.1 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARAWAD DATED: THIS THE 19th DAY OF APRIL, 2011 BEFORE THE HON’BLE MR. JUSTICE V. JAGANNATHAN CRIMINAL APPEAL NO.538/2008 BETWEEN: 1. Pullayya ( Pulya, Sb. Yankappa Aged about 26 years 2. Jeeva Shiava, Juvari, Shivappa SI Khanappa Aged about 26 years 3. Mothi (j4 Maruthi, S/o. Khasim Aged about 20 years 4. Ajjappa is Chandru a Chandya S/o. Avali, aged about 26 years 5. Shivappa 4? Shivaji 0’ Raju (21 Shivaraj S/o. Siddappa, aged about 20 years 6. Desu Babu, S/o. Channappa Aged about 29 years 7. Sadani (g Durgappa @ Sajani S/o. Kadappa, aged about 33 years 8. Hulagesi a Hulagappa fg Avalsing S/o. Adru, aged about 25 years All are occupation of Coolie Caste: Harinashikari and Residents of Sajje Oni, Koppal APPELLANTS (By Sri. J. Basavaraj, Adv. for Rajshekar Gunjalli, Adv.) AND: The State of Karnataka Through Bevoor P.S. Tq: Yelaburga, Dist: Koppal Represented by the State Public Prosecutor High Court Building, Bangalore 560 001 RESPONDENT (By Sri. Anand K. Navalgimath, HCGP) CRL.A, IS FILED U/S. 374(2) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DT.27.3.2008 PASSED BY THE LEARNED PRESIDING OFFICER, FAST TRACK COURTJ AT KOPPAL IN SESSIONS CASE NO.39/2007 AND ACQUIT THE APPELLANT/ACCUSED NO.1 TO 8 FROM ALL THE CHARGES WITH WHICH THEY ARE HELD GUILTY. THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT This criminal appeal is by the accused calling in question their conviction in respect of the offences punishable under Sections 395 and 397 read with Section 34 of the IPC and the consequent sentence of seven years Ri. and Rs.5O0/ fine imposed by the trial Court in respect of the offence under Section 395 of the 1PC and similar sentence of seven years Ri for the offence under Section 397 of the IPC and default sentence passed for three months. 2. The case of the prosecution in short is that, in the night on 19.01.2007 at about 10.30 pm, accused Nos. 1 to 8 committed dacoity in the house of CWI Bheemappa and in the course of dacoity, the accused persons also took away the cash worth Rs.2,50O/ and gold ornaments namely, M,Os. 1 to 5. On the following day, the complainant Bheemappa telephoned to PW1 I Shankarappa, A.S.I and as the S 4 complainant was also injured in the incident, his statement was recorded by the said A.S.I in the hospital and case was registered in Crime No.8/2007 and FIR was sent as per Ex.P5 to the Court. PW14. Shrikant, police inspector took up further investigation and recorded the statement of witnesses and then went to the place of incident and held spot panchanama as per Ex.P2. Further, on 31.01.2007, when he was patrolling, on receiving information about some 8-10 persons making preparations for dacoity in a house at Janatha colony on the road from Kuknoor to Oudneppa village, he went their arid found 10 persons in the said house and caught hold of them and out of them accused Nos. I to 8 were also present. The Police Inspector then brought the accused to the police station and recorded their voluntary statement. Thereafterwards, at the instance of accused Nos.4. 7 and 8, suitcases and airbags were recovered. At the instance of accused Nos. 1, 2, 3, 5 and 6, gold bendoli, gold tall, gold muguthi were recovered from the shop of PW8 Ashok. All these items were seized under panchanaxna. After completing the investigation, the A.S.I took steps through Tahasildar, Yelburga to conduct the Test Identification parade of the accused and after obtaining the wound certificates of CW1 Bheemappa and his wife Amathemma, charge sheet was submitted. 3. The accused pleaded not guilty to the charge and the prosecution in order to establish the charge, examined PWs 1 to 14 and documents at Exs.P1 to P7 were marked apart from M.Os. 1 to 8. After evidence appreciation. the learned trial Judge found that the accused committed the offences punishable under Section 395 and 397 read with Section 34 of the IPC and accordingly, they were convicted and sentenced as mentioned earlier. 6 4. Challenging the judgment of conviction and sentence, the learned Counsel Sri. Basavaraj for the appellants argued that. close examination of the evidence of complainant’s wife namely PW5 Smt. Amathemma would go to show that the accused were not identified by the said witness. Even according to the prosecution witnesses, the incident happened in the night and the accused were found covering their face with cloth and except the eyes, no other portion was visible. In such circumstance, the prosecution ought to have placed convincing evidence with regard to the identification of the accused by the complainant and his family members. Though T.I. parade is said to have conducted, it is not conducted in accordance with law and the accused were not mixed with the other persons of the same height and therefore, the entire T.l. parade proceedings get vitiated. Once such evidence is taken out of consideration, then evidence on record does not give , S 7 the impression that the witnesses were able to identify the accused in dark. Another serious infirmity pointed out by the learned Counsel for the appellants is that, even according to PW5, only four persons entered the house and four persons were found outside the house. But these persons were not identified by PW5 as she has deposed in her evidence that, as it was night, she was not able to identify any of the persons including those who assaulted her. Referring to the evidence of PW6 Mariyappa, submission made is that, this witness has stated that all the accused had covered their faces with black cloth up to the eyes and they were wearing lungi and banion. If such is the picture of the accused according to PW6, the chances of the complainant and his family members identifying the accused, therefore is very remote. Under such circumstances, the learned trial Judge was in error in accepting the prosecution evidence to convict the accused. 8 5. It is further argued by the appellants’ Counsel that, in dacoity cases, the most important factor to be established by the prosecution is the identification of the accused persons by the inmates of the house. In the instant case, it is not possible to draw the inference that the complainant and other witnesses were able to identify the accused when the incident occurred in the dark and identification parade is also not conducted in accordance with law. 6. Another serious infirmity in the prosecution case, according to the learned Counsel for the appellants is that, the complainant is not examined before the Court and as such, the over all evidence cannot be held to be sufficient to prove the guilt of the accused beyond all reasonable doubt. The trial Court therefore, could have acquitted the accused by giving them the benefit of doubt. • 7. The above submission is sought to be supported by relying on the decisions reported in 2000 CrLL.J.2684 in the case of Prafulla Jena and Others Vs. State of Orissa and 2000 CrLL.J 1442 in the case ofMahmood and Others Vs. State ofBihar. 8. On the other hand, submission of the learned High Court Government Pleader for the respondent-State is that the trial Court has properly appreciated the evidence on record and accused have been identified by prosecution witnesses, particularly, by PWs.5 and 6, who are the inmates of the house. Therefore, no en-or can be found in the judgment of tEe trial Court and conviction of the accused persons does not call for any interference. 9. Having thus heard both sides and in the light of the arguments advanced by the appellants’ Counsel, the most important factor to be considered is whether the complainant and other witnesses were I 0 in a position to identify the accused persons. If the evidence of identification is not very convincing and reliable and is not free from doubt. then accused will be entitled to benefit of doubt. 10. Before proceeding to examine the evidence on record, it is also necessary to mention that in the decision cited by the appellants’ Counsel reported in 2000 Cri.L.J. 2684, it has been held b the Orissa High Court that, where the incident happened in the night and culprits are covered their faces with monkey caps, the infirmity in conducting of the test identification parade would therefore give rise to acquittal of the accused for lack of cogent and convincing evidence. In the other decision reported in 2000 Cri.L.i.1442, it has been held by the Apex Court that, where the identification of the two accused by informant was doubtful and the testimony of the brothers involving other accused was not reliable and trust worthy and there was also II serious doubt about the manner of identification, the conviction of the accused solely on the basis of said evidence is not proper and accused should be given the benefit of doubt. 11. Keeping the aforesaid decisions in view, if we examine the evidence on record, the first and foremost infirmity in the prosecution case is that, the complainant Bheemappa ought to have been examined by the prosecution. Therefore, the complainant’s statement at Ex.P37 does not get necessary support from the very complainant himself. 12. The next aspect is with regard to the identification of the accused. It is the specific case of the prosecution that eight accused committed the act of dacoity. PW5 Amathemma deposed in her evidence that the incident happened at about 10.00 am and four persons entered her house and they stabbed her husband and also stabbed her right 12 hand and assaulted them and thereaferwards, the said four persons took away the ornaments which were found on their body and cash of Rs.2,500/-. It is deposed by her that, she is not in a position to identify who are the four persons among eight accused who had entered her house and who had stayed outside the house. It is also in her evidence that she saw the accused at Kustagi, but does not remember where she saw them. It is also in her evidence that she did not go to the police station after the incident. In the course of her cross-examination, this witness has also stated that as the incident happened in the night. she did not see the persons properly and cannot say who assaulted her and she is not aware of she being assaulted by accused No.1 with knife. 13. PW6, Mariyappa is the grand son of PW5 and in his evidence, after deposing about the incident of dacoity having taken place at 10.30 in the night, 13 this witness has stated that four persons entered the house and while going out they locked the front door and went away. In the cross-examination, it has been brought out by the defence from this witness that, all the persons were entered the house covering their faces with black clothes up to the eyes and they were wearing lungi and half banion and after the persons left the house, PW6 did not follow them. This witness has also stated that he saw the accused in the office of the Tahalsidar and it is his further evidence that in the office of Tahalsidar, except accused No.1 to 8 no other person was present. 14. PW1O Shivappa, Tahasildar has been examined in connection with the conducting of T.I. parade. According to this witness, accused No.1 to 8 were found in the jail at Huvina Hadagali and he called the prosecution witnesses and showed the accused in the jail and the witness identified accused No. I to 8. It is also deposed by him that, 14 complainant did not identify the accused: Ex.P7 to P16 are the proceedings of T.I parade held by this witness. In the evidence of this witness, it is not stated by him that he conducted the T.1 parade as prescribed by law and no where this witness has stated that the accused persons were mixed with persons of similar height and stature. 15. From the aforesaid evidence relating to the identification of the accused, can it be said that the prosecution had established the identification of accused No.1 to 8? The answer is to be in the negative for the following reasons: 16. First of all, the incident happened in the night at around 10.30 pm and only four persons said to have entered the house of PWS and four persons remained outside. Who were the persons who remained outside and who were in the house has not been established by the prosecution, despite 15 examining the house inmates PWs 5 and 6. The evidence of PW6 clearly goes to show that the accused who entered the house were covering their faces with black cloth up to the eyes and thus, it will be very difficult for a person to identiI a stranger, that too in the night when the persons are covered their faces with black cloth up to the eyes. Therefore, the evidence of PWs 5 and 6 in particular that they were able to identify the accused cannot believed as it does not convince the Court of its reliability. 17. The next reason is that, no T.I. parade was conducted as required under Section 9 of the Evidence Act. It is well settled position in law that the T.I. parade will be conducted in the manner known to law and if the accused persons are not mixed with other persons of the same height and age group and only the accused are shown to be witnesses, then such T.I. parade allows such witnesses. The evidence of Tahasildar does not IC, indicate that the procedure was one as required by law. 18. Though the witnesses have not seen the faces of the accused very clearly in the night because of accused having covered their faces with black cloth, it is highly impossible for the witnesses to identify the accused either in the jail or before the Tahasildar. Such being the evidence on record, the learned trial Judge was not justified in accepting the evidence of PW5 and those in particular. when they themselves deposed in their evidence that they are not able to identify the accused as accused had covered their faces with black cloth. 19. If the identification of the accused persons is not established by the prosecution beyond all reasonable doubt, in view of the aforesaid infirmities in the prosecution case, the question of holding that the appellants herein are the accused who had k 17 d committed the dacoity in the house of CW 1, therefore, does not arise. As has been held by the Apex Court in the case referred to by the Apex Court reported in 2000 Cri.L.J. 1442, where the identification of the accused is doubtful and evidence is also not very convincing in regard to that, the conviction of the accused persons wholly on the basis of evidence of such witnesses would not be proper and the accused. therefore, will have to be given the benefit of doubt. 20. Another important aspect to be referred to is that the investigation also has not been properly conducted and in this regard, it is relevant to refer to the wound certificates referred to by the appellants’ Counsel. Ex.P38 is the wound certificate in respect of CWI Bheemappa and Ex.P39 is the wound certificate in respect of PW5 Amathemma and these two documents will indicate that the injured persons were examined on 19.01.2007 at 7.45 am and 8.00 4 18 4, 4 am respectively. The incident according to the prosecution took place on 19.01.2007 at 10.30 in the night, if the incident had occurred in the night and on next day, the complaint is lodged as per Ex.P37, the question of persons getting injured on 19.0 1.2007 in the morning at 7.45 am or 8.00 am also will have to be ruled out and it also goes to show that the prosecution had not been able to establish even the exact time at which the incident is said to have occurred. The knife which is said to have been used by the accused was also not recovered nor is produced during the evidence. 21. In the light of the aforesaid serious infirmities in the prosecution case, the learned trial Judge could not have convicted the accused persons, more so, in view of the trial Court itself having observed at para 31 of his judgment that the evidence of PW5 who is a lady will have to be excluded. If the evidence of PW5 is excluded, then what remains is S 19 that of PW6 and he has deposed in his evidence that accused have covered their faces with black cloth up to the eyes and that, in the evidence of this witness, as already mentioned by him, identification of the accused persons by this witnesses also becomes doubtful, more so when the T.I parade was conducted in accordance with law. 22. For all the aforesaid reasons, evidence appreciation by the trial court is perverse and findings recorded cannot be sustained in law and as such, the accused will have to be given the benefit of doubt and consequently, the conviction and sentence passed also required to be interfered with. 23. In the result, the appeal is allowed. The judgment of conviction and sentence passed by the trial Court against the appellants is set aside. The appellants are in custody from 4 years and therefore, a Th they shall be set at lihert\ forthwith. Their bail bonds shall stand cancelled. 24. The appellants to be released forthwith and set at 1ibert if not required in connection with any other case. The fine amount, if any paid shall be refunded to the appellants. sal 3UDGE gab/