IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A.PATIL CRIMINAL REVISION PETITION No.330/2018 BETWEEN:
STATE OF KARNATAKA BY BELTHANGADY POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURUR – 560 001.
..PETITIONER (BY SRI.S.T.NAIK, HCGP) AND:
MR.JOY D’SOUZA S/O VALERIAN D’SOUZA, AGED ABOUT 21 YEARS, R/AT DIDUROTTU HOUSE, SONADOORU VILLAGE, BELTHANGADY TALUK.
..RESPONDENT THIS CRL.RP IS FILED U/S 397 R/W 401 CR.P.C. PRAYING TO SET-ASIDE THE JDUGMENT AND ORDER DATED 1.1.2018 PASSED IN CRL.A. NO.111/2016 PASSED BY THE IV ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE AND SET-ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 13.1.2016 PASSED IN C.C.NO.860/2010 BY THE PRL.CIVIL JUDGE AND JMFC, BELTHANGADY, D.K. THEREBY ACQUITTING THE ACCUSED-RESPONDENT FOR THE OFFENCES P/U/S 454, 380 OF IPC AND CONVICT AND SENTENCE THE ACCUSED –RESPONDENT FOR THE OFFENCE P/U/S 454, 380 OF IPC IN ACCORDANCE WITH LAW.
THIS PETITION COMING ON FOR ADMISSION, THIS DAY THE COURT MADE THE FOLLOWING:-
ORDER Heard the learned High Court Government Pleader regarding admission.
2. This Revision Petition is filed by the State under Section 397 and 401 of Criminal Procedure Code (‘Cr.P.C.’ for short) challenging the Judgment passed by the IV Addl. District and Sessions Judge, D.K., Mangaluru (‘Appellate Court’ for short) in Crl.A. No.111/2016 dated 01.01.2018, whereby the Judgment and order of acquittal passed by the Prl. Civil Judge and JMFC, Belthangady (‘trial court’ for short) in C.C.No.860/2010 dated 13.01.2016 was confirmed.
3. It is the submission of the learned HCGP that the evidence on record goes to show that the gold articles MOs 1 to 6 were stolen from the house of the complainant. The evidence and the material placed have not been properly considered and appreciated by the trial Court and the Appellate Court. It is further submitted that the evidence of the Investigating Officer also establishes the fact that the accused was arrested and his voluntary statement was recorded. As per Ex.P15 the stolen articles were recovered in the presence of panch witnesses. This aspect has not been properly considered and appreciated by the trial Court. Both the Courts below have erred in not appreciating the evidence and acquitting the respondent-accused. On these grounds, he prayed to admit the revision petition and issue notice to the respondent.
4. I have carefully and cautiously gone through the Judgments of the Courts below.
5. The case of the prosecution is that on 3.10.2010 at 9 a.m., the respondent-accused alleged to have committed theft of gold articles from the almirah of complainant’s house. On being compliant lodged by the complainant, the jurisdictional police registered a case against the accused and subsequently, at the instance of the accused, the gold articles were seized and the same have been identified by PW-4. The accused was charge sheeted for the offences punishable under Sections 454 and 380 of IPC. After following the procedure laid down under Section 207 of Cr.P.C., trial was held. To establish the case of the prosecution, totally 11 witnesses, PWs 1 to 11 were examined and also got marked the documents Exs.P1 to P20 and MOs 1 to 10. PW-1 is the complainant, PW-2 and PW-3 are the daughter-in-law and son of PW-1, PW-4 is an independent witness, PWs 5 to 8 are panchas to the seizure of articles as well as spot panchanama, PW-9 is the PDO, PW-10 is one who registered the case and PW- 11 is the Investigating Officer who investigated the case and filed charge sheet against the accused.
6. Perusal of the records indicates that PW-1 has not supported the case of the prosecution and in her evidence, she has deposed that she used to keep gold articles in Bank locker and whenever required, she used to bring the articles from the Bank and keep in almirah by locking it. She also used to take the key while going outside the house and on the date of the incident, she took both the keys that of almirah and house. The evidence of the complainant shows that she has not identified the accused and even not fully supported the case of the prosecution. PW-2 has also not given consistent evidence. Insofar as the other witnesses are concerned, they also have not supported the case of the prosecution. The only evidence available before the Court is that of PW-4. During the course of cross- examination, there are many contradictions and omissions and as such, his evidence is also not trustworthy and reliable. After considering the above evidence, the trial Court has come to the conclusion that there has been no cogent evidence to show that the accused was the same person who had stolen the gold articles from the house of the complainant and from whom the gold articles were seized. Even the complainant did not identify the accused. It is also further observed that other witnesses are formal in nature. Admittedly, they have not witnessed the incident and no cogent evidence has been produced to convince the Court. After considering the evidence of the above witnesses, the Court below holding that there is no cogent evidence against the accused to prove the guilt, acquitted the accused of the alleged offence. Though the State has preferred the appeal before the District and Sessions Court, the Appellate Court re-appreciating the evidence has come to the conclusion that the evidence which has been produced is not sufficient to bring home the guilt of the accused. PW-4 is a stocked witness and his evidence also has been discarded. By detailed discussion, both the Courts have come to a right conclusion and have rightly acquitted the respondent-accused.
7. It is well settled principles of law that if the Court below after exercising and appreciating the evidence, when there are two views available, by taking one of the view by giving benefit of doubt accused is acquitted, then under such circumstances, the Appellate Court must be very slow in interfering with such order. Under such circumstances, the petitioner- State has not made out any good grounds to admit the said revision petition.
Revision Petition is devoid of merit and the same is liable to be dismissed and is accordingly dismissed.
Sd/- JUDGE ln