Faiyazkhan Iqbalkhan Pathan vs The State Of Karnataka
2022 Latest Caselaw 805 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH
       DATED THIS THE 18TH DAY OF JANUARY, 2022
                          BEFORE
   THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

       CRIMINAL REVISION PETITION No.2027/2013

BETWEEN:

SHRI FAIYAZKHAN IQBALKHAN PATHAN,
AGE: 23 YEARS, OCC: PVT. SERVICE,
R/O: KHAN JAR GALLI,
TQ & DIST: BELAGAVI.
                                          ...PETITIONER

(BY SRI S. B. DEYANNAVAR, ADVOCATE)

AND:

THE STATE OF KARNATAKA,
THROUGH CAMP POLICE,
R/B SPP CIRCUIT BENCH,
DHARWAD.
                                         ...RESPONDENT

(BY SRI RAMESH B. CHIGARI, ADVOCATE)

      THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W SECTION 401 OF CR.P.C., PRAYING TO CALL FOR THE
RECORDS OF THE COURTS BELOW AND AFTER HEARING THE
PETITIONER AND RESPONDENT JUDGMENT AND ORDER DATED
29.09.2012 PASSED BY THE BEFORE THE PRESIDING OF
OFFICES FTC-IV BELAGAVI IN CRIMINAL APPEAL NO.130/2012
BE SET ASIDE CONSEQUENTLY THE CONVICTION AND
SENTENCE ORDER PASSED BY THE IVTH J.M.F.C. COURT
BELAGAVI IN CC NO.2160/2011 DATED 18.06.2012 MAY
KINDLY BE QUASHED AND THE PETITIONER BE ACQUITTED FOR
THE OFFENCES PUNISHABLE UNDER SECTION 393 IPC IN THE
INTEREST OF JUSTICE AND EQUITY.
                               2




     THIS CRIMINAL PETITION COMING ON FOR FURTHER

HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:


                          ORDER

This revision petition is preferred by accused no.1 in

C.C.No.2160/2011 on the file of the Court of JMFC-IV,

Belagavi, whereby accused nos.1 to 3 have been convicted

and sentenced for an offence punishable under Section 393

of IPC, confirmed in Crl.A.No.130/2012 dated 29.09.2012

by the Fast Track Court-IV, Belagavi.

2. Heard both side and perused the material on record.

3. It is the case of prosecution that on 24.10.2011, at

4.30 a.m., the first informant/CW.1(PW-3) hired the auto

rickshaw of accused no.1 near Ganapathi temple to go to

Khanapur bus stand. Accused nos.2 and 3 also boarded

the auto rickshaw and when the said auto rickshaw was

proceeding near Endekhoot, instead of taking it to

Khanapur bus stand, accused no.1 took the auto rickshaw

towards C.P.Ed. Ground. When the first informant

questioned him, the other two accused persons by showing

a knife tried to rob all his valuables. The first informant

resisted by screaming. At that time Police, came to the

spot and caught hold accused nos.1 and 2 and accused

no.3 escaped.

4. Before the trial Court, prosecution has got examined

totally five witnesses and got marked 9 documents and

M.Os.1 and 2.

5. The trial Court convicted accused nos.1 to 3 for the

offence punishable under Section 393 of IPC and

sentenced them to undergo rigorous imprisonment for one

year and to pay fine of Rs.5,000/- each and in default to

pay fine amount, to further undergo simple imprisonment

for three months.

6. The trial Court came to the conclusion that evidence

adduced by the prosecution inspired the confidence of the

Court in order to believe that accused are guilty of offence

punishable under Section 393 of IPC beyond reasonable

doubt and the same is sufficient to bring home the guilt of

the accused persons.

7. The Appellate Court while confirming the judgment

of conviction and sentence passed by the trial Court has

observed that the evidence of witnesses was reliable and

there is no reason for the complainant to falsely implicate

the accused persons and it is further observed that even

though there is minor discrepancies in the evidence of

PWs.1 to 5, the same does not go to the root of the case.

8. First informant-CW.1 is examined as PW.3. He has

deposed that, while going to Kakati, to the railway station,

both accused nos.2 and 3 came and requested accused

no.1 for a lift and they were permitted to board the auto

rickshaw. Both of them showed him a knife and gave life

threat and searched his pocket and when he shouted,

Police Sub-Inspector came there. He informed him that the

said accused have attempted to rob him. Immediately,

Police Sub-Inspector took accused nos.1 to 3 to the police

station.

9. As per PW.2-ASI, on coming to know that there was

some quarrel going on, he went along with CWs.5 to 7 to

the spot. At that time 4 persons were quarreling with each

other and on seeing them, those persons ran away and

one of the person disclosed his name as Maruti Hosatti i.e.

first informant-CW.1. He informed them that the accused

persons attempted to rob him by showing a knife.

Thereafter, the driver of the auto rickshaw i.e. accused

no.1 and the passengers were brought to the police

station.

10. Perusal of evidence of PW.2 goes to show that,

when he along with CWs.5 to 7 went to the spot, four

persons were quarreling with each other and on seeing the

Police, they ran away. Further, CW.1 who was present,

informed them that accused persons have attempted to

rob him.

11. If the evidence of PW.3 and PW.2 is appreciated

then, according to PW.3, the Police Sub-Inspector

apprehended accused nos.1 to 3 and took them to the

police station. On the other hand, PW.2 has stated that

four persons were quarreling with each other and seeing

them, they ran away and they enquired the first informant

about the incident. It is not made clear as to from where

accused nos.2 and 3 were arrested. Admittedly, the

petitioner/accused no.1 is the driver of the auto rickshaw.

According to the PW.3, it is the accused who boarded the

auto rickshaw i.e accused nos.2 and 3, who showed him a

knife and gave life threat and attempted to rob him. He

has stated that accused nos.2 and 3 requested accused

no.1 near Chitra Talkies and boarded the auto rickshaw.

Merely because, accused no.1 allowed accused nos. 2 and

3 to get in to the auto rickshaw, it cannot be conclusively

held that he is also involved with accused nos.2 and 3 and

attempted to commit robbery.

12. It is relevant to see that PW.5-Head Constable

(CW.5) has deposed in his evidence that while he was on

patrolling duty along with CWs. 6 and 7 near Ganapathi

temple, Hindalga, they received a phone call from the

Police station that there is a galata going on near C.P.Ed.

ground. They went to the spot. On seeing them, one Altaf

ran away from the spot. The said Altaf is accused no.3.

PW.5 has stated that they arrested other two accused and

took them to the police station. The said evidence is

contrary to the evidence of PWs.2 and 3. If the evidence

of PWs .2 and 5 is appreciated then, it can be seen that

there was a galata and hearing about the news, Police

went to the spot and they enquired with the first informant

regarding the incident. Insofar as attempt made by the

accused persons to commit robbery is concerned, except

the evidence of PW.3, there is no other evidence. It is only

on the basis of his statement, Police have arrested the

accused. As already observed, even according to PW.3, it

was accused nos.2 and 3 who attempted to rob him,

showing a knife. The evidence on record is not sufficient to

hold that prosecution has been able to establish the guilt

of the petitioner/accused no.1 beyond reasonable doubt.

13. The findings recorded by the Courts below therefore,

are not in accordance with law. Hence, impugned

judgments are liable to be set aside. Accordingly, the

following:

ORDER

Revision petition is allowed.

Judgment and order dated 29.09.2012 passed in

Crl.A.No.130/2012 by the Presiding Officer, FTC-IV,

Belagavi and the judgment and order passed by the IV

JMFC, Belagavi in CC No.2160/2011, dated 18.06.2012 are

hereby set aside.

The petitioner/accused no.1 is acquitted of the

offence punishable under Section 393 of IPC. His bail

bonds stand cancelled.

Sd/-

JUDGE

HMB