Karnataka High Court
Sri Syed Asif vs State Of Karnataka on 11 October, 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MRS.JUSTICE M.G. UMA
CRIMINAL REVISION PETITION NO.1171/2022
C/W
CRIMINAL REVISION PETITION NO.918/2021
CRIMINAL REVISION PETITION NO.1049/2021
CRIMINAL REVISION PETITION NO.1294/2022
IN CRL.RP.NO.1171/2022
BETWEEN:
SRI. VENKATESHA NAIK
S/O SHUKRANAIK
AGED ABOUT 27 YEARS
R/AT SIDDAPURA THANDA
BHADRAVATHI TALUK - 577 245
... PETITIONER
(BY SRI: SATEESH CHANDRA K.V. ADVOCATE)
AND:
STATE OF KARNATAKA
BY RURAL POLICE
BHADRAVATHI - 577 245.
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 09.04.2021 PASSED
IN CRL.A.NO.5024/2020 ON THE FILE OF THE IV ADDL. DISTRICT
AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT BHADRAVATHI,
CONFIRMING THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 30.11.2020 PASSED IN C.C.NO.94/2016 ON THE
FILE OF THE ADDL. SENIOR CIVIL JUDGE AND J.M.F.C.,
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BHADRAVATHI IN SO FAR AS THE PETITIONER AND
CONSEQUENTLY ALLOW THE CRL.A.NO.5024/2020 AS PRAYED
FOR.
IN CRL.RP.NO.918/2021
BETWEEN:
1. SRI SYED ASIF
S/O SYED SANAULLA
AGED ABOUT 23 YEARS
WELDING WORK
R/AT SIDDAPUR
THANDA HOSUR
BHADRAVATHI
TALUK - 577 301
2. SRI RAMA NAIK
S/O KEMYA NAIK
AGED ABOUT 31 YEARS
PLUMBER WORK
R/AT KALLAHALLI
SIRIYUR POST
BHADRAVATHI
TALUK - 577 301.
... PETITIONERS
(BY SRI: SACHIN .B.S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY RURAL POLICE
BHADRAVATHI - 577 301
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 09.04.2021 IN
CRL.A.NO.5023/2020 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT
BHADRAVATHI, CONFIRMING THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 30.11.2020 PASSED IN
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C.C.NO.94/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, BHADRAVATHI IN SO FAR AS THE PETITIONER
AND CONSEQUENTLY ALLOW THE CRL.A.NO.5023/2020 AS PRAYED
FOR.
IN CRL.RP.NO.1049/2021
BETWEEN:
SRI YOGESHA NAIK
S/O SEVANAIK
AGED ABOUT 25 YEARS
R/AT SIDDAPURA THANDA
BHADRAVATHI TALUK - 577 301
... PETITIONER
(BY SRI: SACHIN .B.S., ADVOCATE)
AND:
STATE OF KARNATAKA
BY RURAL POLICE
BHADRAVATHI - 577 301
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT DATED 09.04.2021 IN
CRL.A.NO.5023/2020 ON THE FILE OF THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA SITTING AT
BHADRAVATHI, CONFIRMING THE JUDGMENT OF CONVICTION AND
ORDER OF SENTENCE DATED 30.11.2020 PASSED IN
C.C.NO.94/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, BHADRAVATHI IN SO FAR AS THE PETITIONER
AND CONSEQUENTLY ALLOW THE CRL.A.NO.5023/2020 AS PRAYED
FOR.
IN CRL.RP.NO.1294/2022
BETWEEN:
ASADULLA
S/O. SHAFIULLA
AGED ABOUT 27 YEARS
OCC: CARPENTER
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R/OF SIDDAPUR, HOSUR
BHADRAVATHI - 577 501
... PETITIONER
(BY SRI: GANESH N.I., ADVOCATE)
AND:
STATE OF KARNATAKA
THROUGH PSI
RURAL POLICE STATION
BHADRAVATHI
REP. BY STATE
PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU - 560 001
... RESPONDENT
(BY SRI: CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING TO
SET ASIDE THE ORDER OF CONVICTION DATED 30.11.2020
PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND J.M.F.C.,
BHADRAVATHI IN C.C.NO.94/2016 AND THE JUDGMENT AND
ORDER DATED 09.04.2021 PASSED BY THE IV ADDITIONAL
DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT
BHADRAVATHI IN CRL.A.NO.5024/2020 IN SO FAR AS RELATES TO
THE PETITIONER AND ACQUIT THE PETITIONER FOR THE OFFENCE
PUNISHABLE UNDER SECTION 392 OF IPC.
THESE CRIMINAL REVISION PETITIONS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT ON 21.09.2023 COMING
ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT
PASSED THE FOLLOWING:
ORDER
The revision petitioner in Criminal Revision Petition No.1171 of 2022 being accused No.1; the revision petitioner in Criminal Revision Petition No.1049 of 2021 being accused No.2; the revision petitioners in Criminal Revision Petition No.918 of 2021 being accused Nos.3 and 5; and the revision 5 petitioner in Criminal Revision Petition No.1294 of 2022 being accused No.4 in CC No.94 of 2016 on the file of the learned Additional Senior Civil Judge and JMFC at Bhadravathi (hereinafter referred to as 'the Trial Court' for brevity), are before this Court impugning the judgment of conviction and order of sentence dated 30.11.2020 convicting accused Nos.1 to 4 for the offence punishable under Section 392 of IPC and sentencing them to undergo imprisonment for a period of two years and to pay fine of Rs.5,000/- each and in default, to undergo simple imprisonment for a period of three months; and convicting accused No.5 for the offence punishable under Section 414 of IPC and sentencing to undergo simple imprisonment for a period of six months and to pay fine of Rs.2,000/- and in default to undergo simple imprisonment for a period of 15 days, which was confirmed vide judgment dated 09.04.2021 passed in Criminal Appeal Nos.5023 and 5024 of 2020 on the file of the learned IV Additional District and Sessions Judge, Shivamogga, sitting at Bhadravathi (hereinafter referred to as 'the First Appellate Court' for brevity).
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2. Brief facts of the case are that, the Investigating Officer in Crime No.280 of 2014 of Bhadravathi Rural Police Station laid the final report against accused Nos.1 to 5 for the offence punishable under Sections 392 of 414 of IPC alleging that accused Nos.1 to 4 committed robbery in the house of PW1 on 04.11.2014 at 9.45 p.m. by proceeding on the motor cycle bearing registration No.KA-14-S-4524, switched off the lights and accused Nos.1 and 2 have threatened the complainant and PW1 by showing a knife and criminally intimidated to cause hurt. Accused Nos.2 and 3 tied their limbs with rope and also gagged the mouth of CW1 with a towel and robbed the gold ornaments worth Rs.98,200/- and two watches. It is stated that accused Nos.1 and 2 have pledged the ear chain, ear studs and ring with Mahaveera Pawn broker at Bhadravthi, while accused No.5 pledged the gold rope chain with Muthoot Finance, Bhadravathi. The incriminating materials were seized at the instance of the accused. Therefore, it is stated that they have committed the offences as stated above.
3. Learned Magistrate took cognizance of the offences against the accused. The accused have pleaded not 7 guilty for the charges leveled against them and they claim to be tried. The prosecution examined PWs.1 to 17, got marked Exs.P1 to P29 and identified MOs.1 to 5 in support of its contention. The accused have denied all the incriminating materials available on record, but have not chosen to lead any evidence. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Therefore, convicted and sentenced the accused as stated above.
4. Being aggrieved by the same, accused Nos.2, 3 and 5 have preferred Criminal Appeal No.5023 of 2020 and accused Nos.1 and 4 have preferred Criminal Appeal No.5024 of 2020. The First Appellate Court on re-appreciation of the materials on record, dismissed the appeals by confirming the impugned judgment of conviction and order of sentence passed by the Trial Court.
5. Being aggrieved by the same, the accused are before this Court by preferring four separate Criminal Revision Petitions.
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6. Heard Sriyuths K V Sateesh Chandra, B S Sachin and N I Ganesh, learned counsel for the revision petitioners and Sri Channappa Erappa, learned High Court Government Pleader for the respondent - State. Perused the materials including the Trial Court records.
7. Learned counsel for the revision petitioners contended that the complainant who was said to be the eye witness died during investigation and he could not be examined before the Trial Court. PW1 is the wife of complainant and she is said to be the eye witness to the incident, but she has not identified the accused, as they were covered their faces with kerchief. PWs.2 to 5 are the witnesses to the spot mahazar and recovery mahazar and none of these witnesses have supported the case of prosecution. PW8 was cited as eye witness, but he has not supported the case of prosecution. The evidence of PWs.7 and 9 is not helpful for the prosecution to establish the guilt of the accused. Other witnesses are formal and official witnesses. The Investigating Officer has not conducted test identification parade to enable the eye witnesses to identify the accused. Only on the basis of disputed recovery of 9 material objects, the accused were convicted, which is bad under law. The recovery of incriminating materials are not proved in accordance with law. Under such circumstances, the impugned judgment of conviction and order of sentence passed by the Trial Court and confirmed by the First Appellate Court is liable to be set aside. Accordingly, they prays for allowing the revision petitions.
8. Per contra, learned High Court Government Pleader opposing the revision petitions submitted that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The Trial Court and the First Appellate Court have rightly convicted the accused. Hence, he prays for dismissal of the revision petitions.
9. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is:
"Whether the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the First Appellate Court suffers from any infirmities and calls for interference by this Court?"
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My answer to the above point is in the 'Affirmative' for the following:
REASONS
10. It is the specific contention of the prosecution that accused Nos.1 to 4 have committed the offence punishable under Section 392 of IPC, while accused No.5 committed the offence punishable under Section 414 of IPC and accordingly, they were convicted and sentenced by the Trial Court, which was confirmed by the First Appellate Court.
11. Ex.P23 is the first information lodged by Abdul Rehman on 05.11.2014 at 10.00 a.m. against unknown persons stating that on 04.11.2014 at 9.30 p.m., he was watching TV in his house. At about 9.45 p.m. his wife observed that the light in front of the house was switched off. Therefore, he went outside by opening the door. A boy suddenly pushed him aside and rushed inside the house. Two other boys by holding the knife threatened the wife of the complainant and their limbs were tied with a rope and his mouth was also tied with a piece of cloth. The informant stated that his wife was forced to open the godrej at the instance of the miscreants and they have robbed two gold 11 rings, a chain and cash of Rs.9,000/-. They have also robbed the chain, ear studs with ear chain worn by the wife of the informant. They were talking in Urdu and were wearing t-shirt and jeans pant. They concealed their faces with a kerchief. One of them had sustained bleeding injuries to his face. All of them were boys aged 18 to 20 years. Therefore, he requested the police to register the case and to investigate on the same. Accordingly, FIR as per Ex.P24 was registered and the investigation was undertaken. It is stated that the incriminating materials were recovered at the instance of the accused. Considering the same, the Trial Court and the First Appellate Court recorded the concurrent findings that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt.
12. PW1 - Jaibunnissa is the wife of the informant who categorically states that she could not identify any of the accused on the date of incident. She stated that the police have given her chain, a ring, a pair of ear studs and ear chain. All of them together identified as MO1. It is pertinent to note that in the first information, there is reference to two finger rings weighing 5 and 2 grams each, the gold chain weighing 6 12 grams and cash of Rs.9,000/-. Apart from that, it is stated that the miscreants have snatched a gold ear chain and ear studs weighing 30 grams.
13. PW2 - Devendra is the spot mahazar witness to Ex.P1. Witness stated that the police have seized a rope, a glouse and other materials from the spot i.e., from the house of informant. Witness pleaded his ignorance as to which are the materials seized under the mahazars. However, he identified his signatures found on Exs.P2 to 5. Witness was treated as hostile and the learned Prosecutor cross examined the witness.
14. PW3 - Cheluvaraj is the mahazar witness to the spot mahazar - Ex.P1. Even though, he identified his signature found on mahazar, he has not supported the case of prosecution. Witness was treated hostile and cross examined by the learned Prosecutor. Similarly, PW4 - Nagesh is the mahazar witness and he has not supported the case of prosecution. PW5 - Thippesh is the mahazar witness to Exs.P2 and 7. This witness has also not supported the case of prosecution. Witness states that he was taken to Muthoot Finance by the police and a document was drafted there. He 13 identified the signatures on Exs.P3, 8, 12, 14. He identified the photos of accused Nos.1 and 4. He has not identified the knife identified as MO5 with certainty. During cross examination, witness stated that the mahazars were written well in advance and he does not know its contents. He signed the mahazars at the instance of police. However, he pleaded ignorance as to the places in which he signed the documents. He also pleaded his ignorance as to who produced the material objects.
15. PW6 - Pandu is the witness to Ex.P1 - the spot mahazar and also identified Exs.P17 and 18. Nothing has been elicited from this witness to contend that he noticed recovery of any of these material objects seen in the photos from any of the accused. During cross examination, witness pleaded ignorance regarding the contents of mahazar. He also pleaded ignorance as to who gave the information to write the mahazars. However, he denied the suggestion that the accused are not concerned with the material objects.
16. PW7 - Ashraf Rehaman is the son of PW1. He is a hear say witness as he states that he learnt about the incident 14 from his father and mother. Witness also states that the police informed him about recovery of gold ornaments seen in Ex.P19. During cross examination, witness admits that he does not know anything about the incidence, nor about recovery of the gold ornaments. However, denied the suggestion that accused are not related to the offence in question and none of the material objects were recovered at their instance.
17. PW8 - Swamy is the witness who states that there was robbery in the house of PW1, but pleaded his ignorance regarding the materials that were robbed. Witness stated that after hearing the cry from the house of the informant, he informed the fact to PW7. About 15 days thereafter, he came to know that two persons from Hosur Taanda have committed the robbery. This witness was treated hostile. Learned Prosecutor cross examined this witness at length, but he never supported the case of prosecution. During cross examination by the learned counsel for the accused, witness admitted that he is seeing the accused for the first time before the Court.
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18. PW9 - Sanjay is the owner of Mahaveera Pawn Broker shop and identified accused No.1 and stated that he had pledged few gold items in his shop during 2014. Ex.P3 was written in his shop and Ex.P7 is the pawn ticket. Witness identified his signature in Exs.P3 and 7. Witness stated that Ex.P7 contains the signature of accused No.1. He also identified accused No.1 in Ex.P8, which was taken at the time of drawing the mahazar. Witness stated that generally he enters the details of pledging of ornaments in a ledger and the same was not produced before the Court. However, he states that the said ledger will be produced before DR at frequent intervals. He denied the suggestion that he concocted the documents at the instance of police.
19. PW10 - Ravi Naik is the brother of accused No.2. He states that he is the owner of motor cycle seen in Ex.P20. It was taken by accused No.2. He pleaded his ignorance that accused No.2 used his motor cycle in the commission of offence. Witness admitted that he got released the motor cycle by executing the indemnity bond. During cross examination, witness stated that on the basis of say of the police, he is stating that accused No.2 has taken the motor 16 cycle. He pleaded his ignorance as to from whom the motor cycle was seized.
20. PW11 - Venkataiah is the Police Head Constable who was the owner of splendor motor cycle bearing registration No.KA-14-S-4524. Witness stated that he had sold the same in favour of PW10. He is only an circumstantial witness to prove the ownership of motor cycle in question.
21. PW12 - M N Rajendra Naik is the Sub Inspector of Police who found accused Nos.3 and 4 and produced before the Investigating Officer. PW13 - C N Vasudeva is the Head Constable who deposed before the Court on 18.03.2015. He states that he along with CPI were on duty and gave signal to stop the Hero Honda motor cycle. The rider had not stopped the vehicle and they chased the motor cycle. Accused Nos.1 and 2 were riding the motor cycle and they admitted that they have used the motor cycle in committing the robbery. Strangely, nothing has been elicited from this witness regarding registration number of the motor cycle. PW14 - Jayaraj is the Sub Inspector of Police who supports the evidence of PW13 regarding seizing of motor cycle from 17 accused Nos.1 and 2. This witness also does not refer to the registration number of motor cycle. Admittedly, no mahazar was drawn for seizing the motor cycle from accused Nos.1 and 2.
22. PW15 - M Nagaraj is the Sub Inspector of Police who apprehended accused Nos.3 and 4 and (5) produced before the Investigating Officer. PW16 - Ranganatha is the Head Constable who received the first information as per Ex.P23 and registered FIR as per Ex.P24.
23. PW17 - R Ramesh is the Investigating Officer. This witness states about the investigation undertaken by him by visiting the spot and drawing the spot mahazar as per Ex.P1, seizing the material objects as seen in Exs.P2 to 4 and the rough sketch as per Ex.P25 was also drawn. Witness states that PWs.13 and 14 have produced accused Nos.1 and 2 before him along with Hero Honda motor cycle. They have given their voluntary statement and offered to lead the police to produce the gold ornaments pledged with Mahaveera Pawn shop and Muthoot Finance. They also stated that they can produce the knife used in the commission of offence. The said 18 portion of voluntary statement is produced as per Exs.P26 and
27. He seized the pawn ticket which is as per Ex.P7. He identified ExP2 - the mahazar. Witness stated that accused Nos.3 to 5 were produced before him and their voluntary statement was also recorded as per Exs.P28 and 29, drawn the mahazar as per Ex.P12.
24. It is pertinent to note that even the Investigating Officer does not say specifically that it was accused Nos.1 and 2 or accused Nos.3 to 5 have led him either to Mahaveer Pawn Shop or to Muthoot Finance to enable him to recover the gold ornaments. The evidence of these witnesses in general and the evidence of PWs.9 and 17, in particular, are very bald.
25. PW17 also states about drawing of mahazar as per Exs.P13 and 14 and he himself identifies the signatures of accused No.5 in Ex.P14. Witness refers to securing the mahazar witnesses and proceeding to pawn broker shop and Muthoot Finance to recover the gold ornaments. Similar is the evidence for recovering the knife used in the commission of offence and other material objects MOs.2 to 5. Witness 19 specifically states that he could not conduct test identification parade to enable the complainant and PW1 to identify the accused.
26. Even though, the Investigating Officer - PW17 states that the accused have confessed before him regarding the commission of offence, such information is not admissible in evidence, in view of the bar under Section 26 of the Indian Evidence Act. Under Section 27 of the Indian Evidence Act, only that portion of the information received from the accused which led to discovery is considered as a relevant fact that could be proved by the prosecution. To prove discovery under Section 27 of the Indian Evidence Act, there must be specific evidence to the effect that the accused has given the statement voluntarily offering to lead the Investigating Officer and the mahazar witnesses to recover the incriminating materials. Further, there must be evidence to the effect that the accused has led the Investigating Officer and the mahazar witnesses and produced the incriminating materials, which were recovered under the mahazar in the presence of witnesses. Such evidence is conspicuously missing in the present case. Even the evidence of Investigating Officer is in 20 a haphazard manner and cannot be a basis for convicting the accused.
27. Admittedly, the accused were not familiar to the informant or to PW1. No test identification parade was conducted by the Investigating Officer to enable PW1 - eye witness to identify any of the accused. The prosecution therefore relied on recovery of the incriminating materials at the instance of the accused. But even the recovery is not proved in accordance with law. Under such circumstances, it cannot be said that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. The prosecution has made half hearted attempt to prove the guilt of the accused. The evidence on record are not sufficient to hold that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt. Therefore, I am of the opinion that the accused are entitled for acquittal.
28. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the First Appellate Court. Both the Courts have committed grave error in convicting the accused 21 on the basis of shabby evidence. Therefore, I am of the opinion that the impugned judgment of conviction and order of sentence passed by the Trial Court, which was confirmed by the First Appellate Court are liable to be set aside. Accordingly, I answer to the above point in the Affirmative and proceed to pass the following:
ORDER
(i) The Criminal Revision Petitions are allowed.
(ii) The judgment of conviction and order of sentence dated 30.11.2020 passed in CC No.94 of 2016 on the file of the learned Additional Senior Civil Judge and JMFC at Bhadravathi, which was confirmed vide judgment dated 09.04.2021 passed in Criminal Appeal Nos.5023 and 5024 of 2020 on the file of the learned IV Additional District and Sessions Judge, Shivamogga, sitting at Bhadravathi, are hereby set aside.
(iii) The accused are acquitted for the charges leveled against them for the offences punishable under Sections 392 and 414 of IPC.
(iv) The bail bonds of the accused and that of their sureties shall stand discharged.
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Registry is directed to send back the Trial Court records along with copy of this order.
Sd/-
JUDGE *bgn/-