State of Karnataka vs Siddaraju

N. Ananda, J.—The respondent (accused) was tried for offences punishable under Sections 457 and 380 IPC, on the allegations that on 23.10.2004 during night, committed a house breaking to commit theft of a pair of gold ear studs and a sum of Rs. 1,000/- from the house of PW4-Raju in Nagarathnamma Layout of Gundlupet town. The first information of incident of house breaking and theft was lodged on the following day. The accused was arrested during intervening night of 8/9-2-2005. On the voluntary statement given by accused, stolen properties were recovered and they were identified by the first informant. The learned Trial Judge has disbelieved the evidence relating to recovery of stolen property and voluntary statement given by accused and acquitted accused. Therefore, State is before this Court.

I have heard learned Government Advocate for State and learned counsel for accused.

The incriminating evidence adduced by the accused consists of voluntary statement given by accused and recovery of stolen properties from shop of PW5-Hanumantha Ram of Bommalapura on the information volunteered by accused.

It is proved from the evidence of PW4 that there was theft of gold ear studs and cash from his house and the theft was committed by breaking the house of PW4. PW4 had lodged first information against unknown persons. The evidence of PW4 cannot be suspected.

The evidence of recovery of stolen properties (a paid of gold ear studs) on the information volunteered by the accused is given by PW5-Hanumantharam, PW6-Nagappa, PW7-Manjunath, PW9-M. Shekar Raju, PW10-Amarnarayana and PW11-B.N. Nataraju.

At the relevant time, PW9-M. Shekhar Raju was working as Head Constable of Gundlupet Police Station. PW9 has deposed that on 8.2.2005, PW-11-B.N. Nataraju, Sub-Inspector of Police and other constables were on patrolling duty, on that day at about 2.30 a.m., when they were near Ashwini Extension, one person was running away from the place, he was chased and apprehended. He was later identified as accused. On enquiry that accused was required in several cases registered against him. On enquiry, the accused confessed to have committed theft in the house of PW4. The Sub-Inspector of Police secured panchas and secured panchanama and sized an iron rod from the possession of accused. The same was seized under a Mahazar. On the following day, PW9, Sub-Inspector of Police and other witnesses had taken the accused to the shop of PW5 in Bommalapura Village. At the instance of accused, PW5 gave two pairs of ear studs and they were seized by Sub-Inspector of Police.

Contrary to evidence PW9, PW11 has deposed that at the relevant time, he was working as Sub-Inspector of Police. On 8.2.2005, PW11 and other staff members were on patrolling duty. On that day, at 2.30 a.m., when they were patrolling near Ashwini Extension, one person was waiting to commit theft. He was apprehended and arrested and they noticed that person (accused) was required in Crime Nos. 107/2003 and 114/2003 of Gundlupet Police Station. On personal search of the accused, he found an iron rod in the possession of accused. The accused was brought to police station and on enquiry, he confessed that he had committed theft in the aforesaid cases. He was arrested in Crime No. 294/2004 and his voluntary statement was recorded. He was brought to house of PW4 and a spot Mahazar was prepared. Thereafter, accused was taken to Bommalapura village. The accused led them to shop of PW5. At the instance of accused, PW5 gave two pairs of ear studs. They were seized under a Mahazar.

PW6-Nagappa is stated to have attested the recovery Mahazar of the stolen properties from the shop of PW5. PW6 has deposed that on a certain date at about 8.15 a.m., when PW6 was in shop of PW5, PW11-Sub-Inspector of Police and other police constables came to shop of PW5, at the instance of accused, PW5 gave two pairs of gold ear studs. They were seized under Mahazar.

The prosecution has examined PW8-Mahadevappa. PW8-D. Mahadevappa has not supported, the case of prosecution.

From the above evidence, it is clear that accused was arrested at 2.30 a.m. during the intervening night of 8/9-2-2005. As per evidence of PW9, soon after the accused was arrested, he volunteered the information about commission of offence. At that time, Sub-Inspector of Police (PW11-B.N. Nataraju) was present. He did not record statement of accused. The statement volunteered by the accused, is not found in evidence of PW11. The statement given by accused is not only related to this crime, but also other crimes. The statement of the accused is marked as Ex. P10. It is relevant to state that Ex. P10 is in the form of confessional statement and the statement leading to discovery of fact admissible u/s 27, cannot be separated from the entire statement. As per evidence of PW9, the accused had given voluntary statement, soon after he was apprehended. PW11 (Sub-Inspector of Police) has not deposed about the statement given by accused soon after he was apprehended. Therefore, evidence of PW11 that the accused was arrested, brought to police station and thereafter the accused gave voluntary statement as per Ex. P10, cannot be accepted.

The evidence of PW5 relating to recovery of stolen articles is not credible and consistent. PW5 has deposed that he had purchased one pair of gold ear studs studded with white stones and another pair of gold ear studs studded with red stones. PW5 has deposed that he had purchased two pairs gold ear studs from the accused. PW5 has not given date of on which he had purchased because he had not maintained any records with regard to purchase of gold ear studs from accused. The evidence of PW5 does not reveal that accused had sold two pairs of gold ear studs to PW5.

At this stage, it is relevant to notice the contents of property form, wherein, it is shown that PW11-Investigating Officer had recovered a pair of gold ear studs studded with red and white stones and another pair of plain gold ear studs studded with one red stone. There is discrepancy the description of stolen property. It appears that Crime No. 102/2003 and 114/2003 registered for offences punishable under Sections 457 and 380 IPC were pending in Gundlupet Police Station. The accused was arrested and interrogated in that connection. There was recovery of properties in relation to the aforesaid cases. The police inspector under the apprehension that the accused was responsible for committing theft in house of PW4, had implicated the accused. The evidence of PW4 is contrary to the evidence of Investigating Officer. PW4 has deposed that he lodged first information relating to the theft that had taken place in his house on the following day of incident. It is seen from the evidence of PW4 that he has included other items while giving evidence. PW4 has deposed that not only a pair of gold ear studs but also a pair of gold bangles and a sum of Rs. 2,000/- were stolen from his house. He has further deposed that the bangles were not gold bangles, but they were rolled gold bangles. PW4 has deposed that two weeks after the incident of theft, police informed him that they have recovered stolen property. Therefore, he came to police station and identified gold ear studs. As per the evidence of investigating officer, stolen properties were recovered on 9.2.2005, after a period of 31/2 months from the date of incident. Therefore, evidence of recovery of stolen property from accused is not free from reasonable doubts. In the circumstances, there are no reasons to interfere with the impugned judgment. The appeal is dismissed.