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Judgment
Huluvadi G. Ramesh, J.—This appeal is by accused Nos. 2, 3, 5 and 6 being aggrieved by the order of conviction and sentence passed by the Fast Track Court-V, Bangalore in SC No. 2/2006 convicting the accused for an offence punishable u/s 395 read with 397 IPC and sentencing them to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- each, in default of payment of fine, to further undergo rigorous imprisonment for six months. In all, about 9 accused were chargesheeted by the Upparpet Police Station for the offence punishable u/s 395 read with 397 of IPC showing accused Nos. 8 and 9 as absconding.
According to the prosecution, on 30.08.2005 at about 10.30 p.m. on Kempegowda road within the limits of Upparpet police station near Santhosh theatre over bridge, when CWs.1 and 2 were walking on the road near Santhosh theatre, accused Nos. 1 to 7 along with absconding accused Nos. 8 and 9, with common intention to commit dacoity, by wrongfully restraining CWs.1 and 2, threatened them with knife point and grabbed mobile phone belonging to CW1 and also stabbed him with knife in order to extract money and caused grievous injuries, thereby, they have committed the aforestated offences.
On the strength of complaint filed by the injured, Upparpet police having registered the case in Cr. No. 778/2005 for the aforestated offences, sent FIR to the concerned Magistrate. The police conducted investigation and apprehended the accused and after recording their voluntary statement leading to recovery, filed chargesheet against the accused.
On the basis of chargesheet filed, after having framed charges for the above said offences, accused pleaded not guilty. The prosecution examined in all 14 witnesses and get marked about 20 exhibits and MOs.1 to 8. Thereafter, accused was examined u/s 313 of Code of Criminal Procedure Since the defence is one of total denial, after having heard the arguments, accused Nos. 1 to 7 were convicted for the above said offences. Being aggrieved by the order of conviction and sentence, these accused Nos. 2, 3, 5 and 6 are before the Court in this appeal.
It is the arguments of the learned Counsel for Appellants that only for statistical purpose, accused have been charge sheeted. The alleged incident is said to have been taken place during 10.30 p.m., whereas as per the evidence of doctor, injured was treated in the hospital around 9.30 p.m. He further submitted that identification parade was not conducted so as to identify the accused. The identification of accused for the first time before the Court is improbable. Further, it is submitted that the so called recovery at the instance of accused is false as, none of the witnesses for the accused have supported the case, muchless, there is no legal evidence on record to hold that accused are guilty of the offence. It is also submitted that the recovery of mobile has not been proved. The mahazar witnesses have spoken about their signature in the police station and they have not shown any incriminating articles. Accordingly, it is stated that the Trial Court has committed an error in holding the accused guilty of the offences and sought for acquittal.
It is the argument of learned High Court Government Pleader that accused are involved in some other cases which is evident from the evidence on record and that the accused are guilty of the offence. Accordingly, he submitted that there is no error in the order of conviction.
However, learned Counsel appearing for the accused submitted that some of the accused are arrayed in some other cases. He submits that for statistical purpose and to make believe some of the accused arrayed in other cases are arrested for the purpose of this case and a false case has been foisted against the accused.
In the light of arguments advanced, the points that would arise for consideration is:
a) Whether the prosecution proved beyond reasonable doubt that the accused are guilty of offence u/s 395 read with Section 397 of IPC?
b) Whether the Trial Court committed an error in convicting and sentencing the accused?
c) What Order?
It is the evidence of PW1 - M.C Govindaraju, the Head Constable that, he was on beat duty around 9.00 to 9.15 p.m. in the night on 30.08.2005 and he saw a boy aged about 20 to 25 years who came running from Santhosh theatre and about 10 to 15 persons were chasing him. When he fell down, he found some persons assaulting him and it was informed to him by the public that he had snatched mobile phone, chain and watch and having stabbed the injured, was running away. PW1 enquired the name of that person and he told that his name is Raju. He has also made a confession statement that he along with 4 to 5 persons, has stabbed one of the persons and snatched mobile, gold chain, watch etc., PW1 lodged a complaint as per Ex.P1 and he also identified the accused. PW1 further submits that he went to the place of occurrence and found that one Shamsuddin had sustained injury and he shifted the injured to Victoria Hospital.
From the cross examination of PW1, it is noticed that he has stated that he learnt that some persons have assaulted the injured from a knife and several persons had gathered there and he shifted the injured to the hospital. A suggestion is made to the effect that he has not arrested or produced the accused before the Station House Officer. However, he has admitted that he has taken the injured to Victoria hospital around 9.30 p.m. According the defence version, no such incident has taken place on that day and also he has not arrested the accused Raju nor produced him before the police station,
PW2 - B.K. Nanjaiah is the head constable who had collected blood samples from the injured and handed over the same to P-SL on 14.09.2005.
PW3 - Dr. H.C. Gangadhar is the Senior specialist in Victoria Hospital who has examined the injured. He found one stab wound on abdomen of the injured and got admitted the injured around 9.40 p.m. in the hospital and having opined that injured has sustained grievous injury, issued certificate as per Ex.P3. He also found that injury was caused to the large intestine and there was bleeding.
PW4 - Imran is the pancha to the recovery of incriminating articles, which are said have been recovered by the police at the instance of accused viz., MOs.1 to 6 -the articles like Nokia mobile, watch, sword, long and chopper as per Ex.P4. He has turned hostile.
PW5 - Shiva kumar is the police constable who is said to have apprehended the accused at the instance of accused Raju and he recovered one knife from Praveen the accused and conducted panchanama on 05.09.2005.
During cross examination, he has stated that CWs.6 and 7 who were mahazar witness are not the permanent panchas of his police station and he also denied the suggestion that they have not apprehended accused Nos. 1 to 6 and had not recovered any objects from them.
PW6 - P Hanumantharaya is the police constable who handed over 4 sealed packets to the FSL, Madivala and submitted the report.
PW7 - M.R. Mudavi is the police constable who took over the investigation and filed charge sheet against the accused.
During cross examination, a suggestion was also made to this witness that though accused is not involved in this case, he has filed false chargesheet against them, which he has denied.
PW8 - Shamsuddin is the injured. He has deposed to the effect that on 30.08.2005, he alongwith one Farooq had been to see cinema at Aparna theatre and after watching the cinema, they came near the bridge. When PWS was attending to a phone call, accused surrounded and threatened him with dire consequences and snatched mobile phone from him. Later on, they also tried to snatch watch and assaulted him with a knife on his abdomen, as a result, he sustained bleeding injuries. He further states that he had identified the mobile which is shown to him before the Court and after identification, the Court ordered that the said mobile to be handed over to him.
In the cross examination, this witness has submitted that, when the Incident took place near the over bridge, it was dark and several persons were moving there and he also admitted that for the first time, he had seen the accused when the accused held his shirt collar. He has denied the suggestion that he did not see the accused who had assaulted him and he is deposing falsely at the instance of police and also that he had not seen any of the accused. According to this witness, when the police have taken him in an autorickshaw to the Victoria Hospital, it was around 11.00 p.m. at that time, his college friend Farooq was there with him. He was inpatient for 12 days in the hospital. He has admitted that he has seen the mobile phone in the police station, but could not remember the date. A general suggestion has been made to the effect that he had not seen the accused and the accused had not assaulted him and he Is deposing falsely at the instance of police.
PW9 - Y Joseph is the Police Constable of Upparpet police station. According to him, he has deposed that he had taken accused No. 4 along with him in search of other accused. When they were on beat duty, as per the information of accused No. 4, he apprehended other accused namely Praveen and Manju. However, he denied the suggestion that he has not apprehended any accused nor recovered MOs.6 and 7 from the accused.
PW10 - P. Vijaykumar is the Police Inspector of Upparpet Police Station who has conducted part of the investigation and conducted the scene of offence panchanama. As per the information furnished by CW2 -Farooq, he has conducted spot mahazar. He further states that accused No. 4 had been identified by CWs.4 and 5 namely Kishore and Ningegowda. He has further deposed regarding the voluntary statement of accused Nos. 1 to 3 and 5 to 7 as per Ex.P12 to 17 and also that he has recovered, mobile, phone, knife and chopper at the Instance of accused and recorded the statement of injured and also his friend Riyaz and got identified the mobile belonging to the injured and also submitted the requisition to Taluka Executive Magistrate for conducting the identification parade.
PW11 - Nanjundappa is the Deputy Director of FSL. He has deposed that the articles received by him are stained with blood and also issued report as per Ex.P5 opining that the incriminating articles contain human blood.
PW12 - U.D. Krishnakumar is the Police Sub Inspector of Upparpet Police Station who registered the case and sent the FIR, after recording the statement of injured at Victoria Hospital on 30.08.2005 around 1.20 a.m. on the Intermediate night.
PW13 - Ningegowda is the witness who has identified the accused. He speaks about apprehending of the accused and also about accused holding some weapon, but he has turned hostile. So also PW14 - Shahid who speaks to a similar effect regarding recovery of incriminating articles at the instance of accused Nos. 1 to 6 and he has not supported the version of prosecution.
According to the prosecution, they have apprehended accused No. 4 at the time of incident who revealed about other accused arid the other accused have given voluntary statement. Though, it is stated that the accused have stabbed PW8, it appears that there is no supporting evidence of independent witness regarding the recovery of incriminating articles, but however, police witness is said to have recovered the Incriminating articles like mobile phone, knife, long and chopper.
So far as identification of accused is concerned, what is to be noticed from the evidence of the injured is that, the accused had assaulted him. However, in the absence of any other material and evidence on record to hold that the very accused had assaulted the injured, there may not be a case to convict the accused for an offence punishable u/s 397 of IPC. Although, the injured has sustained injuries, as per the wound certificate, there is no penetrating injury. Further, though there is no recovery of incriminating articles pointing towards the accused, there is recovery of mobile phone and also some incriminating articles like knife and long, but, who has stabbed the injured is not made out by prosecution beyond reasonable doubt i.e., the very accused had assaulted the injured or some other persons. The robbing of mobile phone, watch etc, point out towards the guilt of accused on the basis of recovery. In the absence of any identification parade being held as to who stabbed the injured, identity of the accused by the injured witness cannot be probabilized. However, there is ample evidence on record to hold that accused is guilty of an offence u/s 395 of IPC for having robbed the injured. The Trial Court although has rightly convicted the accused, but committed an error in relying upon the evidence of PW8 to the effect that he had seen the accused from a short distance for the first time. Admittedly, it was dark. The Identification of accused may not be there by the injured witness to believe the version regarding the assault of injured by the accused, as has been accepted by the Trial Court.
The recovery of incriminating articles as well as articles like mobile and watch said to be belonging to the complainant has been identified by the Injured. Apart from that, the witness although have not supported, the police have stated about the recovery of incriminating articles as per the statement of injured. In the circumstances, prosecution is only able to establish the case against the accused for the offence u/s 395 IPC and not for an offence u/s 397 IPC and there is no proper identification parade held.
In the circumstances, appeal is allowed in part confirming the order of Trial Court convicting for the offence punishable u/s 395 IPC and acquitting for the offence punishable u/s 397 IPC.
The order of sentence to undergo rigorous imprisonment for a period of 7 years is reduced to a period of 5 years and the accused is entitled for the benefit of set off u/s 428 Code of Criminal Procedure for the period of detention already undergone during trial and enquiry.
If the accused fails to pay the fine of Rs. 5,000/- as ordered by the Trial Court, they shall undergo rigorous imprisonment for a period of one month.