Karnataka High Court
State By Attibele Police vs Gopala @ Gopalagowda on 2 September, 2013
Bench: N.K.Patil, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF SEPTEMBER, 2013
PRESENT
THE HON'BLE MR. JUSTICE N.K.PATIL
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
CRIMINAL APPEAL NO.133/2009
BETWEEN:
STATE BY ATTIBELE POLICE
...APPELLANT
(BY SRI.P.M.NAWAZ - ADDL. SPP)
AND:
1. GOPALA @ GOPALAGOWDA
S/O SHIVEGOWDA
AGED ABOUT 27 YEARS
R/O BASHA BUILDING,
KAMMASANDRA ROAD,
HEBBAGODI
2. PUTTA @ PUTTANNA
S/O RAMAIGOWDA
AGED ABOUT 27 YEARS
R/O IRAGANAHALLI VILLAGE
KATTAYA HOBLI
HASSAN TALUK
3. NAGARAJU @ ARJUN
S/O LAKKASHETTY
AGED ABOUT 28 YEARS
R/O BASHA BUILDING,
KAMMASANDRA ROAD,
2
HEBBAGODI ...RESPONDENTS
(BY SRI.GURURAJ JOHI- ADV. FOR R-1 & 2,
SRI.K.L.NARAYANA SWAMY - ADV. FOR R-3)
THIS CRL.A. IS FILED U/S. 378 (1) & (3) CR.P.C
PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST
THE JUDGEMENT AND ORDER DT: 13.10.2008, PASSED
BY THE SESSIONS JUDGE, FAST TRACK COURT-II,
BANGALORE (R) DISTRICT, BANGALORE IN SESSIONS
CASE NO: 365/2007 - ACQUITTING THE RESPONDENTS/
ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, KEMPANNA J., DELIVERED THE FOLLOWING:
JUDGEMENT
The State has preferred this appeal challenging the judgment and order of acquittal of respondents/accused of the offence punishable under Section 395 of IPC.
2. The respondents/accused came to be tried on the charge for the offence punishable under Section 395 of IPC. It is alleged that respondents/accused, who are A1, A3 and A5, along with four others on 30.6.2007 at about 11.00 a.m. near Attibele check post committed robbery of copper scrap weighing 11.110 kgs total worth Rs.48,88,468 belonging to PW1-Sachin Kumar from the 3 lorry bearing No.KA22-4587 by putting fear of instant death to PW2-Nagaraj and thereby have committed the aforesaid offences.
It is the case of the prosecution, PW1 is carrying on scrap business under the name and style M.S.Metal and Steel Pvt. Ltd. Bangalore. He owns a godown bearing No.62 situated in Timber Yard Layout, Mysore Road, Bangalore. It is the case of the prosecution on 30.6.2007 PW1 had taken the lorry bearing No.KA22- 4587 from Laxmi Roadlines situated at Chamarajpet on hire and in the said lorry loaded 11.110 kgs of copper scrap to be transported to M/s.Shakthi Auto Company at Erode. The said lorry was driven by PW3-Nagaraju along with his son PW2 as cleaner. The lorry left to Erode at about 9.45 p.m. When the said lorry reached Attibele checkpost at about 11.00 p.m., PW3- driver of the lorry stopped the same, went to the check post in order to get the seals of the department to be affixed on the invoice of the goods transported in the lorry leaving PW2-cleaner in the lorry. After he left to the check post, 4 two persons came near the lorry, one among them entered the lorry from the right side i.e. from the steering wheel side. The other entered from the left side of the lorry. The person who entered the lorry from the left side held PW2 at the knife point and threatened him not to raise cries. Thereafter the lorry was driven by the other person from the check post. After they passed the check post they drove the lorry to the Eucalyptus Grove situated at Sarjapur by which time 8 more persons had followed the said lorry in a motor cycle and also in two other lorries bearing Nos.KA01-557 and KA05-7259. After the lorry was taken to the Eucalyptus Grove, the accused persons shifted the copper scrap which was in the lorry bearing No.KA22-4587 to two other lorries viz. KA 01 557 and KA 05 7259. This was witnessed by PWs 9 and 10. Thereafter, it is the case of the prosecution accused drove all the three lorries with the copper scrap that was shifted to the lorries.
It is the case of the prosecution thereafter the accused brought PW2 in the lorry near M.S.Ramaiah 5 hospital, Bangalore, and there they left him after paying him Rs.500/- threatening him not to reveal what had transpired till then to anybody.
In the meantime, it is the case of the prosecution, PW3 who had gone to the check post came to the place where he had parked the lorry. On finding the lorry and his son missing from the said place, called his owner- Suresh and informed him about the missing of the lorry and his son, which he had parked near Attibele check post. The said Suresh, in turn, informed the same to PW1- owner of the copper scrap. It was about 11.45 p.m. on 30.6.2007. Thereafter both PW1 and Suresh, the owner of the lorry came near Attibele check post and there they were informed by PW1 that the lorry and his son are found missing. They searched for the lorry and PW2. They were unable to trace the same.
Thereafter it is the case of the prosecution PW1 on 1.7.2007 proceeded to Attibele police station and there he filed his complaint as per Ex.P1 before PW12 - PSI. 6 PW12 on the basis of Ex.P1 registered a case in Crime No.173/2007 for the offence u/s.379 of IPC initially against unknown persons and issued FIR as per Ex.P19 to the Jurisdictional Magistrate. Thereafter he handed over further investigation of the case to PW14, the investigating officer in the case. PW14 on taking over investigation proceeded to Attibele check post and there he drew up the spot panchanama as per Ex.P3 in the presence of PWs 1,3, and 6. After completing Ex.P3, he recorded the statements of PWs 3, 9 and 10. Thereafter on the information given by PW3 he seized the lorry bearing No.KA22-4587 which had been abandoned opposite to BDA park situated in Dollars colony, RMV II stage, Bangalore under the panchanama-Ex.P2 in the presence of pancha-PW13. Thereafter, he deputed his staff to trace the accused in the case. On 4.7.2007 he received the information about the lorry bearing No.KA05-7259 from the RTO-Hassan which disclosed that one Gopalagowda @ Gopala s/o.Shivegowda of Mallahalli village, Shanthipura Hobli, Hassan Taluk is 7 the owner. Thereafter on 16.7.2007 his staff comprising of PW11 apprehended A1, A3, A5, who are the respondents/accused in the case, near Peenya Dasarahalli bus stand at about 8.30 a.m. and produced before him at about 10.00 a.m. He arrested the said accused viz. A1, A3, A5/respondents in this appeal. On their interrogation he recorded their voluntary statements as per exhibits P20, P21 and P22 respectively. Thereafter, PW14 in pursuance of Ex.P20
-information of A1, seized 4000 kgs of copper scrap from the shop of PW4 under the mahazar-Ex.P11 in the presence of the pancha- PW5. On completion of Ex.P11, PW14 continuing the investigation seized 3100 kgs of copper scrap from behind the shop of PW8 at Peenya under the mahazar Ex.P12 in the presence of the very same pancha-PW5. Thereafter he produced the accused before the Jurisdictional Magistrate on the morning of 17.7.2007 and got them remanded to police custody for a period of five days. Continuing the investigation on 18.7.2007 he seized 4010 kgs of copper 8 scrap from the house of one Rangasamy situated at Ganjigere village of Hassan Taluk under the mahazar- Ex.P13 in the presence of the very same pancha-PW5. Under the mahazar Ex.P13, PW14 also seized the lorries bearing Nos.KA-01-557 and KA-05-7259. Further on 19.08.2007 PW14 seized the motor cycle bearing No.KA 51-4159 from the house of A5 under the panchanama Ex.P14 in pursuance of his statement Ex.P22. Thereafter, PW14 on completion of the arrest formalities of A1, A3 and A5 got them remanded to judicial custody. He also deputed his staff to trace the other absconding accused. In the mean time, he also recorded the statements of the witnesses examined on behalf of the prosecution and also cited in the charge sheet. As he could not trace the other absconding accused since the investigation had been completed, he submitted final report against the accused showing A2, A4, A6 and A7 as absconding in the case before the Jurisdictional Magistrate. The learned Magistrate thereafter split up the case of the absconding accused 9 as they could not be traced and committed the case of A1, A3 and A5/respondents in the appeal to the court of sessions which, on receipt of the records secured the presence of the accused, framed charge against them as aforesaid to which they pleaded not guilty and claimed to be tried.
The prosecution in support of its case in all examined PWs 1 to 14 and got marked exhibits P1 to P22. The accused have not got marked any defence exhibits in the course of the examination of the prosecution witnesses.
After the closure of the prosecution evidence the accused denied all the incriminating circumstances in their examination u/s.313 Cr.P.C. They also submitted they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.
The learned trial judge on consideration of the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish the charge leveled against the accused. Accordingly, by 10 the impugned judgment and order acquitted them of the charge leveled against them.
The State being aggrieved by the said judgment and order of acquittal is in appeal before this court.
3. The learned Addl. SPP assailing the impugned judgment and order contended, the evidence of PW1 coupled with the evidence of PWs 2 and 3 clinchingly establishes that the accused tried in the case have committed dacoity of copper scrap belonging to PW1. That is also further fortified from the recovery of the copper scrap and the lorries under the panchanamas Exs.P11, P12 and P13 from the shop of PW4 at Jalimohalla in Bangalore, from behind the shop of PW8- Shivakumar at Peenya and from the house of Rangaswamy situated at Ganjigere of Alur Taluk, Hassan District which is testified to by the pancha-PW5. Nothing has been brought on record in the cross examination of these witnesses to discard their testimonies with regard to the accused taking away the copper scrap loaded in the lorry hired by PW1 and 11 seizure of the same at the instance of A1 under panchanama. The learned trial Judge despite this material evidence on record without appreciating the same in its right perspective has committed an error in holding that the prosecution has failed to establish the charge leveled against the accused which is contrary to the evidence on record and therefore, the impugned judgment and order of acquittal calls for interference.
4. Per contra, the learned counsel appearing for the respondents/accused supported the impugned judgment and order of acquittal.
5. In view of the aforementioned facts, evidence and the documents on record, the point that arises for our consideration is, "Whether the impugned judgment and order of acquittal calls for any interference?"
6. PW1 being the owner of the copper scrap weighing 11.110 kgs. is not disputed before us. He having transported the same from Bangalore to 12 M/s.Shakthi Auto Company, Erode, in the lorry bearing KA22-4587 which he had taken on hire from M/s.Laxmi Roadways situated at Chamarajpet is also not disputed. PW3 being the driver of the lorry and PW2 the cleaner of the lorry is also not disputed.
7. It is the case of the prosecution on 30.06.2007 after the lorry left with the copper scrap load from the godown of PW1 situated at Timber Yard Layout, Mysore Road, Bangalore, at about 9.45 p.m., it reached Attibele check post (Commercial Tax Department) at about 11.30 p.m. At Attibele check post, PW2 stopped the lorry in order to get the clearance on the invoice in respect of the goods viz the copper scrap which was being transported in the lorry and went to the check post leaving behind PW2 in the lorry. After he left to the check post, according to the prosecution, two persons entered the lorry from the two doors of the cabin situated on the right and left side. Among the two persons, one entered the lorry from the steering wheel side and other from the left side of the lorry where PW2 13 was seated. The person who entered the lorry from the left side held PW2 under a knife point and threatened him not to raise any cries. Thereafter the lorry was driven by the other person and it was taken to eucalyptus groove situated at Sarjapur. The said lorry was followed by motor cycle and two other lorries viz. KA01-557 and KA05-7259 where the accused along with five others shifted the copper scrap that was in the lorry driven by PW3 to two other lorries. Thereafter accused took the lorries along with PW2 and deserted him near M.S.Ramaiah College at Bangalore. PW1 has testified to the fact of he having loaded copper scrap in the lorry. His evidence discloses at about 11.30 p.m. he received an information on phone from the lorry owner Suresh that the lorry in which he loaded the copper scrap is found missing along with the cleaner. He came to Attibele check post by which time the owner of the lorry also came. They searched for the lorry and PW2. As they could not trace, according to PW1 he filed his complaint-Ex.P1 before PW11- PSI on 1.7.2007 at about 14 3.00 P.M. PW2 who is the cleaner of the lorry is a material witness in the case. A perusal of his evidence discloses that after the accused drove the lorry from the check post, the accused shifted the copper scrap into two other lorries and thereafter, he was deserted near M.S.Ramaiah college at Bangalore at about 3.00 a.m. i.e. at about 3.00 a.m on 1.7.2007. According to him the accused paid him Rs.500/- and threatened him not to reveal to anybody. Thereafter, he took an auto and came to the transport office i.e.M/s.Laxmi Roadways belonging to Suresh situated at Chamarajpet, Bangalore. From the said lorry office he informed his father-PW3 about what had transpired on that night. He also informed the same to PW3-Suresh, owner of the lorry. His evidence further reveals on 1.7.2007 at about 10.00 a.m. he had been to Attibele police station by which point of time, PW3- his father, and Suresh- owner of the lorry were also present. It further reveals that the police made enquiries with him and recorded his statement. This evidence of PW2 discloses that he 15 had divulged what had transpired previous night not only to the police, but also to his father PW3, owner of the lorry and also to PW1 who was present at that time. The evidence of PW1 discloses that he filed the complaint reporting the missing of the lorry at about 3 p.m. on 1.7.2007 by which time PW2 had already divulged the information about what had transpired previous night. The said information of PW2 which was in the earlier point of time has been suppressed in the case. Further in the cross examination of PW3 who is none other than the father of PW2 it also reveals that at about 2.30 a.m. he had filed a complaint to Attibele police and he had informed the police about the missing of the lorry and his son. This would go to show that as already pointed out, the earliest information that had been given in respect of the missing of the lorry and as to how things had been transpired has been suppressed in this case. Therefore, Ex.P1 has seen the light of the day after much water has flown under the bridge and 16 therefore, we are of the view it is a document which is hit by Section 161 of the Cr.P.C.
8. The other major lacuna in the case is, according to the prosecution the accused after committing dacoity, have sold the copper scrap to the volume of 4,000 kgs to PW4, owner of the shop situated at Jali Mohalla at Bangalore. The said scrap was recovered under Ex.P11 on 16.7.2007 in pursuance of the information Ex.P20 of A1. On a perusal of the evidence of PW14, the investigating officer who had recorded Ex.P20 of A1, it is contra to the recovery made from the shop of PW4. Apart from this the evidence of PW4 reveals it is only A1 who had come to his shop along with police and nowhere in his evidence he has stated that the panchas were present at the time seizure was made from his shop as projected by the prosecution.
The voluntary statement Ex.P20 recorded by PW14 does not lead to the recovery of copper scrap from the shop of PW4. Likewise is the recovery in respect of 17 the copper scrap that has been seized from the behind the shop of PW8 at Peenya. PW8 who is examined by the prosecution has turned hostile and has not supported the case of the prosecution.
9. Apart from this the panchanama-Ex.P12 discloses that it was drawn up on 16.7.2007. The copper scrap was found in the lorry bearing No.KA01-
557. It is unthinkable and no explanation is offered that the lorry was being kept standing for nearly 16 days with copper scrap in the said lorry. Apart from this the recovery of copper scrap under Ex.P12 itself cannot be believed because Ex.P20 does not lead to the said recovery.
10. Insofar as the recovery that has been made under Ex.P13 also the same analogy holds good inasmuch as Ex.P20 does not lead to the said recovery. Apart from the same, ExP13 has come to be drawn up on 18.7.2007 nearly about 2 days after the arrest of A1 and though A1 is in custody since 16.7.2007 as the recovery 18 has been made 2 days later, the said recovery also becomes suspect and also does not inspire confidence to place reliance on the same.
11. PWs 9 and 10 are the witnesses according to the prosecution who had seen the accused shifting the copper scrap from the initial lorry driven by PW3 to two other lorries in the eucalyptus groove at Sarjapur. They have turned hostile to the prosecution. Therefore, their evidence is of no avail in any manner to connect the accused in the alleged offence.
12. Apart from this the evidence of PW2 discloses that whatever he has stated in his examination-in-chief is at the instance of the police. Further in this particular case the accused are strangers to PW2. No steps have been taken by the investigating officer to hold identification parade. An admission has been given by PWs 2 and 3 that they have seen the accused for the first time before the Court. In that view of the matter we find it 19 difficult to place reliance on their testimony also to hold that the accused have committed dacoity.
13. Taking from any angle as the earliest information given by PWs 2 and 3 to the police has been suppressed and Ex.P1 has seen the light after much water has flown under the bridge and further as the recoveries that have been made is contrary to the statement of A1 viz. Ex.P20, we find it difficult to accept the version of the prosecution as projected through witnesses examined on behalf of the prosecution.
14. Therefore, we are of the view that the prosecution has failed to establish the charge by placing cogent, reliable and legal evidence on record. The learned Trial Judge on an appreciation of the entire evidence and the documents on record in our view has come to the right conclusion in holding that the prosecution has failed to establish the charge leveled against the accused. The said finding in our view having been based on facts and 20 evidence does not suffer from any infirmity or illegality calling for interference in this appeal.
Accordingly, we do not find any merit in the appeal and it is dismissed.
Sd/-
JUDGE Sd/-
JUDGE rs