Arshad Pasha Vs the State of Karnataka

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:28.1.12 PASSED BY THE P.O., FTC-II, MYSORE IN S.C.NO.234/10 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 399 AND 402 OF IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 4 YEARS AND TO PAY A FINE OF RS.3,000/- EACH FOR THE OFFENCE P/U/S 399 OF IPC. IN DEFAULT OF PAY THE FINE THE ACCUSED SHALL UNDERGO S.I. FOR A PERIOD OF 2 YEARS. AND THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A

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TERM OF 2 YEARS AND TO PAY FINE OF RS.1,000/- EACH, FOR THE OFFENCE P/U/S 402 OF IPC. IN DEFAULT TO PAY THE FINE THE ACCUSED SHALL UNDERGO S.I. FOR A PERIOD OF 1 YEAR. BOTH THE SENTENCES UNDER THE ABOVE SAID OFFENCES SHALL RUN CONCURRENTLY.

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THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA

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ORAL JUDGMENT

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The appellant being accused No.5 in SC.No.234/2010, on the file of learned Fast Track Court-II, Mysore is impugning the Judgment of Conviction and Order of Sentence dated 28.01.2012, convicting him for the offences punishable under Sections 399 and 402 of the Indian Penal Code (for short 'the IPC') and sentencing to undergo rigorous imprisonment for a period of 4 years with fine of Rs.3,000/- for the offence punishable under Section 399 of IPC and to undergo rigorous imprisonment for a period of 2 years with fine of Rs.1,000/- for the offence punishable under Section 402 of IPC, with default sentence.

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Brief facts of the case of the prosecution are that, on 08.11.2009, PW5 received credible information at about 07.45p.m., that 5 persons have made preparations and

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assembled behind Bannadanagar, Bannimantapa B.Layout, on the ring road at a distance of 100 meters from the Ring Road Railway Bridge, for the purpose of committing dacoity. PW5, who was in the police station has proceeded to the spot along with mahazar witness, apprehended them and under the mahazar the longs, clubs, chilli powder, maruti omni van were recovered and therefore, it is contended that the accused has committed the offences punishable under Sections 399 and 402 of IPC.

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The learned Magistrate took cognizance of the offence, and committed the matter to the Sessions Court. The Trial Court summoned the accused. The accused has appeared before the Trial Court, pleaded not guilty and claimed to be

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tried. Prosecution examined PWs1 to 5 and got marked Exs.P1 to 5 in support of its contention. The accused has denied all the incriminating materials available on record, but has not chosen to lead any evidence in his defence. The Trial Court, after taking into consideration the materials on record came to the conclusion that, the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and accordingly,

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passed the impugned judgment of conviction and order of sentence. Being aggrieved by the same, the accused is before this Court.

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Heard Sri. P.B.Umesh, learned Amicus Curiae for the appellant and Smt. Rashmi Jadhav, learned ASPP for the respondent. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:

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“Whether the appellant-accused has

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made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?

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My answer to the above point is in the 'Affirmative' for

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the following:

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REASONS

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It is the contention of the prosecution that, accused Nos.1 to 5 were armed with longs, clubs, chilli powder, a plastic rope, a torch and assembled at the scene of occurrence with a

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maruti omni van and they have made preparations for committing dacoity. On receiving credible information by PW5the PSI of Narasimharaja Police Station, Mysore on 08.11.2009 at 07.45 p.m went to the spot along with the mahazar witness, found accused Nos.1 to 5 with a Maruthi Omni car bearing Reg.No.CKQ-3832 and was satisfied that, the accused have assembled there by making preparations to commit dacoity. PWs.1, 2 and 4 are the police officials, who accompanied PW5 and PW3 is the mahazar witness. All these witnesses have supported the case of the prosecution. However, immediately after receipt of the credible information by PW5, regarding assembly of the accused with an intention to commit dacoity, the same was not recorded in the diary. But PW5 along with her staff PWs.1, 2, 4 and PW3 went to the spot, apprehended the accused and seized the incriminating materials. Strangely, even the incriminating materials were not identified as material objects to substantiate the contention of the prosecution.

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It is brought to the notice of the Court that accused

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Nos.1 to 4 have preferred Crl.A.No.201/2012. The Co-ordinate Bench of this Court, vide judgment dated 26.10.2023, allowed

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the appeal and acquitted accused Nos.1 to 4. However, in the operative portion of the order, the judgment of the Trial Court passed against the accused Nos.1 to 5 was set aside and all of them were acquitted. It appears the pendency of the present appeal preferred by accused No.5 was not bought to the notice of the Co-ordinate Bench of this Court.

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The allegations made against accused Nos.1 to 5 are similar. No separate overt act is alleged against the present appellant - accused No.5. The Co-ordinate Bench of this Court found that, there is discrepancy in the evidence of the prosecution witnesses with regard to seizure of the material objects. It has also commented as to why the credible information received by PW5 was not recorded in the station house diary. It is found that the case of the prosecution regarding commission of the offence by the accused cannot be accepted, without reasonable doubt. Under such circumstances, the benefit of doubt was extended to accused Nos.1 to 4 to acquit them. When the co-accused against whom similar allegations are made are already acquitted, I do not find any justification to confirm the judgment of the conviction for the

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present appellant - accused No.5 as he is also entitled for the benefit of doubt.

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In view of the above, I am of the opinion that the impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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(i) The Criminal Appeal is allowed.

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(ii) The Judgment of Conviction and Order of Sentence dated 28.01.2012 passed in S.C.No.234/2010, on the file of learned Fast Track Court- II, Mysore, is hereby set aside.

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(iii) Consequently, the appellant - accused No.5 is acquitted for the offences punishable under Sections 399 and 402 of IPC.

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(iv) Bail bond of the accused and that of his sureties shall stand cancelled.

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Fine amount, if any, deposited by the appellant - accused No.5 is ordered to be refunded to him after appeal period is over.

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Registry to send back the TCR along with copy of this judgment for information and for needful action.

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