Back
2020 Supreme(Kar) 49
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
H.P. Sandesh, J.
Sri Prasanna S @ Prasanna Kumar, S/o. Shivanna - Appellant
Versus
The State By Amruthur Police - Respondent
Criminal Appeal No.100 of 2018
Decided On : 07-02-2020
For the Appellant :Sri. Srinivas C.H., Advocate
For the Respondent: Sri. Thejesh P., HCGP.
Headnote:
Mines and Minerals Act, 1957 - Sections 4(1A) read with 21 - Motor Vehicles Act, 1988 - Sections 3 read with 181, 139, 192 and 177 - Indian Penal Code, 1860 - Section 379 – Criminal Procedure Code - Section 313 – Appeal against conviction – Motor accident claim – First Information Report - Whether Trial Court has committed an error in convicting accused for offence punishable under Section 379 of Indian Penal Code - Whether Trial Court has committed an error in convicting accused for offences punishable under Sections 4(1A) read with 21 of MMRD Act - Whether Trial Court has committed an error in convicting accused for offences punishable under Sections 3 read with 181, 139, 192 and 177 of Motor Vehicles Act - Case of prosecution complainant Police Constable received information from P.S.I that some persons are indulging in loading sand near Government Tank and gave instructions to him to go to said place and arrest persons and seize vehicle - Accordingly complainant in his two wheeler went to spot and found that sand is being loaded to lorry - As complainant was in uniform when he went to spot persons who were indulged in loading sand on seeing him ran away leaving lorry at spot – One who came to spot did not identify owner and also driver but he told that these persons were regularly indulging in loading sand and transporting same - Since complainant knew to drive lorry he himself took lorry to station and gave complaint - Based on said complaint case has been registered for offences punishable under Section 379 of Indian Penal Code under Sections 4(1A) read with 21 of MMRD Act and under Sections 3 read with 181, 139, 192 and 177 of Motor Vehicles Act – Held, Police have filed charge sheet against accused both for offences punishable under Indian Penal Code as well as under MMRD Act and also under Motor Vehicles Act - Under Section 22 of MMRD Act there is a bar to take cognizance based on complaint of police and only an authorized person can file a complaint before Court and only based on said complaint Court can take cognizance - But in case on hand records reveal that when charge sheet has been filed for offences under IPC as well as under Section 4(1A) of MMRD Act and other offences punishable Under Motor Vehicles Act, cognizance has been taken and accused was subjected to trial – Hence very initiation of case in filing charge-sheet against accused for Indian Penal Code offence and offence under MMRD Act and subjecting accused for trial ignoring specific bar under Section 22 of MMRD Act, committed an error in taking cognizance and proceeded erroneously to consider offence under MMRD Act - Factual matrix of case is that accused had indulged in loading sand in public tank bund area without any license - When information came to SHO immediately he gave instructions to P.W.5 to go to spot and seize vehicle - Accordingly he went to spot - It is evident from records that he alone went to spot in his two wheeler and standing at remote place he found loading of sand and his case is that almost of sand was loaded to lorry and when he went to spot in uniform accused ran away leaving lorry at spot - In meanwhile one P.W.7 came to spot and he also told P.W.5 that said persons were repeatedly coming and loading sand from tank bund area but he does not know identity of said persons - Prosecution in order to prove their case examined P.W.7 but he did not support case of prosecution - He completely turned hostile - Court have already pointed out that though witnesses have turned hostile they did not deny their signatures available on particularly Exs.P1 and 2. But their evidence is that in their presence police have not drawn - It is pertinent to note that in cross-examination of P.Ws.5, 6 and 8 nowhere a suggestion was made to these witnesses that they were having any ill will against accused to falsely implicate in case - On perusal of entire cross-examination of P.Ws.5, 6 and 8 even there is no single suggestion to that effect except general denial – Admittedly accused did not dispute fact that he got released vehicle through Court - It is also pertinent to note that accused did not produce any documentary proof that he being owner of vehicle was having driving license and also paid taxes - Apart from that also he did not place any material before Court that he was having permit to run lorry - It is only defense in cross-examination of P.W.5 that vehicle was parked in land and same was seized in said place and brought before Police Station - It is also pertinent to note that vehicle was seized and lorry was sent to measure sand which was available on lorry - On request of Investigating Officer P.W.4 being Engineer of PWD measured sand which was available in lorry and also quantified worth of sand - It is also not in dispute that vehicle was released through Court - It is also undisputed fact that lorry pertains to accused only and he has not offered any explanation before Trial Court - When such being case principles laid down in judgment referred supra by counsel for State is aptly applicable to case on hand - Even in cross-examination of P.W.4 PWD Engineer also nothing is suggested and elicited that he was having any enmity against accused - Taking into consideration evidence of P.Ws.4, 5, 6 and 8 who are official witnesses there is nothing on record to disbelieve their evidence - Evidence of official witnesses inspires confidence of Court to come to conclusion that accused had committed offence and he was indulging in transporting sand by using his own lorry and no documents are placed on record with regard to his driving license permit and for having paid tax - Considering material on record and also reasoning given by Trial Court do not find any reason to interfere with order of Trial Court in convicting accused for offence punishable under Section 379 of IPC and so also offences invoked under Motor Vehicles Act for having not possessed driving license tax paid receipt and also permit to use vehicle - When such being case court do not find any error committed by Trial Court in convicting accused for those offences except erroneously taking cognizance and proceeding for offences punishable under Sections 4(1A) read with 21 of MMRD Act - Appeal is allowed
JUDGMENT :
This appeal is filed challenging the judgment of conviction dated 3.1.2018 and order on sentence dated 4.1.2018 passed in Special Case No.318/2016, on the file of the Principal Sessions/Special Judge, Tumakuru, for the offences punishable under Section 379 of Indian Penal Code, 1860 (‘IPC’ for short), under Sections 4(1A) read with 21 of the Mines and Minerals (Development and Regulation) Act, 1957 (‘MMRD Act’ for short) and under Sections 3 read with 181, 139, 192 and 177 of the Motor Vehicles Act, 1988.
2. The case of the prosecution is that on 3.9.2015 at about 4.30 p.m., the complainant Naveen Kumar, Police Constable, received the information from the P.S.I that some persons are indulging in loading the sand near Sondekoppa Government Tank and gave instructions to him to go to the said place and arrest the persons and seize the vehicle. Accordingly, at 5.30 p.m., the complainant in his two wheeler went to the spot and found that sand is being loaded to the lorry bearing registration No.KA41A5994. As the complainant was in uniform when he went to the spot, the persons who were indulged in loading the sand, on seeing him, ran away leaving the lorry at the spot. One Sri Pradeep Kumar, who came to the spot, did not identify the owner and also the driver, but he told that these persons were regularly indulging in loading the sand and transporting the same. Since the complainant knew to drive the lorry, he himself took the lorry to the station and gave the complaint. Based on the said complaint, case has been registered for the offences punishable under Section 379 of Indian Penal Code, under Sections 4(1A) read with 21 of the MMRD Act and under Sections 3 read with 181, 139, 192 and 177 of the Motor Vehicles Act.
3. The mahazar was conducted with regard to the seizure of the vehicle and also seizure of the sand. Thereafter, spot mahazar was also conducted and the statement of witnesses was recorded by P.W.6 after registering the FIR. P.W.8 is the Investigating Officer, who conducted further investigation and filed the charge sheet. Based on the charge sheet, the Trial Court took cognizance of all the offences and secured the accused and the accused did not plead guilty before the Special Court and claimed trial.
4. The prosecution in order to prove the charges leveled against the accused, relied upon the evidence of P.Ws.1 to 8 and got marked the documents at Exs.P1 to 12. After the completion of the prosecution evidence, the accused was subjected to 313 statement and he did not choose to adduce any defence evidence and also did not get marked any documents. The Trial Court, after hearing the Special Public Prosecutor as well as the defence counsel, convicted the accused for all the offences. Hence, the present appeal is filed before this Court.
5. The main contention of the accused in this appeal is that inspite of the mahazar witnesses, independent witnesses and eyewitnesses, turning hostile, the Trial Court relying upon the official witnesses, particularly evidence of P.Ws.4, 5, 6 and 8, blindly convicted the accused accepting the version of the prosecution. It is alleged that driving licence of the police constable is not produced before the Trial Court to show that he was capable of driving heavy vehicle like lorry. The version of the prosecution that the P.S.I. sent the complainant alone to the alleged spot without accompanying him and also not sending any other police staff to the alleged incident spot, clearly shows that the story of the prosecution is concocted and intentionally false case has been registered against the accused. But the Trial Court completely overlooked this fact and committed grave error in convicting the accused, who is totally innocent of the allegation.
6. The learned counsel for the appellant in his argument vehemently contended that P.W.4 is not an authorized person to give the report that the same is sand. The learned counsel would also contend that mahazar witnesses i.e., P.Ws.1 to 3, who
