Allowed

Krishna @ Katraju S/O Eranna v. the State of Karnataka

Karnataka HC14 Oct 2020CRL.A/2809/2012

Case brief

AI extract

What is this about?

In this criminal appeal, the High Court of Karnataka allowed the appeal and acquitted the appellants. The Court held that the conviction for robbery was unsustainable due to material contradictions in the eyewitness accounts regarding the Test Identification Parade and the fact that stolen items were recovered from a different accused.

What did the court decide?

The judgment and order of conviction and sentence passed by the trial Court are set aside and the appellants are acquitted. Bail bonds are cancelled and any deposited fine is refunded.

Krishna @ Katraju S/O Eranna 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 14^TH DAY OF OCTOBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ

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CRL.A. NO.2809 OF 2012

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BETWEEN:

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KRISHNA @ KATRAJU S/O ERANNA AGE: 25 YEARS, OCC: MESTRI R/O. BELLARY

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SAGAR S/O NARAYANAPPA AGE: 25 YEARS, OCC: DRIVER R/O. BELLARY

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...APPELLANTS (BY SRI. HANUMANTHAREDDY SAHUKAR, ADV.)

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AND

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THE STATE OF KARNATAKA BY THE POLICE INSPECTOR GANDHINAGAR POLICE STATION BELLARY, R/BY ITS STATE PUBLIC PROSECUTOR,HIGH COURT OF KARNATAKA, DHARWAD

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... RESPONDENT

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(BY SMT. SEEMA SHIVA NAIK, HCGP)

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THIS CRIMINAL APPEAL IS FILED U/S 374(2) OF CR.P.C. SEEKING TO SET ASIDE THE ORDER OF CONVICTION AND SENTENCE DATED 16/17.7.2012 IN S.C.NO.160/2011 PASSED BY THE II-ADDL. SESSIONS JUDGE, BELLARY, AND ACQUIT THE APPELLANTS BY ALLOWING THE ABOV E APPEAL.

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THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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JUDGMENT

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This appeal is preferred by accused Nos.3 and 5 challenging the impugned judgment passed in SC No.160/2011 on the file of the II Addl. District and Sessions Judge, Ballari, wherein the learned Sessions Judge by judgment and order dated 16/17.7.2012, has convicted them for the offence punishable under Section 392 of IPC.

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Heard the learned counsel for the appellants and the learned HCGP for the respondent-State.

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Briefly stated, case of the prosecution is that, on 27.5.2010 at about 8.30 p.m., at BUDA plots situated behind KEB, Moka road, Ballari, while first informant by name Muddassir (PW1) and his friend Mohammed Noor (PW6) were proceeding on Hero Honda motor cycle bearing No.KA-35/L-980, suddenly six accused persons came on three motorcycles namely, black coloured

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Bajaj Discover bearing registration No.KA-34/S2412, black coloured Hero Honda Splendor motorcycle bearing registration No.KA-35/R-5659 and blue coloured Bajaj motorcycle without number plate, from opposite direction and wrongfully restrained PW1 and PW6 and abused them in filthy language. Two of the accused were holding wooden clubs. One of the accused slapped PW1 and gave threat to his life and robbed a gold neck chain, gold ring and cash of Rs.300/-, in all valued at Rs.19,500/-. Thereafter, they went away threatening PW1 and 6 with dire consequences if they disclose the incident to others.

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The trial Court was pleased to acquit accused Nos.1, 2, 4 and 6 and convicted accused Nos.3 and 5, i.e. present appellants, for an offence punishable under Section 392 of IPC and sentenced them to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/-

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each and in default of payment of fine, to undergo simple imprisonment for a period of three months.

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Assailing the aforesaid judgment and order

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of conviction and sentence passed by the trial Court, the learned counsel for the appellants has contended that the prosecution has not established the guilt of accused beyond all reasonable doubt. The learned Sessions Judge has convicted them only on the basis of the result of test identification parade. However, PW1 has categorically denied having identified any of the accused much less the present appellants in the test identification parade. He submits that the evidence of PW1 is not sufficient to hold the accused guilty for an offence under Section 392 of IPC. The learned Sessions Judge on the same set of evidence has acquitted other accused persons. Panch witnesses have not supported the prosecution case. There are discrepancies in the

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evidence of official witnesses with regard to drawing up of spot mahazar, arrest of the accused and seizure of articles. He submits that the entire approach of the learned Sessions Judge in convicting the appellants has resulted in miscarriage of justice. Accordingly, he seeks to allow the appeal.

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Per contra, the learned HCGP would contend that PW1 has identified the present appellants as the persons who robbed golden articles and cash from him. PW7-Taluka Executive Magistrate has conducted the test identification parade in which PW1 and PW6 have identified the present appellants namely accused Nos.3 and 5. PW4, 5 and 11 are the police officials and there is no animosity for them to falsely implicate the present appellants. Their evidence does not suffer from any discrepancies. Therefore, she submits that the trial Court has rightly convicted the

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present appellants against whom the prosecution has established its case. Accordingly, she seeks to dismiss the appeal.

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To establish its case, prosecution has got examined PW1 to 11 and got marked Exs.P1 to P20 and MOs1 to 3. PW1 is the first informant and he is the victim. The complaint lodged by him is marked as Ex.P1. According to the first information report, on 27.5.2010 at about 8.30 p.m., PW1 was proceeding on a motor cycle bearing registration No.KA-35/L-980 along with his friend Mohammed Noor (PW6). At that time, six unknown persons came on three motor cycles from the opposite direction and stopped his vehicle. One of the accused slapped him. Two of the accused were holding wooden clubs and they threatened them. One of the accused removed the gold chain and gold ring worn by PW1. They also took away a cash of Rs.300 from his pocket.

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Thereafter, they threatened PW1 and PW6 with dire consequences and went away in their motor cycles.

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On the basis of the above complaint, PW10-PSI of Gandhinagar Police Station, registered a case against six unknown persons and sent the FIR-Ex.P16 to the jurisdictional Court. PW11-Police Inspector, who took over further investigation has stated that while he was on patrolling duty along with his staff, saw 5-6 persons standing near Greenworld School. They apprehended four of them and two others escaped. He has stated that, two of the accused were carrying two clubs. Accused No.6 by name Hanumantha informed them that on 26.5.2010 at about 8.30 p.m., they have robbed golden ornaments and cash from a person and they were once again waiting to commit another robbery. PW11 secured two panchas i.e. PW3 and PW9 to

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the spot and seized two clubs, three motor cycles,

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a gold chain weighing 8 grams, a gold ring weighing 4 grams and cash of Rs.300/-. He has further stated that on the voluntary statement given by Accused No.6-Hanumantha, few more golden articles were recovered from his house under Ex.P7. At the instance of Accused No.4, gold chain weighing 20 grams was recovered, which was concealed near Brahmadevara Gudi Bridge.

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PW11 has stated that on 7.7.2010, accused No.2-Venkatesh @ Gunda surrendered himself before the Court. On 16.8.2010, accused No.1-Soori @ Suresh was arrested.

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According to prosecution, PW11 arrested accused Nos.3 to 6 on 27.5.2010 during night hours when he was on patrolling duty along with other police officials. PW4-Head Constable and PW5-ASI have also stated that on 27.5.2010 at about 10.30 p.m., they apprehended the accused and seized the aforesaid articles.

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11. According to the prosecution,

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a requisition was made for conducting the test identification parade and after issuance of notice to PW1 and 6, PW7-Tahasildar conducted test identification parade in respect of Accused No.3 to 6 on 6.7.2010 and accused No.1 and 2 on 6.8.2010. PW7 has stated that when he conducted test identification parade on 6.7.2010, only accused Nos.3 and 5 were present. Both PW1 and 6 identified the said accused No.3 and 5. Reports issued by PW7 are marked as Exs.P11 and 12.

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PW7 has stated that in the test identification parade conducted on 6.8.2010, only accused No.2 namely Venkatesh @ Gunda was present. He has stated that both PW1 and 6 failed to identify the said accused. His reports are marked as Exs.P14 and 15.

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Interestingly, PW1 has completely

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denied having identified accused Nos.3 and 5 in the test identification parade. PW1 has stated

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that he has not gone to Central Prison, Ballari and he was not shown any of the accused. He has denied that PW7 has conducted test identification parade and he has categorically denied having identified accused Nos.3 and 5 in the test identification parade.

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According to PW1, on 27.5.2010 at about 8.30 p.m., he was proceeding on his motor cycle along with his friend Mohammed Noor (PW6) and at that time, six accused came from the opposite direction on three motor cycles and stopped them. PW6 has not supported the case. He has been treated hostile by the prosecution. Nothing is elicited from his cross-examination to connect the accused/appellants in the crime.

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PW1 has stated that one of the accused slapped him on his face and removed the gold chain and ring from him. The accused also took away a cash of Rs.300/-. He has stated that two of the accused were holding wooden sticks. Even

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though in the complaint he has mentioned the registration number of two motorcycles, but in his evidence he has stated that three motorcycles did not have any registration number. According to him, it is Hanumantha (accused No.6) and Sagar (accused No.5) who stopped them while they were proceeding on a motor cycle. Thereafter, the 1^st accused slapped him on his face and took away the chain, ring and cash from him. He has stated that accused No.3-Krishna was holding a wooden club. He has stated that he could not identify other accused persons.

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A perusal of the evidence of

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Investigating Officer – PW11, goes to show that, accused No.6 disclosed to him that on the previous day at about 8.30 p.m. they had robbed gold ornaments and cash from one person. PW11 has stated that from the said accused namely Hanumantha (Accused No.6) a gold chain weighing

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8 grams, gold ring weighing 4 grams and cash of Rs.300/- was recovered in the presence of panch witnesses namely PW3 and PW9. Even PW4 has stated that it is from accused by name Hanumantha, golden articles and wooden clubs were recovered. PW2 and PW8 are the panch witnesses to the spot mahazar-Ex.P4. PW8 has not supported the case of prosecution and he has been treated hostile.

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PW3 and PW9 are the panch witnesses to Ex.P5 to P6. Both the witnesses have turned hostile and they have not supported the prosecution case.

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According to the prosecution, PW1 identified accused Nos.3 and 5 namely present appellants in the test identification parade conducted by PW7 on 06.07.2010. However, PW1 has totally denied having gone to the prison and identifying the said accused. According to PW1, accused by name Hanumantha robbed the golden

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articles and cash of Rs.300/- from his possession. Even PW11 and PW4 have stated that the golden ornaments and cash were recovered from accused No.6.

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According to PW1, accused by name Hanumantha (accused No.6) and Sagar (accused No.5) stopped him. It is pertinent to see that PW1 in his evidence has stated that he cannot identify three of the accused, since there was darkness when the incident took place. When such is the case, it is difficult to believe the evidence of PW1 that he could identify the present appellants namely accused Nos.3 and 5. These accused were not shown to PW1 prior to recording of his evidence. PW1 has categorically stated that no test identification parade was conducted. Hence, it is difficult to accept the evidence of PW1 without any corroboration, that these appellants were present at the time of incident and one of them was holding a wooden club etc.

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As already observed, PW6 who was along with PW1 when the incident took place has not supported the prosecution case. Even according to PW4 and PW11, the golden articles and cash was not recovered from the present appellants namely accused Nos.3 and 5. Hence, it cannot be said that the prosecution has established the guilt of appellants – accused Nos.3 and 5 beyond reasonable doubt.

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The trial Court has observed that there has been proper identification of accused No.3Krishna and accused No.5-Sagar by PW1 and 6 before PW.7, during test identification parade held in Central Prison, Ballari. However, when PW1 himself has denied having identified the accused in the test identification parade and denied having participated in the test identification parade, the findings recorded by the trial Court to convict the accused for the offence punishable under Section 392 of IPC cannot be said to be in accordance with

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law. For the above reasons, the impugned

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judgment and order of conviction and sentence passed by the trial Court is not sustainable in law. Accordingly, the following:

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ORDER

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I. Appeal is allowed.

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II. The judgment and order dated 16/17.07.2012 passed in S.C.No.160/2011 on the file of court of II Additional District and Sessions Judge, Ballari convicting the appellants/accused Nos.3 and 5 for the offence punishable under Section 392 of IPC is hereby set-aside.

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III. Accused are acquitted. Their bail bonds shall stand cancelled. If fine amount has been deposited, the same shall be refunded to the accused.

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JTR/LAD

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Sd/JUDGE

Krishna @ Katraju S/O Eranna v. the State of Karnataka

Case brief

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Krishna @ Katraju S/O Eranna v. the State of Karnataka

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