Karnataka High Court
C Swami vs The State Of Karnataka on 18 July, 2022
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JULY 2022
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.911 OF 2013
BETWEEN:
C.Swami,
S/o Chinnachari,
Aged about 25 years,
Occ: Carpenter,
R/at No.182, Marigudi Street,
Hulikere Village,
Belagola Hobli,
Srirangapatna Taluk,
Mandya District-571 401. .. Petitioner
( By Sri S.Javeed, Amicus Curiae )
AND:
The State of Karnataka,
By Sub Inspector of Railway
Protection Force,
K.R.Nagar,
Represented by the
State Public Prosecutor,
High Court Building,
Bangalore-560 001. .. Respondent
( By Sri K.Nageshwarappa, HCGP)
Crl.R.P.No.911/2013
2
This Criminal Revision Petition is filed under Section 397 and
Section 401 of Cr.P.C. praying to call for the relevant records and
allow this Criminal Revision Petition, by setting aside the order
dated 09.10.2013, passed in Criminal Appeal No.74/2013, by the
learned III Addl.District & Sessions Judge, Mandya (Sitting at
Srirangapatna), thereby dismissing the appeal filed by the
petitioner and confirming the judgment and order of conviction
and sentence dated 09.04.2013, passed in C.C.No.03/2011,
passed by the learned Addl.Civil Judge (Jr.Dn.) & J.M.F.C., at
Srirangapatna, thereby convicting the petitioner for offences
punishable under Section 3(a) of Railway Property (Unlawful
Possession) Act, 1966, and sentencing to undergo rigorous
imprisonment for a period of one year and to pay fine of `3,000/-,
in default of payment of fine, he shall again undergo simple
imprisonment of three more months, in the interest of justice.
This Criminal Revision Petition is coming on for Hearing,
through Physical Hearing/Video Conferencing Hearing, this day the
Court made the following:
ORDER
The present petitioner was tried as accused No.1 by the Court of learned Addl.Civil Judge (Jr.Dn.) & J.M.F.C., Srirangapatna, (hereinafter for brevity referred to as the `trial Court') in C.C.No.3/2011, for the offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966 (hereinafter for brevity referred to as the `RPUP Act') and was convicted by the judgment of conviction and Crl.R.P.No.911/2013 3 order on sentence dated 09.04.2013 and was sentenced accordingly.
Aggrieved by the same, the accused preferred an appeal in Criminal Appeal No.74/2013, before the learned III Addl.District & Sessions Judge, Mandya (Sitting at Srirangapatna), (hereinafter for brevity referred to as the `Sessions Judge's Court'), which after hearing both side, dismissed the appeal filed by the accused by its judgment dated 09.10.2013. Being aggrieved by the same, accused No.1 has preferred the present revision petition.
2. The summary of the case of the prosecution in the trial Court was that, on the date 24.06.2010, at about 4.15 a.m., one Sri Manchegowda (PW-1), Sub-Inspector of Railway Protection Force (hereinafter for brevity referred to as `RPF'), i.e., RPF Squad, was patrolling at Belagola- Krishnarajasagara Railway Station L.C. Gate No.9, they saw accused No.1 carrying railway property i.e., sign boards on Crl.R.P.No.911/2013 4 his shoulder and walking suspiciously. The Sub-Inspector along with his staff chased accused No.1 and apprehended him. The accused No.1 confessed before the said Sri Manchegowda that he had committed theft of ten more aluminium boards at L.C. Gate No.9 and at L.C. Gate No.13, between Belagola and Sagarakatte Railway Stations and had sold four aluminium boards, which are railway properties, to the scrap shop of accused No.2. Thus, accused Nos.1 and 2 are alleged to have committed the offence punishable under Section 3 of the RPUP Act.
3. The accused appeared in the trial Court and contested the matter through his counsel. The accused pleaded not guilty. As such, in order to prove the guilt against the accused, the prosecution got examined in all nine (9) witnesses from PW-1 to PW-9 and got marked documents from Exs.P-1 to P-23 and got produced the material objects from MO-1 to MO-7. However, neither any Crl.R.P.No.911/2013 5 witness was examined nor any documents were got marked on behalf of the accused.
4. The respondent is being represented by learned High Court Government Pleader.
5. Records from the trial Court and Sessions Judge's Court pertaining to the matter were called for and the same are placed before the Court.
6. In view of the fact that the learned counsel for the revision petitioner (accused No.1) failed to appear before this Court on several dates of hearing, this Court by its reasoned order dated 01.07.2022, appointed learned counsel - Sri.S.Javeed, as Amicus Curiae for the petitioner/accused No.1 to represent him in this case.
7. Heard the arguments of learned Amicus Curiae for the petitioner and learned High Court Government Pleader for Crl.R.P.No.911/2013 6 the respondent. Perused the materials placed before this Court.
8. After hearing both side, the only point that arise for my consideration in this revision petition is:
Whether the concurrent finding recorded by the trial Court, as well as the Sessions Judge's Court that the accused committed the alleged offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966, warrants any interference at the hands of this Court?
9. The learned Amicus Curiae for the petitioner in his argument submitted that except PW-3 and PW-4, all other prosecution witnesses are the official witnesses, as such, their evidence does not inspire confidence to believe. He further submitted that the evidence of PW-3 and PW-4, the panchas for the alleged seizure panchanama also have not supported the case of the prosecution. Thus, there are serious doubts in the case of the prosecution, the benefit of which ought to have been given to the accused, however, the Crl.R.P.No.911/2013 7 trial Court and the Sessions Judge's Court have failed to do so. With this, he prays to allow the revision petition.
10. Learned High Court Government Pleader in his argument submitted that PW-1 and PW-2 have identified not only the materials objects, but, also the accused. They have caught accused No.1 red-handed while he was carrying one of the stolen articles, which was a railway property. The recovery made at the instance of accused No.1 from the shop of accused No.2 has been established in the evidence of PW-8. It is not denied in his cross-examination that the recovery was made at the instance of accused No.1. Thus, it was for the accused to explain as to how come the railway properties came to his possession. As such, an adverse inference under Section 114 (a) of the Indian Evidence Act, 1972, can be drawn as against the accused.
He further submitted that there are no reasons to falsely implicate accused No.1 or accused No.2. Admittedly, Crl.R.P.No.911/2013 8 there is no enmity or rivalry between the accused and the complainant-Police. That being the case, the question of accused being falsely implicated in the matter would not arise. Finally stating that the accused have not denied that the properties at MO-1 to MO-6 are railway properties, as such, the possession of the said railway properties with accused Nos.1 and 2 was unauthorised, learned High Court Government Pleader submitted that the impugned judgments does not warrant any interference at the hands of this Court.
11. In this case, the criminal law was set into motion with the complaint lodged by PW-5 (CW-7) Manjunatha, as per Ex.P-1. Said Manjunatha (PW-5) was made to submit the said complaint in the form of a special report at the instance of PW-9 Dasa Venkataka, a Gangman, then working as a Keyman between Belagola and Sagarakatte. The said Dasa Venkata (PW-9/CW-10) has stated that while he was working as Keyman between Belagola and Sagarakatte Railway line of KRS on 03.05.2010, in the morning, he noticed missing of a Crl.R.P.No.911/2013 9 Railway Stop Board at L.C. Gate No.13. Thereafter, he proceeded further and noticed the missing of ten more boards at L.C. Gate No.9. He informed the same to his superior i.e., CW-7 - Manjunatha, who in turn, lodged a complaint with Railway Protection Force. He has identified his statement given to RPF at Ex.P-22.
12. PW-5/CW-7 Manjunatha is the second witness in the series, who, as observed above, has set the law into motion. The said witness in his evidence has stated that while working as the Section Engineer in the Railway Department at K.R.Nagara, he received a report about theft of eleven boards belonging to the Railway Department on 03.05.2010. By virtue of the said report, he visited the spot, which was in the line between Belagola and Sagarakatte on 04.05.2010 and also visited L.C. Gate Nos.9 and 13 and confirmed the missing of the boards. Accordingly, he has submitted a special report to the Railway Protection Force as per Ex.P-1. Crl.R.P.No.911/2013 10 He further stated that he has given the details of the missing boards as per Ex.P-2.
Subsequently, on 23.09.2010, since the police informed him about they tracing certain boards, he identified those boards at the request of the police. Among six boards, four boards were already burnt and one board was folded, however, one board was intact. He has identified all those boards as the boards belonging to the Railway Department and had issued a certificate in that regard as per Ex.P-3. Stating that he has also given statement before the RPF in that regard, he has identified the said statement at Ex.P-4.
13. PW-1/CW-1 Manchegowda, the Sub-Inspector of Railway Protection Force, K.R.Nagar, has stated that on 24.06.2010, between 4.00 a.m. to 4.15 a.m., at Belagola- Sagarakatte line, while he and his staff were on patrolling duty and were patrolling from Belagola to Sagarakatte, he received an information from Senior Section Engineer, South Crl.R.P.No.911/2013 11 Western Railway, K.R.Nagar, about the theft of aluminium luminous on 03.05.2010 at L.C. Gate No.13. While doing patrolling near L.C. Gate No.9, he had noticed an unidentified person carrying two plates on his right shoulder. They restrained him and saw that the two boards which he was carrying were the boards belonging to Railway Department, one of which was a `Stop Board'. Since it was very early morning, he could not get any independent person, as such, making use of his staff only, he drew a seizure panchanama as per Ex.P-5 and seized both those boards. The witness has identified both those boards at MO-5 and MO-6 in the Court. Identifying the accused in the Court, the witness has stated that it was the very same accused who was caught red-handed while he was carrying with him unauthorisedly MO-5 and MO-6. The witness has further stated that accused No.1 gave his voluntary statement before him admitting of he committing the theft of few more numbers at Gate No.9 and concealing in a bush at a distance of 9 KM. from there. Apart Crl.R.P.No.911/2013 12 from giving voluntary statement, he led the team to the said bush where he shown the spot. A panchanama in the said place was drawn as per Ex.P-7.
The witness has further stated that accused No.1 further revealed before them that he had sold the stolen articles to a scrap merchant. Stating so, he led PW-1 and his team to the house of one Sri Papegowda at Belagola. In the said place, the panchas were summoned and in their presence, four more boards belonging to Railway Department were found, which this witness has identified at MO-1 to MO-4. The witness stated that, further those four boards were in burnt condition. In the said house of Papegowda, accused No.2 was residing as a tenant. The said accused No.2 revealed before PW-1 that he had sold few more boards and produced cash of `2,625/- as the sale consideration received by him. In that regard, PW-1 drew a panchanama as per Ex.P-10 and arrested accused No.2 and thereafter recorded his statement as per Ex.P-11. The witness has Crl.R.P.No.911/2013 13 further stated that bringing both accused Nos.1 and 2 to the Police Station, he registered a crime against them in their Station Crime No.1/2010 and prepared a FIR as per Ex.P-12 and produced the accused before the Court along with FIR.
The witness has further stated that after registering FIR, he conducted the investigation in the matter, during the course of which, he collected the House Extract of Papegowda where accused No.2 was residing. He has identified the House Extract at Ex.P-13. He also stated that he recorded the statements of several of the charge sheet witnesses, including the staff who were accompanying him when he was on patrolling duty on 24.06.2010. After completing the investigation, he has filed the charge sheet against the accused.
14. PW-2/CW-2 S.Shivashankar, is the Constable in the Railway Police. He has stated that on 24.06.2010, he had accompanied PW-1, his superior officer while he was on Crl.R.P.No.911/2013 14 patrolling duty. In the morning hours, at about 4.15 a.m., they noticed an unidentified person carrying some articles with him towards Sagarakatte side. When he was stopped and enquired, he did not give a proper and convincing answer. It was noticed that he was carrying aluminium luminous boards which were two in number. After confirming that those boards were used by the Railway Department, PW-1 proceeded further in the matter. Regarding rest of the aspect of accused No.1 said to have given his voluntary statement before PW-1 and leading the entire team, including this witness to three different places, two of which are the alleged places of similar theft and another place is the one where accused No.2 is said to have been carrying on the business in scrap, the witness has given his evidence on the similar lines as that of PW-1. He too has stated that accused No.1 revealed about he committing theft of about eleven boards in total and selling nine of them to accused No.2. Crl.R.P.No.911/2013 15 This witness has identified the accused in the Court and also Boards recovered at the instance of the accused.
PW-1 and PW-2 were cross-examined in detail from the accused side, however, both the witnesses adhered to their original version. Nothing could be elicited in their cross- examination which was favourable to the accused or weakening the statements made by PW-1 and PW-2 in their examination-in-chief. Thus, primarily PW-1 and PW-2 have spoken about they catching hold of accused No.1 red-handedly while accused No.1 was said to have carrying two Sign Boards of railway property with him.
15. PW-3 - Srinivas and PW-4 - Jayaram, were examined by the prosecution showing them as panchas for the alleged seizure panchanama at Ex.P-10, which according to the prosecution was the panchanama drawn in the alleged scrap shop of accused No.2 recovering few boards from his shop. Both these witnesses though have stated that they Crl.R.P.No.911/2013 16 have put their signature in Ex.P-10 in a seizure panchanama, but, stated that since they were summoned near the scrap shop of accused No.2 by the police, they went there and saw both accused Nos.1 and 2 in the said shop, however, without knowing as to what enquiry the police were doing, since the police asked them to put their signatures to a panchanama, they subscribed their signatures.
Both these witnesses in their cross-examination have stated that they have not seen the police affixing the slips containing their signatures on MO-1 to MO-4.
16. It is mainly relying upon the evidence of PW-3 and PW-4, learned Amicus Curiae for the petitioner vehemently argued that PW-3 and PW-4 are the only independent witnesses examined by the prosecution, however, they have not supported the case of the prosecution regarding the recovery, as such, the recovery has not been established. Crl.R.P.No.911/2013 17
17. Per contra, learned High Court Government Pleader drew the attention of the Court to the evidence of PW-6 and PW-8.
PW-6 - Papegowda, is the owner of the premises where accused No.2 is said to have been running his scrap business. The said witness PW-6 in his evidence has stated that accused No.2 is residing in the premises let by him, however, he does not know as to what business accused No.2 was doing. However, he has admitted that he has subscribed his thumb mark to Ex.P-17 which is his statement before the Investigating Officer. Thus, the evidence of PW-6 would only go to show that accused No.2 was residing in the premises belonging to him, as a tenant.
PW-8/CW-5 - Ramesh, is the Constable of Railway Protection Force. He has stated in his evidence that on 24.06.2010, he too had joined PW-1 and PW-2 for patrolling duty between Belagola and Sagarakatte. He too has stated that at 4.15 a.m., they saw accused No.1 carrying Sign Crl.R.P.No.911/2013 18 Boards belonging to the Railway Department. He has stated that since the RPF staff alone were there, a panchanama was drawn in their presence only. The witness has further stated about the accused taking them to two other places stating that he had committed the theft of similar boards in those places also. He has further stated about accused No.1 leading them to a nearby bush and showing the place where he had hidden the boards. After stating so, the witness has further stated that accused No.1 has also led them to the house of accused No.2 stating that the boards stolen by him were sold to accused No.2. The witness has stated that the boards which were four in number and available with accused No.2 were seized by PW-1 by drawing a seizure panchanama as per Ex.P-10 where he was present. The witness has identified the two boards said to have been recovered from the actual possession of accused No.1 and four more boards from the possession of accused No.2 and has identified them at MO-1 to MO-6.
Crl.R.P.No.911/201319
The said evidence of PW-8 about the recoveries made at the instance of accused No.1 has not been specifically denied in his cross-examination from the accused side.
18. Thus, irrespective of the fact that PW-3 and PW-4 not fully supporting the case of the prosecution, suffice it to say that the evidence of PW-1, PW-2 and PW-8 clearly establishes that accused No.1 was caught red-handed in the early hours at 4.00 O'Clock in the morning on 24.06.2010 while he was carrying two Sign Boards with him. Their evidence further corroborates that at the instance of accused No.1, the places of theft of few more Sign Boards in the railway line at L.C. Gate No.9 and L.C. Gate No.13 were also noticed by these witnesses. Further all the three witnesses have uniformly stated that accused No.1 led them to the house of accused No.2 where four more Sign Boards which were said to have been stolen by accused No.1 and sold them to accused No.2 were recovered. The evidence of PW-6 Crl.R.P.No.911/2013 20 go to show that accused No.2 was a tenant in his house. Thus, the evidence of PW-1 that accused No.2 was residing under the tenant in the premises of PW-6 is corroborated by the evidence of PW-6 himself. The evidence of PW-5, who is the Senior Section Engineer of Railways further go to show that he has identified all the recovered articles as the properties belonging to Railways. In that regard, he had issued a Certificate at Ex.P-3.
19. Thus, it is proved beyond reasonable doubt that on 24.06.2010, between 4.00 to 4.15 a.m., accused No.1 was found in unauthorised possession of railway properties. His further enquiry revealed of he taking away few more similar railway properties i.e., Sign Boards from nearby places and selling it to accused No.2. Thus, MO-1 to MO-6 were recovered at the instance of the accused.
20. It is appreciating these evidence of the prosecution witnesses, which could not be shaken in their Crl.R.P.No.911/2013 21 cross-examination, the trial Court has rightly held the accused guilty of the alleged offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966, which was further confirmed by the Sessions Judge's Court in Criminal Appeal No.74/2013.
21. It is the sentencing policy that the sentence ordered must be proportionate to the gravity of the proven guilt of the accused. It must not be either exorbitant or for namesake.
22. In the instant case, the present petitioner/accused No.1 was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of `3,000/-, in default of payment of fine, to undergo simple imprisonment for a period of three more months for the offence punishable under Section 3(a) of Railway Property (Unlawful Possession) Act, 1966. Since in the light of the facts and circumstances of the case, the sentence ordered by the trial Court and confirmed Crl.R.P.No.911/2013 22 by the Sessions Judge's Court being proportionate to the gravity of the proven guilt against the accused, I do not find any perversity, illegality or error in the impugned judgments warranting any interference at the hands of this Court.
23. Accordingly, I proceed to pass the following:
ORDER The Criminal Revision Petition is dismissed as devoid of merits.
Petitioner/accused No.1 to surrender before the trial Court within 45 days from today and to serve the sentence.
The Court, while acknowledging the services rendered by the learned Amicus Curiae for the revision petitioner -
Sri.S.Javeed, recommends an honorarium of a sum of not less than `4,000/- payable to him by the Registry.
Registry to transmit a copy of this order to both the trial Court and also to the Sessions Judge's Court along with their Crl.R.P.No.911/2013 23 respective records forthwith to enable them to proceed further in accordance with law.
Sd/-
JUDGE bk/