Karnataka High Court
Jai Prasad @ J P vs The State Of Karnataka on 21 August, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL APPEAL No.1128/2010
C/W
CRIMINAL APPEAL No.1162/2010 &
CRIMINAL APPEAL No.1099/2010
CRL.A.No.1128/2010:
BETWEEN:
JAI PRASAD @ J P
S/O PILLARAJU
AGED ABOUT 23 YEARS
R/AT NO.36/1, 1ST MAIN, 3RD CROSS
GOVINDARAJANAGARA
VIJAYANAGAR
BENGALURU ..APPELLANT
(BY SRI V KODANDA RAME GOWDA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY CHANDRA LAYOUT
POLICE STATION ..RESPONDENT
(BY SRI K.P.YOGANNA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED
2
NO.3 PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED:06.10.2010 PASSED
BY THE PRESIDING OFFICER, FTC-XVII, BANGALORE CITY
IN S.C.NO.504/08-CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 395 OF
IPC. THE APPELLANT/ACCUSED NO.3 IS SENTENCED TO
UNDERGO RIGOROUS IMPRISONMENT FOR FIVE YEARS
AND PAY A FINE OF Rs.5,000/- IN DEFAULT OF PAYMENT
OF FINE TO UNDERGO SIMPLE IMPRISONMENT FOR THREE
(03) MONTHS-FOR THE OFFENCE PUNISHABLE UNDER
SECTION 395 OF IPC. THE APPELLANT/ACCUSED NO.3
PRAYS THAT HE BE ACQUITTED.
CRL.A.No.1162/2010:
BETWEEN:
SRI MANJA @ AUTO MANJA
S/O GANGAIAH
AGED ABOUT 22 YEARS
R/AT 10TH CROSS 8TH MAIN
TENT ROAD,
SANJIVININAGARA
BENGALURU ..APPELLANT
(BY SMT N PADMAVATHI, ADVOCATE)
AND:
STATE OF KARNATAKA
BY CHANDRALAYOUT POLICE ..RESPONDENT
(BY SRI K.P.YOGANNA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED
NO.5 PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED:06.10.2010 PASSED
3
BY THE PRESIDING OFFICER, FTC-XVII, BANGALORE CITY
IN S.C.504/2008-CONVICTING THE APPELLANT/ACCUSED
NO.5 FOR THE OFFENCE PUNISHABLE UNDER SECTION
395 OF IPC. THE APPELLANT/ACCUSED NO.5 IS
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR FIVE YEARS AND PAY A FINE OF Rs.5,000/- IN
DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE
IMPRISONMENT FOR THREE MONTHS-FOR THE OFFENCE
PUNISHABLE UNDER SECTION 395 OF IPC.THE
APPELLANT/ACCUSED NO.5 PRAYS THAT HE BE
ACQUITTED.
CRL.A.No.1099/2010:
BETWEEN:
SURESH @ KUTTI
S/O.RAJGOPAL
AGED ABOUT 33 YEARS
R/AT 4TH MAIN, D CROSS,
KALYANANAGARA,
MOODALAPALYA,
BENGALURU ..APPELLANT
(BY SRI CHANDRAPPA K N., ADVOCATE)
AND:
STATE OF KARNATAKA
BY CHANDRALAYOUT
POLICE STATION ..RESPONDENT
(BY SRI K.P.YOGANNA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S.374(2) OF
CR.P.C BY THE ADVOCATE FOR THE APPELLANT/ACCUSED
NO.1 PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND SENTENCE DATED:06.10.2010 PASSED
4
BY THE PRESIDING OFFICER FTC-XVII, BANGALORE CITY
IN S.C.504/2008-CONVICTING THE APPELLANT/ACCUSED
NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION
395 OF IPC. THE APPELLANT/ACCUSED NO.1 IS
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR FIVE YEARS AND PAY A FINE OF Rs.5,000/- IN
DEFAULT OF PAYMENT OF FINE TO UNDERGO SIMPLE
IMPRISONMENT FOR THREE MONTHS-FOR THE OFFENCE
PUNISHABLE UNDER SECTION 395 OF IPC. THE
APPELLANT/ACCUSED NO.1 PRAYS THAT HE BE
ACQUITTED.
THESE CRIMINAL APPEALS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
These three appeals are directed against the Judgment passed by the learned Presiding Officer, FTC
-XVII, Bengaluru in S.C.504/2008 dated 06.10.2010 wherein the accused Nos.1, 3 and 5 were found guilty for the offence punishable under Section 395 of IPC and accused No.2 in S.C.No.305/2009 was acquitted for the offence punishable under Section 395 of IPC.
2. It is necessary to place on record that originally final report came to be filed against five persons. 5 However, accused No.4 died during the trial and case against him was abated. At the same time accused No.2 absconded and split charge sheet was filed against him and separate Sessions case number was allotted in S.C.No.305/2009. However, he was acquitted for the offence punishable under Section 395 of IPC. Thus, the present appeals are from the original case S.C.No.504/2008, insofar as accused Nos.1, 3 and 5 are concerned, they have respectively preferred appeals in Crl.A.No.1099/2010, Crl.A.No.1128/2010 and Crl.A.No.1162/2010 as they were found guilty and convicted for the offence punishable under Section 395 of IPC.
3. The proceedings under criminal law came to be initiated because of the incident dated 25.07.2007 on the strength of the complaint filed by one Smt.Shobha, aged 32 years, wife of Siddagangaiah, 6 Door No.515, 3rd Main, 16th Cross, Kalyananagar, Bengaluru. Complainant is a resident in the address stated above. Her husband works as lineman at KEB, Kunigal. She works for a Women Organization. On 25.07.2007, the complainant and other family members were watching TV by keeping the door open. At that time about six boys abruptly entered into the house. Sarojamma raised voice saying somebody came by that time, all the uninvited entrants closed the door and they were holding knives and threatened if we shouted, they would stab. The complainant and family members were frightened and kept quiet. One of the entrants took Sarojamma inside the kitchen and stood by her side. Saraswati @ Supriya, daughter of complainant was sent inside the room. Insofar as complainant is concerned one person showed knife and asked how much money she kept with her and shell down the jewels. Complainant took out cycle 7 design gold neck chain of 11 gms and gold ring of 2.5gms with white stone studded and another ring of 2gms with red stone were removed and given to him. One person went inside the room and asked what was in the Beeru and there was cash of Rs.3,700/- and complainant opened Beeru and gave Rs.3,700/-. One among them took away the following jewels:
(i) Deepa designed gold chain 33 gms.
(ii) Gold bangles 37 gms with 21 red stones.
(iii) 13 gms gold bracelet with SV mark.
(iv) 6 gms gold with om mark.
(v) 9 gms gold ring with nine white stones.
(vi) Gold earrings 10 gms with seven white
stones.
(vii) Gold hangings 6 gms and gold earrings 4.5 gms 8
(viii) Child's earring 2 gms with drops of 1 gm, one silver plate and 2 bowls weighing 250 gms, nokia mobile phone No.9880402207.
(ix) The total value is stated at Rs.90,000/-
The descriptions of persons who barged their entry into house are as under:
One person tall and fat with red complexion wearing khaki colour T-shirt, visible mark on hand. Another dwarf, flair complexion wearing pink colour shirt.
Another dark dwarf, who was looking like tamilian wearing white shirt.
Another dark person with average height wearing red colour checks shirt.
Another person with average height, fair complexion, wearing black pant and jerkin. 9 Another person whose face complainant could not notice. She says once she sees them she would identify them.
4. The said complaint was recorded in the form of statement on 26.07.2007 at 00.15 hours at complainant's residence. After recording the statement PW-20 came to police station and registered Cr.No.151/2007 under Section 395 of IPC.
After the initial formalities investigation commenced, spot mahazar was conducted in the house of complainant on 26.07.2007 as per Exhibit P-2. It is stated that few weapons used for the commission of offence and the jewellery looted during dacoity were recovered under separate mahazars.
5. It is after the said formality on completion of the investigation, final report came to be filed against the accused Nos.1, 2, 3, 4 and 5. After the charge was 10 framed and read over, accused persons claimed not guilty and were tried. Case against accused No.2 has been split up on 12.02.2009. On filing final report, there is no substantial change in the claim of the prosecution and the charge sheet is filed for the offence punishable under Section 395 of IPC.
6. It appears that the tabular presentation of the facts constituting the statistics may be convenient. Hence, the following tabular presentation:
ACCUSED APPEAL RESULT IN
NO. NO. TRIAL COURT
1099/2010 CONVICTED &
A-1 SC SENTENCED
504/2008
A-2 SC ACQUITTED
305/2009 NO APPEAL
PREFERRED
BY
PROSECUTION
A-3 1128/2010 CONVICTED
SC & SENTENCED
504/2008
A-4 DIED DURING
TRIAL - CASE
11
ABATED
A-5 1162/2010 CONVICTED
SC & SENTENCED
504/2008
TABLE II - REGARDING RECOVERY OF ARTICLES ACCUSED CRIMINAL RESULT IN MAHAZAR RECOVERY NO. APPEAL TRIAL COURT PLACE, DETAILS NO. DATE & WITH MO EXHIBIT NO.
NO.
1099/2010 CONVICTED &
A-1- SC SENTENCED
SURESHA 504/2008
A-2 SC ACQUITTED
S.SHANKAR 305/2009 NO APPEAL
@ KOLI PREFERRED
SHANKARA BY
PROSECUTION
A-3-JAI 1128/2010 CONVICTED Ex.P-7
PRASAD SC & SENTENCED 1. Tendulkar
504/2008 design gold
chain 9.530
gms
Receipt
No.F-10 F-
984 -
29.08.2007
Rs.5,000/-
2. gold ring
with om
mark 3.980
12
gms
Receipt No.F
-11 F-1045
01.09.2007
Rs.2,060/-
A-4 DIED DURING
N.DIWAKAR TRIAL - CASE
A ABATED
@ DEENU
A-5 -MANJA 1162/2010 CONVICTED Ex.P-4
SC & SENTENCED 1. Hangings
504/2008 - 6 gms 350
mili
2. gold ring
with nine
white stones
-5 gms 250
mili
Receipt
No.1173
dated
16.08.2007
Rs.6,250/-
Ex.P-6
1. one silver
plate
2. two silver
bowls
3. pair of
small silver
deepa
13
7. Sri.V.Kodanda Rame Gowda, learned counsel for appellant would submit that there are glaring discrepancies in the evidence produced by the prosecution. One of this is regarding the very identity of the accused No.3 as in the evidence under Ex.P7 - seizure mahazar relating to recovery of articles, it is stated that the gold item was recovered from father of accused No.3. However, in the mahazar PW7 says accused came and pledged. Per contra in the seizure mahazar Ex.P7, it is mentioned that father of the accused pledged. Learned counsel would also submit that there is no synchronization regarding jewellery as well. Learned counsel for accused - appellant would submit that identity of the accused persons is not established on the date of incident. Accused persons were held and charge made against them is concocted. The articles stated in the complaint and those which are recovered do not tally. There is a 14 defect in the Test Identification Parade, as the statement of the officer who conducted is not proved.
8. Sri.Yoganna, learned HCGP would submit that the investigation is full proof identity of the accused which is established and the majority of the gold items were recovered. Recovery of the articles also established. In the circumstances commission of the offence punishable under Section 395 IPC is proved beyond reasonable doubt.
9. The learned Trial Judge was accommodated with evidence of 20 witnesses PWs.1 to 20 including that of complainant, eye witnesses and mahazar witness, Documents Ex.P1 to 31 including mahazar, photograph of the jewels, MOs.1 to 3. On perusing the available and relevant materials, the learned Trial Judge held that the accused persons were guilty of the offence.
15
10. Among the witnesses who are examined i.e., PW1 - Shobha is the complainant. PW2 -
Smt.Siddamma is the house maid, PW3- Smt.Saraswathi, daughter of complainant. PW4 - Appaji, PW5 - Siddaraju, PW6 - Srinivasa are the mahazar witnesses. The appellants-accused were convicted by the learned Trial Judge for the offence punishable under Section 395 IPC and sentenced them to undergo rigorous imprisonment for a period of five years with fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of three months.
Section 395 of IPC reads as under:
"395. Punishment for dacoity:- Whoever commits dacoity shall be punished with (imprisonment for life), or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."16
11. Insofar as dacoity is concerned it is defined under Sections 379, 383, 385, 386, 387, 390, 391, 397 that in case robbery is committed by five or more persons, the offence would be dacoity. The offence dacoity has immediate source in robbery and derivative source in theft.
12. Thus, in all cases of robbery there will be extortion or theft. When the victim is put to fear and the accused attempts to cause death or hurt or wrongful restraint or wrongful confinement, the extortion in its further aggravated form becomes robbery.
13. Thus, dacoity in many cases would be a congregation of theft or extortion, robbery and depending upon the number of persons involved in committing robbery what emanates is dacoity. 17
14. Out of total number of witnesses examined on behalf of prosecution, the complainant is Shobha-PW- 1, Siddamma-PW2, Saraswathi-PW-3, daughter of PW1, PW4- Appaji- witness to Ex.P6, PW5-Siddaraju seizure mahazar witness to Ex.P6, PW-6 - Srinivasa mahazar witness to Ex.P4, PW7- Golaram-pawn broker-receiver, PW8-Dinesh Kumar-real estate and PW9-Sambashiva Shetty are the witnesses to Ex.P7, PW10-Siddegowda, witness to Ex.P2-Spot mahazar, PW11-Shanthilal- Receiver, PW12-Devendra, witness to Ex.P9 turns hostile, PW-13 -Siddaraju - witness to mahazar-Ex.P11 turns hostile, PW14- Suresh Chandra- receiver and mahazar witness to Ex.P4, PW15-Mujayid Ahamad -Taxi Driver, witness to Ex.P13, PW16- Tyagaraj R. witness to Ex.P14 turns hostile, PW17-A.Murugesh, witness to Ex.P14, PW18- K.Venkatesh, Police constable who has arrested Accused No.2, PW19- Beeralingegowda, 18 Tahsildar/Taluka Executive Magistrate who conducted test identification parade at Central prison Bengaluru, PW20-B.Jagannatha Rai is the Investigating officer.
15. The offence charged against the accused is under section 395 of IPC that provides for punishment to dacoity which is stated above. Thus, it is incumbent on the part of the prosecution to prove that there was participation of five or more persons conjointly and such joining together was either to attempt or to commit robbery or where the total number of persons present is five or more than five that is to commit dacoity. The persons present at the time of offence and those who aid such commission or attempt are said to have committed dacoity.
16. The persons who were said to be aggrieved and victims of the offence being the inmates as mentioned in the very first document or the complaint and by 19 complainant-Shobha who is examined as PW1. Further, Sarojamma who was in the room in the upstair also was present along with the complainant at the time of the incident. Reference of one Saraswathi daughter of complainant is also made as the witness and it is stated that the intruders chased Saraswathi and she has been examined as PW3. Thus, regarding the incident evidence of PW1 Shobha, PW2, Siddamma, PW3 Saraswathi assume significance.
17. Insofar as the evidence of PW1 is concerned, the complainant-Shobha tells that on the date of incident on 25.07.2007 at about 10.10 p.m. the complainant, her daughter Saraswathi and Sarojamma who stays in the upstairs were present in the house. PW1 reiterates the version stated in the complaint regarding entering of accused into the house. She tells that two persons entered into the house. Four persons followed before they could be asked as to who 20 are they, they threatened the complainant and pointed knife towards the complainant, her daughter was held by one person who was also holding knife, 3rd accused held her daughter Saraswathi by showing knife and ordered not to be over smart. They demanded cash and valuable items. In this connection, the total items said to have been lost by the complainant from their person and from beeru totaling Rs.90,000/- along with the cash of Rs.3,700/-. Her daughter PW3 was present along with Siddamma, PW2.
18. It is necessary to mention that though PW1 tells about the incident, where the accused persons barged into the house, threatened the complainant and her daughter and held them at knife point.
19. PW2 -Siddamma, mahazar witness turns hostile. However the said Sarojamma who was referred as 21 staying in the first floor is not examined though she was cited as CW3.
20. The next person who is examined as PW3 is Saraswathi, daughter of PW1. Her evidence is, on the date of incident on 25.07.2007 two persons came to their house at about 9 to 10 p.m. Later four persons came. At that time this witness, her mother and CW- 3 were present. Firstly, they snatched the mobile phone from the mother of this witness and this witness was sent inside the room and thereafter extorted cash and jewellery from her mother which were available in beeru. The intruders threatened them of life. She identifies accused No.1 as the one who was holding her and accused No.5 held CW3 (Sarojamma). Accused No.5 sent CW3 inside the kitchen. This witness identifies the knife-M.O-2 and says that it was held by accused No.1.
22
21. The first part of cross examination is regarding the habit of watching movie. It is also suggested to this witness that there was no incident of theft in their house nor theft had happened in the house.
22. Among the witnesses examined on behalf of the prosecution, PWs4 to 17 are Mahazar witnesses. Out of them PWs. 2, 12, 13, 15 and 16 are hostile. Insofar as evidence of PW2-Siddamma is concerned, she is hostile witness. In cross-examination by the Public Prosecutor she is stated to be a receiver of gold by accused No.5 and later pledging.
23. The mahazars conducted by the police in this case are Exs.P2, P4, P6, P7, P8, P9, P11, P13, P14, P30 and 31. Out of these, Ex.P4 is Seizure Mahazar in respect of recovery of stolen articles from accused No.5 Manja @ Auto Manja conducted on 05.11.2007. The articles are pair of hangings and one gold finger 23 ring. The recovery was from PW2- Siddamma, who took the police to Vikas Enterprises at Moodalapalya, Nagarabavi, where the said items were collected from the owner of said firm. In this regard, in respect of accused No.5, learned counsel for accused No.3 would submit that the discrepancy is apparent in the evidence of witnesses.
24. The mahazars for the recovery of valuables are Exs.P4, P6, P7, P8, P11 and P14. Exs.P9 and P13 are mahazars for recovery of knifes used for dacoity and Ex.P31 is seizure mahazar of auto which was used by the accused at the time of committing dacoity.
25. Sri V. Kodandaramegowda, learned counsel for accused No.3 would submit that the evidence itself is discriminative. There are contradictions between oral and documentary evidence, which are not reliable. Learned counsel would further submit that PW19- 24 Beeralingegowda is Tahasildar, who was said to have conducted test identification parade of the accused persons at Central Prison at Parappanagrahara on 27.11.2007. The notes of the proceedings are not maintained by PW19-Beeralingegowda. His evidence is related to identification of the five accused by the witnesses in the very first attempt. With regard to arrangement of mixing the 25 persons, the learned counsel would submit that, the further statements of the complainant and other witnesses were not recorded by the Investigating Officer. Therefore, he submitted that the test identification parade was totally in breach of the norms prescribed. He would further submit that the complainant who identified the five accused persons has not whispered the same in her oral evidence.
25
26. The submission of the learned counsel Smt. N. Padmavathi for the appellant - accused No.5 is that the identification of the accused is not corroborated with the identification parade which is not properly conducted as per the norms. It was submitted by both the counsel that none of the witnesses who were said to have been present at the place of test identification parade have supported the case of the prosecution. Except PWs.2, 12, 13 and 16, all other mahazar witnesses have not supported the prosecution. To constitute the offence of dacoity the presence of accused is not spoken in the oral evidence in a reliable manner. It was also submitted that the complaint is more in a specific form. MO.2 knife was recovered at the instance of accused No.2, however, he is acquitted and accused No.1 is convicted. The said witnesses do not speak in respect of the recovery of any material object from accused No.1. 26
27. It is submitted by Sri Chandrappa K.N., learned counsel for accused No.1 that the complainant has not specifically identified the accused persons.
28. Per contra, Sri K.P. Yonganna, learned HCGP would submit that the accused have committed dacoity in the house of the complainant on 25.07.2007 in the night at about 10.10 p.m., and looted valuable jewels and cash. He would further submit that the accused persons are identified by the complainant and PW3. Recovery of articles are established through the Mahazar witnesses in Ex.P4, P6, P7, P8, P11, P14. The Investigation Officer has deposed regarding the recovery of valuables through mahazars. It is necessary to mention that normally the complainant or the victim may not be knowing the identity of the accused persons in a criminal case of dacoity. It is observed that the evaluation of evidence 27 and arrival of finding depends on reliable version of evidence and corroboration of the particular version by another set of facts. It is necessary to mention, when one set of facts enable to believe the existence of another set of facts is probable, in which case first set of facts are called the evidence of the second set. However, there is no mandate that there must be other set of facts to corroborate the first. Insofar as the set of facts have the quality of proving their existence by themselves without depending on the existence or non-existence of the other set of facts. Therefore, he submits to dismiss the appeal.
29. The learned counsel for the accused No.1 - appellant in Crl.A.No.1099/2010 submits that no identification being established and no recovery is done. It is necessary to mention that the Court need not calculate or assess the number of instances of evidentiary value. In this connection, it is necessary 28 to mention that the Apex Court has held that when an incident or set of facts are proved by themselves without corroboration, it is up to the Court to adjudicate whether the facts are established by the witnesses to the satisfaction of the Court and that inspires the confidence of the Court, then the Court will not go in search of corroboration. The inspiration of confidence when found with certainty even by a single circumstance or material or evidence unless it is diluted by another set of facts and document, the related worth to hold good.
30. Learned counsel for the accused would submit that when proper identification and recovery mahazars being not proved, the accused persons cannot be convicted. He relied on the judgment of Apex Court in the case of TAHIR MOHAMMAD KAMAD GIRENDRA SINGH AND ANOTHER BADRI SINGH AND OTHERS Versus STATE OF M.P. reported in 1993 29 Supp (2) Supreme Court Cases 697, wherein at page No.702 it has been held as under.
"According to the prosecution in pursuance of the confessional statement of the second accused articles 21, 22, 23, 26, 27 and 30 were recovered. In pursuance of the statement made by accused 5 a watch was recovered. So far as the fifth accused is concerned, there is inconsistent findings between the trial court and the High Court with regard to the recovery of the writ- watch. So we give the benefit of doubt to the fifth accused. However, we hold that the second accused is liable to be punished under Section 412 of the Indian Penal Code as the evidence relating to the recovery of the articles is acceptable."
31. In the light of the placement of accused Nos.1 and 2, the defence being the witnesses were placed on a common platform, the difference being the witnesses to the mahazar Ex.P.30 have not supported 30 the prosecution in so far as accused No.1 is concerned. At the same time accused No.2 is concerned, these witnesses turned hostile in respect of Ex.P13. Despite accused No.1 is convicted and accused No.2 is acquitted.
32. The first contact of the accused and the victim is said to be the date of offence when the accused persons barged into the house of the complainant. CW3-Sarojamma is said to be residing on the upstairs of the house was also present in the house of the complainant at the time of offence. The persons who have given statement on oath and seen the accused persons are PW1 and PW3 namely complainant- Shobha and her daughter-Saraswathi. The value of the properties as on the date of offence is stated to be Rs.90,000/- and the articles recovered from the holders of the stolen goods are PW7-Golaram and 31 PW11-Shantilal. PW2-Siddamma and PW14- Sureshchandra are hostile to the prosecution case. The identification of the accused persons is by the victims, both female and incidentally mother and daughter. Normally, the delightful incidents or ghastly incidents are observed with deep concentration which are going to be remembered for long time.
33. In this case, PW1-Shobha and PW3-Saraswathi are the victims, they have spoken regarding their presence in the house and the entry of the accused inside the house and looting of the properties after threatening of them of life. The experience of any ghastly incident presumably remains in memory for a long time. At the same time the best witness is always the victim, who may also be expected to exaggerate the attack, but there are no circumstance to disbelieve the identification of the accused by the 32 victims. It is needless to say that the identification is not mandatory to the investigation agency and that a trial gets vitiated in the absence of test identification parade or lapses occurred during the test identification parade. No doubt when the test identification parade was conducted the norms are being followed, but the moot point that is to be considered is whether the case in hand warranted identification of the accused during identification parade. But the said question may not arise here for the very reason that in the test identification of the accused, the victim is stated to have identified the accused with reference to the incident on 25.07.2007.
34. Thus, when she recollects the identity of the accused, though the incident is on 25.07.2007 at complainant's house subsequent identification even during parade will not be an exclusive deciding factor. 33 The subsequent identification in another proceedings may not be indispensable in the light of the fact that having seen the accused persons on the date of incident this witness straight away speaks about their presence and identification in the Court. As such, even if the test identification parade was not conducted in this case, let alone the parade with irregularities, no material impact would be caused. The mahazar Exs.P4, P6, P7, P8, P11, P14 are in respect of the recovery of the articles/jewels. They are recovered from the custody of the accused persons under the mahazars stated above. In the context and circumstance of the case, hostility of the witnesses for recovery mahazars has to be visualized only with reference to their impact on the case. The valuables are recovered and they were reported to have been returned to the complainant and only photos were present before the Court. The existence 34 of jewels are not disputed. There is no rival claims for the said jewels. Accused persons have not claimed the ownership of the jewels, despite the hostility of the mahazar witnesses.
35. Learned counsel for the accused-appellants would submit that the stolen articles were not demonstrated before the Court at the time of evidence.
36. The appearance of the jewels and their existence of appearance were not disputed either by the accused or by the complainant and other witnesses. More over, the photos of the jewels are available. Thus, non-production of the said jewels before the Court is not fatal.
37. The evidence of the Investigation Officer is reliable which is being corroborated by the very 35 presence of the jewels so also regarding the offence. Thus, the evidence of PWs.1, 3 and 7, 11 and 14, 19 and 20 and the materials on record establish the commission of offence punishable under Section 395 of IPC. I find there is no lapse or irregularity being committed by the learned trial Judge in passing the impugned judgment and order. The prosecution successfully and beyond reasonable doubt has proved the commission of offence punishable under Section 395 of IPC by the appellants-accused on 25.07.2007 at complainant's house within the territorial jurisdiction of trial court. Thus, I find the judgment in S.C. Nos.504/2008 and 305/2009 is worth to be confirmed, consequently by rejecting the appeals. Hence, I proceed to pass the following:
ORDER Appeals insofar as conviction of the appellants in S.C.Nos.504/208 and 305/2009 for the offence 36 punishable under Section 395 of IPC are rejected. However, against the sentence of imprisonment is concerned, the same is modified for the sake of reduction.
Learned counsel for the appellant in Crl.A. No.1128/2010 would submit that the appellant - accused No.3 was already remanded to custody before the sentence was suspended.
Similarly, it is submitted that the appellant- accused No.1 in Crl.A.No.1099/2010 was remanded to custody for 11 months and the appellant-accused No.5 was remanded to custody for 7 months 9 days.
Considering the fact that these matters are of the year 2008 and also considering period of custody of the accused, I find it is just and proper to reduce the sentence by one year to maintain the sentence of rigorous imprisonment at four years. Appellants are 37 entitled for set off of the period in jail in their respective cases.
In Crl.A.No.1128/2010 learned counsel for the appellant would submit that Jail authorities very often have a responsibility with regard to custody period of the accused. In this regard, whenever the benefit of set off is given to an accused, the entire period has to be calculated and verified by the Jail Superintendent concerned for the purpose of remission of punishment and details shall be sent to the trial court.
Accordingly appeals are allowed in part.
Sd/-
JUDGE SBN/GH/tsn*/Sbs