State of Karnataka vs Smt. Jyothi alias Geetha and others

Mohan M. Shantanagoudar, J.—The judgment and order of acquittal dated 3.1 2012 passed by the Fast Track Court-XIV, Bengaluru in S.C.No.816/2009 is called in question in this appeal by the State.

By the impugned order, the Trial Court has acquitted the accused of the offence punishable under Section 395 of IPC.

Case of the prosecution in brief is that, when Pushpa - complainant was alone in the house at about 2.00 p.m. on 10.2.2009, a lady came to her house and enquired about the availability of a rented house in that area; the complainant told the said lady that there is a newly constructed building in that area, which is available for rent, then the said lady went back and once again came to the house of the complainant after 10-15 minutes and requested her to provide drinking water; the complain-am went to kitchen to bring water and in the meanwhile, six boys entered into the house, bolted the door from inside, caught hold of her and took her inside the bed room and assaulted her; they threatened her with a dire consequences by pointing the knife towards her; all of them directed the complainant to give key of almirah, but such request was refused by the complainant; being enraged, all the accused tied her legs, hands and mouth tightly and thereafter, they searched for almirah key and opened the same; they have stolen the gold ornaments of the complainant. The lady, who had come to the house of the complainant was aged about 28 years and six boys, who had entered the house are between the age of 20-22 years. Based on these allegations, Pushpa lodged a complaint as per Ex.P1 in Peenya Police Station, Bengaluru, which came to he registered in Crime No. 81/2009 for the offence punishable under Section 395 of IPC. The complaint was received by PW. 14 - Inspector of Police and the crime came to be registered by PW. 1 - Assistant Sub-Inspector of Peenya Police Station. He sent First Information Report as per Ex.P2 to the jurisdictional Magistrate. The Investigating Officer (PW.14) completed the investigation and laid the charge sheet. During the course of investigation, the Police arrested the accused and recorded the voluntary statement of accused No. 2; the chance finger prints as found on almirah are lifted and the same were compared by the finger print Expert.

The Trial Court framed the charges against all the accused under Section 395 of IPC.

The Trial Court on evaluation of material on record acquitted accused Nos. 1, 2, 4 and 5 by giving benefit of doubt in their favour. It is relevant to note that accused No. 3 was a juvenile and therefore, he was sent to Juvenile Justice Board. Accused No. 6 was dropped for want of material against him, at the time of submission of charge-sheet. The Trial Court thus went only against accused Nos. 1, 2, 4 and 5 for the offence punishable under Section 395 of IPC.

In order to prove its case, the prosecution in all has examined 14 witnesses and got marked 13 Exhibits and 3 Material Objects. On behalf of the defence, no witness is examined.

Learned Government Advocate appearing on behalf of the State taking us through the material on record submits that the Trial Court is not justified in acquitting the accused, more particularly accused Nos. 1, 2 and 4 against whom ample material is found; the identity of accused No. 1 cannot be disputed, inasmuch as she is repeatedly come to the house of PW.4 prior to the incident on one pretext or the other; though the complainant knew accused No. 1 namely, Jyothi, she did not know the name of accused No. 1; three gold ornaments (M.O.Nos. 1 to 3) were recovered at the instance of accused No. 2 from the Pawn Broker shops of PWs. 9 and 11; such recoveries are conducted under panchanama Exs. P9 and P10. The chance finger prints lifted from the almirah tallied with the admitted finger prints of accused No. 4; thus, according to him, the prosecution has made out its case at least as against accused Nos. 1, 2 and 4. He further submits that the reasons assigned and conclusion arrived at by the Trial Court are improper and incorrect. On these among the other grounds, he prays for setting aside the judgment of the Court below.

Per contra, Sri. Sharass Chandra, learned counsel appearing on behalf of respondent No. 4 (accused No. 5), Sri. Ravindra Prasad, learned counsel appearing on behalf of respondent No. 1 (accused No. 1) and Sri. N. S. Sampangiramaiah, learned Amicus Curiae appearing on behalf of respondent Nos. 2 and 3 (accused Nos. 2 and 4) argued supporting the judgment of the Court below. Learned Amicus Curiae not only assisted the Court, but also argued on behalf of accused Nos. 2 and 4. They submit that the Test Identification Parade is not conducted by the Investigating Officer; accused Nos. 2 to 6 were unknown to the complainant; if really accused No. 1 was known to the complainant, she would not have missed mentioning her name in the complaint; the recovery is from accused No. 2 only; the circumstance of recovery is not proved beyond reasonable doubt inasmuch as, the voluntary statement of accused No. 2 was recorded subsequent to the date of recovery of the gold ornaments; though, it is alleged by PW.4/ complainant in her complaint that number of gold ornaments were robbed by the accused, but only three gold items were recovered; the case of the prosecution suffers from inherent defects; the report of finger print Expert cannot be believed, since there is nothing on record to show that the Investigating Officer has obtained the admitted finger prints of accused No. 4 at any point of time; as the judgment of the Trial Court cannot said to be perverse, the Appellate Court shall be slow in interfering with the judgment and order of acquittal. On these among the other grounds, they pray for confirmation of the judgment of the Court below.

The prosecution mainly relies upon three factors for proving its case, which are as under:

(i) The ocular testimony of PW.4 (victim of the incident);

(ii) Recovery of M.O. Nos. 1 to 3, at the instance of accused Nos. 1 and 2;

(iii) That the chance finger prints of accused No. 4 tallied with his admitted finger prints as is clear from the report of finger print Expert - Ex.P5.

As mentioned supra, PW.4 has lodged a complaint as per Ex.P1, which came to be registered in the Police Station at about 5.55 p.m. on 10.2.2009. Based on which, crime came to be registered.

The complaint narrates the incident in detail. The complainant has stated in the complaint that a lady came to her house at 2.00 p.m. on 10.2.2009 and asked for a vacant house or rent; the complainant told the said lady that a new building has come-up nearby and that the same is available for rent; the said lady went back and once again came back after about 10-15 minutes and asked tor drinking water; the complainant thus, went inside the house to bring drinking water for the said lady from the kitchen and in the meanwhile, the said lady facilitated six boys to come inside the house and to commit the offence in question; when the complainant came to verandah of the house, wherein accused No. 1-lady was standing in order to give water to her, she saw six boys standing along with the said lady and all the six persons man handled PW.4, holded her, assaulted her and tied her legs, hands and mouth and committed the offence of dacoity by robbing gold ornaments from the house of PW.4. After the accused left the house without freeing the victim, some how, after 10-15 minutes the complainant could manage to make herself free and thereafter she raised hue and cry, consequently the neighbour came to the spot, before whom the complainant disclosed about the incident. According to the complainant, the robbed items are worth about Rs. 1,00,000/-. The complaint came to be lodged after about three hours from the time of the incident.

In support of the averment in the complaint, PW.4 (complainant) is examined before the Court. The evidence of PW.4 is almost on paramateria with the averments found in Ex.P1. Even in her deposition, PW.4 has deposed about accused No. 1 coming inside her house and asking for a rented house; she has deposed about the said lady going away from the house and coming back after 10-15 minutes seeking drinking water and when the complainant went inside the house for bringing water to accused No. 2, the said lady (accused No. 2) facilitated six boys to commit the offence of dacoity as mentioned supra.

She has identified accused Nos. 1, 2 and 5 before the Trial Court. She has also identified three gold ornaments (M.O. Nos.1 to 3) belonging to her, which were robbed by the accused on the date of the incident.

In the cross-examination, PW.4 has admitted that herself and her friends are running chit business since four years; PW.12 was one of the member of chit fund; accused No. 1 was not the member of the chit fund. Certain omissions are elicited from the evidence PW.4. She has admitted in the cross-examination that except accused No. 1, she did not know the other accused and that she had seen the accused only when all of them had come to her house on the date of the incident in question. On careful evaluation of the evidence of PW.4 complainant, we are of the opinion that her evidence fully supports her case as per Ex PI - complaint. It is no doubt true that certain exaggerations and embellishments are found in the evidence of PW.4. Even if few exaggerations and embellishments are ignored, her evidence is fully reliable, insofar as role of accused No. 1 and other accused are concerned. Her evidence confirms that she knew accused No. 1 and that she could identify other accused, because she has seen their faces in her house at the time of incident in question.

PW.12 is a friend of PW.4. Immediately after the incident, the complainant (PW.4) informed PW. 12 over phone about the incident in question more particularly, about accused No 1 being the part of dacoity team. PW.12 has deposed that she was informed by the complainant that a lady, who had accompanied once to the house of PW.4 along with PW.12 The said lady who came to the house of the complainant seeking a rented house as well as drinking water, facilitated the other accused to commit the incident. It is further deposed by PW.12 that the complainant was running chit business and she had taken first accused to the house of PW.4 once, when she was visiting the house of PW.4 for the purpose of paying chit fund amount to her. Thus, the evidence of PW.12 makes it amply clear that accused No. 1 is not only known to PW.12, but also known to the complainant/ victim of the incident in question.

Having regard to the aforementioned evidence of PWs.4 and 12, we are of the clear opinion that the identity of accused No. 1 cannot be doubted. On the other hand, it can be safely concluded that the complainant knew accused No. 1, though she did not know her name. Consequently, we are of the firm conclusion that accused No. 1 was present at the time of the incident and she had come to the house of PW.4 for seeking rented house and drinking water on the date of the incident in question and she facilitated the other accused for committing dacoity. It is also borne out from the evidence of PW.4 that accused No. 1 along with the other accused had come to her house and she was part of the dacoity, inasmuch as she also supported the other accused to tie her mouth, hands and legs at the time of committing robbery.

The next circumstance relied upon by the prosecution is recovery of M.O. Nos.1 to 3 with regard to gold ornaments of PW.4, at the instance of accused Nos. 1 and 2. In order to prove recovery, the prosecution has relied upon the evidence of PWs.3, 9 and 11.

PW.3 is a Police Constable, who went along with panchas and the accused to Pawn Broker shop at the instance of accused No. 2 for recovering of the gold ornaments. PW.9 is the Pawn Broker and owner of Pooja Bankers whereas PW. 11 is another Pawn Broker and owner of Mothi Bankers situated at Mandya. Curiously, in the matter on hand, the mahazar witness relating to recovery mahazar is not examined by the prosecution before the Trial Court. However, the prosecution relies upon the evidence of PWs.3, 9 and 11.

PW.3 has deposed that accused No. 2 took the police and the panchas to Pooja Bankers shop situated at Mandya; when they entered Mandya town, accused No. 2 showed the said shop and in the said shop, one Mr. Bharath Kumar (PW. 11) was present. The gold ornaments (M.O. Nos.1 to 3) were recovered from the said shop and during the said period, said Bharath Kumar told the Police that accused No. 2 has pledged the gold ornaments twice. In the cross-examination, PW.3 has admitted that he and the panchas along with accused No. 2 left Bengaluru at 6.45 p.m. to go to Mandya and reached Mandya at 9 p.m; thus according to PW.3, the recovery of gold ornaments were made after 9.00 p.m. on 9.3.2009. He has admitted that he has not signed the recovery mahazar and there was no hurdle for him to call the localites of Mandya to act as panchas at the time of recovery.

Be that as it may, the sum and substance of evidence of PW.3 is that all the three gold ornaments were recovered from the shop of Bharath Kumar and that accused No. 2 had pledged the said gold ornaments in the said shop of Bharath Kumar twice. Such recoveries were made at about 9 p.m. on 9.3.2009.

PW.9 is the Pawn Broker and owner of Pooja Bankers shop. He has deposed that accused No. 2 had pledged M.O. No. 1 in his shop about 10 days prior to such recovery and the said gold ornament was seized by the Police in the presence of accused No. 2. He has admitted that he had given the original pawn receipt to accused No. 2 and he has retained the carbon copy of the same. Except making suggestion to PW.9, the defence is not able to discredit the evidence of PW.9. All the suggestions made by the defence are denied by the said witness. Thus, the evidence of PW.9 discloses and clarifies and proves that accused No. 2 had pledged M.O. No. 1 - golden chain in his shop and the same was recovered at the instance of accused No. 2 in the shop by the Police and Panchas under mahazar - Ex.P9.

PW.11 - Mr. Bharath Kumar is another Pawn Broker and owner of Mothi Bankers shop. He has deposed that accused Nos. 1 and 2 had come along with Police on 9.3.2009 to his shop and they recovered the M.O. Nos.2 and 3, at the instance of accused No. 2 on 11.2.2(X)9 under panchanama Ex.P10. According to him, both accused Nos. 1 and 2 had accompanied the Police and showed his shop, wherein they had pledged the gold ornaments. Though the prosecution wanted to produce the Photostat copy of the pawn receipt, the same has not rightly admitted by the Court and it was not taken on record by the Court.

The homogenous reading of the evidence of PWs.9 and 11 makes it clear that M.O. No. 1 is recovered at the instance accused No. 2 from the shop of PW.9 and M.O. Nos.2 and 3 at the instance of accused Nos. 1 and 2 from the shop of PW. 11. Panchanama - Ex. P9 relates to the recovery made in the shop of PW.9 and mahazar - Ex.P10 relates to the recovery made in the shop of PW. 11.

At this stage, learned Amicus Curiae submits that the evidence of PW.3 only runs contradictory to the versions of PWs.9 and 11, inasmuch as the Police Constable has deposed about the recovery of all the three gold ornaments from Pooja Bankers shop that too owned by Bharath Kumar. It is no doubt true that PW.3 has deposed that all the three gold items were seized from Pooja Bankers, which was owned by Bharath Kumar. On the said sole basis, the case of the prosecution should not fail. The evidence on record needs to be considered in its entirety. PWs.9 and 11 being the Pawn Brokers, in whose shops the gold ornaments were pledged have specifically deposed that M.O. No. 1 was seized from the shop of PW.9 and M.O. Nos.2 and 3 were seized from the shop of PW. 11. In the light of such specific evidence of PWs.9 and 11, who are the owners of the respective shops, the arguments of the learned Amicus Curiae cannot be accepted. In our considered opinion, the circumstance of recovery is proved by the prosecution as against accused Nos. 1 and 2. It is no doubt true that there is some confusion with regard to the timing at which the police and the panchas left Bengaluru and the timing at which they reached Mandya or they reached shop of PWs.9 and 11. But the fact remains that the police and panchas have gone the shop of PWs.9 and 11, at the instance of accused Nos. 1 and 2 and thereafter, gold ornaments were recovered at the instance of accused Nos. 1 and 2 on 9.3.2009 under mahazars Exs.P9 and P10.

The last circumstance relied upon by the prosecution is relating to finger print Expert''s opinion. The prosecution heavily relied upon Ex.P5 - the report of finger print Expert, which discloses that the chance finger prints lifted from the almirah of the complainant tally with the admitted finger prints of accused No. 4. The chance finger prints were lifted in the Expert in the field i.e. PW.8 and the same were compared by PW.7. Though there is material to show that the chance finger prints as found on the almirah of the complainant were lifted immediately after the registration of the complaint, there is no material to show as to who and when the admitted finger prints of the accused persons more particularly, accused No. 4 were taken. The charge-sheet also does not contain any material to show that the admitted finger prints of accused No. 4 were taken at any point of time. The said fact is admitted by the Investigating Officer - PW. 14. Since there is nothing on record to show that the admitted finger prints of accused No. 4 were taken at any point of time by the Investigating Officer, it is not possible for the Court to believe the case of the prosecution that the admitted fingerprints were taken and they sent for comparison. In this context, the suggestion made by the defence to PW.7 that the admitted finger prints of accused No. 4 were not at all taken, and only two chance finger prints themselves were compared, assumes importance.

Be that as it may, since we find that the admitted finger prints of accused Nos. 4 were not taken as per law by any person, the case of the prosecution based on the finger print Expert opinion cannot be relied upon. Thus, in our considered opinion, the Trial Court is justified in disbelieving the said circumstance relied upon by the prosecution.

Having regard to the aforementioned material on record, it is clear that the prosecution has proved the presence of accused No. 1 on the spot and her complicity in the incident So also, the prosecution has proved the involvement of accused Nos. 1 and 2 based on recovery of gold ornaments (M.O. Nos.1, 2 and 3), at their instance under panchanama Exn. P9 and P10 from the Pawn Broker shops of PWs 9 and 11. Though the complainant did not know accused No. 2 prior to the incident, it cannot be disputed that the incident has taken place in the day light at 2.00 p.m. that too, within the house of the complainant and that the complaint has clarified that she has seen the face of the accused and that she has identified accused No. 2 before the Court. Added to it, as mentioned supra, the recovery of gold ornaments from accused No. 2 is fully proved by the prosecution beyond reasonable doubt.

However, in our considered opinion, the prosecution has not proved its case as against accused Nos. 4 and 5. The only evidence collected as against accused No. 4 was opinion of the finger print Expert, which cannot be believed by us in the view of the fact that there is no material to show that the admitted finger prints of accused No. 4 were not taken at any point of time by the Investigating Officer. Absolutely, there is no material found against accused No. 5. Hence, in our considered opinion the judgment and order of acquittal passed in favour of accused Nos. 4 and 5 is entitled to be confirmed. However, the judgment and order of acquittal acquitting accused Nos. 1 and 2 is liable to be set-aside and they need to be convicted for the offence punishable under Section 392 of IPC.

Learned counsel for the defence and the learned Amicus Curiae submit that accused No. 1 (a lady, aged about 34 years) has already undergone imprisonment for about 8 months and 21 days during the course of Trial before the Court below. Accused No. 2 has already undergone imprisonment for about 15 months and 20 days before the Trial Court. It is further brought to the notice of the Court that accused No. 2 is still in custody since two months by virtue of the order of this Court dated 12.1.2016 (for about 3 months and 10 days). By the said order, this Court has remanded respondent No. 2/accused No. 2 to judicial custody since he did not respond to the notice issued by this Court for appearance earlier. However, his presence was secured by issuing Non-bailable warrant and was remanded to judicial custody. Thus, it is clear that respondent No. 2/accused No. 2 is also in judicial custody for about 19 months as of now.

Keeping the aforementioned factors, the following order is made:

(i) The judgment and order of acquittal dated 3.1.2012 passed by the Trial Court in S.C. No. 816/2009, acquitting accused No. 4/respondent No. 3 herein - Dayananda Sagara and accused No. 5/respondent No. 4 herein - D. Praveen Kumar alias Praveen of the offence punishable under Section 395 of IPC stands confirmed.

(ii) The judgment and order of acquittal dated 3.1.2012 passed by the Trial Court in S.C.No. 816/2009, acquitting accused No. 1/respondent No. 1 herein - Jyothi alias Geetha and accused No. 2/respondent No. 2 herein - Sanjay alias Sanju alias Ganesha alias Vighnesha alias Raju of the offence punishable under Section 395 of IPC stands set-aside. Instead, accused No. 1/respondent No. 1 herein - Jyothi alias Geetha and accused No. 2/respondent No. 2 herein - Sanjay alias Sanju alias Ganesha alias Vighnesha alias Raju are convicted for the offence punishable under Section 392 of IPC.

(iii) Accused No. 1/respondent No. 1 herein - Jyothi alias Geetha is sentenced to undergo imprisonment for the period, which she has already undergone. However, she is imposed with a fine of Rs.20,000/- (Rupees Twenty Thousand Only). In default, she shall undergo imprisonment for a further period of one year.

(iv) Accused No. 2/respondent No. 2 herein - Sanjay alias Sanju alias Ganesha alias Vighnesha alias Raju is sentenced to undergo imprisonment for a period of two years and to pay a fine of Rs.20,000/- (Rupees Twenty Thousand Only). In case of default of payment of fine, he shall undergo imprisonment for a further period of one year.

The fine amount deposited if any, shall vest in State. Accused No. 2 is entitled to the benefit of set-off for the period which he has already undergone imprisonment as per the provisions of Section 428 of Cr.P.C.

We place on record the valuable assistance rendered by Sri. N. S. Sampangiramaiah, learned Amicus Curiae. The registry is directed to pay Rs. 10,000/- (Rupees Ten Thousand Only) to the learned Amicus Curiae, as honourarium. Appeal is allowed-in-part, accordingly.