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KARNATAKA HIGH COURT
B. Veerappa and Ravi V. Hosmani, JJ.
Keshava @ Choni and Ors. – Appellants
versus
State of Karnataka by Ullal Police and Ors. – Respondents
Criminal Appeal No.1128 of 2016 c/w Criminal Appeal No.1616 of 2016 c/w Criminal Appeal No.871 of 2016
Decided on 6.5.2021
(A) Indian Penal Code, 1860 – Sections 143, 147, 148, 447, 448 and 302 r/w 149 – House trespass and murder – Common object – Conviction and sentence – Acquittal of co-accused persons from offences under Section 120B r/w Section 149 of IPC and from offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC – Though according to prosecution witnesses, initially, 11 persons formed an unlawfully assembly and attacked deceased, there is no clarity in evidence of prosecution witnesses and Investigating Officer as to which of weapons are recovered from which of accused – Test Identification Parade was not conducted by Investigating Authority and so-called eye witnesses have not identified accused Nos.2 to 11 and in fact they have admitted in examination-in-chief that they are able to identify Accused Nos.2 to 6 on the basis of paper publication disclosing names and photos and information given by Police – Purpose of conducting a Test Identification Parade is that persons who claim to have seen offender at the time of occurrence identify them from amongst other individuals without tutoring or aid from any source – An identification parade tests memory of witnesses, in order for prosecution to determine whether any or all of them can be cited as eye witnesses to crime – It is not case of prosecution that eye witnesses have identified accused persons before coming to Court in absence of any source or information or aid either from Police or newspaper cuttings – Impugned judgment of conviction and order of sentence passed by trial Court against Accused Nos.3 and 8 is liable to be set aside. (Paras 41, 56, 60 and 64)
(B) Criminal Procedure Code, 1973 – Section 378 – Appeal against acquittal – Scope of appeal filed by State against judgment of acquittal is very limited – Unless this Court while considering material on record finds that findings of Sessions Judge are perverse, this Court cannot interfere with judgment of acquittal – This Court would be justified in reversing judgment of acquittal only if there are substantial and compelling reasons and when judgment of trial Court is found to be perverse judgment – Even if two reasonable conclusions are possible on the basis of evidence on record, this Court should not disturb finding of acquittal recorded by trial Court – In present case, findings recorded, reasons assigned and conclusion arrived at by trial Court for acquittal of co-accused persons, are sound and proper. (Para 66)
Result: Criminal Appeal allowed in part.
JUDGMENT
B. Veerappa J.—These Criminal Appeals are arising out of the common Judgment and Order dated 22/23.04.2016 made in S.C. No.117/2012 on the file of the III Addl. District & Sessions Judge, D.K., Mangalore, whereby the trial Court convicted and sentenced Accused Nos.1,3 and 8 for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and acquitted Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w Section 149 of IPC and Accused Nos.2,4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148, 447, 448, 120B, 75 and 302 r/w 149 of IPC.
2. Criminal Appeal No.1128/2016 is filed by Accused Nos.1 and 3 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing them for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and consequently acquit them for the said offences.
3. Criminal Appeal No.871/2016 is filed by Accused No.8 praying to set aside the impugned judgment and order passed by the trial Court in so far as convicting and sentencing him for the offences punishable under Sections 143, 147, 148, 447, 448 and 302 r/w 149 of IPC and consequently acquit him for the said offences.
4. Criminal Appeal No.1616/2016 is filed by the State praying to set aside the impugned judgment and order passed by the trial Court in so far as acquitting Accused Nos.1,3 and 8 for the offence punishable under Section 120B r/w 149 of IPC and Accused Nos.2, 4 to 7, 9 to 11 for the offences punishable under Sections 143, 147, 148,447, 448, 120B, 75 and 302 r/w 149 of IPC and convict and sentence the accused for the said offences.
I. Brief Facts of the Case
5. It is the case of the prosecution that there was animosity between accused No.1 and deceased Sandeep Shetty in connection with the real estate business and money transaction. The accused Nos. 1 to 10 on account of assuming that deceased Sandeep Shetty had given information about them to the police, had grudge against him. On 31.10.2010, they conspired with accused No.11 after knowing that he will come to Kankanady Railway Station, met him in the said Railway Station and also in Jail, Mangaluru and formed unlawful assembly, with common intention and hatched plan to kill Sandeep Shetty and made preparations. Later on 13.11.2011, at about 10.10 p.m., during night hours, at the place called Sowmya Compound, near Someshwara Railway Station, accused Nos. 1 to 10 were being the members of unlawful assembly found with rioting, holding deadly weapons namely talwars and iron rods, criminally trespassed by entering into the house of CW1 Hemachandra with intention to commit the murder of Sandeep Shetty. Afterwards, the accused Nos.1 to 6 being members of unlawful assembly with common intention caused the death of Sandeep Shetty by assaulting him by means of talwars and iron rods, caused grievous injuries on his head, neck, waist and other parts of the body. Thus, the accused No.11,who has been convicted in CC No.97/PW/2010, had hatched plan with accused Nos. 1 to 10 to commit the murder of Sandeep Shetty.
6. Accordingly, PW.1 (father-in-law of the deceased) lodged a complaint - Ex.P1 on 14.11.2011 between 00.30 a.m. and 1.30 a.m. On the basis of the complaint, the Police Inspector - PW.33 registered Crime No.355/2011 in Ullal Police Station for the offences punishable under Section 143, 147, 148, 447, 448, 302 r/w 149 of IPC. After completion of investigation, the Police filed the charge sheet against the accused persons. The learned JMFC has taken cognizance and committed the case to the District & Sessions Judge, Mangalore. The learned District Judge framed the charges, read over and explained to the Accused Nos.1 to 11 in the language known to them. They pleaded not guilty and claimed to be tried.
7. In order to prove the guilt of the accused persons, the prosecution examined PWs.1 to 39 and got marked the material documents - Ex.P1 to E
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