Karnataka High Court
Shankarya @ Shankar S/O Murali Bhosale vs The State Of Karnataka on 25 February, 2013
1
IN T HE HIG H C OU R T OF KA R NA TA KA
CIR C UIT B E NC H A T D HA R W A D
DATE D THIS TH E 25 T H FEB RUAR Y 2013
BEF ORE
T HE HO N 'B L E M R . JUS TICE B .V .P I NT O
CRIMI NAL APPE AL NO. 2832/ 20 12 (C)
BETWEEN:
1. Shankarya @ Shankar S/o.Murali Bhosale
Age: 60 years, Occ: Flower Banquest,
R/o. Nellur, Tq: Channagiri,
Dist: Davangeri.
2. Chandrappa S/o.Ramappa Pawar
Age: 48 years, Occ: Coolie work,
R/o. Nellur, Tq: Channagiri,
Dist: Davangeri.
3. Chinnareddi S/o.Turiya Bhosale
Age: 21 years, Occ: Coolie work,
R/o. Nellur, Tq: Channagiri,
Dist: Davangeri.
4. Shivappa S/o.Turiya Bhosale
Age: 19 years, Occ: Coolie,
R/o. Nellur, Tq: Channagiri,
Dist: Davangeri.
... Appellants.
(By Shri G.A.Holeyannavar and V.G.Holeyannavar,
Advocates.)
2
AND:
The State of Karnataka,
Rep. by SPP, Circuit Bench,
(CPI Mudhol Police Station,
Tq: Jamkhandi.)
... Respondent
(By Shri Vinayak S. Kulkarni, Government Pleader.)
This Criminal Appeal is filed under Section 374(2)
of Cr.P.C., seeking to set aside the conviction and
sentence order dated 29.8.2012, passed by the District
and Sessions Judge and Presiding Officer, Fast Track,
Jamkhandi, in S.C.No.41/2011 and acquit the
appellants/accused No.1 to 4 for the charges framed
against them, etc.,.
This appeal coming on for dictating judgment, this
day, the court delivered the following judgment:
JUDGMENT
This appeal is filed challenging the judgment dated 29.8.2012, passed in S.C.No.41/2011, by the Fast Track Court, Jamakhandi, convicting the appellants for the offences punishable under Sections 394 and 307 of IPC and sentencing each of them to 3 suffer rigorous imprisonment for a period of seven years for the offence under Section 394 of IPC and to pay a fine of Rs.1,000/-, in default to suffer rigorous imprisonment for a period of three months and further sentencing them to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,000/- each for the offence under Section 307 of IPC, with default clauses.
2. It is the case of the prosecution that the accused No.1 to 4, within the jurisdiction of Lokapur P.S., on 12.11.2010, at about 03-00 a.m., entered into the shed situated in Sy.No.65/21 of Palkimanya village, by removing the doors of that shed belonging to the complainant Namdev and committed robbery of golden neck chain from the neck of an inmate by name Yashodha Shyasannavar and also one golden mangalasutra each weighing about 7.5 grams by snatching these two ornaments from her neck by committing robbery, thereby the accused are alleged to 4 have committed the offence under Section 394 read with Section 34 of IPC. It is further charged against the appellants that on the above said date, place and time with common intention they entered the tin house of the complainant Namdev situated in Sy.No.65/21 of Palkimanya village and committed robbery of golden items by snatching the same from the neck of one Yashodha and thereafter the accused assaulted CW.5 with an axe on his head, which caused injury on the right parietal region and caused grievous injuries and thus the accused No.1 to 4 are alleged to have committed an offence punishable under Section 307 of IPC.
3. The prosecution in order to prove the case has examined in all 14 witnesses and got marked Ex.P.1 to P.34 and produced M.Os.1 to 5. The defence of the accused was one of total denial. However the learned Sessions Judge by the impugned judgment found the appellants guilty of offence under Section 5 307 and 394 of IPC and sentenced them as aforesaid. The convicted accused persons have filed this appeal challenging the order of conviction and sentence.
4. It is the case of the prosecution that on 12.11.2010 one Namdev appeared before the Lokapur P.S., with a complaint. It is stated in the complaint that the complainant is residing along with his wife and children in Lakshanatti village, Mudhol taluka, where he owns the lands bearing Sy.No.65/21 within the limits of Palkimanya village. They have erected a tin shed in the said land. The family members of the complainant were residing in the said house. On 11.11.2010 at about 09-00 p.m., himself, his wife and sons after finishing their dinner had slept in the shed of the farm house. While complainant and one of his sons slept on the iron cot, his wife and another son slept on the floor abutting the door. At about 03-00 a.m. in the night there was sound coming from the door of the shed and therefore the complainant was 6 awakened and he saw four persons pulling the door of the shed and they came inside the shed and suddenly snatched the mangalasutra and boramala sara from the neck of the complainant's wife and thereafter the complainant and his son came out of the shed and screamed loudly. The culprits came inside the shed and took away the iron trunk kept over the God's platform. The son of the complainant woke up and protested the accused from lifting the iron trunk. At that time one of the culprits assaulted his son by an axe on his head and on his cheeks and he started bleeding from the injuries. When the complainant and his another son came out of the house and started shouting, the accused pelted stones to them. Thereafter CWs.1 and 4 went inside the shed. However by that time four culprits went away from the shed and they have thrown away the iron trunk near the adjoining land. The complainant and CW.4 noticed that their son by name Jnaneshwar had sustained grievous injuries and after hearing the hue and cry of the complainant and his 7 family members, the neighbours came to the rescue and thereafter the assailants ran away. The injured persons were taken to the hospital and after taking treatment, a complaint came to be lodged in the Lokapur Police Station. The police registered the same as Crime No.136/2010 and commenced the investigation. After completion of the investigation, CW.15 filed the charge sheet alleging commission of offence under Section 394 and 307 of IPC.
5. PW.1-Namdev is the complainant. He has narrated the facts of the complaint before the Court. He has also described the features of the accused while deposing before the Court. He has stated that he has seen the accused by means of a light burning in the farm house. Thereafter the neighbouring persons by name Mallappa, Rangappa and Hanumant came to their farm house. The persons who gathered there were informed about the incident. Thereafter the injured were taken to the hospital. He has identified his 8 signature in the complaint Ex.P.1 given by him to the police on the same day. It is in the evidence of PW.1 that after lodging of the complaint, panchanama was drawn at the scene of occurrence and the blood stained materials were seized by the police. It is in the evidence of PW.1 that after about 2 months the police had shown to them the golden articles stolen from their house. Thereafter they have got it released from the Court. He has identified the accused by means of the photographs presented before the Court as per Ex.P.2. About two months thereafter the robbers were caught by the police. PW.1 has stated that he had gone to the Koppal jail and he had identified the accused in the test identification parade conducted by the police. He had picked up one person in the row of about 10 people, as the same person who had come for robbery to their house. He has identified the accused before the Court.
9
6. PW.1 has further stated that the appellants had left the weapon i.e., the chopper at the scene of occurrence which is marked as M.O.2. In the cross- examination it is elicited that by the time the incident has happened, it was already dark and there was no light connection to the house. However he has admitted that by that time nobody could identify the other person by face. However he states that there is a light far away from the shed in which they were living.
7. It is further elicited from this witness that even before conducting of test identification parade, the police had brought the accused to their farm house and all the persons in and near the garden had seen the accused. It is suggested to this PW.1 that no such incident as spoken to by him has ever happened. It is further suggested that no such incident at all happened in the village as on the alleged date of incident.
10
8. PW.2 Yashodha is the wife of PW.1. Her version regarding the incident of theft and robbery of the golden chain worn by her is the same as that of her husband PW.1. She has specifically stated that she has seen the appellants clearly on the date of incident; and they had two children at that time. She has further narrated the description of the dress worn by the accused, so also their personal particulars like height, age, etc.,. She has also stated regarding the blood fallen on the ground at the time of incident. This PW.2 has further taken part in the test identification parade conducted by the Tahasildar in the Koppal jail. She has also identified the axe used by the accused at the time of incident. In the cross-examination it is suggested to her that she was sleeping inside the house and that she has not seen the incident. However the PW.2 has denied the said suggestions, but has categorically stated that she has identified the accused at the time of incident.
11
9. PW.3 Jnaneshwar is the son of PW.1 and 2. He has also stated that on the date of incident theft took place in his house and that the accused persons who are present before the Court are the same persons who had come to their house. PW.3 has also identified the taali and boramala sara which is recovered by the police. He has also identified the accused in test identification parade conducted by the Tahasildar. In the cross-examination it is suggested that he has not seen the incident as he was sleeping inside the house.
10. PW.4 Shankaregouda is the Tahasildar of Mudhol Taluka. He has conducted the test identification parade and according to him in the test identification parade, the victim and the inmates of the house have identified the accused as the same persons who had come in the night of the incident.
11. PW.5 Radhakrishna is the ASI of Lokapur Police Station, who on receipt of the information registered the case and informed his superiors about 12 the incident. He has also assisted in the investigation. PW.6 Dr.Narayan is the Medical Officer in the Bagalkot General Hospital, who has certified that the injured had sustained about 4 injuries on the date of incident and he has given treatment to the injured. PW.7 Ganesh is the goldsmith who has tested the gold seized in the case. PW.8 Gopal has stated that he has assisted PW.1 in writing the complaint and thereafter giving it to the police.
12. PW.9 Shrishail is a neighboruing witness. However he has not seen the assailants as on the date of incident. PW.10 Rangappa is another neighbour. However his evidence is of no use to the prosecution. PW.11 Mallappa has also not stated anything worthwhile. PW.12 Lokanna is a witness to the spot panchanama Ex.P.25 under which M.Os.1 to 5 were seized by the police. He has further stated that about 20 days after the incident the accused were caught by the police and were brought to the village. He has 13 identified the accused who were present in the Court. However he has stated that he is not aware of the names of the accused persons.
13. PW.13 Kantugouda is another private witness. However he has turned hostile to the case of the prosecution. PW.14 B.P.Hulsgund is the Inspector of Police who has conducted the investigation in this case, and also filed the charge sheet.
14. It is from the aforesaid evidences of the prosecution witnesses that the learned Sessions Judge has convicted the accused persons and sentenced them accordingly.
15. Heard Shri Vasant G. Holeyannavar, the learned counsel appearing for the appellants and Shri Vinayak S. Kulkarni, the learned High Court Government Pleader for the respondent/State.
16. The learned counsel for the appellants submits that there is dispute regarding the identity of 14 the accused. The complainant has not given specific identification marks on the basis of which he could identify the accused. It is further submitted by him that the test identification parade has been conducted after lapse of time and in between the police have brought the accused to the village and at that time the police have taken the photographs of the accused. Therefore on the basis of the said identification through the photographs the accused have been identified in the test identification parade and the said identification is valueless. He has also submitted that the accused were personally brought to the village much prior to the date of test identification parade and at that time the face of the accused was not covered with any material and therefore there was ample scope for the witnesses of the prosecution to identify the accused.
17. It is also submitted by him that the Tahasildar before conducting the test identification 15 parade has not questioned and recorded each witnesses as to under what circumstances and with what identification features they could identify the accused. Therefore even if the test identification parade has been conducted according to the rules, the identification made by the witnesses has no evidentiary value, since the witnesses had ample opportunity to see the accused even prior to the date of the incident. It is further submitted by him that apart from the identification made by the PWs.1 and 2, there is no other evidence to connect the accused with the crime. Admittedly the accused were brought to the Court at Jamakhandi under a body warrant. However it is not known as to when the accused were arrested and they were in custody. Hence he submits that the order convicting the appellants is erroneous. It is therefore submitted by him that the accused are entitled for an order of acquittal and therefore he submits that the appeal may be allowed.
16
18. On the other hand, Shri Vinayak Kulkarni, the learned Government Pleader submits that apart from the clear and cogent evidence of PWs.1 and 2 there are other material circumstances, which prove the involvement of the accused. It is submitted by him that within one month from the date of incident, the appellant/accused were found at some other place and they were apprehended by Yalaburga Police and their presence was secured by means of filing an application for body warrant. It is submitted by him that the complainant and his wife had seen the accused at the time of incident by means of the light burning in the house and since the date of identification is very short from the date of incident, the evidence of identification under the test identification parade may be taken into consideration in which the accused have been properly identified by the prosecution witnesses.
19. He also submits that the complaint itself narrates the features of the assailants, the pattern of 17 their dress and the language they spoke. Under the circumstances it is submitted by him that there is cogent and clear evidence to involve the appellants in the case and the learned Sessions Judge has rightly come to a conclusion that the accused have committed the offences for which they stood charged. It is therefore submitted by the learned Government Pleader that the accused have been rightly convicted by the learned Sessions Judge. He submits that the appeal may be dismissed.
20. The fact that robbery had taken place in the house of the complainant is not in dispute. The fact that the complainant and his son sustained injuries in the said robbery is also not in dispute. What is in dispute is the identity of the accused and the question that requires to be answered is whether the prosecution has proved that the accused and the accused alone who are the persons who came to the house of the complainant on the night of the incident. 18 PW.1 in his examination-in-chief has categorically stated that he has seen the accused almost face to face and that he could identify them whenever he was called upon to do so. However in the cross-examination he has stated that when the accused were brought to the village by the police, their photos were taken and about 5 to 6 photographs were taken by the police. Under the circumstances the test identification parade which is conducted after the accused were found in the village accompanied by the police, necessarily loses its value.
21. The Supreme Court in umpteen numbers of cases has held that if the accused is shown to the witnesses prior to the date of identification, such identification is worthless. In a case reported in 2007 SAR (Criminal) 507 between Ravi @ Ravichandran vs. State Rep. by Inspector of Police, it is held that the identification conducted in a test identification parade held after 10 days becomes useless in view of the fact that his photograph was published in the local daily 19 and hence the proceeds of test identification parade cannot be given any value for the purpose of fixing the identity of the accused.
22. In another decision reported in 2007 Crl.L.J. 3509 between State of Madhya Pradesh vs. Chamru @ Bhagwandas etc., it is held that where the photographs of the accused were shown to the child witnesses before the test identification parade, the Hon'ble Supreme Court held that the same takes away the effect of test identification parade.
23. In the case on hand, on a careful scrutiny of the complaint given by the complainant-PW.1, it is observed that except stating that one of the accused was wearing half pant and black shirt and was stout and another person was wearing pant and black shirt, there is no other description of the assailants in the complaint. The incident has happened on 12.11.2010 and the Test Identification Parade has been conducted on 5.2.2011 i.e., after about two months and 20 days. 20 In view of the fact that the accused was brought to the village in the intervening period and that nowhere it is mentioned that they were brought under a mask and further having regard to the fact that police had taken the photograph of the accused, possibility of PWs.1 to 3 identifying the assailants on the basis of their personally observing the accused when they were brought to the village is not ruled out. The Supreme Court states that such identification is valueless and therefore I am of the opinion that the prosecution has not been successful in establishing the identity of the accused as the same persons who had come on the date of robbery.
24. In that view of the matter, the appellants are entitled to the benefit of doubt and consequently they are entitled to an order of acquittal. Accordingly, this appeal is allowed. The order of conviction and sentence passed against the appellant is hereby set aside and they are acquitted of the offences levelled against them. 21 The appellants are in custody. Hence, they are directed to be set at liberty forthwith, if they are not required to be detained in any other case.
SD/-
JUDGE Mrk/cp*