Karnataka High Court
Ramesh S/O. Giddappa Waddar vs The State By Munirabad Police on 3 March, 2014
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 03RD DAY OF MARCH, 2014
BEFORE:
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRIMINAL APPEAL NO. 100014/2014
C/w CRIMINAL APPEAL NO.100009/2014
BETWEEN:
In Crl. A. No.100014/2014:
1. Ramesh
S/o Giddappa Waddar,
Aged about 29 years,
Occupation: Lorry Maintenance,
R/o Ramalingana Gudi,
Chitrakeri Street, Hospete,
(Undergoing Sentence).
2. Baba Patel S/o Mohammed
Patel Biradar,
Aged about 24 years,
Occupation: Driver,
R/o Gudnal, Muddebihal Taluk,
District : Bijapur,
Presently Behind Regional
Transport Office, B.T. Nagar,
Hospet. (Undergoing Sentence). ... Appellants
(By Sri. Vijay S. Chiniwar and
Sri. Mahiboob S. Halli, Advs.)
2
AND:
The State by Munirabad Police,
Represented by
State Public Prosecutor,
Dharawad. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of Code of Criminal Procedure, praying to allow this
appeal and set aside the judgment and order of
conviction passed by the learned District and Sessions
Judge, Koppal in S.C. No.21/2013 dated 11.12.2013,
and 12.12.2013, convicting the appellants for the
offence punishable under Section 392 of I.P.C.
In Crl. A. No.100009/2014:
1. Krishna
S/o Tirupalappa,
Aged about 28 years,
Occupation: Driver,
R/o Ward No.28,
Chapparad Halli,
Hospete,
District Bellary.
2. Kumar
S/o Venkappa Devaramani,
Aged about 26 years,
Occupation: Driver,
3
R/o Behind Regional
Transport Office,
B.T. Nagar, Hospet,
District : Bijapur. ... Appellants
(By Sri. S.B. Naik, Adv. for Sri. K.L. Patil, Advs.)
AND:
The State of Karnataka,
Rep. by State Public Prosecutor,
High Court of Karnataka. ... Respondent
(By Sri. V.M. Banakar, Addl. SPP)
This Criminal Appeal is filed under Section 374(2)
of Code of Criminal Procedure, praying to allow this
appeal and set aside the judgment and order of
conviction passed by the learned District and Sessions
Judge, Koppal in S.C. No.21/2013 dated 11.12.2013,
and 12.12.2013, convicting the appellants for the
offence punishable under Section 411 of I.P.C. and
acquit the appellants of the charges.
These Criminal Appeals coming on for dictating
Judgment this day, the Court delivered the following:
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JUDGMENT
The appellants in Crl.A. No.100014/2014 are arrayed as accused Nos.1 and 2, In Crl. A. No.100009/2014 the appellants are arrayed as accused Nos.3 and 4 in S.C. No.21/2013 on the file of District and Sessions Judge, Koppal. The Trial Court has convicted the accused persons and sentenced accused Nos.1 and 2 to undergo simple imprisonment for a period of 10 years and to pay a fine of Rs.5,000/- each within 15 days, accused Nos.3 and 4 are sentenced to undergo simple imprisonment for a period of one year for the offence punishable under Section 411 of I.P.C. and to pay a fine of Rs.1,000/- each within 15 day. A common judgment is rendered to convict the accused Nos.1 to 4 as noted above.
2. I have heard the arguments of the learned Counsel for the appellants in both the appeals and the learned State Public Prosecutor for State.
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3. Learned Counsel for the appellants strenuously contends that except the evidence of the Investigation Officer there is absolutely no evidence available to connect the accused Nos.1 to 4 in order to record a judgment of conviction and pass any sentence against them. Particularly, the learned Counsel for the accused Nos.3 and 4 specifically contended, there is no sort of evidence even from the mouth of the Investigating Officer in order to attract Section 411 of I.P.C. to convict the accused Nos.3 and 4.
4. The learned Sessions Judge solely relied upon the evidence of Investigating Officer with regard to recovery of some articles at the instance of accused Nos.1 to 4 to convict the said accused persons which is illegal and not tenable. The appreciation of the evidence of the learned Sessions Judge is perverse, capricious and illegal and the same is liable to be interfered by this Court.
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5. It is also contended by the learned Counsel for the appellants that the discrepancy in the evidence of Investigating Officer has made it untrustworthy for acceptance. Though the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt, the Trial Court wrongly convicted the appellants and it ought to have acquitted the accused. The complainant examined before the Court as PW-5 - Lachayya has not even identified the accused persons before the Court and no identification period has been conducted by the Investigating Agency. All the witnesses examined by the prosecution in order to establish the recovery of incriminating articles from the accused have turned hostile to the prosecution. When the evidence of the Investigating Officer is not corroborated by any materials, it is wrong on the part of the Trial Court to record a judgment of conviction and sentencing the accused. Hence, the appellants' Counsel pray to allow 7 these appeals by setting aside the judgment and sentence passed by the Trial Court and set the accused persons at liberty.
6. Per contra, the learned Additional State Public Prosecutor argued before the Court that though there is no corroborative evidence to the evidence of the Investigating Officer. Nevertheless, the evidence of the Investigating Officer, if it is trustworthy, creditworthy for acceptance then the Court can rely upon such evidence and record the judgment of conviction as rightly done by the Trial Court. The evidence of the Investigating Officer should not be doubted or dubbed as false evidence on the ground that he is the Police Officer and is interested in securing the conviction of the accused persons. He further contends that there are ample materials to connect the accused persons to the crime as the Investigating Officer has narrated how the articles i.e. material objects are recovered at the instance of the 8 accused persons. Therefore, there is no reason to interfere with the judgment of the Trial Court.
7. After hearing both the sides, the point that would arise for my consideration is :
" Whether the appellants have made out any reasonable or substantial ground to interfere with the judgment of conviction and sentence passed by trial Court?"
8. My answer is in the Affirmative for the reasons narrated hereinafter.
9. Before adverting to the evidence of prosecution witnesses recorded in this case, it is just and necessary to have a cursory look at the factual matrix of this case. That on 10.08.2012 one Mr. Lachayya S/o Yallayya of Manchilar Village (Andhra Pradesh) (PW-5) who was Driver of a lorry bearing its Registration No. AP-16/TW- 4718 which belonged to one Mr. Tirupatireddy of 9 Ramanapalli Village. The said lorry was loaded at Dhanapur Village with sponge iron to be transported to Shahad Nagar at Hyderabad. Accordingly, on 14.08.2012, 16.70 tons of sponge iron was loaded to the lorry with relevant papers. The said Lachayya drove the said vehicle towards Shahad Nagar from Dhanapur. When the lorry was proceeding on NH-13, when it reached near Jaihind Dhaba nearby a canal, near T.B. Dam in Bellary District at about 1.00 a.m. on 15.08.2012 the accused Nos.1 to 4 at the instigation and direction over phone by accused No.5 went near T.B. Dam and waiting there for this lorry to come. When the lorry came there the accused Nos.1 to 4 followed the said lorry on their Hero Honda Motor Cycles bearing Registration Nos.KA-48/A-1575 and KA- 37/S-3547, intercepted and stopped the said lorry near the said canal. The accused Nos.1 and 3 took this driver of the lorry Mr. Lachayya by blind folding, took him to a place called Simla Cross and left him there. 10 The accused Nos.1 to 4 committed theft of the lorry with the said sponge iron in the said lorry took the same near Uppaladinni Village and removed the stepny tyres of the said lorry along with the disk. It is further alleged that accused Nos.1 and 2 have sold four stepny tyres to accused No.3 and 3 stepny tyres to some other persons and distributed the amount among themselves. The sponge iron was down loaded near a hillock near Kasanakandi with an intention to lift the same later. On these allegations, the prosecution has lead evidence before the Trial Court.
10. The Trial Court has formulated the following Points fixing the burden on the prosecution to prove the said fact which is as follows :
"Whether prosecution proves beyond
reasonable doubt that accused Nos.1 to 4
stopped lorry bearing No.AP-16/TW-4718
being driven by Lachayya S/o Yallayya Munnoorkapulam Village (A.P.) on 15.8.2012 11 at 00 hours near Jaihind Dhaba and by threatening Lachayya S/o Yallayya took key of the lorry and China mobile set No.8500466734 and took lorry containing 16.700 tons sponge iron and to this act accused No.5 who used to keep watch on lorries which were being driven by driver without being accompanied by a cleaner, he telephoned to accused Nos.1 to 4 thus accused Nos.1 to 5 have committed offence punishable under Section 395 of IPC ?"
11. In order to prove the guilt of the accused, the prosecution has examined 9 witnesses as PW-1 to PW-9 and got marked Ex.P1 to P13 and MOs 1 to 16. The accused persons were also examined under Section 313 Cr.P.C. and their statements have been recorded. The accused persons have denied the allegations made against them. After hearing the arguments on both the sides, the Trial Court has recorded the impugned judgment and sentence.12
12. It is the case of the prosecution that after committing theft of the said lorry and unloading the iron ore near a hillock the accused Nos.1 and 2 were searching for some lorry for hire to shift the iron ore to some other place for their wrongful gain. On 18.10.2012 on receiving such information about A-1 and A-2 at about 6.00 p.m. the Investigating Officer - PW-7 - Vishwanath along with his squad went to Hirebaganal Village in searching of accused Nos.1 and 2. On seeing the Police Jeep in the said Village the accused Nos.1 and 2 tried to run away from the spot. However, they were caught by the Police, they disclosed their names as Ramesh and Baba Patel. On recording their voluntary statements, it is the case of the prosecution that the Investigating Officer has recovered material objects from the custody of the said accused persons. Again, on the basis of such voluntary statement, it appears the Police have also arrested the accused Nos.3 and 4 with other accused persons and 13 recovered from accused Nos.3 and 4 some incriminating articles under Mahazar - Ex.P3 i.e. MOs 1 to 16, totally 16 material objects were seized in this particular case. After recovering of these material objects by the Investigating Officer appears to have filed the charge sheet. The accused persons were arrested by the Investigating Officer on 19.10.2012 and since then the accused Nos.1 and 2 are in judicial custody. However, accused Nos.3 and 4 were released on bail and they were on bail during the trial and even after conviction the accused Nos.3 and 4 are on bail granted by this Court while suspending the sentence. As rightly argued by the learned Counsel for the appellants, none of the witnesses including the complainant have supported the case of the prosecution. It appears that the evidence of Investigating Officer has been solely relied upon by the Trial Court. However, it is just and necessary for this Court to re-look into the evidence of the complainant and other witnesses as to how these 14 witnesses were dealt with by the prosecution before the Trial Court.
13. PWs 1 and 2 are the panch witnesses for the mahazar drawn under Ex.P1, under which a mobile was seized, under Ex.P2 sponge iron ore was seized, under Ex.P3 motor cycle and other material objects like tyre and disk were seized. These two witnesses turned totally hostile to the prosecution. They not even supported the case to any extent. It is stated by them that these two witnesses were secured to the Police Station and their signatures were taken on the mahazar Exs.P1 to P3. During the course of cross-examination also nothing has been elicited in order to believe these two witnesses. PWs 3 and 4 are the panch witnesses to Ex.P4 - spot panchanama and Ex.P5 - lorry seizure mahazar on 15.08.2012. These two witnesses also in similar fashion turned volte-face to the case of the prosecution.15
14. The evidence of PW-5 who is the complainant and a star witness to prosecution though he has stated that he was transporting sponge iron in his lorry on the date of the incident and some four persons came in two motor bikes, intercepted the said vehicle and committed robbery of the said lorry along with sponge iron in the said lorry. But he categorically stated that he cannot identify those four persons because he was blind folded at that point of time, he could not see any persons. Even during the course of cross-examination, nothing worth has been elicited to connect the accused persons in connection with this case. No identification parade has been conducted, perhaps may be for the reasons that this witness has never seen those persons who have committed robbery of the lorry and as well as sponge iron.
15. PW-6 - M.B. Inayath is a formal witness, who is the Police Official translated the information submitted 16 by the complainant and also apprehended accused Nos.1 and 2. PWs 7 and 8 are the star witnesses to the prosecution who are the Investigating Officers, who have conducted the investigation and submitted the charge sheet. PW-9 - K. Huligeppa Kuri, share holder of Shiva Transport Firm, who has taken the sponge iron on the orders of the Court to his interim custody.
16. Looking to the above said evidence, as rightly argued by the learned Counsel except the evidence of Investigating Officer, no other materials are available to the prosecution case. Now, the Court has to analyse the evidence of the Investigating Officer and ascertain whether his evidence is trustworthy and credit worthy for acceptance.
17. Before adverting to the evidence of these two witnesses - PWs 7 and 9, it is worth to note here some of the observations made by the Trial Court in order to convict the accused persons. At paragraph 17 after 17 discussing the evidence of other witnesses, the learned Trial Judge has relied upon a decision of the Hon'ble Supreme Court reported in AIR 2013 SC 3344 between Pramod Kumar v. State (GNCT) of Delhi which reads as follows :
"The witnesses from the department of police cannot per se be said to be untruthful or unreliable. It would depend upon the veracity, credibility and unimpeachability of their testimony. There is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trust worthy, the Court can definitely act upon the same. If, in the course of scrutinizing the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the 18 department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence."
18. Basing on this decision, the evidence of Investigation Officer has been believed by the trial Court. But what disturbs this Court is that though the trial Court has believed the Investigation Officer, but failed to discuss the evidence of Investigation Officer on the touch stone of arguments of the defence or the defence taken up by the accused that the mahazar drawn by Police Officer was in the police station itself as none of the witnesses have supported and uncorroborated testimony of Investigation Officer should not be believed. When such a defence has been taken by accused, it becomes incumbent upon the Court to discuss the evidence of Investigation Officer and find out whether his evidence proves the prosecution case beyond all reasonable doubts and it is so trustworthy 19 and credible to record a Judgment of conviction. Therefore, it is a duty cast on the part of this Court to find out that, in view of the above decision of Hon'ble Supreme Court, whether the evidence of Investigation Officer can be made a sole basis for confirming the judgment of trial Court.
19. Before adverting to the evidence of Investigation Officer, it is also worth to note here some of the rulings relied upon by learned counsel for appellants. In a case reported in -
2013 (1) Kar. L. J. 591 (SC) between Govindaraju Alias Govinda v. State by
Sriramapuram Police Station and Another. The relevant portion of judgment is at paragraphs 15 and 16, wherein it is said that -
"It cannot be stated as a rule that a Police Officer can or cannot be a sole eye- witness in a criminal case. It will always 20 depend upon the facts of a given case. if the testimony of such a witness is reliable, trustworthy, cogent and duly corroborated by other witnesses or admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a Police Officer and may have some interest in success of the case. It is only when his interest in the success of the case is motivated by overzealousness to an extent of his involving innocent people; in that event, no credibility can be attached to the statement of such witness."
(Emphasis supplied) In another ruling, which is reported in - 2013 (2) Kar. L.J. 638 between Prabhu and Others v. State by Rural Police Station, Bidar Rural.
In the said judgement the Hon'ble Supreme Court has held that -
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A social evil and offence i.e., Section 395 of I.P.C. dacoity out of zeal the trial Court convicted the accused. Such convictions bend the rule of law. Complainant himself turned hostile; other witnesses not supported prosecution - Held, it could not be said, prosecution proved its case beyond reasonable doubt, thus all appellants are acquitted and appeals are allowed."
What has been observed in this particular case is that, " The Court below having laboured to find a case for the prosecution by choosing to quote certain statements of those witnesses, is hardly the manner in which it could be said that the prosecution had established its case beyond all reasonable doubt. The zeal of the Court below to bring home the charges against the accused who may be dangerous dacoits, would bend the rule of law which cannot be permitted." Yet another ruling cited by learned counsel for appellants is reported in -
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AIR 2011 Supreme Court 2271 between State of Rajasthan v. Talevar and Another.
In the said judgment, the Hon'ble Supreme Court has held at paragraph 7.7 that -
"Thus, the law on this issue can be summarized to the effect that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. It also depends on the nature of the property so recovered, whether it was likely to pass readily from hand to hand. Suspicion should not take the place of proof."
The last but one judgment cited by learned counsel for appellants is reported in - 23
2011 (2) S.C.D. (Cri.) 536 between Mustkeem @ Sirajudeen vs. State of Rajasthan.
20. The Hon'ble Supreme Court has held in the said judgment that:
"the inference of guilt in circumstantial evidence case can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. Discovery of the material object, burden lies on the prosecution to establish a close link between discovery of the material objects and its use in the commission of the offence. What is admissible under Section 27 of the Act is the information leading to discovery and not any opinion formed on it by the prosecution. It was also held that, the witnesses declared hostile, it would be not be sufficient to hold accused persons guilty for commission of the offence". 24
The last decision cited by learned counsel for appellants is reported in -
(2012) 2 Supreme Court Cases 399 between Madhu vs. State of Kerala.
21. The Hon'ble Supreme Court has held in the said judgment that:
"the conviction was recorded with a consequence of recovery of ornaments were not by deceased in the said case pursuant to information furnished by accused and factum of there having been cited close to the place of occurrence at or around the place of occurrence held evidence does not in any way establish the guilt of accused".
22. The sum and substance of the above said rulings as to my perception is that the evidence of the witnesses even though they turn hostile, but there must be some corroboration from the evidence of the witnesses in order to link the recovery of any articles to the accused 25 persons. The Investigation Officer though a sole witness who connect the accused persons to the incriminating articles his evidence should not be discarded only on the ground that he is the Investigation Officer and he is always interested in the success of the prosecution. Therefore, he should not be dubbed as an interested witness on that particular ground if his evidence is otherwise trustworthy and credible for acceptance. However, the Court also should bear in mind the Investigating Officers so far as the criminal cases are concerned, they are naturally interested in the success of the prosecution. The implanting of the witnesses, creating of the evidence against the accused persons, collecting materials against the accused persons in a manner against law and procedure also cannot be over- ruled. All these things should be tested by means of meticulously scanning the evidence on record to ascertain whether the Investigation Officer is in any manner not reliable and his evidence cannot be made 26 the sole basis for conviction of the accused persons. In this background, the evidence of the Investigating Officer in this case plays a dominant role.
23. Let me first go through the evidence of the Investigating Officer - PW-7 and refer his evidence with other materials on record to find out whether his evidence without any blemish deserve for acceptance.
24. PW-7 - Vishwanath has deposed in his evidence that on 15.08.2012 at about 6.00 a.m. the complainant
- Lachayya lodged a complaint in Telugu language, after getting it translated PC 258 registered a case in Crime No. 174/2012 for the offence under Section 384 of I.P.C. It is also stated by him that on the same day between 7.30 a.m. to 8.30 a.m. with the help of PWs 3 and 4 he went to the spot and conducted the spot mahazar as per Ex.P4. But those witnesses as I have already stated totally turned hostile and the evidence of this witness is not corroborated. It is further deposed that on 27 17.08.2012 he took panch witnesses CWs 2 and 3 and went to Uppaladinni Cross and seized two tyres and two disks from the spot under a mahazar Ex.P5 and also seized the lorry which was lying there. It is also stated that on 18.10.2012 at about 6.00 p.m. he arrested accused Nos.1 and 2 and afterwards he collected the panch witnesses - one Mr. Prbhu and Jeevan Kumar securing them to the Police Station and conducted a mahazar as per Ex.P1, under which accused No.2 Baba Patel produced some papers pertaining to the transport of sponge iron ore. He also deposed that this Ramesh and Baba Patel have given voluntary statements, stating that, they will show where they have unloaded the sponge iron and also they kept the motor cycles which were used for intercepting the lorry of PW-5 and also where they have kept the stepny tyre, etc. They also show the other accused persons Krishna, Kumar and others.
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25. On the basis of such voluntary statement, it is deposed that they all went to Hospet near R.T.O. Office and arrested other six accused persons as shown by accused Nos.1 and 2. It is further stated that on 19.10.2012 the accused Nos.1 and 2 took the Police to Kasanakindi Village near a hillock and showed two heaps of sponge iron ore alleged to have been robbed by them from PW-5 and another person by name Chennaiah who is the complainant in S.C. No.9/2013. It is also stated that, under Ex.P3 in presence of the pancha witnesses MOs 1 to 16 were seized at the instance of accused Nos.3 and 4.
26. Though the Investigating Officer has narrated in his evidence that he has seized some articles from the custody of accused Nos.1 and 2 and some articles from accused Nos.3 and 4 but as rightly contended by the learned Counsel none of the panch witnesses have supported the case. Now, the question arises is : 29
"Whether there are any doubtful circumstances to doubt the conduct of the Investigating Officer so as to discard his uncorroborated evidence" ?
27. PW-9 - K. Huligeppa Kuri has stated in his evidence that he has taken the sponge iron ore on the orders of the Court. But he never stated where he has taken the lorry or the lorry was loaded with sponge iron ore or from which place he has taken the said sponge iron ore. Apart from the above discrepancy in the evidence of this witness, it is the bounden duty of the Investigating Officer to conduct the identification parade. If the accused persons are totally unknown and strangers to the witnesses to the prosecution, i.e. particularly to PW-5 who is the complainant who saw the accused persons at the initial stages, before he was blind folded by the accused persons. The F.I.R. - Ex.P10 shows that the complainant has specifically stated he saw those four persons who have committed 30 robbery of the lorry. It is also stated that they were all aged about 30 to 35 years, they were talking telugu language and if they were shown to this witness he can identify them. Though it is stated in his statement that he can identify the culprits, no effort has been made by the Investigating Officer to get them identified by way of Test Identification parade. When such being the case, non-conducting of the identification parade is also a serious lapse on the part of the Investigating Officer.
28. The Investigating Officer - PW-7 has violated the provision under Section 54-A of the Criminal Procedure Code, which reads thus :
"54A. Identification of person arrested.--Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police 31 station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit".
In this particular case, the above said provision has not been followed by the Investigating Officer for the purpose of getting the accused persons identified by the important witness. Apart from this, the Karnataka Police Manual also at Chapter XXXIII para 1362 which reads as follows :
"1362. The following are the salient points to be borne in mind by Police Officers arranging identification parades.--
(1) Warn the accused person that he will be put up for a parade and he could keep himself veiled;
(2) Secure the services of a Magistrate for holding an identification parade; if this is not possible, secure two or more respectable and independent persons of 32 the locality to hold the parade; do not select persons already known to the identifying witnesses to stand along with the suspects in the parade; arrange for the identification parade immediately an accused is arrested. There should be no delay.
(3) When one accused is arrested in a case in which more than one accused is required to be identified, do not postpone the parade of the arrested accused, till the others are secured. As each accused is arrested, go on arranging for the parade. (4) Other persons participating in the parade should be of the same build, age, dress and appearance as the suspects; (5) Maintain a minimum proportion of 1:5 and a maximum proportion of 1:10; distribute the accused among others. They should not be made to stand together;
(6) Keep the accused out of the view of the witnesses and take precautions to prevent their being seen by others from the time of their arrest, if they are to be put up for identification parade subsequently;33
(7) Shuffle the persons in the parade after identification by each witness and make a record of having done so in the proceedings;
(8) In respect of each accused, a separate identification parade should be held;
(9) When several accused persons are required to be identified, the innocent persons, mixed up with one accused at one parade, should not be mixed up with another accused at a second parade.
They should be changed, with every change of an accused person".
29. In view of the above said guidelines, the Investigating Officer must conduct the test identification period of the accused persons as soon as possible from the time of their arrest, who are strangers to the witnesses to the prosecution. Why this particular aspect has not been done, why the complainant was secured to the Police Station and shown the accused persons to the complainant is not explained by the Investigating Officer. This particular act or attitude of 34 the Investigating Officer shows that for the purpose of his convenience he can conveniently violate or overcome the statutory principles and he can conveniently throw the legal principles to the wind. When such a lapse is there on the part of the Investigating Officer, how the evidence of such Officer could be believed, so far as the other aspects with regard to the recovery of the incriminating articles at the instance of accused Nos.1 and 2 if the said evidence of the Investigating Officer is not corroborated.
30. In the cross-examination of the Investigating Officer, it is suggested that he never gone to any place nor conducted any mahazar as stated by him in the examination-in-chief and all the mahazars were drawn in the Police Station. In fact, this suggestion is supported by the evidence of the other prosecution witnesses. It is also suggested that the accused persons are the regular drivers and they have been driving their 35 lorry in National Highway No.63 and 13. In fact, this particular suggestion has been admitted by this witnesses and as well as PW-8 - Venkatappa Naika, who laid the charge sheet against the accused persons after the investigation. Therefore, it goes without saying that these accused Nos.1 and 2 were very well known to PW- 7 and PW-8 even much earlier to the incident. The records also show that, after lapse of two months after the incident accused were arrested and alleged recoveries made. The Lorry was recovered within 3 days from the date of the incident. In this background when Police could not trace the culprits for about two months in order to close the case the Police might have implicated the accused who were known to the Police earlier, this possibility can't be ruled out. Hence, under the above said circumstances and in view of the Rulings of the Apex Court as narrated above, in my opinion, though the corroboration to the evidence of Investigating Officer is not an absolute requirement but 36 depending upon the facts and circumstances of the case, the Court has to insist the corroboration to the evidence of the Investigating Officer. When it is shown on the basis of the evidence that the Investigating Officer can under certain circumstance avoid the statutory principles, recognised procedures for investigation and can conveniently build up the case according to his interest in the case, his evidence does not deserve for acceptance, and on the basis of his evidence it can't be said prosecution case is proved beyond reasonable doubt.
31. So far as accused Nos.3 and 4 are concerned, the learned Sessions Judge has not at all discussed how the accused Nos.3 and 4 can be dubbed as receivers of stolen property. At paragraph 19, the learned Sessions Judge has said that accused Nos.3 and 4 are concerned, as per their statements admissible under Section 27 of the Evidence Act, only tyres and disks 37 have been recovered. So far as their involvement in robbery is concerned, the evidence on record is not sufficient. Hence, they are termed as receivers of stolen property under Section 411 of IPC and accordingly, convicted. But mere possession of these articles even accepted in the absence of any other materials to connect these accused persons, cannot be said that they are the receivers of the stolen property, particularly when the recovery of these articles from any one of the accused persons has not been proved to the satisfaction of the Court as there is no corroborative evidence from the panch witnesses and other materials on record. Therefore, in my opinion, the Trial Court has committed a serious error in solely relying upon the uncorroborated evidence of Investigating Officer. Hence, the same is liable to be set aside.
32. Looking to the above said evidence, in this particular case the non-conducting of Test Identification 38 Period and also the accused being shown to the complainant in the Police Station, shows that the Investigating Officer has avoided the statutory principles and he has violated the mandatory procedures for conducting the investigation. Therefore, in my opinion, the evidence of such Investigating Officer cannot be made sole basis for recording the Judgment of Conviction. Therefore, the Trial Court has committed a serious error in appreciating the evidence on record. As such, the judgment of Trial Court requires to be interfered with. Hence, with these observations, I answer the point formulated by me in the Affirmative and proceed to pass the following Order :
The Judgment of conviction and sentence passed by the Trial Court in S.C. No. 21/2013 on the file of the District and Sessions Judge, Koppal is hereby set aside. Consequently, appellants/accused Nos.1 and 2 in Crl.A. No.100014/2014 are acquitted of the charges levelled 39 against them under Section 392 of I.P.C. and appellants/accused Nos.3 and 4 in Crl. A. No. 100009/2014 are acquitted of the charges levelled against them under Section 411 of I.P.C. The accused Nos.1 and 2 are said to be in the Jail and they shall be set at liberty forthwith, if they are not required in any other case.
If any fine amount is deposited by them, the same is ordered to be refunded.
In view of the disposal of these appeals, I.A. 1/2014 filed for suspension of sentence in both the appeals do not survive for consideration.
So far as the release of the vehicles and the other material objects are concerned, the order of the Trial Court is not disturbed.
Office is hereby directed to send intimation to the Trial Court forthwith so as to enable the Trial Court to 40 send the release order to the concerned Jail authorities to release accused Nos.1 and 2.
SD/-
JUDGE Rbv