Ramesh vs State

N. Ananda, J.—The appellant in Criminal Appeal No. 107 of 2014 was arrayed as accused 1, appellants in Criminal Appeal No. 141 of 2014 were arrayed as accused 2 and 3 in S.C. No. 123 of 2010. The final report was filed against accused 1 to 3 and also against accused 4 and 5. Accused 4 and 5 were absconding and they were shown as absconders in final report. Therefore, case against accused 4 and 5 was separated: Accused 1 to 3 were tried for an offence punishable u/s 397 of Indian Penal Code, 1860 on the allegations that on intervening night of 21-6-2010 at about 1.30 a.m. (midnight) accused 1 to 3 along with absconding accused 4 and 5 committed dacoity of gold ornaments, silver articles, a mobile handset and a motorcycle from the house of P.W. 6-Siddaramappa, situate in the outskirts of Akalakatte Village, within the jurisdiction of Channagiri Police Station. It is alleged that accused 1 to 3 had caused grievous injuries to P.W. 6-Siddaramappa and P.W. 7-Sulochahamma. The first information of incident was lodged by P.W. 2-Chidananda, on the following day. The first information was lodged against unknown persons and crime was registered for an offence punishable u/s 397 of IPC. The injured person namely P.W. 6-Siddaramappa was treated by P.W. 11-Dr. G.M. Ashok in Government Hospital at Channagiri. In the first information, there is description of gold ornaments, silver articles, a mobile handset and a motorcycle which were stolen by the accused from the house of P.W. 6. During investigation, accused 1 was arrested on 19-7-2010. P.W. 18-Manjunatha K. Gangal (Investigating Officer) recorded voluntary statement of accused 1 as per Ex. P. 20. Pursuant to voluntary statement given by accused 1 and at the instance of accused 1, stolen articles viz. four gold bangles (M.O. 7), four pairs of fancy gold ear rings (M.O. 8), a gold chain (M.O. 9), four gold rings (M.O. 10), two silver lamps (M.O. 11) and a silver cup/bowl (M.O. 12) were recovered from the house of accused 1.

Accused 2 was arrested on 19-7-2010. P.W. 18 (Investigating Officer) recorded voluntary statement of accused 2 as per Ex. P. 23. Pursuant to voluntary statement given by accused 2 and at the instance of accused 2, a gold bracelet (M.O. 13) was recovered from the house of accused.

Accused 3 was arrested on 19-7-2010. P.W. 18 (Investigating Officer) recorded voluntary statement of accused 3 as per Ex. P. 24. Pursuant to voluntary statement given by accused 3 and at the instance of accused 3, a gold chain (M.O. 14) was recovered from the house of accused 3.

On consideration of evidence adduced by prosecution, I find that inmates of house including P.W. 1-M.N. Basavarajappa, P.W. 2-Chidananda, P.W. 6-Siddaramappa, P.W. 7-Sulochanamma and P.W. 9-Girish were not able to identify culprits as culprits had covered their faces by wearing masks. The aforestated witnesses have not identified accused 1 to 3 before Court. Therefore, proof of charge against accused entirely rests upon recovery of aforestated gold ornaments and silver articles on the information volunteered by accused 1 to 3 and at the instance of accused 1 to 3.

P.W. 3-Govindaraju had accompanied P.W. 18 (Investigating Officer) when accused 1 led Investigating Officer to his house after giving voluntary statement as per Ex. P. 20. P.W. 3-Govindaraju has deposed; on 19-7-2010 P.W. 18-Manjunatha K. Gangal, CPI of Channagiri Police Station had secured P.W. 3 and one Rangappa; on 19-7-2010 at about 7 a.m., accused 1 was present in police station; in the presence of P.W. 3 and another witness, Investigating Officer seized two screw drivers, a steel rod, two plastic hand gloves, a break wire and a mobile handset; Investigating Officer seized above incriminating articles under a mahazar (Ex. P. 11); accused 1 led the Investigating Officer, P.W. 3 and other witnesses to his house, situate in Chikkabennur Village of Channagiri Taluk; police jeep was stopped near the 7 house of accused 1; wife and grandmother of accused 1 were present in the house; accused 1 entered the house and opened almirah and removed four pairs of gold ear rings, four gold bangles, four gold rings, a gold chain, two silver lamps, a silver cup/bowl and handed over the same to Investigating Officer (P.W. 18); P.W. 18 seized the same and prepared mahazar as per Ex. P. 12.

During cross-examination, P.W. 3 has reiterated the version given in examination-in-chief. P.W. 3 has deposed; he did not enquire about the ownership of house from which aforestated gold ornaments and silver articles were recovered from accused 1, however P.W. 3 learnt that accused 1 was the owner of house. P.W. 3 has deposed that he had not seen as to who had opened almirah, however, he had seen that almirah had been opened; he cannot give the weight of gold ornaments recovered at the instance of accused 1.

During cross-examination, nothing has been elicited to discredit evidence of P.W. 3. P.W. 3 is a native of Honnabagi Village, he did not know accused i to 3. P.W. 3 did not have grudge or grievance against accused 1. The evidence of P.W. 3 does not reveal that he was under the obligation of police or he was a stock witness for police. There are no reasons to discredit evidence of P.W. 3.

The other witnesses for recovery namely P.W. 4-Krishnappa and P.W. 5-Hanumanthappa have not supported the case of prosecution. P.W. 4 and P.W. 5 were examined to prove recovery of stolen articles at the instance of accused 2 and 3. Therefore, prosecution has relied upon evidence of P.W. 18 (Investigating Officer).

At the relevant time, P.W. 18-Manjunath K. Gangal was working as CPI of Channagiri Circle; P.W. 18 has deposed; he had inspected the house of P.W. 6 after registration of first information report and found that door of house of P.W. 6 was broken; P.W. 18 seized latches and two stones under a mahazar; P.W. 18 deputed his staff to search culprits; on 19-7-2010, accused 1 was arrested; P.W. 18 learnt that accused 1 was residing in his house at Hubli; P.W. 18 proceeded to Hubli; P.W. 18 learnt that accused 1 was in Hubli Railway Station; P.W. 18 arrested accused 1 in Hubli Railway Station; P.W. 18 brought him to Channagiri Police Station; accused 1 volunteered information as per Ex. P. 20; accused 1 led P.W. 18 and other witnesses to his house; police jeep was stopped near the house of accused 1; accused 1 opened almirah and took out four gold bangles, four pairs of gold ear rings, a gold chain, four gold rings, two silver lamps and a silver kumkum cup/bowl and produced the same before Investigating Officer, who seized the same under a mahazar as per Ex, P. 12.

P.W. 18 has deposed; on 19-7-2010 at 5 p.m., accused 2 was arrested and he was produced before P.W. 18; P.W. 18 recorded voluntary statement of accused 2 as per Ex. P. 23; on the same day, accused 3 was arrested and produced before P.W. 18; P.W. 18 recorded voluntary statement of accused 3 as per Ex. P. 24; accused 1 to 3 were produced before jurisdictional Magistrate and they were taken to police custody; accused 2 led Investigating Officer and other witnesses to his house in Kumbara Oni at Hubli; accused 2 entered the house and removed a suitcase and took out a gold bracelet; P.W. 18 seized the same under mahazar as per Ex. P. 13; thereafter, accused 3 led Investigating Officer and other witnesses to his house, situate in 4th cross, Anand Road, Heggeri Colony, Bhuvaneshwari Nagar; accused 3 went inside kitchen of his house and brought a gold chain, which was seized under a mahazar as per Ex. P. 14; Investigating Officer has taken photographs when aforestated properties were recovered at the instance of accused 1 to 3.

During cross-examination, P.W. 18 has reiterated the version given in examination-in-chief. There are no reasons to discredit the evidence of P.W. 18.

The learned Counsel for accused 1 to 3 would submit that accused 1 to 3 were arrested on suspicion and P.W. 18 had falsely implicated accused 1 to 3 to solve the cases pending in Channagiri Police Station.

This submission cannot be accepted for more than one reason. P.W. 18 did not have grudge or grievance against accused 1 to 3. The voluntary statements stated to have been made by accused 1 to 3 have led to recovery of stolen properties. It is difficult to conceive that Investigating Officer had planted gold ornaments and other valuable properties to falsely implicate accused 1 to 3.

P.W. 2-Chidananda was the first informant and an inmate of house. P.W. 2 has identified gold ornaments and silver articles after they were recovered by the Investigating Officer, pursuant to voluntary information given by accused 1 to 3. From the description of articles, we find they bear distinctive features.

P.W. 6-Siddaramappa has also identified gold ornaments and silver articles and he had identified a mobile handset.

The evidence of P.Ws. 2 and 6 regarding identification of gold ornaments and silver articles and a mobile handset has not been controverted by accused 1 to 3.

The learned Counsel for accused 1 to 3 would submit that accused 1 to 3 were not identified either at the time of incident of dacoity or before Court. Therefore, accused 1 to 3 cannot be convicted entirely on the basis of voluntary statements stated to have been made by accused 1 to 3 and recovery of stolen properties.

The learned Counsel for accused 1 to 3 would submit that P.W. 3 is a friend of P.W. 6. Therefore, evidence of P.W. 3 cannot be accepted.

P.W. 3 cannot be branded as a interested witness because he was a friend of P.W. 6. Accused 1 to 3 were not known to P.W. 3. P.W. 3 did not have grudge or grievance against accused 1 to 3. Above all, evidence of P.W. 3 is supported by recovery of stolen properties from possession of accused 1 to 3. Therefore, this submission cannot be accepted.

The learned Counsel for accused 1 to 3, have relied on the following decisions:

I. Babuda Vs. State of Rajasthan, ;

II. State of Rajasthan Vs. Talevar and Another, ;

III. N. Rajendra Prasad Bhat Vs. The State of Karnataka, .

In a decision in Babuda''s case, the Supreme Court has held that accused cannot be held guilty of an offence punishable u/s 302 of IPC, merely because he was in possession of stolen articles after a period 1 or 1 1/2 months.

In a decision in Talevar''s case, the Supreme Court has held that presumption as to culpability of accused on mere possession of stolen articles u/s 114-A of the Indian Evidence Act, 1872 cannot be raised as such presumption depends upon nature of property.

In a decision in N. Rajendra Prasad Bhat''s case, the Supreme Court has held in a case which is based on circumstantial evidence, the circumstance alleged against accused must be conclusively established and chain of circumstances must be proved to exclude reasonable hypothesis of innocence of accused.

In the case on hand, prosecution has relied on recovery of stolen properties on the information volunteered by accused 1 to 3 from possession of accused 1 to 3 within a period of one month from the date of offence. The stolen properties bear distinctive features and they have been identified by victims of dacoity. The medical evidence would establish that victim of dacoity (P.W. 6) had been assaulted by accused 1 to 3 with dangerous weapons. P.W. 6 had suffered hurt and the other inmates of house had been put to instant fear of death.

The evidence of Investigating Officer relating to arrest of accused 1 to 3, voluntary statements given by accused 1 to 3 and recovery of stolen properties on the information volunteered by accused 1 to 3, seizure of stolen properties from house of accused 1 to 3 does not suffer from any discrepancies.

The prosecution has relied on circumstance of recovery of stolen properties on the information volunteered by accused 1 to 3 at the instance of accused 1 to 3 and from possession of accused 1 to 3. In my considered opinion, the prosecution has proved this circumstance beyond reasonable doubt. The evidence on record does not give raise to hypothesis which is inconsistent with the guilt of accused 1 to 3. The learned Trial Judge on proper appreciation of evidence has convicted accused 1 to 3. There are no reasons to interfere with the impugned judgment.

The learned Counsel for accused 1 to 3 would submit that a lenient view may be taken in the matter of sentence. It is established from evidence on record that accused 1 to 3 had committed dacoity in the house of P.W. 6 during intervening night of 21-6-2010. When inmates of house offered resistance, accused 1 to 3 had caused hurt to P.W. 6 with dangerous weapons. Accused 1 to 3 had committed dacoity of valuable gold ornaments, silver articles, a mobile handset and a motorcycle in the house of P.W. 6. The accused have chosen the lone house of P.W. 6, which is situate at a distance of one kilometre from Akalakatte Village. There are no mitigating circumstances to reduce the sentence. In the result, I pass the following:

ORDER

The appeals are dismissed. The benefit of set off given to accused 1 to 3 by Trial Court u/s 428 of the Criminal Procedure Code, 1973, and the order of Trial Court regarding disposal of properties are confirmed.