Babu vs State

A.S. Pachhapure, J.—The petitioner has challenged his conviction and sentence ordered by the trial Court for the offence punishable under Section 78(3) of the Karnataka Police Act [hereinafter referred to as "the K.P. Act" for short], on a trial held by the learned Magistrate and confirmed in the appeal.

On 04.08.2007 at 3.00 p.m., in Arasikere Town, near Kitturu Rani Chennamma Circle, the petitioner herein having stood in the public place at the park and called the people nearby to pay Re.1-00 and to get Rs. 70-00 by betting and thereby committed an offence punishable under Section 78(3) of the K.P. Act.

M.O. 1-cash of Rs. 110-00, M.O. 2-a ball pen and M.O. 3- matka chit were seized from the petitioner and after registration of the crime, investigation was held by P.W. 3, who recorded the statements of the witnesses and on completion of the investigation, a charge-sheet was laid against the petitioner for the aforesaid offence.

During the trial, P.Ws. 1 to 5 were examined and in their evidence Exs. P1 to 5 and M.Os. 1 to 3 were marked.

After recording the statement of the petitioner under Section 313 Cr.P.C., the trial Court heard counsel for the parties and on appreciation of the evidence, convicted the petitioner for the aforesaid offence and ordered him to undergo imprisonment for 3 months and to pay a fine of Rs. 300-00, in default, to undergo simple imprisonment for 15 days. Aggrieved by the conviction and sentence, the petitioner approached the appellate Court in Crl.A. No. 29/2008, which came to be dismissed, affirming the conviction and sentence. Aggrieved by the concurrent findings of the courts below, the present revision petition is filed.

I have heard learned counsel for the petitioner and also learned High Court Government Pleader.

The perusal of the material placed on record would reveal that P.Ws. 1 and 4 are the attesting witnesses to the mahazar-Ex. P1. Both these witnesses have turned hostile to the prosecution and there is nothing in their evidence to support the case put-forth. P.Ws. 2 and 5 are the Police Constable and PSI., who had the credible information and went to the circle and found the petitioner with M.Os. 1 to 3 and the petitioner at that time, is said to have called the public to participate in the "matka" to get Rs. 70-00 by paying Re.1-00. Except the evidence of these two witnesses, there is no other material on record. P.W. 3 is the investigating Officer and except that he has recorded the statements and having filed the charge-sheet, nothing more is available in his evidence. It is only the evidence of P.Ws. 2 and 5, which is available in the prosecution. Both these two witnesses are police officials. Though the incident is said to have taken place near a circle in the town, except these two witnesses, no other witnesses were examined by the Investigating Officer during the course of the investigation.

The perusal of the evidence reveals that the petitioner had the avocation of doing petty business on a pushing cycle cart and the receipt produced at M.O. 3 does not reveal anything as such to corroborate the version of P.Ws. 2 and 5. Placing relies only on the evidence of the official witnesses and no independent witnesses were available. It would be rather difficult to rely only on their evidence as there were many independent witnesses available. Only the official witnesses were examined on behalf of the prosecution. In the absence of any corroboration, it is not proper to accept such evidence. Therefore, the conviction of the petitioner for the offence under Section 78(3) of the K.P. Act is set aside.

Consequently, the revision petition is allowed. The Judgment and Order of conviction and sentence of the petitioner for the offence under Section 78(3) of the K.P. Act and the confirmation by the first appellate Court are set aside. The petitioner is acquitted of the said charge. Fine if any deposited shall be paid to the petitioner. M.O. 1-cash of Rs. 110-00 shall be returned to the petitioner.