Reshma Hegde vs State Of Karnataka

S Rachaiah, J

CAV ORDER

This Criminal Revision Petition is filed by the petitioner, being aggrieved by the judgment of conviction and order of sentence dated 10.11.2016 in C.C.No.437/2011 on the file of Principal Civil Judge and JMFC, Karkala and its confirmation judgment and order dated 26.04.2018 in Crl.A.No.74/2016 on the file of Principal Sessions Judge, Udupi District, Udupi, seeking to set aside the concurrent findings recorded by the Courts below, wherein the petitioner / accused No.1 is convicted for the offences punishable under Sections 454 and 380 of Indian Penal Code (for short ‘IPC’).

The ranks of the parties in the Trial Court henceforth will be considered accordingly for convenience.

The factual matrix of the case:

It is the case of the prosecution that, on 01.05.2011 at about 1.30 p.m., when C.Ws.1 and 2 were away from their house, the accused Nos. 1 and 2 broke open the lock of the house and committed theft of gold ornaments weighing about 20½ pauns. After coming to know the said theft, the complainant lodged a complaint before the respondent -police. The respondent - police registered FIR in Crime No.66/2011 for the offences punishable under Sections 454 and 380 of IPC. After conducting the investigation, submitted the charge sheet.

In order to prove the case of the prosecution, the prosecution examined eight witnesses as PWs.1 to 8 and got marked 23 documents as Exs.P1 to 23 and also identified five material objects as M.Os.1 to 5. The Trial Court after appreciating the oral and documentary evidence on record, recorded the conviction for the offences stated supra. On appeal being filed, the same was confirmed by the Appellate Court.

Heard Sri.Nishit Kumar Shetty, learned counsel for the petitioner and Sri.K.Nageshwarappa, learned High Court Government Pleader for the respondent - State.

It is the submission of the learned counsel for the petitioner that the concurrent findings recorded by the Courts below are not proper and correct. Therefore, the findings of the Courts below are required to be set aside.

It is further submitted that the alleged recovery stated to be effected in terms of Section 27 of the Indian Evidence Act has not been complied properly. The said recovery did not effect from the exclusive possession of the accused. The alleged documents stated to be produced by the Manager of the Bhima Jewellers are fabricated for the purpose of the case.

It is further submitted that though it is stated in the complaint that several gold ornaments have been stolen from the house of P.Ws.1 and 2, the said gold ornaments have been recovered in the form of ingots. Therefore, the identity of the gold ornaments loses its significance. Even though the prosecution has not proved the case beyond reasonable doubt, the Courts below have concurrently committed error in recording the conviction and the same has to be set aside.

Per contra, the learned High Court Government Pleader for the respondent - State vehemently justified the judgment of conviction passed by the Trial Court and its confirmation order passed by the Appellate Court are proper and correct.

It is further submitted that the evidence of P.Ws.1 and 2 and also P.Ws.4 and 6 are relevant to the case on hand. The recovery was effected in the presence of an independent witness. The Manager of the Bhima Jewellers has identified the accused No.1 and produced the receipts for having sold the gold ornaments which were stolen from the house of P.Ws.1 and 2. The evidence both oral and documentary adduced by the prosecution are sufficient to hold that the accused is found guilty. Therefore, the concurrent findings of the Courts below are proper and interference with the said findings is not necessary. Making such submissions, the learned High Court Government Pleader prays to dismiss the petition.

Having heard learned counsel for the respective parties and also perused the findings of the Courts below, it is appropriate at this stage to have a cursory look upon the evidence of all the witnesses.

P.Ws.1 and 2 are consistent in their evidence that theft has been effected in their house and some gold ornaments were found missing. Based on the complaint, the respondent - police have registered a case and conducted the investigation. As per the evidence of P.W.5, who was working as PSI, has received an information regarding the parking of vehicle bearing Reg. No.KA-20-A-7050, was parked a little away from the house of P.Ws.1 and 2. Based on the said information, he arrested the accused. After arresting the accused, recorded their voluntary statements and took them to Bhima Jewellers at Udupi.

P.W.6 being a Manager of Bhima Jewellers has identified some documents which are marked as Exs.P.13 to 16 which indicates that accused Nos. 1 and 2 have sold the old gold ornaments and also purchased new gold ornaments. He further stated that the said gold ornaments of which accused Nos. 1 and 2 were dissolved in the form of gold ingots.

On reading of the evidence of P.Ws.5 and 6, it appears that though P.W.6 has stated that accused No.1 has purchased gold ornaments. As per Exs.P.15 and 16, the said ornaments have not been recovered. This creates doubt in respect of selling and purchasing of gold from Bhima Jewellers. When the evidence of P.W.6 does not inspire the confidence of the Court, believing his evidence and recording the conviction, in my considered view is erroneous and not proper. Mere alleged recovery of the golden ingots would not be sufficient to hold that the accused No.1 is found guilty of the offences as stated supra. In this way, the Courts below have committed an error in appreciating the evidence. Therefore, the conviction rendered by the Courts below are required to be set aside.

In the light of the observation made above, I proceed to pass the following:

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The judgment of conviction and order of sentence dated 10.11.2016 passed in C.C.No.437/2011 by the Principal Civil Judge and JMFC, Karkala and the judgment and order dated 26.04.2018 passed in Crl.A.No.74/2016 by the Principal Sessions Judge, Udupi District, Udupi are set aside.

(iii) The petitioner / accused No.1 is acquitted for the offences punishable under Sections 454 and 380 of IPC.

(iv) Bail bonds executed, if any, stand cancelled.