- 1 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL REVISION PETITION NO. 100487 OF 2022 (397(Cr.PC)/438(BNSS) BETWEEN: 1. ANAND S/O. SHIVAPPA HARINASHIKARI, AGE. 58 YEARS, OCC: COOLIE, R/O. SAJJI HOLA, KOPPAL, TQ AND DIST KOPPAL-583231. 2. MAILARI @ NINGESH S/O. HUCHIRAPPA @ HUCAYA HARINASHIKARI, AGE 36 YEARS, OCC: COOLIE, R/O. SAJJI HOLA, KOPPAL, TQ AND DIST KOPPAL-583231. 3. ADALU S/O. TELAVI HARINASHIKARI, AGE 36 YEARS, OCC: COOLIE, R/O. SAJJI HOLA, KOPPAL, TQ AND DIST KOPPAL-583231. …PETITIONERS (BY SRI. BHUSHAN B. KULKARNI AND SRI. GANESH RAIBAGI, ADVOCATES) Digitally signed by MANJANNA E Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 AND: THE STATE OF KARNATAKA, BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, DHARWAD, THROUGH TOWN P.S, KOPPAL. …RESPONDENT (BY SRI. PRAVEEN K. UPPAR, AGA FOR RESPONDENT) THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 23.08.2022 PASSED BY THE LEARNED PRL. DISTRICT AND SESSIONS JUDGE, KOPPAL IN CRIMINAL APPEAL NO. 50/2018 CONFIRMING THE IMPUGNED JUDGMENT OF CONVICTION DATED 20.11.2018 AND ORDER OF SENTENCE DATED 23.11.2018 PASSED BY THE COURT OF THE SENIOR CIVIL JUDGE AND C.J.M KOPPAL, FOR THE OFFENCES PUNISHABLE U/SEC. 380 AND 457 OF IPC IN C.C.NO. 324/2016, IN SO FOR AS THE ACCUSED NOS. 1, 2 AND 5 THE PETITIONERS HEREIN AND ACCUSED NOS. 1, 2 AND 5 /PETITIONERS HEREIN MAY BE ACQUITTED FOR THE ALLEGED OFFENCES U/SEC. 380 AND 457 BY ALLOWING THE REVIDENCESION PETITION. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) This Revision petition is filed by the petitioners who were accused No. 1, 2 and 5 in CC No 324/2016 on the file of a Senior Civil Judge and C.J.M where in, challenging their conviction and sentenced by order dated 23rd November 2018 in the said criminal Case, and the said judgment of conviction and order of sentence is confirmed in the Criminal Appeal No. 50/2018 vide judgment dated 23/8/2022 by the Prl. District and Sessions Judge, Koppal. 2. The parties to the Revision petition are referred as per their rank before the trial Court. 3. The aforesaid accused No.1, 2 and 5 were charge sheeted by police inspector, town police Koppal for the offences punishable under Sections 457 and 380 of IPC on the ground that the accused persons along with - 4 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 accused No. 3 and 4, at 11:00 p.m on 13/4/2016 at Bhagy Nagar, shastri colony, Koppal town in furtherance of their common intention to commit the theft, carried iron rods and batteries, committed lurking house trespass into the house of the complainant Hussain Pasha, broke open the lock of the house. It was accused No.5 opened the lock of the house by using iron rod and all the accused entered the bedroom of the house, broke open the almera and safe locker by using rod, committed theft of one gold chain weighing 10 Gms, one pair of gold earrings 5gm, 1 pair of gold hanging weighing 5gms and one pair of silver leg chain and thus committed the aforesaid offences. 4. These accused persons were arrested in Crime No 157/2015 of Koppal town Police Station and when interrogated, they confessed about commission of the theft of the aforesaid articles and at their instance the said articles were produced by them before the police. On completion of investigation, chargesheet was filed against the accused persons for the aforesaid offences. They were - 5 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 produced before the trial Court under body warrant. Subsequently, they were enlarged on bail. 5. To prove the case of the prosecution, in all it examined 7 witnesses and got marked Ex.P1 to P8 and closed prosecution evidence. 6. The learned trial Court on hearing the arguments and on evaluation of the evidence found the accused guilty of committing the offences under Sections 457 and 380 IPC and sentenced as under: “The accused persons are sentenced to undergo simple imprisonment for three year each for the offence punishable under Section 457 of IPC and to pay fine of Rs.2,000/- each. In default of payment of fine the accused are undergo simple imprisonment for three months each. The accused persons are sentenced to undergo simple imprisonment for three years each for the offence punishable under Section 380 of IPC and to pay fine of Rs.2,000/- each. In default of payment of fine the accused shall - 6 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 undergo simple imprisonment for three months each. The both sentences shall run concurrently”. 7. This judgment of conviction and order of sentence was challenged by all the accused persons by preferring Criminal appeal No.50/2018 before the Prl. District and Sessions Judge, Koppal. The lower appellate Court on hearing the arguments and reassessment of the evidence confirmed the judgment of conviction and order of sentence passed by the trial Court vide judgment dated 23/8/2022. This is how, now accused No. 1, 2 and 5 are before this Court challenging the judgments of the Courts below by preferring this Revision petition. 8. The learned counsel for the appellant/accused Sri. Bushan B Kulkarni in addition to narrating the facts of the case as well as grounds urged in the Revision petition submits, that though there are numerous contradictions and omissions in the evidence of the prosecution, without - 7 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 appreciating the facts in a proper manner, both the Courts below have committed illegality in passing the impugned judgments. He would submit that there is no proper appreciation of evidence by the Courts below. In support of his submission, he relied upon evidence placed on record of the prosecution as well as the so called admissions given in the Cross-examination by the prosecution witnesses. He prays to allow the Revision and set aside the impugned judgments and acquit the accused. 9. As against this submission, the learned Sri. Praveen Uppar AGA with all vehemence submits that, both the Courts below properly appreciated the evidence, and have rightly concluded that it was accused who have committed the offences in the manner alleged. He submits when theft is proved, recovery is proved from the possession of the accused then nothing remains. He supported the findings of the Courts below in finding the accused guilty and prays to dismiss the Revision petition. - 8 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 10. I have given my anxious consideration to the submissions of both the side, perused the materials placed on record and also the trial Court records. In view of the rival submissions of both the side, the point that would arise for my considerate is; Whether the trial Court and lower appellate Court have committed any illegality in finding accused guilty of committing the criminal house trespass and theft of MO Nos. 1 and 2 from the house of complainant? 11. My answer to the above point is in the negative for following reasons: 12. So far as theft of the articles kept in the house of the complainant, PW1 has come before the Trial Court and deposed in line with the contents of the complaint in his examination-in-chief and also speaks about filing of a complaint as per Ex.P1. 13. It is his evidence that, he is residing at Bhagya Nagar, Shastri Colony, Koppal town with his family members. He had kept his gold and silver ornaments in a - 9 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 almera in his bedroom. It is his evidence, that on 12/4/16 during night hours by putting lock to his house, himself, his wife and children were sleeping on the terrace. On 13/4/2016 at 4:30 a.m, when his wife CW.4 woke up, she noticed breaking open of lock put to the main door. When they entered the bedroom, it was noticed that, all the cloths kept in the bedroom were scattered and by opening the almera safe locker, some unknown persons have committed theft of a gold chain, a golden ear ornament, a golden hanging and leg chain. Even it is noticed that, suitcases containing cloths were found missing. Thus he understood that, the articles belonging to him were stolen from his house. To that effect, he lodged a complaint as per Ex.P1. At 5:30 PM on that day, police came to his house and prepared the panchanama. Thereafter, after 4 months, he was called to the police station and police showed the accused persons as well as the gold and sliver ornaments which are seen in photographs at Ex.P3 to P5. He identified them. - 10 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 14. Evidence of this PW.1 is corroborated with evidence of PW.2 Fakirsab, a pancha to Ex.P2 in whose presence this spot panchanama was conducted. Both these witnesses have spoken about theft of the aforesaid articles from the house of the complainant and also state about panchanama Ex.P2. 15. PW6 Fakkiramma, the then PSI of Koppal town police station on receipt of the compliant registered crime and set the Criminal law in motion. She conducted the spot panchanama as per Ex.P2. On reading the evidence of PW.1,2 and 6, it is proved by the prosecution that there was theft of aforesaid articles from the house of the complainant in the manner alleged by the prosecution. Therefore, the prosecution in this case is able to establish that, there was theft of aforesaid articles as alleged in the complaint. 16. PW.5 Ibrahim Nabisab, was the then Police Constable of Koppal town Police Station at the relevant time and PW7 Sanna Iranna, the then Police constable of - 11 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 Koppal Police station, both speak about apprehension of accused persons. According to their evidence, on 12/8/2016 himself and CW 9 to 11, the other police officials were deputed for night patrolling duty. Therefore themselves and PW,15 started night patrolling at about 11.00 p.m. on that day, They started their duty, went to Bhagya Nagar, Kalyan Nagar, and came B T Nagar outskirts at 3.15 am. At that time, they noticed five persons sitting conceding themselves under a tree. On seeing the police, they tried to run away but they were caught hold and interrogated. At that time, they stated about the commission of theft of gold and silver ornaments from various houses situated at different places at Koppal town on various dates and also confessed that the said gold articles are concealed by them and if they are taken there, they will produce them. Therefore, all the accused persons named to the charge sheet were brought to the Police Station and at the instance of the accused persons the articles, ornaments named in the property file were seized under panchanama. Amongst them, MO Nos.1 - 12 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 and 2 were identified by the complainant PW2. He identified all the accused persons who were very much present in the Court when he gave evidence to whom he has seen in the Police station. 17. These witnesses are cross-examined by the defence intensively. But throughout their cross- examination, they are consistant about catching hold of these accused persons who have conceded themselves with deadly weapons. On enquiry they confessed about committing lurking house trespass and stealing of MO Nos.1 and 2 from the house of the complainant. Thus, from the evidence of PW5 and 7, it is duly proved by the prosecution that, these accused persons are responsible in the commission of the crime as alleged by the prosecution. 18. This PW3- Vasanth S/o Mohan Kurdekar, is the goldsmith called to the Police Station to weigh the gold articles and silver ornaments seized from the possession of the accused. This fact is not denied by the defence. - 13 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 19. PW4-Vishnu Teertha S/o. Gururajachar is the pancha to Ex.P.6 Panchanama and P8, and in whose presence MO Nos.1 to 10 were seized and there is no effective cross-examination directed to this witness to disbelieve his version given in his examination-in-chief. 20. On cumulative reading of the evidence discussed above, do suggest that it was these accused persons along with Accused Nos.3 and 4 are responsible of committing the offence as alleged by the prosecution. The learned Trial Court as well as the lower Appellate Court have rightly appreciated the evidence of the witnesses and have rightly sentenced them. I do not find any factual or legal error in the findings of the Courts below. In a case of present nature, when theft is proved, recovery of the subject matter of theft is proved, then nothing remains to be proved. There is no proper explanation offered by the accused persons that they are the owner of MOS Nos. 1 and 2 from whom the said material objects were seized. - 14 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 Therefore, an adverse inference has to be drawn that the accused who are the real culprits, accordingly it is drawn. 21. In view of the discussion made above, this Court being the Revisional Court cannot lightly interfere with the findings of the Courts below by exercising its Revisional powers. Hence, the point raised supra is answered in the negative and consequentially, the revision petition fails and liable to be rejected. 22. So far as sentence is concerned, the learned counsel for the accused stated supra, submits that accused Anand is aged 58 years, when this revision petition is filed and by this time, he has crossed 64 years and accused Mailari and Adula were 36 years of age when the petition was filed. They are the only bread earner in the family. He submits that these offences are of the year 2016 and already 8 years have been lapsed. These accused persons have suffered mentally, physically and financially. If they are sentenced to undergo as ordered by - 15 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 the Trial Court, they would suffer lot. Therefore, he submits to show leniency in imposing the sentence. 23. On the other hand, the learned AGA submits that the Trial Court is justified in imposing the sentence which do not require any inference by this Court. 24. As the offence is of the year 2016, in view of the submission of the counsel for the accused, if some lenient view is taken in imposing the sentence, it would meet the ends of justice. Though the learned Trial Court has imposed sentence of 3 years as stated supra, for each offence, in view of the facts and circumstances of the case, if the said sentence is modified, and if the accused persons are sentenced to undergo simple imprisonment for a period of one year each for the offences under Sections 457 and 380 of IPC, it would meet the ends of justice. Therefore, the accused persons named above, being the petitioners are sentenced as stated above. With this view, the revision petition filed by the petitioners deserve to be allowed with modification in sentence. - 16 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 25. Resultantly, I pass the following: ORDER i. The criminal revision petition filed by the petitioners-accused is allowed in part. ii. The petitioners i.e. accused Nos.1, 2 and 5 in CC No.324/2016 are sentenced to undergo simple imprisonment for a period of one year each for the offences punishable under Sections 457 and 380 of IPC. So far as imprisonment of fine is concerned, there is no interference and it is maintained. iii. The learned Trial Court is directed to secure the presence of the accused and commit them to prison forthwith. iv. Accused Nos.1, 2 and 5 are entitled for set off of the period already undergone in - 17 - NC: 2025:KHC-D:539 CRL.RP No. 100487 of 2022 custody by them as contemplated under Section 428 of Cr.P.C. v. Send the order portion of judgment to the trial Court and learned First Appellate Court for compliance through mail. vi. Send back the Trial Court Records along with copy of this judgment to the concerned Trial Court forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE SK/ct-an List No.: 1 Sl No.: 0