Karnataka High Court
Ramesh K vs The State Of Karnataka on 10 March, 2020
Equivalent citations: AIRONLINE 2020 KAR 2705
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH 2020
BEFORE
THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY
CRIMINAL APPEAL No.33 OF 2015
C/w. CRIMINAL APPEAL No.1152 OF 2014
AND CRIMINAL APPEAL No.1159 OF 2014
In Criminal Appeal No.33/2015 :
BETWEEN:
1. Ramesh K.
S/o Krishna Reddy,
Aged about 24 years,
Agriculturist, R/o.Kotapalli,
Bagepalli Taluk,
Chikkaballapur Dist-562101.
2. Srinath,
S/o Subbareddy,
Aged about 22 years,
R/o.Kotapalli, Bagepalli Taluk,
Chikkaballapur Dist-562101.
3. Shankar
S/o Subbareddy,
Aged about 20 years,
R/o.Kotapalli, Bagepalli Taluk,
Chikkaballapur Dist-562101. .. Appellants
( By Sri Allah Bakash M., Advocate
For Smt.Kavitha H.C., Advocate )
2 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
AND:
The State of Karnataka,
Chinthamani Town Police,
Chintamani,
Represented by SPP,
High Court of Karnataka,
Bengaluru-01. .. Respondent
( By Sri Vinayaka V.S., HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the order dated
6.12.2014/08.12.2014, passed by the Ad-hoc District and
Sessions Judge, Fast Track Court-II, Chinthamani, in
S.C.No.116/2012 - convicting the appellants/accused Nos.1
to 3 for the offence punishable under Section 395 of IPC and
the appellants/accused are sentenced to undergo rigorous
imprisonment for four years for the offence punishable under
Section 395 of IPC and sentenced to pay fine of `10,000/-
each and in default of payment of fine, the accused persons
are sentenced to undergo simple imprisonment for three
months.
In Criminal Appeal No.1152/2014 :
BETWEEN:
1. Sri Chandrashekar @ Boss,
S/o Sathyanarayanareddy,
Aged about 32 years,
Wiring Work,
Bangalore 3M Company
R/at Dodda Thogur,
Electronics City,
Bangalore-560 098.
2. Sri Chandrakumar,
S/o Lakshminarasappa,
3 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
Aged about 32 years,
Cement Work,
Kotampalli Village, Bagepalli Taluk,
Chikkaballapur Dist-563125. .. Appellants
( By Sri G.M.Srinivasa Reddy, Advocate )
AND:
State by
Chinthamani Town Police Station
Through State Public Prosecutor,
High Court Building,
Bangalore-560 001. .. Respondent
( By Sri Vinayaka V.S., HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the order dated 6/8.12.2014,
passed by the Ad-hoc District and Sessions Judge, Fast Track
Court-II, Chinthamani, in S.C.No.116/2012 - convicting the
appellants/accused for the offence punishable under Section
395 of IPC and the appellants/accused are sentenced to
undergo rigorous imprisonment for four years for the offence
punishable under Section 395 of IPC and sentenced to pay
fine of `10,000/- each and in default of payment of fine, the
accused persons are sentenced to undergo simple
imprisonment for three months.
In Criminal Appeal No.1159/2014 :
BETWEEN:
K.Arogya Raj,
S/o.Kanikaraj,
Aged 36 years, R/o.No.113/2,
Near Doorashanipalya,
Church, Bannerghatta Road,
4 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
Bangalore-560 076. .. Appellant
( By Sri B.Anand, Advocate )
AND:
State of Karnataka,
By Chintamani Town Police,
Chikkaballapur Dist.
Rep. by State Public Prosecutor,
High Court of Karnataka,
Bangalore-560 001. .. Respondent
( By Sri Vinayaka V.S., HCGP)
This Criminal Appeal is filed under Section 374(2) of
Cr.P.C. praying to set aside the order dated 6/8.12.2014,
passed by the Ad-hoc District and Sessions Judge, Fast Track
Court-II, Chinthamani, in S.C.No.116/2012 - convicting the
appellant/accused for the offence punishable under Section
395 of IPC and the appellant/accused is sentenced to
undergo rigorous imprisonment for four years for the offence
punishable under Section 395 of IPC and sentenced to pay
fine of `10,000/- and in default of payment of fine, the
accused is sentenced to undergo simple imprisonment for
three months.
These Criminal Appeals coming on for Final Hearing this
day, the Court delivered the following:
COMMON JUDGEMENT
The accused Nos.1 to 6 have preferred these three
appeals, among whom, Criminal Appeal No.33/2015 is
by accused Nos.1 to 3, Criminal Appeal No.1152/2014 is
by accused Nos.4 and 5 and Criminal Appeal
5 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
No.1159/2014 is by accused No.6. The accused have
challenged the judgment of conviction dated 6.12.2014
and order on sentence dated 8.12.2014, passed by the
learned Adhoc District and Sessions Judge, Fast Track
Court-II, Chintamani, (hereinafter for brevity referred
to as "trial Court") in S.C.No.116/2012, wherein they
have been convicted for the offence punishable under
Section 395 of Indian Penal Code, 1860 (hereinafter for
brevity referred to as `IPC') and sentenced accordingly.
2. The summary of the case of the prosecution is
that on 12.2.2010, at about 6.00 a.m., while the
complainant Smt.Sarojamma was going to Aswatha
Katte Temple of Kannampalli from her house by walk,
behind Lakshmi Tyres shop road, accused Nos.1 to 3,
approached her and among whom, accused No.1 by
pointing knife at her and threatening to her life,
snatched her customary chain (Mangalya chain)
weighing about 50 grams from her neck and all the
6 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
three accused persons ran away. Accused Nos.4 to 6 by
standing at a distance, helped accused Nos.1 to 3 to
commit robbery and thereby the accused have
committed an offence punishable under Section 395 of
IPC.
3. Since the accused pleaded not guilty, in order to
prove the charges against them, the prosecution
examined twelve witnesses from PWs.1 to PW-12 and
got marked documents from Exs.P-1 to P-10. The
customary gold chain (Mangalya chain) was marked at
MO.1. From the accused side, neither any witness was
examined nor any documents were marked as exhibits.
4. After hearing the arguments from both side, the
trial Court by its impugned judgment of conviction and
order on sentence dated 6.12.2014, convicted the
accused for the offence punishable under Section 395 of
IPC and sentenced them accordingly. It is against the
7 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
said judgment of conviction and order on sentence, the
accused have preferred these appeals.
5. The respondent - State is being represented by
learned High Court Government Pleader.
6. The records from the trial Court were called for
and the same are placed before this Court.
7. Heard the arguments from both side and
perused the materials placed before this Court, including
the memorandum of appeal and the records from the
trial Court.
8. For the sake of convenience, the parties would
be referred to as per their ranks before the trial Court.
9. As all these three appeals have arisen out of
same judgment of conviction and order on sentence, all
the three appeals have been heard together and taken
up for passing the common judgment.
8 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
10. In view of the above, the points that arise for
consideration are :
1) Whether the prosecution has proved
beyond reasonable doubt that on
12.2.2010, at about 6.00 a.m., the
accused Nos.1 to 3, by pointing a knife
at PW-1, have snatched the customary
gold chain worn by PW-1 and accused
Nos.4 to 6 by standing at a distance,
aided accused Nos.1 to 3 to snatch the
chain and thereby the accused have
committed an offence punishable under
Section 395 of IPC?
2) Whether the judgment of conviction and
order on sentence under appeal
deserves any interference at the hands
of this Court?
11. PW-1 (CW-1) Smt.Sarojamma, in her evidence
has stated that on 12.2.2010, at about 6.00 a.m. when
she was going to Nagarakatte Temple, three accused
came from her opposite direction, among them, accused
9 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
No.1 by keeping knife on her neck, snatched the
customary chain (Manglaya chain) and ran away. On
she raising an alarm by yelling, the neighbours rushed
to the spot. Among the three accused who had ran
away from there, one among them once again came
from her opposite direction, she identified him, then the
people caught hold of him and assaulted him. He was
possessing knife with him.
The witness further stated that due to her blurred
vision, she could not identify the accused. Stating that
she had lodged a complaint with respect to the incident,
she has identified the said complaint at Ex.P-1 and the
customary chain at MO-1.
She was subjected to a detailed cross-examination,
wherein she adhered to her original version.
12. PW-2 (CW-2) Lakshmikumar L., and PW-3
(CW-3) Manjunath, have stated that the scene of
10 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
offence panchanama as per Ex.P-2 was drawn in their
presence.
13. PW-4 Muniyappa has stated that the
complainant was his colleague and on 11.2.2010,
because of some inconvenience for him to go to his
place, he stayed in the house of the complainant. Next
day morning, when the complainant had been to temple,
he heard yelling noise. Immediately, he joined by
Sundar Rao and son of the complainant by name Naveen
Kumar, rushed there and saw that the thieves had
robbed the golden chain from the neck of the
complainant. While they were searching for the things,
complainant identified one of the thieves in the next
road. Thereafter, all the people took him to the police
station. Further he stated that he could not identify the
accused whom the complainant had identified on the
said day.
11 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
14. PW-5 (CW-6) Venkataramana Reddy though
has stated that on 12.2.2010, in the morning at about
6.00 O'Clock, on hearing the yelling noise, he came out
of the house and came to know about robbery of gold
chain from the complainant, but, he has not seen the
incident and he has not seen the accused.
15. PW-6 (CW-7) Sundar Rao, husband of the
complainant, has stated that on the date of the incident,
in the morning, after hearing the yelling noise of his wife
who had been to temple in the morning itself, he and his
friend Muniyappa went there, but, nobody was there.
After ten minutes, from the opposite direction, a boy
came, whom his wife i.e., the complainant, identified as
one of the culprit. The witness has identified him as
accused No.1 in the Court. He further stated that they
caught hold of him and police came to the spot and took
the said accused to the police station.
12 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
17. PW-7 (CW-8) Ravikumar has stated that he is
the Manager of Woodland Lodge and about four years
back, the accused had stayed in their Lodge for a day.
The police informed him that those four persons had
robbed a chain from the neck of the complainant.
18. PW-8 (CW-9) Anand has stated that while he
was working as a Room Boy at Woodland Lodge, in the
year 2010, in February, the accused had been to their
Lodge and they had booked Room No.106. Four to five
persons stayed in their Lodge for a day and on the next
day, they vacated the room. After they vacated the
room in the morning, the police came to their Lodge and
told that those occupants of the Lodge had committed
the robbery of a gold chain from the neck of a lady.
However, he could not identify the accused due to
paucity of time.
13 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
19. PW-9 (CW-14) Krishnappa, a Police Constable
and PW-10 (CW-15) Luyiramareddy, then Police
Sub-Inspector of complainant-Police Station, have
stated that both of them jointly while patrolling on
17.2.2010, in the morning at about 6.00 O'Clock, based
on the suspicious moment of a person, near Anjani
Extension, caught hold of him and enquired his name
and identity. He disclosed his name as Ramesh, but, did
not give satisfactory reasons for his presence there.
However, at enquiry, he disclosed that he joined by the
other members, committed chain snatching from a lady
on 12.2.2010 in Gundappa Extension at Chintamani.
As such, he was brought to the police station and
produced before the Police Inspector along with the
report at Ex.P-3.
20. PW-11 (CW-16) Ramesh G.R., then Police
Inspector of the complainant-Police Station, in his
evidence has stated about the investigation conducted
14 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
by him in the matter. He has stated that on 12.2.2010,
when he was in-charge of the Police Station,
complainant-Sarojamma appeared before him and
lodged a complaint as per Ex.P-1, which he registered in
their Station Crime No.29/2010, for the offence
punishable under Section 392 read with Section 34 of
IPC. After submitting the FIR to the Court as per
Ex.P-4, he proceeded to the spot of the offence and
drew seen of offence panchanama as per Ex.P-2. On
the same day, he recorded the statements of several of
the witnesses. He has stated that on the same day,
based on suspicion, he collected the extract of Arrival
Register from a hotel at Chintamani. After the
apprehension of accused Ramesh and Srinath, from their
statement that they had stayed at Woodland Hotel,
Chintamani, copy of the Arrival Register as per Ex.P-5
was procured. Room No.106 was booked in the name of
accused No.4-Chandrashekar.
15 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
The witness has further stated that on 17.2.2010,
PW-10 produced accused No.1 Ramesh before him at
6.30 a.m. along with his report at Ex.P-3. After
completing the arrest formalities, he recorded the
voluntary statement of the said accused as per Ex.P-6.
On the same day, he got the accused identified by
complainant and Manager of Woodland Hotel.
The witness has further stated that on getting
credible information, he arrested accused No.2 Srinath
and recorded his voluntary statement as per Ex.P-7.
The said accused in his voluntary statement has stated
about he pledging the gold chain at Manappuram
General Financer & Leasing Limited at Konappana
Agrahara, Bengaluru. Accordingly, along with the
accused and his staff, he went to the said establishment
and seized the gold chain in the presence of panchas by
drawing a seizure panchanama as per Ex.P-8. He came
to know that accused No.2 Srinath had pledged the said
16 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
gold chain in the name of accused No.6 - Arogyaraj by
producing a copy of his driving licence at the time of
pledge. As such, the said copy of driving licence and
cash paid receipt were also seized, which the witness
has identified at Exs.P-9 and P-10 respectively. After
completing the investigation on 3.5.2010, he filed the
charge sheet against the accused.
21. PW-12 C.V.Venugopal, the Senior Manager of
Manappuram Gold Loan Company, Bengaluru, has stated
that on 13.2.2010, at 1.04 p.m., one Sri Arogyaraj, son
of Kanikraj, pledged a gold chain, weighing 44.9 grams
and availed a loan of `54,000/-. In that regard, a Pawn
Ticket was issued to said Arogyaraj, a copy of which, he
has identified at Ex.P-10. The witness has stated that at
the time of pledge, he has obtained a copy of the
photocopies of identity card. He further stated that the
said gold chain was seized by the police by drawing a
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& Crl.A.No.1159/2014
panchanama as per Ex.P-8 on 23.5.2010. The witness
has stated that he does not know the accused.
22. In the light of the above, it was the argument
of learned counsel for accused Nos.1 to 3 that PW-1 has
failed to identify accused No.1 in the Court, as such, the
proof of accused is not established. He further
submitted that none of the prosecution witnesses have
stated about the role of accused Nos.2 and 3. He also
stated that there are no evidence to show that accused
Nos.1 to 6 have jointly committed the alleged offence or
that they were together while committing the alleged
offence. He further submitted that when accused No.1
is said to have caught on the spot on 12.2.2010, how
come he is shown to have been apprehended on
17.2.2010 is not answered by the prosecution.
23. Learned counsel for the appellant in Criminal
Appeal No.1152/2014 (by accused Nos.4 and 5)
18 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
submitted that there is no mentioning about accused
Nos.4 and 5 in the complaint and also no recovery of
any article was made at the instance of those accused.
Why and how those two accused were included in the
alleged crime is not explained by the prosecution.
Finally stating that no Test Identification Parade was
conducted, learned counsel submitted that no offence
against the accused have been made out by the
prosecution.
24. Learned HCGP for the respondents in his
arguments submitted that the evidence of PW-7 -
Ravikumar lodge manager and PW-8 - Anand room boy
of the lodge would go to show that all the six accused
had assembled in their court yard where they hatched a
plan of snatching a chain, as such, the commission of
crime is proved to be an act by all attracting S.395 of
IPC. He further submits that though there is some
discrepancy in the date of arrest of accused No.1 and
19 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
ambiguity still remains in that regard, the benefit of the
same may be extended to the accused. However he
submits that in the light of the seizure of the robbed
gold chain, the guilt against the accused stands proved.
25. Regarding the alleged incident of robbing of
the chain, the evidence of PW-1 Sarojamma is the sole
evidence which the prosecution has placed before the
Court. Though evidence of PW-4 - Muniyappa and PW-6
- Sundar Rao supports the evidence of PW-1 regarding
the occurrence of the incident, but admittedly all the eye
witnesses who have heard the yelling noise is from none
other than PW-1. The evidence of PW-1 that on the
alleged date of incident i.e. on 12.02.2010, at about
6.00 a.m., she had been to temple and on the way, a
person snatched the customary chain (mangalya chain)
worn by her due to which, she raised alarm by yelling
and the neighbours gathered there, has come out as a
natural evidence of a person narrating about an incident.
20 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
It has further been corroborated by the evidence of PW-
4 and PW-6. According to them, after hearing the
yelling noise of PW-1, they rushed to the spot only to
hear from PW-1 about the alleged robbery of her golden
chain by some culprit. Added to this, the evidence of
the I.O. that he seized the said golden chain from
Manappuram Finance and the same chain was identified
by PW-1 as the chain that was lost in the robbery and
the evidence of PW-12 - C.V. Venugopal the Manager of
Manappuram Finance that the said chain was pledged in
their establishment by a person in return for a sum of
`54,000/- all clearly go to show that an alleged incident
of robbery of a golden chain in the morning at 6 'o' clock
on 12.02.2010 stands proved. As such, the alleged
incident of chain robbery stands proved by the
prosecution.
26. The next question would be, whether the
present appellants / accused were the culprits who have
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& Crl.A.No.1159/2014
committed said robbery of the chain and whether they
were six in their numbers. In that regard, it is once
again the evidence of PW-1 which plays a primary role.
In that regard, it is the evidence of PW-1, PW-4 and PW-
6 which once again is of material importance. PW-1 has
stated that after she yelling people gathered there,
however, among the three persons who had robbed her
chain, one person came in front of her in opposite
direction whom she identified and the people gathered
there caught him and assaulted him and took him to the
police station. Since it is PW-1 who claims that she is
the only one who has seen the accused, her evidence
has to be analysed very carefully.
27. By reading the evidence of PW-1 joined by
the evidence of PW-4 and PW-6, doubts regarding the
alleged involvement of the accused in the commission of
crime arises. They are as follows:
22 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
(i) If the version of PW-1 is believed that after
robbing the chain by three accused, one of them came
in front of her when the people are stated to have
gathered at the alarm raised by her, the very statement
of the witness that one such accused came back to her
once again is difficult to believe because, once a robber
does any robbery or a thief does any theft or a dacoit
does docoity, it is generally not expected that he would
come back to the place within minutes and show his face
to the people assembled in the spot including the victim.
Therefore the very say of PW-1 that after the incident,
once again the accused No.1 came in front of her is hard
to believe unless the said statement is corroborated by
other cogent evidence from the prosecution side.
(a) In that regard, it is the evidence of PW-4 and
PW-6 which are material. PW-4 who claims to be a
colleague of PW-1 and was staying in the house of PW-1
on the previous night says that on the morning of
23 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
the incident, after hearing the yelling noise he also
rushed to the spot. Though he has stated that one of the
accused who had committed robbery once again
appeared before the victim whom she identified, but he
has failed to identify the said accused in the Court. Had
really been the said accused once again come before the
victim and, in the presence of PW-4 and PW-6 if she had
identified accused, then PW-4 was expected to have
seen the said accused and he would have identified him
in the Court. Therefore, non identification of the said
accused in the Court leads to suspicion in believing the
version of PW-4 that he had seen the accused said to
have been shown by PW-1.
(b) PW-6 who is the husband of PW-1 has stated
that after ten minutes of incident when he had been to
the spot on the alarm raised by his wife, accused No.1
came to the said spot once again whom his wife
identified. Incidentally, this witness has identified the
24 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
said accused in the Court as accused No.1. However the
fact remains that, this witness has identified accused
No.1 since his wife i.e. PW-1 is said to have shown that
person as the culprit. Therefore identification of accused
No.1 by PW-6 is not as a direct eye witness to the
alleged incident but as a hearsay witness who claims to
have seen the accused at the instance of PW-1 and
as identified by her. Therefore it basically requires the
identification of the said accused No.1 by PW-1 also.
It is only thereafter the alleged identification of
accused No.1 by PW-6 can be taken as trustworthy.
Admittedly, PW-1 has not identified said accused No.1
in the Court. Interestingly, said witness who has
identified a small article in size like her alleged chain at
MO-1, could not be able to identify a large size
human being i.e. accused No.1. No reasons are
forthcoming as to how she has identified the chain had
25 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
really her vision was blur which has prevented her from
identifying a human being. Therefore, when her vision
was blur and could not identify accused No.1, how come
at her instance PW-6 believed that accused No.1 was
culprit who had robbed the chain would remain doubtful.
(ii) Secondly, it is only PW-6 who has identified
accused No.1 in the Court stating that his wife had
shown him as one of the culprits among the three. Both
PW-4 and PW-6 claimed that after hearing yelling noise
from PW-1, they rushed to the spot. However, none of
these three witnesses i.e. PW-1, PW-4 or PW-6, have
nowhere stated that any such yelling noise or raising
alarm near the place of incident was audible at the
house where PW-1 and PW-6 were stated to be residing.
That was because, according to the complainant (PW-1),
as on the date of incident, she was residing in the 2nd
cross of Gundappa Extension, Chintamani. The said
address of the complainant about her residence is clear
26 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
in the complaint at Ex.P1. However, as per PW-6, the
place where she had gone for the temple was at 4th
cross of Gundappa Extension. As such, those two places
were not close to each other. There was one more cross
in between 2nd and 4th cross roads. There is no evidence
of anybody to show that any raised voice in 4th cross
where the temple was situated, could be head in the 2nd
cross where PW-4 and PW-6 were stated to be staying in
their house. As such, it creates a doubt about the
evidence of PW-4 and PW-6 that after hearing the
yelling noise of PW-1, they rushed to the spot.
Added to the above, had really PW-4 who is stated
to be the colleague of PW-1 and PW-6 the husband
of PW-1 had rushed to the spot immediately after
the incident and after hearing the yelling noise of
PW-1, then, definitely PW-1 was expected to state about
the same in her evidence. But nowhere in her
examination in chief, the witness has stated about
27 Crl.A.No.33/2015
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& Crl.A.No.1159/2014
the arrival of either PW-4 or PW-6 at the spot of
incident in response to her raising of alarm.
Undisputedly PW-4 is her colleague and PW-6 is her
husband. Thus, none other than her husband and
colleague had come there, then, PW-1 would not have
forgotten to mention the same in her complaint and as
well in her evidence. But there is not any such mention
which also gives rise to a doubt as to the arrival of PW-4
and PW-6 to the spot immediately after the incident.
Furthermore, according to PW-1, when she raised
alarm, the neighbours gathered there immediately and
when the accused No.1 is said to have reappeared in
front of her, it was the people who alleged to have
gathered there, caught hold of him and assaulted him.
When the evidence of PW-6 - the husband of PW-1
is seen on the said point, the said witness has stated
that when he joined by Muniyappa (PW-4) rushed to the
28 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
spot, nobody was there. Further, when the accused
No.1 once again came in their front, it was these people
who caught hold of him and called the police to the spot.
As such, there is great variation on the point of alleged
gathering of the people and catching of accused No.1 on
the spot in the evidence of PWs.1, 4 and 6. Therefore,
this also makes the evidence of PWs.4 and 6 that they
rushed to the spot and seen the accused on the spot
doubtful. When the presence of PW-6 in the spot
immediately after the incident and he catching the
accused at the instance of PW-1 itself remains doubtful,
the identification of the said accused No.1 by said PW-6
in the Court is not safe to believe and act upon.
(iii) Thirdly, if the version of PWs.1, 4 and 6 that
the accused No.1 was caught on the spot and was
handed over to the police is believed, then, the evidence
of PW-9 and PW-10 that they arrested accused Nos.1
and 2 on 17.2.2010, as well the evidence of
29 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
Investigating Officer (PW-11) that on 17.2.2010, at
6.30 a.m., accused No.1 was produced before him by
PW-10, appears to be false. Furthermore, undisputedly
PW-4 is the son of PW-1 and PW-6 is the husband of
PW-1 who were at the time of alleged incident away
from the place of incident and at a distance. On the
other hand, even according to PW-1, the neighbouring
residents in the place of the incident rushed to the spot
the moment she raised alarm. Interestingly, none of
them have come forward and stated about the alleged
incident or role of any of the accused in the alleged
commission of crime. Had really the neighbours
gathered there and caught accused No.1 on the spot and
taken him to the police station, then, any of those
neighbours would have definitely given their statement
on the line before the police and would have deposed in
the Court about the incident. But, no such evidence is
placed by the prosecution in that regard. On the other
30 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
hand, the prosecution version is that accused No.1 was
arrested five days after the incident, which was on
17.2.2010.
When PW-1 - victim herself has categorically
stated that the people gathered there took the accused
to the police station and when PW-6 claims that at his
information to the police, the police themselves came to
the spot and took accused No.1 with them, then, the
evidence of PWs.9, 10 and 11 that accused No.1 was
arrested on 17.2.2010, which was five days after the
alleged incident, makes the prosecution case further
weaken and adds one more doubt in the case of the
prosecution.
(iv) Fourthly, according to the victim (PW-1), the
culprits who were said to have committed robbery of
gold chain were only three in number, whereas, the
charge sheet shows that the accused are totally six in
31 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
number. The Investigating Officer has claimed that it
was the group of six accused who have committed the
decoity of the gold chain of PW-1. In order to show the
alleged involvement of the remaining three accused, the
prosecution has relied upon the alleged statements said
to have been given by a Manager of a Lodge by name
Woodlands Hotel and its Room Boy, who were examined
by the prosecution as PW-7 and PW-8.
PW-7 has stated that, about four years back, the
accused had stayed in their Lodge for a day. PW-8 has
stated that in February 2010, accused had booked Room
No.106 and four to five persons had stayed in the said
room for a day. PW-8 admittedly is a Room Boy in the
said Lodge. However, neither of them have identified
the accused in the Court, but, stated that they cannot
identify the accused. Thus, when they have not able to
identify the accused as the one who had booked a room
in their Lodge and stayed there, it is not known as to on
32 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
what basis these two witnesses have stated that
accused had booked a room in their Lodge on a
particular day.
Interestingly, PW-7 claiming to be the Manager,
except stating that accused had stayed in their Lodge,
has not produced any document to show that accused
had stayed in their Lodge. However, PW-11 - the
Investigating Officer has produced a photocopy said to
be of a Register of Arrivals maintained by Woodlands
Hotel at Ex.P-5 stating that he secured the said extract
and also stated that it was accused No.4 -
Chandrashekar had booked the room in the said Lodge.
Admittedly, the said document was not shown to either
PW-7 or PW-8 and got confirmed from them that it is
their hotel register and it is PW-7 who has issued the
said register extract to the police. It was required of
the prosecution to get confirmation about the
genuineness and authenticity of the said document
33 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
through PW-7, who according to the prosecution, was
the author of the said document. Therefore, when PW-7
claiming to the Manager of the Lodge has not shown any
register though the said document was said to be
produced by the prosecution, then, from the evidence of
PW-11 - the Investigating Officer that he secured an
Arrival Register extract from the Woodlands Hotel, also
creates a doubt to believe the said document.
In addition to the above, if according to the
Investigating Officer, the accused were staying in the
Lodge maintained by PW-7 prior to the commission of
the crime, then, after apprehension of the accused,
more particularly, the accused No.1 who is said to have
been handed over to the police on the very same day of
the incident by the people gathered in the spot, the said
accused could have been shown to the Manager of the
Lodge i.e., PW-7 and got identified by him as an
occupant of the room on the very Lodge at that point of
34 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
time. However, PW-7 has categorically stated in his
examination-in-chief itself that after arrest of the
accused, they were not shown to him by the police. No
reasons are forthcoming as to what prevented the
Investigating Officer from showing the accused to the
Lodge Manager or the room boy and to get identity of
the accused confirmed through them. This also goes to
raise some suspicion as to whether it was these accused
who had booked a room in Woodlands Hotel at the time
of commission of the crime.
Even after assuming for a moment that accused
had booked a room i.e., Room No.106 in Woodlands
Hotel at Chintamani, still, the prosecution has not placed
any material to show that their alleged stay in the Lodge
has got any connection with the alleged commission of
the crime as against PW-1 on 12.2.2010. Merely
because some persons are said to have been staying in
a room, by that itself, it cannot be inferred that it was
35 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
those persons who have committed the alleged offence.
Further, it is not the case of the prosecution that
accused having stayed in the room of the said Lodge
made any conspiracy for the commission of the crime.
Neither any allegation nor any material in that regard
have been placed by the prosecution. As such, the
inclusion of PW-7 (CW-8) and PW-8 (CW-9) in the case
by the prosecution would be a futile exercise. As such,
the participation of the alleged accused in the alleged
commission of crime has once again remained a doubtful
one.
Lastly, according to the Investigating Officer, the
alleged robbed gold chain at MO-1 was pledged with
Manappuram Finance by the accused, which was later
seized during the investigation by the Investigating
Officer by drawing a panchanama as per Ex.P-8. In
order to show that the gold chain at MO-1 was pledged
with Manappuram Finance, the prosecution has
36 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
examined Manager of the Manappuram Finance as
PW-12. The said witness in his evidence has stated that
on 13.2.2010, in the afternoon, one Sri Arogya Raj
(accused No.6 herein) being present himself in their
office, had pledged a gold chain, weighing 44.9 grams
and borrowed a sum of `54,000/- repayable with
interest thereupon. In that regard, a Pawn ticket was
also issued to him as per Ex.P-10. The witness has
stated that at the time of pledging the golden article, he
has collected the Voter's Identity Card of the said
person. Further, the witness has stated that the
Investigating Officer on 23.5.2010, has seized the said
chain by drawing a seizure panchanama as per Ex.P-8.
The Investigating Officer i.e., PW-11 has also stated
about he seizing the said golden chain under Ex.P-8
from Manappuram Finance. The said Investigating
Officer has also stated that accused Nos.6 Arogya Raj
has pledged the said chain with Manappuram Finance
37 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
and at that time, he had given a copy of driving licence
to the Finance establishment, which copy of driving
licence also he has seized. The witness has identified
and got marked the said copy of the driving licence at
Ex.P-9.
28. The evidence led by the prosecution, including
PW-11, primarily no where mentions as to how come the
gold chain alleged to have been robbed by accused
No.1 is said to have reached the hands of accused No.6.
According to PW-11, it was accused No.2 who pledged
the said chain with Manappuram Finance, but, there are
no materials to show that the said chain said to have
been snatched by accused No.1 was passed on to
accused No.2. There is no material of any sort to show
such movement of chain from one accused to another
accused. This creates a primary suspicion in the alleged
seizure of chain by the Investigating Officer at the
instance of the accused.
38 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
29. Added to the above, according to PW-11, the
Investigating Officer, it was accused No.2 who pledged
the said chain to Manappuram Finance, however, in the
name of accused No.6. At that time, the driving licence
was given by him to said Manappuram Finance as a
proof of identity which he has produced at Ex.P-9. At
this juncture, two points have to be carefully observed.
The first point is that, had really accused No.2 had
pledged the goods with Manappuram Finance in the
name of accused No.6-Arogya Raj, then, the alleged
driving licence should have shown the photograph of
accused No.2. It is nobody's case that the said
photograph shows the name of accused No.2. When the
photograph in Ex.P-9, the driving licence, is not that of
accused No.2, then, how come the said document can
be accepted as the identification by Manappuram
Finance is doubtful which has not been clarified by any
one.
39 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
30. Even according to PW-12 - the Manager of
Manappuram Finance, the proof of identity that was
given by the pledger was not the driving licence, but, it
was Voter's Identity Card. Had really the driving licence
been produced by the pledger as stated by the
Investigating Officer, then, PW-12 should have
necessarily stated in his evidence the proof of identity
produced before him was the driving licence and he
should have confirmed Ex.P-9 as a document produced
before him. But, neither the said document at Ex.P-9
was shown to PW-12 nor any question regarding the
driving licence was asked to PW-12. On the other hand,
the prosecution itself has elicited from the mouth of
PW-12 that the proof of identity was Voter's Card.
31. Interestingly, the Investigating Officer has no
where whispered about the said Voter's Card and not
even seized the said Voter's Card. Thus, it is not known
whose identity the said Voter's Card was showing. Had
40 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
really the said Voter's Card was standing in the name of
Arogya Raj, in whose name, the transaction of pledge
has been made, then, accused No.2 Srinatha cannot go
and pledge the said gold chain in the name of some
stranger who is accused No.6-Arogya Raj before PW-12.
PW-12 himself has clearly stated in his examination-in-
chief that the person physically present before him has
given him the identity proof as Voter's Card. Thus, it
was not accused No.2 Srinath who appeared before
PW-12 while pledging the gold chain, but, it was
somebody else, whom PW-12 says as Arogya Raj.
Therefore, the evidence of PW-12 and the Investigating
Officer (PW-11) regarding pledging of MO-1 and identity
of the pledger, is at great variance, which further
thickens the cloud of suspicion shrouded around the
case of the prosecution.
32. Added to this, absolutely there are no evidence
placed by the prosecution before the trial Court about
41 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
the alleged involvement of accused Nos.4 and 5 in the
alleged commission of crime. There is no whisper about
any overt act by any of those accused. That being the
case, when the entire prosecution case is shrouded with
serious doubts as analysed above, without appreciating
the evidence, both oral and documentary, placed before
it in its proper perspective, the trial Court appears to
have embraced PW-1 about the incident and evidence of
PW-6 regarding the identity of accused No.1 and jumped
to a conclusion that all the accused have committed the
alleged offence of decoity as alleged in the charge sheet,
which led it to pronounce the judgment of conviction.
Since the prosecution case is now proved to be full of
doubts regarding the participation of the accused in the
alleged commission of crime, the said benefit is necessarily
required to be extended to the accused. Consequently,
the judgment of conviction and order on sentence
impugned in this appeal deserves to be set aside.
42 Crl.A.No.33/2015
C/w.Crl.A.No.1152/2014
& Crl.A.No.1159/2014
33. Accordingly, I proceed to pass the following
order:
ORDER
The Criminal Appeal No.33/2015, Criminal Appeal No.1152/2014 and Criminal Appeal No.1159/2014, are allowed. The judgment of conviction dated 6.12.2014 and order on sentence dated 8.12.2014, passed by the Adhoc District & Sessions Judge, Fast Track Court-II, Chintamani, in S.C.No.116/2012, is set aside. The appellants/accused No.1 - Ramesh K., son of Krishna Reddy, accused No.2 - Srinath, son of Subbareddy, accused No.3 - Shankar, son of Subbareddy, residents of Kotampalli, Bagepalli Taluk, Chikkaballapura District, accused No.4 - Chandrashekar @ Boss, son of Sathyanarayanareddy, residing at Dodda Thogur, Electronics City, Bengaluru, accused No.5 - Chandrakumar, son of Lakshminarasappa, resident of Kotampalli Village, Bagepalli Taluk, Chikkaballapura 43 Crl.A.No.33/2015 C/w.Crl.A.No.1152/2014 & Crl.A.No.1159/2014 District and accused No.6 - K.Arogya Raj, son of Kanikaraj, residing at No.113/2, Near Doorashanipalya, Church, Bannerghatta Road, Bengaluru, are acquitted of the offence punishable under Section 395 of IPC.
The fine amount deposited, if any, by the accused be refunded to them after the expiry of period of appeal and if no appeal is preferred in the matter.
The Registry is directed to transmit a copy of this judgment along with trial Court records to the trial Court immediately.
Sd/-
JUDGE bk/sac*