Karnataka High Court
Godaji @ Godaji vs State Of Karnataka on 17 April, 2023
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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CRL.A No. 1222 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO. 1222 OF 2010
BETWEEN:
1. GODAJI @ GODAJI
GOPINATH CHOUHAN @ GODIYA
S/O GOPINATH CHOUHAND,
AGED ABOUT 50 YEARS
R/O ASHOKNAGAR,
SRIRAMPURAM TALUK,
AHMEDANAGAR DISTRICT,
MAHARASTRA STATE.
...APPELLANT
(BY SRI. NAGARAJA REDDY, AMICUS CURIAE FOR APPELLANT
V/O.DATED 02.12.2022)
AND:
Digitally 1. STATE OF KARNATAKA
signed by (BY SHO WHITE FIELD P S
LAKSHMI T BANGALORE RURAL ), BANGALORE.
Location: High
Court of ...RESPONDENT
Karnataka (BY SRI. K. RAHUL RAI, HCGP)
THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT AND CONVICTION AND SENTENCE
DT: 26.07.2010 PASSED BY THE PRL. S.J., BANGALORE (R) DIST.,
BANGALORE IN S.C.NO.287/2008 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 412 OF IPC AND
ETC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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CRL.A No. 1222 of 2010
JUDGMENT
The appellant/accused No.1 has preferred this appeal against the judgment and order dated 26.07.2010 passed by the Court of I Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in SC No.287/2008, whereby he has been convicted for an offence punishable under Sections 412 of IPC and sentenced to undergo R.I. for a period of five years and to pay a fine of Rs.5,000/- and in default of payment of fine to undergo imprisonment for a period of one year.
2. It is the case of prosecution that on the night intervening 05/06.05.2008 at about 3.00 a.m. accused Nos.1 to 3 along with absconding accused Nos.4 to 8 broke open the window grills of house bearing No.246 situated at Borewell Road, White Field, Bangalore, belonging to the complainant-PW1 and at knife point, tied the hands and legs of the complainant and his wife and took away a cash of Rs.80,000/-, 02 wrist watches, 01 Samsung Mobile phone and a gold finger ring and also took away a Maruthi 800 Car bearing registration No.KA-03-P-7616 belonging to PW1, which was -3- CRL.A No. 1222 of 2010 parked in front of the house and thereby committed the offence punishable under Section 395 of IPC.
3. Charge sheet was filed showing accused Nos.4 to 8 as absconding. After committal of the case to the Court of Sessions, charge was framed against accused Nos.1 to 3 for the offence punishable under Section 395 of IPC. In order to bring home their guilt, the prosecution got examined PWs.1 to 13 and got marked Exs.P1 to P16 and MOs.1 to 7. The defence of the accused was one of total denial, however no defence evidence was led.
4. Appreciating the oral and documentary evidence on record, the learned Sessions Judge acquitted accused Nos.1 to 3 of the charged offence under Section 395 IPC, however found the appellant/accused No.1 guilty of offence punishable under Section 412 of IPC.
5. Heard the learned Amicus Curiae for the appellant and the learned High Court Government Pleader Sri K.Rahul Rai for the respondent-State and perused the material on record.
6. PW1 is the complainant. The complaint is marked as Ex.P1. PW2 is a friend of PW1 who came to the house of the -4- CRL.A No. 1222 of 2010 complainant immediately after the incident. He is also an attesting witness to the spot mahazar Ex.P2 along with PW3. P.W.4 is a panch witness to Ex.P6 i.e., seizure of a sim card (MO5) from accused No.3 and Ex.P7, seizure of a cutting plier (MO6) and an iron rod (MO7) from accused No.2. PW5 is another panch witness to Ex.P6. Pws.6 to 8 are the panch witnesses to Ex.P10 i.e., recovery of MOs.1 to 3 from accused No.1. PW9 is a panch witness to Exs.P7, P9 and P11 for recovery of MOs.6 and 7 from accused No.2 and also the spots shown by the said accused, where the car was abandoned, spot of crime and also identification of the car belonging to PW1. PW10 is the wife of PW1. PW11 is the panch witness to Ex.P12, i.e., the spot shown by accused No.1 wherein he threw the mobile phone etc., in respect of some other crime. PWs.12 and 13 are the Investigation Officers.
7. The Incident has taken place on 06.05.2008 at about 3.00 a.m. In this regard, a complaint was lodged by PW1 and a case was registered against unknown persons on the same day at 6.00 a.m. The Police Inspector of White Field police station after receiving the complaint Ex.P1 from PW1 and registering a case, issued FIR-Ex.P13 to the jurisdictional Court. -5- CRL.A No. 1222 of 2010 Thereafter he conducted spot mahazar-Ex.P2 and recorded the statements of the witnesses. On 07.05.2008, he received information that the car bearing Registration No.KA-03-P-7616 has been abandoned near the community centre in Bhovipalya. Accordingly, he went to the spot and seized the car and drew a mahazar as per Ex.P11. In the course of investigation and from the usage of the sim of the Samsung mobile phone, he arrested accused No.3 on 10.06.2008 and seized MO5-Sim card from the said accused under a mahazar-Ex.P6. Thereafter on 26.06.2008, he arrested accused No.2 and his voluntary statement as per Ex.P14 was recorded. The said accused showed the place where the car was abandoned. A Mahazar was drawn as per Ex.P.16. Further, at his instance an iron rod and a cutting plier marked as MOs.6 and 7 were seized under a mahazar Ex.P7. The said accused showed the house where they committed dacoity and a mahazar was drawn as per Ex.P9.
8. During investigation, PW12 came to know that accused No.1 was lodged in Satara jail. He took the permission of the jurisdictional Court and arrested the said accused and recorded his voluntary statement as per exhibit P15. Accused -6- CRL.A No. 1222 of 2010 No.1 led the police to his house situated at Ashok Nagar area, Srirampura Taluk in Ahamed Nagar District in Maharashtra, from where he produced MOs.1 to 3 namely 02 wrist watches and a gold ring. The same were seized under a mahazar- Ex.P10 in the presence of panch witnesses. On his transfer, PW12 handed over the investigation to PW13 who completed the investigation and filed charge sheet.
9. In Ex..P1, the complainant-PW1 has stated that when he along with his wife were sleeping in the house, at about 3.00 a.m. in the morning, six masked men entered the house and at knife point they tied their hands and legs and robbed cash of Rs.80,000/-, a gold ring, two wrist watches and one Samsung mobile phone. Thereafter they took away the Maruthi Car bearing Registration No.KA-03-P-7616. In his evidence he has reiterated the complaint averments. He has stated that the accused have entered the house by breaking the window grill. In the spot mahazar-Ex.P2 it was noticed that the grill of the window was removed. PW1 has further stated that immediately after the incident he informed his friend one Thomas Gramne Mekke i.e., PW2 about the incident over phone.
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10. PW10 is the wife of PW1. She has corroborated the evidence of PW1 with regard to the dacoity committed in their house and the accused taking away cash, two wrist watches, one gold ring and a mobile phone and the Maruthi Car which was parked in front of the house. She has stated that since the accused had covered their faces with the mask she could not identify them.
11. According to prosecution, PW2 to whom PW1 informed about the incident, saw the accused persons at about 3.00 a.m. in the street light situated near the house, talking to each other in hindi. They had removed their masks and the maruti car was parked beside. But PW2 has not supported the case of prosecution regarding identifying the accused. However, he has stated that he received a phone call from PW10 at about 3.00 a.m. and immediately he went to his house and saw that the window grill was broken. PWs.1 and 2 informed him about the dacoity committed by the accused and taking away two wrist watches, one mobile phone, cash of Rs.80,000/- and a gold ring.
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12. The trial court has found the evidence insufficient to convict accused Nos.1 to 3 for the offence punishable under section 395 of IPC. However, found sufficient evidence against accused No.1 for having committed an offence punishable under section 412 of IPC.
13. It is contended by the learned Amicus Curiae that when the charge for the main offence itself is not proved, then the accused could not have been convicted for the offence punishable under section 412 of IPC. He contends that the learned Sessions Judge has erred in holding that the appellant is guilty of the said offence. He contends that the ingredients of the said offence are not made out and one of the panch witness namely PW7 has clearly stated that it was the police, who brought MOs.1 to 3 from the house and showed him when he was near a temple. He contends that accused No.1 has not produced MOs.1 to 3, on the other hand, it was brought by the police and showed to the panchas. He would also contend that the panch witnesses were not knowing kannada language and they have admitted that they did not know the contents of Ex.P10-mahazar under which MOs.1 to 3 are seized. He, therefore, contends that the evidence and material on record is -9- CRL.A No. 1222 of 2010 not sufficient to convict the appellant/accused No.1 for the offence punishable under Section 412 of IPC and the prosecution has failed to show that accused No.1 has dishonestly received or retained MOs.1 to 3 knowing or having reason to believe that they are stolen properties or they belonged to the gang of dacoits.
14. The learned High Court Government Pleader, on the other hand, has supported the impugned judgment and sought to dismiss the appeal.
15. There is no loss of time in lodging the complaint by PW1. In the complaint itself he has clearly stated about the articles robbed from his house. Ex.P1 is corroborated by PW1 and his evidence is further corroborated by the evidence of PWs.2 and 10 regarding the articles robbed from his house. Admittedly, the cash and mobile phones are not recovered at the instance of the accused persons. It is contended by the learned Amicus Curiae that there is no identification mark on the gold ring or the wrist watches and therefore it cannot be said that these articles alleged to have been recovered at the instance of accused No.1 are the subject matter of the crime.
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CRL.A No. 1222 of 2010The said contention cannot be accepted. Both PWs.1 and 10 have identified MOs.1 to 3 after they were shown to them. They have categorically denied the suggestion put to them that MOs.1 to 3 do not belong to them. In Ex.P1, it is specifically mentioned that the accused took away cash of Rs.80,000/- to Rs.1,00,000/-, two wrist watches, one Samsung mobile phone and one wedding ring. PW10 has stated that the accused took away the wedding ring which she was wearing. It may not be difficult for the said witness to identify the wedding ring which she was wearing and the wrist watches which are worn daily.
16. PW12 has stated that after the arrest of accused No.1 his voluntary statement was recorded as per Ex.P15 and the said accused led them to the house situated in Ashok Nagar area, Srirampura Taluk in Ahamed Nagar District in Maharashtra and produced MOs.1 to 3 which was seized under Ex.P10 in the presence of witnesses. The prosecution has got examined PWs.6 to 8. They have supported the case of prosecution.
17. The learned Amicus Curiae has contended that according to witnesses they were not knowing the contents of
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CRL.A No. 1222 of 2010Ex.P10 and according to PW7 when he was near the temple, the police came and showed the said articles namely MOs.1 to 3.
18. PW7, in his cross examination, has admitted that he has not seen the accused producing the articles and the said MOs.1 to 3 were in a plastic cover. However, he has denied that the police have not seized the said articles. Both PWs.6 and 8 have categorically stated that MOs.1 to 3 were seized under Ex.P10 and the same were recovered at the instance of accused No.1. They have admitted their signature in Ex.P10 and denied the suggestion that they have put their signature on blank papers and the police have not prepared any mahazar. They have also denied the suggestion that they are seeing MOs.1 to 3 for the first time before the Court.
19. A careful perusal of the evidence and material on record, it can be safely held that the prosecution has been able to establish that MOs.1 to 3 are the subject matter of the crime and the same was recovered at the instance of the appellant/accused No.1. When it is found that the said accused was in possession of the said articles, then it is expected from
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CRL.A No. 1222 of 2010the said accused that some explanation is offered for the possession of the same. The accused has not adduced any defence evidence. Even in 313 Cr.P.C. statement except denying all the incriminating evidence put to him, he has not offered any explanation. The trial Court is therefore justified in convicting accused No.1 for the offence punishable under section 412 of IPC.
20. The learned Amicus Curiae has relied upon the decision in State v. Chotey lal reported in 1999 0 Crl.L.J 3411 wherein the appeal preferred by one of the accused who was convicted under section 411 of IPC was accepted holding that when the substratum of the prosecution case is failed, the recovery alleged to have been made from the said accused looses all significance. The facts of the said case are entirely different. In the said case, charges were framed under Sections 302 and 411 IPC. The Court has held that recovery of the weapons and the stolen articles at the instance of the accused does not inspire confidence. In the case on hand, the evidence with regard to the recovery of MOs.1 to 3 from accused No.1, inspires confidence of the court.
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CRL.A No. 1222 of 2010
21. Under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
22. The appellant who was found with the articles which are the subject matter of crime has not accounted for the possession of the same. The learned Sessions Judge has rightly drawn a presumption under Section 114 of the Evidence Act. I see no merit in the appeal. Accordingly, the appeal is dismissed.
23. The learned Amicus Curiae is entitled for an honorarium of Rs.6,000/- (Rupees Six Thousand only) payable by the High Court Legal Services Committee.
Sd/-
JUDGE TL List No.: 1 Sl No.: 26