Karnataka High Court
Karibasava @ Karibassya S/O. ... vs The State Of Karnataka, on 25 September, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 25 T H DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL NO.2873 OF 2011
C/W
CRL.A.NOS.2874/2011 & 2864/2011
IN CRIMINAL APPEAL NO.2873 OF 2011
BETWEEN
RAJA S/O. HUSSAINSAB BHOSLE
AGE: 20 YEARS, R/O. CHIKKASALUR
TQ: SHIKARIPUR, DIST: SHIMOGA
... APPELLANT
(BY SRI.V.G.HOLEYANNAVAR, ADVOCATE)
AND
THE STATE OF KARNATAKA
BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD.
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING TO SET ASIDE THE CONVICTION OF THE APPELLANT
IN S.C.NO.47/2010 DATED 22.10.2011 PASSED BY THE
SESSIONS JUDGE, HAVERI, AND TO SET ASIDE THE SENTENCE
OF 7 YEARS RIGOROUS IMPRISONMENT AND ORDER OF FINE
OF RS.2,000/- ON RE-APPRECIATION OF THE EVIDENCE.
2
IN CRIMINAL A PPEAL NO.2874 OF 2011
BETWEEN
LOKESH @ LOOSI
S/O. HANUMANTAPPA BHOSLE @ PAWAR
AGE: 38 YEARS, R/O. ANAVATTI,
TQ: SORAB, DIST: SHIMOGA
... APPELLANT
(BY SMT.ANURADHA DESHPANDE, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 372 OF CR.P.C.
SEEKING TO SET ASIDE THE CONVICTION OF THE APPELLANT
IN S.C.NO.47/2010 DATED 22.10.2011 PASSED BY THE
SESSIONS JUDGE, HAVERI, AND TO SET ASIDE THE SENTENCE
OF 7 YEARS RIGOROUS IMPRISONMENT AND ORDER OF FINE
OF RS.2,000/- ON RE-APPRECIATION OF THE EVIDENCE.
3
IN CRIMINAL A PPEAL NO.2864 OF 2011
BETWEEN
1) KARIBASAVA @ KARIBASSYA
S/O. KRISHNAPPA BHOSALE @ PAWAR
AGE: 23 YEARS,
2) SURESH @ SURYA S/O. ASHOK BHOSALE
AGE: 19 YEARS,
BOTH ARE R/O MAKRI, TQ: HIREKERUR,
DIST: HAVERI.
... APPELLANTS
(BY SMT.ANURADHA DESHPANDE, ADVOCATE)
AND
THE STATE OF KARNATAKA,
BY SAVNUR POLICE,
REPTED. BY ADDL. SPP
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD
... RESPONDENT
(BY SMT.SEEMA SHIVA NAIK, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO SET ASIDE THE JUDGEMENT OF CONVICTION AND
SENTENCE PASSED BY THE SESSIONS JUDGE (FAST TRACK)
HAVERI, IN S.C.NO.47/2010 DATED 22.10.2011 AND ACQUIT
THE APPELLANTS FOR THE CHARGES LEVELED AGAINST THEM.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 11.09.2020 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY THE COURT MADE THE
FOLLOWING:
DATE OF RESERVE : 11.09.2020
DATE OF PRONOUNCEMENT: 25.09.2020
4
JUDGMENT
Crl.A.No.2873/2011 has been filed by accused No.1, Crl.A.No.2874/2011 has been filed by accused No.2.and Crl.A.No.2864/2011 has been filed by accused No.3 and accused No. 4 challenging the judgment of conviction and order of sentence dated 22.10.2011 passed by the learned Sessions Judge (Fast Track), Haveri in SC No.47/2010 where under the appellants/accused Nos.1 to 4 have been convicted for the offences punishable under Sections 457, 392 R/W Section 397 and Section 34 of IPC.
2. Accused Nos.1 to 4 are sentenced to under go rigorous imprisonment for a period of 5 years and to pay fine of Rs.1,000/- each and in default of payment of fine to undergo further rigorous imprisonment for 3 months for the offence punishable under Section 457 r/w 34 IPC. Accused 5 Nos.1 to 4 shall also undergo further rigorous imprisonment for a period of 7 years and to pay fine of Rs.2,000/- each and in default to pay fine to undergo further rigorous imprisonment for 6 months for the offence punishable under Section 392 r/w Section 397 and 34 of the IPC. The trial Court has ordered the sentences to run concurrently.
3. The factual matrixes of the case are that on 25.05.2009 at about 3.00 am. at Madapur village in Savanur Taluk, appellant Nos.1 to 4 with common intention have trespassed into the house of complainant Kariyappa Parasappa Harijan in order to commit robbery by opening the latch of back door and further committed theft of cash of Rs.44,000/- and also gold and silver articles kept in a trunk in the house of the complainant and further while committing theft voluntarily caused hurt to the complainant Kariyappa by using iron 6 rod and also by fisting on his chest thereby committing the offence of robbery. Subsequently, the complainant Kariyappa had lodged the complaint before the Savanur Police on the same day at 2.30 p.m. Accused persons were arrested by the Police Sub-Inspector, Savanur on the night at 03.09.2009 at Lingadevarakoppa village in Hirekerur taluka in Crime No.135/2009 of the said Police station which was connected to some other robbery alleged to have been committed by these accused. It is further case of the prosecution that on interrogation by the Investigating Officer, accused gave voluntary statement by confessing the act of committing robbery in this case and also four other cases. Thereafter, the accused led Investigating Officer and panchas to the Makari village in Hirekerur taluk near community hall which was under construction in the outskirts of the said village and then brought a cloth bundle which was hidden in the said building and when 7 the said bundle was opened, which contains 26 gold and silver articles connecting to this case and also other crimes. Then the said articles were seized in presence of panchas under panchanama. It is further case of the prosecution that accused also shown the houses where they have committed robberies. Then the identification parade was also conducted by taking the assistance of Tahasildar, Savanur during that time the complainant identified the accused persons and also collected finger prints of the accused and compared with the finger prints taken at the scene of occurrence. Thereafter, charge sheet has been filed against the accused for the offence punishable under Section 397 of IPC.
4. In support of the prosecution case, prosecution in all examined 12 witnesses as PWs.1 to 12 and got marked documents as per Ex.P1 to Ex.P.24 and 7 material objects as M.Os.1 to 7. 8
5. After considering the material placed on record, both oral and documentary, learned Sessions Judge convicted the appellant/accused Nos.1 to 4 for the offences punishable under Section 457 and 392 r/w Section 397 and 34 of IPC. Being aggrieved by the judgment and order of conviction and sentence, the appellants-accused Nos.1 to 4 have preferred these appeals on the grounds mentioned in the appeal memorandum.
6. Heard the arguments of the Sri. V.G.Holeyannavar and Smt. Anuradha Deshpande, advocates for appellants/accused and also the learned HCGP for respondent-State.
7. Learned counsel for the appellant Sri.V.G.Holeyannavar submitted that the appellants/accused who are secured in Lingadevarakoppa on 03.09.2009 have led the Police to the Madapura village on 04.09.2009 and shown the house of the complainant stating that 9 they have committed theft in the said house and Police prepared mahazor as per Ex.P.7. Accused at that time were not wearing any mask and their face was not covered, therefore, the accused Nos.1 to 4 have been seen by the villagers including the complainant and his family members. It is his further submission that the Test Identification Parade has been conducted subsequent to that on 14.10.2009 and the complainant PW.1 and PW.2 have identified the accused and it is mere farse as PW1 and PW2 have already seen accused Nos.1 to 4 when they accompanied Police to their house. It is his further submission that PW.10 who has conducted Ex.P.4 spot mahazor on 25.05.2009 has stated that finger print expert and dog squad came to inspect the spot and they did not get any information and they went back. It is his further submission that PW.11 is the finger print expert and as per his evidence he visited the spot in the 10 evening on 25.09.2009 and found some finger prints on trunk and utensils and lifted them. It is his further submission that no mahazor has been conducted at the time when finger prints expert has obtained chance finger prints found on the trunk and the steel utensils and the said material objects have not been seized by the Investigating Officer. It is his further submission that the Investing Officer has taken finger prints of the accused Nos.1 to 4 and sent them to the finger print experts and he has not obtained any permission or orders from the jurisdictional Magistrate in that regard. It is his further submission that the identity of the accused Nos.1 to 4 has not been established and therefore, they have to be acquitted for the offences alleged against them. In support of his case, he has placed reliance on the following decisions:- 11
1) Shankarya @ Shankar and others V/s The State of Karnataka, Crl. A. No.2832/2012 dated 25.02.2013
2) Ravi Alias Ravichandran Vs. State represented by Inspector of Police, reported in (2007) 15 SCC 372,
3) Chandrappa and others V/s The State of Karnataka, Crl.A.No.2656/09 dated 07.02.2014.
4) Mohd. Aman, Babu Khan and another Vs. State of Rajastan, reported in AIR, 1997 SC 2960.
8. The learned counsel Smt.Anuradha Deshpande, Amicus Curie representing the Appellants in Crl.A.No.2874/2011 and Crl.A. No.2864/2011 has contended that there is a lapse in the seizure Mahazor conducted at the spot and trunk and utensils have not been seized and produced. It is her further submission that the description of M.O.s 5 to 7 has not been stated in the complaint-Ex.P.1. But the PW.1 and PW.2 have 12 identified them when Police seized at the instance of the accused from Lingadevarakippa village. It is her further submission that PW1 has not given description of the accused in his complaint for example their height, complexion and fatness etc. It is her further submission that presence of accused No.3 has not been stated in Ex.P.1- complaint in which only presence of three accused persons has been stated and he has not been identified by the PW.1 in identification parade. It is her further submission that there is a discrepancy in the evidence of the PW.9-Tahasildar who conducts Test Identification Parade and in the evidence of PW.1 who stated regarding identification of accused in the Test Identification Parade.
9. Learned HCGP has submitted that all the ten witnesses examined by the prosecution have supported the case of the prosecution and the 13 complaint is not an encyclopedia to contain all the details. It is her further submission that PW.1 has identified material object Nos.1 to 7. It is her further submission that PW.1 has identified accused Nos.1, 2 and 4 and PW.4 identified accused Nos.1 and 3. It is her further submission that the PW.7-Doctor who examined the PW.1- injured has given wound certificate stating that he had sustained injury on his forehead. It is her further submission that the evidence of PW.9 who conducted Test Identification Parade and evidence of PW.11 Finger Print Experts establishes the identification of the accused Nos.1 to 4. It is her further submission that the trial Court after properly appreciating the oral and documentary evidence has rightly come to the conclusion that appellants have committed the offence alleged against them.
14
10. On the contention raised above and grounds of appeal, the following points arise for my consideration:-
1) Whether the trial Court has committed serious error in holding that accused persons are properly identified in order to convict the accused persons for the aforesaid offences?
2) Whether the trial Court has committed serious error in holding that the prosecution has proved the guilt of the accused beyond all reasonable doubt?
11. From the evidence of the PW.1 and PW.2 there was a robbery in the house of the complainant on the alleged date of incident during midnight and four ornaments and cash were stolen away from his house. There is no occasion for PWs.1 and 2 to lodge a false complaint. Further, the evidence of PW.7-Doctor who treated the complainant supports the evidence that he has sustained injuries in the said incident while 15 assaulted by the accused persons. There is a discrepancy regarding identification of accused. Immediately, after the incident and after taking treatment, complainant lodged the complaint before Savanur Police Station as per Ex.P.1. PW.10-Police Sub Inspector conducted panchanama at the scene of offence as per Ex.P.4 in the presence of panchas and on the information received regarding mobile working in Lingadevarakoppa village in Hirekerur taluk on 03.09.2009, he went to that village along with staff and panchas and arrested accused Nos.1 to 4 together who were found in suspicious circumstances. The apprehension of accused persons is also supported by the evidence of PW.8-Police Sub Inspector who accompanied him and independent panch PW.5. The main link to connect the accused is the said mobile phone which was in possession of accused No.1 and the said mobile was also a stolen property in another 16 case. The accused have given voluntary statements as per Ex.P.13 to P.16 which leads to recover all the stolen properties connecting to this case and many other cases.
12. The accused have voluntarily led the investigation officer and panchas to Makari village along with PW.3 goldsmith and PW.5 panch witness and accused have brought a cloth bundle containing silver and gold ornaments, totally 26 in number and they were seized in the said spot. The evidence of Investigating Officer regarding recovery of the stolen properties is supported by the evidence of PW.3 - goldsmith and PW.5 panch witness and they have squarely stated the manner in which led them and 26 articles of gold and silver articles were seized under panchanama- Ex.P.6. The said 26 items and M.Os.1 to 7 are connecting this case which is identified by the PW.1 and PW.2.
17
13. PW.11-Finger Print Expert has collected chance finger prints from the spot and compared with the finger prints of all the accused persons and he was able to find out two similar finger prints of accused Nos.1 and 3. The items i.e. trunk and utensils from where finger prints were lifted are not seized and produced.
14. In the case of Mohd.Aman and another Vs. State of Rajasthan, reported in AIR 1997 SC 2960, it is held that non-production of the material objects on which chance finger prints were found persuades not to accept the evidence adduced.
15. Finger prints of the accused were obtained by the Investigating Officer without permission of the Magistrate. In the case of Nagaraj Vs. State of Karnataka, Crl.A.No.66/2012 decided on 06.12.2019, the Hon'ble Apex Court has held as under:
18
" 14. We may also refer to the other circumstance, namely, matching the fingerprints of the appellant with the chance fingerprints, which were found on certain utensils. PW- 14, in his deposition admitted that he has not obtained permission from the Magistrate for taking the fingerprints of the accused. The Magistrate, in fact, has referred to the judgment of this Court reported in Mohd. Aman's case (supra). In the said case, it was held as follows inter alia:-
"Even though the specimen fingerprints of Mohd. Aman had to be taken on a number of occasions at the behest of the Bureau, they were never taken before or under the order of a Magistrate in accordance with Section 5 of the Identification of Prisoners Act. It is true that under Section 4 thereof police is competent to take finger-prints of the accused but to dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence it was eminently desirable that they were taken before or under the order of a Magistrate. The other related infirmity from which the prosecution case suffers is that the brass, jug, production of which would have been the best evidence in proof of the claim of its seizure and subsequent examination by the Bureau, was not produced and exhibited during trial - for reasons best known to the prosecution and unknown to the Court. Thus the accused could not be convicted for murder."19
16. In the present case Investigating Officer has not obtained the permission of the Magistrate for taking finger prints of the accused.
17. The accused persons are involved in number of crimes and they have shown the house of complainant of this case which is also proved by conducting panchnama to that effect as per Ex.P.7 dated 04.09.2009 which shows that accused were taken to the house of PW.1 and PW.2 on 04.09.2009 and face of the accused were not covered with masks. Therefore, there is chances of PW.1 and P.2 seeing the accused on 04.09.2009. As per evidence of PW.2 she has not seen accused Nos.1 to 4 on the date of incident had identified accused Nos.1 to 3 in Test Identification Parade. Therefore, from the said aspect, it is clear that PWs.1 and 2 have seen accused Nos.1 to 4 when they were brought to their house on 04.09.2009.
20
18. In the case of Shankarya @ Shankar and others V/s State of Karnataka, Crl.A.No.2832/2012 dated 25.02.2013 this Court as held as under:-
"21. The Supreme Court in umpteen numbers of cases has held that if the accused is shown to the witnesses prior to the date of identification, such identification is worthless. In a case reported in 2007 SAR (Criminal)507 between Ravi @ Ravichandran Vs. State rep. by Inspector of Police, it is held that the identification conducted in a test identification parade held after 10 days becomes useless in view of the fact that his photograph was published in the local daily and hence the proceeds of test identification parade cannot be given any value for the purpose of fixing the identity of the accused."
19. In the case of Chandrappa and others Vs. State of Karnataka, Crl.A.No.2518/2010 and other connected matters dated 07.02.2014 this Court has held as under:
21
"31. The identification parade conducted by the Tahasildar in my opinion, cannot be a substantive piece of evidence, so far as this case is concerned it is a farce. It is for the name sake only for the purpose of conducting identification parade, as on idle formality they have conducted and to produce some evidence before the Court. It is shown by the presentation itself that two months prior to the test identification parade, accused Nos.2 to 8 were shown to the witnesses in the Police Station and the test identification parade conducted thereafterwords, in my opinion, the identification parade loses all its sanctity."
20. There is no description of persons who committed theft in the complaint namely his 22 height, fitness, leanness and complexion etc. The Investigating Officer ought to have recorded further statement of PW.1 and elicited description of the persons who committed the theft from the complainant as held in Chandrappa's case(supra).
21. The accused were secured on 03.09.2009 and Test Identification Parade has been conducted on 14.10.2010 and there is a delay in conducting Test Identification Parade and the said aspect has been laid down in several decisions of the Hon'ble Apex Court that Test Identification Parade has to be conducted at the earliest.
22. In the case of Ravi Alias Ravichandran Vs. State represented by Inspector of Police, reported in (2007) 15 SCC 372, the Hon'ble Apex Court observed as under:
"19. In a case of this nature, it was incumbent upon the prosecution to arrange a test identification parade. Such test 23 identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the witnesses concerned or with reference to the photographs published in the newspaper. A conviction should not be based on a vague identification."
23. In the complaint-Ex.P.1, PW.1 has described only five gold items i.e. Golden Jumaka, Gold bendule, half tola jumaka, 3 anna gold jumaka and one gold chain. PW.1 and PW.2 have identified the silver articles which are material object Nos.6 and 7 which were not described in the Ex.P.1- complaint. Therefore, the prosecution has not specifically established the identity of the accused as the same persons who had came on the date of robbery.
24. In view of the same, the appellants are entitled for the benefit of doubt and consequently 24 they are entitled for an order of acquittal. Accordingly, I pass the following:
ORDER Crl.A.No.2873/2011, Crl.A.No.2874/2011 and Crl.A.No.2864/2011 are allowed.
The judgment of conviction and order of sentence passed in SC No.47/2010 dated 22.10.2011 passed by the Sessions Judge (Fast Track Court), Haveri against appellants-accused Nos.1 to 4 is hereby set aside and they are acquitted for the offences leveled against them.
Amicus Curie fee is fixed at Rs.2,500/- each. Total Rs.5,000/-(2,500+2,500).
Sd/-
JUDGE Hm b