Ramesh vs State Of Karnataka

2. PW3, Manjusetty was the driver of a truck bearing Registration No.AP-09-4948. Deceased Shivashankar (Shekar) was the cleaner in the said truck. Accused No.5 Jayamma is said to be a member of a gang of dacoits comprising of accused Nos. 1 to 4 being Krishna, Manjunath, Ramesh (appellant) and Shivalinga. The truck belonged to one Natraja Transport Company having its office at Prashanth Nagar, Bangalore.

3. A First Information Report was lodged by PW2, Puttaswamy alleging that on 24.12.1998 when he had gone to Kunigal for work, he received a call in his mobile phone at about 7.45 am from his office informing him that the aforementioned truck had been stolen by some persons. He was asked to look into the matter. He with Driver Eshwara went in search of the said truck in a Maruti Van bearing Registration No.KA02 7055. Near a factory which is on the side of highway No.48 at Kunigal, he found that some people had gathered by the side of the road. Upon enquiries made by them, they came to know that a pair of chappal was lying at some distance away from the road. They proceeded further and found one `pant' and two undergarments. Proceeding further they found blood stains and a severed hand of a man on the field. It now stands established that the same was that of the driver of the lorry. They thereafter went towards Solur, Nelamangala, Shivagange and Kudur. On the way from Kudur to Shivagange, they again 3 found that some people had gathered near Thoreramanahalli and upon enquiries made, they were informed that one dead body was lying at some distance. They found the dead body to be that of the cleaner, Shekar. They informed the owner of the vehicle thereabout. They furthermore went in search of the truck. They came to learn that the driver of the truck, Manja had been admitted to Mallige Medical Centre at Bangalore City whereupon they visited the nursing home and found him to be in a seriously injured condition, his left hand having been severed. He was instructed by the owner of the truck to lodge a complaint with the police pursuant whereto a First Information Report was lodged. It was registered under Section 302, 392 and 307 of the Indian Penal Code.

5. Admittedly, no identification parade was held. It was alleged that from the truck, a tape recorder, one watch, two tyres, one jack and one tarpaulin with a rope was stolen. Those articles were said to have been recovered at the instance of the accused. At the instance of the appellant, a blue coloured tarpaulin was said to have been recovered from PW4.

6. The place of occurrence is said to be the Johnson factory which is situated at a distance of three kilometers ahead of Kunigal as one proceeds towards Bangalore. Near the said factory, there was a Dhaba on the left side. A little ahead, there was another dhaba on the right side. Behind the dhaba, on the left side there are agricultural fields. The area where the incident took place is known as Karikal Gudda cross. There were lights in the Johnson factory. PW3, in his evidence, stated that near the place of occurrence, only he, Shivashankar (the cleaner) and accused No.1 to 5 were present. He removed his pant and chappal. Accused No.5 removed her undergarments for having illicit sex. The accused had caught hold of him 6 from behind. He allegedly had conversation with them as to who else were in there in the lorry and as to where he had been going. The said place is said to be at a distance of about 100 ft. from the road. Ragi crops were standing in the field, when the assault, in the manner stated, took place. Accused No.1 Krishna was said to have been holding a Machu. Accused No.4 was holding a chaku. Accused No.2, however, was unarmed.

8. Relying on or on the basis of the statement of PW3 as also the recovery of the said articles, a judgment of conviction and sentence was recorded. Death sentence was awarded to accused No.1 to 4. Accused No.5, however, was awarded life imprisonment. All the accused were furthermore convicted under Section 307 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years.

9. On appeals having been preferred by the accused, the same were allowed in part and the death sentence awarded against respondent Nos.1 to 4 were reduced to life imprisonment.

We have noticed heretobefore that no test identification parade was held. In the First Information Report, the appellant was not named. We, however, are conscious of the fact that PW2, Puttaswamy, when lodged the First Information Report, might not have received the details of incident from PW3 as he was undergoing treatment in the nursing home. According to PW3, however, he came to know the names of all the assailants during the incident as one would call the other by his name. In his statement before the 8 police, however, admittedly he did not disclose the name of the appellant. Strangely enough, according to PW30, the Head Constable, PW23, and another constable produced accused No.5 before him at about 3.45 pm on 12.1.1999. She was arrested and interrogated. It was on that day itself, he called PW3 who identified her whereupon his further statement was recorded. The said prosecution witness, however does not state that even accused No.5, on interrogation, disclosed the name of accused No.s 1 to 4. Accused No.3 was arrested on 9.2.1999. It is not in dispute that he is a taxi driver. He was kept in custody during the night. On the next day, allegedly, he was taken to the house of one Ibrahim who is said to have purchased from him the tarpaulin in question.

14. We have noticed hereinbefore that according to PW3, he was called upon to identify the accused No.3 first in the police station. He, after three weeks, was again called to the police station to identify accused No.5. 9 PW13, however, as indicated hereinbefore, in his statement stated the date of arrest of accused No.5 as 12.1.1999. The incident having taken place on 24.12.1998 and PW3 being in hospital for at least 20 days and he having been called to police station three weeks thereafter, it is beyond comprehension as to how he could be asked to identify accused No.3 first and then accused No.5, although accused No.5 was arrested on 12.1.1999 and the appellant was arrested on 9.2.1999. PW4, Ibrahim, was the owner of hotel. He knew the appellant No.3 as he used to take his meals in his hotel. In his statement, the appellant was a regular customer as he had been transporting sand in his truck regularly. He was examined on 19.11.2002. According to him, about four years prior thereto, he had asked for some loan stating that he had no money to pay for food. When, however, he expressed his inability to pay the said sum stating that he had no money, he allegedly borrowed the said amount from another person on pledging a terpauline. After one and a half months, he came with the Kudur police and asked him to give his money back. At the instance of the police, the terpauline was produced. Measurement of the terpauline was taken. A panchnama was prepared. What was the measurement of the terpauline, however, has not been disclosed. The purported measurement of the terpauline said to have been stolen had not been verified with the recovered one. None of the 10 prosecution witnesses denied or disputed the fact that appellant was a driver. It appears rather strange that Shanthakumar PW6 would be panch witnesses for recovery of MO.12 although he had advanced the amount of Rs.500 to PW4. If the tarpauline was pledged to him, there was no reason as to why it should be recovered from PW4. The special features of the tarpauline which could be identified by PW2 and PW3 have not been stated. Tarpaulines are common goods being available in the market. It has also been accepted by Shanthakumar, PW6.

15. In view of the fact that other accused are not before us, we are of the opinion that it is difficult to uphold the judgment of conviction and sentence against the appellant herein. The place where the assault took place was said to be at a distance of 400 to 500 meters from the factory. Not only the place of occurrence was agricultural fields as stated by PW3 but the crop had also been standing thereon.

21. The appeal is allowed. The appellant should be set at liberty forthwith unless wanted in connection with any other case.

July 27, 2009