Karnataka High Court
S Mohammad Iddris S/O. Late Khadarvalli vs The State Of Karnataka on 14 August, 2017
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
Dated this the 14th day of August 2017
Before
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
Criminal Appeal No.2624/2012
Between
1. S Mohammad Iddris
S/O. Late Khadarvalli
Age: 23 Years.
Occ: Maker In M.J.M Bakery,
R/O. Badegalli, Near Jandakatte
Millerpet, Bellary.
2. Mahammad Imaran,
S/O. M. Ibrahimsan
Age: 20 Years, Occ: Student,
& Part Time Worker In M.J.M Bakery
R/O. Badegalli, Near Jandakatte
Millerpet, Bellary.
3. Sadruddin @ Sadru,
S/O. Saleem Sab
Age: 21 Years,
Occ: Car Driver,
R/O. Behind Police Line,
Millerpet, Bellary.
4. Shashavali,
S/O. Ameerkhan
Age: 22 Years,
Occ: Carpenter Work
R/O. Society Rice Mill,
Milerpet, Bellary.
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5. Irfan,
S/O. Mohammad Hussain,
Age: 22 Years,
Occ: Loader Operation Work,
R/O. Badegalli, Near Jandakatte,
Millerpet, Bellary.
...Appellants
(By Sri. Srinand A. Pachhapure, Advocate)
And
The State of Karnataka
Through Sub Inspector Of Police
Brucepet Police Station,
Bellary. Now Reptd. By SSP.
...Respondent
(By Sri. Raja Raghavendra Naik, HCGP)
This Criminal Appeal is filed U/S 374(2) of Cr.P.C.
respectfully praying this Hon'ble Court to call for the
records in S.C.No.132/2011 and set aside the
judgement of conviction and order of sentence dated
03.03.2012 passed by the Presiding Officer, Fast Track
Court-I, Bellary, in S.C.No.132/2011 for the offences
punishable under Sections 398 & 386 of IPC, and
acquit the appellants, in the interest of justice.
This appeal coming on for Hearing this day, the
Court, delivered the following:
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JUDGMENT
This appeal is preferred by the appellants/accused No.1 to 5. Being aggrieved by the judgment and order of sentence dated 03.03.2012 passed by the Presiding Officer Fast Track Court-I, Bellary in Sessions Case No.132/2011.
2. The appellants/accused No.1 to 5 challenged the legality and correctness of the judgment and order of conviction, so also the sentence imposed by the said court. On the grounds as mentioned in the appeal memorandum at ground No.5 to 19 of the said memorandum.
3. Brief facts of the prosecution case before the Trial Court that complainant C.W-1 S.L.Pavan Kumar was running the (sorku) commercial wholesale shop at A.P.M.C Yard, Bellary. On 05.12.2010 at about 6.53 p.m. some unidentified person contacted to the :4: mobile of the complainant, having mobile number 9481662783 and demanded for ransom of Rs.2,00,000/-. It is also mention that if he failed to give the said amount, they would kill his daughter. If the matter is reported to the police they would kill the complainant also and asked him to come to a place, where they direct along with money and threatened him. Thinking that somebody is trying to threaten him, the complainant kept quite. Next day morning i.e. on 06.12.2010 at 10.00 a.m. again he received the telephone call to his mobile from the very same call number, asking him what he has done in the matter and he was informed if he fails to come along with money he would be killed. Complainant has stated in turn that it is not possible for him to arrange that much of amount demanded by the accused and told them that he will come along with money by collecting as much possible as he can and to come over to the spot where they directs. For that again they told him that the spot :5: will be informed later on. Thereafter, in the afternoon they contacted to him to his mobile asked him that whether money was ready. He told them that it is ready and they asked him to come near to the godown situated back side of vegetable market A.P.M.C. Yard at 8.00 p.m. in the night. Complainant along with Rs.1,60,000/- kept in a bag in the scooter dickey Honda Activa, bearing registration No.KA-34/R-1614 went to the sport where culprits direct. When he stopped the scooter by applying stand five persons attacked on him, out of them two persons holding him tightly and another person slapped on his face and threatened asking him where is the money. He told him that it was kept in the dickey of the scooter. Another person remove the key from his pocket, taken out the money along with the bag from the dickey of the scooter and another culprit asked him what remains with him and searched in his pocket, taken out same changes and also electoral identity card and some chits. All the accused :6: threatened him stating that if the said fact is divulged to others they would kill the complainant and his family members, by stating that they knew their house, shop, where it situated etc., and living the complainant in the said place fled away in the darkness. Thereafter, the complainant returned to his house discussed with the family members, father-in-law and thinking that if the complaint is lodged, accused may give trouble to them. They did not choose to file the complaint to the police immediately. After two months thereafter complainant came to know that Brucepet police arrested some dacoits in connection with the Pankaj Jain murder case in Crime No.18/2011 of Brucepet police station and visited the police station on 07.02.2011. There he has identified the accused and also the money, yellow coloured bag with Hanuman photo printed on it and his electoral card and the amount which were seized by the police from the accused at the time of the investigation in the said murder case. Only thereafter complainant :7: visited the A.P.M.C.Yard police station on 07.02.2011 at about 8.00 p.m. and lodged the complaint against accused Nos.1 to 5.
4. On the basis of the said complaint case came to be registered as against the accused persons and the Investigation Officer after conducting and completing the investigation filed the charge sheet as against the accused persons for the offences punishable under Sections 395 and 386 of the Indian Penal Code. Then the trial court after hearing both sides framed the charge for the said offences against the appellants/accused No.1 to 5 and posted the matter for Trial. The prosecution in order to establish its case in all examined 13 witnesses as P.W-1 to P.W-13 got marked the documents Ex.P-1 to Ex.P-22, so also the Material Objects as M.O.No.1 to 6 and closed its case. On the side of the defence no witnesses examined nor any documents produced.
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5. After considering the merits of the case ultimately the Trail Court has convicted the appellants/accused No.1 to 5 for both offences punishable under Section 395 and offence punishable under Section 386 of the IPC and imposed the sentence of imprisonment for 5 years and fine of Rs.5,000/- each for the offence under Section 395 of IPC and in default of payment of fine, they have to undergo simple imprisonment for six months. So also rigorous imprisonment for 5 years and the fine of Rs.5,000/- each for the offence under Section 386 of IPC and in default payment of fine they have to undergo simple imprisonment for further period of six months.
6. Being aggrieved by the judgment and order of conviction so also the sentence imposed, the appellants are before this court.
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7. Heard the arguments of the learned counsel appearing for appellants/accused No.1 to 5 and so also the learned High Court Government Pleader for the respondent/state.
8. Learned counsel appearing for the appellants/accused during the course of arguments, draw the attention of this court to the entire materials and he made the submission that there is a delay nearly of 2 months in lodging the complaint and the prosecution has not explained the delay with any plausible explanation. Hence, he made the submission that itself clearly goes to show that it is a false case cooked-up as against the accused persons and on that ground itself the learned Sessions Judge ought to have rejected the case of the prosecution. He also made the submission that the appellants/accused persons are totally strangers to the complainant and the family members. It is also his contention the alleged offence : 10 : said to have taken place at 8.00 p.m. during night and it was darkness. No test identification parade was conducted in the case to establish the clear identity of the accused persons. Regarding the light is concerned learned counsel for the appellants draw the attention of this Court to the contents of the spot mahazar and made the submission that, no doubt, a mention is made regarding existence of the electrical pole, but the said electrical pole is at a distance of 15 mts. from the place of the spot. It is also his contention that there is such mention regarding the existence of electric pole, but whether a light/bulb was fit into the said electric pole or not, there is no mention in the said mahazar also. Hence, the learned counsel made the submission that simply making a mention about the existence of electric pole is not sufficient to come to the conclusion that there was light during that night and that light was so sufficient to have the clear identity of the appellants/accused. Learned counsel submitted that : 11 : looking to the charge-sheet material, there is no document collected from the concerned competent authorities of the electricity department to the effect that during that night there was supply of electricity; there is no documentary evidence from the electricity department to show that during that particular time, on the date of the alleged incident, there was supply of electricity. Hence, the counsel made the submission that as it was darkness, it raises a reasonable doubt in the mind of the court regarding clear identity of the accused persons and the prosecution has to clear the said doubts. In this connection, the learned counsel for the appellants/accused drew the attention of this Court to the photographs produced in the case as per Exs.P.3 to P.6 and referring to the said photographs, he made the submission that even the photographs will not make it clear that there was light/bulb in the electric pole and it was sufficient to have the clear identity of the accused persons. Hence, it is his contention that even the : 12 : photographs at Exs.P.3 to P.6 also will not help the prosecution in establishing that there was light during that night. He also made the submission that sofar as the telephonic conversation by the unknown persons with the complainant from their mobile phone number, which is given in the complaint itself, is concerned, no material worth believable has been collected during the investigation to establish that there was a conversation, which is said to have taken place between the such unknown persons and the complainant over his mobile phone. He submitted that sofar as the mobile phone and the sim card is concerned, even the sim card is also not seized during the course of investigation and the sim card does not belong to the accused. In this connection, counsel made the submission that the CD which was played in the open Court and viewed by the Court clearly goes to show that it is the police people who took the active role in the matter; they took the appellants/accused to the drain and asked them to : 13 : make a search for the sim card in the drain water. He made the submission that as the Court has already viewed the CD, the accused persons have not at all told that where they had thrown the sim card in the said drain, but when the accused kept silent, the police people led the accused person in searching the sim card saying that "you search this place and that place", hence, the learned counsel made the submission that this itself clearly goes to show that even search/selection of the place for finding out the sim- card was also not at the instance of the accused persons.
Learned counsel made the submission that the only material relied upon by the prosecution in this case to connect the appellants/accused with the alleged offence is the recovery of the amount from each of the accused persons.
Sofar as the recovery and conducting the panchanama that is relied upon by the prosecution is : 14 : concerned, learned counsel made the submission that such recovery is not pertaining to this case, but it is in connection with the murder case of Pankaj Jain and the said seizure said to have been conducted in the murder case of Pankaj Jain has been adopted to this case, and in this connection, the learned counsel for the appellants/accused drew the attention of this Court to the document at Ex.P.12(1) i.e., seizure mahazar. Even to this document, the learned counsel for the appellants drew the attention of this Court to the timings mentioned by the police in the panchanama in respect of seizure of the amount from each of the accused separately and it is contention that looking to the timings mentioned in the seizure panchanama in respect of the accused persons, it is during night only. In this connection, the learned counsel made the submission that looking to the CD, which was played in the open Court, undisputedly, even according to the prosecution, the proceedings in respect of recovery of : 15 : the amount which was conducted during the day time. Hence, he made the submission that this itself goes to the root of the matter; the timings mentioned by the prosecution in Ex.P.12(1), the recovery mahazar, is patently false and it is a created and got-up document.
He also made the submission that no independent witnesses' statements were recorded by the police though independent witnesses were easily available and that, except the family members of the complainant, there is no independent corroboration of the case of the prosecution. He also made the submission that P.W.6, who gave his evidence, is a relative of the complainant and even with regard to the evidence of P.W.6 also, the learned counsel made the submission that looking to the cross-examination portion of this witness, it cannot be said that the prosecution has established its case with the help of the evidence of this witness-P.W.6.
Regarding panch witnesses to the spot mahazar and the recovery mahazars are concerned, the learned : 16 : counsel made the submission that they are all interested witnesses and no importance is to be attached to such proceedings in the absence of any independent witness in this regard. It is the contention of the learned counsel that the spot is a public place wherein good number of people are available and even then, no independent witnesses were examined. Hence, the learned counsel ultimately made the submission that absolutely there is no case made out by the prosecution. He also submitted that there was delay in lodging the complaint and though the identity of the accused persons was not established, only on the basis of suspicion, the case was initiated against the appellant/accused. The learned counsel also drew the attention of this Court to the oral evidence of each of witnesses and made the submission that looking to the admission given by the witnesses during their cross- examination, it clearly goes to show that the prosecution has not been able to make out a acceptable : 17 : and believable case. He made the submission that in spite of such infirmities in the case of the prosecution, the learned Trial Judge, without taking all these aspects into consideration, has wrongly proceeded in holding that the prosecution proves its case beyond all reasonable doubts and has convicted the appellants/accused by his judgment and order of conviction; that the impugned judgment and order of conviction is patently illegal, perverse and capricious, and not sustainable in law. Hence, the learned counsel for the appellants/accused lastly made the submission to allow the appeal and to set aside the judgment and order of conviction passed by the Trial Court.
In support of his contentions, learned counsel for the appellants relied upon the following decisions:
1. Harinath and another Vs. State of U.P. reported in AIR 1988 SC 345.
2. Wakil Singh & others Vs. State of Bihar reported in AIR 1981 SC 1392.: 18 :
3. Thimmareddy Vs. State of Karnataka reported in LAWS (SC)-2014-4-61.
4. Decision of Hon'ble Supreme Court in the case of Oma @ Omprakash Vs. State of Tamil Nadu in Crl. Appeal No.143/2007.
5. Raman Bhai Naran Bhai Patel & Ors. Vs. State of Gujrath reported in (2000)1 SCC 358.
6. Kanan and Ors. Vs. State of Kerala reported in (1979) 3 SCC 319.
7. Rajesh Govind Jagesha Vs. State of Maharashtra reported in (1999)8 SCC 428
8. C.Muniappan and Others Vs. State of Tamil Nadu reported in (2010)9 SCC 567.
9. Anvar P.V. Vs. P.K.Basheer and others reported in AIR 2015 SC 180.
10. Lalita Kumari V. Government. Of U.P. & Ors.
reported in AIR 2014 SC 187.
9. Per contra, the learned Government Pleader made the submission, firstly, with regard to the existence of the electric pole and the light during that time. It is his submission that in the evidence of the complainant and in the evidence of panch witnesses, it has already come that there was a electric pole existing : 19 : nearby the spot and the complainant has specifically deposed in his evidence that there was light and, in that light, he had seen all the accused persons. Hence, the learned Government Pleader made the submission regarding this aspect that even looking to the cross- examination of the complainant there is nothing brought on record to disbelieve his evidence regarding existence of light during that night.
Regarding identity of the accused persons is concerned, learned Government Pleader made the submission that the complainant had seen the accused persons closely and as there was a conversation and the accused persons were taking out a bag containing cash which was kept in the scooter dickey for which the complainant was asking them not to take that money, so during this period the complainant very closely has seen each of the accused persons and there was an opportunity for the complainant to remember the facial vision of all the accused persons. Therefore, in view of : 20 : these things and evidence of the complainant, holding of test identification parade was not at all necessary in this case and he submitted that even if the test identification parade is not conducted it is not fatal to the case of the prosecution. Learned Government Pleader made the submission that the test identification parade can not be said to be substantial piece of evidence. Hence, he submitted that on the basis of other materials available on record, if the prosecution is able to establish the identity of the accused persons, the Court has to accept the same.
Regarding the existence of electric pole and the light is concerned, even the learned Government Pleader drew the attention of the Court to the spot mahazar wherein there is a specific mention about the said pole and it is nearby the spot. Hence, he submitted that the oral evidence of the complainant is supported by the documentary evidence i.e., the contents of the panchanama and so also the photopgraphs-Exs.P.3 to : 21 : P.6. Hence, he submitted that the contention of the appellants that there was no light on the said date, cannot be accepted at all.
Regarding seizure of the amount is concerned, learned Government Pleader made the submission that there may be some mistake in mentioning the correct timings in conducting the recovery proceedings in respect of recovery of the notes from each of the accused persons, but in this connection, he made the submission that this Court had viewed the CD wherein it is seen that each of the accused took the police to their respective houses, took out the bundles of notes and produced it before the police officers. Therefore, that aspect cannot be denied even by the other side because there is documentary proof by way of CD. Hence, he submitted that even if there is a mistake committed by the police in mentioning the correct timings, at the most, it can be taken that there is a defective investigation by the police and it is his : 22 : contention that there are good number of decisions of the Hon'ble Apex Court and different High Courts to the effect that if the Court feels that the investigation is defective, it cannot be a ground to acquit the accused persons and in such a situation, the Court has to brush aside the investigation material to that extent and it has to assess the oral evidence tendered by the prosecution witnesses. Hence, he made the submission that making a wrong mentioning of the timings cannot take away the entire case of the prosecution. The learned Government Pleader also took the Court to the entire materials and the oral evidence of the prosecution witnesses and made the submission that looking to the evidence of the complainant and other witnesses, they have consistently deposed about the alleged act committed by the accused persons. It is also his contention that it is not only the amount of Rs.1,60,000/- that has been robbed by the complainant, but the said persons also put their hands into the shirt pocket of the complainant : 23 : and they have taken some changes and the Electoral ID and that the said amount was kept in a yellow colour bag; the yellow bag and the voters ID card are seized from the accused persons. Hence, it is his contention that when these materials which were established with the help of the evidence panch witnesses and so also the evidence of the Investigating Officer that the yellow colour bag, the electoral ID card were also recovered from the possession of the accused persons and the same go to establish that it is the accused persons who robbed the amount from the complainant during that night, which amount was kept in the scooter dickey. Learned Government Pleader made the submission that all these aspects of the matter were taken into consideration by the learned Sessions Judge and the learned Sessions Judge has also appreciated in detail the oral as well as the documentary evidence and only thereafter, he has come to the conclusion that the prosecution proved its case beyond all reasonable : 24 : doubt. Hence, the learned Government Pleader made the submission that no illegality has been committed by the Trial Court nor there is any perverse or capricious view taken by the learned Sessions Judge in coming to such conclusion. Hence, he submitted that there is no merit in the appeal and no justifiable grounds are made out by the appellants/accused to interfere with the well- reasoned judgment and order of the Trial Court. Hence, he submitted to dismiss the appeal and to confirm the judgment and order of conviction passed by the Trial Court.
Sofar as the delay aspect is concerned, learned Government Pleader made the submission referring to the oral evidence of the complainant and so also the contents of the complaint that the delay has been explained by the complainant himself stating that because the accused persons posed life threat to him that in case he disclosed this fact to anybody or to the police, not only he, but his family members will also be : 25 : finished and it is the evidence of the complainant that because of such reason he kept mum. He also made the submission that the family members of the complainant have also deposed in this regard and explained the delay. It is also the submission of the learned Government Pleader that when the delay has been properly explained, the case of the prosecution cannot be rejected in toto. Hence, he made the submission to dismiss the appeal and confirm the judgment and order of conviction passed by the Trial Court.
In support of his contentions learned High Court Government Pleader relied upon the following decisions:
1. Rambhau Vs. State of Maharashtra reported in AIR 2001 SC 2120.
2. Zahira Habibulla H.Sheikh and another Vs. State of Gujarat and Others reported in AIR (2004)4 SCC 158.
3. Kishore Bhadke Vs. State of Maharashtra reported in (2017)3 SCC 760.
4. Selvaraj Alias Chinnapaiyan Vs. State represented by Inspector of Police reported in (2015)2 SCC 662.: 26 :
10. I have perused the grounds urged in the appeal memorandum, oral evidence of P.Ws.1 to 13, documents
- Exs.P.1 to P.22, the judgment and order of the Trial Court. So also considered the decisions relied upon by the learned counsel appearing for the appellant filed along with index dated 23.06.2017 and also the arguments notes by the learned counsel for the petitioner dated 09.08.2017 and the decisions produced along with the arguments notes. I have also perused the decision relied upon the learned Government Pleader reported in (2004)4 SCC 158; (2017)3 SCC 760; (2015) 2 SCC 662 and also the decisions of the Hon'ble Apex Court reported in AIR 2001 SC 2120. I have also considered the oral submissions made by the learned counsel on both sides at the Bar which are referred to above.
11. Looking to the contentions of the parties and even as per the case of the complainant, the complainant : 27 : received a phone call on 05.10.2010 at about 6.53 p.m. to his mobile phone and on the next day also i.e. on 06.10.2010 at about 10.00 a.m. again he received the phone call from the very same mobile number i.e., 9481662783 and thereafter, complainant some how arranged Rs.1,60,000/- and proceeded to the spot at about 8.00 p.m. During the course of trial, it was the contention of the defence that it was darkness and it was not possible for the complainant to see and ascertain or identify the culprits and therefore, conducting test identification parade was necessary in the case which was not done by the Investigating Officer. In view of such contention being taken, before going into other merits of the case, firstly let me examine what is the evidence placed on record regarding existence of the light, as deposed by the complainant, or whether there was darkness as contended by the defence during course of trial. Looking to the complaint-Ex.P.1 there is no specific mention made by the complainant that at the spot there : 28 : was light and in that light he was able to see the clear visibility of the accused persons and hence, he is able to identify them. It is, no doubt, true that the complainant has mentioned in the complaint that if he sees the culprits again he can identify them. Hence, the question is, if really there was darkness, how the complainant can identify the accused persons, or whether, as contended by the complainant, there was light at the spot and in the said light he had seen the culprits. The complaint is silent about the existence of light at the spot. However, in the oral evidence, he (complainant) claims that there was light nearby the spot i.e., the streetlight and in that light, he had seen the culprits. Here the panchas to the spot mahazar have been examined before the Court and when it was specifically put to the panch witness, during the course of cross-examination that there was no light fixed to the electrical pole, the panch witness somehow evaded the answer to the said question by deposing that as the spot panchanama was conducted during daylight, : 29 : there was no occasion for him to observe whether light/bulb was fixed to the electrical pole or not and thus he has not given answer about the existence or non- existence of the electrical light. In this case, an Assistant Engineer was asked by the Police Inspector, Bruce Pet Police Station, to go to the spot and draw a sketch of the spot. The Assistant Engineer, P.Madhusudhan Rao, who is examined as P.W.7, in his examination-in-chief, has simply deposed that on 13.04.2011, one Honnur Babu, H.C.No.127, APMC Yard Police Station, took him to the spot near the APMC Yard area at about 3.00 p.m. on Bellary-Bangalore road and showed the spot and that he prepared the spot sketch as per Ex.P.13, which bears his signature as per Ex.P.13(A). During the course of cross- examination, this P.W.7 has deposed that he has noted electrical pole in his sketch; he has not mentioned whether service wire was dragged and existence of the street light. So it goes to show that there is no specific mention even by the Assistant Engineer in his rough : 30 : sketch-Ex.P.13 about the existence of the light/bulb to the electrical pole. In this connection, I have also perused the four photographs which are produced and marked as Exs.P.3 to P.6. Perusing these photographs, it is not doubt true that in the first photograph i.e., Ex.P.3 an electrical pole is visible, which is exactly behind the police officer and it is also clearly visible that there is no electrical light/bulb fixed to the said pole. In the next photograph-Ex.P.4, a telephone pole can be seen and so also in Ex.P.5. So, in these two photographs - Exs.P.4 and P.5 and also in Ex.P.6, it is not seen that the electrical light/bulb having been fixed to the said poles. In this connection, let me refer to the evidence of the Investigating Officer, who has been examined as P.W.13. During the course of his cross-examination, P.W.13 he has mentioned that he has not mentioned in the spot panchanama that the electrical pole was having the streetlight. So, even looking to the evidence of P.W.13- Investigating Officer, he admitted that there was no light : 31 : fixed to the electric pole. So, the evidence of this witness, if referred to, there is no cogent and satisfactory material placed by the prosecution regarding the light/bulb having been fixed to the electrical pole and even referring to the spot mahazar Ex.P.2, there is a mention that at the distance of 15 mts from the spot there was an electrical pole. There is no material placed by the prosecution even to the effect that the electrical pole is at a distance of 15 mts from the spot and it was also having the streetlight and that streetlight was so sufficient that one could easily identify the persons during the night. Looking to all these materials placed by the prosecution both by way of oral and documentary evidence, I am of the opinion that the prosecution has not placed cogent and acceptable material to establish the fact that on the date and time of the alleged incident i.e., on 06.10.2010 at 8.00 p.m. when the complainant had been to the said place, there was sufficient light so as to enable the complainant to have the identity of each of the accused : 32 : persons, who are five in numbers. The contention of prosecution that when the complainant was called to the police station, after the accused persons were arrested in connection with another case of murder, at that time, the complainant identified the accused persons. The identification before the police or in the police station cannot be accepted as the identification unless and until a test identification parade is conducted in accordance with Section 9 of the Evidence Act. Therefore, the prosecution failed to establish this fact.
12. Coming to the next aspect, the case of the prosecution, as alleged in the complaint by P.W.1, is the phone conversation between P.W.1-complainant and the accused by using the mobile phone bearing number 9481662783 to the mobile phone of the complainant bearing number 9972866055. It is the case of the complainant that the accused persons threatened him and asked him to arrange for Rs.2,00,000/- and he has : 33 : to come to the place as told by the persons, who would call him over the phone, and if not, his daughter would be murdered. Looking to the evidence of the complainant, during the course of the trial, he has deposed that nearly 12 to 13 calls were there from the accused persons and he has spoken to the accused every time whenever the accused called him. To establish this fact, the prosecution has to place the material in respect of the two mobile phones and about the sim cards used in the mobile phones. Regarding mobile phone number 9481662783 is concerned, it is the case of the prosecution that accused No.1 threw this mobile in the drain water and so also the mobile sim card. The police officers made an attempt to search the sim card. However, only the mobile set was traced and not the sim card. Looking to the evidence of the prosecution witnesses, it has come on record that it is the police officers who searched for the sim card and mobile phone in the drain and the search was not made by the : 34 : accused persons. Even looking to the evidence of P.W.13-Investigating officer, on page No.6 of his deposition, he has deposed that "It is true that, I have not mentioned the name of photographer anywhere in the charge sheet. I have not stated that, 9972866055 was the SIM car belonged to Pavan Kumar. I have not produced any documents securing information that in whose name the said SIM card is standing. I have not issued any notice to CW-1, 3 & 4 on 09.02.2011 while securing their presence in Bruce pet PS. To search the SIM card, 5 accused, 2 panchas, myself, 3 police personals on the departmental vehicle we went to the spot. I do not remember the number of the Jeep, witness states that, it was attached to police station. I have not recorded the statement of the police officials who had searched the SIM card at the drainage." I have viewed the video in the CD, which was played in the open Court, but it is altogether different. Looking to the video in the CD, it is seen that none of the police officers went into the drain water to : 35 : search the sim card of his mobile, and efforts to search the sim card were made only through the accused persons, which is also clearly visible in the video. Therefore, the evidence of the prosecution witnesses that it is the police officers, who made the efforts to search the sim card in the drain water is completely a false case. Therefore, looking to the materials placed on record and what is viewed from the CD, which was played in the presence of the learned counsel on both the sides, the search with regard to sim card is not at all made by the police personnel by going into the drain water as they have deposed in the evidence on oath. Therefore, the contention of the prosecution that in spite of the search made by the police officers, they were not able to find out the sim card of the mobile phone of accused No.1 cannot be accepted. It is no doubt true that while viewing the CD, it was seen that the accused persons were taken to the said place and they were asked to go into the drain water to make a search for the sim card and so also the : 36 : mobile phone and that only the mobile phone was found which was handed over to the police and not the sim card. Apart from that, a conversation is said to have taken place in between accused No.1 and the complainant in respect of both the mobile phones and the sim card and it is the duty of the prosecution to place satisfactory and acceptable material as to in whose name the sim cards stand. In this connection, the prosecution has examined P.W.8-Praveen Kumar, who is the police constable. P.W.8 has deposed in his examination-in-chief, that the Inspector, Bruce Pet Police Station had sent requisition to the SP Bellary for furnishing call details pertaining to number 9481662783; it was BSNL number and the incoming and outgoing call details were sought; subsequently, they sent request letter to BSNL service provider to furnish the details; through e-mail they furnished the call details; informing the same to their nodal officer the call details were furnished to the concerned police station; : 37 : call details for the period from 15.11.2010 to 01.01.2011 was furnished; the e-mail received from BSNL was again transferred to the concerned police station. In the cross- examination by the defence, P.W.8 stated that pertaining to two mobiles, the call details were furnished; they would furnish only numbers to the service provider of BSNL in-turn the particulars i.e., in whose name that number is standing, address and other details will be furnished by them, basing on that he had stated in his statement that, mobile bearing number 9972866055 belongs to Pavan Kumar and No.9481662783 belong to Mohammed Idris; they forwarded the requisition and particulars sought of both the mobile numbers to the service provider BSNL. P.W.8 admitted the suggestion as true that between the period 15.11.2010 to 01.01.2011 of the above two mobile numbers other contacts made and received would also be found. So looking to the evidence of P.W.8, Police Constable, other details were not furnished as to in whose names the mobile phones : 38 : were standing i.e., whether in the name of Pavan Kumar (the complainant) or accused No.1-Mohammed Idris. Another witness P.W.9-Ajith Kumar, who is a Computer Operator in Nemadi Kendra, Bellary, deposed in his evidence that previously he possessed the BSNL SIM No.9481662783 which was standing in his name; the said mobile was lost in Taluka Office; he approached the BSNL, and they told him to lodge a complaint, and when he went to police station, complaint was not received; he had not tried to get duplicate SIM of the very same number and took new number SIM BSNL 9449226631 and continued to use it. Therefore even looking to the evidence of the prosecution witnesses and even according to the prosecution, one thing is clear that sim card of both the mobile phones were not ascertained by the police i.e., one sim was standing in the name of Pavan Kumar and another sim in the name of accused No.1-Mohammed Idris. In the absence of production of sim card of accused No.1, only on the basis of the oral : 39 : evidence of the complainant that he received phone call from 9481662783 mobile number to his mobile phone and when it is seriously disputed by the defence, during the course of cross-examination of the witnesses, the said allegations made in the complaint cannot be said to be proved, and unless and until satisfactory material is placed in that connection, the Court cannot accept whatever that is stated by the complainant in his complaint, particularly, when the prosecution has not been able to produce the sim card before the Court. Looking to the prosecution evidence even the names of the persons in whose names the sim cards were standing was also not furnished under such circumstances, the prosecution has failed to establish the fact that the complainant received the phone call to his mobile phone from the mobile phone of accused No.1.
13. Looking to the evidence of P.W.13 in this regard, P.W.13, in the examination-in-chief at para : 40 : NO.5, has deposed that he recorded the statements of C.W.7-Gadhilingappa and C.W.8-Khasim Sab; on 09.0- 2.2011, accused No.1-Mohammed Idris and accused Nos.2 to 5 took police and panchas to Millerpet Govindappa's house and showed road side drainage where the SIM card was thrown; there, their police staff searched in the drainage for SIM card but they did not succeed in it; there, he effected the panchanama Ex.P.-7 it bear his signature Ex.P.7(D); thereafter, he secured Pavan Kumar to the police station and also panchas C.W.4-Deepak and C.W.3-N.Ramesh to the police station and materials seized pertaining to this case was showed to him, Pavan Kumar identified the amount as well as the yellow bag and his electoral card; he effected panchanama to that effect which is marked at Ex.P.8, it bear his signature Ex.P.8(D); he recorded the further statement of Pavan Kumar and statement of S.Laxmana setty.
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14. Regarding panchanama that was conducted and securing panch witnesses, the evidence of P.W.13 is important. On page 9 of the deposition of P.W.13, during the cross-examination by accused No.2, P.W.13 has deposed that he cannot say the distance of the residence of the panchas from Brucepet Police station; it is true that, Brucepet police station is located in the heart of the city; it is true that there are several shops, establishments and availability of large number of people around the Brucepet Police Station; it is true that Sanjeev Kumar and Deepak belong to very same community to which the complainant belong to in the case; it is true that, Millerpet, Janda Katta area is a residential area, number of houses are there; and that he had not tried to secure independent panchas of the said locality at the time of recovery panchanama. So, the Investigating Officer himself has admitted in his cross- examination that he has not secured any independent witnesses in the case. So, when this is the evidence of : 42 : P.W.13-I.O., it has to be seen what importance can be given to the panchanama said to have been drawn by the I.O. Looking to Section 102 of the Code of Criminal Procedure, respectful persons in the locality have to be secured as panch witnesses while conducting panchanama. It is the admitted case of the prosecution that too through the evidence of P.W.13-I.O. that many residential houses, shops and other business establishments are located and good number of people are available at that place and, even then, the panch witnesses i.e., Sanjeev Kumar and Deepak were secured as panchas by the Investigating Officer and in his evidence, the Investigating Officer has stated that the said panch witnesses belong to the community to which the complainant belong. This goes to show that the Investigating Officer has not done his duty promptly in selecting the panch witnesses to make a fair investigation in the matter.
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15. The prosecution also relied upon the voluntary statements said to have been given by the accused persons and under those voluntary statements and at the instance of each of the accused persons, amount is said to have been recovered and on the basis of the said material, the prosecution want to prove that the amount of Rs.1,60,000/- robbed by the accused persons from the complainant was also the amount out of the same. In this connection, it is, no doubt, true that the prosecution relied upon Ex.P.12(1) pertaining to recovery panchanama in this case, but the accused were arrested in connection with another crime number with regard to the murder case of one Pankaj Jain and in that case, when the accused said to have given voluntary statements, on the basis of which the recovery proceedings are said to have been conducted and the two CDs, as submitted by the counsel for the accused in this case, are pertaining to this case. The said two CDs were played in the open Court. The panchanama relied upon : 44 : i.e., Ex.P.12(1) in this case, which is the running panchanama of Ex.P.12, pertains to another case in the murder case of Pankaj Jain. I have perused the said mahazar proceedings, it is continuing mahazar proceedings whereunder the amount is said to have been produced by the accused one after another by taking the police to their residences. Looking to the time of the mahazar proceedings, it is shown that recovery of the amount from the houses of the accused persons is during night hours i.e., the recovery proceedings started in the early morning at 1.30 a.m. and it concluded at 5.50 a.m. But, when the videos in the CDs were viewed by this Court, they clearly showed that the recovery proceedings were conducted during daytime. Therefore, even with regard to the timings and recovery proceedings are concerned, the prosecution has not correctly mentioned the time in the mahazar proceedings. Apart from that, looking to the evidence of P.W.13, the Investigation Officer in this case, he only accepted the : 45 : voluntary statement; he has not deposed on oath and he has not stated what are the words of each of the accused persons in connection with the voluntary statement. Unless and until the very words are written by the Investigating Officer, simply getting the voluntary statement marked before the Court, the Court cannot rely upon such evidence. What is stated by each of the accused has to be deposed by the Investigating officer on oath, and then only the Court can take into consideration the voluntary statement. The Court also has to take into consideration whether the voluntary statement relied upon is in accordance with the provisions of Section 27 of the Indian Evidence Act and whether the Court can rely upon such voluntary statement. I have perused the evidence of the Investigating Officer in this case. The I.O. has simply got the voluntary statement marked in evidence stating that these are the voluntary statements given by accused Nos.1 to 5 and therefore, the same is not sufficient for : 46 : this Court to hold that the voluntary statements are established by the prosecution in accordance with the procedure contemplated under Section 27 of the Indian Evidence Act. As I have already observed above, the prosecution has not placed any acceptable material even with regard to the timings of conducting such proceedings under Ex.P.12 and even with regard to recovery of the amount in the case.
16. It is no doubt true that it is the further case of the prosecution that on the date of the incident, the accused not only robbed the amount of Rs.1,60,000/-, but they also put their hands into the shirt pocket of the complainant, and snatched the electoral ID card, some changes, and also an yellow colour bag containing Anajaneya photo, which were also recovered, and it is also the case of the prosecution that when the complainant went to the police station, he identified the yellow colour bag and the voter's ID card and they were : 47 : also seized in the presence of the panch witnesses. With regard to the colour of the said bag also, it is the version of the prosecution in the evidence of P.W.13, at para 3 of the deposition, that at the time it was seized from the respective house of the accused, one parrot green colour cover was wrapped and on 09.02.2011, complainant in the police station has identified the bag as well as the notes bundles. The said parrot colour cover was not produced in this case. So, when it is the evidence of P.W.13 that one parrot green colour cover was wrapped and it is recovered which is identified by the complainant as his bag, there was no reason for the Investigating Officer for not producing the said colour bag before the Court. The IO himself has admitted that he has not produced the said parrot colour cover before the Court. Even with regard to the colour of the bag, there is no consistency in the evidence of the prosecution witnesses. Complainant as per the complaint averments, mentioned that it was an yellow colour bag, but looking to the : 48 : evidence of the prosecution evidence, it has come on record that it was yellow colour bag with red stripes and as per the evidence of P.W.13 it was parrot green colour bag. Therefore, the contentions of the prosecution that the amount was kept in the yellow colour bag; that the said amount was robbed by the accused persons, which amount was said to have been recovered from them; and that the complainant, on seeing them, was able to identify that it was his bag and that the amount was his money, cannot be accept at all. Even with regard to the evidence of P.W.6, during the cross-examination, on page no.6 of the deposition, when M.O.6 bag was confronted, P.W.6 by touching the said bag stated that it appeared to be new. P.W.6 also deposed that it may be true that such bags were available in the market and shops. In view of such evidence of the prosecution i.e., P.W.6, the police planting the said bag as one of the prosecution material cannot be completely ruled out by the Court. Even with regard to the panch witnesses also, : 49 : the evidence of P.W.6 is material. In the cross- examination by the learned counsel for accused No.2, P.W.6 has deposed that it is true that C.W.2-Sanjeev Kumar, C.W.4-Deepak, One Praveen Jain and C.W.10- Ritish are of his community; from his house, Brucepet police station is situate at a distance of half furlong; it is true that C.W.10-Ritish is running Mahendra Electrical Shop; it is true that one Praveen Jain is running Moonlight Electrical Shop, wholesale dealer in Bellary. To a question put to this witness that, can he say the specific landmarks of the houses of accused, P.W.6 stated that accused Nos.1 to 5 are residing in Janda Katta area Millerpet. The further evidence of P.W.6 is also relevant for appreciating the evidence of the prosecution witnesses regarding the voluntary statement said to have been given by the accused to the police who relied upon the said voluntary statements to establish that the places from where the notes were recovered those places are exclusively under the control of the said : 50 : accused persons and there is no possibility of access to the said place except by any member of their family or other accused persons. But, here the evidence of P.W.6 goes to show that when the accused took them to their house, he has not enquired and ascertained whether they are the owners of the house or to whom the houses belong to; it is true that, near by the Brucepet police station and also opposite to it there were number of shop establishments some are run by their community people. Therefore, to show even the place from where the amount is said to have been recovered from each of the accused, those houses are exclusively belonging to the accused only and in that connection also, the prosecution has not produced house extract details to know whether those house were standing in the names of each of the accused persons and secondly, to know as to who are the other members of the family residing in the said houses or whether it exclusively belongs to the accused and accused only. In the absence of any such : 51 : materials before the Court during the course of the trial, only on the basis of the voluntary statements of the accused persons and on the ground that the accused persons took them to their houses and produced some notes, it cannot be accepted that there is a worth believable evidence placed by the prosecution even for the recovery of the said amount.
17. Apart from going through the materials and my above observation, even the conduct of the complainant and other family members is also important in this case. Looking to the contents of the complaint, nowhere the complainant has mentioned that on 05.12.2010 when he received the phone message asking him to arrange for Rs.2,00,000/- and immediately he has to bring it to the place told by them and even on the next day i.e., on 06.12.2010, when again he was threatened, there is no mention in the complaint that immediately he brought this fact to the notice of his father and other family : 52 : members. But looking to the evidence of P.W.3 father-in- law of the complainant, during the course of trial it can be noticed that this fact of threat put to P.W.1 by the appellants/accused and the complainant leaving on 06.12.2010 with the amount was very much within the knowledge of the father-in-law of the complainant and all other members of the family and all have admitted during the course of their evidence that whenever one receives such threatening calls, it would be their duty to inform the police which they have not admittedly done in this case and they waited for a period of more than two months and their case is that when they came to know that police arrested some culprits and they have recovered amount, then the complainant went to the police station and identified the culprits. It is not the case of the complainant that he received some intimation from the police station, but he claims that he went to the police station. The police have also mentioned in their evidence that they have not sent any police constable to : 53 : the house of P.W.1 asking P.W.1 to come to the police station. Therefore, even with regard to that also the material on the side of the prosecution is not said to be satisfactory as to how the complainant came to know about the incident. The family members including the complainant were not having the knowledge to file the complaint immediately and to face the consequences and how all of a sudden they have taken a decision after two months to lodge a complaint in this case. It is the consistent defence of the accused during the course of cross-examination that no such incident has taken place only to help in another sessions case of Pankaj Jain and to help this type of proceedings came to be filed during the course of trial. When that is so, it is the duty of the prosecution to place acceptable material, how the complainant came to know about the police have arrested some of the culprits who have committed robbery and how they went to the police station. It is no doubt true that it is the case of the complainant that he : 54 : has identified the accused persons in the police station so also before the Court. It has come on record that on previous occasions, the complainant and other family members have not seen these accused persons. I have also discussed about the existence of the light at the spot. In view of these things, the investigating officer conducting test identification parade to establish the clear identity of the accused was most essential in this case which was not done. Therefore, the identity before the police as well as before the Court, for the first time, is no identity at all. Hence, considering all these aspects of the matter, the learned Sessions Judge not at all taken into consideration these aspects into consideration and he wrongly came to the conclusion that the prosecution proved its case beyond all reasonable doubts. Looking to the prosecution material both oral and documentary, a reasonable doubt arises in the mind of the court about the prosecution case and mainly about the identity of the accused persons. Hence, the : 55 : benefit of doubt will have to be given to the accused. The judgment and order of conviction passed by the concerned Sessions Court is not sustainable in law.
18. Accordingly, the appeal is allowed. The judgment and order of conviction passed by the Sessions Court in respect of the appellants/accused is hereby set aside and the accused persons are acquitted from all the charges leveled against them in the present case.
The prison authorities are hereby directed to release accused Nos.1 to 5 forthwith if they are not required in any other case.
Since it is brought to the notice of the Court during the course of the arguments that another murder case of Pankaj Jain is pending trial and mahazar drawn in that case was adopted in this case as Ex.P.12(1), whatever observation made by the Court in the body of the judgment are pertaining to this case only and the : 56 : concerned Sessions Judge before whom the murder case of Pankaj Jain is pending, should not be influenced by any of the observation made in this judgment and he shall independently assess the matter and proceed with the matter in accordance with law.
The fine amount deposited, if any, by the accused be refunded to them.
The original records secured be sent back to the Trial Court immediately.
Sd/-
JUDGE Kms