Karnataka High Court
Sunny Soans @ Sannu S/O Tejpal Soans vs State Of Karnataka on 7 October, 2009
Author: Jawad Rahim
Bench: Jawad Rahim
. AND: A 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7" DAY OF OCTOBER 2oo9 BEFORE THE HON'BLE MRJUSTICE JAWAD A 0' A Crl. R.P. No.2s5,»f'2oo'9« -1' 7 BETWEEN: A A A A Sunny Soans @ Sannu, Aged 43 years, S/o Tejpal Soans, V R/a Jagannath Shetty Compound, .. Bailoor, _ A 76--BadagubettLi,n_ Udupi Taiuk. .. Petiti'oner. ( By Sri K.A.uAriga', "State of Ka rnyat,aI<a__, Rep},._byi*its*._ ~ State Public' P.ijoseCutor. Respondent.
(Sri Rajayysutmamanya Bhat, HCGP) 0 " = .C_rE. R.P. filed under Sections 397 and 401 Cr.P.C., by
-the"Advocate for the petitioner praying that this Hon' ble S '"C.o,u_r7t may be pieased to set aside the order dated 11.04.2007 of the CJM., Udupi, in C.C. No.9/2005 and the "*»-order passed by Fast Track Court at Uciupi, confirming the order of trial Court in CH. A. No.55/2007 dated 20.02.2009 and grant reliefs to the petitioner.
:1 M, ;§»\:Z K. 2 This Petition coming on for admission this dja°,?,f"-«tihegé Court made the following: _ V. .
Convicted accused is in ""re\l/'-isinon >"e.ga~ins.t judgement in Criminal A.No..S'5/2jQ0V7;r"dated 20.02.2009 on the file.~.o.f th.e""3Vti',¢g'e';,._'FastATraci; Court, Udupi, confirming the -- accused for the of the Indian Penal Code, _.trial Court in C.C. No .9/20.0'5"3d--a:te-dl i:'iiEE;:£"4'..'2u.C)V0V-7.'. '
2. VVV'"i".he'vpeti-tio'.ii"is...".'isted for admission. Heard and .~-.ggbeingisaitiisfied that~.a:.h.e'matter requires reconsideration, it ad'migtted=and"'by consent, taken up for final disposal. The substance of the prosecution allegation, on Vlbasis of which, the petitioner was arraigned, tried and 'mcongvicted for the offence punishable under Section 392 of IPC., is that one Ramesh Sheregar (PW.1) lodged report at the jurisdictional Police Station reporting that on 31.12.2004 at 8:30 p.m., having alighted from a Bus at /"
Ow 3 Udupi Bus Stand, he was to go to his house. He had to pass through fish market and as he was so walkinga',__'th_Ve petitioner--accused is said to have followed distance and thus, while he was negotiating--.au_:'c.ury.e, accused initiated conversation as if he...was"--,a'c:qu--ainted him. The accused offered tosgive hVi"rnri'ift when the complainant asked thle---v:ehvi':cle,ghe was not very clear. Then, thisr.go:35'g'iialiVn'a.n«tl,,Zcontinuedlfto walk, but, after short distance, tile Vrlefaoved the gold chain worn by fifths,/:¥n"dVelcamped with the chain. :'TAhe to his house, informed his sister-in-lawaiid tried to follow the accused in puljsuit. Howevve_r_,_he was advised to lodge report A"'__Vbe;fo-reg tile{jurisdictional Police, which he did on in Crime No.3/2005 was registered and 'the §tatio.n House Officer instructed his Inspector to round layup' tine suspects, one amongst them was the accused and it
-,l,'.--is7§stalted that on interrogation, he gave voluntary 'osiiatement vide Ex.P10 revealing the place, where he had pledged the stolen Gold chain and led the Police to its recovery. On this basis, final report was filed and the 5 that the complainant had not named the petitioner as the offender and had lodged report about the crime allegedly committed by an unknown person. On this urged that test identification parade of necessary to charge him for the ali:edgAed"offence 'the absence of the test identification pa'rad"e.. identi;ficatiohi--. if the victim during the trial wcaisnot sLiffi'ci--ent..*.' Wsuch identification of the a':ccusedd'""dV'u~:rii_1g"~..t.rial was not a substitute for the test iden'ti'.f_i'caVtici'niv"'p:ar_aide, which is essential in cases'of.'lthis=._natu~i'e.V
7. "'L_earned_acou'n:s'el4for the petitioner, Sri Ariga would:contend.'"tl'iEi_§_"ytJefore the appellate Judge, the A"_Vacc'u.sVed._:h.adL"~--emphatically denied that he had given v.olu"ntary"V'f.st.ate'ment -- Ex.P10 leading the Police to
-Vrecov"ery"'*V.of"'gold chain -- M.O. No.1. He submits that injatteistigngv"witness to the mahazar had turned hostile, which
--f[.~fa'c:t was also canvassed with sufficient assertion. Learned "--i.Viappellate Judge ignored both these grounds and has simply affirmed the conviction without deafing with the issues raised before him. He would further contend that / W K. 7
10. At the outset, it is to be noticed that there is no dispute that the victim has not identified the ac.cu.sed_, who is alleged to have robbed gold chain by name, but, the complainant hadmin his_-e'arli:es:t"'r:epoIta,if it before the Police, referred to the:=.tim_eigduuriingfW-h'ici§~.i,,.th'eVi_if accused entered into conversation'-,_ with complainant did not mention in:tl1e:_report'thVa_tfihe:Vwas not able to identify the hajdgifassertively stated that he will be in._a positionjitolv-ildgeggntlifyl'accused, if he sees him. a;aVse"'where offence has been person. The offence is alieged to hia_,vle.,bee_n'co"inrnitted by the person, whom the .-v.,'comVpl5aina'nt had"-Vo,c__c_a,sion to see, meet and converse. ":_MereI.y the name of the offender was not ment'ioned,.".'tne,:= case would not come into the category of [cases offoffelnce having been committed by an unknown V' lgpeirson. Therefore, we have to see under what Wlcirgcumstances, the test identification parade is necessary. only provision under which sanctity or legality is attached to conducting of test identification parade is traceable to Section 9 of the Indian Evidence Act, 1872 therefore, envisages facts necessary to Alé>t_pi'ain a fact in issue or relevant fact, or V V' _ which rebut an 'interference suggested by a fact i.3sueV'or relevant fact, or which establish the identity of A~_.A'a':iVy'thi:ng or person whose identity is relevant, or fix the T "time or piace at which any fact in issue or relevant fact 8 (hereinafter referred to as the 'Evidence Act')j"w_'hi:C'hA reads thus: = r.
"9. Facts necessary to explain or i,ntro:duc-e;~ , relevant facts : Facts neces'sary'tr>,_ e,><p_lain"~ introduce a fact in issue or:"1«re!eva'nt which support or r~:=_:_b'u._tV an-._ l'interif'e're:ni:,eVh suggested by a fact in iss'u'e:;or re|evan't'ifact,':'pr which establish ,t'i'i.e id.e'n'tity';oFe._anythilng"vor person whose idelntiity ii-s__ir.evieva,.nt,V:dor fix the time or place at:.whhi.c:h 'any 'issue or reievant2_"Vfa'ct.ir.'happened, 'whi.c!ii show the reiaticén "bjy..ny' such fa ct was transacted,._ar.e<rveievant insofar as they are necessary" for[--thAa._t purpose."
happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they , , .x:;//"
5?' 10 and subject matter of theft, then, that fact aiso becomes important and it wouid be a corroborative evidencevytoéthe other evidence that the prosecution would necessity to conduct test identification parad«e,."_i3, .the_"
only proof that is required to estabiish ,thefjvoffe'h,ce. of.'t.h'_eft,, or dacoity. The factum of pos.s'es_sion'of_'t'he sL:b'j%'eVct4_Vmatte.ri of theft is very important in view4i'o:f'the under law by the provisions of-.._.Secti-an ,V--1i'4..._off"the Evidence Act. Under this provision, the_Co:ur.t p're.su'rhe'V'"the existence of any fact..,whi.ch it:;th,ir'.=ks._i:iVi{eiy::tQ_,have happened, regard being had to'the"VC*§m4fizo'n'-course of naturai events, human conduct an'd.pub_|ic"an'd.private business, in their relation to the 'of theV"§'>€*»Fti_._C.H¥car case. Iilustration under Section t.he.EvVi'd.ence Act would show that the Court may presume Vthat. agzman, who is in possession of stolen goods ',soon.Kafte'vr,Vthe theft is either the thief or has received the V' "..jg.oAods_knowing them to be stolen, unless he can account fifsforghis possession.
10. In the instant case, the alieged offence was "committed on the night of 31.12.2004 and recovery has $3"
15
witnesses were shown photographs of the accused in the Poiice Station and the accused was not physica|IyVsho'w.n to them in the Police Station. Taking note of _ Delhi High Court observed that theggggprosecution.has notygiu placed on record firstly the photographnpufrpo-rte-db'to-s..__~be;v.i that of Mohinder (accused therein) any appiication seeking a test identification' ptaradevfgand as on the day, when the witness is s_aild"--toi..have identified the accused, the acCusedV.wa.s.j'coii.fAin.edx"inVA"'fi.'i:ar Jail and he was not takegnito;/t'h_e St:atio'nuat""Laxmi Nagar for identifica.tio'n'. Court held that there was total doubt"i..aboutV'identification of the accused and inthe V'absen__c_e. of test identification parade, he ":_Vciou'id,no.t_ i:.av.e""eeen convicted. In the present case, we do n.otfifa'ce.V'sugchjiya situation. In the instant case, the 'gcompiilffaignanth'has spoken to about the accused trying to '2..ji3.eAfr'ie.n'd 'him on the way and having spoken to him for ...f.'.-somefitime and offering him a lift in the Car and then Hihafving committed the robbery. Complainant had stated that he can identify the accused if he sees him. The compiainant has stated in his evidence before the trial Q?"
i 17 of the charge--sheet for the first time, the complainant had identified the accused in Court. In other words, investigation, the complainant was not identify the accused and it is only for the first,'_t_im_e'iiduririg"C trial, he was asked to identify. in p,rese"n,t not have such fact situation...' Cogurtfhad eilswqy noticed in the case at hand not given description of merely mentioned that the daco_ity by unknown persons. The Court h'oti'ced"~Vffivatw:in the complaint, complainan'-t' had'7rfnei:.ti4on,ed that the accused-appellant was seateds.,_hextVV"to'4Vhirncand he thrust his hand in his and ren9io'ved____Rs..1OO/~ note. The total absence of Vfganiy'-»suc..h_'description, which would have provided a yard s'.ticl'<'*l:o veva"l'uate'vthe identification of the present appellant pat afffflater date by the victim would render his later "..ji§dent~i.fication weak, but, that is not the only error. For the '«f.'-'reasons discussed above, I am satisfied that there is no error in appreciation of the evidence' by the trial Court as affirmed by the appellate Court. The finding recorded by both the Courts below need no interference and they are 19 accused ~ petitioner has been contending that he is not having good health after donating one of the kidney.._and therefore, in these circumstances, his detentionyvoulldrisisg his life itself. The prosecution has not 'thee plea of the accused in any mannergand-..therefore,--the---f_irs.t, f appellate Court has also recorded the"es,afne 'til am inclined to accept the conteir'i«t'ion.,V_ofV§t}*:*e.u:aeculsed that having donated one a cornfortable health position and in the Drison mail to:._ri.sk..,_4O:fvV'|:i.fe:;"""il-lowever, as the offenceilis years, I cannot find fault with the sentence' the trial Court and affirmed aby appellate "Cou__rt_,,.sentencing the accused to undergo V',rigorous._impr,iso.nment for six months, which is just and reaso-n'abvle«".'a--n',d"is on a lower side. But, as discussed, ',Vpunishme.nt.'is relatable not only to the offence, but, it ' ..jmust-...,also be keeping in view the circumstances under '«l«'-wxhiclhllthe accused is Placed and his health condition. E inclined, therefore, to hold that though in the ordinary course, sentence of six months would be very reasonable, sentence, but, in this particular case, considering the gckly 20 heaith condition of the accused, I feel in the intejr'est--._iof_ justice, the same needs to be scaled down accordingly, the order regard,i.ng.._,senteincefg modification.
The petition, therefore,_fa_iis so--frér as .findingAo'f it the guilt of the petitioner is iconcernedf'-._ 'So--V-ifarxias the sentence imposed uporifthe_"eccu'sieVd,.ii'is concerned, the same is scaled down to Q t'w.o"riju:-o.ri~~ths. Accused would be entiti;ed"i~§,(§:.'set;V.0ffi,f0r themiifi-eri.o_dfAof imprisonment alreadyV'-undergonef-~.oy.':h'i--m";*-- is directed to surrender before the',§_4qrisdVicti'o'n_aii:Fo4!ice within a period of four «weekato nundergo"--*:.h,e___i2alance sentence. Sdffgf Iudgfi '' I