Karnataka High Court
Aravind @ Malai Chamy vs The State By Mico Layout Police on 20 March, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 20*" DAY OF MARCH BEFORE THE HON'BLE MR.JUSTICECJAwAD"RA[HIIK/I5 A BETWEEN: ARAVIND @ MALAI CHAMY S/O RAMASWAMY AGED 23 YEARS R/O 2ND STREET VEERAR POST AND TALUK -- V PALGAR DISTRICT MAHARASTRA:sTAT_E OWN vILLA;'G'E"fu_ ~ I vADAI.TvTHIER_AvN -- PERADI POST'<"._» , _ I THIRUVAANNAMALLAII' DISTR_I'CT ' TAMILNADU ' " ...APPELLANT (BY SRI: N K_RISH"--NA'PPAf ADVOCATE) AN_D'.~ , ««««« ~ " THEISTATE_'BYM.ICO LAYOUT POLICE .RE_PRESN'T.ED..BYv"SPP HIGH COURT OF KARNATAKA HIGH COURT BUILDING BANGALORE -- 560 001 ...RESPONDENT
"(BY_SRI": RAJA SUBRAMANYA BHAT, HCGP) V CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV., FOR THE L APPELLANT PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED:28/29.6.11 fiflw CRIMINAL APPEAL NIDA-1:1.'U~7:/2A'CI1_AlF, PASSED BY THE P.O., l-'l'C-X, BANGALORE CITY IN s.C.NO.77/o9 - CONVICTING THE APPELLANT/ACCUSED, FOR THE OFFENCE P/U/S 397, 307, 323, 324 OF IPC AN.DI~.s:'E.C;~._25 AND 27 OF ARMS ACT R/w SEC. 3 OF THE ARMS ACT'A..ND__:ET{:".~. THIS CRL.A. COMING ON FORMAHEARIN-c5"THjI_s,'DAY,Aw COURT DELIVERED THE EOLLOwINc§:
Juosfiggfi The convicted in agiainst the Judgment in S.C.No'.A7.7.;"2O0g9 of" Judge, Fast Track Court at..E§anga.lore_ by which he has been under Section 397, 3o_7, section 25 and 27 of the Arms.,_Ac_t_ the Arms Act.
_ 2.00"-«..hH'ea:rd_ lS.~ri'.Pl-IR.Krishnappa, learned counsel for a..D:pe_llant'V"'an--d-««'Sri.Raja Subramanya Bhat, learned 0 for the respondent/State.
l'lhe material allegations on the basis of which A the a'p--'Dellant was tried and found guilty are:
a) Dr.Mangala Srinivasan--PW1 lodged report at the to jurisdictional police station alleging that on 01.08.2008, at around 4.45 p.m, while she was alone in her house at -3- No.124, situate at 17"' Main Road, BTM Layout 2"" Stage, Bangalore, the appellant pressed the call bell a,nd.._4:'w.hen she opened the door, he forced his entry _ threatening her with a revolver and under--t,hi've,at,::robbe'd--«..
two gold bangles and Rs.1,000/-[in and4.fo*rced'-.her,:tuo give other valuable articles._and "the mone3,IVVA.l|§vept:; further alleged, meanwhilelwflyllheyr 'V':Sri:r;ivas~PW2 returned home and a whelnwhe entered the house, the__accused_Vliredvfiatg hirn.' Fortunately, the bullet no:t:l:.hVit.vh--erihusband."*.'Th«e'reafter, the accused held the from the possession of tlijegduthenéttogether. Thereafter, when the a'pp_fiel'lant' the house, the neighbours appreh,endued.,Vhirn'and from his possession, they recovered
- _5tolAerj..,*-ep(o'perty.lwitlllwas further alleged that he had been through out the robbery and he made at-t__em_pt the life of complainant's husband.
b) The report was investigated and final report was Atfilleld raising charges punishable under Section 397, 307, it 323, 324 of the IPC as also under Section 3, 25 and 27 of aw the Arms Act against the appellant. He denied the charge, necessitating trial in which the prosecution has ex'ami.ned in all eight witnesses and produced 15 docum:é'nt's.,'.an_d _ material objects. The accused on his behalf. jexamiinted DW1 and examined one more TwitnegsselsgF'ayeem';.__ The learned trial Judge accepted' the evidence ten'%der:ed prosecution and found him he is in appeal. '
4. HeardflPerused:'record's.Q__' 7 ~ V'
5. 1__A~s_'}the'"ca.se~':,'i_'is"b'ase'd"on the eye witnesses account by victim Dr.Manga|a Srinivasan, necessarilyyit n.eed's- aid:-alhlysis for ascertainment whether it inculpagtes tizelaccuséd-appellant her statement in the report and the "év'idence'fbefo're the Court, it is noticed she was alone when the' accused pressed the call bell and gained entry 2 nintog the house holding threat with the revolver. It is her htcase that he asked her to give the keys of the cupboard where the valuables were kept and thereafter, robbed her §cQ» of Rs.1,000/~ and removed two bangles from her hand. In the evidence while describing how the incident occ:u*rred, she described it in two parts. First incident;i's~w,he:n3 accused entered the house and l'0bbed_..h,e;l"=.Ql'A--l.:CaSlib Rs.1,000/- and second is when1:the:::hujsb'an':d_.' house using a duplicate key, the accused is callegved to'; have', fired at her husband in an"V'at:tVem_pt mIn the second instance, it complainant and her husband Srinivasiggwiithgw back making them the bed in the bedroom: the"'ac'clused asked her to give her which she was wearing and whenshe refused;-..:t"h'e"'accused put cloth in her mouth and-removed bangles "from her hand and then removed .' it ARs.5,000/'--._whichVwas with her husband. It is also her case :'t.hat* .a:t'«._,tri4at~juncture, the accused opened the cupboard and silver and gold articles in a bag. It is her Agcase-that while the accused was still in the house, "somebody ranged the call bell and when the accused went .;§to check the main door, her husband managed to relieve himself from the binding of saree and bolted the door of (95% the room where they were tied by the accused. It is alleged she shouted for help from the window apttracting the attention of the neighbourers. In response'-t.o<._which~,. PW3--Ramakrishna appears to have told her..t,_h:atV have caught the accused and they canI:come,lo.ut,,, 4' ' i' V
7. Her husband's eviden:ce,_ydoes' not rVel~ate..;t'o"t~h'e firsts' instance as to how the accused-.g'aiAned' "ent..ry,,.:§ He only speaks of the from him. The evidence of the accused was apprehended'_..__ailte'r' ovutVV_Vo't$their house. PW3-- with the help of his son Manj:u.natha~VV neighbourers joined them in disarmingjhéim away the revolver.
"Bgasedl on the evidence of PW1--Mangala husband, Srinivasan (PW2) and a witness, R-a_mav_krisljnla (PW3), learned judge found the accused AA guilty'.,_o'f the charges and has convicted him.
9. Assailing the finding of the learned trial judge, H learned counsel for the appellant has taken me through the evidence on record, firstly to contend that the version given by PW1--Dr.Mangala Srinivasan is too dramgaticfiand does not infuse confidence to accept it charge. He would submit, PW1's evidence.is-at"~varianvce--«., when compared to the evid.ence.4gtfof"-cg»her'---.4h»usgba.nd:;. Srinivasan, as also PW3--Rarnakrishna'." Theversion jjgiven"; by PW1-Mangala Srinivasanllvlvarboutygthe'~ove'rt acts of the accused can hardly pointed out the fact that though was alone in ajclcusedilis alleged to have gained kemfined home and both of have subdued the accusV'e"d_h'ad to rob or harm them.
Since _ P\/l/it.-lflanlgalla lT.Srinivasan and her husband- . ASvrinliviasan..,(PW2)"'cl'o not say why they kept quiet without of the accused, the finding of guilt ag.ainst*hirhlis unsustainable.
10. Regarding the alleged recovery of stolen tproperty from the possession of the accused as also recovery of revolver, he submits prosecution has failed to establish it by acceptable evidence.
11. Several other contentions are r-a:i:sed.c:VV:b§,7"
learned counsel which have received my c'onsid"eratiVon_;',.
12. As rightly pointed out l'l'earri~e'd the appellant, PW1-MangaV|»a..:Vg:'S~.rinivasan'allleged"'ti*iat the"? accused holding threat gaigne-di.."entry_ and'ro.bbed her of Rs.1,000/- and gold b'a'ng_l'es".s..ll'il:i'iefi'Vii'l€§--t.husband returned, accused is sai«:l:t.o meg holding threat, robbed Rs-.'7 is concerned, it have indulged in such act, abut 4' further does not infuse confidenlctegto. revealing the truth about the occiu rren ce.
V%VI"n,:.1~~this behalf, it is necessary to notice, co.mplV_ainaritland her husband have deposed before court nthatzthe accused had tied them with a saree back--to--back, ll'-,,V"ma'fking them immobile and pushed them on the cot. _.:%When the accused was leaving the house, her husband managed to relieve himself and bolted the bedroom door and remained there. But the version of PW1-Mangala Srinivasan is, accused after tying her, asked hergltotaggive gold necklace and other jewelry she was wea;ri'ng;j_~%_ she refused, he gagged her with a cloth .. bangles from her hand. It is lstrange} to ':n,ote4"tlia_tfthe accused has not robbed h,e'r.__of n'ecvk"l'ace Gritm.a_ngalfsu'tra"s. which was easy for him to _He is 'alleged to have removed the bangl.e"s«« and:.l,lleft-;"'the necklace and mangalsutra to_her. A
4..c§._rc'u_m'stancenoticed is, accused is alleged is-toilhrayel'iibeenuaplprein-ended by PW3-Ramakrishna and his he was leaving the house. It is also thexicase of tlhe" pr'osecution that PW3--Ramakrishna and, his sonl"d'isar_med the accused and took away the ' purist/oiyerla'nld"also stolen property. Such version of PW3 is "b.el~ied.v lblyjthiellevidence of PW8--Kannan examined by the pros.e:cutihon. According to PW8, he along with PW3- : Fiamakrishna apprehended the accused and kept him in "Vgtheir custody till 9.30 p.m. and handed him over to the police. If this be so, appellant--accused was in the custody 3,0» -10- of PW3-Ramakrishna, Manjunath and PW8-Kannan till 9.30 p.m. when the police came. It is also the prosecuvtionicase that local residents had also gathered and they;"i'n'fo.rrn:ecl:..Vof _ the incident to the police. Arrival of poli_c~e-o_ffi,cVe--rs is .. earlier to 9.30 p.m. and according h.e'..the accused into custody and,*se_ized"'t_h'e revo'i'verp_frorij possession under mahazar isV"att_est:ed.':';by PW8_ Kannan. But "sabotaged prosecution case shovviyngftotalVAigV,no'ra.nleVgV'Vabout the seizure of the revolverlunfdpervgtheir:'V'i'n'~qulestion. tw-o...ve§Vrsions on record, one of they tried to apprehend the accused,"h.,eA a,ssaulte,_d' with the revolver causing injury to~t:he_illiead.V.l Not_i_c_ing this, his son, Manjunath and PW8-- *;Kanna,n'>foverpowered him and disarmed him. If this H be believed, then PW3--Ramakrishna, PW8- Kaunnan, and Manjunath have taken the revolver from his 2 cu-stody. Therefore, the police officer could not have 'tseiiled the revolver from the custody of the accused at "9.30 p.m. under seizure mahazar, Ex.P2. W
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16. Regarding recovery of stolen property,--.__it is alleged accused had removed two bangles from of PW1--Mangala Srinivasan and also valuables. Prosecution contentio"n'is,., theytilsievized-S§lve.r ' articles and gold ornaments frorn th_e"possessi,on accused after he was apprelhejndeyd at this' ' version is a falsity wvh-en we,,iconsid'é'rc,_the' st'at.em'ent of the I.O. that after arrest4i'nbQ.--theffaiccu'g.;g¢iAg:.at 9.30 p.m., he seized the rev.o;lv.er belonging to the complainant:"',_«.._V'AA~--:ieX_,"P'2:;§.eiznJrely irnaghaaar does not show recovery, ornaments from the custody "of only shows seizure of two bangles cashol*._Rs,:i'i,OOO/--.
;,,,i'7.V'l'T,he thirdmcircumstance noticed is, alleged firing of revolver at PW2-Srinivasan in an attempt This is not established as prosecution has ggrgecovc-med no bullet from the situs of the occurrence. at the first look, the version of PW1--Mangala _::Srinivasan, PW2--Srinivasan may show incriminating aspects against the accused, but on a closer scrutiny, we gyal -12- find the version of PW1 does not infuse confidence to accept it.
18. As observed in paragraphs supra,--..':a'ccuAse:d' alone, while the complainant V-and--.he.'f' 2 together Even otherwise, the aillpegedlly acts accused in tying the comlplapinant.__and1'-.hér"""husband"V together with a saree,without---any 'resistanc'e~..frol}n them is unbelievable. It is also" the accused would have .b4e:en.._abl;eV"the cupboard to rob the cupboard was locked;w~_b*"b '19__. "It is.fu-;t'héVr"--nlotlced the learned trial judge has ignjored the ffvidence tendered by the prosecution itself «thorough the ballistic expert who has opined that the 1 "r.evVolv:er._Seij2ed and produced in court vide M.O.4 was non- fu-.ncti_onalA.i'.»*Al Prosecution has failed to show how the gAaccu'se<tJ could fire the shot at PW2--Srinivasan when the l' "revolver was non-functional.
(N3?
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20. The last contention urged by the learned counsel is, lack of sanction to prosecute the appeilantV.fo:r'r.the offence punishable under Sections 25 and _ Act. In this regard, my attention is drawn..to..A't'i*zeV 'provisélori-«.. of Section 32 of the Arms Act vl:hich..4erjn/isa'g.es.. permission of the district.e'maglst'rate is .,»a1"ecessary 'for'; prosecution of the offender _offen'ce,su':ndner the said Act. Section 32 a person for the offence under permission of the n.ecess'ar~,I».V:« But on perusal of the v.g.p['A3'i\.;§cable only when there is prose,_:cutio'_n _theVV'offence under Section 3 of the Arms Act and '_ot.h'er"'provisions of the Act. vHoweve,r_,____as the charge against the accused was ' .for._tne_'offen'ce_s punishable under Sections 397, 307, 323, '-324', i..P.-LC.---,Vgitfyneeds no mention that the prosecution was reguired established the charges beyond all reasonable ndlounbtsl Mere suspicion that the accused may have "",committed the offence will not justify conviction. aw '3 if '' _do~u:bt:''rn -14-
22. It read in totality, prosecution case brings in several inconsistencies regarding the circumstances. in which the offence was committed and also commission of the alleged crime by the Firstly,-, we have noticed discrepancy in Mangala Srinivasan in comp'a.rison to the reportvlisubn;1itted", to the police officer about thewV.:occurren'ce,_::'vSec'ondly, the version of her "does not corroborate hergtestimiony regarding the occurrence. property from the accused the version of PW3- When we notice such to hold that the charges against the a:ccus'ed."are: established beyond all reasonable result, I am satisfied the appellant has made'"'V.ou't a case for interference with the judgment 2 ximpuglned. Consequently, conviction of the appellant for fltfihei offences punishable under Sections 397, 307, 324, H 324, I.P.C. and under Sections 25 and 27 of the Arms Act §vQV -15- is set aside. The appeal is allowed. The appellant--accused is absolved of all the charges levelled against him,"
24. Accused is in judicial custody. He---.4'is be released forthwith if he is riot"requi--rediirci.~VI.arty'./_0§th'ieréit' case. Registry to communicate this c;-}d'ér to-t'he._coVn"ce«rh:ed_ jail authorities.
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