Karnataka High Court
Mohammed Sadiq vs State By Dharwad Vidyagiri Police on 11 July, 2022
Author: V.Srishananda
Bench: V.Srishananda
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CRL.A.No.1394/2012
C/W CRL.A.No.2755/2013
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 11TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE V.SRISHANANDA
CRIMINAL APPEAL NO.1394/2012 (C)
C/W CRIMINAL APPEAL NO.2755/2013
IN CRL.A.NO.1394/2012
BETWEEN:
1. MOHAMMED SADIQ
S/O MURTUZA HUNGUND
AGED ABOUT 32 YEARS
OCC: CIVIL CONTRACTOR
RESIDING AT DHARWAD
PIN CODE-580001
2. INTIKABALUM
S/O KASHIMALI TALIKOTI
OCC. CLERK, RESIDING AT
BIJAPUR-586101
3. SANNI
S/O RAMESH NAIK
AGED ABOUT 23 YEARS,
OCC: STUDENT, RESIDING AT
BIJAPUR-586101
4. SAMEER
S/O AMEENSAB BLAGAR
AGED ABOUT 21 YEARS
OCC.STUDENT, RESIDING AT
BIJAPUR-586101
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CRL.A.No.1394/2012
C/W CRL.A.No.2755/2013
5. SANJU @ SANJAY
S/O BABU NAIK
AGED ABOUT 22 YEARS
OCC.DRIVER, RESIDING AT
BIJAPUR-586101
...APPELLANTS
(BY SRI. SRI K.M.SHIRALLI AND
SRI C.N.RAJU, ADVOCATES)
AND:
STATE BY DHARWAD VIDYAGIRI POLICE
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA AT
BENGALURU-01.
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE ORDER DATED 13.12.2012
PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS JUDGE,
DHARWAD IN S.C.NO.82/2012 AND ACQUIT THE APPELLANTS
BY ALLOWING THIS APPEAL.
IN CRL.A.NO.2755/2013
BETWEEN:
MOHAMMED YUSUF @ BABLU
S/O NOORSAB KOCHAMAN
AGE: 26 YEARS, OCC: PAINTER
R/O BAGALKOT
...APPELLANT
(BY SRI. SRI K.M.SHIRALLI AND
SRI C.N.RAJU, ADVOCATES)
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CRL.A.No.1394/2012
C/W CRL.A.No.2755/2013
AND:
THE STATE OF KARNATAKA
BY DHARWAD VIDYAGIRI P.S.
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENCH DHARWAD
...RESPONDENT
(BY SRI. PRAVEEN UPPAR, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) CR.P.C., PRAYING THAT THIS HON'BLE COURT MAY BE
PLEASED TO SET ASIDE THE ORDER DATED 13.12.2012 AND
14.12.2012 PASSED BY THE PRINCIPAL DISTRICT AND
SESSIONS JUDGE, DHARWAD IN S.C.NO.82/2012 AND
ACQUIT THE APPELLANT/ACCUSED OF OFFENCE WITH WHICH
HE HAS BEEN CONVICTED AND SENTENCED.
THESE APPEALS COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri K.M.Shiralli, learned counsel for the appellants and learned High Court Government Pleader for the respondent - State and perused the records.
2. These two appeals arise out of the conviction judgment passed in S.C.No.82/2012 on the file of the Principal District and Sessions Judge, Dharwad dated 13.12.2012 whereby the accused-appellants are convicted -4- CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 for the offences punishable under Section 399 and 402 IPC and Section 25(1)(b) of the Arms Act.
3. Criminal Appeal No.1394/2012 is preferred by accused Nos.1 and 3 to 6 and Criminal Appeal No.2755/2013 is separately filed by Mohammed Yusuf @ Bablu.
4. Brief facts of the case are as under:
Sri P.G.Kavatagi, Police Sub-Inspector, Vidyagiri Police Station, Dharwad filed a report with Police Inspector of Vidyagiri Police Station stating that on 21.12.2011 in the early hours of the morning around 4.30 a.m., when he was on patrolling duty, received a message from 7th beat constable that near KHB colony near Sattur, some persons are moving in a car in a suspicious manner and they failed to stop the car when the car sought to be intercepted by the police. Immediately on receipt of such information, said Kavatagi along with 6th beat police constables rushed to KHB colony on Pune-Bengaluru road near Sattur. They spotted an Indica car moving from KHB colony side. He also noticed that 7th beat constable was following the said car. Immediately, -5- CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 Kavatagi and his staff members intercepted the said car and stopped the car. Seven accused persons were found in the said car. On seeing the police, one among them ran away from the said car and others were apprehended. The person who ran away from the car is named as Asheef Iqbal (7th accused). The other accused persons were enquired and they revealed their names. On search of the car, the police party was able to find one pistol, 7 live cartridges, 1 koita, 2 iron rods and 2 chilly powder packets. A mobile phone was also found in the backside seat of the car. On further enquiry with the apprehended persons, they confessed to Kavatagi that they had prepared themselves to commit dacoity in a house situated in KHB colony. Immediately they were arrested and a report came to be filed. Based on the report, Vidyagiri Police registered a case in Crime No.219/2019 for the offences punishable under Section 399, 402 IPC and Section 25 of the Indian Arms Act, 1959 against the appellants herein and also against the absconding accused Asheef Iqbal. -6- CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013
5. After thorough investigation, the charge sheet came to be filed against the appellants and the absconding accused for the aforesaid offences.
6. On receipt of the charge sheet, learned Magistrate took cognizance and since the offences were triable by the Sessions Court, committed the matter to the Sessions Court.
7. Learned Sessions Judge took cognizance of the aforesaid offences and secured the presence of the appellants.
8. Charges were framed against the appellants for the aforesaid offences. Accused-appellants pleaded not guilty and therefore trial was held.
9. In order to establish the case of the prosecution, prosecution in all examined 11 witnesses as PWs.1 to 11. Eleven documents were relied on by the prosecution as Exs.P1 to P11 beside marking 14 material objects as MOs.1 to 14.
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10. On conclusion of the prosecution evidence, learned District Judge recorded the accused statement as is contemplated under Section 313 Cr.P.C. Accused-appellants denied all the incriminatory materials found against them which were put to them while recording the accused statement. However the appellants did not offer any explanation as is contemplated under Section 313(5) Cr.P.C. Some documents were no doubt furnished along with the memo which was paper cutting of 'Times News Network' of Hubli-Dharwad edition dated 22.12.2011.
11. Thereafter, on cumulative consideration of oral and documentary evidence on record, learned District Judge convicted the appellants for the aforesaid offences and sentenced them as under:
Offences Punishment Fine Default
sentence
399 IPC Rigorous Rs.3,000/- Simple
imprisonment imprisonment
of five years for one year
402 IPC Rigorous Rs.2,000/- Simple
imprisonment imprisonment
of five years for six
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C/W CRL.A.No.2755/2013
months
25(1)(b) Rigorous Rs.1,000/- Simple
of Arms imprisonment each imprisonment
Act of three for three
years months
12. Being aggrieved by the judgment of conviction and order of sentence, the accused have preferred the present appeal. In both the appeals following grounds have been raised:
"Grounds in Crl.A.No.1394/2012:
• The appellants submits that the court below have gravely erred in convicting the appellants for the offences punishable under Section 399 of IPC and sentenced to undergo RI for 5 years, and to pay a fine of Rs.3,000/- and for the offence punishable under Section 402 IPC to undergo RI for 5 years and to pay fine of Rs.2000/-, and for the offence punishable under Section 25(1)(b) of Arms Act to undergo RI for 3 years and to pay fine of Rs.1000/-, is bad in law and liable to be set aside.
• It is submitted that the prosecution has failed to prove the offence from some evidence directly or indirectly or form attending circumstance that they had assembled for no other purpose than to make preparation or commission of dacoity. The -9- CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 respondent police registered the case only on the basis of the voluntary statement of the accused persons even though it is not admissible under law.
• It is submitted that the court below gravely erred in convicting the appellant in the above said case even though there was no material to connect the appellants with the above said case.
Grounds in Crl.A.No.2755/2013 • The impugned Judgment of conviction and sentence rendered by the court below is contrary to law, evidence, facts and probabilities of the case.
• That, the learned Sessions Judge has gravely erred in convicting the Appellant/Accused for the offences punishable under sections 399 and 402 IPC and section 25 arms act 1959, on the testimony of prosecution witnesses which is, contradictory, unreliable and artificial.
• The appellant/ accused submits that, the prosecution has failed to prove the offence alleged. There is no material from some evidence directly or from attending circumstance that they had assembled for no other purpose than to make preparation or commission of dacoity. The respondent police registered the case only on the
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basis of the voluntary statement of the accused persons even though it is not admissible under law.
• The appellant/ accused submits that, the court below gravely erred in convicting the appellant for the above said offences even though prosecution failed to prove the guilt of the appellant. The prosecution examined PW-1 to prove that the appellant were gathered there to commit dacoity at the house of the Pw-1 but no one was arrested at the house of the PW-1 according to the Prosecution they were arrested while they were driving the car and no one has heard the taking or movements of the appellant for committing or preparation for committing dacoity but the trail court without appreciating all these facts convicting the appellants is bad in law and liable to be set aside.
• The appellant/ accused submits that, there was no evidence to show that the appellant and others had done any other overt wet which amounted to preparation of dacoity. But in this case the prosecution witness clearly admitted that the vehicle belonged to the appellant was running in that area and they were also tried to stop the vehicle but the vehicle did not stop and they were
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chased the vehicle and arrested the accused persons are all false.
• The appellant/ accused submits that, the court below gravely erred in convicting the appellant for the offence punishable under section 25 of the Arms Act even though the sanction authority was not examined before the court merely on the marking of the document is no evidentiary value but the trail court have not considered this aspect is in law.
• The appellant/ accused submits that, the court below gravely erred in conviction the appellant even though the prosecution failed to prove the recovery, according to the prosecution they were arrested the appellant at the spot on 21/12/2011 at about 4-30 am and secured the panchas and draw the recovery mahazar at the instance of the panchas, to prove this fact the recovery panchas Pw-2 examined before the court below and he was turned hostile, but the court below have not considered this aspect and convicted the appellant is bad in law.
• The appellant/ accused submits that, the court below gravely erred in convicting the appellant on the ground that the recovery is proved according to the prosecution they were recovered the weapons at the instance of the panchas but the
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evidence of Pw5 clearly shows that they were searched the car before securing the panchas and it is contrary to the Ex-pl spot Mahazar Pw-10 also stated is his evidence that the recovery was made in the police station and he also stated that they were returned to the police station of after arresting the appellant within 20 minutes. It is also stated in the Mahazar that they were draw the Mahazar on 21/12/2011 between 4-30 am to 6:30 am but it is very difficult to be lively the version of the prosecution that the spot mahazar contains 6 pages and it will take 2 hrs to write but the court below have not considered this aspect is bad in law.
• The trial court has seriously erred in not appreciating, the attendant circumstances, which are favorable to the defense. These circumstances are strong enough to render the prosecution version false, improbable and un-natural.
• The appellant/ Accused submits that, the perusal of the entire materials placed by the prosecution by way of evidence before the court below, there is no iota of evidence to project that the Appellant/ Accused has committed any offence of as alleged.
• The court below has gravely erred in convicting the accused for the offence punishable under
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sections 399 and 402 IPC and section 25 arms act 1959, although there is no cogent reliable and unimpeachable evidence.
• The court below has committed serious error in holding that the prosecution has been able to establish the guilt of Appellant/ Accused beyond all reasonable doubt, although the evidence put forth by the prosecution suffers from so many infirmities and lack of legal unimpeachable evidence.
• The learned Sessions Judge should have accepted the case put forwarded by the defense and acquitted the Appellant/Accused.
• Viewing from any angle the court below is not justified in holding that the Accused/Appellant is guilty of the offence punishable under sections 399 and 402 IPC and section 25 arms act 1959.
• The various finding of guilt recorded by the court below while passing impugned order against the Appellant/Accused suffers from severe infirmities and liable to be interfered with and set aside by this Hon'ble court.
• The learned Sessions Judge ought to have acquitted the Appellant/Accused by saying the prosecution has miserably failed to prove the case beyond all reasonable doubts.
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 • The Appellant/Accused craves your Lordship's kind indulgence to permit them to urge additional grounds at the time of final hearing of this case. • The certified copy of the Judgment and order dated 13/12/2012 and 14/12/2012, impugned in this Appeal passed by the Hon'ble Principal District and Sessions Judge Dharwad in produced herewith at ANNEXURE-'A'.
• The appellant submits that, the accused nos. 1 and 3 to 6 in the above case who are also convicted and sentenced by the Hon'ble Principal District and Sessions Judge Dharwad in the above said common Judgment dated 13/12/2012 and 14/12/2012, have filed Crl. Appeal No. 1394/2012 before this Hon'ble court. This Hon'ble court his pleased to admit the appeal and granted them bail by order dated 26/12/2012. The above appeal is still pending for final hearing.
• The Appellant have not preferred any other Appeal, before this Hon'ble court, against the Judgment impugned in this Appeal."
13. Reiterating the above grounds, Sri K.M.Shiralli, learned counsel for the appellants vehemently contended that appellants are totally innocent persons and they have
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 been falsely implicated in the present case with ulterior motive by the Police Sub-Inspector who is examined as PW6 and therefore sought for allowing the appeal. He further contended that the car in which the appellants were found when the PW6 intercepted the car near KHB colony, was infact parked as one of the tyres of the car got punctured and they were waiting for the help.
14. He also pointed out that appellant Nos.1 and 3 to 6 and appellant No.2 was in a house when they were apprehended and appellant No.7 is unnecessarily implicated in the incident by the police in order to aggravate the incident and somehow book the appellants in the false case.
15. He also pointed out that the seized material objects were not at all found in the car and they are implanted by the investigation agency for the purpose of foisting a false case against the appellants and sought for allowing the appeal.
16. Alternatively Sri K.M.Shiralli, contended that in the event of this Court maintaining the conviction of the
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 appellants for the aforesaid offences, contended that the appellants be given the benefit of probation as contemplated under Section 4 of the Probation of Offenders Act as they are first time offenders and sought for allowing the appeal to that extent.
17. Per contra, learned High Court Government Pleader opposes the appeal grounds vehemently by contending that at 4.30 a.m. PW6 who was on the patrolling duty apprehended all the appellants including the absconding accused No.7 near KHB colony who were moving in Indica car bearing No.KA-05/AB-2805 and search team was able to seize one pistol, 7 live cartridges, 1 koita, 2 iron rods and 2 chilly powder packets. A mobile phone was also found in the backside seat of the car.
18. Accused No.7 ran away from the spot infact who is an absconding accused and till now he is absconding. Infact accused No.7 has jumped the bail who was arrested in another case while dealing with counterfeit currency from Koppal jail and therefore, the appeal grounds have no merit.
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19. He also pointed out that the presence of the appellants in the car along with accused No.7 at the relevant point of time shows that they had hatched a plan to commit dacoity in a house situated at KHB Colony and therefore, no mercy can be shown.
20. He also argued that having regard to the criminal antecedents of accused Nos.2 and 4, Probation of Offenders Act is not applicable insofar as accused Nos.2 and 4 are concerned and sought for dismissal of the appeal in toto.
21. In view of the rival contentions of the parties, this Court perused the materials on record. On such perusal of the material on record, following points would arise for consideration.
1. Whether the prosecution has successfully established all ingredients to attract the offences punishable under Sections 399, 402 IPC and Section 25(1) of the Indian Arms Act?
2. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference by this Court?
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3. What order?
22. Regarding Point Nos.1 and 2:- In order to prove the case of the prosecution, prosecution has relied on the evidence of PWs.1 to 11. Among them, PW1 is the Assistant Engineer. He is acquainted with accused No.1 for about 2 ½ years earlier to the date of deposition. Accused No.1 had approached him with a request of a suitable employment. He had sent him to a contractor by name Anchatageri. Accused No.1 did not work there properly and 2-3 months he was absent. He also deposed about the father of accused No.2 working in Vidyagiri Police Station as a Police Constable. Accused No.2 and his father had visited him and they also asked for some employment for accused No.1. Thereafter, he had introduced accused No.1 to Panchayath President of Hulikatti by name Patil and there also accused No.1 did not properly work.
23. In his cross-examination, the suggestions made to him that he has deposed falsely is denied by him.
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24. PW2 is an auto driver who is an witness to Ex.P1- panchanama. He did not support the case of the prosecution. PW3 is the co-pancha for Ex.P1, he also did not support the case of the prosecution. PW4 is the pancha witness to Ex.P2- Mahazar, he also did not support the case of the prosecution. PW8 is a co-pancha to Ex.P2, he also did not support the case of the prosecution. All these witnesses were cross- examined by the prosecution after treating them as hostile witnesses by confronting the contents of Exs.P1 and P2. In such cross-examination, the prosecution is unable to elicit any materials which would help the prosecution.
25. PW5 is the Police Constable who was the part of search team. On receipt of the information by 7th beat police constable bearing No.1807 (CW13), himself and PW6 and other police constable apprehended the accused persons by intercepting the car near KHB colony. In his cross- examination, he denied the suggestion that in order to help the PW6 and to help the prosecution, he has deposed falsely.
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 He also denied that MOs.1 to 13 are concocted for the purpose of present case.
26. PW6 is the head of the search party who received the information from 7th beat police constable (PW13) and intercepted the car on P.B. road near KHB colony and apprehended accused Nos.1 to 6 and seized MOs1 to 14 from the spot and produced them before the Magistrate. He deposed with graphic details as to the incident that occurred at about 4.30 p.m. on the day of incident and also identified material objects. In his cross-examination, suggestions made to him that he has foisted a false case against the accused persons is denied by him. He also denied that there is no nexus between accused Nos.1 to 6 and the seized material objects.
27. Siddaramayya is the Lecturer who is the owner of the MO No.14-Indica car. He deposed that on 19.12.2011 Salim Naik had obtained his car on rental basis. On 22.12.2011 by virtue of the news item in the newspaper, he came to know that the Dharwad Vidyagiri Police have seized
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 his car and therefore he filed an application seeking interim custody of the car. He also deposed that accused No.6 is the driver of the said car. He is not cross-examined on behalf of the defence.
28. PW9 is the neighbour of accused No.1. He deposed that he is acquainted with accused No.1 who is his neighbour. Further, he did not support the case of the prosecution. Though prosecution treated him as hostile witnesses and cross-examined in detail. In such cross- examination, the prosecution is unable to elicit any favourable material.
29. PW10 is yet another constable who was deputed for the 7th beat along with CW13. He deposed that on 20.12.2011 at about 11.00 p.m. he has reported to the duty and he deputed to 7th beat in Navalur, KHB colony, Udayagiri, Vanasri nagar. He also deposed that for the beat work, they carry one rifle and five bullets.
30. When they were in beat duty around 4.00 or 4.30 a.m., they spotted an Indica car moving in a suspicious
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 manner in and around the area and they tried to stop the vehicle, but the car did not stop, the car moved towards PB road. Immediately, he gave the information on wireless set to alert the police. Himself and CW13 followed the car. At that juncture, upon receipt of the wireless information, PW6 intercepted the car near KHB colony on PB road and apprehended the accused persons and also seized MOs.1 to
14. In his cross-examination, he has answered that for the first time when he saw the car, it was at a distance of 20 to 30 meters. He also stated that the electricity supply was no doubt there, but in the double road there was darkness. However the place where the car was stopped, there was enough street light. The other suggestions made to him that he has deposed falsely in order to help the prosecution case and to support PW6 is denied by him.
31. Police Inspector of Vidyagiri Police Station who registered the case based on the complaint given by PW6 and investigated the matter and filed charge sheet, is examined as PW11. He deposed about the receipt of
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 information wireless and PW6, MO14-car apprehending accused Nos.1 to 6 and seizure of MOs.1 to 14 and also filing of the report by PW6 and he took further investigation and investigated the matter and filed charge sheet.
32. In his cross-examination, suggestions made to him that he has filed false charge sheet is denied by him. He specifically stated that against accused Nos.2 and 4, there are criminal antecedents inasmuch as 2nd accused is an accused in Bagalkot Crime Town Police Crime No.12/2006 and in respect of accused No.4, he is an accused in Crime No.115/2011 in Golgumbaz Police Station, Vijayapura. Suggestions made to him that he has filed false charge sheet and his investigation is perfunctory in nature is denied by him. However insofar as the acquittal of case against accused No.4, he pleaded ignorance.
33. The above evidence on record is sought to be re-appreciated on behalf of appellants and sought for allowing the appeal.
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34. On close scrutiny of the entire material on record, admittedly accused Nos.1 to 6 were apprehended by PW6 at about 4.30 a.m. near KHB colony on PB road. PW6 categorically deposed that 7th beat constable who was working along with PW10, PW6 along with his sub-staff, one among them is PW5, proceeded to the spot and intercepted MO14 and apprehended accused Nos.1 to 6 who are the inmates of the car. It is his specific say of PW6 that accused No.7 ran away from the car and he is not traceable. Thereafter, on enquiry with accused Nos.1 to 6, names of accused Nos.1 to 6 are revealed by them and so also absconding accused. On further enquiry and verification, PW6 and his sub-staff were able to seize MOs.1 to 13 from MO No.14-car.
35. Appellants did not offer any plausible/probable explanation for their presence in the car at the time of incident.
36. Defence theory is that accused Nos.1 and 3 to 6 were in the car as one of the tyres of the car had punctured
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 and they were waiting for the necessary help and that parked the car on the road and police in order to falsely implicate them as foisted a false case. Such an explanation is not even offered by accused Nos.1 to 6 while they were questioned by the learned District Judge while recording the accused statement as contemplated under Section 313 of Cr.P.C. Therefore, their defence theory remains as a theory alone on record without there being any plausible explanation placed on record, nothing prevented the appellants to furnish their defence in writing as is contemplated under Section 313(5) Cr.P.C. and place such material which would probablise their defence.
37. In the absence of any such explanation offered by appellants at the time of recording the accused statement coupled with the fact of PW6 and his sub-staff and PW10 and another police constable CW13 not possessing any previous enmity or animosity as against the appellants, this Court is of the considered opinion that the version placed by PW6 is acceptable.
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38. In the impugned judgment, the trial Court has placed reliance on the oral testimony of PW6 and his sub- staff. Admittedly they are all official witnesses. At 4.30 a.m. when a car (M.O.14) was moving suspiciously in and around the beat area where PW10 and CW13 were on the beat duty, and when they tried to stop the car, the car did not stop and it was driven towards the P.B. road. Immediately CW13 and PW10 have intimated this aspect over wireless and alerted the police who were on the patrolling duty.
39. Admittedly PW6 was on patrolling duty and he intercepted the car near KHB colony on PB road at about 4.30 a.m. and he has specifically deposed that CW13 and PW10 were also following the said car.
40. On enquiry, the appellants did not offer any plausible explanation. As could be seen from the testimony of PW6 and other police constables, MOs.1 to 13 are seized from MO No.14-car. Among MO No.1 is the pistol, MO No.2 is the live cartridges, MO No.3 is jambia and MO No.4 and 5
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 are iron rods and MO NO.6 is chilly powder, MO No.7 is plastic bag and MO Nos.8 to 13 mobile telephone handsets.
41. Admittedly why would be PW6 and other police personnel implant MO No.1 which is a pistol of American made worth more than Rs.50,000/- only with an intention to foist false case against the appellants is a question that remains unanswered on behalf of the defence. These aspects of the matter has been rightly appreciated by the learned trial Judge in the impugned judgment.
42. Only on the ground that mahazar witnesses to Exs.P1 and P2 having turned hostile, itself would not be sufficient enough to doubt the case of the prosecution especially when MO No.1-pistol and MO No.2 live cartridges have been seized by the police under the mahazar.
43. No doubt, learned counsel for the appellants vehemently argued that MO No.1 belongs to accused No.7. Therefore, conviction of the appellants for the offence punishable under Section 25 of the Indian Arms Act cannot be held to be proved. However, the investigation agency is
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 unable to arrest accused No.7 and so also accused Nos.1 to 6 should have stated so at the time of recording the accused statement that they have no nexus insofar as MO No.1 is concerned.
44. In view of the foregoing discussions, the finding recorded by the learned trial Judge in the impugned judgment that the prosecution is successful in establishing all ingredients to attract the offences under Section 399 and 402 IPC and Section 25 of the Indian Arms Act.
45. Even after re-appreciation of the entire evidence on record, this Court is of the considered opinion that the impugned judgment is not suffering from any legal infirmity or perversity. On the contrary, the same is based on cogent, convincing and logical reasons. Therefore, Point No.1 is answered in the affirmative and Point No.2 in the negative.
46. Regarding Point No.3:- Learned counsel for the appellants vehemently contended that the appellants are the first time offenders and therefore, the trial Court ought to have granted them probation especially having regard to the
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 language employed by the legislature in the form of Section 4 of the Probation of the Offenders Act. He also pointed out that the role of the Court while passing an order of conviction is different from the role of the Court while passing the order of sentence is different and therefore, sought for allowing the appeal in part by granting probation.
47. Learned High Court Government Pleader opposes the said contentions by inviting attention of this Court to the deposition of PW11 who categorically stated that in respect of accused Nos.2 and 4, there are criminal antecedents.
48. No doubt, in respect of accused No.4, a stray suggestion is made in the cross-examination stating accused No.4 is acquitted in respect of the case pending against him in Golgumbaz Police Station, Vijayapura in Crime No.115/2011. However no material is placed by accused No.4 to substantiate the said aspect of the matter. It is for accused No.4 to produce necessary materials and then seek probation.
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49. Taking note of these aspects of the matter and also having regard to the criminal antecedents as is spoken to by the investigation agency in respect of accused Nos.2 and 4, they are not entitled for probation and the sentence passed against them needs to be confirmed. However in respect of accused Nos.1, 3, 5 and 6 are concerned, admittedly they are first time offenders.
50. It is now settled principles of law and requires no emphasis that the role to be played by the Court while passing an order of conviction is altogether different from the role to be played by the Court while passing the sentence.
51. Section 4 of the Probation of Offenders Act reads as under:
4. Power of court to release certain offenders on probation of good conduct.--
(1) When any person is found guilty of having committed an offence not punishable with death or imprisonment for life and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the
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nature of the offence and the character of the offender, it is expedient to release him on probation of good conduct, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him at once to any punishment direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period, not exceeding three years, as the court may direct, and in the meantime to keep the peace and be of good behaviour:
Provided that the court shall not direct such release of an offender unless it is satisfied that the offender or his surety, if any, has a fixed place of abode or regular occupation in the place over which the court exercises jurisdiction or in which the offender is likely to live during the period for which he enters into the bond.
(2) Before making any order under sub-section (1), the court shall take into consideration the report, if any, of the probation officer concerned in relation to the case.
(3) When an order under sub-section (1) is made, the court may, if it is of opinion that in the interests of the offender and of the public it is expedient so to do, in addition pass a supervision order directing that the offender shall remain under
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the supervision of a probation officer named in the order during such period, not being less than one year, as may be specified therein, and may in such supervision order, impose such conditions as it deems necessary for the due supervision of the offender.
(4) The court making a supervision order under sub-section (3) shall require the offender, before he is released, to enter into a bond, with or without sureties, to observe the conditions specified in such order and such additional conditions with respect to residence, abstention from intoxicants or any other matter as the court may, having regard to the particular circumstances, consider fit to impose for preventing a repetition of the same offence or a commission of other offences by the offender.
(5) The court making a supervision order under sub-section (3) shall explain to the offender the terms and conditions of the order and shall forthwith furnish one copy of the supervision order to each of the offenders, the sureties, if any, and the probation officer concerned.
52. The offences alleged against the appellants are not punishable with death or life imprisonment. Accordingly, the appellants are entitled for seeking an order of probation.
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 Not considering the said aspect of the matter by the learned trial Judge in the impugned judgment is incorrect.
53. In this regard, this Court places reliance on the following judgments of the Hon'ble Apex Court.
i. (2007) 1 SCC 619 in the case of Gulzar V/s State of M.P. ii. (2000) 9 SCC 245 in the case of Chandreshwar Sharma V/s State of Bihar.
54. Applying the legal principles enunciated in the aforesaid decision to the case on hand, since the appellant Nos.1, 3, 5 and 6 are not having any criminal antecedents, they are to be considered for the grant of probation.
55. Having regard to the nature of offence and also having regard to the avocation accused Nos.1, 3, 5 and 6 holding the life and also taking note of the fact that the incident is of the year 2011 and no other criminality is alleged against the appellants, this Court is of the considered opinion that accused Nos.1, 3, 5 and 6 are to be granted
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 probation and directed to execute a bond in a sum of Rs.50,000/- for their good behavior for a period of 3 years from the date of execution and directed to pay fine of Rs.50,000/- each would meet the ends of justice.
56. In respect of accused Nos.2 and 4 since they are having the antecedents and in the absence of any other mitigating circumstances placed by them, the sentenced imposed in the impugned judgment needs to be confirmed. Accordingly, Point No.3 is answered and the following:
ORDER
(i) Criminal Appeal No.1394/2012 is allowed in part. While maintaining the conviction of accused Nos.1, 3, 5 and 6, are maintained for the offences punishable under Section 399, 402 IPC and Section 25 of the Indian Arms Act and they are directed to execute a bond in a sum of Rs.50,000/- with two sureties for the likesum to the satisfaction of the trial Judge for their good behavior which shall be in force for a period of three years and to pay fine of Rs.50,000/-
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CRL.A.No.1394/2012 C/W CRL.A.No.2755/2013 inclusive of the fine already imposed and paid before the trial Court.
(ii) Insofar as accused No.4 and appellant No.3 by name Sanni @ Ramesh Naik, since he is having the criminal antecedents, he cannot be granted the benefit of probation and therefore his appeal dismissed in toto.
(iii) Appellant in Criminal Appeal No.2755/2013 who is accused No.2 by name Mohammed Yusuf @ Bablu s/o Noorsab Kochaman, having regard to his antecedents, his appeal is dismissed in toto.
(iv) Time is granted for accused Nos.1, 3, 5 and 6 who are appellants in Criminal Appeal No.1394/2012 to execute the bond and pay the balance fine amount till 09.09.2022. Likewise time is granted to accused Nos.2 and 4 to surrender before the trial Court for serving remaining sentence.
Sd/-
JUDGE CLK