Karnataka High Court
Ashraf P A S/O Abbas vs The State Of Karnataka By on 6 November, 2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 69' day of November,
BEFORE
THE HON'I-BLE MR. JUSTICE <1*J.E.AfGAI§AJV _: "
CRIMINAL APPEAL';.No.?6A 1./'2.Qb9-.: " E:
BETWEEN
1.
Ashraf P A,
S/0.Abbas, '
Aged about 26 3;' "
Agriculturist,
R/0.Periy.ara1nH011fs~e,' ' "
Payya}3C~0_r':'vi11é:ge, _
Kae-'aragod'f=. , V~
s /'o.Per1yar l*§h'ac;1Iar,
* » Aged' 26 years',-
VR,' 0.Peri'y3r__Iiouse,
'Pariatodi Village,
» .HOS'-adurga Taluk,
1 vv-E§asEariag0d.
e._5ab{;',E
~~ S3/0.Narayana Nayar,
Aged 36 years,
R/0.Vayal House,
Post Panattur,
Hosadurga Taluk,
Kasaragod.
r-""[\""""""
Ix.)
4. Manu.
S / o.Devassya,
Aged 39 years,
Post Ranipuram,
Panattur Village,
Hosadurga Taluk,
Kasaragod. .1 C' _ V'
(By Sri R B Deshpande, Adv.)
AND:
State of Karnataka,
by Sullia Police Stati I1,
Sullia. .. ...l1§esir)ondent
[By Sri Vij aykumar Maj age, "C --l V n__
This Ap1?5ea1~ iijilsrrvfiled U/S 374(2) of
Cr.P.C.¢.._pfay'irig;,to Sift.gElSi(l€..l§1f}v?lCOIlVlCtlOI1 and sentence
dated C pa'as.'ed in SC No.43 / 2009 by the
Presiding Ofi'ie[eif,"Faat'"Track Court Puttur, D K and
acquit the appe.1;lar1is_ 'of' the charges leveled against
them. ' l '_ 7
VVT'his Criir1ir1alvAppeal coming on for final hearing
. . this V"th_e court made the following:
JUDGMENT
Nos.1 to 4 in SC No.48/2009 on the file ref. the C. Fast Track Court, Puttur, D K, (hereinafter 'referred to as 'Trial Court' for short] have challenged in C V "this appeal the Judgment and Order of conviction and r""'*C«--~'P\"""'"""
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sentence dated 10.9.2009 passed in the said case, convicting all the accused for the offences under Sections 398, 394, 397 IPC and sentencing each of them to undergo R1 for seven years for the offencef-tinder Section 397 IPC only.
2. On appreciation of the oral' cevidelnce 18, documents at Exs.P1 to into.
Trial Court by its Judgmeceeéed Order; ecfm£i1:feed en the appellants -«~ accused fer" '1t:I"1efl"-~2..5ajdll'offences and sentenced each of them-to seven years.
3. 4lco'L1ldi:b.e from the charges leveled against ap;:1ellanlts..--l¥~ accused by the Trial Court. the the nroseeution is that during the intervening V'ni'ght' 1 1e and 12m of December, 2008 at about emt. ten 12.12.2008, accused Nos.1 to 4 together entered into the premises of the Court of Civil Judge at 'eS__ufl1ia with intent to commit theft of sandalwood that ___elwas the subject matter of the criminal cases and, at (_"__r--w*"\...-
4 that time. the said persons put plaster to the mouth of PW1 Mahesh, who was on duty in the said premises as watchman, and tied his hands and legs, broke open the key that was put to property room and attempted to commit theft of sandalwood they"
not find sandalwood in the p"ro'pe1'ty arty other place in the premises of the said they left the place without any"
4. Ex.P1 is the 1 K P Mahesh, who was on ditty as"VVwatc111nan.V_in'~ the Court premises. As could' the avennents in the said complaiwfitf he given therein any physical fea-tt1re's of any.,of__the persons who committed the said ' ;.a'ct.sp said night. In order to establish the "identitjz'.Vof 'the accused as the very same persons, who comrnitted the said acts on the said date, time and .pla"ce, the prosecution has placed reliance on the oral ' '?evidence of PW1 and that of PWl3, the Taluk Executive \ 6 accused No.1 from among of the said eight persons, as one of the four persons, who attempted to commit the robbery during the said night. He has admitted--in his evidence that he did not mention in EXP}, the physical features of any of "four? persrons? - has also not stated in his exam'ination_~in--ch.ief.asto the physical features of any of the:4s.ai'd. perso_ns'.v "
this, he has stated in his-.icrossmexainin-ation"that ifl seven others, who Twere togstandl" the row alongwith accused he would not be eeetey them. This being the evidence VP*.v'1",AI.ij:».:ha§;fe«no alternative to hold that the Trial --.Court error in holding that the identity .ol'"" Noslllllto 4 has been established by the pprposecutionpi' beyond reasonable doubt as the very same 'foi3.r ..__per.sons, who attempted to commit theft of eesandalvi/ood from the premises of Court during the said i night.
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6. in order to connect the accused with the commission of the said offences, the prosecution has placed reliance on the recovery of MO Nos.12 to 15 respectively one chopper, knife, pick axe'.._yvi_thout wooden handle and Wooden club. It is the case that PW12 IO recorded th_e,..Vo_iunta1'y' . accused. No.2 as per Ex.P14 "t.jr_ie said accused produced {Oat seized the same under the---panohananiav.Ex.i"8 in the presence of panch But PW'? has not prosnecutitonvcase insofar as it relates to the"re'coverie's.:'oi"MO. =Nos.12 to 15 under the said panchanarna. . _ t :,.;4"»L1r'ther, iO has stated in his evidence that interrogated accused Nos.2 to 4, they gave st'aten_*ien,t:s before him that they had thrown the ..wreapo~ns used in the commission of the said offences "'..an'd he seized the same in the presence of panchas ¢.--...m§°"""'"'-"v~"
under the panchanama EX.P8 and MO Nos. 12 to 15 are the same weapons. PWM HC Theerthaprasad also has claimed to have seized MOS. 12 to 15 un-::1e"rc the panchanama Ex.P8 in the presence of produced by the accused. If it is that accused N0s.2 to 4 shoxived ' himself seized the same under the 'panc§.1anAs,rna _i§Ex;P8:,"; the evidence of PW11 HC itdsonify accused No.2, who produced"t.h'e_sdids.j_>avrti*ciesand it is he [PW11} who seized the Vsame"'und«er"the Ex.P8. it is thedvdridresence of PW12 I0 is not stated'by* _PVV.1_.1AZ./:HC"'dr1d..~~pW12 10 has aiso not stated about the 'Vprveseiice'V'01"vI.'W11 at the time of seizure of the Besides this, neither PW12 nor PW11 has Vrastne of PW'? as one of the panchas to Ex.P8 p'anch'ansrna. This being so, I am of the considered .. view"that the Trial Court committed error in believing '._the: evidence of these poiice witnesses as to the seizure of MO Nos. 12 to 15 under the panchanama Ex.P8. z:"~=--S%'"""-er"
8. As discussed supra, I am of the opinion that the very identity of accused Nos.1 to 4» as the very sa,1jie'four persons, who attempted to commit the sandalwood from the premise..=3~~of_Courtidatgp alleged in the complaint EX.P1 by the prosecution and thev__is'e_izure of 15' V weapons alleged to haye theaccused while committing the said' not been proved beyond reasonable the conviction recordedi'}§y'i:::t1jie' be sustained in law. ' » d M V pp. ., "p»reseiit appeal fiied by accused Nos.1 to 4» in
- the file of the Fast Track Court, 1 hereby allowed.
\-"V(i.} iThe impugned Judgment and Order dated '*1:O.9.2009 passed in the said case convicting all the accused Nos} to 4 therein for the offences under Sections 393, 394 and 397' IPC and .5«-»~.§""'V""*--we"-9"
H} sentencing each of them to undergo R1 for seven years for the offence under Section 397 is hereby set aside.
All the accused Nos.l to 4 are hereby acquitted of all the said offences.
(ii) Since accused Nos.1 to 4 are in_;p'1'ison__; Vithdey shall be set at liberty forthwithgif» required to be detained v=._Vin :coI5.r1ecti-o1'1- other case.
[iii] be sent forthwith to alsolto the Prison Authorities concerned; 'i:1forrnation and compliance. Sd/-
EUDGE