State vs Murthy and Others

H.S. Kempanna, J.—State has preferred this appeal challenging the judgment and order of acquittal of the respondents/accused. The respondents/accused along with A4, whose case as of now been split up, were tried on the charge for the offence punishable u/s 395 of IPC. It is alleged that on the intervening night of 22.5.1998 and 23.5.1998, accused along with the present absconding accused had committed dacoity in the house of PW 1 and PW 7 situated in their garden land at Doddanayakanahalli coming within the jurisdiction of Yagati police station and at the time of dacoity, they took away the valuable movable properties and also cash which comprised of both gold jewellery and silver articles valued at Rs. 51,450/- respectively from the said houses and further, at the time they committed dacoity they also put PWs 1, 2, 7 & 8 and their children in fear of instant hurt and thereby they have committed the aforementioned offence.

It is the case of the prosecution PW 1 is the husband of PW 2. He is living in his farm house situated at Doddanayakanahalli along with his children. Likewise, PW 7 is the husband of PW 8 and they are residing with their lone son in their farm house which is situated adjacent to the farm house of PW 1 at Doddanayakanahalli.

It is the case of the prosecution on the intervening night of 22.5.1998 and 23.5.1998 at about 00.00 hours, accused came near the house of PW 1, tapped on the door to which PW 1 and his wife did not respond. Thereafter, they forced opened the window upon which PW 1 saw the accused standing near the house. The accused threw chilli powder and thereafter forced opened the door of the house and by putting under fear of instant hurt to PW 1, his wife-PW 2 and their children, they took away the gold jewellery, silver articles and other valuable house hold articles and also cash worth about Rs. 21,450/-. After committing dacoity in the house of PW 1, they went to the house of PW 7 and there also they committed dacoity by putting PW 8 - his wife under fear of instant hurt and from the said house also they took away the gold jewellery, silver articles and other articles and also cash of Rs. 8,000/- in all worth Rs. 30,000/-. Thus according to the prosecution the accused in all took away the property from the two houses of PWs 1 and 7 valued at Rs. 51,450/-.

It is the case of the prosecution after the accused left the spot, PW 1 went to Yagati police station at about 12 noon on 23.5.1998 and filed his complaint - Ex. P1 before PW 17-PSI who on receipt of the same registered a case in crime No. 57/1998 for the offence u/s. 395 of IPC against unknown accused persons and issued FIR as per Ex. P8 to the Jurisdictional Magistrate. Thereafter PW 17 proceeded to the scene of occurrence situated at Doddanayakanahalli and there he drew up the spot panchanama as per Ex. P2 in the house of PW 1 and Ex. P3 in the house of PW 7 in the presence of the pancha-PW 3 and at time of Ex. P3 he recovered MOs 1, 2 and 3. After completing Ex. P2 and P3, he handed over further investigation of the case to PW 16, the CPI who is the investigating officer in the case.

PW 16 on taking over the investigation recorded the statements of the witnesses which comprised of PWs 2, 7 and 8. He also made efforts to trace the accused and also deputed his staff for the said purpose. During the course of investigation on 17.5.1999 he arrested A1 to A3 on being produced by PW 13 - PSI of Birur police station. He interrogated them and recorded their voluntary statements as per Exs. P25, P26 and P27. Thereafter, in pursuance of the statements of A1 to A3, he recovered MOs 2 and 3 under Ex. P4, MOs 4, 5, and 13 under Ex. P5 and MOs 14 and 15 under Ex. P6 in the presence of the pancha � PW 4. Further, he also recovered MOs 6 and 7 at the instance of A1 and A3 under Exs. P11 and P12 in the presence of the pancha � PW 6. Thereafter, on completion of their arrest formalities he got them remanded to judicial custody. Continuing the investigation PW 16 arrested A4 and A5 on 19.5.1999 on being produced by PW 13. On their interrogation he recorded their voluntary statements as per Exs. P30, P31 respectively. He also arrested A6 on the very day on being produced by PW 14 and on his interrogation he recorded his voluntary statement as per Ex. P29. Thereafter in pursuance of the statements of A1 and A5 he recovered MO8, MO9 and MO 17 respectively under Exs. P8 and P9 in the presence of the pancha � PW 5. At the instance of A6, he recovered MOs 16 and 18 under Exs. P10 and P7 respectively in the presence of the pancha � PW 5. On completion of this seizure at the instance of the accused, he got A4, A5 and A6 remanded to judicial custody. Continuing the investigation on 25.8.1999 he arrested A7 and A9 on being produced by PW 13. On their interrogation he recorded their voluntary statements Exs. P32 and 33 respectively. Thereafter in pursuance of the said statements of A7 arid A9, he recovered MOs 10, 19, 20 and 24 under the panchanama Ex. P34, MOs 21 and 23 at the instant of A9 under Ex. P35 respectively in the presence of the panchas. Thereafter, on completion of their arrest formalities he got them remanded to judicial custody. Again on 28.8.1999 he arrested A8 on being produced by PW 15. On his interrogation he recorded his voluntary statement as per Ex. P36, in pursuance of the same, he recovered MOs 11 and 12 under the panchanama - Ex. P37 in the presence of the pancha. Thereafter, on completion of his arrest formalities got him remanded to judicial custody. PW 16 during the course of investigation upon seizure of the material objects at the instance of the accused showed them to PWs 1, 2, 7 and 8 and on their identification of the same having belonging to them, seized them, sealed them and kept in safe custody. PW 16, thereafter issued a requisition to PW 12, the Taluka Executive Magistrate to hold test identification parade, in pursuance of which PW 12 held test identification parade on two occasions on 21.6.1999 and 18.9.1999. In the said identification parade held by PW 12, PWs 1, 2, 7 and 9 identified A1 to A6 and A7 to A9. Accordingly, he submitted his reports as per Ex. P15, P19 and P20 to 23 to the investigating officer. Thereafter, PW 16 on completion of the investigation submitted final report against the accused before the jurisdictional Magistrate.

The prosecution in support of its case in all examined PWs 1 to 17 got marked exhibits P1 to P37 and MOs 1 to 24. The accused during the course of examination of the prosecution witnesses got marked exhibits D1 to D3.

After the closure of the prosecution evidence the accused denied all the incriminating circumstances in their statements recorded u/s. 313 Cr.P.C. They also submitted that they have no defence evidence to lead. Total denial of the prosecution case is the defence of the accused.

The trial Judge on consideration of the oral and documentary evidence on record came to the conclusion that the prosecution has failed to establish the charge leveled against the accused and accordingly, by the impugned judgment and order acquitted the respondents/accused of the charge leveled against them.

The State being aggrieved by the judgment and order of acquittal is in appeal before this Court.

We have perused the records.

The learned Addl. SPP assailing the impugned judgment and order contended the evidence of PWs 1, 2, 7 and 8 coupled with the evidence of PWs 12 and 16 clearly establishes that accused are the culprits in the case. PWs 1, 2, 7 and 8 not only identified the accused as culprits, but also have identified the gold jewellery, silver articles and other articles which are at MOs 2 to 22 and 24 as the one belonging to them, which has been seized at the instance of the accused in the case. Nothing has been elicited in the cross examination of these witnesses or the investigating officer who has conducted seizure of the articles belonging to the said witnesses. The learned trial Judge without appreciating the evidence of these witnesses in its right perspective has committed an error in coming to the conclusion that the prosecution has failed to establish the charge leveled against the accused which finding is contrary to the evidence on record, it cannot be sustained, it be set aside and the accused be punished in accordance with law.

In view of the aforementioned facts, evidence and the documents on record the point that arises for our consideration is,

Whether the impugned judgment and order of the trial Court calls for any interference?�

Dacoity having taken place in the house of PWs 1 and 7 on the intervening night of 22.5.1998 and 23.5.2008 situated in their farm house at the Doddanayakanahalli coming within the limits of Yagati police station is not disputed to before us. It is amply established from the evidence of PWs 1, 2, 7 and 8 and also PW 17 and PW 16, the police officers. The question is, whether the prosecution has established whether the accused have committed the dacoity in the house of PWs 1 and 7.

In order to establish the same they have relied upon the testimonies of PWs 1, 2, 7, 8, 12, 13, 16 and the panchas for the seizure panchanamas under which MOs 2 to 22 and 24 have been seized. The said panchas are PWs 4, 5, and 6. We may mention here itself the panchas for the recovery made at the instance of the accused viz. A4, A5 and A6 have not supported the case of the prosecution in toto.

The/recoveries effected by PW 16 on the information furnished by accused in the case is nearly about a year and three months after the occurrence. The pancha to the recovery have not supported in toto as pointed earlier. PWs 1, 2, 7 and 8 have identified MOs 2 to 22 and 24 only in the court. In view of the fact that the panchas have not supported the seizure and as the seizure has been made nearly about a year and three months after the occurrence, we find it difficult to accept the recovery made at the instance of the accused.

Insofar as the identity of the accused is concerned, the prosecution firstly has relied upon the testimony of PW 12, the Taluka executive Magistrate who has conducted the test identification parade. We have gone through the evidence of PWs 1, 2, 7 and 8 who had been summoned to the test identification parade conducted by PW 12. Their evidence is not consistent with regard to the identity of the accused. PWs 1 and 2 themselves do not corroborate with each other as to which of the accused have entered the house among the five accused whom they saw when they entered the house at the time of the occurrence. Admittedly according to the said witnesses there was no electricity on that night in their house. They claimed that they could see the accused persons with the help of the torch lights that was put on them by the accused which, in our view, cannot be believed because they could not have seen if the accused have flashed the torch light on their faces.

Apart from the same, the evidence on record reveals that the accused had covered and painted their faces with white and black colour. Admittedly, it was a dark night. A perusal of the calendar for that month in that year discloses that the new moon day was due on 26.5.1998 and the occurrence has taken place on the intervening night of 22.5.1998 and 23.5.1998. If that is so, these witnesses having seen the accused as culprits on that night also becomes doubtful.

Apart from this PWs 7 and 8 in their evidence have stated that they have seen the accused in the police station before identifying them in the test identification parade. In that view of the matter the identification of the accused in the test identification parade held by PW 12 also does not come to the aid of the prosecution. Apart from the same the evidence of PW 12 does not disclose that he had taken all the precautions as contemplated under law to hold test identification parade. In view of the fact that PWs 7 and 8 have stated that they had seen the accused in the police station much prior to the test identification parade and as PWs 7 and 8 are closely related to PWs 1 and 2 inasmuch as PW 7 is the elder brother of PW 2, we find it difficult to accept the case of the prosecution. Taking from any angle the evidence placed on record by the prosecution to connect the accused with the alleged dacoity in the house of PWs 1 and 7 does not inspire any confidence to place reliance on the same. The learned trial Judge on appreciation of the entire material on record, in our view, has come to the right conclusion in holding that the prosecution has failed to establish the charge leveled against the accused which finding in our view does not suffer from any infirmity calling for interference in this appeal. Accordingly, we do not find any merit in the appeal and it is dismissed.