Karnataka High Court
State Of Karnataka vs Wazir Khan S/O Hasan on 7 June, 2024
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NC: 2024:KHC-D:7647
CRL.A No. 100073 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100073 OF 2017 (A)
BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY THE
RAILWAY POLICE FORCE, HUBBALLI,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
- APPELLANT
(BY SRI MADANMOHAN M.KHANNUR, AGA)
AND:
1. WAZIR KHAN S/O. HASAN,
AGE: 62 YEARS,
R/O: MANTOOR ROAD, GANDHI EKLTA COLONY,
2ND CROSS, HUBBALLI.
2. SYED SHAFEE S/O. ABDUL SHA HARIHAR,
AGE: 41 YEARS,
R/O: NO.609/G BLOCK,
2ND CROSS, OLD HUBBALLI.
Digitally signed - RESPONDENTS
by VINAYAKA B V
(BY SRI R.M.JAVED, ADVOCATE FOR R2;
Location: HIGH
COURT OF NOTICE TO R1 SERVED)
KARNATAKA
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST
THE JUDGMENT AND ORDER OF ACQUITTAL DATED 26.04.2016
PASSED BY THE JMFC I COURT, HUBLI IN C.C.NO.570 OF 2009 AND
TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
26.04.2016 PASSED BY THE COURT OF & JMFC I COURT, HUBLI IN
C.C.NO.570 OF 2009 AND CONVICT THE RESPONDENTS/ACCUSED
FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3(A) OF THE
RAILWAY PROPERTY (UNLAWFUL POSSESSION) ACT 1966 AND ETC.,
THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:7647
CRL.A No. 100073 of 2017
JUDGMENT
Though the appeal is listed for hearing on interlocutory application, with consent of both sides the appeal is heard on merits and disposed off.
2. State has preferred this appeal against the judgment of acquittal passed by the learned JMFC 1st Court, Hubli (for short 'trial Court') in C.C. No. 570/2009 dated 26.04.2016.
3. Parties are referred to as per their ranking before the trial Court.
4. Brief relevant facts leading to filing of this appeal are as under:
It is alleged that on 19.12.2007 at about 8.00 a.m. while the complainant and his staff were on a watch between S&T signal pole no. SH 29 and SH 30 near S&T signal box no. BB 24 at Hubballi yard, on Mantur road, Hubballi. At that time they noticed one person carrying a polythene bag on his right shoulder and moving towards West to Easst side of Mantur road in a suspicious manner and when he was detained and enquired he did not give satisfactory answer, on checking the bag they found one Air Cooler Coiled motor belonging to Railways and -3- NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017 not produced any bill or voucher as to the said property and same was seized under panchanama. It is further alleged that accused no.1 revealed name of accused no.2 as he is a scrap merchant and purchase such property. Thus accused have committed offences punishable under Section 3(a) RP (UP) Act, 1966.
5. After taking cognizance a case was registered in C.C. No. 570/2009 and summons were issued to the accused. In response to the summons, accused appeared before the trial Court and enlarged on bail. The substance of accusation was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried.
6. To prove the guilty of the accused, prosecution has examined 13 witnesses as PWs.1 to 13; documents as per Exs.P.1 to P.42 and material objects at M.Os.1 to 4 were marked. On closure of prosecution side, statement of accused under Section 313 Cr.P.C. was recorded. The accused have totally denied the evidence of prosecution witnesses but they have not adduced any defence evidence on their behalf. -4-
NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017
7. Having heard arguments of both sides the trial Court has passed the impugned judgment of acquittal. Being aggrieved by the judgment of acquittal, the State has preferred this appeal.
8. Sri Madanmohan M. Khannur, learned Additional Government Advocate submitted that the judgment of acquittal passed by the trial Court is contrary to law and facts. The trial Court has not properly appreciated the evidence of PWs.6 and 9 who are experts in certifying Railway properties. The statement of witnesses recorded u/S 9 of the Act are admissible before the Court as per Ex.14 of the Act. The trial Curt has not discussed anything in respect of these provisions of law. Evidence of PWs.1 to 3 coupled with documentary evidence are sufficient to prove the guilt of the accused. The trial Court ought to have taken into consideration these aspects while appreciating the evidence on record. Failing to consider the same has resulted in miscarriage of justice. The trial Court has failed to appreciate the evidence in accordance with law and on these grounds, he prayed to allow the appeal.
9. Though notice of the appeal was served on accused no.1 he remained unrepresented.
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10. As against this, learned counsel for accused no.2 would submit that the trial Court has appreciated the evidence on record in accordance with law and facts which needs no interference. On these grounds, he sought for dismissal of the appeal.
11. Having heard arguments of both sides, the following points would arise for my consideration.
1) Whether the prosecution has made out
grounds to interfere with the impugned
judgment of acquittal?
2) What order?
12. My answer to the above points are as under:
Point No. 1 : In the negative
Point No. 2 : As per final order
13. I have examined the material placed before the Court. The prosecution has examined witnesses as per PWs.1 to 13. PW1-Z.R.Khan is the complainant; PW2-K.N.Rathod and PW3-K.S.Rattihalli are the eyewitnesses; PW4-Altaf Mulla and PW5-Gangadhara are the panch witnesses; PW6-Shankrappa Gowdar examined the seized property. PW7-S.B.Patil gave the -6- NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017 theft report on 14.12.2007. PW8-Keshav Goudar gave theft report on 16.12.2007; PW9-Simon Joseph also examined property; PW10-Govindarajan gave the theft report dated 18.12.2007; PW11-M.B.Gurushanta is an eyewitness to the theft dated 18.12.2007; PW12-M.G.Ranganath conducted the observation panchanama after theft report dated 12.12.2007 and PW13-A.Rajendraprasad is the pancha to Ex.P.41 and P.42.
14. PW1 is the complainant. He has deposed as to the arrest of accused no.1 on 19.12.2007 along with the motor coils and seizure of the said property under Ex.P.1- panchanama. Thereafter he has interrogated the accused and obtained voluntary statement of the accused and seizure of copper wires, motors from the shop of accused no.2. During the course of his cross-examination he has clearly admitted that he has not examined the registers of electrical department to show that the copper coils were in the said department. He has not mentioned in the panchanama as to which Company the air coiled motor was made. He has not obtained any documents to show as to by whom the said properties were supplied to the Railways. Further he admits that he has not obtained search warrant before searching the shop of accused -7- NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017 no.2. The stock register maintained by the Department of Railways is also not produced before the Court.
15. PW2-K.N. Rathod is a Retired R.P.F. personnel and PW3-K.S.Rattihalli have also deposed as to the seizure of the property from the possession of accused no.1; PW4-Altaf Mulla, PW5-Gangadhar are said to be the panch witnesses to Exs.P.1 and P.2, they have not supported the case of the prosecution. PW6-Shankrappa Gowdar has deposed about issuance of report as per Ex.P.13; PW7-S.B. Patil, is a Retired Section Engineer, who has deposed as to the theft of copper wire from AC coach no. 00127 on 12.05.2007 and intimated the same to hither officials and he gave theft report as per Ex.P.8.
16. PW8-Keshav Goudar has deposed about the theft of copper wires from Coach No. 80006 on 16.12.2007. PW9- Simon Joseph has deposed as to the issuance of report as per Ex.P.15; PW10-Govindarajan has deposed as to the theft report issued under Ex.P.38 to PW11; PW11-M.B.Gurushanta has deposed as to noticing the theft of three air cooler copper coils from the stand room and intimating the RPF post; PW12- M.G.Ranganath deposed as to the receiving theft report on 12.12.2007; PW13-A.Rajendraprasadhas deposed as to the -8- NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017 intimating the RPF regarding the theft of copper wire from AC coach no. 00127 on 12.05.2007
17. The trial Court has observed at paragraph nos.26 and 27 of its judgment as under:
"26. The seizure date from accused No.1 is shown as 19- 12-2007 and it is said that one Air cooler coiled motor was seized under a panchanama. The crime is registered in Cr.No. 14/2007 on 19-12- 2007. It is said that the theft reports were received on 14-12-2007 and 18-12-2007 in respect of the said theft of copper wires. Ex. P 33 shows that DCR no 36/2007 was registered in respect of theft dated 12-12- 2007 and Ex. P 34 shows that DCR no 37/2007 was registered in respect of theft dated 16-12- 2007 Also it appears Cr no 3/2007 and Cr no 4/2007 were registered as per Ex. P 33 and 34. If that was so it is not forth coming as to how the investigation was continued in this case in respect of those theft reports when separate crimes were registered. Even P.W. 1 does not depose clearly in respect of conduct of investigation in this Cr no 14/2007 when separate crimes it appears were registered. It is said that accused No. 1 admitted commission of theft of railway property prior to 19-12-2007 on two occasions. That on his voluntarily statement the cable wires and air cooler materials were said to be seized from accused No.2. But how ever the independent panch witnesses have not supported the case of prosecution. P.W.4 and 5 deny the conduct of mahazar in their presence. P.W.6 and 9 who are said to have given a certificate after examining the property seized admit that there are no marks on the -9- NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017 seized property which shows that the same belong to railways. Also as admitted by P.W. 1 he has not produced any documents to show that the seized property were in the possession of the railways prior to theft.
27. In a ruling reported in 1986 Cri. L.J. 764 in the case of Kiran Chandra Das Vs. State of Assam, it is observed that S.3 Offence under Proof - Accused found carrying some bearings while coming out of railway workshop - No workshop manual or register proved to show that the bearings seized were in possession of the railway administration - Evidence of chemical analysis and certificate from officer authorised to certify not produced - No other evidence to identify the bearings to be railway property - Held order on conviction could not be sustained. As such when P.W.6 and 9 depose that the seized properties did not contain the Indian railways mark and also as admitted by P.W.1 that he has not produced any documents to show that the seized property belonged to electrical department, in my opinion the prosecution has failed to establish that the seized property belongs to the railways. Though the official witnesses P.W1 to 3 depose about the seizure of the property from the accused no 1 and 2 but the prosecution has failed to establish that the seized property belonged to the railways. Therefore in my opinion benefit of doubt will have to be given to the accused. Hence, for all these reasons, I answer the above points in the negative."
18. On a careful examination of the entire evidence on record it is crystal clear that the prosecution has failed to
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NC: 2024:KHC-D:7647 CRL.A No. 100073 of 2017 comply the mandatory provisions of Sec. 10 and 11 of the Railway Property (Unlawful Possession) Act, 1966 after seizure of property said to have been seized from accused nos.1 and 2.
19. The trial Court has properly appreciated the evidence on record and in accordance with law and facts. On re-appreciation, re-examination and re-consideration of the entire evidence on record, I do not find any legal infirmity or illegality in the impugned judgment. Hence, I answer point no.1 in the negative.
20. Point No.2: For the aforesaid reasons and discussions, I proceed to pass the following order.
ORDER Appeal is dismissed.
Registry is directed to send a copy of this judgment to the trial Court along with original records, forthwith.
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JUDGE bvv List No.: 1 Sl No.: 9