Allowed

Manjappa v. State of Karnataka

Karnataka HC16 Aug 2023CRL.RP/101/2013

Case brief

AI extract

What is this about?

The High Court allowed the revision petition, quashing the convictions of petitioners under Sections 32 and 34 of the Karnataka Excise Act. The Court held the investigation flawed due to the complainant acting as the sole investigator without examining independent witnesses, and found no reliable prosecution evidence due to discrepancies in seizure marks versus FSL report.

What did the court decide?

Judgment of conviction and sentence set aside; petitioners acquitted and set at liberty; bail bonds cancelled; fine deposited to be returned.

Manjappa Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON’BLE MR. JUSTICE RAJENDRA BADAMIKAR

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CRIMINAL REVISION PETITION NO.101 OF 2013

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BETWEEN:

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MANJAPPA S/O NAGAPPA, AGED 37 YEARS, R/O HANCHINASIDDAPURA VILLAGE, BHADRAVATI TALUK, SHIMOGA DISTRICT-577 301.

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K.R. KUMAR S/O RAMAPPA,

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AGED 34 YEARS, R/O DEVARAHALLI VILLAGE, CHANNAGIRI TALUK, SHIMOGA DISTRICT-577 213.

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….PETITIONERS

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(BY SRI. CHETAN NAG .S, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY SUB-INSPECTOR OF POLICE, RURAL POLICE STATION, BHADRAVATI.

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...RESPONDENT

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(BY SRI. MAHESH SHETTY, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397(1) R/W 401 OF CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 10.01.2013 PASSED BY THE P.O., F.T.C., BHADRAVATHI IN CRL.A.NO.128/2012 AT ANNEXURE-A AND ORDER DATED 15.06.2012 PASSED BY THE III ADDL. C.J. & J.M.F.C., BHADRAVATHI IN C.C.NO.2981/2010 AT ANNEXURE-

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B AND ACQUIT THE PETITIONERS OF THE OFFENCES CHARGED AGAINST THEM U/Ss 32 AND 34 OF THE KARNATAKA EXCISE ACT.

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THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 03.08.2023, COMING ON FOR ‘PRONOUNCEMENT OF ORDER’ THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This revision is filed under Section 397(1) r/w 401 of Cr.P.C., challenging the judgment of conviction passed by the III Additional Civil Judge and JMFC, Bhadravathi in CC.No.2981/2010 dated 15.06.2012 whereby the learned Magistrate has convicted the accused for the offences punishable under Sections 32 & 34 of Karnataka Excise Act, 1965 (for short ‘KE Act’) and confirmed by Fast Track Court, Bhadravathi in Crl.A.No.128/2012 dated 10.01.2013.

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For the sake of convenience, the parties herein are referred with the original ranks occupied by them before the trial Court.

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The brief factual matrix leading to the case are that on 19.06.2006, at about 3.00 p.m., the complainant

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H.R. Govindappa PSI and CW4 Basavarajappa as well as

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CW5 had been to Kudligere village on patrolling duty. When they reached Kudligere bus stop, they found the accused standing there and seeing the Police Officers, they tried to ran away and on suspicion, they were apprehended by the police officers. They noticed that near the place where accused stood, a gunny bag was there and on verification, it was found containing 300 arrack sachets of 100 ml each concealed in a fertilizer bag. The accused were not possessing any license to sell the arrack and they disclosed that they obtained arrack sachets from Chitradurga in a Tata sumo bearing No.KA 19 M 9947. The complainant conducted the recovery mahazar and then arrested accused after seizure of the material objects. Thereafter, he took the accused to the police station and lodged the FIR on his own report. He has also recorded statements of some of the witnesses, including the mahazar and staff and later

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on the charge sheet is being submitted by CW8.

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On the basis of submission of the charge

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sheet, the learned Magistrate has taken cognizance. The accused initially remanded to judicial custody and subsequently, they were enlarged on bail. The prosecution papers were also furnished to them. The charge under Sections 32 & 34 of the KE Act is framed against them and same is read over and explained to them. The accused have pleaded not guilty and claimed to be tried.

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To prove the guilt of the accused, prosecution has examined in all three witnesses and also placed reliance on four documents marked at Exs.P1 to P4. MO.1 is the seized sample of 5 arrack sachets sent to the FSL. After hearing the arguments and after appreciating the oral and documentary evidence, the learned Magistrate has convicted the accused by imposing rigorous imprisonment for a period of one year with a fine of Rs.10,000/- with a default clause for both the offences.

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Being aggrieved by this judgment of conviction

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and order of sentence, the accused have approached the Fast Track Court, Bhadravathi, in Crl.A.No.128/2012. The learned Sessions Judge, after re-appreciating the oral and documentary evidence, dismissed the appeal by confirming the judgment of conviction and order of sentence passed by trial Court. Against these concurrent findings, this revision is filed.

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Heard the arguments advanced by the learned counsel for the revision petitioner and learned HCGP for the State. Perused the records.

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The learned counsel for the revision petitioner contended that as per the case of the prosecution, 300 liquors sachets were concealed in a gunny bag. But complaint was lodged by the same person i.e., the Investigation Officer and PW3, who had submitted the charge sheet has not done any investigation and entire investigation is done by complainant himself, which caused prejudice to the accused. He would also contend

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that the mahazar witnesses were not examined to prove the mahazar and the property was not found in the custody of the accused. But it is alleged that it was lying near the place where the accused were standing. He would also contend that the Investigation Officer has not chargesheeted accused Nos.3 & 4 on the ground of no evidence and their addresses cannot be traced. But interestingly, accused No.4 himself has filed the bail petition and obtained bail which was ignored by the investigating agency. He would also contend that the vehicle number is also disclosed as per the case of the prosecution by the accused. But no attempts were made to secure the details of the vehicle from the competent authority, which clearly disclosed that the investigation was not in accordance with law.

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Learned counsel for the revision petitioner

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further contends that the author of Ex.P4-FSL report is not examined, which is fatal to the case of the prosecution. He would further assert that in Mahazar-

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Ex.P2, there is reference that seized articles were sealed

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by putting seal ‘ML’. But the FSL report Ex.P4 discloses that the properties were sealed with the letter ‘M’. Hence, it is evident that the properties seized were not sent to FSL and hence, the prosecution has failed to substantiate the contention. He would contend that both the Courts below have failed to appreciate this aspect and hence, he would seek for interference of this Court by allowing the revision.

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Per contra, the learned HCGP would support

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the judgment of conviction and order of sentence. It is contended that marking may be different, but both the Courts have appreciated the evidence in proper perspective and 313 statement is formal denial and there is no rule that the evidence of investigating agency is to be discarded. Hence, he would contend that no illegality is found with the judgment of conviction and order of sentence and hence, he would seek for interference by this Court.

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Having heard the arguments and having

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perused the records, now the following point would arise for my consideration:

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“Whether the judgment of conviction and order of sentence passed by the trial Court and affirmed by the appellate Court are perverse, erroneous and arbitrary so as to call for any interference by this Court?”

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As per the case of the prosecution, the

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accused have committed offences under Sections 32 & 34 of the KE Act. It is the assertion of the complainant that he is working as ASI. On 09.06.2006, at 3.00 p.m., he

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was on patrolling duty along with CWs.4 & 5 and in Kudligere bus station, they found two persons in a suspicious manner and when they tried to ran away, they apprehended them. There was a gunny bag near the place where they were standing and it was containing 300 sachets of 100 ml liquor which were seized by him by drawing the mahazar. He further deposed that he seized the property and has taken 5 sachets as sample and

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sealed them with ‘ML’ mark and then lodged a complaint by himself and issued FIR. He further deposed that on the same day he arrested the accused and also recorded the statement of CWs.2, 3, 4 & 5 and then sent the seized articles for FSL. He further deposed that on 30.09.2006, he received the FSL report and then handed over the investigation to PW3 i.e., CW8. On the contrary, PW8, simply deposed that he submitted the charge sheet. Hence, it is evident that the entire investigation is done by PW1 complainant itself.

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It is the specific assertion by PW1 that the gunny bag was near the place where the accused were standing. He claims that adjoining the bus stand there are number of commercial establishments, but he asserts that since the persons were not willing to act as panchas, they were not secured as panchas. The said fact is not mentioned in the mahazar. PW1 is the complainant as well as Investigating Officer and he has done the entire major investigation.

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PW2 is the constable who accompanied the

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complainant and he has also deposed as per the say of the complainant, but he claims that accused were holding the gunny bag and seeing the police, they threw the gunny bag and attempted to ran away. This statement is completely contrary and inconsistent to evidence of PW1. PW1 claims that the gunny bag was lying in the bus stand near the place where the accused were standing, but PW2 claims that it was in the hands of accused. These two stands are inconsistent and contrary.

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Further, as per the case of the complainant, no other persons were found in the bus stand except the accused, but PW2 claims that there were many other persons in the bus stand. If this version is taken into consideration, it is hard to accept that gunny bag lying in the bus stand was belonging to the accused. To clarify this doubt, the prosecution has not examined the mahazar witnesses. It is asserted that one mahazar witness is dead and his death extract is said to have been

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produced. But nothing prevented the prosecution from examining the other mahazar witnesses and no such attempt has been made.

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Further, the mahazar is marked at Ex.P2 and it clearly discloses that the five sample sachets taken separately were sealed with seal having the English word ‘ML’. The said fact is again reiterated by the complainant i.e., PW1. Ex.P4 is the FSL report. Though the learned counsel for the accused disputes the admissibility of this document, the said arguments hold no water. This document is not challenged by the accused during the course of the evidence and hence, it is admissible in evidence. In this regard, the learned counsel for the revision petitioner has placed reliance on a decision reported in 2020 SCC OnLine KAR 5221. But the facts and circumstances of the said case are entirely different and in the said case, the contents of the documents i.e., experts report came to be disputed and hence, it is held that examination of the author of the document is

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essential and provisions of Sections 293 & 294 Cr.P.C., do not assist the prosecution. But in the instant case, the contents of Ex.P4 are not denied and hence, the said principles cannot be made applicable to the facts and circumstances of the case.

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However, on perusal of Ex.P4, the description

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on the parcel received, it is specifically noticed that one sealed white cloth packet containing the seal impression

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‘M’ in red wax and was said to have contained five sachets is received. If Ex.P4 is perused, it is evident that the sealed packet was containing sealed impression ‘M’.

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But Mahazar Ex.P2 and the evidence of PW1 disclose that the sample packet was sealed with seal impression ‘ML’. In that view of the matter, it is evident that the property which is sealed was not sent to the FSL and hence, the FSL report does not assist the prosecution in any way. When Ex.P4 is not helpful to the prosecution and when the prosecution fails to prove that the arrack sachets

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were seized, the question of convicting the accused does

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not arise at all.

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The learned counsel for the revision petitioner

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further asserts that the entire investigation is done by the complainant himself and no independent witnesses were also examined and only the official witnesses were examined. He contended that the complainant has acted in the dual role of complainant and Investigation Officer which is fatal to the prosecution and in support of his case, he placed reliance on a decision reported in KCCR - 2004-2-920. No doubt, there is no specific bar under the law that Investigating Officer need not act as complainant, but it depends on circumstances and if prejudice is not caused to the accused, such conduct of the Investigating Officer is not fatal. In the instant case, the entire investigation is done by the complainant and the conduct of the Investigating Officer-PW1 creates suspicion as the seized article was having sealed impression ‘ML’, but the property sent by him to the FSL

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was with sealed impression ‘M’. Hence, the conduct of the Investigating Officer itself has caused lot of prejudice to the accused in view of the divergent contentions raised by the prosecution. As such, the non examination of independent witnesses is fatal to prosecution.

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Further, the investigation is not done in a proper way. All along, it is asserted by the prosecution that there is no material evidence and proper identity of accused Nos.3 & 4 is established. But admittedly, accused No.4 was enlarged on bail by the Court and hence, contention of the Investigating Officer in this regard cannot be accepted. Further, the vehicle number was also specifically said to have been disclosed and nothing prevented the Investigating Officer from getting ‘D’ extract of the vehicle to ascertain the real culprits, but that was also not done. The entire approach of the Investigating Officer has prejudiced the accused which has resulted in erroneous findings. Both the Courts below have failed to look into the matter and in a mechanical

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way only by relying on the evidence of PW1 and PW2, proceeded to convict the accused, ignoring that the complainant himself is a Investigating Officer and further, the independent witnesses were not examined and the property seized and property sent to FSL did not tally with each other. Hence, it is evident that the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt.

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Looking to these facts and circumstances, it is evident that entire approach of both the Courts below is perverse and arbitrary which has resulted in miscarriage of justice. Hence, judgment of conviction and order of sentence passed by the trial Court and confirmed by the appellate Court calls for interference. As such, point under consideration is answered in the affirmative. Hence, the revision petition needs to be allowed and accordingly I proceed to pass the following:

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ORDER

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1. The revision petition is allowed.

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1. The judgment of conviction and order of sentence passed by the III Additional Civil Judge and JMFC, Bhadravathi in CC.No.2981/2010 dated 15.06.2012 and confirmed by Fast Track Court, Bhadravathi in Crl.A.No.128/2012 dated 10.01.2013 are set aside.

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1. The accused are acquitted for the offences punishable under Sections 32 & 34 of KE act and they are set at liberty.

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1. The bail bonds executed by the accused stands canceled.

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1. The fine amount deposited if any by accused, shall be returned to the them.

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Sd/-

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JUDGE

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Manjappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Manjappa v. State of Karnataka

Case brief

What is this about?

What did the court decide?

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