Allowed

Saleem S/O Shareali Shaikh v. the State of Karnataka

Karnataka HC17 Mar 2020CRL.A/100308/2016

Case brief

AI extract

What is this about?

High Court allowed criminal appeals filed by three accused persons convicted in a snatching case. The court set aside the conviction and acquitted the appellants, finding that the prosecution failed to prove identification without a TID parade and that recovery evidence was not at the instance of the accused.

What did the court decide?

Judgment and order of conviction dated 30.07.2016 and 12.08.2016 set aside. Appellants acquitted. Jail authorities directed to release the appellants forthwith unless required in other cases.

Saleem S/O Shareali Shaikh Vs the State of Karnataka — Cheating and Forgery | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 17^TH DAY OF MARCH 2020

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PRESENT

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THE HON’BLE MR.JUSTICE B.A.PATIL

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AND

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THE HON’BLE MR.JUSTICE M.I.ARUN

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CRIMINAL APPEAL NO.100308/2016 C/W CRIMINAL APPEAL NO.100310/2016

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IN CRL.A. NO.100308/2016:

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BETWEEN

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SALEEM S/O SHAREALI SHAIKH, AGE: 26 YEARS, R/O: SHRIRAMPUR, AHMED NAGAR, STATE: MAHARASHTRA.

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MOHAMMED SAYENDOOR IRANI @ MOHAMMADALI JAFARI, AGE: 20 YEARS, R/O: LONI KALBOR, PATHARE BASTI, IRANI COLONY, PUNE.

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APPELLANTS

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(BY SRI.K.M.SHIRALLI, ADVOCATE)

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AND

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THE STATE OF KARANTAKA BY PI, APMC YARD P.S. BELAGAVI, R/BY S.P.P HIGH COURT OF KARANTAKA, BENCH DHARWAD.

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RESPONDENT (BY SRI.V.M.BANAKAR, ADDL. S.P.P.)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 30.07.2016 AND 12.08.2016 PASSED IN S.C. NO.20/2016 ARISING OUT OF BELAGAVI APMC YARD P.S. CRIME NO.34/2015 BY THE LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI & ETC.

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IN CRL.A. NO. 100310/2016:

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BETWEEN

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SHRI HYDER MUSA IRANI, AGE: 23 YERS, R/O: SHRIRAMPUR, AHMED NAGAR, STATE: MAHARASHTRA.

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APPELLANT

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(BY SRI.K.M.SHIRALLI, ADVOCATE)

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AND

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THE STATE OF KARNATAKA, BY PI, APMC YARD P.S. R/BY S.P.P. HIGH COURT OF KARNATAKA, BENCH DHARWAD.

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 30.07.2016 AND 12.08.2016 PASSED IN S.C. NO.186/2016 ARISING OUT OF BELAGAVI APMC YARD P.S. CRIME NO.34/2015 BY THE HON'BLE I ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI & ETC.

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THESE CRIMINAL APPEALS COMING ON FOR ORDERS THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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These appeals have been preferred by the

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appellants – accused Nos.1 to 3 in Crime No. 34/2015 against a common judgment and order of sentence passed by the learned I Additional Sessions Judge, Belagavi in S.C. No.20/2016 and 186/2016 dated 30.07.2016.

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We have heard the learned counsel for the appellants – accused and the learned Additional S.P.P. for the respondent – State.

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The gist of the complaint is that on or about

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25.02.2015 at about 10:15 a.m., the complainant was proceeding to Haridra Temple and while coming back from the temple at about 10.15 a.m. some unknown persons came on the motorcycle from the opposite and the person who was on the motorcycle came near her and asked about the address of one Shinde in Marathi language, the complainant told that she do not know the said addressee, in the meanwhile he snatched her

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mangalya chain forcefully and ran away and thereafter boarded the motorcycle which was waiting for him and they went on the said motorcycle. On the basis of the complaint, a case has been registered in Crime No.34/2015. Thereafter, after investigation, charge sheet has been filed. The said case has been committed by the learned JMFC IV Court, Belagavi to the Sessions Court, after following the procedure laid down under Section 207 of Cr.P.C. Thereafter, the Sessions Court took the cognizance and secured the presence of the accused and after hearing the learned counsel appearing for the parties and perusal of the records, charge was prepared and read over and explained to the accused. Accused pleaded not guilty and claimed to be tried and as such, trial was fixed.

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In order to prove the case of the prosecution, the prosecution got examined 10 witnesses and got marked 13 documents and 2 material objects. Thereafter, the statement of the accused was recorded

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by putting incriminating materials against the

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appellants – accused. Accused denied the same. The accused have not led any evidence nor got marked any documents. After hearing the learned counsel appearing for the parties, the Trial Court convicted the accused. Challenging the legality and correctness, the appellants are before this Court.

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The main grounds urged by the learned counsel for the appellants are that the judgment of conviction and order of sentence is contrary to law, evidence, facts and probabilities. It is his further submission that the case has been registered as against the accused on the basis of the complaint against unknown persons and the identification and description of the accused was not given. Under such circumstances, the Investigating Agency ought to have held the test identification parade, as contemplated under Section 9 of the Evidence Act. Without holding the test identification parade, the said evidence is not

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admissible in law. The trial court relied upon such evidence and has wrongly convicted the accused. It is his further submission that the Manager of the Jyotiba Lodge at Kolhapur and he has given vague evidence that three persons came in the lodge and stayed. But no substantive material has been produced to show that these are the same three accused persons who came and stayed in the said lodge without link, his evidence is not acceptable.

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It is his further submission that the trial court has

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mainly relied upon the evidence of recovery at the instance of the accused. But the recovery evidence produced is not in accordance with law and even it is no recovery as contemplated under Section 27 of the Evidence Act. Though all these lacunas were in existence in the evidence of prosecution, without looking in to the same, erroneously the trial court has come to a wrong conclusion and has wrongly convicted the accused. On these grounds he prayed to allow the

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appeal and to acquit the accused by setting aside the judgment of conviction and order of sentence.

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Per contra, the learned additional SPP vehemently

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argued and submitted that all the witnesses who have been examined before the court have supported the case of the prosecution. The complainant has identified the accused persons for having snatched gold chain from her neck and thereafter recovery mahazar pancha has clearly stated that, at the instance of the accused the gold articles which have been snatched and stolen have been recovered. Recovery mahazar pancha of the motorcycle has supported the recovery of motorcycle which has been used for the commission of offence and the same has been seized. The Police Inspector has clearly stated that he has recorded voluntary statement of the accused and in pursuance of the statement, accused has led and the articles have been recovered and the same have been identified by the complainant and the same have been returned to the complainant.

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Taking into the consideration the said aspect, the trial court has come to a right conclusion and has rightly convicted the accused.

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It is his further submission that the accused persons are habitual offenders and they are involved in many more cases. If that is also taken into consideration, the other things are only irregularity and not illegality. There are no good grounds to interfere with the judgment of the trial court. In that light, he prayed to dismiss the appeals.

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We have carefully and cautiously gone through the submissions made by the learned counsels for the parties and perused the records.

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The first and foremost contention which has been taken up by the learned counsel for the appellantsaccused is that, the accused persons were not known either to the complainant or to the witnesses. Under such circumstances, the test identification parade is

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very much necessary. If the test identification parade is not made, then under such circumstances the identity of the accused itself is doubtful.

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We are conscious of the fact that the whole idea of

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test identification parade is that, witnesses who claim to have seen the accused are the culprits at the time of occurrence or to identify them from the bids of the other persons without any aid or any other sources. The test identification parade is going to be conducted to know the veracity of the witnesses to show that these are the main accused persons who have been involved in the said case. Test Identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibilities of accused being shown to the witnesses prior to the test identification parade and if the test identification parade is not made, then under such circumstances, there is every possibility of false implication. It is also well settled proposition of law that

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when the accused persons are not previously known to the witnesses and their description has also not been given in the complaint, then under such circumstances, the test identification parade is must. This proposition of law has been laid-down by Hon’ble Apex Court in the case of Mahabir V. State of Delhi , reported in AIR 2008 SC 2343 . At paragraph No.11 it has been observed as under:

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“11. As was observed by this Court in Matru v. State of U.P. (1971 (2) SCC 75) identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain (1973 (2) SCC 406). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore,

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there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the ‘Evidence Act’). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.”

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11. Merely because the test identification parade has

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not been conducted by the investing agency will not enure to the benefit of the accused, but it is only a corroborative evidence. Failure to hold them would not make inadmissible the evidence of identification in Court. Though the evidence of complainant discloses that she has seen the accused at the time of showing the gold articles but she has not deposed that they are the persons who snatched the chain. If really she has seen the accused, then under such circumstances definitely she could have identified in the court and could have given some description of the accused persons in the complaint. On perusal of the complaint

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nothing is forthcoming to show that these are the persons who have involved in snatching of the gold chain from the neck of the complainant. Non holding of test identification parade would render unsafe for reliance on the evidence of such witness without reliable and trustworthy evidence of the witnesses.

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Be that as it may, as per the contents of the complaint she has disclosed that one person was riding the motorbike and another person was sitting on the backside and the person who was sitting on the backside has snatched the chain. But the case has been registered against three accused persons. What exactly the role which has been played by the accused No.3 is not forthcoming in the complaint itself. In that light, it creates doubt in the case of prosecution.

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Secondly, it is the case of the appellants that the recovery which is made during the course of investigation, is not in accordance with law. To

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establish recovery, the prosecution got examined the evidence of recovery mahazar pancha and the investigating officer. On perusal of the evidence of recovery mahazar pancha, he has deposed that he himself and another witness were called by the Police and accused was also there. He has further deposed that accused has come there by snatching the chain and he has not specifically deposed about the confessional statement or voluntary statement said to have been made by the accused before the Police nor that he has spoken that the Police informed for what purpose he has been called. Even on close reading of the evidence of this witness, he has not deposed that it is the accused made the disclosure statement thereafter proceeded ahead by leading the witness and the Police and thereafter the incriminating materials or articles have been shown or produced and recovered. If the recovery is not at the instance of the accused, then

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under such circumstances it does not amount to recovery.

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The prosecution has also relied upon the evidence

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of the investigating officer. In his evidence he has deposed that he recorded the voluntary statement of the accused and at his instance recovery has been made. On perusal of his evidence it is clear that the recovery is not made at the instance of the accused. When they went to the house of one Salma, there certain articles have been produced and thereafter the accused was taken to the house of one Hussain and the said person has produced certain articles.

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As per Section 27 of the Evidence Act, in pursuance of the discovery statement of one accused led to discovery of so many gold articles. Even the articles belonging to the other accused persons, it is not recovery. We are conscious of the fact that no corroboration and independent witness is required and even the evidence of Police Officials can be relied upon if

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it is trustworthy and reliable and if the circumstances leading to discovery lead to some suspicion regarding the alleged recovery, then the recovery cannot be relied upon.

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The major aspect is that there must be evidence to show connecting link between the offence and the recovery of the articles at the instance of the accused. In that light, if the evidence of recovery mahazar witnesses and the investigating officer is looked into, then there is no corroboration. It is held by the Hon’ble Apex Court in the case of Dashrath @ Champa and Ors V. State of Madhya Pradesh reported in AIR 2008 SC 1021 that the discovery is a weak kind of evidence and cannot be wholly relied upon when the vital facts are not acceptable in the evidence of the prosecution witnesses.

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When recovery of the gold articles itself is doubtful and also there is a delay in the recovery of the

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gold articles, under such circumstances we are of the considered opinion that the evidence produced in this behalf is not cogent and acceptable. When in a case where more than one accused are involved and collectively if the property has been recovered, failure of the investigation report to clearly specify and connect any particular accused that the disposal and the recovery of the incriminating article is held to be fatal. In that light, we went to rely upon the decision of the apex Court reported in AIR 1983 SC 367 .

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Though during the course of judgment, the trial Court has observed that the complainant has identified the articles which have been recovered at the instance of the accused, but mere identification of the articles by complainant is not the letter and spirit of the recovery as contemplated u/S 27 of the Act.

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Though during the course of arguments, the learned Addl. SPP contended that the accused persons

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are habitual offenders and they have been involved in many more cases but merely because the accused persons are habitual offenders, no inference can be drawn that they are the culprits and they should be convicted. What is required before the Court is the legal evidence and not the moral conviction.

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Taking into consideration the above said

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circumstances, the evidence with regard to recovery is not straight forward and it will not throw any light so as to bring home the guilt of the accused beyond all reasonable doubt.

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Taking into consideration the above said facts and circumstances, we are of the considered opinion that the appreciation of the evidence and the final decision arrived at by the learned Sessions Judge is not in accordance with law and the same is liable to be set aside. Hence, we pass the following order.

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ORDER

Appeals are allowed.

Consequently, the judgment of conviction

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and order of sentence dated 30.07.2016 and 12.08.2016 in S.C. No. 20/2016 and S.C. No. 186/2016 respectively passed by the learned I Addl. Sessions Judge, Belagavi, are set aside. The appellants in both the appeals are hereby acquitted of the charges levelled against them.

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Jail authorities are hereby directed to release the appellants–accused, (1) Mr.Saleem, (2) Mr.Mohammed Sayednoor Irani @ Mohammadali Jafari, and (3) Mr.Hyder Musa Irani, if they are not required in any other case.

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Registry is directed to intimate the jail authorities for release of the appellants

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forthwith, if they are not required in any other

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case.

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SD JUDGE

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SD JUDGE