The State by Vs Shivaprasad Rai T @ Prasad

SHIVAPRASAD RAI T. @ PRASAD AGED ABOUT 32 YEARS S/O SUBBAYYA RAI R/AT MADVA HOUSE, KODYAME POST VIA KUMBALE, KASARAGOD TALUK KASARAGOD DISTRICT KERALA STATE-671 121

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…RESPONDENT

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(BY SRI. P.P.HEGDE, SENIOR COUNSEL FOR SRI. SHARADI S. SHETTY, ADVOCATE)

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2 -

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NC: 2026:KHC:2547-DB CRL.A No. 1985 of 2018

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HC-KAR

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND (3) OF CR.P.C PRAYING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 28.04.2018 IN S.C.NO.120/2015 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K., MANGALURU, ACQUITTING THE RESPONDENT/ACCUSED NO.5, FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 144, 148, 342, 387, 449 AND 506 OF IPC AND SECTION 27 OF ARMS ACT.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH and

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HON'BLE MR. JUSTICE VENKATESH NAIK T

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE H.P.SANDESH)

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This appeal Crl.A.No.1985/2018 is filed by the

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State against the acquittal order passed against accused No.5 for the charges levelled against him and Criminal Appeal No.1277/2018 is filed by accused No.4 against the conviction order. Both the matters are listed for final hearing.

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Now, the counsel appearing for the respondent

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would submits that if no material in respect of accused No.5 is concerned, matter has to be considered by a single

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judge in respect of accused No.4 for conviction and sentence and not by Division Bench, there is a force in the contention of the counsel appearing for the respondent. Having considered the sentence imposed against accused No.4 is for a period of 7 years with fine for the offences punishable under Section 120B, 144, 148, 506, 342, 387, 449 of Indian Penal Code and Section 27 of the Arms Act.

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The main contention of the State in this appeal against the acquittal is that the Trial Court committed an error in coming to the conclusion that there is no material evidence to connect the accused No.5 with the crime and the said observation is bereft of any reasoning. The Trial Court not at all appreciated the evidence on record and no sound reasons are assigned and absolutely no deliberation and appreciation on the evidence of prosecution witnesses and hence, it has resulted in miscarriage of justice. The Trial Court while acquitting the accused mainly held that the evidence led by the prosecution is inconsistent and

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there are material contradictions and the evidence does

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not inspire confidence.

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Learned Additional SPP also submits that the

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very observations made in the judgment of the Trial Court is erroneous and though examined 33 witnesses and marked 40 documents and 16 material objects and witnesses have deposed that on the given date and time, 3 youths came to their office holding pistol asking for their employer that one of them shot with the pistol 4 times towards the floor of the office and created fear in their mind. It is also the case of the prosecution that the accused No.5 was the driver of the Maruthi 800 Car and they have identified the said accused No.5 in the Court. The evidence of these witnesses has been rest upon the minor discrepancies and hence, this Court has to reverse the finding of the Trial Court and convict the accused for the offences invoked against him.

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Per contra, the counsel appearing for the respondent would vehemently contend that though

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charge is levelled against accused Nos.4 and 5, both of them have conspired each other to murder of C.W.19 and pursuant to same, on 20.10.2008 they formed unlawful assembly near Ullas wine Shop at Nanthooru and went to the office of C.W.19 at 4:45 p.m., with deadly weapons like pistol and committed the act of house trespassing and criminal intimidation and committed the offences. The counsel would vehemently contend that the Trial Court in detail discussed the evidence of prosecution witnesses particularly in paragraph Nos.21, 22, 23 and 24 also taken note of evidence against accused No.4 and having considered the evidence of prosecution witnesses in paragraph No.42 as regards to the accused No.5 is concerned, it is the definite case of the prosecution that accused No.5 criminally conspired with accused Nos.2 to 4 to commit murder of C.W.19 as a member of unlawful assembly formed by them and assisted accused Nos.2 to 4 in pursuing their common object as Driver of Maruthi 800 car bearing number DL-3-CA-8557 which was fixed with a

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duplicate number plate bearing number KA-21-M-5485.

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The Trial Court also having considered in paragraph No.43 that the materials on record goes to show that P.W.2, P.W.5 and P.W.7 were recalled and further examined on 15.12.2016. During such further examination, these witnesses have stated that accused No.5 was in one driver seat of the car in question and that they will identify him, as such, a genuine question arises to the reliability of these statements and also the case of prosecution that the offenders had fled away from the place in the car immediately after coming out of the office of C.W.19 and they were at the place hardly for about 2 to 3 minutes. The Trial Court also taken note of none of the witnesses and Investigating Officer has spoken about the distance between the office of C.W.19 and the place where the car was found and also no test identification parade was conducted to identify accused No.5. Having taken note of all these materials, comes to the conclusion that there was no any incriminating evidence against accused No.5, only

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based on the statement of accused No.4, the accused No.5 is implicated and hence, the Trial Court assigned the reasons for acquittal and hence, no case is made out to convict the accused No.5.

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Having heard the learned Addl. SPP and also

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the counsel appearing for the respondent/accused No.5, the point that would arise for our consideration are:

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1) Whether the Trial Court committed an error acquitting the accused No.5 and whether it requires interference on reassessing both oral and documentary evidence?

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2) What order?

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Having heard the counsel appearing for the

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State as well as the counsel for the respondent and prosecution mainly relies upon the evidence of P.W.1 to P.W.33 and relies upon the document Ex.P.1 to Ex.P.40 and MO.1 to MO.16. The defence has not led any defence evidence. The records also reveals that accused No.1, 2 and 6 are absconded and accused No.3 died and hence,

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case against accused No.3 is abated. The accused Nos.4 and 5 were only subjected to trial. Having considered both oral and documentary evidence and particularly for the offences alleged against the accused and the charge is also very clear that these two accused persons conspired with each other to commit the murder of C.W.19 and incident was taken place at 4:45 p.m. The prosecution mainly relies upon the evidence of P.W.1, P.W.2, P.W.4 and P.W.7 and they had even appeared for the test identification parade held by P.W.22-Raju Mogaveera, who was the Taluk Magistrate and had identified accused No.4 during such parade. Admittedly, there is no any test identification parade against this accused and the same is also taken note of by the Trial Court that there was no test identification.

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It is also important to note that the witnesses who have spoken before the Court and even also I.O have not pointed out the role of accused No.5 and also the witnesses were recalled and thereafter only these

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witnesses deposes before the Court that too in a further examination that accused No.5 was in the driver seat of the car in question and that they will identify him. Having taken note of this factual aspect is concerned, it is the case of the prosecution that he was a driver of the vehicle and none of the witnesses have identified him except in further evidence these witnesses have deposed. The Trial Court having taken note of the accusation in paragraph No.42 with regard to the common object of the accused persons that there was a duplicate car number plate was also inserted and in order to prove the fact that vehicle belongs to this accused, nothing is placed on record and apart from that the evidence of P.W.2, P.W.5 and P.W.7, admittedly they were inside the office prior to the incident and none of the witnesses have spoken with regard to this accused drove the vehicle and other accused persons came in the said vehicle, but only the evidence of the prosecution is that all of them fled away from the place in the car immediately after coming out of the office of

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C.W.19, they were at the place hardly for 2 to 3 minutes.

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In order to prove the fact that this accused was the driver, neither the eye witnesses nor the Investigating Officer deposed about the distance between the office of C.W.19 and the place where the car was found and the Investigating Officer has not drawn any sketch in this regard and the same is also taken note of in paragraph No.44 of the judgment of the Trial Court and also reiterated that no test identification parade was conducted. When the evidence of P.W.2, P.W.5 and P.W.7 with regard to the identification of the accused No.5 is concerned as he was the driver and their evidence cannot be relied upon and only an improvement in the subsequent evidence and those witnesses who have been recalled and deposed before the Court. The Trial Court in paragraph No.5 of the judgment taken note of that Investigating Officer apprehended accused No.4 on 11.12.2008 and recorded his voluntary statement on the same day and later he has taken custody of accused No.5 on 25.04.2009, who was in

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Kumble Sub-Jail in connection with another case. During his evidence, the Investigating Officer has not made any statement as to the statement of accused No.4, having led him to discovery of new fact i.e., involvement of accused No.5 in the crime in question through accused No.4 and this aspect also taken note of and merely based on the statement of accused No.4, accused No.5 cannot be convicted for the offence in the absence of any evidence against accused No.5 is concerned. All these factors were taken note of by the Trial Court while appreciating both oral and documentary evidence and when there is no sufficient incriminating evidence against accused No.5 is concerned that he was driving the car at that time and without any identification and particularly no test identification and test identification conducted only against accused No.4 and hence, benefit of doubt was given in favour of the accused No.5. When such being the case, we do not find any ground to reverse the finding of Trial Court with regard to the involvement of this accused and

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connecting this accused and in the absence of any cogent incriminating evidence against the accused, question of reversing the same doesn't arise and while re-appreciating the evidence and if Court comes to a conclusion that involvement of this accused, that too particularly evidence

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has not been considered by the Trial Court and then only Court can reverse the finding and in the absence of material evidence, we do not find any ground to convict the accused and sentence him for the offences invoked against him similarly as that of accused No.4 and hence,

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appeal is dismissed .

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Sd/(H.P.SANDESH) JUDGE

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Sd/(VENKATESH NAIK T) JUDGE

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RHS List No.: 1 Sl No.: 20

The State by v. Shivaprasad Rai T @ Prasad

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The State by v. Shivaprasad Rai T @ Prasad

Case brief

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