State vs Mahadeva @ Madaiah and Harish

N. Ananda, J.—The respondents No. 1 & 2 (accused No. 1 & 2) and accused No. 3 and 4 were tried for an offence punishable u/s 392 r/w 34 IPC in C.C. No. 18175/1997 on the file of VIII Additional Chief Metropolitan Magistrate at Bangalore.

Accused No. 3 died during trial. Therefore, case against him abated. Accused No. 4 was absconding. Therefore, case against him was separated. Accused No. 1 and 2 were tried and acquitted for an offence punishable u/s 392 r/w 34 IPC. Therefore, the State has filed this appeal.

I have heard learned State Public Prosecutor for the State.

In brief, the case of prosecution is as follows:

Accused No. 1-Mahadeva was known to P.W. 3- Chandrakala. P.W. 2-Suryanarayana Setty is the husband of P.W. 3-Chandrakala. P.W. 4-Dr. Kiran is the son of P.Ws. 2 and 3. P.W. 5-Padma is a neighbor of P.W. 3-Chandrakala.

At the relevant time, P.W. 2-Suryanarayana Shetty and his family members were residing in the First Floor of House bearing No. 187, Link Road, Malleswaram, Bangalore.

On 21.01.1997, accused No. 1-Mahadeva visited the house of P.W. 2-Suryanarayana Shetty. At that time, P.W. 3- Chandrakala and her son Kiran (PW.4) were present. Accused No. 1 told P.W. 3 that his marriage is fixed. P.W. 3 served breakfast to accused No. 1. He took breakfast and left the house. On the same-day, at about 11.30 a.m., accused No. 1 again entered the house of P.W. 3 and requested her to give drinking water. At that time, accused No. 2 to 4 entered the house. Accused No. 1 to 4 held out threats to life of P.W. 3 by showing knives. They tied her limbs and gagged her and also inflicted injuries on her hands with a knife and the accused committed robbery of gold jewels found on person of P.W. 3 and gold jewellery and silver articles which had been kept in the Almera of the house. After accused attacked the victim, she had fallen unconscious. When she regained consciousness, she noticed that accused had robbed gold jewels from her person and also gold ornaments and silver articles kept in the Almera of her house. She somehow managed to untie the saree which was tied to her limbs and got down to inform the matter to P.W. 5-Padma who consoled her. After sometime, P.W. 3 talked to her husband. The matter was also informed to P.W. 5-Kiran. P.W. 2- Suryanarayana Shetty reached his house and contacted the Police Officer one Govindegowda who came to the house of P.W. 2 and found that his house was ransacked. Thereafter, P.W. 2 after learning the incident from P.W. 3 lodged the first information against four unknown persons. The first information was registered against four unknown persons for an offence punishable u/s 392 r/w 34 IPC.

It is the case of prosecution that on 26.01.1997, the jurisdictional Police Officer (PW.10-K.P. Bheemaiah) received credible information about presence of accused No. 1 and 2 in Rangaswamy Temple Street of Chickpet. P.W. 10 reached the place along with police constables and apprehended the accused. He searched the person of accused No. 1 and 2 and recovered certain stolen articles. He also made recoveries pursuant to the information volunteered by them. At the instance of accused No. 1 and 2, P.W. 10 apprehended and arrested accused No. 3 and 4.

As already stated, accused No. 3 died during pendency of trial, therefore, case against him has abated; accused No. 4 was absconding, therefore, case against him was separated.

In view of acquittal of accused No. 1 and 2 for an offence punishable u/s 392 r/w 34 IPC, the following points would arise for determination:

1) Whether the prosecution has proved that on 21.01.1997 in the house of P.W. 2-Suryanarayana Shetty situate in the First Floor of House No. 187, Link Road, Malleswaram, Bangalore when P.W. 3-Chandrakala was alone in the house, accused No. 1 and 2 along with accused No. 3 (since dead) and accused No. 4 (absconding) committed robbery of gold jewellery from the person of P.W. 3 and removed gold jewellery and silver articles from the Almera kept in the house of accused by wielding knives on P.W. 3 and also threatened her and wrongfully confined her in order to commit theft of aforestated gold jewellery and. silver articles from her person and from the house of P.W. 3, thereby committed an offence punishable u/s 392 r/w 34 IPC?

2) Whether the learned trial judge has properly appreciated the evidence on record?

3) Whether the impugned judgment call for interference?

The case of prosecution rests upon the direct evidence of PW-3 Chandrakala and post occurrence evidence of PW-2 Suryanarayana Setty, PW-4 Dr. Kiran and PW-5 Padma. The prosecution has relied upon the recovery of stolen articles from the possession of accused Nos. 1 and 2 and also recovery of stolen articles in pursuance of voluntary statements made by accused Nos. 1 and 2.

The eyewitness account of the incident of robbery is given by PW-3 Chandrakala and the post occurrence evidence is given by her husband PW-2 Suryanarayana Setty, her son PW-4 Dr. Kiran and neighbour PW-5 Padma.

PW-3 Chandrakala has deposed; on 21.01.1997, at. about 10.30 a.m., PW-2 and her son PW-4 were in their house, at that time, accused No. 1 Mahadeva came to their house and also informed them that his marriage is fixed. PW-3 served him breakfast and coffee. Accused No. 1 took breakfast and coffee and spoke to them for sometime and left the house. PW-4 Dr. Kiran left the house to attend to his job as he was working as a doctor. PW-3 was alone in the house. On the same day (21.01.1997) at 11.30 a.m., accused No. 1 came and tapped the door. When she opened the door, accused No. 1 requested PW-3 to provide drinking water. PW-3 was going towards kitchen to bring drinking water. At that time, two other persons entered the house and all the three persons were sitting on a sofa. PW-3 was also sitting on sofa and she was reading the newspaper. At that time, accused Nos. 1 and 2 took out knives held by them and stood by the side of PW-3. Accused Nos. 1 and 2 brought the cloth and gagged her. They also blindfolded her by a cloth. They dragged her to a room and they tied her upper and lower limbs with a saree. She regained her conscious at 12.30 p.m., (afternoon). She removed the cloth tied around her hands and also removed the saree which was tied around her limbs. The gold jewelry worn by her was missing. She had suffered injuries on her hands. She had suffered injuries on her ears. She has deposed that she felt pain when the accused removed her nose stud and ear studs. She came down and met PW-5 and informed the incident. She also contacted her husband (PW-2) and informed the incident. Immediately PW-2 came to his house and lodged first information. They searched the house and found that gold jewelry worth Rs. 2 lakhs kept in the almirah had been stolen and certain similar articles including similar idols had been stolen. On 23.7.1997, the jurisdictional police informed PW-3 and her husband that they have recovered the gold ornaments and stolen articles, which were stolen from the house of PWs 2 and 3. After two days, they went to Seshadripuram police station and identified the stolen articles. She has given the description of stolen articles.

During cross-examination, PW-3 has admitted, accused No. 1 was residing near their house. Therefore, he was known to her. Accused No. 1 was selling kova. She had purchased kova from him. She has admitted that her husband after thorough enquiry with PW-3, gave complaint (first information) to the police.

At this juncture, it is necessary to refer to contents of complaint (Ex.P2). The contents of Ex P2 do not disclose the name of accused No. 1. If accused No. 1 had visited the house of PW-3 once at 9 a.m. and for the second time at 12.30 p.m., (afternoon), PWs 2 and 3 would not have omitted to give his name. It is the case of prosecution that accused No. 1 had preplanned the robbery and he was the primary accused. In the circumstances, if what has been deposed by PW-3 is true, there was no reason for PW-2 not to mention the name of accused No. 1 in the first information. In the first information, it is stated that four persons had entered the house. The evidence of PW-3 would reveal, three persons including accused No. 1 had entered their house.

PW-3 has categorically admitted, on 23.07.1997, she went to jurisdictional police station and identified the articles stolen from her house and the police recorded her further statement. At this juncture, it is necessary to state that as per the evidence of PW-10 Investigating officer and contents of property forms and recovery mahazars, accused Nos. 1 and 2 were arrested on 26.01.1997, some of the stolen articles were recovered from the possession of accused Nos. 1 and 2 during afternoon of 26.01.1997 and some of the stolen articles were recovered in pursuance of voluntary statements of the accused. Accused Nos. 3 and 4 were arrested at the instance of accused Nos. 1 and 2 during the evening of 26.01.1997. In pursuance of voluntary statement made by accused, certain stolen articles were recovered from PW-6 Manohar Verma and PW-7 Mohan Lal. In the circumstances, evidence of investigating officer that he had recovered stolen articles from the possession of accused Nos. 1 and 2 on 26.01.1997 and evidence of PW-10 that he had recovered stolen articles from PWs 6 and 7 on 26.01.1997 cannot be accepted.

PW-6 Manohar Verma has deposed; that in the month of January 1997, Seshadripuram police had visited his jewelry shop situate in Chickpet at Bangalore. The police had brought one woman and two persons, one amongst them was working in a printing press and PW-6 ''knew that person. PW-6 handed over one gold necklace and gold bangles to police. These ornaments had been pledged by the woman who had accompanied the police and that woman had received Rs. 20,000/- from PW-6. The husband of woman is one Ramesh and accused No. 1 is the brother-in-law of the said Ramesh. The articles were seized under mahazar. Ex. P5. PW-6 has categorically deposed that accused Nos. 1 to 4 had not gone to his shop on the date of alleged recovery.

It is interesting to notice that this witness has made categorical statement regarding the absence of accused Nos. 1 to 4 near his shop when stolen articles were recovered by the police. PW-6 was not declared as hostile witness. Therefore, evidence of PW-6 that accused Nos. 1 to 4 had not gone to his shop at the time of recovery has remained uncontroverted.

PW-7 Mohan Lal has deposed that he was running a shop in the name and style, M/s. Mahendra & Co., situate at Magadi Road. The accused had not come to his shop. There were no transactions between PW-7 and accused. On 22.01.1997, the police had visited the shop of PW-7 and they had brought one woman by name Rajeshwari. She had pledged certain gold jewelry and PW-7 gave a pair of ear rings to police. The police seized the same under a Mahazar.

During cross-examination, PW-7 has deposed that Rajeshwari had pledged a pair of ear studs for a sum of Rs. 500/- and accused had not accompanied the police.

At this juncture, it is relevant to note that the evidence of PW-7 that police had come to his shop along with one Rajeshwari on 22.1.1997 and recovered some stolen gold ornaments has not been controverted. This evidence would show that police had recovered some stolen articles on 22.1.1997 which is contrary to evidence of investigating officer that he had recovered stolen articles from the possession of accused Nos. 1 and 2 on 26.1.1997.

PW-8 has deposed, about 3 years prior to 6.6.2000, he had gone to Seshadripuram police station to get his scooter released, at that time, police told him that they have caught three thieves with gold articles. He cannot remember the exact description of stolen articles which were in possession of each of those persons.

During cross-examination, PW-8 has deposed that about three years back, police seized about 40-50 items. He cannot give the description of those articles. They were gold and silver items.

The evidence of PW-8 regarding seizure of gold and silver items in the police station would lead to an inference that stolen articles were recovered and seized from different places on 26.01.1997. As already stated, PWs 2 and 3 have categorically admitted that they had seen the articles stolen from their house in Seshadripuram police station on 23.1.1997. Therefore, the evidence of investigating officer (PW-10) that he apprehended accused Nos. 1 and 2 on 26.1.2007 and seized some of the stolen articles from their possession and also seized remaining stolen articles from the house of one Rajeshwari (PW-1) and also from the shops of PWs 6 and 7 does not inspire confidence.

The evidence of PW-10, relates to arrest of accused Nos. 1 to 4 and recovery of stolen properties and incriminating articles of this case which are as many as 47. This is also evident from the order sheet maintained by the learned Magistrate. The evidence of PW-10 is contrary to the evidence of PWs 2 and 3 who have deposed that they identified all the articles stolen (gold and silver articles), which were stolen from the house in Seshadripuram police station on 23.1.1997.

The evidence adduced by the prosecution regarding identity of accused No. 1 in police station is not free from doubt. The evidence of PW-10 regarding arrest and recovery of stolen property from the possession of accused and in pursuance of voluntary information furnished by accused does not find support from the evidence of PWs 2 and 3. On the other hand, evidence of PWs 2 and 3 that they identified stolen properties in Seshadripuram police station on 23.1.1997 would belie evidence of investigating officer that the stolen properties was recovered on 26.1.1997. The learned trial Judge has rightly acquitted the accused. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.