- 1 - NC: 2025:KHC-D:537 CRL.RP No. 100485 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. 100485 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 HARINSHIKARI, AGE. 36 YEARS, OCC. COOLIE, R/O. SAJJI HOLA, KOPPAL, TQ & 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:537 CRL.RP No. 100485 of 2022 AND: THE STATE OF KARNATAKA, BY IT’S 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. 53/2018 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. 310/2016, 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:537 CRL.RP No. 100485 of 2022 CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR ORAL ORDER (PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR) The petitioner Nos.1 to 3 by filing this petition have questioned the judgment of conviction and order of sentence dated 23.11.2018, passed in CC No.310/2016 by the Senior Civil Judge and CJM Koppal, (for short, ‘the Trial Court’) and also the judgment of confirmation of the said judgment in Crl.A.No.53/2018 dated 23.08.2022 by the Principal District and Session Judge, Koppal, (for short, ‘the Lower Appellate Court). Petitioner Nos.1, 2 and 3 were accused Nos.1, 2 and 5 in the said criminal case. 2. Parties to this revision petition are referred to as per the rank before the Trial Court for convenience. 3. That these accused along with accused Nos.3 and 4 were chargesheeted by the Police Inspector, Koppal Town Police Station for the offences punishable under Sections 457 and 380 of IPC, on the ground that the said - 4 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 accused persons on 22.05.2016, at 1.00 am, at Koppal Town, Marishantaveer Nagar in furtherance of their common intention carried iron rods and batteries with them and committed lurking housing trespass into the house of the complainant Veerabadrappa Basappa Angadi, broke open the lock of the house and it was accused no.2 did the said act and entered the bedroom, broke open the Almeria and committed the theft of 8 gms. of 2 pair of golden earrings and cash of Rs.6,000/- from the house of the complainant. 4. Initially, these accused persons were arrested in CC No.271/2016 and were enlarged on bail. On completion of the investigation, the Investigating Officer has filed the charge sheet before the jurisdictional Magistrate who took cognizance of the offences, supplied the Police papers to the accused and framed the charges against the accused for the aforesaid offences for which these petitioners and other accused stated supra pleaded not guilty. 5. To prove the case of the prosecution, in all 8 witnesses were examined by the prosecution in the shape - 5 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 of PWs.1 to 8 and got marked Exs.P1 to P6, closed prosecution evidence. Thereafter, accused were questioned under Section 313 of Cr.P.C. 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. The learned jurisdictional Magistrate on hearing the arguments, and on appreciation of evidence, found the accused guilty of the said offences and on hearing the accused on the question of sentence, sentenced them as under:- “The accused persons are sentenced to undergo simple imprisonment for 3 years each for the offence punishable U/s.457 of IPC and to pay fine of Rs.2,000/- each. In default of payment of fine the accused shall undergo simple imprisonment for 3 months each. The accused persons are sentenced to undergo simple imprisonment for 3 years each for the offence punishable U/s. 380 of IPC and to pay fine of Rs.2,000/- each. In default of - 6 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 payment of fine the accused shall undergo simple imprisonment for 3 months each. The both sentences shall run concurrently. The interim order made with regard to release of M.O.1 is made absolute.” 6. This judgment of conviction and the order of sentence was challenged by all the accused persons before the Principal District and Sessions Judge, Koppal, by filing Crl.A.No.53/2018 and on hearing the arguments, and reassessment of the evidence, the learned First Appellate Court dismissed the appeal. This is how now the present petitioners are before this Court challenging the impugned judgments. 7. I have heard the arguments of the learned counsel Sri. Bhushan B. Kulkarni, for the petitioners and Sri. Praveen K Uppar, the learned AGA for respondent- State. Perused the records. - 7 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 8. Learned counsel for the petitioners / accused submit that, none of the ingredients of the offences under Sections 457 and 380 of IPC are fulfilled by the prosecution. According to his submission, both the trial Court as well as the learned First Appellate Court have committed a grave illegality and infirmity in appreciating the evidence. He would submits that, the accused are innocent and they are falsely implicated in this case along with other criminal cases. They are now branded as habitual offenders, but no criminal Court has convicted them for such offences in the manner put forth by the prosecution. In addition to the grounds urged in the revision petition, he submits that in view of the wrong findings of the Courts below, this revision petition is filed and hence, he prays to allow the petition and set aside the impugned judgments. Consequently, he prays to acquit the accused of the charges leveled against them. 9. As against this submission, the learned AGA with all force submits that, the learned trial Court as well as the learned First Appellate Court based upon the evidence of - 8 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 the complainant and other witnesses especially that of a recovery pancha have rightly concluded that at the instance of the accused persons, the subject matter of theft was recovered which was identified by the complainant as belonging to him. He would further submit that in view of the sound findings given by the learned trial Court and the learned First Appellate Court, this Court cannot exercise its power under Section 397 of Cr.P.C. as the powers of this Court are limited. He submits that the well reasoned judgment of the Courts below cannot be interfered with and prays to dismiss the revision. 10. I have given my anxious consideration to the arguments of both the side. Perused the records. 11. In view of the rival submissions of both the side, the only point that would arise for my consideration is “whether the learned trial Court as well as the learned First Appellate Court have committed any illegality or perversity in appreciating the evidence in passing the judgment of conviction and order of sentence?”. - 9 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 12. My answer to the above point is in the negative for the following reasons:- In a case of present nature, it is bounden duty of the prosecution to prove the guilt of the accused to the hilt. That means in case of theft, recovery of the subject matter of the theft from the possession of the accused person plays an important role. Because if a persons is found in possession of the property, either he may be owner of the property or must be the receiver of the stolen property or he may be a thief. If he is able to establish that, he is the owner of the property, then the prosecution need not prove other aspects and if not, inference has to be drawn about the conduct of the person. 13. Sofar as theft of MO. No.1 is concerned, prosecution much relies upon the evidence of PW1-the complainant. According to his evidence, on 19.05.2016, his wife had gone to Halageri village and on 20.05.2016, when he went to Halageri village, he has put a central lock to the main door of his house. On 21.02.2016, he went to Hubli with his family. At 2.00 pm on that day, CW5 called him on - 10 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 telephone and informed that there was breaking open of central lock put to his main door. He rushed to his house at 6.00 pm, and noticed breaking open of bedroom lock and the clothes kept in the locker were scattered. He noticed missing of golden ear rings and cash of Rs.6,000/- and came to know that there was a stealing of these articles. To that effect, he lodged a complaint at Ex.P1 on 22.05.2016 and accordingly, the Police came to the scene of offence and prepared the panchanama in his presence and in the presence of panchas. Thereafter, he was called to the Police Station on 13.08.2016, and showed five accused persons and MO.1 which he identified. This PW1- complainant is cross examined by the defence. Except the denial in the cross examination, nothing worth is elicited. Coupled with that, the prosecution examined PW2 Vasant Mohan Kurdaker, the goldsmith who had weighed this MO.1 in the Police Station after seizure of the same from the possession of the accused. Though he has been cross examined but weighing of 8 gms. ear rings is not disputed by the defence. As per his evidence Police wrote - 11 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 panchanama with regard to the weighing of the said gold ornament which was recovered from the possession of the accused. This PW2 has withstood the test of cross examination. Likewise, PW3-Manjunath Ninganagouda Patil was present at the scene of offence and in his presence, the panchanama was conducted as per Ex.P3. The fact of preparing the panchanama is not denied by the defence. PW4-Sharanabasanagouda is a person who informed about the breaking of the central lock of the door of the complainant house has come before the trial Court and deposed about the same. He too was cross examined but nothing worth is elicited. 14. PW5–Vishnu Teertha Gururarjachar a social worker had come before the trial Court and deposed that he was gone to the Police Station on 13.08.2016 and there, Police showed the accused person and on enquiry with Ananda- one of the accused, he informed about committing theft from the various houses at Koppal and at his instance, certain gold ornaments were recovered and to that effect, panchanama was prepared as per Ex.P8. He - 12 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 also identifies Ex.P5, the seizure panchanama which was prepared by the Police at the time of recovery of the subject matter of theft of various articles of different complaints. Thus, from the evidence of PW5 recovery is proved with regard to the articles seized from the possession of the accused and MO.1 is one of the said articles seized from the possession of the accused. 15. On reading the evidence of PWs.1 to 5, it do reveal that there was a theft of MO.1 in the manner stated in the complaint which was established by the prosecution by preparing the aforesaid panchanama on receipt of the complaint, Ex.P1 and subsequently, there was seizer of MO.1. 16. Merely because MO.1 was seized, it does not mean that it was accused who committed the offences. Theft is proved. To prove that it was accused persons, who were the real culprits in the commission of the crime, prosecution relies upon the evidence of PW2 as well as evidence of PW6. As per the evidence of PW6, on 12.08.2016, when himself and PW11 and PW13 were on - 13 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 night patrolling duty along with CW16, at about 11.00 pm on that day, in the department jeep, they went to various extension areas in Koppal town. When they came to BT Patil Nagar extension area, at 3.15 am, they noticed the presence of 5 persons concealing themselves under a tree. They stopped the vehicle. On seeing the Police, the said five persons tried to run away from the said place. They were caught hold and enquired. These five persons were found in possession of iron rods and small batteries. On enquiry, they disclosed their names, they confessed that during 2014, 2015 and 2016 they have committed the theft of gold and silver articles from the residential houses situated at Kalyan Nagar, Kuvempu Nagar, Bannikatti area, Vikas Nagar, Marishantaveer Nagar, Bhagyanagar Shastri Colony, Danvantari colony and T Patil Nagar. They also confessed that they have spent the money stolen and they will show the articles both gold and silver which are the subject matters of theft from various houses. They have produced iron rods and batteries which were seized. They have produced gold and silver articles which were - 14 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 seized by them under panchanama. PW5 was called for weighing the said ornaments and MO.1 is one of the said articles belongs to the complainant. Though this witness is cross examined at length, but his deputation along with other Police officials is not denied by the defence. Either before the seizure pancha or before the Investigating Officer, there is no statement given by the accused persons that the said MO.1 belongs to them. 17. That means it is a subject matter of the theft of the complainant filed by the complainant which was identified by the complainant after its seizure from the possession of the accused. Thus, recovery as contemplated under the provision of Indian Evidence Act is duly proved in accordance with law. 18. PW7-Amaregouda was the A.S.I. in between 01.03.2014 and 31.05.2016 at Koppal Police Station and he received the complaint filed by the complainant on 22.05.2016 and registered the same, and set the criminal law in motion. He went to the scene of offence, conducted the spot panchanama. As per Ex.P2, PW8 is another Police - 15 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 constable who accompanied PW6 on that day. Both PW6 and PW8 were cross examined at length, but nothing worth is elicited so as to disbelieve their version stated in their respective examination-in-chief. Thus, on cumulative reading of evidence of all the witnesses so examined in this case, none of the witnesses have supported the defence of the accused. Even there is no explanation offered by any of the accused persons during their 313 Cr.P.C. statements about possession of the said MO No.1 with them that how they came in possession of the said article. If that is so, adverse inference has to be drawn against the accused and accordingly it is drawn. 19. The learned trial Court as well as the learned First Appellate Court have rightly appreciated the evidence placed on record by the prosecution and hence come to a definite conclusion that, these accused persons were responsible for the commission of the crime of theft of MO.1 by committing lurking house tress pass into the house of the complainant and by breaking open the lock of the main door as well as Almeria have committed the - 16 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 offence of theft in the manner alleged by the prosecution. Though the learned counsel for the petitioner tried to convince this Court that these accused persons are innocent, but no such evidence is brought on record in the cross examination of any of witnesses examined by the prosecution. Therefore, I do not find any factual or legal error committed by the Courts below. Such judgment of conviction passed by the trial Court and affirmed by the Lower Appellate Court do not require any interference by this Court in this petition. 20. 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 offence 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 - 17 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 would suffer lot. Therefore, he submits to show leniency in imposing the sentence. 21. On 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. 22. 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 fact 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. 23. Resultantly, I pass the following: - 18 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 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.310/2016 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 & 5 are entitled for set off of the period already undergone in custody by them as contemplated U/s.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. - 19 - NC: 2025:KHC-D:537 CRL.RP No. 100485 of 2022 vi. Send back the Trial Court Records along with copy of this judgment to the concerned Trial Court forthwith. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE VMB/PJ/ct-an List No.: 1 Sl No.: 13