Karnataka High Court
Puttaraju S/O Honnaiah vs State By Alduru Police Station on 5 April, 2022
Author: H.P. Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.828/2013
BETWEEN:
1. PUTTARAJU
S/O. HONNAIAH
AGED ABOUT 32 YEARS
OCC: COOLIE
R/O. CHITTUVALLI VILLAGE
CHIKKAMAGALUR DISTRICT-577 131
2. MANJU
S/O LAKSHMANA
AGED ABOUT 30 YEARS
OCC: COOLIE
R/O. CHITTUVALLI VILLAGE
CHIKKAMAGALUR DISTRICT-577 131. ...PETITIONERS
(BY SRI S.G.RAJENDRA REDDY, ADVOCATE)
AND:
STATE BY
ALDURU POLICE STATION
REPRESENTED BY S.P.P
HIGH COURT OF KARNATAKA
BENGALURU - 560 001. ...RESPONDENT
(BY SMT.RASHMI JADHAV, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W. SECTION 401 OF CR.P.C PRAYING TO SET
ASIDE THE TO SET ASIDE THE IMPUGNED JUDGMENT AND
2
ORDER DATED 02.09.2013 PASSED BY THE II ADDL. DISTRICT
AND SESSIONS JUDGE, CHIKMAGALUR IN CRL.A.NO.101/2013
CONFIRMING THE JUDGMENT AND ORDER DATED 29.01.2013
PASSED BY THE PRL. CIVIL JUDGE AND J.M.F.C., CHIKMAGALUR
IN C.C.NO.2632/2007 FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 32 AND 34 OF KARNATAKA EXCISE ACT, 1965.
THIS CRIMINAL REVISION PETITION COMING ON FOR
FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This criminal revision petition is filed to set aside the judgment dated 29.01.2013 in C.C.2632/2007 passed by the Principal Civil Judge and JMFC, Chikkamagalur and to set aside the judgment of confirmation dated 02.09.2013 in Crl.A.No.101/2013 passed by the 2nd Additional District and Sessions Judge, Chikkamagalur.
2. Heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the respondent-State.
3. The factual matrix of the case of the prosecution before the Trial Court is that on 22.10.2007 at about 6.30 p.m., near the wall of Anganawadi Center, S.C. Colony, Aldur Town, these two petitioners were found holding one can containing illicit liquor and were selling the same without any valid license 3 and they were apprehended. Hence, case has been registered and the police have investigated the matter and filed the charge- sheet for the offences punishable under Sections 32 and 34 of Excise Act.
4. The prosecution, in order to prove the case against the petitioners, examined the witnesses as P.Ws.1 to 5 and also marked the documents as Exs.P1 to P4 and also got marked the material objects as M.Os.1 and 2. The petitioners have not led any defence evidence.
5. The Trial Court, after considering both oral and documentary evidence placed on record, convicted the petitioners for the above offences and substantive sentence of one year and fine of Rs.10,000/- is imposed for the offence under Section 32 of Excise Act. Hence, an appeal is filed in Crl.A.No.101/2013. The Appellate Court also, on re-appreciation of the evidence on record, confirmed the judgment of the Trial Court. Hence, the present revision petition is filed.
6. Learned counsel for the petitioner would submit that the witness P.W.1 is an independent witness and has not 4 supported the case of the prosecution and though he supported to a little extent, his evidence is not credible. The prosecution mainly relied upon the evidence of P.Ws.2 and 4, who have apprehended the petitioners and their evidence also not inspires the confidence of the Court. P.W.3 is the Circle Inspector and he says that P.Ws.2 and 4 have produced the petitioners before him along with sample. P.W.5 is the FSL witness.
7. Having considered both oral and documentary evidence placed on record i.e., the evidence of P.Ws.1 to 5, their evidence not inspires the confidence of the Court to convict the petitioners and in order to prove the case, there must be cogent evidence before the Court and the same is not found. Hence, it requires interference of this Court.
8. Per contra, learned High Court Government Pleader appearing for the State would submit that P.Ws.2 and 4 have apprehended the petitioners and their evidence is material and there is no contradictions in their evidence. Apart from that, the evidence of P.W.4 is clear that seized article is illicit country made arrack. Apart from that, P.W.1 also supported the case of the prosecution, even though he is a relative of petitioner No.1. 5 Hence, there are no grounds to exercise the revisional jurisdiction.
9. Having heard the learned counsel for the petitioners and the learned High Court Government Pleader appearing for the State, the points that would arise for consideration of this Court are:
(1) Whether both the Courts have committed an error in convicting and confirming the judgment of conviction and sentence and whether it requires interference of this Court?
(2) What order?
Point No.(1)
10. Having heard the respective counsel, it is the case of the prosecution that these two petitioners were selling country made arrack and on information, raid was conducted and seized 10 liters of attack and mahazar was drawn and seized the same in a sample bottle in M.O.1 and also seized M.O.2 can. The prosecution mainly relied upon the evidence of P.Ws.1 to 5. P.W.1, no doubt is an independent witness, on perusal of his evidence, though he claims that in his presence, the plastic can 6 was seized, in the cross-examination, he categorically admits that, when he himself and one Eraiah went to the spot, already, police were drawing mahazar and he also says that, when they saw, the plastic can was in the hands of the police and hence, his evidence is not credible with regard to seizure of the plastic can.
11. The other witnesses are P.Ws.2 and 4. P.W.2 says that on credible information, when they went to the spot, the petitioners tried to ran away from the spot and they are apprehended and found 10 liters of country made arrack and mahazar was drawn in terms of Ex.P1. In the cross- examination, he admits that, only two persons were there at the spot i.e., these two petitioners and they were only having can and was not having any instrument to sell the arrack and also admits that, there were no customers and both of them were keeping the can in between them. It is also admitted that, it is a public place.
12. The other witness is P.W.4 and he also reiterates the evidence of P.W.2. But, he says that they chased both of them and held them and he also says that, can was in the hands of 7 the petitioners. In the cross-examination, he categorically admits that, he cannot tell the colour of their clothes and there were no customers and he did not mention anything about receipt of information in his report and for having secured the brandy bottle also, no mention is made in the report. He further admits that he also not mentioned in the report for having the seized the articles along with them and they have not given any notice to panchas and panchas are also not local panchas and no difficulty to secure local panchas and also categorically admits that, though the can was sealed, now, the seal is not found on the said can.
13. P.W.3 only says that P.Ws.2 and 4 produced these petitioners and his evidence is not material. P.W.5 is the FSL Examiner and he gave the report in terms of Ex.P4.
14. Having considered both oral and documentary evidence placed on record, particularly, the evidence of P.W.2, who claims that both of them were having the can in between them, P.W.4 says that can was in their hands but, not stated with whom the said can was there. Apart from that, the very seizure itself is doubtful. No doubt, both the witnesses admit 8 that only two persons were there, they categorically depose that the petitioners were keeping the can and in order to sell the country made attack, no instruments were there along with them and without any instrument, how they were selling the country made arrack, no explanation.
15. It is also important to note that P.W.4 categorically admits that though they seized the can by sealing the same, but when the can was identified before the Court, no seal was there. Apart from that, they have not secured local panch witnesses and also admits that, they were not having any difficulty in securing local panchas and also they have not given any notice to panch witnesses.
16. These are the materials which are not considered by the Trial Court as well as the Appellate Court. First of all, the evidence of P.W.1 not supports the case of the prosecution. He categorically admits in the cross-examination that, when he himself and one Eraiah went to the spot, already the police were drawing mahazar and can was there in the hands of the police. However, P.Ws.2 and 4 have given a different version and even for proving the seizure of the same, no other independent 9 witness is examined. No doubt, P.Ws.2 and 4 are official witnesses, their evidence cannot be discarded but, their evidence not inspires the confidence of the Court. The evidence of P.W.4 also not comes to the aid of the prosecution and in the cross- examination, he gives a different version.
17. When such being the material on record, the very seizure itself is not proved and the evidence of P.Ws.2 and 4 also not inspires the confidence of the Court and the same is not considered by the Trial Court as well as the Appellate Court. Hence, the findings of the Trial Court and also the confirmation made by the Appellate Court is perverse and failed to take note of the contradictions elicited from the mouth of P.Ws.2 and 4. The evidence of these witnesses contradicts to each other with regard to possession of can which was seized and no other customers at the spot, but their contention is that they were selling country made arrack. Hence, the very case of the prosecution cannot be believed and this Court can exercise revisional jurisdiction to give the benefit of acquittal to the petitioners.
10Point No.(2)
18. In view of the discussions made above, I pass the following:
ORDER
(i) The criminal revision petition is allowed. The judgment dated 29.01.2013 in C.C.2632/2007 passed by the Principal Civil Judge and JMFC, Chikkamagalur and the judgment of confirmation dated 02.09.2013 in Crl.A.No.101/2013 passed by the 2nd Additional District and Sessions Judge, Chikkamagalur are hereby set aside.
(ii) If the petitioners have deposited any fine amount before the Trial Court, the same is ordered to be refunded to the petitioners on proper identification.
Sd/-
JUDGE ST