Karnataka High Court
The State Rep.By Srirampura Police ... vs Dharmesh @ Dharma on 11 August, 2022
CRL.A. No.1190/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF AUGUST 2022
PRESENT
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR. JUSTICE S.RACHAIAH
CRIMINAL APPEAL NO.1190/2015 (A)
BETWEEN:
THE STATE
REP. BY SRIRAMPURA POLICE STATION
(C.P.I. HOSADURGA CIRCLE) - 577 527 ...APPELLANT
(BY SRI.VINAYAKA V.S., HCGP)
AND:
1. DHARMESH @ DHARMA
S/O SANNEGOWDA
AGED 24 YEARS
R/O 8TH CROSS, GANAPATHINAGARA
LAGGERE, BENGALURU
PERMANENTLY R/AT CHANNARAYAPATTANA
MEGALAKERE OLD, BUS-STAND - 573 116
2. ANAND
S/O THIMMAIAH
AGED 28 YEARS
R/O SHIVAPURA MAIN ROAD
OPP: SWAMY BAKERY BUILDING
SHEET HOUSE, NELAGADDARAHALLI
BENGALURU - 73
3. NAVEENKUMAR @ NAVEEN
S/O MADUSUDAN
AGE: 27 YEARS
R/O BEHIND SHANIMAHATMA TEMPLE
CRL.A. No.1190/2015
2
KACHOHALLI, MAGADI ROAD
BENGALURU - 23
4. SATISH @ KADDI SATHISH
S/O GOPALA
AGE: 24 YEARS
R/O.NO.273, 15TH CROSS
INDLABEL ROAD
SHARA DEVI SCHOOL MAIN ROAD
ATTIBELE, ANEKAL TALUK
BENGALURU - 562 107
5. SANTHOSH @ NEPALI
S/O NAGARAJ
AGE: 27 YEARS
R/O SHIVAPURA MAIN ROAD
OPP. TO HASANA HARISH
BEKARY BUILDING, NELAGADDERAHALLI
BENGALURU - 73
6. ANINASH @ AVI
S/O THIPPESWAMY
AGE: 22 YEARS
R/O WORKING IN LAB AT
ITEM FARM LIMITED, CHOKKASANDRA
R/O NELAGADDERAHALLI NO.151
AKKIGODI NILAYA, MES SCHOOL ROAD
NAGASANDRA POST, BENGALURU - 73 ...RESPONDENTS
(BY SRI.LAKSHMIKANTH K, ADVOCATE FOR R1, R3 TO R5;
SRI.MOHAMED KHAN, ADVOCATE FOR R6;
VIDE ORDER DATED 03.01.2022
APPEAL AGAINST R2 STANDS ABATED)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C. PRAYING TO GRANT LEAVE TO APPEAL AND
SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED
31.03.2015 PASSED BY THE ADDL. DISTRICT AND SESSIONS
JUDGE, CHITRADURGA IN S.C.NO.93/2013 ACQUITTING THE
RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 395, 397, 398, 506 READ WITH 149 OF IPC AND ETC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, K.S.MUDAGAL J., DELIVERED THE
FOLLOWING:
CRL.A. No.1190/2015
3
JUDGMENT
Heard.
2. Aggrieved by the acquittal of accused Nos.1 to 6 in S.C.No.93/2013 on the file of the Additional District And Sessions Judge, Chitradurga, the State has preferred the above appeal.
3. Respondents-accused Nos.1 to 6 were prosecuted in SC No.93/2013 before the trial Court for the offences punishable under Sections 395, 397, 398, 506 read with Section 149 of IPC on the basis of the charge sheet filed by the Srirampura Police Station in Crime No.45/2011 of their police station. Crime No.45/2011 was registered on the basis of the complaint as per Ex.P4 said to be filed by PW.1.
4. Pending this appeal accused No.2 died. Therefore appeal against accused No.2 abated.
5. For the purpose of convenience the parties will be referred to henceforth according to their ranks before the trial Court.
CRL.A. No.1190/20154
6. The case of the prosecution in brief is as follows:
(i) In the year 2000, PW.2 was working as Medical officer in Honnenahalli Government Hospital, Kadur. PW.3 is the wife, PW.4 is the son and PW.1 is the elder brother of PW.2. PW.5 is the wife of PW.1. PW.2 was residing with his family in a rented house in Belaguru village of Hosadurga Taluk.
(ii) On 31.03.2011 PW.1 and 5 and the family of PW.2 had returned to their house in Belaguru after pilgrimage to Tirupathi. During the intervening night 31.03.2011/01.04.2011 at 2.00 a.m. accused Nos.1 to 3 tapped the door of the house of PW.2 in the guise of patients.
On opening the door, accused Nos.1 to 3 barged into the house. Accused No.1 assaulted on the left heel of PW.2 with a chopper and robbed his gold chain.
(iii) When PW.1 resisted, accused No.1 assaulted him with a chopper on his right thumb finger and caused bleeding injury. Accused No.2 robbed the gold mangalya chain of PW.3 from her neck. Then threatening PWs.2 and 3 of the life of CRL.A. No.1190/2015 5 PW.4 to the point of knife, accused No.3 got opened the almirah of house from PW.3 and robbed cash of Rs.30,000/-.
(iv) During the crime accused Nos.4 and 6 had kept watch near the door. All the accused had come in TATA Sumo vehicle driven by accused No.5. After robbing the aforesaid gold jewelries, three mobile phones and cash, all the accused sped away in the TATA Sumo vehicle.
(v) When injured PWs.1 and 2 were being treated in Chitradurga hospital, the Medical officer of casualty department of the said hospital issued MLC as per Ex.P.3 to the Police Sub Inspector of Chitradurga police station who forwarded the same to the PSI Srirampura police station. On that basis, Ramesh Kulkarni the PSI of Srirampura police station visited Chitradurga District hospital and recorded the statement/complaint of PW.1 as per Ex.P4. On the basis of the said complaint on returning to the police station he registered FIR as per Ex.P2 in Crime No.45/2011 and handed over the further investigation to PW.24 the then Circle Inspector of Police, Hosdurga police station.
(vi) PW.24 visited the scene of offence, conducted the spot mahazar as per Ex.P6, drew sketch of scene of offence CRL.A. No.1190/2015 6 as per Ex.P7 and recorded the statements of PWs.13 and 14 as per Ex.P39 and 41. He recorded the statements of the victims.
(vii) On 21.04.2012 at 11 a.m. the staff of PW.20 the then Sub Inspector of Subramanyanagar police station, Bangalore apprehended accused No.3 and produced him before PW.20 in Crime No.63/2012 of their police station. His interrogation revealed the involvement of himself and accused Nos.1, 2, 4 to 6 in Crime No.45/2011 of Srirampura police station. On the basis of voluntary statement of accused No.1, PW.20 recovered the gold chain MO.1 from Muthoot Finance Corporation, Jalahalli cross branch, Bangalore under the mahazar Ex.P11. The Pawn receipt and customer ID card were recovered under the mahazar Ex.P44. Then he transferred the seized properties along with his report to Srirampura police station.
(viii) In the meantime, PW.25 took over the further investigation in Crime No.45/2011 from CW.32. On 09.05.2012 PW.25 said to have received accused Nos.4 and 6 from Subramanya Nagara police station and recorded their voluntary statement and seized one mobile phone MO.2 from CRL.A. No.1190/2015 7 accused No.4 under the mahazar Ex.P28. On receiving accused No.3 from Subramanyanagar Police, he visited the scene of offence and drew mahazar Ex.P36. On 02.06.2012 he took custody of accused No.2 on body warrant from Belgaum prison and said to have recorded his voluntary statement as per Ex.P51. On the basis of said voluntary statement Ex.P51, he is said to have recovered another mobile phone and recorded the statements of PWs.1 to 5, 13 and 14 as per Ex.P10, 20, 25, 27, 37, 38, 40 and 42. He collected the wound certificates Ex.P31 and 33 and the sketch of scene of offence from PWD authorities as per Ex.P34. On 19.06.2013 he arrested accused No.5 and drew mahazar of scene of offence as per Ex.P53 at the spot shown by accused No.5. He arrested first accused on 06.07.2013 and drew spot mahazar Ex.P54. He recovered chopper-MO.3 the weapon of offence on the basis of the voluntary statement of accused No.1 under the mahazar Ex.P55. The victims identified the accused in Test identification parade (for short TIP). He handed over mobile phone and gold chain to the custody of PW.1 as per the Court order and submitted the charge sheet. CRL.A. No.1190/2015 8
7. The trial Court on committal of the matter and taking cognizance of the offence framed the charges against the accused for the offence punishable under Section 395, 397, 398, 506, read with Section 149 IPC. As the accused denied the charges and claimed trial, the trial was conducted.
8. In support of the prosecution case, PWs.1 to 25 were examined, Ex.P1 to ExP.55 and MOs.1 to 3 were marked. The accused after their examination under Section 313 of Cr.PC neither filed defence statement nor lead defence evidence.
9. The trial Court on hearing the parties by the impugned judgment and order acquitted the accused on the ground that the prosecution has failed to prove the charges brought against the accused beyond reasonable doubt.
10. Sri Vinayaka V.S., learned HCGP reiterating grounds of appeal seeks to assail the impugned judgment and order on the following grounds:
(i) The trail Court has failed to appreciate the evidence in proper perspective. PWs.1 to 5 were consistent in CRL.A. No.1190/2015 9 their evidence with regard to the occurrence of the offence and identification of the MOs.1 and 2.
(ii) Due to the lapse of time from the date of offence till the date of evidence some discrepancies have occurred in the evidence regarding identification of the accused. That itself does not demolish the entire prosecution case.
(iii) The circumstances of recovery of incriminating material was proved by consistent evidence and the trial Court failed to appreciate the said circumstances. Thus he seeks reversal of the judgment of the trial Court.
11. Sri K.Lakshmikanth, learned Counsel for the accused justifies the impugned judgment and order on the following grounds:
(i) The entire case of the prosecution was based on the evidence of PWs.1 to 5 and the circumstance of the identification of the accused and recovery of incriminating materials.
(ii) PWs.1 to 5 neither identified the accused nor supported the theory of test identification parade. CRL.A. No.1190/2015 10
(iii) There were material inconsistencies in the evidence of PWs.2 and 3 regarding description of the robbed property.
(iv) PWs.1 to 5 did not even identify the weapon of offence. Moreover it was recovered from open place which was accessible to the public. That cannot be called as discovery.
12. Having regard to the rival submissions and considering the materials on record, the question that arises for consideration is "whether the trial Court was justified in holding that the prosecution failed to prove the charges brought against the accused beyond reasonable doubt ?"
Analysis
13. The accused do not dispute that on 01.04.2011 at 2.00 a.m. a dacoity took place in the house of PW.2. They also do not dispute that PWs.1 and 2 were inflicted injuries with a weapon, robbed of their mobile phones, gold jewelry and cash. But they deny their connection to the crime.
14. The case of the prosecution rests on the following:
(i) The evidence of injured witnesses PWs.1 to 5; CRL.A. No.1190/2015 11
(ii) Identification of accused Nos.1, 3, 4 to 6 under the TIP reports Ex.P48 and 49 conducted by PW.23;
(iii) The circumstance of recovery of robbed jewelry MO.1 under the mahazar Ex.P45 on the basis of confession of accused No.1;
(iv) The recovery of Mobile phone under MO.2 the mahazar Ex.P28 from accused No.4.
Reg. the evidence of Eye witnesses and identification of accused.
15. Though the occurrence of dacoity in the house of PW.2 is not disputed, the prosecution was required to connect the accused to the crime. To establish that, the prosecution relied on the evidence of PWs.1 to 5 and the evidence of official witnesses PWs.22 and 23 the Tashildar who conducted the TIP.
16. To accept the credibility of the TIP the accused should have been shown to the victims for the first time in the Test Identification Parade. Whereas PW.20 in his chief examination itself states that on 02.05.2012 he took accused Nos.1 and 3 to the house of PWs.2 and 3, showed them to CRL.A. No.1190/2015 12 PWs.2 and 3 and they identified them. If that is the case there was no need to conduct the Test Identification Parade to identify accused Nos.1 and 3. As per PW.20 accused No.1 was arrested on 27.04.2012, accused No.3 was arrested on 22.04.2012. They were shown to PWs.2 and 3 on 02.05.2012 itself. But PW.22 claims that he conducted TIP on 09.07.2013 i.e., after more than one year.
17. So far as accused No.4 he was allegedly arrested on 09.05.2012. PW.23 claims that he conducted TIP on 21.06.2012. The offence had taken place on 01.04.2011. According to PW.23 during the TIP accused No.4 was shown to PW.1 and 2. Even according to him, during the TIP only PW.2 identified accused No.4. PW.1 states that police had taken him to Chitradurga jail but he could not identify the accused. Similarly PW.2 states that about 2 to 3 months after the incident the police summoned him to Hosadurga police station and showed him four to five persons but he could not identify them.
18. So far as TIP, PW.2 states that Hosadurga Tahsildar showed him about 15 persons in Chitradurga jail CRL.A. No.1190/2015 13 and asked him to identify the culprits, but he could not identify. He denies identification of the accused. Though these two witnesses were treated as hostile, nothing could be elicited in their cross examination to demonstrate that they are deposing falsely about the identification of the accused in the identification parade. Therefore, the circumstance of identification of the accused fails.
Reg. the circumstance of recovery of M.O.1 gold chain
19. According to the evidence of PWs.2 and 3 the culprits robbed gold Mangalya chain of PW.3 and gold neck chain of PW.2. PW.2 in para 7 of his chief examination itself states that his neck chain was weighing 15 grams. None of the witnesses spoke about the weight of the mangalya chain of PW.3. In the complaint Ex.P4 it is stated that the total weight of robbed jewelleries was 45 grams. As per the prosecution, on the basis of voluntary statement of accused No.1 PW.20 recovered M.O.1 weighing 31.600 grams under the mahazar Ex.P44 from Muthoot finance office. According to the prosecution, accused No.1 had pledged that chain with Muthoot finance corporation and during the recovery PW.21 CRL.A. No.1190/2015 14 the staff of Muthoot finance produced the pawn receipt and customer ID card proof as per Ex.P45 and they were also recovered under the mahazar Ex.P44.
20. It is material to note that in the complaint or in the evidence of PWs.1 to 3 the details or price of the robbed chains were not stated. PWs.2 and 3 specifically identified M.O.1. PW.2 do not say that he identified the articles given to them by the Police as the one robbed from them. PW.2 in his chief examination itself states that police gave him jewellery weighing 30 grams and two mobiles saying that their robbed jewelleries are traced.
21. When PW.2 did not speak about the identification of the gold chain, PW.3 in her chief examination states that culprits had robed MO.2 the gold chain from her husband and later police traced and handed over the same to her. M.O.1 weighed more than 30 grams but according to PW.2 his chain weighed about 15 grams. Therefore, there is material inconsistency with regard to M.O.1 being the chain of PW.2. No independent mahazar witness to Ex.P44 was examined. Only PW.21 the Branch Manager of Muthoot finance was CRL.A. No.1190/2015 15 examined to prove the recovery under Ex.P44. According to PW.21 accused No.1 had pledged M.O.1 as security for loan of Rs.54,000/- borrowed from Muthoot Finance Corporation. In his chief examination he says that Police came along with accused No.1 and recovered M.O.1 as the subject matter of theft. It is not his case that accused No.1 brought the Police to the place where Ex.P44 mahazar was conducted.
22. It is material to note that accused were on bail during trial. According to Ex.P45 the chain was pledged on 02.09.2011. PW.21 in his cross examination states that the said loan of Rs.54,000/- was not recovered till the date of his evidence i.e., on 19.11.2014. It goes hard to believe that if the chain was pledged as security for the loan, the said finance corporation does not proceed against the accused for recovery of the said loan for about 4 years. Further PW.21 does not affirm the contents of Ex.P44 fully. He says that to some extent he can say what is written in Ex.P44. All these material inconsistencies in the evidence of PWs.2, 3, 21 and 20 makes the recovery of M.O.1 under Ex.P44 and that being the subject matter of the offence doubtful. CRL.A. No.1190/2015 16 Reg. recovery of robbed cell phones
23. According to the complaint Ex.P4, three cell phones were robbed by the accused. In the complaint PW.1 gives only the number of two sim cards and he says that he does not know the sim card number of the other cell phone. Three cell phones were recovered under the mahazar Exs.P28 to 30. Under Ex.P28, PW.25 claims to have recovered a cell phone from accused No.4. Out of the three mobile phones allegedly recovered under Exs.P28 to P30, only one mobile phone was marked as M.O.2.
24. PWs.8 and 9 panch witnesses to the mahazar under Ex.P6 and P28 do not support the theory of alleged recovery. Under Ex.P29, one mobile phone was recovered in the presence of PWs.10 and 11. In the chief examination, they did not support the prosecution version. The mahazars do not state whether the mobile phones belonged to the accused or the victims. The SIM numbers of the said mobile phones are also not mentioned. Therefore, the Trial Court was CRL.A. No.1190/2015 17 justified in holding that the circumstances of recovery of mobile phones was not proved beyond the reasonable doubt.
25. The aforesaid discussion goes to show that the prosecution's evidence was full of major contradictions and consistencies which go to the root of the matter. The prosecution miserably failed to connect the accused to the crime. This being an appeal against the order of acquittal, unless there are glaring illegality or impropriety in the impugned judgment and order of acquittal, this Court cannot interfere in the matter. There is no such illegality and impropriety in appreciation of the evidence by the trial Court or the conclusion reached by the trial Court.
There are no grounds warranting interference of this Court. Therefore, the following:
ORDER The appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE akc