Karnataka High Court
The State Of Karnataka vs A Murugan on 29 September, 2023
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CRL.A No.2034/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE C M JOSHI
CRIMINAL APPEAL NO. 2034/2016 (A)
BETWEEN:
THE STATE OF KARNATAKA
BY KALLAMBELLA POLICE
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 01. ...APPELLANT
(BY SRI. K. NAGESHWARAPPA, HCGP)
AND:
A. MURUGAN
S/O AYYADORE
OWNER OF MURUGAN PHOTO STUDIO
Digitally signed SUPPANNA STREET
by PRABHU
KUMARA THENI DISTRICT - 625 203
NAIKA TAMILNADU STATE ...RESPONDENT
Location: High
Court of
Karnataka (BY SRI K S HARISH AND SRI KUMAR, ADVOCATES FOR
SRI V S ARBATTI, ADVOCATE)
THIS CRIMINAL APPEAL FILED UNDER SECTION 378(1) AND
(3) CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AND SET ASIDE
THE JUDGEMENT AND ORDER DATED 01.04.2016 PASSED IN
S.C.NO.52/2013 BY THE PRL. DISTRICT AND SESSIONS JUDGE,
TUMAKURU ACQUITTING THE RESPONDENT FOR THE OFFENCE
PUNISHABLE UNDER SECTION 395 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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CRL.A No.2034/2016
JUDGMENT
Challenging the order of acquittal of accused No.3 in S.C.No.52/2013 on the file of the Principal District & Sessions Judge, Tumakuru, the State has preferred this appeal.
2. The respondent was accused No.3 in S.C.No.52/2013. He was tried in the said case for the offence punishable under Section 395 of IPC on the basis of the charge sheet filed by Kallambella Police in Crime No.146/2011 of their Police Station.
3. Charge sheet was filed in the said case against accused Nos.1 to 7. Accused Nos.1,2 and 4 to 7 could not be secured, therefore case against them was split-up. Only accused No.3 i.e., present respondent was tried in S.C.No.52/2013. Crime No.146/2011 was registered initially against six unknown persons on the basis of the complaint of PW.1 Rudranagowda as per Ex.P1. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial Court.
4. The case of the prosecution in brief is as follows:
(i) That PW.1 was the driver-cum-owner of TATA Mini Lorry bearing registration No.KA.09/A-4954. He was operating -3- NC: 2023:KHC:36575-DB CRL.A No.2034/2016 the same since 1½ years on hire basis for ITC Company, Dabaspet. On 08.07.2011 accordingly he was transporting the goods of ITC i.e., cigarettes, Biscuit boxes, Bingo Packets boxes etc., to deliver to one K.S Lingappa & Sons, the agent of ITC.
At 2.00 a.m. he had stopped his loaded vehicle near Jai Hind Hotel within the limits of Kallambella police station. At that time a stranger woke him up asking him to move his lorry to enable that stranger to park his vehicle there. PW.1 alighted from the lorry saying that after attending nature's call he will move the lorry. At that time, about six persons came in the Scorpio vehicle bearing registration No.TN.21/AZ-2777, forced him into their Scorpio vehicle, assaulted him and robbed him of cash of Rs.3,000/-, his mobile phone and lorry key. On traveling about 4 kms in the Car, accused pushed him out of the vehicle and went away. He returned to the place where he had parked the lorry to find that they had robbed the lorry also.
(ii) Then PW.1 filed complaint before PW.5/the PSI of Kallambella police as per Ex.P1. Based on the said report, he registered FIR as per Ex.P5 against unknown persons. Then he handed over further investigation to PW.7, the in-charge PI of Sira Police Station. She conducted the spot mahazars as per Ex.P3 and Ex.P2. On her instruction, PW.5 traced accused -4- NC: 2023:KHC:36575-DB CRL.A No.2034/2016 Nos.1 to 3, Scorpio vehicle and produced them before her. She seized MOs.2 to 6 under the mahazar Ex.P6 in the presence of panch witnesses on the basis of the voluntary statement of accused No.3 as per Ex.P7. Further accused No.2 during interrogation produced robbed amount of Rs.3000/- and she seized the same under the mahazar Ex.P8. On the basis of the voluntary statement of accused No.1, she seized robbed lorry and articles under the mahazar Ex.P9 and handed over further investigation to PW.9 the CPI of Sira Rural police station. He conducted the further investigation and filed charge sheet.
5. Except respondent/accused No.3, no other accused were secured. Therefore, the jurisdictional Magistrate committed the case only against accused No.3 to the Sessions Court. The trial Court on hearing both side, framed the charge against accused No.3 for the offence punishable under Section 395 of IPC. Since he denied the charge and claimed trial, trial was conducted.
6. In support of the case of the prosecution, PWs.1 to 9 were examined, Exs.P1 to P9 and MOs.1 to 7 were marked. The robbed lorry and cash of Rs.3000/- were marked as MOs.1 and 7 respectively. Other incriminating articles were marked at MOs.2 to 6 as noted already. Accused No.3 after his -5- NC: 2023:KHC:36575-DB CRL.A No.2034/2016 examination under Section 313 Cr.PC, did not file any defence statement or lead any defence evidence.
7. The trial Court on hearing the parties by the impugned judgment and order, acquitted accused No.3 holding that prosecution has failed to prove the charge against the accused beyond reasonable doubt. The State has challenged the said judgment and order in the above appeal.
8. Sri K.Nageshwarappa, learned HCGP reiterating the grounds of appeal submits that PW.1/the victim has supported the prosecution case and his evidence was corroborated by the circumstances of recovery of MOs.1 to 7. The trial Court has failed to appreciate the evidence adduced by the prosecution judiciously. The impugned order is liable to be set aside.
9. Per contra Sri Kumar, learned Counsel for Sri V.S.Arbatti, for the respondent justifies the impugned judgment and order on the grounds that, PW.1 the victim did not identify accused No.3 during the trial. The alleged recoveries of MOs.1 to 7 were on the basis of the alleged voluntary statement of accused No.1 and not by accused No.3. Therefore that is of no help against accused No.3. The witnesses to the alleged recovery also did not support the -6- NC: 2023:KHC:36575-DB CRL.A No.2034/2016 version of the prosecution regarding recovery. No Test Identification Parade was conducted for identification of accused No.3. The evidence of the prosecution was not cogent and consistent to convict the accused. There are no grounds to interfere with the trial Court judgment.
10. On considering the submissions of both side and material on record, the question that arises for consideration is ''whether the impugned judgment and order of acquittal passed by the trial Court suffers patent illegality and perversity?'' Analysis:
11. The case of the prosecution was that accused No.3 along with accused Nos.1,2 and 4 to 7 during the intervening night of 8th and 9th of July, 2011 at 2.00 a.m near Jai Hind Hotel within the limits of Kallambella police station, robbed PW.1 of his loaded lorry No.KA.09/A-4954, cash of Rs.3000/- and mobile phone, in all worth of Rs.20,05,000/-. It is further case of the prosecution that the accused in committing the robbery, used Scorpio vehicle No.TN.21/AZ-2777. As already noted, the trial Court has tried only accused No.3 since the other accused were absconding and not traced. Trial Court acquitted him on the following grounds:
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i) PW.1/the victim failed to identify accused No.3.
ii) Investigating Officer had not conducted Test Identification Parade.
iii) Alleged recovery of MOs.1 to 7 under the mahazars Exs.P6,8 and 9 were not proved.
12. It is settled position of law that in an appeal against the order of acquittal, the scope of interference by the appellate Court is very limited. Unless it is shown that the impugned judgment and order suffers patent illegality or perversity, the same cannot be interfered with.
13. Admittedly, the accused were unknown to the victim/PW.1. The complaint was filed against six unknown culprits. As per the evidence of PW.7/Kanakalakshmi B.M, accused Nos.1 to 3 were produced before her on 10.07.2011. In her deposition, PW.7 does not specifically state that she got the accused identified through PW.1. She only states that she conducted the spot mahazars Exs.P3 and P2, after interrogating the accused recoveries under Exs.P6, 8 and 9 were effected and she produced the accused before the Court. She then says that she recorded further statement of PW.1 on 10.07.2011.Therefore, there was no evidence to show that she got identified the accused through PW.1.
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14. PW.9 the next Investigating Officer states that he got police custody of accused No.1 on 27.07.2011 and recorded his voluntary statement. He does not state that he got any of the accused identified through PW.1. He admits that he did not conduct the Test Identification Parade for identification of the accused through PW.1. PW.7 also does not whisper anything about conducting test identification parade for identifying accused No.3 or any other accused through PW.1.
15. Contrary to the evidence of Investigating Officers, PW.1 in his chief-examination states that by the time he filed complaint in the police station, police had already apprehended the accused and brought them to the police station. He further states that there were three persons and he came to know that name of one of them was Murugan. Therefore, the public prosecutor treated him as hostile witness and cross-examined. In such cross-examination PW.1 says that when his further statement was recorded on 10.07.2011, accused was in the police station and he saw him in the police station. Thus there is material contradiction in the evidence of PW.1 and Investigation Officers.
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16. In the complaint and chief-examination, PW.1 specifically states that the culprits used Scorpio vehicle No.TN.21/AZ-2777. Whereas in the cross-examination by the defence Counsel he states that he cannot say the Scorpio car number. He states that culprits had blindfolded his eyes with cloth and he had seen only one amongst the six accused. In the cross-examination he unequivocally admits that he cannot identify, if accused No.3 was there at the time of offence, but he was in the police station. Accused No.3 or other accused were strangers to PW.1. The Investigating Officer did not conduct test identification parade for identification of accused. Having regard to such evidence of PW.1, the trial Court was right in holding that the identity of accused No.3 was not proved beyond reasonable doubt.
17. The other circumstances relied on by the prosecution were recovery of MOs.2 to 6 and Scorpio vehicle under the mahazar Ex.P6 from accused Nos.1 to 3, the seizure of Rs.3000/- MO.7 from accused No.2 under Ex.P8, robbed lorry MO.1 and articles/goods loaded in the same under mahazar Ex.P9. Ex.P6 is purportedly drawn on 10.07.2011 between 7 to 8 a.m. Ex.P8 is purportedly drawn on 10.07.2011 between 10.45 to 11.15 a.m. Ex.P9 is purportedly drawn on
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NC: 2023:KHC:36575-DB CRL.A No.2034/2016 10.07.2011 between 12 noon to 2.30 p.m. Ex.P6 and P8 are purportedly drawn in the police station.
18. One Ramanna and Krishnappa are the panchas to Exs.P6, P8 and P9. Krishnappa was not examined to prove the proceedings under Exs.P6 and P9. Ramanna was examined as PW.8. In his chief-examination he deposes that on 10.07.2011 at 7.00 a.m. himself and Krishnappa were summoned by Kallambella police and showed three persons to them and seized one plastic wire, coir rope, towel, TATA Sumo vehicle under the mahazar which were already in the police station and took his signature on Ex.P6. According to him, Muddu Ganesh (accused No.1) showed all those articles and said Muddu Ganesh was not before the Court. He further deposed in the chief-examination that the said Muddu Ganesh then took them to the place where lorry was parked and the same were seized under the mahazar Ex.P9. He says that there were three persons near that lorry and they fled away. In the cross- examination he states that he was informed about the incident on 10.07.2011 at 2.30 a.m. and was summoned to the police station on 8th. As already pointed out, the mahazars were allegedly drawn on 10.07.2011. Such admission of PW.8 falsifies the theory of seizure of material object on 10.07.2011.
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NC: 2023:KHC:36575-DB CRL.A No.2034/2016 Despite such admission of PW.8, the prosecution did not choose to examine other mahazar witness Krishnappa. Therefore the said evidence was of no use against accused No.3. PW.8 and CW.3/Krishnappa are the common panch witnesses to Exs.P6,P8 and P9. In the chief-examination of PW.8, he does not whisper anything about recovery of Rs.3000/- or drawing of the mahazar Ex.P8.
19. Then the only evidence that was left to prove the above seizure was that of PW.7 the Investigating Officer. The trial Court justifiably held that her evidence without corroboration cannot be accepted, as she will be interested in seeing that her investigation succeeds. Therefore circumstances of recovery were not proved by cogent and consistent evidence. The evidence regarding spot mahazars Exs.P2 and 3 was not very material.
20. Even if the evidence that PW.1 was robbed is accepted, the involvement of accused No.3 in the said robbery was not proved by cogent, consistent and satisfactory evidence. As per the evidence of PW.1 and police witnesses, PW.1 filed the complaint on 09.07.2011 at 6.30 a.m. alleging the assault and robbery. In the complaint, PW.1 has stated that after the incident he informed ITC Company and they asked him to file
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NC: 2023:KHC:36575-DB CRL.A No.2034/2016 complaint. On taking treatment in the hospital he filed complaint. Whereas, the doctor PW.3 states that PW.1 reported in the hospital with the history as recorded in Ex.P4. As per Ex.P4, history given was that he was assaulted near Sira bypass (Bharath Petrol Bunk) on 09.07.2011 at 2.00 a.m. with the lever by Tamil speaking gang and the history of robbery is not given there. That statement is also inconsistent with the prosecution version about the place of offence and manner of assault.
21. The trial Court on judicious appreciation of the evidence has rightly acquitted the accused. There is no perversity or patent illegality in the order. The appeal deserves no merits. Hence the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE PKN List No.: 1 Sl No.: 11