2017 case has been registered and investigated the matter and filed the Charge Sheet. The Trial Court issued the summons and accused was secured and he did not plead guilty. In order to prove the case of prosecution against the accused persons, examined PW1 to PW11 and got marked documents Ex.P1 to Ex.P14 and sample of Arecanuts was marked as MO.1. The Trial Court having considered the evidence of prosecution witnesses particularly PW4 and PW8 from whom the Arecanuts were recovered and also considering the other witnesses, comes to the conclusion that prosecution has proved the case against the accused persons and the accused have also not lead any defense evidence. Being aggrieved by the said order, an appeal is filed in Crl.A.No.5016/2020 before the First Appellate Court. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and in paragraph Nos.27 and 28 taken - 4 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 note of complaint of Ex.P1 and also the evidence of witnesses particularly the evidence of PW9 who lodged the compliant in terms of Ex.P1 and there was no any cross- examination of PW11 except denying that he visited the spot and drawn the mahazar and prepared the rough sketch. Having assessed the evidence of the prosecution, the First Appellate Court also comes to the conclusion that does not find any reason to say that the said Arecanuts were not seized at the instance of the accused from CW6 and CW7 and it does not belongs to the CW1 and also comes to the conclusion that in the course of cross- examination, it is denied that the accused was not given any such voluntary statement and based on the voluntary statement of the accused, only recovery is admissible and in respect of the same, remaining cannot be relied upon, but comes to the conclusion that CW6 and CW7 have clearly deposes that at about 4 months of sale of Arecanuts by the accused persons, the Police brought the accused and minor contradictions does not affect the - 5 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 prosecution case and accepted the reasoning given by the Trial Court. 4. Being aggrieved by the concurrent finding of both the Trial Court and First Appellate Court, the present revision petition is filed before this Court. The main contention of the counsel appearing for the petitioner that according to prosecution, theft was committed on 05.03.2017 and recovery was made on 18.08.2017 and there was an inordinate delay in filing the complaint as well as recovery. The complaint was registered on 07.03.2017 inspite of incident was taken place on 05.03.2017 and also with regard to the purchase of Arecanuts from the accused and material particulars of the date of purchase, identity of the Arecanuts and recovery of the Arecanuts from the purchasers, there is a discrepancy in the evidence. The investigation conducted by the PW11 is not fair and proper. The counsel also brought to notice of this Court that mahazar conducted in the Police Station and the same is admitted by the witnesses. There are material contradictions with regard to the recovery is - 6 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 concerned and the very recovery is doubtful. Inspite of it, the Trial Court and First Appellate Court accepted the case of prosecution. The counsel would vehemently contend that PW11 has clearly admitted that at the time of recovery of Arecanuts from the purchasers, no mahazar was conducted and there is no evidence as to on what date the accused was sold the Arecanuts to the CW6 and CW7. The very appreciation of evidence of both the Courts is nothing but perversity and lost sight of contradictions elicited from the mouth of prosecution witnesses. 5. Per Contra, the counsel appearing for the respondent-State would vehemently contend that even though there was two days delay in lodging the complaint and recovery is made at the instance of the accused through CW6 and CW7. Both the CW6 and CW7 who have been examined as PW4 and PW8 have supported the case of the prosecution and regarding identity of the Arecanuts also, the complainant identified the same and there is a credible evidence that these petitioners only have committed theft of Arecanuts and mahazar witnesses - 7 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 evidence also credible and hence it does not requires any interference. 6. Having heard the learned counsel for the petitioner and also the learned counsel for the respondent and also on perusal of material available on record, the point that would arise for consideration of this Court are: 1) Whether the Trial Court and First Appellate Court committed an error in appreciating the evidence and the same amounts to perversity and whether the impugned orders suffers from its legality and correctness? 2) What Order? 7. Having heard the counsel for respective parties and also on perusal of material, particularly the factual aspect of case of prosecution is that on 05.03.2017, two quintal of Arecanuts which were kept in the Areca shed belongs to the CW1 was missing and hence compliant was given and the same was recovered on 18.08.2017 and - 8 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 hence, invoked the offence punishable under Section 379 of Indian Penal Code. 8. The prosecution in order to substantiate the charges, mainly relies upon the evidence of PW1 and PW3, the PW1 is the complainant and he says that they kept the Arecanuts in the gowdon and with regard to the theft of Arecanuts is concerned, he filed a complaint in terms of Ex.P1. The Police have investigated the matter and in the cross-examination it is elicited that house of accused No.2 is neighboring house of the PW1 and also admits that accused Nos.1 and 2 are the Areca nut growers. It is suggested in the cross-examination that there was a galata between two family with regard to the conservancy road and the same is denied but admits that there is a conservancy road in between both the house of accused No.2 and PW1. He also admits that witnesses are known to him and also admits in the cross-examination that they kept the same in the gowdon and it was locked. 9. The PW2 is the mahazar witness that is spot mahazar and PW3 is the father of the PW1 and his - 9 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 evidence also in the similar evidence of PW1 and he only says that accused only disclosed with the Police that they committed theft of Arecanuts and the same was seized. 10. The other witness is PW4, according to the prosecution who is the purchaser and he is the mahazar witness to the Ex.P4 that is recovery of the Areca nut. He says that he came to know about the accused No.2 while selling the Arecanuts and did not disclose anything and only Police informed about theft of Arecanuts and he identifies the accused No.2. In the cross-examination, he admits that he is not having any license to purchase the Arecanuts and also not having any document of receipt for having purchased the stolen article and also he admits that he only took the Arecanuts and handed over the same to the Police. The very evidence of PW4 goes to the very route of the prosecution since he himself says that he took the Arecanuts and handed over the same to the Police. Hence, the very case of prosecution that recovery was made at the instance of the accused through PW4 and PW8 is doubtful. - 10 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 11. The other witness is PW8 and he also says that he signed the mahazar in the Police Station that is Ex.P5 with regard to the recovery at his instance. The Police seized one bag of Areca nut and says accused persons sold four times 85 Kg each and Police have seized the same after four months, but the accused persons told that the same belongs to them, but through Police only came to know about that the same was stolen Arecanuts, but he claims that stolen Arecanuts bag was seized from him. In the cross-examination, he admits that he has not preserved any document from whom the Arecanuts were purchased and Police came to know about the same after 3-4 months. The Police have not drawn any mahazar near his house and also not taken any photographs for drawing of mahazar. 12. The important witness is PW5 and he is the mahazar witness and in his evidence he says that PW4 and PW5 mahazar witnesses, but he had signed the same in the Police Station. At the time of drawing of Ex.P4 and Ex.P5, Police seized the same from CW6 and CW7 that is - 11 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 PW4 and PW8, but he again says that accused No.1 produced the same and seized the same from accused No.1 and also says that the same was seized from CW7. The PW6 is also the mahazar witness. The PW7 says that he came to know about the theft of Arecanuts and mahazar was drawn. The PW11 who conducted the investigation and PW10 is the person who suspected and apprehended the accused persons and he gave the reports in terms of Ex.P8. He admits that while apprehending the accused persons, he has not conducted any mahazar and PW11 also says that CW1 told him that accused persons sold the Arecanuts to CW6 and CW7. He gave notice to the CW6 and CW7 to produce the Arecanuts and accordingly, CW6 produced the same and seized. In the cross- examination of PW11, he admits that he went to the spot on the next day and he did not enquire how many Arecanut bags were there in the gowdon and also he did not mention the same in the Charge Sheet and also he did not enquire from which plantation the same was harvested and he did not enquire how many days back the same was - 12 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 harvested and also he did not recover any document for having sold the same to the CW6 and CW7 and also he did not enquire with regard to whether they are having license to purchase the Areca nut. 13. Having considered the main evidence of PW1 and PW3 and they have not given any description in respect of the Arecanuts is concerned and also MO.1 is only a sample of Arecanuts and no bags were seized. It is important to note that PW11 says that he gave the notice to the CW6 and CW7 and they have produced the same and drawn the mahazar and hence, the very case of recovery at the instance of the accused from PW4 and PW8 is also not proved by the prosecution. The evidence of prosecution is contrary to the case of prosecution. The PW11 says that he gave the notice and they have produced. The witnesses says that seizure was made in the Police Station and not in the house of PW4 and PW8 and there are material contradictions also. The PW5 evidence also contrary to the recovery is concerned. When such being the case, when the recovery is not at the - 13 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 instance of the accused and only they came to know about the same on apprehending the accused persons that they have sold the Arecanuts to PW4 and PW8, but PW4 and PW8 evidence is very clear that they only produced the same based on the notice issued to them and recovery not made at the instance of the accused persons that they only took the I.O and other panch witnesses to the house of PW4 and PW8. Hence, the same cannot be a recovery in the eye of law. 14. It is important to note that according to prosecution, theft was made on 05.03.2017 and recovery was made on 18.08.2017 and normally in a course of purchase and sale, nobody will keep the Arecanuts for a period of 5 ½ months if they are businessman and they used to purchase and sell the same in the market or to any buyer and the very recovery also belongs to the PW1 and PW3, there is no description at all, nothing is seized with regard to the same was in the bag and bags are not seized and with regard to the identity of the same also, the same belongs to the PW1 and PW3 also, there is no - 14 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 description and nothing in the case of the prosecution and only PW10 says that only on suspicion, apprehended the accused persons and no mahazar was drawn while apprehending and only he gave the report. The PW11 also categorically says that he did not conduct any mahazar at the spot while seizing the same from CW6 and CW7, but he categorically says that CW6 and CW7 only brought the Arecanuts to the Police Station and produced the same and these are the materials which are found and both the Courts lost sight of contradictions and seizure is also not at the instance of the accused and only on issuance of notice, the same is produced in Police Station. When such evidence is accepted by Trial Court as well as First Appellate Court, both the Courts have committed an error in not considering the matter in a proper prospective and when the finding is not legal and recovery is not legal, question of convicting and sentencing the petitioner does not arise. 15. This revision petition is also filed by accused No.2. Though reason was assigned by First Appellate Court - 15 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 in paragraph No.28 and observation is made that voluntary statement of accused is admissible in evidence only with regard to recovery and discovery and reliance can be placed on the so called voluntary statement of the accused, but relied upon the evidence of CW6 and CW7 that about four months of sale of Arecanuts by the accused persons, Police brought the accused. In the case on hand, no recovery at the instance of the accused and hence, the finding of the Trial Court is not legal and impugned order also suffers from its legality and correctness. Hence, I answer the point as ‘Affirmative’. 16. In view of the discussions made above, I pass the following: ORDER i) The Revision Petition is allowed. ii) The impugned order of conviction and sentence passed in C.C.No.1097/2018 dated 04.09.2019 is set-aside. Consequently, confirmation order passed in Crl.A.No.5016/2020 dated 09.02.2021 is also set-aside. - 16 - NC: 2025:KHC:8650 CRL.RP No. 468 of 2021 iii) The accused No.2/revision petitioner is acquitted for the offence punishable under Section 379 of Indian Penal Code. iv) Bail bonds are cancelled and if any fine amount is deposited, ordered to return the same in favour of the revision petitioner on proper identification. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 71