Karnataka High Court
Galeppa Timmanna Konchikor vs The State Of Karnataka on 20 June, 2023
Bench: Anil B Katti
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CRL.RP No. 2137 of 2013
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 20TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 2137 OF 2013
BETWEEN:
1. GALEPPA TIMMANNA KONCHIKOR
AGE: MAJOR, OCC: COOLIE,
R/O.SHIGGAON, TQ: SHIGGAON.
2. HANAMANTAPPA HANMAPPA KONCHIKOR
AGE: MAJOR, OCC: COOLIE,
R/O.LAKKUNDI, TQ: GADAG.
3. GANGAPPA HANMANTAPPA GAJENDRAGAD
@ KONCHIKOR
AGE: MAJOR, OCC: COOLIE,
R/O.HOSALLI, TQ: GADAG.
4. GANGAPPA DURGAPPA KONCHIKOR
AGE: MAJOR, OCC: COOLIE,
R/O.LAKKUNDI, TQ: GADAG.
...PETITIONERS
(BY SHRI. MAQBOAL PATIL FOR K.L. PATIL, ADV. FOR P1
& P2: AND P3 ABATED)
Digitally signed AND:
by J MAMATHA
J Date:
MAMATHA 2023.06.21
12:27:40
THE STATE OF KARNATAKA
+0530
REP.BY SPP
HIGH COURT OF KARNATAKA
CIRCUIT BENCH, DHARWAD.
...RESPONDENT
(BY SHRI. PRAVEEN K. UPPAR, HCGP)
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CRL.RP No. 2137 of 2013
***
THIS CRIMINAL REVISION PETITION IS FILED U/S
397 R/W 401 OF CR.P.C. SEEKING TO ALLOW THIS
CRIMINAL REVISION PETITION BY SETTING ASIDE THE
JUDGMENT AND ORDER DATED 21/01/2011 PASSED BY
THE FAST TRACK COURT, GADAG IN CRIMINAL APPEAL
NO.17/2004 AND THE ORDER OF CONVICTION DATED
09/06/2004 PASSED BY THE II-ADDL. CIVIL JUDGE
(JR.DN.) & JMFC II-COURT, GADAG IN C.C.NO.37/2002
FOR THE OFFENCES P/U/S 392 OF IPC.
THIS CRIMINAL REVISION PETITION COMING ON
FOR FINAL HEARING AND THE SAME HAVING BEEN
HEARD AND RESERVED FOR ORDER ON 11.04.2023, THIS
DAY, THE COURT, MADE THE FOLLOWING:
ORDER
Revision petitioners/accused Nos.1 to 4 feeling
aggrieved by judgment of first Appellate Court on the file
of Fast Track Court, Gadag in Crl.A.No.17/2004, dated
21.1.2011, preferred this revision petition.
2. Parties to the revision petition are referred with
their ranks as assigned before trial Court for the sake of
convenience.
3. The factual matrix leading to the case of
prosecution can be stated in nutshell to the effect that on
19.9.2001 at about 00-15 hours and 00-45 hours, accused
CRL.RP No. 2137 of 2013
Nos.1 to 4 with their common intention of committing
robbery entered the house of CWs.6 and 7. Thereafter, put
the complainant in fear and snatched away pair of gold
studs and tali (Mangalsutra) and taken away clothes kept
in trunk. The accused with common intention have pelted
stones on the house situated in garden land of CW.7 and
CW.10, further entered the house and put them under
threat and snatched away Gallaseri, pair of studs and also
cash of Rs.1000/- kept in trunk. The accused have
acquired the said properties under threat by extortion and
kept them in their possession. On all these allegations
made in the complaint, case was registered in Crime
No.165/2001 of Gadag Rural police station. On completion
of investigation, investigating officer filed charge sheet.
were secured before the trial Court through process of law.
The trial Court after being prima facie satisfied of the
charge sheet materials framed charges against the accused
for the offence punishable under Sections 392, 411 R/w.
Section 34 of I.P.C. All the accused pleaded not guilty and
CRL.RP No. 2137 of 2013
claimed to be tried. The prosecution to prove the
allegations made against accused relied on the evidence of
PWs.1 to 12 and documents at Exs.P.1 to 8, so also got
identified M.O.1 to M.O.5.
5. On closure of the prosecution evidence,
statement of accused under Section 313 Cr.P.C. came to
be recorded. Accused denied all the incriminating material
evidence appearing against them and claimed that false
case is filed. The trial Court after appreciation of evidence
on record convicted the accused for the offences
punishable under Sections 392 of IPC.
6. Accused Nos. 1 to 4 feeling aggrieved by the
said judgment of conviction and order of sentence
challenged the same before first Appellate Court in
Crl.A.No.17/2004. The first Appellate Court on re-
appreciation of evidence on record by judgment dated
21.1.2011 dismissed the appeal and confirmed the
judgment of conviction and order of sentence passed by
trial Court.
CRL.RP No. 2137 of 2013
challenged the concurrent finding of both courts below
contending that evidence of PWs.3, 4, 5 to 7 and 9 have
not been properly appreciated with reference to the
incident claimed by prosecution. The test identification
parade conducted by PW.8 and identification of accused by
PWs.4 and 9 in view of lacuna found in holding test
identification parade cannot be relied. The recovery of
articles M.O.1 to M.O.5 at the instance of accused No.4 has
also not been proved by prosecution out of evidence of
PWs.3 and 10. The approach and appreciation of oral and
documentary evidence by both Courts below and finding
recorded cannot be legally sustained. Therefore prayed for
allowing the revision petition and to set aside the judgment
of conviction and order of sentence passed by both courts
below and consequently to acquit all the accused from the
charges levelled against them.
8. In response to notice, learned High Court
Government Pleader has appeared for respondent/State.
CRL.RP No. 2137 of 2013
9. During the pendency of this revision petition,
revision petitioner No.3/accused No.3 and revision
petitioner No.4/accused No.4 are reported to be dead and
hence, by order of this Court dated 11.4.2023, the revision
petition against them is ordered to be abated.
10. Heard the arguments of both sides.
11. On careful perusal of oral and documentary
evidence on record placed by prosecution, it would go to
show that on 19.9.2001 at about 00-15 hours and 00-45
hours, accused Nos.1 to 4 with their common intention of
committing robbery entered the house of PWs.5 and 7.
Thereafter, put the complainant in fear and snatched away
pair of gold studs, tali (Mangalsutra) and taken away
clothes kept in trunk. In furtherance of such common
intention accused have also pelted stones on the house
situated in the garden land of PWs.7 and 9 and entered the
house, by putting them under threat and snatched away
Gallaseri, pair of studs and also cash of Rs.1000/- kept in
trunk. The prosecution mainly relies on oral testimony of
PW.4-Basawwa, who has filed complaint as per Ex.P.4 and
CRL.RP No. 2137 of 2013
PW.9-Mamatazbegum with reference to incident in question
that took place in their house and their evidence is sought
to be corroborated by evidence of PWs.5 to 7. The
prosecution relies on the evidence of recovery of PWs.3
and 10 to prove recovery panchnama Ex.P.3.
12. The evidence of PWs.4 to 7 and 9 would go to
show that accused were know to them and they claim to
have seen the accused on the date of incident on
19.9.2001 and identified the accused in test identification
parade conducted by PW.8 on 24.9.2001. PW.8 has
conducted the test identification parade on 24.9.2001 in
sub jail of Gadag. PWs.4, 6 and 9 have identified accused
Nos.1 to 3 and accordingly submitted report at Ex.P.5. The
trial Court has not accepted evidence of PW.8 and test
identification report-Ex.P.5, since the same was conducted
in the absence of Judicial Magistrate. The trial Court relied
on the judgment of Division Bench in State V/s. Chintu
Guntu Udaya Bhaskar Reddy and others, reported in
ILR 2003 KAR 4395, wherein it has been observed and
held that:
CRL.RP No. 2137 of 2013
"In this background, it is absolutely essential
that irrespective of how much time has elapsed
that proper test identification parades must be
conducted and if the accused are detected at
different times, multiple identification parade
must be conducted. Absolute precautions must
be taken to ensure that this parade shall be
conducted in the presence of the Judicial
Officers and that it should be conducted in the
manner prescribed by law, namely, that it
should be conducted in such a place and in
keeping with the requirements, whereby the
procedures will inspire confidence in the Court.
The witnesses must be given full and fair
opportunity to identify the accused and if they
do so, the same must be recorded."
13. Learned counsel for revision petitioners also
relies on the judgment of Honb'le Apex Court in Rajesh
Govind Jagesha V/s. State of Maharashtra reported in
(1999) 8 SCC 428, wherein it has been observed and
held that
" The test identification is considered as a
safe rule of prudence for corroboration. Though
the holding of the identification proceedings
may not be substantive evidence, yet such
proceedings are used for corroboration
CRL.RP No. 2137 of 2013
purposes in order to believe or not the
involvement of the person brought before the
Court for the commission of the crime. The
holding of identification parade being a rule of
prudence is required to be followed strictly in
accordance with the settled position of law and
expeditiously. The delay, if any, has to be
explained satisfactorily by the prosecution."
The Honb'le Apex Court did not accept the non-availability
of a Magistrate in a place like Bombay for over a period of
five weeks. In the present case also identification test was
not conducted by PW.8 in presence of jurisdictional officer.
Therefore, evidence of PW.8 and evidence of PWs.4, 6 and
9 cannot be relied for proving the identity of accused Nos.1
to 3.
14. The prosecution to prove the identity of accused
and the incident that took place in the house of PWs.4-
Basawwa and PW.9-Mamtazbegum relied on the oral
evidence of PWs. 4 to 9. PW.6 is independent witness, who
has identified the accused Nos.1 to 4 on the same day
were produced in the police station, further identified them
before the Court while giving evidence. PW.5 is husband of
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CRL.RP No. 2137 of 2013
PW.4 and PW.7 is father of PW.8, have spoken about the
incident of robbery in both houses of PWs.4 and 9.
15. The evidence of PW.4 would go to show that
about one year four months back they were awakened due
to barking of dog. The husband of PW.4 i.e. PW.5 went out
of the house, stones were pelted on the house and one of
such stone hit on her and thereafter, three persons came
inside the house. One of them caught hold her and another
person snatched tali and another person started pulling
bendole, but she herself given bendole to the said person
and they carried a trunk while going out of the house. She
further deposed that she can identify all three persons,
who entered the house. Thereafter, with respect to the said
incident, she filed complaint as per Ex.P.4. She further
identified M.O.1-bendole, M.O.3-Gold Tali and M.O.5-
Anklets belong to her. The evidence of PW.9 is on the same
line as deposed by P.W.4 and she identified M.O.2-bendole,
M.O.4- Gallaseri as belong to her.
16. The evidence of PWs.4 to 9 is consistent with
regard to the incident of robbery and they have identified
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CRL.RP No. 2137 of 2013
M.Os.1 to 5. The material recovery panch witnesses are
PWs.3 and 10 to prove the recovery panchanama-Ex.P.3.
PW.11-investigating officer has deposed to the effect that
accused involved in this case were arrested in Forest Crime
No.8/2001 and they were in judicial custody. PW.11 has
applied to the Court and secured the police custody of
accused Nos.1 and 2. They have given voluntary
statements-Exs.P.6 and 7. The said voluntary statements
cannot be relied, since there is no evidence of recovery at
their instance. The evidence of PW.11 would go to show
that on disclosure made by accused Nos.1 and 2 has
arrested accused No.4 at Lakkundi and during enquiry, he
has given voluntary statement-Ex.P.8. In pursuance of the
same has secured two panch witnesses-PWs.3 and 10.
Thereafter, accused No.4 led police officials and panch
witnesses to his house and produced M.O.1 to M.O.5. The
same were seized under panchanama-Ex.P.3.
17. The independent panch witnesses PWs.3 and 10
have supported the case of prosecution and deposed to the
effect that they were called to Gadag rural police station
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CRL.RP No. 2137 of 2013
and accused No.4 was in the police station, who led police
officials and panch witnesses to his house and produced
M.Os.1 to 5 from his house. The said articles have been
identified by PW.4 that is M.O.1-bendole, M.O.3-Gold Tali
and M.O.5-Anklet and PW.9 identified M.O.2-bendole,
M.O.4-Gallaseri as belong to her and accordingly
panchanama as per Ex.P.3 is prepared in their presence,
they have signed on the panchanama. The defence though
has subjected these three material witnesses PWs.3, 10
and 11 to lengthy cross examination, nothing worth
material has been brought on record, so as to discredit
their evidence with M.Os.1 to 5 were recovered from the
house of accused No.4 at his instance under panchanama-
Ex.P.3.
18. The defence of the accused is that they have
been arrested in CC.No.101/2002 for the offences
punishable Under Sections 62 and 84 of the Karnataka
Forest Act on 19.9.2001 and how they can they commit
another offences on the same day at the same time. It
means that accused Nos. 1 to 3 did not dispute that they
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CRL.RP No. 2137 of 2013
were arrested in the forest offence in CC.No.101/2002. It is
the evidence of PW.6 that he has seen all the four accused
at 4.30 a.m. and they were sent to police station. This
statement of PW.6 is corroborated by evidence of
investigating officer-PW.12, who has registered the case on
21.9.2001 came to know that forest officials in Hosalli
village have apprehended the accused, who were engaged
in cutting and transporting sandalwood trees and offence in
this case also took place within the same area. Therefore,
he has sent requisition to the Court for taking police
custody of accused Nos.1 to 3 for the purpose of
identification. The said evidence on record would go to
show that accused Nos.1 to 3 have been apprehended on
the same day of the incident. PWs.4 and 9 had sufficient
time to see the persons having entered in their house and
they have identified the accused before the Court.
Therefore, from the said material evidence placed on
record, the prosecution has established identity of the
accused Nos.1 to 4 and robed articles M.Os.1 to 5 have
been recovered pursuant to voluntary statement of
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CRL.RP No. 2137 of 2013
accused No.4 as per Ex.P.8 under the recovery
panchanama-Ex.P.3. The independent panch witnesses
PWs.3 and 10 have also vouchsafed the evidence of PW.11
that accused No.4 pursuant to voluntary statement Ex.P.8
led the police officials to his house and produced M.Os.1 to
5 from his house. There are absolutely no any valid reason
or material evidence that has been brought on record to
discredit the evidence of PWs.3, 10 and 11 to prove the
identity of accused and recovery at the instance of accused
No.4 under recovery panchanama Ex.P.3.
19. The courts below have rightly appreciated the
evidence of above referred witnesses and arrived to just
and proper conclusion in holding that prosecution has
proved the guilt of the accused beyond reasonable doubt
for the offence under Section 392 of I.P.C. The defence of
accused that they cannot commit two offences at the same
time cannot be legally sustained, since area where the
incident in question took place and where they committed
theft of forest articles are within the same range and that
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CRL.RP No. 2137 of 2013
fact has been deposed by PW.12, there is absolutely no
any reasons to disbelieve his evidence.
20. Now coming to the question of sentence, the
trial Court has sentenced rigorous imprisonment for two
years and fine of Rs.200/- each for the offence under
Section 392 of IPC. Looking to evidence on record,
attending circumstances and commission of offence during
night under threat and also pelting stones on the house of
PWs. 4 and 9, imposition of sentence does not call for any
interference.
21. The trial Court has ordered accused Nos. 1 to 4
shall pay Rs.200/- each as compensation and in default,
undergo simple imprisonment for one month and the same
is affirmed by the First Appellate Court. The operative
portion of trial Court for payment of compensation amount
out of the fine amount and default sentence leads to
unnecessary confusion. It should have been stated that " in
default of payment of fine shall undergo simple
imprisonment for one month. On deposit of fine amount
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CRL.RP No. 2137 of 2013
Rs.400/- each is ordered to be paid to PWs.4 and 9".
Consequently, proceed to pass the following:
ORDER
Criminal Revision Petition filed by revision
petitioners/accused Nos. 1 and 2 is hereby dismissed.
The judgment of the First Appellate Court on the file
of Fast Track Court, Gadag in Crl.A.No.17/2004, dated
21.1.2011, confirming the judgment of the trial Court on
the file of II Addl. Civil Judge (Jr.Dn) & JMFC II-Court,
Gadag in C.C.No.37/2002, dated 9.6.2004 is hereby
confirmed.
Revision petition against revision petitioner
No.3/accused No.3 and revision petitioner No.4/accused
No.4 is abated vide Court order dated 11.4.2023.
The registry is directed to transmit the records with
the copy of this judgment to trial Court.
(Sd/-)
JUDGE
vb/-
