Karnataka High Court
Shri. Yallappa Basappa Talawar vs The State Of Karnataka, on 20 February, 2019
Author: H.P.Sandesh
Bench: H.P. Sandesh
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY, 2019
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.2739/2010
BETWEEN:
SHRI. YALLAPPA BASAPPA TALAWAR,
AGE: 60 YEARS, OCC: CATTLE GRAZING,
R/O YALLAMMAN ONI,
ANKALAGI-591 101,
TQ. GOKAK, DIST. BELGAUM.
...APPELLANT
(BY SRI.ABHISHEK PATIL, ADVOCATE
FOR SRI.M.G.NAGANURI, ADVOCATE)
AND:
THE STATE OF KARNATAKA, ,
THROUGH ANKALAGI POLICE,
TQ. GOKAK, REP. BY THE SPECIAL
PUBLIC PROSECUTOR,
THE HON BLE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SRI.PRAVEEN K UPPAR, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.
SEEKING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 02.07.2010 PASSED BY
THE FAST TRACK COURT AND ADDL. SESSIONS COURT
HUKKERI SITTING AT GOKAK IN SESSIONS CASE NO.263/2009.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
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JUDGMENT
This appeal is filed under Section 374(2) of Cr.P.C. challenging the judgment of conviction and sentence dated 2.7.2010 passed by the Fast Track Court and Addl. Sessions Court, Hukkeri sitting at Gokak in SC No.263/2009 for the offence punishable under Section 34 of the Karnataka Excise Act, 1965 and Section 273 of IPC and sentenced the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.10,000/- and in default to undergo rigorous imprisonment for three months for the offence punishable under Section 34 of Karnataka Excise Act and further sentenced to undergo rigorous imprisonment for three months for the offence punishable under Section 273 of IPC.
2. The factual matrix of the case is that the police have conducted the raid on credible information on 4.12.2018 at about 6 a.m., CW1 on receipt of the 3 information went along with CW-4 to 6 and secured panchas and held the accused, who was allegedly selling the illicit arrack at Rs.5 per glass and the same is worth of Rs.800/- and the same was seized drawing panchanama and thereafter, case has been registered. In order to prove the offences, prosecution relied upon the witnesses PW1 to 8 and got marked Exs.P1 to P6a and accused did not lead any defence evidence. The Court below after considering the oral and documentary evidence convicted the accused for the offences punishable under Section 34 of the Karnataka Excise Act and Section 273 IPC and acquitted for the other offences alleged against them.
3. Being aggrieved by the judgment of conviction, the present appeal is filed by the appellant contending that PW1 and 2 who are panch witnesses have turned hostile and the prosecution was not able to prove the very seizure and they were best witnesses to 4 speak with regard to the involvement of the accused in committing the offences and other contention that PW3, 4 and 8 are interested witnesses and PW5 is the police official who took FIR and PW6 who took seized article. In this case, the prosecution utterly failed to prove the guilt against the appellant in order to attract Section 273 of IPC. The prosecution has to prove that i) the accused sold or offered or exposed for sale, as food or drink, ii) the article was rendered noxious at the time it was sold or offered for sale or exposed for sale iii) the accused then knew that the said article was noxious as food or drink. In the case on hand, no such ingredients were present in the case of the prosecution. Therefore, the order of conviction and sentence passed by the trial Court for the offence under Sections 273 of IPC is illegal and unsustainable in law. It is contended that the very evidence of PW3, 4 and 8 were fatal to the case of the prosecution and the Court below failed to take note of 5 the fact that oral and documentary evidence did not come into the aid of the prosecution, in spite of it, the Court below erred in convicting the accused.
4. The appellant's counsel in support of his contention, he relied upon the judgment of the Hon'ble Supreme Court in the case of Mohan Lal Vs. State of Punjab reported in 2018 SCC Online SC 974 and brought to my notice para-31 of the judgment wherein it has held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the investigator must not be the same person. Justice must not only be done, but must appear to be done also. Any possibility of bias or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of proof, and by allowing the appeal very initiation of the proceedings held to be vitiated because of the infraction of the constitutional guarantee of a fair 6 investigation guaranteed under Article 21 of the Constitution.
5. The counsel also relied upon the judgment of the Apex Court in Criminal Appeal No.2450-2451/2010, in the case of Varinder Kumar Vs. State of Himachal Pradesh, wherein it is held that the criminal justice delivery system, cannot be allowed to veer exclusively to the benefit of the offender making it uni-directional exercise. A proper administration of the criminal justice delivery system, therefore, requires balancing the rights of the accused and the prosecution, so that the law laid down in Mohan Lal (supra) is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations, and further held that all pending criminal prosecution, trials and appeals prior to the law laid down in Mohan Lal (supra) shall continue to be governed by the individual facts of 7 the case. Hence, he contends that conviction has to be set-aside.
6. Per contra, learned HCGP for the respondent-State contends that though the prosecution did not rely upon the independent witnesses, official witnesses particularly police witnesses cannot be discarded and the Court has to appreciate the factual aspects of the case and also consider if any infraction on record in arriving at a just conclusion and also referring the judgment of the Varinder Kumar (supra), he contends that the Apex Court held that Mohan Lal's judgment is not allowed to become a spring board for acquittal in prosecutions prior to the same, irrespective of all other considerations and shall continue to be governed by the individual facts of the case. Hence, he contends that the matter has to be appreciated in a right perspective.
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7. In keeping the contentions urged by both the counsels, learned counsel for the appellant brought to my notice that the offences are cognizable offences and the FIR is not registered immediately after the receipt of the information and also same is not entered in the Station House Diary, though PW8-Investigation Officer says in the cross-examination that he entered the Station House Diary, counsel brought to my notice FIR, wherein Column No.3A, incident timing is mentioned as 7 a.m. and in Column No.D, General Diary reference Entry number and Time is mentioned as 9 a.m. and hence, the evidence of PW8 cannot be accepted. No doubt, in the cross-examination of PW8, he says that he entered the same in the Station House Diary but he did not mention the time and even if it is the non-cognizable offence, it is the duty cast upon the SHO to enter the same in the register maintained by them and in the case on hand, the offence is cognizable and he went to the 9 spot and conducted raid and drawn panchanama and thereafter, registered the case. On perusal of the endorsement on the FIR and the same was received through PC 1843 on 4.12.2008 at 11 a.m. along with complaint. Hence, there is force in the contention of the counsel for the appellant that without registering the case, raid has been conducted, subsequently, mahazar was drawn and thereafter, FIR was registered and same was sent to the Magistrate and hence, there is clear infraction with regard to the procedure is concerned.
8. The other contention with regard to the merits of the case, the prosecution relied upon evidence of PW1 and 2 who are panch witnesses and on perusal of the evidence of the panch witnesses, they did not support the case of the prosecution and the Public Prosecutor cross-examined these witnesses and they turned hostile. Nothing is elicited with regard to seizure is concerned and in the chief evidence, they say that the 10 police did not conduct any mahazar in their presence and did not seize any articles. No doubt, the prosecution has relied upon the evidence of PW3 and PW4 who are raiding persons and they say that the accused was selling illicit liquor and the customers buying the same by paying Rs.5. In the cross-examination of PW3, he says that they were standing in one place at the distance of 200 ft and firstly he himself and CW6 went to the spot. It is suggested that the accused was not selling any illicit liquor and he has been falsely implicated in the case and the said suggestion was denied. In the cross-examination of PW.4, he says that the panchanama was drawn in between 7.00 a.m. to 8.30 a.m. and in the cross-examination a suggestion was made that the illicit arrack tube was not seized and also five rupees note is also note seized and the same was 11 denied. M.O.No.1-sample bottle marked as Material Object.
9. The other witness is PW.5, who took the FIR and also the seized articles to FSL. The PW.7 in his evidence he says that he registered the case and given the material object bottle and other three seized articles and after registering the FIR he sent the same to the FSL. In the cross-examination a suggestion was made that the accused was grazing the cattle and he was supplying the milk and there was a dispute with regard to the payment of milk charges and hence he has been falsely implicated in the case and the said suggestion was denied.
10. Then, the evidence remains is PW.8, who conducted the raid on credible information and went to the spot along with PWs.3 and 4 and allegedly apprehended the accused and also conducted the 12 panchanama and seized the M.O.'s. In the cross- examination he admits that he has entered the first information in the SHD and the accused was at the distance of 50 meters and he found 15 liters of illicit arrack. In the cross-examination it is suggested that they did not conduct any raid and not drawn the panchanama and there were differences between the accused and the police officials and hence he has been falsely implicated in the case.
11. For having taken note of the oral and documentary evidence and also the principles laid down in the judgments referred (supra) and the learned HCGP in his argument he relied upon the judgment in the case of Mukesh Singh Vs. State (Narcotic Branch of Delhi) which was disposed of on 17.01.2019 and contends that the Mohan Lal's case requires reconsideration by a Bench of at least three and therefore directed to place the same before the Constitutional Bench to reconsider 13 the principles laid down in the judgment. In the case on hand, no doubt the information is received by PW.8 and case has been registered by PW.7 on the instructions of PW.8 and the person who has received the information himself went to the spot and conducted raid and first of all, the prosecution must prove the very seizure of the illicit arrack and according to the case of the prosecution that they secured the witnesses-PWs.1 and 2 and took them to the spot and PWs.1 and 2 in their evidence they categorically say that in their presence no illicit arrack was seized or apprehended the accused and in spite of these two witnesses no other independent witnesses are examined and the prosecution relies upon the evidence of the official witnesses with regard to the seizure is concerned. PW.7 in his evidence he says that the complaint was given by PW.8 and he also produced M.O.'s along with the complaint and the same was sent to the FSL and the 14 same is not produced before the Court and only M.O.1- sample bottle is marked and it is the case of the prosecution that they seized rubber tube, steel glass and five rupees note and all the three M.O.'s are not marked before the Court except the sample bottle and in order to prove the seizure of the same i.e. illicit arrack and also five rupees note, according to the prosecution the customer paid five rupees and consumed the illicit arrack and the said money is not placed before the Court and according to the case of the prosecution that the rubber tube was used to store the illicit arrack and the same is not placed before the Court and these are the aspects which has not been considered by the Court below and in order to prove the very seizure of illicit arrack, no material is placed before the Court except the sample bottle and PW.7 says in his evidence that along with the complaint they have given sample bottle and other three seized articles and the same is missing and 15 the sample bottle is only with regard to collecting the sample to sending the same to the FSL and in the case on hand, the material object of illicit arrack which was in rubber tube and also the money which was seized, and glass in which selling the arrack are not produced, at the time of conducting the panchanama seized and no doubt the counsel appearing for the State contends that the police witnesses cannot be discarded in toto and in the absence of material object that too with regard to the seizure, the very seizure itself is doubtful and though according to the prosecution the same was seized and the same has not been produced before the Court and the Court below failed to take note of the said fact into consideration.
12. The other witnesses are PWs.3 and 4, who are the witnesses and part of raid and PW.8 and PWs.5, 6 and 7 are only taking the FIR and FSL and articles to the FSL and registration of the case and star witnesses 16 are PWs.3, 4 and 8 and in the case on hand, no doubt the PW.8 is not only the complainant and is also I.O. and the Hon'ble Apex Court in Mohan Lal's case (supra) held that there must be a fair investigation and the Hon'ble Apex Court also in the recent judgment in Mukesh Singh's case (supra) referred the case to the larger Bench but in the case on hand not only the investigation is conducted by the complainant and apart from that there is no independent witnesses before the Court and I have already pointed out that the very alleged seizure of the mahazar has not been proved and also the article has not been placed before the Court and in spite of the Court below lost sight of the very material object of committing the offence and in the absence of the independent witnesses and if any other witnesses other than PW.8, there would have been force in the contention of the learned HCGP that the police officials witnesses cannot be discarded and the said 17 argument is to be accepted if the evidence is credible on record.
13. On perusal of the entire material available on record, the prosecution failed to prove the guilt of the accused and hence the judgment of conviction requires to be interfered by this Court appreciating both the oral and documentary evidence.
14. In view of the above discussions, I pass the following:
ORDER The appeal is allowed. The impugned judgment of conviction is set aside. If the appellant has deposited the fine amount, the same has to be refunded to the appellant.
SD/-
JUDGE JTR/sh