Research › Search › Judgment

High Court of Karnataka · body

2025 DAILYLAW 45914 (KAR)

SRI B J ARUNDEV v. THE STATE OF KARNATAKA

CRL.RP/1212/2017 · 2025-02-24

S Rachaiah

body2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO. 1212 OF 2017 BETWEEN: SRI B J ARUNDEV S/O LATE H S GOPAL AGED ABOUT 35 YEARS, R/AT BHRAMARAKUDLU HOUSE THUMBE POST, KALLIGE VILLAGE, BANTWALA TALUK - 575 017. …PETITIONER (BY SMT. HALEEMA AMEEN, ADVOCATE FOR SRI. ASHOK KUMAR SHETTY, ADVOCATE) AND: THE STATE OF KARNATAKA BY MANGALURU SOUTH POLICE STATION, REPRESETNED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BENGALURU – 560 001. …RESPONDENT (BY SRI. K NAGESHWARAPPA, HCGP) CRL.RP FILED U/S.397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.08.2013 MADE IN C.C.NO.33/2012 BY THE COURT OF II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALORE, AND JUDGMENT AND ORDER DATED 18.09.2017 MADE IN CRL.A.NO.273/2013 BY THE COURT OF I ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE AND ACQUIT THE PETITIONER. Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S RACHAIAH ORAL ORDER 1. This revision petition is filed by the petitioner / accused No.2 being aggrieved by the judgment of conviction and order on sentence dated 06.08.2013 in C.C. No.33/2012 on the file of the II Additional Senior Civil Judge and C.J.M., Mangalore, D.K., and its confirmation judgment and order dated 18.09.2017 passed in Crl.A No.273/2013 on the file of the I Additional District and Sessions Judge, D.K., Mangalore, has filed this revision petition seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused No.2 was convicted for the offence punishable under Section 380 of Indian Penal Code (for short ‘IPC’). 2. The ranks of the parties in the Trial Court will be considered henceforth for convenience. Brief facts of the case: 3. It is the case of the prosecution that on 04-07-2011, at about 9 a.m., the accused persons approached CW1 and 2 and requested to provide some repair work. CW2 - 3 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 entrusted them the work of repairing the broken cot. CW2 had provided some instruments to repair the cot. While accused No.2 was repairing the water tap, accused No.1 stolen the mangalasutra worth Rs.1,25,000/-, which was kept in the drawer of the dressing table in the bedroom of the house of PW.1 and went away. On 05-07-2011, the complainant went to the respondent - police station and lodged a complaint about the missing of the said mangalasutra. The respondent police registered a case in Crime No.116/2011 and conducted the investigation and submitted the charge sheet. 4. The prosecution in order to prove its case, examined 10 witnesses as PWs.1 to 10 and got marked 10 documents as Exs.P1 to P10 and identified one golden chain marked as M.O.1. For the defense, four documents have been marked as Exs.D1 to D4. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction for the aforesaid offences. Being aggrieved by the same, the accused approached the Appellate Court against the said judgment of conviction passed by the Trial Court. The Appellate Court - 4 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 dismissed the appeal by confirming the judgment of conviction passed by the Trial Court. Hence, the petitioner / accused No.2 has filed this revision petition. 5. Heard learned counsel Smt. Haleema Ameen for Sri. Ashok Kumar Shetty, learned counsel for the petitioner and Sri.K.Nageshwarappa, learned High Court Government Pleader for the respondent. 6. It is the submission of the learned counsel for the petitioner that the judgment of conviction and order on sentence passed by the Courts below are illegal, unreasonable and opposed to the law and facts. Therefore, the same are liable to be set aside. 7. It is further submitted that the delay in lodging the complaint should have been considered by the Trial Court and benefit of doubt should have been given to the accused. 8. It is further submitted that the recovery of golden chain at the instance of the accused, though, has not been proved, rendering the conviction based on assumptions and presumptions which is not proper and the same is erroneous. Hence, it is liable to be set aside. Making - 5 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 such submissions learned counsel for the petitioner prays to allow the petition. 9. Per contra, learned High Court Government Pleader justified the judgment of the Courts below and he further submitted that the Trial Court and the Appellate Court have consistently held that the accused are guilty of the offences stated supra and recorded the conviction and interference with the said findings may not be proper. Making such submissions, learned High Court Government Pleader prays to dismiss the petition. 10. Having heard learned counsel for the respective parties and also perused the findings of the Courts below, it is appropriate to have a cursory look upon the evidence of all witnesses. 11. PW1 who is the complainant, has stated in his evidence that the accused had visited his house on the pretext of repairing the cot. He had seen the said accused persons at the time when they were conducting the repair work of the cot. During their visit to the house, they had given the visiting card to the complainant. Based on the said visiting card, they were summoned by the respondent - - 6 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 police. He identified the photograph at Ex.P1 and its negative at Ex.P1(a), which contained the picture of the mangalasutra of his wife. 12. PW.2 is the neighbor of PW.1. He stated about the theft of the mangalasutra in the house of PW.1 and he is also one of the witnesses to the Spot Mahazar and supported the case. Ex.P2 – Spot Mahazar has been marked through him. 13. PW.3 also a witness to Ex.P2, has supported the case. 14. PW.4 was working as a flower vendor at Akabar Complex, Mangalore. He stated in his evidence that accused No.1 is his relative. On 05.07.2011, accused No.1 had been to PW.4 along with the accused No.2 and he pledged one golden mangalasutra and received an amount of Rs.19,500/- stating that the said chain belongs to the wife of accused No.2. On 09.07.2011, the respondent - police had been to his place along with accused No.1. After seeing the said police, PW.4 stated to have handed over the golden chain of which he received from accused No.1. However, the evidence of PW.4 appears to be doubtful for the reason that he had not handed over any - 7 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 receipt for having received the said mangalasutra from accused No.1. There is no independent witness to show that the said mangalasutra has been recovered from the house of PW.4 and handed over to the police. 15. PW.5 is the wife of PW.1. She stated in her evidence that she had lost the mangalasutra from her house on 04.07.2011 when the accused had been to her house and requested them to provide the repair work. She identified the mangalasutra and she further stated that the same had been given to her by the respondent - Police. She being a witness to Ex.P3 and recovery of the said mangalasutra from the house of PW.4, supported the case. Though she supported the case of the prosecution in respect of seizure of the mangalasutra, the fact remains that, PW.4 did not say that PW.5 had accompanied him at the time of handing over the mangalasutra to the police from his house. Therefore, her evidence in respect of Ex.P3 is doubtful and the same cannot be believed. However, the Trial Court and the Appellate Court appreciated that she had accompanied - 8 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 PW.4 and the police officials and affixed her signature to Ex.P3, the same is contrary to the evidence on record. 16. PW.6 appears to be an independent witness to the seizure mahazar, which is marked as Ex.P3. However, neither PW.5 nor PW.4 stated that PW.6 accompanied them and he was present at the time of conducting the seizure of the said chain from the house of PW.4. 17. PW7 was running a Printing Press at Mangaluru Port. He stated to have got the visiting card done from his Printing Press and identified that the said visiting card was printed and handed over to the accused from his shop. 18. PWs.8, 9 and 10 are the police officials, have supported the case of the prosecution. 19. Be that as it may, the evidence of PW.4 appears to be significant for the reason that he is the person who stated to have received the mangalasutra from accused No.1 and handed over the amount of Rs.19,500/-. He stated about accused Nos.1 and 2 and he further stated that the accused No.1 was his relative. Though, he further stated in his evidence that he accompanied the police and took them to his house and handed over the mangalasutra to - 9 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 the said police and the police have conducted the mahazar in his house and seized the mangalasutra, the fact remains that he did not disclose the names of PWs.5 and 6, who stated to have accompanied him and affixed their signature to Ex.P3 in the said house. However, PWs.5 and 6 have stated that they affixed their signatures to Ex.P3 at the time of conducting the seizure of the said mangalasutra in the house of PW.4. The same appears to be doubtful and the Courts below ought not to have acted upon the evidence of PWs.4, 5 and 6 in respect of the seizure of mangalasutra. 20. Mere availability of the visiting card from the house of PW.1, that itself is not a conclusive proof that the accused Nos.1 and 2 had committed theft of the mangalasutra from the house of PW.1. The Courts below have committed error in arriving at a conclusion that accused Nos.1 and 2 had committed theft of the mangalasutra and rendered the conviction, which appears to be erroneous and not proper. It is needless to say that when the recovery of the mangalasutra appears to be doubtful, benefit of doubt should have been extended. Having not - 10 - NC: 2025:KHC:8166 CRL.RP No. 1212 of 2017 extended the benefit and rendered the conviction, the same is erroneous and untenable. Therefore, the concurrent findings are liable to be set aside. 21. In the light of the observation made above, I proceed to pass the following: ORDER (i) The Criminal Revision Petition is allowed. (ii) The judgment of conviction and order of sentence dated 06.08.2013 passed in C.C.No.33/2012 by the II Additional Senior Civil Judge and C.J.M., Mangalore, D.K., and the judgment and order dated 18.09.2017 passed in Crl.A.No.273/2013 by the I Additional District and Sessions Judge, D.K., Mangalore, in respect of petitioner / accused No.2 are set aside. (iii) The petitioner / accused No.2 is acquitted for the offence punishable under Section 380 of IPC. (iv) Bail bonds executed, if any, stand cancelled. Sd/- (S RACHAIAH) JUDGE Bss List No.: 1 Sl No.: 40