Dismissed

State of Karnataka v. Rafi @ Kalu

Karnataka HC29 Nov 2021CRL.A/1687/2017

Case brief

AI extract

What is this about?

The High Court dismissed the State's criminal appeal against acquittal under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966, finding the prosecution evidence lacked independent corroboration and reasonable doubt existed regarding the accused's guilt.

What did the court decide?

Leave to appeal is not granted and the appeal is dismissed; acquittal of respondents stands.

State of Karnataka Vs Rafi @ Kalu — Karnataka HC (2021) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF NOVEMBER, 2021

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BEFORE:

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO.1687 OF 2017

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BETWEEN

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STATE OF KARNATAKA BY ASST. SUB-INSPECTOR/RPF. BANGARPET, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 560 001. … APPELLANT

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[BY SMT. RASHMI JADHAV, HCGP]

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AND

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RAFI @ KALU

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AGED ABOUT 27 YEARS C. RAHIM COMPOUND BEHIND ELAHI MILLS BANGARPET.

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ATHANULLA AGED ABOUT 40 YEARS S/O. LATE AMEER JAN R/AT RAHMATH NIAGARA DARGA STREET KOLAR – 563 101. … RESPONDENTS

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[BY SRI R.B. PRAKASH, ADVOCATE FOR R-2; R-1 IS SERVED.]

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THIS CRIMINAL APPEAL IS FILED UNDER SECTIONS 378(1) AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGMENT AND ORDER OF AQUITTAL PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., KOLAR, IN C.C.NO.96/2009 DATED 09.02.2017 THEREBY ACQUITTING RESPONDENT/ACCUSED NOS.1 TO 3 FOR OFFENCE PUNISHABLE

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UNDER SECTION 3(a) OF THE RAILWAY PROPERTY (UNLAWFUL POSSESSION) ACT, 1966.

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THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THROUGH PHYSICAL HEARING/VIDEO CONFERENCE, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The State has preferred this appeal, challenging the Judgment and Order dated 09.02.2017 passed by the Court of Principal Senior Civil Judge and CJM at Kolar, in C.C. No.96/2009, whereby the respondents/accused Nos.1 and 3 were acquitted of offence punishable under Section 3(a) of the Railway Property (Unlawful Possession) Act, 1966.

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Heard the learned High Court Government Pleader and the learned counsel for respondents.

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It is the case of prosecution that, on 06.08.2008 at about 11.00 p.m., while the Inspector, R.P.F., Bangarpet and his staff were on a confidential watch

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in connection with theft of railway properties, noticed accused Nos.1 and 2 walking in a suspicious manner carrying one iron bar each on their shoulders. They were stopped and on interrogation, they confessed having committed theft of railway properties. They were found in

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possession of 1 BG tie bar belonging to the Indian Railways. Further, they confessed having sold railway properties to accused No.3, who is a scrap merchant having his shop in Rahamath Nagar, Kolar. The voluntary statement of accused No.3 was recorded and he produced a sum of `3,800/- said to be the sale proceeds of certain railway properties. Further, tie bars belonging to the railway department were also seized from his shop.

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The trial Court was of the view that there is no corroboration found in the evidence of P.Ws.1 and 2 and it is not forthcoming as to how the officials have seized the railway properties from the possession of accused Nos.1 and 2 as there was no independent corroboration and no mahazar witnesses were either present at the time of conducting the mahazar or none of them were examined. Since the confession statement as per Exs.P10 and 15 were not supported by any independent witnesses and as the material witnesses were not secured, the trial Court proceeded to acquit accused Nos.1 and 3 holding that benefit of doubt shall have to be extended to them.

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The learned High Court Government Pleader has contended that accused No.2 has pleaded guilty and therefore, the trial Court ought to have convicted accused Nos.1 and 3 from the available evidence on record. She contended that M.Os.1 to 4 have been recovered at the instance of the accused persons and the said properties belong to the Railway Department and since there is no explanation given by accused Nos.1 and 3 for possessing the same, the trial Court was not justified in acquitting them. She contends that the trial Court has given much importance to the minor discrepancies in the evidence of P.Ws.1 and 2 and therefore, seeks to set aside the impugned Judgment and Order.

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The evidence of P.W.1 goes to show that on the

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basis of reports submitted by the concerned Section Engineers as per Exs.P1, 3, 5 and 7 regarding theft of signal cables and check blocks, belonging to the railways, cases were registered. On 06.08.2008, when P.W.1 along with his staff was on duty, they noticed accused Nos.1 and 2 moving in a suspicious manner holding iron bars. Hence,

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they were stopped and it was found that they were in possession of railway properties. It is alleged that they were in possession of broad-gauge tie bars which was seized under Ex.P9. They took them to the scrap shop of accused No.3. Thereafter, accused No.3 was also enquired who confessed of having purchased the stolen properties from accused Nos.1 and 2. From his shop, 2 broad-gauge tie bars and `3,800/- were seized in the presence of panchwitnesses. According to prosecution, the accused persons did not possess any license or document for keeping the railway properties in their possession.

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From the evidence and material on record, it can be seen that Ex.P9-mahazar was drawn on 06.08.2008. However, no independent witnesses are examined. The broad-gauge tie bars and cash of `3,800/is said to have been seized at the instance of accused No.3 under Ex.P15 in the presence of two panchas. Said witnesses are not examined, though cited as C.Ws.4 and 5. The cash is not produced and marked. The prosecution is relying on missing reports and confession statements of the

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accused marked as Exs.10, 11 and 16. However, mere assertion that M.Os.1 to 4 were in possession of the accused persons itself is not sufficient to show without establishing that the said properties belong to the railways which were stolen earlier and they were sold by accused Nos.1 and 2 to accused No.3.

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According to the prosecution, as per Exs.P1 to 8, certain properties belonging to the railway department were found missing. The prosecution has not clarified that M.Os.1 to 4 seized under mahazar belong to the crimes registered earlier. It is not the case of prosecution that M.Os.1 to 4 has any specific identification marks to show that they are railway properties.

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Except the evidence of P.W.1, there is no other evidence, which the prosecution could throw light upon to establish the offence committed by the accused. P.W.1 is the owner of the scrap shop. His evidence is not useful to the prosecution. The evidence of P.W.1 is not sufficient to establish the guilt of accused Nos.1 and 3 beyond reasonable doubt. There is no illegality in the Judgment

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and Order of acquittal passed by the trial Court. No grounds are made out to grant leave. Hence, appeal is dismissed.

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Ksm*

State of Karnataka v. Rafi @ Kalu

Case brief

What is this about?

What did the court decide?

State of Karnataka v. Rafi @ Kalu

Case brief

What is this about?

What did the court decide?

What the court decided

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