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2013 DIGILAW 35 (KAR)

State through University v. Nagappa

2013-01-04

MOHAN M.SHANTANAGOUDAR

body2013
JUDGMENT Mohan Shantanagoudar, J : By the impugned order, the Court below has closed the Special Case No.35/2008. Consequently, acquitted the accused/respondent herein. 2. The records reveal that all the five accused including the respondent herein in furtherance with the common intention, allegedly cut and removed and committed theft of aluminium electrical wire fixed on the electrical poles situated in the land bearing Sy.Nos.65 and 66 belonging to CW7 during night hours of 21.03.2006 and took away the said aluminium wire. Thus the accused allegedly committed the offence punishable under Section 379 of IPC read with Section 149 of IPC and under Section 136 of Electricity Act. The case against the respondent (accused No.5) was split up, however, as against accused Nos. 1 to 4, the trial went on in S.C.No.27/2007. The Trial Court after hearing, acquitted the accused by the judgment and order dated 13.10.2008. 3. While acquitting the accused, certain observations were made in favour of the respondent herein also. Certain of the observations are as under: "This Court has ordered for registering split-up case against absconding accused No.5. On perusal of entire prosecution evidence there is no any incriminating evidence against the accused No.5, only on the statement of co-accused Nos. 1 to 3 this accused No.5 implicated in the above case. Even there is no evidence for proceeding under Section 299 of Cr.P.C. against absconding accused No.5, hence it is ordered to close the split-up case registered against accused No.5 and seized MO1 aluminium wire belongs to KPTCL ordered to be return to complainant". By reading of the judgment of the Trial Court in Special Case No.27/2007, it is clear that no material is collected by the prosecution against all the accused including the respondent herein. In addition to the same, it is to be noted that this respondent is arrayed as accused only on the statement of the co-accused Nos. 1 to 3. No independent material is collected against accused No.5 (respondent herein). The confession of the accused before the Police is inadmissible except for the recovery under Section 27 of the Evidence Act. In the matter on hand, no recovery is made from any of the accused. No material is collected against the respondent herein. Under such circumstances, the Trial Court was justified in closing the matter against the respondent herein also. 4. In the matter on hand, no recovery is made from any of the accused. No material is collected against the respondent herein. Under such circumstances, the Trial Court was justified in closing the matter against the respondent herein also. 4. It is no doubt true that the Court below should have assigned detailed reasons while closing the matter. It should have mentioned as to why the closure of the case is necessary against the concerned accused. The order of the Court below is cryptic. Be that as it may, even if the matter is remitted to the Court below, no useful purpose will be served, it is a waste of judicial time. In view of the above, this Court declines to entertain the petition. Accordingly, the petition fails and the same stands dismissed at the stage of admission. This Court places on record the valuable assistance rendered by Sri Anil Kumar Navadagi, learned Amicus Curiae. He should be paid Rs. 4,000/ - as honorarium.