IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.1323/2019 BETWEEN:
State of Karnataka by mangaluru East Police, Mangaluru, Represented by State Public prosecutor High Court Building Bengaluru-560 001.
(By Sri M.Divakar Maddur, HCGP) AND:
... Appellant Mahantesh Aged about 38 years R/o Channabasappa Residing at Near Veerabhadreshwara Temple Thalakil Village, Yelaburgi Taluk, Koppala District-583 236.
... Respondent (Notice not ordered in R/o respondent) This Criminal Appeal is filed under Section 378(1) and (3) of Cr.P.C., praying to appeal against the impugned judgment and order of acquittal dated 24.12.2018 passed by the learned VI Additional District and Sessions Judge, D.K., Mangaluru in Criminal Appeal No.140/2013 in so far as it relates to acquitting the respondent/accused for the offence punishable under Section 379 of IPC.
This Criminal Appeal coming on for Orders this day, the Court delivered the following:
J U D G M E N T This appeal has been filed by the appellant-State challenging the judgment and order of acquittal passed by the Court of the VI Additional District and Sessions Judge, Dakshina Kannada, Mangaluru in Crl.A. No.140/2013 dated 24.12.2018.
2. I have heard the learned High Court Government Pleader for appellant – State. Notice to respondent dispensed with.
3. Though this case is listed for hearing – Interlocutory Application, with the consent, it has been taken up for final disposal.
4. The case of the prosecution in brief is that on 02.05.2009 at about 10.00 a.m., the complainant parked his motor cycle bearing Registration No.KA-19L- 6747 by the side of Pramod Automobile Towers at Mangaluru city and went to his office. On the same day at about 9.30 p.m. after finishing his work, he came back to the said place, he didn’t find his motor cycle and he made a search of his bike but it was not traced and as he was in urgency to go to Bombay, he went to Bombay. After return on 21.07.2009, he came to know that Bunder Police have arrested the accused in connection with the stolen vehicles and the vehicles have been seized. Thereafter, he went to the police station and identified the vehicle thereafter filed the complaint. On the basis of the complaint, a case has been registered and after investigation, the charge sheet has been filed.
5. Learned Magistrate took cognizance and framed the charge. Accused pleaded not guilty and he claimed to be tried as such, the trial was fixed.
6. In order to prove the case of the prosecution, it has examined 7 witnesses and got marked 9 documents and also one material object. Thereafter, the statement of the accused was recorded under Section 313 of Cr.P.C. After hearing the learned counsel appearing for the parties, the trial Court has convicted the accused as such, the accused preferred the appeal. Thereafter, the learned District Judge, by its impugned order has acquitted the same. Challenging the legality and correctness of the judgment, the State is before this Court.
7. The main grounds urged by the learned High Court Government Pleader is that the order of Lower Appellate Court is contrary to the evidence produced and the materials placed on record and has come to a wrong conclusion and wrongly acquitted the accused. PW.4 is the Police Constable, who apprehended the accused and recovered the motor cycle. A recovery mahazar has been drawn but in spite of that, the Lower Appellate Court has not believed the evidence and has wrongly acquitted the accused. It is his further submission that the evidence of the police official is trust-worthy and reliable and even the First Appellate Court ought to have relied on the evidence of PWs.4 and 7 and ought to have convicted the accused by relying upon the decision in the case of Madan Singh Vs. State of Gurajat reported in AIR 1978 SC 98. It is his further submission that the vehicle belonging to the complainant-PW.1, who has also identified the vehicle and the same has been given to the complainant. This aspect has also not been properly considered and appreciated by the trial Court. On these grounds, he prayed to allow the appeal and to convict the accused.
8. I have carefully and cautiously gone through the submissions made by the learned High Court Government Pleader and perused the records including the records, which is made available by the learned High Court Government Pleader with regard to the deposition.
9. PW.1 is the complainant; he has deposed that he is the owner of mother cycle bearing Registration No.KA-19L-6747 and he parked his vehicle on the alleged date of incident. Thereafter, when he returned back, he found that his vehicle was missing and as he was having urgent work in Mumbai, he left and after receipt of the information from the police, he went to the police station and identified the said vehicle. Thereafter, filed a complaint as per Ex.P1 and he is also a witness to Ex.P2 – the spot mahazar. Further, he deposed that the said motor cycle has been taken to his interim custody. During the course of cross- examination of this witness, nothing has been elicited so as to discard this evidence.
10. PW.2 is the brother of PW.1, who accompanied PW.1 to the police station and he has identified the vehicle in question and the accused. Further, he deposed that the accused was present in the police station and he has signed the mahazar at Ex.P2.
11. PW.3 is the pancha to seizure mahazar at Ex.P3 wherein, the motor cycle has been seized. He has not supported the case of the prosecution and he has been treated as hostile.
12. PW.4 is the Police Constable, who was on deputation for apprehending the accused. On 21.07.2009, he along with his other colleagues were on patrolling duty and received a credible information that the accused on motor cycle bearing No.KA-19L-6747 near Dubai Market Complex for the purpose of selling the mobile phones. As per the information given by the informant when he along with others waiting for accused at Central Market, they saw the accused who was about to leave the place. So they surrounded the accused and found one plastic cover hanging over the handle of the vehicle which contained 7 mobile phones and other articles. When the accused was questioned about its possession he has not given any satisfactory answer. Hence, on suspecting the accused, they took the accused and the motor cycle, the mobile phones and other articles in to their custody and produced them before the Station House Officer with report as per Ex.P5. He has further deposed with regard to the seizure of the motor cycle and other articles under seizure mahazar as per Ex.P6.
13. PW.5 is the Head constable, who received the complaint, registered the case and issued the FIR.
14. PW.6 is the ASI, who partly investigated the case.
15. PW.7 is the Police Inspector, who investigated the case and filed the charge sheet against the accused.
16. On going through the evidence, which has been produced it indicates that there is an inordinate delay in filing the complaint. As per the case of the prosecution, the alleged incident has taken place on 02.05.2009 at about 10.00 a.m., but the complaint came to be registered on 21.07.2009. That too, after coming to know that the said vehicle has been seized by the police, he filed the complaint. That itself creates a doubt in the case of the prosecution. When the said motor cycle has been stolen, which has been parked at the place by the side of the Pramod Automobiles Towers, under such circumstance, definitely the version of the complainant itself is not acceptable. Though the learned High Court Government Pleader vehemently argued and submitted that the complainant was having some urgent work, went to Bombay and the proper explanation has been given by the prosecution about the delay caused in filing the complaint. But the records indicate that the complainant is working as a Press Reporter in Suvarna News Channel and he is having awareness of all the factual situation and the law. Under such circumstance, no man will keep quite if a motor cycle belonging to him has been stolen, that too, when he came back from Bombay, how he received the credible information about the recovery of the motor cycle and then he filed the complaint, which has not been properly explained in this behalf. Leave apart this, when he came back why he immediately did not filed the complaint also not been explained. In that light, the case of the prosecution creates a doubt. Leave apart that, it is the case of the prosecution that when PW.3 and other staffs were on rounds, at that time, they received a credible information and immediately they went to that place and apprehended the accused along with the said vehicle. When complaint itself is not filed about missing of the vehicle but they went in search of the said accused and vehicle. In that light it creates a doubt in the case of prosecution. Even the records show that on the spot, they have not drawn any mahazar and have taken the accused, the vehicle and also the mobile phones and produced before PW.7.
17. On going through the report, in the police station, a seizure mahazar has been drawn as per Ex.P6 but to the seizure mahazar, the prosecution has got examined PW.3 but he has not supported the case of the prosecution and when he has not supported the case of the prosecution with regard to police seizing of the said motor cycle, under such circumstances, the delay coupled with the non support of the seizure of the motor cycle in its right prospective, that itself creates a doubt in the case of the prosecution. Taking into consideration of the above said factual matrix, the First Appellate Court has come to a right conclusion and has rightly acquitted the accused.
18. There are no good grounds to interfere with the judgment of the lower Appellate Court. Hence, appeal being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
I.A. No.1/2019 does not survive for consideration.
Accordingly, the same is disposed off.
Sd/- JUDGE VBS