AND

ORDER

DATED

29.08.2011

IN

C.C.NO.1069/2009 PASSED BY THE CIVIL JUDGE AND JMFC,

SULLIA, D.K., AND ACQUIT THE PETITIONERS OF THE

CHARGES LEVELED AGAINST THEM.

THIS CRIMINAL REVISION PETITION, COMING ON FOR

HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

This revision petition is filed by the petitioners,

being aggrieved by the judgment of conviction and order of

sentence dated 29.08.2011 in C.C.No.1069/2009 on the file of

the Court of the Civil Judge and J.M.F.C., Sullia, D.K., and its

confirmation

judgment

and

order

dated

05.10.2015

in

Crl.A.No.147/2011 on the file of the Court of V Additional

District and Sessions Judge, D.K., Mangalore, Sitting at Puttur,

wherein the petitioners / accused were convicted for the

offence punishable under Sections 457 and 380 of Indian Penal

Code (for short ‘IPC’).

The petitioners are the accused before the Trial

Court and appellants before the Appellate Court.

Brief facts of the case are as under:

It is the case of the prosecution that, on

26.03.2009, a theft said to have occurred in the areca nut shop

of the complainant. It is further stated that, the complainant

was doing areca nut business, he had nine bags of areca nuts

which were weighing 75 kgs., each. The said gunny bags were

marked as NT-9. According to the prosecution, the said

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incident had occurred on 20.03.2009. However, complaint

came to be lodged by the complainant on 26.03.2009. After

registering the FIR, the respondent - police conducted

investigation and submitted the charge sheet.

4.

The prosecution, in order to prove its case,

examined 9 witnesses and got marked 18 documents and also

identified M.O.1 to M.O.15. On the other hand, the accused

have not led any evidence nor marked any documents on their

behalf. The Trial Court found that, the petitioners are guilty for

the offences stated supra. On appeal being filed, the Appellate

Court also confirmed the judgment of conviction passed by the

Trial Court. Being aggrieved by the same, the petitioners

have preferred this revision petition seeking to set aside the

concurrent findings.

5.

Heard Shri P.B.Umesh, learned counsel for the

petitioners

and

Shri

Rahul

Rai.K.,

learned

High

Court

Government Pleader for the respondent – State.

6.

Learned counsel for the petitioners contending

inter-alia that, the delay in lodging the complaint creates a

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doubt and the same has not been explained by the complainant

properly. The said delay in lodging the complaint is fatal to the

case of the prosecution. This aspect had not been considered

by the Courts below while appreciating the facts and

circumstances of the case.

7.

It is further submitted that, the seizure mahazar

has not been proved properly by the prosecution. In the

absence of the said seizure mahazar, the conviction ought not

have been recorded against the petitioners.

8.

It is further submitted that, though the prosecution

tried to prove that the bags containing areca nuts were

allegedly seized at the instance of accused No.1, both PW.4 and

PW.7 stated to be independent mahazar witnesses have turned

hostile. However, PW.5 - Satish and PW.6 - Chetan, who are

independent witnesses to the seizure mahazar, supported the

seizure of autorickshaw, which is marked as Ex.P7 and seizure

of areca nut gunny bags are marked as Ex.P13. They have not

supported the case of the prosecution in spite of supporting the

seizure mahazar of autorickshaw, therefore, the conviction

ought not to have been recorded against the petitioners.

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9.

The prosecution also considered PWs.5 and 6 as the

witnesses to seizure mahazar of areca nut, which is marked as

Ex.P13. Their evidence with respect to seizure of areca nut

bags ought not to have been considered by the Trial Court as

PWs.5 and 6 are the stock witnesses and they were called by

the investigating officer from another village. Having submitted

thus, learned counsel for the petitioner seeks to allow the

petition.

10.

Per contra lear