Manju vs State

Anand Byrareddy, J.—Heard the learned counsel for the appellants.

These appeals are heard and disposed of together, since the appeals are filed by the accused in the same case.

The appellant in Crl. A. 1169/2013 was arrayed as Accused No. 5 before the court below and the appellant in Crl. A 1143/2013 was arrayed as Accused No. 2 before the court below.

The facts of the case are as follows:

The complainant one Nagaraju, a permanent resident of Doranahalli of Malavalli Taluk, Mandya District was said to have been residing at Sriramapura II Stage, Mysore, on the date of the complaint and he was a plumber by profession. It transpires that the marriage of his brother was settled and he had come to Mysore to make purchases in preparation for the wedding and he was carrying a sum of Rs. 22,000/-. It is his case that he came to the Mysore Bus Stand on 12.04.2011 and after having alighted from the bus, at about 12.45 p.m., he had gone to an open space behind Town Hall in order to urinate. When, he was surprised by the accused who had descended on him and had gagged him and held and hugged him, therefore, rendering him immobile and one of them had snatched the cash of Rs. 22,000/- from his pocket and had run away. The complainant claims that he had raised a hue and cry attracting attention of other bystanders who had pursued the accused along with the complainant and had managed to apprehend three of the accused, namely Accused Nos. 1 to 3 and had recovered an amount of Rs. 22,000/- from the possession of Accused No. 1. On information provided by them, the other accused, namely Accused Nos. 4 and 5 were also taken into custody and a case was registered against them on the basis of the complaint. The then Magistrate had committed the case to the Court of Sessions, as it was a case exclusively triable by the Sessions Court and accordingly their presence having been secured before the Court the charges were framed against the accused and the accused having pleaded not guilty and having claimed to be tried, the prosecution had examined nine witnesses and marked several documents in support of its case and after recording the statement of the accused under Section 313 of the Code of Criminal Procedure, 1973, and after hearing both the parties, the court below had framed the following points for consideration:

"(1) Whether the prosecution proves beyond all reasonable doubt that, on 12.04.2011 at 1.00 p.m., in the open space situated behind the Town Hall in Mysore when the complainant had been to the said spot for attending nature''s call, the accused have suddenly surrounded him and accused No. 2 caught hold of complainant by closing his mouth while other accused robbed him to the tune of Rs. 22,000/- and thereby committed an offence punishable under Section 395 of I.P.C.?

(2) What Order?"

The court below had answered the same in the affirmative and has convicted and sentenced the accused to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 5,000/- each, for the offence punishable under Section 395 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC'', for brevity). It is this which is under challenge in the present appeal.

The learned counsel for the appellants would uniformly contend that the court below was not justified in arriving at its findings on the basis of evidence which was clearly inconsistent and could not have supported the case of the prosecution. It is pointed out that the prosecution had relied on the evidence of PWs 1 to 3 and PW-6 in order to conclude that the accused had robbed the complainant, as alleged. It is emphasized that the manner in which the incident is said to have occurred would indicate that the complainant was hardly in a position to note the appearance and the physical features of the accused if he was held from be behind the money having been snatched from his person, and if the accused had fled, the complainant would have hardly had time to register their physical features and be in a position to recognize them. Further, the admitted circumstance that Accused Nos. 4 and 5 were not immediately apprehended as alleged and that their presence having been secured later, on the alleged voluntary statements of Accused Nos. 1 to 3, would hardly have enabled the accused to recognize Accused Nos. 4 and 5 at all and the accused having been said to have been recognized in court at the time of trial is therefore, unbelievable and could not have been accepted by the court below. Further, the inconsistent statements of the several witnesses as to the direction in which the accused are said to have run away and further the narration of the events insofar as the complainant having come from a particular direction, also being inconsistent, the court below was not justified in arriving at findings in the accused being visited with serious punishment of rigorous imprisonment of five years. Therefore, the burden of proof was heavy on the prosecution, which it has failed to discharge and in the light of these glaring discrepancies, the court below was not justified in arriving at its findings.

Further, the prosecution had placed reliance on PWs 4 and 5 who were alleged to have apprehended the Accused 1 to 3 on the date of the alleged incident and those witnesses not having supported the case of the prosecution, it cannot be said that the prosecution had made out any positive case against the accused, especially in view of the inconsistent testimony of the several witnesses on whose evidence the prosecution had placed entire reliance. Apart from the above, the learned counsel would also seek to point out other minor discrepancies, as for instance, PW-1 who had stated that he was familiar and knew PW-2, is contradicted by PW-2 who has stated that he did not know PW-1. Further, it is also inconsistently stated that the complaint was typewritten in the Police Station, whereas PW-8 had stated that the complainant had brought the typed copy of the complaint and had submitted the same. These and other discrepancies would further dilute the case of the prosecution and therefore, it could not be said that the case could be established beyond all reasonable doubt.

The learned State Public Prosecutor on the other hand would state that the primary circumstance that there are several cases pending against the present accused, is conveniently suppressed in this appeal and seeks to furnish particulars of the pending cases against each of the accused. In that, he would submit that there are seven cases pending against Accused No. 1-Mahadeva @ Rafiq, four cases pending against the appellant in Crl. A. 1143/2013 who is Accused No. 2-Manju @ Muniyappa, five cases pending against Accused No. 3-Nagaraja, S/o. Thimmappa, four cases pending against Accused No. 4-Nagaraju S/o. Late Shivalingappa and six cases pending against the appellant in Crl. A. 1169/2013 who is Accused No. 5-Manja @ Kappemanja. Therefore, he would submit that the several inconsistencies and discrepancies would have to be viewed seriously if the appellants did not have any history behind them. In the light of the large number of cases pending against each of the accused, the inconsistencies if any, would pale into insignificance and especially given the circumstances as pointed out by the court below. In that, he would submit that though PW-1 was not initially cross-examined, it was much later that an application was filed seeking to recall the witness and he was cross-examined at length after an interval, which possibly had led to the witness making inconsistent statements. Similar is the case with other witnesses.

On the other hand, the evidence of witnesses PWs 2 and 3 would adequately support the case of the prosecution and this has been addressed by the court below, since the very contention was taken before the court below itself. Insofar as the recovery having been made immediately on apprehension of the accused, the case of the prosecution cannot be lightly brushed aside on the basis of any such inconsistencies. The further allegation that the complainant was not in a position to recognize any of the accused, cannot also be accepted because, the accused were immediately apprehended and there was ''sufficient exposure of their physical features and description for the complainant to have recognized them later while produced in Court. There is no irregularity or there is no warrant for suspicion that the accused were not recognized and could not have been identified by the complainant.

Insofar as Accused 4 and 5 are concerned, the said accused were taken into custody only on the information provided by Accused Nos. 1 to 3 and it has proved to be a fact that they were all involved in several other cases, which would point out their guilt. Further, even if Accused No. 5 claims that he was not immediately apprehended and merely on the basis of an alleged voluntary statement he has-been implicated as an accused and mere pendency of the case against him, would not be a ground to convict him, is belied by the fact that he was required to afford a tenable explanation as to the reason he was found to be absconding for a long time and in the absence of any such explanation his claim of innocence cannot be readily countenanced. He would therefore submit that the very inconsistencies that are sought to be emphasized and highlighted before this Court were noticed and brought to the attention of the court below by the accused and the court having addressed the same, has yet come to a conclusion that there was sufficient evidence even otherwise, to pin the accused in they having committed the offence and therefore, has relied on that part of the evidence of the prosecution which could not be impeached, in arriving at its conclusions. Therefore, he would submit that the appeal be dismissed.

On a consideration of the rival contentions and on an examination of the record, it is not in serious dispute that there are several cases pending against each of the accused. It would therefore give rise to a presumption that they are habitual offenders. Secondly, Accused Nos. 1 to 3 were apprehended immediately after the incident and this would lend credence to the case of the prosecution, as the persons who had assisted the complainant in apprehending the accused were total strangers and members of the general public, who had joined the chase only on the complainant raising a hue and cry and the accused having been apprehended then and there, would give a positive indication of the accused having committed the offence which has been adequately proved by the evidence of the very same persons before the Court. The circumstance that PWs 4 and 5 had resiled and had not supported the case of the prosecution, would not dilute the evidence of other witnesses who had categorically supported the case of the prosecution. It is the quality of evidence that is important and not the number of witnesses who support the case of the prosecution. Therefore, there is no irregularity or illegality committed by the court below in arriving at its conclusions on those primary allegations.

Further, the dispute or the debate sought to be urged by the accused as regards the complainant not being in a position to identify them or that Accused No. 5 particularly not having been apprehended immediately, could not have been implicated only on the voluntary statements of Accused Nos. 1 to 3, is also not a serious circumstance which requires consideration by this Court, especially since he is involved in several other cases. Though this court in the case of Shivaji vs. State of Mysore 1966 (1) Mys. LJ. 632, while referring to Section 54 of the Indian Evidence Act, which provides that in criminal proceedings, the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, may not advance the case of the accused, for there is adequate evidence of he being involved in several other cases. The fact that he has been unable to explain to the court as to the reason why he was said to be absconding over a long period of time, was itself sufficient to negate any such defence sought to be raised by the accused.

Consequently, in the face of the positive evidence of PWs 2 and 3 who are independent witnesses and who have supported the case of the prosecution, it cannot be said that the accused have been framed in a false case. Hence, the appeals stand dismissed.