Suresh vs The State of Karnataka

P.D. Waingankar, J.—By judgment dated 18.07.2008, the petitioner has been convicted for the offence punishable under Section 454 and 380 of IPC in C.C. No. 136/2007 on the file of Prl. J.M.F.C., Bailhongal and has been sentenced to undergo simple imprisonment for a period of two years and to pay fine of Rs. 3,000/- and in default to pay fine amount, to undergo further simple imprisonment for a period of six months for the offences punishable under Sections 454 and 380 of IPC. Cd.A. No. 151/2008 filed by the petitioner-accused before the Fast Track Court, Bailgongal came to be dismissed on merits by judgment dated 07.07.2010 confirming the judgment of conviction and sentence passed by the Magistrate. Questioning the legality and correctness of the order passed by both the Courts below, this revision petition is preferred under Section 397 read with Section 401 of Cr.P.C.

The prosecution case in a nutshell is as under:

"On 21.11.2006, in between 12.00 p.m. to 2.30 a.m., the complainant had been to her agricultural land by putting lock to her house at Malapur in K.N. village. The complainant had kept the keys with CW-12. Taking advantage of the same, the accused approached CW-12 for key of the house of the complainant representing that he is the relative of the complainant. CW-12 handed over the key to the accused who in turn opened the door and committed theft of gold ornaments worth Rs. 9,000/- and cash amount of Rs. 15,000/-. Thereafter, the accused again locked the house and went away towards market alleging that he is going to market in order to purchase gutka. After the complainant returned to the house, she was told by CW-12 that key has been taken by her relatives. Thereafter, the complainant went in search of the person to whom the key was handed over by CW-12 under the premise that he is the relative of the complainant. She could not trace the said person. Thereafter, the son of the complainant entered the house from back door and opened the front door and found that the golden ornaments and cash amount of Rs. 15,000/- had been taken away by the said person. She lodged a complaint against one Parawa PW-10. During the course of investigation, the Investigating Officer came to know that Parawa is nothing to do with the alleged offence. On 18.02.2007, the accused was roaming in his village on suspicion. He was apprehended and brought to the police station. Upon interrogation, he confessed the commission of crime and theft of cash amount and golden ornaments. On the strength of his voluntary statement, cash amount of Rs. 10,000/- and gold ornaments were recovered from the house of the accused. They were seized under a panchanama. Upon completion of the investigation, a chargesheet came to be filed against accused for the offence punishable under Section 380 and 454 of IPC. The accused having denied the accusation, the prosecution examined as many as 12 witnesses as PWs-1 to 12 apart from marking Exs. P-1 to P-6 and M.Os. No. 1 to 4. Learned Magistrate upon appreciation of evidence, convicted the accused for the offence punishable under Sections 384 and 454 of IPC and sentenced him to undergo imprisonment for a period two years each for both the offences. The appeal preferred by the accused also came to be dismissed. Hence, this revision questioning the legality and correctness of the order passed by both the Courts below."

I have heard the learned counsel for the petitioner-accused and learned Government Advocate. Perused the records.

Learned counsel for the petitioner-accused would submit that though the alleged incident said to have taken place on 21.11.2006, crime came to be registered on 19.07.2007. There is inordinate delay in lodging FIR. On that ground alone, the accused is liable to be acquitted. Learned counsel further submitted that when the complaint was given against one Parawa who has been subsequently cited as chargesheet witnesses and examined as PW-10. There is absolutely no evidence so as to implicate the petitioner for the alleged offences. Learned Magistrate without appreciating the evidence in its proper perspective convicted the accused. So also the learned Sessions Judge on reappreciation of evidence, confirmed the conviction. Hence, for all these reasons, the counsel for the petitioner would submit for the acquittal of the petitioner.

Learned Government Advocate on the other hand has argued in support of the judgment of conviction and sentence passed by the Magistrate and confirmed by the Sessions Judge.

Upon hearing the both the sides, the only point that would arise for my consideration is:

"Whether the conviction of the accused by the Magistrate and affirmed by the Sessions Judge is sustainable in law?"

During the course of arguments, learned counsel for the petitioner has placed reliance on the decision of the Hon''ble Supreme Court reported in Azeez Vs. State of Kerala, and submitted that the facts of the case on hand are also similar and therefore, the accused is liable for acquittal on the aspect of delay in lodging the FIR. From 6th para of the aforesaid judgment, it is seen that while PW-1 in her evidence has stated that her daughter PW-2 was sleeping at the night of 12.11.1995. PW-2 was worn gold chain which was hatched by the accused therein and PW-2 did not realize that her gold chain was stolen. It is only on 28.11.2005 when the police came to the house along with accused and gold chain then she realized that her gold chain was stolen. Thereafter, she lodged a complaint on 28.11.1995. In the case on hand, the incident of theft had taken place on 21.11.2006, the complainant was very much aware of theft of cash amount and gold ornaments on the date of theft itself but she lodged complaint on 19.01.2007 after about one month and 15 days. No explanation is forthcoming for the inordinate delay in filing the complaint as such in view of aforesaid decision relied upon by the counsel for the petitioner-accused, the accused is liable for acquittal on the ground that the delay in lodging the FIR. This aspect of the matter has not been discussed by both the Magistrate and Sessions Judge.

The evidence of Investigating Officer who has been examined as PW-11 is relevant so as to know how the accused was apprehended. He has deposed as under:

Thus, the manner in which the accused was apprehended does not inspire the confidence of the Court. It gives impression that after recovery of the gold ornaments and the cash amount, the accused appears to have been falsely implicated in this case. Since there is inordinate delay in filing the complaint and the manner in which the accused was apprehended that too after two months from the date of alleged offence does not inspire the confidence of the Court. Any amount of evidence placed on record by the prosecution will not be helpful to the prosecution in order to establish the charges levelled against the accused. No doubt, the prosecution has examined as many as 12 witnesses. PW-1 is the complainant she is not an eyewitnesses to the incident. She has spoken about the stolen articles from her house. PWs-2 and 3 are the spot panchas their evidence is of formal in nature. PWs-4 and 5 are the panchas in respect of seizure of cash amount of Rs. 10,000/- and gold ornaments at the instance of the accused. PWs-6, 7 and 8 are the neighbours of the complainant. PW-9 is the husband of PW-1 who was working in Municipality of Gokak at the time of incident. PW-10 is Parawa against whom the original complaint was lodged subsequently she was treated as approver. Be that as it may, she has not supported the prosecution case. PW-11 is Investigating Officer. PW-12 is the scribe of the complaint. Thus, on perusal of the entire evidence placed on record by the prosecution, the prosecution has not been explained the inordinate delay in lodging the FIR which cause to the very root of case and further the manner in which the accused was apprehended are also does not inspire the confidence of the Court. For all these reasons, in my view, the conviction of the accused is not sustainable in law. Accordingly, I pass the following:

"ORDER

The revision petition is allowed. The judgment dated 18.07.2008 in C.C. No. 136/2007 on the file of Prl. J.M.F.C., Bailhongal which has been confirmed by judgment dated 07.07.2010 in Crl.A. No. 151/2008 by the Fast Track Court, Bailhongal is hereby set aside.

The accused is acquitted of both the charges levelled against him.

The fine amount, if any, deposited by the accused shall be refunded to him."