Allowed

Sri. Muhammad Shabeer v. the Union of India

Karnataka HC13 Sept 2022CRL.RP/1027/2018

Case brief

AI extract

What is this about?

High Court of Karnataka allowed criminal revision petition by accused No.2. Bench held Trial and Appellate Courts grossly erred in convicting accused due to lack of proof linking seized railway clips to Railway property and inconsistencies in prosecution witnesses.

What did the court decide?

Criminal Revision Petition allowed; judgment of conviction and order of sentence set aside; petitioner acquitted of all charges.

Sri. Muhammad Shabeer Vs the Union of India — Karnataka HC (2022) — LawSathi Research

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE S. RACHAIAH

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CRIMINAL REVISION PETITION No.1027/2018

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BETWEEN:

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SRI MUHAMMAD SHABEER S/O ABDUL RAHIMAN AGED ABOUT 32 YEARS R/AT 04/14-1, FAIZAL NAGAR BAJAL POST, BAJL MANGALORE TALUK D.K. DISTRICT – 575 027. .. PETITIONER

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(BY SRI N.S. SAMPANGI RAMAIAH, AMICUS CURIAE)

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AND:

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THE UNION OF INDIA THROUGH RAILWAY PROTECTION FORCE REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT BUILDING HIGH COURT OF KARNATAKA BANGALORE – 560 001.

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... RESPONDENT

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(BY SRI, MAHESH SHETTY, HCGP)

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THIS CRIMINAL REVISION PETITION FILED UNDER SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND THE ORDER DATED 17.08.2016 PASSED BY THE LEARNED III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE IN CRL.A.NO.174/2015 PASSED BY THE LEARNED I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALORE, D.K., IN CRIMINAL CASE NO.21/2015 AND CONSEQUENTLY ACQUIT THE PEITTIONER OF ALL CHARGES.

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THIS CRIMINAL REVISION PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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O R D E R

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Though the matter was posted for admission today, with the consent of the learned counsel for the parties, the matter is taken up for final disposal.

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This criminal revision petition is filed by the petitioner/accused No.2 being aggrieved by the judgment of conviction and order of sentence dated 19.06.2015 in CC No.21/2015 on the file of the I Additional Senior Civil Judge and CJM, Mangaluru, D.K. (for brevity, hereinafter referred to as “Trial Court”) and confirmed by the III Additional District and Sessions Judge, D.K., Mangalur (for brevity, hereinafter referred to as “Appellate Court”) in Crl.A. No.174/2015 dated 17.08.2016 for the offence under Section 3(a) of Railway Property, 1966 (Unlawful Possession) Act (for brevity, hereinafter referred to as “the Act”).

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It is the case of the prosecution that on 06.11.2014 at about 4.00 a.m, when PW1 along with his staff members

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were proceedings near Railway K.M.No.15/500-700 at Padil and Thokuru Railway Line, they found accused No.1 carrying yellow coloured polythene bag. On being intercepted, the police have found that the said polythene bag contains 12 elastic railway clips. It is further stated in the complaint that the accused confessed that he had stolen 44 elastic railway clips on a month ago and he had sold 32 clips to accused No.2 and remaining 12 clips were being carried by him on the date of his apprehension.

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It is further stated that the police took accused No.1 and went to the shop of accused No.2 along with panchas and the police staff. There the railway police found 10 elastic clips and seized in presence of PW5 and PW6. On enquiry, accused No.2 confessed that he has sold 22 clips, out of the said sale he obtained Rs.1,600/- and handed over the said amount to the police in presence of above mentioned panchas.

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The police registered the case and conducted investigation and submitted charge sheet.

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The prosecution in order to prove its case, examined PW1 to PW6 and got marked Ex.P-1 to Ex.P-9 and also identified the material objects MO1 to MO4.

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The Trial Court after appreciating the oral and documentary evidence on record, found that the accused are guilty for the offence under Section 3(a) of the Act. Both the accused Nos.1 and 2 are ordered to undergo simple imprisonment for a period of one year and ordered to pay a fine of Rs.5,000/- each for the said offence. Being aggrieved by the said judgment of conviction and order of sentence, the accused No.2 preferred an appeal before the Appellate Court. The Appellate Court confirmed the judgment of conviction and dismissed the appeal. Being aggrieved by the concurrent findings and judgment of conviction, the petitioner preferred this revision petition seeking to set aside the judgment of conviction and order of sentence.

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Heard Sri.N.S.Sampangi Ramaiah, learned Amicus Curiae appearing on behalf of the petitioner and Sri.Mahesh Shetty, learned HCGP appearing on behalf of the respondent.

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Sri.N.S.Sampangi Ramaiah, learned Amicus Curiae appearing for the petitioner submits that the judgment of conviction and order of sentence against accused No.2 is contrary to law and facts.

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It is further submitted that, though the alleged seizure mahazar drawn in front of the shop, no independent witnesses have been cited. Though PW5 and PW6 said to be the independent witnesses, in the examination-in-chief, they have admitted that they are working as coolie in railway station. The inconsistency with regard to recovery of the amount between PW5 and PW6 has not been considered by the Trial Court properly.

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It is further submitted by the learned counsel that PW3 is the Engineer attached to Southern Railway has

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admitted that after examined the clips gave his opinion as per Ex.P-6. However, he did not find any marks with regard to the Southern Railway on the said clips. In absence of such marks, the Trial Court ought not to have arrived at a conclusion that the alleged clips said to have been seized at the shop of accused No.2 are railway properties.

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With these submissions, the learned Amicus Curiae prays to allow the petition.

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Per contra , Sri. Mahesh Shetty, learned HCGP in support of the judgment of conviction and order of sentence and also the order of confirmation passed by the Appellate Court submits that, the judgment of conviction contains no illegality and perversity.

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The learned HCGP further submits that the seizure of railway clips and also the amount of Rs.1,600/- has been proved through the evidence of PW5 and PW6 who are the mahazar witnesses and the mahazars were marked as Ex.P-2 and Ex.P-3. In addition to the evidence of PW5 and PW-6, PW-

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3 who is the Engineer attached to the Railway has specifically identified the goods seized in the shop of accused No.2 as the property of Southern Railway. Therefore, in the absence of contrary, it is presumed that the accused No.2 either has stolen the property of the railway or he has obtained from the accused No.1. Therefore, the learned HCGP prays to dismiss the revision filed by the revision petitioner.

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My anxious and thoughtful consideration to the rival submissions of the learned counsels for the respective parties and perusal of the documents, the points which arise for my consideration are:-

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1) Whether the concurrent findings of judgment and conviction and order of sentence passed by the Trial Court and confirmation order passed by the Appellate Court are justifiable?

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2) Whether the petitioner has made out grounds to interfere with the concurrent findings of both the Courts?

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The question which arises in this case is as to whether the Trial Court and the Appellate Court have properly

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appreciated the evidence on record or not? In order to answer the question, it is necessary to re-analyze the evidence and also the documents available on record. Though the scope of the revision is very clear that it cannot re-analyze or reappreciate the evidence, however, whenever there is error in appreciating the evidence by the Trial Court, then the said appreciation has to be tested by the revisional Court as to whether the said appreciation is in accordance with law or not.

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According to prosecution, PW1 and his team intercepted accused No.1 when he was carrying 12 elastic railway clips in his bag. On interception, accused No.1 confessed that he had committed theft of 44 elastic railway clips a month ago, out of 44 clips, he has sold 32 clips to the scrap shop and he had hid 12 clips in the bush. PW1 is the Railway Police Sub-Inspector. PW2 is the owner of the shop where accused No.2 was running scrap business. PW3 is the Engineer attached to Southern Railway. PW4 is the Assistant Controller of Legal Metrology. PW5 and PW6 are the panch witnesses and Ex.P1 and Ex.P3 said to have been drawn in their presence.

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On careful perusal of evidence of PW1 it appears that he is the Railway Police working at Mangaluru who said to have apprehended accused No.1 and enquired about the plastic bag which the accused No.1 was carrying along with him. According to PW1, the accused No.1 had 12 elastic railway clips in his hand and on enquiry, he confessed that at about 3 months back, the accused No.1 had committed theft of 44 railway clips and concealed in the bush. Out of 44 clips, he had sold 32 clips to the scrap shop run by accused No.2. Again according to PW1, the accused No.1 was carrying another 12 clips from the bush where he hid the clips.

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PW1 further states that he secured the presence of panchas and went to the shop of accused No.2 and seized 10 clips and also amount of Rs.1,600/- in presence of PW5 and PW6. Even assuming that the said seizure mahazar is true, PW2 being a owner of the shop which was alleged to have been running by accused No.2 has turned hostile and not supported.

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The Investigating Officer ought to have secured the documents like rent agreement or lease agreement between PW2 and accused No.2. In absence of any such document and hostility of PW2, the Trial Court ought not to have arrive at a conclusion that the said seizure mahazar taken place in the shop of accused No.2.

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The evidence of PW3 with regard to examination of the elastic railway clips is concerned, after examination, he had issued Ex.P-6, it indicates the elastic railway clips are attached to Southern Railway. However, he has admitted that no such marks found on the alleged elastic railway clips about Southern Railway. In absence of marks on the clips, it cannot be presumed that the said clips belong to Southern Railway.

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PW5 and PW6 are the railway coolies working in the railway station. Except these witnesses, none of the independent persons arrayed as witness in the charge sheet. PW2 is the witness who is said to be the owner of the shop premises where the accused No.2 was running scrap business.

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He has not supported the case. There is inconsistency with regard to the amount seized in presence of PW5 and PW6. According to PW5 the police have seized 10 railway clips and Rs.1,200/- but PW6 says the police have seized 10 railway clips and Rs.1,600/-. This inconsistency with regard to seizure of currency notes create doubt about their presence in the alleged seizure mahazar. Therefore, their evidence with regard to alleged seizure mahazar cannot be accepted.

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With the above observation, the point which arose for my consideration are answered as

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1) Point No.1 in the negative holding that the Trial Court and the Appellate Court grossly erred in convicting the accused No.2.

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2) Point No.2 in the affirmative holding that the petitioner made out grounds to interfere with the concurrent findings.

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Hence, I proceed to pass the following:

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ORDER

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The Criminal Revision Petition filed by the

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petitioner/accused No.2 is allowed.

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The judgment of conviction and order of sentence dated 19.06.2015 in C.C.No.21/20115 on the file of the I Addl. Senior Civil Judge and CJM, D.K. Mangaluru and order of confirmation dated 17.08.2016 in Crl.A.No.174/2015 on the file of the III Addl. District and Sessions Judge, Mangaluru are set aside in respect of accused No.2.

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The petitioner/accused No.2 is acquitted for the offence under Section 3(a) of the Act.

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The bail bonds, if any, executed by the petitioner/accused No.2 stands cancelled.

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The Legal Services Authority is directed to pay retainer fee of Rs.5,000/- to the learned Amicus Curiae for his valid assistance rendered by him.

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Sd/JUDGE

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Vmb/Naa

Sri. Muhammad Shabeer v. the Union of India

Case brief

What is this about?

What did the court decide?

Sri. Muhammad Shabeer v. the Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

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