IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.1846 of 2018 BETWEEN MITHUN THORABDAR, S/O DULAL THORABDAR, AGED ABOUT 21 YEARS, RESIDENT OF CHUDADANA VILLAGE, CHARDAR, NADIYA DISTRICT – 741 121. WEST BENGAL.
(BY SRI K.B. LOKANATH., ADVOCATE) AND STATE BY NARSIMHARAJA POLICE, MYSORE CITY, REPRESENTED BY S.P.P., HIGH COURT OF KARNATAKA, BENGALURU – 560 001.
(BY SRI K.P. YOGANNA, HCGP) ... APPELLANT ... RESPONDENT THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 15.03.2018 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU IN S.C.No.263/2017 - CONVICTING THE APPELLANT/ACCUSED No.6 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 399 AND 402 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT The appellant is accused No.6 before the III Additional Sessions Judge, Mysuru, in SC No.263/2017 having been tried and convicted for the offence punishable under Section 399 and 402 of IPC and sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for 15 days for the offence under Section 399 of IPC and to undergo rigorous imprisonment for three years and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for 15 days for the offence under Section 402 of IPC.
2. Heard learned counsel for the appellant as well as learned High Court Government Pleader.
3. Before adverting to the arguments urged by learned counsel, it is worth to mention the case of the prosecution before the Trial Court.
PW.3-Ashok Kumar, Police Inspector, N.R. Police Station, Mysuru, when he was in the Police Station, he received a credible information on 20.08.2016, at about 5 a.m., that some 6 to 8 persons including ladies were standing near Unnathi Nagar Railway under-bridge holding deadly weapons in their hands and behaving in a suspicious manner with an intention to commit dacoity. Immediately, PW.3, along with his staff, secured two panchas namely, Syed Salman and Thowsif Ahamed proceeded to the spot and about 100 meters away from the spot, they saw 8 persons including two women making preparation to commit dacoity at about 5.30 p.m. They surrounded and apprehended all the 8 persons and after apprehending, they found accused No.1 with cover, accused No.2 and accused No.3 holding knives, accused No.4-holding a wooden club, accused No.5-holding a red torch and rope and accused No.6-appellant herein holding chilly powder and accused Nos.7 and 8 were also said to be holding chilly powder in their hands. PW.3 seized all the materials from them in the presence of panchas under the panchanama under Ex.P.1. All the names of the accused persons were enquired and came to know that they were all from West Bengal, Delhi and accused No.5 is from Bangladesh. They brought those persons to the Police Station and prepared the FIR and later, they have been produced before the Magistrate, in turn, they have been sent to judicial custody. It appears, since then they are in judicial custody and later, the case was committed to the Trial Court. After securing the presence of this appellant along with other accused, charges were framed. They were put on trial and the prosecution in order to prove the case, in all examined 4 witnesses as PWs.1 to 4 and got marked three documents as per Exs.P.1 to P.3 and MOs.1 to 19. During the cross-examination, Ex.D.1 has been marked. Thereafter, the accused were examined under Section 313 of Cr.P.C. The case of the accused was one of total denial, but not entered into any defence.
During trial, accused Nos.1 to 3 were said to have absconded and they have been split up. Therefore, accused Nos.4 to 8 were found guilty, convicted and sentenced to undergo imprisonment as stated above. The other accused persons said to have preferred an appeal, but later came to be withdrawn. This appellant herein is accused No.6.
4. Learned counsel for the appellant strenuously argued that no witnesses have supported the case of the prosecution except PW.3-Investigating Officer, who alone identified the accused. The independent panch witness PW.4 not at all identified this appellant. PWs.1 and 2 were also examined by the prosecution, who have spoken about accused No.5 and accused No.8 said to be the tenants of this witness. Even those witnesses have not identified this appellant. Absolutely, there is no evidence and the recovery of MO.13-packet of chilly powder was not at all proved by the prosecution beyond all reasonable doubt with the support of independent witness. The evidence of PW.3 is not acceptable one. He himself has registered the case as well as investigated the matter and filed the charge sheet. He is the interested person. He has not properly investigated the matter in respect of the local address of the appellant. He came to Mysuru on the date of the incident. Therefore, prayed for acquitting the appellant by setting aside the judgment of conviction and sentence.
5. Per contra, learned High Court Government Pleader contended that though PWs.1 and 2 did not identify the appellant, but he was not the tenant under them. PW.3- Investigating Officer himself has headed the raid and apprehended the appellant. He has clearly identified this appellant. MOs.13 to 15 were proved through PW.3. The evidence of this witness cannot be discarded as interested one. Even though PW.4 not identified this appellant, but the recovery under Ex.P.2 and Ex.P.1-panchanama clearly corroborates with each other in proving the guilt of this appellant. Hence, prayed for dismissal of the appeal.
6. Having heard the arguments of learned counsel on both side and on perusal of the evidence of the prosecution, it shows as follows;
PW.1-Ramakrishna, who is said to be the landlord, speaks about accused Nos.5 and 8, who occupied his house as tenants about 1 year two months and he has not stated anything about this appellant, who is accused No.6 and the names of the accused persons were also not stated by this witness.
PW.2-Shanthamma also says about accused No.8 about giving her house for rent through one Krishnappa, but she has also not said anything about this appellant.
PW.3-Ashok Kumar is the Police Inspector of N.R. Pura Police Station, who himself received credible information, secured panchas, went to the spot and apprehended the appellant along with other accused. He is the only witness who supported the prosecution case. He has identified this appellant along with other accused persons and in his evidence, he has stated that this appellant was holding chilly powder in his hands, which was identified by him as MO.13, Samsung Mobile phone with Aircel sim marked as MO.14 and he has identified Ex.P.1 as seizure mahazar prepared on the spot. Later, he came to the Police Station and registered suo motu case in Crime No.152/2016 for the offence under Sections 399 and 402 of IPC and against accused No.5 for the offence under Section 14 of the Foreigners Act. The report was also marked by the Court as per Ex.P.3. Learned counsel for the appellant suggested that panch witnesses were not at all secured by the Police and they have been planted as panch witnesses. Their signatures were obtained in the Police Station after preparing Ex.P.1. They have not been examined. But this witness also turned hostile and a suggestion was made to this witness that the accused came to Mysuru for working under an agent in the Reserve Bank of India at Mysuru and this witness stated that he has not enquired with any officer of the Reserve Bank of India in respect of confirming about this information. In his cross-examination, it was suggested that the accused came to work as a labour contract in the Reserve Bank of India.
PW.4-Tousif Ahamed is the panch witness, who also supported the prosecution case and identified accused Nos.4, 5 and 7, but he has not identified this appellant/accused No.6. This witness was also treated as hostile and even in the cross examination, he has never identified the present appellant before the Court. On perusal of the entire evidence on record, except PW.3, who is the Investigating Officer and head of the raid, no other witness has spoken anything about this appellant/accused No.6.
7. Learned counsel for the appellant contended that, PW.3 before proceeding to the spot has not at all entered the information in writing in the General Diary of the Police Station nor recorded any reason in writing while proceeding to the spot, but he has proceeded to the spot, seized the material under the panchanama-Ex.P.1 thereafter, he came back to the Station and registered the FIR, again prepared Ex.P.2-report, which is hit by Section 162 read with 154 of Cr.P.C. In support of his case, he relied upon the decision in the case of Lalita Kumari vs. Government of U.P. and others reported in (2014)2 KCCR 1305 (SC).
8. Even on perusal of Ex.P.1-panchanama, under which the materials are said to have been seized by PW.3 in the presence of PW.4, which reveals in the first paragraph itself that the Investigating Officer mentioned Crime No.52/2016 date and time in the panchanama. But, as per his evidence, he has not recorded any reason in respect of crime number in the Station House Diary, but directly proceeded to the spot, apprehended and seized the material from the accused persons prior to registering the case. In fact, he has mentioned the crime number in Ex.P.1. Therefore, the very seizure panchanama alleged to have been prepared by PW.3-Investigating Officer on the spot is not acceptable one. PW.3 ought to have recorded the reasons in writing in the Station House Diary, mentioned the required crime number and then ought to have proceeded to the spot and seized the articles, but he has not stated any reasons for not entering into the Station House Diary with regard to the credible information received by him in the Police Station. Without registering the FIR, he has seized the material, which itself goes to show that the investigation was started prior to registration of the case, thereby the investigation held by the Investigating Officer is hit by Section 154 of Cr.P.C.
9. It is well settled that the Investigating Officer has to record the reasons or make an enquiry before proceeding to the spot for non-cognizable offence, but if the information makes out to be a cognizable offence, then it is the duty of the Station House Officer to register FIR and then proceed to the spot. But, in this case, the Investigating Officer after visiting the spot, apprehended the appellant/accused and could have asked the Station House Officer to prepare the FIR, but Exs.P.2 and 3 came to be registered after the preparation of Ex.P.1- panchanama thereby, the investigation started prior to registering the case, which is against the guidelines issued by the Hon’ble Apex Court in Lalita Kumari’s case. It is no doubt true that the evidence of PW.3, who is the Police officer, cannot be discarded or thrown out as disbelieved, but in view of the investigation started prior to registering the case is hit by Section 154 Cr.P.C. Apart from that, the independent witness PW.4 not at all identified this appellant before the Court and also MOs.13 to 15 which were said to be seized from this appellant. Therefore, in my considered opinion, the evidence of PW.3 is not sufficient to prove the guilt of the appellant beyond all reasonable doubt that the appellant also accompanied the other accused, assembled near a lonely place and involved in the preparation to commit dacoity. The Investigating Officer has also not investigated properly and has hurriedly filed charge sheet. Even the Investigating Officer not enquired the local address of the appellant as to how he came to Mysuru. Even though his address is shown as West Bengal, the Investigating Officer also not examined the official of the Reserve Bank of Inida. In the absence of any proper investigation, the evidence of the Investigating Officer is not acceptable without corroboration of independent witness. Therefore, I hold that the evidence led before the Trial Court is not sufficient to prove the guilt of this appellant beyond all reasonable doubt for the charges leveled against him. Hence, I hold that the appellant is entitled for acquittal. Accordingly, I pass the following order;
The appeal filed by the appellant/accused No.6- Mithun Thorabdar is allowed.
The judgment of conviction and sentence passed by the III Additional District and Sessions Judge, Mysuru, in S.C.No.263/2017, dated 15.03.2018 is hereby set aside;
(ii) The appellant is ordered to be set at liberty forthwith, if he is not required in any other case; and (iii) The Registry is directed to communicate the operative portion of this judgment to the concerned Jail Authorities for release of the appellant/accused No.6 forthwith, if he is not required in any other case.
Sd/- JUDGE mv