Karnataka High Court
Chay @ Soma @ Rajesh vs The State Of Karnataka on 25 July, 2018
Author: R.B Budihal
Bench: R.B Budihal
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY 2018
PRESENT
THE HON'BLE MR. JUSTICE BUDIHAL R.B.
AND
THE HON'BLE MR. JUSTICE B.A. PATIL
CRIMINAL APPEAL No.558/2015
BETWEEN:
1. Chay @ Soma @ Rajesh S/o Ravi
Aged about 27 years
Occ: Plastic flower merchant
R/o Hakkipikki Colony
Hanagudu Hobli,
Hunasur Taluk
Mysore District - 571 105.
2. Ananda S/o Ravi
Aged about 25 years
Occ: Plastic flower merchant
R/o Hakkipikki Colony
Hanagudu Hobli,
Hunasur Taluk
Mysore District - 571 105.
3. Basavaraja @ Kongadi
S/o Apparao
Aged about 45 years
Occ: Plastic flower merchant
R/o Hakkipikki Colony
Hanagudu Hobli,
Hunasur Taluk
Mysore District - 571 105.
2
Now R/o Asthapanahally
Nallur Village
Channagiri Taluk
Davanagere District - 577 213. ...APPELLANTS
(By Sri R.B.Deshpande, Advocate)
AND:
The State of Karnataka by
Bharamasagara Police Station
Chitradurga District - 577 519. ...RESPONDENT
(By Sri Vijayakumar Majage, Addl. SPP)
*****
This Criminal Appeal is filed under Section 374(2)
Cr.P.C., praying to set aside the order dated: 8.4.2015,
passed by the Prl. District and Sessions Judge, Chitradurga
in S.C.No.75/2012 - convicting the appellants/accused
Nos.1 to 3 for the offences p/u/s 395, 396, 397 and 398 of
IPC.
This Criminal Appeal coming on for Hearing, this day,
B.A. PATIL, J., delivered the following:-
JUDGMENT
The present appeal has been preferred by accused Nos.1 to 3, being aggrieved by the judgment of conviction and the order of sentence dated 8.4.2015 3 passed by the Principal District and Sessions Judge, Chitradurga, in S.C. No.75/2012.
2. Brief facts of the case as per the complaint (Ex.P.1) filed by one Sri Siddesh, son of Nagappa, are that he is residing in the address given in the complaint. On 21.1.2004 at about 9.00 p.m., he left Davanagere in a lorry bearing Reg. No.KA16 7335 by taking grocery materials to go to Chitradurga. The said lorry was driven by his elder brother Halesh. When they came near Gollarahalli of Bharamasagara on NH-4, by the side of the said road, they stopped the lorry. They had dinner in Indian Daba and they slept at about 10.00 p.m. It is further contended that by the side of the said road, 2-3 lorries were also standing,. In between 1.30 a.m. and 1.45 a.m., about 8 -10 persons came near the lorry and started pelting the stones. His brother Halesh got up and saw 10 persons holding the iron rod, macchu and knife and they were assaulting on his 4 brother and snatched Rs.2,000/- from his pocket and thereafter they assaulted his brother with knife on the left side of the eye and caused the bleeding injuries. It is further contended that by the side of their lorry, a lorry bearing No.KA-22-7302 was standing and the driver of the lorry one Dundappa, son of Basappa of Hidakal Dam, Hukkeri Taluk was also assaulted with knife and iron rod on his head and other parts of the body and caused the bleeding injuries. Thereafter, they also assaulted the cleaner of the said lorry Hanumantha (P.W.3) with stone and gave a blow on his mouth. As a result of the same, he lost his teeth and sustained the bleeding injuries to his stomach and other parts of the body. Thereafter, they also snatched the wrist watch. It is further stated that thereafter they assaulted Ashok, who is the driver of the lorry bearing Registration No.NH-04 BG-9359 and caused injuries to left side of the stomach and on the left side of the forearm and below the eye and also on his back. They assaulted the 5 cleaner Suresh on his head and left side of the thigh and lower parts of the body with the knife. Thereafter, they went to the owner of the Indian Daba and snatched Rs.2,000/- from his pocket. It is further stated that thereafter, the said persons also threw the stones on the lorry bearing No.KA-16-3921 and damaged the front glass and thereafter, they ran away. It is further stated that the injured were taken in different lorries to Bharamasagara Hospital and got them admitted. The driver of the lorry Dundappa expired at about 4.00 a.m. It is further contended that the alleged incident had taken place at about 21.01.2004 between 1.30 a.m. and 1.45 a.m. All the accused persons with a common intention, robbed Rs.4,000/-, a wrist watch and caused the death of Dundappa. It is further contended that the dacoits were wearing Khaki colour half pant, lungi and bunion. They were speaking in Telugu, Hindi and Kannada Languages. They were aged about 25 - 30 6 years. The complainant requested to trace the dacoits and to take legal action against them.
On the base of the said complaint, the case was registered in Crime No.9/2014 for the offences punishable under Sections 302 and 396 of IPC.
3. Though the alleged incident took place in the year 2004, but on 7.1.2008, the accused were apprehended in some other cases. During the course of investigation, the accused came to know that they were also involved in this case and as such, after completion of the investigation, the charge sheet was laid against accused Nos.1 to 3 by showing accused Nos.4 to 8 as absconding and split up case has been registered in this behalf. Thereafter, the case was committed to the Sessions Court. The learned Sessions Judge took cognizance and secured the presence of the accused persons. After hearing both the counsel, the learned Sessions Judge prepared the charge under Sections 7 395, 396, 397, 398 of IPC and the same was explained to the accused in the language known to them. The accused pleaded not guilty and claimed to be tried. As such, the trial was fixed.
4. In order to prove its case, the prosecution, in all, has examined 19 witnesses and got marked 22 exhibits and 8 material objects. On the side of the accused, no witnesses were examined nor any documents got marked.
Thereafter, the statement of the accused came to be recorded under Section 313 of Cr.P.C. by putting incriminating material as against them. The accused denied the same and they have not led any evidence in this behalf.
5. Thereafter, after hearing the learned counsel for the parties, the learned Sessions Judge has come to the conclusion that the evidence led by the prosecution witnesses is sufficient to convict the accused and 8 accordingly, accused Nos. 1 to 3 were convicted for the charges leveled against them. Being aggrieved by the same, accused Nos.1 to 3 are before this Court.
6. We have heard the learned Counsel Sri R.B. Deshpande appearing for the appellants accused and the learned Addl. SPP Sri Vijayakumar Majage for the respondent - State.
7. Apart from the grounds of appeal mentioned at ground Nos.1 to 19, the learned counsel for appellants- accused submitted that in the earlier incident, the case was registered against the unknown persons and subsequently, on 2.9.2005, 'C' Report came to be submitted to the Court stating that the accused had not been traced in the said crime, and subsequently on 7.1.2008, they have been apprehended in some other case and thereafter, the investigation was taken and the charge sheet has been filed. The learned Counsel has also contended that though the alleged incident 9 admittedly has taken place in between 1.30 a.m. and 1.45 a.m., and as per the case of the prosecution, the accused had covered their face with monkey cap and clothes, but when there being no proper identity and identification parade was also not held to connect the accused persons to the alleged crime, the learned Sessions Judge has erroneously convicted the appellants-accused. He further submitted that in the complaint, the complainant has only stated regarding the dress and features and no details of the persons who assaulted the injured and the deceased have been stated. But in spite of that only on the basis of the identification by P.W.2 in the Court, the learned Sessions Judge has come to the wrong conclusion by holding that accused are the persons involved in the said case and has wrongly convicted the accused. He further submitted that there is recovery of wrist watch. But the said watch has not been shown to the witnesses and the witnesses have also not identified that it is the 10 watch which was belonging to P.W.2 - Halesh. Under such circumstances, the contention that the said watch has been robbed at the time of alleged incident has also not been proved by the prosecution. In spite of that, the learned Sessions Judge has accepted the said evidence and has wrongly, convicted the accused. Though there is no worth believable evidence produced before the Court by the prosecution, the learned Sessions Judge has wrongly convicted the appellants-accused. On these grounds, he prays for allowing the appeal by setting aside the judgment and order of conviction and prays to acquit the accused.
8. Per contra, learned Additional SPP has vehemently argued by contending that though the test identification parade has not been held but in the evidence of P.W.2-the injured witness has clearly stated that when the alleged incident was going on, at that time, he removed the monkey cap of one of the accused 11 and identified as to he only assaulted the injured. In that light, he has identified the said person even before the Court also. On the basis of the said evidence, the learned Sessions Judge has rightly convicted the accused. The recovery of the wrist watch has also been proved by examining the panch witnesses. The investigation officer has also deposed about the same that the said wrist watch has been recovered from the possession of accused Nos.1 to 3. On these grounds, the learned Additional SPP submitted that there is ample material to connect the accused to the alleged crime and the accused have not made out any good grounds so as to interfere with the judgment and order of conviction and the order of sentence. The appeal is devoid of merits and the same is liable to be dismissed and hence, he prays for dismissal of the appeal.
9. We have heard the learned Counsel appearing for the appellants-accused and the learned Addl. SPP appearing for the respondent-State.
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10. During the course of the arguments, learned counsel for the appellants-accused has taken us through the entire evidence and the documents produced in this behalf. He has also taken us through the judgment of conviction and the order of sentence passed by the learned Sessions Judge. It is the case of the prosecution that on the intervening night of 20/21.01.2004 between 1.30 and 1.45 hours, the accused persons by covering their face with the monkey cap and the clothes, came near the Indian Daba and they pelted the stones there and thereafter, they have assaulted P.Ws.1, 2 and 3 and the deceased Dundappa and robbed Rs.2,000/- from P.W.2 and they have also robbed Rs.2,000/- from the owner of the Indian Daba. So far as the alleged incident is concerned, the prosecution has relied upon the evidence of P.Ws.1 to
19. 13
11. P.W.1 is the injured complainant. In his evidence, by reiterating the contents of the complaint, he has deposed that the owner of the Daba Chikkajjappa was making hue and cry that about Rs.4,000/- - 5,000/- have been snatched from him. He has also deposed that the dacoits, who were aged between 25 and 30 years were speaking in Hindi, Kannada languages and some of them were wearing Khaki colour nicker, lungi and covered their face with the monkey cap. His brother removed the monkey cap of one of them and at that time, he saw the face of some of them in tube light, which was in front of the Daba. He has further deposed that the three persons who were present before the Court are the same persons whom he had seen on that night and identified them that they were the members of the dacoity team. During the course of cross examination, P.W.1 has deposed that he did not remember as to whether he has stated before the police that these are the three persons whom he had 14 seen on that night. He has also deposed that as the alleged incident has taken place about 8 to 9 years back, he did not remember as to which of the aspects he has informed to the police. He has denied the suggestion that when they were fighting by holding the screw driver and the jack, at that time, they sustained the injuries.
12. P.W.2 is the brother of P.W.1, who has also sustained the injuries in the alleged incident. By reiterating the evidence of P.W.1, he has also deposed that when they slept at about 1.00 or 1.30 a.m., they heard galata sound and his brother woke up and came down from the lorry. About 8 to 10 persons by holding the knife and the iron rod came and caught hold of his brother and he escaped and he ran away. Thereafter, they damaged the glasses of the lorry and they opened the door of the cabin and by holding the collar of his shirt, took him down and they said in Hindi "Paise De 15 Paise De'' and for that, he told that he will give paise, "Marna Nakho". They put their hands into the pocket of his pant and took about Rs.2,000/- - 3000/- and they also snatched a wrist watch. He further deposed that, at that time, two persons caught hold him and another one, assaulted him on his stomach and also the on waist portion with the knife. He removed the monkey cap of one of the person and at that time the said person has also pearsed on his left eye with the knife and caused the injuries. As a result of the said injuries, the liver of his stomach came out. He has also deposed that the said group has assaulted the drivers and cleaners of the remaining lorries with the iron rod and the knife and also caused the damage to the glasses of the standing lorries. He has further deposed that his brother took him to the hospital. He has also deposed that when they were proceeding to the hospital, the said group pelted the stones on them, but they escaped and went away. He has further deposed that the age of the 16 persons, who had committed the offence, was between 25 and 30 years, some of them were wearing the Khaki nicker and pant. 2 to 3 persons were wearing the monkey cap to their face and some of them covered their face with clothes. They saw the said incident in tube light in the Daba. When he removed the monkey cap, at that time, he saw the face of the person. The person's whose monkey cap has been removed, is the same person who assaulted him on the left eye. He has also identified that, out of 3 persons present before the Court, the said person who is wearing the red colour shirt, is the person who assaulted him on the left side of the eye. He has also identified the remaining two persons who were holding his hand. He has also seen the face of those two persons in the tube light and identified them.
During the course of cross examination, P.W.2 has admitted the fact that when his wrist watch has been snatched, at that time, two persons were holding his 17 hands on the back side and another one assaulted him on his stomach and waist with the knife and those persons were wearing the monkey cap and he removed the monkey cap of one of them and identified that the said person assaulted on his left eye with the knife. About this fact, he has not stated before the police but he has deposed that his brother might have stated. He has further deposed that at the time of giving the statement before the police, he has given the statement that since he was assaulted with the knife and as there was drowsiness, he could not see the said persons.
13. P.W.3 has also narrated as to what has been stated by P.Ws.1 and 2 in detail. In his examination-in- chief, he has deposed that all those persons had covered their face with clothes and as there was darkness, it was not possible for him to see what type of clothes they wore. Now he cannot identified them.
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14. In so far as the evidence of P.Ws.4 to 9, though they were present at the time of the alleged incident, they have not supported the case of prosecution and even they have not identified any of the accused.
P.W.10 is the witness for seizure of the clothes of the deceased as per EX.P.5 and he is also the witness for the spot mahazar as per Ex.P.6.
P.W.11 is the doctor who examined the injured witness and has issued wound certificates as per Exs.P.7 to P.10.
P.W.12 is the police inspector who apprehended the accused persons.
P.Ws.13 to 17 are the official witnesses who have helped in investigation of the case.
P.W.18 is the PSI who registered the case and issued FIR.
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P.W.19 is the doctor who conducted autopsy over the body of the deceased Dundappa and issued PM report as per Ex.P.11.
15. It is the contention of the learned counsel for the appellants-accused that the alleged incident took place in the intervening night of 20/21.1.2004 in between 1.30 a.m. and 1.45 a.m. and the said persons who alleged to have made dacoity had covered their face with the cloth and the monkey cap. The entire evidence which has been produced before the Court does not disclose that they were the same persons who committed the alleged offence as on the date of the alleged incident. By going through the evidence of P.Ws.1 to 3 though P.W.2 in his evidence has deposed that in the tube light when he removed the monkey cap and at that time, he identified the accused who assaulted him on the left side of his eye, regarding that aspect also, there is no mention in the statement 20 recorded under Section 161 of Cr.P.C. Even if we peruse closely the complaint (Ex.P.1), nowhere P.W.1 has deposed the fact that the said dacoits were wearing the monkey cap on that day and at that time, P.W.2 removed and they have seen the face of one of the persons who was present in the said group. When that fact is very clearly established by the defence, then under such circumstances, the identity which has been made during the course of evidence led before the Court is not going to help the case of prosecution in any manner.
16. Be that as it may. Admittedly, the alleged incident has taken place between 1.30 a.m. and 1.45 a.m. The said persons who assaulted on that day and committed the dacoity were earlier not known to any of the witnesses who were present in the alleged incident. In that light, the records clearly go to show that no test identification has been held to identify the said accused 21 persons, even immediately after when they have been apprehended on 7.1.2008. The said mistake in the investigation is a glaring mistake which goes to the root of the case of prosecution. The evidence of P.W.2 discloses that he has seen the accused persons in the tube light which was there in front of the Daba. Even if we peruse the spot mahazar (Ex.P.6), nowhere it has been mentioned that there was the source of tube light available as on the date of the alleged incident and so also it was working. In that light also, the evidence which has been produced before the Court is not sufficient in this behalf.
17. Though the records disclose the fact that the recovery of the wrist watch has been made and the same has been produced under M.O.8, but when we closely go through the evidence of P.W.2, admittedly in his examination in chief itself, he has deposed that immediately after the assault, the accused snatched 22 Rs.2,000/- and they also snatched the wrist watch belonging to him. When he was in the witness box, the said M.O.8-watch was not shown to prove that it was the same watch which had been snatched at the time of the alleged incident. When the witness himself has not identified the said material object, which has been placed before the Court, then under such circumstances, it cannot be said that it is the same watch which has been snatched by the accused persons in the alleged incident. In that regard also, the evidence which has been led in this behalf is not sufficient to hold that it is the same watch which has been snatched and the same has been recovered at the instance of the accused persons during the course of investigation.
18. We have gone through the evidence of P.Ws.1 to 3 and compared the evidence of P.W.1 with Ex.P.1. There are so many omissions and contradictions. Even in the evidence of P.W.2, he has admitted the omission 23 which was not stated in the statement given before the police. When we closely scrutinize the impugned judgment of conviction and the order of sentence, the learned Sessions Judge, without considering the above said aspect has not come to the right conclusion and has wrongly convicted the appellants-accused. The accused have made out grounds to interfere with the impugned judgment and order of conviction. As such, the judgment and order of conviction is liable to be set aside.
19. Accordingly, the appeal is allowed. The judgment and order of conviction dated 08.04.2015 passed by the Principal District and Sessions Judge at Chitradurga in S.C. No.75/2012 as against the appellants-accused Nos.1 to 3 for the alleged offence is hereby set aside. The appellants-accused are acquitted from the charges levelled against them. 24
The jail authorities are hereby directed to release the appellants-accused forthwith, if not required in any other case.
Registry is hereby directed to send the operative portion of this judgment to the concerned prison authorities immediately.
Sd/-
JUDGE Sd/-
JUDGE Cs/-