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2016 DIGILAW 104 (KAR)

Maharaja v. State of Karnataka

2016-01-29

A.N.VENUGOPALA GOWDA

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JUDGMENT : The appellants, as the accused Nos.1 to 3 were arrested on 21.03.2009 in Crime No.86/2009 of the Electronic City Police Station, Bengaluru Rural District and were produced before the Chief Judicial Magistrate, Bengaluru and were remanded to judicial custody and later released on bail. The FIR/Ex.P-3 was registered by PW.3. After investigation, charge-sheet was filed and was registered as C.C.No.2827/2009. The case having been committed to the Court of Sessions, Bengaluru Rural District, was registered as S.C.No.303/2009 for the offences punishable under Ss.399 and 402 of IPC. The accused pleaded not guilty of the charge and faced trial before the Presiding Officer, FTC-I, Bengaluru Rural District. 2. The prosecution examined three witnesses to bring home its case against the accused. In response to the questions posed by the Court, disclosing incriminating evidence against the accused, under S.313 of Cr.P.C., 1973, the accused denied the accusation and stated that they have been falsely implicated. 3. The Trial Judge vide Judgment dated 25.02.2010 recorded a finding that the offences for which the accused were charged as proved and subsequently passed the order of sentence. For the offence under S.399 IPC, the accused were sentenced to undergo R.I. for 3 years and pay fine of Rs. 5,000/- each and in default of payment of fine, to undergo R.I. for further period of six months. For the offence under S.402 IPC, the accused was sentenced to undergo R.I. for 2 years and pay fine of Rs. 5,000/- each, in default of payment of fine, to undergo R.I. for further period of six months. However, both the sentences were ordered to run concurrently. Feeling aggrieved with the Judgment and the Order of the Trial Judge, the accused have filed this appeal. 4. Sri A.S. Kulkarni, learned advocate, firstly, contended that the prosecution has not placed on record any material which attracts the ingredients of the offences punishable under Ss.399 and 402 of IPC. Secondly, there is no material brought on record by the prosecution in proof of the appellants having made preparations to commit dacoity. He submitted that the evidence of PWs.1 to 3 is contradictory and unreliable. Secondly, there is no material brought on record by the prosecution in proof of the appellants having made preparations to commit dacoity. He submitted that the evidence of PWs.1 to 3 is contradictory and unreliable. Thirdly, CW.1/PW.3, the person who registered the FIR/Ex.P-3, himself has investigated the crime and as such the credibility of the investigation being doubtful, particularly for the reason that except PWs.1 and 2, the police constables, no other witness was examined, despite others having signed the seizure mahazar/Ex.P-1. Fourthly, the two independent panch witnesses were not examined and the prosecution has failed to bring home its case beyond all reasonable doubts. Reliance was placed on the decision in CHATURI YADAV & OTHERS vs. STATE OF BIHAR, AIR 1979 SC 1412 . 5. Sri B. Visweswaraiah, learned HCGP, on the other hand submitted that the appellants along with two others were found in a lonely spot and at an odd hour of the night, planning to commit dacoity and that the two appellants were arrested and the chilly powder and knives were seized at the spot. As such, the Trial Judge has rightly found the accused guilty of the charge framed against them. Learned counsel made submissions in support of the finding of guilt recorded by the learned Trial Judge. 6. Having considered the submissions of the learned advocates and perused the record, in my view, neither of the charges in the present case against the appellants can be said to have been proved beyond reasonable doubt. The statements of PWs.1 to 3 with regard to possession of seized chilly powder from the accused is contradictory. Similar is the position with regard to the wearing of plain clothes by PWs.1 to 3. The seizure of M.Os.1 to 3 has not been proved by examination of the independent witnesses to Ex.P-1. In view of the material contradictions in the evidence of PWs.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e., the M.Os. has not been proved. 7. PWs.1 to 3 are the police officials and witnesses. In view of the material contradictions in the evidence of PWs.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e., the M.Os. has not been proved. 7. PWs.1 to 3 are the police officials and witnesses. From their evidence, it is clear that there was no resistance offered by the accused and they did not cause any injury to the police personnel or the persons whom PW.3 had secured for the purpose of witnessing the seizure. PW.3, having registered the crime, has himself investigated the case. As such, the credibility of the investigation is doubtful, particularly for the reason that except the two police constables (PWs.1 and 2), who are subordinate to him, there is no other witness to the incident. 8. In the case of Chaturi Yadav (supra), that on the date of occurrence, the appellants along with others, had assembled at a lonely spot and were detected by a police patrol party, on seeing whom, some of the accused attempted to run away but others were caught and that one out of them was found to be in possession of a gun and live cartridge and others had merely one live cartridge each, in their pockets. The Trial Judge found the accused guilty of the offences under Ss.399 and 402 of IPC, merely from the fact that they had assembled at a lonely place at 1.00 a.m. and could give no explanation for their presence at that odd hour of the night. The accused having assailed the judgment of conviction and the order of sentence on the ground that there is no evidence to show that they had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same, Apex Court has held as follows: “4. …….We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. …….We are of the opinion that the contention raised by the learned counsel for the appellants is well founded and must prevail. The evidence led by the prosecution merely shows that eight persons were found in the school premises. Some of them were armed with guns, some had cartridges and others ran away. The mere fact that these persons were found at 1 A.M. does not, by itself, prove that the appellants had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The High Court itself has, in its judgment, observed that the school was quite close to the market, hence it is difficult to believe that the appellants would assemble at such a conspicuous place with the intention of committing a dacoity and would take such a grave risk. It is true that some of the appellants who were caught hold of, by the Head Constable are alleged to have made the statement before him that they were going to commit a dacoity but this statement being clearly inadmissible has to be excluded from consideration.” The case has some similarity to the present case. In the case on hand, learned Trial Judge has held that the accused were found by the police in a lonely spot and at an odd hour of the night and were in possession of the seized M.Os. and thus, they are liable to be punished for the charged offences. The recovery has not been proved through independent witnesses and no explanation has been offered for their non-examination. 9. In view of the facts and circumstances appearing from the record of the present case, the prosecution has failed to bring home its case beyond reasonable doubt. Without there being a legal evidence to support the charges under Ss.399 and 402 IPC against the appellants, they have been erroneously found guilty and sentenced to undergo imprisonment. That in view of the prosecution’s failure to bring home its case, beyond all reasonable doubt, the appellants are entitled to the benefit of the reasonable doubt. In the said view of the matter, the impugned judgment cannot be sustained. For the foregoing reasons, the appeal is allowed and the impugned judgment passed by the Trial Judge is set aside and the appellants are acquitted of the charges framed against them for the offences under Ss.399 and 402 IPC. Their bail bonds are cancelled.