- 1 - NC: 2025:KHC-D:536 CRL.RP No. 100484 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. 100484 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. MALLARI @ 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 SHAKAMBARI Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:536 CRL.RP No. 100484 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. 52/2018 CONFIRMING THE IMPUGNED JUDGMENT OF CONVICTION DATED 20.11.2018 AND ORDER OF SENTENCE DTD. 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. 309/2016, IN SO FOR AS THE ACCUSED NOS. 1, 2 AND 5 THE PETITIONERS HEREIN AND ACCUSED NOS. 1, 2 AND 5/PETITIOERS HEREIN MAY BE ACQUITTED FOR THE ALLEGED OFFENCES UNDER SECTIONS 380 AND 457 BY ALLOWING THE REVISION PETITION. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR - 3 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) This Revision Petition is directed against, the judgment of conviction dated 20.11.2018 and order of sentence dated 23.11.2018 passed in C.C No.309/2016 by the Senior Civil Judge and CJM, Koppal, (hereinafter referred to as ‘the trial Court’) wherein accused Nos.1 to 5 were convicted and sentenced for the offences punishable under Sections 457 and 380 of IPC and this judgment of conviction and order of sentence is confirmed in Crl.A No.52/2018 vide judgment dated 23.08.2022 by the Principal District and Sessions Judge, Koppal (hereinafter referred to as ‘the First Appellate Court’). 2. The parties to this Revision Petition are referred as per their rank before the trial Court. The petitioner Nos.1 to 3 were arrayed as accused Nos.1, 2 and 5 before the trial Court. - 4 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 3. That all the accused persons were charge sheeted by the Inspector of Koppal Police Station for the offences punishable under Sections 457 and 380 of IPC based on the complaint filed by the complainant. It is alleged, that these accused persons named in the charge sheet on 26.11.2015 at 2:30 am in furtherance of their common intention to commit the theft, carried iron rods and batteries to the house of the complainant situated at Vikas Nagar of Koppal Town and committed lurking house trespass into the house of the complainant, accused No.4 broke open the lock of the house with the help of iron rod, all the accused persons went to the bed room of the complainant, broke open the almera as well as the safe locker and committed theft of three pairs of golden jumki weighing 10 grams and one silver Lakshmi mask weighing 80 grams and thus committed the aforesaid offences. 4. These accused persons were arrested in Crime No.157/2015 and on interrogation they confessed about the commission of theft of the aforesaid articles - 5 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 from the house of the complainant which were identified as MOs.1 and 2 by the complainant. Subsequently, accused were enlarged on bail. On completion of the investigation, Police filed charge sheet for the aforesaid offences punishable under Sections 457 and 380 of IPC. 5. To prove the guilt of the accused, prosecution examined 7 witnesses and got marked Ex.P.1 to Ex.P.8 and MOs.1 and 2 and closed the prosecution evidence. Thereafter, accused were questioned under Section 313 of Cr.P.C so also enable them to answer the incriminating circumstances appearing in the evidence of prosecution. They denied their complicity in the crime and did not chose to lead any defence evidence. 6. The learned trial Court, on hearing the arguments and on evaluation of the evidence, found the accused guilty of committing the offence punishable under Sections 457 and 380 of IPC and sentenced them as under: - 6 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 “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 was challenged by all the accused persons before the Principal District and Sessions Judge, Koppal by preferring Crl.A No.52/2018 which was dismissed by the appellate Court vide judgment dated 23.08.2022. Now, the present petitioners have presented this petition challenging the judgments of the Courts below by - 7 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 preferring this Revision Petition under Section 397 of Cr.PC. 8. The learned counsel for the petitioners/ accused Sri.Bhushan B. Kulkarni would submit that, the learned trial Court has failed to consider the defence of the accused and has wrongly concluded that accused are guilty of the offences as alleged. He would submit that there are material contradictions, omissions and discrepancies in the evidence brought on record which are not appreciated by the Courts below. Without properly appreciating the evidence of both the side, the Courts below have passed the impugned judgments. In addition to narrating the facts of the case, as well as the grounds urged in the petition, he prayed to allow the Revision Petition. 9. As against this submission, the learned Additional Government Advocate, Sri.Praveen K. Uppar would submit that, both the Courts below have considered the evidence in proper perspective. Theft is proved, - 8 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 recovery of MOs.1 and 2 from the possession of the accused is proved and the accused have not accounted for the same. Therefore, there is no factual or legal error committed by the Courts below in accepting the case of the prosecution. He would submit that, there are no contradictions, omissions and discrepancies in the evidence. The trial Court and the First Appellate Court have rightly appreciated the evidence and there are no grounds to interfere with the impugned judgments and prays to dismiss the petition. 10. On consideration of submissions of both side and on evaluation of the evidence adduced by the prosecution, the point that would arise for my consideration is: “Whether the trial Court and lower appellate Court have committed any illegality and infirmity in finding the accused guilty of committing criminal house trespass into the house of the complainant and committing theft of MOs.1 and 2 from his house? - 9 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 11. My answer to the above point is in the negative for the following reasons: So far as theft of MOs.1 and 2 from the house of the complainant is concerned, PW.1-Kumarswamy S/o. Hanamanthappa had come before the trial Court and deposed in line of the complaint allegations. He says that, on 25.11.2015, he went to his relations house at Musturge village by locking his house. On 28.11.2015 at 6-30 pm, he returned to the house and noticed that, door of his house was open and the cloths kept in the cupboard were scattered. He noticed missing of gold ornaments and silver articles. Therefore he lodged a complaint on 30.11.2015 as per Ex.P.1. Accordingly at 2-00 pm on that day, Police came and conducted the spot Panchanama. He states that, on 13.08.2016, he was called by the Police and accordingly he went to the Police Station with his wife, there the Police showed 5 accused persons and MOs.1 and 2 which he identified as belonging to him. He has been thoroughly cross-examined by the defence. But, he is - 10 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 consistent about theft of MOs.1 and 2 as contended in his examination-in-chief. 12. PW.2-Manjunath S/o. Devappa Iggeri is a scene of offence pancha who deposed that when Panchanama was conducted, he was very much present and in his presence, Panchanama was drawn and his signature was taken as pancha. Except denial nothing is elicited from his mouth. Thus, from the evidence of PWs.1 and 2 as well as from the evidence of Investigation Officer, who has registered the crime and set the criminal law in motion, theft of MOs.1 and 2 is produced by the prosecution. 13. Merely because, theft of MOs.1 and 2 is proved by the prosecution, it does not mean that, it was accused who have committed the crime as alleged by the prosecution. 14. PW.5-Ibrahim S/o. Nabisab and PW.7-Sanna Iranna S/o. Hanumanthappa are the Police Constables who - 11 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 were attached to Koppal Town Police Station at the relevant time were deputed to night patrolling duty on 12.08.2016. They have deposed in their evidence that, on that day, themselves and other Police officials were on night patrolling duty along with Investigating Officer and when they came to outskirts of B.T.Patil Nagar, at that time, it was 3-15 am. They noticed five persons conceding themselves under a tree. On seeing the Police Jeep, they tried to run away but they were caught hold along with iron rod and batteries. On inquiry they disclosed their names and address. They have also confessed about committing of theft in different houses in Koppal town in Kalyan Nagar, Kuvempu Nagar, Bannikatti area, Vikas Nagar, Marishantaveer Nagar, Bhagyanagar Shastri colony, Danvantari colony at mid night by breaking open the house of the different persons and stolen the golden and silver ornaments so also cash during the year 2014, 2015 and 2016 noticing the locks put to the houses situated in the above mentioned areas. They also confessed that, the said gold articles were concealed by - 12 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 them and if they were taken there, they will produce them. Accordingly, they called the panchas and it was accused No.4 who took them to his house and produced MOs.1 and 2 along with other articles. These PW.5 and 7 are consistent about such recovery of the articles from the possession of accused including MOs.1 and 2. Those articles were seized and produced in C.C. No.271/2016. 15. PW.3–Vasanth S/o. Mohan Kurdekar deposed that, on 13.08.2016 at 9-30 am, Police called him to the Police Station and showed the accused persons present is the Police Station. As per the statements of the accused persons, the subject matter of various complaint including the present complaint MOs.1 and 2 were seized in his presence by the Police at the instance of the accused persons. The Panchanama was prepared by the Police. PW.3 has weighed the said gold and silver articles including MOs.1 and 2. Though, PW.3, 4, 5 and 7 were cross-examined by the defence at length, they are consistent about apprehending of the accused and - 13 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 recovery of MOs.1 and 2 along with other articles from the possession of the accused. Except denial in the cross- examination, nothing is elicited from the mouth of these witnesses. 16. PW.6-Fakkiramma W/o. Giddappa, the Investigating Officer of the Koppal Town Police Station registered the case based on the complaint and conducted the spot Panchanama as per Ex.P.2. This fact is not denied by the defence. 17. On cumulative reading of all the evidence, it do demonstrate that the accused persons stated in the charge sheet including the petitioners were found by the Police at the early hours with deadly weapons and at their instance MOs.1 and 2 were recovered and identified by PW.1 as belonging to him. There is no explanation offered by accused that they are the owners of MOs.1 and 2. From the evidence of recovery panchas and the evidence of Investigating Officer, recovery of MOs.1 and 2 is duly proved by the prosecution as per the provisions of Indian - 14 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 Evidence Act. When there is no explanation offered by the accused either in the cross-examination or during their statement under Section 313 of Cr.P.C, then adverse inference has to be drawn against the accused that, they are not the owners of the property but they are the real culprits and they have committed the offence of house trespass as well as theft of MOs.1 and 2. Accordingly, adverse inference is drawn against the accused. 18. As the learned trial Court and First Appellate Court have rightly concluded that the accused are guilty of committing the said offences, I do not find any factual or legal error in finding the accused guilty by the Courts below. By exercising revisional powers under Section 397 of Cr.P.C this Court cannot interfere into the judgments of Courts below. Hence, the point raised supra is answered in the negative. 19. So far as sentence is concerned, the learned counsel for the accused would submit that, accused Anand is aged 58 years, when this revision petition is filed and by - 15 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 this time, he has crossed 64 years and accused Mailari and Adalu were 36 years of age when the petition was filed. They are the only bread earners in their respective families. 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 the trial Court, they would suffer lot. Therefore, he submits to show leniency in imposing the sentence. 20. On the other hand, the learned Additional Government Advocate 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 sentence of 3 years as stated supra, for each offence, in view of the facts and circumstances of the case, - 16 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 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 punishable 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 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 C.C No.309/2016 are sentenced to undergo simple imprisonment for a period of one year each for the offences punishable under Sections 457 and 380 of IPC. Sofar as imprisonment of fine is - 17 - NC: 2025:KHC-D:536 CRL.RP No. 100484 of 2022 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. 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 to the concerned Trial Court along with copy of this judgment forthwith.[ Sd/- (RAMACHANDRA D. HUDDAR) JUDGE PJ/ct-an List No.: 1 Sl No.: 5