Karnataka High Court
Davood S/O Noorhammad Bairikoppa vs The State Of Karnataka on 17 July, 2019
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IN THE HIGH COURT OF K ARNAT AKA
DHARWAD BENCH
DATED THIS THE 17 T H DAY OF JULY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
CRL.A.NO.100274/2018
BETWEEN:
DAVWOD
S/O NOORHAMMAD BAIRIKOPPA ,
AGE : 20 YEARS, OCC: AUTO DRIVER,
R/O S ONIYA GAND HI NAGAR,
BEEDI PLOT, HUBBALLI.
... A PPELLANT
(BY SRI R.H.ANGA DI, ADV OCATE)
AND:
THE STATE OF KARNATAKA,
KASABAPETH POLI CE STATION ,
REPRES ENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF K ARNATAKA,
DHARWAD BEN CH, DHARWAD.
... RES POND ENT
(BY SRI RAJA RAGHAVENDRA NAIK, HCGP)
THIS CRIMINAL APPEAL IS F ILED UNDER
SECTION 374 ( 2) OF CR.P.C., PRAY ING FOR S ETTING
ASIDE THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION PA SSED IN S .C.N O.22/ 2018 DATED
29.08.2018 AND S ENTENCE DATED 05.09.2018 BY THE
LEARNED V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DHARW AD, SITTING AT HUBBALLI,
CONSEQUENTLY ACQUIT THE APPELLANT/ACCUS ED
NO.2 IN KASABAPET P.S .CRIME NO.41/ 2016 FOR THE
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OFFENCES PUNISHABLE UNDER S ECT ION 457 AND 380
OF I PC TO MEET I N THE ENDS OF J USTICE.
THIS CRIMINAL APPEAL COMI NG ON F OR
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This appeal has been filed by accused No.2 in S.C.No.22/2018, appellant herein against the judgment and order of conviction and sentence dated 29.08.2018 imposed against him for the offences punishable under 457 and 380 of IPC in the above said case by the V Additional District and Sessions Judge, Dharwad sitting at Hubballi.
2. Brief facts of the case are as under :
The complainant and his family went out side from their house, i.e., on 24.04.2016 at 11.30 a.m. he received a phone call with his relative who is also neighbor of his house informing that the lock of his house is opened, only latch was there. On that information, the complainant and his family members rushed to their house and noticed that, 3 the lock was opened, house was trespassed, and articles kept in Almera were thrown on the floor.
They noticed that gold articles i.e., one necklace, one mangalasutra with block stones, one managalsutra, a pair of ear-stud, one chain and silver articles i.e., four pairs of silver ankle chains valued at Rs.Rs.1,89,415/- and some cash was stolen from his house. Accordingly, a complaint was filed before the jurisdictional police.
3. On the basis of the complainant, Kasabapet Police, Hubballi registered a case in Crime No.41/2016 for the offences punishable under Sections 454, 457 and 380 of IPC. The Investigating Officer visited the scene of offence on 26.04.2016 between 9.00 to 10.30 in the presence of CWs.2 and 3 photographs at the scene of offence was taken the statement of witnesses were recorded. On 28.08.2016, accused No.1 was arrested under suspension in Ishwarnagar, Old 4 Hubballi at 7.00 p.m. Accused No.1 disclosed the offence of lurking house trespass along with other accused persons committed in the dwelling house of different place and at different time. The Investigating Officer recorded the voluntary statement of accused No.1 and recovered a chain and a tool was also recovered from his possession. As per the voluntary statement of accused No.1, arrested accused No.2 to 4. Accused No.2 of this case was arrested on 28.08.2016 by the police. After arresting, voluntary statements of the other accused persons were recorded. On the information given by the accused persons and on apprehension of accused Nos.5 and 6 stolen articles were recovered from their possession, which were alleged to have been taken from accused No.1. It was also found that accused Nos.5 and 6 were in the habit of receiving stolen properties. Therefore, they were also prosecuted in the very same case for offence punishable 5 under section 413 of IPC. Thereafter accused were produced before the jurisdictional Magistrate. After completion of investigation charge sheet came to be filed before the jurisdictional magistrate for the offences punishable under sections 457, 413 and 380 read with section 34 of IPC against accused Nos.1 to 6. The learned magistrate committed the case to the Sessions court for trial, as the offence punishable under Section 413 is triable by the Sessions Court.
4. After committal, the learned Sessions Judge, registered a case in S.C.No.22/2018 against the accused persons. Learned Sessions Judge, secured the presence of accused Nos.1 to
6. After hearing, charges were framed against accused Nos.1 to 4 for the offences punishable under section 457 read with section 34 of IPC, against accused No.2 for the offence punishable under section 380 of IPC and Accused charge was 6 also framed against accused Nos.5 and 6 for the offence punishable under section 413 of IPC. All the accused pleaded not guilty and claims to be tried.
5. The Trial Court, after holding the trial, found accused Nos.1, 2 & 4 to guilty of the offences punishable under sections 457 and 380 of IPC. Accordingly, convicted and sentenced the accused to undergo imprisonment for a period of three years and six months and shall pay fine of Rs.1,500/- in default shall undergo simple imprisonment for two months for the offence punishable under section 457 of IPC and shall undergo imprisonment of two years and shall pay fine of Rs.1,000/- in default shall undergo simple imprisonment for two months for the offence punishable under Section 380 of IPC.
6. Accused Nos.5 and 6 were also convicted for the offences punishable under 7 Sections 411, 457 and 380 of IPC, and they shall pay fine of Rs.3,000/- each for the offence punishable under Section 411 of IPC. In default to pay the fine, accused Nos.5 and 6 shall undergo simple imprisonment for a period of six months and shall undergo simple imprisonment for a period of 3 years six months and shall pay fine of Rs.1,500/-, in default to pay fine they shall undergo simple imprisonment of two months each for the abetment of offences punishable under section 457 of IPC and they shall undergo simple imprisonment for two years and shall pay fine of Rs.1,000/- in default shall undergo simple imprisonment for two months each for abetment punishable under sections 380 of IPC.
7. However, from the judgment it is not clear as to why accused No.3 has been left out. But the charge is said to have been framed against all the accused persons, but while passing the 8 conviction order, learned sessions judge convicted and sentenced only accused Nos.1, 2, 4 to 6. The judgment does not disclose as to why accused Nos.3 was left. However on perusal of the order sheet dated 05.07.2018 it is mentioned that while rejecting the bail application of accused persons, it is mentioned that accused No.3 released on bail has remained absent and has been absconded.
8. As per the order sheet dated 17.07.2018 on the left side it is stated that the case against accused No.3 has been split up. However, while framing points for determination, learned sessions Judge has not left out accused No.3, but he has included all the accused persons i.e., accused Nos.1 to 6. The pointes were answered in the affirmative. Therefore, learned sessions judge appears to have not applied his mind properly while describing the status of the accused persons tried and convicted. So far as this appeal is 9 concerned, it is preferred by accused No.2 out of the six accused persons as stated above. The appeal is filed on the following grounds:
9. It is contended that, the judgment passed by the court below is highly erroneous, baseless, perverse and capricious. The trial court has failed to appreciate an important fact that, as for as commission of offences punishable under section 457 and 380 are concerned there are no eye witnesses to the incident. Absolutely no any material objects have been recovered from possession of the present appellant. No recovery is made at the instance of present appellant. The appellant has been connected to the crime in question only on the strength of voluntary statement of accused No.1 and there are no circumstances to connect him to the case in hand. The present appellant has been falsely implicated at the instance of some ill-wishers and there is no 10 iota of evidence to connect the appellant to offences as alleged by the police.
10. Further the present appellant has been alleged to apprehend on 28.08.2016 i.e., after lapse of 4 months 3 days from the date of alleged incident. The prosecution has utterly failed to prove its case beyond all reasonable doubt and even there are no good reasons assigned by the trial court to pass order of conviction against the present appeal. Hence he prayed to allow this appeal by acquitting him from the alleged offences.
11. Sri R.H.Angadi, learned counsel for the appellant reiterated the grounds urged in the appeal memo and also prayed for allowing the appeal by acquitting the appellant from the alleged offences.
12. Shri Raja Raghavendra Naik, learned Government Pleader submitted that accused Nos.1 11 to 4 have committed the offence under a common intention. It is on the statement of accused No.1, who is co-accused, involvement of accused No.2 and other accused persons in the incident, came to light. Based on that statement of accused No.1, the MO.1 - rod was recovered. Stolen articles were also recovered from accused Nos.5 and 6. Therefore, the learned counsel would submit that the learned Sessions Judge has considered the oral and documentary evidence in a right perspective manner and the impugned judgment of conviction and sentence does not call for interference. Hence, learned Government Pleader prayed to dismiss the appeal by confirming the impugned judgment of conviction and sentence.
13. On the basis of the pleadings and arguments of both the parties, the points that would arise for consideration by this Court are as follows:
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1. Whether the prosecution had proved beyond any reasonable doubt before the trial court that accused No.2, appellant herein along with accused Nos.1, and 3 to 6 with common intention on the night falling between the days of 24.04.2016 and 25.04.2016 had lurked into locked premises of the complainant and committed the theft of gold and silver ornaments from the house of the complainant and had committed offences punishable under Sections 457 and 380 of IPC?
2. Whether the appellant proves that the judgment and order of conviction and sentence passed by the V Additional District and Sessions Judge, Dharwad sitting at Hubballi, is perverse, capricious and against the facts, circumstances and evidence on record and it is liable to be set aside?
3. What order?
14. It is important to note that except offence punishable under Section 413 of IPC, rest 13 of the offences are triable by the Magistrate. Since accused No.5 and 6 were prosecuted for offence punishable under section 413 of IPC alleging that they have habitual receivers of stolen properties the case came to be tried by the Sessions Judge. Otherwise it would have been triable by Magistrate Court.
15. Five sessions cases i.e., S.C.No.22/2018, S.C.No.23/2018, S.C.No.24/ 2018, S.C.No.25/2018 and S.C.No.26/2018 were registered against accused No.2 and as well as other accused persons. All the said cases are primarily based on discovery and recovery of material object made in Crime No.41/2016 of Kasabapet Police Station. The evidence of PWs.4 to 10 is similar and so also the cross-examination made by the defence counsel. Therefore, the prosecution has to prove beyond any reasonable doubt that accused No.2 has committed offences 14 punishable under sections 457, and 380 of IPC. Merely because stolen articles were recovered from the possession of Accused No.1 or accused Nos.5 and 6 would not by itself prove the guilt of accused No.2. The prosecution has to prove the role played by each of the accused with reference to their overt-act alleged against them.
16. Keeping in mind the above said facts borne out from the records, I proceed to re- appreciate the evidence available on record and also the reasons assigned by the trial court for holding that the alleged offences were proved against the accused No.2.
17. On perusal of the reasoning's stated by the learned Sessions Judge in paragraph Nos.17 and 18 of the judgment, I find that it is based on a sort of assumption without reference to any material evidence on record, which would point out the guilt against accused No.2. 15
18. In the entire judgment the learned sessions judge has not discussed any oral evidence of any one of the witness to say that any overt-act was committed by accused No.2. Nowhere in the entire judgment leaned sessions judge discussed about existence of any common intention among accused persons or a conspiracy to commit the offences. There cannot be any eyewitnesses, so far as the offences like house breaking and committing lurking trespass with an intention to commit offences etc. Very rarely the court would find direct evidence for such offences. Because these offences are committed after sunset and before sunrise. Therefore, whole reasoning of the trial court would only show that the learned Sessions Judge based on the recovery of stolen articles from accused Nos.5 and 6 jumped to the conclusion that accused No.2 has also committed offences punishable under Sections 454 and 380 of IPC.
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19. Admittedly accused No.2 appellant herein has not been convicted for the offences punishable under Sections 457 and 411 of IPC. Interestingly offence punishable under section 413 of IPC is not alleged against accused No.2.
20. The evidence of PW.1 would only show that on the alleged date there was a theft of movable properties in his house by breaking open the lock of the door and locks of Almera and Cupboard i.e., gold and silver articles. It is corroborated by spot panchanama at Ex.P.2 and also by the evidence of PWs.2 and 3. The complainant is said to have been handed over the seized stolen articles after apprehension of the accused persons. Admittedly no valuable articles have been seized from the possession of accused No.2 or at his instance. The stolen material objects were handed over to the interim custody of the complainant they have not produced and 17 marked at the time of trial. The Trial Court has rightly brushed aside the non production of stolen articles by the complainant to whose custody they were given.
21. As regards seizure stolen articles are concerned, admittedly they were seized at the instance of accused Nos.5 and 6. The seizure mahazar is attested by PWs.4 and 5 at Ex.P.9.
22. PWs.7 to 9 are the police officials. They claim to have secured accused No.1 on suspicion. They apprehended him and produced him before the Station House Officer. So whatever statement that is given to him by accused persons would not be admissible one except the portion of the statement which leads to any discovery that statement has been recorded by the Investigating Officer and not by constables. Therefore, at the most it can be said that they are assisted the Investigating Officer in conducting the 18 investigation. In their evidence also witness does not speak anything about the overt-act on the part of the accused No.2. A bald statement is given that the accused took them and showed them the houses and place at which the crime was committed, nothing is elicited by their evidence to prove any nexus between the commission of theft and alleged stolen properties received by accused Nos.5 and 6. The evidence of PWs.8 & 9 is also that of similar to the PW.7.
23. Even according to evidence of PW.10, he has only deposed that on production of accused Nos.5 and 6 on their information it was revealed that the stolen articles secured by committing theft by accused Nos.1 to 4 were purchased by them and on their voluntary statement at Exs.P.16 to 20, he claims to have recovered the stolen articles. All the six accused persons were taken together. The stolen articles were purchased by 19 accused Nos.5 and 6. After finding that these accused persons were also found to have been involved in other crimes registered in other police station also. Accordingly, information was given to the other Investigating Officers and charge sheet came to be filed against these accused persons in this case.
24. On perusal of the above said evidence even without going to the cross-examination it can be said that the whole case of the prosecution against accused No.2 is based only on the information given by other accused persons. No specific overt-act is alleged against him nor any stolen articles were received from his possession. Even the recovery also is said to have been jointly conducted which is quite contrary to the law.
25. The evidentiary value of statement given by an accused leading to a discovery of fact 20 under Section 27 of the Evidence Act has been decided by the Hon'ble Apex Court in the judgment reported in AIR 2019 Supreme Court 546 (Ashish Jain Vs. Makrand Singh and others). Though it is a case of murder but the principle of law relating to section 27 of the Evidence Act and admissibility of information given by the accused leading to a discovery are all very well discussed in the said judgment. Paragraph Nos. 21 & 22 of the said judgment reads as under:
21. As regards the recove ry of incriminating material at the instance of the accused, the I nvestigating Officer K .D. Sonakiya, PW35, has catego rically deposed that all the confessions by the accused persons were made after interrogatio n, but the mode of this interrogatio n does not appear to be o f no rmal characte r, inasmuch as he himself has deposed that the accused perso ns were furthe r grille d and inte rro gate d multiple times befo re extracting the confessions which lead to the reco very of the ornaments, cash, weapons and ke y. We find from the totality of facts and circumstances that the confessions 21 that le d to the re covery of the incriminating material were no t vo luntary, but caused by inducement, pressure or coercion. Once a confessional state ment of the accused on facts is found to be involuntary, it is hit by A rticle 20( 3) of the Constitution, rendering such a confession inadmissible. The re is an embargo on acce pting self incriminato ry e vidence, but if it leads to the recovery of material objects in re lation to a crime, it is most o fte n taken to hold evide ntiary value as per the circumstances o f each case . However, if such a statement is made under undue pressure and compulsion from the investigating office r, as in the prese nt matter, the evide ntiary value of such a statement leading to the recovery is nullified. It is note worthy to repro duce the o bservations of this Court regarding the re lationship betwee n Section 27 of the Evidence A ct and Article 20( 3) of the Constitutio n in S elvi v. S tate o f Karnataka, (2010) 7 SCC 263: (AIR 2010 SC 1974, paras 92, 93, 119, and 120) "102. As mentio ned earlier "the right against self-incrimination" is no w viewe d as an essential safeguard in criminal procedure.
Its underlying rationale broadly co rrespo nds with two objectives- firstly, that o f ensuring 22 reliability of the statements made by an accused, and secondly, ensuring that such statements are m ade voluntarily. I t is quite possible that a person suspecte d or accused of a crime may have been compelled to testify thro ugh methods invo lving coercion, thre ats or inducements during the investigative stage.
When a pe rson is compelled to testify on his/he r own be half, there is a highe r like lihoo d of such testimony be ing false. F alse testimony is unde sirable since it im pedes the inte grity of the trial and the subsequent verdict. There fore , the purpose o f the "rule against involuntary confessions" is to ensure that the testimony considere d during trial is reliable. The premise is that involuntary statements are more like ly to mislead the Judge and the pro secutor, the reby resulting in a miscarriage of justice. Even during the investigative stage, false statements are like ly to cause delays and o bstructions in the investigation efforts.
103. The concerns abo ut the "voluntariness" of statements allo w a more comprehensive account of this right. If invo luntary state ments were readily given weightage during trial, the investigators would 23 have a strong incentive to co mpel such statements- ofte n through methods involving coercion, threats, inducement or deception. Even if such involuntary state ments are prove d to be true, the law should not incentivise the use of inte rrogation tactics that violate the dignity and bo dily integrity o f the pe rson being examine d. In this sense , "the right against selfincrimination" is a vital safeguard against to rture and other "thirddegree methods" that co uld be used to elicit info rmation. It serves as a check on police be haviour during the course of investigation. The exclusion of compelled testimony is important otherwise the investigato rs will be more inclined to extract info rmation through such compulsion as a matter of course . The frequent re liance on such "short cuts" will compro mise the dilige nce required for conducting meaningful investigations. During the trial stage , the onus is on the prosecutio n to prove the charges le velled against the de fe ndant and the "right against selfincrimination" is a vital protectio n to ensure that the prosecution discharges the said onus. ...
133. We have already re ferre d to the language of Sectio n 161 Cr.P.C which pro tects 24 the accused as we ll as suspects and witnesses who are examined during the course of investigation in a criminal case . It would also be useful to refe r to Sections 162, 163 and 164 CrPC which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the "theo ry of confirmation by subsequent facts" i.e . statements made in custody are admissible to the extent that they can be prove d by the subse quent discovery o f facts. I t is quite possible that the content of the custodial state ments could directly le ad to the subseque nt disco very of re le vant facts rather than their disco very thro ugh inde pende nt means. Hence such statements could also be described as those which "furnish a link in the chain of evide nce"
needed for a successful prosecution. This provisio n reads as fo llows:
"27. Ho w much of information re ceived from accused may be prove d.- Provided that, when any fact is deposed to as discovered in conseque nce o f informatio n rece ived from a person accused o f any offence , in the custody of a po lice o ffice r, so much of such info rmation, whether it amounts to a 25 confession o r not, as relates distinctly to the fact there by disco vered, may be pro ved."
134. This pro visio n permits the de rivative use of custodial statements in the ordinary course o f e vents. In Indian law, there is no automatic presumption that the custodial statements have been e xtracte d thro ugh compulsio n. I n short, the re is no re quirement of additio nal dilige nce akin to the administration o f Miranda [16 L Ed 2d 694 :
384 US 436 ( 1965)] warnings. However, in circumstances whe re it is shown that a pe rson was indee d com pelle d to make statements while in custody, relying o n such testimony as well as its derivative use will offe nd Article 20( 3).
135. The re lationship between Section 27 of the Evidence A ct and Article 20( 3) of the Constitutio n was clarified in Kathi Kalu Oghad [AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 :
(1962) 3 SCR 10]. It was o bserved in the majority opinion by Jagannadhadas, J., at SCR pp. 33- 34: (AIR pp. 1815- 16, para 13) "13. ... The informatio n given by an accused pe rson to a police o fficer leading to the disco very of a fact which may o r may not 26 prove incriminatory has bee n made admissible in evide nce by that section. If it is not incriminato ry of the person giving the info rmation, the question does no t arise . It can arise only when it is o f an incriminato ry characte r so far as the giver of the info rmation is concerned. If the selfincriminato ry informatio n has been given by an accused person without any threat, that will be admissible in evidence and that will no t be hit by the provisions of clause (3) of Article 20 o f the Constitutio n fo r the reaso n that there has be en no compulsion. It must, therefore, be held th at the pr ovisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compu lsion [has] been used in obtaining the information."
22. We are of the o pinion that the recovery of the stolen ornaments, etc. in the instant matter was made on the basis of invo luntary statements, which effective ly negates the incriminating circumstance based on such reco very, and severe ly undermines the prosecution case.
26. The case against accused No.2 is based only on the information given by accused No.1. No 27 material objects have been recovered from his possession. There is no evidence on record to show that on the voluntary information given by accused No.2 any material object stolen properties were recovered. Only one material object i.e., MO.1 - rod is said to have been used in several offences alleged to have been committed by these accused persons. The manner of apprehension, the manner of implication of accused persons would go to show that the accused no.2 has been implicated in this case without there being any sufficient evidence on record.
27. Therefore, on re-appreciation of the evidence on record I find that the prosecution has miserably failed to prove the guilt of this accused No.2 for the alleged offences. The mere recovery of stolen articles at the instance of co-accused persons would not prove the guilt of the accused beyond any reasonable doubt. The confession of a 28 co-accused person is a weak form of evidence against the other accused person. Unless there is corroboration and material evidence on record to prove the guilt of the accused it is not safe to convict the accused only on the basis of confession of a co-accused person. Moreover there is no evidence on record to show that the alleged statements were voluntarily and not involuntarily.
28. Moreover non production of material objects physically before the court under facts and circumstances of this case, is fatal to the case of prosecution. Because no article was recovered at the instance of accused No.2 nor anything was recovered from his person. Therefore, photographs alone would not be sufficient to hold that evidence adduced by the prosecution is corroborated.
29. For all the aforesaid reasons, point No.1 is answered in the negative and point No.2 in the 29 affirmative. Hence, this court proceeds to pass the following order.
ORDER
1. The appeal filed by the appellant - accused No.2 is allowed.
2. The impugned judgment and order of conviction and sentence dated 29.08.2018 passed by the V Additional District and Sessions Judge, Dharwad, sitting at Hubballi in S.C.No.22/2018 against accused No.2 is hereby set aside.
3. Accused No.2 in S.C.No.22/2018 is acquitted of all the charges leveled against him.
4. Accused No.2 shall be set at liberty forthwith if he is not required in any other cases.
5. Accused No.2 shall execute a personal bond for Rs.25,000/- and one surety for likesum to the satisfaction of the trial court. He should appear before the 30 appellate Court and the trial court as and when directed.
6. Fine amount deposited, if any, by the appellant - accused No.2 shall be refunded to him after expiry of appeal period.
7. Send back the records along with copy of this judgment to the trial court to take further action in the matter.
8. Office is directed to send a copy of operative partition of the judgment to the concerned Jail Authorities forthwith and to furnish certified copy of the same to the appellant's counsel on applying for the same.
Sd/-
JUDGE K m v/ E M