IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF MARCH 2019 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CRIMINAL APPEAL No.1340 OF 2015 C/w. CRIMINAL APPEAL No.506 OF 2014 & CRIMINAL APPEAL No.1095 OF 2018 In Criminal Appeal No.1340/2015 BETWEEN:
Kalappa @ Kala @ Ravi S/o. Late Munivenkatappa, Aged about 35 years, R/at Dyavaragondanahalli, Yalagundamuttku, Allalli Post, Manchenahalli Hobli, Gowribidanuru Taluk, Chikkaballapura District, Native Place; II Stage, 6th Cross, Kadirenahalli Cross, Bhavaninagara, Banashankari, B’lore, Pin:560050. …Appellant (By Sri. Mohan Kumar D, Advocate) AND:
The State of Karnataka Through Doddaballapura Police Station, Represented by the State Public Prosecutor, High Court Buildings, Bengaluru-560001. …Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the judgment and order of conviction dated:21.12.2013 passed by the IV Addl. District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru in S.C.No.355/2011 – convicting the appellant/accused No.1 for the offence punishable under Section 396 R/w 34 of IPC. The appellant/accused No.1 is sentenced to undergo R.I. for 10 years and shall pay fine of `5,000/- in default to pay the fine amount shall undergo R.I. for 6 months for the offence punishable under Section 396 R/w 34 of IPC. The appellant/accused No.1 prays that he be acquitted.
In Criminal Appeal No.506/2014 BETWEEN:
Raja @ Hallikeredoddi Raja S/o. Puttaiah, Aged about 33 years, Residing at Hallikeredoddi, Kasaba Hobli, Kanakapura Taluk, Ramanagara District, Pin Code No.571450. …Appellant (By Sri. P.D.Subramanya, Advocate) AND:
State by Doddabalapura Rural Police, Represented by SPP, High Court of Karnataka at Bengaluru, Pin Code: 560001. …Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated:21.12.2013 passed by the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru in S.C.No.355/2011 – convicting the appellant/accused for the offence punishable under Section 396 R/w 34 of IPC. And the appellant/accused is sentenced to undergo R.I. for 10 years and shall pay fine of `5,000/- and in default to pay the fine amount the accused shall undergo R.I. for six months for the offence punishable under Section 396 R/w 34 of IPC. and the appellant/accused prays that he be acquitted.
*** In Criminal Appeal No.1095/2018 BETWEEN:
Raja @ Puchana @ Banashakari Raja, S/o. Sampangi, Aged about 34 years, At 6th Cross, 8th Main, B.Channasandra, Besides Ramamurthynagara Bridge, Kasturinagar, (resident in the rent house of Venkatesh) Native Place, 7th Stage, 6th Cross, Bhavani nagara, Banashankari, Bengaluru-560070. …Appellant (By Sri. R.V.Rajashekara, Advocate) AND:
The State of Karnataka By Dodaballapura Rural Police Station, Bengaluru-560 074.
Represented by the State Public Prosecutor, High Court Building, Bengaluru-560001. …Respondent (By Sri. Divakar Maddur, HCGP) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the impugned judgment of conviction and order of Sentence dated:21.12.2013 passed by the IV Additional District and Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru in S.C.No.355/2011 – convicting the appellant/accused No.2 for the offence punishable under Section 396 R/w 34 of IPC. The appellant/accused No.2 is sentenced to undergo R.I. for 10 years and shall pay fine of `5,000/- each and in default to pay the fine amount the accused No.2 shall undergo R.I. for 6 months for the offence punishable under Section 396 R/w 34 of IPC. and the appellant/accused is prays that she be acquitted.
*** These Criminal Appeals having been heard and reserved for Judgment on 18.02.2019, coming on for pronouncement of Judgment this day, the Court delivered the following:
JUDGMENT The appellants in these three appeals were accused No.1 (in Criminal Appeal No.1340/2015), accused No.4 (in Criminal Appeal No.506/2014) and accused No.2 (in Criminal Appeal No.1095/2018), in S.C.No.355/2011, pending before the learned IV Addl.District & Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru, (hereinafter for brevity referred to as `trial Court’). The accused/appellants were convicted by the trial Court by its judgment dated 21.12.2013, for the offence punishable under Section 396 read with Section 34 of Indian Penal Code, 1860 (hereinafter for brevity referred to as `IPC’) and were sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of `5,000/- each and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. Being aggrieved by the said judgment of conviction and order on sentence, the appellants have preferred these appeals.
2. The summary of the case of the prosecution in the trial Court is that on 2.7.2011, at about 8.30 p.m., accused Nos.1 to 4, along with accused No.5, entered the house of CW-1 – Bhagyamma at Gaddambachhehalli village, in the garden land of Venkata Reddy, holding deadly weapons like knife, club and iron rods in their hands. All the accused threatened CWs.1 to 3, who were inmates of the said house by showing them the weapons they were holding, locked them in a room and robbed golden ornaments worth `80,000/- and a cash of `10,000/- and one mobile phone and in the process, accused No.5 stabbed Parameshwaraiah, husband of CW-1 Bhagyamma, on his abdomen with knife causing bleeding injuries. The said injured while under treatment, succumbed to the injures on 5.7.2011. Thus, the accused committed the alleged offence under Section 396 of IPC.
3. The accused were charged for the offence punishable under Section 396 read with Section 34 of IPC. Since the accused pleaded not guilty, trial was held, wherein the prosecution examined twentyone witnesses as PW.1 to PW-21 and got marked documents from Exs.P-1 to P-13 and material objects at MO-1 to MO-6. From the accused side, neither any witness was examined nor any documents were marked as exhibits. After hearing both side, the trial Court by its impugned judgment dated 21.12.2013, convicted the accused for the alleged offences and sentenced them accordingly.
4. Lower Court records were called for and the same were placed before this Court.
5. During the pendency of these appeals, Sri P.D.Subramanya, learned counsel from the panel of High Court Legal Services Committee, Bengaluru, was appointed as a counsel for the appellant in Criminal Appeal No.506/2014 to prosecute the appeal on behalf of the appellant/accused therein.
6. During the pendency of the appeal before this Court, the respondent-State has filed I.A.No.1/2019 under Section 391 of Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `Cr.P.C.), seeking permission for the respondent/State to mark the voluntary statements of accused Nos. 1 to 4 through PW-20, as an additional evidence. Since the appellants have filed their statement of objections to the said application, considering the nature of the application, the same was taken up for its hearing and disposal along with the main appeal.
7. Heard the arguments from both side, perused Memorandum of Appeal, impugned judgment and Lower Court Records.
8. For the sake of convenience, the parties would be referred to as per their ranks before the trial Court.
9. PW-1 – Smt.Bhagyamma in her examination-in- chief has stated that she with her family was residing at Kooganalli village, Gaddambachahalli village, in the garden land of one Sri Venkata Reddy. On 2.7.2011, at about 8.30 p.m., when herself, joined by her husband and daughters were in their house, due to the barking of the dog, she opened the front door of the house, at that time, five persons rushed inside their house and shown them chopper, iron rod and club and pushed them in a room and robbed golden articles which they were wearing, including ear rings, ear studs, bugudi, Mangalya chain, three rings and also took away cash of `10,000/- that was kept in a bag. Thereafter, they caught hold of her husband and demanded him to give away cash and jewellery. When her husband stated that he did not possess any of them, the accused assaulted him and stabbed to the stomach with a knife, due to which, the intestine came out. She rushed to the rescue of her husband. All the accused went away by locking the front door of the house.
Thereafter, they called one Chennakrishnegowda, through phone and stated to him about the incident. The said Chennakrishnegowda and other villagers who have come to their house, shifted her husband to the Hospital in an Ambulance, where the injured succumbed to the injuries after five days of the incident.
The witness has further stated that after lodging the complaint, one day, the police called herself and her two daughters to the police Station where they shown them accused Nos. 1 to 4. These people identified those accused as the one who had committed the alleged act.
The witness has also stated that on the next day after she lodging the complaint, the police visited the spot and drew the scene of offence panchanama as per Ex.P-2 and from the spot, they seized one club. The witness also has stated that the police returned her one golden chain, two big and three small golden gundu and small golden gundu and two lined black karimani sara(chain), containing sixteen small gundu and one golden tali (mangalya). The witness producing them in the Court, has identified them from MO-1 to MO-5. She has also identified a shirt at MO-6 as the one worn by her husband at the time of incident.
She was subjected to a detailed cross examination wherein she adhered to her original version.
10. PW-2 - Ms.Mouna and PW-3 - Smt.Mamatha, the daughters of PW-1 in their examination-in-chief, have stated that on the alleged date of incident, that was on 02.07.2011, at about 8.30 p.m. while they were in their house along with their mother and father, at the barking of the dog, their mother opened the door, at which time, five persons rushed inside the house and showing them chopper, iron rod and club, robbed their golden ear rings, ear studs, bugudi, mangalya chain, three rings, and a cash of `10,000/- and also mangalya chain, golden tali and gundu. In the process, they assaulted PW-2. The witnesses have also stated that one of the accused stabbed their father on his stomach with a knife. After robbery, all the accused went away by locking the front door of the house. Thereafter, these people called Chennakrishnegowda through phone and revealed him about the incident. Who, joined by the villagers, came to their house and shifted their father in an ambulance to Columbia Hospital and thereafter to Bengaluru, where their father succumbed to the injures five days afterwards. The witnesses have also stated that their mother lodged a complaint with the police as per Ex.P-1.
Both these witnesses have further stated that after lodging of the complaint, one day the police called them to the police station, where they identified accused Nos.1 to 4. The police also called them to identify the golden articles. Both these witnesses have identified MO-1 to MO-6 in the Court.
They adhered to their original version even in their cross-examination also.
11. PW-4 – Chennakrishnegowda, in his evidence has stated that he knows deceased Parameshwaraiah and his family who were residing in the garden land of Venkata Reddy. On the date of the incident, while he was in his house, Smt.Mamatha – the daughter of Parameshwaraiah, called him over phone and stated that some dacoits had entered their house and stabbed their father with a knife and robbed the golden ornaments from them and left the place by closing the main door from outside. Thereafter, himself along with Thimmegowda went there and opened the main door. He along with Thimmegowda also shifted the injured to the Government Hospital at Doddaballapura and as per the advise of the doctors therein, they shifted the injured to Columbia Asia Hospital at Bengaluru in an ambulance and returned to the village. The police came to the spot and drew scene of offence panchanama as per the spot shown by PW-1, which scene of offence panchanama, this witness has identified as Ex.P-2. He also stated that after four or five days of the incident, injured Parameshwaraiah died in Srinivasa Nursing Home. He had been to the said hospital where the police drew an inquest mahazar as per Ex.P-3 in his presence.
12. PW-5 – Krishnamurthy, in his evidence has stated that PW-1 is his elder sister and PW-3 is his wife and deceased Parameshwaraiah is his brother-in-law. The deceased and his family were residing in the garden land at Gadambachhehalli in a land belonging to Venkata Reddy. On 2.7.2011, he had sent his wife to her parents’ house for delivery. On the same day, his wife called him and told about the alleged incident of dacoity. He went to the said house at 9.00 p.m. to 9.15 p.m. The police were present in the place and injured brother-in-law was shifted to the hospital. He enquired and collected more details about the incident from his wife who told him that dacoits entered their house and robbed them of valuables showing chopper and stabbed Parameshwaraiah and left the place by locking the door from outside. Thereafter, the owner of the land at the call of PW-3 went there and opened the door. The witness has also stated that on the next day, he went to the hospital and saw his ailing brother-in-law and three days after, the injured died.
13. PW-6 – Maregowda, stated that deceased Parameshwaraiah who was his distant relative had sustained injuries in a dacoity case and died in the hospital.
14. PW-7 – Rathanlal, in his evidence has stated that he has been doing the Pawn Broker business in the name of Santhosh Bankers. The mahazar marked at Ex.P-4 bears his signature. On 12.8.2011, the police along with accused No.1 – Kalappa, came to his shop and the police produced a slip which was in the possession of Kalappa. Through that slip, wife of said Kalappa had pledged one chain which he produced before the police. The said chain was seized by police by drawing a mahazar at Ex.P-4. The witness has stated that he can identify the chain if shown to him. He has also identified the chain at MO-1 produced by PW-1 in the Court.
15. PW-8 – Manjunath K., has stated that he was also present on 12.8.2011 when the police drew panchanama as per Ex.P-4 in the shop of Santhosh Bankers. The witness also stated that on the said day, the police had brought accused Kalappa to the said shop, where at a slip produced by them, Rathanlal, the shop keeper, produced a chain before them which was seized by the police by drawing seizure panchanama as per Ex.P-4, for which, he has also put his signature. The witness has identified the chain produced by PW-1 in the Court at MO-1 as the chain seized under Ex.P-4.
16. PW-9 – Dr.Santhosh, Senior Specialist Surgeon at Srinivasa Hospital, Balepete, Bengaluru, in his evidence has stated that on 3.7.2011 at 12.05 a.m., Sri Parameshwaraiah, a patient was brought from Columbia Asia Hospital by his relatives with history of stabbed injury on his abdomen. He examined the patient and noticed two wounds on the abdomen. The injury was caused to small intestine. The patient was treated suitably. However, on 5.7.2011, the patient developed sudden breathing difficulty and inspite of best effort by the doctors, the patient could not survive. As such, he was declared dead at 8.45 p.m. on 5.7.2011. Body was handed over to the concerned Police Inspector. Death information was sent to Doddaballapura Police Station, which intimation he has identified at Ex.P-5.
17. PW-10 – Dr.Dilip Kumar K.B., has stated that he has been working at Victoria Hospital, Bengaluru. On 6.7.2011, he has conducted the post mortem examination on the dead boy of Parameshwaraiah at the request of the complainant-police. The clothes worn by the deceased were handed over to the police. The witness has given a detailed description of the injures found on the deceased which also included surgical stapled wound on the front of abdomen at its middle measuring 20 cm., penetrating stapled wound for a length of 5 cm. on the right side of upper abdomen and removal of the stapled revealed suture of underlined tissues and further removal of staples revealed the suture of intestine. He also noticed a penetrating stapled wound on the left side of upper abdomen. He has opined that all the injures found on the deceased were ante-mortem in nature and opined that those injuries might have been caused by using sharp weapon like knife. He also opined that cause of death was due to respiratory failure as a result of injuries sustained to the abdomen. He has identified the post mortem report issued by him at Ex.P-6.
18. PW-11 – H.Rajanna, stated that on 24.7.2011, at about 10.00 a.m., Harohalli police had brought the accused Nos.1 to 4 to their village. Those accused persons led him and also CW-18 – Somashekar along with police to the Mango garden of Venkata Reddy and shown them the place as the place where they committed dacoity and stabbed one person. The police drew mahazar on the spot as per Ex.P-7 and took their signature.
19. PW-12 – Dr.Gajanana, has stated that at the relevant point of time, he was working as a Medical Officer at Srinivasa Hospital, Balepete, Bengaluru. On 3.7.2011, at about 12.05 a.m., while he was on night duty along with one Dr.Raghavendra, an attendar brought the injured Parameshwaraiah for treatment, who had sustained injuries on his right abdomen. The said patient was attended by Surgeon Dr.Santhosh and surgery was done. He has also stated that the said injured has given statement before him. Dr.Rohit has written the said statement of the injured. The witness has identified the said statement at Ex.P-8.
20. PW-13 – Prabhakar M., a Police Constable of the respondent-police, has stated that upon the instruction by his superior, he, joined by another Police Constable, searched for the culprits at Somanahalli, Talaghattapura and thereafter, based on credible information, they noticed accused Nos.1 and 2 near Banashankari Bus Stand and brought them and produced them before their Deputy Superintendent of Police, Ramanagara Sub-Division and submitted a report as per Ex.P-9.
21. PW-14 – H.A.Devaraju, an Assistant Sub- Inspector of Police has stated that, based on the instruction by his superior, he, joined by his colleagues, searched for the other accused in the matter and based on credible information, arrested accused Nos.3 and 4 near Vani Talkies at Kanakapura and produced them before their Deputy Superintendent of Police, Ramanagara Sub-Division, along with their report at Ex.P-10.
22. PW-15 – R.Narayanaswamy, the Police Constable, has stated that on 6.7.2011, as per the instructions of his superior, he went to the Cottonpet Police Station and brought the death memo as per Ex.P-
5 and produced the same before his Circle Inspector on the same day. Thereafter, he went to Victoria Hospital and kept watch on the dead body of deceased Parameshwaraiah till it was handed over to the relatives of the deceased as per the instructions of his superior.
23. PW-16 – H.N.Rayanna, has stated that while working as Sub-Inspector of respondent-police station, he recorded the statement of the complainant on 2.7.2011, at about 12.30 midnight as per Ex.P-1 when she appeared before him in the station and registered the case in their station Crime No.175/2011, under Section 397 of IPC. On 3.7.2011, he got the FIR as per Ex.P-11 and submitted to the Court.
24. PW-17 – Ranganath, the Police Constable, has stated that he accompanied the Circle Inspector i.e., CW-34 on 3.7.2011 to Srinivasa Hospital at Bengaluru, to record the statement of injured Parameshwaraiah who was inpatient in the said hospital. As per the statement given by the injured Parameshwaraiah, he wrote his statement in the presence of the doctor which he has identified at Ex.P-8.
25. PW-18 – M.Sham, then Police Sub-Inspector of Harohalli, Ramanagara District, has stated that on 22.7.2011, himself joined by his staff members while tracing the accused in their station Crime No.154/2011, traced and arrested near Banashankari Bus Stop accused Kala and accused Raja whom he has identified as accused Nos.1 and 2 in this case. After their arrest, he produced them before his Deputy Superintendent of Police along with his report at Ex.9.
26. PW-19 – C.R.Ranganath, then Police Circle Inspector of Doddaballapura police station, has stated that on 3.7.2011, after he took up further investigation in this matter, he visited the spot and drew a mahazar in the presence of panchas as per Ex.P-2. He also visited Srinivasa Hospital at Bengaluru and recorded the statement of injured Parameshwaraiah as per Ex.P-8 through PW-17. He received the death memo of Parameshwaraiah produced before him and conducted inquest mahazar on the dead body of Parameshwaraiah as per Ex.P-3. He also recorded the statement of CW-8 to CW-10 and due to his transfer, he handed over the investigation to CW-35.
27. PW-20 – D.Mahadeva, the Circle Police Inspector of Harohalli Circle at the relevant point of time has stated that, after he taking up further investigation in this matter on 23.7.2011, on the basis of voluntary statement of accused Nos.1 to 4 in Crime No.175/2011 of Doddaballapura Rural Police Station, the accused led them to the spot of the offence in the instant case, where he drew a mahazar as per Ex.P-7 in the presence of panchas. Again on the voluntary statement of accused persons, they led them to the house of Kala @ Kalappa. The said house was belonging to accused No.1 and these people went in the house and produced one golden ring pertaining to this case. He seized the same and drew a mahazar in the presence of panchas. Again on the voluntary statement of accused No.4, on 25.7.2011, the accused led them to Urban Co-operative Society, Kanakapura, where the accused pledged the golden articles, six golden gundu, seventeen small golden gundu, one golden kasu, one golden Mangalya in the name of Puttamma and he seized the same in the presence of panchas. A true copy of the mahazar was marked at Ex.P-12.
28. The witness has further stated that on 26.7.2011, he called the complainant – Smt.Bhagyamma to the police station for identification of the accused and the ornaments. Accordingly, Smt.Bhagyamma identified accused Nos.1 to 4 and golden ornaments at MO-1 to MO-5. On 5.8.2011, he submitted case file along with the accused and seized articles and documents to Circle Police Inspector, Doddaballapura.
29. PW-21 – Basava Prakash, Assistant Secretary in Urban Co-operative Credit Society, Kanakapura, has stated that on 5.7.2011, one Smt.Puttamma and Raju went to their Society and pledged six golden big gundu, seventeen golden small gundu and two gold kasu and pledged the same and borrowed a loan of `10,000/-. He identified the said Raju as accused No.4. The witness has further stated that on 25.7.2011, Circle Inspector of Harohalli police came to his Society along with accused and on identifying him, the accused Raju told that he had pledged the ornaments in their society. The witness has stated that he produced the ornaments before the police, which they seized by drawing a mahazar as per Ex.P-12. The witness has identified those ornaments at MO-2 to MO-5 and photo of another ornament at Ex.P-13. The witness produced a Promissory Note and Ledger extract and got them marked at Ex.P-14 and Ex.P-15.
30. In the light of the above, it was the argument of learned counsel for the appellants that they do not dispute the occurrence of alleged incident of dacoity in the house of PW-1 on 2.7.2011 at about 8.30 p.m. and also stabbing of deceased Parameshwaraiah and he succumbing to the injuries on 5.7.2011 while under treatment in the hospital. However, they strongly deny any of the accused were the members of the alleged team of dacoity who are said to have committed the alleged offence.
In that regard, it was the first argument of learned counsels for the appellants that in the absence of accused being known persons to any of the prosecution witnesses prior to the incident or that any of the witnesses identifying any of the accused based on any unique identification mark upon the accused, the alleged identification of the accused in the police station cannot be believed. In that regard, the appellants also relied upon the judgment of Hon’ble Apex Court in Dana Yadav Alias Dahu and others –vs- State of Bihar, reported in {(2002 7 SCC 295}. Learned counsels for the appellants also submitted that alleged recovery said to have been made at the instance of the accused also does not inspire any confidence to believe and that there are discrepancies in the statement of the witnesses and the evidence of the Investigating Officer regarding recovery, as such, the alleged recovery also not proved by the prosecution.
31. Per contra, learned High Court Government Pleader in his arguments submitted that in view of the fact that PWs.1, 2 and 3 identifying the accused in the police station and also recovery since has been made at the instance of the accused, the identity of the accused cannot be doubted. Stating that holding Test Identification Parade is not mandatory, learned High Court Government Pleader relied upon the judgment of Hon’ble Apex Court in Ashok Debbarama alias Achak Debbarama –vs- State of Tripura, reported in 2014 Crl.L.J. 1830.
32. Regarding the incident of alleged dacoity in the house of deceased Parameshwaraiah, the evidence of PWs.1, 2 and 3 who were the inmates of the said house at the time of alleged incident and from whose possession, the valuables, including the ornaments, were said to have been robbed by the accused, have come in uniformity. As already observed, all these three witnesses have spoken that the alleged incident of dacoity has taken place in their house on 2.7.2011 at about 8.30 p.m. It is none of the accused’s case that PWs.1, 2 and 3 were not the inmates of the said house. In their cross-examination, a general denial suggestion was made, which, these witnesses have not admitted as true. As such, the alleged incident of dacoity in the house of deceased Parameshwaraiah, whose wife is PW-1 Smt.Bhagyamma, in the garden land of Venkata Reddy of Koogenahalli village, Gaddambachhehalli, on 2.7.2011, at about 8.30 p.m., stands proved.
33. The evidence of PW-17 and PW-19 that they have recorded the statement of injured Parameshwaraiah in Srinivasa Hospital at Bengaluru, on 3.7.2011, as per Ex.P-8, is also not in dispute. The said statement at Ex.P-8 is in consonance with the evidence of PWs.1, 2 and 3 about the alleged incident. In his statement at Ex.P-8, deceased Parameshwaraiah is also shown to have stated that on 2.7.2011, at about 8.30 p.m., in their house while his wife was serving food to him and her two daughters were at home, five unidentified persons boldly entered their house and robbed the ornaments, including the cash and in the process, they stabbed on his stomach causing bleeding injuries.
34. PWs.1, 2 and 3 also given a detailed account of the ornaments and other valuable articles robbed by the intruders, which according to them included a cash of `10,000/-, Mangalya chain, ear rings, three finger rings, two golden kasu, six golden gundu and eighteen golden small gundu. Except the cash, all other articles, all these three witnesses have identified at MO-1 to MO-
5. Further these witnesses have also stated that in the process of robbing them, the accused also stabbed Parameshwaraiah, the husband of PW-1, causing him grievous injuries.
35. The evidence of PW-4 – Chennakrishnegowda shows that immediately after the incident, in response to a telephonic call made to him by PW-3 Smt.Mamatha, he joined by one Thimmegowda, led to the house of Parameshwaraiah and noticing that the incident of dacoity has taken place in the said house and Parameshwaraiah had sustained stab injuries inflicted to him by the dacoits, he shifted the injured to the hospital.
Similarly, the evidence of PW-5, the younger brother of PW-1, who also has stated that after the incident, he also went to the spot and heard about the incident, go to show that the incident of dacoity has taken place in the house of Parameshwaraiah on 2.7.2011 at 8.30 p.m. and the dacoits also stabbed Parameshwaraiah with a knife on his stomach region causing bleeding injuries to him and that dacoits robbed the inmates of the house with valuables.
36. The death of Parameshwaraiah due to the injuries sustained by him in the incident is also not in dispute. Apart from the evidence of PWs.1 to 4 to the effect that Parameshwaraiah was stabbed by the dacoits in the incident causing him bleeding injuries and that while under the treatment in the hospital, he succumbed to the injuries on 5.7.2011, the evidence of PW-9 Dr.Santhosh also go to show that injured Parameshwaraiah was admitted to their hospital on 3.7.2011 with a history of stab injury on his abdomen. After noticing that the injured had two wounds on the abdomen, one on the right side and another on the left side just below the chest and there was injury to small intestine also, the witness has said that, while under treatment, the patient succumbed to the injures on 5.7.2011. The post mortem report at Ex.P-6, coupled with the evidence of PW-10, the doctor who conducted the autopsy also go to show that the patient died due to respiratory failure, as a result of injuries sustained to his abdomen.
Thus, these evidences clearly go to establish that in the act of dacoity, the dacoits also stabbed and caused grievous injury to Parameshwaraiah, to which, he succumbed on 5.7.2011. Since the evidence of prosecution witnesses, more particularly PWs.1, 2 and 3 and statement of the deceased, which is at Ex.P-8, go to show that the dacoits knowingly and intentionally have inflicted fatal injury upon Parameshwaraiah, the said act of the dacoity has also included the act of committing murder of Parameshwaraiah, thus, making the said act punishable under Section 396 of IPC.
37. The next question to consider is whether the prosecution has proved beyond reasonable doubt that it was the accused and accused alone who have committed the said offence punishable under Section 396 of IPC.
Admittedly, the accused were strangers even to the victims to the incident i.e., deceased Parameshwaraiah and PWs.1, 2 and 3. PW-1 – the complainant in her complaint at Ex.P-1 has categorically stated that all the accused were strangers and these people had never seen them. Except stating that among five culprits, the age of four of them was between 25 to 30 years and one person was aged about 50 years and they were conveying in Kannada and Telugu language, no other details regarding the identity of the accused or any unique mark noticed with the accused has been stated in the complaint.
38. The evidence of PWs.2 and 3 does not add anything more to what is stated by PW-1 in her complaint at Ex.P-1. None of these witnesses who are the only eye witnesses to the incident have any where stated as to they noticing any of the special or unique identification marks on the accused so that they could remember their identity and identify them at a later stage. On the contrary, all these three witnesses have stated that after the incident, after some time, when the police called them to the police station, accused Nos.1 to 4 were present in the police station and these people identified them as the accused who committed the alleged dacoity in their house. Their statement was denied in their cross-examination from the accused side. However, nothing more was elicited in the evidence of these witnesses to bring any details as to based upon what identification marks or how they could identify accused Nos.1 to 4 as the only persons who committed the alleged act of dacoity in their house.
39. In the instant case, the alleged identification of the accused by PWs.1, 2 and 3 was only in the police station. Admittedly, no Test Identification Parade was conducted in the case. In Dana Yadav’s case (supra), while discussing the principle on Test Identification Parade under Section 9 of the Evidence Act, 1872, the Hon’ble Apex Court at Paragraph-38 of the judgment was pleased to observe as below :
“38. In view of the law analysed above, we conclude thus:
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini-inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case the court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is the mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so- called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact the prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.
(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of the accused by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable dispatch for the purpose of enabling the witnesses to identify either the properties which are the subject- matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.
In Ashok Debbarama’s case (supra), the Hon’ble Apex Court at Paragraph-17 of the judgment was pleased to hold that object of Test Identification Parade under Section 9 of Evidence Act is to enable the witnesses to identify unknown offender. Holding of Test Identification Parade is not the rule of law. Not holding of the parade cannot be a ground to discard the evidence of witnesses who are reliable. It was further observed by the Hon’ble Apex Court that identification parade is not a substantive evidence which can be used only to corroborate identification of accused by witness in Court.
From the above two judgments of the Hon’ble Apex Court, it is clear that holding of Test Identification Parade is not mandatory or non-holding of Test Identification Parade does not make the case of the prosecution doubtful or non-trustworthy. However, if the evidence in a Court to the identity of the accused is trustworthy, then, not holding of Test Identification Parade would not affect the case of the prosecution.
40. In the instant case, the witnesses who can speak about the identity of the accused are only PWs.1, 2 and 3 since they were the inmates of the house which was the subject matter of dacoity in the incident. All the three of them have claimed that they have seen the incident and affected by it and were put under threat by the alleged dacoits who robbed them of valuables. All these three witnesses have also stated that they have identified accused Nos.1 to 4 in the police station as the one who committed the alleged act in their house. However, none of these witnesses have any where stated as to how they could identify the accused when in fact the alleged dacoits were totally strangers and unknown to them. They have not even stated as to with any special or unique identification marks or gestures or behavior of the culprits they could remember their identity. Added to that, it is also not the case of these witnesses that when they claimed to have identified accused Nos.1 to 4 in the police station, those accused were mixed in a group of persons and that they could identify these four accused particularly among them. On the other hand, it is their evidence that in the police station, police shown them only four accused i.e., accused Nos.1 to 4 and the alleged robbed articles stating that they have been recovered by them. It is because the articles are said to have been recovered and only four accused were shown to them by police, these witnesses have identified them as the culprits who have committed the alleged act. In such a case, the evidence of PWs.1, 2 and 3 with respect to the identification of the accused cannot be considered as trustworthy. Therefore, the identity of the accused still remains a doubtful factor in the case of the prosecution.
41. The identity of the accused was also brought to be established by the prosecution through the alleged recovery said to have been made at the instance of the accused in the case. All the recoveries in this case are said to have been made only based upon the alleged voluntary statements said to have been given by the accused before the Investigating Officer. PW-20, the Investigating Officer in his examination-in-chief has stated that on the basis of voluntary statements of accused Nos.1 to 4 in Crime No.175/2011 of Doddaballapura Rural Police Station, the accused led him and other persons to the house of accused No.1 Kala @ Kalappa at Gowribidanur Taluk. There these people went in the house and produced one golden ring pertaining to the case.
42. The very statement of PW-20 even if it is taken on its facial value, it can be noticed that no where in his evidence the witness has stated as to what the alleged voluntary statement said to have been given by the accused was?
Secondly, the alleged voluntary statements said to have been given by the accused are also not marked as exhibits by the witness.
Thirdly, the evidence of PW-20 is not clear as to which among the accused led them to the house of accused No.1.
Fourthly, PW-20 no where has stated that it was any of the accused who went inside the house of said accused No.1 and produced one golden ring. On the contrary, the evidence of PW-20 is that these people i.e., PW-20 and others went inside the house and produced one golden ring.
Fifthly, the alleged mahazar said to have been drawn by him in the spot, so also, the alleged golden ring said to have been seized by him, are not marked as exhibits and material object respectively.
Lastly, he has not stated as to who the other people accompanied him were. Therefore, the evidence of PW-20 about the alleged voluntary statements said to have been given by the accused and seizure of the alleged golden ring does not inspire confidence.
43. It is at this juncture, when the learned counsels for the appellants canvassed the argument bringing out the loopholes in the alleged evidence, the respondent/ prosecution has come up with an application in IA.1/2019, filed under Section 391 of Cr.P.C. seeking permission to the prosecution to mark the voluntary statements of accused Nos.1 to 4 through PW-20 as additional evidence.
44. In IA.1/2019, the applicant/State has stated that though the marking of voluntary statement of accused Nos.1 to 4 was very much required for establishing the case of the prosecution, however, inadvertently those voluntary statements have not been marked in the Court below.
The accused who have filed their objections to the said application have stated that the application under consideration has been filed when the final arguments in the matter was going on and after hearing the defence argument for considerable length. The learned counsel for the appellants/accused has also stated that the alleged voluntary statements of accused Nos.1 to 4 have also not been produced along with the charge sheet under Section 173(2) of Cr.P.C., as such, the same now cannot be permitted to be produced as an additional document. Further the accused have also stated that since the State has not filed any appeal challenging the impugned judgment, being the respondent in this appeal, they cannot file the application under Section 391 of Cr.P.C. Learned counsel for the appellants/ accused in his arguments also submitted that if the application under consideration is allowed, the same would take away the defence and valuable right already accrued in favour of the accused.
45. Under Section 391 of Cr.P.C., the Appellate Court if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or directed to be taken by the Court of Sessions or a Magistrate. However, the applicant/State has not shown that the alleged voluntary statements of accused Nos.1 to 4 were placed before the Sessions Court as a part of the charge sheet and that it was available before the Court before the Investigating Officer led his evidence as PW-20. Further the applicant has also not shown any reason as to why the alleged voluntary statements said to have been given by accused Nos.1 to 4 were not marked as exhibits by the prosecution witnesses in the Court below. The mere statement made in the application that due to inadvertence, the same was not marked is not convincing. As such, when a valuable right in the form of defence has already been accrued in favour of the accused and when no convincing reasons have been shown by the applicant/State for non-marking of alleged voluntary statements of the accused during the trial and also when they have not shown that such document was either placed before the trial Court or is now being produced by them, I am of the view that IA.1/2019 does not deserves to be allowed.
46. In the absence of placing the alleged voluntary statements said to have been given by the accused on record and marking them as exhibits and in the absence of the Investigating Officer who is said to have recorded those voluntary statements stating as to what statement that was voluntarily made by the accused which has led him to recover the alleged articles from MO-1 to MO-5 and also as observed above, PW-20 not clearly stating as to who led them to the house of accused No.1 and who produced the golden ornament from the house of accused No.1, the alleged recovery of the golden ring at the instance of the accused, does not stand established.
47. PW-20 in his evidence also has spoken about one more recovery of the articles at MO-1 to MO-5 said to have been made at the instance of the accused on 25.07.2011. With respect to the said recovery also PW-20 has not stated that as to what statement was made by accused No.4 which led him to recover the articles. He has also not stated which among the four accused led him to the place where the alleged articles are said to have been pledged with the society. He has also not stated as to which among the accused had pledged those articles. He has also not marked the alleged voluntary statement said to have been given by accused No.4 before him. Finally he has also not identified any of those articles said to have been recovered by him under Ex.P-12 based upon the alleged voluntary statement made by accused No.4. Therefore, the evidence of PW-20 that based on the alleged voluntarily statement of the accused, he seized one more golden ring and articles at MO-1 to MO-5 does not inspire confidence.
48. PW-7 – Pawn Broker, in his evidence though has stated that article at MO-1 was pledged with him by the wife of accused No.1, but it is not his case that accused No.1 had accompanied his wife while she pledged the said article with PW-1. Therefore, in the absence of Investigating Officer recording the statement of said wife of accused No.1, who is said to have pledged MO-1 with PW-7 and in the absence of PW-7 also mentioning any nexus between accused No.1 and the lady pledging MO-1 with him, it cannot be taken as proved that accused No.1 had robbed said MO-1 and got the same pledged with PW-7 through his wife.
The same logic applies to the evidence of PW-21 also. Even according to him, the actual person who pledged the articles was one Smt.Puttamma. In the absence of Investigating Officer recording the statement of Smt.Puttamma or in the absence of any reliable evidence to show that the act of said Smt.Puttamma in possessing and pledging the articles at MO-1 to MO-5 were at the instance of any of the accused, much less, accused No.4, it cannot be held as proved that the recovery of MO-1 to MO-5 were at the instance of any of the accused among accused Nos.1 to 4. As such, the argument of learned counsels for the appellants that prosecution could not able to establish that there was reliable recovery in the matter needs to be accepted.
49. When the alleged recovery of MO-1 to MO-5 at the instance of accused has not proved to be reliable, the mere identification of those articles by any number of witnesses, including PWs-1, 2 and 3 may at the maximum show that those articles belong to PWs-1 to 3, but, falls short off establishing that they were robbed by none else than the present accused in the incident.
50. In a similar case where the voluntary statement of the accused persons said to have been given before the Investigating Officer were not produced before the Court during the course of the trial in the Criminal Appeal filed before this Court by the accused challenging their conviction in Crl.A.No.383/2014, a Division Bench of this Court in its judgment dated 24.5.2018, considered as one of the major ground for allowing the appeal and set aside the judgment and order on conviction.
Similarly, in the case on hand also where the identity of the accused could not be established by the prosecution in a procedure known to law and alleged recovery said to have been made at the instance of accused could not be established, the mere identification of the articles by PWs-1 to 3 cannot be held as sufficient to hold them guilty of the alleged offences. However, the trial Court without analysing the evidence placed before it in its proper perspective merely noticing that PWs-1 to 3 have identified the accused in the police station and alleged robbed articles said to have been shown to them by the police, has jumped to a conclusion holding the accused guilty of the alleged offence.
51. In view of the above discussion, since the said finding of the trial Court now proved to be an erroneous finding and it is found that prosecution though has proved the occurrence of the incident and the murder of Parameshwaraiah in the incident by the culprits, but, has failed to prove that it was the accused and accused alone who have committed the alleged act, the judgment of conviction under appeal deserves to be set aside by allowing the appeals.
Accordingly, I proceed to pass the following order:
ORDER IA.1/2019 filed by the respondent/State under Section 391 of Cr.P.C. is dismissed.
The Criminal Appeal Nos.1340/2015 filed by the appellant/accused No.1, Criminal Appeal No.506/2014 filed by the appellant/accused No.4 and Criminal Appeal No.1095/2018 filed by the appellant/accused No.2, are allowed. The judgment of conviction and order on sentence passed by the learned IV Addl.District & Sessions Judge, Doddaballapura, Bengaluru Rural District, Bengaluru, in S.C.No.355/2011, dated 21.12.2013, convicting the present appellants for the offence under Section 396 read with Section 34 of IPC and confining to the present appellants only, is set aside. The appellants i.e., accused No.1 – Kalappa @ Kala, s/o late Munivenkatappa, accused No.4 – Raja @ Hallikeredoddi Raja bin Puttaiah, and accused No.2 - Raja @ Puchana @ Banashankari Raja bin Sampangi, are acquitted of the offence punishable under Section 396 read with Section 34 of IPC.
The appellants/accused be released from the judicial custody forthwith, provided they are not required to be continued in judicial custody in any other matter.
The Registry is directed to transmit a copy of this judgment to the trial Court forthwith, to enable it to proceed further in the matter in accordance with law.
Sd/- JUDGE bk/