Fayaz vs State of Karnataka

Anand Byrareddy, J.—The facts of the case are as follows:

It was alleged that on 22.1.2007 at about 8.30 p.m., when the complainant, Vasantha, was proceeding to her house along I Cross, VP Extension, Chitradurga, on foot, the accused is said to have come from behind her and snatched her mangalasutra chain and is said to have fled with it. The complainant is said to have suffered an injury on her neck as a result of the same. A complaint is said to have been lodged on the next day, on the basis of which a case is said to have been registered against an unknown person.

It transpires that the accused was arrested by chance, by a police constable attached to the jurisdictional police, when he, PW-5 and another noticed the suspicious movements of the accused and arrested him and on further enquiry, the accused is said to have produced the chain from his possession at his house. The arrest was said to have been made on 23.1.2007 according to the said witness. Whereas the actual date of arrest was 25.1.2007, as stated by PW-6, the police inspector before whom the accused is said to have been produced.

In any event after investigation after the accused was apprehended, a charge sheet was laid against him for an offence punishable under Section 394 of the Indian Penal Code, 1860 (Hereinafter referred to as the ''IPC for brevity).

The accused having pleaded not guilty, the prosecution had examined 7 witnesses and marked several documents and a material object in support of its case. After recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, (Hereinafter referred to as the ''Cr.PC. for brevity) the trial court had held that the commission of the offence was proved and accordingly convicted the accused and sentenced the accused to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1000/-.

The accused having preferred an appeal against the said judgment, the appellate court has dismissed the appeal and affirmed the sentence. It is that which is challenged in the present revision petition.

The learned counsel for the petitioner would contend that the courts below have failed to appreciate the glaring circumstances such as'' the identity of the accused having been established as the person who had committed the offence as well as other discrepancies. It is pointed out that the complainant who was examined as PW-1 had stated in her evidence that when the chain was snatched from her neck, the same had snapped, but it was found to be in tact when it was produced in evidence. It was also elicited in her evidence, that she had no chance to see the face of the accused, except to see him flee. And further that she had never seen the accused before, except in the court hall. It is pointed out that both the courts below have glossed over the above admissions in the evidence of PW-1. Admittedly, there was also no test identification parade to enable the complainant to identify the accused. The delay in lodging the complaint is not explained with any convincing reason. The fact that the complainant was a graduate but lacked the confidence to immediately lodge a complaint and had waited for her husband to assist her, is also sought to be highlighted.

The admitted circumstance that there was a contradiction of the date on which the accused was said to have been arrested, with PW-5, the police constable who is said to have effected the arrest claiming that the accused was arrested on 23.1.2007 and the police inspector before whom he is said to have been produced claiming that he was arrested on 25.1.2007, the actual date of arrest, would indicate that the accused may have been falsely implicated. This is especially so when the manner in which the accused is said to have been arrested by chance and on the basis of alleged voluntary statements the article having been recovered from his possession is also not wholly convincing.

The learned Government Pleader, on the other hand, seeks to justify the conviction of the accused.

Rom the material on record, it is evident that the incident had occurred late in the evening and the accused is said to have snatched the chain from the neck of the complainant from behind and had fled. The complainant apparently had not been able to notice the facial features of the accused. Even the physical appearance if had been noticed, the same was not confirmed at a test identification parade, as admittedly none was conducted. The chances of the complainant having accurately identified the accused as being the person who committed the offence is therefore not established beyond doubt.

The other incriminating evidence that is sought to be placed against the accused is the arrest made on suspicion, and by chance and the alleged voluntary statements of the accused leading to recovery of the said article. The very circumstances stated are not convincing. It is not even a case of the accused being a habitual offender and hence having been arrested having confessed to the robbery. The said circumstance also does not evoke the confidence of this court. Hence the findings of both the courts below cannot be sustained in the face of the flimsy evidence on record.

Accordingly, the petition is allowed and the judgments of both the courts below are set aside and the accused is acquitted. The bail bond stands cancelled.