Karnataka High Court

State Of Karnataka vs Ravi @ Hebbali on 30 August, 2023

Bench: S Rachaiah

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                                                   NC: 2023:KHC:31708
                                                CRL.A No. 118 of 2015




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 30TH DAY OF AUGUST, 2023

                                       BEFORE
                        THE HON'BLE MR JUSTICE S RACHAIAH
                         CRIMINAL APPEAL NO. 118 OF 2015
                 BETWEEN:
                 STATE OF KARNATAKA
                 REPRESENTED BY THE
                 K.R. POLICE STATION
                 MYSORE TALUK
Digitally signed
by N UMA         MYSORE DISTRICT
Location: HIGH MYSORE - 571 602.
COURT OF                                                 ...APPELLANT
KARNATAKA     (BY SRI. RAHUL RAI K., HCGP)
              AND:
              RAVI @ HEBBALI
              S/O. SHIVANNEGOWDA
              AGED ABOUT 32 YEARS
              R/AT MANDAKALLI VILLAGE
              MYSORE TALUK AND DISTRICT
              MYSORE - 570 008.
                                                       ...RESPONDENT
              (BY SRI. M. SHARASS CHANDRA, ADVOCATE)
                   THIS CRIMINAL APPEAL IS FILED UNDER SECTION
              378(1) AND (3) OF CODE OF CRIMINAL PROCEDURE PRAYING
              TO (A) GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT
              AND ORDER DATED 15.11.2014, PASSED BY THE COURT OF
              THE III ADDITIONAL SESSIONS JUDGE, MYSORE IN CRIMINAL
              APPEAL NO.180/2014 BY REVERSING THE JUDGMENT AND
              ORDER DATED 8.8.14 PASSED BY THE COURT JUDICIAL
              MAGISTRATE FIRST CLASS, (III COURT), MYSORE IN CRIMINAL
              CASE NO.132/2010; INSOFAR AS IT RELATES TO ACQUITTAL
              OF THE ACCUSED/RESPONDENT FOR THE OFFENCES
              PUNISHABLE UNDER SECTION 392 OF IPC.

                   THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
              DAY, THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2023:KHC:31708
                                           CRL.A No. 118 of 2015




                           JUDGMENT

1. This appeal is filed by the State being aggrieved

by the judgment and order of acquittal dated 15.11.2014

passed in Crl.A.No.180/2014 by the III Additional Sessions

Judge, Mysore.

Brief facts of the case:

2. It is the case of the prosecution that, on

02.02.2010, at about 8.30 A.M., when the complainant

was in her house, the accused stated to have gone to the

house and gave her Rs.5 coin and asked the complainant

to tender change of one rupee coin each and also the

accused asked PW.1 for drinking water. It is stated that,

PW1 went inside and brought the drinking water, at that

time, the accused snatched her gold Mangalya chain

weighing 30 grams valued Rs.45,000/- and ran away from

the spot. Immediately, complaint came to be lodged by

PW.1. Based on the complaint, the jurisdictional police

have registered a case in Crime No.27/2010 for the

NC: 2023:KHC:31708 CRL.A No. 118 of 2015

offence punishable under Section 392 of the Indian Penal

Code. After conducting investigation, the jurisdictional

police have submitted the charge sheet.

3. To prove the case of the prosecution, the

prosecution examined four witnesses as PWs.1 to 4 and

got marked these documents as Exs.P1 to P6 and also

identified Material Object M.O.1 - Mangalya Chain. The

Trial Court, after appreciating the oral and documentary

evidence on record, opined that, the accused was found

guilty of the offence punishable under Section 392 of the

Indian Penal Code and convicted him for the said offence.

Being aggrieved by the same, the accused preferred an

appeal. The Appellate Court allowed the appeal and set

aside the judgment of acquittal passed by the Trial Court.

4. Heard Sri. Rahul Rai K., learned High Court

Government Pleader for the appellant/State and Sri. M.

Sharas Chandra, learned counsel for the respondent and

perused the records.

NC: 2023:KHC:31708 CRL.A No. 118 of 2015

5. It is the submission of learned High Court

Government Pleader that, the findings recorded by the

Appellate Court in acquitting the accused/respondent is

erroneous and unacceptable. Hence it is liable to be set-

aside. It is further submitted that, PW1 - complainant

identified the accused and also identified the Material

Object Mangalya Chain which she lost in that incident.

6. It is further submitted that, the said mangalya chain

was recovered at the instance of the accused. The Trial

Court considered the recovery and also identification of the

accused, convicted the accused. However, the Appellate

Court failed to appreciate the said aspect properly,

consequently, the impugned judgment is passed, which

requires to be set aside. The evidence of all the witnesses

is consistent with regard to robbery of mangalya chain,

recovery of the said chain and also identity of the accused.

Even though, the witnesses have been subjected to cross-

examination by the defence, nothing has been elicited to

discredit their trustworthiness. Therefore, the prosecution

NC: 2023:KHC:31708 CRL.A No. 118 of 2015

proved the case beyond all reasonable doubts. In spite of

proving the said case, the Appellate Court ignoring the

evidence of all the witnesses and acquitted the accused,

which is erroneous and illegal and the same may be set-

aside. Making such submission, the learned High Court

Government Pleader prays to allow the appeal.

7. Per contra, the learned counsel for the respondent

justifying the order of acquittal passed by the Appellate

Court submits that, the Trial Court ignored in considering

the delay in lodging the complaint and also the lacuna on

the part of the prosecution that, even though PW.3 states

that, the said mangalya chain was recovered at the

instance of accused from the shop of CW.6- Satish, he has

not been examined and no independent witnesses have

been examined for recovery of the said mangalya chain.

The Investigating Officer also not conducted identification

parade to substantiate the identity of the accused. When

the recovery of the mangalya chain appears to be

doubtful. The findings of the Trial Court in recording the

NC: 2023:KHC:31708 CRL.A No. 118 of 2015

acquittal appears to be appropriate and proper. Hence,

interference may not be warranted in this case. Having

submitted thus, the learned counsel for the respondent

prays to dismiss the appeal.

8. Having heard the learned counsel for the respective

parties, this Court being a first Appellate Court, in order to

appreciate both facts and law, it is necessary to have a

look upon the evidence of the witnesses.

9. PW.1 is the complainant. She reiterated the

averments of the complaint and stated to have lodged the

complaint against Ravi, aged about 30 years, address not

known. As per the averments of the complaint, the

alleged incident had taken place on 02.02.2010 at about

8.30 a.m. However, complaint came to be lodged on

06.02.2010 at about 11.00 a.m. There is a delay of four

days in lodging the complaint which has not been

satisfactorily explained by PW.1.

10. Ex.P4 is the requisition given by Head Constable-221

of the respondent Police, who stated that, on 08.02.2010,

NC: 2023:KHC:31708 CRL.A No. 118 of 2015

he along with CPC-744 and CPC-157 who were deputed to

trace out the accused. They went along with the informer,

when they reached K.R.H. Road near Laskar Mohalla, the

informer showed the accused and they have apprehended

him. After enquiry, it is stated that, the accused disclosed

his name. A confessional statement has been recorded by

the police. In the said statement, the accused has stated

that, if the police accompanied him, he will show the shop

where he pledged the golden mangalya chain which he

had robbed from PW.1.

11. The points which arise in the instant case are,

(i) Whether the delay in lodging the complaint is

fatal to the case of the prosecution?

(ii) Whether the recovery of gold mangalya chain at

the instance of the accused held sufficient to record the

conviction?

12. Admittedly, in the complaint, it is stated that,

the alleged incident took place on 02.02.2010 and

NC: 2023:KHC:31708 CRL.A No. 118 of 2015

complaint came to be lodged on 06.02.2010. As per the

requisition which is marked as Ex.P4, the accused was

arrested on 08.02.2010 and recovery was effected on the

same day in the shop of CW.6 - Satish in the presence of

CW.7 - Parashivamurthy and CW.8 - Ejas. Strangely, the

prosecution not examined all the three witnesses.

Therefore, the recovery at the instance of the accused not

proved by the prosecution.

13. Now, it is relevant to refer the judgment of the

Hon'ble Supreme Court in the case of THULIA KALI v.

STATE OF TAMIL NADU1, para No.12 reads thus:-

"12. It is in the evidence of Valanjiaraju that the house of Muthuswami is at a distance of three furlongs from the village of Valanjiaraju. Police Station Valavanthi is also at a distance of three furlongs from the house of Muthuswami. Assuming that Muthuswami P. Witness was not found at his house till 10.30 p.m. on March 12, 1970, by Valanjiaraju, it is not clear as to why no report was lodged by Valanjiaraju at the police station. It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of Madhandi

(1972) 3 SCC 393

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deceased and a large number of villagers had been told about it soon thereafter, no report about the occurrence could be lodged till the following day. The police station was less than two miles from the village of Valanjiaraju and Kopia and their failure to make a report to the police till the following day would tend to show that none of them had witnessed the occurrence. It seems likely, as has been stated on behalf of the accused, that the villagers came to know of the death of Madhandi deceased on the evening of March 12, 1970. They did not then know about the actual assailant of the deceased, and on the following day, their suspicion fell on the accused and accordingly they involved him in this case. First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial.

The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted

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story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In the present case, Kopia, daughter-in-law of Madhandi deceased, according to the prosecution case, was present when the accused made murderous assault on the deceased. Valanjiaraju, step-son of the deceased, is also alleged to have arrived near the scene of occurrence on being told by Kopia. Neither of them, nor any other villager, who is stated to have been told about the occurrence by Valanjiaraju and Kopia, made any report at the police station for more than 20 hours after the occurrence, even though the police station is only two miles from the place of occurrence. The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused-appellant upon it."

On careful reading of the dictum of the Hon'ble Supreme

Court, it makes it clear that, delay in setting the law into

motion by lodging the complaint is normally viewed by the

Courts in suspicion because there is a possibility of

concoction of evidence against the accused.

14. In the instant case, even though the incident of

snatching the chain took place on 02.02.2010, the

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complaint came to be lodged on 06.02.2010 which creates

doubt about the commission of the offence.

15. As regards the recovery of gold mangalya chain