Karnataka High Court
Mahammad Shariff vs State Of Karnataka Through on 22 June, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22 nd
DAY OF JUNE, 2018
R
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR.JUSTICE B.A. PATIL
CRIMINAL APPEAL NO.612/2014
c/w
CRIMINAL APPEAL NO.544/2014
IN CRIMINAL APPEAL NO.612/2014
BETWEEN:
Mahammad Shariff
S/o Syed Sha
Aged about 29 years
R/at. 3rd Cross, 1st Main
GKW layout, Peenya 2nd Stage
Bangalore-560 058.
... Appellant
(By Sri B.N. Jagadeesh, Advocate)
AND:
State of Karnataka
through Chandra Layout Police Station
Represented by State Public Prosecutor
High Court of Karnataka Building
Bangalore-560 001.
... Respondent
(By Sri Vijayakumar Majage, Addl. SPP)
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This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the order
dated 24.04.2014 passed by the Presiding Officer,
Fast Track Court-XIII, Bangalore City in
S.C. No.953/2009 convicting the appellant/accused
for the offences punishable under Sections 397, 302
r/w Section 34 of Indian Penal Code.
IN CRIMINAL APPEAL NO.544/2014:
BETWEEN:
Hrushikesh @ Shastri
S/o late Janakiram
Aged about 25 years
R/at. III Cross, I Main, GKW layout,
Shambhavi Nagar, Peenya II Stage
Bangalore-560 058.
... Appellant
(By Smt. K.N. Nagarathnamma, Advocate-Absent
Sri B.Anand, Amicus Curiae)
AND:
State of Karnataka
by Airport Police Station
Bangalore-560 017.
... Respondent
(By Sri Vijayakumar Majage, Addl.SPP)
This Criminal Appeal is filed under Section
374(2) of the Cr.P.C praying to set aside the order
dated 24.04.2014 passed by the Presiding Officer,
Fast Track Court-XIII, Bangalore City in
S.C. No.953/2009 convicting the appellant/accused
for the offences punishable under Sections 397, 302
r/w Section 34 of Indian Penal Code.
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These Criminal Appeals coming on for hearing
this day, B.A.PATIL, J. delivered the following:-
JUDGMENT
These two appeals are preferred by accused Nos.3 and 2, challenging the judgment and order of conviction and sentence dated 24/25.4.2014 passed by the XIII Additional Fast Track Court, Bangalore City in SC.No.953/2009.
2. Brief case of the prosecution is that on 13.3.2009 at about 10.45 p.m. when the deceased was talking over phone in front of Popular Car Center in 3rd Cross, Maruthinagar, Nagarabhavi, Bengaluru by parking his motorcycle bearing Regn.No.KA-02-EL-8878, all the three accused persons came on RX motorbike bearing Regn.No.KA-02-EF.3095 and snatched the mobile phone of the deceased Somesh and at that time accused No.1 inflicted injury with knife on right side of the neck and backside of left thigh, accused No.2 also inflicted injury below the right knee and caused -4- grievous injuries and took away Nokia mobile phone after boarding the motorcycle which they have brought and the same was ridden by accused No.3. It is further case of the prosecution that the said intimation was given to the complainant who went to the hospital, where he came to know that the injured Somesh has succumbed to the injuries. He went to Chandralayout Police Station and filed a complaint. On the basis of the complaint at Ex.P1, a case was registered in Crime No.81/2009 for the offence punishable under Section 302 r/w. 34 of IPC. After completion of investigation, the investigating agency laid the charge sheet against the accused persons. Committal Court committed the case and thereafter the Sessions Court took cognizance and after hearing both the sides framed the charge which was read over and explained to the accused persons, they pleaded not guilty and as they wanted to face the trial, the trial was fixed. -5-
3. In order to prove its case, the prosecution examined 26 witnesses and got marked 27 Exhibits with sub-markings and 18 Materials Objects. After closure of the evidence of the prosecution the statement of the accused persons was recorded under Section 313 of Cr.P.C. by putting incriminating materials against them, but they denied the same. Accused Persons have not examined any witnesses, but got marked one Exhibit at Ex.D1. After hearing both sides, the trial Court passed the impugned judgment and order convicting the accused persons for the offences punishable under Sections 397, 302 r/w. Section 34 of IPC. Assailing the same, accused No.3 and 2 are before this Court.
4. The main grounds urged by Sri B.N.Jagadessh, learned counsel for accused No.3, appellant in Criminal Appeal No.612/2014 are that earlier the FIR was registered against unknown -6- persons and the only allegation against accused No.3 was that he was only riding the motorcycle and there were no overt acts attributed against him. Even the recovery of the motorcycle which is said to have been done at the instance of accused No.3 is not the motorcycle which was used for commission of alleged offence. Even though such material is available before the trial Court, the trial Court has wrongly convicted accused No.3. He further submitted that though PW.13, Head Constable and PW.15 the wife of PW.13 said to have seen the accused persons, immediately they have not intimated the said fact to the Police Station which is at a distance of less than one kilometer. He further submitted that the address of PWs.13 and 15 given in the statement recorded under Section 161 of Cr.P.C. and the address given at the time of deposition are different. At the first instance they have stated at 1st Main and at the time of deposition, they have given the address as -7- 5th Main, under such circumstances, it clearly goes to show that their house is not situated near the place of incident and there is no chance of they seeing the alleged incident. He further submitted that PW.15 was sitting outside the house along with some of her friends and PW.13 was inside the house and PW.13 has come out only after hearing the screaming voice of PW.15. PW.15 has reached the place prior to PW.13. She has deposed that she has not seen the face of the accused persons, then under such circumstances, reliance of the evidence of these witnesses identifying the accused persons for the first time in the Court without there being Test Identification Parade is not safe and credible to convict the accused persons. The presence of these witnesses itself is doubtful. The recovery of motorcycle at the instance of the accused is not at all proved. The Investigating Officer has clearly admitted in his evidence that the motorcycle which has been seized is not pertaining to this case. -8- Under such circumstances, even the recovery of the motorcycle has also not been proved in accordance with law. He further submitted that though there were 7 to 8 persons present near the place of incident, they have not been examined by the Investigating Officer for the reasons best known to them. He further submitted that in front of the house of PW.13 two more persons were also present and they have also not been cited as witnesses, which clearly goes to show that investigating agency has deliberately avoided independent witnesses and planted their own witnesses. He further submitted that the recovery of mobile phone said to have been done under Ex.P6 is also not tallying with IMEI number of the mobile phone of the deceased. The said phone was one with Murali and the same has been recovered at the instance of accused No.1. There is no material to show as to when and how the said phone was possessed by the said Murali. He further -9- submitted that seizure of articles were not produced by the prosecution so also the report of FSL and serology report. The said lacuna directly hits the case of the prosecution. He further submitted that the prosecution has utterly failed to prove the guilt of the accused. The trial Court without proper appreciation of the facts and law has wrongly convicted the accused. Hence, he prayed to allow the appeal by acquitting the accused.
5. Sri B.Anand, learned amicus curiae appearing for accused No.2, appellant in Criminal Appeal No.544/2014, supporting the arguments of the learned counsel for accused No.3 submitted that the evidence of the prosecution clearly goes to show that prior to the marriage, deceased was having love affair with a girl and even after his marriage the extra-marital affair was continued. The evidence which has been produced also indicates the fact that the deceased and his friend
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were consuming alcohol and at that time he received the phone call from the said woman and thereafter he went out and immediately thereafter the alleged incident has taken place. Under such circumstances, commission of the offence from the persons who called the deceased also cannot be overruled. He further submitted that even though there is no worth believable material before the trial Court, it has wrongly convicted the accused persons. On these grounds, learned counsel appearing for the appellants-accused No.3 prayed for allowing the appeal by setting aside the judgment and order of the trial Court and to acquit the accused persons.
6. Per contra, Sri Vijayakumar Majage, learned Additional SPP appearing for the respondent-State has vehemently argued by submitting that failure to hold test identification parade does not make the evidence of identification
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in court inadmissible, rather the same is very much admissible in law. In support of the said contention, he relied upon a decision of the Hon'ble Apex Court in the case of Mulla & another Vs. State of Uttar Pradesh, reported in (2010)3 SCC
508. He further submitted that PWs.13 and 15 are the main witnesses who have identified the accused persons at the time of alleged incident and even subsequently during the course of investigation they have also identified the accused persons, then under such circumstances the identification of the accused persons at the time of alleged crime has been proved by the prosecution. He further submitted that when once there is a consistent evidence of the eye witnesses regarding the commission of offence, the Court can rely upon the same and to convict the accused. He further submitted that the recovery of the motorcycle and the knife at the instance of accused No.1 and the motorcycle which was used for commission of
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offence by accused No.3 has also been proved by the prosecution. He further submitted that the mobile phones robbed by the accused persons from the possession of the deceased have also been recovered, under such circumstances, the case of the prosecution is to be believed and the accused persons are liable to be convicted. The trial Court after considering the entire evidence and material on record has rightly convicted the appellants- accused and there are no good grounds made out by the appellants to interfere with the impugned judgment and order. Hence, he prayed that the same deserves to be confirmed by dismissing the appeal.
7. We have carefully and cautiously gone through the grounds urged in appeal memos and submission made by the learned counsel for the parties and also the evidence and the documents produced in this behalf. As could be seen from the
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records it is not in dispute that the death of the deceased Somesh is homicidal death. The only question which is for consideration by this Court is that whether the trial Court has properly and correctly appreciated the evidence while holding that the accused are guilty of the alleged offence. In order to prove its case, the prosecution has mainly relied upon the evidence of PWs.13 and 15. PW.13 is the Head Constable who has deposed that on 13.3.2009 after finishing his day duty, he came to his house and at about 10.30 p.m., his wife and children were sitting outside the house as it was summer and there was too hot inside the house. At that time, his wife PW.15 made hue and cry and called him saying that three persons were assaulting one person who was standing on the road and asked him to come soon. Immediately, he came out and noticed that in front of Ganesh Timbers at corner, a bajaj splender vehicle was parked and a person was sitting on the said vehicle
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and two persons were assaulting the said person and out of them one person was assaulting right leg and the person who was standing on the right side assaulted with a weapon on the right leg and another person assaulted on the left leg with a sharp weapon and when he went by shouting, another person who was sitting on the motorbike took these two persons and they all went on the motorbike towards Nagarabhavi. He further deposed that they provided water to the injured and sent him to Maruthi Nursing Home in an auto. The bajaj splender vehicle bearing Regn.No.KA-02- EL-8878 lying there was belonging to the injured Somesh. He further deposed that he has seen the incident in the street light. Subsequently he saw the said persons in the Police Station and they are the same persons before the Court. During the course of cross-examination, he has admitted that during night hours, so many persons and vehicles move on the said road and at a distance of 200
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meters, there is an autorikshaw stand and there are so many residential houses situated in the 5th Main Road. He further admitted that at the time of galata he was having a mobile phone and along with him his son also came to the place of incident and by the time they went there 7 to 8 persons were there and vehicles and public also gathered. It has been elicited that he was knowing that the accused persons had come on the motorcycle and he did not give any information to the police immediately after the incident and he attended his duties on the next day. He further deposed that apart from himself and PW.15, other independent witnesses were also present. He further deposed that prior to this case he was not knowing who is accused No.3. He further deposed that he was knowing as to which number he has to make a call during emergency and he was also knowing the phone number of Chandralayout Police Station. He
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was also having the knowledge that in cognizable cases, immediately he has to inform the police.
8. PW.15 has also reiterated the evidence of PW.13. During the course of her cross- examination, she admitted that apart from herself two more women were sitting outside the house and Chandralayout Police Station is at a distance of one kilometer from their house and they have not informed Chandralayout Police on the same day. On the same day police had come to the place of incident and enquired with them.
9. On going through the evidence of these two witnesses, though the prosecution has examined them as eye witnesses, as could be seen from the evidence of PW.15, she has deposed that by the time they went to the spot, all the three accused persons went on motorbike and she has given only the description about the three accused persons.
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She has further deposed that the accused persons were not known to them.
10. It is the first contention of the learned counsel for the appellants-accused that at the time of evidence PW.13 has given the address as 1st 'A' Main Road, whereas in the statement recorded before the police he has given the address as 5th Main Road and as such the presence of PWs.13 and 15 itself is doubtful and if they were residing in 5th Main Road, then under such circumstances, there is no chance of they seeing the alleged incident. On going through the statement recorded under Section 161 of Cr.P.C. and evidence, there is inconsistency with regard to address of these witnesses. If it is taken as 5th Main Road, then under such circumstances, the house of these witnesses is not near the place of incident. PW.13 has deposed that he does not know who is accused No.3 prior to the case in question. If really he has
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seen accused No.3 sitting on the motorbike at the time of incident, he would have deposed to that effect.
11. Be that as it may, the case of the prosecution is that PW.15 was sitting along with her children and two more ladies and only after hearing screaming voice of PW.15, PW.13 went to the place of incident. However, if we analyze the evidence of PW.15 she has deposed that by the time they went to the place, all the three accused persons went on the motorbike. When PW.15 is the first person who has seen the accused persons assaulting the deceased and PW.13 also went along with PW.15, under such circumstance, PW.13 seeing the accused persons is also too remote. In that light, these two witnesses cannot be treated as an eye witnesses who said to have seen the accused persons.
12. When PWs.13 and 15 have not clearly seen the accused persons and PW.15 has given only
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the description of the accused persons who were assaulting the deceased, then under such circumstances, the contention of the learned counsel for the appellants that the Investigating Officer ought to have held the test identification parade is having force. In order to substantiate this contention, learned counsel for the appellants have relied upon the decisions of the Hon'ble Apex Court in Budhsen & another Vs. State of U.P. - 1970(2)SCC 128; Rameshwar Singh Vs. State of Jammu & Kashmir - 1971(2) SCC 715; and Ravi @ Ravichandran Vs. State Rep. by Inspector of Police - (2007)15 SCC 372. On the other hand, learned Additional SPP has relied upon the decision in Mulla & another Vs. State of Uttar Pradesh (cited supra)
13. We have cautiously and carefully gone through the ratio laid down in all the decisions quoted by the learned counsel appearing for both
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parties. It is no doubt true that substantive evidence of identification of an accused is the one made in the Court even though no test identification parade has been held. But it is further observed that when the FIR has been lodged against unknown persons and the said persons were not known and the witnesses were also not sure whether they had seen the accused persons prior to the incident in question, then under such circumstances, test identification parade in terms of Section 9 of the Indian Evidence Act is necessary as held by the Hon'ble Apex Court. On analyzing the evidence of the Investigating Officer, he has not stated anything as to why he did not hold the test identification parade immediately after apprehension of the accused persons. PW.13 has deposed that after the apprehension, he came to know the names of accused persons as Manjunatha, Rishikesh and the raider of the motorcycle Mohammed Sharieff. During the course of his
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cross-examination, he has deposed that when he was working, he came to know that the accused persons have been arrested and at that time he was also present in the Police Station on duty then under such circumstances, the identification of the accused persons in the Court is not for the first time who has already identified and was knowing the accused persons. The purpose of holding test identification parade is to test the veracity of the witness in regard to his capability of identifying the persons who were unknown to him and the witnesses were not very sure as to whether they had seen the accused who is before the Court and he is the same person who was present at the time of alleged incident. On going through the evidence of PWs.13 and 15 they have not deposed that they were acquainted with the accused persons or they were knowing them prior to the alleged incident or they have seen the accused persons from the nearest distance. Under such circumstances, not
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holding the test identification parade in this case will be fatal to the case of the prosecution.
14. Even as could be seen from the conduct of PW.13 who is a Head Constable and he has seen the incident at about 10.30 p.m. and Chadralayout Police Station is at a distance of one kilometer and he was also knowing that if a cognizable offence has been taken place, same has to be intimated to the police. Being a Head Constable admittedly in his presence the alleged incident has taken place he has not intimated the police about the incident though he was having a mobile phone with him and he was knowing the phone number of the Police Station. In that light, the conduct of PW.13 is also not natural and probable so as to accept the fact that he was present at the time of the alleged incident and he has seen the accused persons assaulting the deceased with deadly weapons. In that light, the evidence of PW.13 does not repose
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any confidence of this Court. Even as per the evidence of PW.15, the wife of PW.13, she has also not seen the accused persons and by the time she went to the place, the accused persons went on the motorcycle, then under such circumstances, her evidence also does not appear to be trustworthy so as to bring home the guilt of the accused persons beyond all reasonable doubt.
15. Even though PW.15 has deposed that herself along with two more women were sitting in front of the house along with her children, their statements have not been recorded and they have not been examined before the Court for the reasons best known to the prosecution. In this behalf, there is a lacuna on the part of the investigation agency.
16. The next contention of the learned counsel for the appellants-accused is that though the recovery is said to have been done at the instance
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of accused No.3 as per Ex.P5, during the course of cross-examination, the Investigating Officer-PW.26 has clearly admitted that Yamaha motorcycle seized under Ex.P5 is not pertaining to the present case and no recoveries have been made from accused No.3. When the Investigating Officer himself has deposed that the motorcycle which was recovered is not pertaining to this case and no other articles have been seized from accused No.3, then under such circumstances, there was no recovery made in so far as accused No.3 is concerned. The records also reveal that the Investigating Officer has deposed that after apprehension of accused No.3 on 22.3.2009 he has recorded their voluntary statement, wherein accused No.1 has stated that he would produce the mobile phone N-70 and the same was seized by drawing a mahazar at Ex.P6 and the said mobile phone was having IMEI Number 355655000359770. But, as could be seen from the seizure mahazar at Ex.P6, though the Nokia mobile
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phone N-70 said to have been seized by the police from the possession of accused No.1-Manjunatha, IMEI number pertaining to the said mobile has been mentioned in Ex.P6 as 356294014237640. On going through the evidence of PWs.26 and Ex.P6 under which the recovery of the mobile phone which is said to have been done with reference of IMEI number, there is inconsistency. Under such circumstances, even the recovery of mobile phone from accused No.1 is also not proved by the prosecution with worth believable material. Even as could be seen from the evidence of PWs.9, 4 and other witnesses though they have deposed with regard to recovery of gold articles, in the instant case it is not the case of prosecution that the accused persons have also snatched the gold articles from the deceased. It is only the case of the prosecution that they have snatched the mobile phone. Even assuming that recovery of gold articles has been seized as per Ex.P8, the said
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recovery is not pertaining to this case and in that light it does not help the case of the prosecution so as to bring home the guilt of the accused persons, beyond all reasonable doubt.
17. We have carefully and cautiously gone through the entire evidence on record, including the Exhibits and the judgment and order passed by the trial Court. Though the trial Court has considered all the aspects, while appreciating the evidence of PWs.13, 15 and 26 it has come to a wrong conclusion and has erroneously passed the impugned judgment and order. In view of the aforesaid detailed discussion, the said judgment and order passed by the trial Court is liable to be set aside and accordingly the same is set aside. Hence, we pass the following:-
Appeals are allowed. The judgment and order of conviction and sentence dated 24/25.04.2014 passed by the Presiding Officer, Fast
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Track Court - XIII, Bengaluru in S.C.No.953/2009 is set aside. The appellants/ accused Nos.3 and 2 are acquitted of all the charges levelled against them.
The concerned prison authorities are hereby directed to release the appellants/accused Nos.3 and 2 forthwith, if they are not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE *ck/-