Karnataka High Court

State Of Karnataka vs Wazir Khan S/O Hasan on 7 June, 2024

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                                                   NC: 2024:KHC-D:7647
                                                   CRL.A No. 100073 of 2017




                 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
                         DATED THIS THE 7TH DAY OF JUNE, 2024
                                          BEFORE
                        THE HON'BLE MR JUSTICE G BASAVARAJA
                        CRIMINAL APPEAL NO.100073 OF 2017 (A)
                BETWEEN:
                STATE OF KARNATAKA,
                REPRESENTED BY THE
                RAILWAY POLICE FORCE, HUBBALLI,
                THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
                ADVOCATE GENERAL OFFICE,
                HIGH COURT OF KARNATAKA,
                DHARWAD BENCH.
                                                                -   APPELLANT
                (BY SRI MADANMOHAN M.KHANNUR, AGA)

                AND:
                1.   WAZIR KHAN S/O. HASAN,
                     AGE: 62 YEARS,
                     R/O: MANTOOR ROAD, GANDHI EKLTA COLONY,
                     2ND CROSS, HUBBALLI.
                2.   SYED SHAFEE S/O. ABDUL SHA HARIHAR,
                     AGE: 41 YEARS,
                     R/O: NO.609/G BLOCK,
                     2ND CROSS, OLD HUBBALLI.
Digitally signed                                             - RESPONDENTS
by VINAYAKA B V
                 (BY SRI R.M.JAVED, ADVOCATE FOR R2;
Location: HIGH
COURT OF             NOTICE TO R1 SERVED)
KARNATAKA
                       THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1)
                 AND (3) OF CR.P.C., SEEKING TO GRANT LEAVE TO APPEAL AGAINST
                 THE JUDGMENT AND ORDER OF ACQUITTAL DATED 26.04.2016
                 PASSED BY THE JMFC I COURT, HUBLI IN C.C.NO.570 OF 2009 AND
                 TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
                 26.04.2016 PASSED BY THE COURT OF & JMFC I COURT, HUBLI IN
                 C.C.NO.570 OF 2009 AND CONVICT THE RESPONDENTS/ACCUSED
                 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 3(A) OF THE
                 RAILWAY PROPERTY (UNLAWFUL POSSESSION) ACT 1966 AND ETC.,

                      THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS
                DAY, THE COURT DELIVERED THE FOLLOWING:
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                                       NC: 2024:KHC-D:7647
                                       CRL.A No. 100073 of 2017




                           JUDGMENT

Though the appeal is listed for hearing on interlocutory

application, with consent of both sides the appeal is heard on

merits and disposed off.

2. State has preferred this appeal against the

judgment of acquittal passed by the learned JMFC 1st Court,

Hubli (for short 'trial Court') in C.C. No. 570/2009 dated

26.04.2016.

3. Parties are referred to as per their ranking before

the trial Court.

4. Brief relevant facts leading to filing of this appeal

are as under:

It is alleged that on 19.12.2007 at about 8.00 a.m. while

the complainant and his staff were on a watch between S&T

signal pole no. SH 29 and SH 30 near S&T signal box no. BB 24

at Hubballi yard, on Mantur road, Hubballi. At that time they

noticed one person carrying a polythene bag on his right

shoulder and moving towards West to Easst side of Mantur road

in a suspicious manner and when he was detained and enquired

he did not give satisfactory answer, on checking the bag they

found one Air Cooler Coiled motor belonging to Railways and

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not produced any bill or voucher as to the said property and

same was seized under panchanama. It is further alleged that

accused no.1 revealed name of accused no.2 as he is a scrap

merchant and purchase such property. Thus accused have

committed offences punishable under Section 3(a) RP (UP) Act,

1966.

5. After taking cognizance a case was registered in

C.C. No. 570/2009 and summons were issued to the accused.

In response to the summons, accused appeared before the trial

Court and enlarged on bail. The substance of accusation was

read over and explained to the accused. Having understood

the same, the accused pleaded not guilty and claimed to be

tried.

6. To prove the guilty of the accused, prosecution has

examined 13 witnesses as PWs.1 to 13; documents as per

Exs.P.1 to P.42 and material objects at M.Os.1 to 4 were

marked. On closure of prosecution side, statement of accused

under Section 313 Cr.P.C. was recorded. The accused have

totally denied the evidence of prosecution witnesses but they

have not adduced any defence evidence on their behalf.

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7. Having heard arguments of both sides the trial

Court has passed the impugned judgment of acquittal. Being

aggrieved by the judgment of acquittal, the State has preferred

this appeal.

8. Sri Madanmohan M. Khannur, learned Additional

Government Advocate submitted that the judgment of acquittal

passed by the trial Court is contrary to law and facts. The trial

Court has not properly appreciated the evidence of PWs.6 and 9

who are experts in certifying Railway properties. The

statement of witnesses recorded u/S 9 of the Act are admissible

before the Court as per Ex.14 of the Act. The trial Curt has not

discussed anything in respect of these provisions of law.

Evidence of PWs.1 to 3 coupled with documentary evidence are

sufficient to prove the guilt of the accused. The trial Court

ought to have taken into consideration these aspects while

appreciating the evidence on record. Failing to consider the

same has resulted in miscarriage of justice. The trial Court has

failed to appreciate the evidence in accordance with law and on

these grounds, he prayed to allow the appeal.

9. Though notice of the appeal was served on accused

no.1 he remained unrepresented.

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10. As against this, learned counsel for accused no.2

would submit that the trial Court has appreciated the evidence

on record in accordance with law and facts which needs no

interference. On these grounds, he sought for dismissal of the

appeal.

11. Having heard arguments of both sides, the

following points would arise for my consideration.

     1)    Whether the prosecution has made out
     grounds     to    interfere   with    the    impugned
     judgment of acquittal?

     2)    What order?

12. My answer to the above points are as under:

     Point No. 1      :     In the negative


     Point No. 2      :     As per final order

13. I have examined the material placed before the

Court. The prosecution has examined witnesses as per PWs.1

to 13. PW1-Z.R.Khan is the complainant; PW2-K.N.Rathod and

PW3-K.S.Rattihalli are the eyewitnesses; PW4-Altaf Mulla and

PW5-Gangadhara are the panch witnesses; PW6-Shankrappa

Gowdar examined the seized property. PW7-S.B.Patil gave the

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theft report on 14.12.2007. PW8-Keshav Goudar gave theft

report on 16.12.2007; PW9-Simon Joseph also examined

property; PW10-Govindarajan gave the theft report dated

18.12.2007; PW11-M.B.Gurushanta is an eyewitness to the

theft dated 18.12.2007; PW12-M.G.Ranganath conducted the

observation panchanama after theft report dated 12.12.2007

and PW13-A.Rajendraprasad is the pancha to Ex.P.41 and P.42.

14. PW1 is the complainant. He has deposed as to the

arrest of accused no.1 on 19.12.2007 along with the motor

coils and seizure of the said property under Ex.P.1-

panchanama. Thereafter he has interrogated the accused and

obtained voluntary statement of the accused and seizure of

copper wires, motors from the shop of accused no.2. During

the course of his cross-examination he has clearly admitted

that he has not examined the registers of electrical department

to show that the copper coils were in the said department. He

has not mentioned in the panchanama as to which Company

the air coiled motor was made. He has not obtained any

documents to show as to by whom the said properties were

supplied to the Railways. Further he admits that he has not

obtained search warrant before searching the shop of accused

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no.2. The stock register maintained by the Department of

Railways is also not produced before the Court.

15. PW2-K.N. Rathod is a Retired R.P.F. personnel and

PW3-K.S.Rattihalli have also deposed as to the seizure of the

property from the possession of accused no.1; PW4-Altaf Mulla,

PW5-Gangadhar are said to be the panch witnesses to Exs.P.1

and P.2, they have not supported the case of the prosecution.

PW6-Shankrappa Gowdar has deposed about issuance of report

as per Ex.P.13; PW7-S.B. Patil, is a Retired Section Engineer,

who has deposed as to the theft of copper wire from AC coach

no. 00127 on 12.05.2007 and intimated the same to hither

officials and he gave theft report as per Ex.P.8.

16. PW8-Keshav Goudar has deposed about the theft of

copper wires from Coach No. 80006 on 16.12.2007. PW9-

Simon Joseph has deposed as to the issuance of report as per

Ex.P.15; PW10-Govindarajan has deposed as to the theft report

issued under Ex.P.38 to PW11; PW11-M.B.Gurushanta has

deposed as to noticing the theft of three air cooler copper coils

from the stand room and intimating the RPF post; PW12-

M.G.Ranganath deposed as to the receiving theft report on

12.12.2007; PW13-A.Rajendraprasadhas deposed as to the

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intimating the RPF regarding the theft of copper wire from AC

coach no. 00127 on 12.05.2007

17. The trial Court has observed at paragraph nos.26

and 27 of its judgment as under:

"26. The seizure date from accused No.1 is shown as 19- 12-2007 and it is said that one Air cooler coiled motor was seized under a panchanama. The crime is registered in Cr.No. 14/2007 on 19-12- 2007. It is said that the theft reports were received on 14-12-2007 and 18-12-2007 in respect of the said theft of copper wires. Ex. P 33 shows that DCR no 36/2007 was registered in respect of theft dated 12-12- 2007 and Ex. P 34 shows that DCR no 37/2007 was registered in respect of theft dated 16-12- 2007 Also it appears Cr no 3/2007 and Cr no 4/2007 were registered as per Ex. P 33 and 34. If that was so it is not forth coming as to how the investigation was continued in this case in respect of those theft reports when separate crimes were registered. Even P.W. 1 does not depose clearly in respect of conduct of investigation in this Cr no 14/2007 when separate crimes it appears were registered. It is said that accused No. 1 admitted commission of theft of railway property prior to 19-12-2007 on two occasions. That on his voluntarily statement the cable wires and air cooler materials were said to be seized from accused No.2. But how ever the independent panch witnesses have not supported the case of prosecution. P.W.4 and 5 deny the conduct of mahazar in their presence. P.W.6 and 9 who are said to have given a certificate after examining the property seized admit that there are no marks on the

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seized property which shows that the same belong to railways. Also as admitted by P.W. 1 he has not produced any documents to show that the seized property were in the possession of the railways prior to theft.

27. In a ruling reported in 1986 Cri. L.J. 764 in the case of Kiran Chandra Das Vs. State of Assam, it is observed that S.3 Offence under Proof - Accused found carrying some bearings while coming out of railway workshop - No workshop manual or register proved to show that the bearings seized were in possession of the railway administration - Evidence of chemical analysis and certificate from officer authorised to certify not produced - No other evidence to identify the bearings to be railway property - Held order on conviction could not be sustained. As such when P.W.6 and 9 depose that the seized properties did not contain the Indian railways mark and also as admitted by P.W.1 that he has not produced any documents to show that the seized property belonged to electrical department, in my opinion the prosecution has failed to establish that the seized property belongs to the railways. Though the official witnesses P.W1 to 3 depose about the seizure of the property from the accused no 1 and 2 but the prosecution has failed to establish that the seized property belonged to the railways. Therefore in my opinion benefit of doubt will have to be given to the accused. Hence, for all these reasons, I answer the above points in the negative."

18. On a careful examination of the entire evidence on

record it is crystal clear that the prosecution has failed to

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comply the mandatory provisions of Sec. 10 and 11 of the

Railway Property (Unlawful Possession) Act, 1966 after seizure

of property said to have been seized from accused nos.1 and 2.

19. The trial Court has properly appreciated the

evidence on record and in accordance with law and facts. On

re-appreciation, re-examination and re-consideration of the

entire evidence on record, I do not find any legal infirmity or

illegality in the impugned judgment. Hence, I answer point