IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1304 OF 2010 C/W CRIMINAL APPEAL No.1303 OF 2010 BETWEEN:
Revanasiddappa S/o. L. Ramalingegowda, Aged 48 years, Agriculturist, Dasharathi Nilaya, 5th “C” Cross, Valmikinagar Layout, Tumakuru. ...Appellant (Common in both appeals) (By Sri. M.S.Rajendra Prasad, Sr. Counsel along with Sri. N. Manjunatha, Advocate) AND:
State of Karnataka by Tumakuru, Town Police, Tumakuru. ...Respondent (Common in both appeals) (By Sri. Divakar Maddur, HCGP) Criminal Appeal No.1304/2010 is filed under Section 374(2) of Cr.P.C praying to set aside the judgment dated:27.11.2010 passed by the II Addl. District and Sessions Judge, Tumakuru in S.C.No.151/2010 – convicting the appellant/accused for the offence punishable under Section 379 & 413 of IPC. The appellant/accused is sentenced to undergo R.I. for one year and pay a fine of Rs.2,000/- in default of payment of fine he shall undergo R.I. for six months for the offence punishable under Section 379 of IPC. The appellant/accused is sentenced to undergo R.I. for four years and pay a fine of Rs.3,000/- in default of payment of fine he shall undergo R.I. for one year for the offence punishable under Section 413 of IPC. The appellant/accused prays that he be acquitted.
Criminal Appeal No.1303/2010 is filed under Section 374(2) of Cr.P.C praying to set aside the judgment dated:27.11.2010 passed by the II Addl. District and Sessions Judge, Tumakuru in S.C.No.150/2010 – convicting the appellant/accused for the offence punishable under Section 379 & 413 of IPC. The appellant/accused is sentenced to undergo R.I. for one year and pay a fine of Rs.2,000/- in default of payment of fine he shall undergo R.I. for six months for the offence punishable under Section 379 of IPC. The appellant/accused is sentenced to undergo R.I. for four years and pay a fine of Rs.3,000/- in default of payment of fine he shall undergo R.I. for one year for the offence punishable under Section 413 of IPC. The appellant/accused prays that he be acquitted.
These Appeals coming on for Hearing, this day, the Court delivered the following:
JUDGMENT The appellant in both these appeals was the accused before the learned II Additional District and Sessions Judge at Tumakuru (for brevity hereinafter referred to as ‘trial Court’) in SC Nos.151/2010 and 150/2010 in which case he was convicted by the said Court by its judgment dated 27.11.2010 for the offences punishable under Sections 379 and 413 of Indian Penal Code, 1860 (for brevity hereinafter referred to as ‘IPC’) and was sentenced accordingly.
2. Since, both the appeals though have arisen out of two sessions cases, but, both have been against the very same accused / appellant herein, wherein he was convicted for the very same offences and the witnesses examined by the prosecution in the Court below except the complainant (PW1) are all same witnesses and with the consent from both side, both the appeals have been taken as connected with each other and heard the common argument and taken up for the common judgment.
3. Summary of the case of the prosecution in Crl.A.No.1303/2010 which has arisen from SC No.150/2010 is that on 09.04.2009, the accused has committed theft of a motor cycle bearing registration No.KA 36 J 8223 said to be belonging to PW1 Sri.M.R.Dilip Singh therein and that the accused is also alleged to be in the habit of dealing with the stolen articles, knowing fully well that they are stolen articles. Accordingly, based on the charge sheet filed by the Investigating Agency, the accused was charged for the offences punishable under Sections 379 and 413 of IPC and was tried for the same.
4. Summary of the case in Crl.A.No.1304/2010 which has arisen from out of SC No.151/2010 is also that; on 14.08.2009 between 9.30 am., to 6.00 p.m., the accused has committed theft of a motor cycle bearing registration No.KA 06 V 8031 belonging to PW1 which was parked in the premises of the office of the Deputy Commissioner, Tumakuru and that the accused is in the habit of dealing with the stolen articles, knowing fully well that they are stolen articles. Accordingly, based on the charge sheet filed by the Investigating Agency the accused was charged for the offences punishable under Sections 379 and 413 of IPC and was tried for the same.
5. In both the cases, the prosecution examined six witnesses from PWs.1 to 6. In SC No.150/2010 it got marked five documents from Exs.P1 to P5. In the other case, it marked four documents from Exs.P1 to P4. In both the cases one each motor cycle was marked as MO1. No witness was examined on behalf of the accused nor any documents were marked as exhibits. The trial Court in its two judgments pronounced on the same day ie., on 27.11.2010 in both the sessions cases convicted the accused for the offences punishable under Sections 379 and 413 of IPC and sentenced him accordingly. It is the said judgments, the accused has challenged in these two appeals.
6. Sri.Rajendra Prasad, learned Senior counsel for the appellant in both the matters in his brief argument submitted that PWs.1 to 4 have not supported the case of prosecution. It is only based on the evidence of PWs.5 and 6, the trial Court has convicted the accused in both the cases. He also submitted that the criminal law was set into motion only after the alleged recovery said to have been made by the Investigating Officer. The entire appreciation of the evidence is based on conjectures and surmises and that the seizure panchanama of the alleged stolen vehicle has also not been produced by the prosecution. Thus, the judgment under appeal is an erroneous judgment.
7. Learned High Court Government Pleader in his argument submitted that prosecution witness by name Sri.Lokesh has clearly stated that at the instance of the accused he has painted the number plates of about 4 to 5 motor cycles which he has identified in the police station. The same proves that the accused has stolen them and has got their number plates re- numbered and painted through painter Lokesh. He also submitted that the recovery made by the Investigating Officer of those vehicles clearly proves the guilt against the accused.
8. In both the cases complainants were examined as PW1. In SC No.150/2010, the complainant Sri.M.R.Dilip Singh has stated that on 09.04.2009, in the evening at about 3.00 pm., he had parked his motor cycle bearing registration No.KA 36 J 8223 near P.L.D Bank at B.H.Road, Tumakuru and as a Head Constable he had gone on his duty to attend a public function. When he returned at 7.00 pm., he noticed his motor cycle was not there, thinking that somebody must have taken his motor cycle, he waited till 25.04.2009. Since nobody brought motor cycle to him, he went to the police station and lodged a complaint as per Ex.P1. He also stated that on the same day, he took the police to the spot and got a spot panchanama drawn by them, which this witness has identified as Ex.P2. He has further stated that on 29.11.2009 receiving a telephone call from the complainant police, he went to the police station and noticed that his lost vehicle was there. However, its registration number plate was changed. He has identified the motor cycle in the Court at MO1.
9. The complainant in SC No.151/2010 Sri.R.Lava @ Lava Kumar was also examined as PW1 in the said case. In his evidence the witness has stated that on 14.08.2009, at about 9.00 am he had parked his TVS XL motor cycle bearing registration No.KA 06 V 1831 in the premises of his office and returned at 6.00 pm., only to see that his vehicle was not there. He searched at different places at Tumakuru. However, he could not trace his vehicle. He did not lodge police complaint due to his work pressure. On 23.11.2009 based on the information given to him by his friends that few motor cycles have been parked in the respondent – police station premises, he went there and based upon the engine number and chassis number, he identified his two wheeler. However, the same was bearing registration number plate as KA 06 X 8529. Accused was also present at that place at that time. The police took his statement which this witness has identified at Ex.P1.
Both the above witnesses were cross examined by the accused side wherein they adhered to their original version.
10. One Sri.Lokesh, S/o Ranganna was examined as PW2 in SC No.150/2010 and very same witness was examined as PW3 in SC No.151/2010. The said witness in verbatim has given the identical evidence in both the cases. He has stated that he is the painter doing the job of writing the number plate of the vehicles. He has seen the accused who had got written number plates about 4 to 5 vehicles from him about 5 to 6 months prior to the date of evidence. Police had taken him to the police station and had shown him the number plates of about 3 to 4 vehicles which he identified as written by him. The accused had told him that he deals in sale and purchase of two wheelers.
11. One Sri.Chikkagangaiah, S/o Bylaiah was examined as PW3 in SC No.150/2010 and the very same person was examined as PW2 in SC No.151/2010 by the prosecution and also one Sri.Nagaraju, S/o Chennigaraya was examined as PW4 in SC No.150/2010 and PW4 in SC No.151/2010 by the prosecution projecting both these witnesses as panchas to two mahazars said to have drawn in their presence by them in the cases at the spots. However, both these witnesses have turned hostile to prosecution and in their examination-in-chief itself they have clearly stated that police have not taken them to any place but their signature was taken on some paper in the police station.
12. One Sri.Nagaraju, S/o Ramaiah was examined as PW5 in both the cases by the prosecution but in his identical evidence in verbatim in both the cases has stated that he has seen the accused and that when the police recorded his statement, he was present in the police station. The accused - police took him to the pump house at Dodderi, where, when the lock of pump house was opened, there were seven two wheelers which the police seized by drawing a seizure panchanama which panchanama this witness has identified in SC No.150/2010 at Ex.P4 and SC No.151/2010 at Ex.P3.
13. Last witness in the series is PW6 – Sri.Siddaraju, Investigating Officer in both the cases. Said witness also in his identical evidence in both the matters has stated that while working as P.S.I in the respondent – police station based on a credible information on 22.11.2009 he went near Alankar Daba at Tumakuru and seized a Hero Honda Splendor motor cycle without any number plate from the possession of the accused by drawing a panchanama. He arrested the accused and brought him to the police station wherein he recorded his voluntary statement. Then, taking the custody of the accused by the order of the Court, on 23.11.2009, he seized seven motor cycle which were kept in the house of the accused by drawing a seizure panchanama. The two wheelers in the case under consideration were also among them. He recorded the statement of other witnesses and also visited the scene of offence and drew panchanama. Thereafter, getting the owners of the vehicle brought to the police station he got the vehicles identified and completing the investigation filed the charge sheet against the accused.
14. From a reading of the evidence of PW1 in both the cases who are stated to be the complainants as well the owners of the alleged stolen motor cycle it has to be necessarily noticed that neither of them anywhere in their evidence have stated that their vehicles were stolen. They have only stated that on the date when they came back to the place where they parked their vehicle to take them back, they did not find them.
15. Further more, both of them stated that they thought that somebody might have taken it and waited for more than a month anticipating that their vehicle would be returned. They have not even whispered that those two vehicles were taken by somebody without their consent. Unless an article is said to have been moved from a place or taken without consent of the owner or the possessor thereof, the same cannot be called as a theft under Section 378 of IPC. Thus, merely because PW1 in both the cases have stated that they did not find their vehicle, it does not mean that they have alleged that their vehicles were stolen.
16. Secondly, neither of the complainants in either of the cases have anywhere given any reason as to what made them from remaining without lodging complaint for more than a month after the alleged non tracing of their vehicle by them. Had really they suspect that their vehicle was stolen by somebody they would have as a reasonable person would do in similar circumstances, lodged a complaint with the police without any delay. As such, at the threshold itself, had really those two vehicles being stolen by anybody has not been satisfactorily explained either by PW1 in both the cases or by the Investigating Officer.
17. As already observed above, Sri.Chikkagangaiah S/o Bylaiah and Sri.Nagaraju S/o.Chennigaraya both of whom were projected as witnesses for two mahazar also have not supported the case of the prosecution. They have clearly stated that no mahazar of any type was drawn by the police but their signatures were obtained on the panchanama by the police in the police station. The remaining witness would be only Sri.Lokesh, S/o Ranganna, Sri.Nagaraju, S/o Ramaiah and the Investigating Officer.
18. Sri.Lokesh, S/o Rangappa who claims himself to be a painter and who paints the number plates of the vehicle though has stated that for the accused he has written number plates for 3 to 4 vehicles, but he has not identified those vehicles in the police station. Nowhere in his evidence, he has stated about registration number or the number plates with particular number is said to be written by him, as such, merely because the painter says that he has painted 3 to 4 number plates of few vehicles that cannot by itself be inferred that even the number plates of the alleged stolen vehicles alleged to have been belonging to the complainant were also painted by him. Added to this, no where the witness has stated that vehicle number plates which he painted for the accused were the motor cycles. He has only said that they were vehicles. As such, apart from identifying those vehicles with the registration number witness has not even described the vehicle as to what type of vehicles they were. Therefore, merely because he claims to have the accused as a customer would not by itself prove that the alleged two motor cycle in question was also drawn by the painter to get their number plates written / painted. Therefore the evidence of PW3 would also of no benefit to the prosecution.
19. PW5 – Nagaraju S/o Ramaiah, of whose evidence the prosecution has relied upon much, so also the trial Court in its judgment, has in his short evidence has only stated that he has seen the accused and was present when the respondent – police has recorded his statement. The witness has nowhere stated that the statement of the accused was a voluntary statement of the accused and the police have only recorded his statement. Interestingly, neither this witness nor the Investigating Officer, who was examined as PW-6, also anywhere stated as to what was that voluntary statement said to have been given by the accused. A mere statement that the accused gave voluntary statement is not sufficient for the Investigating Officer to say so, rather, he is also expected to say what was that voluntary statement and what was the material disclosed by the accused leading for a recovery. Neither PW5 nor PW6 have spoken anything in that regard.
20. PW-5 – Nagaraju S/o Ramaiah has also stated that accused – police, CW-5 and himself were taken to pump house and its door was opened. Nowhere the witness has stated as to who led them to the said spot ie., pump house? was it the accused or was it by themselves or any of the witnesses, including the Investigating Officer (PW-6). The witness also not stated at whose instance the door of the pump house was opened and whether the alleged stolen vehicles in these two cases were also there among the seven vehicles said to have been kept in that pump house. Therefore, in the absence of material information as to what statement the accused has given?, who took the witnesses to the pump house? who shown them the alleged motor cycles said to be there in the pump house?, the evidence of PW-5 is not sufficient to hold that the alleged recovery has been proved by the prosecution.
21. The only remaining witness would be PW6 – the Investigating Officer. Primarily said witness who claims to have seized the motor cycle Hero Honda Splendor on 22.11.2009 from the custody of the accused by drawing a seizure panchanama has not produced the said seizure panchanama. Such act of seizure of the motor cycle has put the criminal law into motion sofas as the investigation is concerned.
Secondly, though the witness has stated that he recorded voluntary statement of the accused but as already observed above neither the witness has stated as to the summary of the said voluntary statement nor got marked the said voluntary statement. As such, what was the said alleged voluntary statement and whether it led the Investigating Officer for any recovery to be made at the instance of the accused has remained unanswered.
Thirdly though this witness has stated that he recovered seven motor cycles from the house of the accused on 23.11.2009, but nowhere he has stated as to what led him to go to the house of the accused on 23.11.2009. Nowhere he has stated that based on his voluntary statement the accused along with the panchas took him (PW6) to his house. Therefore, even the evidence of the Investigating Officer does not say that it was the accused who led the team to the place where the seven motor cycles were said to have stored.
22. Interestingly, according to PW5, the place where the alleged seven motor cycles were stored was a pump house, where as, according to the Investigating Officer it was the house of the accused. Thus, even among these only supporting and material witnesses for the prosecution, there is a great disparity about the alleged place of recovery of the motor cycles. Thus, merely because two motor cycles said to have been found in the police station premises and delivered to the owners, by that itself it cannot be concluded that the accused has committed theft of motor cycles.
23. The essentials of Section 413 of IPC that a person who receives or deals with a property must be a habitual receiver or dealer in the property and that he should have the knowledge or the reason to believe that the property in which he is dealing is a stolen property.
24. In the instant case, when the prosecution could not able to establish that the two motor cycles in question primarily were stolen by somebody or that, particularly it was stolen by the accused and that he has dealt with those two motor cycles in any manner, it cannot be held that the accused has committed an offence punishable under Section 413 of IPC also. However, the trial Court even after noticing certain discrepancies in the evidence of the prosecution witnesses has only noticing the fact that the two motor cycles said to have been returned to its respective owners by the police stating them to be stolen and that the painter is said to have identified the accused as his customer, has jumped to a conclusion that the two motor cycles in question were also stolen by the accused and the accused was a habitual offender.
25. In the light of the above analysis, it has to be necessarily held that the said reasoning given by the trial Court for convicting the accused is erroneous, as such, the same deserves to be set-aside. Accordingly, I proceed to pass the following;
ORDER (1) The appeals are allowed.
(2) The judgment of conviction and order on sentence dated 27.11.2010 passed by the learned II Additional District and Sessions Judge, Tumakuru in SC Nos.150/2010 and 151/2010 convicting the present appellant for the offence punishable under Sections 379 and 413 of IPC are set-aside. The appellant / accused is acquitted of the offences punishable under Sections 379 and 413 of IPC.
(3) Bail bonds executed by the accused shall stand cancelled after the appeal period and if no appeal is preferred by the State.
Registry to transmit a copy of this judgment along with the Lower Court records to the Court below without delay.
Sd/- JUDGE GH