State appeal against acquittal in a Railways Property (Unlawful Possession) Act case involving seizure of three railway fishplates from the accused. The High Court found non-compliance with mandatory provisions of Sections 100(7) CrPC and 8 of the RP(UP) Act created reasonable doubt and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC-D:9491 CRL.A No. 100087 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 9TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.100087 OF 2019 (A)
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY THE INSPECTOR/R.P.F., BELAGAVI POST THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.
…APPELLANT
(BY SRI M.M. KHANNUR, AGA)
AND:
Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA
BASAPPA S/O. TIPANNA KURPI, AGE: 48 YEARS, OCC: NOT KNOWN, R/O: SULDAL, TQ: GOKAK, BELAGAVI.
(BY SRI SHARAD S.FADNIS, ADVOCATE)
…RESPONDENT
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) & (4) OF CR.P.C., PRAYING TO GRANT SPECIAL LEAVE TO APPEAL AND SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 20.08.2018 PASSED BY THE JUDICIAL MAGISTRATE FIRST CLASS, IV COURT, BELAGAVI IN C.C. NO.184/2010 AND ETC.,
THIS CRIMINAL APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC-D:9491 CRL.A No. 100087 of 2019
JUDGMENT
The State (Railway Protection Force) has preferred this appeal against the judgment of acquittal dated 20th August, 2018 passed by the JMFC, IV Court, Belagavi in Criminal Case No.184 of 2010 (for short hereinafter referred to as "the trial Court").
seized the property under spot mahazar in the presence of two independent witnesses. In this connection, case was registered in Cr.No.03 of 2009 under Section 3(a) of RP(UP) Act. After
filing charge sheet, cognizance was taken and case came to registered in CC No.184 of 2010 and summons were issued. In response to summons, accused appeared before the trial Court and was enlarged on bail. Thereafter, trial Court framed charges. The same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried.
Government Advocate appearing for the appellant-State would submit that the judgment and order of acquittal passed by the trial Court is contrary to law, facts and evidence on record and the same is not sustainable in the eye of law. It is submitted that PWs.1, 2 and 4 to 6 have supported the case of prosecution and all these witnesses have categorically and specifically stated before the trial Court about the seizure of railway property as per MOs.1 to 4 from the possession of the accused. The accused was working in the Railways as Gangaman and on the alleged date of incident, the accused went to the said office and taken the seized railway property and was caught near the entrance gate of the office and there
is nothing to do with the admission made by PW1 that the office is surrounded by a compound wall of five to six feet height and that a watchman is deputed to the said compound.
The accused, taking advantage of the official position, removed the seized property. But the trial Court acquitted the accused on the ground that watchman of the Office has not informed regarding any theft in their office even though he was present in the office which has nothing to do with the merits of the
case. The watchman had given the theft report to his superior and his superior has reported the same as per Exhibit P6. Therefore, the reasoning assigned by the trial Court is not sustainable and therefore the judgment of acquittal is bad in law. It is further submitted that the offence under Section 3(a) of RP(UP) Act is not theft case, but be dealth with unlawful possession of the railway property, therefore, theft report or the stock register is not necessary to prove the offence. PW4custodian of the railway property has given the theft report Exhibit P6 to show that the seized property are missing from the Office. The trial Court rejected the evidence of PW4 on the ground that there is enmity between PW4 and the accused on the ground that the accused had issued legal notice to him with regard to non-allowing him to report to duty and the issuance of legal notice is much subsequent to the filing of the case against the accused and hence, there is no question of enmity between PW4 and the accused. Therefore, he submits that the finding given by the trial Court is liable to be set aside. His further submission is that though the PW6 who is the panch witness has clearly stated on oath before the trial Court that the accused was caught red-handed with the seized railway
property from the SE/P.Way Office, the trial Court has not assigned any acceptable reason for discarding the truthful version of the said witness. He further submits that the incident took place early in the morning, i.e at 5.00 am and it is highly improbable to expect any independent witness at that point of time. Therefore, the finding of the trial Court that no independent witness has been cited with regard to seizure of the property cannot be accepted. On all these grounds, he sought to allow the appeal.
and hence, the arguments on behalf of the respondent taken as nil.
Point No.1: in the negative;
Point No.2: as per final order
Regarding Point No.1:
“23. While considering the scope of power of the appellate court in an appeal against the order of acquittal, after referring to various judgments, in Chandrappa v. State of Karnataka (2007)4 SCC 415, this Court summarised the principle as under:-
court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
KARNATAKA & CONNECTED APPEALS reported in 2019 SCC ONLINE 69, at paragraph 16 of the judgment it is held as under:
NC: 2024:KHC-D:9491 CRL.A No. 100087 of 2019
“ 16. The High Court in the present case was dealing with an appeal against acquittal. In such a case, it is well settled that the High Court will not interfere with an order of acquittal merely because it opines that a different view is possible or even preferable. The High Court, in other words, should not interfere with an order of acquittal merely because two views are possible. The interference of the High Court in such cases is governed by wellestablished principles. According to these principles, it is only where the appreciation of evidence by the trial court is capricious or its conclusions are without evidence that the High Court may reverse an order of acquittal. The High Court may be justified in interfering where it finds that the order of acquittal is not in accordance with law and that the approach of the trial court has led to a miscarriage of justice. … ”
“4. Mr. Sushil Kumar Jain, the learned Additional Advocate General for the State of Rajasthan on the other hand contended that the power of the High Court while hearing an appeal against an order of acquittal is in no way different from the power while hearing an appeal against conviction and the Court, therefore was fully justified in re-appreciating the entire evidence, upon which the order of acquittal was based. The High Court having examined the reasons of the learned Sessions
Judge for discarding the testimony of PWs 6 & 7 and having arrived at the conclusion, that those reasons are in the realm of conjectures and there has been gross miscarriage of justice and the mis-appreciation of the evidence on record is the basis for acquittal, was fully entitled to set aside an order of acquittal and no error can be said to have been committed. It is too well settled that the power of the High Court, while hearing an appeal against an acquittal is as wide and comprehensive as in an appeal against a conviction and it had full power to reappreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would sitting as a trial court, have taken the other view. While reappreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the learned trial Judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice.… ”
RAM reported in 2022 SCC ONLINE 684, at paragraph 8 of the judgment it is held as under:
“8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all.”
“12. In the criminal jurisprudence, an accused is presumed to be innocent till he is convicted by a competent court after a full-fledged trial, and once the trial court by cogent reasoning acquits the accused, then the reaffirmation of his innocence places more burden on the appellate court while dealing with the appeal. No doubt, it is settled law that there are no fetters on the power of the appellate court to review, reappreciate and reconsider the evidence both on facts and law upon which the order of acquittal is passed. But the court has to be very cautious in interfering with an appeal unless there are compelling and substantial grounds to interfere with the order of acquittal. The appellate court while passing an order has to give clear reasoning for such a conclusion.”
he has deposed that on 23rd November, 2009 at 5.00 am, he and PW1 were on patrolling duty near the Officer of RPF, Ghatrprabha and found that a person was moving in suspicious
manner carrying a gunny bag and they retained him near the main gate of the office. Upon enquiry with regard to the contents of the gunny bag, the said person did not answer properly and hence they opened the gunny bag in presence of two witnesses and found 3 bend fishplates in the bag and in that regard the said person did not furnish any bill or voucher. Hence, the property was seized by drawing mahazar, arrested the accused and took him to police station with property and case came to be registered in Crime No.3 of 2009 and thereafter handed over the case to CW7 for further investigation. He has further deposed in the lines of PW2.
officials near the main gate of the office where a person was standing near the said gate carrying a bag and when the bag was checked three numbers of bend fishplates were found in the bag. When enquired, the accused stated that he has lifted the said items from the office with an intention to sell it for his personal gain. At the time of drawing the mahazar, he was present.
warrant, arrest any person who has been concerned in an offence punishable under this Act or against whom a reasonable suspicion exists of his having been so concerned. Section 8 of
the said Act empowers the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898 (5 of 1898). The prosecution has not placed any material to show as to compliance of mandatory provisions of Sub-section (7) of Section 100 of Code of Criminal Procedure. The Investigation Officer who has seized MOs.1 to 4 from the possession of the accused under mahazar has not issued any endorsement to the accused. The Investigation Officer has also not explained anything as to non-compliance of Section 100(7) of Code of Criminal Procedure and Section 8 of RP (UP) Act. Apart from this, the trial Court has also observed that the Investigation Officer has not produced Stock Register pertaining to fishplates. Non-compliance of the mandatory provisions of Section 100(7) of Code of Criminal Procedure and Section 8 of RP (UP) Act, 1966 will create reasonable doubt as to the occurrence of the alleged accident. The trial Court has properly appreciated the
evidence on record in accordance with law and facts. On reappreciation/reconsideration and re-examination of entire evidence on records, so also, keeping in mind the decisions referred to above, I do not find any error/legal infirmity/illegalities in the impugned judgment. Hence, I answer point No.1 in the negative.
Regarding Point No.2:
O R D E R
Appeal is dismissed.
Sd/JUDGE
LNN List No.: 1 Sl No.: 43
2 issues framed by the court
Whether the State made out grounds to interfere with the acquittal of the accused for unlawful possession of railway property under Section 3(a) of the RP(UP) Act?
What order should follow on the appeal against acquittal?
Colour shows how this judgement treated each authority
Motiram Padu Joshi & Others v. State of MaharashtraRelied on¶10
2018 SCC ONLINE SC 676 · Who else cites this
Munishamappa & Others v. State of KarnatakaRelied on¶11
2019 SCC ONLINE 69 · Who else cites this
Hari Ram & Others v. State of RajasthanRelied on¶12
2000 SCC ONLINE 933 · Who else cites this
State of Rajasthan v. Kistoora RamRelied on¶13
2022 SCC ONLINE 684 · Who else cites this
Mahavir Singh v. State of Madhya PradeshRelied on¶14
(2016)10 SCC 220 · Who else cites this
5 provisions across 2 enactments
State of Karnataka represented by the Inspector/R.P.F., Belagavi
Basappa s/o. Tipanna Kurpi
G Basavaraja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
