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2020 Supreme(Kar) 65
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
K. Somashekar, J.
Ganesh Kumar - Appellant
Versus
State By Udupi Town Police. - Respondent
Criminalappealno.1203 of 2010
Decided On : 06-02-2020
For the Appellant : Sri. Mohammed Faruke, Adv.
For the Respondent: Sri. M. Divakar Maddur, Hcgp.
Headnote:
Criminal Procedure Code - Section 313 – Indian Penal Code - Sections 120B and 307 r/w 511 – First Information Report – Appeal against conviction - Factual matrix of case as per charge-sheet laid by I.O. is that appellant-accused No.1 along with accused No.2 had agreed to take away life of CW2 for a ransom because of some previous enmity - Accused No.2 had promised to pay said ransom to accused No.1 but during course of trial accused No.2 is reported dead and therefore case against him stood abated - As on aforesaid date at Village near Bus Stop accused No.1 was present and waiting for CW2 as he was hatching a plan with accused No.2 to take away life of CW2 - A photograph of CW2 was found in possession of accused No.1 so also a sword which was concealed by accused No.1 in his back - On suspicion and also on information given by PW4 Anwar police swung into operation in apprehending this accused - Subsequently on enquiry with this accused relating to concealment of sword which is marked as MO1 he did not give any proper explanation - These are all material objects which were found in possession of accused which have been seized by police in presence of PW1 PW4 and PW8 who is PSI who filed suo moto complaint as per Ex.P6 - Based on his complaint crime came to be registered by recording an FIR as per Ex.P7 - Said material objects which were seized by PW8 I.O. in part during course of investigation have been subjected in PF - Subsequent to recording FIR case has been handed over to another I.O PW12 who investigated case and laid charge sheet against accused before Committal Court – Held, On a careful consideration of contentions advanced by learned counsel for appellant – accused no.1 and learned HCGP for State as well as on going through material on record it is seen that while police were on patrol duty near Bus Stop at village as well as on information given by PW4 police had apprehended accused no.1 who was standing there and on search found in his possession a sword hidden on his back and a photograph of CW2 - On enquiring him thoroughly they came to know that appellant was hired by accused No.2 in order to kill CW2 for a ransom - Thereafter on a suo moto complaint by PW8 as per Exhibit P6 crime came to be registered and matter was taken up for investigation and thereafter charge-sheet was laid against accused - Further all other witnesses examined by prosecution are all official witnesses except PW4 an independent witness who had informed police about appellant’s whereabouts and his intention to commit some crime - Except him no other independent witness has been examined in order to support case of prosecution which in court opinion has proved fatal to case of prosecution – Furthermore having regard to fact that accused was a habitual offender it was but natural for police as well as PW4 to have doubted about presence of accused near Bus Stop – Moreover though police had recovered sword as well as photograph of CW2 from possession of accused it is not case of prosecution that appellant had committed any dacoity or murder and he had been arrested only on an apprehension that the appellant was preparing to commit the murder of one a rowdy sheeter - Without proper material in this regard Trial Court has erroneously arrived at a conclusion that accused had made an attempt to take away life of CW2 and thereby proceeded to convict and sentence accused as aforesaid - In view of fact that PW2 did not support case of prosecution evidence of PW2 is contradictory to evidence of PW8 and PW12 – Further spot at Exhibit P1 and seizure at Exhibit P3 were conducted in presence of PW6 - Whereas it is seen that PW6 has not supported case of prosecution in respect of Exhibit P3 seizure - Evidence of PW7 photographer in respect of photograph of CW2 also having not withstood version of his statement given before I.O. is also fatal to case of prosecution - Appeal is allowed
JUDGMENT :
This appeal is directed against the judgment of conviction and order of sentence rendered by the trial Court in S.C.No.9/2008 dated 24/26.08.2010, whereby the accused is convicted for the offence punishable under Sections 307 r/w 511 of IPC and 120B of IPC. The appellant said to be arraigned as accused No.1 is sentenced to suffer an imprisonment for a period of two years for the aforesaid offences.
2. The factual matrix of the case as per the charge-sheet laid by the I.O. is that on 16.08.2006, the appellant-accused No.1, along with accused No.2 Pandu Pai @ Panduranga Pai @ Praveen Pai, had agreed to take away the life of CW2 Nagesh Devadiga @ Pitti Nagesh for a ransom of Rs.2,00,000/, because of some previous enmity. Accused No.2 had promised to pay the said ransom to accused No.1, but during the course of trial, accused No.2 is reported dead and therefore the case against him stood abated. As on the aforesaid date at around 5 p.m., at Badagubetta Village near Kukkikatte Bus Stop, accused No.1 was present and waiting for CW2 Nagesh Devadiga @ Pitti Nagesh as he was hatching a plan with accused No.2 to take away the life of CW2. A photograph of CW2 was found in the possession of accused No.1, so also a sword which was concealed by accused No.1 in his back. On suspicion and also on information given by PW4 Anwar, police swung into operation in apprehending this accused. Subsequently, on enquiry with this accused relating to concealment of sword, which is marked as MO1, he did not give any proper explanation. Therefore he was taken into police custody and on his personal search, they found a purse, on currency notes of Rs.100/, photo of CW2 Pitti Nagesh, which are marked as MO2, MO3 and MO4, respectively. One paper containing printed letters ‘SKKK Fruits’ is marked as MO5 and MO6 is a photo in a cover. These are all the material objects which were found in possession of the accused which have been seized by the police in the presence of PW1, PW4 and PW8 who is the PSI who filed suo moto complaint as per Ex.P6. Based on his complaint, crime came to be registered by recording an FIR as per Ex.P7. The said material objects which were seized by PW8, the I.O. in part, during the course of investigation, have been subjected in PF No.112/06 and PF No.17/07. Subsequent to recording the FIR, the case has been handed over to another I.O, PW12 who investigated the case and laid the charge sheet against the accused before the Committal Court.
3. Subsequently, charges were framed against the accused for the offence punishable under Sections 120B and 307 r/w 511 of IPC, where the accused did not plead guilty and claimed to be tried. Subsequently, the prosecution in order to establish its case, examined PWs.1 to 12 and got marked Exs.P1 to P10, MO1 to MO6.
4. Subsequent to closure of the evidence, the statement of the accused under Section 313 of Cr.P.C. was recorded. He has declined the evidence of the prosecution. The accused did not come forward to adduce any defense evidence as contemplated under Section 233 of Cr.P.C.
5. Subsequently, the trial Court heard the arguments of the prosecution and defense counsel and on appreciation of the evidence which was facilitated by the prosecution, convicted the accused for the offences punishable under Sections 307 r/w 511 and 120B of IPC. Against the said judgment, the appellant – accused No.1 has filed the present appeal.
6. It is contended by the learned counsel for the appellant by referring to the evidence of PW1, the Head Constable, then in Udupi Town Police Station, said to be a panch witness that as on 16.08.2006, at around 4 p.m., he was on patrolling duty along with Sub-Inspector of Police and other police constables PC No.1883, PC No.1882 and PC No.2199. At around 5 p.m., near Kukkikatte Bus Stand area, they found that accused No.1, on seeing these police along with Circle Inspector, he made an attempt to run away, but this team surrounded the accused and apprehended him. Subsequently,
