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Karnataka High Court · body

2015 DIGILAW 839 (KAR)

Srinivasa Alias Seena v. State of Karnataka

2015-07-31

R.B.BUDHIAL

body2015
JUDGMENT : Budihal K.B., J. - The judgment and order of conviction dated 24-4-2009 passed by the Principal Sessions Judge at Hassan in S.C. No. 45 of 2004 is called in question in all the above three appeals. 2. Cri. Appeal No. 527 of 2009 is preferred by accused 1, 2, 4 and 5. Cri Appeal No. 523 of 2009 is filed by accused 6 and Cri. Appeal No. 621 of 2009 is filed by accused 7. 3. Brief facts leading to the case of prosecution are that P.W. 3-Somashekar lodged the complaint as per Ex. P. 3 alleging that on 25-7-2003 at 12.00 midnight, the complainant-Somashekar, his wife Bhagya and their two children i.e., Lavanya and Praveen, after having the meals, slept in the bed room of the front side of the house. On the backside, in one room, the worker Somla Naik was sleeping. At about 12.30 midnight, they heard the sound that somebody was trying to break open the door of the house. Immediately, five persons came to the bedroom. One person was holding the club in his hand and he assaulted the complainant on the head and on the face and caused the bleeding injuries and another person assaulted the complainant's wife Bhagya on the left leg with the club and they started to cry. Those persons threatened the complainant and his family members that if they made hue and cry, they will finish off them. One person out of them, by posing the threat, snatched ring from right hand finger of the complainant and also threatened the wife of the complainant to give the mangalya chain anil accordingly, the wife of the complainant gave the mangalya chain to them. Then they opened the almirah and took five pairs of gold studs and two pairs of hangings, one pair of mati, three rings, one pair of jumki, one pair of drops (gundu) and three pairs of silver chain, two pairs of silver pooja lamp, two silver vermilion bowls and went away from the house. Some of the persons, who entered the house, were having the torchlight. While going out of the house, one of those persons took Rs.11,500/- from the pant pocket of the complainant and while going out, they latched the front door from out side by leaving the complainant and his family members in one room. Some of the persons, who entered the house, were having the torchlight. While going out of the house, one of those persons took Rs.11,500/- from the pant pocket of the complainant and while going out, they latched the front door from out side by leaving the complainant and his family members in one room. When they called the servant Somla Naik, he came and opened the door. The said unknown persons were at the age group of 25-30 years and they wore pant, lungi and colour sandow banian and they covered their face with kerchief and were talking in Kannada language. The said persons also robbed the ornaments worth Rs.50,000/-. As the complainant sustained the bleeding injuries, P.W. 1-Umesh took him on his bike to Banavar Hospital for treatment. On getting the treatment, the complainant gave the complaint before the police requesting to trace the accused and to take action against them in accordance with law. 4. On the basis of the said complaint, case was registered in Banavar Police Station, Crime No. 69 of 2003 for the offence punishable under Section 395 of Indian Penal Code, 1860 against 6-8 unknown persons. The Investigating Officer after conducting and completing the investigation, filed the charge-sheet against the appellants accused along with the other accused for the offence punishable under Section 395 of IPC. 5. The Trial Court, after hearing the prosecution and the accused, framed the charge against the appellants-accused and the other accused for the offence punishable under Section 395 of IPC and posted the matter for trial. 6. To prove its case, the prosecution in all examined 20 witnesses as P.Ws. 1 to 20 and got marked the documents at Exs. P. 1 to P. 31 and the material objects-M.Os. 1 to 10. On behalf of the defence, no witnesses were examined and no documents got marked. After considering the materials on record, both oral and documentary, the Trial Court convicted the appellants-accused. 7. Heard the arguments of learned Counsel appearing on behalf of the appellant-accused in the respective appeals and also Sri K.R. Keshavamurthy, learned State Public Prosecutor-2 appearing for the respondent-State. 8. Learned Counsel appearing for appellant-accused 7 in Cri. A. No. 621 of 2009 during the course of his arguments submitted that the Trial Court has wrongly read the evidence and wrongly convicted the accused persons. 8. Learned Counsel appearing for appellant-accused 7 in Cri. A. No. 621 of 2009 during the course of his arguments submitted that the Trial Court has wrongly read the evidence and wrongly convicted the accused persons. He has submitted that as per the case of the prosecution, incident has taken place during night and there was no sufficient light even as per the complaint averments and persons who came inside the house were wearing mask on their faces. The identification parade was conducted after police have shown the accused persons to the witnesses and therefore, the proceedings of the T.I. parade cannot be relied upon. He has also submitted that even the recovery of gold ornaments is not satisfactorily established by the prosecution. This aspect of the matter is not properly appreciated by the Trial Court and accused 7 has been wrongly convicted and hence, it is submitted to allow the appeal and to set aside the judgment and order of conviction. 9. Learned Counsel appearing for appellants-accused 1, 2, 4 and 5 in Cri. A. No. 527 of 2009 submitted that in the judgment and order of conviction, the Trial Court went on narrating what the witnesses have deposed in the evidence and proceeded to convict the accused persons. There is no appreciation of the evidence as to whether the prosecution was able to establish its case beyond reasonable doubt and whether the evidence of the prosecution witnesses is worth believable. He has submitted that even according to the evidence of complainant-Somashekar and his wife Bhagyalakshmi who are said to be the eye-witnesses to the incident, they themselves have admitted that earlier to conducting the test identification parade proceedings, police have shown the accused persons to them in the police station. In view of this evidence of the prosecution witnesses, the T.I. Parade proceedings conducted by the Taluk Executive Magistrate has no evidentiary value and it cannot be looked into by the Court. It is also his submission that so far as the recovery of the amount is concerned, none of the prosecution witnesses have supported the same. Regarding the recovery o gold ornaments, the person with whom the gold ornaments have been kept has not at all been examined before the Court. It is also his submission that so far as the recovery of the amount is concerned, none of the prosecution witnesses have supported the same. Regarding the recovery o gold ornaments, the person with whom the gold ornaments have been kept has not at all been examined before the Court. When he has been cited as a charge-sheet witness, the prosecution ought to have examined the said witness before the Court and his non-examination is fatal to the prosecution case. It is his submission that recovery of gold ornaments is as per the voluntary statements said to have been given by the accused. Original voluntary statements were not at all produced before the Court during the course of the trial and only the Xerox copies have been marked, which is not correct and it cannot be relied upon by the Court. He has further submitted that mere marking of the documents is not the proof of contents of the documents and the prosecution has to prove the transaction said to have taken place under those documents, which is not done in this case. He has submitted that only on the basis of evidence of the Investigating Officer, cannot be said that recovery has been proved by the prosecution. He has submitted that without appreciating these legal aspects, the Trial Court has wrongly convicted the accused. Hence, the judgment and order of conviction of the Trial Court is not in accordance with the oral and documentary evidence placed on record. Accordingly, it is prayed to allow the appeal and to set aside the judgment and order of conviction passed by the Trial Court. 10. Learned Counsel appearing for appellant-accused 6 has submitted that he will adopt the arguments made by the learned Counsel appearing for appellants-accused 7, 1, 2, 4 and 5. 11. Per contra, the learned State Public Prosecutor-2 during the course or his arguments submitted that to establish the identity of accused persons, the complainant and his wife have deposed in their evidence that there was a bed lamp in the bedroom and when they wanted to put on the other lights, the persons who came inside the house threatened them not to put on the lights. In the light of the said bed lamp the complainant and his wife were able to identify the witnesses. In the light of the said bed lamp the complainant and his wife were able to identify the witnesses. But so far as conducting the T.I. Parade by the Taluk Executive Magistrate is concerned, he fairly conceded that there is a procedural irregularity as argued by the other side. He has submitted that the recovery aspect has been established by the prosecution. The gold ornaments were seized at the instance of the voluntary statements given by the accused persons and the ornaments were identified by the complainant and his wife that they were robbed from their house. Even though the witness with whom they have kept the gold ornaments was not examined before the Court, but evidence of Investigating Officer is sufficient to rely upon the recovery proceedings. Hence, he has submitted that there is no infirmity in the judgment and order of conviction passed by the Trial Court. The Trial Court has considered all the aspects of the matter and convicted the accused. Hence, he has submitted to dismiss the appeals. 12. I have perused the oral and documentary evidence produced by the prosecution before the Trial Court and also the judgment and order of conviction passed by the Trial Court. 13. Looking to the complaint-Ex. P. 3 it goes to show that when the complainant-P.W. 3-Somashekar slept in his house along with his wife and two children in the bedroom at about 12.00 midnight, half an hour thereafter i.e, at 12.30 a.m., five persons, by breaking open the main door of the house, entered into the house and snatched the gold ring from the complainant and by threatening his wife Bhagyalakshmi, they made her to give her gold mangalya chain and it is also the allegation in the complaint that they have taken all the golden ornaments kept in the almirah and while going out, one among the five accused took away cash of Rs.11,500/- from the pocket of the complainant. But looking to the other averments in the complaint it is mentioned that those persons covered their faces with handkerchief, which shows that they were wearing mask on their faces. In the complaint there is no specific mention as to the fact that there was sufficient light in the bedroom when they entered into the bedroom so as to identify them easily. In the complaint there is no specific mention as to the fact that there was sufficient light in the bedroom when they entered into the bedroom so as to identify them easily. On the contrary, there is averment in the complaint that when complainant and his wife wanted to put on the light they prevented them from putting the light. This goes to show that the persons who came into the house during the night covering their faces, were not easily identifiable by the witnesses. Therefore, conducting the test identification parade immediately in the matter was necessary. 14. But looking to the oral evidence of P.W. 3 (complainant-Somashekar) and his wife-P.W. 4, they have stated that two months after the incident, they were called to Arasikere Police Station and shown the persons who have committed robbery in their house. The accused before the Court were all present before the police station on that day. P.W. 3 also deposed that, thereafter, Tahsildar of Arasikere called him and his wife to Hassan Jail and conducted the test identification parade to identify the accused persons. They identified the accused persons in the T.I. parade. In the cross-examination, P.W. 3 deposed that after the robbery in his house, for the first time, he has seen the accused in Banavar Police Station and four months thereafter, he has seen the accused persons in the Hassan Jail. So also the evidence of P.W. 4-Bhagya. Therefore, the evidence of these two witnesses made it very clear that before the Taluk Executive Magistrate conducted the test identification parade, the accused persons were shown to the witnesses-P.Ws. 3 and 4 in the police station. In this connection, learned Counsel Sri Hashmath Pasha appearing for the appellants in Cri. A. No. 527 of 2009 has relied upon the following decisions: 1. Laxmipat Choraria and Others v. State of Maharashtra, AIR 1968 SC 938 : 1968 Cri. L.J. 1124 (SC) wherein their Lordships of the Hon'ble Supreme Court have laid down the proposition as under: "(C) INDIAN EVIDENCE ACT, 1872 (1 of 1872), Section 9 -Identification of suspect by witness - Ability of witness to identify should be tested without showing him the suspect, or his photograph, or furnishing him data for identification - Showing photograph prior to identification makes identification worthless." 2. Mohd. Mohd. Iqbal M. Shaikh and Others v. State of Maharashtra, AIR 1998 SC 2864 : 1998 SCC (Cri.) 1064 : 1998 Cri. L.J. 2537 (SC) : (1998) 4 SCC 494 wherein their Lordships of the Hon'ble Supreme Court laid down the proposition as under: "(E) Indian Evidence Act, 1872 Section 9 T.I. parade -When necessary - When accused is known to the witness by face only and not by name then evidence of T.I. parade can corroborate the substantive evidence of identification in Court - Where accused is shown to the witness during investigation, then the so-called identification parade loses its value and identification in Court also becomes inconsequential." 3. Mohanlal Gangaratn Gehani v. State of Maharashtra, AIR 1982 SC 839 : (1982)1 SCC 700 : 1982 SCC (Cri.) 334 : 1982 Cri. L.J. 630 (SC) wherein their Lordships of the Hon'ble Supreme Court have laid down the proposition as under: "(B) Indian Evidence Act, 1872 (1 of 1872), Sections 9 and 3 - Identification of accused - Victim not knowing accused prior to occurrence - Test identification parade not held - Accused shown to victim by police before trial - His identification in Court by victim is valueless and cannot be relied upon." 15. Looking to the evidence on record so also the legal position in the aforesaid decisions relied upon by the learned Counsel appearing for the appellants, it is clear that the test identification parade conducted by the Taluk Executive Magistrate S.G. Kumara Swamy, who has been examined as P.W. 8, cannot be relied upon as the test identification parade was conducted after showing the accused persons to P.Ws. 3 and 4 in the police station. This legal aspect has not at all considered by the Trial Court while passing the judgment and order of conviction. 16. Now coming to the recovery of the gold ornaments and also the cash at the instance of the accused persons, the prosecution has relied upon the evidence of P.W. 12-K.G. Manjunatha, P.W. 16-Paramesha and P.W. 17-Chandrashekar. Let me refer the evidence of these witnesses to know as to whether they have supported the case of prosecution or not. 16. Now coming to the recovery of the gold ornaments and also the cash at the instance of the accused persons, the prosecution has relied upon the evidence of P.W. 12-K.G. Manjunatha, P.W. 16-Paramesha and P.W. 17-Chandrashekar. Let me refer the evidence of these witnesses to know as to whether they have supported the case of prosecution or not. P.W. 12-Manjunatha has deposed that he does not know the accused persons and also deposed that on 21-10-2003, the accused persons have not produced the gold and silver ornaments and the cash before the police through C.W. 12-Ramakrishna Achary and the police have not at all conducted any mahazar in his presence. So he turned hostile. Even in the cross-examination by the Public Prosecutor, P.W. 12 has denied the suggestion put by the PP that in his presence, the accused persons have produced the gold and silver ornaments and also the cash through Ramakrishna Achary and in that connection, the police have drawn the mahazar under Exs. P. 16 to P. 20 and he is a signatory to the said panchanamas. 17. P.W. 16-Paramesha also deposed in his evidence in the examination-in-chief that he has not seen the accused persons. The accused Srinivas has not at all took himself and the police to the jewellery shop of Ramakrishna Achary at Gurujan Hatti in Chitradurga District nor C.W. 12-Ramakrishna Achary has produced the gold and silver articles before the police. He has further deposed that the police have not at all conducted the seizure mahazar-Ex. P. 16 in his presence. The accused Danesh, Manjunath, Govind and Siddesh have also not led him and the police to the said place i.e., the jewellery shop of C.W. 12-Ramakrishna Achary or the said Ramakrishna Achary produced the gold and silver articles nor the mahazars were drawn in that connection under Exs. P. 17 to P. 20 in his presence. So this witness was also treated as hostile. When cross-examined by the PP, nothing has been elicited from his mouth so as to believe the story of the prosecution. 18. The evidence of P.W. 17-Chandrashekar is also to the same effect as deposed by P.W. 16. This goes to show that none of the panch witnesses have supported the case of the prosecution that in their presence the accused told Ramakrishna Achary to produce the gold and silver articles so also the cash before the police. 18. The evidence of P.W. 17-Chandrashekar is also to the same effect as deposed by P.W. 16. This goes to show that none of the panch witnesses have supported the case of the prosecution that in their presence the accused told Ramakrishna Achary to produce the gold and silver articles so also the cash before the police. 19. Ramakrishna Achary, the owner of the jewellery shop, though cited as C.W. 12, has not been examined by the prosecution before the Court. He is a material witness to the prosecution to establish the recovery of gold and silver articles and also cash at the instance of the accused persons. Therefore, adverse inference has to be drawn as to the case of prosecution regarding the recovery of ornaments and cash from the shop of C.W. 12-Ramakrishna Achary. 20. It is no doubt true, the Investigating Officer P.W. 18-H.N. Panchaksharappa has deposed in his evidence that accused 1-Srinivas gave his voluntary statement as per Ex. P. 27, accused 2-Danesh as per Ex. P. 30, accused 4-Manjunath as per Ex. P. 28, accused 5-Govind as per Ex. P. 29 and accused 6-Siddesh as per Ex. P. 24. He has further deposed that the accused persons led the panchas and the police to the place i.e., the jewellery shop of Ramakrishna Achary and at their instance, the gold and silver ornaments were recovered. Looking to the voluntary statements at Exs. P. 24, P. 27 to P. 30, they are only the Xerox and carbon copies and not the original voluntary statements said to have been given by the accused persons. The accused, during the course of the trial, have denied that they have given the voluntary statements as relied upon by the prosecution. When that is so, it was the responsibility of the prosecution to produce the original voluntary statements containing the signatures of the accused persons and tendered them in evidence to prove the voluntary statements said to have been given so also the signature of the respective accused persons in the said statements. In the absence of production of the original voluntary statements, it is not correct for the Court to look into only the Xerox and carbon copies of the voluntary statements in coming to the conclusion that the accused have given such voluntary statements. In the absence of production of the original voluntary statements, it is not correct for the Court to look into only the Xerox and carbon copies of the voluntary statements in coming to the conclusion that the accused have given such voluntary statements. The Trial Court only relying upon the evidence of Investigating Officer-P.W. 18 came to the conclusion that the voluntary statements have been given by the respective accused so also, as per the voluntary statements, the gold and silver ornaments were recovered by the police. The Trial Court has not at all taken into consideration the important aspect of the matter and it has also ignored the principle that mere marking of the document i.e., the voluntary statement, is not the proof of the transaction contained in those documents. As I have already observed, it is Ramakrishna Achary-C.W. 12 who is the competent witness to speak about the transaction between himself and the accused persons so far as the gold and silver ornaments were concerned. 21. It is also the case of the prosecution that the vehicle used in the commission of the offence belongs to accused 7-Rajesh and the same has been seized in the presence of panch witnesses i.e., P.Ws. 2 and 6. Perusing the evidence of P.W. 2-Siddamallappa, he deposed that on 20-10-2003 he was called to Banavara Police Station at 8.00 a.m. as a panch witness. Along with him, P.W. 6-Manjunath was present and complainant-Somashekar was also present. But he deposed that he does not know that whether any of the accused was present. Rajesh has parked his vehicle outside the Station but he has not seen said Rajesh on that day. There was a white color tempo. Police have seized it by writing the mahazar and obtained his signature. P.W. 6-Manjunath has also signed it. The tempo trax was bearing No. KA-16M-5999. The said mahazar is marked as per Ex. P. 2 and his signature is P. 2(a). During the course of his cross-examination he has deposed that as Police told him that it is the vehicle of Rajesh, so he came to know that it is the vehicle of Rajesh. 22. P.W. 6-Manjunath has deposed in his evidence that he does not know about accused 7-Rajesh and also does not know said Rajesh producing tempotrax vehicle said to have been used in the commission of the offence. 22. P.W. 6-Manjunath has deposed in his evidence that he does not know about accused 7-Rajesh and also does not know said Rajesh producing tempotrax vehicle said to have been used in the commission of the offence. He does not know the contents of the mahazar, but Police have obtained his signature to the said mahazar-Ex. P. 2. Even during the cross-examination by the PP, after treating him hostile, nothing has been elicited from him to show that it is accused 7-Rajesh has brought and produced the said vehicle. 23. Therefore, looking to these materials on record, the prosecution has not satisfactorily established that accused 7-Rajesh has brought and produced the vehicle stating that it is used in the commission of the offence. 24. As per the complaint-Ex. P. 3 the incident said to have taken place on 25-7-2003 and the same date is mentioned by the complainant in his complaint-Ex. P. 3. Perusing the endorsement made by the Police on the said complaint, there also the date is mentioned as 25-7-2003, but strangely the Trial Court framed the charge against the accused stating that the incident has taken place on 27-7-2003, same was read over to the accused persons and their plea was recorded. 25. I have perused the original records in S.C. No. 45 of 2004, even while writing the judgment, the Trial Court on page 4 of its judgment at paragraph 5 while narrating the brief facts of the prosecution case, the date is mentioned as 27-7-2003. On page 5 of its judgment, the Trial Court framed the points for consideration and in Point No. 1 also, the date is mentioned as 27-7-2003: "Does the prosecution prove that on 27-7-2003 at about 12.30 hours in the night the accused have committed dacoity in the farm house of the complainant." 26. So this clearly shows that Trial Court framed the charge against the accused persons mentioning a wrong date said to be the date of incident. Though P.W. 15-PSI has deposed in his evidence that the date of incident as 23-7-2003, even then, the Trial Court has not corrected its mistake in the charge and also in the other portion of the judgment wherein, the date of the incident is wrongly mentioned as 27-7-2003. Therefore, this vitiates the entire judgment itself. 27. Though P.W. 15-PSI has deposed in his evidence that the date of incident as 23-7-2003, even then, the Trial Court has not corrected its mistake in the charge and also in the other portion of the judgment wherein, the date of the incident is wrongly mentioned as 27-7-2003. Therefore, this vitiates the entire judgment itself. 27. Perusing all these materials on record, the Trial Court totally ignored the legal aspect and also the material factual aspects involved in the case, wrongly read the oral and documentary evidence and wrongly convicted the appellant-accused in all the three appeals. The judgment and order of conviction passed by the Trial Court is not sustainable in law. 28. Accordingly, appeals are allowed. The judgment and order of conviction dated 24-4-2009 passed by the Principal Sessions Judge at Hassan in S.C. No. 45 of 2004 is hereby set aside and appellants-accused persons in the respective appeals are acquitted of the charges levelled against them and they are set at liberty forthwith if they are not required in any other case.