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State of Karnataka, Represented by the Special Public Prosecutor, Dharwad v/s Malleshappa


Company & Directors' Information:- G E CO PUBLIC LIMITED [Strike Off] CIN = U36900WB1951PLC021802

    Criminal Appeal No. 100285 of 2018

    Decided On, 05 April 2021

    At, High Court of Karnataka Circuit Bench At Dharwad

    By, THE HONOURABLE MRS. JUSTICE M.G. UMA

    For the Appellant: Ramesh B. Chigari, HCGP. For the Respondent: R.H. Angadi, Advocate.



Judgment Text

(Prayer: This Criminal Appeal is filed Under Section 378(1) & (3) of Cr.P.C. seeking to grant leave to appeal against the judgment and order of acquittal dated 28.02.2018 passed by the Ii Addl. District and Sessions Judge, Haveri (sitting at Ranebennur) in Crl.A.No.15/2015 and etc., )1. The State represented by the High Court Government Pleader has preferred this appeal aggrieved by the impugned judgment of acquittal dated 28.02.2018 passed in Criminal Appeal No .15/2015 by the learned II Additional District and Sessions Judge, Haveri, sitting at Ranebennur ( for short the Appellate Court ), acquitting the accused for the said offence punishable under Section 224 of the Indian Penal Code (hereinafter referred to as the IPC for the sake of brevity) by setting aside the judgment of conviction and order of sentence dated 24.01.2015 passed in C.C.No .738/2009 on the file of learned Principal Civil Judge and I Additional JMFC, Ranebennur ( for short the Trial Court ) for the said offence.2. Brief facts of the case are that, the respondent herein being the accused was charged for the o ffence punishable under Section 224 of the IPC. It is stated that the accused who was also accused in Crime No .58/2008 of Halageri Police Station was in the custody and he escaped from the lawful custody and committed the offence punishable under Section 224 of the IPC. It is stated that the accused was apprehended by the Investigating Officer in Crime No .58/2008 of Halageri Police Station, which was registered for the o ffences punishable under Sections 307, 323, 504 and 506 of the IPC. When the accused was apprehended and was detained in custody, he escaped from the lawful custody. The first in formation was registered in Crime No .60/2008 and after investigation filed charge sheet for the above said offence. The accused has appeared through the Court to answer the charge leveled against him and he pleaded not guilty.3. The prosecution in order to prove its contention, examined PWs .1 to 12, got marked Exs.P1 to P8 in support of its contention. Accused denied all the incriminating materials available on record , but has not chosen to lead any evidence in support of his defence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and proceeded to convict the accused for the o ffence under Section 224 of the IPC. He was sentenced to undergo simple imprisonment for three months and to pay fine of Rs .500/- and in default to pay fine, to further undergo simple imprisonment for one month.4. Being aggrieved by the Judgment of conviction and order of sentence passed by the Trial Court, the accused preferred Criminal Appeal No .15/2015 before the Appellate Court. The Appellate Court after taking into consideration all these materials on record , came to the conclusion that there are material contradictions in the evidence of PWs.2 to 5 and therefore, the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt. Therefore, the benefit of doubt was given to the accused and he was acquitted for the o ffence punishable under Section 224 of the IPC. Assailing the impugned judgment of acquittal passed by the Appellate Court, the State is in appeal be fore this Court.5. Heard Sri.Ramesh B. Chigari, learned HCGP for appellant-State and Sri.R.H.Angadi, learned counsel for the respondent.6. Learned HCGP for the appellant-State submitted that the prosecution examined PWs.1 to 12 in support o f its contention. PWs .2, 4 , 5 , 6 , 8 and 9 are the material witnesses, who have spoken to regarding the apprehension o f the accused and also escape of the accused from the lawful custody. Ex.P6 is the Personal Search Register which discloses that the accused was apprehended on the date of the incident in Crime No .58/2008. The Trial Court has considered the evidence of these witnesses. All the witnesses have consistently deposed before the Trial Court regarding apprehension of accused and the accused running away from the lawful custody. The Trial Court properly appreciated the materials on record and had convicted the accused , but the Appellate Court relied on minor contradictions and proceeded to set aside the impugned judgment of conviction, acquitting the accused , which is not sustainable in law. Therefore, he prays for allowing of the appeal and restoring the judgment of conviction and order of sentence passed by the Trial Court.7. Per contra, learned counsel for the respondent supporting the impugned judgment of acquittal submitted that there are material contradictions in the evidence of the prosecution witnesses . The prosecution has not placed any materials to show that the accused was in fact apprehended in relation to Crime No .58/2008. There is absolutely no evidence as to who apprehended the accused and at what time. It is also not forthcoming, as to who was the custodian of the accused at the relevant point of time. None o f the witnesses have spoken to regarding the accused fleeing from their custody at any particular point of time. Under such circumstances , the Trial Court was right in convicting the accused . The Appellate Court after properly appreciating the materials on record came to the conclusion that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt. There is absolutely no reason to interfere with the same. Therefore, he prays for dismissal of the petition.8. Perused the materials on record including the trail Court records.9. In view of the rival contentions urged by the learned counsel for the parties, the point that would arise for my consideration is:"Whether the impugned Judgment of acquittal passed by the Appellate Court calls for interference by this Court?"My answer to the above point is in Negative for the following:REASONS10. In order to prove the contention of the prosecution, it has examined PW2. According to the prosecution, it was PW2 who apprehended the accused in relation to Crime No .58/2008 and therefore, the accused was in his lawful custody. But PW2 never states that he apprehended the accused on 28.04.2008. On the other hand, it is his evidence that accused was apprehended and was kep t in police station. There is absolutely no evidence as to who apprehended the accused and at what time. PW2 in his evidence states that the accused who was in the custody informed the Head Constable No .972 that he will go to the toilet, thereafter escaped from the lawful custody. Therefore, it is clear that PW2 is not the person who apprehended the accused and he is not the eye witness who had seen the accused escaping from the lawful custody.11. The Head Constable No .972 is examined as PW5. This witness states that the accused was in the custody of PW6 and from there he escaped from the lawful custody. PW6 in his evidence states that accused was in the lawful custody of PW5 and from there he escaped. PW4 is examined by the prosecution. He also states that the accused was in the custody of PW5. The prosecution examined PW9 as one of the eye witnesses to the incident. But this witness also states that the accused was in the custody of PW5 and it was PW5 who accompanied the accused to go to the washroom . But strangely PW5 does not say so. On the other hand, he states that it was PW6 who was holding the accused in his custody. Therefore there is absolutely no consistency in the evidence of these witnesses regarding the material particulars.12. Even though it is the contention of the prosecution that the accused was apprehended in Crime No.58/2008 of Halageri Police Station, the prosecution is not definite as to the time at which the accused was apprehended. It is also not certain who is the O fficer who apprehended the accused. The prosecution is relying on Ex.P6-Copy of the Personal Search Register. This document shows that Crime No .58/2008 was registered at 8.00 pm for the offences punishable under Sections 307 , 323 , 504 and 506 o f IPC. This document also show that accused No .1 escaped from the lawful custody on the same day at 10 .35 pm. Strangely the prosecution has not produced either the Arrest Memo or Arrest Intimation or even the copy of the Register maintained in that regard , to prove that the accused was infact apprehended, as contended by it. There is absolutely no explanation for non-production of these material documents. If the accused is to be apprehended , the Investigating Officer is duty bound to issue the Arrest Memo and also the Arrest Intimation intimating the apprehension of the accused to his close relatives or friends. No explanation is o f fered by the prosecution as to why no such documents are produced before the Court. The tenor of the cross examination of the prosecution witness discloses that the accused is disputing his arrest itself. Under such circumstance

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s , I do find considerable force in the contention taken by the accused that the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt.13. In order to invoke Section 224 of IPC, the prosecution should prove that there was resistance or obstruction to the lawful apprehension of the accused . In the present case, even though it is the contention of the prosecution that accused who was already apprehended had fled from the lawful custody, has failed to prove the same. Even though the Trial Court proceeded to form an opinion that prosecution is successful in proving the guilt o f the accused beyond reasonable doubt and convicted and sentenced him as stated above, the Appellate Court considered the materials on record in the right perspective and set aside the impugned judgment of conviction and order of sentence. I do not find any reason to interfere with the same.14. Hence, I answer the above point in the Negative . The Criminal Appeal is dismissed.
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