CHAYABBA v. Location: HIGH

O R D E R Heard learned counsel appearing respective parties.

2. The factual matrix of the case of prosecution before the Trial Court that accused No.2 was working as an Anganavadi Karyakarthe in Kalinganahalli village. That on 26.12.2014 at about 4.00 p.m. at Kalinganahalli village, accused no.2 sold the food items worth Rs.4,373/- meant the children at Anaganawadi to accused No.1 for Rs.2,650/- and accused No.1 knowingfully well that the food items belonged to Anganawadi has purchased the same for lesser price. Based on the information, accused Nos.1 and 2 were caught while transporting the said items hence, the case has been registered and the police have investigated the matter and filed the charge sheet for the offences - 3 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 punishable under Sections 408, 420, 379 read with Section 34 of IPC.

3. The prosecution in order to prove the case, examined the witnesses as PW1 to PW11 and got marked the documents at Ex.P1 to P14 and also got marked the material objects as MO1 and MO2. The accused statement was recorded under Section 313 of Cr.P.C but they have not led any defence evidence. The Trial Court having considered both oral and documentary evidence placed on record convicted both accused Nos.1 and 2 for the offence punishable under Section 408 read with Section 34 of ip and Section 3 and 4 read with Section 7 of Essential Commodities Act and acquitted for the offences punishable under Sections 420 and 379 read with Section 34 of IPC. The accused Nos.1 and 2 are sentenced to undergo for simple imprisonment for one month and also liable to pay fine of Rs.10,000/- in default, undergo for simple imprisonment for one month for the offence punishable under Section 408 of IPC and also sentenced to undergo - 4 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 simple imprisonment for a period of one month and also liable to pay fine of Rs.10,000/- in default, undergo for simple imprisonment for one month for the offences punishable under Sections 3 and 4 read with Section 7 of Essential Commodities Act.

4. The said judgment of conviction and sentence was challenged before the First Appellate Court in Crl.A.Nos.5014/2019 and 2015/2019 and the First Appellate Court also confirmed the order of the Trial Court. Being aggrieved by the judgment of conviction and sentence and also dismissal of appeal, the present revision petition is filed before this Court.

5. The counsel the petitioners would vehemently contend that the case is registered at the instance of PW3 since PW3 is the Ex-President of Gram Panchayat and there was an ill-will against accused No.2. The Trial Court ought not to have relied on the evidence of PW3 since he was having animosity between PW3 and accused No.2 since accused No.2 had filed the complaint - 5 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 against PW3 regarding harassment before the Tahsildar. Except the voluntary statement of accused persons, there is no other material placed by the prosecution to demonstrate that there is any transaction between accused Nos.1 and 2. The counsel further submits that except the interested witnesses i.e., PW3 and PW5, no other material is available on record and also with regard to the seizure is concerned, PW3 has given an admission that no mahazar was drawn at the spot when the same was seized and he had signed the mahazar at the police station. These are the discrepancy found in the evidence of prosecution witnesses and the same has not been considered by both the Courts. Hence, it requires interference.

6. Per contra, the counsel appearing for the state would vehemently contend that the evidence of PW3 is clear that even though suggestion was made with regard to animosity is concerned, nothing is elicited from the mouth of PW3. The counsel also contended that the - 6 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 discrepancy found in the evidence of PW4 and the same will not come to the very root of the case of the prosecution. The counsel also contended that PW5 who is the person who came to the spot has categorically deposed before the Court that there were complaints against accused No.2 with regard to not using the food items for the purpose for which the same was supplied and hence, both the Courts considering the material available on record particularly the evidence of PW3 to PW5 rightly convicted the accused persons. Hence, it does not require interference.

7. Having heard the learned counsel appearing for the respective parties and also on perusal of the material available on record, it discloses that the prosecution has examined 11 witnesses before the Trial Court and the star witnesses of the prosecution is only PW3 to PW5. No doubt, PW3 in the chief evidence supported the case of the prosecution. But in the cross-examination, a suggestion was made to PW3 that he was working as a Vice-President - 7 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 of the Panchayat and the same is admitted. It is also suggested that against him, a complaint was given before the Tahsildar by accused No.2 with regard to harassment is concerned and particular date of complaint is mentioned as 20.03.2014 and the said suggestion was denied. The incident was taken place on 26.12.2014 and also admits that he cannot tell how many bags were there while transporting the food items. Only he tells that a Government seal was found in the items and the same was witnessed by the witnesses and there were 30 to 40 villagers but none of the witnesses are supported the case of the prosecution.

8. No doubt, the prosecution relies upon the evidence of PW4 who in the chief evidence supports the case of the prosecution and also with regard to the drawing of mahazar. In respect of seizure of food items, he claims that at around 4.00 to 4.30 p.m., CW1 that is PW5 came to the spot. But in the cross-examination he admits that he came to know about the incident at 1.30 - 8 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 p.m., and the police came to the spot at 4.30 to 5.00 p.m. No doubt, he says that they only called CW1. But he says that police came and seized the food items and they only took the same. He also categorically admits that at the spot they have not drawn any mahazar and there were 30 to 40 persons at the spot and also his evidence is that his signature is not taken on the slip when the food items were seized and also he says that Ex.P3 was drawn in the police station and he cannot say who is the scribe of the said mahazar and apart from that he cannot say what has been written in Ex.P3 and also says that the signature was taken on Ex.P3 at police station. When such evidence is elicited from the mouth of PW4 with regard to seizure is concerned, it is clear that document of mahazar was drawn at police station not at the spot. Though it is contended that at around 1.45 p.m., it was seized and PW5 came to the spot at 4.00 to 4.30 p.m. and nothing has been done in the spot. No doubt, PW5 speaks about the complaints against accused No.2 and also categorically says that quantity of food items were not mentioned while - 9 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 giving the complaint at Ex.P8 and he does not know what is expiry period of the food items at MO2. Apart from that he categorically admits that against accused No.2 how many complaints were there is not mentioned at Ex.P8 and also with regard to the complaint against accused No.2 is concerned, nothing is placed on record before the Trial Court. It is also elicited from the mouth of PW5 that similar type of MO2 will be available with the beneficiary of the said scheme.

9. Having taken note of only evidence available on record it discloses that though it is suggested that no complaints were registered against accused No.2, but PW5 says that there were complaints and he also categorically admits that in respect of those complaints also not mentioned in the complaint at Ex.P8 which he had given. Taken note of the answers elicited from the mouth of PW5 and animosity attributed against PW3 and so also the discrepancy found with regard to seizure is concerned in the evidence of PW4 and other witnesses have not - 10 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 supported the case of prosecution. When such being the case, based on the evidence of PW3 to PW5, the Trial Court committed an error in convicting the accused persons and also the First Appellate Court also failed to consider the discrepancy found in the evidence of those witnesses and also answers elicited from the mouth of PW3 and PW5. The defense is very clear that on particular date, a complaint was given against PW3 before the Tahsildar, even tough, no such document is produced but specific allegation is made against him that she has given complaint against PW3 with the Tahsildar on 20.03.2014. Such being the case, when discrepancy is found in the evidence of PW3 and PW4 with regard to the seizure of food items and mahazar was drawn in the police station not at the spot and signature of PW4 was also taken at the police station and PW4 categorically says that he does not know the contents of Ex.P3 and PW5 categorically admits that with regard to the complaint is concerned, nothing is mentioned in the complaint at Ex.P8, the Trial Court ought not to have convicted the accused persons. Under - 11 - NC: 2024:KHC:10878 CRL.RP No. 43 of 2020 the circumstances, the benefit of doubt extended in favour of the accused persons. Hence, it is a fit case to exercise the revisional jurisdiction since the order suffers from its legality and correctness and judgment of both the Courts requires interference.

10. In view of the discussions made above, I pass the following: ORDER The revision petition is allowed. The judgment of conviction dated 21.06.2019 and sentence dated 10.07.2019 passed in C.C.No.528/2016 by the Trial Court and the order of confirmation dated

03.12.2019 passed Crl.A.Nos.5014/2019 5015/2019 by the First Appellate Court are set aside. Fine amount, if any, is deposited, is ordered to be release in favour of the revision petitioners on proper identification. SN Sd/- JUDGE