Shaik Ali @ Ali vs State Of Karnataka
2021 Latest Caselaw 682 Kant

                                      Crl.A.No.278/2011

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   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY 2021

                        BEFORE

        THE HON'BLE MRS JUSTICE K.S.MUDAGAL

           CRIMINAL APPEAL No.278/2011
BETWEEN:

SHAIK ALI @ ALI
S/O. LATE ALLABAKASH
AGED ABOUT 20 YEARS
OCCUPATION; WIELDING
R/AT DAYANANDANAGAR SLUM
SOMESHWARANAGAR
NEAR YELLAMMA TEMPLE
SIDDAPURA, BENGALURU- 560 011             ...APPELLANT

(BY SRI T.SWAROOP, ADVOCATE)

AND:

STATE OF KARNATAKA
BY HIGH GROUNDS POLICE STATION
BENGALURU
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BENGALURU- 560 001                      ...RESPONDENT

(BY SRI ROHITH.B.J. HCGP)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION AND SENTENCE DATED
15.02.2011 PASSED BY THE ADDITIONAL SESSIONS JUDGE &
PRESIDING OFFICER, FAST TRACK COURT-12, BENGALURU
CITY IN S.C.NO.713/2010.

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
                                           Crl.A.No.278/2011

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                     JUDGMENT

Aggrieved by the order of conviction and sentence

passed against him in S.C.No.713/2010 by the Additional

Sessions Judge & Presiding Officer, Fast Track Court-12,

Bengaluru City, accused No.1 has preferred the above

appeal.

2. The appellant will be referred to henceforth as

accused No.1. Accused No.1 and accused No.2 Nayu @

Nayaz Khan were tried in S.C.No.713/2010 for the

offences punishable under Sections 392, 397 read with

Section 511 of IPC on the basis of the charge sheet filed

by High Grounds police in Crime No.26/2009 of their

police station. The said case was registered initially for

the offence punishable under Section 394 of IPC on the

basis of the complaint of PW.1 Irfan as per Ex.P1.

3. The first information report in Crime

No.26/2009 was registered initially against accused No.1

and two other unnamed accused. After investigation, the

respondent-police charge sheeted the appellant, accused

No.2 Nayu @ Nayaz Khan, accused No.3 Kulla @ Zameer

and accused No.4 Sadiq for the offence punishable under Crl.A.No.278/2011

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Section 397 of IPC. In the charge sheet itself, accused

Nos.3 and 4 were shown as absconding accused.

4. Since accused Nos.3 and 4 could not be

secured, the Magistrate took cognizance of the offence

against accused Nos.1 and 2 and committed the case to

the Sessions Court only against accused Nos.1 and 2. The

trial Court on conducting trial and hearing the parties

framed the charges against accused Nos.1 and 2 for the

offences punishable under Sections 392 read with Section

397 read with Section 511 of IPC.

5. The charge was that on 10.02.2009 at

10.00 p.m. when PWs.1 & 2 were proceeding in bike

No.KA-04-EY-3686 in front of Devadas Petrol Bunk on

palace road, accused Nos.1 to 4 accosted them in an auto

rickshaw, kicked their bike to fell them to ground and

attempted to commit robbery. It was further alleged that

when PWs.1 and 2 resisted to give cash and key of the

motor bike, the appellant assaulted PW.1 with iron road

on his head and accused No.2 assaulted PW.2 with deadly

weapon.

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6. Since accused Nos.1 and 2 denied the

charges, the prosecution in support of its case examined

PWs.1 to 8 and got marked Exs.P1 to P12. The trial Court

after examining the accused under Section 313 of Cr.P.C.,

and on hearing the parties, by the impugned judgment

and order acquitted accused No.2 and convicted accused

No.1 for the offence punishable under Section 394 of IPC.

Further the trial Court sentenced accused No.1 to

rigorous imprisonment of three years and fine of

Rs.10,000/-. In default to pay the fine, he was directed to

undergo simple imprisonment for four months.

7. The trial Court held that the charge for the

offence punishable under Section 394 of IPC is proved

against accused No.1 by the evidence of PWs.1 and 2

injured eyewitnesses and PW.3 eyewitness.

8. Sri T.Swaroop, learned Counsel for the

appellant seeks to assail the impugned judgment of the

trial Court on the following grounds:

i) There were irreconcilable contradictions,

omissions and commissions in the evidence of PWs.1 to 3.

The trial Court failed to appreciate that appropriately;

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ii) The prosecution though set up the circumstance

of motive and recovery, failed to prove the same;

iii) The trial Court having rightly rejected the

evidence adduced by the prosecution regarding recovery,

fell in error in convicting accused No.1 for the offence of

robbery;

v) Though three persons were cited as

eyewitnesses, only one amongst them was examined;

vi) In the wound certificate, there was no

mention of history of assault in the attempted robbery or

about the weapon.

vii) As per the prosecution itself, accused No.1

was also injured and was examined by the very same

doctor. The prosecution suppressed his medical

examination report.

9. Per contra, Sri Rohith B.J, learned HCGP

seeks to justify the impugned order of conviction and

sentence on the following grounds:

(i) PWs.1 and 2 were the injured eyewitnesses

and there was no reason for them to falsely implicate

accused No.1;

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(ii) The evidence of PWs.1 and 2 was

corroborated by the evidence of PW.3 the other

independent eyewitness;

(iii) The minor inconsistency in the evidence of

the witnesses is bound to occur and the accused shall not

be acquitted magnifying such inconsistency or

improvements, omissions and commission.

10. In support of his arguments, he relies upon

the following judgments:

(i) Takdir Samsuddin Sheikh v. State of Gujarat1

(ii) Kallu v. State of M.P.2

(iii) Ganesan v. State, Rep. by Inspector of Police3

11. The case of the prosecution in brief was as

follows:

(i) PW.1 Irfan is the son of PW.2 A.M.Jiyaulla.

They had shop named Vishaal Plastic situated at Avenue

Road. On 10.02.2009 after completing their day's work,

(2011) 10 SCC 158

(2006) 10 SCC 313

Crl.A.No.680/2020 DD 14.10.2020 Crl.A.No.278/2011

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they were returning to their house at about 10.00 p.m. on

Suzuki Motorcycle bearing No.KA-04-EY-3686.

(ii) PW.1 was riding the motor cycle. When they

were proceeding on palace road, accused accosted them

in an auto rickshaw and one amongst them kicked the

motorbike. Due to the impact, both the motorbike and the

auto rickshaw tumbled. Two amongst the culprits

approached PWs.1 and 2 and tried to snatch the cash bag

from the hand of PW.2 and also the vehicle.

(iii) When PW.1 went to the rescue of PW.2,

accused Nos.1 and 3 assaulted PW.1 on his head with rod

and accused No.2 assaulted PW.2 with knife on his wrist

and caused him grievous injuries. When the victim raised

alarm, public gathered and caught hold of accused No.1

and others escaped.

(iv) Then PW.1 went to the police station along

with accused No.1 and lodged the complaint as per Ex.P1

and produced PW.1 before PW.8.

(v) PW.8 sent accused No.1 and PWs.1 & 2 for

medical examination. Then he visited the scene of

offence, conducted the spot mahazar Ex.P2 in the Crl.A.No.278/2011

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presence of PWs.4 and 5. On the basis of voluntary

statement of accused No.1 he recovered MOs.1 and 2 rod

and the knife under the mahazar Ex.P2;

(vi) During the spot mahazar, he drew the sketch

of the scene of offence as per Ex.P11. On the same day,

PWs.1 and 2 produced their blood stained shirts MOs.3

and 4. PW.8 received them and subjected them to PF as

per Ex.P12.

(vii) Then PW.8 collected the wound certificates of

PWs.1 and 2, recorded the statements of witnesses and

further statements of PWs.1 and 2 and handed over the

further investigation to PW.7. PW.7 filed the charge

sheet.

12. The case of the prosecution was based on

(i) The evidence of injured eyewitnesses PWs.1 and 2;

     (ii)     PW.3 another eyewitness;

     (iii)    The circumstance of motive;

     (iv)     Recovery of Mos.1 and 2;

     (v)      The medical evidence of PW.6; and

     (vi)     The evidence of official witnesses PWs.7 & 8.
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13. Accused No.1 was convicted for the offence

punishable under Section 394 of IPC. The said provision

deals with accused causing hurt to the victim while

committing or attempting to commit robbery. Therefore,

to sustain the order of conviction and sentence it should

have been proved basically that there was an attempt to

commit robbery and nextly in the course of such attempt,

accused No.1 caused hurt to PWs.1 and 2.

14. According to PWs.1 and 2 on the date of the

offence, both of them were proceeding in their motorbike

with cash bag. Two amongst the accused allegedly

demanded PWs.1 and 2 to part with the money and key

of the vehicle. But the Investigating Officer does not seize

any vehicle or cash or the cash bag.

15. PW.1 states that accused demanded cash and

motorbike key. PW.2 did not speak about demand of

money, but speak only about accused attempting to rob

the motorbike. PW.3 states that PW.2 was holding cash

bag and the accused were trying to snatch the same

forcibly and PW.2 was resisting that. Though three Crl.A.No.278/2011

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persons were cited as eyewitnesses, amongst them only

PW.3 was examined before the Court.

16. The defence of the accused was that PWs.1

and 2 had suffered those injuries in the motorbike

accident. The Investigating Officer had no explanation as

to why those material objects either cash or cash bag,

motorbike key or the motorbike were not seized.

Therefore, the very motive circumstance becomes

doubtful.

17. So far as circumstance of recovery, according

to PWs.1 and 2 the victims, accused dropped the

weapons of offence at the scene of offence and ran away

and accused No.1 alone was caught. Contrary to that, the

Investigating Officer claims that the accused had

concealed the weapons in a nearby bush, accused No.1

led him to that bush and produced MOs.1 and 2. He

claimed that he seized them under Ex.P2 in the presence

of PWs.4 and 5. But PW.4 did not support seizure. Though

PW.5 partly supported at another breath states that he

does not know how the police secured MOs.1 and 2.

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Therefore, the trial Court rightly rejected the recovery

circumstance also.

18. Then the other evidence left for the

prosecution to sustain conviction for the offence

punishable under Section 394 of IPC was the evidence of

victims PWs.1 and 2 and the eyewitness PW.3. As per the

evidence of PWs.1 and 2 and the prosecution itself, the

alleged incident took place at 10.00 p.m. PW.2 in his

deposition states that it was dark at the scene of offence.

19. According to the complainant there were

three persons in the auto rickshaw. Later by the

introduction of further statement, four persons were

arrayed as accused. Out of them, admittedly accused

No.1 alone was caught and others escaped. In the

complaint, the complainant himself states that one

assailant assaulted him with rod and other assailant

assaulted his father with knife.

20. On investigation, accused No.1 and accused

Nayu @ Nayaz Khan were shown as assailants wielding Crl.A.No.278/2011

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rod and knife. The evidence of PWs.1 and 2 with regard to

overt acts of accused Nos.1 and 2 was not consistent and

cogent.

21. As admitted by PW.1 himself, he gave further

statement to the Investigating Officer to the effect that

accused No.1 and Sadiq (Accused No.4) assaulted him

with rod. But in the chief examination, he states that

accused No.1 assaulted him with rod. PW.2 states that

accused No.1 assaulted him with knife and the other

assailants escaped.

22. The version of PW.1 catching accused No.1 is

also not consistent. When PW.1 says that accused No.1

was caught at the scene of offence by the public, PW.2

states that accused No.1 was trying to run away, public

chased him upto a distance and caught him. PW.3 also

states that himself and others chased accused No.1 and

caught him.

23. According to the accused, PWs.1 and 2

suffered injury in the motorbike accident and when Crl.A.No.278/2011

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accused No.1 was in the police station in connection with

another enquiry, he was falsely implicated in the case.

According to the Investigating Officer himself, PWs.1 and

2 and the accused No.1 were together sent for medical

examination as he had suffered injury due to alleged

assault by the public. However, he does not produce the

medical examination report of the accused No.1. PW.6

the doctor also does not speak about the Investigating

Officer referring accused No.1 for medical examination.

24. In the wound certificates, Exs.P6 and P7

though it is stated that the injured gave history of assault

by accused No.1 and others, history of assault for

attempted robbery by rod and knife was not given. The

evidence of PW.6 and Exs.P6 and P7 show that PWs.1 and

2 were examined by him on 10.02.2009 at 11.15 p.m.

and 11.20 p.m. The incident is said to have taken place at

10.00 p.m. Within such short span of time, there would

be least chance of manipulation and concoction. Therefore

non reference to attempted robbery and weapons in

Exs.P6 and P7, creates reasonable doubt about the Crl.A.No.278/2011

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version of attempt of robbery and employing MOs.1 and

2.

25. Under such circumstances, non production of

medical examination report of accused No.1 coupled with

failure to prove the recovery and motive circumstances

create doubt about occurrence of the offence in the

manner set up by the prosecution. However, overlooking

all such material inconsistencies in the prosecution

evidence, the trial Court relying on the evidence of PWs.1

and 2 placed conviction only on the ground that they

were injured witnesses, therefore their version cannot be

disbelieved.

26. In the judgment of Takdir Samsuddin

Sheikh's case referred to supra relied upon by learned

HCGP, it was held that testimony of a single witness can

be relied provided he is wholly reliable. It was further

held that if there are doubts about the testimony, the

Court shall insist on corroboration. The other two

judgments relied upon by learned HCGP in no way

advance the case of the prosecution.

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27. As discussed above, the evidence of PWs.1

and 2 the alleged injured eyewitnesses was not cogent

and consistent with regard to the accused assaulting

them with MOs.1 and 2 or about the alleged attempted

robbery. Under the circumstances, corroboration was

required to their testimony to place conviction for the

offence punishable under Section 394 of IPC.

28. As already noticed, the motive and recovery

circumstances were not proved. The medical evidence

was also not helpful. Admittedly, Mos.1 and 2 were not

referred to PW.6 by the Investigating Officer for his

opinion and there was no explanation for that. The

absence of reference to the weapon while mentioning the

history of injuries gains significance in view of other fatal

inconsistency in the prosecution case. The fact of the

Investigating Officer suppressing the medical examination

report of the accused and PW.6 stating about he

examining accused No.1 also goes to the root of the

matter. Aforesaid circumstances create reasonable doubt Crl.A.No.278/2011

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about accused No.1 assaulting PWs.1 or 2 with MOs.1 and

2.

29. The trial Court should have given benefit of all

the aforesaid doubts to accused No.1. The trial Court has

failed to appreciate the evidence in a holistic manner in

convicting accused No.1 for the offence punishable under

Section 394 of IPC. Therefore the said order is liable to be

set aside. The appeal is allowed.

The impugned order of conviction and sentence

passed by the trial Court against accused No.1 is hereby

set aside.

The appellant is acquitted of the charge for the

offence punishable under Section 394 of IPC.

Sd/-

JUDGE

KSR