Karnataka High Court
Irshad Ahmad @ Mustri vs State Of Karnataka on 26 October, 2009
{N THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 26* day of October, 2009
BEFORE V
THE HON'BLE MR. JUSTICE ARALI NA,.C§}XR;}$.}j*: _
CRIMINAL APPEAL Np.594/2-0033* , «
BETWEEN A ' é 1 %
1. Irshad Ahmad @ Mus'tri"--~._
S/0.NiyzX Ahmad.
Aged about 29 years,
Driver, H.No.29/1,.26A_;; _
IOU" Main, BishWas,--Nag;ir,iv
Shadara, New Delhi.._ T i
2. Anil Ku'mg§;p-Shei:rm€a,"" E,
S / 0.Ran1_aLihar 'S_1_;arma';' '
Aged_é£bt;1,1_t 40 _yea1'__s, _ _'
Depot F'QfCfI1§iIi» __
U,D._S.R.'1";VC.'={I\IQ\}v«._ih' "
Uttar-anehail. N0.' 500,
g ' Furana'-Burpa Khana.
" ' C-iViE.__LineS,' Beacon,
Utta,1f "i1?rac1esh. .. Appellants
{B'3?.__SEi"M_~vSH§réschandra, Adv.)
V Sta.te {if Kamataka,
" ._By_ Banswavadi PS. Respondent
{By Sri Vijaykumar Maj age, HCGP) §__,e_,__{""""""s..,_.,..
l\-J This Criminal Appeal is filed U/ S 374(2) of Cr.P.C., praying to set aside the judgment and""0rder dated 19.10.2007 for offence punishable under~S'ect~ion 399, 397 r/w 34 of IPC and Section 3 and Act in sc No.7l6/2004 of Banasavadi Police staucm jun the file of Fast Track Court -- III, Additio_n;.r1'.§essions__ Judge Mayo Hall, Bangalore.
This Criminal Appeal for day, the court made the fo.1lo'9__ving:" "
Accused Nos.l on the file of the learned Fast Track Court -- _Il.1§;':. (hereinafter 1_efeFr¢dmtl'--V..af$. have challenged in this and Order of conviction and sentencém&¢t.ed passed in the said case, convicting the1'r;forithe offences under Section 397 read ' .:WithA .34 IPC and under Sec.3 read with sec.25 0 Totally five accused were involved in the said Accused Nos.3 and 4 died during the .in{fcstigation itself. Therefore, the case against them 0 'came to be abated. Accused No.5 viz. Pappu @ Yusub @ ¢"""""*-{"\"""'\..----"""
Lg) Jamal has been shown in the chargesheet as absconding. Therefore, it was only accused Nos:.:lt_tand 2, who came to be tried in the said case.
2. Though the charges were:;:A_frar_neci Nos.1 and 2 for the offence? uli/V1d_er"
399 both read with sectio1i '%i:a.}i%or iific arse under Section 3 read with thehfirial Court, on appreciation V' of PWs.1 to 11, documents, IV/Ios.1 to 4, the Trial and 2 guilty of the offenc.es'-- read with Section 34 IPC and Sectiflfl 25 of Arms Act.
«---"*:"'.'1'I£.
it in case of prosecution as alleged in ft.
V' it filed by the complainant PW1 Dakshina Murthy,' cashier in the office of KPTCL at HRBR ..Layo1'1=t,'. Bangalore, is as under:
a) On 23.7.2002 at about 11.00 a.m., the complainant boarded the Maruthi Van bearing M 4 Registration No.KA--05~--8606, which was parked in the compound of the said office with cash of Rs.5,25,723/-- for carrying the same to the Syndicate Bank for its deposit. Before _.he:'-couvld close the left door of the said van afterjherl _ it, one person came there holdirag'lVg..VV.pi:§t.9l arid!' tried to snatch from the co'mplainant In the meantime, the otherctwof persons..a}so.i_i'c.arne there. They as all"thr_Veatelr1ed the'V:coinplai.nant,t* One of them hit the eompllainant'with':the§ butt end of the pistol oiaject---l:.and._p.conseqiiently the complainant sustained. severe. V"inj'ury on his head and left_fhand.:"Wllnfiinxeldiatelgf thereafter the said ~pere--ourij-3' .s:n;atched.' tlhle'-"bag containing the said cash. the 'co_r'npl'ain'a.nt 'raised cry.
__b) the said cry, the driver IX/fenl<ateAsl1.v____and the lineman PW6 Nellurappa _tC'..V.?$j«-..came there to rescue the complainant. But three persons went away from the said on a motor cycle. Before they could ride the l ~ vmotor cycle, PW6 Nellurappa caught them. At that time, one of them shot at PW6 with the pistol and consequently some pellets hit against the pant of PWE3. Fortunately he did not sustain any {__»_W§-v-\_,..,~«.
6 Witnesses have clearly identified accused No.1 as the person, who hit. the complainant on his head with M04 Revolver and thereby caused severe bleeding vinj_i'1ries and snatched from PW} the bag containing"'the.'..:sa=i§1~.H cash and therefore the Trial court v 1 convicting the appellants - ::i37CC¥:'1'S§':C1 offences.
6. In order to provethe yrobberylas alleged in EX.P1 complaint, the reliance on the oral e_vid'er§ce corngdlainant, PW3 Rarnesh, PW4 Swarny. Nellurappa and PW? Vinod Kumar, vvho claim to" have witnessed the said incident. It not in dispag._t_e.vthat the incident of robbery took ' place 'said date, time and place as alleged in the and cash of Rs.5,25,723/«~ contained in a bag robbed by three persons by threatening the "id eornplainant and also by assaulting him with pistol and thereby inflicting severe bleeding injuries on his head <....@..__(aW""""'k...»4 7 and left hand. What is seriously disputed is the identity of accused Nos.1 and 2 as two of the said three persons.
7. It is the case 0f'é)l'OS€CL11ZiO1'1 that after the Poilicepof Banasawadi came to know that some arrested by the Police of Ananth.-p'ui"----in it in connection with other robberie_sl-and d'eco'it.ees',-Zjlthey._ obtained the names and addresses oft accused Nos.1 and '2~..v_herein"ai41d"'e't_henAsecured their presence in this case llget=tin.gi"'tAhel_'body warrants issued against"«p:.tt1en:2__ a_.r;d': theieafterl the prosecution Witnesses 'id.entsi:fi.e'd .sacc_u'sed' Nos.1 and 2 as two of the said robbed the complainant on the é_ saV_id'.:.d:ate.VV ttrne'-~a.n_d.piace. It is not in dispute that no 'Testplvdéentitilcation parade had been conducted in the saidilcaseff The prosecution claims that accused Nos.l and 2 txfiere shown to the witnesses in the Police Station A their presence was secured on 31.1.2003 by l ebtaining body warrants against them and that the c»~.._§""'*'*-~--»»~ 3 Witnesses itientified them before the Trial Court also. It is the sci'.i.icd principle that the identification of the accused by the prosecution witnesses, who are..to_tally stranger to them, in the Police Station investigaiirm of the ease. eannotbeb helci"t;'o" ,a"*ie'g.al}.y Valid icicniifittation. Besides t'his,;"'et.he3in'eiderit '~--ha151:
occurred on 23.7.2002 a1'1d_tii.ese aecused..we._r'e--»»shoWn = ' to the wime..ssses Clurihg the Wee}; of 2003 Le. after Liiie lapse of nljhoriths. Further, PW} eon1;Jlainaii.t -§"irviV(':'ti:11 ncgt stated in his compizliiit of the persons who rolj'§;)y_':_'i 1"l1.I"D_Vl .(LJAUl'C-lj_A'.\;&Ti"[.I1(:'SS€S also have not stated the physiez-:_'i' E'ieatuhvres"-oi'... the culprits whom they saw at the tim '-; 1i"%_>.a.jn'ujrrence of the incident. .8.' i'.hijeeidentification of accused Nos} and 2 as the'--twoV_»¢>l' §lj':i~v'1"A£":EE'? culprits, PW} complainant has stated in 'A evzic;i.t.<:::':es<::'* that' the Police showed him two persons _ he i(.§<.."i.'iEillt*'.Cl only one of them as the person. who §*""*~C~"'-"'**\..-» 9 assaultetl 1'2.i:.n with revolver and snatched the bag from him and £«i€.'(?L1S{'3Ci No.1 is the same person. It is pertinent to note that he has not stated in his evidence on What 1.J21;.~sis.~; he could identify accused No';'1« same pf.3£'.'~.i-('.)Ii. who assaulted with 1'€VOiV(i_.3'~£11Tii§i,S11i3.tCh€d from him the bag eontainiiig cash,
9. P'VV.'% iéaznesh, who c§'ai';ns t0'~ha*.'e Witi1es.sed..3 the , L incident oi" mbbeiy, has stat_eud._in.._Vhis .exavn1in§31tion--in--
Chief am at about vl'0.i5i~5A a,.n;;_;; ¢1~i'ji1;~00 am. on that day, afttcr he->.;:1:'i1;';g; the,'si'iv:>{i'ti1igs,_oi' tihi6'§5teo;)1e, he came out of ti*1<:~.--. c-'_ii'i-fi_é.:tc-sia-;id PW} had sustained injury on his Ei1<_?é-Mi h:--:.:_ic1§ of JCh'€.I".if1I"€€ persons, one had snatched 'E11€»"<:.':.-':*~V»?:It'A'1' iii-iéitlt§Tf<>i1f1____the hands of PW} and then ad} the three p_vE%V}"~f'r:'»:{';..T."V1"§'s'._W€i'lt away on the motor eycie. He has further' (4'i(:-?.VEV'%i('§-)3"-'F.'fi:)'(i in his exa:nination--in~ehief that about 7 to 8 1no:.:n'.i:'is iiiereaftei" the police secured his presence Cfinttiie Poiii-<'-.= Si:at.i«::)11 arid showed him one persorl, who i cQmrnit.i_:._':..i :"<_}¥:::I;)e1"§fi on 'me. said date and time, but he 'v it) could not identify the said person. He has stated further that he can not identify accused Nos} and 2 even before t.he Court the same personsfizvho committed robbery aiongwith another perso'I1'QV'oni said date and time. He has denied the put ..
him by the iearned Public Prosecutor accused No.1 before the":_Po_iice theiV'V:'pej1*s,on,_:'§ snatched the cash bag i'"1"or1;1__1?:5V\':/'..'v._ 1'and.thatv._he_fidentified accused No.2 as the :pe.rsor;.,' sitting in the Maruthi car. w:f1i.ch foliowed ejfcle.
10. VVPW4 is none other than the SecurityVV"C}4ua11'cVIVV'(:_i:f<i_i3'iT'§:i'si.. He has stated in his evidence _Po}ice'.s_e_cured his presence and showed him ' ;the.xculpritsand that he did not see any of accused Nos} and and he cannot say accused Nos.1 and 2 were among three persons, who committed robbery on A said date, time and place. He has denied the 'Suggestion put to him by the learned Pubiic Prosecutor r"°-4'""""'""
II that he identified aeciised No.1 the person, who hit the conipiaiiiant with revolver and snatched from his hands the cash bag.
ii. Further PW6 Neiiurappa, an emp1oye_e:"'oi«t..E§tI§:'__i'e_ has stated in his evidence that the person';»~\:>vjif1(:)""£:iit-~V with revolver and snatched the 'céasiibag 'fr_orn"'the:hai::ds of PW1, is not one an1oi1ge}t'aocused Nos.'1'_ PW'."*'_* Vinodkumar is another WitI1x:es_s,'ww._who"ciaimsi to have witnessed the incident has stated in his evidence that_he__ couid"'id:entifye..accused No.1 as one of two }5ers--o'1'is.V'wi'1.-o'"\vei1fg.."away from the scene of offence on the VVxI'.i}4(')'tO1'V'H(3 has further stated in his examination~in».c:h_j_et' that during the investigation of ' this police did not show him the person who .'eoinmitt'e"d__ robbery on the said date, time and piaee. He has ~.deir1ied the suggestion put to him by the learned .P1ib1ic Prosecutor that he identified both accused Nos.1 (*"~»--f"""""'-* 12 and 2 as tiws of the three persons, who committed robbery on the said date, time and place.
12. The above being the evidence of PWS. 1, 7 as to the identity of accused Nos} and 2 three persons, who robbed PW1 c0mp~}ai--n:ant'~.:0n said date, time and place, amiipf Veerisideired opinion that the Trial Court'«-e0mrn~i.t,ted serieus_erI?orbinii» recording its finding that th_eu"-;.den»tit.y.'Of. accused has been properly 'thc:pr_0_secution.
13. 'Nef'.»3 (fish _cf«..I'%ts.5O,V0'O0/~ is said to have been recovered*1,znder"t.hei'padi'1eEianama EXP'? in the presence of Mui'ninSab panch. PW11 Investigating .O:t'ficer'i'* ciaiins to have recovered the said amount .p1.Jrs'uanti'i,<j'.i' ml ur1t:a.ry st'at:ement of accused N0s.1 and 2 res--pectiVeiyA at EXs.P14 and 1315. It is the case of Aiprpsecutioiz that the said amount was kept by the "'..accused with PW8 and therefore. pursuant to the said it ""Vo1unta'ry st.at,ement. ef accused No.2, the said amount "
came to be recovc1'ed from PW8. As to this fact, the evidence of PW8 Mumin Sab, who is also parieh to EX.P7 recovery parichanama, is that he had let floor of his residential btiilding to a person--'.from.}X'gr'aa.on 9.2.2003 and latei' he eame:'to'"kno\'i{ person died in an e1'1.coui'iter the po1iee"of'. Pradesh and that the fj-'$'c11'(1.'a:V.V1"1;I'-i)L11'1'[V. of was given to him by the.V_ He"'h'as further deposed that noiie of the 2 stayed in the said resi~de'ijii§a1 'o_tiii;diiig"aion'g.. the said persons fro1'n;;Agra" l"viv'3(4'.\'1"L€?"<"(,J,t';_. accused Nos.1 and 2 gave him the said a.m()iii.11iii.:.:' ~He~~._h"asV~"sta1:ed further in his evidence that he doest.1101.7'1-efriefzibez' the name of the said person .of"Aigf'a"e to" wfhc)niVVh'e«i'1e1d lei the said premises. ._1V'L/§__.VM.A is not in dispute that accused Nos.3 and 4""diedhi'n'; the police e1*1(.:o11nter, from this fact itself "ea.nno't be iifierreci iihat eiinher of accused Nos.3 and 4 hlstayed as 1",('§I1'dE'1i in 'die residential premises of PW8, and Ww~w :4 the said accused gsive to PW8, alongwith accused Nos.1 and 2 herein. the said sum of Rs.50.000/-. Therefore, I am of the considered opinion that though the sei§;t11'e of Rs.50,OO0/W from the possession of PW8 _ the pI'OSE3'CL1{'.iO11 beyond reasonabie '"=,iI1«A thew absence of f1e.1:'t:}'1er evidence to *,thatf' amount was given to PW8_ by eithei' of Nos.1V:* and 2 along with the pt%1'sQ_I_i:'»\VI1Q ha(:1~t_a_kenf? the said premises on lease "twinj.PW8{_a11d;hfthe--., said tenant was either of a(:c:t1_scd Nc)s'.'3'afnd'4;._w'ho...&Vdied in the police €1'1CO1vV1I1t€1"..1"wT11CI:?2f()i7€.,'at am. of the further opinion that the 'I'ri:-51 'C()1E.:7I.."t.1t)f1"iV£'£'1itififfi another error in convicting the;accused.,VN0s'.1aiid 2 for the said offences on the No.3 cash of Rs.5O,OOO/W. .'15'.'A it casrc-E <'3E"'_E1"osecuti0n that MO No.2 cioth bag seized by PW11, the 10, under panchanarna in the pre-sei'ice of PW5 Mohib as panch and the said bag was thci: same, which was snatched by the i("""'\<».-_fM""""""e..---=-'x...
Hi there Could be no ovttzisioii for the police to Search the said premises and find out the said bag and also Cash of Rs.13,000/a It is not case of the pi*oseC'ution_vtleiatathe said amount pez'i.aiiie(.i to the present Case; even if the sei.7.u1"e of1\/IO No.2 eJ::1sh_bag"i's"11e1d'"p1'oVed,'AV' this itself m.mid i'1(.)E. be su.t'fi'c..ieri'_t-"~50 "eo'1'1_V'ietV »."e:i:He:~ accused No.1 oz' a<:t.':.i.sed V:"'l§)'§"2V oi' aceusedv-VN'o."4aVfo'1* thee offences Whi(.'h iiicy were? <'t1'ia--:*;_{ed.""pA For the reasons"afores3':id. th:eAA.Vp'resent appeal is allowed. THC.:V'iI11})t.3§.f;11t}Ci* and Order of eonvietiozi' "tiat.ed 19.10.2007 passed in SC No.716/V2O_<Q%_ .'1'1'1}'..f. 1€'.'2:.t.i"i'i('ti Additional Sessions Judge. (7:I(i'i'i.i:§'. ____ iii. ?\/layo Hall Unit. Bangalore is ' he'i°eb3z_V"ssjE«».. ;3:i;'~t;.i_c'1t-3:. I*3or.I"1 the accused Nos} and 2 are hefeiay aiiq_:.:.ia'i:it;%c'i of iiie oi"fe1"1ces under Section 397 read with ~.Seg',t:i<.Jz'a 134 of [£36 aiiid See.3 read with See.25 of "ti Act. ii" ziiiy firic ari'mt..i:'ii. has been deposited by the any of the t--}('('1ISE?Ci in ("()iI]pli'c1I'1('.(3 with the impugned {_._"__g-~»~\,.,, order of sea1t_cm~<%, the same shall be refunded to them. If they are not required to be detailqecl in co1'1necjtim_n With any <')i.11o:' Case, they shail be set forthwith, M A copy of this order S11-.2_1_1} S_ei1t té) "c.1*1e '*. Trial Court amd also to i.1'1e'.5311periIit.'c.nTdentv;§ Central Prison, Ba11_g211<)z'c= for 'ifif0_1f}:'1--"_1atmnu 'epmpliance. bkm. 1