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2025 DAILYLAW 23813 (KAR)

ILIYAS v. THE STATE OF KARNATAKA BY

CRL.RP/416/2016 · 2025-02-20

H P Sandesh

body2025

Judgment text

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- 1 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL REVISION PETITION NO.416 OF 2016 BETWEEN: ILIYAS S/O CHAMAN SAB, AGED ABOUT 40 YEARS, OCC: AGRICULTURE, R/O CHIKKAJAMBUR VILLAGE, SHIKARIPURA TALUKA, SHIMOGA DISTRICT-577 427. …PETITIONER (BY SRI P B UMESH, ADVOCATE FOR SRI RAVINDRA B DESHPANDE, ADVOCATE) AND: THE STATE OF KARNATAKA BY HOSANAGAR POLICE STATION, HOSANAGAR, SHIMOGA DISTRICT-577 418. (REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU-560 001.) …RESPONDENT (BY SMT. PUSHPALATHA B, ASPP) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 CONVICTION AND SENTENCE DATED 18.01.2013 PASSED BY THE CIVIL JUDGE AND JMFC, HOSANAGAR IN C.C.NO.808/2005 AND ETC. 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 This petition is filed challenging the judgment of conviction and sentence dated 18.01.2013 passed in C.C.No.808/2005 by the Trial Court and the judgment dated 21.12.2015 passed in Crl.A.No.17/2013 by the First Appellate Court. 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the prosecution is that on 02.11.1997 during night hours accused No.1 with accused No.2 and 3 with the help of accused No.5 broken the lock of property room of Munsiff and JMFC Court, Hosanagar and stolen sandalwood worth - 3 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 of Rs.44,400/-. The complainant is the sheristedar of Hosanagar Court. Police have seized 7 kg 400 grms of sandalwood which was sold to accused No.2 and scooter number KA17-E-1326 used for transportation and 11 kg 800 grms of sandalwood kept in Sorab for sale and 541 kg 800 grms of sandalwood kept in Mavinahole forest on the basis of voluntary statements of accused. Accused No.4 is a receiver of stolen articles and thereby committed an offence. 4. In order to prove the charges leveled against the accused persons, the prosecution examined 18 witnesses as PW1 to PW18 and got marked the documents at Ex.P1 to P16 and also seized MO1 to MO73. The Trial Court having considered the evidence available on record, convicted all the accused persons and the said order was challenged before the First Appellate Court by this petitioner in Crl.A. No.17/2013 and the First Appellate Court also confirmed the judgment of the Trial Court in giving the reasons in paragraphs 30 and 31. Being - 4 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 aggrieved by the said concurrent finding of both the Courts, the present revision petition is filed. 5. The learned counsel for the petitioner would vehemently contend that the prosecution failed to prove the case against this petitioner since there is no any incriminating evidence against him and only an allegation against this petitioner is that when the police went to seize the sandalwood, this petitioner ran away from the spot but the fact is that this petitioner was not in the house and at his instance, nothing was recovered. The only case of the prosecution is that the house belongs to this petitioner wherein sandalwood were seized but panch witness - PW5 has not supported the case of the prosecution with respect to the seizure is concerned. The counsel also would vehemently contend that when the petitioner was not at the spot and document is also not placed before the Court to show that, that house belongs to this petitioner, the Trial Court ought not to have convicted this petitioner and the First Appellate Court ought not to have confirmed the - 5 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 said order. The counsel also brought to notice of this Court the judgment of the Trial Court with regard to this petitioner is concerned wherein an observation is made in paragraph 15 that in 313 statement, accused has not explained about the said incident. When, he was not identifies the same, that cannot be a ground to convict him and the First Appellate Court also committed an error in confirming the order of the Trial Court. When the First Appellate Court comes to a conclusion that regarding accused No.4, no doubt, no incriminating the materials have been seized at the instance of this petitioner. But the statement of the other accused is that they have sold the stolen articles to accused No.4 and stolen articles were recovered from the house of accused No.4 at the instance of other accused persons and comes to the conclusion that seizure of incriminating articles even if it be at the instance of other accused that clearly establishes the nexus between the stolen articles and accused No.4 and confirmed the judgment of the Trial Court hence, the very approach of the First Appellate Court is erroneous. - 6 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 6. Per contra, the learned counsel appearing for the State would vehemently contend that when the recovery was made at the instance of accused Nos.1 to 3 in the house of accused No.4, accused No.4 ran away from the spot and though he has not been identified and recovery is not at his instance, but the fact that the same was recovered from his house is not in dispute and accused Nos.1 to 3 only led the panch witnesses as well as IO to the house of this petitioner and said fact is taken note of by both the Courts and hence, it does not require any interference of this Court. 7. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record the points that would arise for consideration of this Court that: 1. Whether the Trial Court committed an error in convicting and sentencing this petitioner/accused No.4 and the First Appellate Court committed an error in - 7 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 confirming the judgment of the Trial Court and whether the said orders suffer from its legality and correctness and whether this Court can exercise the revisional jurisdiction? 2. What order? Point No.1 8. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that charges leveled against this petitioner is that he had received the sandalwood billets and same was a stolen article and same is also recovered from the house of this petitioner. It is important to note that no doubt, prosecution examined several witnesses that is PW1 to PW18 and also got marked several documents. It is the case of the prosecution that accused Nos.1 to 3 led the investigating team as well as panch witnesses to the house of this petitioner. It is the case of the prosecution is that this petitioner ran away from the spot and they seized the sandalwood from the house of - 8 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 this petitioner. In order to prove the fact that the said house belongs to this petitioner, no material is collected by the IO. It is important to note that recovery is not at the instance of this petitioner or from this petitioner and only based on the statement of other accused persons that they have sold the stolen sandalwood to this petitioner, this petitioner has been arrayed as accused. Though it is contend that the same was recovered from the house of this petitioner at the instance of other accused persons, but no incriminating evidence against this petitioner and same is observed by the First Appellate Court but comes to the conclusion that seizure of incriminating articles even if it be at the instance of other accused that clearly establishes the nexus between the stolen articles and accused No.4. In order to show the nexus also nothing is placed on record except the statement of co-accused and based on the co-accused statement, this petitioner cannot be convicted. It is also important to note that the First Appellate Court made an observation that once the recovery is shown to be from the house of accused No.4 - 9 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 under a panchanama in the presence of panchas by the responsible police officer and when this fact is spoken to by these witnesses, burden would be on accused No.4 to prove the contrary namely that he has never been in occupation of the said house. Hence, the First Appellate Court committed an error in making such an observation. At the first instance, it is the burden on the prosecution to prove the same and in order to prove the same no document is collected to show that the said house belongs to this petitioner and recovery also not at the instance of this petitioner or from this petitioner and only based on the statement of accused Nos.1 to 3 that house belongs to this petitioner, the petitioner arrayed as accused No.4 and in order to prove the said fact, nothing is placed on record and the First Appellate Court made an observation of proving the same in a negative manner that accused Nos.1 to 3 and mahazar witness have spoken about the same and this petitioner has to disprove the same and that is not the principle in the criminal jurisprudence. The accused can give the explanation and explained the same - 10 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 if incriminating evidence is placed against him but nothing is placed on record with regard to any incriminating evidence against this petitioner. When such being the case, the question of not giving any explanation under Section 313 does not arise. Thus, both the Courts have proceeded in an erroneous manner. I have already made it clear that unless incriminating evidence is placed before the Court, the question of giving explanation under Section 313 does not arise. The First Appellate Court also committed an error in placing burden on this petitioner to prove the same. Hence, the very finding of both the Courts are not legal and hence, judgment of conviction and sentence passed by both the Courts suffers from its legality and correctness. Hence, it requires interference of this Court. Hence, I answer the above point as affirmative. Point no.2 In view of discussions made above, I pass the following: - 11 - NC: 2025:KHC:7710 CRL.RP No. 416 of 2016 ORDER The revision petition is allowed. The judgment of conviction and sentence dated 18.01.2013 passed in C.C.No.808/2005 by the Trial Court and confirmation of the judgment of the Trial Court by the First Appellate Court in Crl.A.No.17/2013 dated 21.12.2015 are hereby set aside. The petitioner/accused No.4 is acquitted for the offences invoked against him. If any fine amount is deposited by this petitioner is ordered to release in his favour on proper identification. The bail bond executed by the petitioner is hereby stand cancelled. Sd/- (H.P.SANDESH) JUDGE SN