- 1 - NC: 2025:KHC-D:538 CRL.RP No. 100486 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. 100486 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 MANJANNA E Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:538 CRL.RP No. 100486 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 PRL. DISTRICT AND SESSIONS JUDGE, KOPPAL IN CRIMINAL APPEAL NO. 51/2018 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. 326/2016, IN SO FOR AS THE ACCUSED NOS. 1, 2 AND 5 THE PETITIONERS HEREIN AND ACCUSED NOS. 1, 2 AND 5 /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:538 CRL.RP No. 100486 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 against the judgment of conviction and order of sentence dated 23.11.2018 passed by the Senior Civil Judge and C.J.M, Koppal in CC No.326/2016 and confirmed in Criminal Appeal No.51/2018 vide judgment and order dated 23.8.2022 by the Prl. Dist and Sessions Judge Koppal. Petitioner Nos. 1, 2 and 5 of this petition were accused Nos. 1, 2 and 5 in the aforesaid criminal case before the trial Court. 2. The parties to this Revision Petition are referred with reference to their rank before the trial Court. 3. These petitioners/Accused were chargesheeted along with accused no 3 and 4 by the Police Inspector, Town Police Station Koppal for the offences punishable under section 457 and 380 of IPC on the allegation, that - 4 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 the accused named in the charge sheet at 3 a.m. on 5/1/2015 in furtherance of their common intention to commit the theft by using the iron rods and batteries committed lurking house trespass into the house of the complainant by name Vasanth Mohan Kuradekar situated at Kuvempu Nagar Koppal town and broke open the lock of the house of the complainant by using iron rod, opened the almera kept in the bedroom by using the iron rod, opened the safe locker committed theft of a 20 golden beats, and also two pairs of a kids leg chain. 4. The aforesaid accused persons were arrested by the police in CC No.271/2016 and they confessed on interrogation about the commission of the theft of the aforesaid gold ornaments and silver articles marked at MO Nos. 1 and 2 in this case from the house of the complainant. On recovery of the said articles and on completion of investigation, a charge sheet was filed against accused persons for the aforesaid offences. - 5 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 5. To prove the guilt of the accused, prosecution in all examined 9 witnesses and got marked Ex.P1 to P4 and MO’s No. 1 and 2, closed prosecution evidence. Thereafter, accused were questioned under Section 313 of CrPC so as to enable them to answer the incriminating circumstances appearing in the evidence of the prosecution. They denied their complicity in the crime and did not choose to lead any defence evidence on their behalf. 6. The learned trial Court on hearing the arguments and on evaluation of the evidence found the accused guilty of committing the offence 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 - 6 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 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 the petitioners along with accused No. 3 and 4 in Criminal appeal No.51/2018 before the Prl. District and Sessions Judge, Koppal. The lower appellate Court on hearing the arguments and on reassessment of evidence confirmed the judgment of the trial Court. Now the petitioners stated above are before this Court challenging the judgment of the Courts below. 8. The learned counsel for the petitioner Sri Bhushan B. Kulkarni, in addition to narrating the facts of the case as well as grounds urged in the Revision petition submits that based upon the evidence of the recovery pancha the learned Courts below found the accused guilty - 7 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 of committing the aforesaid offences. He would submit that there is no proper appreciation of evidence by the Courts below in passing the impugned judgments. He would further submit that only on presumption and assumption the trial Court has convicted and sentenced the accused and which is wrongly confirmed by the lower appellate Court. In support of his submission he relied upon the so called contradictions, omissions and discrepancies alleged to have been brought on recorded in the cross-examination. He prays to allow the revision petition and set aside the impugned judgments. 9. As against this submission, the learned Sri. Praveen K. Uppar AGA submits that, both the Courts below have properly appreciated the evidence placed on record by the prosecution. The complainant has spoken about theft of MO Nos. 1 and 2 from his house. His evidence is supported by panchas evidence i.e., seen of offence pancha. He would submit that on recovery of the articles from the possession of the accused persons, the police - 8 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 called the complainant to the Police Station and showed MO Nos. 1 and 2. It was complainant who identified MO Nos. 1 and 2 as belonging to him. There was recovery of these MO Nos. 1 and 2 from the possession of the accused who had not given any proper account for the possession of the same. He would submit that the both the Courts below have rightly appreciated the evidence placed on record and rightly passed the impugned judgments which do not require any interference by this Court under Section 397 of Cr.P.C. 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 consideration is; Whether the trial Court and lower appellate Court have committed any illegality or infirmity in finding accused guilty of committing criminal house trespass into the house of the complainant - 9 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 and committing theft of MO Nos. 1 and 2 from his house? My answer to the above point is in the negative for the following reasons: 11. PW2-Mohammad Rafiq is the complainant in this case. He deposes that, about 3½ years back prior to filing of a complaint by putting lock and key to his residential house situated at Kovempu Nagar, Koppal town, himself and his wife and children went to Abbigeri village. After two days of the same, one Shivanna called him on his mobile phone and informed about breaking open of a key put to his house. Immediately himself, his family members and relations rushed to the house and noticed missing of MO Nos.1 and 2 from his house and to that effect, he filed a complaint as per Ex.P.1. It is his evidence that the police on registering the crime came to his house conducted spot panchanama as per Ex.P.2 in the presence of panchas. After 1 ½ years of alleged theft, he was called to the police station and police showed MO - 10 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 Nos.1 and 2 to him. He identified them as belonging to him. It was informed to the complainant by the police that, these accused persons have committed the theft by committing lurking house trespass into his house. 12. Though this PW2 is cross-examined at length but he is firm in his evidence about his absence in his house with his family members and had gone to Abbigeri village by putting lock and key to his house. In his absence, there was theft of MO Nos.1 and 2. Except the denial of the case of the prosecution nothing is elicited form his mouth. Thus, from the evidence of PW2, it is proved that, there was theft of gold ornaments and silver articles marked as MO Nos.1 and 2 from his house. The evidence of PW2 is corroborated by the evidence of PW3- Mohammed Saleem who was pancha to Ex.P.2, the spot panchanama. As per his evidence, in his presence the police prepared the panchanama of the scene of offence. The presence of PW3 on the spot at the time of panchanama is not denied properly by the defence. - 11 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 Therefore, evidence of PW3 supports the evidence of PW2- the complainant in material particulars about theft of MO Nos.1 and 2 in the manner stated by PW2. 13. 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, five batteries under panchanama Ex.P.3. Those articles were seized and produced in C.C.No.271/2016. He identified them as MO No.1 to 10. Thought this PW4 is intensively and rigorously cross examined by the defence but he is consistent about seizure of MO No.1 to 10 in his presence by the police in the Police Station and also he is a signatory to the panchanama Ex.P.3. Therefore, recovery of MO No.1 to 10 so marked in C.C.No.271/2016 which are also subject matter of this case used by the accused for committing the offence so stated above is proved by the prosecution. - 12 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 14. PW5- Mohammad Rafi S/o. Raja Mohammad pancha to Ex.P4 has been turned hostile. He has been cross examined by the prosecutor but nothing worth is elicited by him, therefore, his evidence becomes inconsequential to the case of the prosecution. 15. PW6-Faizal Bari S/o. Khader Basha, resident of Koppal had come before the Trial Court and deposed that, on 17.8.2016 he was called to the Koppal Police Station at 2.00 p.m., and there he noticed the presence of accused persons along with the accused-Sanna Ganga. All the accused confesed about the committing theft of MO Nos.1 and 2 from the house the complainant and to that effect Ex.P4 recovery panchanama was prepared by the police in his presence. Though searching cross-examination is directed, according to him at the instance of the accused the said MO No.1 and 2 were seized by the police. Thus, from the possession of accused persons MO No.1 and 2 were seized by the Police in the presence of panchas. No doubt the said articles were seized at the instance of - 13 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 accused-Sanna Ganga but, as per the case of the prosecution all the accused persons together in furtherance with common intention have committed such an offence. Therefore, rightly the Trial Court as well as the First Appellate Court appreciated the evidence with regard to seizing of MO Nos.1 and 2. 16. PW1 has come before the Trial Court and deposed that on 17/8/2016, he was called to the Police Station. At the Police Station, at that time, accused-Sanna Ganga was there and on enquiry he has confessed about commission of theft along with other accused persons of MO Nos.1 and 2 by committing trespass into the house of the complainant and accordingly, the said articles were seized at the instance of he accused person. This witness identified MO Nos.1 and 2 having weighed them. He further deposed that to that effect panchanama was prepared by the police. 17. He has denied all the suggestions directed to him. This PW1 is the goldsmith called to the Police Station - 14 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 to weigh the gold articles and silver ornaments seized from the possession of the accused. This fact is not denied by the defence. 18. PW7-Yallappa S/o. Ningappa Doddamani was the Police Constable of Koppal town Police Station at the relevant time and he deposed that himself and other officials like Ibrahim, Sanna Iranna and Nisar Police Constables were deputed for night patrolling duty on 12.08.2016. 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 concealing themselves under a tree. On seeing the police, they tried to run away but they were caught hold and interrogated. At that time, they confessed 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 - 15 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 the accused persons named in the charge sheet were brought to the Police Station and at the instance of the accused persons, the said ornaments stated in the charge sheets so filed against accused were seized. Amongst them, MO Nos.1 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. 19. This witness is cross-examined by the defence intensively. But throughout his cross-examination, he is consistent about catching hold of these accused persons who have cancelled 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 PW6 and 7, it is duly proved by the prosecution that these accused persons are responsible for the commission of the crime as alleged by the prosecution. 20. PW8-Hanumathappa S/o. Yamanappa Malkapur, was the ASI of Koppal Police Station at the relevant time. - 16 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 On 5.1.2015 at 12.00 noon, he received a computerized complaint filed by the complainant as per Ex.P.1. Registered the crime and set the criminal law in motion. He went to the scene of offence and conducted spot panchanama as per Ex.P.2 and recorded the statement of PW4 to 6. Receipt of the complaint, preparation of spot panchanama by him is not denied by the defence. Therefore, the evidence of PW8 has to be accepted that he has received the complaint and set the criminal law in motion. He prepared the panchanama of the scene of offence. 21. PW9-Vishnu Teertha S/o. Gururajachar is the pancha to Ex.P.3 in whose presence MO Nos.1 to 10 was seized. The evidence of PW9 is corroborated with the evidence of other evidence examined in the shape of PW1, 4 and PW7. There is no effective cross-examination directed to this witness to disbelieve his version given in the examination-in-chief. - 17 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 22. 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 for committing the offences 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 convicted 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 MO Nos.1 and 2 from whom the said material objects were seized. Therefore, adverse inference has to be drawn that the accused are the real culprits. Accordingly, it is drawn. 23. 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 - 18 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 Revisional jurisdiction. Hence, the point raised supra is answered in the negative and consequentially, the revision petition fails and liable to be rejected. 24. 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 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 the Trial Court, they would suffer lot. Therefore, he submits to show leniency in imposing the sentence. 25. 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. - 19 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 26. 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 deserves to be allowed with modification of sentence. 27. Resultantly, I pass the following: ORDER i. The criminal revision petition filed by the petitioners-accused is allowed in part. - 20 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 ii. The petitioners i.e., accused Nos.1, 2 and 5 in CC No.326/2016 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 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. - 21 - NC: 2025:KHC-D:538 CRL.RP No. 100486 of 2022 vi. Send back the Trial Court Records to the concerned Trial Court along with copy of this judgment forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE Sk/ct-an List No.: 1 Sl No.: 0