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Karnataka High Court · body

2022 DIGILAW 937 (KAR)

Yarriswamy v. State of Karnataka

2022-07-20

H.B.PRABHAKARA SASTRY

body2022
JUDGMENT/ORDER 1. The present petitioner was tried as accused by the Court of the learned Judicial Magistrate First Class at Challakere, (hereinafter for brevity referred to as the 'the Trial Court') in C.C.No.130/2011, for the offences punishable under Ss. 457 and 380 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as the 'IPC') and was convicted by the judgment of conviction and order on sentence dtd. 8/11/2012 and was sentenced accordingly. Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.87/2012, before the learned Principal District and Sessions Judge, Chitradurga, (hereinafter for brevity referred to as the 'Sessions Judge's Court'), which after hearing both side, dismissed the appeal filed by the accused, by its judgment dtd. 20/4/2013. Being aggrieved by the same, the accused has preferred the present revision petition. 2. The summary of the case of the prosecution in the Trial Court was that, on the date 17/8/2010, during night time, the accused has committed lurking house trespass by entering into Sri Anjaneyaswamy Temple at Narayanapura in Challakere Taluk, within the limits of the complainant-Police Station by breaking open the lock put to the door of the said Temple and committed theft of the idol of Sri Anjaneyaswamy, worth Rs.1, 53, 195.00, a silver prabhavali of 1 1/2 ft. height, five silver Umbrellas, one silver Naagabharana, two silver Dalu, one silver crown and sold the same to CW-11 - Ganesh for a sum of Rs.35, 000.00, who converted the same into silver ingot and thereby has committed the offences punishable under Ss. 457 and 380 of the IPC. 3. The accused appeared in the Trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined in all ten witnesses from PW-1 to PW-10, got marked six documents from Exs.P-1 to P-6 and produced two Material Objects, i.e. a key and a silver Ingot as MO-1 and MO-2 respectively. However, neither any witness was examined nor any documents were got marked on behalf of the accused. The impugned judgment passed by the Trial Court in its annexure shows 'Ex.P-3' as 'Jumped'. The Trial Court record also does not bear any document marked as 'Ex.P-3'. However, neither any witness was examined nor any documents were got marked on behalf of the accused. The impugned judgment passed by the Trial Court in its annexure shows 'Ex.P-3' as 'Jumped'. The Trial Court record also does not bear any document marked as 'Ex.P-3'. However, a perusal of the deposition of PW-9 would go to show that, in his evidence, the alleged recovery panchanama is shown to have been marked as Ex.P-3 and the signatures of the panchas at Exs.P-3(a) and P-3(b). However, the said recovery panchanama is also shown to have been identified by PW-6 as Ex.P-4. Though it appears to be an over-writing of the exhibit number in Ex.P-4, still, it may have to be inferred that both the witnesses, i.e. PW-6 and PW-9 are referring to the very same exhibit, which, according to the Trial Court judgment, is the seizure mahazar marked as Ex.P-4. 4. The respondent - State is being represented by the learned High Court Government Pleader. 5. The Trial Court and the Sessions Judge's Court's records were called for and the same are placed before this Court. 6. In view of the fact that the learned counsel for the revision petitioner (accused) failed to appear before this Court on several dates of hearing, this Court by its reasoned order dtd. 11/7/2022, appointed learned counsel - Sri. S. Javeed, as Amicus Curiae for the petitioner/accused to represent him in this case. 7. Learned Amicus Curiae for the accused/revision petitioner and learned High Court Government Pleader for the respondent - State are physically appearing in the Court. 8. Perused the materials placed before this Court including the impugned judgments passed by both the Courts and also the Trial Court and Sessions Judge's Court's records. 9. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the trial Court. 10. After hearing the learned counsel from both side, the only point that arise for my consideration in this revision petition is: Whether the concurrent finding recorded by the Trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offences punishable under Ss. 457, 380 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court? 11. 457, 380 of the Indian Penal Code, 1860, warrants any interference at the hands of this Court? 11. Learned Amicus Curiae for the petitioner in his argument submitted that, though he would not deny or dispute the occurrence of the incident of theft on the date 17/8/2010 in the night at Sri Anjaneyaswamy Temple at Narayanapura, however, he disputes that it was the accused who committed the theft. He further submitted that, the alleged recovery at the instance of the accused has not been proved by the prosecution in spite of them examining PW-9 and PW-10. The alleged articles of theft are totally different from the article marked as MO-2. However, without considering these aspects, the Trial Court and the Sessions Judge's Court have erred in convicting the accused for the alleged offences. 12. On the contrary, learned High Court Government Pleader for the respondent/State, submitted in his argument that, PW-9 and PW-10 have supported the case of the prosecution, as such, their evidence proves the recovery at the instance of the accused. Considering the same, both the Trial Court and the Sessions Judge's Court have convicted/confirmed the conviction of the accused, which does not warrant any interference at the hands of this Court. 13. The petitioner/accused has not disputed that on the night of the date 17/8/2010, there was a theft of silver articles from Sri Anjaneyaswamy Temple at Narayanapura, within the limits of respondent - Police Station. The said fact of theft has been further stated by PW-4 (CW-9) - Indushekhar, who is a resident of the village Narayanapura. He has stated that he is a member of Sri Anjaneyaswamy Temple Committee. He has further stated that, the theft has taken place about two to three years prior to the date of his evidence and that the idol, umbrella and several other silver articles were stolen. They were approximately weighing 4 kgs 377 grams. In that connection, a complaint was given. PW-5 (CW-10)- T. Prahlada, claiming himself to be the Chairman of the Temple Committee of Sri Anjaneyaswamy Temple, Narayanapura, has stated that there was a theft in their Temple on the date 18/8/2009. The door of the Temple was broke open. After coming to know about the same, he went to the Temple and saw that the idol, prabhavali, naagaabharana, totally five silver items were found stolen. The villagers lodged the complaint. The door of the Temple was broke open. After coming to know about the same, he went to the Temple and saw that the idol, prabhavali, naagaabharana, totally five silver items were found stolen. The villagers lodged the complaint. After few years, he came to know that a silver ingot, weighing about 4 kgs. 377 grams was recovered. The Police has shown the said silver ingot to him and these people got the interim custody of the said silver ingot. Stating so, the witness has identified the said silver ingot at MO-2. Further, stating that he would identify the broken lock of the Temple, he has identified the same at MO-1. Since the witnesses did not speak about they identifying the accused in the Police Station, the witnesses were treated as hostile and the prosecution was permitted to cross-examine them. However, they did not support the case of the prosecution any further. Thus, their evidence that on the alleged night of the incident, there was a theft in the Temple where several items of silver articles were stolen by a thief, stands established. 14. PW-1 (CW-2) - Jayarama has stated that the scene of offence panchanama as per Ex.P-1 was drawn in his presence. Thus, in addition to the evidence of PW-4 and PW-5, the evidence of PW-1 also establishes the place of the alleged offence. 15. After proving of the incident of theft, the next question would be, who has committed the said theft? According to the prosecution, it is the accused (petitioner herein) and accused alone who has committed the theft. Admittedly, the entire case of the prosecution is based upon the circumstantial evidence. Thus, the prosecution's attempt to prove the alleged guilt against the accused is solely based upon the alleged recovery of the alleged stolen articles said to have been made at the instance of the present petitioner (accused). 16. In that connection, the first witness whom the prosecution relies upon is PW-2 (CW-24) - S.B. Palabhavi, who, admittedly, was a Police Sub-Inspector of the complainant Police Station at the relevant point of time. He has stated that, on the date 4/12/2010, in the night, while he was on rounds duty, he stopped two persons going on a motorcycle and enquired them. He has stated that, on the date 4/12/2010, in the night, while he was on rounds duty, he stopped two persons going on a motorcycle and enquired them. Since one among them ran away from the place, he informed the same to the Station, as such, his staff could able to catch that person, who, according to him, is the present petitioner (accused). This evidence of PW-2 introduces the accused to the arena of investigation in the matter. 17. PW-3 (CW-14) - G. Kencharayappa, the then Head Constable of the complainant Police Station has stated that as instructed by PW-1, on the night of the date 4/12/2010, he, joined by his other colleagues on duty, went near KEB and seeing that the accused alone was running there, all these people surrounded him and caught him. After bringing him to the Police Station, they produced him before the Circle Inspector of Police. Both PW-2 and PW-3 have identified the accused in the Court as the one apprehended by the them on the night of the occurrence of incident. 18. PW-6 (CW-12) - Prasanna, a Goldsmith, was shown as pancha to the scene of offence panchanama at Ex.P-4. He has stated that he has put his signature to the said panchanama at the time when in the complainant Police Station the ingots were got weighed. He has specifically stated that he was not taken anywhere and he alone has signed it and in his presence, no articles were seized. After treating him hostile the prosecution though subjected the witness to cross-examination, but, it could not get any support from him. 19. Interestingly, the Investigating Officer i.e., PW-7 (CW-26) - R. N. Vasudeva, who claims to have recovered the alleged stolen articles at the instance of the accused, also has not spoken about the role of PW-6 in his investigation. Had he really taken PW-6 with him to the place of the alleged recovery of the stolen articles and got those articles weighed from PW-6, then he should have necessarily mentioned about the same in his evidence. For the reasons best known to him, being a responsible Police Officer, he has not given any details in that regard. Had he really taken PW-6 with him to the place of the alleged recovery of the stolen articles and got those articles weighed from PW-6, then he should have necessarily mentioned about the same in his evidence. For the reasons best known to him, being a responsible Police Officer, he has not given any details in that regard. On the contrary, it is PW-10 (CW-11) - Ganesh Pawar who has stated about the role of PW-6 - Prasanna in his evidence and has stated that when the Police had brought the accused to his Jewellery shop, the articles placed by him before the Police were weighed by the said Prasanna (PW-6) and this is the only nexus about PW-6 and his role in the investigation which we can find in the evidence available in the matter. If the evidence of PW-10 is to be appreciated and considered, there had to be a corroborative evidence from none else than the Investigating Officer. Further, if the supporting evidence by the alleged panchas is also available, then, it would land the prosecution case on a safer footing, at least, on the alleged point of weighing of the stolen articles at the time of alleged recovery. 20. However, in the instant case, neither PW-6 has stated that he was taken to the shop of PW-10 and was made to weigh the alleged ornaments said to have been produced by PW-10 before the Police nor the Investigating Officer i.e., PW-7, who claims to have recovered the alleged stolen articles, has spoken anything about the role of PW-6. On the contrary, PW-6 has categorically stated that his signature was obtained on the said panchanama at Ex.P-4 in the Police Station where certain ingots were got weighed. Thus, the very person from whom the alleged articles were said to have been appraised/weighed himself has not supported the case of the prosecution, but, shown that the alleged act of weighing was done in the Police Station. Therefore, the evidence of PW-10 that PW-6 had come and weighed the articles proves to be not safe to believe, more importantly, for the reason that the Investigating Officer himself has not stated about PW-6 weighing articles in the Jewellery shop of PW-10 in his presence. Therefore, one of the major link for alleged recovery has not been established by the prosecution. 21. Therefore, one of the major link for alleged recovery has not been established by the prosecution. 21. The next witness whom the prosecution examined projecting as a pancha for the seizure panchanama at Ex.P-4 was PW-9 (CW-5) - Veeresh. The said witness in his evidence has stated that on the date of the alleged panchanama, the Police had summoned him to the Police Station and shown him the accused stating that he is a thief having committed the theft at two to three places. Thereafter, himself, joined by Police, accused and a person of Jewellery shop and one more by name Tippeswamy went in a Jeep to a place called Gajendragad, Gadag District. There, they went to the Jewellery shop where the person belonging to the said shop gave the golden and silver items. The witness has stated that he could not speak as to what those articles were, since they were large in number. One Goldsmith by name Prasanna, who was with them, was weighing the articles and assessing their values and the Police were writing. The witness has seen the said writing at Ex.P-3 and identified his signature therein. The witness has stated that he could not identify those articles if shown to him now. 22. As already observed above, though the witness has identified the panchanama and it was shown to have been marked as Ex.P-3 and his signatures at Exs.P-3(a) and P-3(b), however, the annexure to the impugned judgment of the Trial Court shows that the Ex.P-3 is 'Jumped'. Since the very same panchanama was identified by PW-6 also, which was marked in his evidence as Ex.P-4, thus, it can be taken that both PW-6 and PW-9 are referring to the very same panchanama, which as per its marking is shown as Ex.P-4. 23. A careful reading of the evidence of PW-9 would go to show that it was the Police who took him, accompanied by the accused to Gajendragad, but, not at the instance of the accused. Secondly, while going to the said place Gajendragad and to the shop of the Jeweller, a person belonging to the said Jewellery shop was also accompanying them, which means, from the Police Station up to the Jewellery shop, a person of Jewellery shop was altogether with the Police, this witness and the accused. Secondly, while going to the said place Gajendragad and to the shop of the Jeweller, a person belonging to the said Jewellery shop was also accompanying them, which means, from the Police Station up to the Jewellery shop, a person of Jewellery shop was altogether with the Police, this witness and the accused. Therefore, it is highly doubtful to believe that it was the accused who led the entire team to the Jewellery shop at Gajendragad. Thirdly, no where the witness says that in the shop, the accused and the shop owner were identified mutually and that at the request or at the instance of the accused, the shop owner produced the articles said to have been produced by him. On the other hand, PW-9 says that the moment they visited the said shop, a person belonging to the shop placed several of the articles before the Police. Therefore, it is highly doubtful that he identified the accused and at the request of the accused, PW-10 produced the articles alleged to have been given by the accused subsequent to the alleged theft. Therefore, the evidence of PW-9 gives an impression that the production of those alleged articles by the shop person was a voluntary act of PW-10, but not at the instance of the accused. Fourthly, according to PW-9, the articles produced by the Jewellery Shop person were large in number, as such, he could not mention as to what those articles were and also he could not identify them. On the other hand, according to PW-10, the articles given to him by the accused was only silver ingots and two golden eyes. According to the prosecution, even the silver ingot was also a single ingot which is marked as MO-2. In such an event, if the articles were to be only one silver ingot, two golden eyes, PW-9 could have easily identified them, on the other hand, since according to PW-9, there were large number of articles, which does not tally with the description given by PW-10, as well the case of the prosecution, the alleged recovery creates a serious doubt. Fifthly, according to PW-9, who has stated in his cross-examination that he was informed by the Police in the evening at 5.00 O'Clock, whereas, according to panchanama at Ex.P-4, the alleged seizure panchanama was drawn between 7.50 a.m. and 9.15 a.m. Neither the prosecution has made any attempt to elicit details to weed out the discrepancy nor the Investigating Officer has given any details about the said discrepancy. As such, when PW9 was taken to the shop, at what time the panchanama was drawn is not clear and there is contradiction in the version of PW-9 to that of the evidence of PW-7 and the document at Ex.P-4. The above discrepancies in the case of the prosecution makes it very much unsafe to believe the evidence of PW-9 in the alleged seizure of the articles. Lastly, PW-4 and PW-5 were cross-examined by the prosecution, wherein a suggestion was made to them, suggesting that, on the date 5/12/2010, the Police had summoned them to their Station and after showing them the stolen silver articles, had also shown them the accused, stating that it was that accused who had committed theft in their Temple. However, both the witnesses did not admit the suggestion as true, that the Police had shown the accused to them in their suggestion stating that, it was him who had committed the theft. Thus, the last attempt of the prosecution to elicit from the mouth of PW-4 and PW-5 about the recovery of the stolen articles at the instance of the accused and the aspect that the accused was the thief who had committed the alleged theft could not do any favour to it. 24. The last witness who speaks about the alleged recovery of the articles is PW-10, who, according to the prosecution, is the owner of a Jewellery shop at Gajendragad. He has stated in his evidence that on the date 5/12/2010, the Investigating Officer brought a Goldsmith, accused and two witnesses to his shop. He also stated that accused had given him silver ingots and two golden eyes. After enquiry made by the Police, he came to know that they were stolen articles and he gave all those articles that were given to him by the accused to the Police when the Police asked to produce them. The said Police after getting them weighed and evaluated by Prasanna (PW-6), seized them. After enquiry made by the Police, he came to know that they were stolen articles and he gave all those articles that were given to him by the accused to the Police when the Police asked to produce them. The said Police after getting them weighed and evaluated by Prasanna (PW-6), seized them. The witness apart from identifying the accused in the Court, has also identified MO-2. This witness was subjected to a detailed crossexamination from the accused's side. 25. A careful analysis of the evidence of PW-10 would go to show that, even if it is believed that, on the date 5/12/2010, the Police, accompanied by a Goldsmith, two panchas and accused, had been to his shop, this witness has not stated that it was at the instance of the accused, he placed all those articles before the Police. But, he has specifically stated that since the Police asked him, he gave them all the articles. Secondly, the witness has stated that accused had given a silver ingot and two golden eyes. He also stated that he gave all those articles given to him by the accused to the Police, which articles the Police got weighed and evaluated by PW-6 and made a writing in that regard. The said writing, according to the prosecution, is the seizure panchanama at Ex.P-4. If the said seizure panchanama at Ex.P-4 is perused, it is clear that the alleged seizure said to have been taken place in the shop of PW-10 on the date 5/12/2010, was not just confined to the article at MO-2 but, it involves several other silver and golden articles. Thus, the alleged seizure shown to have been made from the shop of PW-10 was not of just MO-2, but, involves various other valuable articles, about which neither PW-10 has whispered nor PW-6 - Prasanna nor even the Investigating Officer i.e., PW-7. On the other hand, the statement of PW-10 that the accused had given him silver ingots and two golden eyes and that was all the articles given by accused to him and he produced all those articles before the Police, is contrary to a large number of articles mentioned in Ex.P-4. 26. On the other hand, the statement of PW-10 that the accused had given him silver ingots and two golden eyes and that was all the articles given by accused to him and he produced all those articles before the Police, is contrary to a large number of articles mentioned in Ex.P-4. 26. Therefore, when there are serious discrepancies between the evidence given by the prosecution witnesses and the document at Ex.P-4 and also a serious doubt that has crept in the case of the prosecution through the evidence of none else than the alleged Goldsmith, who was examined as PW-6, it is highly unsafe to hold that the alleged recovery of MO-2 was made at the instance of accused and accused alone. 27. Merely because the key of the main door of the Temple at MO-1 is said to have been seized under the panchanama at Ex.P-1, that itself would not take the case of the prosecution any further in proving the alleged guilt against the accused. 28. However, both the Trial Court, as well as Sessions Judge's Court, without analysing and appreciating the evidence in their proper perspective have hastily jumped to a conclusion that since MO-2 was identified by PW-10 and evidence of PW-10 also mentions that accused had given those articles to him, the recovery is proved. Since the said conclusion is now proved to be not a proper conclusion, which could have been arrived at after proper appreciation and analysis of the evidence placed before it, on the other hand, since major doubt still exists in the case of the prosecution, the Trial Court ought to have given the benefit of doubt to the accused and the Sessions Judge's Court also since has committed the same error by confirming the impugned judgment of the Trial Court, both those judgments now warrants interference at the hands of this Court. Accordingly, I proceed to pass the following: ORDER [i] The Criminal Revision Petition stands allowed; [ii] The impugned judgment of conviction and order on sentence dtd. 8/11/2012, passed by the Judicial Magistrate First Class, at Challakere, in C.C.No.130/2011, holding the accused guilty of the offences punishable under Ss. 457 and 380 of the Indian Penal Code, 1860, which was further confirmed by the judgment and order dtd. 8/11/2012, passed by the Judicial Magistrate First Class, at Challakere, in C.C.No.130/2011, holding the accused guilty of the offences punishable under Ss. 457 and 380 of the Indian Penal Code, 1860, which was further confirmed by the judgment and order dtd. 20/4/2013, passed by the Principal District and Sessions Judge at Chitradurga, in Criminal Appeal No.87/2012, are hereby set aside, except the order regarding confiscation of MO-1 and MO-2 to the State; [iii] The revision petitioner (accused) - Sri. Yarriswamy, S/o. Channamallappa, Aged about 22 years, Agriculturist, R/o. Bommasamudra, Challakere Taluk, Chithradurga District-577522, stands acquitted of the offences punishable under Ss. 457, 380 of the Indian Penal Code, 1860. The Court, while acknowledging the services rendered by the learned Amicus Curiae for the revision petitioner - Sri. S. Javeed, recommends an honorarium of a sum of not less than Rs.4, 000.00 payable to him by the Registry. Registry to transmit a copy of this order to both the Trial Court and also to the Sessions Judge's Court along with their respective records, immediately.