Union Of India By Inspector vs Vargheese Daniel
2022 Latest Caselaw 3406 Kant

                                1

     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.

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

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

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

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

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

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

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

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

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-

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

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.

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

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]

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

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*