IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 08TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH CRIMINAL APPEAL NO.1356 OF 2010 BETWEEN:
STATE OF KARNATAKA BY INSPECTOR OF EXCISE VIJAYANAGAR RANGE BENGALURU-560 040.
(BY SMT:NAMITHA MAHESH, HIGH COURT GOVERNMENT PLEADER) AND: DHANARAJ SON OF NARASAPPA AGED ABOUT 43 YEARS NO.528, 31ST MAIN BANASHANKARI III STAGE BENGALURU.
... APPELLANT ... RESPONDENT (BY SRI: T.SWAROOP, ADVOCATE (ABSENT)) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) CR.P.C PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE JUDGEMENT DATED 24.07.2010 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-XI, BENGALURU IN CRIMINAL APPEAL NO.176 OF 2010 - ACQUITTING THE RESPONDENT FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 11, 13, 14, 32(1), 34 AND 38-A OF KARNATAKA EXCISE ACT AND RESTORE THE JUDGMENT AND ORDER OF CONVICTION OF SENTENCE DATED 01.02.2010 PASSED BY THE III ADDITIONAL C.M.M., BENGALURU CITY IN C.C.NO.4557 OF 2005.
***** THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The case of the prosecution is that on 02.03.2004 at about 11.00 p.m. PW1 checked the vehicle bearing No.KA- 04/7596 in front of BDA complex on Magadi-Kengeri Road in Vijayanagar Range limits. The vehicle was found carrying intoxicants. A complaint was lodged and investigation was taken up. The charge sheet was filed against the accused for the offence punishable under Sections 11, 13, 14, 32(1), 34 and 38A of the Karnataka Excise Act (for short ‘the Act’).
2. In order to prove its case, the prosecution examined PW1 and marked two exhibits along with the samples of three liquor bottles.
3. On considering the entire material on record, the trial Court acquitted the accused for the offence punishable under Section 13 read with Section 38A of the Act. The accused was convicted and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs.10,000/- in default of payment of fine, directed to undergo simple imprisonment for three months for the offence punishable under Section 32 of the Act. He was further convicted and sentenced to undergo imprisonment for one year and to pay a fine of Rs.10,000/- in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 34 of the Act.
4. Aggrieved by the same, the accused filed Criminal Appeal No.176 of 2010 before the Presiding Officer, Fast Track Court (Sessions)-XI, Bengaluru. By the impugned judgment dated 24.07.2010, the appeal was allowed and the accused was acquitted of all the charges. Hence, this appeal is by the State.
5. The learned Counsel for the appellant contends that substantial material have been led in by the Investigating Officer to prove the guilt of the accused. That the Appellate Court has mis-directed itself and has wrongly acquitted the accused.
6. On hearing the appellant’s Counsel. I find there is no merit in this appeal. The primary ground on which the accused was acquitted is that, it was PW1 who raided the vehicle and arrested the accused. The accused was caught at the spot. Therefore, necessarily he would depose against the accused. There is not even a single independent witness that is examined by the prosecution to prove its case. Therefore, in the absence of any independent eye witness, placing reliance only on the evidence of PW1, would be unsafe.
7. Under these circumstances, I’am of the view that the reasons assigned by the Appellate Court is just and appropriate. For a conviction to sustain, the prosecution would have to prove its case beyond reasonable doubt. Merely relying on the evidence of PW1 who is the complainant as well as the Investigating Officer would be inappropriate. Even though, law does not prohibit a conviction based only on the evidence of the Investigating Officer, in the facts involved herein, it would be improper to accept the evidence of PW1. That almost 23 cartoons of illicit liquor were said to have been seized. There is no evidence to support the said seizure. Therefore, relying on the evidence of PW1 and sustaining the conviction would be unjust. Therefore, I do not find any error committed by the Appellate Court that calls for any interference.
8. This appeal is by the State aggrieved by the order of acquittal. The law is well settled as to how an appeal has to be considered against an order of acquittal. Merely because, a second view is possible does not entail reversal of an order of acquittal into one of conviction. Only because a second view is possible, I do not find that in the given facts and circumstances of the case there can be a second view than what was expressed by the first appellate Court. Hence, I find that there is no ground to take a different view.
Consequently, the appeal being devoid of merit is dismissed.
Sd/- JUDGE bgn/-