Asif Hussain @ Jabi @ Jabeer @ Jabi Tiger @ Mohammed Asif Vs State of Karnataka by

ASIF HUSSAIN @ JABI @ JABEER @ JABI TIGER @ MOHAMMED ASIF S/O LATE MOHAMMED ADAL @ MOHAMMED HUSSAIN @ ADIL HUSSAIN AGED ABOUT 32 YEARS R/O 71-2, RACHENAHALLI MAIN ROAD SARIAPALYA, BANGALORE-560 045

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(BY SRI.S.B.SAJJAN, ADVOCATE)

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…APPELLANT

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AND:

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STATE OF KARNATAKA BY ASHOK NAGAR POLICE STATION REP BY HIGH COURT GOVERNMENT PLEADER

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NC: 2025:KHC:37555 CRL.A No. 1003 of 2023

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HC-KAR

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HIGH COURT BUILDING BANGALORE-560 001

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…RESPONDENT

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(BY SMT.PUSHPALATHA B. ADDL.SPP)

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 05.04.2023 AND ORDER OF SENTENCE DATED 10.04.2023 PASSED BY THE L ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, CHILDREN COURT (SPECIAL), BENGALURU (CCH-51) IN SPL.C.C.NO.401/2014, FOR THE OFFENCE P/U/S 397 OF IPC.

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THIS APPEAL, COMING ON FOR HEARING, THIS

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DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE S RACHAIAH

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HC-KAR

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ORAL JUDGMENT

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This appeal is filed by the appellant being aggrieved by the judgment of conviction dated 05.04.2023 and order

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on sentence dated 10.04.2023 passed in Spl.C.C.No.401/2014 on the file of the

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L Additional City Civil and Sessions Judge, Sitting at Children’s Court (Special), Bengaluru (CCH-51) wherein, the appellant has been convicted for the offence punishable under Section 397 of I.P.C.

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Factual matrix of the case:

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The case of the prosecution is that on 18.07.2013 at about 1.15 P.M, C.W.1, 2 and 3 were going near Panoos Hotel, Hosur Road, within the limits of Ashok Nagar Police Station. At that time, the appellant Asif Hussain stopped them and committed robbery of Rs.7,00,000/- cash and also took out a knife from his pocket and threatened the complainant to handover the valuables. When the complainant refused, the accused

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HC-KAR

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kept knife on his stomach, snatched his gold neck chain and ran away from the spot.

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After the incident, the complainant lodges a complaint before the respondent – Police. Based on the said information a case came to be registered against unknown person. Subsequently, on 09.11.2013, the accused was arrested by the Cubbon Park Police. Based on the disclosure statement given by the accused, the Investigation Officer of Cubbon Park Police Station recovered the gold neck chain of the complainant weighing about 10 grams. C.W.1 to 3 identified the accused in the Police Station. After completing the investigation, a charge-sheet came to be filed by the respondent - Police.

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To prove the case of the prosecution, the prosecution examined 12 witnesses as P.W.1 to P.W.12 and got marked 14 documents as Ex.P.1 to P.14 also identified 02 material objects as M.O.1 and M.O.2. The Trial Court after appreciating oral and documentary evidence on record, recorded the conviction.

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NC: 2025:KHC:37555 CRL.A No. 1003 of 2023

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HC-KAR

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Heard Sri. S.B. Sajjan, learned counsel for the

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appellant and Smt. Pushpalatha B., learned Additional State Public Prosecutor for respondent.

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It is the submission of learned counsel for the

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appellant that the judgment of conviction and order on sentence passed by the Trial Court is contrary to the evidence on record and also not appreciated properly by the Trial Court. Hence, the same is liable to be set aside.

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It is further submitted that the independent

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witnesses have been examined in this case to show that the alleged recovery had been effected at the instance of the accused. However, mere recovery is not sufficient to hold that he has committed the offence.

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It is further submitted that the Trial Court has not appreciated the law properly. In fact, though, the Investigation Officer has not conducted identification parade which is sine-qua-non to identify the accused, the Trial Court appreciated the facts contrary to the law as a

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HC-KAR

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result of which the impugned judgment is passed, which is liable to be set aside.

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Per Contra, the learned Additional State Public Prosecutor for respondent, vehemently, submitted that the prosecution has proved the cases beyond reasonable doubt that, the appellant was arrested in another case. On the voluntary statement of the accused, the recovery was effected. P.W.4 and 5 are the witnesses who supported the case of the prosecution relating to recovery of gold neck chain. Both P.W.4 and 5 identified the accused. Therefore, it is appropriate to record the conviction. Accordingly, the Trial Court is justified in convicting the accused. Hence, it is appropriate to dismiss the appeal. Making such submissions, the learned Additional State Public Prosecutor for respondent, prays to reject the appeal.

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Having heard the learned counsels for the respective parties and also perused the findings of the Trial Court in recording the conviction, now, it is relevant

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HC-KAR

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to refer the evidence of all the witnesses for the purpose

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of re-appreciating the evidence.

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P.W.1 is the complainant, he supported the

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case of prosecution. On 18.07.2013 after finishing his college at about 1.00 P.M, he was proceeding near Johnson Market and C.W.2 and 3 were also accompanied him. The accused stopped him on the pretext of asking the address. The accused asked him as to whether P.W.1 had robbed the amount of Rs.7,00,000/- which his brother had allegedly lost yesterday. When P.W.1 said that he was not taken the said amount, the appellant demanded him to go near Methodist Church to give the said explanation to his brother. When P.W.1 refused to go to that place, the accused took out the knife and informed him to remove the gold neck chain, when he refused to give the said chain, appellant snatched the chain and went away. Thereafter, he lodges a complaint after calling his brother.

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On the same day he was summoned to Police Station and shown the photos. He did not identify any

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HC-KAR

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photos of which they shown to him. It is further stated that P.W.1 identified the accused in the Cubbon Park Police Station. On the same day when he identified the accused, gold chain of which the appellant had snatched from the complainant was recovered and he identified the said chain. P.W.1 withstood the cross-examination and supported the case of the prosecution.

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P.W.2 is the friend of P.W.1, he supported the

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case of the prosecution and stated in his evidence in-consonance with the evidence of P.W.1. He further stated that the chain of P.W.1 was recovered after three months from the date of the incident. He also stated that he identified the appellant in the Police Station.

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P.W.3 is stated to be the witness to Ex-P.2

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which is spot mahazar. He supported the case of the prosecution, in the cross-examination, he admitted that he

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was not received any notice from the Police for the purpose of being a witness to the spot panchanama.

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HC-KAR

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P.W.4 is the goldsmith, on 11.11.2013 he was

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summoned by the Cubbon Park Police. Accordingly, he had been to the Cubbon Park Police Station and thereafter, he accompanied them to the shop of Abdul Azeez where the appellant had sold the gold chain and ring. He identified the gold chain stated in Ex-P.3.

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P.W.5 was running a Polish shop named Roshan Polish Shop and he was doing the work of polishing the gold articles. On 11.11.2013, he made a statement that the accused had sold one gold chain weighing 08 grams and 01 finger ring for a sum of Rs.15,000/-. On the same day, the Police took the accused to the shop where he sold the said. The Police demanded him to return the stolen articles. He handed over the said articles to the said Police

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which was shown in his presence. Ex.P.4 in the cross-examination admitted that until the Police disclosed the name of the accused as Asif Hussain, he did not know his name. He further stated that he does not know the

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contents of the said Mahazar, it was not read over to him.

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The remaining witnesses are the official witnesses.

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On careful reading of the evidence of all the

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witnesses, it appears from the record that as per the averments of the complaint, the complainant was studying third year Diploma. On 18.07.2013, at about 1.15 P.M, when he was returning from his college to his home near Johnson Market, one person came near and introduced himself as he was the rowdy of the Johnson Market. He told that yesterday an amount of Rs.7,00,000/- was robbed by some unknown persons, were you robbed the said amount. When the complainant refused and denied the fact, he called him by saying that his brother wants to speak with him. When he refused to go, he robbed the chain weighing about 08 grams and finger ring weighing 02 grams worth valued of Rs.20,000/- Though, P.W.1 stated in his complaint that gold chain worth of 08 grams, the Police recovered the gold chain and one finger ring from P.W.5 in presence of P.W.4.

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HC-KAR

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The said recovery is held to be suspicious for the reason that no independent witnesses were examined except those P.W.3 and 5. In fact, P.W.5 has not produced any receipt for having received the gold chain from the accused. P.W.1 has identified the accused in the Police Station which is held to be not proper. In fact, the Investigation Officer ought to have conducted identification parade in accordance with law. Showing the accused in the Police Station for not following the procedure of test identification parade which goes to the route of the case of the prosecution. The Trial Court in such a way conducted the error in arriving at a conclusion.

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The prosecution has not proved the case beyond reasonable doubt. Hence, the said judgment of conviction is liable to be set aside. Accordingly, I proceed to pass the following:

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ORDER

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i. The Criminal Appeal is allowed .

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HC-KAR

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ii. The judgment of conviction dated 05.04.2023 and

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order on sentence dated 10.04.2023 passed in Spl.C.C.No.401/2014 on the file of the L Additional City Civil and Sessions Judge, Sitting at Children’s Court (Special), Bengaluru (CCH-51) for the offence punishable under Section 397 of I.P.C., is hereby, set aside.

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iii. The Registry is directed to communicate this order to the Central Prison, Parappana Agrahara, forthwith.

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iv. The Superintendent of Central Prison is directed to release him in case, if, he is not required in any other cases.

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v. The bail bonds executed, if any, stands cancelled.

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Sd/(S RACHAIAH) JUDGE

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NM List No.: 2 Sl No.: 21

Asif Hussain @ Jabi @ Jabeer @ Jabi Tiger @ Mohammed Asif v. State of Karnataka by

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Asif Hussain @ Jabi @ Jabeer @ Jabi Tiger @ Mohammed Asif v. State of Karnataka by

Case brief

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