Karnataka High Court
State Of Karnataka vs Mohammed Rafeeq on 18 January, 2023
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CRL.RP No. 1082 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 1082 OF 2019
BETWEEN:
STATE OF KARNATAKA
BY RURAL POLICE, CHIKKAMAGALURU,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU 01
...PETITIONER
(BY SMT. RASHMI JADHAV, HCGP)
AND:
1. MOHAMMED RAFEEQ
S/O LATE AMEERJAN,
AGED ABOUT 22 YEARS,
MASON, R/O HALE UPPALLI,
THAVAREKERE ROAD,
CHIKKAMAGALURU 577101.
Digitally signed
by RAMYA D
Location: High
Court of
2. ABDUL SAMAD
Karnataka AGED 22 YEARS, STUDENT,
S/O NASIR AHMED, HIREKOLALE ROAD,
UPPALLI,CHIKKAMAGALURU 577101.
3. HASAN MINAZ @ MUNNA
SON OF ISMAIL, AGED 22 YEARS,
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CRL.RP No. 1082 of 2019
GUJARI BUSINESS, R/O
BEHIND BADRIYA MASJID,
NEHRU NAGAR,
CHIKKAMAGALURU 577101.
4. HAKKIM
S/O MOHAMMED,
AGED ABOUT 23 YEARS,
MASON WORK,
R/O HALEUPPALLI, INDAVARA POST,
CHIKKAMAGALURU 577101.
...RESPONDENTS
(BY SRI. N R RAVIKUMAR, ADVOCATE)
THIS CRL.RP FILED U/S 397 R/W 401 OF CR.PC,
PRAYING TO SET ASIDE THE AFORESAID JUDGMENT AND
ORDER IN CRL.A.NO.70/2017 ON THE FILE OF THE
LEARNED II ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHIKKAMAGALURU DATED 23.01.2019 AND
C.C.NO.111/2015 DATED 16.01.2017 ON THE FILE OF THE
LEARNED I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKAMAGALURU ACQUITTING THE RESPONDENT/
ACCUSED FOR THE OFFENCE P/U/S 379 OF IPC AND
CONVICT THE RESPONDENTS/ACCUSED PERSONS FOR
THE AFORE OFFENCE P/U/S 379 OF IPC.
THIS CRL.RP, COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
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CRL.RP No. 1082 of 2019
ORDER
This criminal revision petition is filed under Section 397 r/w Section 401 of Cr.P.C. seeking to set aside the judgment dated 23.01.2019 passed by the II Addl. District & Sessions Judge, Chikkamagaluru, in Crl.A.No.70/2017 and judgment dated 16.01.2017 passed by the I Addl. Senior Civil Judge & JMFC, Chikkamagaluru, in C.C.No.111/2015 acquitting the accused for the commission of offence punishable under Section 379 of IPC.
2. Parties are referred to as per their ranking before the trial court for the sake of convenience.
3. Brief facts of the case are that:
On 04.11.2014 in Indavara village during night hours accused Nos.1 to 4 have taken away the cow and a calf worth Rs.15,000/- belonged to CW-1 without his consent, illegally and thereby committed the alleged offence punishable under Section 379 of IPC.-4- CRL.RP No. 1082 of 2019
4. On receipt of charge sheet, trial court has taken cognizance for the commission of offence punishable under Section 379 of IPC. In pursuance of summons, accused appeared before the court and enlarged on bail. Trial court has framed the charges for the commission of offence punishable under Section 379 of IPC. Same is read over and explained to the accused. Having understood the same, accused has pleaded not guilty and claimed to be tried.
5. To prove the case of prosecution, in all 11 witnesses were examined as PW-1 to PW-11 and 12 documents were got marked as Exs.P-1 to P-12. On closure of prosecution side evidence, statement under Section 313 of Cr.P.C. is recorded. Accused has denied the incriminating evidence appearing against him, but he has not adduced any defence evidence on his behalf. -5- CRL.RP No. 1082 of 2019
6. On hearing the arguments on both sides, trial court has acquitted the accused on 16.01.2017. Being aggrieved by the judgment passed by the trial court, the State has preferred Crl.A.No.70/2017 before the II Addl. and District Judge, Chickmagaluru, which came to be dismissed on 23.01.2019. Being aggrieved by the said judgment passed by the appellate court and also judgment passed by the trial court, the State has preferred this criminal revision petition.
7. Smt.Rashmi Jadhav, learned HCGP appearing for the State has submitted her arguments that impugned judgment passed by the Courts below are illegal and contrary to law and facts. Both the Courts have not properly appreciated the oral and documentary evidence on record. Both the Courts have given undue importance to the minor discrepancies in the prosecution witnesses and same are resulted in miscarriage of justice. On all these grounds, sought for allowing this revision petition. -6- CRL.RP No. 1082 of 2019
8. Sri.N.R.Ravikumar, learned counsel for the respondent Nos.1 to 4 submits that both the Courts have properly appreciated the evidence on record in a proper and perspective manner and passed the impugned judgments and there are no grounds to interfere with the impugned judgments. On all these grounds, sought for dismissal of the revision petition.
9. I have carefully gone through the materials placed by the prosecution, impugned judgments and submissions of learned Advocates for both parties.
10. In paragraph 23 of the judgment of the appellate court it is observed as under:
"23. The important factor in the prosecution case is that as per complaint and other prosecution materials, the accused have transported the said cattle in a Maruti 800 car. No prudent man accept that cattle like cow can accommodate in a small car like Maruti 800 car. Even a person of 6 feet height and 90 kg weight cannot sit in the said car properly and comfortably. Such being the case, the charge that the accused have transported two cows and a calf in the said car is highly unscientific and not acceptable."-7- CRL.RP No. 1082 of 2019
11. On re-appreciation of evidence on record, I do not find any cogent, convincing, corroborative and trustworthy evidence to substantiate the case of prosecution. Both the Courts have properly appreciated the evidence on record and passed the impugned judgments.
12. Apart from this, I have gone through the recent judgment of the Hon'ble Apex Court in case of JOSEPH STEPHEN AND OTHERS vs. SANTHANASAMY AND OTHERS rendered in Crl.A.Nos.90-93/2022. The Hon'ble Apex Court has formulated the question, Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction? -8- CRL.RP No. 1082 of 2019
13. In this regard, the Hon'ble Apex Court has referred the decisions in the case of K.CHINNASWAMY REDDY VS. STATE OF ANDHRA PRADESH reported in AIR 1962 SC 1788, SHEETAL PRASAD VS. SRI KANT reported in (2020) 2 SCC 190, GANESHA VS. SHARANAPPA reported in (2014) 1 SCC 87 and RAM BRIKSH SINGH VS. AMBIKA YADAV reported in (2004) 7 SCC 665. In paragraph No.9 of the judgment in Crl.A.No.90-93/2022, the Hon'ble Apex Court held as under:
"Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-Section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.
As observed by this Court in the case of K.Chinnaswamy Reddy (Supra), if the order of -9- CRL.RP No. 1082 of 2019 acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph No.11 of the decision in K.Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. the order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C issued No.1 is answered accordingly."
14. In view of the above said judgment, the Hon'ble Apex Court, this Court while exercising its revisional jurisdiction under Section 401 of Cr.P.C. cannot convert acquittal into conviction. Accordingly, the impugned
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CRL.RP No. 1082 of 2019judgment challenged by the State does not suffer from any legal infirmities.
Hence, this Court proceed to pass the following:
ORDER (1) Criminal revision petition is dismissed.
(2) The judgment dated 23.01.2019 passed by the II Addl. District & Sessions Judge, Chikkamagaluru, in Crl.A.No.70/2017 and judgment dated 16.01.2017 passed by the I Addl. Senior Civil Judge & JMFC, Chikkamagaluru, in C.C.No.111/2015, are hereby confirmed.
(3) Registry is directed to transmit the records to the trial court along with copy of this order.
Sd/-
JUDGE DR List No.: 38 Sl No.: 18