- 1 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2026 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA CRIMINAL REVISION PETITION NO.858 OF 2018 (397(Cr.PC) / 438(BNSS) BETWEEN: SRI M C AZIZ @ RIJI PRESENTLY AGED 43 YEARS SON OF SRI MOHAMMED @ THANGAPPAN, RESIDENT OF SUNTICOPPA HOBLI, 7TH HOSKOTE VILLAGE- 571 237, SOMWARPET TALUK, KODAGU DISTRICT, NATIVE OF NELAMBUR 3 676 505, MALLAPAURAM DISTRICT, KERALA STATE &PETITIONER (BY SRI. JAGADISH BALIGA N, ADVOCATE) AND: THE STATE OF KARNATAKA REPRESENTED BY THE KUSHALNAGAR POLICE STATION, SOMWARPET TALUK, KODAGU DISTRICT - 571 234. REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU 3 560 001 &RESPONDENT (BY SRI K.NAGESHWARAPPA, HIGH COURT GOVERNMENT PLEADER) Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W 401 CODE OF CRIMINAL PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 04.07.2018 PASSED BY THE PRINCIPAL SESSIONS JUDGE, KODAGU AT MADIKERI IN CRL.A.NO.66/2013 AND THEREBY SET ASIDE THE JUDGMENT DATED 26.10.2013 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND J.M.F.C., SOMWARPET SITTING AT KUSHALNAGAR IN C.C.NO.694/2001 THEREBY ACQUIT THE PETITIONER FOR THE CHARGES FRAMED. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL ORDER Heard Sri Jagadish Baliga N., learned counsel for the revision petitioner and Sri K. Nageshwarappa, learned High Court Government Pleader for the respondent/State. 2. Revision petitioner is the accused who suffered an order of conviction in C.C.No.694/2001 for the offences punishable under Section 457 and 380 of Indian Penal code. The order of conviction and sentence was challenged before the First Appellate Court in Crl.A.No.66/2013, which came to be dismissed by considered judgment dated 04.07.2018. 3. Facts in the nutshell which are utmost necessary for disposal of the present case are as under: - 3 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 3.1. The complaint averments reveal that on 04.08.2000 at about 03.00 a.m., complainant and his family members had been to pilgrimage by locking the door of the house in a hired car. 3.2. When they returned on 05.08.2000 at about 07.30 p.m., they noticed that front door lock was opened and when they went inside the house, they noticed that some unknown culprits had broke open the ventilator with a grinding stone and illegally trespassed inside the house and broke open the lock of pooja room, bedroom and Godrej Almirah and they have stolen away sum of Rs.10,30,000/- cash and Gold ornaments and total loss was estimated at Rs.18,30,000/-. 4. On receipt of complaint, Kushalnagara Police after registering the case in Crime No.103/2000 investigated the matter and apprehended the petitioner. Based on his voluntary statement recovered the stolen articles namely, M.O.6 to M.O.14 and cash worth Rs.4,00,000/- vide M.O.17 and a necklace vide M.O.18 and other related articles and thereafter filed the charge sheet against the accused. The stolen seized - 4 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 articles were placed before the Magistrate vide P. F. No.31/2006. 5. Among the stolen seized articles, M.O.1 to M.O.3 and M.O.4 to 16 were handed over to the complainant with a direction to place it before the Court as and when directed. 6. On receipt of the charge sheet, learned Trial Magistrate took cognizance of the offences held against the accused and secured the presence of the accused and framed charges. Accused pleaded not guilty, therefore trial was held. 7. In order to bring home the guilt of the accused, prosecution proceeded to examine 19 witnesses as per Ex.P.1 to Ex.P.19 and placed on record 25 documentary evidence which were exhibited and marked as Ex.P.1 to Ex.P.25. Seventy five material objects were placed on record in support of the case of the prosecution which are marked as M.O.1 to M.O.75. 8. On conclusion of recording of the prosecution evidence, accused statement as is contemplated under Section 313 of Code of Criminal Procedure was recorded by Trial Magistrate wherein accused has denied all the incriminatory circumstances. - 5 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 9. Thereafter, learned Trial Magistrate heard the arguments of the parties and on cumulative consideration of the oral and documentary evidence placed on record noting the fact that the stolen articles were seized by the police pursuant to the voluntary statement of the accused and sentenced as under: <The accused is hereby sentenced to undergo R.I. for 2 years and fine of Rs.5,000/- for the offence punishable u/sec. 457 of IPC. In default of fine amount he shall undergo S.I. for 6 month. The accused is hereby sentenced to undergo R.I. for 3 years and fine of Rs.5,000/- for the offence punishable U/s.380 of IPC. In default of fine he shall undergo S.I for 6 months The accused is hereby directed to pay compensation of Rs.6,00,000/- under Sec.357(1) of Cr.P.C. In default of compensation he shall undergo Simple Imprisonment for six month. After realizing the compensation amount from the accused, shall be paid to the complainant. The period of J.C during the time of trial is hereby set off. The temporary release of MO No.17 to 74 to the custody of complainant made as absolute. MO. No's 1 to 3, 15, 16 and 75 are being valuable one is ordered to be confiscated and MO. No's 4 to 6 are being worthless shall be destroyed, in - 6 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 case of appeal after the appeal period is over whichever is later. Though the Bank Pass book, Passport, sale deed and photographs with negatives are marked as MO.No.76 to 82 and 79(a) to 82(a), which are kept in the record itself, as exhibits. The bail bond and surety bond of the accused is hereby stand cancelled. The sentences are run concurrently. Office is directed to furnish free copy of this judgment to the accused.= 10. Being aggrieved by the same, accused approached the District Court in Crl.A.No.66/2013. 11. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on re-appreciation of the material evidence on record dismissed the appeal inter alia holding in paragraphs 23 to 27 which reads as under: <23. Regarding this there is a cogent, consistent and reliable evidence on PW- 11/Prabhakar, PW-16/Sadananda Thippannavar, PSI and that of PW-19/P.B. Vijaya, Head Constable. Absolutely there is no challenge in their cross examination suggesting that the accused was not at all in the custody of CW-29/M.A. Hussain, Dy.S.P., as on that day and had not - 7 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 made any such disclosure statement. It is immaterial as to whether the said statement was reduced into writing, what procedural rigor ought to have observed by the Investigating Officer. Now, admittedly the said Investigating Officer CW- 29/M.A.Hussain, Dy.S.P., was no more alive by the time his case came up for trial, thereby the prosecution was handicapped to press into service the voluntary statement recorded by him. But, nevertheless the prosecution is able to place on record the evidence of these material witnesses PW-11/Prabhakar,PW16/Sadananda Thippannavar, PSI and that of PW-19/P.B. Vijaya, Head Constable who happens to be the scribe of the seizure mahazar Ex.P-10. 24. All these three witnesses have categorically deposed that, the accused led them and another panch witness Hameed to his house, removed the bag and on opening the said bag, it contained 57 gold ornaments and cash of Rs.4 Lakhs. It is also deposed by them that the accused accounted for the remaining amount, saying that he has invested some amount for purchasing the property. Just because these witnesses were not able to depose that who was the photographer who took photographs or give some of the details of the ornaments or not marking with specific number or alphabet on each of the ornaments, the inventory itself is not get falsified. The Investigating Officer has not left anything to - 8 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 guess, but has made endeavour to get Ex.P-12, the residential certificate of the accused from PW- 14/T.B.Bollamma, Grama Panchayath Secretary and has then to get further proof of what accused has disclosed about he having approached PW- 18/Rajan, the Bank Manager of South Malabar Grameena Bank, Karulai Branch and the account opened by the accused, the pass book which was seized from his house along with Passport and other gold ornaments and cash. Thereafter, he has also made endeavour to get the sale deed of the property purchased by the accused by investing the money out of the stolen cash. The suggestion that has been made to these witnesses regarding this purchase of property is to the effect that the father-in-law of the accused got purchased this property by paying the consideration amount to PW-13/Krishnan Nair. If that be so, during the cross examination of this PW-13 it could have been elicited to say that the father-in-law of the accused had actually paid the consideration amount mentioned in the sale deed. 25. It was also argued by the learned counsel for the accused that, the consideration amount mentioned in the Sale Deed is only Rs.80,000/-, but PW-13/Krishnan Nair being an Ex-Service man has deposed contrary to the contents of the sale deed saying that he has received Rs.4,50,000/- i.e. Rs.1,00,000/- earnest money and thereafter, remaining balance amount - 9 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 at the time of registration of the sale deed. It is a common knowledge that the purchaser would show minimum value of the property purchased by him to avoid payment of stamp duty. Therefore, it cannot be said that PW-13/Krishnan Nair has deposed falsehood. In fact he has parted the property according to him for a valid consideration of Rs.4,50,000/-. Therefore, the trial court by critically examining all these material witnesses came to the conclusion that the seizure made at the instance of the accused is proved beyond reasonable doubt and even on re-appreciation of this evidence, the evidence of these material witnesses, more particularly that of PW- 11/Prabhakar, PW-16/Sadananda Thippannavar, PSI and that of PW-19/P.B. Vijaya, Head Constable, who is the scribe of Ex.P-10 seizure mahazar, have deposed all the events that took place, the moment the accused led them to his house in a very chronological manner without leaving any scope to doubt about their credibility. 26. Now, one strong point needs to be observed here that no enmity is suggested against these witnesses to depose falsehood or any special circumstances for them to support the complainant so as to plant these gold ornaments and cash from elsewhere to falsely implicate this accused. Therefore, non-examination of the Investigating Officer is not a reason to discount with the evidence of these material witnesses itself - 10 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 otherwise cogent, convincing and reliable. In this behalf, I am fortified by a decision of the Hon'ble Apex Court reported in 2016 AIAR (Cri) 12 its equivalent in 2016 Cri.L.J. 154 (Baldev Singh Vs. State of Haryana), wherein Their Lordships have held as follows:- "Witnesses Non- examination of investigating officer as prosecution witness Effect of No doubt, it is always desirable that prosecution has to examine the investigating officer/police officer who prepared the rukka Mere non- examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case Whether or not any prejudice has been caused to the accused is a question of fact to be determined in each case." 27. It is not that the evidence of the investigating officer is withheld, but for the reason that he was no more alive. From the evidence now re-appreciated above, more particularly on searching cross examination made to PW- 11/Prabhakar, PW-16/Sadananda Thippannavar, PSI and PW-19/P.B. Vijaya, Head Constable, it cannot be said that any prejudice is caused to the accused. Therefore, none of the grounds urged in the memorandum of appeal and one canvased during the course of arguments are sustainable to come to a different conclusion to the one arrived at by the trial court on the findings given by it on - 11 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 point Nos. 1 and 2 raised by it, so as to upset the findings thereof to give clean chit to the accused/ appellant. Hence, I am of the considered opinion the judgment of the trial court is well reasoned one and as such, no grounds to interfere with the judgment of conviction and order of sentence passed. Hence, I answer Points No.1 in the 'Affirmative' and Points No.2 and 3 in the 'Negative'.= 12. Being further aggrieved by the same, accused has preferred the present revision petition. 13. Sri Jagdish Baliga N., learned counsel for the revision petitioner reiterating the grounds urged in the revision petition would contend that both the Courts have not properly appreciated the material evidence on record and on suspicion, accused has been convicted for the aforesaid offences and sought for allowing the revision petition. 14. Alternatively, learned counsel for the revision petitioner would contend that in the event this Court upholding the order of conviction, sentence of imprisonment may be set aside by enhancing the fine amount. - 12 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 15. Per contra, Sri K. Nageshwarappa, learned High Court Government pleader would support the impugned judgments and opposed the revision grounds in toto. 16. He would further contend that material evidence placed on record especially seizure of the several quantity of the material objects which were stolen from the house of the complainant would be sufficient enough to uphold the order of conviction and therefore sought for dismissal of the revision position. 17. Sri K. Nageshwarappa, would also contend that people like revision petitioner cannot be shown any leniency in setting aside the imprisonment as no mitigating circumstances are placed on record and therefore, sought for dismissal of the revision petition in toto. 18. Having heard the arguments of both sides, this Court perused the material on record meticulously. 19. On such perusal of the material on record, it is noticed that the complaint came to be lodged on 05.08.2000 with Kushalnagar police by the complainant. 20. In the complaint, it has been specifically mentioned that on 04.08.2000 the complainant and his family members - 13 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 had been to pilgrimage in a hired car and when they returned on 05.08.2000 they noticed that front door lock was opened and when they entered inside, noticed that some unknown persons had thieved the valuable articles from the house including the cash to the tune of Rs.10,30,000/-. 21. Police after registering the case investigated the matter and during the course of investigation they apprehended the present petitioner and pursuant to the voluntary statement, police were able to recover sum of Rs.10,30,000/- in cash and golden ornaments which were given to the interim custody to the complainant under due identification. 22. The prosecution is successful in establishing the seizure mahazar and also the seizure of the material objects which contains the valuable gold and silver ornaments besides huge amount of cash. 23. In the absence of any previous enmity or animosity between the accused and the Investigation Agency, why would the Investigation Officer implant huge amount of cash and gold ornaments only with an intention to falsely implicate the accused is a question that remains unanswered on behalf of the revision petitioner. - 14 - HC-KAR NC: 2026:KHC:18214 CRL.RP No. 858 of 2018 24. Taking note of these aspects of the matter, the conviction order recorded by learned Trial Magistrate, confirmed by the First Appellate Court needs no interference by this Court that too in the limited scope of revisional jurisdiction. 25. Having said so, learned counsel for the revision petitioner sought for showing leniency to the accused by setting aside the imprisonment. 26. No mitigating circumstances are forthcoming on record to accept such a contention on behalf of the revision petitioner. Accordingly, the said contention is also rejected. 27. Hence, the following: ORDER Revision petition is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE MR List No.: 1 Sl No.: 90