Karnataka High Court
Manju S/O. Jayappa Thondoor vs The State Of Karnataka on 3 June, 2022
Author: K. Natarajan
Bench: K. Natarajan
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 03RD DAY OF JUNE 2022
BEFORE
THE HON'BLE MR.JUSTICE K. NATARAJAN
CRL.RP.NO.2039 OF 2013
BETWEEN
1 . MANJU
S/O. JAYAPPA THONDOOR
AGE: 26 YEARS, OCC: COOLIE
R/O. NEAR COTTON MILL,
KADAKOL, HAVERI.
2 . RAMESH HALAGI @ RAMA
AGE: 28 YEARS,
R/O. VIJAYNAGAR EXTENSION,
NEAR RAILWAY STATION,HAVERI.
3 . SHIVANAND
S/O. BIDAPPA THAMBUR
AGE: 29 YEARS, KULENURU,
NEAR SANGOOR SUGAR FACTORY,
HAVERI DIST: HAVERI.
4 . YALLAPPA
S/O. MALAPPA KARJAGI
AGE: 27 YEARS,
R/O. VIJAYNAGAR EXTENSION
NEAR RAILWAY STATION,
DIST: HAVERI.
5 . RAMESH
S/O. ASHOK HAVALAPPANAVAR
AGE: 26 YEARS,
2
R/O. VIJAYNAGAR EXTENSION
NEAR RAILWAY STATION
DIST: HAVERI.
6 . YALLAPPA
S/O. GOVINDAPPA SIRUGUPPI
AGE: 27 YEARS,
R/O. VIJAYNAGAR EXTENSION
NEAR RAILWAY STATION,
DIST: HAVERI
...PETITIONERS
(BY SMT.SUMANGALA A. CHAKALABBI, ADVOCATE)
AND
THE STATE OF KARNATAKA
THROUGH SUB INSPECTOR
R.P.F. HARIHAR
NOW R/BY SPP
...RESPONDENT
(BY SMT.GIRIJA S. HIREMATH, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397(1)
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
24.11.2012 PASSED BY THE SESSIONS JUDGE, HAVERI IN
CRL.APPEAL NO.61/2007 CONFIRMNG THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 31.08.2007
PASSED BY THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC, HAVERI IN
C.C.NO.599/2005 AND ACQUIT THE PETITIONERS.
3
THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition is filed by the petitioners- accused Nos. 1 to 6 under Section 397 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.' for short) to set aside the impugned judgment of conviction and order of sentence dated 24.11.2012 passed by Sessions Judge, Haveri in Crl.A.No.61/2007, confirming the judgment of conviction and order of sentence dated 31.08.2007 passed by the Prl. Civil Judge (Jr. Dvn.) and JMFC, Haveri in CC No.599/2005 and to acquit the petitioners.
2. Heard the learned counsel for the petitioners and learned HCGP for respondent-State.
3. The case of the prosecution before the trial Court is that respondent-Railway Police have registered a case against the petitioner in Crime No.6/2005 for the offence punishable under Section 3(a) of Railway Property (U.P) Act, 1966 (hereinafter for short 'RP Act'). It is claimed by the 4 complainant that there was a theft of 19 bags of Maize in the goods rail and PW1 was deputed for investigation to trace the same. Accordingly, on 27.05.2005, when the accused persons were proceeding to sell the maize near Nagendranamatti road, near RM fire depot, four persons were found along with bags carrying in a suspicion manner. He has apprehended those four persons. On enquiry, they found with maize in their bags measuring 40Kgs and 20Kgs each. Then on enquiry, they have informed that they have stolen the maize from railway goods wagon and the same were seized under panchanama as per Ex.P9 and thereafter, on the voluntary statement of accused no.1, complainant went to house of accused No.2 and seized 16 bags of maize under panchanama as per Ex.P2. Subsequently, he has recorded voluntary statement of accused Nos.3 to 6 as PWs.6 to 8 and thereafter brought them to Police station and registered case in crime No.6/2005 and produced before the Magistrate and in turn they have been released on bail by the trial Court. Complainant handed over the investigation to CW.2. In turn CW.2 carried out investigation and filed charge sheet. 5 Accused persons appeared before the trial Court. They pleaded not guilty and pray to be tried. Accordingly, prosecution examined 9 witnesses and got marked 20 documents and 4 material objects. After completion of evidence of the prosecution, the statement of the accused persons under Section 313 of Cr.P.C. recorded. After hearing the arguments, trial court found that accused Nos.1 to 6 are guilty of offence and convicted and sentenced them to undergo simple imprisonment for one year and fine of `500/- each for the offence punishable under Section 3(A) of R.P. Act. Assailing the judgment of conviction and sentence, the accused persons approached First Appellate Court in Crl.A.No.61/2007. The First Appellate Court dismissed the appeal by confirming the judgment of conviction passed by the trial Court. Assailing the same, petitioners are before this Court.
4. Learned counsel for the petitioner Smt.Sumangala A. Chakalabbi, contended that the accused persons are innocent of the alleged offence. They have been falsely 6 implicated by Railway Police. Though alleged offence is within the vicinity of Railway station, PW1 apprehended accused Nos.1 to 4 in Nagendramatti Road which is far distance from railway station. However, complainant arrested the petitioners without registering the case and also seized the material under panchanama and recorded voluntary statements and thereafter registered the case, which is a gross violation of the procedure. Even otherwise, in the un- amended RP Act, Section 8, now provides for arresting and raising the case. But, un-amended RP Act does not give such provisions to arrest accused persons. When they apprehend someone, they have to be produced before the Magistrate for the purpose of recording confession statement. Thereafter, with permission, they have to seize material. All the procedures are not followed by PW1. Learned counsel submits that even otherwise, FIR and complaint not at all marked by the prosecutor in the trial Court. Without FIR and complaint, it cannot be said that prosecution proved it's case beyond all reasonable doubts. Therefore, mere seizure of maize cannot be said that seized maize was stolen from railway wagon. 7 There is no identity of the bags on the material seized as well as material carried out by the accused persons. Therefore, conviction and sentence passed by the trial Court, not sustainable under law.
5. Learned counsel further submits that even otherwise, independent witnesses are turned hostile, not supported the prosecution case. Even though, the place of occurrence is having fire depot and other shops, investigating officer did not chosen to secure any person from the locality as panch witness and therefore there is no proper evidence and there is a delay in lodging the complaint. Though the alleged incident took place on 23.05.2005, the complaint came to be registered on 27.05.2005, only after the arrest of the petitioners, it cannot be sustainable. The prosecution has miserably failed to prove its case beyond all reasonable doubts. Hence, prays for allowing the petition.
6. Per contra, learned HCGP supported the judgment of both the Courts below and contended that though the independent witnesses and panch witnesses are not 8 supported the case of prosecution, but the evidence of the official witnesses cannot be treated as interested witnesses. The stolen materials were seized by investigating officer after arrest of the accused persons and on the voluntary statements of accused persons and the same are produced and marked before trial Court as material objects 1 to 4. The panchanama and voluntary statements clearly reveals that the persons who have committed the theft. Therefore, considering all these aspects, trial Court and First Appellate Courts have rightly convicted the petitioners. It is also contended that marking of the entire voluntary statement is though not admissible under the law. But fairly admitted that at the time of recording voluntary statement, petitioners are not in the custody. Therefore, voluntary statements are not sustainable and prayed for dismissal of the petition.
7. Having heard the arguments of the counsel for the parties, perused the record. The point that arise for my consideration are:
9
1. " Whether, the trial Court and First Appellate Courts have committed error in convicting and sentencing the petitioners for alleged offences under Section 3(A) of RP(UP) Act."?
2. What order?
8. Perused the entire records produced before the Court i.e both trial Court and First Appellate Court.
9. It is well settled by Hon'ble Supreme Court that High court cannot interfere in the concurrent findings of the Courts below until any exceptional grounds are made out by the learned counsel in respect of any perverse finding by the Courts below.
10. In view of the principles laid down by the Hon'ble Supreme Court and looking to the documents and especially the evidence of PW1 and PW2, it reveals that alleged theft of maize from the railway wagon was occurred on 23.05.2005. Admittedly, there is no complaint lodged either by railway station master or any other in-charge person to the Railway Protection Force. PW.1 was appointed and deputed to Railway 10 Protection Force on 26.05.2005. On very next day when he was proceeding near Nagendranamatti road near a fire depot, he found that four persons are carrying some bags. On suspicion, he has apprehended those persons and they have been carrying some maize in their bags. On enquiry, they revealed that they have stolen the maize from Railway wagon. Therefore, he has arrested them and seized bags from accused nos.1 to 4 and thereafter recorded their voluntary statements as per Ex.P2 to P9. He has seized the maize under panchanama as per Ex.P1 and P2 and brought them to the Police Station and he has registered suo motu case in Crime No.6/2005 and thereafter handed over the investigation to CW2. Subsequently, CW.2 took up further investigation and filed charge sheet.
11. On perusal of evidence, it clearly reveals that at the time of arrest of accused nos.1 to 4 near Nagendranamatti area which is far away from the railway station and these petitioners are not found within the vicinity of Railway station and it is outside of railway jurisdiction. On 11 apprehension, complainant has not brought them to the police station directly for registering the case. But he has proceeded to seize the maize under panchanama as per Ex.P1. Even though, he has not registered any case, he enquired accused no.1 and on his voluntary statement, he has visited the house of accused no.2 and seized 15 bags of maize under panchanama as per Ex.P2 and he was not informed the police station regarding seizure of maize and arrest of accused persons. Subsequently, he has recorded their voluntary statements as per Ex.P3 to P9 which is also against the principles of evidence Act, as per Sections 24, 25 and 26 of Evidence Act. Any voluntary statement, confession statement given by persons within the custody of the investigation officer is not admissible except recovery under Section 27 of Indian Evidence Act. Without taking note of the same, the trial court proceeded to consider the entire statements as per EX.P3 to P9 admitting an evidence is inadmissible in evidence Act.Exception to the Section 24 to 26 is Section 27 of Evidence Act, which leads discovery. Discovery is only inadmissible portion of the confession, but, 12 not the entire confession statement marked by the learned Magistrate. Therefore, on the confession of the accused persons or voluntary statements as per Ex.P3 to P9 and recovery prior to that voluntary statements are inadmissible under the law.
12. It is also pertinent to note that entire seizure and panchanama as per Ex.P1 and P2 are prepared by this PW1 prior to registering the case. Therefore, arrest is prior to registering the case. Thereafter, he brought them to police station and registered the case. It is also against the procedure of the Criminal Procedure Code. Confession statement made by the accused, while he is not in custody and recovery made also not sustainable under law. Therefore, on that ground judgment of conviction and order of sentence is not sustainable under law.
13. That apart, though the trial Court marked the documents as per panchanama and other documents, but the learned Addl. Public Prosecutor has not marked the very complaint and FIR registered by PW1. Without complaint and 13 FIR, which is relevant document for setting the law into motion are essential documents, without those documents the evidence of PW1 or PW2 and the very finding of the trial Court regarding discovery is not sustainable under the law.
14. That apart the Police officials independent witnesses have examined by the prosecution. But, independent panch witnesses PW.7 and PW.8 totally turned hostile and not supported the case of prosecution. Police not secured any responsible witness from the locality nearby where the accused persons are apprehended near Nagendranamatti area. Even though, there is person available at that time, he could have secured any person from fire depot which is nearby situated. Therefore, without the support of independent panch witness regarding seizure, evidence of prosecution cannot be acceptable in order to show that the prosecution has proved the case beyond all reasonable doubts.
15. No doubt, the evidence of official witnesses cannot be thrown out as they are interested one. But, they 14 are interested in theft of goods. The accused persons were arrested far away from the railway station and apprehending the accused persons, without registering the case, seizing the maize and drawing panchanama is a procedural error committed by investigating officer which cause great prejudice to the accused persons. Therefore, on that ground, judgment of the trial Court not sustainable.
16. The First appellate Court though upheld the judgment of the trial court, even the learned counsel appearing for the appellants/petitioners relied on the judgment of Bombay High Court reported in Crl.L.J.2009(NOC) 234 in the case of State of Maharashtra Vs. Rampal Ramavatar Sahu and others, wherein, it is held that "Theft of railways property- Confessional statement of accused-Recording of as per provisions of Rule 14 , 15, he should be produced before the Magistrate of competent jurisdiction and the confessions should be recorded by the Magistrate as per provisions of Criminal procedure 15 Code-Confession of co-accused made to R.P.F. official and not recorded by Magistrate-Not sufficient to form basis for conviction of accused." This aspect has not been considered by the First Appellate Court and as per Section 7 of the Railway Protection Act, whenever, if an accused is apprehended, he shall be taken to Magistrate for recording his confession statement.
17. It is also pertinent to note that Section 8 in the Railway Property(Unlawful Possession)Act, 1966 has been amended in the year 2012 and the same is extracted as below:-
8. (Inquiry how to be made )-- (1) When an officer of the Force receives information about the commission of an offence punishable under this Act or when any per is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person.
(2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer incharge of a police station may exercise and is subject to under the 16 Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case:
Provided that--
(a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate;
(b) if it appears to the officer of the Force that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person, on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior."
18. If we read the first sentence of it, the officer of the force receives information about the commission of an offence punishable under this Act, or when any person is arrested by an officer of the Force for an offence punishable under his Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person. This 17 sentence is earlier not available in un-amended Act and it was inserted in the amendment during the year 2012. Therefore, very arrest without warrant shall forwarded to Magistrate for recording confession statement. But, it is not done by the investigating officer. Hence, the seizure is not sustainable. Both the courts are erred in considering this aspect. Therefore, the judgment of conviction and order of sentence passed by the Prl. Civil Judge (Jr.Dvn.) and JMFC., Haveri in CC No.599/2005 dated 31.08.2007 and confirmed by Sessions Judge, Haveri in Crl.A.No.61/2007 dated 24.11.2012 is not sustainable and requires to be set aside. Accordingly, I pass the following:
ORDER Criminal Revision Petition is allowed.
The judgment of conviction and order of sentence passed by the Prl. Civil Judge (Jr.Dvn.) and JMFC., Haveri in CC No.599/2005 dated 31.08.2007 and confirmed by Sessions Judge, Haveri in Crl.A.No.61/2007 dated 24.11.2012 is hereby set aside.18
Accused petitioners are acquitted for the offence punishable under Section 3(A) of R.P.(U.P.)Act, 1966. Thereby, their bail bonds if any, shall be cancelled. Amount if any, shall be refunded to the petitioners.
Send back the records to the concerned Court.
Sd/-
JUDGE HMB