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2019 DIGILAW 2260 (KAR)

Mijibulla @ Majju v. State of Karnataka

2019-12-09

K.SOMASHEKAR

body2019
ORDER : 1. This petition is filed by the accused - petitioners herein seeking for a direction to set aside the order dated 19.08.2011 passed by the Appellate Court in Crl.A.No. 105/2010 confirming and modifying the order of conviction and sentence passed by the Trial Court in C.C.No. 1012/2009 dated 06.10.2010. By the said order of the Trial Court, the petitioners were convicted for the offence punishable under Section 384 IPC and were sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- each. The Appellate Court by its order dated 19.08.2011 confirmed the said order of the Trial Court and modified the conviction to the effect that the accused is convicted under Sections 384, 511 read with Section 34 IPC and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/-. 2. Heard the learned counsel for the petitioners and the learned HCGP for the respondent - State. 3. Factual matrix of the case of the prosecution is that on 14.12.2008 at about 6.30 p.m. when the complainant Jayachandran, a Pawn Broker by avocation was sitting in his shop situated on NST Road, two unknown persons had come to the shop and demanded the complainant to give them Rs.500/- or else that they would harm him. In the process, they had dragged the complainant and tried to grab the amount from him. But however, since the complainant had screamed, neighbouring shop owners at once came to his rescue and caught hold of those two persons. They were then taken to the police station and since the accused had given life threat demanding Rs.500/-, the complainant lodged a complaint. The I.O. registered a case against the accused under Section 384 IPC, conducted the spot mahazar and recorded the statements of witnesses and filed a charge-sheet. The Trial Court then framed charges under Sections 384, 511 read with Section 34 IPC. Subsequent to filing charges against the accused for the aforesaid offences, the prosecution examined in all six witnesses as PW1 to PW6 and got marked documents at Exhibits P1 to P5. The contradictory statements of PW-4 were got marked at Exhibit D1. PW-1 is the author of the complaint which was filed as per Exhibit P1. The spot mahazar Exhibit P2 was laid by the I.O. in the presence of PWs 1, 2 and 3. The contradictory statements of PW-4 were got marked at Exhibit D1. PW-1 is the author of the complaint which was filed as per Exhibit P1. The spot mahazar Exhibit P2 was laid by the I.O. in the presence of PWs 1, 2 and 3. PWs 4 and 5 who were the eye-witnesses had given statements before the I.O. during the course of examination that these witnesses were also subjected to examination on the part of the prosecution in order to prove the guilt of the accused. Subsequent to closure of the evidence of the prosecution, the accused were examined as required under Section 313 Cr.P.C. where the accused had denied the truth of the evidence of the prosecution witnesses. But the accused did not come forward to adduce any defence evidence as contemplated under Section 233 Cr.P.C. Subsequently, after hearing the arguments of the prosecution and the defence counsel, the Trial Court convicted the accused by judgment dated 06.10.2010 and sentenced them to undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- each. Being aggrieved by the said judgment of conviction and sentence passed by the Trial Court, the petitioners preferred an appeal before the Appellate Court in Crl.A.No. 105/2010, which came to be dismissed by order dated 19.08.2011 thus confirming the judgment of conviction and sentence passed by the Trial Court. It is these judgments which are under challenge in this petition by the petitioners, urging various grounds. 4. Learned counsel Shri Umesh P.B. appearing for the petitioners has taken me through the evidence of PW-1, the author of the complaint at Exhibit P1. He has narrated in his complaint relating to unknown persons - petitioners herein having come to his Pawn Broker shop situated in the scene of crime and having demanded him to provide Rs.500/-. As there was an altercation, certainly there would have been some damage to the pawn broker's shop. But however, during the course of investigation by PW-6 I.O. who laid the charge-sheet, did not seize any damaged articles from the pawn broker shop run by the complainant. The I.O. had drawn the spot mahazar as per Exhibit P2 in the presence of the complainant PW-1 as well as in the presence of PWs 2 and 3, appears that there are clouds of doubt. The I.O. had drawn the spot mahazar as per Exhibit P2 in the presence of the complainant PW-1 as well as in the presence of PWs 2 and 3, appears that there are clouds of doubt. PW2 and PW3 said to be panch witnesses have been secured by PW-6 and in their presence spot mahazar Exhibit P2 has been drawn, but they did not spell out specifically regarding identification of unknown persons said to be accused and also that they had extended threat to extort money of Rs.500/-. PW4 and PW5 said to be eye-witnesses and they were neighbouring shop owners who were acquainted to PW1. Hence, certainly they are interested witnesses and naturally they have supported the case of the prosecution. But the evidence of PW-1 relating to the facts at Exhibit P1 and so also the fulcrum of Exhibit P2 of the spot mahazar said to be conducted by PW6 in the presence of those panch witnesses and so also recording the statement of PW4 and 5 are found to be clouds of doubt. Therefore, theory of the prosecution has not been properly appreciated either by the Trial Court in C.C.No. 1012/2009 or re-appreciated by the First Appellate Court in Crl.A.No. 105/2010 dismissing the appeal and confirming the judgment of conviction and order of sentence. He further contends that the prosecution has miserably failed to prove the guilt of the accused by putting forth ingredients of the offence under Section 384 read with Section 511 read with section 34 IPC. The last limb of argument advanced by the learned counsel for the petitioners is that though Exhibit P2, the spot mahazar has been conducted and even though there was damage caused to the pawn broker shop run by PW-1, no articles were seized by the I.O. during the course of investigation under Exhibit P2 of the spot mahazar. That itself indicates that the prosecution has set up a theory to prosecute a case against these accused. Even though this is a petition filed under Section 397 read with 401 Cr.P.C. the same requires to be dealt with as an appeal under Section 386 Cr.P.C. Therefore, in this criminal revision petition, it requires to re-appreciate the entire evidence of PW1 to PW6 and so also documents marked on the part of the prosecution at Exhibits P1 to P5 including the contradictory statements of PW-4 at Exhibit D1. Hence, on all these grounds, the learned counsel for the petitioners prays that the petition be allowed and the impugned order passed by the Trial Court which has been affirmed by the Appellate Court be set aside. 5. Per contra, learned HCGP for the respondent-State supports both the impugned orders of the Trial Court as well as the Appellate Court and contends that the courts below, on a careful consideration of the evidence as well as the material on record, have rightly convicted the accused-petitioners herein and hence the judgment of the Trial Court also affirmed by the Appellate Court being just and proper, needs no interference in this petition. 6. On a careful consideration of the contentions advanced by the learned counsel for the petitioners-accused and the learned HCGP for the State and on a careful scrutiny of the material on record, it is relevant to refer to the evidence of PW 1. It is seen that PW 1 has specifically stated in his evidence that there were no witnesses at the time of the incident. But the Trial Court has ignored this fact and believed the evidence of other witnesses. PW2 and PW3 are said to be panch witnesses secured by PW-6 Investigating Officer who drew the spot mahazar as per Exhibit P2 in the presence of PW1 and so also in the presence of PW2 and PW3. Though the incident had taken place as alleged in the complaint in the shop of PW1 situated on NST road, both the accused came to the place and gave him life threat demanding him a sum of Rs.500/-, but the currency notes of Rs.500/- has not been seized by the Investigating Officer during the course of investigation. Further, the same has not been in detail described in Exhibit P2 spot mahazar said to be conducted by the I.O. It is further noticed in the evidence of PW6 that he is the I.O. who has subjected to examination and cross-examination of PWs 2 and 3. Nothing worthwhile on the part of the prosecution has been established relating to breaking of glasses in the shop belonging to PW1 and so also in the evidence of the neighbouring shop owners of PW-1 who were examined as PWs 4 and 5 who had rushed to the scene of crime. Nothing worthwhile on the part of the prosecution has been established relating to breaking of glasses in the shop belonging to PW1 and so also in the evidence of the neighbouring shop owners of PW-1 who were examined as PWs 4 and 5 who had rushed to the scene of crime. PW-1 has specifically stated in his evidence that he has not given written complaint to the police to initiate the case against the accused said to be unknown persons. It is thereafter that the accused have been apprehended by the neighbouring shop owners PWs 4 and 5. Thereafter on the say of PW-1, the complaint has been reduced into writing by recording an FIR. Though complaint has been given stating that unknown persons had entered the shop and demanded him Rs.500/-, but however, the I.O. did not make an endeavour to record the voluntary statement of the accused and based on the statement of the accused should have gathered the material from the accused and only then should have drawn the spot mahazar as per Exhibit P2. Further, the evidence of PWs 4 and 5 the eye-witnesses has not been appreciated by both the courts below in a proper perspective having regard to the fact that they were acquainted with the complainant PW1. 7. Hence, at a cursory glance of the evidence of the witnesses PWs 1, 2 and 3 as well as Exhibit P2 spot mahazar said to be conducted by PW6, I am of the opinion that the prosecution has not put forth positive, corroborative and cogent evidence in order to prove the guilt of the accused. Hence, the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. Since the said evidence has not been appreciated by the trial court as well as appellate court in a proper perspective, it has resulted in a miscarriage of justice. Hence, benefit of doubt shall certainly accrue in favour of the accused. Hence, I am of the opinion that the prosecution has failed to establish the guilt of petitioner-Accused for the offence under Sections 384, 511 read with Section 34 IPC, beyond all reasonable doubt. Consequently, the petitioners deserve to be acquitted. Accordingly, I proceed to pass the following: ORDER: Crl.RP.No.981/2011 preferred by Accused -petitioners 1 and 2 under Section 397 read with Section 401 Cr.P.C. is hereby allowed. Consequently, the petitioners deserve to be acquitted. Accordingly, I proceed to pass the following: ORDER: Crl.RP.No.981/2011 preferred by Accused -petitioners 1 and 2 under Section 397 read with Section 401 Cr.P.C. is hereby allowed. Consequently, the judgment rendered by the First Appellate Court in Crl.A.No. 105/2010 dated 19.08.2011 dismissing the appeal and confirming the judgment of conviction and order of sentence rendered by the Trial Court in C.C.No. 1012/2009 dated 06.10.2010 is hereby set-aside. The accused-petitioners herein are acquitted for the offence punishable under Sections 384, 511 read with Section 34 IPC. If any fine amount is deposited, the same shall be refunded to the petitioners, on proper identification. Bail bonds if any executed by the petitioners, shall stand cancelled.