In a criminal appeal against conviction for dacoity, the High Court held that the prosecution case failed due to the hostile resiling of primary witnesses and implausible sequence of events.
The judgment below set aside, the appellants acquitted, and bail bonds cancelled.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JUNE, 2016
BEFORE
THE HON’BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL APPEAL NO.3768/2010
BETWEEN:
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Resident of Bijasapur, Taluk: Shorapur, District: Yadgir.
… APPELLANTS
(Shri Avinash A. Uploankar, Advocate)
AND:
The State through Shorapur Police Station, District: Yadgir.
… RESPONDENT
(Shri P.S. Patil, Government Pleader)
This Criminal Appeal is filed under Section 374 (2) of Code of Criminal Procedure, 1973, praying to set aside the judgment dated 29.11.2010 passed in Sessions Case No.45/2010 on the file of the District and Sessions Court at Yadgiri convicting the appellants/accused for the offence punishable under Section 395 of Indian Penal Code and convicting the appellants/accused is sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 10,000/- each. In default, they shall undergo further rigorous imprisonment for a period of six more months for the offence punishable under Section 395 of Indian Penal Code.
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This appeal coming on for hearing this day, the Court delivered the following:
Heard the learned Counsel for the appellants and the learned Government Pleader.
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through the driver’s door and three others from the other door and one of them had threatened him with a knife and punched and kicked him and had snatched his mobile phone, while also pulling at his shirt and he was brought out of the lorry and was again kicked and punched and he was robbed of Rs.2,000/which he was carrying in his pant pocket and when the cleaner tried to put up a resistance, he was said to have been assaulted, repeatedly. Then the time was about 1.30 AM on 12.02.2009 and all the five persons after having taken away cash and a cell phone of the complainant had fled away in the car bearing Registration No.KA-36/M-1536 and on the basis of the complaint which was lodged at about 3.00 AM with the Shorapur Police, a case was registered in Crime No.32/2009 against unknown persons and in the course of investigation on the very same day all the five accused were said to have been apprehended at Shahapur and the cell phone belonging to the complainant as well as cash was recovered from them and they were then produced before the Judicial Magistrate and were
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promptly remanded to judicial custody. Thereafter, after completion of the investigation, a charge sheet was said to have been filed. The case was then committed to the Court of Sessions, Gulbarga. The charges were thereafter framed. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 13 witnesses and marked several exhibits. The Court below framed the following issues for consideration:
And answered the same in the affirmative and convicted the accused.
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support of the grounds raised in the appeal that the very sequence of events as sought to be urged by the prosecution cannot be readily accepted. Apart from the inconsistencies and improbabilities that emerge from the sequence of events, the involvement of the present appellants as the accused is also not established on the basis of the evidence tendered. It is pointed out that if the evidence of the prosecution is examined, it cannot be said that the charges against the accused were proved at all and certainly not beyond all reasonable doubt.
the accused at the time of the incident when the light in the cabin of the lorry was turned on and that it was further alleged that accused No.1 had assaulted him on his face and had snatched the cash and the third accused had taken away his cell phone and he was assaulted by all the accused thereafter, apart
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from the cleaner of the lorry also being assaulted and thereafter the accused having fled with the car in which them had come.
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in respect of the seizure so made. This evidence was said to have been supported by PW-9 the Assistant Sub-Inspector and PW-12 the Head Constable.
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submit that this exercise of eschewing the later statement resiling from their earlier version being adopted, results in grave prejudice to the accused and it is also pointed out that notwithstanding the above inconsistencies in the evidence of PW-1 and PW-2, whose evidence was crucial for the prosecution to establish its case, being reconciled with reference to a decision of the Supreme Court reported in 2002 Supreme Court Cases (Crimes) 568 is wholly in a different context and would not be relevant to the case on hand and therefore would submit that the summary judgment of the trial Court seeking to hold that the evidence of PW-1 and PW-2 cannot be rejected though they have resiled from their earlier version, during the course of cross-examination and since there was an interval of five months between the dates on which the witnesses had made their respective versions, would be explanatory for their changed stance and since the police witness especially PW-10 who was successful in apprehending the accused not very far from the place where the incident had
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occurred and the clinching evidence of the cash and cell phone belonging to the complainant having been recovered, would certainly enable the prosecution to contend that it has brought home the charges against the accused, is perverse finding which cannot be sustained and therefore would seek that the accused be acquitted.
the other door of the lorry’s cabin, while the driver was occupying his seat and PW-2 the cleaner was occupying the passengers’ seat and to be able to simultaneously enter the
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cabin of the lorry and to indulge in a scuffle with the driver and cleaner, certainly boggles the mind. The manner in which all of them were able to get themselves inside the cabin of the lorry while carrying on a physical struggle is beyond one’s imagination. In any event, even if this sequence is accepted, the fact that the incident has occurred at 1.30 AM would indicate that there was little light in which the accused could be identified and when they are all totally strangers, the recall of the identity even if there was light in the cabin, as claimed by the complainant, is again difficult to accept. In a moment of extreme danger, when a person is being attacked by several people in the middle of nowhere and at such a late hour, the human mind to be able to recognise and to also be able to recall the identity of a person with any degree of certainty, cannot be readily accepted.
also apprehended by PW-10 on the very same day, not far from
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the scene of crime, is also not consistent with the behaviour of criminals, after having committed a serious crime, to be loitering in the very vicinity, without a care as to their apprehension by the police and on the basis of the alleged voluntary statements and seizures said to have been made of cash and cell phone, without there being any possible manner of establishing that the cash seized and the cell phone seized were that of the complainant, is again a presumption which cannot be readily accepted.
the accused or they having lent the car to the accused and asserting that the car had always remained in their possession, further dilutes the case of the prosecution that it was indeed the car mentioned, which was used in the commission of the alleged offence. Therefore, with these peculiar circumstances
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and the significant circumstance that PW-1 and PW-2 had chosen to resile from their version, rendered in the first instance and though there is an interval of five months between the period that they first made a statement before the Court and later resiled from that version, would make little difference when the entire edifice of the prosecution case would collapse in the statements of these two crucial witnesses being contradictory to their earlier statements. The trial Court’s endeavor to reconcile the statements so made, by holding that the evidence tendered in the first instance cannot be negated and seeking to draw sustenance from a decision of the Supreme Court by merely quoting the head note from a report of the said case is a very unfortunate manner relying on a precedent in arriving at the legal principle as to whether such statements could be eschewed in order to sustain the serious charge against the accused. Therefore, it cannot be said that the prosecution had established its case beyond all reasonable doubt.
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Sd/JUDGE
swk
2 issues framed by the court
Whether the prosecution case against the appellants for dacoity was proved beyond all reasonable doubt despite the primary witnesses resiling from their identification.
Whether the trial court could sustain the conviction by reconciling the contradictory statements of hostile witnesses PW-1 and PW-2.
2 provisions across 2 enactments
Jameer S/o Abdul Gani
Shakeel S/o Mehaboobsab Shaikh
Saleem S/o Abdul Rasheed
Usmansab S/o Chand Patel
Damodar S/o Tippanna Nayak
The State
Anand Byrareddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
