Manju S/O. Jayappa Thondoor vs The State Of Karnataka
2022 Latest Caselaw 8062 Kant

      IN THE HIGH COURT OF KARNATAKA
              DHARWAD BENCH

   DATED THIS THE 03RD DAY OF JUNE 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE K. NATARAJAN

              CRL.RP.NO.2039 OF 2013

BETWEEN

1 . MANJU
    S/O. JAYAPPA THONDOOR
    AGE: 26 YEARS, OCC: COOLIE
    R/O. NEAR COTTON MILL,
    KADAKOL, HAVERI.

2 . RAMESH HALAGI @ RAMA
    AGE: 28 YEARS,
    R/O. VIJAYNAGAR EXTENSION,
    NEAR RAILWAY STATION,HAVERI.

3 . SHIVANAND
    S/O. BIDAPPA THAMBUR
    AGE: 29 YEARS, KULENURU,
    NEAR SANGOOR SUGAR FACTORY,
    HAVERI DIST: HAVERI.

4 . YALLAPPA
    S/O. MALAPPA KARJAGI
    AGE: 27 YEARS,
    R/O. VIJAYNAGAR EXTENSION
    NEAR RAILWAY STATION,
    DIST: HAVERI.

5 . RAMESH
    S/O. ASHOK HAVALAPPANAVAR
    AGE: 26 YEARS,
                               2




   R/O. VIJAYNAGAR EXTENSION
   NEAR RAILWAY STATION
   DIST: HAVERI.

6 . YALLAPPA
    S/O. GOVINDAPPA SIRUGUPPI
    AGE: 27 YEARS,
    R/O. VIJAYNAGAR EXTENSION
    NEAR RAILWAY STATION,
    DIST: HAVERI

                                                ...PETITIONERS

(BY SMT.SUMANGALA A. CHAKALABBI, ADVOCATE)

AND


  THE STATE OF KARNATAKA
  THROUGH SUB INSPECTOR
  R.P.F. HARIHAR
  NOW R/BY SPP
                                                ...RESPONDENT

(BY SMT.GIRIJA S. HIREMATH, HCGP)


      THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397(1)
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE IMPUGNED
JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED
24.11.2012   PASSED   BY   THE SESSIONS    JUDGE,   HAVERI   IN
CRL.APPEAL   NO.61/2007     CONFIRMNG     THE   JUDGMENT     OF
CONVICTION AND ORDER OF SENTENCE DATED 31.08.2007
PASSED BY THE PRL. CIVIL JUDGE (JR.DN.) AND JMFC, HAVERI IN
C.C.NO.599/2005 AND ACQUIT THE PETITIONERS.
                                3




     THIS PETITION COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:
                          ORDER

This criminal revision petition is filed by the petitioners-

accused Nos. 1 to 6 under Section 397 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as the 'Cr.P.C.' for

short) to set aside the impugned judgment of conviction and

order of sentence dated 24.11.2012 passed by Sessions

Judge, Haveri in Crl.A.No.61/2007, confirming the judgment

of conviction and order of sentence dated 31.08.2007 passed

by the Prl. Civil Judge (Jr. Dvn.) and JMFC, Haveri in CC

No.599/2005 and to acquit the petitioners.

2. Heard the learned counsel for the petitioners and

learned HCGP for respondent-State.

3. The case of the prosecution before the trial Court

is that respondent-Railway Police have registered a case

against the petitioner in Crime No.6/2005 for the offence

punishable under Section 3(a) of Railway Property (U.P) Act,

1966 (hereinafter for short 'RP Act'). It is claimed by the

complainant that there was a theft of 19 bags of Maize in the

goods rail and PW1 was deputed for investigation to trace the

same. Accordingly, on 27.05.2005, when the accused persons

were proceeding to sell the maize near Nagendranamatti

road, near RM fire depot, four persons were found along with

bags carrying in a suspicion manner. He has apprehended

those four persons. On enquiry, they found with maize in

their bags measuring 40Kgs and 20Kgs each. Then on

enquiry, they have informed that they have stolen the maize

from railway goods wagon and the same were seized under

panchanama as per Ex.P9 and thereafter, on the voluntary

statement of accused no.1, complainant went to house of

accused No.2 and seized 16 bags of maize under panchanama

as per Ex.P2. Subsequently, he has recorded voluntary

statement of accused Nos.3 to 6 as PWs.6 to 8 and thereafter

brought them to Police station and registered case in crime

No.6/2005 and produced before the Magistrate and in turn

they have been released on bail by the trial Court.

Complainant handed over the investigation to CW.2. In turn

CW.2 carried out investigation and filed charge sheet.

Accused persons appeared before the trial Court. They

pleaded not guilty and pray to be tried. Accordingly,

prosecution examined 9 witnesses and got marked 20

documents and 4 material objects. After completion of

evidence of the prosecution, the statement of the accused

persons under Section 313 of Cr.P.C. recorded. After hearing

the arguments, trial court found that accused Nos.1 to 6 are

guilty of offence and convicted and sentenced them to

undergo simple imprisonment for one year and fine of `500/-

each for the offence punishable under Section 3(A) of R.P.

Act. Assailing the judgment of conviction and sentence, the

accused persons approached First Appellate Court in

Crl.A.No.61/2007. The First Appellate Court dismissed the

appeal by confirming the judgment of conviction passed by

the trial Court. Assailing the same, petitioners are before this

Court.

4. Learned counsel for the petitioner Smt.Sumangala

A. Chakalabbi, contended that the accused persons are

innocent of the alleged offence. They have been falsely

implicated by Railway Police. Though alleged offence is within

the vicinity of Railway station, PW1 apprehended accused

Nos.1 to 4 in Nagendramatti Road which is far distance from

railway station. However, complainant arrested the

petitioners without registering the case and also seized the

material under panchanama and recorded voluntary

statements and thereafter registered the case, which is a

gross violation of the procedure. Even otherwise, in the un-

amended RP Act, Section 8, now provides for arresting and

raising the case. But, un-amended RP Act does not give such

provisions to arrest accused persons. When they apprehend

someone, they have to be produced before the Magistrate for

the purpose of recording confession statement. Thereafter,

with permission, they have to seize material. All the

procedures are not followed by PW1. Learned counsel submits

that even otherwise, FIR and complaint not at all marked by

the prosecutor in the trial Court. Without FIR and complaint,

it cannot be said that prosecution proved it's case beyond all

reasonable doubts. Therefore, mere seizure of maize cannot

be said that seized maize was stolen from railway wagon.

There is no identity of the bags on the material seized as well

as material carried out by the accused persons. Therefore,

conviction and sentence passed by the trial Court, not

sustainable under law.

5. Learned counsel further submits that even

otherwise, independent witnesses are turned hostile, not

supported the prosecution case. Even though, the place of

occurrence is having fire depot and other shops, investigating

officer did not chosen to secure any person from the locality

as panch witness and therefore there is no proper evidence

and there is a delay in lodging the complaint. Though the

alleged incident took place on 23.05.2005, the complaint

came to be registered on 27.05.2005, only after the arrest of

the petitioners, it cannot be sustainable. The prosecution has

miserably failed to prove its case beyond all reasonable

doubts. Hence, prays for allowing the petition.

6. Per contra, learned HCGP supported the judgment

of both the Courts below and contended that though the

independent witnesses and panch witnesses are not

supported the case of prosecution, but the evidence of the

official witnesses cannot be treated as interested witnesses.

The stolen materials were seized by investigating officer after

arrest of the accused persons and on the voluntary

statements of accused persons and the same are produced

and marked before trial Court as material objects 1 to 4. The

panchanama and voluntary statements clearly reveals that

the persons who have committed the theft. Therefore,

considering all these aspects, trial Court and First Appellate

Courts have rightly convicted the petitioners. It is also

contended that marking of the entire voluntary statement is

though not admissible under the law. But fairly admitted that

at the time of recording voluntary statement, petitioners are

not in the custody. Therefore, voluntary statements are not

sustainable and prayed for dismissal of the petition.

7. Having heard the arguments of the counsel for

the parties, perused the record. The point that arise for my

consideration are:

1. " Whether, the trial Court and First Appellate Courts have committed error in convicting and sentencing the petitioners for alleged offences under Section 3(A) of RP(UP) Act."?

2. What order?

8. Perused the entire records produced before the

Court i.e both trial Court and First Appellate Court.

9. It is well settled by Hon'ble Supreme Court that

High court cannot interfere in the concurrent findings of the

Courts below until any exceptional grounds are made out by

the learned counsel in respect of any perverse finding by the

Courts below.

10. In view of the principles laid down by the Hon'ble

Supreme Court and looking to the documents and especially

the evidence of PW1 and PW2, it reveals that alleged theft of

maize from the railway wagon was occurred on 23.05.2005.

Admittedly, there is no complaint lodged either by railway

station master or any other in-charge person to the Railway

Protection Force. PW.1 was appointed and deputed to Railway

Protection Force on 26.05.2005. On very next day when he

was proceeding near Nagendranamatti road near a fire depot,

he found that four persons are carrying some bags. On

suspicion, he has apprehended those persons and they have

been carrying some maize in their bags. On enquiry, they

revealed that they have stolen the maize from Railway

wagon. Therefore, he has arrested them and seized bags

from accused nos.1 to 4 and thereafter recorded their

voluntary statements as per Ex.P2 to P9. He has seized the

maize under panchanama as per Ex.P1 and P2 and brought

them to the Police Station and he has registered suo motu

case in Crime No.6/2005 and thereafter handed over the

investigation to CW2. Subsequently, CW.2 took up further

investigation and filed charge sheet.

11. On perusal of evidence, it clearly reveals that at

the time of arrest of accused nos.1 to 4 near

Nagendranamatti area which is far away from the railway

station and these petitioners are not found within the vicinity

of Railway station and it is outside of railway jurisdiction. On

apprehension, complainant has not brought them to the

police station directly for registering the case. But he has

proceeded to seize the maize under panchanama as per

Ex.P1. Even though, he has not registered any case, he

enquired accused no.1 and on his voluntary statement, he

has visited the house of accused no.2 and seized 15 bags of

maize under panchanama as per Ex.P2 and he was not

informed the police station regarding seizure of maize and

arrest of accused persons. Subsequently, he has recorded

their voluntary statements as per Ex.P3 to P9 which is also

against the principles of evidence Act, as per Sections 24, 25

and 26 of Evidence Act. Any voluntary statement, confession

statement given by persons within the custody of the

investigation officer is not admissible except recovery under

Section 27 of Indian Evidence Act. Without taking note of the

same, the trial court proceeded to consider the entire

statements as per EX.P3 to P9 admitting an evidence is

inadmissible in evidence Act.Exception to the Section 24 to 26

is Section 27 of Evidence Act, which leads discovery.

Discovery is only inadmissible portion of the confession, but,

not the entire confession statement marked by the learned

Magistrate. Therefore, on the confession of the accused

persons or voluntary statements as per Ex.P3 to P9 and

recovery prior to that voluntary statements are inadmissible

under the law.

12. It is also pertinent to note that entire seizure and

panchanama as per Ex.P1 and P2 are prepared by this PW1

prior to registering the case. Therefore, arrest is prior to

registering the case. Thereafter, he brought them to police

station and registered the case. It is also against the

procedure of the Criminal Procedure Code. Confession

statement made by the accused, while he is not in custody

and recovery made also not sustainable under law.

Therefore, on that ground judgment of conviction and order

of sentence is not sustainable under law.

13. That apart, though the trial Court marked the

documents as per panchanama and other documents, but the

learned Addl. Public Prosecutor has not marked the very

complaint and FIR registered by PW1. Without complaint and

FIR, which is relevant document for setting the law into

motion are essential documents, without those documents the

evidence of PW1 or PW2 and the very finding of the trial

Court regarding discovery is not sustainable under the law.

14. That apart the Police officials independent

witnesses have examined by the prosecution. But,

independent panch witnesses PW.7 and PW.8 totally turned

hostile and not supported the case of prosecution. Police not

secured any responsible witness from the locality nearby

where the accused persons are apprehended near

Nagendranamatti area. Even though, there is person available

at that time, he could have secured any person from fire

depot which is nearby situated. Therefore, without the

support of independent panch witness regarding seizure,

evidence of prosecution cannot be acceptable in order to

show that the prosecution has proved the case beyond all

reasonable doubts.

15. No doubt, the evidence of official witnesses

cannot be thrown out as they are interested one. But, they

are interested in theft of goods. The accused persons were

arrested far away from the railway station and apprehending

the accused persons, without registering the case, seizing the

maize and drawing panchanama is a procedural error

committed by investigating officer which cause great

prejudice to the accused persons. Therefore, on that ground,

judgment of the trial Court not sustainable.

16. The First appellate Court though upheld the

judgment of the trial court, even the learned counsel

appearing for the appellants/petitioners relied on the

judgment of Bombay High Court reported in

Crl.L.J.2009(NOC) 234 in the case of State of

Maharashtra Vs. Rampal Ramavatar Sahu and others,

wherein, it is held that

"Theft of railways property- Confessional statement of accused-Recording of as per provisions of Rule 14 , 15, he should be produced before the Magistrate of competent jurisdiction and the confessions should be recorded by the Magistrate as per provisions of Criminal procedure

Code-Confession of co-accused made to R.P.F. official and not recorded by Magistrate-Not sufficient to form basis for conviction of accused."

This aspect has not been considered by the First

Appellate Court and as per Section 7 of the Railway Protection

Act, whenever, if an accused is apprehended, he shall be

taken to Magistrate for recording his confession statement.

17. It is also pertinent to note that Section 8 in the

Railway Property(Unlawful Possession)Act, 1966 has been

amended in the year 2012 and the same is extracted as

below:-

8. (Inquiry how to be made )-- (1) When an officer of the Force receives information about the commission of an offence punishable under this Act or when any per is arrested by an officer of the Force for an offence punishable under this Act or is forwarded to him under Section 7, he shall proceed to inquire into the charge against such person.

(2) For this purpose the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer incharge of a police station may exercise and is subject to under the

Code of Criminal Procedure, 1898 (5 of 1898), when investigating a cognizable case:

Provided that--

(a) if the officer of the Force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case, or forward him in custody to such Magistrate;

(b) if it appears to the officer of the Force that there is no sufficient evidence or reasonable ground of suspicion against the accused person, he shall release the accused person, on his executing a bond, with or without sureties as the officer of the Force may direct, to appear, if and when so required before the Magistrate having jurisdiction, and shall make a full report of all the particulars of the case to his official superior."

18. If we read the first sentence of it, the officer of

the force receives information about the commission of an

offence punishable under this Act, or when any person is

arrested by an officer of the Force for an offence punishable

under his Act or is forwarded to him under Section 7, he shall

proceed to inquire into the charge against such person. This

sentence is earlier not available in un-amended Act and it was

inserted in the amendment during the year 2012. Therefore,

very arrest without warrant shall forwarded to Magistrate for

recording confession statement. But, it is not done by the

investigating officer. Hence, the seizure is not sustainable.

Both the courts are erred in considering this aspect.

Therefore, the judgment of conviction and order of sentence

passed by the Prl. Civil Judge (Jr.Dvn.) and JMFC., Haveri in

CC No.599/2005 dated 31.08.2007 and confirmed by

Sessions Judge, Haveri in Crl.A.No.61/2007 dated 24.11.2012

is not sustainable and requires to be set aside. Accordingly, I

pass the following:

ORDER

Criminal Revision Petition is allowed.

The judgment of conviction and order of

sentence passed by the Prl. Civil Judge (Jr.Dvn.)

and JMFC., Haveri in CC No.599/2005 dated

31.08.2007 and confirmed by Sessions Judge,

Haveri in Crl.A.No.61/2007 dated 24.11.2012 is

hereby set aside.

Accused petitioners are acquitted for the offence

punishable under Section 3(A) of R.P.(U.P.)Act,

1966. Thereby, their bail bonds if any, shall be

cancelled. Amount if any, shall be refunded to the

petitioners.

Send back the records to the concerned Court.

Sd/-

JUDGE HMB