Karnataka High Court
The State Of Karnataka vs Mudabir on 8 January, 2024
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CRL.A No.1165 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.1165 OF 2017
BETWEEN:
1. THE STATE OF KARNATAKA
BY SUBRAMANYAPURA POLICE STATION
BENGALURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU 560001.
Digitally signed
by RUPA V ...APPELLANT
Location: HIGH
COURT OF (BY SRI. B.N. JAGADISH, ADDL. SPP)
KARNATAKA
AND:
1. MUDABIR
S/O NAZIMKHAN
AGED ABOUT 29 YEARS
R/AT NO.402, 3RD MAIN
I CROSS, KOGILU LAYOUT
YELAHANKA
BENGALURU 560064.
2. IMRAN @ MADY
S/O ANWAR
AGED ABOUT 31 YEARS
R/AT C/O. ALIBHAI HOUSE
BEHIND MAZID, GANDHINAGAR
KAGGALIPURA
KANAKAPURA MAIN ROAD
BENGALURU 560082.
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CRL.A No.1165 of 2017
3. IRFAN
S/O ANWAR
AGED ABOUT 29 YEARS
R/AT C/O. ALIBHAI HOUSE
BEHIND MAZID, GANDHINAGAR
KAGGALIPURA, KANAKAPURA MAIN ROAD
BENGALURU 560082.
4. NAZNUNNISA
W/O ANWAR
AGED ABOUT 50 YEARS
R/AT C/O. ALIBHAI HOUSE
BEHIND MAZID, GANDHINAGAR
KAGGALIPURA, KANAKAPURA MAIN ROAD
BENGALURU 560082.
...RESPONDENTS
(BY SRI. MOYEENULLA ABBASI, ADV., FOR R1
SRI. C.B. ABDUL SAB, ADV., FOR R2 TO R4)
THIS CRL.APPEAL IS FILED U/S.378(1) & (3) OF CR.P.C
PARYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 28.02.2017
PASSED IN S.C.NO.1103/2012 BY THE LII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BANGALORE THEREBY
ACQUITTING THE RESPONDENTS/ACCUSED NO.1 TO 3 AND 5
FOR THE OFFENCE P/U/S 392, 109 AND 413 OF IPC.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:
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CRL.A No.1165 of 2017
JUDGMENT
The State has preferred this appeal challenging the
judgment dated 28.02.2017 passed in S.C.No.1103/2012 on
the file of LII Addl. City Civil & Session Judge, Bengaluru.
The charge sheet was filed against five accused persons for
the offence punishable under Sections 392, 109 & 413 of
IPC and after trial, they were all acquitted by the impugned
judgment.
2. The prosecution case is as follows:
PW-1 Smt.Veena while going to a clinic at about
10.45a.m. on 02.04.2012, two persons riding on a
motorcycle came in her opposite direction and snatched her
Mangalya Chain. Immediately she went to Subramanya Pura
Police Station and made a report of the incident as per Ex.P-
1. The police registered FIR, came to that place and drew up
mahazar as per Ex.P-2. A few days later, PW-1 came to know
that the police had recovered her chain. She went to the
police station and identified it. At that time, the police
showed her two persons and she could identify them as the
persons who had snatched the chain from her. She came to
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know the names of those persons as Imran & Mudabir i.e.,
accused Nos.2 and 1 respectively. She also identified the
motorbike in the police station. She got released the chain.
3. The prosecution examined 11 witnesses and
relied on 81 documents as per Exs.P-1 to P-81 to establish
its case. The defence got marked a contradiction as per
Ex.D-1 while cross-examining PW-6. The trial Court
acquitted all the accused of the offences charged against
them finding that the prosecution was not able to prove its
case beyond reasonable doubt, especially giving prominence
to evidence of PW-6.
4. We have heard the arguments of
Sri.B.N.Jagadish, learned Additional State Public
Prosecutor, Sri.Moyeenulla Abbasi, learned counsel for
respondent No.1 and Sri.C.B.Abdul Sab, learned counsel for
respondent Nos.2 to 4.
5. It is the submission of Sri.B.N.Jagadish that the
evidence of PWs-1 to 5 clearly establishes the case of the
prosecution. PW-1 is the complainant, who stated that while
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she was going to clinic two persons came riding a motorcycle
and snatched her Mangalya Chain, that she went to police
station and made a complaint as per Ex.P-1 and then she
identified accused Nos.1 and 2 in the police station. She
identified the chain, which is found in the photograph Ex.P-
3. He submits that after the chain was recovered, PW-1 got
it released and at the time of releasing the chain in her
favour its photograph was taken as per Ex.P-3, which was
identified by PW-1 in the Court while giving evidence. PW-2
speaks about the mahazar drawn at the spot. PW-3 speaks
about recovery of a motorbike and a car from the house of
accused No.2 at the instance of accused No.1. PW-4 is the
owner of a jewelry shop at Bangarpet and it is his evidence
that accused Nos.1 to 5 visited his shop and sold two
Mangalya Chains and received Rs.2,40,000/- from him. A
few days later, the police went to his shop with accused No.1
and asked him to produce the chains that he had purchased
from the accused stating that those chains were stolen by
accused; therefore, he handed over the chain to the police.
The mahazar was drawn at that time as per Ex.P-6 in the
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presence of PW-5. PW-5 also speaks about police seizing
chain from the shop of PW-4 in his presence. Therefore, the
evidence of PWs-1 to 5 is very consistent. Though PWs-4 & 5
have been subjected to extensive cross-examination, the
defence was unable to discredit them. For this reason, the
trial Court should not have held the case against the
prosecution and instead the accused should have been
convicted for the offences charged against them. He prays
for allowing the appeal and convicting and sentencing the
accused.
6. Sri.Moyeenulla Abbasi, learned counsel for
respondent No.1 and Sri.C.B.Abdul Sab, learned counsel for
respondent Nos.2 to 4 submit that the evidence with regard
to recovery is not consistent. The trial Court is justified in
recording acquittal of the accused. Therefore, the impugned
judgment cannot be disturbed.
7. We have perused the entire evidence. The
evidence of PW-1 is of course believable. She is the person
who lost her chain and she has spoken with regard to the
facts which lay within her knowledge. But what we notice is,
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in Ex.P-1 she stated that the persons who snatched her
chain were found riding a black colour motorbike, but the
colour of the motorbike seized under Ex.P-5 was red. She
might have got released the chain in her favour and at that
time, its photograph might have been taken and therefore
seeing Ex.P-3, the photograph, she might have stated that it
was the chain which belonged to her. It is true that two
mahazar witnesses i.e., PWs-2 & 3 have supported the
prosecution case. PW-4, the owner of the jewelry shop, has
also stated that on the first day, accused Nos.1 to 5 came to
his shop and sold two chains for Rs.2,40,000/- and a few
days later, the police came with accused No.1 and recovered
one chain, whose photograph is as per Ex.P-3. PW-4 has
been extensively cross-examined with regard to routine
course of his business, but he has withstood the cross-
examination very well.
8. PW-5 is the witness to mahazar drawn in the
shop of PW-4. Though PW-5 stated very consistently that the
police had came to the shop of PW-4 with accused No.1 and
seized the Mangalya Chain, he gave rise to one discrepancy
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by stating that the chain as found in Ex.P-3 was not the one
that the police seized. According to Sri.B.N.Jagadish,
learned Addl.SPP., it is a stray answer given by PW-5.
Whether this answer in the cross-examination is a stray
answer or not becomes clear if we consider the evidence of
PW-6.
9. It is the evidence of PW-6 that accused No.1 gave
him a chain saying that he had some financial problem and
therefore, PW-6 pledged that chain at Muthoot Finance for
Rs.39,000/- and handed over that money to accused No.1.
Four or five months later, he came to know that the chain
which accused No.1 had given to him was a stolen article.
The police asked him about the chain and at that time he
took the police and accused No.1 to Muthoot Finance. When
Ex.P-3 was shown to him whether it was the chain which he
had pledged, he stated that it was the very chain which he
had pledged. Therefore, if this evidence of PW-6 is assessed
in the light of one answer given by PW-5, a doubt arises
whether accused Nos.1 to 5 had gone to the shop of PW-4
and sold two chains to him and later on whether the police
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were really able to recover the chain from his shop. If PW-5
stated that the chain seen in Ex.P-3 was not the chain
recovered by the police, the evidence of PW-6 becomes
believable because the police were able to recover the chain
from Muthoot finance. Thus, the evidence with regard to
recovery of chain becomes unbelievable. In a case of this
type, recovery is a very important aspect. The discrepancy in
the evidence that has emerged cannot be ignored as trivial.
It shakes the prosecution case at the root. Based on this
kind of evidence, it is not proper to hold the accused guilty
of the offences charged against them.
10. In our opinion, the trial Court is justified in
acquitting the accused. The appeal is devoid of merits,
therefore is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
BSR
