Karnataka High Court
Shivappa @ Raju @ Shivaraj S/O Siddappa vs The State Of Karnataka on 27 February, 2020
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 27 T H DAY OF FEBRUARY 2020
BEFORE
THE HON'BLE MR. JUSTICE K.N. PHANEENDRA
CRL.A.NO.2608/2011
BETWEEN :
1. SHIVAPPA @ RAJU @ SHIVARAJ
S/O SIDDAPPA HARANSHIKARI,
AGE : 22 YEARS,
2. MOTI @ MARUTHI
S/O KASIM HARANSHIKARI,
AGE : 23 YEARS,
3. GANGAPPA @ GANGALI
@ SURESHI @ SURYA,
S/O KADAPPA HARANSHIKARI,
AGE : 23 YEARS,
4. YANKAPPA @ YANKYA
S/O SIDDAPPA HARANSHIKARI,
AGE : 23 YEARS,
5. DESHU @ BABU
S/O CHANNAPPA HARANSHIKARI,
AGE : 38 YEARS,
6. JEEVE @ JEEVARI
@ SHIVA SHIVAPPA
S/O KANAPPA HARANSHIKARI,
AGE : 25 YEARS,
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7. POOLAYYA @ PULYA @ SHIVARAJ,
S/O YANKAPPA HARANSHIKARI,
AGE : 25 YEARS,
8. SADANI @ DURGAPPA @ CHNDYA
S/O KADAPPA HARANSHIKARI,
AGE : 35 YEARS,
9. AJJAPPA @ CHANDRA @ CHANDYA,
S/O AWALI HARANSHIKARI,
AGE : 22 YEARS,
10. HULIGESHI @ HULGAPPA @ AVALSING
S/O ADARU HARANSHIKARI,
AGE : 22 YEARS,
ALL ARE R/AT SAJJE ONI AT KOPPAL
NOW AT JC AT BELLARY.
... APPELLANTS
(BY SRI AVINASH M.ANGADI, ADVOCATE FOR
SRI J.BASAVARAJ ADVOCATE)
AND :
THE STATE OF KARNATAKA,
BY CIRCLE INSPECTOR,
BADAMI POLICE STATION,
DIST: BAGALKOT,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING CIRCUIT BENCH
AT DHARWAD.
...RESPONDENT
(BY SRI V.M.BANAKAR, ADDL.S.P.P)
THIS APPEAL IS FILED UNDER SECTION 374(2)
OF THE CODE OF CRIMINAL PROCEDURE SEEKING TO
SET ASIDE THE JUDGMENT AND ORDER OF
SENTENCE DATED 26.08.2008 PASSED BY THE
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LEARNED PRESIDING OFFICER, FAST TRACK COURT
NO.II, BAGALKOT IN S.C.NO.67/2007.
THIS CRIMINAL APPEAL HAVING BEEN HEARD
AND RESERVED FOR PRONOUNCEMENT OF JUDGMENT
ON 14.02.2020 COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
The appellants are respectively arraigned as accused Nos.1 to 10 before the Fast Track Court- II, Bagalkot in S.C.No.67/2007. The Trial Court has convicted the appellants for the offence punishable under Section 395 of the Indian Penal Code ("IPC" for short) and sentenced them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/- each in default to undergo simple imprisonment for six months.
2. I have heard the arguments of the learned counsel for the appellants and the :4: learned Additional State Public Prosecutor ("Addl.SPP" for short) for the State. I have also carefully perused the entire oral and documentary evidence on record and also the judgment of the Trial Court.
3. Before adverting to the material evidence on record and the submission made by the learned counsel for the appellants and learned Addl.SPP, it is just and necessary to have the brief factual matrix of the case.
4. The case of the prosecution is that, PW.3 who is the complainant has lodged a complaint on 17.12.2006 stating that, herself and her husband and other six persons i.e., children of the complainant and her husband have been residing at Kabbalageri village in a landed property. On 16.12.2006 it is alleged that :5: at about 8.30 p.m. when the complainant and her son by name Hanamant and also her husband were there in the land, her husband was fixing some water pipes in the land. Some people came near their house talking with her husband and then she came out and found 8 to 10 persons holding clubs in their hands making attempts to assault her husband. Immediately her husband ran towards the village. PW.3 with fear went back to the house. All those persons came inside the house, out of them two persons were holding clubs. Two persons were standing near the main door and one person holding a knife by showing the knife has robbed the ear studs and thereafter assaulted the complainant. They also taken out the bugadi and ear studs etc. and they also took out an iron trunk inside the house and went towards a hillock. By that time the husband and :6: other villagers also came, then she disclosed the incident being happened. Immediately they went to the police station and lodged a complaint describing, what are all the items that were taken away by the accused as many as 11 items totally worth Rs.58,220/- (including cloths, gold articles, cash and etc.)
5. It is also stated that the said accused persons were all wearing black colour underwear and black banian and they were talking in Kannada language. They were all approximately aged about 20 to 25 years. It is specifically stated that she has seen all those persons and if they are shown once again she could able to identify them.
6. On the basis of the above said complaint, the police have registered a case in :7: crime No.214/2006 for the offence under Section 395 and after thorough investigation laid a charge sheet against the accused for the above said offence.
7. The accused persons were arrested by the police on 05.05.2007 and they were committed to the Court of Sessions. After securing the presence of the accused from the jail, the Trial Court also framed charges for the above said offence. As the accused pleaded not guilty they were tried by the Sessions Court.
8. The prosecution in all examined as many as 17 witnesses and got marked Exs.P.1 to P.54 and Ex.P.54(a) during the course of cross- examination PWs.8 and 9 Ex.D.1 and Ex.D.2 were also marked. Ex.D.3 is the alleged marriage card of accused Nos.4, 6 and 10. Prosecution also got :8: marked MOs.1 to 24. On behalf of the accused DW.1 was also examined to establish alibi that the accused persons on 16.12.2006 have attended the reception of marriage accused Nos.4, 6 and 10.
9. Learned counsel for the appellants strenuously contends before the Court that, the evidence of eyewitnesses i.e., PWs.3, 8 and 9 is contrary to each other with regard to the participation of the accused and PW.9 was not at all there and the role of PW.8 is not stated in the complaint by PW.3. There is contradiction with regard to assault by the accused sustaining of the injury by the complainant. The medical evidence is also not fully supportive to the case of the prosecution.
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10. There is a doubt about the presence of the accused on the particular day and there were no chances of these witnesses clearly seeing the face of any of the accused because there was no electricity supply between 6.05 p.m. to 10.00 p.m. There is no mention in the evidence of any of the witnesses with regard to existence of any electric pole and they have seen the accused in the electricity light. The recovery also not established clearly. Therefore the trial court has not properly considered the identification of the accused and also the contradictions and omissions in the evidence of the witnesses and not properly appreciated evidence to hold that, the prosecution has not proved the recovery of any articles at the instance of the accused persons. Test identification parade was held after lapse of six months and the same is also fatal to : 10 : the prosecution. Hence, he pleaded for setting aside the order passed by the Trial Court and to acquit the accused.
11. Per contra, learned Addl.SPP strenuously contended that there is no enemity or whatsoever hatred against the accused persons and accused persons are totally strangers to the witnesses there cannot be any false implication of the accused. The evidence of PWs.3, 8 and 9 is so consistent with regard to the identification of the accused and also identification of the material objects belonging to PW.3 and her family. The test identification conducted coupled with the evidence of the Tahasildar clearly discloses that the test identification parade was very meticulously conducted and all the accused persons were specifically identified by the witnesses. : 11 :
12. PW.3, though has stated the specific overt-act of the accused Nos.1, 2, 5 and 8 but the participation of others also have been categorically stated. Recovery of the incriminating articles at the instance of the accused is also proved as the witnesses have fully supported the recovery of MOs.1 to 5 at the instance of accused. The Ex.P.4 and the evidence of the witnesses also disclose that there was sufficient light inside and outside the house and electricity supply was there. Therefore, there was every chances of PWs.3, 8, and 9 witnessing the accused persons. There is no lapse on the part of the investigating agency. Therefore, the prosecution has proved its case beyond all reasonable doubt and there is no room to interfere with the judgment of conviction and : 12 : sentence passed by the Trial Court. Hence, he pleaded for dismissal of the appeal.
13. Bearing in mind the above said submissions, it is just and necessary to have the brief cursory look at the evidence of the prosecution witnesses.
14. PW.1 is the witness who refers to recovery of incriminating articles i.e., material objects MOs.1 to 6 under Ex.P.1.
15. PW.2-Mr.Basappa deposed before the Court that the police have found a pen produced by CW.15 Yaseen and the same was seized under a mahazar Ex.P.2 which is marked at MO.7.
16. PW.3, PW.8 and PW.9 are the eyewitnesses to the incident. The evidence of these witnesses have been discussed little latter. : 13 :
17. PW.4-Parasappa is the spot pancha witness. He deposed that the police have visited the house of complainant-PW.3 and also shown the place in Hillock at a distance of half a kilometer from the house of PW.3 and they found an iron trunk lying there and also some cloths i.e., MOs.9 to 22 and police have drawn the mahazar as per Ex.P.4. He has also supported to the case of the prosecution. There is no significance so far as this mahazar is concerned, because it is the case of the prosecution that after thoroughly checking the trunk, the accused persons only taken away the valuables and thrown the cloths which were inside the said trunk.
18. PW.5-Manjunath is the receiver of gold property from the accused persons. He has also supported the case of the prosecution. The : 14 : evidence of this witness and PW.1 requires to be considered with regard to recovery, little later.
19. PW.6 is the photographer who was present at the time of spot panchanama and he has produced Exs.P.5 and 6, which are the photographs of the spot. The said witness is a formal witness.
20. PW.7 one Yaseen has deposed before the Court that about 13 to 14 months back some four persons came near the land of this witness and they have taken away the food articles inside the shed belonging to this witness. After they went away, he found a red pen on which name of one H.K.Pujar was inscripted, he took the said pen and produced before the Police and the same was seized by police and marked at : 15 : MO.7. Later it proved that the said pen belonged to PW.8.
21. PW.10 one Mr.Maruti is the scribe of Ex.P.3. It appears PW.3 is an illiterate and on the instruction and dictation given by PW.3 this PW.10 has written the complaint as per Ex.P.3. Thereafter the same was lodged by her before the police. In the course of cross-examination there is no much dispute with regard to the drafting of the complaint by this witness at the instance of PW.3.
22. PW.11 is a doctor who has actually treated PW.3 brought to the hospital on 16.12.2006 in the night at about 11.30 p.m. She found a small injury to the neck and also on the right ear and they were simple in nature. Accordingly she gave a wound certificate as per : 16 : Ex.P.7. Though it is elicited in the course of cross-examination that there were no injuries on the back of the PW.3 which were caused by assaulting with a cycle chain. It is also suggested and admitted by the doctor that if a person comes in contact with some plants while cutting and removing the fence etc., such injuries also could be caused.
23. PW.12 is one Mr.Sangappa who was working as Village Accountant of Kabbalageri village, he gave certificates Ex.P.8 and 9 certifying that the landed property of one Mr.Konappa is situated in Kabbalageri village, wherein the complainant and her husband and others were residing in that garden house. There is no dispute with regard to the complainant and her husband and her children were residing in the said village particularly in the garden land : 17 : and accused also could not have disputed the same.
24. PW.13 is Circle Police Inspector who has investigated the matter to some extent and conducted spot mahazar and a mahazar at Hillock shown by PW.3 as per Exs.P.4 and Ex.P.10 and partially conducted the investigation.
25. PW.14-MR.Shantagouda who was working as an Engineer, HESCOM, Badami has given the certificate at Ex.P.11 stating that, on 16.12.2006 between 6.05 p.m. to 10.00 p.m. there was single phase electricity supply to Kabbalageri village and in single phase supply, the house lights were burning during that time. Though it is suggested that during single phase electric water pumps cannot be run, the same is : 18 : accepted but he has also stated, if such motor runs, it may cause damage to the motor. There is no denial with reference to the electricity supply to the houses and streetlights.
26. PW.15-Laxmana who was working as Police Sub-Inspector, Bagalkot at that time has deposed that on 16.12.2006 at about 8.45 p.m., he received a telephonic message with regard to the dacoity being committed near Yaraguppa railway station. He went in search of the dacoits. Thereafter he came to police station at about 1.00 am at that time the complainant and her husband were present and they gave complaint as per Ex.P.3 and he registered a case and secured the dog squad and said dogs have gone near Mini Vidhana Soudha and stopped there. : 19 :
27. PW.16-Mr.Mahesh who was working as Tahasildar who deposed before the Court that he has conducted the identification parade of all the accused persons on 29.06.2007 and he categorically stated about the identification parade and identification of the accused persons by PWs.3, 8 and 9. I will discuss the evidence of this witness little later.
28. PW.17 is Circle Police Inspector who in fact conducted the entire investigation, arrested the accused, recovered the incriminating articles at the instance of the accused and filed the charge sheet.
29. On cursory look at the evidence on record, it suggests that the entire case revolves around the identification of the accused persons by PWs.3, 8 and 9 and also jewelries belonging : 20 : to PW.3 being identified by PWs.3, 8 and 9, stating that those incriminating gold articles were robbed by accused persons on the date of the incident. The second important segment is recovery of said gold articles at the instance of the accused. If these two circumstances are found to be proved beyond reasonable doubt, then there is no question of interference with the judgment of conviction and sentence passed by the Trial Court. Therefore, in order to look into this particular aspect, the evidence of PWs.3, 8 and 9 have to be meticulously examined.
30. PW.3 in her evidence very candidly stated that, on the date of incident at about 8.30 p.m. herself and her husband and their children were there inside the house. Her husband was feeding water to the land and PW.8-Hanamant, son of the complainant, was holding a battery in : 21 : his hand and showing something to his father. At that time, about 7 to 8 persons came there and they talked with the husband of the complainant. Thereafter, the complainant's husband ran towards the village. All those persons pushed that lady into the house and snatched the gold articles from her. While doing so, they caused damage to her left ear. They have taken away ear studs (bendole), tali, three gold studs and as well as nose stud and they also took away the trunk inside the house which contained Rs.30,000/- cash and some gold articles and also the said trunk contained the cloths of herself, her husband and children. The accused persons have also taken about Rs.900/- which was at the pocket of the shirt of the husband of the complainant and they assaulted with a cycle chain on her back. They also made attempt to : 22 : stab her but she did not receive any injury as such. She stated that they were all totally 10 in number scattered inside the house and near the door of the house and robbed the complainant and went away. Particularly, it is stated that, accused No.1 holding a knife attempted to stab her on her stomach. Accused No.8 actually pushed her inside the house by holding her neck. Accused No.2 has actually snatched mangalasootra and accused No.5 and 8 were also watching near the door. She further deposed that, after the arrest of the accused persons, the police have informed her and she went to the police station and identified MOs.1 to 3 as the ornaments belonged to her, though some other articles were also recovered from the accused. It is also stated by her that the Tahasildar has conducted the identification parade and she : 23 : identified all the accused persons in the course of identification parade. The above said evidence was subjected to cross-examination. In the course of cross-examination, some suggestions were made to this witnesses that, she has not given any statement with regard to existence of any light inside and outside of her house and she has also not stated that what type of cloths accused were wearing, but she denied them. She has admitted that, after a lapse of six months, the identification parade was held. She also admitted that the gold ornaments and accused were identified on the same day. She reiterated in the course of cross-examination that the accused persons were specifically identified in the identification parade and also as to how the tahasildar has conducted the identification parade. It is also suggested that item No.1 to 3 : 24 : are available in the jewelry shops, except this nothing has been elicited in order to totally disprove the evidence of this witness. It is to be borne in mind that the first information itself cannot be an encyclopedia, in a spur of moment due to some fear factor and psychological depression due to the incident being happened, entire picture of the incident cannot be expected to be given by the complainant. If the complaint is read, she has given overall picture of the incident, in my opinion, that would be sufficient to set the criminal law into motion.
31. Of course, there is some discrepancy with regard to the existence of the light which is not stated in the complaint but specifically stated in the evidence which is also fully supported by the other evidence on record, which I have already referred to i.e., the evidence of PW.14 : 25 : who is specifically stated that single phase electricity supply was there in the said Kabbalageri village including the place of the incident, which has not been specifically denied in the course of cross examination. Of course, in the sketch prepared, the existence of any streetlight and bulbs being burning though not stated, but there is no reason as to why the evidence of PW.3 has to be disbelieved because she has absolutely no special grudge or any ill- will and hatred or partisanity against the accused to falsely implicate them. Therefore, the minor discrepancies do occur in the evidence of the witnesses. Those minor discrepancies which are not sufficient to uproot the entire case of the prosecution, such discrepancies should not be given importance.
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32. The evidence of this witness is also fully support by the evidence of PWs.8 and 9. PW.8 is the son of PW.3. He has also specifically reiterated the said aspects, but he was not actually present inside the house as per his evidence, but after the accused went inside the house, he was peeping through the window and he saw all the overt-acts of the accused. He has also stated that accused No.1 was holding a knife and all the accused persons have robbed his mother and also made attempts to assault PW.3. He has also stated that PW.3 begged with accused persons not to assault and they can take away the gold ornaments. He has also stated that the accused persons came to the spot with knives, clubs and small battery. He has also identified material objects MOs.1 to 3 and specifically MOs.7 a pen belonged to him, which : 27 : was produced by one Yaseen, as referred to above, before the Police. Perhaps, the accused persons have taken away this pen also and they have thrown the same near the land of said Yaseen. There was no denial in the course of cross-examination so far as the pen is concerned, but in a very casual manner it is stated that the same does not belonged to PW.8. Very peculiarly enough in the course of cross examination the identification of accused persons by this witness in the test identification parade is not much disputed. There is not even a suggestion about the test identification being conducted and this witness identifying the accused in the jail. That portion of the evidence of this witness is not subjected to cross- examination. Therefore, there is no reason to disbelieve the evidence of this witness. : 28 :
33. PW.9 is the father of PW.8 and husband of PW.3. Though he was not fully present when actually the robbery was committed by accused persons, but he has deposed that on the date of the incident about 10 persons came near his house, four persons were in the front portion, remaining were on the backside, they were holding the clubs and knife in their hands and made assault on this witness, hence he ran away towards the village. In fact, it is stated that he has seen the accused persons in the electricity light. Thereafter, he came back along with 10 to 12 persons of the village. By that time, the accused were already robbed PW.3 and the household articles and went away from the spot. He has also stated that he could able to identify the accused persons and in fact he has identified the accused persons in the identification parade : 29 : conducted by the Tahasildar. In fact, he has also identified MOs.1 to 3, the articles belonged to PW.3. In the course of cross-examination again, formal questions were put, denying the evidence given by him in the examination-in-chief. Very peculiarly it is elicited in the course of cross- examination that the accused were not actually shown to these witnesses in the police station prior to the identification parade conducted by the Tahasildar. Therefore, it clears out the doubt there is no much denial with regard to identification parade conducted by the Tahasildar. Very meticulously this witness and PWs.3 and 8 have stated that how they have identified and in what manner, in the identification parade. A formal suggestion has been made that he never participated in the : 30 : identification parade nor he identified the gold articles.
34. Looking to the evidence of these three witnesses, there is strong consistency with regard to the happening of the incident accused taking away some gold ornaments, robbing the same from PW.3 and thereafter immediately without lapse of time complaint being lodged and after arrest of the accused identifying the gold articles as that of PW.3 and also identification of the accused persons in the jail. Though there are some minor discrepancies with regard to the existence of light and also wearing apparels of the accused, in my opinion, the same is very meager and they do not go the root of the prosecution case.
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35. In the above context, it is worth to refer a decision of the Apex Court reported in 2000 Crl.L.J 400 (SC) (State of Karnataka Vs. K.Yarappa Reddy) wherein the Apex Court has observed that :
"Appreciation of evidence of eyewitness
- criminal Courts should not expect a set of reaction from any eye witness on seeing an incident like murder. If five persons witness one incident there could be five different types of reactions from each of them. It is neither a tutored impact nor a structured reaction which the eye-witness can make. It is fallacious to suggest that P.W.11 would have done this or that on seeing the incident. Unless the reaction demonstrated by an eyewitness is so improbable or so inconceivable from any human being pitted in such a situation it is unfair to dub their reaction as unnatural."
36. It should also be borne in mind that the Court normally should not give over importance : 32 : to omissions and contradictions and minor discrepancies which do not go to the root of the matter and shake off basic version of the prosecution story. It should also be borne in mind that a witness though wholly truthful may be liable to be over gained by the circumstances of court atmosphere and cross examination and sometimes they may make some irrelevant answers and mix up the facts, may get confused in explaining the sequence of events or may also fill up some more details on the imagination on the spur of moment. Therefore, the Court should evaluate the entire evidence on record to come to the conclusion that their evidence is trustworthy even by removing those discrepancies in the evidence of the witnesses.
37. Therefore on re-appreciating the above said evidence, though as pointed out by the : 33 : learned counsel there are some discrepancies with regard to the injuries sustained by PW.3 and cloths worn by accused and with regard to the existence of the light, but other circumstance clearly discloses that the said material evidence though not narrated in the complaint but stated in the evidence and said evidence is fully corroborated by other materials available on record.
38. Though the injury sustained by PW.3 was stated to be that one of the accused assaulted her with a cycle chain on her back, but no visible injury found on her as per the evidence of the doctor as noted supra. Nevertheless, the doctor has stated that she has suffered injury to her neck and just above the ear. The said evidence of the doctor is also corroborated by the evidence of PWs.3 who has : 34 : also stated that the accused persons assaulted her on the neck and made attempt to stab her and she has also stated that she has not suffered any injury due to any alleged attempt to stab. Therefore, overall looking into the evidence, the evidence of PWs.3, 8 and 9 cannot be discarded.
39. Now coming to the identification of the accused, in support of the evidence of PWs.3, 8 and 9, the Tahasildar who conducted the identification parade has very meticulously stated as to how he conducted the identification parade. He has also produced documents as per Exs.P.13 to P.42 and he has specifically stated that on every occasion he made one of the accused to stand in midst of nine other prisoners and made PWs.3, 8 and 9 individually and separately to identify the accused. They all : 35 : specifically identified all the ten accused separately and independently.
40. In the course of cross-examination he has reiterated the proceedings conducted by him with regard to the identification. It is suggested to him that he has not written any letter to the jail authority to furnish the other prisoners but the same suggestion has been denied. A very formal suggestion has been made that he has not conducted any test identification parade, but the procedure adopted by the Tahasildar and how he got the accused persons identified by PWs.3, 8 and 9 meticulously has not been subjected to any cross-examination. Therefore, the identification of accused Nos.1 to 10 by PW.3, 8 and 9 is fully corroborated from the evidence of the Tahasildar. Therefore this is also one of the : 36 : important strong evidence adduced by the prosecution to implicate the accused.
41. So far as the recovery is concerned, PWs.1 and 5 have categorically stated that on 06.05.2007, PW.1 Khaja Ameen and CW.7 Devendrappa were secured to the Badami Police Station and these witnesses have specifically saw ten accused persons in the police station and they told before the police that, they have sold some gold articles to a jewelry shop at Kerur. On such information, the accused persons led the police and these two witnesses to jewelry shop of one Manjunath Pattar, who was present in the said shop and at the instance of the accused said Manjunath Pattar has produced six gold items one bormalasara, ecksara, and black beads chain, jumki, earstuds etc. They were marked at MOs.1 to 6 and the police have recovered the : 37 : same under Ex.P.1. In the course of cross- examination, the evidence of this witness is further strengthened eliciting that he has not a regular witness to the police, but he acted as pancha witness in the present case only. He reiterated in the course of cross-examination that, they all went the Kerur in the police jeep and it is meticulously elicited how many persons went along with accused persons etc. It is further reiterated that the said Manjunath alone was there in the shop and in presence of this witnesses, the accused told him to produce the gold articles sold by them to Manjunath. And Manjunath told that the accused persons have sold the gold articles due to family problems. On perusal of the cross-examination, it is virtually an improvement made in the cross-examination instead of demolishing the case of the : 38 : prosecution. Therefore, there is no reason to disbelieve the evidence of PW.1.
42. Coupled with the evidence, PW.5 one Mr.Manjunath has stated that he was running a jewelry shop by name Mouneshwar Jewelers at Kerur. He has stated that in the month of December, 2006 in the last week, the accused went to the shop of this witness stating that they have got some family problems therefore they have sold the gold items i.e., MOs.1 to 6 and in fact they sold those items for a sum of Rs.20,000/- and collected the said amount. He has also deposed that, about 5 to 6 months later, same accused persons came to his shop along with police and the witnesses, and asked told this witness to produce the gold articles sold by them. Therefore at the instance of the accused this witness has produced the said gold : 39 : articles before the police and they were recovered under the mahazar Ex.P.1. In the course of cross-examination, of-course, he has stated that his shop was very small shop therefore he has maintained any receipt, but as on the date of his evidence he has stated that nowadays he has started to maintain accounts. Therefore the learned counsel contended that when there are no records, evidence of this witness cannot be believed. Merely because receipt has not been maintained when the evidence of this witness is fully corroborated from the evidence of PW.1 and the Investigating Officer, merely because this witness has not maintained any records, the total evidence cannot be discarded. Therefore, from the evidence of these two witnesses prosecution has : 40 : also proved the recovery of item Nos.1 to 6 at the instance of the accused.
43. The promptness of the PWs.3, 8 and 9 is also relevant to be considered. They identified only three items i.e., MO.1 to 3 belonging to PW.3 and they have not claimed other articles. The Court also ordered to return of MOs.1 to 3 and 8 to 14 only in favour of PW.3 and MOs.4 to 6 pertaining to some other was ordered after disposal of the some other cases. Therefore it clearly goes to show that, though some more gold articles were also recovered at the instance of the accused, PW.3 never claimed them it is only MOs.1 to 3 belonged to her was claimed by her and ordered to be returned. The accused persons never claim these gold articles belong to them. No urge was made before the trial court or during the course of cross-examination that any : 41 : of the articles i.e., MOs.1 to 3 belonged to any of the accused. Once the recovery of the said gold articles is proved, the accused have to explain how those articles belonged to PW.3 came to their possession. It is also one of the circumstances which strongly make the Court to believe the prosecution case.
44. Looking to the above said overall re- appreciation of the evidence, in my opinion the prosecution has established the case projected against the accused. Though the defence evidence has been led to establish that the accused were not at all there on the date of the incident and they were attending a marriage, but said evidence is fully falsified by the other evidence adduced by the prosecution. Though DW.1 has stated that all the accused persons were present in the marriage on 16.12.2006, but : 42 : in the course of cross-examination it is suggested that, the said evidence of DW.1 is false. Author of Ex.D.3 has not been examined as to when the said invitation was got printed. It is admitted that in Ex.D.3, the date of the marriage is overwritten and who has done that, is also not explained. Therefore, the Trial Court has come to the conclusion that neither the evidence of DW.1 can be believed nor any reliance can be placed on Ex.D.3, I do not find any strong reasons to deviate from the said observation made by the trial Court.
45. Even after re-appreciation of the entire evidence on record, there is no semblance of material to take a different view that of the view taken by the Trial Court. Therefore, the prosecution in fact has proved the case against the accused beyond all reasonable doubt. Hence, : 43 : the appellants have not made out any grounds to interfere with the judgment of conviction and sentence passed by the Trial Court. The sentence passed by the Trial Court is also appropriate and commensurate with the offence proved against the accused. Therefore no interference is called for. The appeal is devoid of merits, hence we pass the following:
ORDER The appeal is dismissed.
SD/-
JUDGE EM/-