Karnataka High Court
Manjunath @ Kulla Manja S/O Dyavappa vs State Of Karnataka on 10 January, 2017
Equivalent citations: 2017 (4) AKR 310
Author: Anand Byrareddy
Bench: Anand Byrareddy
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IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL No.1285 OF 2010
BETWEEN:
1. Manjunath @
Kulla Manja,
Son of Dyavappa,
Aged about 23 years,
Occupation: Painter,
Resident of P & T Quarters,
1st Floor, L.B.Nagar,
Sagar.
Now residing at
Veerabhadreshwara Nilaya,
Rathnagiri Layout,
Shimoga.
2. Raghavendra @
Gadikatte Raghu,
Son of Hiryappa,
Mason,
Resident of Gadikatte Village,
Sagar Taluk.
3. Kaizer @ Kishor,
2
Son of Ameersab,
Aged about 30 years,
Agriculturist,
Resident of Harathalu Village,
Hosanagara Taluk.
4. N.C.Ashok @ Auto Ashoka,
Son of M.G.Chandrashekar,
Aged about 31 years,
Agriculturist,
Resident of Jogihonda,
Channiganathota Village,
Sagar Taluk.
5. Annappa,
Son of Thirupathi,
Aged about 35 years,
Resident of 1st Cross,
Sreedhara Nagara,
Sagar Pete,
Residing at Gadikatte Village,
Sagar Taluk.
6. Fayaz @ Auto Fayaz,
Son of Bashasab,
Aged about 26 years,
Occupation: Auto Driver,
Resident of 1st Cross,
S.N.Nagar,
Sagar Town.
7. Raghavendra @ Twist Raghu,
Son of Karunakar Shetti,
Aged 26 years,
Occupation: Mason,
3
Residing at 1st Cross,
Beside Ashram School,
S.N.Nagar, Sagar Pete,
Sagar.
8. Shahid,
Son of Noor Ahmed,
Aged about 22 years,
Occupation: Mason,
Residing at by the side of
Hostel, Pukkatnagar,
Sagar Town.
(Now all are in Judicial Custody,
Central Prison, Bangalore)
...APPELLANTS
(By Shri Hashmath Pasha, Advocate)
AND:
State of Karnataka by
Sagar Rural Police Station,
Sagar Circle,
Shimoga District.
(represented by learned
State Public Prosecutor)
...RESPONDENT
(By Shri S. Vishwamurthy, Government Pleader)
*****
This Criminal Appeal filed under Section 374(2) of the
code of Criminal Procedure, 1973, by the advocate for the
appellants praying to set aside the judgment of conviction dated
16/23.11.2010 passed by the Presiding Officer, Fast Track
Court, Sagar in S.C.No.89/2008 and 116/2009 - convicting he
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appellants/accused Nos.1 to 5, 7, 8 and 10 for the offence
punishable under Sections 448 and 395 of IPC. 1) The
appellants/accused Nos. 1 to 5, 7 and 10 are sentenced to
undergo R.I. for one year and pay a fine of rs.500/- each, in
default of payment of fine they shall further undergo R.I. for
one month - for the offence punishable under Section 448 of
IPC. 2) The appellants/accused Nos.1 to 5, 7 and 10 are
sentenced to undergo R.I. for ten years and pay a fine of
Rs.10,000/- each, in default of payment of fine they shall
further undergo R.I. for three months - for the offence
punishable under Section 395 of IPC. 3) The appellant/accused
No.8 is sentenced to undergo R.I. for one year and pay a fine of
Rs.500/-, in default of payment of fine he shall further undergo
R.I. for one month - for the offence punishable under Section
448 of IPC. 4) The appellant/accused No.8 is sentenced to
undergo R.I. for Ten years and pay a fine of Rs.10,000/-, in
default of payment of fine he shall further undergo R.I. for three
months - for the offence punishable under Section 395 of IPC.
The order of sentence of R.I. for both the offences imposed
against the accused Nos.1 to 5, 7 and 10 in S.C.No.89/2008 and
imposed against the accused No.8 in S.C.No.116/2009 shall run
concurrently.
This appeal coming on for Hearing this day, the Court
delivered the following:
JUDGMENT
Heard the learned counsel for the appellants and the learned Government Pleader.
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2. The appeal is filed by Accused Nos.1, 2, 3, 4, 5, 7, 8 and 10, as it is only these accused who have filed the appeal out of 11 accused who stood trial. The case was split up insofar as Accused Nos.6, 9 and 11 are concerned and they are absconding even as on date.
3. The facts leading up to this appeal are as follows:
It was the case of the prosecution that on 03.06.2007 at about 10.30 p.m. in Nedaravalli village, Sagar Taluk, within the limits of Sagar Rural Police Station, the complainant one N.G. Subbanna is said to have stated that he along with others, including some of the persons who were examined as witnesses at the trial, who were all members of a Society by the name of "Krushi Salada Sneha Sangha", consisted of 60 members, had gathered to contemplate the distribution of certain funds amongst its members. The amount collected was about Rs.3,25,000/-. In the complaint, it was vaguely stated that about 25 to 30 persons had gathered. The amount of 6 Rs.3,25,000/- in cash was placed in the midst of the gathering and while they were contemplating as aforesaid, it transpires that 11 men carrying deadly weapons and having masked themselves with monkey caps, had barged in and had held everyone at knife point and other deadly weapons and demanded that they be handed over the cash and immediately took away the cash and quickly went away from there. It transpires that the gathering had chased the accused but however, it transpires that a vehicle which had been pre- arranged by the accused is said to have come there and all of them have piled in and had escaped. The vehicle was identified as a Tempo Trax and it was also claimed that three of the accused had immediately fled on a scooter, while the rest got into the Tempo Trax which had arrived there as pre-arranged and all of them had escaped. It is in this background that a complaint was registered against unknown persons and the police had taken up further investigation. It is during such investigation the police are said to have arrested Accused Nos.1 7 to 5 and on the basis of their voluntary statements, the identity of all the 11 accused was ascertained and investigation was taken up and the accused were named on the basis of the voluntary statements. Further, recoveries were made of the weapons used and the vehicles used for commission of the offence were also seized in the presence of panchas and mahazar were drawn up of the respective seizures made and accordingly, a charge-sheet was filed for an offence punishable under Section 395 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity). On further proceedings, it transpires that Accused No.7 and Accused No.10 voluntarily appeared before the Committal Court and they were remanded to judicial custody and recoveries were made at their instance as well, namely Choppers - Material Objects 12 and 13 were recovered at their instance.
In a similar fashion, the presence of Accused No.8 was also secured and similar proceedings were taken against him and he was also committed to the Sessions Court. The 8 Sessions Court thereafter has registered a case in S.C.No.89/2008 against Accused Nos.1 to 5, 7 and 10. S.C.No.89/2008 was initially filed and subsequently it stood transferred from the court of the Sessions Judge, Shimoga to the FTC-I, Shimoga, for disposal and again, S.C.No.116/2009 was registered. Both the Sessions cases were tried together. The case was split up insofar as Accused No.6, 9 and 11 are concerned. The accused who stood trial had pleaded not guilty and claimed to be tried. The prosecution had then examined 23 witnesses and marked several exhibits and material objects and the statement of the accused under Section 313 Cr.P.C. having been recorded in both the aforesaid cases, namely S.C.No.89/2008 and S.C.116/2009, the Trial Court framed the following points for consideration, in both the cases, as follows:
"The points that would arise for consideration of this court in S.C.No.89/2008 are:
"1. Whether the prosecution proves beyond all reasonable doubt that on 3.6.2008 at 10.30 9 P.M., the accused Nos.1 to 5 and accused Nos.7 and 10 along with the absconding accused trespassed into the house of the P.W.1 complainant situated at Nedaravalli of Sagar Taluk which is the dwelling house of C.W.1 with an intention of committing the offence of dacoity and thereby the said accused have committed an offence punishable under Section 448 of I.P.C.?
2. Whether the prosecution further process beyond all reasonable doubt that on the aforesaid date, time and place the accused Nos.1 to 5 and accused Nos.7 and 10 along with the absconding accused committed the dacoity by putting the complainant and C.W.3 to C.W.7 under fear by showing them the Chopper, Knife and putting them under the fear of death and robbed Rs.3,25,000/- and thereby the said accused have committed an offence punishable under Section 395 of I.P.C.?"
The points that would arise for consideration of this court in S.C.No.116/2009 are:
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1. Whether the prosecution proves beyond all reasonable doubt that on 03.06.2007 at 10.30 P.M., the accused No.8 Raghavendra @ Twist Raghu along with the accused Nos.1 to 5 and 7 and 10 and absconding accused Nos.6, 9 and 11 trespassed into the house of C.W.1 complainant, situated at Nedaravalli of Sagar Taluk which is a dwelling house of C.W.1 with an intention of committing the offence of dacoity and thereby the said accused has committed the offence punishable under Section 448 of IPC.?
2. Whether the prosecution further proves beyond all reasonable doubt that on the aforesaid date, time and place the accused No.8 along with the accused Nos.1 to 5 and 7 and 10 and also with absconding accused Nos.6, 9 and 11 committed the dacoity by putting the complainant and the C.W.3 to C.W.7 under fear by showing them Chopper, and Knife and put them under fear of death and robbed Rs.3,25,000/- and thereby the said accused has committed the offence punishable under Section 395 of IPC.?"11
The points were answered in the affirmative in both the cases and the accused were convicted. Each of the Accused Nos.1, 2, 3, 4, 5, 7 and 10 in S.C.No.89/2008 were sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/- each and in default of payment of fine, each of them to undergo rigorous imprisonment of one month for an offence punishable under Section 448 IPC; Each of the Accused Nos.1, 2, 3, 4, 5, 7 and 10 in S.C.No.89/2008 were further sentenced to undergo imprisonment for a period of ten years and to pay a fine of Rs.10,000/- each and in default to pay fine, to undergo further rigorous imprisonment for a period of three months, for the offence punishable under Section 395 IPC; Accused No.8 in S.C.No.116/2009 was convicted for an offence punishable under Section 448 IPC and was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.500/-, and in default to pay fine, to undergo a further rigorous imprisonment for a period of one month; Accused No.8 in S.C.No.116/2009 was further convicted for 12 the offence punishable under Section 395 IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.10,000/- and in default to pay fine, to further undergo rigorous imprisonment for three months. The order of sentence of rigorous imprisonment for the both the offences imposed against Accused Nos.1 to 5, 7 and 10 in S.C.No.89/2008 and imposed against Accused No.8 in S.C.No.116/2009 were to run concurrently.
It is that common judgment which is under challenge in this appeal by the aforesaid accused.
4. The learned counsel Shri Hasmath Pasha appearing for the accused would point out that the Trial Court is not justified in convicting the accused on the basis of the evidence that is on record. He would point out that the evidence is totally insufficient and even the evidence that is tendered could not have been relied, on account of the inconsistencies and infirmities that are apparent from the record. He would point 13 out that the FIR was preferred against eight (8) unknown persons and it is apparent that none of the accused had been identified as those eight persons by the complainant or the other eye-witnesses.
Secondly, the incident is said to have taken place at 10.30 p.m. on 3.6.2007, whereas the FIR was lodged on 4.6.2007 at 10.00 a.m. and the FIR had reached the Magistrate at 1.30 p.m. Therefore, the delay of 15 hours is not at all sought to be explained, which would indicate that there was much contemplation before even registering the FIR and placing it before the court.
It is further pointed out that in the absence of identification of any of the accused, the only case that is sought to be made out by the prosecution is on the basis of voluntary statements of Accused Nos.1 to 5 which is also not very clear as to how and when the accused were arrested and in what circumstances that they could be suspected of having committed the offence, when there was no identity whatsoever 14 of the complainant or the eye-witnesses. In any event, on the basis of the voluntary statements, identity allegedly gathered of the other accused and they having been named in the charge- sheet itself, would defeat the case of the prosecution, as it is without any basis.
Further, insofar as establishing the charges against the accused, the eye-witnesses examined are PW-1, the complainant himself, who in fact has been treated as partly as a hostile witness. In that, he did not support the case of the prosecution and it is not his case that he had identified any of the accused. Similarly, PW-2 Shrinivas was also treated as a hostile witness and he has also not stated that he had identified any of the accused in the first instance. Nor PW-3 who was yet another eye-witness and also one of the panch witnesses for recovery of material objects allegedly at the instance of Accused Nos.7 and 10 under the mahazar Exhibit P-7. 15
PW-4, yet another eye-witness was also treated as a hostile witness. The said witness had stood as a panch witness also. PW-5, yet another eye-witness has candidly admitted that he was shown to Accused Nos.1 to 5 by the police in the Police Station on 17.06.2007.
Therefore, it is pointed out by the learned counsel that if a case is filed against unknown persons and if the police seek to identify the accused as those unknown persons, it could only be on the basis of the complainant and the eye-witnesses having recognized those unknown persons in the first instance. It is not the case of the prosecution or the complainant or the eye- witness that any of them had identified any of the accused in the first instance. Therefore, even if there was to be such identification, it could have been only at a Test Identification Parade (TIP), where there could be some semblance of a veracity attached to such identification.
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In this case on hand, there was no test identification parade. Admittedly, the accused have been pointed out to the eye-witness PW-5 for the first time on 21.06.2007 when they were in police custody and it is on the basis of such a circumstance that PW-5 has identified the named accused at the trial. For otherwise, it was not possible for even that witness to ever identify the accused. Therefore, the very identification of the accused is not established. The other circumstance on the basis of which the prosecution seeks to advance its case is that the accused are all persons of a humble origin and were menial labourers, auto-rickshaw drivers and holding other humble positions and since relatively large amount of cash, namely Rs.10,000/- from Accused No.1, Rs.20,000/- from Accused No.2, Rs.10,000/- from Accused No.3 and Rs.10,000/- from Accused No.5 having been recovered, the police have concluded that it was nothing but a share of the money that was looted, as stated by the complainant. It is this which is also a grave circumstance that is sought to be foisted against the 17 appellants in seeking to frame them in the commission of the alleged offence.
It is however pointed out by the learned counsel that any such recovery of money by itself, will not lead to a presumption of commission of a crime. In this regard, the learned counsel would point out that identifying currency notes which are said to have been robbed from the complainant and others can never be accepted and the Supreme Court in the case of Arjun Marik and others vs. State of Bihar 1994 SCC Crimes 1551, expressed its opinion thus, in similar circumstances:
" The most surprising part of their evidence is that they go even to the length of identifying the currency notes which are said to have been stolen from the house of the deceased Sitaram. It is beyond comprehension as to how the currency notes could be identified by these witnesses."
The learned counsel would thus submit that it is hence illogical to proceed on the basis that since currency notes have 18 been recovered from the accused, it would definitely lead to a guilt having been established, is a preposterous proposition and could not even suggest it, let alone relied upon by the court below in finding the guilt of the accused.
It is further pointed out that insofar as the sequence of events sought to be recounted, is also on the basis of the evidence of PW-23, the Investigating Officer, who has narrated that on 4.6.2007 on further investigation being taken up, a spot mahazar was conducted and there was information gathered from the Head Constable of the vehicle used in the commission of the offence as being a Tempo Trax vehicle bearing Registration No.KA-31 M 708, which was identified and traced to belong to PW-20 Siddesh and that on 17.06.2007, on suspicion, Accused No.1 was taken to custody and subjected to interrogation and voluntary statement as per Exhibit P-27 was recorded and it was at his instance that the Tempo Trax had been recovered, from where a knife and cash of Rs.10,000/- 19 was seized under a mahazar Exhibit P-13. Therefore, it is pointed out that even insofar as the vehicle having been used in the commission of the offence is also based on voluntary statement and not on the basis of any eye-witness account as to the registration number of the vehicle or the vehicle belonging to PW-20. PW-20 in turn has turned hostile and has not supported the case of the prosecution. Therefore, the use of the vehicle in the commission of the crime is not established.
The Investigating Officer has further stated that on 17.06.2007, based on the voluntary statement of Accused No.1, Accused No.2 and Accused No.3 had been arrested and based on their voluntary statement, the scooter used in the commission of the offence was seized and based on the voluntary statement of Accused No.3, further cash of Rs.35,000/- was seized, which was kept in the house of Savitramma who was not examined at the trial. 20
Accused No.5 was arrested on 17.06.2007 and on the basis of his voluntary statement, cash of Rs.10,000/- was recovered under a mahazar, but it is noticed that the panch witness to the mahazar had turned hostile. It is on the basis of this unwieldy evidence that a charge-sheet was filed and other arrests were made of other accused and the proceedings had gone on.
It is pointed out that insofar as the identification of the accused which would be the first step in the investigation and prosecution of the accused is concerned, a line of cases decided by the Supreme Court which have firmly settled the law, would have to be read in favour of the accused. As for instance, in the case of Mohd Iqbal M. Shaikh & Others vs. State of Maharashtra ((1998) 4 SCC 494), a witness had been called to the police station on every occasion and he had been shown to the accused persons. The court had held that if the witness knew the accused persons either by name or by face, the question of the police showing him the accused persons would 21 be irrelevant. If the witness did not know the accused persons by name but could only identify from their appearance, then a test identification parade was necessary.
Hence, in the present case on hand, when there was no indication of the accused having been recognized in the first instance, conducting a Test identification parade, was meaningless. If the identification was only on the basis of the accused having been shown to the witness prior to the trial and thereafter if at the trial he merely identifies the accused on the basis of the recognition as pointed out by the police, it would be no identification. Similar is the law laid down in the case of Mohanlal Gangaram Gehani vs. State of Maharashtra (1982) (1) SCC 700, L Choraria vs. State of Maharashtra AIR 1968 SC 938, and the case of Mohd. Abdul Hafeez vs. State of Andhra Pradesh (1983) 1 SCC 143. Hence, the learned counsel would submit that the prosecution has miserably failed to bring home the charges against the accused on the basis of such evidence and hence seeks acquittal of the accused and would point out 22 that the court below notwithstanding these infirmities and the lack of evidence having found in favour of the prosecution and having held that the case against the accused had been proved beyond reasonable doubt, cannot be accepted and hence seeks that the appeal be allowed and the judgment of the court below be set aside.
5. The learned Government Pleader on the other hand, would make a weak attempt to sustain the judgment.
6. Given the above facts and circumstances, as rightly contended by the learned counsel for the appellants, the identity of the accused was not known to the complainant or the witnesses and they were strangers to the accused. They were completely masked at the time of the incident and hence, none of them were recognized. When the accused are said to have made their get away, in three of the accused having used a scooter and the others being picked up by a Tempo Trax vehicle, there was no identity of the vehicles by any of the 23 witnesses, especially since it was late in the night. It is only later on a voluntary statement of Accused No.1 that the said vehicles have been identified. Even though the owner of the tempo trax vehicle was examined as PW-20, he has not supported the case of the prosecution. Therefore, the commission of the offence by the accused or the vehicle used in the commission of the offence is not established by any cogent evidence and it is only on the basis of voluntary statements, which cannot be relied upon. The mere recovery of weapons or currency notes from the custody of the accused on the basis of their voluntary statements, also cannot be sustained, as it is not possible and it is not logical to hold that on the basis of identification of currency notes they could be related to the incident. Further, it cannot be said that the money which was taken away on commission of robbery was the very money which was recovered from the accused. This exercise of identifying the currency notes is impossible and cannot be accepted as being plausible for the prosecution to sustain its 24 case merely on the ground that the accused were of humble means and since they were found with large amounts of cash uniformly, all of them were involved in the commission of the crime.
This would be unfair to the accused and is not the legal presumption that would arise on such recoveries being made, especially when it is stated to be on the voluntary statements made by the accused and especially since such recoveries have been made after 15 days of the incident. The recovery of deadly weapons and the assumption of the prosecution that they were used in the commission of any offence, also cannot be sustained, as it is not the case of the prosecution that such weapons had been used in causing hurt or that there were incriminating circumstances where the weapons could be linked to the commission of any such offence and therefore, in the absence of the necessary ingredients which would enable the prosecution to contend that a positive link had been developed in the commission of the offence and the involvement of the 25 accused by their identification and other incriminating material except the voluntary statements of the accused, it cannot be said that the prosecution had proved its case beyond all reasonable doubt.
Consequently, the appeal is allowed. The judgment of the court below is set-aside. The accused are acquitted. The bail bond furnished by the appellants shall stand cancelled and the amount of fine paid shall be refunded to the appellants. The amounts recovered from the respective accused shall be returned to them.
Sd/-
JUDGE KS