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2018 Supreme(Kar) 447
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SREENIVAS HARISH KUMAR, J.
Smt. Anasuya W/o Divakara – Appellant
Versus
The State of Karnataka, by Hole Narasipura Rural Police Station Hassan – Respondent
Criminal Appeal No. 2227 of 2006
Decided On : 26-07-2018
For the Appellant : Sri. Chandrashekar R.P.
For the Respondent: Sri. Nasrulla Khan.
Headnote:KARNATAKA EXCISE ACT, 1965 [K.A. No. 21/1966] - Section 34 - Offence under - Persons consuming liquor in question falling sick - Incident taking place in village - News spreads rapidly having cascading effect - Hence, it becomes doubtful that even after the incident accused have still kept liquor bottles - Thus, seizure of material objects gives rise to doubt - More so when seizure has taken place after registration of FIR without obtaining search warrant - Prosecution not assailing acquittal of co-accused in proceeding initiated by Excise Officers in relation to same incident - Holding parallel proceedings in another Court against accused in a case registered by police was itself bad and results in failure of justice. Conviction set aside.
KARNATAKA EXCISE ACT, 1965 [K.A. No. 21/1966] - Section 54 - Search warrant - When necessary - Seizure of material objects taking place soon after registration of FIR but before arrest of accused - Held, If any material object or an article is seized on the basis of voluntary statement, such a seizure does not require search warrant as it is the accused who makes a disclosure and aids the investigation officer to seize the incriminating articles. Search warrant is necessary in a circumstance where after registration of FIR or receipt of credible information, the investigation officer decides to take immediate action even before arrest of accused to collect the evidence.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Section 3 - Testimony of police officers - There is no rule that conviction cannot be based on such testimony.
1. Accused 1 to 5 in Sessions Case 141/2005 have preferred this appeal aggrieved by the judgment dated 23.9.2006 of the Additional Sessions Judge and Fast Track Court-III, Hassan. The appellants have been convicted in relation to offence under Section 34 of the Karnataka Excise Act and sentenced to undergo rigorous imprisonment for two years and to pay fine, of Rs. 2,000/- and in default to pay the fine, to undergo further sentence for six months.
2. The prosecution case in brief is as follows:-
Accused No. 1 to 3 belong to Halli Mysore Village. Accused No. 1 to 2 were running a bakery in the said village. Accused No. 3 being the elder brother of accused No. 1 used to look after the bakery business. Accused No. 5 was looking after Asha Bar at Holenarsipura. Accused No. 4 is an employee in the said Asha Bar. On 3.6.2005 one Puttaraju of Hindalhalli arranged a feast in his house. Lakshmana, Chandregowda, Dinesha and Devraju were engaged by Puttaraju for cooking the food. After cooking the food, Lakshman, Devaraju and Chandregowda demanded for supplying liquor to them. One Bojanna-PW-1 sent PW-7 Ramegowda to Halli Mysore for buying 5 bottles of liquor from the bakery of accused 1 to 3. Lakshmana, Devaraju, Chandregowda drank that liquor. Afterwards Lakshmana fell sick seriously and Devaraju and Chandregowda also suffered some health problems. Lakshmana was given first aid in his house and thereafter taken to Keralapaura Government Hospital. He did not respond to the treatment given there. Therefore, he was taken to Mangala Nursing Home, Hassan. He did not respond to the treatment given there also and at last died on 5.6.2005. It appears a complaint was made to the police. Police registered a case under Sections 32 and 34 of the Karnataka Excise Act. After the police received the report of the death of Lakshmana, they included the provisions of Sections 284, 304 and 302 IPC.
3. The learned Sessions Judge after evaluating the evidence of 14 witnesses PWs 1 to 14 and 40 documents marked as Exs. P1 to P40 and also 39 material objects MOs 1 to 39 came to the conclusion that the prosecution was able to prove its case only in respect of the offence under Section 34 of the Karnataka Excise Act and sentenced them as stated above. The accused were acquitted of the offence under Sections 302, 307, 272, 273 read with Section 34 IPC and also Section 32 of the Karnataka Excise Act.
4. Challenging this judgment, all the accused approached this court by filing Criminal Appeal 2227/2006. This court by its judgment dated 30.10.2013 accepted the appeal in part and conviction of the accused 2 and 3 was set aside for the offence under Section 34 of the Excise Act; however, the conviction of accused 1, 4 and 5 for the said offence was confirmed. Accused 1, 4 and 5 preferred a Special Leave Petition (Crl.) 763/2014 before the Supreme Court. The Hon’ble Supreme Court granted leave and remanded the matter to this court for decision once again. When the matter was taken up by the Supreme Court, it appears that it was brought to its notice that the excise officers had also registered complaint in regard to the same incident and charge sheet was filed before the Magistrate for the offence under Section 34 of the Excise Act. The Magistrate acquitted accused No. 5. This matter was brought to the notice of the Supreme Court which opined that the acquittal of petitioner No. 5 should have been brought to the notice of the High Court and for this reason the matter was remanded for decision once again. Therefore, this appeal is once again considered.
5. I have heard the arguments of the appellants’ counsel and the HCGP.
6. It is the argument of the learned counsel for the appellants that except PWs 13 and 14 all other witnesses turned hostile. In these circumstances, the evidence of PW-14 should not have been believed by the Sessions Court. Ex.P3 is the mahazar drawn by PW-14. This mahazar should not have believed by the Sessions Court when the independent wit
