Karnataka High Court
State Of Karnataka vs Fayaz Ahmed on 27 March, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BAN GALORE
DATED THIS THE 27 DAY OF MARCH 2012
BEFORE
THE HON'BLE MR.JUSTICE JAWAD RAHIM
No2Ol325
BETWEEN:
STATE OF KARNATAKA
BY TURUVEKERE POLICE APPELLANT.
(BY SRI RAJA SUBRAMANYA BHAT, HCGP)
AND
L FAYAZAHMED
S/O BASHA SAB
AGED AOBUT 31 YRS,
DU-- 5PC
R/AT CIVIL JUDGE (3D) & JMFC TURUVEKERE.
2. 5 KALLAPPA
5/0 NANJAPPA
AGED ABOUT 45 YRS,
PROPERTY CLERK,
CIVIL JUDGE (3D) & JMFC,
TURU\JEKRE,
(BY SRI C.R. RAGHA\JENDRA REDDY, ADV. FOR R1
SRI R NATARAJ, .AD\' FOR R2)
THTR CRL.A.IS FILED U/S 378(1) A (3) t39.P.C BY THE
STATE PP. FOR THE STATE PRAYING THAT THIS HONBLE
TOP I N ST fl GE El E A p RD P QE A COD IflA L PT 19
70 5 PASSED BY THE PRL(JDJR,DNP A 2USD, TIPTUPIN
C. C NO 1716/01 ACQUITUI 110 THE RESPON fi ENTSACCUSED
FOR THE OFFENCES PJU/S 379 OF IPC.
4
ThIS CRL A COMING ON FOR FINA HEARING THIS DAY,
THE OURT MADE THE FOLLOWING
3 U-P L&Lt&T
State is in appeal against acquittal of accused Nos I
and 2 for the offence punishable under Section 379 of IPC
r w )ection 34 3f IPC..
Icard Sr Raja Subramanya Bhat learnea HCGP and
'ri C R Raghavendra Reddy, learned counsel for
resDondent No 1 and Sri R Natarai learned counsel for
respondent No 2
rom what thc learned counsel for the appellant and 3 t t di t csa IC. sc at p t ya d r al ii I V -3-
4. It is alleged that properties, which were subject matter of P.R Nos.57/87, 59/87, 88/87, 89/87, were seized during Investigation. The properties consisted of copper wires, copper ingots and copper jagate valued at Rs.1O,000/- and were produced before the jurisdictional magistrate. Later, on 27.8.1999 those properties were stolen from the Record Room and sold to PWs.7 and 8.
5. During inspection of the Record Room, theft was noticed and PW1 -B.T. Basavaraj lodged complaint vide Ex.P8. Investigation was taken up and respondents were arraigned for offence punishable under Section 379 of IPC. During investigation, the investigating officer recovered MOs.1 to 6. The accused put up defence of denial simplicitor and led no evidence in defence.
6. The learned trial Judge found no favour with the prosecution evidence, being of the opinion that charge against the accused for offence punishable under Section 379 of IPC is not proved. Recovery was an essential factor. Since recovery was not established, acquittal is granted, against which this appeal is filed by the State. 4 1 Sri Raja Subramanya Bhat, learned HCGP has taken me through the evidence on record as also the reasons as igned in the mpugned iudgment 8 At the outset it is noticed the trial court had failed to frame harge against auused No 2 for the offence punishable under Section 409 of IPC In this regard reference could be made to the application filed by the prosecution for framing such a charge, which was rejected by the trial court vide order dated 25.6 2012 Against it ar dc atate va i reicio th Cr1 R P No 1534/2004 The respondents ontested the pett r r r it t 's3 aloved 0 ird tral ire d a dditiona ag if c Sd 1€ t 4 i iJ3 0 1 Cc 'I -5- evident from the records that the request made by the prosecution to frame charge under Section 409 of IPC against accused No.2 was not done by the learned trial judge. It was incumbent on the trial court to have framed charge under Section 409 of IPC against accused No.2. Non-framing of such charge certainly has an impact on the proceedings.
10. The second circumstance noticed is, though the learned trial judge has observed at more than one place in the judgment that prosecution had failed to secure the presence of CWs.8, 9, 14 and other witness, but as could be seen from the order sheet dated 10.11.2004, the non- bailable warrant was returned because they were not found in the address mentioned in the charge-sheet. Instead of ordering to furnish correct address for issue of warrant, the learned trial judge has straight away closed the evidence of the prosecution. Besides, without noticing the fact that prosecution had made a request for issue of warrant, the trial Court had declined and closed the case. This does not appear to be a reasonable judicial exercise of power by the trial court.
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11. It is further noticed that the learned trial judge in the impugned judgment opined prosecution had failed to produce necessary proof of entrustment of properties to nd 2 the accused. The learned judge has undoubtedly d 2 ignored the fact that accused was in charge of the property room being property clerk, and he was entrusted with the properties by virtue of such duty. The trial judge had failed to frame the charge for the offence punishable under SectIon 409, I.P.C. as directed by this court based on the application of the prosecution and had tried the accused only for the offence under Section 379, I.P.C. Therefore, if the learned judge was of the opinion that he was trying the accused for the offence under Section 379, I.P.C., there was no questIon of prosecution proving entrustment of properties to the accused, which aspect was necessary to be established only when the trial was for the offence under Section 409, LP.C. Thus, the evidence on record has not been appreciated in the correct perspective perhaps because the learned trial judge nurtured a doubt In his mind about entrustment of properties to the accused and thereby ignored other -7- incriminating aspects regarding recovery of stolen property at the instance of the accused.
12. The reasoning assigned by the learned trial judge does not reflect judicious application of mind to the fads in issue. In this view, acquittal of the respondent is unjustified. Besides, the trial is also vitiated as the learned trial judge has failed to frame charge against the accused for the offence under Section 409, I.P.C. which was directed to be done by this court by order dated 9.6.2005 In exercise of its revislonal power. The judgment Impugned Is also not sustainable as the learned judge has deprived opportunity to the prosecution to secure its witnesses.
13. In the result, the appeal is allowed. The impugned judgment acquitting the respondents is set aside. The case Is remanded to the trial court to frame charge against accused No.2 for the offence punishable under Section 409, I.P.C. as directed by this court vide order dated 9.6.2005, and to put him to trial for the said offence, and further to re-try both the accused for the offence under Section 379, I.P.C. with the aid of Section 34, LP.C. The ni t yr??, -8- trial court is further directed to allow prosecution to secure its witnesses and in this regard Issue necessary summons or coercive process as may be prayed for by It. The trIal court shall follow the directions contained in this order and dispose of the case in accordance with law on merit.
Sd! JUDGE NG*