IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF DECEMBER 2017 PRESENT THE HON’BLE MR.JUSTICE ARAVIND KUMAR AND THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR CRIMINAL APPEAL No.949/2012 BETWEEN 1. Mr. Ranjan Jeena S/o. Mr. Mahadeshwara Jeena, Aged about 31 years, Resident of Narendrapura Village, Alwa Post, Kendraghada District, Orissa State.
2. Mr. Manamohan Biswal S/o. Mr. Chittaranjan Biswal, Aged about 28 years, Resident of Kurlaa Sahigrama, Pentappal Post, Kendraghada District, Orissa State.
(By Sri. I.S.Pramod Chandra, Advocate) AND State of Karnataka, By Byyappanahalli Police, Bangalore City, Through the …Appellants State Public Prosecutor, High Court Building, Bangalore.
(By Sri. Chethan Desai, Advocate) …Respondent This Criminal Appeal filed under Section 374(2) CR.P.C, praying to set aside the judgment dated 14.12.2009 passed by the P.O. FTC-16, Bangalore City in S.C.No.1051/2005-convicting the appellants/accused for the offence P/U/S 392 R/w Section 397 and 302 R/w Section 34 of IPC.
This Criminal Appeal having been heard and reserved on 4.11.2017, coming on for pronouncement this day, Sreenivas Harish Kumar, J., pronounced the following :
JUDGMENT Both accused, having been convicted and sentenced by the Fast Track Court-XVI, Bengaluru City, in S.C. No. 1051/2005 in relation to offences punishable under Sections 392, 397 and 302 IPC, read with Section 34 IPC, have preferred this appeal. The learned trial Judge sentenced both accused 1 and 2 to undergo rigorous imprisonment for a period of seven years and pay a fine of Rs.2,000/- each with default imprisonment for two months in relation to offence under Section 392 IPC. For the offence under Section 397 IPC, they have been sentenced to undergo rigorous imprisonment for a period of seven years and in relation to offence under Section 302 IPC, they have been sentenced to imprisonment for life and to pay fine of Rs.2,000/- with default clause of two months imprisonment.
2. The prosecution case in brief is that the deceased namely Kamalamma was a resident of house No. 28 situate at Maramma Temple Street, Krishnaihanapalya, Bengaluru. She was carrying on business in scrap items in her house itself. In the intervening night of 6.8.2005 and 7.8.2005, the accused gained entry into her house and cut her neck while she was sleeping and caused her death. They robbed off some gold items such as ear studs, nose studs and mangalya that she was wearing and also cash of Rs.2,200/- kept in the almirah. The son of the deceased, namely Suresh Kumar made a report of this incident to the police in the early hours of 7.8.2005 to the Byappanahalli Police Station. Based on this report, police registered a case in Cr.No.133/2005 for the offence under Section 302 IPC. After investigation, the police laid a charge sheet against the accused for the offence under Section 302 IPC.
3. The learned Fast Track Court Judge, at the time of framing the charge found that the facts of the case would attract the offences punishable under Section 392 read with Section 397 IPC also besides the offence under Section 302 IPC and, therefore, charged the accused for these offences. Since the accused denied the charges and claimed to be tried, prosecution went into trial, examined 12 witnesses PWs 1 to 12 and got marked 23 exhibits as per Exs. P1 to P23 and 24 material objects marked MO1 to 24. Ex.D1 came to be marked during cross-examination of DW1. After appreciating the evidence, learned trial Judge came to the conclusion that the involvement of the accused in the incident had been established by the prosecution beyond reasonable doubt and therefore found them guilty of the offences.
4. The trial Court has recorded reasons that the prosecution case rests on circumstantial evidence. It has held that the prosecution was supposed to prove the circumstances namely (i) setting the criminal law into motion by making report at 3.30 AM on 7.8.2005 (ii) drawing up of spot mahazar in between 8.45 and 9.30 AM on 7.8.2005 (iii) securing of a finger print expert, a photographer and the dog squad on the very same day (iv) conducting inquest mahazar on 7.8.2005 between 6.00 AM and 9.00 AM (v) apprehending the accused on the very same day (vi) seizure of incriminating materials on the basis of voluntary statement given by the accused (vii) seizure of blood stained clothes of the accused (viii) conducting post-mortem examination and lastly production of the accused before the Court on 8.8.2005. The trial Court has held that the links in the chain of circumstances have been proved and that the totality of the circumstances clearly lead to draw an inference that the entire case of the prosecution has been proved beyond reasonable doubt.
5. Assailing the findings of the learned trial Judge, the learned counsel for the appellant argued that the trial Court erroneously held that all the circumstances had been proved. No doubt the witnesses who had been examined for establishing the inquest mahazar, spot mahazar and seizure mahazars testified that in their presence these mahazars were drawn and recoveries made from the accused, yet the trial Court lost sight of unnatural conduct of Kataiah, the husband of the deceased. The I.O did not record his statement. According to PW1, who made a report to the police about the incident stated that it was his father who came to his house in the midnight and informed him about the incident, but it could be seen from the evidence of investigation officer that Kataiah was not able to move at all. He was fast asleep even when he went to spot. If really Katiah had gone to the house of his son, the reason why his statement was not recorded was not forthcoming. The prosecution did not examine another prime witness CW8 Smt. Baby, who according to the prosecution was the one who had seen the accused in the house of the deceased on the previous night. This witness was not examined. In the absence of the evidence of this witness, it is not possible to connect the accused with the incident. The prosecution case reveals that one brother and a sister of PW1 also came to the place of the incident soon after getting information from PW1. They were not examined. The prosecution did not place any material before the Court as to how the accused were able to gain entry into the house of the deceased. The house of the deceased is situated in a slum area where houses are closely situated. If somebody would break open the door in the midnight, the breaking noise would attract the attention of the neighbours. The I.O did not find it necessary to examine the neighbours. These being the shortcomings in the prosecution case, merely on the basis of some recovery made by the investigating officer and tracing of chance finger prints of one of the accused, it is highly impossible to draw conclusions about involvement of the accused in the offence. His submission was that if the trial Court had appreciated the entire evidence in right perspective, it would have been possible for it to hold that the circumstances had not been proved. Any amount of suspicion based on the recovery cannot take the place of proof. With these points, he argued for acquitting of the accused by setting aside the judgment of the trial Court.
6. The learned counsel for the accused also argued that the trial Court committed another mistake in holding the accused guilty of the offences both under Section 392 and 397 IPC. The charge was raised only for the offence under Section 397 which is a major offence. When the trial Court held the accused guilty of the offence under Section 397 IPC, there was no need to hold them guilty of a lesser offence, namely Section 392 IPC and sentence them for that offence also.
7. The learned High Court Government Pleader argued that the police were able to trace the accused within no time. From their presence the articles that they had robbed off the house of the deceased were recovered. They themselves led the police to the place where they had hidden the knives and produced the same before the police. The chance finger prints of one of the accused was also traced on the almirah kept in the house of the deceased. The finger print expert gave opinion that those chance finger prints matched with finger prints of one accused. In a case like this, recovery of stolen articles and the weapons used for the commission of the offence play an important role. It may be true that the prosecution did not examine a material witness namely Smt. Baby. This by itself cannot be a ground for disbelieving the other part of the evidence which proves the involvement of the accused in the offence unerringly. It was for the accused to have given an explanation as to how they were able to possess the stolen articles. Their failure to give explanation in this behalf provided a missing link and, therefore, the learned trial Judge is right in holding the accused guilty of the offences.
8. The above arguments give rise to the following points for discussion: -
(i) Is the trial Court right in arriving at a conclusion that chain of circumstances have been proved by the prosecution to hold the accused guilty of the offences charged against them?
(ii) Could the trial Court have sentenced the accused for the offences under Sections 392 and 397 IPC?
Point No. (i): -
9. Given a look at the evidence tendered by each of the witnesses examined by the prosecution, it was PW1, the son of the deceased who reported the incident to the police. PWs2, 3 and 4 speak about the inquest panchanama conducted in their presence as per Ex.P3. PWs 3 and 4 also testified the fact of spot mahazar as per Ex.P4 having been drawn in their presence. PW4 also speaks about another mahazar Ex.P5 drawn in connection with recovery of stolen jewellery and cash of Rs.2,200/- from the accused. These articles are marked as MO6 to 14. PW4 was also a witness to Ex.P6, a panchanama drawn in relation to seizure of two knives, MO19 and 20 as produced by the accused by taking the police to the place where they had hidden them. This witness also testifies the panchanama as per Ex.P7 drawn in connection with seizure of blood stained clothes of the accused as per MO 21 to 24.
10. PW5 is the doctor who conducted autopsy of the dead body of the deceased. He has given evidence that before dissection of the dead body, he noticed the presence of a cut injury, irregular in shape on the neck of the deceased. Ex.P8 is the post mortem report. PW6 is the Assistant Director of Forensic Laboratory. He has given evidence with regard to subjecting some of the seized articles and the clothes of the accused and the deceased to chemical examination. PW7 is a photographer who took the photographs of the dead body having gone to the place of the incident. PW8, Police Sub-Inspector, who has given evidence that he apprehended both the accused at Yeshwanthapura Railway Station Bengaluru.
11. PW9 is the investigation officer. He has given evidence about the investigation he made. PW10 is the finger print expert and has given evidence about having found the chance finger prints on a steel almirah and TV showcase. He subjected these chance finger prints to scientific examination with the admitted finger prints of both the accused and gave a report that the chance finger prints matched with the finger prints of the second accused. He gave a report in this regard as per Ex.P20. PW11 and 12 are two police witnesses who have given evidence with regard to the duty entrusted to them by the investigation officer.
12. It is very evident that the trial Court has mainly relied on recovery of incriminating articles from the accused and matching of chance finger prints with the finger prints of the accused No.2. Even if we assess the entire evidence of PWs 2 to 4, with regard to drawing up of inquest mahazar, recovery mahazars and seizure mahazars, we find that all these witnesses have not been discredited in the cross- examination. Therefore, we have to endorse the findings given by the trial Judge in this regard. Undoubtedly, the two important circumstances, namely recovery of the stolen jewllery and cash from the accused as also seizure of the knives MO19 and 20 do get established.
13. There are two other circumstances which the trial Court has not noticed. These circumstances are (1) possibility of accused having visited the house of the deceased on the previous evening or night (2) the mode of gaining entry into the house of the deceased. Apart from these two, the conduct of the husband of the deceased, namely Kataiah also assumes importance.
14. The trial Court has held that no time was lost in making a report to police by PW1 as per Ex.P1. This is true also. But, here the conduct of Kataiah needs to be considered. PW1 has given evidence that his father, i.e., Kataiah came to his house about 1.30 AM and told him about the incident. At 3.30 AM PW1 makes a report of the incident to the police. Therefore, PW1 first came to know about the incident from his father. The question that arises here is whether Kataiah had really gone to the house of PW1. This is because of the evidence given by IO-PW9 who in his evidence has clearly stated that he did not interrogate Kataiah during investigation. The explanation that PW9 gives for not examining Kataiah is that he was not in a position to speak because his mental condition was not good and he appeared to be under shock. It cannot be doubted that Kataiah was not in the house when the incident took place. He was very much present in the house. That means he might have seen the faces of the persons who committed the crime. If according to PW1, his father was able to come to his house to tell him about the incident, the statement of PW9 that he was not in a condition to speak becomes impossible to be accepted. If evidence of PW9 is taken to be true, obviously what PW1 has stated becomes difficult to be believed. Kataiah is not cited as a witness in the charge sheet. He would have been the best witness to identify the accused. Moreover, according to PW1 when his father came to his house, his neighbour, namely Sridhar was very much present and that he accompanied PW1 to police station also. But, CW2 is not examined as a witness. If Sridhar had been examined, probably he would have made the position clear.
15. The trial Court has held that the proof of inquest conducted by the IO is one of the circumstances which has been proved. In our opinion inquest itself cannot be a circumstance, rather it is a part of routine procedure of investigation. Any clue that IO gets while conducting inquest may be considered as a circumstance to be established. This is necessary to be stated because, while conducting inquest, a woman by name Smt. Baby CW-8 was examined. She was a maid servant in the house of the deceased. She was not examined as a witness though cited in the charge sheet. According to the prosecution, she was the one who saw the accused having come to the house of deceased on the previous evening to make an enquiry whether deceased would purchase some scrap items from them. We find that the evidence of Baby would have helped the prosecution because it was only after examining this woman, probably, the IO might have come to know about the persons involved in the commission of offence and on this basis he might have instructed PW8 to trace and apprehend the accused. PW8 says that the IO had not given him the details or the photographs of the accused. If this is the evidence of PW8, how could they trace the accused at Yeshwanthapur Railway Station? In a case based on circumstantial evidence, tracing of the accused is also one of the circumstances, and this is possible only when a witness having seen the accused reveals the same before the investigation officer. Therefore, the evidence of Baby was so crucial for identification of the accused before the court. It is not known why Baby was left out from being examined before the Court. For this reason we have to opine here that first circumstance that we have pointed in paragraph 13 above does not get established.
16. The other circumstance is, mode of gaining entry into the house of the deceased by the persons who might have committed the crime. The spot panchanama-Ex. P2 does not contain particulars about the condition of the main door of the house of deceased. Interestingly, the finger print expert examined as PW10 has mentioned about noticing one broken front door. It was the duty of the investigating officer to have keenly observed as to how the accused might have gained entry into the house. This is very important because the house of the accused is situated in a place where the neighbouring houses are also closely situated. While breaking the door, obviously that sound should have attracted the attention of neighbourhood and therefore a doubt would arise whether was it possible for the accused to have entered the house of the deceased in the midnight by breaking the front door of the house of the deceased. There is no evidence in this behalf.
17. The above circumstances in our opinion have not been proved. It is needless to say that the prosecution should prove the links in the chain of circumstances. It is the duty of the investigation officer while giving evidence before the Court, to narrate the circumstances that he comes across during investigation. He should not rhetorically give evidence by just narrating as to what he did and on what date. We feel that it is the duty of the public prosecutor also to have elicited from the investigation officer the circumstances, so that the trial judge can apply his mind while appreciating the evidence.
18. Recovery of incriminating articles at times can be considered to be a sole circumstance to connect the accused with offences charged against them; it cannot also a be a sole circumstance, and may be one of the circumstances. It all depends on the facts of a given case. In this case, recovery cannot be alone considered, though the accused have failed to offer explanation as to how they were found in possession of jewellery and cash found stolen in the house of the deceased. So from the above discussion it is amply clear that two views are possible to be taken – one view being the findings given by the learned trial judge in the background of seizure of the incriminating articles from the accused and the other view being in the background of the circumstances that we have discussed above. When two views are possible, the established principle is that its benefit must be given to the accused. Therefore point No.1 is answered in the negative.
Point No. (ii): -
19. The learned trial judge framed the charges for the offence under Section 392 read with Sections 397, 302 read with Section 34 IPC. Having found the accused guilty of the offence under Section 392 read with 397 IPC, he proceeded to sentence the accused for the offence under Section 392 as also under Section 397 IPC. In our opinion sentencing the accused for these two offences is not in accordance with law.
Section 392 IPC prescribes punishment for robbery. The period of imprisonment may extend to ten years with fine and if the robbery is committed on the high way between sunset and sunrise, the imprisonment period can be extended up to fourteen years. Section 397 IPC also prescribes punishment of imprisonment for a minimum period of seven years if during robbery or dacoity the offender uses deadly weapons or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person. The prosecution case squarely falls under Section 397 IPC as according to the prosecution the accused used knives and caused the death of the deceased. Therefore Section 392 IPC does not come into picture at all. For this reason we are of the opinion that convicting the accused for the offences under Section 392 and Section 397 IPC is not justifiable. Therefore this point is answered in negative.
20. From the discussion on point No.1, we come to the conclusion that this appeal deserves to be allowed and judgment of the trial court convicting the accused under Section 392 read with 397 IPC and 302 read with 34 IPC set aside. Accordingly the following order:
O R D E R i. Appeal is allowed ii. Judgment of conviction recorded by the trial court in S.C.No.1051/2005 is set aside.
iii. The accused are acquitted of the offences. They shall be set at liberty if their presence is not required in any other case.
Sd/- JUDGE Sd/- JUDGE Ckl