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2022 DIGILAW 330 (KAR)

Nagesh v. State

2022-03-07

H.P.SANDESH

body2022
JUDGMENT H.P. Sandesh, J. - This petition is filed under Section 397 read with Section 401 of Cr.P.C., praying to set aside the judgment and sentence dated 26.11.2011 passed in C.C. No. 11577/2008 by the II Additional Chief Metropolitan Magistrate at Bengaluru and confirmed by the Fast Track Court-II, Bengaluru in Crl.A. No. 325/2011 on 17.07.2012 and acquit the petitioner. 2. Heard the learned amicus curiae appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State. 3. The factual matrix of the case of the prosecution is that on 10.05.2008 at about 7:30 p.m., to 12.05.2008 7 a.m., the accused committed theft of lay Brand mobile Phone Set and cash of Rs. 2,20,000/- from the cupboard of C.W. 1 Company i.e., S.V.S. Products situated at K.R. Road, Basavanagudi, Bengaluru. Based on the complaint, a case has been registered. The police have investigated the matter and filed the charge-sheet against the petitioner for an offence punishable under Section 381 of IPC. 4. The prosecution in order to prove the charges leveled against the petitioner relied upon the evidence of PWs. 1 to 3 and got marked the documents as Exs. P1 to P6. The petitioner/accused has not led any evidence and no documents are marked before the Trial Court. The trial Judge after considering both oral and documentary evidence convicted the accused for an offence punishable under Section 381 of IPC and sentenced him to undergo imprisonment for a period of six months with a fine of Rs. 1,000/-, in default, sentenced him for another 45 days. Hence, an appeal is filed before the Appellate Court in Crl.A. No. 325/2011. The Appellate Court on re-appreciation of the material available on record, confirmed the conviction, sentence and dismissed the appeal. Being aggrieved by the said conviction, sentence and also confirmation, the present revision petition is filed before the Court. 5. The learned amicus curiae appearing for the petitioner would vehemently contend that first of all the voluntary statement is recorded in entirety and not marked a portion of the voluntary statement, the same is not permissible. 6. Being aggrieved by the said conviction, sentence and also confirmation, the present revision petition is filed before the Court. 5. The learned amicus curiae appearing for the petitioner would vehemently contend that first of all the voluntary statement is recorded in entirety and not marked a portion of the voluntary statement, the same is not permissible. 6. The learned amicus curiae appearing for the petitioner in support of her arguments she relied upon the judgment of the Apex Court in the case of Mohmed Inayatullah v. The State of Maharashtra reported in AIR 1976 SC 483 , regarding discovery of fact is concerned, there cannot be a marking of the entire voluntary statement. The learned amicus curiae also would submit that in the case on hand, there was a recovery of Rs. 2,20,000/-, but none of the witnesses have been examined before the Trial Court. The only witness examined is P.W. 1, ASI., who apprehended the petitioner. P.W. 2, is the complainant. P.W. 3 is the Investigating Officer, who conducted the investigation and no other independent witnesses are examined. Both the Trial Court as well as the Appellate Court erroneously given the finding that the prosecution has proved the case. Hence, the order passed by the Trial Court as well as the Appellate Court is perverse and the same suffers from legality and its correctness. Hence, it requires invoking of revisional jurisdiction. 7. Per contra, the learned High Court Government Pleader appearing for the respondent-State would submit that though PWs. 1 and 3 are the official police witnesses and their evidence cannot be brushed aside unless the evidence is given with a malafide intention to implicate the petitioner. No independent witness is examined to substantiate allegation of prosecution as they had been allegedly won over by the accused. But, evidence of official witnesses, trustworthy and credible and prosecution case is trustworthy, no reason not to rest conviction on basis of such evidence of official witnesses and confirmed the conviction. In the case on hand, PWs. 1 and 3's evidence is trustworthy and reliable. Hence, this Court cannot be exercised the revisional jurisdiction to set aside the order. 8. But, evidence of official witnesses, trustworthy and credible and prosecution case is trustworthy, no reason not to rest conviction on basis of such evidence of official witnesses and confirmed the conviction. In the case on hand, PWs. 1 and 3's evidence is trustworthy and reliable. Hence, this Court cannot be exercised the revisional jurisdiction to set aside the order. 8. Having heard the learned amicus curiae appearing for the petitioner and the learned High Court Government Pleader appearing for the State and on perusal of the material available on record and also considering both oral and documentary evidence placed on record, the points that would arise for consideration of this Court are: (i) Whether the Trial Courts have committed an error in appreciating the evidence and relying upon Ex. P4 and it requires an interference of this Court exercising the revisional jurisdiction? (ii) What order? Point No. (i): 9. Having heard the respective counsel, no doubt, the revisional jurisdiction is very limited and only the order suffers from legality and its correctness. The Court can interfere with the exercising of revisional jurisdiction. In the case on hand, admittedly, the petitioner is working with the complainant i.e., P.W. 2. The case of the prosecution is that when the amount was kept in the cupboard along with the mobile, the same were stolen and recovered at the instance of the petitioner herein. It has to be noted that the learned amicus curiae brought to the notice of this Court marking of document Ex. P4. On perusal of Ex. P4, it discloses that it is a voluntary statement of the accused and the entire voluntary statement is marked. Hence, the same is not admissible in the eye of law. 10. The learned amicus curiae also brought to the notice of this Court the judgment of the Apex Court in Mohmed Inayatullah's (supra), the same is very clear that in the case of discovery is concerned, only a portion to be marked not the entire voluntary statement of the petitioner. In the case on hand, it has to be noted that the discovery is that the amount was recovered at the instance of the petitioner. But in the case on hand, it has to be noted that except the complainant, no independent witnesses have been examined before the Trial Court. In the case on hand, it has to be noted that the discovery is that the amount was recovered at the instance of the petitioner. But in the case on hand, it has to be noted that except the complainant, no independent witnesses have been examined before the Trial Court. Regarding discovery or anything is unearthing from the side of the petitioner; the same has to be proved by examining the independent witnesses. Here is a case of the theft of mobile as well as cash of Rs. 2,20,000/-. But, the prosecution mainly relied upon the evidence of P.W. 1, who apprehended the petitioner. P.W. 3, who conducted further investigation in the matter. The only witness is P.W. 1. No other witnesses were examined regarding recovery and proving of the recovery also, no other witnesses. No doubt, the learned High Court Government Pleader for the State brought to the notice of this Court that the judgment of the Apex Court in the case of Kulwinder Singh and another v. State of Punjab reported in (2015) 6 SCC 674 , wherein, the Apex Court also observed that official witnesses evidence cannot be discarded. Here is a case of recovery of money that too at the instance of the petitioner, no independent witnesses were examined, though witnesses are cited. Apart from that, the Trial Court accepted Ex. P4, i.e., not legally sustainable in the eye of law. The entire voluntary statement of the petitioner was marked and not a portion of the discovery. Hence, there is a force in the contention of the learned counsel for the petitioner that the evidence available before the Court is not legally sustainable. When the legal evidence is not available before the Court, the very conviction against the petitioner is not sustainable and both the Courts have committed an error in not considering the legal evidence instead of considered the evidence of PWs. 1 to 3 and out of that two witnesses are official witnesses and one is the complainant. Hence, the order passed by the Trial Court is perverse; the same is also affirmed by the Appellate Court not considering the admissibility of evidence. The Appellate Court while reconsidering the evidence of the Trial Court in a callous manner, re-appreciated the same in paragraph Nos. 15 and 16, those witnesses, who have been examined and the documents-Exs. P1 to P4. The Appellate Court while reconsidering the evidence of the Trial Court in a callous manner, re-appreciated the same in paragraph Nos. 15 and 16, those witnesses, who have been examined and the documents-Exs. P1 to P4. The legality of the document of Ex. P4 has not been discussed, only comes to the conclusion that there is no reason to disbelieve the oral evidence of PWs. 1 and 3, who apprehended the accused and investigated the matter. Even P.W. 3 has recovered the amount of Rs. 2,20,000/- as per voluntary statement of accused in the passage of the complainant's office alleging that the accused has kept the said amount. It has to be noted that the amount also in the very premises in which the amount was stolen and not outside the premises. When these are all the aspects has not been considered by the Appellate Court, but only comes to the conclusion that there is recovery and no material to discard the case of the prosecution and nothing has been elicited in the cross-examination of PWs. 1 to 3. Mere examination of the witnesses-PWs. 1 to 3 is not enough, the same has to be proved by examining the witnesses first of all regarding recovery, nothing has been done and no witnesses were examined and also not considered the legal evidence and the very document-Ex. P4 is not legally admissible when the entire document is marked and not the portion of the voluntary statement. Hence, the order passed by both the Trial Court as well as the Appellate Court suffers from legality, correctness and propriety. Hence, it requires revisional jurisdiction to set aside the order of conviction and sentence. Point No. (ii): 11. In view of the discussions made above, I pass the following: ORDER (i) The revision petition is allowed. (ii) The impugned judgment and sentence dated 26.11.2011 passed in C.C. No. 11577/2008 by the II Additional Chief Metropolitan Magistrate at Bengaluru and confirmed by the Fast Track Court-II, Bengaluru in Crl.A. No. 325/2011 on 17.07.2012, are hereby set aside. (iii) If any amount deposited by the petitioner is ordered to be refunded to him on proper identification. (iv) The Registry is directed to pay the amicus curiae fee to the learned amicus curie appearing on behalf of the petitioner.