Venkatesh, Sunil Kumar @ Sunil, Naveen @ Naveen Kumar and Mohan Kumar @ Chatri Mohan vs State of Karnataka

A.S. Pachhapure, J.—Though the matter is posted for hearing on Interlocutory Application, on earlier occasion it was posted for final hearing and with the consent of the learned counsel for the appellants and the learned High Court Government Pleader it is taken up for final disposal. The appellants have approached this Court challenging the judgment and order convicting them for the offence u/s 395 IPC, directing to undergo imprisonment for five years and to pay fine of Rs. 10,000/- each.

The facts relevant for the purpose of this appeal are as under:

On 15.3.2011, PW7 Venkateshamurthy with his friends PW8 Ramesh, PW9 Radha Krishna and PW10 Krishna were proceeding from Kolar to Devanahalli in their Santro Car bearing Registration No. KA 08 M-684. At about 2.45 p.m. when they were near Bettahosapura, their car was intercepted by a Tata Sumo, wherein there were about five to six strangers and after stopping the car, they came out with deadly weapons like choppers and clubs, snatched gold ornaments, mobiles and also the cash. The inmates of the car requested them not to assault and by giving a threat the accused snatched a sum of Rs. 60,000/- from PW7 along with a bracelet and two rings with the mobile phone bearing No. 9902543526. From PW9 they snatched a sum of Rs. 30,000/-, a bracelet and a gold chain. From PW8 Ramesh they snatched a sum of Rs. 25,000/-, two gold rings and from PW10 they snatched a gold chain and a sum of Rs. 30,000/-. After giving threat of danger to their life not to disclose this incident to anybody, they went in a Tata Sumo brought by them. The number plate of the vehicle Tata Sumo was pasted with white paper and immediately PW7 called the police on the mobile phone of PW9 Radha Krishna and intimated this incident. Later they went to the Vemagal police station and submitted their complaint Ex. P14 which came to be registered in Crime No. 39/2011 for the offence u/s 395 IPC.

At 4.00 p.m. on that day PW6 Prakash Gowda, the Deputy Superintendent of Police traced the Tata Sumo which was standing by the side of the road, in which the accused came and snatched the ornaments and cash and accused No. 5 was apprehended at that place. A report Ex. P12 was submitted by the Deputy Superintendent of Police PW6. The police interrogated accused No. 5 and recorded his voluntary statement. He disclosed the names of other accused. Accordingly, they arrested accused Nos. 3 and 4 and under the mahazar Ex. P3 they recovered a sum of Rs. 2,800/- from accused No. 3, from accused No. 4 under the mahazar Ex. P4 they recovered a sum of Rs. 1,400/-, under the mahazar Ex. P1 they recovered a sum of Rs. 2,000/- from accused No. 5. Likewise, under Ex. P2 they recovered a sum of Rs. 1,800/- from accused No. 6. The police officer held the spot mahazar Ex. P7 in the presence of PWs. 3 and 4. Statement of the witnesses were recorded and the Tata Sumo was seized under the mahazar Ex. P3 along with choppers and clubs in the said vehicle. Santro Car bearing No. KA 08 M-684 in which PW7 and his friends were travelling was also seized. PW5 assisted the Investigating Officer in the seizure of the cash and other materials. On completion of the investigation, a charge sheet came to be laid against the accused for the offence u/s 395 IPC. Accused Nos. 1 and 2 are absconding.

In the trial held as against the appellants who are accused Nos. 3 to 6, the prosecution examined PWs. 1 to 14 and got marked the documents Exs. P1 to P17 and MOs. 1 to 9. Statement of the appellants were recorded u/s 313 Cr.P.C. No defence evidence was led. But, the accused got marked Exs. D1 and D2, the contradictions in the statements of PWs. 9 and 10. The trial Court after hearing the counsel for the parties and on appreciation of the material on record held the appellants guilty for the charge u/s 395 IPC and ordered them to undergo rigorous imprisonment for five years and to pay fine of Rs. 10,000/- each. Aggrieved by the conviction and sentence, the present appeal is filed.

I have heard learned counsel for the appellants and also the learned High Court Government Pleader for the respondent-State.

The point that arises for my consideration is;

Whether the appellants have made out any grounds to warrant interference in the judgment and order convicting the appellants for the charge u/s 395 IPC?

It is the submission of the learned counsel for the appellants that no Identification Parade was held after apprehending the appellants and therefore it is his contention that in the absence of Identification Parade the evidence of PWs. 7 to 10 cannot be accepted to prove the identity of the accused. So also it is his contention that all the mahazar witnesses have not supported the case of the prosecution and as there is no recovery of incriminating articles or materials, the evidence of recovery cannot help the prosecution to award conviction. He also submits that as the accused were said to have wearing monkey caps at the time of identity in the Court by PWs. 7 to 10 is not acceptable. On these grounds, they have sought for setting aside the conviction and sentence ordered. Alternatively it is their submission that the appellants are facing the trial since many years and relying upon the decision of the Apex Court, the counsel requests to reduce the sentence.

On the other hand, the learned High Court Government Pleader supporting the judgment and order of the trial Court submits that as the incident occurred in the day time and there was sufficient opportunity to the witnesses to see the accused, the evidence of identity in the court being a substantive piece of evidence could be accepted to confirm the conviction. He submits that, as accused Nos. 1 and 2 were in custody of the gold ornaments and the other incriminating materials, the non-recovery of incriminating materials from the present appellants has no bearing on the case of the prosecution. He submits that the appellants have not made out any grounds to warrant interference in the conviction and sentence ordered by the trial Court.

It is in the evidence of PWs. 7 to 10 that on 15.3.2011 they were proceeding in their Santro car bearing Registration No. KA. 08 M. 684 from Kolar to Devanahalli via Narasapur. At about 2.45 p.m. when they were at Bettahosapura, some people came in a Tata Sumo and stopped their vehicle, intercepted them on the way and two persons got down from the Tata Sumo and thereafter five or six persons also got down from the vehicle, they were armed with choppers and other weapons like clubs etc. and said to have snatched the mobile, gold ornaments like bracelet, gold chain, gold rings and cash from PWs. 7 to 10.

Perusal of the evidence of these witnesses would reveal that the incident might have occurred for at-least for few minutes. There was an occasion for all these witnesses to see the accused persons as they were the victims of snatching gold and cash and therefore, when there is sufficient opportunity to the witnesses to see the accused persons, I do not think that there is any necessity for Identification Parade in the aforesaid circumstances.

The learned counsel for the appellant has placed reliance on the decision of this Court reported in 2012 Cr. R. 761 (Kar) in the case of Imran @ Karadi Imran Vs. State of Karnataka. In the aforesaid case, Identification Parade was held after six months of the arrest. In such circumstances, this Court held that the Test Identification Parade has lost its evidentiary value due to inordinate delay. This Court also held that the identification of the accused before the court is a substantive piece of evidence. As could be seen from the facts on hand, the police have not held any Identification Parade. From the evidence of PW7 though he states that the accused were wearing monkey caps, the other witnesses i.e. PWs. 8 to 10 do not speak about the monkey caps having been worn by the accused persons and in their evidence there is no suggestion in the cross-examination of the said witnesses that the accused were wearing the monkey caps at the time of the incident. It appears that a stray admission is found in the evidence of PW7 about wearing of monkey caps. Even during the course of the investigation, the police have not seized the monkey caps either of accused No. 5 who was arrested within two hours of the incident or from accused Nos. 3, 4 and 6. That apart in the cross-examination of PW7 there is a specific suggestion that the persons who looted were not wearing the monkey caps. From this material on record it could be concluded that the accused were not wearing the monkey caps at the time of the incident. Scrutiny of the evidence of these witnesses would reveal that a mobile phone, cash of Rs. 60,000 bracelet and two rings were snatched from PW7 Venkateshamurthy, cash of Rs. 25,000/-, two gold rings were snatched from PW8 Ramesh, cash of Rs. 30,000/- with bracelet and gold chain were snatched from PW9 Radha Krishna and a sum of Rs. 30,000/- and gold chain was snatched from PW10 Krishna. So, to collect all these ornaments including the cash snatching, the process of completion of dacoity would take atleast 15 minutes for the accused and this time is sufficient for the witnesses to see and acquaint with the faces of the accused persons. That apart accused No. 5 was arrested within two hours of the incident along with the Tata Sumo vehicle by PW6 - the Deputy Superintendent of Police and the incriminating articles like club and choppers were found in the said Tata Sumo. It is also in the evidence of these witnesses that the accused were calling by referring two amongst them as Vinay and Ashok who are accused Nos. 1 and 2, thereby from this evidence, identity of accused Nos. 1, 2 and 5 cannot be disputed for the reason that the names disclosed at the time of the incident and accused No. 5 was arrested within two hours of the incident. It is possible for the police to interrogate and know the names of other accused Nos. 3, 4 and 5. So, the identity has been satisfactorily proved by the prosecution on the basis of the aforesaid evidence and also the evidence of PWs. 7 to 10. In these circumstances, I do not think that the principle laid down by this Court in the decision referred to supra could be applied.

So far as recovery of a sum of Rs. 2,000/- from accused No. 5 under the mahazar Ex. P1, a sum of Rs. 1,800/- was recovered from accused No. 6 under mahazar Ex. P2, a sum of Rs. 2,800/- was recovered from accused No. 3 under Ex. P3, a sum of RS. 1,400/- from accused No. 4 under Ex. P4. The attesting witnesses i.e. PWs. 1 and 2 have also not supported the case of the prosecution. Spot mahazar was held in the presence of PWs. 3 and 4, they have also not supported the case of the prosecution. As could be seen from the evidence of PWs. 1 to 4, the signatures on these mahazars is not disputed by the aforesaid witnesses. It is relevant to note that when the attesting witnesses turned hostile or do not support the case of the prosecution, it does not mean that the evidence of the Investigating Officer PW13 is to be disbelieved. In fact either PW13 the Investigating Officer or PW6 the Deputy Superintendent of Police do not have any interest in the prosecution of these appellants and their purpose is only to find out the actual accused and charge sheet them. There is no impediment in accepting the evidence of PW6 and the Investigating Officer PW13 so far as the recovery of the aforesaid sum is concerned. That apart, the evidence of recovery is not a substantive piece of evidence, it is only for the purpose of corroboration of the evidence of PWs. 7 to 10. As a sum of rupees between Rs. 1,800/- and Rs. 2,800/- has been seized from the respective accused, the voluntary statement of accused No. 5 recorded would give the clue that all the money which was snatched, gold ornaments which were taken away by the accused including the mobile phone were said to be with accused Nos. 1 and 2. In such circumstances, mere fact that there is no recovery of the complete amount of cash, the gold chain and other ornaments and the mobile, itself is not an impediment for the prosecution in proving the guilt of the accused.

Admittedly accused Nos. 1 and 2 are absconding and the police have to take steps for apprehension of the said accused.

PW14 is an attesting witness for the mahazar Ex. P13 i.e. seizure of Tata Sumo. PW14 has also not supported the case of the prosecution. But, anyhow it is rather impossible for the police officer to plant the Tata Sumo vehicle along with the choppers and the clubs and at the place where the vehicle was standing, accused No. 5 was also there and he tried to abscond from the place and the police officer apprehended by chasing him. Therefore, this recovery of Tata Sumo and apprehension of accused No. 5 is also an important circumstance to prove the guilt of the appellants.

Taking into consideration the appreciation and re-appreciation of the material placed on record, I think that appellants have not made out any grounds to warrant interference in the conviction and sentence ordered by the trial Court.

So far as the sentence is concerned, the learned counsel for the appellants has placed reliance on the decision of the Apex Court reported in Ram Sunder Mahto and Others Vs. State of Bihar, in the case of ram Sundar Mahto and Others Vs. state of Bihar, wherein, the accused persons were facing the proceedings for 28 years and they were old. In such circumstances, the Apex Court reduced the sentence of imprisonment to three years.

As could been seen from the material placed on record and the 5age of the appellants, their age is 22 to 25 years and as submitted by the learned High Court Government Pleader, apart from the cases under the provisions of Section 395 IPC, some of the accused are offenders in cases u/s 302 of IPC. Further more, trial before the Court below was completed within a year of their arrest and this appeal is also being disposed of at an earliest point of time. In the circumstances, the principles laid down in the aforesaid decision do not apply to the facts on hand. Taking into consideration the nature of the offence and the manner in which it was committed, I am of the opinion that the conviction ordered by the trial Court is just and proper and no grounds are made out to interfere with the sentence as well.

In the result, the appeal is dismissed. The conviction and sentence ordered by the trial Court for the offence u/s 395 IPC are confirmed.