Karnataka High Court
Khatalahammed @ Shyanavaj Abduljij ... vs The State Of Karnataka on 1 July, 2020
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 1 S T DAY OF JULY 2020
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No.2934 OF 2012
BETWEEN
1. KHATALAHAMMED @ SHYANAVAJ ABDULJIJ LALSHAHA,
AGE: 29 YEARS,
R/O. KALANAGAR, HUNCHYANATTI VILLAGE
TQ & DIST: BELGAUM
2. SALAUDDIN ALLANOOR SAYYAD
AGE: 22 YEARS,
R/O. SHATAVAYI ROAD NIPPANI
PRESENTLY AT BHARAT NAGAR,
4TH CROSS, NEW CLASSIC SODA FACTORY
RAIT GALLI, VADAGOAN BELGAUM
3. SUBHASH CHANDRAYYA DEVADIGA
AGE: 29 YEARS, R/O. MANGALUR,
PRESENTLY AT TIPPUSULTAN NAGAR
NEAR JAIN COLLEGE, MACHCHE
TQ & DIST: BELGAUM
... APPELLANTS
(BY SRI.VISHWANATH BADIGER, ADV.)
AND
THE STATE OF KARNATAKA
PRESENTED BY ITS
STATE PUBLIC PROSECUTOR
(BELGAUM RURAL P.S.)
HIGH COURT OF KARNATAKA,
CIRCUIT BENCH, DHARWAD
... RESPONDENT
(BY SRI.RAMESH B. CHIGARI, HCGP)
2
THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C.
SEEKING TO CALL FOR THE RECORDS IN S.C.NO.364/2011 ON
THE FILE OF THE III-ADDL. SESSIONS JUDGE, BELGAUM,
PERUSE THE SAME, ALLOW THE APPEAL AND SET ASIDE THE
ORDER OF CONVICTION AND SENTENCE DATED 13.11.2012
PASSED AGAINST THE APPELLANTS AND PUNISHING THEM FOR
THE OFFENCES P/U/S 399 OF IPC AND SENTENCING APPELLANT
FOR R.I. FOR 2 YEARS AND TO PAY FINE OF RS.5,000/- EACH
ACCUSED, AND ACQUIT THE APPELLANTS.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants are arrayed as accused Nos.2, 4 and 5 in SC.No.364/2011 for the offence punishable under Section 399 of IPC.
2. The learned III Additional Sessions Judge, Belgaum has convicted the accused-appellants for the offence punishable under Section 399 of IPC and sentenced them to undergo rigorous imprisonment for a period of two years and each one should pay a fine of Rs.5,000/-(Five 3 thousand only). In default of payment of fine amount, each one of the accused persons shall undergo rigorous imprisonment for a further period of three months.
3. The brief factual matrix of the case that amid from the records are that on 27.04.2010 PW.1-Mallangouda Malagouda Navalgatti, PSI of Belgaum Rural Police Station received a credible information at about 7 p.m. regarding four to five persons by putting stones across the road trying to stop the vehicles passing on Belgaum-Jamboti road near Kinaye Village nearby Forest in order to commit a dacoity. On receipt of such credible information PW.1- Mallanagouda Malagouda Navalgatti along with PW.2-Maruti Bhimappa Gujanal, ASI and CW.5- M.Y.Karimani, Head Constable, CW.6- S.R.Dodanaikar as well as CW.7-N.J.Madar, 4 Police Constables of Belgaum Rural Police Station and PW.3-Shankar Krishna Koli and PW.5-Mahammedayub Khudabax Patte being the Panchas, proceeded to Belgaum-Jamboti road near Kinaye Forest through Peeranwadi Village and stopped their vehicle at a curve and observed the fact that these accused Nos.2, 4 and 5 along with absconded accused No.1-Rafiz Istakahamed Shaikh and accused No.3-Indrajit Gujjar who are on the said road at about 8 p.m. and placed stones across the road. Then these witnesses saw the vehicles passing on the said road and these accused holding clubs, iron rod in their hands, tried to stop the vehicles and the drivers of such vehicles, without stopping their vehicles passed through the said road. In the meanwhile, these PW.1-Mallanagouda Malagouda Navalgatti 5 and PW.2-Maruti Bhimappa Gujanal and CWs.5 to 7 in the presence of Panchas apprehended these accused persons along with absconded accused Nos. 1 and 3. Then, the said accused did not give any proper and satisfactory explanation. They found one chilli powder packet each on search of shirt pocket of accused Nos.1 and 2 and accused No.3 found holding a college bag containing five black cloth pieces. They also found having three jungle clubs and two rods at the said place and also two stones placed across the road.
4. The mahazor as per EX.P-1 being conducted and thereafter, PW.1 took the accused Nos.2, 4 and 5 including absconded accused Nos.1 and 3 and seized articles and produced before PW.5-PSI of Belgaum Rural Police Station and filed Ex.P-2 report. 6
5. On the basis of the said report a case in Crime No.109/2010 being registered against the accused persons for the offence punishable under Section 399 of IPC and submitted the Ex.P-4 FIR.
6. On completion of investigation, PW.5 submitted charge sheet. Learned II JMFC., Belgaum took cognizance of the offence and provisions of Section 207 of Cr.P.C. have been duly complied. Since, accused No.3 subsequently remained absent, the case against him being split up. Thereafter, the case against these accused Nos.1, 2 4 and 5 being committed to Sessions Court under Section 209 of Criminal Procedure Code.
7. The charges framed for the offence punishable under Section 399 of IPC. In order 7 to prove the charge leveled against the accused, the prosecution examined in all five witnesses as PWs. 1 to 5 and got marked five documents as per Ex.P1 to P5 and Material Object Nos.1 to 6.
8. The statement of accused-appellants under Section 313 of Cr.P.C. is recorded. Subsequently, the accused No.1-Rafiq Istakahamed Shaikh absconded and case against him being split up under Chapter IV of Karnataka Criminal Rules of Practice, 1968 to dispose of the case against the accused Nos.2, 4 and 5.
9. The trial Court after hearing the arguments on both sides and after framing points for consideration and after appreciating oral and documentary evidence on record has come to the conclusion that the prosecution 8 has proved the case beyond all reasonable doubts and convicted the accused Nos.2, 4 and 5 for the offence punishable under Section 399 of IPC.
10. Heard the arguments of learned counsel appearing for the appellants-accused and learned HCGP.
11. The learned counsel for the appellants- accused has contended that the evidence of the panch witnesses i.e. PW.3 and PW.4 have not supported the case of prosecution. The evidence of PW.1 and PW.2 is not sufficient to establish the ingredients of offence punishable under Section 399 of IPC. There is a discrepancy with regard to material objects, FIR, seizer mahazer-Ex.P-1 and charge sheet. 9
12. On the contrary the learned HCGP has argued that evidence of PWs.1 and 2 is sufficient to convict the appellants-accused for the offence punishable under Section 399 of IPC and the trial Court has rightly appreciated their evidence and convicted the appellants- accused for the said offence. He further supported the reasoning assigned by the trial Court.
13. The following point arise for my consideration:
Whether trial Court has committed an error in convicting the accused-appellants for the offence punishable under Section 399 of IPC?
14. My answer is in the affirmative for the following reasons:
10
The prosecution has examined witnesses by name PW.1-Mallangouda Malagounda Navalgatti, PSI of Belgaum Rural Police Station as on that date; PW.2 Maruti Bhimappa Gujanal, ASI, Belagaum Rural Police Station.
These two witnesses are the material witnesses who have supported the case of the prosecution. PW.3-Shankar Krishna Koli and PW.4-Mahammedayub Khudabax who are independent panch witnesses who accompanied PW.1 and PW.2 and who are signatories for the Ex.P1-Mahazor under which M.Os. 1 to 6 were seized have not supported the case of the prosecution. PW.5 is a PSI, Belgum Rural Police Station who received report from PW.1 and registered the case and after investigation filed the charge sheet.11
15. On perusal of the evidence of PW.1 and PW.2, it would indicate that they have categorically stated that all of them on 27.04.2010 at about 8.00 p.m. went on Belgaum-Jamboti road nearby Kinaye Forest and observed that accused-persons are trying to stop the vehicles and the drivers of such vehicles, without stopping their vehicles passed through the said road and the Police have caught hold those persons and on enquiry they disclosed that they were gathered there for the purpose of committing a dacoity. Witnesses also deposed that there was recovery at the instance of accused-appellant Nos.1 to 5 i.e. three jungle clubs and two rods, two chilli powder packets and also two stones placed across the road and one college bag. These two witnesses have been cross examined. 12
16. PW.3 and PW.4 who are Panchas to Ex.P.1 under which M.Os. 1 to 6 has been seized, have not supported the case of the prosecution.
17. On careful perusal of the entire oral and documentary evidence as rightly contended by the learned counsel for the appellants-accused nothing has been elicited as to what purpose the accused persons gathered there. Whether any attempt is done by them to commit dacoity, there is no material to show that they have actually stopped any vehicle or any owner or driver of the vehicle has given complaint that they have made an attempt to commit dacoity. Mere recovery of some articles and why they have gathered in that particular place is not sufficient to fill up the gap on the side of prosecution to prove that accused-appellants 13 are actually gathered there for the purpose of committing docoity in order to attract Section 399 of IPC.
18. In this regard, it is worth to mention here the decision of Hon'ble Apex Court, in the case of CHATURI YADAV AND ORS. VS STATE OF BIHAR, AIR, 1979, SC 1412 wherein the Court at para No.4 has observed as under:
"4. The Court below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 1 A M. and could give no explanation for their presence at that odd hour of the night. Mr. Misra appearing for the appellant submitted that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same. We are of the opinion that the contention raised by the learned Counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school 14 premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 A.M. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Section 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."
19. In the above said case also, appellants- accused persons were caught at odd hour at 15 1.00 a.m. near a school which is an isolated place. The guns and cartridges were recovered from eight accused persons. Court has also observed that in the said case also accused persons have disclosed that they were assembled there for the purpose of committing dacoity. But the Court refused to accept this statement being admissible in evidence as hit by Section 25 of the Indian Evidence Act.
20. The Court in clear terms has observed that except the above said presence of the accused persons at the spot, recovery of some articles and voluntary statement of the accused, no other material to show that they were gathered there for the purpose of committing dacoity.
21. This decision has been consistently followed in various decisions and particularly in 16 the case of Mahendra Choudhary and others Vs. State of Bihar, reported in 2000(4) Crimes 17 Ranchi Bench of Patna High Court has almost reiterated the above said aspect. In that case also, there was recovery of county made pistol loaded with live cartridges from the accused persons who were gathered in an isolated place at odd hour. Except the police evidence, nothing has been produced before the Court to show that actually the accused persons were gathered there for the purpose of committing dacoity.
22. On plain reading of Section 399 of IPC, it makes abundantly clear that any preparation for committing dacoity is only punishable. Even under Section 402 of IPC if the accused persons assembled for the purpose of committing dacoity then only they are 17 punishable. Any much of the imagination by the Court will not substitute the proof.
23. PW.3 and 4 who are independent witnesses to Ex.P.1 seizer Mahazer have not supported the case of the prosecution, except the Police evidence, nothing has been produced before the Court to show that actually the accused persons were gathered there for the purpose of committing dacoity. Merely suspicion or imagination by the Police officer without any other material is not sufficient to draw conclusive inference that accused persons were gathered there for the purpose of committing dacoity.
24. In view of the above facts and circumstances of the case, I am of the opinion that the prosecution has failed to prove the 18 guilt of the accused persons under Section 399 of IPC. Therefore, the judgment of conviction and order of sentence passed by the III Addl. Sessions Judge, Belgaum in S.C.NO.364/2011 against the accused-appellants is not sustainable either in law or on facts. Therefore, the same is liable to be set aside. Hence, I pass the following:
ORDER The Appeal is allowed.
The Judgment of conviction and Order of sentence passed by the III Addl.
Sessions Judge, Belgaum in SC No.364/2011 is hereby set aside.The accused/appellant Nos.2, 4 and 5
are acquitted for the offence leveled against them under Section 399 of IPC.19
Bail bonds executed by accused-
appellants and surety stands cancelled.
Refund fine amount if any, paid by the accused-appellants.
Sd/-
JUDGE Hm b