(Prayer: This Criminal Appeal Is Filed U/S 374(2)Cr.P.C. Seeking To Set Aside The Judgment Of Conviction And Order Of Sentence Dated 26.03.2010, Passed By Sessions Judge And Fast Track Court Iv, Belgaum In S.C.No.275/2008 And Thereby Convicting The Appellants And Sentencing Them To Undergo Rigorous Imprisonment For 10 Years Each And To Pay Fine Of Rs.25,000/- Each And In Default To Pay Fine To Undergo Simple Imprisonment For 1 Year For The Offence U/S 395 Of Ipc.)
1. The appellants herein are the accused Nos.1 to 4 in S.C.No.275/2008 on the file of the Sessions Judge, Fast Track - 4, Belgaum. They are convicted for the offences punishable under Section 395 of IPC.
2. Briefly stated, on 01.12.2006, while the manager and his staff of State Bank of India, Chennammanagar Branch, Belgaum, were on their duty, at 10.30 a.m., 7 to 8 persons, posing themselves as customers entered the said bank; by wielding Pistol, Revolver and Chopper they demanded cash and dragged all the staff and the customers present in the hall to a corner. They took two of the officials / CWs.8 and 13 to the strong room and got the strong room forcibly opened through them. They looted the cash of worth Rs.8,00,000/-; after committing robbery, they put all the inmates of the Bank premises in the locker room, closed and bolted the room from outside, left the key of the locker room on customer pad and fled away with looted cash amount. On receiving information over mobile phone, the police arrived at the spot and received the complaint from the manager / CW.1. The case was registered for the offence punishable under Section 395 of IPC in Crime No.71/2006 and FIR was despatched to the Court. The Police Inspector / I.O. / CW.40 drew mahazaar in the presence of panch witnesses, recorded the statement of witnesses.
3. The Thilakawadi Police on 03.12.2006, received a message that an abandoned Car is parked in Marata Colony; the PSI rushed to the spot, noticed a Maruti Esteem Car bearing No.MH-14/ B-4952. When the Car was searched, a label of State Bank of India, Channammanagar Branch, Belgaum and receipts for Rs.18,500/- of Hubli Urban Co-operative Bank A/c. No.60470 deposited in the name of the Global Association were found. The Car with its contents was seized under a mahazaar.
4. When things stood thus, on a credible information, CW.32 / Circle Police Inspector, Mangalore Rural Circle on 21.08.2007, searched a bus coming from Melkar towards Mangalore. The second accused ofthis case was found in the bus with one suitcase. On enquiry and search, the PSI found gold ornaments in one plastic bag, in that suitcase. On further enquiry, second accused admitted that these are the ornaments looted from Chemmanur Jewellers, Bangalore. He was arrested along with properties and produced in the Konaji Police Station. During his interrogation, his complicity along with co- accused in the present case came to light. On 24.10.2012, the PSI of Udyambagh Police Station secured accused Nos.1, 3 and 4 under body warrant and produced them before the jurisdictional JMFC in respect of this case.
5. The PSI / CW.38 collected the FIR and voluntary statement of accused and other documents from Banasawadi Police Station, Bangalore and from Konaji Police Station. The accused Nos.1 to 4 were taken to police custody by the order of the Court and interrogated and their voluntary statements were recorded. The place were the Car used for commission of offence was parked was shown by accused No.4 and at his instance, a chopper was recovered which was hidden in the mud; accused No.1 produced another chopper which he had hidden under the mud at a distance of 20 feet from there. Accused No.4 took the police to his house at Thilakawadi, Marata Colony and from his kitchen he produced Rs.1,100/- currency notes and chits of State Bank of India, Channammanagar Branch, Belgaum. From the same house, accused No.1 produced 5 currency notes of Rs.100/- denomination with chits of State Bank of India, Channammanagar Branch. Accused No.2 from the same house produced a bundle of Rs.700/- with chits of State Bank of India, Channammanagar Branch. Accused No.3 also produced one bundle of currency notes amounting to Rs.700/-, with slips of State Bank of India, Channammanagar Branch, Belgaum. Above all said properties were seized under the same mahazaar / Exs.P.34 On the requisition of the Investigating Officer, the Tahsildar, Belgaum conducted identification parade. After the identification parade, the statements of the witnesses are recorded. On completion of the investigation and after getting sanction to prosecute the accused under the provisions of the Arms Act, the Investigating Officer filed charge sheet against accused Nos.1 to 8 by showing accused Nos.5 to 8 as absconding accused.
6. Learned Magistrate committed the case to the Sessions Court. Charges for the offences punishable under Section 397 of IPC and Sections 3 r/w. Section 25(1), 27 of Arms Act were framed. Accused pleaded not guilty. The prosecution examined PWs.1 to 21 and got marked documents Exs.P.1 to P.40 and material objects Mos.1 to 13. During the cross-examination of prosecution witness / PW.5, Ex.D.1 was marked for the defence. Statement of the accused under Section 313 of Cr.P.C. was recorded. They denied all the incriminating circumstance appearing in the statements of witnesses against them. They did not opt to adduce defence evidence. After hearing the arguments, the learned Session Judge passed the judgment and conviction.
7. Sri A.G.Mulawadmath, learned Counsel for the appellants while assailing the judgment of the Court below submits that the story of the prosecution to the effect that while interrogating accused No.2 in respect of a theft case, he informed about the dacoity committed at State Bank of India, Chennammanagar Branch, Belgaum and on the said information, they investigated the case etc. is a created story. The bank officials / witnesses by colluding with each other during the test identification parade held at Hindalaga Central Prison, identified the accused. In fact, PWs.4 and 8 did not identify the accused and PWs.6 and 7 are shown to have identified only accused No.2 and accused Nos.1 and 3 respectively. The accused were procured under body warrant from Mangalore before the JMFC, Belgaum, without covering their faces they were produced in the Court. That being so, there is every possibility that the witnesses had seen them in the Court. As per the testimony of PW.3, the accused were aligned with other persons, some of whom were in jail dress hence, there is every possibility of witnesses pinpointing the accused on the basis of their dress. Therefore, identification parade is vitiated. The complaint is silent about the accused carrying the choppers with them but the police created false statements and conducted fake panchanama showing recovery of Choppers, on the basis of the voluntary statements of the accused persons. But the pistol alleged to have been used during the incident is not recovered. Seizure of the Maruthi Esteem Car with the labels of State Bank of India and receipt of the Urban Co-operative Bank is a concocted story. As per the prosecution case, accused No.4 lead the police to his house and produced chits dated 21.11.2006 of State Bank of India, Channammanagar Branch, Belgaum and Rs.1,100/- but why would he keep the label of the SBI in this house after committing the offence? Wherefore, the seizure of the cash amount and the label is false. Despite observing that the accused have not used any firearm like revolver for committing the dacoity, the judgment of conviction is drawn. In the absence of firearm, the allegation that the accused put threat to the life of the inmates of the bank is improbable. There is no detail as to how much money was looted and how much money was in the strong room. Independent eyewitnesses did not support the case of the prosecution. The statements given by the accused during their Section 313 Cr.P.C. examination is not considered. Absolutely, there was no evidence to convict the accused for the offence punishable under Section 395 of IPC. By recording the conviction, the trial Court fell into error and the judgment impugned may be set aside.
8. Learned Government Pleader in his reply supported the case of the prosecution.
9. In the light of the above submission, the sole point that arise for my consideration is:
Whether it is a case for conviction under Section 395 of IPC?
10. On a travel through the statement of the eyewitness / complainant / PW.3, he was threatened by one culprit under a pistol point and another removed the telephone connection. Seven culprits who were sitting with the customers wielded their weapons, threatened the staff and the public. Two of them entered his room, out of the two culprits, one was holding a pistol and another was holding a chopper. Among the seven culprits who were outside, three of them holding Pistol, extorted money from his staff. The culprits holding the Choppers were threatening the customers. He was able to identify accused No.3 who was present in the Court hall as the person who threatened him with a Pistol; he has further stated that he was dragged by the dacoits to the strong room, the customers were pushed to the locker room and at the pressure of the dacoits the staff opened the door of the strong room, the accused looted money from the strong room, so also the amount in the cash counter. Thereafter, accused No.4 locked the locker room from outside. All the accused locked the locker room from outside. While leaving the Bank, accused No.4 placed the key of the locker room on the customer pad and showed the same to the inmates of the bank. The first and second accused present in the Court hall were there with other Dacoits. He had identified accused Nos.1 to 4 during identification parade. He further identified his signatures in the identification parade report, two choppers used for commission of offence and three bank slips seized by the Investigating Officer. During cross-examination, he stated that there was a news item in the newspaper about the culprits who had committed dacoity at Chemmannur Jewellers, Bangalore and very same culprits involved in the dacoity of State Bank of India, Chennammanagar, Belgaum. He admits that during the identification parade some of them were in civil dress and some in jail uniform; the Tahsildar who conducted the identification was a person known to him.
11. PW.4 is the official of the bank. As per her evidence, At the instance of the accused, the manager directed her and another official by name Vinodh Shetty to get the keys of the cash chest. Accordingly, they opened the door of the strong room and the cash chest. The dacoits filled up their bags with cash. Thereafter, they made them to put the face down with closed eyes. Thereafter along with some customers all of them were locked in the locker room. She was not able to identify the dacoits either in the identification parade or in the court hall.
12. PW.5 is official of the bank who along with PW.3 opened the locker room. His evidence is in corroboration to the evidence of PWs.3 and 4. Though he had identified the accused during the identification parade, could not identify them in the Court hall. His previous statement that the police had shown him the photos of the dacoits was marked as Ex.D.1. He admits that he is seeing the accused before the Court for the first time.
13. PW.6 is another official, who along with PW.4 had opened the cash chest for the dacoits, when his manager told that there is no other go except to surrender to the dacoits. During the identification parade, he had identified only accused No.2and identified him in the Court hall also. During the cross-examination, he admits that he had not observed the culprits who were holding the Pistol. He further states that out of 10 members who participated in the identification parade, some of them were in jail uniform.
14. PW.7 is another official of the bank. While corroborating the statement of other officials, he stated that he had identified accused Nos.1 to 3 during the identification parade so also he identified them in the Court hall.
15. PW.8 is a customer of the Bank who was at the spot at the relevant time. He turned hostile to the prosecution case. He was said to have identified the accused during the identification parade.
16. PW.9 is said to be the owner of the house rented to accused No.4 and also a witness to the mahazaar Ex.P.28 under which the accused produced cash amount and slips of State Bank of India before the police for seizure. He turned hostile to the prosecution case.
17. PW.10 is the official of the bank, who is a second shift employee, who came to the bank after the incident. When he went to the bank at 11.00 a.m., the door of the bank was bolted from outside.
18. PW.21 is the customer of the bank / independent eyewitness. He turned hostile to the prosecution case. PW.14 is the witness to the mahazaar Ex.P.34 under which the Chopper/s used by the accused for commission of the offence, the cash amount concealed and the place where the Car was deserted was shown. Though he had admitted the signature on the mahazaar has turned hostile to the prosecution case.
19. PW.13 is another witness to Ex.P.34 and he supported the prosecution case. PW.12 is the Additional District Magistrate who has given sanction to the prosecution of the accused under Arms Act. PW.16 was the then Taluka Magistrate who conducted the identification parade. As per his evidence, on 26.11.2007, at 8.45 p.m., he procured 10 under trial prisoners in the jail premises whose appearance matches with the features of appearance of accused No.1. The bank manager and another official identified accused No.1 and rest of 3 witnesses could not identify accused No.1. The bank manager likewise identified accused No.2 / Umesh, the witness Suvidha Nayika and Suvarna Kote also identified him. Accused No.3 / Gopalakrishna was identified by the Bank manager, Suvidha Nayika and Suvarna Kote Likewise, accused No.4 / Manish was identified by the Bank manager, Suvidha Nayika and Jayashree patil. Again on 27.11.2007, he conducted identification parade by procuring different under trial prisoners totally ten in number. But the witnesses did not identify accused No.1. One witness Kalayan Rao Joshi and Shamsutha identified accused No.2. Accused Nos.3 and 4 were not identified by any witnesses. Again on 28.11.2007, he conducted identification parade in the premises of Hindalga Jail. Three witnesses by name Chandrakantha Patil, Vinodh Shetty and Mahadeva Bahmani identified accused No.2. Chandrakanth Patil also identified accused No.1 in the identification parade. Accused No.3 / Gopalakrishna was identified by Chandrakantha Patila and Mahadeva Bahmani. Accused No.4 / Manish Shetty was not identified by any one.
20. PW.20 was the Police Inspector at the relevant point of time who received the phone call at 11.00 a.m. on 01.12.2006 from the bank manager about the dacoity. He has stated about the proceedings of the bank, receiving the complaint, registering the case, despatching FIR to the Court, conducting spot mahazaar in the presence of the witnesses, preparing a rough sketch and referring the statements of the witnesses who were at the spot.
21. PW.17 was the then Circle Inspector of Mangalore Rural. As per his evidence, on a credible information he checked the bus in which accused No.2 / Umesh was travelling. He held accused No.2 and searched the bag he was carrying. There were gold ornaments kept in a plastic bag in a suitcase. On enquiry, it was disclosed that they were stolen from Chemmanur Jewellers, Bangalore. He brought the accused to the police station along with the property and arrested him. During his interrogation, the accused revealed his involvement in the dacoity of State Bank of India, Chennammanagar Brach, Belgaum along with the co- accused persons.
22. PW.18, the then Police Inspector of Banasavadi Police Station, Bangalore has testified about his staff apprehending accused No.4 / Manish Shetty in a crime No.346/2007 registered by Banasavadi Police. On interrogation he revealed his involvement in the dacoity of State Bank of India of Chennammanagar Branch on 01.12.2006.
23. PW.15 is the Inspector of Thilakawadi Police Station; he has seized an abandoned Car at Marata Colony in the presence of one witness on 03.12.2000, a label of State Bank of India Commercial and receipts pertaining to deposit of cash amount of Global Associate to Hubli Urban Co-Operative Bank were seized along with the said car / Maruthi Esteem bearing registration No.MH 14 B 4942.
24. PW.11 is the PSI who took over further investigation; procured all the four accused under body warrant; took the accused persons to his custody; recorded their voluntary statements. On 16.11.2007, the accused led the police and the panchas to Marata Colony; accused No.4 showed the place where they abandoned the Car and produced the chopper which was hidden under the mud; accused No.1 produced another chopper from nearby place which was concealed under the mud. Thereafter, the accused took the police and pancha to the house of accused No.4 and produced currency notes with the slip, which was in the name of State Bank of India, Chennammanagar Branch, Belgaum. On 21.11.2006, he has seized the currency notes produced by accused No.1 along with the slip of SBI. Accused Nos.1 to 3 also produced cash amount with the slip of SBI concealed under the roof in the same house. He has recorded the statement of the witnesses and also procured the witnesses at the instances of the Taluka Magistrate for identification parade. He handed over further investigation to Police Inspector / Mahanteshwara who on obtaining sanction from District Commissioner for prosecution under Arms Act and submitted charge sheet to the Court. During cross-examination, he admits that while producing the accused the face of the accused were not masked.
25. During their examination under Section 313 of Cr.P.C., the accused made an omnibus denial of all the incriminating circumstance appearing against them in the evidence of prosecution witnesses; they did not utilise the opportunity of that stage to explain the incriminating circumstances. As such, accused No.1 was arrested 11 months after the alleged incident. It is on his voluntary statement, other accused are brought to book. The Pistol used for commission of Offence is not traced and whole of stolen property is not recovered. It is quite natural that the stolen property being the cash amount, major portion of it has been spent away by the accused before they were arrested. During the identification parade, only PW.3 / Bank Manager identified all the four accused persons. PW.5 / Suvidha Nayika though had identified accused during identification parade, could not identify the accused persons before the Court. PW.7 identified accused Nos.1 to 3 only during identification parade so also in the Court hall.
26. In that view of the matter, the prosecution is left with the unshaken evidence of the Bank Manager / PW.3 only. It is the incident of 01.12.2006 at 10.30 a.m. at State Bank of India, Chennamanagar Branch, Belgaum. The complaint is lodged at 11.40 a.m. without any delay. On an approximation 8 to 10 lakhs of cash amount is said to have been looted. On 03.12.2006, the white Maruthi Esteem Car bearing No.MH 14 B 4952 with the slip of State Bank of India was traced at Marata Colony in Belgaum. The said Car is marked as M.O.1. All the four accused have voluntarily led the police and the panchas to the place where the Car was abandoned and accused No.1 has pinpointed the place and mahazaar Ex.P.34 was drawn in the presence of Panchas. Though the panch witnesses turned hostile to the prosecution case, they admitted their signatures on the mahazaar Ex.P.34. This mahazaar is also about recovery of weapons, part of stolen cash amount and chits pertaining to State Bank of India, Chennammanagar Branch, Belgaum.
27. Five of the accused are not prosecuted together since they are absconding: it would suffice for a conviction under Section 395 of IPC, if it is established that five or more than five were involved in the offence. The evidence of the eyewitnesses is also to the effect that there were about 7 to 8 culprits indulging in the offence. On a keen and careful scanning of the evidence of PW.3, he has seen two of the accused, out of whom one held Pistol to his neck and disconnected the telephone connection and both of them demanded money from him. One of them dragged him by his collar outside his chamber. Seven of them wielded their weapons and threatened the inmates of the building. He has clearly identified accused No.3 / Gopalakrishna who threatened him and also said accused No.3 had slapped his driver Mohammed Hanif when he attempted to interfere. He has identified accused No.4 who locked the strong room from outside and left the key of the locker on the customer pad and showed the said key to the locked inmates of the bank. He has identified accused Nos.1 and 2 as the persons who were among the group of the dacoits. During his cross-examination, suggestions were put to him, that at the time of the incident the dacoits were not holding the Choppers, they have not threatened the inmates in the bank premises with the pistol, the accused are not the persons who committed dacoity and the photos of the accused were taken by the police by their mobile phone and hint was given to him to identify the accused. However, suggestions were denied.
28. No defense is built-up disputing the commission of dacoity on 01.12.2006, at SBI, Chennammanagar Branch, Belgaum. It is also not much in dispute that an orphan Maruthi Esteem Car was abandoned on the road in the Belgaum city which was seized by the jurisdictional police with the slips of a Co-operative Bank, Hubli and the label of SBI. Except the unfettered evidence of the manager of the Bank / PW.3, there is no other firm and unimpeachable evidence with the prosecution about the complicity of accused in the offence. It is not as if, PW.3 was a planted witness or a chance witness. He had all of opportunity during the incident to watch the movements and features of each of the accused persons. It is quite possible because of the deep impact of the incident he could memorise their features at the time of the identification parade and also before the Court. He has withstood the test of cross-examination about his eyewitness account of the incident. While he is deposing with all certainty and firmness about the identity and involvement of the accused, it is not necessary to go deep into the procedure adopted during the identification parade. It is not a rule of law that the eyewitness account of one needs corroboration of the another eyewitness. The evidence of the eyewitness / Bank Manager overweighs all infirmities and dents in the case of the prosecution.
29. The Apex Court in the case of Shivaji Sahabrao Bobade Vs. State of Maharashtra reported in (1973) 2 SCC 793, at para No.19 has held as under:
"Even if the case against the accused hangs on the evidence of a single eyewitness it may be enough to sustain the conviction given sterling testimony of a competent, honest man, although as a rule of prudence courts call for corroboration. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs."
Same view was reiterated in the case of Yakub Ismailbhai Patel Vs. State of Gujarat reported in (2004) 12 SCC 229, at para No.45, it has held as under:
"45. The legal position in respect of the testimony of a solitary eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confidence of the Court. While looking into such evidence this Court has always advocated the rule of caution and such corroboration from other evidence and even in the absence of corroboration if testimony of such single eyewitness inspires confidence then conviction can be based solely upon it. In the case on hand, the testimony of the solitary eyewitness stands corroborated by other circumstances and evidences and more particularly PW.1 whose testimony has been relied upon by both the courts."
30. The incident of Dacoity dated 01.12.2006 at 10.30 a.m. is not disputed, the complaint Ex.P.1 is proved by the evidence of PW.3 / Bank Manager, the author of Ex.P.1 and also eyewitness. Recovery mahazaar / Ex.P.34 is proved by the evidence of the Investigating Officer with the tending support of Section 114(e) of Evidence Act. Accused Nos.1 to 4 having been unmistakably identified by PW.3. In the said circumstance, onus of explaining the incriminating circumstances had tilted to the accused during the examination under Section 313 Cr.P.C.
31. In the case of Ravi Kapur Vs. State of Rajasthan reported in (2012) 9 SCC 284, at para No.39 it is held as under:
"39. It is true that the prosecution is required to prove its case beyond reasonable doubt but the provisions of Section 313 Cr.P.C are not a mere formality or purposeless. They have a dual purpose to discharge, firstly, that the entire material parts of the incriminating evidence should be put to the accused in accordance with law and, secondly, to provide an opportunity to the accused to explain his conduct or his version of the case. To provide this opportunity to the accused is the mandatory duty of the court. If the accused deliberately fails to avail this opportunity, then the consequences in law have to follow, particularly when it would be expected of the accused in the normal course of conduct to disclose certain facts which may be within his personal knowledge and have a bearing on the case."
32. It lies within the exclusive knowledge of the accused as to what were those circumstances which enabled PW.3 to see them prior to identification parade because of which he identified them pinpointedly, during identification parade and also again in the Court Hall. The roll they took on for themselves during Section 313 Cr.P.C. statements lends assurance to the prosecution case.
33. Of course, the conduct of identification is fraught with irregularities. But that is of no avail to the defense when the evidence of eyewitness is reliable and trustworthy.
34. In the case of Munshi Singh Gautam Vs. State of Madhya Pradesh reported in (2005) 9 SCC 631, at para 81 it is held as under:
"81. Identification parade is a tool of investigation and is used primarily to strengthen the case of the prosecution on the one hand and to make doubly sure that persons named as the accused in the case are actually the culprits. The identification parade primarily belongs to the stage of investigation by the police. The fact that a particular witness has been able to identify the accused at an identification parade is only a circumstance corroborative of the identification in court. Thus, it is only a relevant consideration which may be examined by the court in view of other attendant circumstances and corroborative evidence with reference to the facts of a given case."
35. Though the learned Judge has not gone in detail while appreciating the evidence in the body of her judgment, the conviction returned by the Court below under Section 395 I.P.C. with sentence as prescribed in the statute itself i.e., ten years of rigorous imprisonment with fine of Rs.25,000/- each, does not call for interference.
36. Accordingly, appeal is dismissed.
In view of the dismissal of the main appeal, I.A. Nos.2/2014 and 1/2014 do not survive for consideration.