Sadiq @ Kulda Sadiq vs The State Of Karnataka
2022 Latest Caselaw 1055 Kant

                             1
                                        Crl.A.No.2125/2017




      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 24TH DAY OF JANUARY, 2022

                        BEFORE

        THE HON'BLE MRS.JUSTICE K S MUDAGAL

            CRIMINAL APPEAL NO.2125/2017


BETWEEN:

SADIQ @ KULDA SADIQ
S/O ALLABAKSHI
AGED ABOUT 31 YEARS
R/O NEAR ESHWARANA KALLU
CHELUGUDDA
CHITRADURGA TOWN - 577 501

NOW IN JUDICIAL CUSTODY
AT CENTRAL PRISON, BELLARI
                                            ...APPELLANT
(BY SRI S J KRISHNOJI RAO, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY CHITRADURGA RURAL POLICE STATION
(C.P.I., CHITRADURGA RURAL CIRCLE)

(REP. BY THE LEARNED STATE
PUBLIC PROSECUTOR)
                                         ...RESPONDENT

(BY SRI:SHANKAR H S, HCGP)

     THIS APPEAL IS FILED UNDER SECTION 374(2) OF THE
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 29.11.2013 AND SENTENCE DATED
30.11.2013 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, CHITRADURGA IN S.C.NO.110/2012
CONVICTING THE APPELLANT/ACCUSED NO.2 FOR THE
                                 2
                                             Crl.A.No.2125/2017




OFFENCE PUNISHABLE UNDER SECTION 397 READ WITH
SECTION 34 IPC.

     THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT THROUGH VIDEO CONFERENCE DELIVERED
THE FOLLOWING:


                          JUDGMENT

Aggrieved by the order of conviction and sentence passed

against him, accused No.2 in S.C. No.110/2012 on the file of

the Additional District and Sessions Judge, Chitradurga has

preferred this appeal.

2. The appellant and accused No.1 - N Giri @ Girish

were prosecuted in S.C.No.110/2012 for the offence punishable

under Section 397 read with Section 34 IPC on the basis of the

charge sheet filed by Chitradurga Rural Police in Crime

No.30/2012 of their police station.

3. P.W.2 - Chowdappa filed complaint as per Ex.P-1

before the respondent - police alleging that on 22.01.2012 at

2.30 p.m. when his mother - Lakshmamma (P.W.1) was

collecting Honge Seeds in Krishnappa's land within Sibara

village limits, two unknown persons assaulted her with knife,

caused her injury and robbed her ear studs and nose studs

and cash of Rs.200/-. It is alleged that when the incident was

Crl.A.No.2125/2017

reported to him by P.W.3 - Narasimharaju and P.W.6 -

Chowdappa over phone, he went to the scene of offence and

found his injured mother. According to the prosecution, P.Ws.3

and 6 shifted the injured to the Chitradurga Hospital where

P.W.5 - Dr Salimanjappa treated her and issued the wound

certificate - Ex.P-3.

4. On learning about the incident, P.W.10 - ASI of

respondent - police station said to have visited the Chitradurga

Hospital and found that P.W.1 was not in a position to give

statement, therefore, he took the complaint from P.W.2. On

the basis of the said complaint, P.W.10 registered FIR as per

Ex.P-5 against two unknown persons for the offence punishable

under Section 394 IPC and handed over the investigation to

P.W.12.

5. P.W.12 claims to have conducted the spot mahazar

- Ex.P-2 in the presence of P.Ws.4 and 7 and drew the sketch

of scene of offence as per Ex.P-13. It is alleged that P.W.12

had deputed PSI Balachandra Naik and others in Crime

No.26//2012. P.W.9 allegedly apprehended accused No. 2 and

produced him before P.W.12.

Crl.A.No.2125/2017

6. P.W.12 said to have recorded the voluntary

statement of the appellant. On the basis of such voluntary

statement, M.Os.1 and 2 were claimed to be recovered under

mahazar Ex.P-4. According to the prosecution, M.Os.3 and 4 -

knife and autorickshaw used in the commission of offence were

seized from the accused.

7. After completing the investigation, P.W.12 filed the

charge sheet. Initially the matter was registered before the

Additional Civil Judge and JMFC, Chitradurga in CC

No.363/2012. During trial, the Public Prosecutor filed an

application under Section 323 Cr.P.C. seeking committal of the

case to Sessions Court on the ground that knife-a deadly

weapon-was used in the commission of offence, therefore, the

matter is triable by the Sessions Court. On such application,

learned Magistrate committed the case to the Sessions Court.

8. On such committal, case was registered in

S.C.No.110/2012 on the file of the Additional District and

Sessions Judge, Chitradurga. The trial Court, on hearing the

parties, framed charge against accused Nos.1 and 2 for the

offence punishable under Section 397 read with Section 34 IPC

to the effect that the accused assaulted P.W.1 with knife,

Crl.A.No.2125/2017

robbed her ear studs, nose stud and cash of Rs.200/- and

caused her injury.

9. On conducting the trial, the trial Court by the

impugned judgment and order, convicted the accused for the

offence punishable under Section 397 read with Section 34 IPC

and sentenced them to undergo rigorous imprisonment for 10

years. Aggrieved by the said judgment and order, Accused

No.2 has preferred the above appeal.

10. For the purpose of convenience, parties will be

referred to henceforth according to their ranks before the trial

Court.

11. Sri. Krishnaji Rao, learned counsel for the appellant

submits that absolutely, there was no evidence to convict the

accused and the trial Court's order is wholly unsustainable.

Referring to the evidence of the witnesses, he states that there

are contradictions with regard to the place of offence and

recovery of the alleged incriminating material. He submits that

evidence was totally shaky and inconsistent.

12. Per contra, Sri Shankar H S, learned HCGP

justifying the impugned judgment and order, submits that

Crl.A.No.2125/2017

judgment against accused Nos.1 and 2 was composite and

inseparable, since accused No.1 has not preferred any appeal,

the judgment has attained finality in respect of accused No.1.

He further submits that alleged contradictions and

inconsistencies do not go to the root of the matter and they are

not fatal.

13. The case of the prosecution is based on the

evidence of:

(1) P.W.1 - victim

(2) P.W.2 - complainant who is the son of

P.W.1.

(3) P.Ws.3 and 6 - res-gestae witnesses who

learnt about the incident from P.W.1 -victim

and then shifted her to the hospital.

(4) Medical evidence of P.W.5 and Ex.P-3 -

wound certificate.

(5) The circumstance of recovery of M.Os.1

and 2 under Ex.P-4, the evidence of P.W.8.

(6) Spot mahazar - Ex.P-2 and P.Ws.4 and 7

- witnesses to the spot mahazar.

Crl.A.No.2125/2017

(7) P.W.11 - Tahasildar who conducted the

Test Identification Parade.

(8) Police witness - P.W.9 who had allegedly

apprehended accused No.2, P.W.10 who

received the complaint and registered FIR,

P.W.5 - Investigating Officer.

14. To sustain the conviction, prosecution has to prove

its case beyond reasonable doubt. Except P.W.1, there are no

eyewitnesses to the incident. P.W.1 admitted that the accused

were strangers to her. P.W.2 - complainant is not an

eyewitness. He is only a hearsay witness. P.W.1 in her

Chief Examination deposed that two boys, in the guise of

collecting Honge Seeds for her, dragged her under the tree,

assaulted her with knife, robbed her of M.Os.1 and 2 and cash

of Rs.300/-. She further deposed that in the injured condition,

she reached the main road and the people on the road

informed her son, thereafter he came and shifted her to the

hospital.

15. P.W.1 does not state that she was not able to

speak. P.W.5 - Medical Officer does not state that P.W.1 was

not in a position to speak. P.W.5 does not speak of

Crl.A.No.2125/2017

issuing any medico legal information to P.W.10. P.W.10 states

that he received wireless information about the incident, visited

the hospital. He says that the victim was not in a condition to

speak, therefore, he received the complaint from P.W.2 - son of

the victim. But he has not taken any medical certificate from

P.W.5 about the condition of P.W.1.

16. Further, Ex.P-3 - wound certificate and the

evidence of P.W.5 show that victim was brought to P.W.5 with

the history of assault near Nijalingappa Samadhi and she was

brought to the hospital by her close relative Smt.Manjamma.

She does not state that victim was brought to the hospital by

P.Ws.2,3 & 6. But, according to the prosecution, it was P.Ws.2,

3 & 6 who shifted the victim to the hospital.

17. If the assault was with an intention to rob, in the

ordinary course, the victim could have divulged before the

Doctor. That creates a doubt about the theory of robbery and

assault for the purpose of robbery. P.W.1 herself does not

state that she was not in a position to speak or the police

attempted to record her statement and she could not give the

statement. She says that 15 days after the incident, police

summoned her to the police station and showed her the finger

Crl.A.No.2125/2017

ring and nose stud in the police station. she says at that time

her assailants were in the police station, she identified them in

the police station. She does not speak of any Test

Identification Parade.

18. The complaint stated to have been filed by P.W.2.

He says that in the Chief Examination that P.Ws.3 and 6 had

admitted P.W.1 to the hospital. He visited the hospital and

enquired with mother and she narrated the incident to him.

Therefore, contention that P.W.1 was not in a position to give

statement becomes doubtful. P.W.2 further states that police

took complaint from him in the police station. He does not

state that police tried to take the complaint from his mother

and she was not in a position to give complaint.

19. In the cross examination, P.W.1 states that he does

not know to read and write Kannada and he does not know

what is Ex.P-1 and what is written in Ex.P-1. In para 4 of his

deposition, he states that by the time he reached the police

station, police had prepared the complaint, asked him to

subscribe his signature on the same and accordingly, he signed

the same. He states that only after P.Ws.3 and 6 informing

him about the incident, he came to know about the same. In

Crl.A.No.2125/2017

view of such evidence of P.Ws.1 and 2, the very genesis of the

complaint or contents of the complaint become doubtful.

20. It is the contention of the accused that on that

day, due to birth anniversary of late Nijalingappa, there was a

programme near Nijalingappa Samadhi, therefore, there was

lot of crowd and such incident could not have taken place

there. P.W.1 in para 9 of her deposition admits that scene of

offence is by the side of Nijalingappa Samadhi. She admits

that there are two Dhabas and one Tea stall and it is a crowded

place. She also admits that there will be lot of vehicular traffic

on that place. In para 10 of her deposition, she admits that on

every Sunday, there used to be a cattle market in that area

and in para 11 of her deposition, she admits a suggestion that

on that day, there was a big function on account of Birth

Anniversary of Nijalingappa and lot of people gathered there.

21. The trial Court rejected the contention with regard

to the place being crowded due to such function and

improbability of occurrence of the incident on the ground that

as per the witnesses, scene of offence is the land of Sri

Krishnappa and not by the side of Nijalingappa Samadhi. But

under Ex.P-2 - spot mahazar, it is mentioned that Krishnappa's

Crl.A.No.2125/2017

land situates behind Nijalingappa Samadhi and that was a

shallow land. It is not that, that land had thick vegetation and

others could not see anything.

22. P.Ws.4 and 7 are said to be the witnesses to the

spot mahazar - Ex.P-2. P.W.4 says that police made him to

sign at Krishnappa's land and took his photograph. He further

states that he subscribed his signature on Ex.P-2 near

Krishnappa's land. In the cross examination, he has given an

unequivocal admission that police did not summon him to the

spot. He further admitted that before he reached that spot,

police had already written Ex.P-2 and he subscribed his

signature on the same at the behest of the police. He says that

he does not know that police mentioned in the mahazar about

somebody robbing the ear rings of P.W.1. He again says that

when he was standing near fly over, he subscribed his

signature on Ex.P-2 at the behest of the police and deposing

according to their instructions.

23. P.W.7 - Dhananjaya - spot mahazar witness in his

Chief Examination says that spot mahazar was drawn near

Nijalingappa Samadhi and he has subscribed his signature on

Ex.P-2. But in his cross examination, he says that he does not

Crl.A.No.2125/2017

know who showed the spot to the police and police told him

that they have drawn the mahazar and at their instance, he

signed on the mahazar.

24. According to P.W.4 - Venkatesh, one Narasimha

Raju and Dhananjay have also subscribed their signatures on

Ex.P-2. But Narasimha Raju's signature is not forthcoming on

Ex.P-2. Despite these two witnesses not supporting the

proceedings under Ex.P-2, other witness - Narasimha Raju was

not examined to support the proceedings under Ex.P-2.

P.W.3's name is Narasimharaju but he does not speak about

the proceedings under the spot mahazar - Ex.P-2.

25. So far as the identity of the accused by P.W.1 in

Test Identification Parade, P.W.2 in his cross examination

states that accused were not shown to him and his mother

earlier. He says that he does not know who robbed his mother

and assaulted her with knife. He also states that police have

not shown him any knife.

26. Other witnesses to corroborate the evidence of

P.Ws.1 and 2 are P.Ws.3 and 6. P.W.3 - Narasimharaju, a

Gram Panchayat member states that he learnt through

Crl.A.No.2125/2017

somebody that P.W.1 was assaulted near Eshwara temple and

therefore he went and saw the injured and he shifted her to the

hospital in a vehicle. He says that he came to know through

P.W.1 that miscreants have robbed her nose stud and cash of

Rs.300/-. In his cross examination, he says that he frequents

the police station, Court and Taluk offices and whenever such

incidents take place, police contact him. Though he claims that

he shifted the injured to the hospital, he says he does not know

in which vehicle she was taken to the hospital, he does not

know whether the vehicle was jeep, bus or any other vehicle.

He says that he does not have phone or mobile. He says that

except himself, P.W.1 and the driver, none else were present.

He also deposed that before they reached the hospital in

Chitradurga, he did not inform the police and he has not even

informed the Rural police though he came through Sibara

village nor phoned to the police station.

27. In his cross examination, P.W.3 admits that on

that day, there was a big function on account of birth

anniversary of Nijalingappa at the scene of offence. He says

that the place was crowded with people and vehicles and there

was police patrolling. Though he says that police conducted

Crl.A.No.2125/2017

spot mahazar and took his signature on the same, Ex.P-2 does

not bear his signature.

28. P.W.3 did not reveal anything about his relationship

with P.Ws.1 and 2. However, P.W.6 and other hearsay

witnesses in their cross examination admit that P.W.3 is his

elder brother and P.W.1 is his aunt. Thus, it becomes clear

that P.Ws.3 and 6 are also not independent witnesses. P.Ws.1,

2, 3 & 6 are related to each other.

29. When P.W.3 says that he alone shifted the victim to

the hospital, P.W.6 says that on learning about the incident at

3.00 p.m., he rushed to the scene of offence along with P.Ws.2

and 3 and found the injured P.W.1. Then he says that himself,

P.Ws.2 and 3 shifted the injured in the ambulance to the

Chitradurga hospital. That creates a doubt about injured,

P.W.3 or P.W.2 coming directly to the hospital on the

information of P.Ws.3 and 6. P.W.6 could not identify M.Os.1

and 2. He admitted that if he goes to the college in the

morning, he returns home only in the evening. Therefore, he

was not even a chance witness at the scene of offence.

Crl.A.No.2125/2017

30. The trial Court without considering all aforesaid oral

evidence, only basing on Ex.P-2 disbelieved the defence theory

that on the date of the incident, there was a crowd due to

Nijalingappa's Birth Anniversary and in such case, accused

dragging the victim, thereby committing robbery creates a

reasonable doubt. As already pointed out, the victim was

accompanied by one Manjamma to the hospital who was not

examined. The victim has not given the history of robbery.

These things escaped the notice of the trial court about proof of

commission of robbery beyond reasonable doubt.

31. The above circumstances show that the evidence of

P.W.1 with regard to the commission of the robbery by accused

was not cogent and consistent and that was not corroborated

by the evidence of other independent witnesses. P.Ws.2, 3 & 6

apart from being interested witnesses, their evidence was also

not cogent and consistent to bring home the guilt of the

accused.

32. So far as Test Identification Parade, even according

to P.W.11, the victim identified only accused No.1. The Test

Identification Parade becomes doubtful in view of the evidence

Crl.A.No.2125/2017

of P.Ws.1 and 2 that the accused were not shown to them after

the incident.

33. Then the only other circumstance that remains for

consideration is the alleged recovery of M.Os.1 to 4. To prove

that circumstance, the prosecution relied on Ex.P-4 - alleged

recovery mahazar and the evidence of P.W.8. Ex.P-4 found in

the trial court records relates to Crime No.26/2011 whereas,

this case relates to Crime No.30/2011. Ex.P-4 pertains to

recovery of the cloths found on the dead body of one

Nanjundappa and not about M.Os.1 to 4.

34. P.W.8 in his Chief Examination deposed that on

28.01.2012, Chitradurga Rural Police took a signature on Ex.P-

4 saying that they have seized/recovered the mobile and nose

studs from accused No.2. They showed him one mobile and

two nose studs and he identified M.Os.1 and 2. In his cross

examination, he stated that police recovered mobile in the

police station and at the time of the said recovery apart from

accused Nos.1 and 2, two more accused were present in the

police station. He also says that police did not ask him to

identify the accused present in the police station. When P.W.8

says that Ex.P.4 is the mahazar which is allegedly drawn by

Crl.A.No.2125/2017

P.W.12, P.W.12 says that seizure mahazar is Ex.P-2. Ex.P-2 is

the spot mahazar and not the seizure mahazar. Therefore, the

circumstance of recovery also fails.

35. Despite there being such glaring inconsistencies in

the evidence of the witnesses regarding the identity of the

accused, scene of offence, filing of the complaint, recovery of

the incriminating articles, trial Court simply refers to the

evidence of each of the witnesses and goes on saying that the

same is acceptable. The trial Court has failed to appreciate the

evidence in a sound and sustainable manner. Liberty of an

individual is very valuable. Unless all the circumstances are

proved by cogent and consistent evidence and the victim's

evidence is of a sterling character , the conviction does not

sustain.

36. In view of the discussion made above, the trial

Court was in error in holding that charge brought against the

accused is proved beyond reasonable doubt. Since only

accused No.2 has preferred this appeal, the impugned order of

conviction and sentence has to be set aside only to that extent.

Crl.A.No.2125/2017

37. The appeal is allowed. The impugned order of

conviction and sentence dated 30.11.2013 passed by the

Additional District and Sessions Judge, Chitradurga in

S.C.No.110/2012 against the appellant is hereby set aside.

The appellant is acquitted of the charges for the offence

punishable under Section 397 read with Section 34 of IPC. He

shall be set at liberty forthwith if his detention is not required

in any other Case.

Communicate the operative portion of this order to the

trial Court and Jail authorities forthwith.

Sd/-

JUDGE

*sp