Allowed

Chetankumar@ Chetu @Basaralu Chetu v. State of Karnataka

Karnataka HC18 Sept 2024CRL.A/701/2011

Case brief

AI extract

What is this about?

Appeals against conviction of eight accused under Section 395 IPC for robbing Rs.7,09,000 cash from two persons proceeding to a bank. The High Court found no description of accused in the FIR, no test identification parade, unsupported panch witnesses, and doubtful recoveries, and set aside the convictions.

What did the court decide?

Conviction and sentence under Section 395 IPC set aside; appellants/accused acquitted; bail bonds discharged.

Chetankumar@ Chetu @Basaralu Chetu Vs State of… — Criminal Trial and Appeal | Karnataka HC (2024)

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NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO. 701 OF 2011

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C/W

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CRIMINAL APPEAL NO. 585 OF 2011 CRIMINAL APPEAL NO. 614 OF 2011 CRIMINAL APPEAL NO. 619 OF 2011 CRIMINAL APPEAL NO. 629 OF 2011 CRIMINAL APPEAL NO. 682 OF 2011

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IN CRL.A No. 701/2011

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BETWEEN:

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Digitally signed by LAKSHMI T Location: High Court of Karnataka

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CHETANKUMAR @ CHETU @ BASARALU CHETU S/O.LATE NAGARAJAIAH HOTEL BUSINESS AND CAR DRIVER R/O. VIJAYANAGAR EXTENSION, BASARALU VILLAGE MANDYA TALUK.

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…APPELLANT

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(BY SRI. T S SRINIVASA., ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KUNIGAL POLICE STATION

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…RESPONDENT

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(BY SRI. RANGASWAMY R., HCGP)

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NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:8.6.11 PASSED BY THE II ADDL. DIST., AND S.J., TUMKUR IN S.C.NO.181/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.

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IN CRL.A NO. 585/2011

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BETWEEN:

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HARSHA K S/O YOMAKESHAVA @ K KESHAVA AGED ABOUT 20 YEARS WORKING IN SRI KALIKAMBA MUTTON STALL ETTAGADAHALLI MAIN ROAD ARAKESWARA NAGAR, 3RD CROSS, BASAVANAGUDI, GUTTALU ROAD, MANDYA-571402.

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...APPELLANT

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(BY SRI. M Y SREENIVASAN, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KUNIGAL POLICE STATION

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...RESPONDENT

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(BY SRI. RANGASWAMY R., HCGP)

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THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:8.6.11 PASSED BY THE II ADDL.DIST., AND S.J., TUMKUR IN S.C.NO.181/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.AND THE APPELLANT/ACCUSED IS SENTENCED TO SUFFER R.I. FOR FOUR YEARS AND TO PAY A FINE OF RS.3,000/- FOR THE OFFENCE P/U/S 395 OF IPC.

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NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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IN CRL.A NO. 614/2011

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BETWEEN:

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VENKATESH @ KUTTI S/O RAMEGOWDA PLUMBING AND EARTH WROK-ESCAVATION WORK, INFRONT OF JAYALAXMI TAKIES, SAHUKAR CHANNEGOWDA EXTN, 5TH CROSS, GUTTALU ROAD, MANDYA.

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...APPELLANT

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(BY SRI. M Y SREENIVASAN, ADVOCATE)

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AND:

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STATE OF KARNATAKA BY KUNIGAL POLICE STATION

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...RESPONDENT

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(BY SRI. RANGASWAMY R., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:8.6.11 PASSED BY THE II ADDL.DIST., AND S.J., TUMKUR IN S.C.NO.181/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.

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IN CRL.A NO. 619/2011 BETWEEN:

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GAJA @ RAMA S/O SHANKARAPPA C/O MOHANA KRS AGRAHARA AMBEDKARNAGAR INFRONT OF RAMAIAH PARK KUNIGAL NATIVE OF UMBRAHALLI GATE MAKADA DODDI,

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NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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MANDYA DISTRICT.

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LOKESHA S/O VENKATESHA AGED ABOUT 24 YEARS R/O KEMPEGOWDA CIRCLE BELLUR TOWN NAGAMANGALA TALUK

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PRAKASHA S/O PUTTAIAH AGED ABOUT 23 YEARS R/O HARALAHALLI CHIKKARASIKERE HOBLI MADDUR TALUK, MANDYA DIST

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...APPELLANTS

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(BY SRI. A N RADHAKRISHNA AND SRI. A.H.BHAGAWAN, ADVOCATE FOR A1; SRI.VIJAY KUMAR PRAKASH, ADVOCATE FOR A3; SRI. SUYOG HERLE E., ADVOCATE FOR A2)

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AND:

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STATE OF KARNATAKA BY KUNIGAL POLICE REP BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE

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...RESPONDENT

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(BY SRI. RANGASWAMY R., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:8.6.11 PASSED BY THE II ADDL.DIST., AND S.J., TUMKUR IN S.C.NO.181/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.

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NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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IN CRL.A NO. 629/2011 BETWEEN:

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MANJUNATH @ MANJU, S/O VENKATESHA, AGED ABOUT 20 YEARS, MANSON, 3RD CROSS, INDIRA COLONY, BEHIND JAYALAKSHMI TALKIES, GUTTALU COLONY, MANDYA.

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...APPELLANT

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(BY SRI. T S SRINIVASA, ADVOCATE)

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AND:

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STATE OF KARNATAKA, BY KUNIGAL POLICE STATION.

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...RESPONDENT

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(BY SRI. RANGASWAMY R., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:8.6.11 PASSED BY THE II ADDL.DIST., AND S.J., TUMKUR IN S.C.NO.181/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.

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IN CRL.A NO. 682/2011 BETWEEN:

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ANILKUMAR @ ANIL @ ANI, S/O M.K. KUMARA, AGED ABOUT 20 YEARS, WORKING IN PALCAN TYRE FACTORY, METAGALLI, MYSORE. R/AT BEHIND JAYALAKSHMI TALKIES, III CROSS, GUTTALU ROAD, MANDYA.

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...APPELLANT

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(BY SRI. M B RAMACHANDRA.,ADVOCATE)

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6 - NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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AND:

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STATE OF KARNATAKA BY KUNIGAL POLICE, (REPTD. BY LEARNED STATE PUBLIC PROSECUTOR).

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...RESPONDENT

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(BY SRI. RANGASWAMY R., HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DT:8.6.11 PASSED BY THE II ADDL.DIST., AND S.J., TUMKUR IN S.C.NO.181/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.

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THESE APPEALS ARE COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL JUDGMENT

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These six appeals arise out of judgment and order dated 08.06.2011 passed by the Court of II Additional District and Sessions Judge, Tumkur in S.C.No.181/2010.

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Vide impugned judgment, the learned Sessions

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Judge has convicted accused Nos.1 to 8 for the offence punishable under Section 395 of IPC and sentenced them

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to undergo R.I. for 4 years and to pay fine of Rs.3000/each, in default to pay the fine amount, to undergo R.I. for 1 year.

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Criminal Appeal No.701/2011 is preferred by accused No.2, Criminal Appeal No.585/2011 by accused No.3, Criminal Appeal No.614/2011 by accused No.4, Criminal Appeal No.619/2011 by accused Nos.1, 6 and 8, Criminal Appeal No.629/2011 by accused No.7 and Criminal Appeal No.682/2011 by accused No.5.

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Heard the learned counsel for appellants, learned High Court Government Pleader for the State and perused the evidence and material on record.

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It is the case of prosecution that, on 08.03.2010 at about 10.45 a.m., first informant – Nataraju working as a cashier in one Sukirta Marketing was proceeding on a Hero Honda motorcycle bearing registration No.KA-06-EC-1009, along with one Manjunath, to remit a cash of Rs.7,09,000/- at SBI Bank, Kunigal

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Town. At that time, three unknown persons came on a Bajaj Discover motorcycle holding knife, long and chopper and attacked them and snatched the bag containing the cash and fled away throwing the weapons at the spot.

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On the basis of a complaint – Ex.P1, lodged by

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Nataraju, a case in Crime No.72/2010 was registered by the PSI – PW.12 of Kunigal Police Station. He proceeded to the spot and prepared the spot mahazar - Ex.P2 and from the spot, one long, knife and an iron rod and a piece of cash bag (MOs.1 to 4) were seized. He then handed over the investigation to the P.I. – PW.14.

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The Mandya Police, while conducting investigation in their station Crime No.181/2009, arrested accused Nos.7 and 8 on 15.05.2010. P.I. – PW.13, after arresting accused No.7 seized a motorcycle bearing Registration No.KA-11-U-7294 under Ex.P9. From accused No.8 a sum of Rs.50,000/- was recovered under a mahazar Ex.P11, from accused No.7 a sum of Rs.10,000/was recovered under a mahazar-Ex.P12.

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P.W.13 continued with the investigation and on

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18.05.2010 accused Nos.3 and 5 were produced before him along with a motorcycle bearing registration No. KA11-R-9790 which was seized under a mahazar – Ex.P10.

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On 20.05.2010, accused Nos.1 and 2 were produced before PW.13 and he arrested the said accused. From accused No.1, a sum of Rs.60,000/- was recovered under a mahazar Ex.P16 and from accused No.2, a sum of Rs.50,000/- was recovered under a mahazar Ex.P17.

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On 21.05.2010, a sum of Rs.50,000/- was recovered at the instance of accused No.5 under a mahazar Ex.P18 and another sum of Rs.20,000/- was recovered from one CW.7, said to have been given to him by accused No.5, under a mahazar Ex.P19. Further, another sum of Rs.5,000/- was recovered from CW.8, a friend of accused No.5 under a mahazar Ex.P20, a sum of

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Rs.5,000/- was recovered from CW.9, friend of accused No.5 under a mahazar Ex.P21.

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PW.13 seized a motorcycle bearing registration No.KA-11-R-9245 at the instance of accused No.3, said to have been purchased from the proceeds of the crime. The same was seized under a mahazar Ex.P23. Further, a sum of Rs.25,000/- was recovered from one CW.4 under a mahazar Ex.P24.

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On 22.05.2010 accused No.4 and accused No.6 were apprehended and produced before PW.13. A motorcycle bearing registration No.KA-51-K-6998 and a green colour bag (MO.7) was recovered at the instance of accused No.4 under a mahazar Ex.P30. A cash of Rs.25,000/- was recovered at the instance of accused No.6 under a mahazar Ex.P31 and a cash of Rs.25,000/was recovered at the instance of accused No.4 from the house of CW.10, under a mahazar Ex.P32.

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PW.13 has stated that since the articles seized

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were related to Crime No.72/2010 of Kunigal Police Station, taking permission of the Court, he transferred the articles to them.

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PW.14, CPI of Kunigal Police Station on 25.05.2010, coming to know about the arrest of accused persons in Crime No.181/2009 of Mandya East Police Station, secured accused Nos.3, 4 and 8 under body warrant. Thereafter at the instance of accused No.8, he recovered MOs.5 and 6, namely two Bank challans, under a mahazar Ex.P3, Further, recovered a sum of Rs.30,000/from the father of accused No.3, under a mahazar Ex.P4. A sum of Rs.30,000/- was recovered at the instance of accused No.4 from the cattle shed situated adjacent to his house, under a mahazar Ex.P5.

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PW.14 has stated that on 30.06.2010, the vehicles and cash of Rs.3,25,000/- seized by Mandya Police were produced before him and he subjected the same to PF.67/2010.

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It is the case of prosecution that all the accused have conjointly committed dacoity and thereby committed an offence punishable under Section 395 of IPC.

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As per Ex.P1 lodged by the first

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informant/PW.1, on 08.03.2010 at about 10.45 a.m., he along with one Manjunath (PW.2) while proceeding to SBI Bank on a motorcycle, to remit a cash of Rs.7,09,000/-, three unknown persons came on a Bajaj Discover motorcycle, holding knife, long and chopper and attacked them. They snatched the cash bag and escaped, throwing the weapons at the spot.

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Learned High Court Government Pleader has contended that a huge cash of Rs.7,09,000/- was robbed in this case and major portion of the said cash has been recovered from the accused persons. He contended that accused Nos.3, 5 and 7 have attacked PWs.1 and 2, while they were proceeding to the Bank to remit the cash and PW.1 has identified them as the accused who attacked them and robbed the bag containing the cash. Further,

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PW.1 has identified accused No.3 as the one who tried to assault him with a long. He therefore contended that, recovery of cash, motorcycles and also identification of accused Nos.3, 5 and 7 clearly established the guilt of the accused beyond reasonable doubt. He contended that the official witnesses are trustworthy witnesses and they have no animosity against the accused to falsely implicate them.

¶117

PWs.1 and 2 are the material witnesses in this case. PW.1 in his evidence has deposed that three persons holding long, knife and rod came and attacked them and they wielded a long at him and at that time he fell down. PW.2 threw the cash bag at the spot and ran away. One of the accused tried to attack him with a long and therefore, he too ran away. The accused who was holding a knife picked the cash bag and all of them sped away in GLS Victor vehicle.

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It is pertinent to mention that, in Ex.P1, the first informant has not given the description of the

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accused. He has stated, three accused came in a Bajaj Discover Motorcycle and he could not see the registration number of the vehicle. In his deposition, PW.1 has stated that the accused sped away in a GLS Victor vehicle, contrary to the statement made in Ex.P1. He has stated that thereafter, he informed the matter to PW.3 over phone and then lodged a complaint as per Ex.P1.

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PW.11-PSI of Mandya Town Police Station apprehended accused Nos.3 and 5 on 18.05.2010, while investigating Crime No.181/2009 registered in the said Police Station and seized a TVS Victor vehicle bearing Registration No.KA-11-R-9790. He produced accused No.3 and accused No.5 along with the motorcycle before PW.13.

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PW.13 in his evidence has stated that on 15.05.2010, accused Nos.7 and 8 along with a motorcycle bearing Registration No.KA-11-U-7294 were produced before him by the staff i.e., CWs.37 to 39 and 42 to 44. CW.44 is examined PW.11, however, he has not spoken about apprehending accused Nos.7 and 8. On the other

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hand, he has spoken only about apprehending accused Nos.3 and 5 on 18.05.2010 and the seizure of motorcycle bearing registration No.KA-11-R-9790.

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PW.1 has deposed that on 22.05.2010 on receiving the information regarding arrest of accused, he went to Mandya and out of four accused, he identified accused Nos.3, 5 and 7. He has further stated that on 26.05.2010, he went to Kunigal Police Station and identified the accused and identified accused No.3 as the one who wielded a long at him.

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If the evidence of PW.1 is to be accepted that on 22.05.2010 he went to Mandya Police Station and identified three accused persons i.e., accused Nos.3, 5 and 7, it is necessary to see as to on what basis he identified the said accused persons and whether his evidence is corroborated by any other evidence.

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PW.13 has stated that on 18.05.2010 accused Nos.3 and 5 were produced before him and after their

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arrest he seized the motorcycle. Similarly accused Nos.7 and 8 were produced before him and he arrested them on 15.05.2010. Admittedly, from 15.05.2010 to 22.05.2010 accused Nos.7 and 8 were in police custody and similarly from 18.05.2010 to 22.05.2010, accused Nos.1 and 3 were in custody of PW.13. He has not at all stated in his evidence about PW.1 visiting the Police Station and identifying accused Nos.3, 5 and 7 on 22.05.2010.

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Admittedly, the accused were arrested in connection with Crime No.181/2009 of Mandya Police Station. It is not forthcoming on what basis they were arrested. Cash seized from them is not proved to be the cash alleged to be robbed in the present case. PW.1 has not given any description of the three accused who came on a motorcycle and attacked him and PW.2. The Registration number of the motorcycle was also not mentioned in Ex.P1. Furthermore, in Ex.P1 it is stated that the said three accused came on a Bajaj Discover

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motorcycle, whereas, in the evidence, PW.1 has stated that the accused sped away in one GLS Victor vehicle.

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As per Ex.P1, three persons came on a motorcycle, holding weapons and attacked PWs.1 and 2 and then robbed the cash bag. According to the prosecution since huge cash was recovered from the other accused, they are also involved in the offence and all the accused conjointly committed dacoity. Merely because cash is recovered from the accused, that itself is not a ground to hold that all the accused have committed the offence. The prosecution has examined PWs.15 to 22 as the panchas who attested their signatures to the recovery mahazars. None of the panch witnesses, have supported the case of prosecution.

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PW.1 has stated that on 26.05.2010 he went to Kunigal Police Station and identified the accused persons present in the Police Station and identified accused No.3 as the one who wielded a long at him.

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PW.14 – Investigating Officer has stated that he secured PWs.1 to 3 to the Police Station to identify the accused persons and then recorded their further statements. He has nowhere stated that PW.1 has identified accused Nos.3, 5 and 7 as the accused who came on the motorcycle and snatched the cash bag from him. He has also not stated about PW.1 identifying accused No.3 as the one who wielded the long at him.

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Further, PW.2 who is also a material witness, who was along with PW.1 when the incident took place, has not stated in his evidence that he has identified the three accused when they were shown to him in the Police Station. According to him one of the accused who was holding long was accused No.3.

¶138

Admittedly there is no test identification parade conducted. Accused Nos.3, 5 and 7 who are alleged to have attacked PWs.1 and 2 with weapons and snatched the cash bag are totally strangers to PW.1 and PW.2. In Ex.P1 there is no description of the said accused given.

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PW.13, who initially arrested accused Nos.3, 5 and 7 has not at all stated that he summoned PWs.1 to 3 to the Police Station for identifying the said accused. Even otherwise, if the evidence of PW.1 is to be believed that on 22.05.2010 he went to Mandya Police Station and identified accused Nos.3, 5 and 7, then his further evidence that on 26.05.2010 he once again went to Kunigal Police Station and identified the said accused shows that the accused were already shown to him by the police. Further, when PW.1 went to Mandya Police Station and said to have identified accused Nos.3, 5 and 7 on 22.05.2010, he has not at all identified accused No.3 as the one who wielded a long at him. Hence, his evidence regarding identification of the accused loses credibility.

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It is contended by the learned counsel for

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appellants that the prosecution has not proved that on the date of incident PWs.1 and 2 were having a cash of Rs.7,09,000/-. There is much force in the said argument advanced by the learned counsel for the appellants. PW.1

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in his evidence has not at all stated as to how much cash

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he was carrying at the time of incident. He has not corroborated the averments made in Ex.P1. Even PW.2 has not stated about the cash which they were carrying at the time of incident. The Manager of Sukirta Marketing is examined as PW.3. He has deposed that PW.1 was working as a cashier and PW.2 as a driver. He has also not stated as to how much cash was entrusted to PWs.1 and 2 to remit to the Bank.

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The prosecution has got marked MOs.5 and 6, the challans. The said challans are alleged to have been seized at the instance of accused No.8 by PW.14 – I.O., on 26.05.2010. Firstly, in Ex.P1 it is not at all stated that PW.1 was having two challans in the cash bag. Secondly, accused No.8 was arrested by PW.13 on 15.05.2010. When the motorcycle and cash were recovered at his instance, the two challans marked as MOs.5 and 6 were not seized from him. It is only after the said accused was taken under body warrant by PW.14, MOs.5 and 6 were

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recovered. Recovery of MOs.5 and 6 is doubtful and does

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not inspire the confidence of the Court.

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Having re-appreciated the entire evidence and material on record, this Court is of the considered view that the prosecution has not established the guilt of the appellant/accused beyond reasonable doubt. The reasons assigned by the learned Sessions Judge for convicting the appellants for the offence punishable under Section 395 of IPC is not in accordance with law. The impugned judgment is therefore, liable to be set aside. Hence, the following:

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ORDER

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Appeals are Allowed.

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The judgment and order dated 08.06.2011 passed by the Court of the II Additional District and Sessions Judge, Tumkur in S.C.No.181/2010, convicting accused Nos.1 to 8 for the offence punishable under Section 395 of IPC is hereby set aside.

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NC: 2024:KHC:38397 CRL.A No. 701 of 2011 C/W CRL.A No. 585 of 2011 CRL.A No. 614 of 2011 AND 3 OTHERS

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Appellant/accused Nos.1 to 8 are acquitted of the

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offence under Section 395 of IPC.

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The bail bonds executed by the accused stands discharged.

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SD/(MOHAMMAD NAWAZ) JUDGE

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List No.: 1 Sl No.: 25

Chetankumar@ Chetu @Basaralu Chetu v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Chetankumar@ Chetu @Basaralu Chetu v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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