Jameer Abdul Gani vs State

Anand Byrareddy, J.—Heard the learned Counsel for the appellants and the learned Government Pleader.

The appellants were the accused before the Court below and have challenged their conviction for the offence punishable under Section 395 of the Indian Penal Code, 1860. The complainant was one Mounesh, driver of a lorry. It was his allegation that on 11.02.2009 he had brought the lorry on which he was engaged as a driver to Gulbarga, on the instructions of the owner, and had loaded the lorry with toor dal and had left Gulbarga at about 10.00 p.m. for Bangalore. When he had crossed Surpur and was 100 metres beyond Devi Cross, a white coloured car is said to have over taken the lorry on the wrong side and had blocked its path, forcing the complainant to stop his lorry. It transpires that five persons had alighted from the car and two of them had rushed into the cabin of the lorry through the driver''s door and three others from the other door and one of them had threatened him with a knife and punched and kicked him and had snatched his mobile phone, while also pulling at his shirt and he was brought out of the lorry and was again kicked and punched and he was robbed of Rs.2,000/- which he was carrying in his pant pocket and when the cleaner tried to put up a resistance, he was said to have been assaulted, repeatedly. Then the time was about 1.30 a.m. on 12.02.2009 and all the five persons after having taken away cash and a cell phone of the complainant had fled away in the car bearing Registration No. KA-36/M-1536 and on the basis of the complaint which was lodged at about 3.00 a.m. with the Shorapur Police, a case was registered in Crime No. 32/2009 against unknown persons and in the course of investigation on the very same day all the five accused were said to have been apprehended at Shahapur and the cell phone belonging to the complainant as well as cash was recovered from them and they were then produced before the Judicial Magistrate and were promptly remanded to judicial custody. Thereafter, alter completion of the investigation, a charge-sheet was said to have been filed. The case was then committed to the Court of Sessions, Gulbarga. The charges were thereafter framed. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 13 witnesses and marked several exhibits. The Court below framed the following issues for consideration:

"1 .Whether the prosecution proves that, on: 12.02.2909 between 1-30 a.m., to 1-45 a.m., while the complainant Mounesh was driving his lorry bearing Reg.No.KA-B/7876 on Krishnapur Laxmipur road, all the accused who came in a car bearing Reg.No.KA-KA/36-153 stopped his lorry and then by threatening him with his life robbed Rs. 2,000-00 and a cell phone from him and thereby committed an offence punishable under Section 395 of Indian Penal Code?

What sentence or order?

And answered the same in the affirmative and convicted the accused.

The learned Counsel for the appellants would contend in support of the grounds raised in the appeal that the very sequence of events as sought to be urged by the prosecution cannot be readily accepted. Apart from the inconsistencies and improbabilities that emerge from the sequence of events, the involvement of the present appellants as the accused is also not established on the basis of the evidence tendered, it is pointed out that if the evidence of the prosecution is examined, it cannot be said that the charges against the accused were proved it all and certainly not beyond all reasonable doubt.

PW-1 was the complainant who claims to have identified the accused at the time of the incident when the light in the cabin of the lorry was turned on and that it was further alleged that accused No. 1 had assaulted him on his face and had snatched the cash and the third accused had taken away his cell phone and he was assaulted by all the accused thereafter, apart from the cleaner of the lorry also being assaulted and thereafter the accused having fled with the car in which them had come.

PW-2, the cleaner has supported the evidence of PW-1 and he has also identified the car which was allegedly used by the accused in committing the offence as well as the knife that was brandished at the time of the incident.

PW-10 was the Investigating Officer who claimed that on the very day of the complaint he was on his rounds, he had found the white coloured car was parked in front of a tea shop, not far from the place where the incident had taken place and with the help of his staff he had surrounded the tea stall where the car was parked and the five accused were apprehended and on interrogation it was discovered that it was the very same accused who had committed dacoity as alleged and he also claims to have recorded voluntary statements as per Exs.P6 to P8 and has recovered the cell phone and cash said to have been taken away from the complainant and had also drawn a mahazar in respect of the seizure so made. This evidence was said to have been supported by PW-9 the Assistant Sub-Inspector anti PW 12 the Head Constable.

Significantly, it is pointed out by the learned Counsel for the appellants that PW-1 and PW-2 though initially supported the case of the prosecution, have subsequently resiled from their statements and failed to identify t he accused and the said witnesses having been treated as hostile witnesses, the very case of the prosecution falls to the ground as the complainant had chosen to resile from the allegations and it was not possible to proceed only on the basis of the statement made in the first instance by PW-1 and PW-2 when they have categorically resiled from their statement. The first principle being that the case of the prosecution should be established beyond all reasonable doubt, would be seriously diluted if'' it is permissible for the contradictory statements of witnesses to be reconciled to suit the convenience of the prosecution. Therefore, he would submit that this exercise of eschewing the later statement resiling from their earlier version being adopted, results in grave prejudice to the accused and it is also pointed out that notwithstanding the above inconsistencies in the evidence of PW-1 and PW-2, whose evidence was crucial for the prosecution to establish its case, being reconciled with reference to a decision of the Supreme Court reported in 2002 Supreme Court Cases (Crimes) 568 is wholly in a different context and would not be relevant to the case on hand and therefore would submit that the summary judgment of the trial Court seeking to hold that the evidence of PW-1 and PW-2 cannot be rejected though they have resiled from their earlier version, during the course of cross-examination and since there was an interval of five months between the dates on which the witnesses had made their respective versions, would be explanatory for their changed stance and since the police witness especially PW-10 who was successful in apprehending the accused not very far from the place where the incident had occurred and the clinching evidence of the cash and cell phone belonging to the complainant having been recovered, would certainly enable the prosecution to contend that it has brought home the charges against the accused, is perverse finding which cannot be sustained and therefore would seek that the accused be acquitted.

Though the learned Government Pleader would seek to justify the judgment of the trial Court, the very sequence of events do not evoke the confidence of this Court. The claim of the complainant that his lorry had been stopped by the accused who were in a white Indica car which had overtaken the lorry from the wrong side and after blocking its path all the five accused alighting from the car, having accessed the cabin of the lorry, two of them from the driver''s side and three of them from the other door of the lorry''s cabin, while the driver was occupying his seat and PW-2 the cleaner was occupying the passengers'' seat and to be able to simultaneously enter the cabin of the lorry and to indulge in a scuffle with the driver and cleaner, certainly boggles the mind. The manner in which all of them were able to get themselves inside the cabin of the lorry while carrying on a physical struggle is beyond one''s imagination. In any event, even if this sequence is accepted, the fact that the incident has occurred at 1.30 a.m. would indicate that there was little light in which the accused could be identified and when they are all totally strangers, the recall of the identity even if there was light in the cabin, as claimed by the complainant, is again difficult to accept. In a moment of extreme danger, when a person is being attacked by several people in the middle of nowhere and at such a late hour, the human mind to be able to recognise and to also be able to recall the identity of a person with any degree of certainty, cannot be readily accepted.

Therefore, the further co incidence that the accused were also apprehended by PW-10 on the very same day, not far from the scene of crime, is also not consistent with the behaviour of criminals, after having committed a serious crime, to be loitering in the very vicinity, without a care as to their apprehension by the police and on the basis of the alleged voluntary statements and seizures said to have been made of cash and cell phone, without there being any possible manner of establishing that the cash seized and the cell phone seized were that of the complainant, is again a presumption which cannot be readily accepted.

Further, the vehicle that was allegedly used by the accused belonging to PW-3 and PW-4, who in turn, in their evidence, have denied the knowledge of the car being used by the accused or they having lent the car to the accused and asserting that the car had always remained in their possession, further dilutes the case of the prosecution that it was indeed the car mentioned, which was used in the commission of the alleged offence. Therefore, with these peculiar circumstances and the significant circumstance that PW-1 and PW-2 had chosen to resile from their version, rendered in the first instance and though there is an interval of five months between the period that they first made a statement before the Court and later resiled from that version, would make little difference when the entire edifice of the prosecution case would collapse in the statements of these two crucial witnesses being contradictory to their earlier statements. The trial Court''s endeavour to reconcile the statements so made, by holding that the evidence tendered in the first instance cannot be negated and seeking to draw sustenance from a decision of the Supreme Court by merely quoting the head note from a report of the said case is a very unfortunate manner relying on a precedent in arriving at the legal principle as to whether such statements could be eschewed in order to sustain the serious charge against the accused. Therefore, it cannot be said that the prosecution had established its case beyond all reasonable doubt.

Consequently, the appeal is allowed. The judgment of the Court below is set aside. The accused are acquitted. The fine amount, if any, paid, shall be refunded to the accused. The bail bonds furnished stand cancelled.