Allowed

Kantharaju @ Kantha v. State of Karnataka

Karnataka HC26 Sept 2024CRL.A/342/2013

Case brief

AI extract

What is this about?

High Court allowed appeals against conviction and sentence for dacoity. Court quashed lower court's order, acquitted accused of Sections 399 and 402 IPC offences, and cancelled bail bonds due to insufficient evidence proving preparation for dacoity.

What did the court decide?

Appeals allowed; conviction and sentence under Sections 399 and 402 IPC set aside; appellants acquitted; bail bonds cancelled.

Kantharaju @ Kantha Vs State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2024)

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NC: 2024:KHC:40063 CRL.A No. 342 of 2013 C/W CRL.A No. 233 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ CRIMINAL APPEAL NO. 342 OF 2013 C/W CRIMINAL APPEAL NO. 233 OF 2013

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IN CRL.A No. 342/2013

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BETWEEN:

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KANTHARAJU @ KANTHA S/O SRINIVASA AGED ABOUT 22 YEARS RESIDENT OF BUGUDANAHALLI BELLAVI HOBLI, TUMKUR TALUK PIN CODE - 572 107

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… APPELLANT

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(BY SRI. M SHASHIDHARA, ADVOCATE AND

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Digitally signed by VIJAYA P Location: HIGH COURT OF KARNATAKA

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SRI SOMASHEKHARA HARAVI, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY TILAK PARK P.S. - 572 101

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… RESPONDENT

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(BY SRI. RAHUL RAI K., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C., BY THE ADV. FOR THE APPELLANT/ACCUSED NO.3 PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 04.02.2013 PASSED BY THE PRL. DIST. & S.J., TUMKUR IN S.C.NO.33/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 399 AND 402 OF IPC. THE AP`PELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR

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5 YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 5 MONTHS FOR THE OFFENCE P/U/S 399 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 4 YEARS AND PAY FINE OF RS.4,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO ADDITIONAL S.I. FOR 4 MONTHS FOR THE OFFENCE P/U/S 402 OF IPC.

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IN CRL.A NO. 233/2013

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BETWEEN:

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HANUMANTHA S/O DODDATHIMMAIAH AGED ABOUT 23 YEARS R/O BUGUDANAHALLI BELLAVI HOBLI TUMKUR TALUK AND DISTRICT

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... APPELLANT

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(BY SRI. B S HADIMANI., ADVOCATE)

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AND:

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STATE BY TILAK PARK POLICE TUMKUR

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... RESPONDENT

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(BY SRI. RAHUL RAI K., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 04.02.2013 PASSED BY THE PRL. DIST. & S.J., TUMKUR IN S.C.NO.33/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 399 AND 402 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 5 YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR A PERIOD OF 5 MONTHS FOR THE OFFENCE P/U/S 399 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR 4 YEARS AND PAY FINE OF RS.4,000/-, IN DEFAULT TO PAY

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3 - NC: 2024:KHC:40063 CRL.A No. 342 of 2013 C/W CRL.A No. 233 of 2013

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FINE, HE SHALL UNDERGO S.I. FOR A PERIOD OF 4 MONTHS FOR THE OFFENCE P/U/S 402 OF IPC.

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THESE APPEALS COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL JUDGMENT

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Crl.A 233/2013 is preferred by accused no.2 Crl.A 342/ 2013 is preferred by accused no.3 against the judgment and order dated 04.02.2013 passed by the Court of Principal District and Sessions Judge at Tumkur in S.C.No.33/2012.

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The learned Sessions Judge vide impugned judgment has convicted accused nos.1 to 3 for the offence punishable under 399 and 402 of IPC and sentenced them to undergo rigorous imprisonment for a period of five years and to pay fine of Rs.5,000/and rigorous imprisonment for a period of four years and to pay fine of Rs.5,000/- each for the respective offences, with default sentence of simple imprisonment for a period of five months and four months each for the respective offences for non-payment of fine amount.

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The learned Sessions Judge has acquitted accused

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nos.4 and 5 of the charges leveled against them. Accused No.1 has not preferred any appeal.

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Heard and perused the evidence and material on

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record.

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It is alleged by the prosecution that on 17.11.2010 at about 6.30 p.m., the accused had assembled under the Tamarind Tree near Coramandal Cement and Penna Cement Godown in the lands of Sri.K.N.S.Babu, situated by the side of Kunigal Road, in Tumkur Town, armed with weapons like Long, Saw, iron rod, Screwdriver and two packets of chilly powder and they were making preparation to commit dacoity and thereby committed the offence punishable under Sections 399 and 402 of IPC.

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The law was set into motion by the Police Inspector, Tilak Park Police Station. In his complaint-Ex.P3, he has stated that on receiving credible information on 17.11.2010 that five persons have assembled under the Tamarind Tree near Coromandel Cement and Penna Cement Godown in the lands of Sri.K.N.S.Babu, situated by the side of Kunigal Road, in Tumkur Town, making

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preparation to commit dacoity, he along with his staff and panchas went to the spot in the departmental vehicle at about 6.30 p.m., and noticed five persons armed with longs and rods. They surrounded them, but two of the accused escaped and rest of them were apprehended. The said accused confessed to have assembled there to commit dacoity. Thereafter, he returned to the Police Station and registered the case against accused nos.1 to 5 and issued the FIR as per Ex.P4 and produced the accused before the court.

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Under Ex.P1-Panchaname, three longs, one axle blade,

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one rod, two plastic covers containing chilly power and a screw driver (MO's 1 to 8) were seized in the presence of panchas.

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The first informant/ Police Inspector (PW4) in his evidence has stated that after the arrest of the accused, he recorded their voluntary statement and then recorded the statement of other witnesses and handed over the investigation to CW.9 (PW.5). As per the evidence of PW.5, accused nos.4 and 5 with an order of Anticipatory Bail surrendered before him. After completing the investigation formalities, he filed the charge-sheet.

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In order to bring home the guilt of the accused, prosecution has examined PWs.1 to 5, got marked Ex.P1 to P4 and MOs.1 to 8.

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The learned Sessions Judge based on the material placed on record and evidence adduced by the prosecution, came to the conclusion that prosecution has been able to prove that accused nos.1 to 3 have committed charged offence under Section 399 and 402 of IPC, beyond reasonable doubt, whereas guilt of accused no.4 and 5 was not proved.

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The prosecution is mainly relying on the evidence of the complainant i.e., the Police Inspector of Tilak Park Police Station examined as PW.4 and evidence of PWs.1 and 2, Police Constable and Head Constable who accompanied him to the spot to apprehend the accused. These witnesses have stated that they have gone to the spot and noticed five persons assembled under a Tamarind tree and two of them ran away from the spot. Further, the accused were found in possession of three Longs, one iron rod, one Saw, two packets of chilly powder and a Screw Driver. The said material objects were seized under Panchanama-Ex.P1 in the presence of panchas.

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According to the prosecution, a credible information was received that five persons have assembled under a Tamarind tree in a suspicious manner, armed with weapons and they were making preparation to commit dacoity. PWs.1, 2 and 4 have stated that they went to the spot along with other police personnel and two panchas. The case of the prosecution that accused were making preparation to commit dacoity is based on two aspects, firstly, the accused were found in possession of the aforementioned weapons; secondly, they made confession that they had assembled at the spot in order to commit dacoity.

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Insofar as confession made by the accused persons, it has no evidentiary value since said confession is alleged to have been made to the police after the accused were apprehended by them. Insofar as recovery of MO's 1 to 8 from the possession of accused nos.1 to 3 is concerned, the prosecution is relying on Ex.P1- Panchaname drawn in the presence of two panchas, apart from the evidence of PWs.1, 2 and 4 who are police officials.

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PW.2 in his chief-examination has stated that the name

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of one of the panch witnesses is Shaikh Ahmed and another is

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Ravikumar. However, after perusing the Panchaname, he has stated that the name of panch witnesses is Diwakar and Sabjan. PW.2 being a Head Constable was not definite about the names of panch witnesses who accompanied the police to the spot. Be that as it may, among the two panch witnesses, the prosecution has examined one Sabjan as PW.3. He has not supported the case of the prosecution. He has stated that he has signed Ex.P1Panchaname in the Police Station. He has specifically stated that the police did not record his statement and not seized any articles in his presence.

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In light of the above evidence, serious doubt arises about the weapons alleged to have been seized from the possession of accused persons. The prosecution has not placed any material to show that before proceeding to the spot, they received a credible information that the accused have assembled under a Tamarind tree at the spot making preparation to commit dacoity. The said information has not been recorded anywhere. The Station House Diary has not been placed on record. PW.4 has admitted in the cross-examination that he has not recorded the information received by him in the Station House Diary.

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One more question that would arise for consideration is as to whether mere possession or recovery of some arms would lead to a conclusion that accused were making preparation to commit dacoity or that the accused had assembled at the spot for the purpose of committing dacoity.

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In a similar situation, the Patna High court in Shridhar Koeri v. State of Bihar reported in (2000) SCC Online Pat 34, relying on a decision of the Hon'ble Apex Court in the case of Chaturi Yadav and others Vs. State of Bihar¹ , Suleman and Another Vs. State of Delhi through Secretary² , has held that the

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prosecution must prove, from some evidence directly or indirectly or from the attending circumstances that the accused, along with his associates, had assembled for no other purpose than to make preparation for commission of dacoity. If the evidence fall short of it the case must fail. Further, only because the accused are arrested on the spot and some articles including the arms were recovered from their possession would not be sufficient to prove the charge that accused were making

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1 (1979) 3 SCC 430

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2 (1999) 4 SCC 146

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preparation to commit dacoity, unless the prosecution proves beyond doubt that the accused had assembled for committing dacoity or were making preparation to accomplish the object.

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In the case on hand, this court is of the considered view

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that the prosecution has failed to prove beyond reasonable doubt that the accused have committed the offence punishable under Section 399 and 402 of IPC. Recovery of weapons even as alleged is accepted, inference cannot be drawn to the effect that accused had assembled at the spot for the purpose of committing dacoity or they were making preparation to commit dacoity. The appeal, therefore, deserves to be allowed.

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Accordingly, the following:

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ORDER

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The appeals are allowed.

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The judgment and order dated 04.02.2013 passed by the Court of Principal District and Sessions Judge at Tumkur in S.C.No.33/2012, convicting and sentencing accused nos.2 and 3 is set aside. The appellants/accused nos.2 and 3 are acquitted of the

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offence punishable under Section 399 and 402 of IPC. Their Bail

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Bonds stand cancelled.

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Sd/(MOHAMMAD NAWAZ) JUDGE

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Kantharaju @ Kantha v. State of Karnataka

Case brief

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Kantharaju @ Kantha v. State of Karnataka

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