Karnataka High Court
State Of Karnataka vs Nagesh Alias Ramesh on 8 June, 1995
Equivalent citations: 1995CRILJ3816, ILR1995KAR2030, 1995(5)KARLJ510
Author: M.B. Vishwanath
Bench: M.B. Vishwanath
JUDGMENT Mirdhe, J.
1. This appeal is preferred by the State against the judgment passed by the J.M.F.C., Yellapura, in Criminal Case No. 699 of 1992 acquitting the respondent-accused of the offence punishable under Section 392, I.P.C.
2. Since the accused had not engaged any counsel, we appointed Sri P. M. Nawaz, a learned member of this Bar, as amicus curiae to assist the Court in this case to argue the appeal on behalf of the respondent-accused.
3. We have heard the learned Additional S.P.P. Sri A. B. Patil and the learned amicus curiae Sri P. M. Nawaz fully and perused the records of the case.
4. The case of the prosecution is that on 29-8-92 between 9.00 a.m. and 10.00 a.m. the complainant, who was a senior teacher of Domagara School, was going to Kirawatti Mandal Panchayat in the forest road in connection with some election work. Then the accused came and talked to her and asked her as to where she was going. After some time, he threatened to give her gold bendole and also threatened to kill her if she did not part with them. The complainant gave her gold bendole, electronic wrist watch and also a purse containing Rs. 25/- to the accused on his demand which was accompanied with the threat to the life of P.W. 1 - complainant. After the incident, the complainant raised alarm which brought C.W. 8 to that place who saw the accused running away from that place. The complainant went to the house of C.W. 2 who was her landlord and narrated the incident. She was shown a pamphlet by C.W. 2 which was a warning to the public to be aware of the activities of the individual published therein. On seeing the photo in that pamphlet, she identified him as the very person who robbed her ornaments, wrist watch and a purse with Rs. 25/-. Then she lodged a complaint with the police, who registered the case and after investigation, filed the charge-sheet.
5. The prosecution examined P.Ws. 1 to 9 and got exhibited exhibits P-1 to 6 and got marked also M.Os. 1 to 5. The trial Court aquitted the accused mainly on the ground that the prosecution has not been able to prove recovery of M.O. 1 in pursuance of the voluntary statement of the accused. Though P.W. 1 has been examined as a victim and eye-witness, the trial Court has not at all discussed the evidence of P.W. 1. What the trial Court has done is it has only narrated the incident. But, it has not discussed the evidenciary value of the evidence of P.W. 1 at all. We are sorry to note that the J.M.F.C. who acquitted the accused has dealt with the case in a very cursory manner without giving serious thought to the evidence of the prosecution placed before him. He has only reproduced the evidence of P.W. 1, but he has not at all considered it.
6. P.W. 1, in her evidence, has stated that on 29-8-1992 she was proceeding to Kirawatti Mandal Panchayat for preparing electoral list for the Mandal Panchayat election and she was going on the forest road, that then the accused came and proceeded in front of her and asked her the way to go to Kolikeri and she proceeded further 1/2 km., that she again found someone following her and the accused came near her and asked her as to where she was going and she told him and she also asked him as to where he was going, that he told her that he was going to Kolikeri and immediately he threatened her to give her gold bendole and if she did not give the ornaments, he would assault her and also kill her, and that she gave her ornaments which she identified as M.O. 1. She has further deposed that the accused took her purse containing Rs. 25/- and also an electronic wrist watch. Her evidence further discloses that she raised alarm and C.W. 8 came there and he did not understand Kannada and he was not able to make out as to what was the meaning of her cries. She has further deposed that she went to the house of P.W. 2-Vinod Hegde who was her landlord and he showed her a pamphlet containing the photo of the accused and she identified the said photo as that of the accused, that thereafter, after informing her husband, she gave a complaint to the police and that it is marked as exhibit P-1. As pointed out by us above, the learned Judge has not at all considered this evidence, though he has reproduced it. It is significant to note that the incident has taken place between 9.00 and 10.00 a.m. in the broad day-light. P.W. 1 had full opportunity to see the accused in the broad day-light. The incident was not over within minutes as it would be in a case of snatching of gold chain from the neck of a lady. The evidence of P.W. 1 goes to show that the acused followed her for some time either by proceeding in front of her or by walking behind her. P.W. 1 has also stated that he talked with her. In view of the fact that the accused was walking behind her and proceeding in front of her and also talked with P.W. 1 and it was broad day-light, P.W. 1 had full opportunity to observe the features of the accused. Her evidence further discloses that after the accused went away with the robbed articles, she raised cries, and P.W. 3 came there. Even P.W. 3 fully corroborates the evidence of P.W. 1 when he says that he had seen the accused running away after committing the robbery of ornaments of P.W. 1. P.W. 1's evidence is sufficient to fix up the identity of the accused as the very person who robbed her on that day. Another reason for the identification of the accused being clearly fixed up in the mind of P.W. 1 is that, after the accused committed robbery, she went to her landlord P.W. 2 and P.W. 2 showed her a pamphlet, exhibit P-2, containing the photo of the accused. On showing the photo P.W. 1 identified him as the very person who robbed her. In view of these facts and circumstances which are disclosed from the evidence of P.W. 1, there was no difficulty for P.W. 1 to identify the accused at the time of the trial as the very person who robbed her on that day. Regarding the showing of exhibit P-2 to P.W. 1, P.W. 2 has corroborated it. P.W. 2 is a panchayatdar to the spot mahazar and he has also stated in his evidence that he showed exhibit P-2 to P.W. 1 and P.W. 1 had identified the said photo as the photo of the person who robbed her.
7. The learned amicus curiae submitted that it is not safe to rely on the evidence of P.W. 1 as it has not been tested by holding of identification parade in this case. Whether the evidence of a witness identifying a culprit as the very person who committed the offence can be accepted without holding the identification parade or not depends upon the facts and circumstances of each case. If there are circumstances which go to prove that the witness had sufficient opportunity to see the culprit and also opportunity to observe him for some time and also talk with him, then the evidence of such witness can be accepted even without holding of identification parade. As observed by us earlier, P.W. 1 saw the accused in broad day-light. The accused was with her for some time as he was following her or walking in front of her and also he talked with her. Therefore, P.W. 1 has sufficient opportunity to see the accused. The features of the accused were well fixed in the mind of P.W. 1 not only on account of her close observation of the accused at that hour and also on account of her seeing the photo of the accused on a pamphlet given to her by P.W. 2 soon after the incident. Such evidence of P.W. 1 cannot be rejected merely on the ground that there is no identification parade held to identify the accused by P.W. 1. P.W. 3 also corroborates her to the extent that P.W. 1 was robbed on that day and he saw the accused running away.
8. The prosecution has also relied on the seizure of M.O. 1 from the shop of P.W. 6, P.W. 6 has deposed that when the accused was selling M.O. 1 and other ornaments, police came and caught hold of him and seized M.O. 1 along with other ornaments under exhibit A-1. P.W. 8 fully corroborates P.W. 6. The trial Court has disbelieved the evidence of P.Ws. 6 and 8 on the ground that P.W. 5 contradicts them. P.W. 5 has stated in his evidence that when the and P.W. 7 went to the shop of P.W. 6, the accused was already detained there by a police constable. But, in exhibit A-1, there are averments to the effect that the accused was apprehended when he attempted to run away from the shop of P.W. 6. The statement made by P.W. 6 that when they went there, the accused was already detained by a constable is not such one so as to discredit the entire evidence of P.Ws. 6 and 8. So far as the apprehension of the accused at the shop of P.W. 6 when he was attempting to sell the article including M.O. 1 is concerned, there is no contradiction as such between the evidence of P.Ws. 5, 6 and 8. The contradiction, if at all, is on the point as to when the accused was detained i.e., when before the coming of P.Ws. 5 and 8 or after. We do not think that this is such a major contradiction so as to discard the entire evidence of the prosecution. M.O. 1 is identified by P.W. 1.
9. The learned amicus curiae submitted that there is delay in filing the complaint. The incident had taken place on 29-8-1992 between 9.00 and 10.00 a.m. But, the complaint is filed on the same day at 6.00 p.m. This has been explained by P.W. 1 in her evidence. She has stated that her husband was working as a teacher at Yellapura and she was not in a position to go to Yellapura to inform her husband about the incident as the accused had taken her purse also containing Rs. 25/- and she had to wait for the arrival of her husband from Yellapura to go to the Police Station and file the complaint. In our opinion, the delay is properly explained by P.W. 1. The prosecution case cannot be discarded on that count also.
10. On assessing the merits of the prosecution evidence in this case, we find that the learned J.M.F.C. committed a grave error in not assessing the evidence of the prosecution properly and acquitting the accused of such a heinous offence by taking a very casual approach to the evidence of the prosecution. Such an attitude on the part of the J.M.F.C. has to be depricated.
11. It is proved by the evidence of P.W. 1 that the accused gave threat to P.W. 1 to cause her death while committing the robbery of her ornaments. Therefore, the offence squarely falls within the purview of Section 392, I.P.C.
12. We have the learned amicus curiae on the sentence to be awarded to the respondent-accused Sri P. M. Nawaz, learned amicus curiae, submitted that the accused is a person of young age and a lenient view of the matter may be taken. The offence alleged against the respondent-accused is punishable with imprisonment which may extend to 10 years and also liable to a fine. From exhibit P-2, it appears that the accused is a man involved in many offences. The way he has committed the robbery is disclosed from the evidence of P.W. 1. He put a lady in fear of death in broad day-light and committed the robbery of her gold ornaments. Taking into consideration these facts and circumstances of the case, we are of the opinion that it will meet the ends of justice if the respondent-accused is sentenced to rigorous imprisonment for a term of two years.
13. Before parting with this case, we place on record our apprehension of the work done by Sri P. M. Nawaz as amicus curiae in this case. He argued the case very ably and took us through the evidence and also pointed out the points of law in favour of the accused. But, the arguments of the amicus curiae could not be accepted in view of the acceptable evidence on record which proves the guilt of the accused beyond reasonable doubt. Sri Nawaz is entitled to a fee of Rs. 1,000/- for his work done in this case.
14. Hence, we proceed to pass the following order :
The appeal is allowed and the judgment of the trial Court acquitting the respondent-accused of the offence punishable under Section 392, I.P.C. is set aside and the respondent-accused is convicted for the said offence and he is sentenced to undergo rigorous imprisonment for a term of two years.
15. Appeal allowed.