B R Ashwath vs The State of Karnataka Represented by Station House Officer Sakaleshpur Rural Police Station

This revision petition is filed challenging the legality and correctness of the judgment and order of conviction dated 19.11.2007 passed by the JMFC, Sakleshpur, in C.C. No.627/2005 and also the judgment and order dated 12.08.2010 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court, Hassan in Crl. Appeal No.142/2007.

Brief facts of the prosecution case as per the averments made in the complaint (Ex.P.1) are that the accused person was found with arrack sachets with him on 06.04.2005 and on credible information, the officers of the Excise Department (P.Ws.1, 6 and 7) went to the spot. After seeing the said officers, the accused person threw the plastic bag containing the arrack sachets. Further, it is alleged in the complaint that the accused criminally intimidated them by holding a long in his hands. Therefore, a complaint was lodged against him alleging that the accused person had criminally intimidated by obstructing the Government servants from discharging their duty. On the basis of the said complaint a case came to be registered for the offences punishable under Sections 353 and 506 of IPC. Thereafter, the investigating officer conducted the investigation and filed the charge sheet against the accused.

The prosecution, in order to prove its case, in all examined the witnesses P.Ws.1 to 7 and produced the documents as per Exs.P.1 to P.5 and got marked one material object-long as per M.O.1. On the side of the defence, neither the witnesses were examined nor the documents were produced. After considering the materials, both oral and documentary, the trial Court convicted the revision petitioner-accused for the said offences. When the accused preferred an appeal before the first appellate Court, the first appellate Court after, re-appreciating the materials placed before it, has partly allowed the appeal. Though conviction was confirmed by the first appellate Court, the sentence was modified.

The trial Court sentenced him to undergo rigorous imprisonment for one year and the fine of Rs.5,000/- for the offence punishable under Section 353 of IPC, in default to pay the fine amount, he shall undergo simple imprisonment for three months. The trial Court further sentenced him to undergo rigorous imprisonment for one year and the fine of Rs.5,000/- for the offence punishable under Section 506 of IPC, in default to pay the fine amount, he shall undergo the simple imprisonment for three months. However, the first appellate Court has reduced the sentence of one year into six months in respect of both the offences, but the fine of Rs.5,000/- is retained.

Heard the arguments of learned Counsel appearing for the revision petitioner-accused and the learned HCGP appearing for respondent- State.

Learned Counsel appearing for the revision petitioner submitted that the weapon said to have been used by the accused, in this case, is marked as M.O.1 and it was said to have been seized in the presence of panch witnesses (P.Ws.3 and 4) under the seizure mahazar (Ex.P.4). It is his submission that both the panch witnesses (P.Ws.3 and 4) have turned hostile and have not supported the case of prosecution. It is also his submission that regarding the spot mahazar (Ex.P.3), a witness (P.W.2) was examined and he has also turned hostile and not supported the case of prosecution. The learned Counsel submitted that the investigating officer who conducted the investigation of this case has also not been examined in the case. Neither the spot mahazar (Ex.P.3) nor the seizure mahazar (Ex.P.4) has been proved with satisfactory material. It is also his submission that the trial Court as well as the first appellate Court have relied upon the evidence of P.Ws.1, 6 and 7 and they are none other than the officers of the Excise Department. He further submitted that the evidence of P.Ws.1, 6 and 7 is not trust worthy and the Courts below ought not to have been relied upon the evidence of these witnesses and ought not have convicted the revision petitioner for the said offences. During the course of his submission, the learned Counsel has taken this Court to the oral evidence of the prosecution witnesses and the other materials placed on record and accordingly, submitted that the judgment and order of the trial Court as well as the first appellate Court are not sustainable and they are not in accordance with the materials placed on record and both the Courts have wrongly read the evidence and thereby passed the wrong judgment. Hence, the learned Counsel submitted to allow the revision petition and to set aside the judgment and orders of the Courts below by acquitting the revision petitioner.

Per contra, learned HCGP appearing for respondent during the course of the arguments made submission that though the witnesses to the seizure mahazar (Ex.P.4) so also the witness (P.W.2) to the spot mahazar (Ex.P.3) have turned hostile and though the investigating officer is not examined in this case, still it is not fatal to the prosecution case. P.Ws.1, 6 and 7 are the eye witnesses to the incident in whose presence the incident took place and they have consistently supported the case of prosecution. Hence, he submitted that there are concurrent findings of the Courts below. Both the Courts have considered the entire materials properly and came to the conclusion that there is no illegality in the judgment of the Courts below. It is the submission of the learned HCGP that this proceeding being the revision petition and as the scope is limited so far as the factual aspect is concerned, unless and until grave illegality has been pointed out, this Court cannot consider the factual aspect in detail either to modify or to set aside the judgment of the Courts below. Lastly, the learned HCGP made the submission that there is no merit in the revision petition and the same is to be dismissed.

I have perused the grounds urged in the revision petition, the judgment and order of conviction passed by the trial Court, the judgment and order passed by the first appellate Court dismissing the appeal and confirming the judgment of the trial Court. I have considered the submissions made by the learned Counsel for both sides made at the Bar.

Before coming to the merits of the matter, it is no doubt true that as submitted by the learned HCGP, in case of the revision petition, the scope is limited. Unless it is shown that there is illegality in the judgment and orders of the Courts below, this Court cannot interfere. If there is illegality committed by the Courts below or if the relevant materials were ignored or if irrelevant material is taken into consideration by the Courts below, this Court can certainly interfere in such matters to set right the things and to do justice to the parties.

Let me consider the judgment and orders of the Courts below with reference to the materials placed on record to know as to whether such illegality as alleged has been committed by the Courts below in this case.

As per the complaint averments, on credible information, when the three officers of the Excise Department (P.Ws.1, 6 and 7) had been to the spot at 7.30 p.m., the accused person was having arrack sachets. After seeing P.Ws.1, 6 and 7, the accused threw the sachets and he threatened the said officers by showing the long (M.O.1) to them and thereafter, he thrown the long at the said place and ran away. As per the case of prosecution, on the next day in between 1.00 p.m. and 2.00 p.m., the spot mahazar (Ex.P.3) was conducted and looking to the spot mahazar, it is clearly mentioned that the complainant-Shankarappa has shown the spot. Even it is mentioned in the said mahazar (Ex.P.3) that he has shown the place at which the accused person threatened them with the long (M.O.1). But at the same time, it is also mentioned in the spot mahazar that no material objects were found at the spot. As per the submission made by the learned HCGP, P.Ws.1, 6 and 7 are the eye witnesses to the incident and their evidence is rightly relied upon by the Courts below and it is to be accepted. However, the material object-long (M.O.1) also ought to have been seized from the place of incident while conducting the spot mahazar (Ex.P.3) but the same is not done in this case. It is also not the case of prosecution that this M.O.1 was seized at least in connection with another case registered under the excise Act in Crime No.31/2004-05. If really, as per the evidence of P.Ws.1, 6 and 7, the accused had shown the long, threatened them and threw it at the said place and ran away, then while conducting the spot mahazar and at the time of the seizure of arrack sachets, definitely, this weapon would have been seized by the prosecution under the very mahazar itself. Therefore, the evidence of the prosecution witnesses P.Ws.1, 6 and 7 that the accused thrown the long at the said place and ran away is difficult to be accepted by the Court. On the contrary, it is the further case of the prosecution that after one month of the incident, when the investigating officer went to the accused person, the investigating officer asked the accused as to where is the long (M.O.1) and at that time, the accused gave the voluntary statement and produced the long by bringing it from his shop and produced before the investigating officer on 5.6.2005 which was also seized under the seizure mahazar (Ex.P.4). Referring to the seizure spot mahazar (Ex.P.4), it is mentioned that P.Ws.3 and 4 are the witnesses for the said mahazar. But they have not supported the case of prosecution. The investigating officer was also not examined before the Court. Apart from that, when it is the evidence of P.Ws.1, 6 and 7 that the accused thrown the long (M.O.1) at the spot itself and ran away from the said place, the question of asking the accused regarding the whereabouts of the long (M.O.1) by the investigating officer does not arise. This clearly goes to show the falsity in the case of prosecution so far as the offences punishable under Sections 353 and 506 of IPC is concerned. The trial Court has observed in its judgment that P.Ws.1, 6 and 7 have deposed and identified M.O.1. The proper witnesses for identification of M.O.1 are P.Ws.3 and 4 or else the investigating officer. But P.Ws.3 and 4 have not supported the mahazer evidence for the seizure and the investigating officer, in spite of giving sufficient opportunity, as observed by the trial Court, was not examined before it. It is also the case of prosecution that after throwing the long (M.O.1) at the place of incident, the accused ran away in the darkness. So this goes to show that there was darkness. Therefore, in view of these surrounding circumstances and the materials which I have already discussed above, it is difficult to accept the version of P.Ws.1, 6 and 7 that the accused threatened them by showing the long (M.O.1), threatened them and ran away from the said place. It is no doubt true that even if the investigating officer is not examined, but if the available material is sufficient and it is trust worthy, the conviction can be passed by the trial Court. But, here in the case on hand, absolutely, there is no supporting material except the evidence of P.Ws.1, 6 and 7 about whose evidence, reasonable doubt arises in the mind of the Court of their presence in the spot when the alleged incident said to have been taken place. In the evidence of P.W.7, during the course of cross examination, it has come on record that public have also witnessed the incident. But the said witnesses were not at all brought before the Court to give evidence in support of the case of prosecution. Even the investigating officer has not recorded the statement of those witnesses during the investigation. All these important material aspects were completely ignored by the trial Court and the trial Court passed the judgment assuming certain things and go on making discussion on such assumption.

I have also perused the judgment of the first appellate Court. The first appellate Court, being the Court of facts and law, ought to have made reference to the entire material, both oral and documentary. Looking to the judgment and order of the first appellate Court, it has not referred to the evidence of each of the witnesses and the documents. But by making brief discussion, it has endorsed its views to that of the trial Court regarding the conviction of the accused and modified the sentence. Looking to the materials placed on record, the prosecution has not proved its case beyond all reasonable doubt. The doubt arises in the mind of the Court about the case of prosecution and the benefit of doubt will have to be given to the revision petitioner. Though it is argued that the scope of revision petition is very limited, but in view of the legal infirmities committed by the Courts below in passing the judgments, this Court can certainly interfere with the judgment and orders of the Courts below.

Therefore, the revision petition is allowed. The judgment and order of conviction passed by the trial Court so also the judgment and order of first appellate Court are hereby set aside. The accused is acquitted of the offences punishable under Sections 353 and 506 of IPC. The bail bond of the revision petitioner-accused stands cancelled. The fine amount deposited if any be refunded to the revision petitioner.