Karnataka High Court
State Of Karnataka vs Arif Pasha @ Pasha @ Riyaz Pasha on 11 March, 2010
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11'?" DAY OF MARCH 20
BEFORE A' A I
THE) HONBLE MRJUSTICE3 1'
CRIMINAL APPEAL Ni2.14:"9~;s:/a0(J17~' 'A
BETWEEN: A A A A .
State of Karnataka '
By Halagur Police Statior1.._ = APPELLANT
[By A.V.Ramakrishna, Hi:G;?} '' E
AND:
Arif Pasha @__. I:'I1S~lf1Ei~~.. " .j "
@ Riyaz Pasha -j_ V. '
@ Yelu ::;:- A
S/0 late Evlohiddln saib _ "
47 years, AL.1'£O.df'1":"r€f_' " 1
Permanent. R/o Bel'a1j<'avadl"
Village, 1\/Ial'ayall_iTal_ul<:. ~ .. RESPONDENT
{Sri.P,§Re0Tpesh, 1/¥m1l:eus Curiae}
*$**=i¢=I<*=§=1!=*$***
. '1;hivl3»"lC,Ti1Tlil*£al Appeal is filed under Section 37'8{l} and {3}
of '€'..r."P.C._ p:=;;:ymg to grant leave to file an appeal against the
judgmenl;' cit.24.1.2()O7/2.4.2007' passed in C.C.N0.241/2006
_ 'Apr: the 'file of the JMF'C.. 1\/,{alaval1l,_ acquittihg the
" Tesponderlt/accused for the offence p/u/ss.4L57', 380 IPC,
This Appeal coming on for Hearing this day. the Court
" delivered the following:
')
J U D G M E N T
Sri.P.Roopesh is appointed as Amicus Curiae for the respondent W accused. since he is served and uiirepresented. He has been given set of papers from the learned Pleader. Further he makes submission on respondent. -
2. This appeal is filed passed in C.C.i\Io.24l/2006 da'ie:d"2_4*-*' 200;?'/2*"lApi*il" V 2007 by the J.M.F.C., MalavalliV,i.----BL./"the--~.said c>"i'~i:ier. the learned Magistrate has acquittledp-.i,he for the offence punishable under'Sectio:isl'4';"§:'{' The accused is acqui,tte~d ¢isa.i.d"--oil7ehces;~.buli the Court has convicted him forlthe' under Section 41 l of IPC since he was in p'o._ssessio_ri thpe'_.'si.oler: goods. 'l V' L..ll3.i.;As;a--inst the""acqui.ttal of the accused for the offences ,.piiplié,1~i:§i:1_g~_;i -§j"m:ie_;: Sections 457 and 380 of IPC. this appeal hasdoeen. and the learned HCGP for the appellant V.,subrnit"ted':. that, though the prosecution witnesses are "«.exam"i;ned as PWs--l to 8 and docuiherits are marked as per l Eig:s.Pi to P9. the trial court did not believe the same and acquitted the accused.
r E? prosecution has examined Pwwl.
who is Poiiee Constabie. who apprehended the accused in Connection with Crime No.2/2006. At. the time of interrogation, the accused has revealed about the ':o£?ence corlmlitted in the office of PW-4. On the staternent. PW--2 has apprehended the accuse.d_.ei:1.d b 21 case in Crime No.35/2006 for anlhoffencev Sections 457' and 380 of IPC and on"his--._assis'{2i.n.ee. "1'e(:--oVery' has been made as per EXP}. Ther'er:ove1'e'd_aI'trir;;=}esVha.ve been 1r1arked as M.Os.1 to 7.,
4. PW~4 ~ Coordinatorrihs tt'vt2{}it11ess'*b't't3e seizure as per EXP}. On the:..b.ési's.. of §the§reeovefyt'_j§21adej'i5y the accused, on noticingv"thte.A '-c'ia.tn1ed..~'that the stoien property. which \7t}'e1s belongs to the office where PW- 4 is xvorkinhgshf-1.en{:e_,'VFW-4;\.'111akes a eompiaint on 8.3.2006 as _. _ per ¥v'2"and slhti-:<11vso_'identifies the stolen property. ' _v5..,j?'W;«5'A'is___the spot mahazar paneh. who turned hostike and 'a.i'soVFW~~.6';!relative of the accused from whose residence
--V the sétoienaphroperty was recovered. she aiso turned hostiie and :'t.V}["'v"~Jvt--r'.7'_ is "a recovery paneh. as per EXP}. who supports the p§roseeut,ion and PW«8 is the Investigating Officer. It is T subniitted that the material witnesses in respect of the case on hand are. PWs--1 to 4 and 7.
6. PW--1 recovers the articles on the basis gel' the voluntary statement made by the accused and the been marked as Ex.P1 and the recovered art,ic1esfa.'reVl\/I:.'Os'; lbto
7. On the basis of the recovery niade"by--.}?W on lholtipciiag it the same. complaint has been niadebdlby ii-.5_A\}V'¥4.llvvhtxciaixnsthat all the properties, which wereV1"ec'ov_ered."aVt: the ir1sta'nc.e "of thewd accused. belong to office where....s:he_ \VOI"K'ii1§;{," who apprehended the «who supports the prosecution andiwhg 19" lav/itne_ss.."'lTo'1' the seizure of articles, PW.--4-its the_-:_corrxpl1ainart--t.jivhoilrnakes a complaint on the basis of the i"ecove.rv"eVi_1_iade"by the prosecution. Learned HCGP for thepdappeilaénif Stlifiiilits that though the complaint has beeatgpnlvade after=!.aps_ep.ol' six months. but she identifies the 'stol~e_i1 pvrcperty". __ Under these circurnstances, the prosecution has'--proVved"_'»t.hep;;.oifence committed by the accused, Though the prosecu"tion' proved the case. the court below disbelieved gtiieesarrvie, Hence. he subinitted to allow this appeal.
7. On behalf of the respondent. the Amicus Curiae Sri.P.Roopesh submitted that though the recovery has been 'l made and the complaint, has been made by PW--4. who identifies the property. but she failed to place the materials or the register in respect of the property concerned,"7..l\lI'erely making a claim without producing any materialslikef1j'eeei};tS'.« register, etc.. is not proper to prove the case. He, submitted that. from the complaint zgnadlelby office where she is working was _broke'----open o11yE'?1..A7'.2l'OO5 and property belongs to the office vli2:4i,:l..'or1e Philips i"llapev:Recorde1-. one On-ida DVD player',~.,_onerl'Can.on j"camera,l"one Minolto camera, two Philips computer spvea§ter.y.anC':i.orie Philips remote have been stolen«'xy:o'r*th «fVI'ho:=;igll{h the commission was made on 2006, no complaints have been and s'he"~.tna_cie the present complaint only after l<no'v.{in'gy thatlpi'oper_ti'€«:§l were recovered by the Police. Exc.ep.t-- this, F"W.:4'does.lnot.l place any receipt or register or any ."'niat"ertal3--."itoshow her office is the owner of those pro,perties»-.eaiidzuifjtder these circumstances. it is submitted by the »EearnVedlC,ounsel for the respondent that the prosecution V'-has tailed to prove its case.
* E have heard the arguments of both the Counsel. in .e y_i__exv of the submission made by the learned Counsel for the it respective parties. 1 have gone through the L.C.R. and found (3 that the entire case of the prosecution is depending upon the complaint made by PW--4. PW~»4 makes a complaint after lapse of more than six months. She speaks to what has been stated in the comptaint. No cogent rnateria} has been addutcedp on behalf of the prosecution. As it is stated by the for the appellant that the accused was No.2 / 2006 and in the course of iiitverrogation, he .__rue*.§ea:]'edh in respect of the theft, which is thehgsubject compiaint made by pw--4. Henc'e:'anoth.ei*-- crime iiiass/2006 V' was registered. From the.__very=tsubiniissi-on it ¢'ome;é, out that PW~4 has failed in claiining:'Vst_oIte.,§;».,pi-operty and the prosecution aiso .has_not.;plac_ed any"_reZiance in respect of the property which'tb_eiongs Under these circumstances. as the triat court i.has"goiieu"tiirough it, I find that there is a justification thpeyiewittakzen by the trial court. Hence. I find "no reasons'AtoV't'interferemit%ith this order. since there is a lapse on thesideoiiltiiefprgisecution. Though the accused is acquitted for the under Section 457 and 380 IPC, but he has "been coiégtiicted under Section 411 of UPC. Since he was in possession of the stoien property, though it is not complained the respective claimants and further, the accused has aiso '\ 'i.