Karthik S Vs the State by Tarikere Police

THIS CRL.A. IS FILED U/S. 374(2) CR.P.C BY THE ADV., FOR THE APPELLANTS/ACCUSED NOS.4 AND 5 PRAYING TO SET ASIDE THE ORDER DATED:21/23.11.13 PASSED BY THE II ADDL. DIST., AND S.J., CHIKMAGALUR IN S.C.NO.154/10 - CONVICTING THE APPELLANTS/ACCUSED NOS. 4 AND 5 FOR THE OFFENCES P/U/S 395 OF IPC AND THE APPELLANTS/ACCUSED NOS.4 AND 5 ARE SENTENCED TO RIGOROUS IMPRISONMENT FOR A PERIOD OF FOUR YEARS AND FINE OF RS.10,000=00 EACH, IN DEFAULT TO UNDERGO S.I. FOR THREE MONTHS FOR THE OFFENCE P/U/S 395 OF IPC.

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IN CRL.A NO. 1133/2013

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BETWEEN:

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R. NAGARAJ @ NAGA S/O RAMAKRISHNA, AGED ABOUT 23 YEARS, BASALIKATTE, SIDDAPURA, ARALLHALLI POST, BHADRAVATHI TALUK, NOW R/AT MALAVAGOPPA, DUMMALLI, NIDHIGE POST, SHIMOGA TALUK AND DISTRICT-577 301

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SHASHIKUMAR R @ SHASHI S/O RAMAMURTHY, AGED ABOUT 22 YEARS, R/O BASALIKATTE, SIDDAPURA, ARALLHALLI POST, BHADRAVATHI TALUK, SHIMOGA DISTRICT-577 301

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HC-KAR

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APPU @ VINAYKUMAR S/O ARMUGHAM, AGED ABOUT 21 YEARS, COLLIE, RESIDING OF NEAR KANAKATTE, MARIYAMMA TEMPLE, BHADRAVATHI TALUK, SHIMOGA DISTRIT-577 301

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...APPELLANTS

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(BY SRI. SHIVARAJ N. ARALI, ADV.)

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AND:

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STATE BY TARIKERE POLICE (CHIKAMAGALORE DISTRICT) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001

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...RESPONDENT

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(BY SRI. B. LAKSHMAN, HCGP)

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THIS CRL.A. IS FILED U/S. 374(2) CR.P.C BY THE ADV., FOR THE APPELLANTS/ACCUSED NOS.1, 3 AND 7 PRAYING TO SET ASIDE THE ORDER DATED:21/23.11.13 PASSED BY THE II ADDL. DIST., AND S.J., CHIKMAGALUR IN S.C.NO.154/10 - CONVICTING THE APPELLANTS/ACCUSED NOS.1,3 AND 7 FOR THE OFFENCES P/U/S 395 OF IPC. AND THE APPELLANTS/ACCUSED NOS.1,3 AND 7 ARE SENTENCED TO RIGOROUS IMPRISONMENT FOR A PERIOD OF FOUR YEARS AND FINE OF RS.10,000=00 EACH, IN DEFAULT TO UNDERGO S.I. FOR THREE MONTHS FOR THE OFFENCE P/U/S 395 OF IPC.

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HC-KAR

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IN CRL.A NO. 1173/2013

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BETWEEN:

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KRISHNA @ KINJHA S/O VIJAY KUMAR, R/O MAJJIGENAHALLI, BADRAVATHI TALUK, SHIMOGA TALUK AND DISTRICT 577301

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...APPELLANT

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(BY SRI. SHIVARAJ N. ARALI, ADV.)

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AND:

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STATE BY TARIKERE POLICE (CHIKAMAGALORE DISTRICT) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE 560001

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...RESPONDENT

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(BY SRI. B. LAKSHMAN, HCGP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C BY THE ADV. FOR THE APPELLANT/ACCUSED NO.6 PRAYING TO SET ASIDE THE JUDGMENT DATED 21.11.2013 PASSED BY THE II ADDL. DIST. AND S.J., CHIKMAGALUR IN S.C.NO.36/2012 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 4 YEARS AND PAY FINE OF RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO S.I. FOR 3 MONTHS FOR THE OFFENCE P/U/S 395 OF IPC.

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

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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All three appeals arise out of the judgment of conviction and order on sentence dated 21.11.2013 passed in Sessions Case No.154/2010 clubbed with S.C. No.36/2012 on the file of II Addl. Sessions Judge, Chikkamagalur. During the pendency of the case before the trial Court, accused No.2 was reported to be dead and case against accused No.2 was abated.

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For the sake of convenience, the parties herein are

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referred to as per their status before the trial Court.

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Brief facts leading to this appeal are that, the Police Inspector, Tarikere filed charge-sheet against accused Nos.1 to 5 for the offence punishable under Section 395 of Indian Penal Code. It is alleged by the prosecution that on 16.07.2010 at about 7.00 am when C W21 was in charge of police station, complainant-CW1 came to the police station and lodged the complaint alleging that, on 14.07.2010, he had been to Bangalore to the house of his niece. On 15.07.2010, after purchasing clothes and cable he boarded the Intercity train in Bangalore in order to go to Bhadravathi. He reached

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Bhadravathi at about 09.30 p.m. After getting down from the train, he was proceeding towards his village on his motorcycle No.KA.18/R-5888. While he was so proceeding at about 10.30 p.m, near the turning which leads to M.C.Halli quarters, two persons aged about 25-30 years, enquired the road to Karakucchi and after showing the Karakucchi road he proceeded further. At that time, two persons came from opposite direction holding longs on seeing them, he took his vehicle towards M.C Halli quarters, near M.C Halli quarters road, a Maruti van was parked beside the road, two persons stopped the vehicle, four persons came towards him and snatched the bag which was kept on the petrol tank of the bike. Thereafter, two persons came and by wielding long, snatched the amount and mobile set. Thereafter, two persons pushed him from the motorcycle, assaulted him and took his motorcycle and went towards M.C Halli quarters and the remaining four persons left in Martuti van. He had seen the number of Maruti van with the help of tail-lamp and number is KA-03/C-226. Thereafter, he went to the house of the Chinnathambi, which is situated in M.C Halli and thereafter, he had gone to his village on the bike with one Basavaraju. Thus,

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he lodged a complaint to take action against the persons who committed dacoity. Upon complaint, PSI attached to Tarikere Police Station registered the case in Crime No.145/2010 for the offence punishable under Section 395 of IPC and transmitted First Information Report to the jurisdictional Magistrate. On the same day, CW21 visited the place of occurrence and conducted spot mahazar in the presence of panchas and recorded the statements of witnesses. He deputed staff to trace the accused persons and handed over the case file to CW24-Circle Inspector of Police for further investigation. After receiving the case file, CW24 took up for further investigation. Accused Nos.1 to 4 along with Maruti van bearing No. KA-03/C-226, was produced before the C.P.I. He interrogated accused 1 to 4 and recovered the cash, vehicle and other materials in the presence of panch witnesses and recorded voluntary statements of accused 1 to 4. In pursuance of the voluntary statement, C.P.I recovered the stolen articles under the mahazar at the instance of accused 1 to 4 and recorded the statements of the witnesses and thereafter, handed over the file to CW23 for further investigation. CW23 has partly conducted the investigation. Thereafter, he handed over the case records to CW25. CW25-

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HC-KAR

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Police Inspector attached to Tarikere Police Station has partly conducted the investigation and during the course of investigation, he interrogated accused 5 and 7, recorded their voluntary statement, seized the cash from the possession of accused 5 and 7 in presence of panch witnesses and on receipt of report of identification parade, he submitted charge sheet against the accused for the offence under Section 395 of IPC.

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After filing the charge-sheet, the case was

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registered in CC No.551/2010. Upon hearing on charges, the trial Court has framed charges for the offence punishable under Sections 395 of Indian Penal Code and the same was read over and explained to the accused. Having understood the same, accused have pleaded not guilty and claimed to be tried.

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To prove the case of prosecution, in all, 20 witnesses were examined as PWs1 to 20 and 24 documents were marked as Exhibits P1 to P24 and 15 Material Objects were marked as MOs.1 to 15. On closure of prosecution side evidence, statements of the accused under Section 313 of Code of Criminal Procedure were recorded. Accused have totally

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denied the evidence of prosecution witness, but they have not chosen to lead any defence evidence on their behalf.

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Having heard the arguments on both sides, the trial

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Court convicted accused 1, 3 to 7, for the offence under Section 395 of IPC and sentenced to undergo rigorous imprisonment for a period of 4 years and pay fine of Rs.10,000/- each. Being aggrieved by this judgment of conviction and order on sentence, the appellants have preferred these appeals.

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Learned counsel for the appellant/accused would submit that the name of the accused has not shown in the FIR. The test identification parade was not conducted by the Investigating Officer after arrest of accused and complainant does not reveal the description/features of the accused who are involved in the alleged crime. Exhibit P1-rough sketch does not reveal as to the existence/source of light at the time of drawing sketch as well as mahazar- Exhibit P2. Exhibit P2 is not proved by the prosecution for the reason that the attesting mahazar witness PW15 has not supported the case of the prosecution.

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PW9, PW10, PW16 and PW17 who are the material witnesses in the case, have not supported the case of the

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prosecution. Further it is submitted that, the complainant has stated that his motorcycle bearing No. KA-18/R-5888 has been robbed away from him. The prosecution has failed to prove that the complainant was the owner or possessor of motorcycle bearing No.KA-18/R-5888. Further, the prosecution has failed to prove that the parts of the vehicle stated to have been recovered vide Exhibit P17-recovery panchanama dated 20.07.2010 are very much parts of the robbed vehicle of the complainant bearing No.KA-18/R-5888. The prosecution has not produced any documentary proof like RC book, insurance pertaining to robbed motorcycle, without which prosecution's contention of robbery cannot be said to have been proved.

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The prosecution has failed to prove that the accused has used Maruti omni van for committing an act of robbery, particularly, when neither its owner nor anyone concerned to it have been examined to state about the fact that on the alleged date of incident these accused have used this car for committing the said crime. One Kumar, as noted by the

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trial Court, is the owner of the said vehicle. The said aspect of the matter throws serious doubt about the prosecution case.

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The said car is also not seized. The trial Court has not appreciated the evidence on record in accordance with law and facts. Without any evidence, the trial Court has convicted the accused, which is not sustainable under law. Hence, he sought for allowing these appeals.

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The learned High Court Government Pleader Sri B. Lakshman, would submit that the trial Court has properly appreciated the evidence on record in accordance with law and facts and that there are no grounds to interfere with the impugned judgment of conviction and order on sentence.

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Having heard the arguments on both sides and on perusal of the materials placed before this Court, the point that would arise for my consideration is:

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Whether the appellants/accused in these appeals have made out a ground to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court?

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I have examined the materials placed before this Court. Tarikere police have submitted the charge sheet against the accused for the offence under Section 395 Indian Penal

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Code. It is alleged by the prosecution that on 16.07.2010 at about 7.00 am when C W21 was in charge of police station, CW1 came to the police station and lodged a written complaint alleging that on 14.07.2010 he had been to Bangalore to the house of his niece and on 15.07.2010 after purchasing clothes and cable, he boarded the Intercity train and reached Bhadravathi at about 09.30 p.m. After getting down from the train when he was proceeding towards his village on his motorcycle No.KA-18/R-5888, and at about 10.30 pm near the turning which leads to M.C.Halli quarters, two persons aged about 25-30 years, enquired him the road to Karakucchi; after directing them towards Karakucchi road he proceeded further.

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At that time, two persons came from opposite direction by holding long. Upon seeing them, he took his vehicle towards M.C Halli quarters; near M.C Halli quarters road, a Maruti van was parked beside the road, two persons stopped the vehicle, four persons came towards him and snatched the bag which was kept on the petrol tank of the motorcycle. Thereafter, two persons wielding long, snatched the amount and mobile set. Thereafter, two persons pushed him from the bike, assaulted him and took his motorcycle and went towards M.C Halli

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quarters and the remaining four persons went in Maruti van, he saw the number of Maruti van with the help of tail-lamp light and the number is KA-03/C-226. Thereafter, he went to the house of the Chinnathambi, which is situated in M.C Halli and thereafter he had gone to his village on the bike with one Basavaraju. Later, he lodged complaint with Police.

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The alleged incident took place on 15.07.2010 at 10.30 pm. The complaint came to be filed on 16.07.2010 at 07.00 a.m. On the basis of complaint, case was registered in Crime No. 145/2010 against unknown accused for the offence punishable under Section 395 Indian Penal Code and submitted the First Information Report-Exhibit P19 to the Court on 16.07.2010 at 11.30 am against six persons aged about 25-30 years, name and address not known. The Investigating Officer has arrested accused 1 to 4 on 20.07.2010 and also seized one Maruti Omni van (MO.6) under Exhibit P15-seizure mahazar. On the same day police have conducted another seizure mahazar as per Exhibit P16. Police have seized one hand bag, nylon saree and a white shirt (MO4).

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On the same day police have seized one mobile MO1, which was used for commission of offence under Exhibit P13-seizure mahazar. After conducting seizure mahazar, the Investigating Officer has inserted the seized properties in property form and submitted the same to the Court under PF No.57/2010, 58/2010, 59/2010, 60/2010 and 67/2010 on 20.07.2010 and the Investigating Officer has submitted the same to the Court on 21.07.2010.

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The Investigating Officer has recorded the statement of PW9, PW10, PW16 and PW17. These witnesses have not supported the case of the prosecution. During the course of their cross-examination after treating them as hostile witnesses, these witnesses have categorically denied the statement said to have been recorded by the Investigating Officer under Section 161 of Code of Criminal Procedure, which are marked as Exhibits P9 to 11 and P18. According to the case of the prosecution, the Investigating Officer PW18 has deputed PW2, PW3 and PW5 to trace out the accused and properties.

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Accordingly, while PW2, PW3 and PW5 were patrolling, near Bhadravathi, they found one Omni van which was stationed at

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the back side of Taluk Office. Then they found accused 1 to 4 along with Maruti Omni van bearing No.KA-03/C-226 (MO.6). The police have not seized the van on spot, and took the accused 1 to 4 along with the van to the police station and produced before PW20. Thereafter, PW20 has interrogated accused 1 to 4 and recorded their voluntary statement. PW20 called Panchas PW15 Valyanaika and CW5 Mariyappa to the police station and searched accused 1 to 4 in their presence. Then the Investigating Officer has found Rs.200/- with accused No.1, Rs.150/- with accused No.2, Rs.150/- with accused No.3, Rs.175/- with accused No.4. He also searched the vehicle bearing No.KA-03/C-226 and found one wooden handle knife, another hand saw (UÀgÀUÀ¸À), 2 spanners No.17 and 27 and a

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screwdriver. He seized the above cash, 2 knives, spanners and screwdriver and the vehicle KA-03/C-226 under Mahazar Exhibit P15 in presence of PW15 and CW5. PW15 the mahazar witness, has deposed in his evidence as to the contents of mahazar Exhibit P15. During the course of his crossexamination, he has clearly stated that police have not issued any notice to him to come to Station. When he has visited to the taluk office to get the caste certificate of his son, he went

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to the police station to see that the police have arrested the accused. Further, he has deposed in his examination-in-chief that the police, near Attigunda channel, showed the place stating that the accused have removed the spares of the motorcycle of Manikyanaika. Further, in the cross-examination, he has stated that he does not know the contents of the mahazar. Therefore, the evidence of PW15 will not come to the aid of the prosecution. Another witness CW5 was not examined before the Court.

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It is the case of the prosecution that after recording the voluntary statements of accused 1 to 4, the Investigating Officer has seized the properties under mahazar as per Exhibit P13, P15 and P16 . As per Exhibit P15, absolutely there are no independent witnesses to prove the contents of the said seizure mahazar. Investigating Officer-PW20 has not whispered anything with regard to accused 5 to 7. PW4-U Sharanappa, Circle Inspector of Police, has deposed in his evidence that on 25^th July, 2010 he took up further investigation from CW23. That on 11^th August, 2010, the staff produced Accused 5 to 7 before him. He interrogated and arrested them and recorded

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their voluntary statement. He searched accused 5 to 7 and found cash of Rs.3,000/- from accused No.5 and Rs.1,000/from accused No.7 and seized the said cash under mahazar Exhibit-P3 and on the same day he has produced accused 5 and 7 before the Court with remand application. As per PW15, none of the witnesses have supported the case of the prosecution to substantiate the contents of Exhibit P3. Even PW15 has clearly stated that he do not know the contents of mahazar.

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Either PW4 or PW20, the investigating officers, have not whispered anything as to how the accused 5 to 7 have been impleaded as accused in this case.

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With regard to identification parade of the accused is concerned, complaint Exhibit P11 does not reveal as to the features of the accused. It is stated in the complaint that the accused are aged between 25-30 years. The age of the accused shown as in the charge sheet is, accused No.1-21 years, accused No.2-22 years, accused No.3-20 years, accused No.4-21 years, accused No.5-20 years and accused No.7-19 years. According to the case of the prosecution, identification parade was done by Tahsildar-PW12 on 27^th August, 2020.

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Exhibit P15 is the identification parade report. The Taluk Executive Magistrate-PW12 has conducted test identification parade of accused 1 to 4, 5 and 7.

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It is stated in the report Exhibit P5 that complainant K.Manja Nayak has identified six persons. The complainant PW7 has identified accused 1 to 4, 5 and 7. In paragraph 24 of the judgment, the trial Court has observed as follows:

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"24. PW7 is the complainant who has stated in his evidence that after 15 to 20 days of the incident the police called him to the police station and took him to Tahasildar Office; thereafter to the Sub-jail for identification parade; in the identification parade, he has identified accused 1 to 7. in the course of cross examination, he has stated that he went to jail for identification parade at about 2.00 to 2.30 p.m.; himself, Tahasildar and witnesses CW18 and 19 went to the jail. According to the evidence of PW12, when she reached the jail, the witnesses were waiting outside the jail. The evidence given by PW7 regarding the time of conducting identification parade and the presence of CW18 and 19 in the jail is contrary to the evidence given by PW12. According to the case of the prosecution, A6 was not subjected for identification parade. Inspite of it, PW7 has deposed that he has identified A6 in the identification parade. The evidence given by PW7 regarding he identifying the accused in the sub jail is not credible one.

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The executive magistrate has not followed proper procedure while conducting identification parade. She has not obtained descriptions of the accused from the I.O before conducting the ID parade. She has not made any effort to mix the accused persons with the persons who have same features as that of the accused persons. More over, PW12 has not issued notice to the complainant and the witnesses before conducting identification parade. Since the evidence of the complainant-PW7 is contrary to the evidence of PW12 and proper procedure has not been followed by PW12 to conduct identification parade, it is not safe to rely on the evidence of PW7 that he has identified the accused in the identification parade. Further, the records reveal that on 20.7.2010 itself, the complainant had seen the accused in the police station along with other witnesses which is evident from the suggestion put by the prosecution to the witness PW16. The identity of the accused was revealed on 21.7.2010 itself. Hence conducting of ID parade by PW12 is a futile exercise. The prosecution has failed to establish that the complainant has identified the accused in the identification parade".

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The trial Court has assigned proper reasons for disbelieving the identification parade conducted by Investigating Officer. Therefore, there is no need to discuss much on this point.

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The Investigating Officer has not produced the RC Book or 'B' Register Extract pertaining to van bearing No. KA-03/C-226. The van is marked as MO.6. The Investigating Officer has not investigated as to who is the owner of the said van and how it has come to the possession of the accused. In the absence of this material piece of evidence, the conduct of the Investigating Officer will create doubt as to the alleged commission of offence.

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On careful examination of the entire evidence on record, I do not find any cogent, convincing, clinching, corroborative and trustworthy evidence before this Court. As already discussed, the Investigating Officers who are examined before the Court, have not deposed as to how they have inserted names of accused 5 to 7 in the charge sheet. Merely because they have seized some properties from accused 5 and 7, does not mean that the accused have committed dacioty, as alleged by prosecution. When the prosecution has failed to prove that the alleged dacoity committed by all accused 1 to 7, the question of committing dacoity from accused 1 to 4 alone, does not arise. Viewed by any angle, I do not find any

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trustworthy evidence before this Court to convict the accused for alleged commission of offence. The trial Court has not properly appreciated the evidence on record in accordance with law and facts. Hence, I answer the point arose for consideration, in the affirmative.

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For the reasons aforestated, I proceed to pass the

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following:

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O R D E R

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i. Appeals are allowed;

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ii. Ju dgment of conviction and order on sentence dated 21.11.2013 passed in Sessions Case No.154/2010 clubbed with S.C. No.36/2012 on the file of II Addl. Sessions Judge, Chikkamagalur, is set aside;

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iii. Appellants, 1, 3 to 7 are acquitted of offence under Section 395 of Indian Penal Code;

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iv. Fine amount, if any deposited by the accused, shall be refunded to the accused;

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Sd/(G BASAVARAJA) JUDGE

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KBM, LNN., List No.: 1 Sl No.: 36

Karthik S v. the State by Tarikere Police

Case brief

What is this about?

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Karthik S v. the State by Tarikere Police

Case brief

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