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2020 DIGILAW 1486 (KAR)

Narasimharao @ Appi v. State Of Karnataka

2020-07-24

S.SUNIL DUTT YADAV

body2020
JUDGMENT S Sunil Dutt Yadav, J. - Aggrieved by the order of conviction dated 17.03.2017, and sentence dated 18.03.2017 passed by the V Additional District and Sessions Judge, Tiptur in S.C.236/2012 convicting the appellants/accused for the offence punishable under Section 395 of IPC, whereby the accused nos.1 to 6 have been convicted and sentenced to undergo R.I. for a period of 8 years and to pay fine of Rs.25,000/- each for the aforesaid offence, Crl.A No.535/2017 is preferred by accused no.4, while Crl.A No.568/2017 is preferred by accused nos.1, 2, 3, 5 and 6. 2. Complaint came to be filed by one K.H.Srinivasa Murthy (PW.4) stating that he was residing in his Farm House built in the property bearing Sy.No.25 of Dodda Margonahalli. That on 08.05.2012, at about 6.45 p.m., he found his dog barking and when he went out of the house to enquire, he noticed a person hiding. Immediately thereafter, two other persons caught hold of him and under threat of injury by knife, other persons entered his house and took away the gold chain and ear studs of PW.4's wife. They further took away a sum of Rs.4,500/- cash that was with the complainant and his SBM ATM Card. They also took away the key of the complainant's car and after tying up PW.4 and his wife, later fled away. On such complaint, Ex.P4, complaint was lodged. Thereupon, FIR as per Ex.P5 came to be registered by the Turuvekere Police Station in Crime No.110/2012 on 09.05.2012 for an offence under Section 395 IPC against six unknown persons. 3. During the course of investigation, accused nos.1 to 6 were arrested and remanded to judicial custody and the case committed as per the committal order dated 16.08.2012 in C.C.No.299/2012. As the accused pleaded not guilty for the charges that were framed, the case went for trial and the prosecution examined in all 14 witnesses as PW's.1 to 14 and got marked 79 documents as per Ex.P1 to P.79 and 20 material objects as per M.O's.1 to 20 and closed their side. The accused have denied all the incriminating evidence pointed against them but have not led any independent evidence. 4. Accused nos.3 to 5 were arrested on 13.05.2012, accused nos.2 and 6 were arrested on 23.05.2012 and accused no.1 was arrested on 08.07.2012. 5. The accused have denied all the incriminating evidence pointed against them but have not led any independent evidence. 4. Accused nos.3 to 5 were arrested on 13.05.2012, accused nos.2 and 6 were arrested on 23.05.2012 and accused no.1 was arrested on 08.07.2012. 5. As regards accused nos.2 and 6, a sum of Rs.7,000/- was seized from accused no.2 and a sum of Rs.1,000/- was seized from accused no.6 under mahazar Ex.P1 on 23.05.2012 and seized cash was marked as M.O.1 and M.O.2 respectively. As regards accused No.1, pursuant to his voluntary statement, there was recovery of jewels from M/s.Annapoorneshwari Jewellers as per M.O.3 and M.O.4. Under mahazar, Ex.P2, there was further recovery pursuant to the statement of accused no.1 who led the investigating officer to his house in his village at Ajjanahalli and M.O.5 to M.O.11 consisting of jewellery, silver lamps, mobile, ATM Card were recovered. The hand kerchief which was recovered was marked as M.O.12. Further, as per Ex.P26, seizure mahazar, there was recovery from accused no.3 of currency amounting to Rs.4,000/-. As per the same mahazar, there was further recovery of a sum of Rs.4,000/- from accused no.4 and a sum of Rs.4,000/- from accused no.5. 6. During the process of investigation, after having apprehended the accused, Test Identification Parade was got done, in which PW.4 has identified the accused and the Taluka Executive Magistrate has issued the Identification Parade report as per Ex.P7 to 24 and Ex.P 28 to 63. 7. Pw.4 (complainant) and PW.7 (wife of PW.4), PW.8 (niece of PW.4) stated to be the eyewitnesses to the said incident have deposed as regards their account regarding commission of the crime. 8. Pw.14 is also an eyewitness insofar as he has deposed that he was the owner of Sainath Bakery and had helped accused nos.1 and 2 upon their request to draw money without realizing that they were committing criminal acts. PW.14 has also identified the accused nos.1 and 2. 9. The prosecution has also relied upon Ex.P76 to 79 which are the photographs obtained from Closed Circuit Camera fixed in the SBM ATM Center stated to reveal presence of accused. The prosecution got marked the extract of the bank statement as per Ex.P75 which discloses withdrawals of Rs.10,000/- and Rs.6,000/- from the said ATM. 10. 9. The prosecution has also relied upon Ex.P76 to 79 which are the photographs obtained from Closed Circuit Camera fixed in the SBM ATM Center stated to reveal presence of accused. The prosecution got marked the extract of the bank statement as per Ex.P75 which discloses withdrawals of Rs.10,000/- and Rs.6,000/- from the said ATM. 10. As regards the mahazar relating to seizure of amount from accused nos.2 and 6, PW.1 has been examined, whereas as regards the recovery of jewels from the shop of M/s. Annapoorneshwari Jewellers and recovery of jewellery from the house of accused no.1, Ex.P2 and P3 are the mahazars and PW.2 has been examined as witness for the said mahazar. As regards recovery from accused no.3, Ex.P26 and P27 are the mahazars and PW.6 has been examined as a witness though the said witness was treated as hostile by the prosecution. 11. The learned Sessions Judge, taking note of the recovery made pursuant to the voluntary statement of accused no.1 as per Ex.P73, of items marked as M.O's 3 to 12, relying on the evidence of PW.14, who is the owner of Bakery and stated to have assisted accused nos.1 and 2 to withdraw money from the ATM, taking note of Ex.P76 to 79 which are the photographs obtained from the CC Camera fixed in the SBM ATM Center wherein the accused nos.1 and 2 had been identified, taking note of recoveries of cash from accused nos.2 and 6 as per Ex.P1, recovery of a sum of Rs.4,000/- from accused no.3 to 5 as per Ex.P26 has passed judgment convicting the accused for the aforesaid offence. The Sessions Judge has also relied on the evidence of PWs.4, 7 and 8 and holding that the said witnesses identified the jewels and other movables stated to have been robbed by the accused persons marked as MO's 3 to 11 while further holding that the evidence has been corroborated by the evidence of PW's.13 and 14. 12. The trial court has also observed that the contradictions in the evidence of PW.3 and PW.13, the Investigating Officers, was not material and in light of no evidence by the defence and absence of explanation by the accused of the incriminatory material has proceeded to pass the judgment of conviction. Contentions: 13. Sri. 12. The trial court has also observed that the contradictions in the evidence of PW.3 and PW.13, the Investigating Officers, was not material and in light of no evidence by the defence and absence of explanation by the accused of the incriminatory material has proceeded to pass the judgment of conviction. Contentions: 13. Sri. Hashmath Pasha, learned Senior Counsel appearing for accused nos.4 to 6 has contended that the primary allegation is as against accused nos.1 and 2 and that the only recovery as regards cash from accused nos.4 and 5 as evidenced by the seizure mahazar as per Ex.P26 is not sufficient to implicate them. Insofar as seizure of currency notes, it is submitted that the identity of currency notes as that belonging to PW's.4, 7 and 8 has not been established. It is further submitted that seizure of currency notes is on 13.05.2012, whereas the incident was on 08.05.2012 and considering the amount seized being less than Rs.5,000/-, there is doubt as to whether the amount seized is that which had been stolen from PW's.4, 7 and 8. 14. Reliance is placed on the judgment of the Apex Court in the case of Arjun Marik and Others v. State of Bihar, (1994) Supp2 SCC 372 particularly to the observations at Para 27 contending that the Apex Court has expressed the opinion that identification of currency notes by the witnesses is generally improbable. 15. It is submitted that except for recovery of currency notes, there is no incriminatory material to link accused nos.4 to 6 to the commission of offence. Alternatively, it was contended that the Test Identification Parade was only part of the investigation process and it is the evidence of PW's.4, 7 and 8 as regards identification which is the prime evidence. It is submitted that PW.7 in the cross-examination has observed that two of the accused had covered their faces with the hand-kerchiefs and has further stated during cross-examination that as accused have grown up by the time evidence was adduced, identity was difficult. 16. It is also submitted that PW.8 has stated that two of the accused had covered their faces with the hand-kerchiefs and one accused had covered his face with a towel. 16. It is also submitted that PW.8 has stated that two of the accused had covered their faces with the hand-kerchiefs and one accused had covered his face with a towel. Accordingly, it is contended that taking note of the fact that crime was committed during evening hours after 6.30 p.m., and as the accused were strangers to PWs.4, 7 and 8, in light of the evidence of PWs.7 and 8, identity of the accused cannot be said to have been proved beyond reasonable doubt. 17. It is submitted that the Test Identification report would at the most be corroborative evidence and much weight cannot be placed on it especially in the absence of examining the Taluka Executive Magistrate, whereby an opportunity to elicit relevant information regarding the mode and manner of identification of accused has not been afforded, when some of the accused as per PW's.7 and 8 has covered their faces with hand-kerchief and towel. Accordingly, it is contended that there has been violation of the right of the accused for a fair trial. 18. Sri. D. Mohan Kumar, learned counsel appearing for accused nos.1 and 2 has contended that insofar as the identification of the accused by relying on the test identification parade cannot stand scrutiny as PW.14 himself has stated that he was summoned to the Police Station on 23.05.2012, wherein he saw accused no.1 and the photograph of accused no.2 has been shown to him, which facts would vitiate the test identification parade that was conducted at a subsequent point of time in the month of June 2012. It is further contended by placing reliance on the judgment in Mohd. Iqbal M. Shaikh and Others v. State of Maharashtra, (1998) 4 SCC 494 at Para 13 that if the witnesses do not know the accused persons and when the police show the accused in Police Lockup, then the identification would lose its significance. 19. It is further contended that the recovery from accused no.1 is also doubtful insofar as the ornaments that were recovered were new ornaments. It is submitted that identity being doubtful as the case rests on circumstantial evidence, unless all circumstances are proved beyond reasonable doubt, the question of convicting the accused does not arise. 20. Sri. T. S. Gurunath, learned counsel appearing for accused no.3 has adopted the arguments of the other counsel insofar as the question of identity is concerned. It is submitted that identity being doubtful as the case rests on circumstantial evidence, unless all circumstances are proved beyond reasonable doubt, the question of convicting the accused does not arise. 20. Sri. T. S. Gurunath, learned counsel appearing for accused no.3 has adopted the arguments of the other counsel insofar as the question of identity is concerned. He further contends that the recovery of knives from accused no.3 is not sufficient incriminatory evidence. It is submitted that there are no injuries inflicted by the knives, there are no blood stains and hence there is no verifiable evidence as regards use of knives in commission of the crime except the say of PWs.4, 7 and 9. Accordingly, the recovery even if it is true is weak evidence to establish guilt of the accused. It is further submitted that PW.6 does not support the seizure of cash and in the cross-examination states that he does not now how much money was taken from the pocket of accused no.3. 21. Sri. V.S. Vinayak, learned HCGP for the State has submitted that PW's.4, 7 and 8 are the eyewitnesses who have identified the accused which fact is corroborated by the Test Identification Parade. Even J.R.Lakshmana working with PW.4 though treated as hostile identifies the accused. That there has been seizure of currency notes from accused nos.3, 4 and 5 as per Ex.P26 and seizure of knives from accused no.3 as per Ex.P27, which are incriminatory material and have not been explained by the accused. It is also submitted that there has been recovery of ornaments at the instance of the statement of accused no.1 from the jeweller and house of the accused which incriminatory evidence remains unexplained in the 313 statement. 22. It is further submitted that PW.14 who was the bakery owner has deposed that accused nos.1 and 2 had sought his help to use the ATM Card belonging to PW.4 and without knowing the entirety of facts he had assisted them and has identified them. Further, it is submitted that the CC TV footage and photographs taken from such footage also shows the presence of the above accused which is corroborative evidence. 23. As regards sentencing, it is pointed out that there has been detailed consideration of all relevant factors and no ground is made out for reduction of sentence imposed by the trial court. Further, it is submitted that the CC TV footage and photographs taken from such footage also shows the presence of the above accused which is corroborative evidence. 23. As regards sentencing, it is pointed out that there has been detailed consideration of all relevant factors and no ground is made out for reduction of sentence imposed by the trial court. Reliance is placed on the judgment of the Apex Court in Hazara Singh v. Raj Kumar and Others, (2013) 9 SCC 516 , as regards the said aspect. 24. In light of the contentions raised the question as to whether the judgment of the trial court calls for interference as regards the conviction as well as sentence imposed is dealt with as below: Re: Accused nos.1 and 2 25. As regards the evidence of PW's.4, 7 and 8 regarding identity of the accused, the same is not consistent. It must be noted that the incident occurred after 6.30 p.m. PW's4, 7 and 8 are admittedly strangers to the accused. In the cross-examination, PW7 states two of the accused had tied handkerchief and further that as the accused have grown up it was difficult to identify. PW8 in the cross-examination states that two of the accused had tied handkerchief and one had tied a towel. It has not been elicited as to which of the accused had concealed their identity and hence the identification of all of the accused stands vitiated. This being the primary evidence as regards identity of the accused, the test identification parade is only complementary and when the primary evidence itself is weak, the Test Identification Parade cannot come to the aid of the prosecution. Accordingly, this court disagrees with the finding of the trial court regarding acceptance of the evidence of PW's.4, 7 and 8 as regards the identity of the accused. There has been recovery pursuant to the voluntary statement of accused no.1 of gold ornaments (MO's.3 to 6), silver lamps (MO's.7 and 8), more importantly the mobile phones (MO's.9 and 10) and the ATM Card of PW.4 (MO.11), which are incriminatory material. Ex.P3, the seizure mahazar as regards recovery of items at MO's.5 to 11 from the house of accused no.1 is supported by the oral evidence of PW.2 (witness to the mahazar). Ex.P3, the seizure mahazar as regards recovery of items at MO's.5 to 11 from the house of accused no.1 is supported by the oral evidence of PW.2 (witness to the mahazar). Insofar as the jewellery at MO's.3 and 4 seized as per mahazar at Ex.P2 from Annapoorneshwari Jewellers, the same is supported by the oral evidence of PW.2. The said recovery of the abovementioned articles pursuant to the voluntary statement would make that portion of the statement leading to the discovery of fact relevant. The recovery of the articles from the jeweller as corroborated by other material would enable drawing an inference that after robbing, accused no.1 has pledged it with the jeweller. The identification of the jewellery marked at MO's.3, 4 and 6 by PW.8 that it is her jewellery and by PW.7 who are the eyewitnesses make recovery of jewellery at MOs.3 and 4 and recovery of other articles viz., MO's.5 to 11 from the house of the accused incriminatory material that has not been explained away by accused no.1. The fact that PW.14 has deposed that he has assisted the use of the ATM Card on 08.05.2012 at 9.00 p.m., and the withdrawal made and reflected by the bank entries (Ex.P73 and Ex.P74) would lead to the inference of involvement of accused no.1 and accused no.2. Though much is sought to be made out as regards the say of PW.14 that when he had visited the police station on 03.05.2012, he saw accused no.1, whereas accused no.1 was arrested only on 07.07.2012, the said portion of evidence could be discarded without discrediting the other evidence of PW.14. Re: Accused No.3 26. This court, as discussed above, has rejected the evidence as regards identity of the accused by relying on the testimony of PW's4, 7 and 8. Accordingly, in light of the discussion supra, the involvement of the other accused (i.e., other than A1 and A2) in the crime is to be established on the basis of other circumstantial evidence. The incriminatory material as against Accused No.3 is the recovery of Rs.4,000/- in cash as per Ex.P26 marked as M.O's 17 to 19. PW.6 is the Panch witness as regards the seizure as per Ex.P26 and the seizure from accused no.3 as per mahazar at Ex.P27 of 1 dagger and 2 knives. The incriminatory material as against Accused No.3 is the recovery of Rs.4,000/- in cash as per Ex.P26 marked as M.O's 17 to 19. PW.6 is the Panch witness as regards the seizure as per Ex.P26 and the seizure from accused no.3 as per mahazar at Ex.P27 of 1 dagger and 2 knives. Accused No.3 was arrested on 13.05.2012 when the seizure of cash of Rs.4,000/- was effected, while the incident was on 08.05.2012. PW.6 was the only witness who was examined as regards the mahazar at Ex.P26. It comes out that the currency did not have any identification mark, the seizure of currency in the present case does not lead to any definite inference that what was seized was in fact the currency that was subject matter of crime. Taking note that there was a gap of six days between the incident and seizure, noting that the amount seized was a partly sum of Rs.4,000/-, the weight to be assigned to such seizure is also rather weak. PW.6 (mahazar witness) during his crossexamination does not stand by his statement in the examination-in-chief and states that he is not aware of how much money was taken from the pockets of Accused No.3. As regards the recovery of knives at MO's14 to 16, it must be noted that the case of the prosecution is that the knives were used only as a threat and were not used to inflict injuries. The evidence on record is not sufficient to establish that the knives seized were used in the commission of the crime. 27. The contention of the prosecution that the recoveries were made pursuant to the voluntary statement merely would merely indicate that certain objects were recovered and nothing more. 28. Section 27 of the Evidence Act only provides that 'when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.' 29. The recovery of the object must lead to the discovery of a fact. In the present case, though there is recovery of an object, there is no conclusive evidence of the object discovered being connected to the crime and hence recovery does not graduate to any inference of guilt. 30. The recovery of the object must lead to the discovery of a fact. In the present case, though there is recovery of an object, there is no conclusive evidence of the object discovered being connected to the crime and hence recovery does not graduate to any inference of guilt. 30. Accordingly, the circumstantial evidence in the nature of recovery is not sufficient to establish the involvement of accused No.3. Hence, the judgment of the trial Court as regards accused No.3 is liable to be set aside. The finding of the trial Court as regards the guilt of accused No.3 based on recovery is liable to be set aside in light of the discussion as above. Re: Accused No.4 to 6 31. As regards accused nos.4 to 6, insofar as the question of identity is concerned in light of the discussion supra at Para 25, the evidence on record is inadequate to support their identity. 32. As regards the other evidence relied upon by the prosecution as being incriminatory is the seizure of cash as per Ex.P26 from accused nos.3, 4 and 5. Though, PW6 has deposed as regards the seizure with details regarding the denomination, as observed supra in Para 26, the fact that seizure was of an amount of Rs.4,000/- which is a partly sum, absence of identification marks on the currency to indicate the notes seized were the same which was subject matter of crime, the incriminatory value of such evidence is weak and cannot be sufficient to prove nexus with the crime. 33. It is also to be noticed that the alleged incident was on 08.05.2012 while the arrest and seizure of the amount was on 13.05.2012. The interval between the incident and recovery of cash weakens the weight to be assigned to such seizure especially as regards currency. 34. There is no other incriminatory material relied upon by the prosecution as against accused nos.4 and 5. Accordingly, the finding of guilt by the trial Court as regards accused nos.4 and 5 deserves to be set aside. 35. As regards accused no.6 as pointed out in the earlier part of the judgment, the finding of the trial Court as regards identity cannot be accepted. Accordingly, the finding of guilt by the trial Court as regards accused nos.4 and 5 deserves to be set aside. 35. As regards accused no.6 as pointed out in the earlier part of the judgment, the finding of the trial Court as regards identity cannot be accepted. The only other incriminatory material is the seizure of cash as per Ex.P1 also on the basis of the voluntary say that it is the amount which is the subject matter of the crime. PW1, the mahazar witness in his crossexamination also states that the money was not handed over to the police by the accused, that the accused were in the cell all the while the seizure mahazar was drawn and hence, the evidence of PW1 does not support the seizure. Further, as regards the incriminatory value of such seizure noticing that the amount was Rs.1,000/- that was seized on 23.05.2012 when the incident was on 08.05.2012, for the reasons stated in Para 26 as regards to the weight to be placed on seizure of currency notes, it cannot be said that the recovery would point out to the guilt of accused no.6. Accordingly, the evidence on record is insufficient to link accused no.6 to the commission of the crime and the findings of the trial Court on this aspect is set aside. 36. Insofar as the question of commission of offence of dacoity, the fact that six persons have entered the farm land and the house of PW.7 and committed robbery is established. PW's.4, 7 and 9 are the eyewitnesses whose consistent evidence regarding the participation of six persons remains undisturbed though question of identity of the accused has not been established in the present case. Re: Sentence: 37. The learned counsel appearing for the appellants/accused in Criminal Appeal No.568/2017 has further contended that even if accused were convicted considering that the accused have been in custody and have undergone imprisonment for the substantial portion of the sentence and their applications for suspension of sentence have been rejected and that the appeals are of the year 2017, the sentence could be reduced to the period they have spent in custody and be enlarged. Reliance has been placed on the judgments passed in: 1) Crl.A No.1010/2010 c/w Crl.A. No.393/2012 2) Crl.A No.9/2013 3) Crl.A No.953/2009 4) Crl.A No.570/2009 5) Crl.A No.1477/2005 as per the memo dated 24.05.2020. Reliance has been placed on the judgments passed in: 1) Crl.A No.1010/2010 c/w Crl.A. No.393/2012 2) Crl.A No.9/2013 3) Crl.A No.953/2009 4) Crl.A No.570/2009 5) Crl.A No.1477/2005 as per the memo dated 24.05.2020. Criminal Appeal No.1010/2010 takes note of the specific role of the accused in the commission of the crime and sentence has been altered. In the above said criminal appeal as well as the other judgments though the period of incarceration was taken as substantial service of the sentence and sentence imposed by the trial Court was reduced to the period of detention, the judgments reflect the exercise of discretion in the peculiar facts of each case and cannot be mechanically 'copy pasted' as a principle of law applicable in the present case also. 38. As rightly pointed out by the counsel appearing on behalf of the prosecution, the Apex Court in the case of Hazara Singh vs. Raj Kumar and others, (2013) 9 SCC 516 has clarified at paras 25 and 26 that merely long pendency of appeal ipso facto cannot be a ground for reduction of sentence. 39. The Apex Court has further reiterated the criteria that ought to be kept in mind while sentencing as follows: "17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." Of course, it is also pointed out that the appellate Court may interfere if sentence is disproportionate to the crime committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment." Of course, it is also pointed out that the appellate Court may interfere if sentence is disproportionate to the crime committed. The sentence imposed by the trial Court is an exercise of judicial discretion which ought not to be readily interfered with. In the present case, the trial Court's imposing of sentence is a well considered order and the trial Court has imposed sentence of imprisonment which cannot be said to be disproportionate. Misplaced sympathy on ground of delay in disposal of appeal and long incarceration cannot inform judicial discretion to be lenient by squaring off the sentence to the time spent in custody. No other grounds are made out to interfere with the imposition of sentence as regards accused nos.1 and 2. 40. Before winding up, the court places on record its appreciation of the dispassionate and effective assistance by learned HCGP which has enabled this court to dispose off the matter in an appropriate manner despite inherent limitations on hearing, through video conference. 41. Accordingly, I proceed to pass the following: Crl.A 535/2017 filed by the appellant/accused no.4 is allowed. Crl.A 568/2017 filed by appellants/accused nos.1, 2, 3, 5 and 6 is allowed in part. The appeal insofar as it relates to appellants/accused nos.1 and 2 stands dismissed. The appeal insofar as it relates to appellants/accused nos.3, 4, 5 and 6 is allowed. Accused nos.3, 4, 5 and 6 are acquitted of the offence punishable under Section 395 IPC. Accused nos.3, 4, 5 and 6 are directed to be released if they are not otherwise required in any other matter and the fine, if any, paid by them is ordered to be refunded. The bail bonds, if any, executed by accused nos.3, 4, 5 and 6, shall stand cancelled. Registry to transmit the records to the trial court forthwith. Registry is also directed to communicate the order to the Jail Authorities forthwith.