- 1 - NC: 2025:KHC-D:540 CRL.RP No. 100488 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. 100488 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:540 CRL.RP No. 100488 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 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED JUDGMENT AND ORDER DATED 23.08.2022 PASSED BY THE PRL. DISTRICT AND SESSIONS JUDGE, KOPPAL IN CRIMINAL APPEAL NO. 49/2018 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. 271/2016, 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 MAY BE ACQUITTED FOR THE ALLEGED OFFENCES U/SEC. 380 AND 457 BY ALLOWING THE REVISION PETITION. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 3 - NC: 2025:KHC-D:540 CRL.RP No. 100488 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 directed challenging the judgment of conviction dated 20.11.2018 and an order of sentence dated 23.11.2018 passed by the Senior Civil Judge and C.J.M, Koppal in CC No. 271/2016 confirmed in Criminal Appeal No.49/2018 by the Prl. District and Sessions Judge Koppal vide judgment dated 23.8.2022. 2. Parties to this Revision petition are referred to as per their rank before the trial Court. The Revision petitioners were accused Nos.1, 2 and 5 before the trial Court. 3. The brief and relevant facts as per the case of the prosecution are that these accused and accused Nos. 3 and 4 were charge sheeted by the Police Inspector Town Police Station Koppal for the offences punishable under Sections 457 and 380 of IPC. That complainant by - 4 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 name Manjunath Vernekar, examined as PW.1 lodged a complaint before the Police Inspector Town Police Station, Koppal alleging, that on 29.8.2015 at 11 PM these accused persons in furtherance of their common intention to commit theft carried iron rods and batteries into the house of complainant situated by the side of Koppal-Gadag road besides Bannikatti area, committed criminal lurking house trespass, broke open the lock of the house of complainant. It was accused No.1 broke open the house of the complainant by using the Iron rod and all the accused persons entered the house of the complainant, entered his bedroom broke open the Almera and safe locker using the said iron rod and committed the theft of One gold chain and hangings of 120 gms weight, one Bormala weighing 5 gms, one golden chain of 15 gms, and one golden chain with pendant weighing 10 gms; one gold chaplaas chain weighing 20 gms; a golden necklace of 30 gms; a golden bracelet of 20 gms; two golden bangles weighing 50 gms; one golden coin weighing 5 gms; one gold biscuit of 50 gms; and also - 5 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 silver articles like one silver bowl of 200 gms, one silver kunkum bowl of 80 gms, one silver Lakshmi coin of 5 gms, and cash of rupees 3 lakhs. Thus they have committed the offences as stated above. 4. These accused persons were arrested by police along with the accused No.3 and 4, and subsequently they were enlarged on bail. The investigation officer on completion of investigation filed the charge sheet against accused persons named in the charge sheet. 5. Before the trial Court, to prove the guilt of the accused, prosecution examined in all 8 witnesses and got marked P1 to P9 and MOs No.1 to 10, closed prosecution evidence. Thereafter, all the accused persons were questioned under Section 313 of Cr.P.C so as to enable them to answer the incriminating circumstances appearing in the evidence of prosecution. The accused denied their complicity in the crime and did not choose to lead any defence evidence on their behalf. - 6 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 6. The learned trial Court on hearing the arguments and on appreciation of evidence, found the accused guilty of committing the offences under Section 457 and 380 of IPC and sentenced them 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 undergo simple imprisonment for three months each. The both sentences shall run concurrently”. 7. This judgment of conviction and order of sentence passed by the learned trial Court was challenged - 7 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 by all the accused persons by filing Criminal Appeal No.49/2018 before the Prl. District and Sessions Judge Koppal. The learned lower Appellate Court on hearing the arguments and on reassessment of the evidence dismissed the said appeal on 23.8.2022. This is how, now these accused Nos.1, 2 and 5 are before this Court challenging the said judgment of the Courts below. 8. The learned counsel for the petitioners/accused, Bhushan B. Kulkarni, in addition to narrating the facts of the case and also the grounds urged in the Revision petition submits that, the learned trial Court as well as the first appellate Court have committed illegality in appreciating the evidence placed on record by the prosecution. He would further submit that there is no proof regarding the commission of theft of the gold ornaments that have been stolen from the house of the complainant in the manner stated. The police have booked not only this case but also other cases against the accused persons and thereby falsely implicated them. He - 8 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 would further submit that there is no proper appreciation of evidence either by the trial Court or by the lower appellate Court. He would submit that there are sufficient contradictions, omissions and discrepancies in the evidence led by the prosecution and they are not considered by both the Courts below. He would further submit that, when the recovery of the articles alleged to have been seized from the possession of the accused persons, nothing remains in this case. He would submit that there are contradictions in the evidence of the recovery panchas. The investigation officer who has conducted the investigation is not examined, which is fatal to the case of the prosecution. Amongst other grounds, he submits to allow the Revision petition and set aside the impugned judgments. Consequently he would submit that, the accused persons are entitled for acquittal. 9. As against this submission, the learned Praveen Uppar, Additional AGA, submits that the learned trial - 9 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 Court and the learned Appellate Court by considering the evidence placed on record by the prosecution, have come to a definite conclusion that these accused persons committed the offences as alleged in the charge sheet. There is no explanation offered by the accused persons as to how they came into possession of the said MO’s as well as all the gold ornaments identified by the complainant that are confronted to him i.e., the photographs. In view of the evidence brought on record especially that of a complainant and goldsmith who have weighed the articles it is proved that, accused have committed the theft. He would submit that, both the Courts have rightly concluded and passed the impugned judgments. Hence, prayed to dismiss the Revision petition. 10. I have given my anxious consideration to the arguments of both the side, perused the records. In view of the rival submissions of both the side, the point that would raise for my consideration is: - 10 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 “Whether the Courts below have committed any illegality or infirmity in appreciating the evidence placed on record by the prosecution and have wrongly convicted and sentenced the accused persons?” My answer to the above point is in the negative for the following reasons: 11. So far as the theft of articles so stated in the complaint is concerned, prosecution relies upon the evidence of the complaint. PW.1 the complainant, Manjunath Vernekar has come before the trial Court and stated, that on 29.8.2015 himself and his wife went to Hubli from Gadag and returned to the house at 12:15 midnight. When they tried to open the main door, it did not open. They went to the back door, and it was found that it was open. They went to the bedroom and noticed the scattering of all the clothes and also the opening of the cupboard. According to the evidence of PW.1, on examining it, he noticed that, the gold ornaments and - 11 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 silver articles so stated in the complaint were found missing. They are as under: “CzÀ£ÀÄß ¥Àj²Ã°¹zÁUÀ CzÀgÀ°ènÖzÀÝ 1. MAzÀÄ §AUÁgÀzÀ ºÁgÀ ªÀÄvÀÄÛ ºÁåAVAUï ¸Émï, 2. §AUÁgÀzÀ ¨ÉÆgÀªÀiÁ¼À ¸ÀgÀ, 3. §AUÁgÀzÀ ZÉÊ£À, 4. §AUÁgÀzÀ ¥ÀzÀQ£À ¸ÀgÀ, 5. §AUÁgÀzÀ ZÀ¥ÀàgÀ ¸ÀgÀ, 6. §AUÁgÀzÀ £ÉPÀè¸ï, 7. §AUÁgÀzÀ ¨Áæöå¸À¯ÉÊl, 8. §AUÁgÀzÀ JgÀqÀÄ §¼ÉUÀ¼ÀÄ, 9. MAzÀÄ §AUÁgÀzÀ £Átå, 10. MAzÀÄ §AUÁgÀzÀ UÀnÖ, 11. MAzÀÄ ¨É½îAiÀÄ ¥ÀÄnÖ, 12. MAzÀÄ ¨É½îAiÀÄ PÀÄAPÀĪÀÄ §lÖ®Ä, 13. MAzÀÄ ¨É½îAiÀÄ ®Qëöä £Átå ºÁUÀÆ 3 ®PÀë gÀÆ. ºÀt EgÀ°®è”. 12. Then they understood that somebody must have committed theft of these articles. On 30.8.2014 he lodged the complaint as per Ex.P1. It is his evidence that, at 6 p.m., police came to the spot and conducted the spot mahazar. He identified the said gold ornaments and silver articles that were seen in the photographs at Ex.P4 to P7. Himself and his wife identified them after 8 months, in the police station. It is submitted that the said ornaments were got released to his interim custody. 13. PW.2 Ravindra Narayan Gadagi is a scene of offence pancha. He states, in his presence on 30.8.2015 in the evening hours, police conducted the spot panchanama at Ex.P2. The presence of PW2 and PW1 at - 12 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 the time of conducting a panchanama is not denied by the defence in material particulars. Though there is a cross- examination directed to PWs.1 and 2 by the defence, nothing worth is eliciated from their mouth. Coupled with that, we have the evidence of other witnesses wherein PW6 Ibrahim Nabisab, the constable attached to the Koppal town police station has come before the trial Court and stated, that on 12.8.2016 himself and other police constables arrayed as CW11 and 13 were deputed for night patrolling duty, along with CW15. At about 11 a.m. they started night patrolling duty from their Police station in a departmental jeep and went to Bhagya Nagara, Kalyana Nagara, and B T Patil Nagara extension. When they came to the said extension at about 3:15 a.m., they noticed the presence of 5 persons conceding themselves under a tree. They stopped the vehicle and caught hold of the five persons who tried to run away. They were in possession of iron rods and small batteries marked MO Nos. 1 to 10. On enquiry they told their respective names and also confessed, that they had committed house - 13 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 trespass during night hours into the various houses situated at various places like Kalyana Nagara, Kuvempu Nagara, the Bannikatti area, Vikasa Nagara, Mari Shantaveera Nagara, and Shartri Colony in Bhagya Nagara and Dhanvantri Colony. Thus they committed the theft of the gold ornaments, silver articles and money. They gave their voluntary statements. From their possession, gold ornaments were seized that belonged to the complainant and others. There is no effective cross- examination directed to PW.6 by the defence. Though there are certain contradictions brought on record in the cross-examination that will not go to the root of the case. Thus from the evidence of PW1, 2 and 6, it is proved by the prosecution that there was theft of the gold ornaments and silver articles kept in the house of the complainant who is a goldsmith. 14. 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 - 14 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 of the accused. Those photographs are marked at Ex.P4 to 7. This fact is not denied by the defence. 15. PW4-Babusab S/o. Alam Sab, a person doing the private employment, had come before the Trial Court and deposed that himself and CW7 were called to the Police Station on 13.08.2016, and there the police showed the accused persons, and from them they recovered five iron rods and five batteries under panchanama Ex.P.8 and marked as MO Nos.1 to 10, so also gold and silver articles were seized and produced, before the court and they were identified by them. Thought this PW4 is intensively and rigorously cross- examined by the defence, he is consistent about the seizure of MOs in his presence by the police in the Police Station and also he is a signatory to the panchanama at Ex.P.8 and 9. Therefore, recovery of MOs are also subject matter of this case used by the accused for committing the offence so stated above and it is proved by the prosecution. - 15 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 16. Merely because the prosecution is able to establish the theft of the said articles by using MO Nos.1 to 10 by the accused persons do not mean that, the accused persons are guilty of the crime. To prove that the said articles were seized from the possession of the accused, the prosecution examined witnesses like PW.4 Babusab Alam Sab, before whom MO No.s1 to 10 were seized by the police under panchanama at Ex.P8. So also, these accused persons independently took the police to various places, including the house of the accused involved in this case and produced the gold ornaments belongs to the complainant, which were seized under Ex.P9. Accused Ananda confessed that he is in possession of the articles belonging to the complainant. He has stated so in his confession statement and has produced all the articles that were identified by PW.4. Coupled with that, prosecution relies upon the evidence of PW.5 Vishnu Teertha S/o Gururajachyar; he is the pancha to the recovery of these articles. He too has stated, about the seizure of MOs Nos.1 to 10 under Ex.P8 and the seizure of - 16 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 gold and silver ornaments under Ex.P9. So far as apprehension of the accused as well as interrogation and voluntary statements by the accused is concerned, PW6 has stated in his evidence. Further, PW.7 Sanna Iranna was another Police constable who accompanied PW6 at the time of patrolling and he too corroborated the evidence of PW6 in material particulars. The criminal law was set in motion by receiving the complaint by PW.8 Mohan Prasad, who received the complaint as per Ex.P1 and registered the same, went to the scene of offence and conducted the spot panchanama at Ex.P2. 17. On scrupulous reading of the entire records placed by the prosecution through these PWs.1 to 8, though all these witnesses have been cross-examined intensively, they withstood the test of a cross- examination. Though there are some omissions and contraindications, as stated above, they will not go into the root of the case. It was the goldsmith who weighed them and all the articles which are the subject matter of - 17 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 theft were identified not only by the complainant but also his wife which is not denied by the defence. When possession of the said articles with the accused is proved who had not offered any proper explanation with regard to the possession of the same, then the adverse inference has to be drawn against the accused. In a case of present nature, it is the duty of accused persons to give proper explanation about the possession. The presumption is that, if a person is found in possession of some article, he may be the owner of the property, or the receiver of the same or a thief. In this case none of the accused persons are the owners of the said gold ornaments and silver articles. Those articles are belonging to the complainant. That means when these accused persons are not the owners of the same, then the presumption is that they may be the receivers of the stolen property. There is no explanation for that. So also when there is no proper explanation, then the presumption is that they are the thieves. Therefore, if all these factual features coupled with position of law with regard to the recovery of the - 18 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 said articles as contemplated under the provisions of the Indian Evidence Act is put together, it can be stated that, these accused persons are responsible for the commission of the crime in the manner alleged in the complaint. The complainant, being a goldsmith, was in possession of so many gold ornaments as well as silver articles, and the possibility of possession the same by a goldsmith cannot be ruled out. He had kept the same in his house in an Almera and in his absence such an offence was committed; the said articles were duly seized by the police. Therefore, the chain of the circumstances with regard to the commission of the crime is duly proved in accordance with the law. Thus, even on reappraisal of the evidence by the lower appellate Court, it has not found any infirmity in the impugned judgment passed in the trial Court. 18. In this Revision petition, this Court cannot exercise revisional power and set aside the impugned judgments unless the impugned judgments are perverse - 19 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 and capricious. Therefore, when there are concurrent findings with regard to the guilt of the accused, this Court cannot lightly interfere with the impugned judgments. I do not find any factual or legal error committed by the trial Court as well as the lower appellate Court in passing the impugned judgments. Therefore, there are no grounds so made out by the Revision petitioner/accused to interfere with the well-reasoned judgments of the trial Court as well as the first appellate Court. Hence, the point raised supra is answered in the negative and consequentially, the revision petition fails and is liable to be rejected. 19. So far as the sentence is concerned, the learned counsel for the accused would submit that, the accused Anand is aged 58 years when this revision petition is filed and by this time, he has crossed 64 years, and the accused, Mailari and Adula were 36 years of age when the petition was filed. They are the only bread earners in the family. He submits that these offences are by the year - 20 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 2016 and already 8 years have lapsed. These accused persons have suffered mentally, physically and financially. If they are sentenced to undergo as ordered by the Trial Court, they would suffer a lot. Therefore, he submits to show leniency in imposing the sentence. 20. 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. 21. 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 a sentence of 3 years as stated supra for each offence, in view of the facts and circumstances of the case and the gravity of the offence, 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, - 21 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 the accused persons named above, being the petitioners are sentenced as stated above. With this view, the revision petition filed by the petitioners deserves to be allowed with modification of sentence. 22. 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.271/2016 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 imposition 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 persons and commit them to prison forthwith. iv. Accused Nos.1, 2 and 5 are entitled for set off of the period already undergone in custody by them as contemplated Under Section 428 of Cr.P.C. - 22 - NC: 2025:KHC-D:540 CRL.RP No. 100488 of 2022 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