Karnataka High Court
Union Of India By Inspector vs Vargheese Daniel on 28 February, 2022
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL No.472/2011
BETWEEN:
UNION OF INDIA BY INSPECTOR
RPF/DLS, SATELLITE GOODS
WHITE FIELD, BANGALORE
....APPELLANT
(BY SRI. K.S. ABHIJITH, HCGP)
AND:
1. VARGHEESE DANIEL
S/O DANIEL
AGED ABOUT 54 YEARS
BELTHUR COLONY, KADUGODI
BANGALORE
2. P.K. MOHAMMED
S/O LATE HAJI P.K. IBRAHIM
AGED ABOUT 59 YEARS
NO.716, A.K. BUILDING
KADUGODI, BANGALORE
.... RESPONDENTS
(BY SRI. C.H. JADHAV, SENIOR ADVOCATE FOR R1,
SRI. A.V. RAMAKRISHNA, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED BY THE STATE PUBLIC
PROSECUTOR UNDER SECTION 378(1) & (3) OF CR.P.C.
PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGMENT DT: 29.09.2010 PASSED BY THE SPECIAL COURT
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FOR ECONOMIC OFFENCES, BANGALORE IN C.C.NO.1036/04 -
ACQUITING THE RESPONDENT FOR THE OFFENCE P/U/S 3(a)
OF THE RP(UP) ACT, 1966.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 14.02.2022, COMING ON FOR
'PRONOUNCEMENT JUDGMENT' THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
The Union of India, through Inspector, RPF/DLS, Satellite Goods, White Field, Bengaluru, has submitted this appeal under Section 378(1) and (3) of Criminal Procedure Code, 1973 ('Cr.P.C.' for short), challenging the judgment of acquittal dated 29.09.2010 passed by the Special Court for Economic Offences at Bengaluru, in CC No.1036/2004, whereby the accused/respondents herein are acquitted of the offence punishable under Section 3(a) of Railway Properties (Unlawful Possession) Act,1989 ['RP(UP) Act' for short].
2. For the sake of convenience, the parties herein shall be referred with the original ranks occupied by them before the trial Court.
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3. The brief factual matrix leading to the case are as under:
On 21.08.2003 at about 12.00 hours, in pursuance of reliable information regarding stocking of railway property, a search warrant has been obtained by PW.1-C. Siddalingaiah and he along with his staff raided Jaison Engineering Works, Belthur Colony, Kadugodi, Bengaluru, owned by Accused No.1, between 12.00 Noon and 1.00 p.m. It is further alleged that, two independent witnesses were also summoned and in their presence, search was conducted and there they found that Accused No.1 has stored 48 Narrow Gauge rail pieces and 2 Broad Gauge rails pieces of different sizes having specific marks valued at Rs.95,000/- belonging to Railways. They were seized by a mahazar as Accused No.1 did not give satisfactory reply or produced any bill. However, Accused No.1 given a confessional statement that Accused Nos.2 has handed- over the said property to him for fabrication work and in pursuance of voluntary statement of Accused No.1, PW.1 4 along with his staff raided the store of Accused No.2 and there, a mahazar was also conducted, where it is alleged to have stored the railway property. Accused No.2 admitted that he has handed-over the alleged property to Accused No.1. But, claimed that these rail pieces were used for laying roof of his old house since long time, from the time his forefathers and they were procured by his late father and now he is no more, and he does not know as to from where and how his father has secured them. Then a mahazar was also drawn there and later on the seized properties were brought to the RPF/SGWF office. The accused were arrested and produced before the Court and they were enlarged on bail.
4. After the complainant got ascertained that the property is railway property and after completing investigation, submitted a complaint against the accused under Section 3(1) of RP (UP) Act. On the basis of complaint, cognizance was taken. As there is material 5 evidence as against the accused, the process came to be issued. The accused have appeared before court and were enlarged on bail. The charge framed against the accused was read-over and explained to them and they pleaded not guilty. To prove the case of prosecution, twelve witnesses are examined as PW.1 to PW.12 and twenty documents were marked as Ex.P1 to Ex.P20 along with MO.1.
5. After conclusion of evidence of prosecution, the statement of accused is recorded under Section 313 of Cr.PC to enable them to explain the incriminating evidence appearing against them in the case of prosecution and they denied the same. However, they did not choose to lead any defence evidence on their behalf.
6. After having heard arguments, the learned Magistrate found that the prosecution has failed to bring home the guilt of accused for the offence under Section 3(1) of RP (UP) Act and thereby acquitted both the 6 accused. Being aggrieved by this judgment of acquittal, the State has filed this appeal.
7. Heard the arguments advanced by the learned High Court Government Pleader ('HCGP' for short) and the learned counsels appearing for respondents No.1 & 2/accused and perused the records.
8. The learned HCGP appearing for the appellant/complainant would contend that the judgment is contrary to the evidence and material on record. He would also contend that, seizure of material objects was proved as from the custody of Accused No.1 and this was supported by the evidence of PW.1, while PW.4, who is an independent mahazar witness, has also supported the case of prosecution. He would also contend that PW.6 has certified that the property is the Railway Property and evidence of official witness is supported by independent witness. He would further contend that the trial Court has failed to appreciate material evidence in this regard and 7 has given unnecessary importance to minor discrepancies which do not affect the merits of the case. As such, he would seek for setting aside the impugned judgment of acquittal and sought for convicting the accused by allowing the appeal.
9. Per contra, learned counsels appearing for respondent/accused would support the judgment of trial Court. They contend that the power of the Appellate Court while interference in respect of judgment of acquittal is very limited and there is no scope for interference in this case by this Court. It is also argued that, there is no evidence placed to show that the property is railway property and no missing report was filed by Railway Department. They further contend that the seized property was recovered from old building roof as per mahazar and it was acquired by the father of Accused No.2, which is evident from the records and the Railway Property Act came into force from 01.04.1968. But, the 8 records disclose that the property was acquired prior to the said date itself, as it was recovered from old dilapidated building and hence, provisions of Section-3 cannot be made applicable. He would also contend that, independent witnesses PW.3 and PW.4, who are the witnesses to mahazar (Ex.P2) have turned hostile. They would further contend that, there is inconsistency regarding seizure of Meter Gauge Rails or Narrow Gauge Rails and this inconsistency is not clarified and all the seized pieces of the property are not produced before the Court. They would further contend that, there is no recovery from the custody of Accused No.2 and confessional statement of Accused Nos. 1 & 2 is inadmissible as under Section 8 of the RP (UP) Act, as Railway Protection Force have power of police as under
Cr.PC and hence, confessional statement before the police is inadmissible. Hence, they would contend that the trial Court has appreciated the oral and documentary evidence 9 in detail and arrived at a just decision and prayed for dismissal of appeal.
10. Having heard the arguments and after perusing the oral as well as documentary evidence, the following point would arise for consideration:-
Whether the judgment of acquittal passed by the trial Court is perverse, capricious and illegal so as to call for interference by this Court?
11. PW.1 has conducted raid as per the case of prosecution. According to his evidence, on 21.08.2003, he has received an information regarding storing of Railway Property at Jaison Engineering Works, Belthur Colony, Kadugodi, Bengaluru and he immediately obtained search warrant as per Ex.P1 and along with ASI and other staff members proceeded to the shop-Jaison Engineering Works, wherein Accused No.1 was present and search was conducted. He further deposed that, on search he found 50 rail pieces of different sizes belonging to Railway 10 Department and some of them having Railway marks. He further deposed that, 50 rail pieces were seized under mahazar Ex.P2 and confessional statement of Accused No.1 came to be recorded. He further deposed that, on the basis of confession statement of Accused No.1, they visited the shop of Accused No.2 and there, his confession statement was recorded and a mahazar was conducted in the vacant land. His evidence disclosed that 50 rail pieces were seized.
12. In cross-examination, PW.1 was unable to say the survey number of the land in which work shop of Accused No.1 was functioning. It is to be noted here that, he claimed that 48 rail pieces of Meter Gauge and 2 rail pieces are of Broad Gauge were found. But the evidence given by PW.1 in this regard is inconsistent. In Ex.P20, which is a certificate issued by the competent officer (PW.6), it is evident that, he examined 48 Narrow Gauge and 02 Broad Gauge rail pieces. But, the complainant 11 claims that, they seized 48 Meter Gauge and two Broad Gauge rail pieces and if this version is taken into consideration, then a question would arise as to where these 48 Meter Gauge rail pieces went, as only 48 Narrow Gauge rail pieces were examined by the competent person for issuing Ex.P20. This aspect is not clarified by the prosecution.
13. PW.2 is the Investigating Officer, who took-up further investigation and his evidence disclose that, he has not received any missing report of railway property. PW.3 and 11 are the mahazar witnesses, but they have turned hostile and denied the conduct of mahazar in their presence. PW.4 is another mahazar witness, who has deposed that, while he was going on road, there was a mob on the road and he went there and saw rails belonging to Railways in the workshop of Accused No.1 and he saw 50 rails pieces and drawing mahazar as per Ex.P2. He has also identified MO.1. In the cross- 12 examination, he is unable to give name of the workshop of Accused No.1, wherein Ex.P2 was drawn. He pleads ignorance about the length of 50 rail pieces seized in the workshop of Accused No.1. Further, he is unable to disclose the names of other two mahazar witnesses, who signed mahazar. Apart from that, at the fag-end of cross- examination, he admitted that, he has signed the mahazar in RPF Station. If this version is taken into consideration, then it is evident that mahazar was not drawn at the spot as stated by PW.1. PWs.4 & 8, who said to have accompanied the complainant being official witnesses. Considering this admission, the evidence of PW.4 does not carry any weightage.
14. PW.6 and PW.11 are the mahazar witnesses in respect of shop of Accused No.2. But, these witnesses have turned hostile. Further, they specifically deposed that, when they visited the spot, an old building was found demolished and different seizes of rail pieces were lying in 13 the debris. Their evidence further disclose that, they signed in RPF Station. Hence, it is evident that, no investigation was done at the spot. PW.5 has simply deposed that, he being the owner of land, lent his land to Accused No.1 for running workshop. PW.7 has deposed regarding 50 rails pieces are being produced before him and out of them 48 rail pieces are of Narrow Gauge and 2 are of Broad Gauge and issued Ex.P20. But PW.1 claims that 48 rail pieces were of Meter Gauge and 2 rails pieces were of Broad Gauge. Further, though he claims that in all 50 rail pieces were produced before him, but before the Court, only MO.1 was produced.
15. PW.8-M. Shekar has accompanied PW.1 during raid and he is an official witness. In his cross-examination, he admitted that, on rail pieces which were alleged to have been seized, mud and calcium traces were visible as they found removed from the roof and his evidence supports the defence of Accused No.2.
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16. At the out-set, it is to be noted here that the confessional Statement of Accused Nos. 1 & 2 is inadmissible in evidence, as it is not led for any further recovery. No properties are seized from the custody of Accused No.2. Further, there is no missing report and the evidence of expert (PW.7) and the complainant is inconsistent regarding 48 Narrow Gauge rail pieces or Meter Gauge rail pieces. This is not clarified by the prosecution. Further, when the rail pieces were used for old dilapidated building, it is evident that it was acquired long back before construction of the said building. Further, some of the properties were not marked as 'Railway Property' and in this regard, the details are missing. When the identity of the property and report regarding missing of the property from the department is not established, question of incorporating offence under Section 3 of the RP (UP) Act does not arise at all. Apart from that, the Act itself came into effect in the year 1966 15 and there is no evidence as to when exactly this property was found missing and this material evidence is also not available. Apart from that, the material mahazar witnesses have turned hostile and the evidence discloses that mahazar was signed by the witnesses in RFP Station, which destroy the entire case of prosecution regarding drawing mahazar on the spot. There is no incriminating evidence as against Accused No.2 at all.
17. Considering the lapses in the evidence of prosecution, the learned Magistrate has acquitted the accused. The view taken by the trial Court is also a possible view and unless and until the prosecution establishes its case by placing cogent evidence in respect of commission of offence, the view taken by the trial Court cannot be disturbed in the appeal, as observed by the Hon'ble Apex Court in the following decisions:-
1) (2011) 2 SCC (Crl.) 375 [Sunil Kumar Sambhudayal Gupta (Dr.) and others Vs. State of Maharashtra] 16
2) (2007) 1 SCC (Crl) 113 [Samghaji Hariba Patil Vs. State of Karnataka]
3) 2013) 3 SCC (Crl.) 289 [S. Anil Kumar @ Anil Kumar Ganna Vs. State of Karnataka]
4) (2005) SCC (Crl.)1252 [Ayodhya Singh Vs. State of Bihar and others]
5) 2012 Crl.L.J. 4388 (SC) [K. Venkateshwarlu Vs. State of Andhra Pradesh]
6) (2021) 2 SCC (Crl) 515 [N. Vijayakumar Vs. State of Tamil Nadu]
18. The learned HCGP has relied upon a decision reported in (2011) 4 SCC 324 [ State of Uttar Pradesh Vs. Naresh and others) and particularly placing reliance on Para No.30, he argued that, normally the minor discrepancies are bound to occur and they cannot be given much importance. But, in the instant case, the discrepancies highlighted are not normal, but they go to the very root of the case and when the discrepancies are fatal to the case of prosecution, they cannot be ignored. Further, the view taken by the trial Court considering the lapses in the evidence of prosecution is also a possible 17 view and under such circumstances, the said view cannot be disturbed in the appeal. Considering these aspects, the appeal is devoid of any merits and needs to be rejected.
19. In the facts and circumstances of the case, the judgment of acquittal passed by the trial Court does not suffer from any perversity or illegality so as to call for any interference by this Court. As such, I answer the point under consideration in negative and accordingly, I proceed to pass the following:-
ORDER The appeal is dismissed. The judgment of acquittal dated 29.09.2010 passed by the trial Court viz., the Special Court for Economic Offences at Bengaluru in CC No.1036/2004 stands confirmed.
Sd/-
JUDGE KGR*