Karnataka High Court
Sharanu @ Shranappa S/O Hanamant ... vs The State Of Karnataka on 21 February, 2013
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA,
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 21st DAY OF FEBRUARY, 2013
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.3557 OF 2008
C/W
CRIMINAL APPEAL NO.3558 OF 2008
C/W
CRIMIANL APPEAL NO.3555 OF 2008
CRIMINAL APPEAL NO.3557 OF 2008
BETWEEN:
Sharanu @ Sharanappa
S/o Hanamant Gollur
Age: 27 Years, Occ: Agriculture
R/o Gundagurti
Tq. Chittapur
Dist: Gulbarga. .. APPELLANT
(By Shri Mahantesh H. Desai, Advocate)
AND:
The State of Karnataka
Represented by
Grameen Police Station .. RESPONDENT
2
(By Shri S. S. Aspalli, Government Pleader)
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, 1973 praying the Appellant
against the Judgment dated: 20.11.08 passed by the IV
Additional Sessions Judge Gulbarga in S.C. No.301/06
conviction the Appellant / Accused -4 for the offences
punishable under section 394 Indian Penal Code sentenced to
undergo RI for Four(4) years and to pay fine of Rs.3,000/- in
default of payment of fine amount accused shall under go SI for
three months and etc.
IN CRIMINAL APPEAL NO.3558 OF 2008
BETWEEN:
Anilsingh S/o Shankersingh Rajaput
Age: 30 Years, Occ: Auto Driver
R/o Shanti Nagar, H.No.EWS-98
Gulbarga. .. APPELLANT
(By Shri Nand Kishor Boob, Advocate)
AND:
The State of Karnataka
Represented by
Grameen Police Station .. RESPONDENT
(By Shri S. S. Aspalli, Government Pleader)
3
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, 1973 praying the Appellant
against the Judgment dated: 20.11.08 passed by the IV
Additional Sessions Judge Gulbarga in S.C. No.301/06
conviction the Appellant / Accused -4 for the offences
punishable under section 394 Indian Penal Code sentenced to
undergo RI for Four(4) years and to pay fine of Rs.3,000/- in
default of payment of fine amount accused shall under go SI for
three months and etc.
IN CRIMIANL APPEAL NO.3555 OF 2008
BETWEEN:
Khaleel S/o Lal Ahmed Shaik
Age: 18 Years, Occ: Auto Driver
R/o Hamalwadi Station Bazar
Gulbarga. .. APPELLANT
(By Shri Mahantesh H. Desai, Advocate)
AND:
The State through
Grameen Police Station
Gulbarga.
(Represented by Additional Government
Pleader, High Court of Karnataka,
Circuit Bench Gulbarga.
Grameen Police Station .. RESPONDENT
(By Shri S. S. Aspalli, Government Pleader)
4
This Criminal Appeal is filed under Section 374(2) of
the Code of Criminal Procedure, 1973 praying to grant leave to
file an appeal against the Judgement of conviction and order of
sentence passed by the Learned IV Additional Sessions Judge
Gulbarga in SC No.301/06 Date: 20.11.08 and etc.
These appeals coming for hearing this day, the court
delivered the following :-
JUDGEMENT
Heard the learned counsel for the appellants and the learned Government Pleader.
2. These appeals are heard and disposed of by this common judgment having regard to the fact that the appellants are accused of the same offence.
3. The case of the prosecution was that the complainant was a businessman engaged in finance business and that on 22.12.2004, he closed his business at 9p.m.and as usual, was proceeding towards his home, which was in Hatgund village on his motor cycle. It transpires that the present appellants, who were the accused before the trial court, had followed the 5 complainant on their motor cycles and when they were one kilometre away from Pattan cross, it transpires that the accused, overtaking the complainant, had blocked the path with their motor cycles and had stopped him. Accused nos.1 and 2 had put the complainant in fear of death and demanded that he give up his cash, gold and other valuables that he was carrying or else they would be forced to kill him. The complainant is said to have tried to escape by maneuvering his motorcycle, but accused nos.1 and 2, got off from their motor cycles and approached him and accused no.2 was said to have fired with a pistol on his back, as a result of which, he had sustained a bullet injury and the accused then proceeded to snatch his gold chain, a bracelet that he was wearing and cash of Rs.5600/- and hurriedly left the place on their motor cycles abandoning the complainant. The injured complainant then started walking towards his village leaving behind his motor cycle, at which point of time, an auto rickshaw is said to have come along and the complainant managed to wave it down and took the auto 6 rickshaw to his house and revealed the incident to his wife. His wife had immediately arranged to shift him to the Government General Hospital, Gulbarga in a van. After having received first aid there, he was referred to Basaveshwara Hospital, wherein the Sub-Inspector of Police, Yadgir Rural Police Station having registered a medico legal case and having heard the complainant, recorded a oral complaint as to the incident and returned to the police station. On the basis of the same, he registered a case in Crime No.241/2004 and handed over further investigation to the Circle Inspector of Police. The Circle Inspector of Police, it transpires, had managed to arrest the accused and at their instance, recovered the gold chain, a country made pistol and after collecting further oral and documentary evidence, filed a charge sheet against all the accused namely, accused 1 to 4. The Court of the Magistrate, after taking cognizance of the offences, ordered registration of a case against accused nos.1 to 4 while keeping in view that the offences punishable under Section 397 of the Indian Penal 7 Code, 1860 (Hereinafter referred to as the 'IPC', for brevity) were exclusively triable by the Court of Sessions and since the presence of accused no.3 could not be secured, the case was ordered to be split up and after compliance with Section 207 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as the 'Cr.PC', for brevity), the case was committed to the Sessions Court insofar as accused nos.1,2 and 4 are concerned under Section 209 of the CrPC. On receipt of the file, a case was registered as SC 301/2006 before the Principal District and Sessions Judge, Gulbarga, who made over the case to the IV Additional Sessions Judge, Gulbarga. After hearing both sides and on going through the charges, the trial court framed charges against the accused for offences punishable under Sections 394, 397, 109 of the IPC read with Section 25 of the Arms Act, 1959 (Hereinafter referred to as the 'Arms Act', for brevity). The accused pleaded not guilty and claimed to be tried. The prosecution then was called upon to adduce evidence. The prosecution, in turn, examined PWs.1 to 15 and marked 8 exhibits Exs.P.1 to P.18 as well as Material Objects MOs.1 to 6. On the basis of the said evidence and having recorded the statement under Section 313 of the Cr.PC and after hearing the arguments of both sides, the court below has framed the following points for consideration:
1. Whether the prosecution proved beyond all reasonable doubt at about 9.20 p.m., after making preparation to commit robbery were standing near Aland Check Post and when the complainant was returning to his house on his motor cycle to Hatgunda-K Village, after closing his finance business, accused followed him and at about 9.30p.m., one kilometre away from Pattan cross stopped the complainant and accused 1,2 and 4 put the complainant under instant fear of death and robbed gold chain on his neck and cash of Rs.5,600/- and one golden bracelet, at the time of committing robbery A-2 fired with pistol on his back side and caused grievous hurt and thereby accused 9 have committed offence punishable under section 394, 397 IPC?
2. Whether prosecution further proved beyond all reasonable doubt that accused 1,2 and 4 on the above said date time and place and at the instigation and abetment of absconding A-3 by putting the complainant under instant fear of death robbed gold chain, golden bracelet and cash of Rs.5,600/- and while committing robbery accused caused grievous injuries to complainant by firing with pistol and said offence was committed in consequence of abetment and instigation of absconding A-3 and thereby accused 1,2 and 4 have committed offence punishable under section 394, 397 read with 109 IPC?
3. Whether prosecution further proved beyond all reasonable doubt that, accused on the above said date, time and place, accused were found in possession of country made pistol without having any license or 10 permission to possess the same and thereby committed an offence punishable under section 25 of the Arms Act, 1959?
4. The trial court answered point no.1 in the affirmative and point no.2 in the negative and point no.3 in the affirmative against accused nos.1 and 2 and accordingly has convicted accused nos.1 and 2, imposing a punishment of rigorous imprisonment of 4 years for the offence punishable under Section 394 of the IPC and fine of Rs.3,000/- each. Accused no.2 was convicted for the offence under Section 397 of the IPC imposing a punishment of rigorous imprisonment of 7 years and to pay a fine of Rs.2,000/-. Further accused nos.1 and 2 were to undergo rigorous imprisonment for 2 years each and to pay a fine of Rs.1000/- each insofar as the offence under Section 25 of the Arms Act. It is that which is under challenge in the present appeals. 11
5. The learned Counsel for the appellants would commonly contend that the court below has committed a serious error in holding that the prosecution had established its case beyond all reasonable doubt. As seen from the reasoning of the court below, which indeed starts from paragraph - 16 onwards at Page-21 of the judgment, is mere reiteration of the evidence of the respective witnesses. Insofar as the reasoning of the court below is concerned, it is firstly pointed out that the court below has held that the accused have been identified by PW.3. The learned Counsel, while taking this court through the evidence in this regard, would point out that the incident is said to have occurred at about 9.30p.m., in the night and the complainant was not in a position to identify or the complainant did not even know who the accused were. It is also not known as to the source of light by which he saw and recognized the accused, though it is claimed in the evidence at the trial that there was moon light and that there was also light from the head light of the motor cycle, which he was riding, by 12 which he could recognize the accused and therefore, sought to identify them. When he was taken to the police station, to identify the three accused, who were present there, the complainant PW.1 was in a position to identify only accused nos.1 and 2 and he stated that he could not recognize accused no.4, who was present. Therefore, in the absence of the assailants being known to the complainant and there being no dispute that he had seen for the first time on the date of the incident and in the absence of concrete evidence that there was sufficient light for him to have recognized the accused, it is settled law that in such circumstances, it is necessary for the prosecution to hold a test identification parade in order to establish that there was proper identification of the accused.
This is the settled legal position and the learned Counsel, in support of his contention, would rely on Karam Singh vs. State, 1992 SC 1438, , wherein it has been reiterated that it would be unsafe to convict a person in the absence of any test identification parade. In the absence of any such test 13 identification parade and the court itself expressing its doubt that non-conducting of the test identification parade by the Investigating Officer itself being not a ground to disbelieve the version of the complainant, is hardly appreciating the first principle of Criminal Jurisprudence that the allegations must be proved beyond reasonable doubt. Therefore, to proceed on the basis that the complainant was able to identify the accused two months after the incident, though he might have had only a fleeting glimpse of the accused as dark shapes since the attack took place in the night on a road and therefore, the question whether identification of the accused by the complainant was sufficient to hold that there was proper identification of the accused, is no longer res integra and it is settled law that without a test identification parade in such cases, it would be totally unsafe to hold that the accused have been identified. Therefore, the trial court had committed a gross error in holding that there is sufficient identification of the accused by the complainant.
14
The second point that is held against the accused by the trial court is that at the instance of accused nos.1 and 2, a gold chain which was stolen and a pistol, with which the complainant was shot, were recovered and therefore the seized articles having been recovered from their possession at their instance, would clinch the case that they were indeed the accused, who were involved in the incident. In this regard, the learned Counsel for the appellants would point out that the gold chain, according to the complainant, which was snatched from him weighed 5 tolas, whereas the gold chain that was said to have been recovered at the instance of the accused weighed 08 grams. There is whale of difference between a chain weighing 8 grams and a chain weighing 5 tolas. Therefore, to hold that it was the same gold chain is not justified.
Thirdly, the so-called country pistol that was also recovered at the instance of the accused being identified as the pistol that was used in the commission of the offence is also 15 not established. It is pointed out that the said country made pistol was not identified by the accused as the pistol that was used in the commission of the offence. He has categorically stated that he cannot identify. The same had been sent for Forensic Science Laboratory examination and the Report merely states that the country made pistol was not in working condition and it could not be said as to when it was last used and that the bullet casing, which was recovered from the body of the complainant, was a casing from the bullet that was fired from the said pistol, as it was never tested for any such purposes. Therefore, there is no conclusive evidence that it was indeed the country pistol that was used in the commission of the offence and that the bullet which had lodged itself in the back of the complainant was fired from the said pistol. In the absence of any such evidence, when it was quite possible for the FSL expert to have put the gun into working order and to have tested it, to establish beyond reasonable doubt that it was the same gun that was used to fire the bullet, the casing of 16 which was recovered from the scene and to identify the weapon, it would be dangerous to proceed on the basis that it was the same weapon used by the very accused in the commission of the offence. The further reasoning of the court below is that there was no animosity established between the complainant and the accused and therefore, he had not brought any false complaint out of mala fides against the accused and hence his complaint and the evidence produced by the prosecution against the accused ought to be accepted in its entirety, is a finding, which again, is not justified and without the basic requirements of discharging the burden of proof as to the identify of the accused and that the stolen articles recovered are indeed the articles, which the complainant claims to have lost and the so-called weapon that was recovered, also was the weapon used in the offence it cannot be said that the prosecution had made out a case beyond all reasonable doubt against the accused. Insofar as the court below having held that the appellants were guilty of the commission of the offence 17 under Section 25 of the Arms Act is concerned, it is pointed out that Section 25 prescribes the punishment for violation of the various provisions of the Act. The allegation against appellants 1 and 2 is that the country-made pistol, which was seized, was said to belong to accused no.1, which was used by accused no.2 in the commission of the offence. Therefore, they were both found in possession of the same weapon, which was unlicensed and unauthorised, which is violation of Section 3 of the Arms Act, as section 25 prescribes the punishment in respect of such an act and Section 39 of the Act would lay down that for prosecution of the offences punishable under the said Act, it was necessary to obtain prior sanction. In the instant case, though Exhibit P.18 is said to be a sanction order that was obtained, the manner in establishing that a sanction was obtained is well-settled in a catena of decisions and mere production of the sanction order is not sufficient to hold that there was violation of the sanction. The very authority which had examined the weapon in granting such sanction ought to 18 have been examined as a witness in this case as well, to ensure that there was application of mind by the authority in granting such sanction. In the absence of any such exercise, the mere production of Exhibit P.18 through the Circle Inspector of Police was no compliance with the mandate under the said Act and therefore the court below having held that an offence punishable under Section 25 of the Arms Act was established is not tenable and hence, the judgment of the court below resting only on these cursory findings, which are again not supported by proper acceptable evidence. The prosecution has miserably failed to bring home the charges against the accused on any single charge and therefore, the appellants seek that the judgment be set aside and the accused be acquitted.
6. On the other hand, the learned Government Pleader would seek to justify the judgment of the court below. 19
7. Though a serious effort is made by the learned Government Pleader, the cryptic reasoning of the court below, as pointed out by the learned Counsel for the appellants, give him little scope for extensive arguments.
The finding that the complainant was able to identify the accused at the scene of crime and that he had later identified them in the police station when they were arrested and the complainant was called upon to identify them, is not sufficient evidence to establish the identity of the accused. The incident had occurred at night. Even if all the motor cycles that were present on the scene, as it is claimed that apart from the complainant riding on his own motor cycle, the accused were also riding on their motor cycles and even if there was moon light, to contend that the complainant would have been able to identify and register the physical features of the accused and was also able to confirm their identify in the police station, it is not safe to act on his evidence. This opinion expressed by the apex court consistently establish that in circumstances where 20 the witness has seen the accused only once before and seeks to confirm the identity, it is always advisable that there be a test identification parade. In the present case on hand, there is no such exercise. Even the court below has hesitantly held that the identity of the accused by the complainant was adequate to sustain that there was proper identification of the accused. This cannot be accepted. Therefore, the entire case of the prosecution would get weakened by the lack of proper identification of the accused by the complainant. The issue that the gold chain and the country made pistol had been recovered at the instance of the accused by the investigating authorities is also not sustainable. As rightly pointed out by the learned counsel for the appellants, the gold chain which had been snatched from the complainant was a heavier chain than the one that was recovered. The difference in weight was 42 grams and this is substantial difference for any court to accept that it was one and the same gold chain. It is inexplicable that the court below has accepted the same. The country made 21 pistol, being the one which was also used in the commission of the offence, cannot be said to have been established. There is no exercise carried out to establish this, except claiming that it was recovered from the accused and therefore, it should be presupposed that it was the weapon used. The expert, who had examined the weapon, had not made any effort to test the weapon scientifically, to ensure that it was one and the same. In fact, his report is to the fact that it is not in working condition, which he could have supplied by making it in working condition, which he has not done and it has not been tested to match the impression left on the bullet casing and to ascertain whether the bullet could have been fired from the same weapon nor was there any attempt to ascertain when the gun was set to fire, which was also a possibility. It is therefore deplorable that the so-called expert has given a cursory report, which was useless. Hence, the court below having acted on such negative report, to hold that the weapon was the one and the same, which was recovered, is a finding that cannot be 22 accepted at all. Merely, the same having been recovered, according to the prosecution, from the accused, by itself is not proved that it was the weapon used and it was the present accused who were indeed the assailants of the complainant. Similarly, the other findings fell into insignificance as to there being no animosity between the complainant and the accused and that it was an impartial complaint against any unknown persons who have been identified by the complainant etc., is wholly immaterial. Insofar as the offence under Section 25 of the Arms Act is concerned, though it is not established that the accused were indeed the assailants, who had used the particular weapon, that was produced in court as the weapon used in the incident, the fact remains that the weapon was a country-made pistol, which was unlicensed and recovered from the possession of accused no.1. To that extent, an offence punishable under Section 25 read with section 3 of the Arms Act would be made out against the accused. Since there was a charge against accused no.1 in this regard, though the charge 23 was also repeated insofar as accused no.2 is concerned, only on the ground that he had used it to shot the complainant at the time of the incident, cannot be sustained, but the fact that the unlicensed gun was found in the possession of accused no.1 would make him severely liable for the offence under Section 25 of the Arms Act.
8. Accordingly, while holding that conviction of the accused on the basis of the findings of the trial court are not sustainable insofar as offences punishable under Sections 394 and 397 of the IPC are concerned, insofar as the offence punishable under Section 25 of the Arms Act, it ought to be held that accused no.1 was squarely liable for such punishment though not relatable to the incident in question and that the charge that was framed was sufficient to hold that the same has been established, namely, that he was found in possession of an unlicensed weapon and in terms of Section 3 read with section 25 of the Arms Act, would be liable for punishment. 24
Accordingly, while allowing the appeals and setting aside the judgment insofar as the conviction of the accused under Sections 394 and 397 of the IPC, the offence punishable under Section 25 insofar as accused no.1 is concerned, is an affirmation, though for reasons other than assigned by the trial court. The punishment is modified to sentence accused no.1 to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.5000/- and in default of payment of fine, to undergo simple imprisonment for three months. Insofar as the fine amounts paid by the accused in respect of conviction for other offences, shall be refunded to the accused. They are acquitted in respect of offences punishable under Sections 394 and 397 of the IPC. Any period spent in custody insofar as accused no.1 is concerned, shall be set-off against the punishment now imposed.
25
Accordingly, Criminal Appeal nos.3555/2008 and 3557/2008 are allowed and Criminal Appeal 3558/2008 is allowed in part.
Sd/-
JUDGE nv