1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 29^TH DAY OF NOVEMBER, 2021

BEFORE

THE HON'BLE MR. JUSTICE V. SRISHANANDA

CRIMINAL REVISION PETITION NO.170/2012

BETWEEN

SRI ABDUL SHUKOOR

S/O S MOHAMMED

AGED ABOUT 26 YEARS

R/AT S.A.KHADER MANZIL

IN FRONT OF PADIVAL TILES

SURALPADY, KIMMNIKAMBLA POST

MANGALORE TALUK

...PETITIONER

(BY SRI HAREESH BHANDARY.T, ADVOCATE)

AND

THE STATE OF KARNATAKA

REPRESENTED BY

STATE PUBLIC PROSECUTOR

HIGH COURT BUILDINGS,

BANGALORE

&RESPONDENT

(BY SRI K.S.ABHIJITH, HCGP)

THIS CRL.RP IS FILED U/S.397 CR.P.C PRAYING TO

SET ASIDE THE ORDER OF CONVICTION DATED:9.12.05

MADE IN C.C.NO.2648/04 BY THE COURT OF JMFC-II,

2

MANGALORE AND THE ORDER DATED:3.1.12 MADE IN

CRL.APPEAL NO.47/06 BY THE COURT OF II ADDL.

DISTRICT AND SJ, D.K., MANGALORE AND ACQUIT HIM OF

THE OFFENCES WITH WHICH HE WAS CONVICTED BY THE

COURTS BELOW.

THIS CRIMINAL REVISION PETITION COMING ON

FOR HEARING THIS DAY, THE COURT MADE THE

FOLLOWING:-

ORDER

Heard Sri Hareesh Bhandary T., learned counsel for

the Revision Petitioner and Sri K.S.Abhijith, learned High

Court Government Pleader for respondent and perused the

records.

2.

The present Revision Petition is filed by the

accused who suffered an order of conviction for the offence

punishable under Section 379 of IPC and was sentenced to

undergo simple imprisonment for a period of one year and

to pay fine of Rs.1,000/- which was confirmed in Criminal

Appeal No.47/2006 on the file of the II Addl. District &

Sessions Judge, D.K., Mangalore.

3

3.

Brief facts of the case are as under:

Upon a complaint lodged by Linson complaining

about the theft of handy cam worth Rs.36,000/- and

mobile handsets, which were kept in a Car dickey,

Panambur Police registered a case against the unknown

persons at the first instance. When the said matter was

investigated, Assistant Sub-Inspector, Panambur Police

apprehended the accused and after thorough investigation,

laid a charge sheet inter alia recovered the handy cam as

well as the mobile telephones.

4.

Accused pleaded not guilty and therefore, the

trial was held. In order to prove the case of the

prosecution, prosecution in all examined 7 witnesses as

PWs.1 to 7 and relied on 10 documents, which were

marked and exhibited as Exs.P1 to 10. Accused statement

as contemplated under Section 313 Cr.P.C. was recorded

wherein

the

accused

denied

all

the

incriminatory

circumstance found against him.

4

5.

Learned Magistrate after hearing the parties in

detail, recorded an order of conviction and sentenced him

as aforesaid. Being aggrieved by the same, the accused

preferred an appeal before the First Appellate Court in

Criminal Appeal No.47/2006.

6.

Learned Judge in the First Appellate Court after

re-appreciation of the entire materials available on record

by securing the trial Court records, confirmed the order

passed by the learned Magistrate. Being aggrieved by the

same, accused is in Revision Petition before this Court.

7.

Learned counsel for the Revision Petitioner

Sri Hareesh Bhandary T., vehemently contended that both

the Courts have wrongly convicted the accused resulted in

miscarriage of justice. He also contended that the

materials available on record is not sufficient enough to

prove that accused is responsible for the theft of the handy

cam as well two mobile phones. He also pointed out that

the recovery mahazer is not properly proved and based on

5

voluntary statement alone prosecution cannot record an

order of conviction against the accused and sought for

allowing the Revision Petition. Alternatively, he contended

that since the accused is the first time offender, he may be

granted probation.

8.

Per contra, learned High Court Government

Pleader supported the impugned judgment by contending

that recovery of the stolen articles from the custody of the

accused in pursuance of the voluntary statement itself is a

strong

ci