IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 29TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.736 OF 2013 C/W CRIMINAL APPEAL NOS.1163 OF 2013, 1511 OF 2015 AND 770 OF 2018 IN CRIMINAL APPEAL NO.736 OF 2013 BETWEEN:
STATE OF KARNATAKA BY BANNUR POLICE STATION. ... APPELLANT (BY SRI I.S. PRAMOD CHANDRA, SPECIAL PUBLIC PROSECUTOR- 2) AND:
1. MANJA @ PAYA SON OF NADUPAIAH AGED ABOUT 28 YEARS RESIDING AT HITTANAHALLI KOPPALU VILLAGE MALAVALLI TALUK – 571 430.
2. ABDUL JABBAR @ JABBAR SON OF LATE KHASIM SAB AGED ABOUT 18 YEARS RESIDING AT MADDUR TOWN – 571 428.
PERMANENTLY RESIDING AT HONGANUR VILLAGE CHENNAPATNA TALUK RAMANAGARA DISTRICT – 571 501.
3. MAHADEVA @ MADA @ MADEVA SON OF MUNISWAMY RESIDING AT HITTANAHALLI KOPPALU VILLAGE MALAVALLI TALUK – 571 430.
4. SAROJA @ SARU WIFE OF MANJA AGED ABOUT 19 YEARS RESIDING AT HITTANAHALLI KOPPALU VILLAGE MALAVALLI TALUK – 571 430.
5. SHANKAR @ KABBALE @ MAGADHEERA SON OF GANGAIAH AGED ABOUT 20 YEARS RESIDING AT MALLANAKUPPE VILLAGE MADDUR TALUK – 571 428. ... RESPONDENTS (BY SRI B. LETHIF, ADVOCATE FOR RESPONDENT NOS.1, 3, 4 AND 5; SRI RAVIKUMAR V., ADVOCATE FOR RESPONDENT NO.2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 OF CRIMINAL PROCEDURE CODE, PRAYING TO MODIFY AND ENHANCE THE SENTENCE DATED 27.03.2013 PASSED BY THE PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSURU IN S.C. NO.154/2012 AND IMPOSE APPROPRIATE AND ADEQUATE SENTENCE AGAINST THE RESPONDENTS FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 396 AND 397 OF INDIAN PENAL CODE AND ETC.
IN CRIMINAL APPEAL NO.1163 OF 2013 BETWEEN:
1. MANJA @ PAYA SON OF NADUPAIAH AGED ABOUT 29 YEARS RESIDING AT HITTANAHALLI KOPPALU VILLAGE MALAVALLI TALUK MANDYA DISTRICT – 571 430.
2. MAHADEVA @ MADA @ MADEVA SON OF MUNISWAMY RESIDING AT HITTANAHALLI KOPPALU VILLAGE MALAVALLI TALUK MANDYA DISTRICT – 571 430.
3. SAROJA @ SARU WIFE OF MANJA AGED ABOUT 20 YEARS RESIDING AT HITTANAHALLI KOPPALU VILLAGE MALAVALLI TALUK MANDYA DISTRICT – 571 430. … APPELLANTS (BY SRI B. LETHIF, ADVOCATE) AND:
STATE OF KARNATAKA BY BANNUR POLICE REPRESENTED BY GOVERNMENT PLEADER HIGH COURT OF KARNATAKA BENGALURU – 560 001. … RESPONDENT (BY SRI I.S. PRAMOD CHANDRA, SPECIAL PUBLIC PROSECUTOR-2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 27.03.2013 PASSED BY THE PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSURU IN S.C. NO.154 OF 2012 CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 396 AND 397 OF INDIAN PENAL CODE AND ETC.
IN CRIMINAL APPEAL NO.1511 OF 2015 BETWEEN:
SHANKAR @ KABBALE @ MAGHADEERA SON OF GANGAIAH AGED ABOUT 23 YEARS RESIDENT OF:
MALLANAKUPPE VILLAGE MADDURU TALUK MANDYA DISTRICT – 571 428. … APPELLANT (BY SRI B. LETHIF, ADVOCATE) AND:
THE STATE OF KARNATAKA BY BANNUR POLICE STATION T. NARASIPURA TALUK MYSURU DISTRICT – 571 101. … RESPONDENT (BY SRI I.S. PRAMOD CHANDRA, SPECIAL PUBLIC PROSECUTOR – 2) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 27.03.2013 PASSED BY THE PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSURU IN S.C. NO.154 OF 2012 CONVICTING THE APPELLANT/ACCUSED NO.7 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 396 AND 397 OF INDIAN PENAL CODE AND ETC.
IN CRIMINAL APPEAL NO.770 OF 2018 BETWEEN:
ABDUL JABBAR @ JABBAR SON OF LATE KHASIM SAB AGED ABOUT 24 YEARS RESIDENT OF MADDUR TOWN PERMANENTLY RESIDING AT HONGANUR VILLAGE CHENNAPATNA TALUK RAMANAGARA DISTRICT – 562 160. … APPELLANT (BY SRI M.Y. SREENIVASAN, ADVOCATE) AND:
STATE OF KARNATAKA BY BANNUR POLICE STATION MYSURU DISTRICT – 571 101 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. … RESPONDENT (BY SRI I.S. PRAMOD CHANDRA, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF THE CRIMINAL PROCEDURE CODE, PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 27.03.2013 AND ORDER OF SENTENCE DATED 28.03.2013 PASSED BY THE PRESIDING OFFICER, C/C FAST TRACK COURT-III, MYSURU IN S.C. NO.154/2012 - CONVICTING THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 396 AND 397 OF INDIAN PENAL CODE AND ETC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.08.2019 COMING ON THIS DAY, H.P. SANDESH J., PRONOUNCED THE FOLLOWING:-
J U D G M E N T These appeals are filed by the State and by the accused Nos.2 to 4, 6 and 7, challenging the quantum of sentence and to set aside the judgment of conviction and sentence respectively passed in S.C.No.154/2012 by order dated 27.3.2013 on the file of Fast Track Court No.III, Mysuru.
2. The State has preferred Crl.A.No.736/2013 questioning the quantum of sentence ordered against the accused persons i.e., 10 years rigorous imprisonment for the offence punishable under Section 396 of IPC and 7 years rigorous imprisonment for the offence punishable under Section 397 of IPC, contending that the same is inadequate and requires to be enhanced in view of the gravity of offence committed by them in committing two deaths and a dacoity.
3. Accused Nos.2, 4 and 6 have preferred Crl.A.No.1163/2013, accused No.7 has preferred Crl.A.No.1511/2015 and accused No.3 has preferred Crl.A.No.770/2018. In all the appeals, accused persons have contended that the very conviction and sentence passed against them is without any material, which requires to be interfered with and set aside.
4. Brief facts of the case are that on 18/19.11.2010 at about 1.00 a.m. in the night within the limits of Bannur police station, accused Nos.1 to 7 with an intention to commit dacoity went to Sri Vadagal Ranganatha Temple and broke open the lock of the kitchen which was adjacent to the temple and illegally entered and committed theft of Rs.4,000/- kept therein.
Accused Nos.2, 6, 5 and 7 were waiting outside the temple watching somebody may come and cause obstruction to their act. Accused Nos.1, 3 and 4 broke open the lock put to the door of the temple and accused No.4 assaulted Dasappa who was sleeping in the temple with an iron rod and accused No.1 assaulted one Subbegowda with an iron rod and then they went inside the treasury chest and while attempting to break open the door, on hearing the noise, C.W.21/P.W.12 shouted. On seeing the same, accused Nos.1, 3 and 4 assaulted her with an iron rod on the left chest and caused pain and tied both her hands with her saree and closed her mouth with the same saree, removed her gold chain, pair of gold ear stud and one gold ring, all worth about Rs.42,000/-. They also committed theft of valuables like silver cup, spoon, plate, one small silver pot and have sold the said items belonging to the temple to C.W.34/P.W.15, which were valued at Rs.18,000/-. After hearing the information about the theft and murder of two devotees of the temple, the Assistant Tahsildar came to the spot and lodged the complaint. Based on the complaint, law was set in motion by registering case in Crime No.207/2010. Accused Nos.1 and 2 were apprehended at the first instance and they made their confession statement and thereafter, other accused persons were arrested and they also made their confession statement. The investigating officer investigated the matter and filed the charge sheet for the offences punishable under Sections 396 and 397 of IPC. The case against accused Nos.1 and 5 was separated since they are the juvenile offenders. Accused Nos.2 to 4, 6 and 7 have not pleaded guilty and claimed to be tried. The prosecution, in order to prove their case, out of 83 witnesses cited in the charge sheet, examined 40 witnesses as P.Ws.1 to 40 and got marked Exs.P1 to P36 and material objects M.Os.1 to 40. After closure of prosecution evidence, statement of accused persons was recorded under Section 313 of Cr.P.C. They have denied the incriminating evidence and there was a total denial. Accused did not choose to examine any of the witnesses in their defence. The Court below, having heard the arguments of both sides and on perusal of the material on record, convicted the appellants/accused and sentenced them to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.3,000/- each for the offence punishable under Section 396 of IPC and sentenced for a period of 7 years rigorous imprisonment and to pay fine of Rs.2,000/- each for the offence punishable under Section 397 of IPC, in default to pay the fine, to undergo further simple imprisonment for a period of 6 months for each of the offences.
5. Being aggrieved by the order of sentence, the State has preferred Crl.A.No.736/2013 contending that in view of gravity of the offence, the sentence imposed by the trial Court is inadequate and improper. The accused persons have committed murder of two innocent persons and also caused injuries to P.W.12, hence, it requires inference by this Court.
6. The learned State Public Prosecutor-II, in his arguments, would contend that the offence punishable under Section 396 of IPC envisages death penalty and so also, life imprisonment and the Court below has sentenced the accused persons only to undergo 10 years imprisonment. As such, the order requires to be set aside by enhancing the sentence imposed.
7. Accused persons, in their respective appeals, contended that the evidence relied upon by the prosecution is fatal to the case of the prosecution.
P.W.15 says that the mahazar was drawn by the police after one year of the alleged incident and the prosecution mainly relies upon the evidence of P.W.15. He is not the owner of the shop and he was only working in said shop and no document is produced for having sold the seized articles to him by the accused persons and the seizure is not proved. Only on the oral evidence of P.W.15, accused Nos.1 and 2 were arrested and articles were seized. Though P.W.12 has identified the accused persons in the chief evidence, but in the cross-examination, he admitted that he could not identify them as there was darkness and in spite of it the Court below erroneously convicted the accused persons. The other witnesses P.Ws.10, 12 and 13 also have not spoken anything about the identity of the accused persons. P.W.11 has only evaluated the value of items which were seized. Under the circumstances, the trial Judge ought not to have convicted the accused for the charges leveled against them. The learned counsel further submits that out of all the accused persons, two of them have already been released on the ground of good conduct after serving the maximum sentence. There are no grounds to enhance the sentence as contended by the learned Special Public Prosecutor-II and it is a case for acquittal. Accordingly, prayed to allow the appeal and to acquit the accused persons.
8. Having heard the arguments of learned State Public Prosecutor-II appearing for the State and also the learned counsel appearing for the accused persons, the points that would arise for our consideration are:
(i) Whether the Court below has committed any error in imposing inadequate sentence of 10 years for the offence punishable under Section 396 of IPC and 7 years for the offence punishable under Section 397 of IPC and whether it requires enhancement?
(ii) Whether the Court below has committed any error in convicting the appellants/accused persons and whether it requires interference by this Court?
9. Before considering point No.1, we would like to consider point No.2 by re-appreciating the oral and documentary evidence available on record to see as to whether the Court below has committed any error in convicting the accused persons.
Point No.2:
10. Instead of repeating the factual aspects of the prosecution case, we would like to proceed with the material available on record. Though prosecution has examined P.Ws.1 to 40, except P.Ws.10, 12 and 13, other witnesses are circumstantial witnesses. The case of the prosecution also rests upon the circumstantial evidence. Hence, we would like to consider the material witnesses who have supported the case of the prosecution in order to bring home the guilt of accused persons. First we would like to consider the evidence of P.W.1.
11. Law was set in motion based on the complaint of P.W.1, the Deputy Tahsildar of concerned jurisdiction, who came to spot on the information that dacoity has taken place in the temple. In his evidence, he has stated that he came to the spot in the early morning on 19.11.2010 and gave the complaint in terms of Ex.P1. The police, based on the complaint received at 6.30 a.m. registered the case at the first instance for the offences punishable under Sections 394 and 302 of IPC.
12. P.Ws.2 and 3 are the residents of Athahalli and Nanjapura village respectively and after hearing about the incident, they came to the temple and witnessed the spot. The police have drawn the mahazar in terms of Ex.P2. P.W.2 speaks about the spot mahazar and seizure of 3 locks, blood stained clothes, blood stained mud, diary, mat, bedsheet, pen, specs, which are marked as M.Os.1 to 4 and M.Os.9 to 13. M.Os.14 to 18 belong to deceased Subbegowda. He is also signatory to the inquest mahazar of Subbegowda which is marked at Ex.P3. He says that when he went to spot, he witnessed the police, P.W.1-complainant and the public. P.W.3 also witnessed the inquest mahazar as per Ex.P3 along with P.W.2. But he does not speak anything about seizure of material objects. But he was present at the spot.
13. P.W.4 is the son of deceased Subbegowda. He came to spot after hearing about the incident and he identified the dead body of his father. His evidence is helpful only regarding identification of the dead body.
14. P.W.5 is the witness to the inquest mahazar of Dasaiah as per Ex.P4. He says that Subbanna and Chikkaiah were also present at the spot when the mahazar was drawn. He identified the belongings of deceased Dasaiah as per M.Os.20 to 25.
15. P.W.6 is the brother of deceased Dasappa who identified the body of Dasappa.
16. P.W.7 deposes that he found SIM of a mobile near Mahatma Gandhi railway quarters, Majestic. There was currency of Rs.19/- in the said mobile. He made calls from the said SIM by replacing to his mobile and he identifies M.O.26 as the SIM which he had found at the spot. The said SIM was seized under a mahazar as per Ex.P6.
17. P.W.9 is the mahazar witness. In his evidence he states that he identified the persons who committed murder and dacoity and out of the accused persons one led the police and panch witnesses and produced iron rod, which contained blood stains and mud. He was treated hostile by the prosecution.
In the cross-examination he admits that he is the witness to Ex.P8 and identifies his signature as Ex.P8(a). It was suggested that accused produced two iron rods and the same was denied. However, he says accused has produced only one iron rod. The same is identified as M.O.27. It was suggested that accused No.7 did not lead anybody and also did not produce any iron rod near the hillock and the same was denied.
18. P.W.10 is the Archaka of Vadgal Ranganathaswamy temple. In his evidence he deposed that few devotees were sleeping in the temple. P.W.12 Manchamma was sleeping in the room attached to temple sanctum sanctorum. Mother, wife and sister of P.W.10 were sleeping in the room situate in front of sanctum sanctorum of the temple. Around 1.45 a.m. Manchamma came and woke her mother and asked for Rs.2,000/- for saving her life. When his mother enquired, she narrated the incident stating that murder has taken place. Immediately, her mother pulled her inside the room and locked the room. Manchamma also awakened him and through the windows they witnessed the incident and saw that both the injured were struggling to breath. Immediately, he called his brother and informed about the incident. His brother asked him to keep the door shut and in the early morning around 3.00 a.m. he noticed that Dasappa and Subbegowda were murdered and the silver articles were missing. He was subjected to cross-examination.
In the cross-examination of P.W.10 it is elicited that the devotees used to supply pooja items. During festivals and on saturdays, the Tahsildar used to bring pooja items and jewels to the temple in the morning and after the pooja he used to take them back. On the date of incident, the Administrative Committee had not brought the pooja items. It is stated that he cannot tell the articles which were stolen and whether they were given by donors or by the Administrative Committee. He had seen M.Os.5 to 8 prior to the incident at the temple and again he is seeing them before the Court. The amount which was in his custody was not stolen.
19. P.W.11 is the evaluator of the articles. He states that police called him and instructed him to evaluate the genuineness of gold and silver articles. He evaluated the same and mahazar was drawn in terms of Ex.P7. He identified his signature as Ex.P7(b).
In his cross-examination when it was suggested that M.Os.29 to 31 are new items, the said suggestion was denied. When suggested that M.Os.29 to 31 would have been used for two years, he states that he cannot tell the same exactly and that some people will use those articles occasionally.
20. P.W.12-Manchamma is the eyewitness to the incident. In her evidence she has stated that when she heard the noise of breaking the hundi of the temple, she woke up and screamed for help. At that time, accused persons came and closed her mouth and snatched the chain, finger ring, pair of earstud and also threatened her to give Rs.2,000/-. She was taken near the sanctum sanctorum and she kicked the door. At that time, P.W.13 pulled her inside and locked the door. She provided her alternative clothes. All of them peeped through the window. Both injured Dasegowda and Subbegowda were lying in the pool of blood. The accused persons have robbed her jewels as well as silver articles of the temple. P.W.12 identified M.Os.29 to 31 as belonging to her and also identified accused persons that they tied cloth to her mouth and hands.
In the cross-examination it is elicited that she has seen the accused persons when they were in the custody of Narasipura police and thereafter seen them in the Court. On the date of incident there was darkness and hence, she could not identify them and those accused persons came and snatched her jewels and they all were male members.
21. P.W.13 in her evidence says that around 1.45 a.m. P.W.12 came and asked her to open the door and requested for Rs.2,000/-. When she questioned as to why she is troubling in the midnight, she revealed the incident. She pulled P.W.12 inside the room and thereafter, they witnessed the incident that had taken place through the window. P.W.13 also says that an amount of Rs.4,000/- and other articles were stolen.
In her cross-examination it is elicited that till P.W.12 came and woke her up, she was not knowing about the incident.
22. PW.15 is the witness in whose custody the sold articles were recovered. He says that on 27.08.2011 accused Nos.1, 2 to 4 and 7 came along with Police and told him to produce the sold items. He also identifies M.O.Nos.5 to 8 and 29 to 31. He categorically states that all these accused persons came and sold the same. In the cross examination, it is elicited that he did not keep any document for having purchased the M.O.Nos.5 to 8 and 29 to 31. It is suggested that accused persons did not sell the same with him and he is giving evidence at the instance of the Police and the same was denied. It is elicited in the cross examination by the accused counsel itself that the value of the articles was Rs.28,000/- and he has signed the mahazar in terms of Ex.P24.
23. PW.21 is the doctor who treated the injured PW.12. In his evidence he states that injured came to Hospital and examined her and issued wound certificate in terms of Ex.P17. In the cross examination, it is elicited that he did not advise the injured to subject her for X-ray. It is suggested that he did not examine rib Nos.5, 8 and 10 since the injured is a female and the said suggestion was denied. He volunteers that with the help of lady nurse, he examined her.
24. PW.31 is PSI. In his evidence he states that on 19.08.2011 around 8.15 am when he was on duty near the Badagudamma temple, he suspected movement of two persons. They were apprehended and arrested accused Nos.1 and 2 and found two rods in their bag and also two silver items. They called panchas and seized the same and registered the case in Crime No.122 of 2011 and they have revealed about their involvement in committing the murder and dacoity of this case. He also recorded their voluntary statement. In the cross examination, he states that accused told that the owner of the pawnbroker shop did not issue any receipt for having purchased the same.
25. PW.33 - PSI in his evidence states that he has received the complaint in terms of Ex.P1, registered the same and drew the mahazar in terms of Ex.P4. He was subjected to cross examination. In the cross examination, it is elicited that when he went to the spot, he found ASI in the temple. He also admits that he did not record the statement of Archak and also PW.12.
26. PW.34 in his evidence states that by the time he went to temple, PSI-Nanjappa and Deputy Tahsildar were present. He took the further investigation of the case, drew inquest mahazar in terms of Ex.P3 and also mahazar in terms of Ex.P2. He also states that he has drawn the spot mahazar and seized the articles which were found at the spot and thereafter deputed staff to apprehend the accused persons. He also states that he came to know that the sim belonging to the deceased was found in Bengaluru. Hence he went to Bengaluru to collect the information. He also drew mahazar in terms of Ex.P5 and P6. He also states that he has recovered the articles at the instance of accused and also recorded the statement of witnesses and after completion of investigation filed the charge sheet. In the cross examination, he admits that PW.12 was not aware of the articles which were stolen from the temple. He also admits that he did not list out the articles which were stolen in the temple. In the complaint, there was no mention about the stealing of the pooja articles.
27. PW.39 CPI in his evidence states that on 16.11.2011 he recorded the voluntary statements of accused Nos.2 to 4, 6 and 7. The accused in their voluntary statement told that if they are taken to the spot, they would show the iron rods used by them. He recorded the voluntary statement in terms of Ex.P30 to 32. Accused Nos.2 to 4, 6 and 7 led them near the hillock and accused No.4 removed two iron rods from the bush. Hence, mahazar was drawn in terms of Ex.P8. The same were seized. He also states in his evidence that he has collected Ex.P12 from the doctor and also received the report in terms of Ex.P35 from RFSL. He also recorded the statement of the photographer and also the other staff who participated in the recovery. In the cross examination, it is elicited that the voluntary statement of accused Nos.2 to 4, 6 and 7 was recorded separately. M.O.Nos.27 and 28 are seized at the instance of accused No.4. It is suggested that accused No.4 did not produce M.O.Nos.27 and 28 and the same was denied.
28. Now let us consider both oral and documentary evidence available before the Court regarding the incident of dacoity and murder. The prosecution relied upon the evidence of P.Ws.9, 10, 11 to 13, 15 and 21 and also the evidence of P.Ws.31, 33, 34 and 39 to prove the guilt of the accused persons. It is pertinent to note that P.Ws.2 and 3 are the inquest witnesses in respect of death of two persons. Law was set in motion based on the complaint of P.W.1, who came to the spot after the information. P.W.9 is the witness who has spoken about M.O.No.27 which was seized at the instance of accused. P.W.39 is the Investigating Officer who has drawn the mahazar. Though P.W9 states that one of the accused produced one iron rod, but he identified accused No.7 in terms of Ex.P.8. It is accused No.4, who had produced the iron rod. In the cross examination, P.W.9 categorically states that M.O.Nos.27 and 28 were the two rods produced by the accused under the mahazar Ex.P8.
P.Ws.32 and 34 have also corroborated with the evidence of P.Ws.9, so also P.W.39, the Investigating Officer who accompanied for the recovery when the accused persons led them and produced the same from the bush. In the cross examination of P.W.32, who is an independent witness, nothing is elicited to disbelieve the case of the prosecution regarding recovery of seizure of two weapons which are marked as M.Os.27 and 28. The RFSL report was also obtained from P.W.35 which was handed over by P.W.27 and subjected for chemical analysis and serological test. Though both the rods were stained with blood, he states that they could not be subjected to serological test, since there was no sufficient blood stains on the rods. The report also discloses that those iron rods were stained with blood. The same is also spoken by P.W.2. Hence, it is clear that the recoveries were made at the instance of accused No.4 and other accused persons also led the team.
29. Apart from the seizure, the gold articles were also seized from the shop of P.W.15. P.W.15 states that he did not issue any receipt, but he identifies the accused persons that all of them came along with accused No.1 and sold the same for an amount of Rs.28,000/-. The main contention of the defence counsel is that the evidence of P.W.15 cannot be believed since there was no receipt for having sold the gold articles which were marked as M.O.Nos.29 to 31.
30. In this regard we would also like to rely upon the judgment of the Apex Court in the case of STATE OF KARNATAKA VS. DEJA K SHETTY (1993 SCC (CRI) 242) wherein the Apex Court has held as hereunder:
“A person who acquires gold jewellery under the given circumstances would never ask for receipt. There is no reason whatsoever for the goldsmith to falsely implicate the respondent-accused specially by surrendering from his own person the gold.
Recovery of stolen ornaments from goldsmith on the basis of disclosure statement made by accused – Articles seized – Goldsmith deposing that accused had sold the ornaments to him – Held, testimony of goldsmith cannot be disbelieved merely because of absence of receipt for purchase.”
31. In this regard, we would like to refer to the judgment of the Hon’ble Apex Court while dealing with Section 27 of the Evidence Act. In the case of RAJU MANJHI VS. STATE OF BIHAR (AIR 2018 SC 3592), the Hon’ble Apex Court has held as hereunder:
“Recovery- Based on confessional statement of accused - Accused allegedly committing dacoity with murder –confession of accused revealing that he broke doors of house of informant and assaulted inmates with wooden sticks – Recovery of used polythene pouches of wine, money, clothes, jewellery based on disclosure by accused and corroborating with his confessional statement and guilt – Admissible in evidence.”
32. The other contention of the learned counsel for the appellant-accused is that in a case of dacoity, if no test identification parade is conducted, the Court cannot rely upon the evidence of prosecution witnesses. Regarding the Test Identification Parade also, the Apex Court in the aforesaid judgment (cited supra) has held as follows:
“Test Identification Parade (TIP)- Non- conduct of – No provision in Code obliging investigation agency to hold or conferring right upon accused to claim TIP –Test Identification Parade does not constitute substantive evidence and governed by Section 162 of Code – Failure to hold TIP would not make evidence of identification in Court inadmissible.
Dacoity with murder- proof-Accused persons allegedly entering inhouse and stealing gold ornaments and cash and causing injuries to family members of informant, resulting in death of one – Evidence of family members of informant describing incident in detail – Upon confessional statement of accused, Investigating Officer raiding house of accused and recovering money and blood stained sticks – Non-identification of accused by witnesses, not fatal to the case of prosecution – Confession of accused depicting his motive.”
33. The main contention of learned counsel for the accused is that the only witness who has identified the accused is PW.12, that too in the examination in chief. In the cross examination, she says that there was darkness and hence she could not identify. In the case on hand, it has to be noted that Section 27 of the Evidence Act is aptly applicable to the case on hand. Based on the confessional statement made by the accused, the jewels and also the silver articles were recovered. PW.15 categorically identified the accused persons and deposed that accused No.1 came along with accused Nos.2 to 4, 6 and 7 and sold the same for Rs.28,000/-.
34. Having considered the recovery of jewels as well as silver articles and also based on the confession statement of accused, M.O.Nos.27 and 28 were the two weapons used for committing the murder and caused threat to PW.12 and having considered the principles laid down in the judgment referred supra, the same is aptly applicable to the case on hand. The prosecution mainly relied upon the evidence of recovery witnesses viz., PWs.9, 15 and other witnesses viz., PW.31, 33 and also the evidence of PW.39 is clear that recovery was made based on the confessional statement of accused persons and recovery of jewels at the instance of accused persons from the shop of P.W.15. Therefore, we do not find any reason to interfere with the judgment of the trial Court in convicting the accused persons for the offences punishable under Sections 396 and 397 of Indian Penal Code.
35. In order to come to the other conclusion nothing is elicited in the cross examination of material witnesses. PW.12 has explained the sequence of events and she was also subjected to assault. The doctor also issued certificate that she has sustained injuries. In the case on hand, the only direct evidence is of PW.12, the evidence of recovery witnesses reveals that these accused persons only committed the murder and dacoity.
36. The other contention of the State that the sentence imposed by the trial Court is not adequate and the same is meager, cannot be accepted for the reason that the incident has taken place in the midnight. There is no direct evidence against accused except the evidence of PW.12. The other evidence is only the circumstantial evidence regarding recovery of weapons and jewels. PW.15 deposed that the accused sold M.O.Nos.5 to 8 and 29 to 31 for an amount of Rs.28,000/- which he has paid. When the entire case rests upon the circumstantial evidence and not on the direct evidence, we are of the opinion that there are no grounds to enhance the sentence as contended by the State.
37. Therefore, the judgment of conviction dated 27.03.2013 passed in S.C.No.154 of 2012 by the Fast Track Court No.III, Mysuru convicting accused Nos.2 to 4, 6 and 7 for the offences punishable under Sections 396 and 397 of Indian Penal Code and sentencing them to undergo rigorous imprisonment for a period of 10 years and 7 years respectively appears to be just and reasonable.
In view of the discussions made above, these appeals are dismissed.
Sd/- Sd/-
JUDGE JUDGE bkp/akc