High Court set aside convictions in a snatching case. IT held absence of T ID parade fatal for unknown accused and recovery lacked link to confession. Appellants acquitted.
Judgment of conviction and sentence set aside; appellants acquitted and ordered to be released from jail.
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.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 17TH DAY OF MARCH 2020
PRESENT
THE HON’BLE MR.JUSTICE B.A.PATIL
AND
THE HON’BLE MR.JUSTICE M.I.ARUN
CRIMINAL APPEAL NO.100314/2016 C/W CRIMINAL APPEAL NO.100237/2016
IN CRL.A. NO.100314/2016:
BETWEEN
MOHAMMED SAYEDNOOR IRANI @ MOHAMMED JAFARI, AGE: 21 YEARS, R/O: LONI KALBOR, PATHARE BASTI, IRANI COLONY, PUNE.
(BY SRI.K.M.SHIRALLI, ADVOCATE)
AND
THE STATE OF KARANTAKA BY PI, MALMARUTI P.S. BELAGAVI, R/BY S.P.P HIGH COURT OF KARANTAKA, BENCH DHARWAD.
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.238/2015 ARISING OUT OF BELAGAVI
: 2 :
MALMARUTI P.S. CRIME NO.63/2015 BY THE LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI & ETC.
IN CRL.A. NO. 100237/2016:
BETWEEN
RAFIQ @ MOHAMMED RAFIQ, S/O MEHBOOB SHAIKH, AGE: 58 YEARS, OCC.: PRIVATE WORK, R/O SHRIRAMPUR, WARD-II, SUBEDAR BASTI, NEAR NEW WATER TANK, AHAMED NAGAR, MAHARASHTRA STATE,
(BY SRI.AHAMEDALI RAHIMANSHAH, ADVOCATE)
AND
THE STATE OF KARNATAKA BY ITS MALMARUTI POLICE STATION, BELAGAVI THROUGH ITS STATE PUBLIC PROSECUTOR, HIGH COURT, BENCH DHARWAD.
(BY SRI.V.M.BANAKAR, ADDL. S.P.P.)
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.238/2016 ARISING OUT OF BELAGAVI MALMARUTI P.S. CRIME NO.63/2015 BY THE LEARNED I ADDL. DISTRICT AND SESSIONS JUDGE BELAGAVI & ETC.
THESE CRIMINAL APPEALS COMING ON FOR ORDERS THIS DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
: 3 :
JUDGMENT
These appeals have been preferred by the
appellants – accused Nos.1 and 3 in Crime No. 63/2015 against a common judgment and order of sentence passed by the learned I Additional Sessions Judge, Belagavi in S.C. No.238/2015 dated 30.07.2016.
: 4 :
charge sheet has been filed. The said case has been committed by the learned JMFC II 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.
: 5 :
Challenging the legality and correctness, the appellants
are before this Court.
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 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
: 6 :
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.
: 7 :
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. Taking into the consideration the said aspect, the trial court has come to a right conclusion and has rightly convicted the accused.
It is his further submission that the accused persons are habitual offenders and they are involved in
: 8 :
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.
9. 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 very much necessary. If the test identification parade is not made, then under such circumstances the identity of the accused itself is doubtful.
test identification parade is that, witnesses who claim to
: 9 :
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 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
: 10 :
case of Mahabir V. State of Delhi , reported in AIR 2008 SC 2343 . At paragraph No.11 it has been observed as under:
“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, 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,
: 11 :
however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.”
11. Merely because the test identification parade has
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 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
: 12 :
reliance on the evidence of such witness without reliable
and trustworthy evidence of the witnesses.
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.
investigation, is not in accordance with law. To 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
: 13 :
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 under such circumstances it does not amount to recovery.
: 14 :
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.
: 15 :
: 16 :
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 .
: 17 :
convicted. What is required before the Court is the legal evidence and not the moral conviction.
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.
ORDER
Appeals are allowed.
Consequently, the judgment of conviction
and order of sentence dated 30.07.2016 and 12.08.2016 in S.C. No. 238/2015 passed by the
: 18 :
learned I Addl. Sessions Judge, Belagavi, are set aside. The appellants in both the appeals are hereby acquitted of the charges levelled against them.
Jail authorities are hereby directed to release the appellants–accused, (1)Mr.Mohammed Sayedoor Irani @ Mohammed Jafari, and (2) Rafiq @ Mohammed Rafiq, if they are not required in any other case.
Registry is directed to intimate the jail authorities for release of the appellants forthwith, if they are not required in any other case.
SD JUDGE
SD JUDGE
bvv
3 issues framed by the court
Whether the conviction is sustainable in absence of a test identification parade when accused were unknown to witnesses.
Whether recovery of stolen articles is admissible under Section 27 of the Evidence Act in absence of a clear confession by the accused.
Whether appreciation of evidence in the lower court was legally sustainable.
Colour shows how this judgement treated each authority
Mahabir V. State of DelhiFollowed¶61
AIR 2008 SC 2343 · Who else cites this
Matru v. State of U.P.Referred¶62
(1971 (2) SCC 75) · Who else cites this
Dashrath @ Champa and Ors V. State of Madhya PradeshFollowed¶82
AIR 2008 SC 1021 · Who else cites this
AIR 1983 SC 367 · Who else cites this
2 provisions across 1 enactments
Mohammed Sayednoor Irani @ Mohammed Jafari
Rafiq @ Mohammed Rafiq
The State of Karnataka
B.A. Patil
M.I. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
