IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR.JUSTICE JOHN MICHAEL CUNHA CRIMINAL APPEAL NO.770 OF 2012 BETWEEN:
1. CHAYA @ SOMA @ RAJESH AGED ABOUT 30 YEARS 2. ANANDA S/O RAVI, AGED ABOUT 28 YEARS 3. BASAVARAJU S/O APPARAO, AGED ABOUT 48 YEARS ALL ARE BELONGING TO HAKKIPIKKI COMMUNITY, SHANKARAPURA, MYSURU DISTRICT.
PRESENTLY RESIDING:
AT NALLURU, CHENNAGIRI TALUK, DAVANAGERE DISTRICT. ... APPELLANTS (BY SRI R.D.RENUKARADHYA, ADVOCATE) AND:
STATE BY KONANURU POLICE STATION, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA. ... RESPONDENT (BY SMT.B.G.NAMITHA MAHESH, HCGP) THIS CRL.A IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION PASSED BY THE II-FAST TRACK AND SESSIONS JUDGE, HASSAN – CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 396 AND 397 OF IPC AND THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR LIFE AND TO PAY FINE AMOUNT OF RS.5,000/- EACH AND IN DEFAULT TO PAY FINE AMOUNT, THEY SHALL UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF FIVE MONTHS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 396 OF IPC AND FURTHER THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT FOR A PERIOD OF SEVEN YEARS, FOR THE OFFENCE PUNISHABLE UNDER SECTION 397 OF IPC. THE SUBSTANTIVE SENTENCES SHALL RUN CONCURRENTLY.
***** THIS CRL.A. COMING ON FOR HEARING THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE FOLLOWING:
JUDGMENT This appeal is preferred against the impugned judgment dated 12.06.2012, passed by the Fast Tracks Court-II at Hassan in S.C.No. 148 of 2009, whereunder the appellants (hereinafter referred to as accused Nos.1 to 3 respectively), are convicted for the offence punishable under Section - 396 and 397 of IPC. They are sentenced to life imprisonment and to pay a fine of Rs.5,000/- each and in default of payment of fine to undergo rigorous imprisonment for five months for the offence punishable under Section-396 and for the offence punishable under Section-
397 of IPC the accused are sentenced to undergo rigorous imprisonment for seven years. Both the substantive sentences are directed to run concurrently.
2. The case of the prosecution is that with intent to commit dacoity, in the early morning of 01.03.2005 at about 1.30 a.m., the accused along with six other persons trespassed into Sri.Thontadharya Service Station and woke up the employees Srinivas and Babu, who were sleeping in one of the rooms at the petrol bunk. When they opened the door, accused Nos.1 and 2 assaulted them with a spear and accused No.3 assaulted PW-1, the complainant with a wooden club and thereafter robbed three watches and a cash of Rs.17,000/-.
3. On account of the injuries, Srinivas and Babu, two of the employees died on the spot. PW-1, the complainant who was then working as a Cashier in the said services station ran away from the spot and informed the owner of the petrol bunk. Based on his statement, Crime No.41 of 2005 was registered against six unknown persons.
4. On 18.01.2008, when PW-26, PSI of Saraswathipuram Police Station along with is team were on patrolling duty, apprehended the accused herein while attempting to commit dacoity and incriminating materials were seized from their possession. On interrogation, PW-26 having ascertained their involvement in the murder and dacoity at Sri.Thontadharya Service Station, recorded the voluntary statements of accused Nos. 1 to 3.
5. Based on their voluntary statements, PW-26 recovered two watches at the instance of Accused Nos.1, 2 and 3 under a Mahazar at Exhibit-P9. Likewise, the weapons used for the commission of the offence namely, MOs 14 and 15 were also recovered in terms of Mahazar at Exhibits–P24 and P25. On collecting necessary incriminating material, charge-sheet was laid against the present appellants showing the remaining three accused persons as absconding.
6. The appellants/accused Nos.1 to 3 denied the charges. In proof of the charges the prosecution examined in all 33 witnesses and produced in evidence 33 documents as Exhibit- P1 to P33 and the material objects at MOs.1 to 15. A portion of the previous statement of PW-7 came to be marked as Exhibit- D1. In their examination under Section–313 of Criminal Procedure Code, the accused took up the defence of total denial and did not choose to enter into specific defence.
7. On considering the above evidence, the trial court found the appellants guilty of both the above offences and accordingly, convicted and sentenced them for life imprisonment and for a term of seven years for the offence punishable under Section-396 and 397 of IPC receptively.
8. Feeling aggrieved by the impugned judgment of conviction, the appellants have preferred this appeal.
9. We have heard Sri.R.D.Renukaradhya, learned counsel appearing for the accused and Smt.B.G.Namitha Mahesh, learned High Court Government Pleader appearing for the respondents – State and have examined the records.
10. PW-1 is the complainant. According to this witness, on the date of the incident he was working in Sri.Thontadharya Service Station as a Cashier. After closing the petrol bunk at about 11.00 p.m., he was sleeping in a room and in another room the deceased Srinivas and Babu were sleeping. At about 1.30 a.m., somebody knocked the door and requested for petrol.
He put on the light and opened the door; he saw the accused persons armed with weapons.
11. The accused persons demanded him to give whatever was with him. At that time, accused No.1 assaulted him with a club on his forehead, accused No.2 kicked him. By then, Srinivas and Babu came out. Accused No.1 stabbed Srinivas. On seeing this, PW-1 ran away and informed the matter to his employer. By the time, the employer reached there, Srinivas was lying dead. Babu had sustained grievous injuries, but was breathing. They gave him some water and immediately he died. In the incident, another Muslim employee was also injured. Both of them were taken to a private clinic. In the clinic, he lodged the complaint as per Ex-P1. He identified the club M.O.1, the watches belonging to the deceased Srinivas and Babu as M.O.2 and M.O.3.
12(a). During his cross-examination, he reiterated that during the occurrence, he had put on the light before opening the door and in that light, he could see the accused. It is further elicited that apart from the appellants, there were three other accused and they were also armed with weapons. He further asserted that accused No.1 was short in size and one of the accused was wearing a knickers, shirt and another was wearing a lungi. When it was specifically suggested to PW-1 that he had not seen the accused at any time earlier, he asserted that he had seen them on the date of the incident and thereafter, he has identified them before the court.
(b). PW-2 is a panch witness to the inquest mahazars Exs- P5 and P6.
(c). PW-3 is the owner of the petrol bunk. He has corroborated the statement of PW-1 stating that on getting information from PW-1, he rushed to the spot and took PW-1 and PW-15 to the clinic.
(d). PW-4, PW-5 and PW-6 are the witnesses to the inquest mahazar Ex-P5.
(e). PW-7 is the brother of the deceased Babu. He identified the dead body during inquest.
(f). PW-8 is the panch witness to Ex-P7, whereunder the blood stained shirt M.O.11 was seized.
(g). PW-9 is the panch witness to the seizure of the clothes of the deceased under Ex-P4.
(h). PWs-10 and 11 are the eye witnesses. According to these witnesses, on the date of the incident, both of them had gone to Tobacco Board and were returning on their motor cycle. At that time, they saw the incident from a distance of about 80 ft – 100 ft. Both these witnesses have deposed that the three accused persons were holding clubs, knife and spear and they threatened the petrol bunk employees and asked for watches and cash and during the occurrence, they assaulted the employees of the petrol bunk. In the cross-examination, it is elicited that both these witnesses had once again come to the spot on 1.3.2005 and the police recorded their statement on the following day. In the cross-examination, they stood by their version and asserted that they saw the incident from a distance of 80ft to 100ft and during the occurrence, there was light. These witnesses have specifically identified all the three accused in the court and the identification made by them has not been discredited in the cross-examination.
(i). PW-12 is the panch witness to Ex-P8, whereunder the weapons were seized at the instance of accused Nos.1, 2 and 3.
This witness has stated that on 9.1.2008, accused Nos.1, 2 and 3 led them and the police to Shankarapura wherein the house of accused No.3 was located and at the instance of accused No.3, seven watches and five gold chains and two mobiles were seized under a mahazar Ex-P9.
(j). PW-13 is the Additional Director, Forensic Science Laboratory, Bengaluru, who examined the clothes of the deceased and issued his report vide Exs-P10 and P11.
(k). PW-14 is the Junior Engineer of BESCOM, Mandya, who has certified that there was uninterrupted power supply near the petrol bunk, at the time of the occurrence.
(l). PW-15 is another injured witness. According to this witness, on the date of the incident, he had come to the petrol bunk for plumbing work and he was sleeping in the room. In the adjacent room, deceased Seena and Babu and another person were sleeping. In the night, at about 1.00 p.m., he heard the sound of some persons hitting the door and when he tried to open the door, those persons latched the door from outside.
When he peeped through the window, he saw the accused persons demanding money and other belongings. When he came out of the room, accused No.1 stabbed him on the right arm, abdomen and chest and when accused No.2 tried to assault him, he resisted and at that time, accused No.3 assaulted on his chest with a club. He further stated that during the occurrence, the accused persons stabbed deceased Srinivas and Babu, as a result, both of them died at the spot. This witness also identified all the accused and has specifically deposed about the clothes worn by them during the incident.
(m). PW-16 is the panch witness to the recovery mahazar Ex-P9.
(n). PW-17 is the police constable, who carried the case file, two watches and handed over them to the CPI, Arakalgoodu and identified the said watches before the Court.
(o). PW-18, PW-19 and PW-22 are the police constables, who accompanied PW-26 during the arrest of the accused.
(p). PW-20 is the panch witness to the spot mahazar Ex-
P16.
(q). PW-21 was the PSI, Konanuru Police station, Hassan District, who conducted inquest over the dead body of Srinivas in terms of Ex-P6.
(r). PW-23 was the ASI of Konanuru Police Station, who recorded the statement of PW-1 in the clinic, based on which, FIR-Ex-P17 was registered.
(s). PW-24 was the CPI, Arakalgoodu, who conducted inquest over the dead body of deceased Babu in terms of Ex-P5.
(t). PW-25 was the Doctor, Primary Health Centre, Agile, Hassan Taluk, who conducted the post-mortem over the dead bodies of Srinivas and Babu in terms of Exs-P18 and P19.
(u). PW-26 was the PSI of Saligrama Police Station, who arrested the accused on 07.01.2008. According to this witness, where they were on patrolling duty, they found the accused persons making preparations to commit dacoity near Berya village and they were apprehended and on search, they found that accused No.1 was wearing a belt, a pouch containing spear, accused No.2 was holding a club and he was also wearing a belt with spear and accused No.3 was in possession of a club and a spear. These weapons were seized under the mahazar Ex-P8. This witness has further stated that pursuant to the voluntary statements of the accused, the weapons M.Os.2 and 3 were recovered under mahazar Ex-P9.
(v). PW-28 is the CPI, who conducted part of the investigation and PW-29 is the Doctor who treated PW-1 and issued the wound certificate Ex-P21.
(w). PW-30 is the CPI, who laid the charge sheet against the accused.
(x). PW-31 is the Doctor, who treated the injured PW-15 and issued the wound certificate Ex-P30.
(y). PW-33 is the Police Inspector of Sira Police Station, who conducted the investigation in Cr.No.214 of 2006 and recovered two spears M.O.s.14 and 15.
13. Based on these evidences, the trial court was of the view that the prosecution has proved its case. The trial court relied on the direct testimony of PW-1 and PW-15 and came to the conclusion that both the eye witnesses have identified the accused and have deposed about the overt-acts committed by them, which is suitably corroborated by the recovery of the weapons as evidenced in Ex-P8 and Ex-P9 and further relying on the corroborating testimony of PW-10 and PW-11, found it proper to convict the accused for both the offences under Sections 396 and 397 Indian Penal Code.
14. The learned counsel for the appellants has seriously disputed the findings recorded by the trial court. He contends that the identification evidence relied on by the prosecution is totally unreliable. The accused were arrested in some other offences more than three years after the incident. The investigating agency did not conduct any test identification parade and therefore the identification made by the witnesses in the court for the first time after a lapse of more than six years could not have been given any credence. Even with regard to the recovery, the learned counsel submits that the prosecution has relied on the joint statements of the accused. The watches and the weapons are recovered at the instance of all the three accused jointly. Therefore, the said recoveries cannot be held against any one of the accused. Further, he contends that the presence of PWs-10 and 11 at the spot of occurrence is highly doubtful. He further contends that merely because other cases were registered against the accused, the trial court was prejudiced against the accused and therefore, the impugned judgment suffers from serious error and infirmity warranting interference by this Court.
15. The learned HCGP however has argued in support of the impugned judgment. She submits that the prosecution has rested its case on the direct testimony of two injured eye witnesses. There is no proposition of law that the identification made by the witnesses in the court cannot be relied on for want of test identification parade. The identification made by these witnesses has not been discredited and no circumstances are brought out to show that these witnesses were not in a position to identify the accused during the occurrence which lasted for nearly 15 minutes as stated by the witnesses. Further, the testimony of these witnesses is fully corroborated by PW-10 and PW-11. Both these witnesses have explained the circumstances under which they were present at the spot of occurrence. The recovery evidence directly connects the accused to the alleged offence, thereby establishing the guilt of the accused beyond reasonable doubt. Hence, she prays for dismissal of the appeal.
16. We have considered the submissions and have examined the records.
17. In so far as the contention of the learned counsel regarding identification of the accused is concerned, it is now well settled that the substantive evidence is the evidence of identification in the court and the test identification provides only corroboration to the identification of the witnesses in the court, if required. It is also equally settled that the test identification relates to the stage of investigation and the omission to conduct the same does not always affect the credibility of the witnesses who identify the accused in the court. (STATE (NCT OF DELHI) vs. NAVJOT SANDHU ALIAS AFSAN GURU, (2005) 11 SC 600).
18. Undisputably in the instant case, PW.1 and PW.15 are the injured witnesses. Their presence at the spot of occurrence is beyond any manner of doubt. PW-1 was a cashier in the said petrol bunk station and PW-15 was a plumber who had come for plumbing work in the petrol bunk. He has stated that on the date of the incident, he was sleeping in the said service station. Both these witnesses have stated that they sustained injuries at the hands of the accused. The evidence of these witnesses goes to show that when the accused persons knocked the door, PW-1 was the one, who opened the door. He has specifically stated in his evidence that before opening the door, he put on the light and in that light, he saw the accused persons armed with weapons. It is nobody’s case that the assailants had put on masks or that they had covered their faces. PW-1 as well as PW-15 have stated that the occurrence lasted for about 15 minutes and both these witnesses have narrated the overt-acts committed by each of the accused, which finds corroboration in the medical evidence as well as in the weapons recovered at the instance of the accused. The evidence of these witnesses indicates that there was ample opportunity for both these witnesses to identify the accused. There was ample light. From their evidence, it can be gathered that the impression of the accused had imprinted in their mind. Moreover, both the witnesses having sustained injuries at the hands of the accused, there is no reason to doubt the identification made by them in the court. Even otherwise, on going through their evidence, we find that the defence has not been able to shake their veracity with regard to the identification of the accused. In the cross-examination, both these witnesses have deposed even about the clothes worn by the accused and have also stated about the size of the person and other details of the accused. All these circumstances, therefore, in our opinion, inspire confidence to hold that there was ample opportunity for these witnesses to notice and identify the accused. Therefore, having regard to the circumstances brought out in their evidence, we are of the view that the testimony of these witnesses could be safely relied on in proof of the identification made by them in the court.
19. Coming to the evidence relating to the recovery of weapons, though the learned counsel has seriously contended that the recoveries were effected based on the joint statements, yet on going through the records, it is noticed that after the arrest of the accused, their individual voluntary statements were recorded, wherein the respective accused volunteered to disclose the place, where they had kept or hidden the robbed articles. Therefore, even this contention cannot be accepted. No-doubt it is true that it has come in the evidence that all the three accused persons led the panch witnesses and the police team to the house of accused No.3 and the watches and other robbed articles pertaining to this case were produced by accused No.3, but this evidence, in our view, does not weaken the evidentiary value of the incriminating objects recovered at the instance of the accused. On this question, we may profitably refer to the law laid down by the Hon’ble Supreme Court of India in STATE (NCT OF DELHI) V/S. NAVJOT SANDHU ALIAS AFSAN GURU, (2005), 11 SC 600, wherein at para 145, it is laid down that:
“Joint disclosures, to be more accurate, simultaneous disclosures, per se, are not inadmissible under Section 27. “A person accused” need not necessarily be a single person, but it could be plurality of the accused. It seems to us that the real reason for not acting upon the joint disclosures by taking resort to Section 27 is the inherent difficulty in placing reliance on such information supposed to have emerged from the mouths of two or more accused at a time. In fact, joint or simultaneous disclosure is a myth, because two or more accused persons would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. Or, in rare cases, both the accused may reduce the information into writing and hand over the written notes to the police officer at the same time. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27.”
In the light of the above proposition of law and in view of the facts discussed above, the contention raised by the learned counsel on this count is also rejected.
20. Assailing the evidence of PWs-10 and 11, the learned counsel for the accused has contended that the presence of these witnesses at the spot of occurrence is highly doubtful and therefore, their evidence cannot be ascribed any weight. We are not prepared to accept this submission for the obvious reason that on reading the evidence of these witnesses, we find that PW-10 and PW-11 have given justifiable reason for their presence at the spot of occurrence. The reasons assigned by them in their evidence have not been challenged in the cross- examination. The manner in which these witnesses have narrated the incident itself inspires confidence to hold that they were actual eye witnesses to the incident. Moreover, the records indicate that these witnesses had been to the spot on the same day and volunteered to give their statements. They have specifically stated in their evidence that the Investigating Officer recorded their statements on the next day. The promptitude with which the witnesses have given their statements lends assurance to hold that these witnesses were actually present at the spot and they have narrated the facts before the court as witnessed by them. The testimony of these witnesses regarding the occurrence and the identification of the accused has not been discredited to any extent. No inconsistency or improvement has been brought out in their cross-examination to suggest any variation in the statements made by them before the police soon after the occurrence. For all these reasons, we find the testimony of these witnesses fully reliable and trustworthy. Their evidence lends full corroboration to the testimony of PW-1 and PW-15 not only with regard to the overt-acts committed by the accused, but also with regard to the identification of the accused. Therefore, we have no hesitation whatsoever in accepting the evidence of these witnesses in proof of the culpability of the accused for the offences charged against them.
21. Thus, on consideration of all the above facts and circumstances, we are satisfied that the findings recorded by the trial court are just and proper. The trial court has appreciated all the aspects of the case in right perspective. The findings recorded by the trial court are based on the evidence, which is legally admissible in the eye of law. The recovery is duly proved. The identity of the accused is established beyond reasonable doubt. It is proved in evidence that during the occurrence, the accused committed the murder of two employees of the petrol bunk. They caused injuries to PW-1 and PW-15. The injuries are duly proved by examining the medical officer as well as surrounding circumstances brought out in the evidence. The watches said to have been recovered at the instance of the accused are identified as belonging to both the deceased viz., Srinivas and Babu. Thus the prosecution has established all the ingredients constituting the offences punishable under sections 396 and 397 Indian Penal Code. We do not find any error or infirmity whatsoever in the impugned judgment. We do not find any merit in the contention urged by the appellants, consequently, the appeal is liable to be dismissed. Hence, we pass the following order:-
Crl.A.No.770 of 2012 is dismissed. The impugned judgment dated 12.06.2012 passed by the II Addl. Fast Track Court and Sessions Judge, Hassan in S.C.No.148 of 2009 is confirmed.
Sd/- Sd/-
JUDGE JUDGE *JJ/MN/-