Karnataka High Court
Saiprasad vs The State Of Karnataka on 28 August, 2024
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NC: 2024:KHC:34655
CRL.A No. 1100 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.1100 OF 2013
BETWEEN:
1. SAIPRASAD
S/O. LATE VENKATACHAR
AGED ABOUT 21 YEARS
NO.263/22, 4TH MAIN
5TH CROSS, BSK IST STAGE
HANUMANTHNAGAR
BENGALURU.
2. KATHIK KUMAR @ KARU
S/O. MURTHY
AGED ABOUT 19 YEARS
BANNAHALLI ROAD
CHANDAPURA, ANEKAL TALUK
BENGALURU DISTRICT.
3. SHASHIDHARA @ SHASHI @ RAJESH
S/O. LATE SRINIVAS
AGED ABOUT 22 YEARS
MEENUKUNTE, HOSUR VILLAGE
Digitally signed by
MOUNESHWARAPPA JALA HOBLI
NAGARATHNA
Location: HIGH BENGALURU NORTH TALUK.
COURT OF
KARNATAKA
4. ANANDA @ NANDA
S/O. SUBRAMANI
AGED ABOUT 25 YEARS
TENT ROAD, 9TH CROSS
BESIDE DODDAMORI
MOODALAPALYA,VIJAYANAGAR
BENGALURU URBAN.
...APPELLANTS
(BY SRI THANGARAJAN J., ADVOCATE)
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NC: 2024:KHC:34655
CRL.A No. 1100 of 2013
AND:
THE STATE OF KARNATAKA
BY THE POLICE OF CHIKKAJALA
POLICE STATION.
...RESPONDENT
(BY SRI M. DIVAKAR MADDUR, H.C.G.P.)
THIS CRIMINAL APPEAL FILED UNDER SECTION 374(2) CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED:10.10.2013 PASSED BY
THE V ADDL., DIST., AND S., J., DEVANAHALLI IN S.C.NO.139/12 -
CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTIONS 399 AND 402 OF IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE VENKATESH NAIK T
ORAL JUDGMENT
The appellants have filed this appeal challenging the judgment of conviction and order on sentence dated 10.10.2013 passed by learned V Additional District and Sessions Judge, Devanahalli, in S.C.No.139/2012, wherein, the Sessions court convicted the appellants for the offences punishable under Sections 399 and 402 IPC.
2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court. The appellants are accused Nos.1, 2, 3 and 5 and the respondent-State is the complainant.
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013
3. Brief factual matrix of the prosecution case is as under:-
On the intervening night of 11/12.08.2011, at about 11.00 p.m., PW.5 H.J. Thippeswamy, Police Inspector had received credible information from the informer stating that on the way from Saddahalli gate to Shettigeri Village, near Shettigeri Railway Crossing, about five to six persons armed with deadly weapons like long, knife, iron rod and chilli powder came in Maruthi car bearing registration No.KA-02-N-6268 and they parked said vehicle at a isolated place near Saddahalli within the limits of Chikkajala police station and were making preparation to commit dacoity of passers-by and at that time, the complainant and police inspector and his sub staff apprehended accused Nos.1 to 4 while another person made good his escape. The complainant seized MOs.1 to 5, iron rod, iron chopper, club, iron long and two chilli power packets under seizure mahazar Ex-P2. Thereafter, the complainant-PW.5 returned to the police station and produced his report as per Ex-P1 and Ex-P2 seizure mahazar along with accused Nos.1 to
4 and seized articles before the Station House officer of -4- NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 Chikkajala police station. Based on the report Ex-P7 and Ex-P2 seizure mahazar, PW.5 registered the case in Cr.No.71/2011 for the offences punishable under Sections 399 and 402 IPC and submitted FIR as per Ex-P8 to the Court. During the course of investigation, accused No.5 was also apprehended and his voluntary statement was recorded. As per his voluntary statement, M.O.5 iron rod was seized by PW.5. After completing the investigation, a charge sheet came to be filed against accused Nos.1 to 5 for the said offences. After filing of the charge sheet, cognizance of the offences was taken by the jurisdictional magistrate and the case was committed to the Court of Sessions for trial. The Sessions Court framed charges against accused Nos.1 to 5 for the aforesaid offences and accused Nos.1 to 5 pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case got examined in all five witnesses as PW.1 to PW.5 and got marked nine documents as per Exs.P1 to P9 and five material objects as MO.1 to MO.5. After hearing the learned Public Prosecutor and learned counsel for the accused, the Sessions Court convicted accused Nos.1 to 5 for the offences punishable under Sections 399 and 402 IPC. Being aggrieved by the judgment of -5- NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 conviction and order of sentence passed by the Sessions Court, the appellants have preferred this appeal.
5. Assailing the findings of the Sessions Court, Sri. Thangarajan J, learned counsel for the appellants submitted that the Sessions Court committed an error in convicting the appellants on uncorroborated testimonies of the prosecution witnesses. He further contended that PW.1, head constable who was member of raiding party, PWs.2 to 4 independent witnesses and witnesses to seizure mahazar, have turned hostile to the case of the prosecution, PW.5- police Inspector received the information, conducted raid, arrested the accused, registered the case and investigated the matter and filed the charge sheet. Further, none of the independent witnesses have supported the case of the prosecution, which demolishes the prosecution case. On all these grounds, he prayed for allowing the appeal and acquitting the appellants of the charges.
6. Sri. Divakar Maddur, learned H.C.G.P appearing for respondent State submits that though PW.Nos.2 to 4 have turned hostile, considering the evidence of PWs.1 and 5, who -6- NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 are the official witnesses, have clearly supported the case of the prosecution. Hence, accused Nos.1 to 5 are guilty of the offences charged. Thus, the Sessions court convicted accused Nos.1 to 5 for the aforesaid offences. Hence, he prayed to dismiss the appeal.
7. In view of the submissions made by both parties, the following points that would arise for Court's consideration are:-
''1. Whether the prosecution proved its case beyond reasonable doubt that on 11/12.08.2011 at 11.30 p.m., at an isolated place, accused Nos.1 to 5 armed with deadly weapons like long, chopper, club, iron rod and chilli powder packets were making preparation to commit dacoity of passers-by, thereby committed the offence punishable under Sections 399 and 402 IPC?
2. Whether the judgment of conviction and sentence passed by the Sessions Court calls for interference?
8. According to the prosecution case, on 11/12.08.2011, at 11.30 p.m., at an isolated place, accused Nos.1 to 5 armed -7- NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 with deadly weapons like iron rod, chopper, club and chilli powder packets were making preparation to commit dacoity of passers-by.
9. In order to bring home the guilt of the accused persons, the prosecution in all examined five witnesses as PW Nos.1 to 5.
10. PW.1- A.M. Venkatesh, head constable of Chikkajala police station has stated that on 11.08.2011 at 11:30 p.m., PW-5 Police Inspector of Chikkajala police station informed him stating that when he was returning after patrolling duty, he received credible information about preparation of dacoity by some unknown persons, thus requested him to accompany PW.5. Accordingly, he accompanied PW.5. He has further deposed that on the same night, he accompanied PW.5 along with other sub staff and took panchas, where he conducted raid on accused Nos.1 to 5 and seized MOs.1 to 4 from the possession of accused Nos.1 to 4. However, accused No.5 escaped from the spot. He has specifically stated that accused Nos.1 to 5 were interacting with each other in Kannada and Telugu language about chilli powder packets. PW.1 has undergone intensive cross examination by learned counsel for -8- NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 the accused. In the cross examination, he admitted that the place where the police secured accused Nos.1 to 4 is a busy place and he cannot specifically mention the name of the persons who were interacting about chilli powder packets. He further admits that neither the local persons nor the public have spoken against the accused persons alleging that these accused persons were preparing for committing dacoity.
11. PW.2 Kumar is one of the panch witness to Ex-P2 seizure mahazar. He has stated that he has not participated in any mahazar proceedings and police have not seized any articles in his presence. It is his further evidence that he does not know the contents of Ex-P2 seizure mahazar and he had not seen the accused earlier. Therefore, learned Public Prosecutor treated PW.2 as hostile and cross examined him, wherein, he has denied to have participated in Ex-P2-mahazar proceedings and also denied to have given statement to the police as per Ex-P3.
12. PW.3- Madhu an Auto Driver and an independent witness and another panch witness to Ex-P2 mahazar, he too has not supported the prosecution case and denied his participation in the mahazar proceedings. He has not disputed -9- NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 his signature at Ex-P2. It is his categorical evidence that no articles were seized in his presence. Therefore, learned Public Prosecutor treated him as hostile and cross examined him, wherein, he has denied to have participated in Ex-P2-mahazar proceedings and also denied to have given statement as per Ex-P4 before the police.
13. PW.4- Subramani is another panch witness to Ex-P5. He too has not supported the prosecution case and denied his presence in the mahazar proceedings. He has disputed the signature found in Ex-P5 spot mahazar. It is his categorical evidence that no articles were seized under Ex-P5. Therefore, learned Public Prosecutor treated him as hostile witness and cross examined him, wherein, he has denied to have participated in Ex-P2 mahazar proceedings and also denied to have given statement as per Ex-P6 before the police.
14. PW.5- H.J. Thippeswamy, Police Inspector of Chikkajala police station has deposed that on 11.08.2011 at 11.00 p.m., when he was on patrolling duty, he received credible information and conducted raid on accused Nos.1 to 4 near Shettigere railway cross and found accused Nos.1 to 5 being armed with deadly weapons with suspicious moments
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 and therefore, himself and his sub staff apprehended accused Nos.1 to 4, while accused No.5 escaped. PW.5 has further deposed that he seized MOs.1 to 4 from the possession of accused Nos.1 to 4, arrested them by drafting Ex-P2 seizure mahazar returned to the police station along with mahazar, accused Nos.1 to 4 and MOs.1 to 4, lodged his report as per Ex-P7 and registered the case in Crime No.71/2011 for the offences punishable under Sections 399 and 402 IPC and remanded them to judicial custody. During the course of investigation, name of accused No.5 was traced, hence, he arrested accused No.5, enquired him and recorded his voluntary statement as per Ex-P9 and at his instance, seized MO.5 iron rod from his possession under Ex-P5 spot mahazar. His further evidence is that as soon as he visited the spot, he sent PW.1 near accused persons. After few minutes, PW.1 returned and informed him that accused Nos.1 to 5 were interacting with each other about the commission of dacoity against passers-by and snatched gold and cash from such persons.
15. During the course of cross examination by learned counsel for the accused, PW.5 has stated that he has not made
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 any entry in his SHD about information received, he did not record any description of the accused and as to when he received information from the informant. It is further elicited that he had no impediment to record said information in his station house dairy soon after receiving information and before proceedings to the intended spot. It is further elicited that he did not conduct any personal search of police officials and independent persons; he has denied rest of the suggestions.
16. On the strength of the above evidence on record, the Sessions Court convicted accused Nos.1 to 5 for the offences punishable under Sections 399 and 402 IPC.
17. Learned H.C.G.P contended that the prosecution is able to prove the charges levelled against the accused persons beyond all reasonable doubt. He further argued that PW.5, head of the raiding party has given evidence about the raid, arrest of the accused persons, seizure of incriminating objects and thus prosecution case has been proved and therefore, learned H.C.G.P prayed for dismissal of the appeal filed by the appellants-accused persons.
18. Per-contra, it is argument of learned counsel for the appellants that no raid was conducted by PW.5 nor the accused
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 persons were present at the scene of occurrence, but they have been falsely implicated in this case. None of the independent panch witnesses have supported the prosecution case and therefore, learned counsel prayed for allowing the appeal.
19. Admittedly, PWs.2 to 4 independent panch witnesses have not supported the prosecution case. Unlike in other cases of this nature, in this case, PW.5, Police Inspector, on receiving credible information about assembly of accused Nos.1 to 5 at Saddahalli Gate, near Shettigeri Railway crossing, returned to police station, secured panchas, went to the spot and conducted raid on the accused persons. It is pertinent to note that, PW.5 received credible information at about 11.00 p.m. on 11.08.2011, he conducted raid in between 12.00 to 01.00 p.m., FIR was registered on 12.08.2011 at 01.30 a.m. and it was dispatched at 02.00 a.m. It is pertinent to note that the distance between Chikkajala Police station and place of incident is 2.5 kms, but, FIR has reached the Court on 12.08.2011 at 02.30 p.m., hence, there was delay in sending FIR to the Court, same
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 is not explained by PW.5. From perusal of Ex.P7-report of PW.5, there is no endorsement as to registration of crime against accused persons. PW.5 has not entered the information in SHD or got the case registered.
20. The evidence of P.W.5 would show that on the same day at 12.00 midnight, he secured presence of panch witnesses i.e. PWs.2 to 4 to participate in the raid. The raid was conducted thereafter. It is pertinent to note here that PW.2 was a resident of Saddahalli, PW.3 was a resident of Navarathna Agrahara and PW.4 was a resident of Channahalli Village. PW.5 has stated in his cross-examination that he did not issue any notice to the panchas before conducting panchanama.
21. Even though PW.1 and PW.5 have given evidence about the raid, arrest of the accused persons and seizure of incriminating articles MOs.1 to MO.5 and evidence about filing of charge sheet(by PW.5), when the panch witnesses have not supported the prosecution case and when there is no evidence as to how PW.5 secured the panch
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 witnesses to the police station, who are residents of Saddahalli, Navarathna Agrahara and Channahalli Villages which are far away places from Sadahalli Gate, it requires that the standard of evidence tendered through the official witnesses is to be of an unimpeachable nature. Therefore, the evidence of PWs.1 and PW.5, the police witnesses, does not inspire confidence of the Court to hold that the prosecution has established its case against the accused persons beyond all reasonable doubt.
22. The case has yet another dimension, inasmuch as, it is PW.5, who conducted the investigation of the case. It is not in dispute that PW.5 not only registered the case, seized the material objects, included the same in the Property Folio, but also effected arrest of the accused persons and recorded statements of the panchas and members of the raid party and thereafter, filed the charge sheet in the case.
23. In this regard, time and again, the Hon'ble Apex Court have cautioned that the informant and the
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 investigating officer should be different persons especially when the police station has got more than one Sub-Inspector of Police or manned by Police Inspector and it is more so required in order to establish before the court that the investigation was fair, which is one of the fundamental rights of the accused. Whereas in this case, PW.5, the Police Inspector was the Station House Officer of Chikkajala Police Station and he ought to have submitted his report for registration of crime to his top ranking officer, who would have proceeded with the matter, but, everything was done by PW.5 alone.
24. A few divergent views were also expressed by some of the Hon'ble High Courts and a couple of judgments of the Hon'ble Supreme Court as to what is the effect of the material collected by the investigating agency, wherein, the informant and the investigating officer is one and the same person.
25. In fact, in the case of Mohan Lal v. State of Punjab reported in (2018) 17 Supreme Court Cases
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 627, the issue was thrashed out by the Hon'ble Supreme Court by referring to almost all the judicial pronouncements on the point. Sub para (14) of Paragraph 26 of the said judgment is culled out hereunder:
"14. Another aspect of the matter is that in sheer violation of the principles of fair and impartial investigation, the complainant and the investigating officer is the same person, which makes the prosecution case doubtful. In Laltu Prasad v. State of W.B. [Laltu Prasad v. State of W.B., 2016 SCC OnLine Cal 4879 : (2017) 2 RCR (Criminal) 237], it was held that the complainant himself acting as the investigating officer violating the principles of fair and impartial investigation is a practice, to say the least, should not be resorted to and it is a disturbing feature. To the same effect, is a Division Bench judgment of the Hon'ble Himachal Pradesh High Court reported as State of H.P. v. Atul Sharma [State of H.P. v. Atul Sharma, 2015 SCC OnLine HP 4183 : (2015) 2 Shim LC 693 :
(2015) 6 RCR (Criminal) 949] , wherein, it has been held that where the complainant himself conducts investigation, it causes miscarriage of justice to accused qua fair investigation."
26. In a case of this nature, when the complainant himself is a Police Official, the investigation should have been conducted by his top ranking officer and the final report also ought to have been filed by the higher official.
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 The complainant being a police officer cannot be an investigating officer. For, in such case, the accused and the prosecution will be deprived of their valuable rights of contradicting and corroborating the previous informations recorded under Section 154 or 155 Cr.P.C and previous statement of the witness, being a police officer, complaint recorded, under Section 161 Cr.P.C enjoined in Sections 145 and 157 of the Evidence Act and proviso of Section 162 Cr.P.C.
27. In the instant case, PW.5 was a Police Inspector, and the High Court Government Pleader informed that the particular police station has got a Sub-Inspector of Police. Therefore, in this case, the investigation ought to have been conducted by the Sub-Inspector of Police or any other police officer above the rank of PW.5. In the instant case, thus an incurable infirmity and flaw have been committed by the prosecution, quite against the proposition of law.
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013
28. In the present case, nothing prevented the head of the raid party - PW.5 to hand over his report as well as the panchanama, custody of seized articles and the accused persons to the Station House Officer, soon after the raid and ask him to further investigate the matter. Why he did not do so is not forthcoming on record.
29. The learned counsel for the appellants also stated that PW.5 being the Inspector of Police who was present at the time of search and he was the investigating officer and as such it is fatal to the case of the prosecution. PW.5, according to the prosecution, was present with PWs.1 to 4 at the time of search. In fact, PW.5 alone took up investigation in the case and he had examined the witnesses. No doubt, PW.5 alone had filed the charge sheet and there is material to show that he had examined other witnesses. It therefore follows that PW.5 was the person who really investigated the case. PW.5 was the person who had searched the appellants in question and he being the investigating officer, certainly it is not proper
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 and correct. The investigation ought to have been done by any other investigating agency. On this score also, the investigation is bound to suffer and as such the entire proceedings would stand vitiated.
30. On careful perusal of the above paragraph, it is crystal clear that the Hon'ble Supreme Court has authoritatively held that the informant and the investigating officer being one and the same person affects the principles of fair investigation. Further, in the very same paragraph, the Hon'ble Supreme Court has also referred to the decision of State of Punjab v. Baldev Singh reported in (1999) 6 Supreme Court Cases 172 and observed that if the informant were to be made as investigating officer, it was bound to reflect on the credibility of the prosecution case. The Hon'ble Supreme Court in the very same paragraph has taken note of Megha Singh's case reported in (1996) 11 Supreme Court Cases 709, wherein, it is held that a Head Constable being the complainant himself should not have proceeded with the investigation and it was a practice to
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 say at least it should not be resorted to, so that there may not be any occasion to suspect fair and impartial investigation.
31. In the present case, P.W.5 having completed practically the entire investigation and filing of charge sheet, it is for the prosecution to show that there was no prejudice that is caused to accused No.1 to 5 rather than accused No.1 to 5 proving that there was prejudice caused to them by PW.5 acting as head of the raid party (informant) and investigating officer. In other words, hardly any case can be found out where final report is filed by a higher police official holding that investigation and raid conducted is false.
32. All these factors when viewed cumulatively, this Court is of the considered opinion that the prosecution case suffers from want of necessary evidence on record on one hand and on the other hand, the investigation which is done is not fair in view of the informant and investigating
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 officer (PW.5) being one and the same person and that benefit should enure to accused Nos.1 to 5.
33. It is needless to state that preparation to commit dacoity consists of devising or arranging means necessary for the commission of dacoity and it is necessary that some steps have been taken in the course of preparation for someone to be convicted under Section 399 of IPC. In an almost identical case of Chaturi Yadav v State of Bihar reported in AIR 1979 Supreme Court 1412, the Hon'ble Supreme Court held that:
"The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 A.M. does not, by itself, prove the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself, has in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration. In this view of the matter, there is no legal evidence to support the charge under Sections 399 and 402 against the appellants. The possibility that the appellants may have collected for the purpose of murdering somebody or committing other offence cannot be safely eliminated. In these circumstances, therefore, we are unable to sustain the judgment of the High Court."
34. In the case on hand also, even if the evidence given by PW.1 and PW.5 is believed to be gospel truth, the possibility of the accused persons getting assembled for committing some other offences at that point of time, cannot be safely eliminated. Therefore, in view of the principles laid down in the above referred decisions, it is very difficult to accept that the prosecution has successfully established the charges against the accused persons and that benefit should enure to the accused persons.
35. The Hon'ble Apex Court in Mukesh Singh v. State (NCT of Delhi) reported in 2023 SCC Online SC 1061 has
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 observed that the testimonies of police witnesses, pointing guilt towards accused, such evidence do not stand vitiated due to the absence of independent witnesses.
36. Whereas in the instant case, there is no clear corroborative and convincing evidence in the testimonies of PWs.1 to 5, on the contrary, there are contradictions in their testimonies.
Normally, the Court need not seek corroboration of evidence of a police witness and their evidence cannot be discarded merely because they are police officers, in the absence of hostility to the accused. In a given case, except the evidence of official witness, no independent witness supported the case of the prosecution.
37. It is well settled law that the evidence of interested witnesses requires careful scrutiny to discover falsehood, embellishment or corroboration, which must be eschewed. If necessary, the Court may look for appropriate re-assurances before acting on such evidence. Therefore, solely on the basis of evidence of interested testimonies of the Investigating Officer, conviction cannot be sustained, since, there are material contradictions in the testimonies of PWs.1 to 5.
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013
38. Learned counsel for the appellants contended that the trial Court convicted the appellant solely on the basis of the testimonies of official witnesses.
39. From the perusal of entire material on record, it transpires from the evidence of PWs.1 and 5 that there are lot of discrepancies and contradictions, which can go to the very root of the matter. Further, the recovery of articles pursuant to the voluntary statements of accused persons, the Investigating Officer seized MOs.1 to 5 and the Investigating Officer has stated about the manner of recovery made by him at the hands of accused persons, but, in order to prove recovery and seizure, none of the independent witnesses supported the case of the prosecution. None of the witnesses have stated that, accused Nos.1 to 5 were preparing for committing dacoity and there was meeting of mind in order to commit crime. Further, the prosecution has failed to elicit the antecedents of accused persons as to whether they were involved in any other similar matters or not. In this case, PW.1 is none other than head constable of Chikkajala police station, who has stated about the raid conducted on accused persons and seizure of articles from
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 their possession. He admits that none of the public had lodged the complaint against the accused persons alleging that they were preparing for committing dacoity. So far as evidence of PW.2 Kumar, PW.3 Madhu and PW.4 Subramani, seizure mahazar witnesses and independent witnesses, they turned hostile to the case of the prosecution. Now, evidence of PW.5 H.J. Thippeswamy, Police Inspector would be available. He has stated about the manner of raid conducted on the accused persons. In the cross examination, he admits that he did not issue notice to panchas before conducting mahazar. He has not mentioned the particulars about M.O.1 to 5 in seizure mahazars. He has not conducted any investigation as to owner of Maruthi van bearing registration No.KA-02-N-6268 and he has not mentioned particulars of Maruthi van in the mahazar. PW.5 clearly admitted that, PW.1 Venkatesh has not stated before him that accused Nos.1 to 5 were interacting with each other as to commission of dacoity. He has not affixed any chits containing signatures of mahazar witnesses to M.O.1 to 5. He specifically admitted that the publics have not lodged any complaint alleging that accused persons were holding deadly weapons in order to commit crime. Hence, except the evidence
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 of PW.1 and 5, none of the independent witnesses have supported the case of the prosecution. In fact, their testimonies require corroboration from an independent witness. In this case, independent witnesses turned hostile hence, the evidence of official witnesses must be subjected to careful scrutiny and accepted with caution. Evidence of interested witness cannot be totally disregarded. It has to be scrutinized with care. If, on careful scrutiny, such evidence appears to be creditworthy, it can be acted upon. If presence of a witness at the scene cannot be doubted, his evidence is consistent with the surrounding circumstances and the probabilities of the case strike the court as true, his evidence can be a good foundation for conviction. The Court should carefully weigh the evidence and consider
(i) whether or not there are serious discrepancies in the evidence; (ii) whether or not the evidence appears to be genuine; and (iii) whether or not the story disclosed by the evidence is probable. Once the evidence is considered with care and caution, the fact that it is interested is no ground to discard the evidence.
40. In this case, PWs.1 and 5 are official witnesses and the Investigating Officer has also examined independent
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 witnesses, but, they have not supported the prosecution case. Hence, learned counsel for the appellants contended that since PWs.1 and 5 are official witnesses and interested witnesses, their testimonies cannot be believed in the absence of any corroboration from the independent witnesses. Admittedly, PWs.1 and 5 are official witnesses and the alleged seizure of M.O.1 to 5 were from the possession of the appellants. In order to support this aspect, PW.1 was examined and his testimony does not inspire the confidence of the Court. Though PW.1 and 5, being official witnesses, supported the case of the prosecution, there is full of omissions, contradictions and improvements in their testimonies. Looking into any angle, the evidence tendered by prosecution especially PW.1 and 5, do not inspire the confidence of the Court to convict the accused persons, on uncorroborated testimony, thus, the finding of the trial court requires interference by this Court.
41. Hence, the Court proceeds to pass the following:-
ORDER i. The appeal is allowed.
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NC: 2024:KHC:34655 CRL.A No. 1100 of 2013 ii. The impugned judgment of conviction and order of sentence dated 10.10.2013 passed by learned V Additional District and Sessions Judge, Devanahalli, in S.C.No.139/2012, is set aside.
iii. The appellants-accused Nos.1, 2, 3 and 5 are acquitted of the charges/offences punishable under Sections 399 and 402 of IPC.
iv. The bail bonds executed by accused Nos.1, 2, 3 and 5 and their sureties, stand cancelled.
v. The fine amount deposited by the appellants be returned to them.
vi. The Registry to send copy of this judgment along with Sessions Court records to Sessions Court within two weeks.
Sd/-
(VENKATESH NAIK T) JUDGE MN List No.: 1 Sl No.: 36