- 1 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 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. 897 OF 2022 BETWEEN: SRI RAMA @ RAMU @ PUJE KUNITHA RAMA S/O BORE GOWDA, AGED ABOUT 46 YEARS, R/A SWATANTR CHOWKA, AMRUTHUR TOWN KUNIGAL TALUK, TUMKUR DISTRICT - 572 111. …PETITIONER (BY SRI. SHANKARANARAYANA BHAT N., ADVOCATE) AND: STATE BY AMRUTHUR POLICE AMRUTHUR TOWN, KUNIGAL TALUK, TUMKUR DISTRICT - 572 111. …RESPONDENT (BY SRI. VINAY MAHADEVAIAH, HCGP) THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND SENTENCE/CONVICTION ORDER PASSED BY THE COURT OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKURU IN CRL.A.NO.30/2019 DATED 29.03.2022 BY MODIFYIG THE CONVICTION PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, KUNIGAL IN C.C.NO.46/2015 DATED 24.04.2019 AND SENTENCE DATED 25.04.2019 AND ACQUIT THE PETITIONER FOR THE OFFENCES CHARGED AGAINST HIM AND ALL THIS CRL.RP. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 THIS PETITION IS COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL ORDER Heard learned counsel for the revision petitioner and learned HCGP for the respondent-State. 2. This Revision Petition is filed against the order of convicting the revision petitioner for the offences punishable under Sections 380 and 457 read with section 34 of IPC to undergo simple imprisonment for a period of 30 months for the offence punishable under Section 457 and also for a period of 2 years for the offence punishable under Section 380 and also against the confirmation of the order passed by the Trial Court in Crl.A.No.30/2019 wherein the Appellate Court has reduced the sentence to 18 month as against 30 months in respect of offence punishable under Section 457 and also 1 year as against 2 years in respect of offence punishable under Section 380 of IPC. 3. The factual matrix of the case of the prosecution before the Trial Court that the present revision petitioner- accused No.3 along with other accused persons committed the - 3 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 offences under Sections 380 and 457 of IPC on 07.01.2015 during night hours in furtherance of their common intention, lurked the doors of Sri Parvati Temple premises and stolen the goddess's silver crown weighing about 835 grams worth of Rs.28,500/-and immediately when the C.W.1 noticed the theft of the same, immediately, lodged the complaint in terms of Ex.P.1. The Police have registered the same, apprehended the accused persons and recovered the same at the instance of the accused persons in the presence of the panch witnesses and drawn the spot panchanama of recovery and also investigated the matter and filed the charge sheet. The Trial Court having received the police report under Section 173 secured the presence of the accused and the accused persons did not plead guilty and hence, the trial was held. 4. Prosecution relied upon the evidence of P.Ws.1 to 6 and got marked the Exhibits P.1 to 3 and M.Os.1 to 3 and accused persons were subjected to 313 Cr.P.C. statement and thereafter, did not led any defence evidence. The Trial Court, having considered the evidence of P.Ws.1 to 6, comes to the conclusion that recovery is proved and the same is also at the instance of the accused and there is no scope to suspect - 4 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 evidence of P.Ws.1 to 6 and the corroboration in their evidence for commission of offences and recovery is also made and hence, convicted and sentenced the accused. Being aggrieved by the said order, the criminal appeal was filed and the Appellate Court also having re-assessed the material on record, particularly in paragraph No.12, accepted the reasoning given by the Trial Court and also relied upon the voluntary statements of the accused persons, which have been marked and comes to the conclusion that it was in special knowledge of the accused made in their voluntary statement and the same being not known to anyone much less the Police and the witnesses and the Trial Court has rightly comes to the conclusion that evidence is admissible under Section 27 of the Indian Evidence Act and confirmed the judgment passed by the Trial Court. Being aggrieved by the concurrent findings, the present revision petition is filed before this Court. 5. The main contention of the learned counsel for the revision petitioner is that both the Courts failed to exercise the jurisdiction and committed an error in convicting and sentencing accused and also fails to take note of the fact that there was lack of evidence and witnesses are all interested - 5 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 witnesses and the very approach of the Court is not correct and hence, requires interference of this Court. 6. Per contra, learned HCGP would submit that the evidence on record is consistent and P.W.1 spoken with regard to the theft is concerned and P.W.2 to 4 are the witnesses to the recovery of the stolen article and both the courts considered the evidence available on record and rightly convicted and sentenced the accused and the Appellate Court also exercised it's discretion and reduced the sentence. 7. Having heard the learned counsel for the revision petitioner and learned HCGP and also perusal of the materials available on record and also the grounds by both revision petitioner and the State, the points that would arise for consideration of this Court are, (i) Whether the Trial Court and the Appellate Court committed an error in accepting the evidence and P.Ws.1 to 6? (ii) Whether the orders impugned passed by both the Courts requires interference exercising the revisional jurisdiction? (iii) Whether orders of the both courts suffers from its legality and correctness? (iv) What order? - 6 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 8. Having heard the factual matrix of the learned counsel for the revision petitioner that on 07.01.2015, this accused along with other accused persons with a common intention have lurked the doors of the temple of Sri Parvati Temple premises and stolen the goddess's silver crown weighing about 835 grams worth of Rs.28,500/-. In order to substantiate the said case, the prosecution relied upon the statement of P.Ws.1 to 6. P.W.1, in his complaint marked as Ex.P.1 states that when he went to do pooja in the early morning, he found lurking of the doors of the temple and stolen the goddess's silver crown weighing about 835 grams worth of Rs.28,500/-. Hence, he lodged a complaint and the complaint was given at 11:00 A.M. Based on the complaint, the Police have drawn the mahazar at Ex.P.2. The prosecution relies upon the photographs at Exs.P.3 and 4 and Ex.P.5 is seizure mahazar. Spot panchanama is marked as Ex.R.5 based on the statement of the accused. 9. It is also important to note that voluntary statement of the accused are also marked as Exs.P.8, 9, 10 and also 11 is arrest memo having arrested the accused persons. P.W.1 is not a material witness. He has only lodged the - 7 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 complaint with regard to lurking of the doors of the temple and stolen the silver crown of the goddess. He speaks only about the Police came and conducted spot mahazar. He admits regarding delay in lodging the complaint when he comes to know about the same at 5:00 A.M., and lodged the complaint at 11:00 A.M. He states that he went to the station twice and signed thrice and he has seen the accused persons on 24.01.2015 in the station. Other material witness is P.W.2. He speaks only about drawing of mahazar at the spot and also identifies photographs at Exs.P.3 and 4 and also identifies M.O.3 and he states that accused stolen the M.O. He identifies accused No.2 and states that accused No.1 and 3 were also there. In the cross-examination, he admits that already several persons were gathered near the place where seizure was made. Mahazar was also signed by one A.N.Lakshminarayana and the Police have also not taken any slip on M.O.1 to 3. Other witness is P.W.3. He also reiterates that the Police took his signature at the time of drawing up of mahazar. He also identifies the photographs. In the cross- examination also, he states the he only signed the document and other persons have not signed. Other witness is C.W.4, who also claims to be witness to Ex.P.5. The Police have drawn - 8 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 mahazar in terms of Exs.P.1 to 5. He also identifies the article categorically states that accused persons and the Police were also on the spot. He categorically states that he came to the spot and stolen articles were there at the spot and he cannot say who kept the same at the spot but he only comes to know that the same belongs to the temple. Other witness P.W.5 is the only a person, who had signed the mahazar near the temple. He is signatory to Ex.P.2 and not special mark was made at M.O.1 to 3. Other witness is the Investigating Officer, who has been examined as P.W.6. Though, he states that arresting of accused persons, recovery is made at the instance of the accused persons, he states that Exs.P.3 and 4 were taken while releasing the stolen articles. In the cross- examination, he admits that near the temple, there are residential houses and he also categorically admits that he did not take signature of neighboring witnesses to the mahazar and he did not put any special mark on M.O.1 to 3. He also categorically states that he did not take any signatures of panch witness of M.O.1 to 3. He also admits that M.O.1 to 3 are available in any of the shops. - 9 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 10. Having re-assessing the oral and documentary evidence, though this Court is not having jurisdiction to re-assess the evidence, since there is a concurrent findings, but the Court is having powers to consider any perverse findings given by the Trial Court and the Appellate Court. It has to be noted that while marking document of voluntary statement, the Trial Court marked the entire voluntary statement of accused as Exs.P.8 to 10 and the very procedure adopted for marking of voluntary statement in entirety is not permissible. Only portion of the voluntary statement with regard to the recovery is concerned is to be marked. The Trial Court committed an error in marking the voluntary statement in the entirety and there is a flaw in marking the same and ought to have marked only portion of recovery. Even the Appellate Court relied upon these voluntary statement of the accused while confirming the order of the Trial Court and hence, the Appellate Court has also committed an error in relying upon the voluntary statement in the entirety. 11. It is also important to note that P.W.1 is only a complainant and he identified the accused in the police station. No doubt, in terms of Ex.P.1, the Police, who were on gasth - 10 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 duty apprehended the accused persons and produced before the Investigating Officer and the procedure adopted by the Investigating Officer, who also did not secure any panch witnesses to recover the same at the instance of the accused persons and the witnesses, who have been examined as P.Ws.2 to 4 also categorically, P.W.4 states that he went to the spot already the stolen articles were kept in the spot and hence, it is clear that it was not recovered at the instance of the accused. It is also important to note that evidence of P.Ws.2 and 3 also not particular that accused only led all of them and showed where they have concealed the stolen articles and recovery is also not in accordance with law. The evidence of P.Ws.2 to 4 also not in help of the prosecution and finding of the Trial Court and also the Appellate Court that the recovery was at the instance of the accused is not credible and fails to take note of the evidence available on record that the finding of the Trial Court is not legal and also the Appellate Court relied upon the voluntary statement of the accused for confirming the order of the Trial Court, both the orders suffer from its legality and correctness. Hence, the approach of the Trial Court and the Appellate Court is erroneous and orders of the Trial Court and the Appellate Court suffer from legal infirmity and findings are - 11 - NC: 2025:KHC:7626 CRL.RP No. 897 of 2022 not legal. Hence, such being the case, revision petitioner is entitled for acquittal and hence, it requires interference of this Court. In view of the above discussion, I answer the points in affirmative and hence, the following: ORDER (i) Revision petition is allowed; (ii) Impugned judgment of conviction is set-aside; and (iii) Consequently, fine amount deposited by the revision petitioner, if any, is ordered to be refunded on proper identification. (iv) Bail bond executed by the revision petitioner stands cancelled. Sd/- (H.P.SANDESH) JUDGE AV List No.: 1 Sl No.: 44