Judgment:
® C/w.713/10 -1- CRL.As 725 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE01T DAY OF APRIL, 2015 BEFORE THE HON’BLE MR.JUSTICE A.S.PACHHAPURE CRIMINAL APPEAL No.725 OF2010C/w. CRIMINAL APPEAL No.713 OF2010IN CRL.A.No.725/2010 BETWEEN:
1. K.RAMANJI @ RAMANJANEYUDU, S/O RAMAIAH, AGED ABOUT30YEARS, R/AT RAYACHARULU, PAVAGADA TALUKA, DIST: TUMKUR.
2. S.V.RAMANATHA, S/O VENKATARAMANACHARI, AGED ABOUT29YEARS, R/O YELACHENAHALLY, BANGALORE. ... APPELLANTS (BY SRI S.K.VENKATA REDDY, ADV.) AND: THE STATE OF KARNATAKA, REP BY MIDIGESHI POLICE STATION, TQ: MADHUGIRI, DIST: TUMKUR. ... RESPONDENT (BY SRI K.NAGESHWARAPPA, HCGP) C/w.713/10 -2- CRL.As 725 THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER
DT.21.06.10 PASSED BY THE P.O. FTC-V, MADHUGIRI, IN S.C.NO.94/06- CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S392OF IPC. * * * IN CRL.A No.713/2010 BETWEEN: AMARENDRA, S/O VENKATAIAH, AGED ABOUT22YEARS, R/O RAYACHARLU, PAVAGADA TALUK, TUMKUR DISTRICT. ... APPELLANT (BY SRI K.A.CHANDRASHEKARA, ADV.) AND: THE STATE OF KARNATAKA, BY THE POLICE OF MEDIGESHI POLICE STATION, TUMKUR DISTRICT. ... RESPONDENT (BY SRI K.NAGESHWARAPPA, HCGP) THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER
OF CONVICTION AND SENTENCES DT.21.06.2010 PASSED BY THE P.O. FTC-V, MADHUGIRI IN S.C.NO.94/06-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S392OF IPC. * * * THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: C/w.713/10 -3- CRL.As 725 JUDGMENT
The appellants have challenged the judgment and order of their conviction and sentence for the offences punishable under Section 392 of IPC on a trial held by the Fast Track Court at Madhugiri.
2. Sans unnecessary details, the prosecution version unfolded during the trial is as under: PW.1-K.V.Thimmappa, the Head Master of the Primary School, Rolla Centre and PW.2- P.V.Challapathi, the Head Master of Rathnagiri Primary School had been to SBI, Madakasira on TVS moped and at 10.30 a.m. having drawn the money from the bank were retuning on the aforesaid moped with a total sum of Rs.6,80,462/- bifurcated in two bags. When, they were near Lakshmipura of Karnataka–Andhra Pradesh Border, three persons came on a motorbike from their behind and hit the moped. As a result, Thimmappa & Challapathi fell down and the rider of the motorbike forcibly snatched the bag from PW.1- C/w.713/10 -4- CRL.As 725 Thimmappa and another snatched the bag from PW.2- Chalapathi. At that time, some cash fell down to the ground. The persons who robbed the same were speaking Telugu and they removed the plug wire of the moped of the victims and fled away from the spot. PW.2- Challapathi collected the cash which had fallen. In the course of the aforesaid incident, the spectacles were broken. PW.1 and PW.2 tried to start their vehicle but it did not. Hence, they went to Madakasira circle and reached the police station in a tempo. A case in Crime No.109/2005 was registered for the offences punishable under Section 392 of Cr.P.C. The investigation was taken up. The spot mahazar-Ex.P2 was held in the presence of the attesting witnesses. The articles i.e., Mos.1 to 6 were seized. It is on 13.12.2005, additional statement of PW.1 and statement of PW.2 were recorded and in the said statement, they revealed the motorbike number as KA-06-S-9878 and also the fact C/w.713/10 -5- CRL.As 725 that the incident was at the instance of five persons with the involvement of two bikes. During the investigation, it revealed that PW.8-Sriramulu was the owner of motorbike and he revealed the names of accused Nos.1 to 4 as the persons who took the motorbike on 01.12.2005. On 14.12.2005, PW.18 on credible information that accused Nos.1 to 4 were traveling from Bangalore to Dharmavaram, chased them at N.S.Gate at National Highway No.7 on the motorbike bearing registration No.KA-06-S-9878. They were apprehended. Later, accused No.5 was arrested on 29.12.2005. In the course of the investigation, accused No.1 was arrested. The amount robbed was seized under the mahazar and as PW.1 and PW.2 had sustained injuries, they were treated by a doctor and injury certificates were collected, statements of the witnesses were recorded. On completion of the investigation, a charge sheet was laid against the accused for the offences punishable under Section 392 of Cr.P.C. C/w.713/10 -6- CRL.As 725 In the trial against the appellants, the prosecution examined PW.1 to PW.18 and got marked Exs.P1 to P35 and Mos.1 to 35. The statements of the accused were recorded under Section 313 of Cr.P.C. No defence evidence was led. The trial Court heard the learned counsel and on appreciation of the evidence on record convicted the appellants (accused Nos.1 to
3) for the offence punishable under Section 392 of IPC and ordered them to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for three months. Aggrieved by the conviction and sentence, accused Nos.1 to 3 have approached this Court in this appeal.
3. Heard the learned counsel for the appellants and also the learned High Court Government Pleader.
4. It is the contention of the learned counsel for the appellants that identity of the accused is C/w.713/10 -7- CRL.As 725 not proved as the very procedure adopted in holding the Identification Parade was followed and further there is abnormal and unusual delay in recording the statements of the material witnesses. Therefore, he submits that the Court below was not justified in granting conviction and sentence. He further submits that there are material discrepancies and omissions in the evidence of prosecution witnesses and that the prosecution has cooked up a false case against the appellants. On the aforesaid grounds, he has sought for setting aside the order of conviction and sentence. On the other hand, learned High Court Government Pleader supports the judgment and order and submits that there is ample material on record to prove the participation of the appellants in the crime and that the trial Court has rightly convicted the appellants for the charge under Section 392 of IPC. On these grounds, he submits that the appellants have not made C/w.713/10 -8- CRL.As 725 out any grounds to warrant interference in the judgment and order of the trial Court.
5. Learned counsel for the appellants has taken me through all the evidence i.e., oral and documentary and I have given anxious consideration to the submission of both the counsel.
6. At the first instance, it is necessary to refer to the complaint-Ex.P1 that has been filed by PW.1. The complaint is in Kannada language, whereas PW.1 is a teacher in Andhra Pradesh Primary School at Rolla Centre in Madakasira Taluk. He states that he has submitted his oral complaint and it was reduced to writing in the police station at Madhugiri. But anyhow, perusal of the complaint-Ex.P1 reveals that a written complaint was filed. PW.1 has spoken to the incident that occurred on 01.12.2005 and in the complaint, there is no mention of registration number of the motorbikes said to have been used by the miscreants while robbing the money from PW.1 and C/w.713/10 -9- CRL.As 725 PW.2. But anyhow, scrutiny of his evidence would reveal that he had seen the motorbike number and for the first time, when his statement was recorded on 13.12.2005, he discloses the motorbike number of accused Nos.1 to 3 which was used on the date of the incident for robbing the aforesaid sum. That apart, for the first time on 13.02.2015, both PW.1 and PW.2 said to have disclosed the participation of accused Nos.4 and 5 on another motorbike which was used for their arrival to the spot. In the complaint-Ex.P1, neither arrival of accused Nos.4 and 5 nor the fact that they came on a motorbike at the time of the incident is mentioned. That apart, registration numbers of both the motorbikes do not find a place in the complaint- Ex.P1. It is for the first time on 13.12.2005, PW.1 and PW.2 revealed the motorbike number and also spoken to the presence of accused Nos.4 and 5 on another motorbike. C/w.713/10 -10- CRL.As 725 7. Now so far as the role of PW.18, the Investigating Officer is concerned, after registration of the crime, he held the spot mahazar- Ex.P2 on 02.12.2005 and so also the TVS moped of PW.1 and PW.2 (MO.6) produced by PW.2 was seized under the Mahazar-Ex.P3 on the same date i.e., 02.12.2015. So from the material placed on record, it is clear that even on the said date when the mahazar was drawn, both PW.1 and PW.2 were present. The spot mahazar was held in the morning hour whereas the seizure mahazar was held in the late hours of the day. So right from the morning on 02.12.2005 till evening hours, both PW.1 and PW.2 were with PW.18-the Investigating Officer. Neither the statement of PW.2 nor the additional statement of PW.1 was recorded on the said date.
8. As stated by PW.18, it is for the first time on 13.12.2005, the additional statement of PW.1 and statement of PW.2 were recorded. So there is a delay C/w.713/10 -11- CRL.As 725 of 11 days in recording the additional statement and the statement of PW.2 and there is no explanation by PW.18 for the delay in recording the statement.
9. Learned counsel for the appellants have placed reliance on the decisions of the Apex Court reported in “AIR1971SC804(Balakrushna Swain v. The State of Orissa)” and “(1978) 4 scc 371 (Ganesh Bhavan Patel and another v. State of Maharastra)”, wherein it has been held that even if there is justification and explanation for the delay on the part of the Investigating Officer in recording the statement of the material eyewitness during the investigation of the case, the evidence of such witness would be unreliable.
10. Perusal of Para.5 of the first decision referred to supra would reveal that there was a delay of 10 to 11 days in recording the statements of the eyewitness by the Investigating Officer in a case for the offence punishable under Section 302 of IPC and C/w.713/10 -12- CRL.As 725 in the context of aforesaid delay in recording the statement, the Apex Court held that the delay would render the evidence of such witness unreliable. In the second decision referred supra as well, the Apex Court held that the delay in examining the eyewitness by the Investigating Officer, can on the peculiar facts of a case, amount to serious infirmity in the case of the prosecution.
11. The statement of the material witness has to be recorded forthwith. So that it could be relied upon by the prosecution in proving the evidence of the witness whose statement was recorded. If there is a delay in recording the statement, the possibilities of concocting the statement by the Investigating Officer cannot be over-ruled. To repose confidence in the evidence of such witnesses, it is necessary to record the statement at an earliest point of time. It is relevant to note that for the first time, PW.1 and PW.2 speak to the number of the motorbikes used by the accused and disclose it while the statement was C/w.713/10 -13- CRL.As 725 recorded on 13.12.2005. If they really knew these vehicle numbers, there was no difficulty for them to disclose it to the Investigating Officer on the said date. I think, when the complaint was filed and they were available to the Investigating Officer all along since morning till evening on 02.12.2005, what made PW.1 and PW.2 to suppress the motorbike numbers of the accused for about 10 to 11 days and then disclose it on 13.02.2005 remains unexplained.
12. It is relevant to note that it is only on the basis of the motorbike numbers disclosed by PW.1 and PW.2, the accused were traced by the Investigating Officer. Therefore, both PW.1 and PW.2 are the material witnesses and it was necessary for the Investigating Officer to record their statements at an earliest point of time.
13. Though the prosecution has examined as many as 18 witnesses, P.Ws.1 and 2 are the only persons, who are important as they were victims of the C/w.713/10 -14- CRL.As 725 incident and identification of the accused is dependent only on their evidence.
14. The prosecution has examined P.W.3- Kariyappa, who was present at the time when the Police chased the vehicle of the appellants, who were proceeding on the motorcycle were apprehended. All the aforesaid accused were found to have possessed currency notes. From the 3rd accused 59 currency notes of Rs.500-00 denomination were seized, whereas from the 2nd accused 100 notes and 70 notes of Rs.500-00 denomination were seized. The carry bag of accused No.2 in which the notes were found was also seized at that time and the 1st accused was possessing one currency note of Rs.100-00 denomination. The aforesaid amount was seized from them in addition to the Hero Honda motorcycle bearing reg. No.KA-06/S-9878, which is said to have been used at the time of the incident whereas, the currency notes seized from the accused are at M.Os.10 to 19, 20 to 24 and 25. They are seized under mahazar- C/w.713/10 -15- CRL.As 725 Ex.P16. Before arresting the accused, the Police on the basis of the information received by P.Ws.1 and 2, enquired with the Regional Transport Office regarding the ownership of the vehicle.
15. P.W.8 is the owner of the aforesaid vehicle. He states that the vehicle owned by him was given to accused 1 to 4. So, it is on the basis of this evidence of P.Ws.1 to 8, the names of the appellants were revealed and in turn an effort was made to apprehend them. The other witnesses examined by the prosecution are P.W.5-M.Lakshminarayana, Deputy Manager of State Bank of India, Madakashira Branch, from where the amount was collected by P.Ws.1 and 2. P.W.4 is the doctor, who examined the injured and issued the injury certificate. P.W.6 is the Educational Officer attached to Rolla Mandala, who had authorization to sign the cheque for withdrawal of the amount from the bank. P.W.7-Narasigappa was a teacher in the M.P.P. School at Rolla Mandala and he is the attesting witness to the mahazar-Ex.P3. His C/w.713/10 -16- CRL.As 725 evidence is not of much relevance. P.W.9- Krishnamurthy is the attesting witness to the mahazar-Ex.P2. P.W.10 is the attesting witness to the seizure of M.O.8-number plate of the vehicle and it was seized under mahazar-Ex.P25. This recovery of the number plate of the vehicle was on the basis of the voluntary statement of the 3rd accused, who is said to have thrown it into the well and from the said place the said number plate was seized under mahazar-Ex.P25. P.Ws.11 and 12 are the attesting witnesses to the mahazar-Ex.P26 relating to the seizure of motorcycle and the amount from the accused on the basis of the statement. P.W.13 is the owner of the other motorcycle Yamaha bearing reg. No.AP- 02/C-434 said to have been used by accused 4 and 5 and he has turned hostile and his evidence is of no help. P.W.14 is the Police Inspector, Madakashira, to whom P.Ws.1 and 2 had approached to lodge the complaint and as the incident took place in the limits of State of Karnataka, the place of incident C/w.713/10 -17- CRL.As 725 and informed P.W.2 to file a complaint with the jurisdictional police. P.W.15 is the Police Inspector, who is said to have stopped the Hero Honda motorcycle of accused 1 to 3 bearing reg. No.KA-06/S- 9878 and subsequent seizure of the said motorcycle, arrest of the appellants and also seizure of M.Os. from their possession. P.W.16 is the Police Officer, who registered the crime. So, from the aforesaid evidence it could be said that it is only on the basis of the registration number of the motorcycles said to have been used by accused 1 to 3, that the said vehicles were traced and the appellants were arrested. This development is on the basis of the additional statements of P.Ws.1 and 2, which were recorded on 13.12.2005 i.e., after 11 days of registration of the crime. If there was no identification or that if the statements of P.Ws.1 and 2 were not recorded on 13.12.2005, there was no question of further investigation into the matter as it is on the said information, which C/w.713/10 -18- CRL.As 725 revealed the identity of the vehicles. Therefore, the additional statement of P.W.1 recorded and the statement of P.W.2 are of vital importance and it could have been done at the earliest point of time.
16. Now, so far as identity of the accused is concerned, the prosecution examined P.Ws.16-Taluk Executive Magistrate, who held the identification parade. At the first instance, it is relevant to note that this identification parade was held in the office of the Tahsildar and not in the prison. The provision relating to the procedure to be adopted for an identification parade reveals that identity of the accused should not be disclosed prior to the parade. There was no difficulty for the Tahsildar to go to the prison to hold the identification parade, but he allowed the accused to come to his office and thereby gave an opportunity to the others to see the accused even prior to the identification parade. C/w.713/10 -19- CRL.As 725 That apart, it is relevant to note that on the date when the appellants were arrested, P.Ws.1 and 2 were made known the fact and they had seen the accused as well. In that context, the identification parade held by P.W.16 has no relevance. No importance could be given to such a report for the reason that it was held in the office of the Tahsildar instead of holding it in the prison. That apart, the arrest of the accused is on 16.12.2005 and the identification parade was held on 12.01.2006. Whenever, an arrest is made and identity is in dispute, it is necessary for the investigating agency to complete the identification parade at an earliest point of time. No explanation has been offered by the prosecution for the delay in holding the identification parade. This is also a material lacunae in the evidence of the prosecution. The procedure relating to the identification parade to be held by the Taluk Executive Magistrate requires several points to be observed while holding the C/w.713/10 -20- CRL.As 725 identification parade. It provides in a case where the accused is arrested, wherein there are more than one person involved in the crime, the Investigating Agency shall not postpone the parade after the arrest of the accused till the other accused are secured. It is on record that the 5th accused was arrested on 29.12.2005. It is only after the arrest of the 5th accused identification parade was held by the Tahsildar-P.W.16. There is contravention of the aforesaid provision relating to the procedure for holding identification parade.
17. Learned counsel for the appellants has relied upon the decision of the Manipur High Court reported in 1957 Crl.L.J.
870 [State Vs. Yumnam Babu Singh & Ors.].; wherein, it has been held by the High Court that observation of the rules relating identification of the accused persons is mandatory and the prosecution must follow the procedure laid- down for completion of the identification parade. It has been held that if that is not done, it would C/w.713/10 -21- CRL.As 725 prejudice the case of the prosecution and the accused are entitled to the benefit. That apart, the incident took place, within the limits of State of Karnataka. But, P.Ws.1 and 2 immediately after the incident went to Madakashira Police Station in Andhra Pradesh to lodge the complaint. It is only because of the mistake committed by them that there was a delay in recording the first information report. Apart from this delay, P.Ws.1 and 2 did not disclose all that information relevant for the purpose of registering the crime in the complaint Ex.P1 and they suppressed the fact of involvement of the 4th and 5th accused and also their vehicle’s registration number. So, this raises serious doubt with regard to the case of the prosecution. Furthermore, at the time of the appellants were arrested on 14.12.2005, the attesting witnesses, who signed the mahazar relating to recovery of the C/w.713/10 -22- CRL.As 725 motorcycle and also the currency notes from each of the accused was in the presence of those attesting witnesses, who were not belonging to the local area. Whenever a seizure is to be made, it is necessary in law that responsible persons of the locality will have to be called for the purpose of attesting the mahazar and for completing the procedure for holding the mahazars.
18. So far as the identity of the currency notes which were seized from possession of accused 1 to 3 is concerned, it is relevant to note that the labels on the currency notes could be secured by any person and there is possibility that the victims having lost the currency notes at the place of the incident, suppressed the fact relating identity of the vehicle and involvement of accused 4 and 5 must have gained some time to implicate somebody and for this reason, in case if they were able to secure the label, the seizure may be for the purpose of implicating some persons in the crime. C/w.713/10 -23- CRL.As 725 19. Therefore, mere fact that the currency notes with the labels of SBI were recovered from accused 1 to 3 itself is not a strong circumstance in favour of the prosecution to connect the accused with the crime.
20. From the scrutiny of the material placed on record it would reveal that the incident was at 6.45 p.m. on 01.12.2005. The non-disclosure of the vehicle numbers and participation of accused 4 and 5 raises a serious doubt in the case of the prosecution and this doubt has to go to the benefit of the accused.
22. It is necessary to refer here that the prosecution has to prove the case beyond reasonable doubt. It has been observed in many cases that the Investigating Officers do not have sufficient/required knowledge regarding the principles laid-down in the law pertaining to the procedure to be adopted and holding an investigation, C/w.713/10 -24- CRL.As 725 recording the statements, etc., thereby, 20% of the cases go acquitted only for such mistakes committed by the Investigating Agency in the course of collecting evidence. This is for the reasons that they do not have the knowledge as regards the consequences that follow in case if any legal wrong is done. That apart, as could be seen from the facts on hand, the delay in recording the statements of the material witnesses has caused serious consequences. This may not be within the knowledge of the Investigating Officer. It is seen that many of the Investigating Officers do not have the qualification of law as the Government has not made it a qualification for the Post of a Police Officer, who is responsible for the investigation. Furthermore, the Police Officers have to be acquainted with the Criminal Procedure Code [hereinafter referred to as “the Cr.P.C.” for short]., the provisions of the Evidence Act, the provisions of other Penal Laws and C/w.713/10 -25- CRL.As 725 it is learnt that many of the Police Officers are appointed on the basis of the bachelor degrees either in Arts, Science, Commerce, Agriculture Science, etc. Furthermore, the Taluk Executive Magistrate has been vested with the power under the Cr.P.C. He/She has to acquaint himself/herself with the criminal manual, the procedure relating to identification of the accused persons, Revenue Laws, etc., but unfortunately, he need not have a Degree in Law as a qualification for his/her appointment. The highest Police Officers inclusive of the Deputy Commissioner of District or even the Superintendent of Police also do not require a Degree of Law for their appointment and are entrusted with the responsibility of maintaining the law and order situation in the society. The motto of Criminal Law is to punish the accused with the purpose to deter a citizen from committing any crime, reform him and thereby keep the C/w.713/10 -26- CRL.As 725 society safe. A citizen has to respect the law or at least the law has to create a fear of punishment in case of commission of crime, failing which the very purpose of criminal law would be defeated. If 20% of accused are acquitted due to a fault in the investigation, consequent to the ignorance of law, the very purpose of conviction of 20% in criminal case, as now it stands, will not assure a safe society to any citizen. Therefore, it appears to be just and proper to make law a qualification for the aforesaid posts. In these days, 20% criminals are in the prison, whereas 80% are in the society due to acquittals. Then how a citizen could be safe?. In this regard, it is necessary for the Central and State Governments to make the Law Degree, a qualification for those posts connected to investigation, inquiries, supervising posts etc. With the aforesaid observation and as there are serious flaws in the investigation, a serious doubt arises about the complicity of the accused in the C/w.713/10 -27- CRL.As 725 crime, therefore the conviction of the appellants for the offence under Section 392 IPC has to be set aside granting the benefit of doubt. Consequently, the appeals are allowed. The impugned Judgments and Orders are set aside. The appellants are acquitted of the charge under Section 392 IPC. Their bail bonds are cancelled. Fine, if any deposited by them shall be refunded. A copy of this Judgment shall be sent to the Chief Secretary, Government of Karnataka, Law Commission of Karnataka, Bengaluru, and the Secretary, Ministry of Law and Parliamentary Affairs, Central Government, New Delhi. Sd/- JUDGE. VM/Ksm*