Sri Yarriswamy vs State Of Karnataka
2022 Latest Caselaw 8539 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 10TH DAY OF JUNE, 2022

                               BEFORE

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

    CRIMINAL REVISION PETITION No.931 OF 2013

BETWEEN:

Sri. Yarriswamy
S/o. Channamallappa,
Aged about 22 years
Agriculturist,
R/o. Bommasamudra,
Challakere Taluk,
Chithradurga District 577522
                                                    ..Petitioner
(By Sri. S. Javeed, Amicus Curiae)

AND:

State of Karnataka
The Circle Inspector of Police
challakere Police Station
Challakere
Chithradurga District - 577522.
                                                   .. Respondent

(By Sri. Rahul Rai K., High Court Govt. Pleader)

                                   ****
      This Criminal Revision Petition is filed under Section 397 of
the Code of Criminal Procedure, 1973, praying to call for the entire
records from the Principal District and Sessions Judge at
                                                   Crl.R.P.No.931/2013
                                 2


Chitradurga in Crl.Appeal No.86/2012 on its entirety before this
Court; to set aside the impugned orders passed by the Lower
Courts below at JMFC at Challakere in C.C.No.82/2011 on its file
and the order dated08-11-2012 produced at Annexure A; to set
aside the impugned order dated 20-04-2013 passed by the learned
Principal District and Sessions Judge at Chitradurga in criminal
Appeal No.86/2012 produced at Annexure B; and to pass such
other order/s or directions that may be necessary upon the facts
and circumstances of the case and to allow this petition, as prayed
for with cost, in the interest of justice and equity.

      This Criminal Revision Petition coming on for Final Hearing,
through Physical Hearing/Video Conferencing Hearing this day, the
Court made the following:

                            ORDER

The present petitioner was accused No.1 in

C.C.No.82/2011, in the Court of the learned Judicial Magistrate

First Class, at Challakere, (hereinafter for brevity referred to

as "the Trial Court"), who, by the judgment of conviction and

order on sentence dated 08-11-2012 of the Trial Court, was

convicted for the offence punishable under Section 394 read

with Section 34 of the Indian Penal Code, 1860 (hereinafter

for brevity referred to as "the IPC") and was sentenced

accordingly.

Crl.R.P.No.931/2013

Aggrieved by the same, the accused No.1 preferred an

appeal in Criminal Appeal No.86/2012, in the Court of the

learned Principal District and Sessions Judge at Chitradurga,

(hereinafter for brevity referred to as the "the Sessions

Judge's Court"), which, after hearing both side, dismissed the

appeal, confirming the impugned judgment of conviction and

order on sentence passed by the Trial Court in

C.C.No.82/2011. It is challenging the judgments passed by

both the Trial Court as well the learned Sessions Judge's

Court, the accused No.1/petitioner herein has preferred the

present revision petition.

2. The summary of the case of the prosecution in the

Trial Court was that, on the date 12-01-2010, at about

4:15 p.m., while CW-1 (PW-1) - Rashmi, who was a Teacher,

was coming towards Hotteppanahalli Gate from the School at

Nandapura, the accused No.1 (petitioner herein) along with

absconding accused No.2, coming on a Motor Cycle, assaulted Crl.R.P.No.931/2013

CW-1 (PW-1) on her head with a stick and snatched her

golden Maangalya chain worn by her on her neck. Since CW-1

had resisted the same by holding the Maangalya chain tightly,

it got cut into two pieces and that one portion of it went into

the hands of the accused and the other portion of it remained

with the complainant (CW-1). Based upon the complaint

lodged by her (complainant), the Police conducted the

investigation and claim to have recovered the stolen golden

chain at the instance of the accused No.1(petitioner herein)

and have filed charge sheet against the accused No.1 and

another accused for the offence punishable under Section 394

read with Section 34 of the IPC.

3. The accused No.1 appeared in the Trial Court and

contested the matter through his counsel. The accused No.1

pleaded not guilty. As such, in order to prove the alleged guilt

against the accused, the prosecution got examined in all

twelve (12) witnesses from PW-1 to PW-12, got marked Crl.R.P.No.931/2013

documents from Exs.P-1 to P-8 and produced three Material

Objects from MO-1 to MO-3. However, neither any witness

was examined nor any documents were got marked on behalf

of the accused No.1.

4. The respondent - State is being represented by the

learned High Court Government Pleader.

5. The Trial Court and the learned Sessions Judge's

Court's records were called for and the same are placed before

this Court.

6. In view of the fact that the learned counsel for the

revision petitioner (accused No.1) failed to appear before this Court

on several dates of hearing, this Court by its reasoned order dated

24-05-2022, appointed learned counsel - Sri. S. Javeed, as Amicus

Curiae for the petitioner/accused No.1, to represent him in this

case.

Crl.R.P.No.931/2013

7. Learned Amicus Curiae for the accused No.1/revision

petitioner and learned High Court Government Pleader for the

respondent - State are physically appearing in the Court.

8. Perused the materials placed before this Court

including the impugned judgments passed by both the Courts

and also the Trial Court and learned Sessions Judge's Court's

records.

9. For the sake of convenience, the parties would be

henceforth referred to as per their rankings before the Trial

Court.

10. After hearing the learned counsels for the parties,

the only point that arise for my consideration in this revision

petition is:

Whether the concurrent finding recorded by the Trial Court as well as the Sessions Judge's Court that, the accused has committed the alleged offence under Section 394 read with Section 34 of the Indian Penal Crl.R.P.No.931/2013

Code, 1860, warrants any interference at the hands of this Court?

11. Learned Amicus Curiae for the petitioner (accused

No.1) in his brief argument submitted that, the material

witnesses have not supported the case of the prosecution and

that the alleged recovery has not been proved by the

prosecution. Hence, the conviction of the accused No.1

(petitioner herein) is not sustainable.

12. Per contra, learned High Court Government Pleader

for respondent - State, in his brief argument submitted that,

the complainant, as PW-1, has identified the accused No.1 in

the Court. She was injured in the incident, as such, she has

seen the accused in the incident. Further, she has identified

the cut piece of her robbed golden Maangalya chain at MO-2

and has got the custody of the same by the order of the Court.

Thus, these evidences are more than sufficient to confirm the

conviction of the accused No.1 and the impugned judgments Crl.R.P.No.931/2013

of conviction and order on sentence passed by the Courts

below do not call for interference.

13. Even though the petitioner (accused No.1) has not

denied the alleged occurrence of the incident, which is said to

have taken place on 12-01-2010 at 4:15 p.m., still, the

evidence of PW-1, PW-8 and PW-9 speaks about the incident.

According to the prosecution, PW-1 is the victim in the

incident, who lost her Maangalya chain at the act of the

alleged robbery by the accused No.1. She, in her evidence,

has stated that, on the ill-fated day, i.e. on 12-01-2010, in the

evening at about 4:15 p.m., while she was going on the road

towards Hotteppanahalli Gate from her School at Nandapura,

two persons coming on a Motor Cycle, attempted to snatch her

golden Maangalya chain worn by her around her neck.

However, since she resisted, the accused No.1 could not

succeed, however, he could able to get half of the Maangalya

chain, which was cut got into two pieces in his attempt to Crl.R.P.No.931/2013

snatch. The remaining half of the Maangalya chain got

retained in her hand. She has also stated that in the process,

the accused No.1 attempted to take away her golden ear studs

also, which also she resisted, due to which, she sustained

injuries on her ears. Further, she stated that the accused, by

using a stick, assaulted her on her head, due to which, she

sustained injuries and became semi-conscious. However,

since she could able to yell and raise an alarm, few people

from the surrounding area gathered there, at which point of

time, both the accused persons ran away from the place on

their Motor Cycle. In that regard, she has also identified her

complaint given before the Police at Ex.P-1.

The complainant (PW-1) has further stated that, she has

shown the spot of the offence to the Police wherein the Police

drew a scene of offence panchanama as per Ex.P-2 and

collected the broken bangle pieces which were worn by her

and had broken in the incident, from the spot and also the

stick measuring about 4 ft. which is said to have been used by Crl.R.P.No.931/2013

the accused No.1 in assaulting her, from the spot. In her

cross-examination, several questions were put to the witness

in the form of suggestion, suggesting to the witness about the

occurrence of the incident of alleged chain snatching. She

admitted those suggestions as true. It was also suggested to

her that, in the incident, she sustained injuries including to

her ears. No doubt the said suggestion was also admitted as

true by the witness. Thus, by suggesting to the witness from

the side of the accused No.1 himself, the accused No.1 has

admitted the occurrence of the incident, though not the

alleged involvement of the accused No.1 (petitioner No.1) in

the alleged incident.

14. PW-8 - Shivakeerthi - the husband of the

complainant has also stated about the incident, however, his

information and knowledge is admittedly based upon the

information given to him by his wife (complainant) and as

such, is purely a hear-say witness.

Crl.R.P.No.931/2013

15. PW-9 - Chandrashekharaiah, who is the paternal

uncle of PW-8 (husband of complainant) has stated that, it is

only after hearing about the alleged incident, he went to the

Hospital and saw his injured daughter-in-law. He stated that

the Police had shown none to him alleging as the culprit in the

incident or the jewellery. This witness was permitted to be

treated as hostile. In spite of the same, the prosecution could

not elicit any favourable statement from this witness about the

incident. Thus the evidence of PW-1, PW-8 and PW-9 speaks

about the occurrence of the incident, which has not been

categorically and specially denied from the accused's side.

16. Added to the above, the evidence of PW-10 - the

Doctor also mentions that on the alleged date, PW-1 was

brought to his Hospital with the history of chain snatching and

causing injuries to her, as such, he examined the injured,

treating her as an out-patient and noticed nearly about eight

injuries upon her, majority of which were all in the nature of Crl.R.P.No.931/2013

abrasion. In that regard, he has issued a Wound Certificate at

Ex.P-8. The said document at Ex.P-8 mentions that all those

injuries were simple in nature. Thus the said evidence of PW-8

(husband of complainant) also corroborates the evidence of

PW-1 (complainant) and PW-9 (paternal uncle of PW-8) that,

the alleged incident of chain snatching and inflicting injuries

upon the complainant had taken place on the alleged date,

time and place mentioned in the charge sheet. In such a

circumstance, merely because PW-3 and PW-4, who were

projected by the prosecution as panchas for the scene of

offence panchanama at Ex.P-2, have not supported the case of

the prosecution, it would not take away the case of the

prosecution that, on the alleged date, time and place, the

alleged incident of chain snatching has taken place, though it

would not mention about the role of the accused No.1 in the

said incident, which has to be analysed separately.

17. The next question would be the alleged involvement

of the accused No.1 in the alleged incident of chain snatching Crl.R.P.No.931/2013

which is contended by the prosecution. Admittedly, the

prosecution has not cited any witness, except the alleged

victim (complainant) as an eye witness to the incident. Thus,

the entire case of the prosecution to prove the alleged

involvement of the accused No.1 in the commission of the

crime is dependent upon the evidence of PW-1 and the alleged

recovery said to have been made at the instance of the

accused No.1.

18. PW-1 - the victim (complainant), in her evidence

has stated that, on the date 05-12-2010, the Police informed

her that, her Maangalya chain which was robbed has been

recovered, as such, when she went to the Police Station, they

also shown to her the accused No.1. Stating so, the witness

says that the person who had robbed her chain and the person

who was shown to her by the Police in the Police Station was

one and the same person and that he was the accused No.1

present in the Court. Thus, the manner of the victim Crl.R.P.No.931/2013

identifying the accused No.1 is a bit unusual. It is because,

she has no where stated that the Police had summoned her to

get the accused No.1 identified by them. Had she really seen

and could able to recognise the accused No.1 on the spot of

the incident and at the time of the incident, then there was no

difficulty for the Police to conduct a Test Identification Parade

(TIP) and get the accused identified through her. On the other

hand, she, in her evidence says that it was the Police who

shown her the accused No.1 as the culprit in the alleged

commission of the crime. It is thereafter she said that it was

he who had snatched her chain on the date of incident.

Except this, no where in her evidence, she has stated that as

on the date of the incident, she has seen the accused No.1

and was able to identify him provided he was shown at a later

date. Therefore, when nothing is there on record as a

statement of PW-1 (complainant) that, she had seen and

could able to identify the accused No.1, the subsequent act of

the Police by showing the sole person in their Station, Crl.R.P.No.931/2013

representing him as the culprit in the alleged crime has

naturally made this witness to believe the statement of the

Police and conclude that it was the same person who had

committed the alleged offences. Therefore, the said alleged

identification of the accused No.1, at the instance of the Police

by the complainant in the Police Station and her subsequent

identification of the accused No.1 in the Court does not inspire

confidence in the mind of the Court to believe that the

complainant had recognised the accused No.1 in the spot or

remembering the identification of the accused No.1 in the spot

and at the time of incident and through them (Police) she

could able to identify the accused at a later date.

19. The next aspect about the alleged proof against the

accused No.1 as the culprit in the crime is the alleged recovery

of MO-2 (Maangalya chain) at his instance.

In that regard, the Investigating Officer (PW-12) has

stated that, the accused was apprehended on suspicion and Crl.R.P.No.931/2013

got produced before him by the Police Sub-Inspector i.e.

PW-15 along with the Head Constable (PW-6). When he

enquired the accused No.1, the accused No.1 gave him the

voluntary statement as per Ex.P-7 and based on the voluntary

statement, the recovery of the robbed piece of golden chain

was made. In the said voluntary statement, which is at

Ex.P-7, the accused No.1 is shown to have stated to the

Investigating Officer that he could show the Shop to which he

has sold the stolen articles and could able to produce them. So

also, he could also produce the Motor Cycle, cash amount and

golden articles kept in his house. According to PW-12 -

Investigating Officer, based upon the said voluntary

statement, he summoned the panchas and took the accused

No.1 to the shop of PW-7 - Maruthi and through accused

No.1, got produced the stolen golden Maangalya chain piece

and seized it in the spot after getting it weighed through PW-2

- C.A. Eshwarachar, a goldsmith. In that regard, PW-7 -

Maruthi was examined by the prosecution. The said witness, Crl.R.P.No.931/2013

though stated in his examination-in-chief that, he is running a

Jewellery Shop, but specifically and categorically stated that,

at no point of time, he has seen the accused No.1 earlier and

has purchased any articles from him. He has also stated that

he has not given any statement to the Police in that regard.

At the request of the prosecution, the witness was permitted

to be treated as hostile and the prosecution was permitted to

cross-examine him. Even in his cross-examination also, the

prosecution could to get any details from this witness. Thus

the very important and material witness who could have

thrown some light in the case of the prosecution since has not

supported the case of the prosecution, on the contrary, stated

that he has not seen the accused No.1 earlier and has not

purchased any articles from the accused No.1, the attempt of

the prosecution in proving the alleged recovery at the instance

of the accused No.1 gets a serious blow.

20. The second important witness upon whom the

prosecution much relied upon is, PW-2 - C.A. Eshwarachar, Crl.R.P.No.931/2013

who, according to the prosecution, was the pancha to the

alleged seizure panchanama at Ex.P-3. However, the said

witness in his examination-in-chief has stated that he has put

his signature to Ex.P-3, in connection with weighing and

evaluating the golden and silver articles, however, he stated

that he does not know as to how many articles were weighed

by him and evaluated. When MO-2 the alleged golden chain

piece was shown to him, the witness categorically stated that

he has not weighed the said article. Even after treating him

also as hostile and the prosecution cross-examining this

witness in detail, the witness has not supported the case of

the prosecution to any extent.

21. The interesting aspect that could be noticed is, the

manner in which the evidence of this witness (PW-2) was

considered and examined by the prosecution and what this

witness thought about his alleged role and gave evidence,

which creates some surprise in the mind of the Court.

Crl.R.P.No.931/2013

According to the charge sheet, more particularly, Ex.P-3, the

alleged seizure panchanama, the role of this witness was only

to act as a pancha in the alleged seizure panchanama.

However, according to the said panchanama, he had no role in

himself weighing any of the articles or evaluating their

valuation. On the contrary, his evidence proceeded in a

manner as though he was a goldsmith engaged by the Police

to weigh the alleged seized articles and to fix their valuation.

It is on that notion, the evidence of this witness was carried

out in the Court. However, the outcome was that the witness

has not supported the case of the prosecution even to the

smallest extent.

In such a circumstance, when neither the alleged

purchaser of the articles i.e. PW-7 - Maruthi nor alleged

pancha to seizure panchanama i.e. PW-2 - C.A. Eshwarachar

have supported the case of the prosecution, in any manner,

the mere statement of PW-12 - the Investigating Officer Crl.R.P.No.931/2013

which also does not give all the details about the alleged

seizure would not inspire any confidence to believe that the

seizure of MO-2 was made at the instance of the present

petitioner (accused No.1). In such a circumstance, merely

because PW-1 (complainant) is said to have identified the

accused No.1 in the Court, which admittedly, was based upon

the information given to her by the Police and merely because

she was given MO-2 (Maangalya chain) the broken chain

piece to her interim custody, it cannot be held that the

alleged aspect of recovery at the instance of the accused No.1

was proved by the prosecution. Therefore, the argument of

the learned High Court Government Pleader that the

prosecution has proved the alleged recovery at the instance of

accused No.1, is not acceptable.

However, both the Trial Court as well as the Sessions

Judge's Court, in their impugned judgments, simply going by

the alleged production of MO-2 before the Court and Crl.R.P.No.931/2013

identification of the same by PW-1 (complainant) and she

stating in the Court that the Police had shown the accused to

her and that she identified him as the one who had

committed robbery on the date of the incident, have hastily

concluded that the prosecution has proved the alleged guilt

against the accused No.1. However, the detailed analysis

made above shows that such a conclusion arrived at by the

Trial Court as well the Sessions Judge's Court is perverse and

erroneous, since they have not properly appreciated the

evidence placed before them in their proper perspective. Thus,

the impugned judgments passed by both the Courts below

warrants interference at the hands of this Court and it has to

be necessarily held that the prosecution has failed to prove the

alleged guilt against the accused No.1 for the offence

punishable under Section 394 read with Section 34 of the IPC.

Accordingly, I proceed to pass the following:

Crl.R.P.No.931/2013

ORDER

[i] The Criminal Revision Petition stands

allowed.

[ii] The impugned judgment of conviction

and order on sentence dated 08-11-2012, passed

by the learned Judicial Magistrate First Class, at

Challakere, in C.C.No.82/2011, holding the accused

No.1 guilty of the offence punishable under Section

394 of the Indian Penal Code, 1860, which was

further confirmed by the judgment and order dated

20-04-2013, passed by the Principal District and

Sessions Judge at Chitradurga, in Criminal Appeal

No.86/2012, are hereby set aside;

[iii] The revision petitioner (accused No.1) -

Sri. Yarriswamy, S/o. Channamallappa, Aged about

22 years, Agriculturist, R/o. Bommasamudra,

Challakere Taluk, Chithradurga District-577522, Crl.R.P.No.931/2013

stands acquitted of the offence punishable under

Section 394 read with Section 34 of the Indian

Penal Code, 1860.

However, the order passed by the Trial Court,

with respect to MO-1, MO-2 and MO-3 remains

intact.

The Court, while acknowledging the services rendered by

the learned Amicus Curiae for the revision petitioner -

Sri. S. Javeed, recommends honorarium of a sum of not less

than `4,000/- payable to him by the Registry.

Registry to transmit a copy of this order to both the Trial

Court and also the learned Sessions Judge's Court along with

their respective records immediately for doing needful in the

matter.

Sd/-

JUDGE BMV*