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 KARNATAKA
DHARWAD BEN CH
DATED THIS THE 17 t h DAY OF J ULY 2019
BEFORE
THE HON'BLE MR. JUSTICE BELLUNK E A .S.
CRIMINAL APPE AL No.100273 OF 2018
BETWEEN:
DAVOOD S/ O NOORHAMMAD BAIRIKOPPA
AGE.20 YEARS , OCC. AUTO DRIVER
R/O S ONIYA GAND HI NAGAR
BEEDI PLOT, HUBBALLI
...APPELLANT
(BY SRI R.H.ANGA DI, ADV OCATE)
AND:
THE STATE OF KARNATAKA
(KASABAPET POLI CE STATION HUBBALLI)
REPRES ENTED BY STATE PUBLIC PROSECUTOR
HIGH COURT OF K ARNATAKA
DHARWAD BEN CH, DAHRWAD
...RESPONDENT
(BY SRI. RAJA RA GHAVENDRA NAIK , HCGP)
THIS CRIMINAL APPEA L IS FILED UNDER
SECTION 374 (2) OF CR.P.C., S EEKING TO ALLOW
APPEAL AND CA LL FOR RECORDS A ND TO SET ASIDE
THE IMPUGNED JUDGMENT AND ORDER OF
CONVICTION PAS SED IN S.C.NO.23/ 2018, DATED
30.08.2018 ORD ER DATED ON 5.09.2018 BY THE V
ADDL. DISTRICT AND SESSIONS JUDGE, DHARWAD ,
SITTING AT HUBBALLI , CONSEQUENTLY ACQUIT THE
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APPELLANT/ACCUS ED NO.2 IN KASABAPET POLICE
STATION CRIME NO.17/ 2016 FOR THE OFFENCES
PUNISHABLE UNDER SECTI ON 454, 380 OF IPC.
THIS CRL.A COMI NG ON FOR HEARI NG THIS DAY,
THE COURT DELIV ERED THE F OLLOW ING:
JUDGMENT
This appeal is filed by accused No.2 against the judgment of conviction and sentence dated 30.08.2018 passed by the V Additional District and Sessions Judge, Dharwad sitting at Hubballi, in S.C.No.23 of 2018, wherein the appellant-accused No.2 along with accused Nos.1, 4 and 5 are convicted for the offences punishable under Sections 454 and 380 of IPC and accused Nos.5 and 6 are convicted for the offences punishable under Sections 411, 454 and 380 of IPC.
2. Brief facts for the purpose of this appeal are as under:
On 17.02.2016 at about 10.00 am, complainant's daughter fell from the cot and her 3 femur was fractured. Hence, the complainant along with his wife took her to KIMS. Thereafter, she was shifted to Shakuntala Hospital. During this period house was locked. On 19.02.2016 at 10.00 am when they came to the house, they noticed that the lock was broke open and on entering the house, they found the household articles scattered and almeria and lockers were open. Two gold bangles weighing 20 grams, one necklace weighing 13 grams 2 silver ankle chain weighing 350 grams and cash of Rs.12,000/- were stolen. Therefore, he filed a complaint before the jurisdictional police. The case came to be registered by the Kasabapet Police in Crime No.17/2016. in Investigating officer visited the spot and recorded the statement of neighbouring persons. On 28.08.2016, on suspicion, accused No.1 was apprehended and voluntary statement of accused No.1 was recorded. On the basis of said statement, material object which were used for 4 commission of the offence was seized in the presence of CWs.5 and 6 under separate panchanama. Further, on the basis of the statement of accused No.1 other accused i.e accused Nos.2 to 4 were arrested and their voluntary statements were also recorded. On the basis of the information given by accused Nos.1 to 4, approached accused Nos.5 and 6 who came to know that that stolen articles from the house of the complainant were got converted by accused Nos.5 and 6 and same were pledged with CW.21. The investigating officer along with CWs.6 and 7 and accused Nos.5 and 6 approached CW21, who on identifying the accused returned the jewelry pledged by them. Panchanama was drawn in the presence of the witnesses. After recording the statement of the material witnessed and also the staff of the investigating officer, charge sheet came to be filed against the accused for the 5 offences punishable under Sections 457, 413 and 380 of the Indian Penal Code.
3. The learned Magistrate took cognizance of the offences alleged and registered criminal case against the accused. As offence punishable under Section 413 was triable by Court of Sessions, the learned Magistrate, after securing the presence of the accused committed the case to the Sessions Court for trial. It is also stated that accused No.2 was secured under body warrant. After committal, Sessions Case 23 of 2018 was registered. After hearing both sides and based on the material and documentary evidence on record, the learned Sessions Judge found accused Nos.1, 2 and 4 guilty for the offence punishable under Sections 454 and 380 of IPC and accused Nos.5 and 6 were found guilty for the offence punishable under Sections 411, 454 and 380 of IPC and were accordingly convicted and sentenced as under: 6
"Accused Nos.1, 2 and 4 shall undergo simple imprisonment for a period of 3 (three) years 6 (six) months and shall pay fine of Rs.1,500(One thousand five hundred) in default shall undergo simple imprisonment for 2(two) months each for the offence punishable under Section 454 of IPC and shall undergo imprisonment of 2(two) years and shall pay fine of Rs.1000/-(one thousand) in default shall undergo simple imprisonment for 2(two) months each for the offence punishable under Section 380 of IPC.
Accused Nos.5 and 6 shall pay fine of Rs.3,000 (three thousand) 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 6 (six) months and shall undergo simple imprisonment for a period f 3 (three) years 6 (six) months and shall pay the fine of Rs.1500/-(one thousand five hundred), in default shall undergo simple imprisonment of 2 (two) months each for the abetment of offence punishable under 7 section 454 of IPC and shall undergo simple imprisonment for 2 years and shall pay fine of Rs.1,000(one thousand) in default shall undergo simple imprisonment for 2 months each for abetment punishable under Section 380 of IPC."
4. The present appeal is only by accused No.2, as the other accused have preferred appeals separately and the same are not connected with this case.
5. It is submitted by the learned Government Pleader and also by the defence counsel that in all there are 5 different criminal cases bearing different crime numbers registered in different police stations/and those accused persons have been prosecuted and convicted in their respective cases. Therefore, counsel for the appellant submitted that role of accused No.2 may be examined independently insofar as the appeals preferred by him and while disposing of these 8 appeals by accused No.2, role of other accused persons, who are also appellants in other cases can also, may be examined separately, as accused No.2 is said to have been prosecuted in all these cases only on the voluntary statement of accused No.1.
6. Sri R.H.Angadi, learned counsel for the appellant-accused No.2 submitted that none of the witnesses have identified accused No.2 for having involved in the incident in any manner. There is no evidence against accused No.2 for having committed any of the offences alleged. No material objects are recovered from possession of accused No.2 and no recovery is made at the instance of the appellant- accused No.2. He has been implicated only on the statement given by accused No.1. Therefore, learned counsel submitted that the voluntary statement of accused No.1 would not bind accused No.2. The overt act 9 alleged to have been made against accused No.2 cannot be believed as none of the witnesses have spoken to about the overt act against accused No.2 and moreover none of the witnesses have identified accused No.2. Therefore, learned counsel for the appellants submitted that accused No.2 has not at all committed any offence. The prosecution has failed to prove the guilt against the appellant beyond reasonable doubt. Hence, he prayed to allow the appeal and set aside the judgment of conviction and sentence passed against accused No.2.
7. Sri Raja Raghavendra Naik, learned Government Pleader submitted that accused Nos.1 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, has came to light. Based on that statement, the 10 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 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.
8. Having heard the learned counsel for the appellant and learned Government Pleader, the following points would arise for consideration:
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 17.02.2016 and 19.02.2016 had lurked into locked premises of the complainant and committed the theft of gold and silver 11 ornaments from the house of the complainant and had committed offences punishable under Sections 454 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?
9. It is important to note that except offence punishable under Section 413 of IPC, rest of the offices 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.
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10. 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, Old Hubli. 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 punishable under sections 457, 454 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.
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11. 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.
12. On perusal of the reasoning's stated by the learned Sessions Judge in his 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.
13. In the entire judgment the learned Sessions Judge has not discussed any oral evidence of any one of the witnessed 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 14 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.
14. Admittedly accused No.2 appellant herein has not been convicted for the offences punishable under Section 457 of IPC. Interestingly offence punishable under section 413 of IPC is not alleged against accused No.2.
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15. 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 lock of locker i.e., gold 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 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.
16. As regards seizure material object a golden chain and rod are concerned, admittedly 16 they were seized at the instance of accused No.1. He do not remember the names of accused persons. He only identified three persons. He has admitted that he do not know who gave chain and rod to the police he found them only in the hands of accused No.1. So far as accused No.2 is concerned no specific incriminating evidence has come from the mount of PW.3 and 6. The seizure mahazar is attested by PW.3 at Ex.P.9.
17. PWs.8 to 10 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 17 Investigating Officer in conducting the 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.9 & 10 is also that of similar to the PW.8.
18. Even according to evidence of PW.12, 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, he claims to have recovered the stolen articles. All the six accused persons were taken 18 together. The stolen articles were purchased by 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.
19. 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 is also said to have been jointly conducted which is quite contrary to the law. 19
20. The evidentiary value of statement given by an accused leading to a discovery of fact 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 20 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 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 21 an essential safeguard in criminal procedure. Its underlying rationale broadly co rrespo nds with two objectives- firstly, that o f ensuring 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 22 comprehensive account of this right. If invo luntary state ments were readily given weightage during trial, the investigators would 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. ...
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133. We have already re ferre d to the language of Sectio n 161 Cr.P.C which pro tects 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 24 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 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) 25 "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 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.
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21. The case against accused No.2 is based only on the information given by accused No.1. No 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 objects 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 accused no.2 has been implicated in this case without there being any sufficient evidence on record.
22. 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 27 persons would not prove the guilt of the accused beyond any reasonable doubt. The confession of a 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.
23. 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. 28
24. For all the aforesaid reasons, point No.1 is answered in the negative and point No.2 in the 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 30.08.2018 passed by the V Additional District and Sessions Judge, Dharwad, sitting at Hubballi in S.C.No.23/2018 against accused No.2 is hereby set aside.
3. Accused No.2 in S.C.No.23/2018 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 29 likesum to the satisfaction of the trial court. He should appear before the 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