Research › Search › Judgment

Karnataka High Court · body

2017 DIGILAW 225 (KAR)

State v. K. C. Siyaz

2017-02-01

BUDIHAL R.B.

body2017
ORDER : Budihal R.B., J. This is the revision petition preferred by the State, challenging the legality and correctness of the judgment and order of acquittal dated 24th March, 2007 passed by the JMFC Court at Madikeri in C.C.No.388/2005 and also the order dated 19th September, 2014, passed by the I Additional District and Sessions Judge, Kodagu at Madikeri in Crl. Appeal No.22/2008. 2. The Trial Court acquitted the respondents/ accused for the alleged offence under Section 379 read with Section 34 of IPC. 3. Brief facts of the prosecution case as per the complaint averments, that on 9.10.2004 at about 10.00 p.m., accused Nos. 1 to 4 with a common intention of committing theft have stolen two electric poles and three line wires installed to seven electric poles fixed at Korangala Reserve Forest. They have cut the electrical poles with axe blades and converted them into eight pieces and thereby, stolen the articles worth Rs.15,000/-. The accused persons have sold eight pieces of electric poles to CW4 and thereby, they have committed alleged offence. After investigation, IO filed the charge-sheet for the said offences. To prove its case, the prosecution in all examined 8 witnesses as PWs 1 to 8, produced the documents at Exs.P1 to P14 and material objects MOs 1 to 3 got marked and for the defence, no witnesses examined nor any documents produced. After considering the material placed on record, learned JMFC, Madikeri, acquitted the accused Nos. 1 to 3 holding that prosecution has utterly failed to prove its case beyond reasonable doubt. Aggrieved by the same, the State preferred the appeal before the Appellate Court. As there was a delay in preferring the appeal, application was also filed praying to condone the delay. The learned Sessions Judge, after considering the grounds made out in the application so also the affidavit, ultimately, rejected the application seeking condonation of delay and consequently, the appeal was also closed. Being aggrieved by the same, State is before this Court in this revision petition. 4. Heard learned High Court Government Pleader for the Revision Petitioner's/State. 5. Learned High Court Government Pleader made the submission, that looking to the materials and the evidence placed before the Trial Court, the prosecution proved its case beyond all reasonable doubt. But even then, the Trial Court, wrongly held that prosecution failed to prove its case. 4. Heard learned High Court Government Pleader for the Revision Petitioner's/State. 5. Learned High Court Government Pleader made the submission, that looking to the materials and the evidence placed before the Trial Court, the prosecution proved its case beyond all reasonable doubt. But even then, the Trial Court, wrongly held that prosecution failed to prove its case. Hence, he submitted, whatever the evidence adduced by the prosecution through the mouth of prosecution witnesses, clearly goes to show that case has been made out as against accused persons. Hence, he submitted that Trial Court is not correct in disbelieving the evidence adduced by the prosecution and ultimately to acquit the accused Nos. 1 to 3. So far as the order of the First Appellate Court on the delay application also, he made the submission that there is a delay of more than 192 days, but sufficient cause has been shown by the State as to why the appeal was not presented within the time and in spite of such sufficient cause has been shown, wrongly, the First Appellate Court rejected the application and thereby dismissed the appeal. Hence, he submitted that even the order passed by the First Appellate Court is also not sustainable in law. Hence, he submitted, matter requires consideration in this revision petition. 6. Learned counsel appearing for respondent called out absent. No representation. 7. Perusing the judgment of the Trial Court, the Trial Court discussed the oral evidence of parties in detail. After the elaborate discussion with regard to the oral evidence adduced so also the documents produced in the case, the Trial Court held that prosecution has not proved its case to the satisfaction of the Court. Referring to the evidence of Panch witnesses PWs 5 and 6, they have identified their signature on Ex.P5, but as discussed by the Trial Court, it has observed that they categorically stated that no articles were seized in their presence. Therefore, the seizure of two bundles of wires and MO.3 by conducting Ex.P5, mahazar on the information given by the accused persons is not satisfactorily proved by the prosecution. Hence, it is observed by the Trial Court that the evidence of PWs 5 and 6 is also not helpful for the prosecution to prove the seizure mahazar, Ex.P5. Therefore, the seizure of two bundles of wires and MO.3 by conducting Ex.P5, mahazar on the information given by the accused persons is not satisfactorily proved by the prosecution. Hence, it is observed by the Trial Court that the evidence of PWs 5 and 6 is also not helpful for the prosecution to prove the seizure mahazar, Ex.P5. The further observation made by the Trial Court in its judgment that the recitals of Ex.P5 discloses that the said mahazar was conducted in the presence of PWs 5 and 6 at Korangala Reserve Forest, that is the place of incident. In spite of this, PWs 5 and 6 have not stated anything that their signatures were obtained at the place of incident. Therefore, looking to the evidence of PWs 5 and 6, it clearly goes to show and as observed by the Trial Court, the seizure mahazar and seizure of articles under Ex.P5 was not at all satisfactorily proved by the prosecution. It is also the observation of the Trial Court in para-19 of its judgment, that PWs 2 and 3 proved about the occurrence of the incident and drawing up of the spot mahazar. But the seizure of the articles from the custody of accused No.1 and place of incident is not proved satisfactorily. It is also the observation of the Trial Court that voluntary statement of accused Nos. 1 to 3 cannot be used for proving the guilt against them, but the same can be considered for the limited purpose of discovery of any fact. The Trial Court has observed as the panch witnesses of the seizure mahazar have not supported the prosecution case, the same is fatal to the prosecution case and when the seizure mahazar itself is not proved, the guilt of the accused against accused Nos. 1 to 3 is also not proved as held by the Trial Court. 8. Therefore, looking to the judgment and order passed by the Trial Court, the Trial Court considered each and every aspect of the matter, both oral and documentary extensively and come to the right conclusion in holding that prosecution failed to prove its case and thereby acquitted accused Nos. 1 to 3. Even looking to the order passed by the First Appellate Court on the application for condonation of delay, I do not find any illegality in the said order also. 1 to 3. Even looking to the order passed by the First Appellate Court on the application for condonation of delay, I do not find any illegality in the said order also. Therefore, there is no merit in this revision petition. Accordingly, the same is hereby dismissed.