State Of Karnataka vs Gajanan Mallappa Chowgala
2022 Latest Caselaw 2727 Kant

            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 18TH DAY OF FEBRUARY, 2022

                          PRESENT

     THE HON'BLE Dr.JUSTICE H.B.PRABHAKARA SASTRY

                             AND

          THE HON'BLE MR. JUSTICE S. RACHAIAH

            CRIMINAL APPEAL NO.100049/2020


BETWEEN:
STATE OF KARNATAKA,
REPRESENTED BY
THE POLICE SUB-INSPECTOR,
MUNDAGOD POLICE STATION,
DISTRICT: UTTARA KANNADA,
THROUGH THE ADDL. STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.

                                             .. APPELLANT
(BY SRI. V.M.BANAKAR, ADDL. SPP)

AND:

1.      GAJANAN MALLAPPA CHOWGALA,
        AGE 27 YEARS, OCC: DRIVER,
        R/O. CHABBIPLOT,
        2ND CROSS, NEKARNAGAR,
        HALEHUBBALLI, DIST. DHARWAD,
        PIN CODE - 580024.

2.      ANNAPPA LAXMAN DODMANI,
        AGE 26 YEARS, OCC: DRIVER,
                                          Crl.A. No.100049/2020


                            2


     R/O. SHIVASOMESHWAR,
     2ND CROSS, HALEHUBBALLI,
     DIST. DHARWAD, PIN CODE - 580024.

3.   PARAMJAPPA @ YOGESH BASAPPA CHALUVADI,
     AGE 29 YEARS, OCC: DRIVER,
     R/O. HEGGERI, NEAR AYURVEDIC COLLEGE,
     2ND CROSS, BHUVANESHWARI NAGAR,
     DIST. DHARWAD, PIN CODE : 580024.

4.   KALLAPPA PRABHU BHOVI,
     AGE 25 YEARS, OCC: COOLIE,
     R/O. CHABBIPLOT,
     1ST CROSS, NEKARNAGAR,
     HALEHUBBALLI, DIST. DHARWAD,
     PIN CODE - 580024
                                           .. RESPONDENTS

(SRI. SHARAD M. PATIL, ADVOCATE FOR R1, R2 AND R4;
SRI. NEELENDRA D. GUNDE, ADVOCATE FOR R3)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED
12.06.2019 PASSED BY THE 1ST ADDL. DISTRICT AND SESSIONS
JUDGE, U.K., KARWAR, SITTING AT SIRSI IN SESSIONS CASE
NO.31/2014 AND TO SET ASIDE THE JUDGMENT AND ORDER OF
ACQUITTAL DATED 12.06.2019 PASSED BY THE 1ST ADDL.
DISTRICT AND SESSIONS JUDGE, U.K. KARWAR, SITTING AT
SIRSI IN SESSIONS CASE NO.31/2014 AND CONICT AND
SENTENCE THE RESPONDENT/ACCUSED NOS.1 TO 4 FOR THE
OFFENCES PUNISHABLE UNDER SECTION 395.

     THIS CRIMINAL APPEAL COMING ON FOR ADMISSION
THROUGH PHYSICAL HEARING/VIDEO CONFERENCING HEARING
THIS DAY, Dr.H.B.PRABHAKARA SASTRY J., DELIVERED
THE FOLLOWING:
                                                Crl.A. No.100049/2020


                                 3



                             JUDGMENT

The present appellant as the State/complainant had

initiated a criminal proceeding against the present

respondents arraigning them as accused for the offence

punishable under Section 395 of the Indian Penal Code

(hereinafter for brevity referred to as 'IPC') in Sessions Case

No.31/2014, in the Court of the I Additional District and

Sessions Judge, U.K. Karwar, Sitting at Sirsi, (hereinafter for

brevity referred to as 'the Sessions Judge's Court'). After the

trial, the accused were acquitted of the alleged offence.

Seeking setting aside of the impugned judgment dated

12.06.2019, the State has preferred the present appeal

under Section 378(1)&(3) of the Code of Criminal Procedure,

1973 (hereinafter for brevity referred to as 'Cr.P.C.').

2. Though this matter is listed for Admission, with

the consent from both sides, the matter is taken up for its

final disposal.

Crl.A. No.100049/2020

3. The summary of the case of the prosecution is

that, the P.W.2 being a lorry driver of the lorry bearing

registration No.KA-27/9176, while was driving the said lorry

from a place called Kundapur to another place called Tadas

on the night at 9.30 p.m., on 11.11.2013, all the present

respondents who were the accused Nos.1 to 4 in the

Sessions Judge's Court, joined with a Juvenile in conflict with

law, by name Prakash Hanumantappa Beragudda, aged

about 17 years, having come in a motorcar bearing

registration No.KA-04/Z-2442, overtook the lorry and forced

the driver of the lorry to stop the lorry and committed

dacoity by robbing a cash amount of `2,600/- and a Nokia

make cell phone from the possession of the driver and thus

has committed an offence punishable under Section 395 of

Indian Penal Code. The Police conducted investigation and

after completing the investigation, filed charge-sheet against

the accused for the alleged offence.

Crl.A. No.100049/2020

4. Since the accused pleaded not guilty, the trial

was held, wherein, in order to prove the alleged guilt against

the accused, the prosecution got examined ten witnesses

from PW.1 to PW.10 and got marked twelve documents from

Exs.P-1 to P.12 and material objects M.Os.1 to 6. Statement

of the accused under Section 313 of Criminal Procedure Code

were recorded. Neither any witnesses were examined from

the accused's side nor any documents were marked as

exhibits.

5. After hearing both side, the learned Sessions

Judge by his impugned judgment dated 12.06.2019 acquitted

the accused for the offence charged against them.

6. The respondents/accused are being represented

by their respective counsels.

7. The Sessions Court records were called for and

the same are placed before this Court.

8. Heard the arguments from both side. Perused the

material placed before this Court.

Crl.A. No.100049/2020

9. The points that arise for our consideration are:

i) Whether the prosecution has proved beyond reasonable doubt that on 11.11.2013 at about 9.30 p.m. the present respondents joined by a Juvenile in conflict with law, unlawfully stopped the lorry bearing registration No.KA-

27/9176, driven by P.W.2 on the road leading from Mundagod to Tadas near Arishingeri cross, within the limits of complainant's police station and robbed P.W.2 with a cash of `2,600/- and a cell phone, thus have committed an offence punishable under Section 395 of IPC?

ii) Whether the impugned judgment warrants any interference at the hands of this Court?

10. Among the ten witnesses examined by the

prosecution, the material and important witnesses who

speaks about the alleged incident are P.W.2 (C.W.1) -

Subhash S. Pawar and P.W.7 (C.W.6) - Nagaraj Y. Mavur.

Undisputedly, P.W.2 was the driver and the P.W.7 was the

cleaner of the lorry at the time of the alleged incident. P.W.2

in his evidence has stated that on the date of incident, which

according to him was about three years prior to the date of

his evidence which was recorded on 20.06.2018 on the night

while he was driving the lorry bearing registration No.KA-

27/9176 from Kundapur to Tadas on the way near Arishingeri Crl.A. No.100049/2020

Cross, a silver colour Indica car overtook their lorry and

made this lorry to stop by signaling. When he stopped the

lorry, the four persons out of five people who were inmates

in that car got down from the car and on the pretext of

asking the P.W.2, who was the driver of the lorry as to

availability of the diesel, they entered the cabin of the lorry

from its both side and robbed P.W.2 of a sum of `2,600/-

which he had kept in right pocket of his pants and a Nokia

cell phone which was costing of `2,000/- to `2,500/-. Then

after getting down from the lorry, they left the place in the

car. Thereafter, he went to the police station at Tadas,

however, after coming to know from them that, the place of

the offence comes within the jurisdiction of Mundagod police

station, he went to the said police station and lodged a

complaint, as per Ex.P.2, in the matter. The witness has

further stated that, on the next day morning at about 6.00

a.m., he has shown the scene of place of offence to the

police, where the police drew the scene of offence

panchanama as per Ex.P.3. The witness also stated that on

the same night at about 1'O clock, the police telephoned to Crl.A. No.100049/2020

him stating that the culprits who committed the offence have

been caught by them. Accordingly, himself C.W.7 who is the

owner of the lorry joined by the cleaner of the lorry went to

the police station. There, the police showing five people to

them stated that, they are the culprits. The witness identified

them in the Court also. The witness further stated that, the

police shown him a silver colour Indica car, parked in the

police station premises identifying the same he (witness)

stated that, it was in the same car the offenders had come.

Witness also stated that, the police stating that they have

seized a sum of `2,600/- from the possession of the accused

and also the cell phone, drew a seizure panchanama which

this witness has identified at Ex.P.4. This witness in his

cross-examination from the accused side stated that, as soon

as the accused persons stopped his lorry, he switched on the

light in the cabin. In view of the reduction of the brightness

of the headlight and the cabin light, it was not possible for

him to properly identify the persons who boarded the lorry.

He further stated that, by that time when he reached the

police station at the call of the police that the offenders have Crl.A. No.100049/2020

been caught by them, the police had already kept the money

at MO.1 to MO.6 and the cell phone on the table, as such, he

does not know from which of the accused what articles were

seized by the police. In the conclusion of his cross-

examination, the witness has also stated that, due to lapse of

four to five years from the date of incident, he was not

certain as to whether the accused before the Court were the

persons whom he saw in the police station on the said day.

11. P.W.7 (C.W.6) Nagaraj has stated that, as at the

time of the alleged incident he was working as a Cleaner in

the said lorry bearing registration No.KA-27/9176. C.W.1

(P.W.2) was the driver of the said lorry. About the incident

the witness has stated that, at that time he was sleeping and

was awakened by C.W.1. After awakening he only saw that

C.W.1 was made to get down and about four to five people

were there with him. They had assaulted C.W.1 and then,

C.W.1 took the lorry to Tadas and also telephoned to the

owner of the lorry. He further stated that, C.W.1 has lodged

police complaint. It is after hearing from C.W.1 he came to Crl.A. No.100049/2020

know that the people who had surrounded him, had snatched

mobile phone and cash from him. Since this witness did not

support the case of the prosecution to the extent it had

expected from him, the witness was permitted to be treated

as hostile and the prosecution was permitted to cross-

examine him. Even in its cross-examination the prosecution

could not get any support from this witness. This witness was

not cross-examined from the accused side.

12. It is only these two witnesses who have spoken

about the alleged incident. The alleged incident of dacoity

has not been specifically denied or disputed from the accused

side in the cross-examination of either P.W.2 or P.W.7, or in

the cross-examination of any other witnesses. As observed

above, P.W.7 has not at all been cross-examined from the

accused side. Therefore, the alleged incident of dacoity has

not been denied or disputed from the accused. However,

regarding the alleged involvement of the present

respondents in the alleged incident, the evidence of other

witnesses is also required to be analysed.

Crl.A. No.100049/2020

13. P.W.1 was examined by the prosecution showing

that she is de facto owner of the car and that, she had given

the car to accused No.4 to use it, as such, she was aware of

the alleged incident of dacoity and also involvement of the

accused in the commission of crime.

This witness though has stated that she had purchased

the car in question from C.W.8 for a valuable consideration,

but she does not know about the police seizing the said car.

She stated that, accused No.4 whom she identified in the

Court was her younger brother and the accused No.5 who

was the Juvenile in conflict with law, was her son. However,

she categorically stated that, she does not know anything

about the incident.

14. C.W.8 - Hanumantasa Khode was examined as

P.W.6 who in his evidence has stated that, he was earlier the

owner of Indica car bearing registration No.KA-04/Z-2442

and was running it as a taxi and eking his livelihood.

However, about five years prior to the date of his evidence,

which evidence was recorded on 29.08.2018, he had sold his Crl.A. No.100049/2020

car to one Smt. Laxmavva Bergudd for a sum of `93,000/-

out of which sale consideration, she was yet to pay a balance

amount of `43,000/- to him. However, he had delivered the

possession of the car to her. The witness further stated that,

later on coming to know that the said car was with the

complainant police, he went to the police station and

produced before them the documents with respect to he

selling the said car to its purchaser.

15. The evidence of P.W.1 and P.W.6 corroborates

the evidence of the Investigating Officer i.e. P.W.10 that

originally the car was belonging to P.W.6, however, he had

sold the said car and that P.W.1 was the de facto owner in

possession of the car as at the time of the alleged incident.

The evidence of P.W.1 that, she does not know that the said

car was used in the commission of the alleged dacoity, as

well the evidence of P.W.6 that when he went to the police

station the said car was parked in the said police station, as

well the evidence of P.W.2 who has stated identifying the car

in the police station that it was the very same car used in the Crl.A. No.100049/2020

commission of crime, as well the fact that at the earliest

point of time the P.W.2 as a complainant had in his complaint

at Ex.P.2 has mentioned the registration number of the said

car, clearly go to establish that the said Indica car bearing

registration No.KA-04/Z-2442 was involved in the

commission of dacoity.

16. The evidence of P.W.2 regarding the place of the

incident and his evidence that he has shown the spot to the

police where they drew scene of offence panchanama as per

Ex.P.3 and the evidence of P.W.3 that as an Assistant

Executive Engineer of PWD, he has drawn the sketch of the

place of offence as per Ex.P.5 corroborates the evidence of

P.W.10 the Investigating Officer that the place of offence was

the one as shown in Ex.P.3., as such, the non-supporting of

the scene of offence panchanama by P.W.4 and P.W.5 would

not dilute the case of the prosecution insofar as the place of

commission of the offence is concerned.

17. In the light of the above, when the evidence led

by the parties go to show that, an alleged offence of dacoity Crl.A. No.100049/2020

has taken place in that particular place which is shown in

Ex.P.3 on the night at about 9.30 p.m. on 11.11.2013, where

P.W.2 was robbed with a cash of `2,600/- and a cell phone,

the only question that remains is whether the said act of

alleged dacoity was committed by the present respondents

alone joined by the Juvenile accused and by non-else. It is in

that regard, apart from the evidence of P.W.2 and P.W.7, the

prosecution has also much relied upon the evidence of P.W.8

and P.W.9 who according to prosecution were the panchas

for the alleged seizure panchanama under which the alleged

car used in the commission of the crime and the alleged

booty of `2,600/- and cell phone were said to have been

recovered from the possession of the accused. With the said

fond hope though the prosecution has examined both P.W.8

- Mariyappa Benkanahalli and P.W.9 - Ramappa Waddar,

however, both of them have not supported the case of the

prosecution. When P.W.8 stated that, the police had taken

him to a place stating that it was the place of an offence, but

he did not know as to what that offence was and nothing was

either seized or recovered in his presence. He stated that, his Crl.A. No.100049/2020

signature was taken on a panchanama in the police station.

P.W.9 going a step ahead of P.W.8 stated that, he was

neither taken to any place nor any seizure panchanama was

drawn in his presence, but when he had been to complainant

police station, the police had taken his signature on Ex.P.4.

Thus, so for as the alleged seizure of the motorcar and the

recovery of the alleged booty, there is no support to the

prosecution by P.W.8 and P.W.9.

18. In the light of the above, it was the argument of

the learned Additional State Public Prosecutor that the very

fact that P.W.2 has disclosed the registration number of the

car and P.W.1 has admitted that the said car belongs to her

and the accused No.4 is her brother and Juvenile in conflict

with justice is her son and further the recovery of cash of

`2,600/- and cell phone from the possession of the accused,

proves the case of the prosecution beyond reasonable doubt,

however, the Sessions Judge Court by imagining certain

doubts on its own, has acquitted the accused which Crl.A. No.100049/2020

Judgment has thus become an erroneous one warranting

interference at the hands of this Court.

19. Learned counsels for respondent Nos.1 to 4 in

their arguments submitted that, they do not dispute the

alleged incident of dacoity on the date, time and place shown

in the charge-sheet. However, they strongly dispute the

alleged involvement of accused Nos.1 to 4 in the said

commission of crime. The learned counsels for the

respondents further submitted that, merely because P.W.1

stated that accused No.4 is her brother and the Juvenile in

conflict with law is her son, by that itself it cannot be inferred

that, they had participated in the alleged commission of

crime. They gave more emphasis on the evidence of P.W.2,

stating that the said witness has specifically stated that, he

could not identify the accused in the spot, as such, the

benefit of doubt has been aptly given in favour of the

accused. Thus, the impugned judgment does not warrant

interference at the hands of this Court.

Crl.A. No.100049/2020

20. As analysed above, the alleged incident of

dacoity on the date, time and place shown in the charge-

sheet has not been denied or disputed by the respondents

herein. The alleged involvement of the car bearing

registration No.KA-04/Z-2442 is also not seriously denied or

disputed from the respondents. The very fact that the P.W.2

as a complainant has given the said registration number of

the car and the evidence of P.W.1 that, she is the owner of

the car, but she does not know that her car was involved in

the alleged incident, as such, it was seized and the further

fact that the said car was subsequently traced by the police

and P.W.2 has identified the said car in the police station and

P.W.6 also has went to the police station after knowing that

the said car of which she was of the earlier owner and seen

the car in the police station, clearly go to establish that the

said car bearing registration No.KA-04/Z-2442 was used in

the commission of the alleged crime.

21. The last question that remains is even though

the car bearing registration No.KA-04/Z-2442 is said to have Crl.A. No.100049/2020

been used in the commission of the crime, but is it sufficient

to hold that because the accused No.4 is the younger brother

of the owner of the car and Juvenile in conflict with law

(accused No.5) being the son of the said owner of the car

(P.W.1) can it be held that they were involved in the

commission of the crime.

22. With respect to the identity of the accused, as

analysed above, it is only the two witnesses who could throw

light on the point. The first witness is the complainant i.e.

P.W.2 who was the driver of the lorry at the time of the

commission of the crime and another witness is P.W.7 who

undisputedly was the cleaner of the lorry at the time of the

commission of the crime.

P.W.7 who is the cleaner is not an eye witness to the

incident. The said witness in his evidence has stated that, at

the time of the incident he was sleeping in the lorry, but was

woken up by the driver (P.W.2). By the time he woke up he

could only see that the driver had got down from the lorry

and he was surrounded by four to five persons. He says that, Crl.A. No.100049/2020

he has seen that those four to five persons surrounding him,

was assaulting the driver (C.W.1). Except this, about the

alleged commission of the dacoity, the witness has not stated

that he has seen it. He has categorically stated that, he only

heard that those people who had surrendered C.W.1 had

robbed cash and a cell phone. Thus, about the act of robbery

which is said to have been commissioned by four to five

persons, this witness evidence is only hearsay evidence. This

witness could not even identify any of the four accused in the

Court. Thus, the evidence of this witness is not helpful to

point the finger towards the accused as the ones involved in

the commission of crime.

23. The only witness remaining then would be P.W.2

who is the complainant-cum-driver of the lorry. Admittedly,

the accused were stranger to the said witness. Even in his

complaint also he has not given the identity of the accused.

However, this witness has stated that, after he lodging the

complaint, the police called him over the phone in the

midnight at 1'O clock and told him that they had caught hold Crl.A. No.100049/2020

of the culprits. It is then he went to the police station joined

by the owner of the lorry and the cleaner to whom the police

shown five people asking him as to whether he could identify

them. The witness stated that, identifying them he stated to

the police. He has stated that, among them accused Nos.1 to

4 were the one who were present in the Court.

The said statement of the witness that he identified

them in the police station has to be carefully analysed. P.W.2

in his evidence has stated that he has only identified the

accused, but he has not stated that he has told the police

that they were the ones who has committed the act of

dacoity as alleged by him. Secondly, even though he said

that, he has identified the accused, but in his cross-

examination which was conducted immediately after his

examination-in-chief, the witness has clearly and

categorically stated that in view of reduction of brightness of

the headlight and the cabin light, it was not possible for him

to properly identify the persons who boarded the lorry.

Further, in the very same cross-examination, the witness Crl.A. No.100049/2020

further stated that due to lapse of four to five years from the

date of incident, he is not certain whether the accused before

the Court were the persons whom he saw in the police

station on that day. Therefore, the very witness who initially

stated that he has identified, has in his very same evidence

recorded on the same day and in continuation of his

examination-in-chief, could not able to identify the accused,

on the other hand revealed the fact that as at the time of the

incident, the light was too dull and there were no street lights

and as such, it was not possible for him to properly identify

the persons who had boarded the lorry. This go to show that,

he came to an opinion that it was the accused alone in this

case who had committed the offence only for the reason that

the police told him that they had caught the culprit where he

was summoned to the police station, and by that time

already M.O.1 to M.O.6 were kept on the table which fact has

been revealed by P.W.2 himself in his cross-examination.

Therefore, when P.W.2 says that, it was not possible for him

to properly identify the persons who boarded the lorry, the

mere identification of those persons at the instance of the Crl.A. No.100049/2020

police in the police station creates a serious doubt in the

prosecution.

Admittedly, no test identification parade has been

conducted in this case. Furthermore, if according to P.W.2 the

owner of the lorry i.e. C.W.7 and as well the cleaner had also

accompanied him, then the said cleaner who was examined as

P.W.7 should also have identified the accused which he failed to

do. Admittedly, the owner of the lorry i.e. C.W.7 has not at all

been examined by the prosecution.

Therefore, when the prosecution had every opportunity to

examine C.W.7, its failure to do it and even though P.W.2 at

one instance says that it was the accused who committed the

offence, but as he has subsequently revealed that, due to poor

light it was not possible for him to properly identify the persons

who boarded the lorry, the mere evidence of P.W.1 that accused

No.4 was her younger brother and Juvenile in conflict with law

was her son, would not by itself establish that said accused No.4

and the Juvenile were the one involved in the alleged commission

of crime. Furthermore, the alleged panchas to the Ex.P.4 also since

have not supported the case of the prosecution, even to the Crl.A. No.100049/2020

smaller extent, the alleged physical search of the accused

and the alleged recovery of a cash of `2,600/- and cell phone

from them also has not stood proved. Therefore, merely

because the car in question bearing registration No.KA-04/Z-

2442 is proved to be used in the commission of the crime

and that P.W.1 being the de facto owner of the car and that

accused No.4 being her family members, by that itself it

cannot be held that, the accused Nos.1 to 4 were proved

beyond reasonable doubt as the culprits said to have

committed the alleged crime. Though the trial Court has not

analysed the evidence of the prosecution in such a depth,

however, its finding that the prosecution has failed to prove

the alleged guilt against the accused beyond reasonable

doubt cannot be found fault with. As such, we do not find any

reasons to interfere in the impugned Judgment under appeal.

Accordingly, we proceed to pass the following:

ORDER

The appeal stands dismissed as devoid of merit, even

for its admission.

Crl.A. No.100049/2020

Registry to transmit a copy of this Judgment to the

concerned Sessions Court.

Sd/-

JUDGE

Sd/-

JUDGE

*Svh/-