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2020 DIGILAW 134 (KAR)

Sharief v. State Of Karnataka

2020-01-16

K.SOMASHEKAR

body2020
JUDGMENT K Somashekar, J. - This appeal is directed against the judgment rendered by the Addl.Sessions Judge and Presiding Officer, Fast Track Court-XV, Bangalore in S.C.No.946/2009 dated 08.11.2010 convicting the appellant/accused No.1 for the offence punishable under Sections 398, 324 and 419 of IPC. 2. Appellant/Accused No.1 was sentenced to undergo RI for a period of seven years for the offence under Section 398 of IPC and further sentenced to undergo RI for a period of one year for the offence under Section 324 of IPC and for the offence under Section 419 IPC he was sentenced to undergo RI for a period of one year. Further, it was ordered that the sentences shall run concurrently. But, Accused Nos.2 to 4 were acquitted for the offences punishable under Sections 307, 399, 420 of IPC. 3. The factual matrix of the case is that on 1.2.2009, at 10.30 p.m. to 11.30 p.m. the accused persons with a common intention made preparation to commit dacoity in the house of C.W.1 situated at No.3/4, North Public Xavier road and thereafter Accused No.1 by holding a knife and Accused Nos.2 and 3 by holding a dummy pistol in their hands, caused grievous injuries to CW.1 and 7 with an intention to commit murder and induced C.W.1 and 7 to deliver valuable things saying that they are the police officials and they were in disguise by dressing themselves as police officials and attempted to commit the above said offences. However, C.W.1 and 7 caught hold of one person at the spot after they suspected and other persons ran away from that place. In pursuance of the said act of the accused, C.W.1 filed a complaint as per Ex.P1 before the police and accused No.1 was caught at the spot and he was sent to hospital for treatment. 4. Subsequent to registering of crime against the accused persons, the IO took up the case for investigation and laid charge sheet against the accused persons for the offences leveled against them. The trial court framed the charges against the accused persons but the accused persons did not pleaded guilty but claimed to be tried. Accordingly, plea of the accused were recorded separately. 5. In order to substantiate their case against accused, the prosecution examination in all 16 witnesses as PWs.1 to 16 and got marked Exs.P1 to P23 and also got marked MOs.1 to 27. Accordingly, plea of the accused were recorded separately. 5. In order to substantiate their case against accused, the prosecution examination in all 16 witnesses as PWs.1 to 16 and got marked Exs.P1 to P23 and also got marked MOs.1 to 27. Subsequent to the closure of the evidence of the prosecution, the incriminating statement against the accused was recorded, where the accused persons denied the truth of the evidence adduced so far, but they did not come forward to adduce any defence evidence as contemplated under Section 233 of the Cr.P.C. Subsequently the trial Court after hearing the arguments advanced on behalf of the prosecution and so also the defence counsel and on appreciation of the material evidence available on record, rendered the impugned judgment, convicting accused No.1 for the offences punishable under Sections 398, 324 and 419 of IPC. But accused Nos.2 to 4 were acquitted for the offences punishable under Sections 307, 399, 420 of IPC. It is this judgment which is challenged in this appeal by the appellant/accused No.1 by urging various grounds. 6. Heard, Sri P.D.Subramanya, Amicus Curiae for the appellant/accused No.1 and learned HCGP for the State. Perused the impugned judgment rendered by the trial Court. 7. It is urged in the grounds of the appeal that the judgment and order of conviction and sentence rendered by the trial Court is opposed to law, facts and probabilities of case. It is contended that though the complainant/PW.1 has handed over the appellant to the police and went to hospital for treatment, but he has not disclosed the name of the assailant while he was taking treatment in the hospital. In the cross-examination he has not identified the accused persons and he was not aware as to who came to the house. But a perusal of the seizure mahazar shows that PW.1 has not identified the same. Further, PW.1 has stated that no weapon was seized in the house. It is contended that as per the complaint and evidence of PW.1 it shows that three persons entered into the house and Ex.P2 - spot mahazar was drawn at 00.45 hrs to 1.30 a.m. in the night hours. But as per the contents of Ex.P2, the same is not in accordance with the version of PWs.1, 2 and 12 which runs contrary to each other and the same has not been properly appreciated by the trial Court. 8. But as per the contents of Ex.P2, the same is not in accordance with the version of PWs.1, 2 and 12 which runs contrary to each other and the same has not been properly appreciated by the trial Court. 8. Further, it is contended that PW.4 has not identified the accused persons and has turned hostile to the case of prosecution. Further, the evidence of PW.5 does not corroborate with the version of PW.1. PW.6 has not identified the accused and no test identification parade has been conducted by the IO. Further, the trial Court failed to notice that as per the version of PW.7 the incident took place at about 8.45 p.m. but in fact as per the FIR, Mahazar and complaint incident took place at 10.30 p.m. It is contended that PW.8 has not given statement before the police and he has admitted that from morning 9 a.m. to night 9.00 p.m. he used to attend number of customers and it is not possible to identify the same. PW.9 has also not identified the accused persons and turned hostile to the case of the prosecution. Further, the version of PW.11 to PW.16 runs contrary to each other and the prosecution has not made out a prima facie case to prove the guilt of this accused. 9. It is further contended that the trial Court ought to have noticed that all the witnesses are interested witnesses and their statements have not been corroborated by any independent witness. Based on the evidence of interested witnesses the trial Court has come to a wrong conclusion and erred in convicting this accused. Further, the trial Court has erred in not noticing that some of the witnesses are the mahazar witnesses and in their presence the MOs have been seized and during the chief examination they have admitted that in the police station the police had asked them to sign the mahazar but in the cross-examination they admitted that they do not know the contents of the mahazar. The mahazar witnesses who turned hostile have clearly stated that in their presence the police have not recovered the MOs. When the trial Court has failed to observe that the prosecution has miserably failed to prove its case, convicting only accused No.1 is bad in law. The mahazar witnesses who turned hostile have clearly stated that in their presence the police have not recovered the MOs. When the trial Court has failed to observe that the prosecution has miserably failed to prove its case, convicting only accused No.1 is bad in law. It is also contended that the trial Court has erred in accepting the evidence of PWs.1 to 16 without there being any independent witnesses to corroborate the same. The findings reached by the trial Court is unreasonable and hence, the impugned judgment is erroneous and is liable to be set-aside as the same has resulted in miscarriage of justice. On all these grounds, learned amicus curiae for the appellant seeks for interference of the impugned judgment rendered by the trial Court by allowing this appeal. 10. Per contra, learned HCGP for the respondent - State contends that the prosecution has proved its case beyond reasonable doubt that this accused along with other accused persons with a common intention has made preparation to commit dacoity in the house of CW.1, by holding deadly weapons and dummy pistols, caused grievous injuries to C.W.1 and 7 by assaulting them with knife and induced them to deliver the valuable things by saying that they are the police officials and they were in disguise by dressing themselves in police uniforms. Accused No.1 was apprehended at the place of incident itself and he was with other persons at the time of commission of the offence. As per the evidence of PWs.1, 4 and 6, it is clear that accused No.1 along with other persons made preparation to commit offence of robbery and they were holding deadly weapons like knife and dummy pistol. The prosecution has proved beyond reasonable doubt that this Accused has committed offence punishable under Section 398, 324 and 419 of IPC. The trial Court on appreciation of the material evidence available on record, has rightly convicted the appellant for the aforesaid offences and there is no need for interference of this court. The appeal being devoid of merits is liable to be dismissed. On all these grounds, the learned HCGP prays for dismissal of the appeal. 11. The trial Court on appreciation of the material evidence available on record, has rightly convicted the appellant for the aforesaid offences and there is no need for interference of this court. The appeal being devoid of merits is liable to be dismissed. On all these grounds, the learned HCGP prays for dismissal of the appeal. 11. In this context of the contentions as taken by learned counsel Sri.P.D.Subramanya being an Amicus Curiae for the appellant and so also, counter made by the learned HCGP, it is relevant to refer to the evidence of PW.1 - Dinesh Bora said to be the author of complaint as per Ex.P1. He states that on the day of incident, accused by name Mahesh and Sharif had come to his house in police dress and cap with duplicate moustache and they were wearing black colour powder on their face. According to him at 10.30 p.m. on 01.02.2009 all these accused had come to their house. When he enquired about their coming to his house, they stated that they have received a complaint against him and asked PW.1 and CW.4 to sit on Sofa and asked them not to touch any of the things at that place. At that time, his wife - Latha, children - Karthik and Harshit and nephew - Ankita Solani were present in the house. At that time, PW.4 - Ashish Bora came from Madras and PW.1 asked the accused to open the door and they refused to open the door. Immediately PW.1 suspected that these persons were not the police officials. Then he caught hold of one person who was wearing police dress and other persons ran away from the spot. He identifies Accused No.1 as the person who was caught by him. This accused said to have assaulted PW.1 on his head with hands and subsequently, he was handed over to the police. Thereafter, PW.1 and PW.4 took treatment at Bangalore Hospital and in the night hours complaint was lodged as per Ex.P1. The police came to the spot and drew the mahazar as per Ex.P2. He also identifies the signature on Ex.P3 - seizure mahazar under which M.O.1 and 2 - plastic pistols, M.O.3 - knife, M.O.4 and 5 - the masks, M.O.6 - 12 pieces of rope, M.O.7 - blood stained kerchief, M.O.8 - blood stained jerkin were seized by the police. 12. He also identifies the signature on Ex.P3 - seizure mahazar under which M.O.1 and 2 - plastic pistols, M.O.3 - knife, M.O.4 and 5 - the masks, M.O.6 - 12 pieces of rope, M.O.7 - blood stained kerchief, M.O.8 - blood stained jerkin were seized by the police. 12. In the cross - examination of PW.1 he admits that he know accused Afroz and Rehman one year prior to the incident. Further, he states that he saw only three persons and not seen the fourth person. Since three persons were wearing mask when they entered into the house and among them two persons were wearing black powder and moustache, he could not identify them. While giving complaint also, he did not give the description of the accused. But it is relevant to note here that this PW.1 in his chief-examination states about all accused and also identified them. But during the cross-examination he states that he could not identify three persons since they were wearing mask. 13. Pw.4 - Ashish Bora in his evidence states that he knew the accused persons and among them two persons were inside the house. Accused No.4 was working in his company. He states that on 1.2.2009, at 10.30 p.m. when he came to the house, PW.6 - Ankit opened the door and two persons who were wearing police dress were inside the house and his family members were also inside the house. The accused persons were pretending to write something on the paper. At that time one person who was wearing white kurtha with mask, came inside the house and was holding knife in his hand. When himself and other inmates of the house started raising alarm, one person assaulted this witness on his right ear and right hand and other two persons took out their pistol from their pocket. When alarm was raised by this witness, all the neighbours came there. He identifies accused No.1. But it is relevant to note here that this witness turned hostile. In the cross-examination he denies that on 4.2.2009, he went to the police station and identified other accused who were holding dummy pistol and knife and were wearing black kurtha and mask on their face and gave his statement as per Ex.P.8. 14. He identifies accused No.1. But it is relevant to note here that this witness turned hostile. In the cross-examination he denies that on 4.2.2009, he went to the police station and identified other accused who were holding dummy pistol and knife and were wearing black kurtha and mask on their face and gave his statement as per Ex.P.8. 14. Further, it is relevant to note here that PW.2 and 4 have also denied that on 4.2.2009, they have identified the accused in the police station. But the Court below held that there is a clear and corroborating evidence with regard to accused No.1. But the evidence of PWs.1 and 4 does not corroborate with the evidence of other witness. PW.1 and 4 in their evidence have stated that they sustained injuries and took treatment. PW.12 is the Doctor who has given treatment to PW.1 and issued wound certificate as per Ex.P15 and PW.16, is the Doctor who treated PW.4 has issued wound certificate as per Ex.P23. But the nature of injuries sustained by PW.1 and PW.4 are simple in nature and it cannot be said that the accused had caused the injuries with an intention to murder them. The trial Court has only relied on the evidence of PW.1 and 4 to convict accused No.1 and acquitting the other accused, based on the inference that accused No.1 was caught at the place of incident and that he was attempting to commit robbery with other persons other than these accused with deadly weapons. 15. In view of the above discussion, it is pertinent to note here that PW.1 who is the complainant has not disclosed the name of the assailant while he was taking treatment in the hospital. It is the case of the prosecution that PW.1 who caught this accused, handed over him to the police and subsequently, he went to the Hospital for treatment due to the injuries sustained. In his crossexamination he has not identified the persons who were pretending to be the police officials. The case came to be registered on 01.02.2009 at about 11.45 p.m. in Cr.No.28/2009 for the aforesaid offences. In his evidence he states that the police had come to the spot and seized the Cap, knife, white cloth and rope. He also identifies the signature on mahazar at Ex.P3 and plastic pistol and another pistol as per M.O.1 and 2. The case came to be registered on 01.02.2009 at about 11.45 p.m. in Cr.No.28/2009 for the aforesaid offences. In his evidence he states that the police had come to the spot and seized the Cap, knife, white cloth and rope. He also identifies the signature on mahazar at Ex.P3 and plastic pistol and another pistol as per M.O.1 and 2. According to him, M.O.1 and 2 were with accused No.1. But he specifically states that no deadly weapon was seized in the house. Further, PW.12 - Doctor in his evidence has stated that this accused has not stated as to who assaulted him. Hence, the evidence of PW.1 does not corroborate with the evidence of PW.12 and it is contrary to each other. 16. Pw.2 who is a witness to the spot Mahazar as per Ex.P2 has stated that there were three persons in the house but has not stated the particulars of them. But as per the complaint of PW.1, it shows that four accused persons entered into the house. It appears there are inconsistencies with regard to the conducting of the mahazar as per Ex.P2. The version of PW.1, PW.2 coupled with the evidence of PW.12 appears to be contrary to each other and the same has not been noticed by the trial Court while convicting this accused person. 17. The evidence of PWs.1 and 4 is vital to the case of the prosecution, but the ingredients of the offences as alleged against this accused is not made out by the prosecution. It is relevant to note here that before filing the FIR, this accused was taken to custody and was sent to the medical examination as per the evidence of I.O. It appears there is no evidence forthcoming in order to establish the offence as alleged against Accused No.1 in the theory as put forth by the prosecution. In the absence of supporting evidence against this accused, the prosecution has failed to prove the offence beyond reasonable doubt. 18. At a cursory glance of evidence of PWs.1 and 4 there appears to be clouds of doubt relating to offence under Section 398 IPC as alleged against this accused as wherein these two witnesses said to have caught hold of the appellant/accused No.1. But the remaining accused ran away from the scene of crime. The case against the accused Nos.2 to 4 ended in acquittal. But the remaining accused ran away from the scene of crime. The case against the accused Nos.2 to 4 ended in acquittal. However, at a cursory glance of evidence of PW.1 coupled with the evidence of PW.4 it requires re-appreciation of the entire evidence on record, if not, there shall be miscarriage of justice to the case of the appellant. The evidence of PWs.1 and 4 runs contrary to the evidence of PWs.2 and 5. These two witnesses have been secured as vital witnesses in respect of spot panchanama as per Ex.P2 and so also, seizure Mahazar as per Exs.P3, P4, P5, P6, P7, and P9. But the fulcrum of these mahazars said to be conducted by the IO in the presence of panch witnesses and in the presence of PW.1 where the incident took place in his house to commit robbery by holding deadly weapons. But the injury inflicted on the person of PWs.1 and 4 which indicates as per Ex.P15 and P23 appears to be simple in nature. 19. During the course of the investigation, the PW- 13, IO has recorded the voluntary statements of Accused No.4 - Mahesh as per Ex.P18, Accused No.2 as per Ex.P19, voluntary statement of Rehman as per Exs.P20 and 21. Based upon the voluntary statements of these accused, the seizure mahazar is said to have been conducted by the IO and also have seized M.O.1 to 6 and M.O.9 to 27. These are the material objects said to have been seized by the IO during the course of investigation and charge sheet has been laid against the accused. But the trial Court did not appreciate the evidence of PWs.1, 4 and 13 in respect of contents of Ex.P1 and so also, fulcrum of seizure mahazar said to be conducted by the IO in the presence of panch witnesses. 20. Pws.2 to 5 being the panch witnesses were secured by the IO during the course of investigation. But in totality of facts and circumstances of the case, it is said that there is clouds of doubt in the theory as put forth by the prosecution in respect of offence under Section 398 IPC that accused who entered into the house of PW.1 along with other accused with an intention to commit robbery by holding deadly weapons like knife and dummy pistol in their hands. But in this appeal, it requires reappreciation of entire evidence on record in a proper perspective as the trial Court has misdirected and misinterpreted the evidence of the prosecution witnesses and convicted the accused for the offence under section 398 IPC. At a cursory glance of evidence of PW.1 and 4 in respect of Ex.P15 and Ex.P23 - wound certificates said to have been issued by PW.12 - Doctor, it is said that the prosecution did not put forth cogent, corroborative and acceptable evidence to prove the guilt of this accused for the offence under Section 398 of IPC. But in respect of offence under Section 419 of IPC where the accused persons were pretending as police officials, the prosecution has proved the said offence. So also, this accused is said to have caused injuries to PWs.1 and 4. The injuries appears to be simple in nature as indicated in Exs.P15 and P23 - wound certificates and the same has also been proved to that extent. But, the case against coaccused for the offence punishable under Section 399, 307, 420 r/w 34 of IPC has ended in acquittal. However, at a cursory glance of the evidence of PWs.1 and 4, PWs.2 and 5 coupled with the evidence of PW.13, it is said that the prosecution did not produce any cogent, corroborative and acceptable evidence to prove the case against this accused under Section 398 of IPC. Mere because PWs.1 and 4 apprehended this accused while entering into their house to commit robbery, it can't be said that the prosecution has proved the offence under Section 398 of IPC. But in so far as the evidence on the part of the prosecution in respect of Section 324 of IPC is concerned, it is said that the prosecution has proved the said offence against Accused No.1 wherein he has caused injuries to PWs.1 and 4 as per Exs.P13 and 23 - wound certificates. Further, the prosecution has also proved the offence punishable under Section 419 of IPC against this accused No.1 as he was pretending as police official by wearing police dress even though he was not the police official. 21. Further, the prosecution has also proved the offence punishable under Section 419 of IPC against this accused No.1 as he was pretending as police official by wearing police dress even though he was not the police official. 21. The trial court has held conviction against accused No.1 who is arraigned as appellant herein to undergo RI for a period of one year under Section 324 IPC, and to suffer RI for a period of one year for the offence punishable under Section 419 IPC. But keeping in view the contention taken by the learned counsel Sri P.D.Subramanya - Amicus curiae for the appellant, the conviction judgment rendered by the trial Court requires to be interfered with as regards offence under Sections 324 and 419 IPC is concerned. Though the accused was convicted for a period of one year each for the aforesaid offences, but the accused has been in judicial custody for a period of five weeks during the course of trial. The same has been reflected in the material available on record. Therefore, it is just and proper to hold that the period of five weeks which he had undergone in judicial custody shall be termed as service of sentence for the offences under Section 324 and 419 of IPC. Accordingly, the sentence held against the appellant/accused is required to be modified in terms of the aforesaid reasons. Hence, the following: ORDER The criminal appeal preferred by the appellant/accused No.1 is hereby allowed in part. Consequently, the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.946/2009 dated 08.11.2010 convicting Accused No.1 for the offence punishable under Section 398 of IPC is hereby set-aside. The judgment of the trial Court in respect of convicting accused No.1 for the offence punishable under Sections 324 and 419 of IPC is hereby confirmed. The accused No.1 was sentenced to undergo RI for a period of one year each for the aforesaid offences, but the accused has been in judicial custody for a period of five weeks during the course of trial. The same has been reflected in the material available on record. Therefore, it is suffice to hold that the period of five weeks which he had undergone in judicial custody shall be termed as service of sentence for the offences under Section 324 and 419 of IPC and the same would meet the ends of justice. The same has been reflected in the material available on record. Therefore, it is suffice to hold that the period of five weeks which he had undergone in judicial custody shall be termed as service of sentence for the offences under Section 324 and 419 of IPC and the same would meet the ends of justice. Accordingly, the judgment of the trial Court is modified to the above said extent. The fee of learned counsel Sri P.D.Subramanya, being appointed as Amicus Curiae for the appellant is fixed at Rs.10,000/- and the High Court Legal Services Committee shall pay the same in accordance with rules.