Abdul Rajak S/O Peersab Tamboli Vs the State of Karnataka

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 AND 401 OF CR.P.C., SEEKING TO CALL FOR THE RECORDS FROM BOTH THE COURTS BELOW AND SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 22.10.2016 PASSED BY THE I ADDL. DISTRICT AND SESSIONS, BAGALKOT SITTING AT JAMAKHANDI IN CRIMINAL APPEAL NO.31/2013 AND ALSO SET ASIDE THE JUDGMENT PASSED BY THE ADDL. JMFC, MUDHOL IN CC NO.350/2009 DATED 26.02.2013 FOR THE OFFENCE U/SEC.457 AND 380 OF IPC AND IT IS MOST HUMBLY PRAYED TO ACQUIT THE PETITIONERS FOR THE ALLEGED OFFENCE IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR)

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This revision petition questions the judgment of conviction and order of sentence dated 26.02.2013 passed in CC No.350/2009 by the Additional JMFC, Mudhol, confirmed in Crl.A No.31/2013 dated 22.10.2016 by the I Additional District and Sessions Judge, Bagalkot (sitting at Jamakhandi).

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The parties to this revision petition are referred

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to as per their rank before the trial Court for the sake of convenience.

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The brief relevant facts as set out by the prosecution are as under;

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That a complainant filed a complaint before the fvv Police Station on 29.12.2008 alleging that during the intervening nights of 29.12.2008 and 30.12.2008 in between 10-00 pm to 9-00 am, when the complainant has

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put the lock to his shop by name Vijay Communication Mobiles, some unknown persons by breaking upon the lock and after trespassing into the shop has committed theft of 12 mobile phones of different companies amounting in between Rs.22,000/- and Rs.32,000/- and thus committed the offence of theft. With these allegations, a complaint came to be filed and a case was registered by the Police for the offences punishable under Sections 457 and 380 of IPC and criminal law was set in motion.

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PW.8 one Sadashiva Vithal Kodi, the then Police Constable of Mudhol Police Station on 11.02.2009 received the information that some persons are selling the mobile phones in the Mudhol bus stand. Therefore, he along with other police officials went to the Mudhol bus stand along with the panchas in a Government Jeep bearing registration No. KA-29 G 154 and reached the bus stand at 9.00 am. There they noticed the presence of one person holding the mobile phone with a carrier and he was selling the mobile phones. Therefore, PW.8 surrounded the said

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person along with other police officials and caught hold the said person, enquired him. At that time another person was there. On enquiry they stated the names as Abdul Razak Peersab Tamboli and Mohammed Rafiq Safansab Masali. On enquiry, it revealed that they have committed the theft of the said mobile phones from the shop of the Vijaya Communications situated near Mudhol Ranna circle.

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In the presence of the panchas CW.4 and CW.5, the panchanama was prepared and 9 mobiles were seized, which are marked as MO.Nos.1 to 9. Thereafter, they

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brought the said persons to the police station and compared with the complaint so filed by the complainant and they tallied with each other. Thus, after investigation,

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the IO has filed the charge sheet against the accused for the aforesaid offences before the trial Court.

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On filing the charge sheet, the learned

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jurisdictional Magistrate took the cognizance of the offences and supplied the copies of the police papers under Section 207 of Cr.P.C to the accused as

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contemplated under Section 207 of Cr.P.C. Charges against the accused were framed on hearing both the side for the offences under Sections 457 and 380 of IPC for which, the accused pleaded not guilty and came to be tried .

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To substantiate the case of the prosecution, in

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all, prosecution examined 9 witnesses from PW.1 to PW.9 and got marked Exs.P1 to P10 and also MO.Nos.1 to 10 closed prosecution evidence. Thereafter, the accused were questioned under Section 313 of Cr.P.C so as to enable the accused persons to answer the incriminating circumstances appearing in the evidence of the prosecution witnesses. They denied their complicity in the crime and did not choose to lead any defence evidence.

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The learned trial Magistrate, on hearing the

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arguments and on appreciation of the evidence, found both the accused guilty of committing the offences under Sections 457 and 380 of IPC and sentenced them as under:

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“Acting under Sec.248(2) of Cr.P.C the accused persons No.1 and 2 are hereby convicted of the offence punishable under Sec. 457 of I.P.C., and sentenced to undergo S.I. for a period of 3 years and to pay a fine of Rs.2,000/- in default of fine, they shall further undergo S.I. for a period of 6 months.

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Acting under Sec.248(2) of Cr.P.C the accused persons No.1 and 2 are hereby convicted of the offence punishable under Sec. 380 of I.P.C., and sentenced to undergo S.I. for a period of 3 years and to pay a fine of Rs.2,000/- in default of fine, they shall further undergo S.I for a period of 6 months.

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Acting under Sec.428 of Cr.P.C the period undergone by the accused persons No.1 and 2 if any in Judicial Custody and body warrant is hereby given set off.

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The above sentences shall run concurrently.”

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This judgment of conviction and order of sentence was challenged by the accused persons by filing an appeal in Criminal Appeal No.31 of 2013 before the I Additional District and Session Judge, Bagalkot sitting at Jamakhandi. The Appellate Court on hearing the arguments of both the side, confirmed the judgment of

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conviction and order of sentence by passing a judgment dated 22.10.2016. This is how, now the petitionersaccused are before this Court challenging the impugned judgments of the Courts below.

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The learned counsel for the petitioners-accused,

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Sri N.L.Batakurgi submits that the impugned judgments are one-sided and contrary to law and facts of the case. They are perverse, arbitrary and capricious. According to his submission, the conviction judgment so passed by the trial Court and confirmed by the First Appellate Court suffers from material irregularities. There is no proper appreciation of the evidence placed on record by the prosecution. Evidence of PW.4 if read, it is submitted that his evidence cannot be accepted at all. He was unaware that who was holding the articles etc. The panchanama so produced by the prosecution are not duly proved in accordance with law. Unusual and strange findings have

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been given by both the Courts. The accused are innocent persons and have been falsely implicated in this case.

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Because of this, now the valuable rights of the accused have been frustrated. He submits that the burden of proof which was cast on the prosecution in not properly discharged. Amongst other grounds, as stated in the revision petition, it is submitted by learned counsel Sri. N.L.Batakurki, Advocate to allow this revision petition and acquit the accused by setting aside the impugned judgments.

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As against this submission, Sri. Praveen K. Uppar, the learned AGA submits that both the courts below have rightly concluded that, when the accused were found selling the mobile phones, they were caught hold by the police, i.e. PW.8 and panchanama was prepared and 9 mobile phones were seized from the possession of the accused. Though PW.4 speaks some evidence, but, recovery of the mobile phones which were the subject matter of the complaint and evidence of PW.1 duly establish the guilt of the accused. He submits that in a case of present nature, the minor contradictions are bound

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to occur, when the witnesses are examined at a belatedly. He submits that, the trial Court as well as the First Appellate Court have properly appreciated the evidence, it is prayed by him to dismiss the revision petition.

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I have given my anxious consideration to the arguments of both the side. Perused the records.

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In view of the rival submissions of both the sides, the only point that would arise for my consideration is:

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"Whether the trial Court and the First Appellate Court have committed illegality or infirmity in appreciating the evidence placed on record by the prosecution and has wrongly convicted and sentenced the accused persons?"

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My answer to the above point is in the affirmative for the following reasons:

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So far as theft of the mobile phones from the shop of the complainant is concerned, prosecution relies upon Ex.P1, the complaint filed by one Mallikarjun Basavaraj Hubli, the owner of the said shop. According to

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him, he is running a mobile shop named as Vijaya Communications, Lonari complex, Mudhol situated near the Ranna Circle, Mudhol. He states that as usual during night hours on 29.12.2008, after locking the shop, went to the house. On 30.12.2008 at about 9 a.m, he came to the shop as usual at 9 a.m and noticed missing of the lock. Being scared of the same, he opened the shop and noticed missing of the mobile phones from his shop. Immediately, he went to the police station and lodged a complaint as per Ex.P1. To that effect, the prosecution relies upon the panchanama of the scene of offence as per Ex.P7, so also, recovery of the invoices of the said mobile phones at Exs.P2 to P6. IO has spoken about the panchanama, so also, has prepared the sketch of the scene of offence which is annexed with Ex.P7. These documents coupled with the evidence of PW.1 and IO, do establish about missing of the mobile phones from the shop of the complainant. That means, there was a theft of the mobile phones in the manner alleged by the prosecution which were the subject matter of seizure by the police marked at

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MO.Nos.1 to 9 before the trial Court. Thus, the theft of the said mobile phones is duly proved by the prosecution.

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Merely because, prosecution is able to establish the theft of the said mobile phones from the shop of the complainant, it does not mean that the mobile phones have been stolen by these accused persons. Prosecution relies upon Ex.P8, the seizure panchanama. According to the prosecution, about 8 mobile phones have been seized from the possession of accused Abdul Razak and 2 mobile phones were seized from accused Mohammed Rafik. To that effect ,it is stated in the Ex.P8 - the seizure panchanama. After seizure of the same, again the complainant was called to the police station and recorded his further statement as per Ex.P10 on 11.02.2009, i.e., almost after three months of the alleged filing of the complaint by the complainant. Now, we have to ascertain that whether the prosecution is able to establish that it is accused and accused alone committed the offence of theft

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of the mobile phones in the manner alleged by the prosecution.

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So far as evidence of PW.1 is concerned, evidently he is the owner of the shop from whose shop these mobile phones were stolen. To that effect the evidence of PW.1 is to be accepted. He filed a complaint about missing of the said mobile phones as per Ex.P1. He identifies MO.Nos.1 to 9 which were shown to him in the police station by the police. To that effect, I believe the evidence of PW.1.

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PW.2 - Babu Nagesh Pujari is one of the panchas to Ex.P7 - the scene of offence panchanama wherein in his presence, the police have conducted the panchanama of the scene of offence. Though he has been directed with cross-examination by the defence, but, his presence at the time of preparing the panchanama Ex.P7 is not disputed by the defence. Therefore, his presence at the time of preparing panchanama Ex.P7, the evidence of this witness is to be believed.

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PW.3 - Dastagirsab Fakrusab Indaginal is a seizure pancha to Ex.P8. But, he has been turned hostile. Though the learned prosecutor declared him as hostile witness and cross-examined at length but, nothing worth is elicited from his mouth so as to disbelieve his version given in the examination-in-chief. He also has been crossexamined by the defence. According to his crossexamination so directed by the defence, he states that he cannot say that on which date the said panchanama was written. According to him because of the stealing of mobile phones from the shop of the complainant, the said panchanama was written. He states that in all 8 mobile phones were seized but, as per Ex.P7, there were 11 mobile phones. He states that the said mobile phones were seized near the bus stand gate but, the evidence of other witnesses is otherwise. He has not dictated the terms of the said panchanama. Therefore, the evidence of this PW.3 if looked into, his evidence does not inspire any confidence that he was very much present when Ex.P8 was prepared.

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PW.4 - Rizwan Shabbir Ahamed is another

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pancha. The prosecution much relies upon the evidence of PW.4 to prove that, he was very much present when the panchanama Ex.P8 was prepared. According to his evidence, he identifies accused who were present before the Court and another person, who was found holding plastic bags and police were enquiring them. When enquired, they have told that they are selling the mobile phones. But, he has not stated that, in whose hands the said plastic bags were there. There were 8 mobile phones in the said bag. They were of Motorola, Nokia and Razor company mobile phones and he cannot say the value of the said mobile phones. He has put the signature to the panchanama as per his evidence. He identified them as MO.Nos.1 to 10.

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He has been cross-examined by the defence. According to him, he cannot say the date of the said sale of the mobile phones by the accused persons. About three years back, they tried to sell the mobile phones. Further

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he states that, the police informed about the panchanama but, did not read over the same to him and he put his signature on the same. The panchanama was prepared in a busy locality. He cannot say that who has signed along with him as a pancha. Thus, if the evidence of PW.4 is scrupulously perused, he too is not consistent about seizure of 11 mobile phones from the possession of the accused, so also, he states about seizure of only 9 mobile phones. No doubt, when a witness is examined belatedly, such evidence is expected, but, to prove that, really those mobile phones were seized from the possession of the accused in the manner alleged by the prosecution, except the self-serving evidence of the IOs, there is no evidence placed on record by the prosecution. The evidence of this PW.4 do not inspire confidence that, he was present when the mobile phones were seized.

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PW.5- Prakash Krishna Patel was an employee

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of the complainant and he speaks with regard to the missing of the mobile phones and after four months of

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filing a complaint it was revealed to the owner that the accused were caught hold who have committed theft of the mobile phones. Thereafter, they went to the police station and identified the accused. As he is not a signatory to any of the panchanamas, his evidence can be accepted to the extent that he was an employee of the complainant and he noticed about missing of the mobile phones, so also, getting information about catching hold of the persons who have committed the theft of the mobile phones. To that extent, I believe his evidence.

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PW6 - Nurulla Usmansab Sheik was also an employee of the complainant and he too states with regard to the missing of the mobile phones from the shop of the complainant. He states with regard to the value of the said mobile phones, so also, identifies them as MO nos.1 to 9. To that extent, his evidence is to be accepted.

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PW7 - Jatteppa Yallappa Samagar was the ASI

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has registered the crime and set the criminal law in motion. Prepared the panchanama of the scene of the

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offence as per Ex.P7. To the extent of registering the crime and setting the criminal law in motion, his evidence is to be believed.

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PW8- Sadashiv Vittal Koli he is the person who

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has caught hold the accused persons on receipt of the information according to his evidence. But, the persons who were very much present when the seizure was conducted, one of them turned hostile and another witness has not supported the case of prosecution in material particulars. Therefore, he being the police officer, unless there is a corroborative evidence to the evidence of this PW8, the evidence of PW8 becomes formal in nature.

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PW9 - R.S.Chodhari, was IO and who has made

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investigation and filed a charge sheet. In the absence of corroborative evidence. In all criminal cases panchas are the authors of the panchanama and Investigating Officers are the supervisors of the investigation. Unless there is corroborative evidence with regard to the proof of recovery as well as seizure of the same from the

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possession of the accused, it is hard to believe that the evidence of such witnesses is to be accepted. In a case of present nature, subject matter of the theft plays an important role. In this case, except the self- serving evidence of PW.8, there is no other evidence placed on record by the prosecution. Therefore, though the learned trial Court and the First Appellate Court have appreciated and re-appreciated the evidence of the witnesses, but, the very seizure of the mobile phones is not only proved in accordance with law. We find a very weak evidence adduced by the prosecution. In the absence of acceptable evidence from the prosecution, it is hard to believe that it is accused persons who have committed the offences in the manner alleged by the prosecution. Therefore, there arises a doubt of the case of the prosecution and that benefit of doubt has to be extended to the accused. Accordingly, the above point is answered in the affirmative. Accordingly, accused Nos.1 and 2 being the petitioners in this revision are entitled for acquittal by giving benefit of doubt . Resultantly, I pass the following:

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ORDER

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i) The revision petition is allowed.

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ii) The judgement of conviction and order of sentence passed dated 26.02.2013 passed in CC No.350/2009 by the Additional JMFC, Mudhol, confirmed in Crl.A No.31/2013 dated 22.10.2016 by the I Additional District and Sessions Judge, Bagalkot (sitting at Jamakhandi) are hereby set aside.

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iii) Consequentially, the petitioners-accused are acquitted of the charges under Sections 457 and 380 of the IPC.

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iv) Their bail bonds stand cancelled. v) They are set at liberty. vi) Send back the trial Court records along with a copy of this judgment forthwith.

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vii) Send the order portion of judgment to the trial Court and learned First Appellate Court for compliance through mail.

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Sd/(RAMACHANDRA D. HUDDAR) JUDGE

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PJ/VMB/SK -ct-an List No.: 1 Sl No.: 22

Abdul Rajak S/O Peersab Tamboli v. the State of Karnataka

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Abdul Rajak S/O Peersab Tamboli v. the State of Karnataka

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