Karnataka High Court
S G Tangaraj Alias Tanga vs The State Of Karnataka on 9 January, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 9TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.448 OF 2008
Between:
S.G.Tangaraj alias Tanga
S/o S.R.Gopinath
Aged about 26 years
Occ: Electrician
R/o M.K.K.Road
Bailu Kammara Street
Shimoga ... Appellant
(By Sri. Dinesh, Advocate for
Sri. R.B.Deshpande, Advocate)
And:
The State of Karnataka
By Kumsi Police ... Respondent
(By Sri.B.Visweswaraiah, HCGP)
*****
This Criminal Appeal is filed under Section 374(2)
Cr.P.C against the judgment and order of conviction and
sentence dated 18/19.2.2008 passed by Additional
Sessions Judge, Shimoga in S.C.No.80/2007 convicting
the appellant/accused No.2 for offence punishable
under Section 397 and 427 of IPC and the accused No.2
is punished for imprisonment of five years under
Section 392 IPC and under Section 427 IPC and
imposed fine of penalty of Rs.2,000/- on accused No.2.
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This Appeal coming on for hearing this day, the
Court delivered the following:-
JUDGMENT
The appellant (accused No.2) along with accused 1 and 3 to 5 were tried for offences punishable under Sections 395 and 427 IPC. The learned Trial Judge acquitted accused 1 and 3 to 5 and convicted accused No.2 for the aforestated offences for offence punishable under Sections 395 and 427 IPC. Therefore, he is before this Court.
2. I have heard Sri.Dinesh, learned counsel for accused and learned Government Advocate for State.
3. It is the case of the prosecution that on 10.3.2006 at 10.30 a.m., PW1 - Sanath Kumar was proceeding in his car on the road from Ayannur to Hannagare Katte. PW2 - Raju @ Babu was driving the car. When they had crossed Sirigere Village, accused 1 to 5 came in a Maruti van and stopped the car. The accused smashed glass shutters of car and threatened PW1 by showing 3 deadly weapons. PW1 did not have money. Therefore, they snatched his mobile phone. When accused were searching for money, another vehicle came on the same road and the accused fled away from the place. PW1 did not lodge the first information immediately after the incident. However, on 9.8.2006, he lodged first information (after a period 5 months).
4. The prosecution has relied on evidence of PWs.1 and 2 and the recovery of Nokia Mobile Phone on the information volunteered by accused No.2. At the outset, it is necessary to note the reasons for lodging of the first information after a period of 5 months from the date of incident, are not tenable.
5. PW1 had not identified accused either at time of incident or before the Trial Court. PW1 has deposed that at time of incident, accused had covered their faces with clothes. Therefore, he was not able to identify them. PW1 has identified his Nokia mobile phone as MO1. PW1 has deposed that he was not able to identify 4 the accused in the police station. PW1 was declared as hostile witness. During cross-examination by learned counsel for accused, PW1 has admitted that when he lodged first information on 9.8.2006, the police had shown him mobile phone and a long (weapon of offence).
6. The evidence of PW2 is more or less similar to evidence of PW1. PW2 was not able to identify accused at the time of incident. PW2 was declared as a hostile witness. During cross-examination by the learned public prosecutor, PW2 has denied the suggestion that on 13.8.2006, he had identified 3 persons in the police station and those 3 persons are Satish - accused No.1, Ravi - accused No.3 and Santosh - accused No.4.
7. At the relevant time, PW14 - Ramappa was working as Circle Inspector of Shimoga Rural Police Station. PW14 has deposed that on 15.8.2006 at 3.00 p.m., the Sub-Inspector of Police produced accused No.2 before him. PW14 arrested accused No.2, recorded voluntary statement of accused No.2. Accused No.2 led 5 PW14 and panch witnesses to his house and brought a mobile phone from his house and the same was seized under a mahazar. At this juncture, it is necessary to recall evidence of PW1 who has deposed that on 9.8.2006. When he had gone to police station to lodge the first information, the police had shown him his mobile phone. Thus from the evidence of PW1, it is clear that police had seized the mobile phone before 9.8.2006. In the circumstances, evidence of PW14 that accused No.2 had volunteered information on 15.8.2006 and he recovered mobile phone on 15.8.2006 from the house of accused No.2, cannot be accepted. The evidence on record does not disclose that mobile phone robbed from the possession of PW1, is the same mobile phone which was recovered from the house of accused No.2. The learned Trial Judge without noticing these material discrepancies, has convicted accused No.2. Therefore, the impugned judgment cannot be sustained. 6
8. In the result, I pass the following:
ORDER The appeal is accepted. The impugned judgment is set aside. Accused No.2 is acquitted of offences punishable under Sections 392 and 427 IPC.
The bail bond executed by accused No.2 stands cancelled. If accused No.2 has deposited fine amount, the same shall be refunded to him.
Sd/-
JUDGE AHB