Karnataka High Court
State Of Karnataka vs Abdul Gaffar on 10 January, 2000
Equivalent citations: 2000CRILJ4456
JUDGMENT M.F. Saldanha, J.
1. I have heard the learned SPP, on behalf of the State as also the respondent's learned Advocate Sri. Hedge.
2. The charge against the accused is that, on 14-10-1992 at about 11 p.m. he is alleged to have broken into a temple and committed theft in respect of a copper pot and a copper offering box which Contained a sum of Rs. 200/- in cash. The complaint was lodged by P. W. 3 who is the trustee on 19-10-1992 at 5 p.m. and it is alleged that on 1-12-1992 the Police arrested the accused. In the course of investigation, he is alleged to have made a voluntary statement pursuant to which he lead the police and the panchas to his house from where he has produced the two items of property. There is no mention with regard to any recovery of any cash amount. The trial Court had charged the accused for having committed offences punishable under Sections 457 and 380, IPC, as also under Section 411 IPC., The reason why the trial Court acquitted the accused was because apart from the recovery evidence, there is virtually no other evidence in this case and as far as this is concerned, the recovery panchanama as also the evidence of the I.O. who is P. W. 6 indicate that the recovery was effected on the morning of 1-12-1992 between 8 and 9.15 a.m. and the evidence of P. W. 1 who in turn states that, since he had to go to the Tahsildar office on that day he was called by the Police between 10 and 11 am. In view of this contradiction, the trial Court held that the evidence is doubtful and acquitted the accused. The property in question was ordered to be returned to the temple authorities. The State has filed an appeal assailing the correctness of the order of acquittal.
3. The facts in this case are very simple and the evidence is relatively restricted. The learned SPP, submitted that P.W. 1 who is the pancha has not turned hostile, that he is a respectable person from the area and that the only minor discrepancy is with regard to the timing. On the other hand, he has fully corroborated the prosecution case by pointing out that pursuant to the voluntary statement that the accused had made that he lead the Police and the Panchas to his house and that he produced the two items of property from his house. This part of the evidence remains unshaken even in cross-examination. The learned SPP., submitted that, this evidence along with the evidence of the I.O., who is P.W. 6 conclusively establishes that two items of the property belonging to the temple were recovered at the instance of the accused from his custody. He makes a two fold submission. The first being that the temple lock was found broken open and it was clear that this was a case of house breaking, the object being to commit theft which is established from the evidence of P.W. 3 who has pointed out that the two items were removed from the temple on that night. His submission is that, in the absence of any explanation from the accused the only legitimate inference that can be drawn is that nobody other than he has broken into the temple and committed theft of the two items. Secondly, he submits that in so far as the identity of the property is established and it has been held to be property belonging to the temple which was involved in the commission of an offence that having retained that property and dealt with it knowingly, the accused is also liable for the offence punishable under Section 411 IPC,
4. On the point of law, the respondent's learned Advocate submitted that Sections 380 and 411 are mutually exclusive in so far as even if there is no evidence of the accused having committed a theft it may be permissible if the person is found in possession of the stolen property knowing or having reason to believe that the property is stolen that a conviction under Section 411 would be permissible. He submitted that alternatively if there is evidence to establish that the accused has committed theft then the liability for the offence under Section 411 cannot be fastened on the accused because it would really mean that the accused is being convicted for two over-lappling offences in respect of the same property. This position is generally correct in so far as by their very nature, these two offences would normally be mutually exclusive in so far as an accused could be convicted for one or the other but there do exist a small category of cases where the evidence may indicate that an accused could be liable under both heads.
5. Coming to the present case, it was vehemently submitted by Sri Hegde on behalf of the accused that this is a case in which the solitary evidence is that of the pancha P.W. 1 with regard to the recovery and if he has in terms stated that he was called for the first time between 10 and 11 a.m. when the recovery was concluded at 9.15 a.m. that it is clear that he has obliged the Police by signing the panchanama and giving evidence in favor of the prosecution without actually having been present at the time of the recovery. The very important aspect of the law arises in relation to this argument insofar as the learned trial Judge has committed an error which is very common by discarding the evidence of P. W. 1 in totality because of the time factor. The correct procedure in law is to disect the evidence and to save that part of it which is good and to discard that part of it which is required to be rejected and it is precisely this process of separating the grain from the chaff that a criminal court is required to embark upon. It is very clear from the greater part of the evidence of P. W. 1 which remains unshaken in cross-examination that he has infact accompanied the Police to the house of the accused when the recovery was effected and this part of the evidence which is unshaken in cross-examination is good evidence. It is equally clear that the discrepancy with regard to the time factor is nothing more than an error or a mistake and therefore, that part of the evidence will have to be discarded. I hasten to add that this procedure is permissible in those of the cases where the evidence is generally reliable, credible and good evidence but only suffers from one or more minor infirmities. The rule may not hold good if the general tenure of evidence is so very poor that it does not inspire any confidence in the mind of the Court, in which case, the infirmities could impel the Court to reject the whole of the evidence on that ground.
6. The recovery having been established as against the accused, I have very carefully ascertained from the record as to whether there is any material whatsoever to connect him with the act of breaking into the temple and committing theft of the two items. Unfortunately, this is one of the cases in which the prosecution case is absolutely silent with regard to these two heads of charges and even though the accused was found with the property it would be incorrect to hold that he was the very person who committed the theft after breaking into the temple, because there is not even an iota of evidence to suggest that the accused was found anywhere near that place when the incident took place or any other direct or circumstantial evidence to implicate him. On the other hand, the accused was found in possession of the stolen property and the character of that property is such that, in the absence of any explanation from the accused it would not be possible to hold that even if he received the property from a third party that he did so in good faith and he had no reason to believe that it was stolen property. In these circumstances, a conviction Under Section 411 of IPC, would be valid.
7. The learned SPP, submitted that the complexion of this offence required to be taken into account seriously by the Court insofar as it constitutes property belonging to a place of worship. The learned Advocate who represents the accused stated that, there is no allegation against the accused that he is a habitual offender and that at the very highest it could be held that the accused being a poor person was tempted by that property.
8. I have considered the different aspects of the case and I record the considered view that the Court has to take special note of one facet namely, the fact that this is a case involving property belonging to a place of worship. By their very nature, temples, churches and other places of worship are required to be kept open to the public and they are visited by a large number of people. There are also times when there is nobody around and it is very important that every member of society learns to respect at least these places and even if the person is a criminal that they should realise that lines have to be drawn atleast where certain areas are concerned and that they should be respected and not defiled by removing property or valuables that may be there. I refer to this aspect because the method in which devotion is carried out results in various items of considerable value particularly gold and silver items being used in those places of worship and it is necessary for the courts to take a deterrent view in a case where this type of property is involved. This is an aspect of the case which the learned trial Judge has totally overlooked. Though a strong plea was made before me that the aggregate value of the property is very small insofar as It was given as Rs. 300/- plus Rs. 300/- totalling Rs. 600/-, to my mind it is not the value of the property but the nature of the act which the Court requires to deprecate. Under these circumstances, in my considered view a fine of Rs. 2,000/- in default SI for three months is a sentence that could meet the ends of justice.
9. The appeal partially succeeds. While the order of acquittal under Sections 457 and 380 of IPC, are confirmed, the acquittal of the accused by the trial Court for the offence punishable under Section 411 of IPC, is set aside. The accused is convicted of offence punishable under Section 411 IPC, and is directed to pay a fine quantified at Rs. 2,000/-, in default to undergo SI for three months. The accused is granted a period of 12 weeks to deposit the fine amount in the trial Court and if there is default, the trial Court to take further steps according to law against the accused. The appeal succeeds to this extent only. The bail bond of the accused to stand cancelled. This order be communicated to the trial Court by the office of the High Court and the trial Court to issue notice to the accused for the purposes of recovery of the fine amount.