Korachara Ningappa vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the appellants and the learned State Public Prosecutor. The appellants were the accused before the court below in the following circumstances:

"The complainant, one Ravi Belagere was said to be a Journalist. He had alleged that on 29.5.2003 at about 9.00 a.m., he had come to Harappanahalli along with 3 witnesses, namely, PWs. 7, 4 and 5 to gather information as regards a group of persons, who were defrauding the general public by passing off brass biscuits as gold biscuits. It transpires that, on arriving at Harapanahalli, PWs. 4 and 5 had separated from the group to have coffee. The complainant and PW7 had been met by accused 2 and 7 and they had informed that they have gold biscuits and they are said to have asked the complainant to accompany them and are said to have taken him to the land of one Neelakantappa behind the college premises of ADG College in Harappanahalli. Then it is alleged that accused 4 and 5 who were there had displayed certain gold biscuits to the complainant and PW7. When the complainant PW2 had expressed that they were interested in purchasing only a single biscuit, and were about to return the same, four other accused namely, accused 1, 6, 8 and 9 had joined are said to have the group and immediately immobilized the complainant and P.W. 7. It is claimed that accused No. 3 was observing this from a distance and according to the complainant, accused 1 and 8 held him while his watch was taken away by another accused and a gold chain on his neck was also snatched, as well as, a cell phone was removed from his pocket and in the meanwhile, accused 7 and 9 had also held PW7 and had snatched Rs. 30,000/- cash that he was carrying and threw him to the ground. PW7 had screamed at this and he had shouted that they will not be spared for this kind of conduct. The complainant was said to be carrying a revolver, and he immediately, drew the same and fired at accused No. 1, who was fleeing along with the other accused and it is claimed that he was hit on the left ankle joint. Thereafter, all the accused are said to have fled from the scene after having snatched the valuables as afore stated. Then the complainant had reached the nearest police station, namely, Harappanahalli Police Station and had narrated the incident. Pursuant to which, an investigation was said to have been taken up and it transpires that the police were able to take into custody accused 2, 3, 4, 5, 6 and 7, on the very next day and on the basis of information provided by the said accused, the other accused had been arrested on 7.6.2003. On the basis of material that was recovered from the several accused, a charge sheet is said to have been filed against all the accused and on further proceedings, the court below having framed the charges, the accused had pleaded not guilty and claimed to be tried. The Court had then framed the following the points for consideration, which loosely translated into English reads as follows:

"1. Whether the prosecution proves beyond doubt that the complainant was contacted over phone with an intention of selling brass ingots claiming them to be of gold and on 29.9.2003 around 9 AM the complainant came to Harapanahalli when the accused No. 2 and 7 took him to accused Nos. 4 and 5 and later rest of the accused attempted to sell brass ingots by defrauding the complainant; and the charges under Section 420 r/w 34 IPC against the accused?

Whether the prosecution establishes beyond doubt that the accused, in their attempt to sell brass biscuits, insisted the complainant to purchase all the biscuits and the complainant said that he would purchase only one biscuit for sample after which all the accused robbed the complainant of his the neck chain, watch and mobile and Rs. 30,000/- from witness Bettegowda; and proves the charges under Section 395 r/w 34 IPC?"

The court below has answered point No. 1 in the affirmative. Insofar as the point No. 2 is concerned, the court has come to the conclusion that the case for an offence punishable under Section 384 of the Indian Penal Code, 1860 (Hereinafter referred to as ''IPC" for brevity) has been proved and not an offence under Section 395, IPC, and has consequently convicted and sentenced accused 1 to 3 and 6 to 9 to rigorous imprisonment for a period of three years for the offence punishable under Section 384, IPC, and to pay a fine of Rs. 5,000/-. Accused No. 4 has been ordered to be released for the offence punishable under Section 304, IPC, on the pleading that he was in judicial custody for 2 years 8 months and 18 days. Insofar as accused No. 5 is concerned, he has been sentenced to undergo 2 years rigorous imprisonment and directed to pay a fine of Rs. 5,000/- for an offence punishable under Section 384 IPC. Accused 1 to 3 and 6 and 9 have been sentenced to undergo rigorous imprisonment for a period of 5 years and directed to pay a fine of Rs. 10,000/- for the offence punishable under Section 420, IPC. Accused 4 and 5 have been sentenced to 2 years rigorous imprisonment and directed to pay a fine of Rs. 1,000/- for the offence punishable under Section 420, IPC and all the sentences were ordered to run concurrently. It is this, which is under challenge in the present appeal.

The learned counsel for the appellants would point out that the sequence of events as narrated by the complainant would itself indicate the falsity of the case of the prosecution. It is the case of the complainant that he was on an investigative assignment, in order to expose the fraud committed by several accused, who were a gang indulging in passing off brass biscuits as gold biscuits to the gullible public and therefore, he had come along with 3 persons to expose the said accused. Therefore, it is not the complainant''s case that any of the accused were known to him and that he was familiar with them. The accused were 9 in number. The complainant having stated that he and PW2 were met by accused 2 and 7 and they had in turn taken him and PW7, to a place where accused 4 and 5 were sitting and immediately thereafter other accused having joined the group and robbed all their valuables and having fled away, would indicate that neither the complainant nor PW7 would have been in a position to register the identity of each of the accused when they were 9 in number and the attack on them having followed immediately after all the accused were present, would also falsify the claim of the complainant that he was in a position to identify any of the accused at a later point of time. Apart from the fact that he is said to have shot at accused No. 1, the further sequence of events would throw further doubt about the manner in which the accused may be said to have been involved in any such incident. Though the complaint is said to have been lodged immediately, as regards the alleged incident, the fact that the police were able to trace unknown persons and named accused Nos. 2, 3, 4, 6 and 7 on the next day is without any clue as to their identity or their residence. They are said to have been arrested from their respective residences. This is not sought to be explained by the prosecution in the course of the trial, which throws a grave suspicion of the very accused being involved. When the manner in which the police are said to have received a break through in their investigation on the basis of the complaint, is itself doubtful. Further the identification of the other accused has been facilitated by the voluntary statement said to have been made by accused No. 2, 4 and 6, which is further doubtful and the so called voluntary statements of the accused cannot be the basis for prosecution to establish this case. Therefore, the learned counsel would submit that unless the prosecution is in a position to establish that there was certain information and definite clues leading to the arrest of the said accused 2, 4 and 6, the further developments are highly suspicious and cannot also be accepted. It is this basic premise on which the learned counsel for the accused would seek to emphasize and would particularly draw attention of this Court to a circumstance where the accused, who are totally strangers and 9 in number, suddenly having attacked complainant and PW7 and having vanished from the scene, to be again traced and identified after a test identification parade conducted only after the arrest of all the accused, which is much later, namely 7 months after the incident. This is totally unacceptable.

The learned counsel would further point out that the other evidence that is sought to be set up against the accused are the alleged recoveries made from each of the accused. This again is, on the face of it, contrived and can hardly be accepted. It is the case of the prosecution that the following recoveries are made from the following respective accused which is indicated herein, in a tabular form:

The learned counsel would point out that the recoveries made from each of the accused are apparently personal belongings and cannot be characterized as any stolen property. The arrest of accused 2, 4 and 5 and other accused on different dates, are separated by long periods of time and there is no continuity in the case of the prosecution in seeking to contend that recoveries made from time to time would indeed, be the property which had been robbed from the complainant. Given the amount of money that is recovered from each of the accused, it can certainly be claimed as to their personal money, which they were carrying on their person and cannot be said to be identified as if it was the property which had been robbed at the incident which occurred much earlier to their arrest. This, the learned counsel would extend to other properties such as mobile phones and any other valuable that was said to have been recovered from them. In the absence of any valuable that could be identified and related to the property of the complainant, it cannot be said what has been recovered from the accused was property belonging to the complainant. Therefore, the learned counsel has taken this court through other particulars, such as, the claim of the complainant that he had fired from his revolver injuring accused No. 1 on his left ankle joint. This is sought to be established by reference to Ex. P9 - the wound certificate. On the other hand, it is the case of the prosecution that accused No. 1 was arrested on the next date of the alleged incident, namely, on 30.5.2003. However, he was not subjected to any medical examination to ascertain that the wound that he had suffered was caused by a bullet fired from the revolver of the complainant. On the other hand, he has been subjected to medical examination four days later and the wound certificate at Ex. P9 does not indicate that it was a bullet injury suffered by accused No. 1. On the other hand, it is positively stated by the prosecution itself, that the injury could be caused by any sharp object or by falling against any sharp object. There was no document to show that it was a bullet injury. Therefore, the contention that the incident had occurred and is also established by the complainant having fired with his revolver at accused No. 1 and he having been suffered a bullet injury on his left ankle, is not established.

It is pointed out that the recoveries made are not consistent with the alleged loss of valuables as stated in the complaint by the complainant. As for instance, the complainant had claimed that he had lost a Camy watch, however, the recovery is said to be of some other make, namely, Michel Reini watch, (which, is not clear, in the absence of the actual spelling of the make of the watch), which was recovered and in any event, it is not a Camy watch. The learned Counsel would therefore contend that apart from the inconsistency as regards the watch, the complainant had claimed that he had lost a Nokia Cellular Mobile phone. No such cell phone has been recovered from any of the accused.

Further, it was claimed that a sum of Rs. 30,000/- in cash had been taken away from P.W. 2. It is sought to be further claimed that the currency notes recovered from each of the accused totalling to Rs. 21,000/- in all, is relatable to the amount which was robbed from P.W. 2. The learned Counsel would point out that insofar as the recovery of cash is concerned, the amount recovered from each of the accused is already shown in a tabular form hereinabove and it cannot be said that it would be cash relatable to the amount allegedly took away from P.W. 2. Mere possession of cash by itself would not be sufficient to establish that it was the money which was robbed at the time of the alleged incident.

Further, several accused having been arrested and taken into custody, the recoveries were made at long intervals, namely, accused No. 1 to 5 have been arrested on 30.5.2003, accused No. 6 on 1.1.2004, accused No. 7 on 3.1.2004, and accused Nos. 8 and 9 were on 7.6.2003. The learned Counsel would seek to point out that having regard to the sequence of events and the interval between the arrest of the several accused, to countenance that the cash that was robbed as on 29.5.2003, was the amount recovered upon the arrest of the accused much later, is far-fetched and cannot be accepted and therefore, would submit that the very allegations and the sequence of events are hardly acceptable since they lack in consistency and even logic. Hence, the prosecution has not made out any case which would bring home the charges and seeks that the accused be acquitted.

On the other hand, the learned State Public Prosecutor would submit that accused No. 1 was arrested on the very next day and he was subjected to medical examination and according to the wound certificate dated 1.6.2003, the wound found on his left ankle may have been caused by a bullet, according to the Medical Practitioner. The learned State Public Prosecutor would, at the outset, contend that the allegations against the several accused are commission of dacoity in broad day light and therefore, the material on record, which has been closely scrutinized by the court below in arriving at its findings, would completely justify the findings of the court below. More particularly, the learned State Public Prosecutor would submit that the complainant was apparently seeking to expose several accused, who were engaged in defrauding the members of the general public by seeking to sell gold biscuits, when in fact, were brass biscuits, sought to be purveyed as gold biscuits and since the complainant had not readily fallen into their trap of purchasing the said biscuits, since he evinced interest in purchasing only one, they had immediately attacked him and P.W. 2. It is in that background that the complainant having lodged a complaint, the jurisdictional Police had immediately swung into action and had arrested the accused No. 1 and thereafter, on the basis of his voluntary statement, the other accused had also been arrested.

Incidentally, the learned State Public Prosecutor would also draw reference to a counter case said to have been filed by accused No. 1 herein in crime No. 97/2003, later numbered as SC 34/2005. Though it was not tried as a counter case, it cannot be disputed that accused No. 1 had claimed that he was in Harapanahalli on 29.5.2003 and when he was proceeding along with his father-in-law, he had seen two people in a scuffle and when he went there to inquire as to what was on, he was informed that the complainant, Ravi Belagere and his accomplice P.W. 7, had tried to snatch the gold biscuits, which were carried by one of the relatives of the accused and had tried to run away at which time, there was a scuffle. It was also the case of the accused No. 1 that the complainant, Ravi Belagere had immediately pulled out a revolver and had shot at him, resulting in injury to his left ankle, for which he had later obtained treatment and therefore, it was his case that Ravi Belagere had fired at him unprovoked and without any cause and had caused injuries. On the basis of which, Ravi Belagere was charge-sheeted and he had stood trial and was ultimately let off after being strictly reprimanded without any sentence being imposed for the offence under Section 30 of the Arms Act, 1959. Therefore, it is the endeavour of the learned State Public Prosecutor to contend that notwithstanding the allegations made against the appellant in the present case, the very complaint of the appellant against Ravi Belagere would confirm his presence at Harapanahalli on 29.5.2003 and that the time at which the incident had occurred, would also coincide with the allegations in the complaint. Though the version of the appellant, has been negatived and the only result of the complaint filed by the appellant was that the complainant Ravi Belagare had suffered a reprimand by the court, for otherwise the incident having taken place and the manner in which it has unfolded is established in the manner that has been stated in the complaint by the appellant No. 1. And hence, the State Public Prosecutor would contend that this aspect of the matter, though was not the subject matter of the judgment of the court below, it cannot be denied that there was a case initiated by the appellant herein and the result of the same would to that extent support the case of the prosecution. Hence, the learned State Public Prosecutor would seek to contend that the appellants being notorious criminals, who were engaged in defrauding the general public and having committed a day light dacoity, ought not to be viewed with any lenience and the so-called infirmities sought to be highlighted by the learned counsel for the appellants are not tenable.

Incidentally, it is also asserted that though several contentions have been raised by the learned counsel for the appellant, there is not a single ground found in the memorandum of appeal, which would be consistent with the arguments that are canvassed and that the recoveries have been made at the earliest point of time immediately after the crime. Therefore, the prosecution case is established unerringly and cannot be questioned on its veracity and seeks that the judgment of the court below be confirmed.

On a perusal of the record, it is evident that the incident has occurred on 29.5.2003 in the presence of the complainant, who was the injured victim along with P.W. 7. Though the complainant had come along with two others at the time of the incident, they had parted company and they had gone to have coffee. It is claimed that the complainant and P.W. 7 were met by accused Nos. 2 and 7 and were taken to an isolated place, where they met accused Nos. 4 and 5, who were waiting for them and accused No. 5 is said to have shown him certain gold biscuits and there was negotiation for purchase of the said biscuits and when the complainant claimed that he was interested in purchasing only one biscuit, the accused were peeved and accused Nos. 1,6,8 and 9 had joined the group and all of them together had started assaulting the complainant and P.W. 7 and when they were promptly relieved of their valuables, P.W. 7 was thrown to the ground and the complainant was punched and kicked and the accused had fled. It is ambiguously claimed that the complainant had immediately lodged a complaint before the jurisdictional Police, while it is also on record that he had not immediately lodged a complaint, but he had gone away to Dharwad and when he returned later in the evening, several thousand people had gathered before the Police Station and thereafter he had lodged a complaint. In any event, the complaint having been lodged against unknown persons since all the accused were strangers to the complainant. It is inexplicable that the Police were able to arrest accused No. 1, on the footing that he was one of the assailants involved in the commission of the offence. This aspect of the matter is left unexplained by the prosecution. There is no basis or clue, on which the Police had proceeded to take accused No. 1 into custody.

The Police having arrested accused No. 1 and having identified him as being the person involved, though it was claimed that he was examined for a bullet injury that was caused by the complainant when he had shot at accused No. 1, injuring him on his left ankle, it is ambiguously claimed by the prosecution that he was submitted to medical examination on the very date of his arrest, namely on 30.5.2003, whereas it is pointed out that the Certificate is dated 1.6.2003 and therefore there is discrepancy as to when exactly the accused was examined and for what injury.

Though the learned State Public Prosecutor would insist that merely because the wound certificate is dated 1.6.2003, it does not follow that he was examined on 1.6.2003 and that he was actually examined on 30.5.2003, it is pointed out by the learned counsel for the appellants that the wound was subjected to X''Ray and was examined on 1.6.2003. Apart from this controversy, as to when exactly the would was examined, the wound certificate does not disclose that the wound was caused by a bullet. It is only a surmise of the Medical Practitioner that it could also be caused by a bullet. In any event, insofar as the arrest of accused No. 1 and he being implicated as the accused certainly as the person involved in the incident, is without any preamble. This is a significant circumstance which the court below has completely glossed over and the prosecution has not chosen to put forth any explanation as to how the Police could zero in on accused No. 1 as a prime suspect and could have taken him into custody. It is not clear as to how accused Nos. 2 to 5 were also taken into custody on the very same day, purportedly on the voluntary statement of accused No. 1. If it is to be accepted that the Police were able to take into custody accused Nos. 2 to 5 only on the basis of the so-called voluntary statement of accused No. 1, the same would not be admissible in evidence. It is in the absence of any cogent evidence to link the said accused to the commission of the offence, it is difficult to sustain the manner in which the Police have found that the accused 1 to 5 were indeed associated and were involved in the commission of the offence. This aspect of the matter is totally unclear and is not supported by any evidence or cogent explanation from the record.

The recoveries made from the several accused, which is indicated in a tabular form hereinbefore, would indicate that apart from the recovery of currency notes amounting to Rs. 500/- each from accused No. 4 and accused No. 5, it is seen that the personal properties, such as the gold chain, a watch, and a mobile set from accused Nos. 1, 2 and 3, respectively, and also cash in a sum of Rs. 5,000/-, Rs. 3,400/- and Rs. 10,000/- were recovered from each of them. This by itself would not establish that they were carrying cash or valuables, which they had robbed from the victims, namely, the complainant and P.W. 7.

Insofar as the subsequent arrest of the other accused namely, accused No. 6 as on 1.1.2004, which is a clear 7 months after the incident and accused No. 7 on 3.1.2004, which is much later and accused Nos. 8 and 9 on 7.6.2003, which is a year later, would not establish that any recoveries made from them can be relatable to the incident. The only identifiable article if at all, namely, a Camy watch, which is said to have been taken away by the accused, has not been recovered. What has been recovered is Michel Riene watch. This by itself would not establish that the gold biscuits, which have been recovered form accused Nos. 7,8 and 9 are 4, 3, and 2 in number and the manner in which the same are recovered from each of the accused is also in a similar fashion. The Police, on their arrest, had taken them to a place as indicated by them and they had brought out the gold biscuits in a similar fashion. This, the learned counsel for the appellants would point out, is apparently in order to frame the accused if the accused were involved in defrauding people by passing of gold quoted brass biscuits as gold biscuits, there will not be any dearth of the same and to claim that they could recover only 2 or 3 gold quoted brass biscuits from the accused, would indicate that the same had been apparently planted on them, to claim that they were involved in the crime and the same cannot be readily accepted.

Incidentally insofar as the gold chain or a watch or a mobile hand set said to have been lost by the complainant and his accomplice and the so called recovery made from the accused are not relatable in that, the complainant or his accomplice have not laid claim to the same even as on date. This contention on the part of the learned Counsel for the appellants would have to be taken into account.

Accordingly, though the trial court in its order has accepted the case of the prosecution, in holding that the incident had occurred in the manner as claimed by the complainant and that the same is established by material documents and evidence produced by the prosecution as already pointed out the sequence of events and the manner in which the several accused have been identified and the accused having taken into custody over a period of one year and thereafter recoveries having been made and the cohesive sought to be made out on the basis of the same cannot be readily accepted by this court, for the reasons as contended by the learned Counsel for the appellant in his arguments.

The learned State Public Prosecutor would endeavour to contend that a case was filed by the accused as against the complainant, to claim that when he was at Harapanahalli town along with his father-in-law, he had been shot at by the complainant when he had tried to intervene in an altercation between P.W. 7 and a relative of the accused, from whom the complainant and his accomplice had tried to snatch certain valuable gold biscuits and the same had resulted in the complainant being reprimanded as an accused in that case for having carried a fire arm without jurisdiction as he had no licence to carry the same beyond Bangalore City. In that case, the accused herein has admitted his presence at Harapanahalli town on 29.5.2003 and the presence of the complainant, P.W. 7 and others was also asserted by him by way of a complaint, which was to cover up his presence and involvement in the crime, as stated by the prosecution, has been negated to the extent that he had suffered a bullet injury was established and the manner in which he had suffered the bullet injury was on a claim that the complainant had shot at him unprovoked whereas it was after there was an attack by accused No. 1 and other eight accused and when they were fleeing, the complainant had shot and injured him. The divergent cases sought to be projected to that extent would stand established, as stated by the prosecution. In the present case on hand, the only positive outcome of the complaint by the accused was that the complainant was reprimanded in the case filed by the accused. To that, the learned State Public Prosecutor would insist that the filing of the complaint by the accused would largely support the case of the prosecution in establishing his presence at Harapanahalli town on 29.5.2003. To that extent, appellant No. 1 is estopped from resiling from his position that he was present at Harapanahalli on 29.5.2003 in the presence of the complainant. This would not advance the case of the prosecution to establish that the case had unfolded itself in the manner as sought to be projected. The complaint of the accused No. 1 against the complainant having resulted in a reprimand, by itself, does not establish anything more than the fact that the complainant was found carrying a fire arm outside Bangalore city and therefore had committed the offence punishable under Section 30 of the Arms Act. The said case was not treated as a counter case and therefore, to that extent, cannot be relatable to the present case. In any event, the significant gaps in the case of the prosecution as to the manner in which the accused are linked to the incident and the accused being arrested over a period of time commencing with the arrest of accused No. 1 on the very next day of the incident, without any basis or clue, is difficult to accept. Hence, the case of the prosecution having been accepted by the trial court and the accused being foisted with the serious punishment, as already stated, results in a miscarriage of justice. The prosecution has certainly not proved its case beyond all reasonable doubt.

Incidentally, the contention that the memorandum of appeal does not contain any grounds which are now sought to be canvassed by the learned Counsel for the appellants is indeed a fact, but that does not estop the learned counsel for the appellants to highlight the discrepancies and for this court to take note of the same in addressing the material on record.

Consequently as already pointed out, the several discrepancies are glaring. Even in the absence of specific grounds raised in the appeal, this court is duty bound to address the lacunae.

The appeal is allowed. The appellants are acquitted. The fine amount, if any paid by the appellants shall be refunded. The bail bonds executed by the appellants stand cancelled.