SURATKHAN ABDUL RAHIMAN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) 18 Accused were sent up for trial before the learned IInd Additional Sessions Judge, belgaum for offences under Sections 399, 395, 397, 398, 120-B and 395 r/w Section 201, indian Penal Code and 441, Indian Penal Code. They were also charged for an offence under Section 108 of the Indian railways Act; Section 25 of the Arms Act and section 5 of the Indian Explosives Act for contravention of Rule 113 (1) of the Indian Explosives rules, 1983, After recording evidence the trial Court acquitted 12 accused of all the charges. 6 accused, namely, A-8, A-10, A-11, a-15, A-16 and A-18 were convicted for offences under Sections 395, 397, 399, Indian Penal Code and under Section 108, Indian Railways Act. The convicts filed an appeal against their conviction and sentence in the High Court. The State also filed an appeal against the acquittal of 12 accused persons. By judgment dated 18th January, 1991, the appeal of the convicts as also of the State were dismissed. The convicts filed two special leave petitions and leave was granted. Five of the convicts filed one appeal while A-8 filed a separate appeal. The State did not pursue the appeal against acquittal of the 12 accused.

(2.) According to the prosecution story, angadia Courier Service which has branches at different places including Belgaum and Hubli through its deliverymen PW 3 and PW 6, was carrying various parcels including valuables, gold and silver articles on 19.10. 1987 by Mahalaxmi express Train. The said train at the material time was running between Bangalore and Miraj. On its way to Miraj, it arrived at Hubli station at 3.25 p. m. Both PW 3 and PW 6 were entrusted with valuable parcels at Hubli station and at other places and were travelling in 'b' coach. The articles were intended to be carried to Bombay for delivery. The articles had been packed in two bundles which were placed near one of the entrances in the said coach which was a reserve compartment. A bed-sheet was spread over the bundles and PW 3 was sitting on the bundles while PW 6 was occupying a seat reserved for PW 3 and PW 6. When mahalaxmi Express Train reached Ghataprabha railway Station at about 8.47 p. m. , accused boarded the train and some of them later on pulled the chain of the train and so the train halted near the telegraph post. The accused persons asked PW 3 to remove the bundles kept near the entrance to facilitate them to get down but PW 3 told them to use the other exit door. One of the accused was armed with a revolver and the same was snatched by a co- accused who fired at PW 3. PW 3 was injured. One of the passengers, who had come near the place of occurrence also received an injury. The accused persons removed the articles which were being carried by PW 3 and pw 6 and made good their escape. A case of dacoity was registered. Subsequently, during investigation, the bed-sheet which had been spread over the bundles was recovered and was identified by PW 3 and PW 6. Some of the stolen property was also recovered, allegedly, on information furnished by accused persons under Section 27 of the Evidence Act. Identification parade was held by Tehsildar bhuttayya, PW 54. Various witnesses were called upon to identify the accused in jail. The proceedings of the identification parade were drawn up and subsequently at the trial, the witnesses were also called upon to identify the accused persons.

(3.) The learned Sessions Judge disbelieved the evidence relating to recovery of the stolen property on the basis of alleged statements recorded under Section 27 of the Evidence Act and gave various reasons in support of its findings. The High Court found that the view taken by the Sessions Judge was correct and keeping in view the evidence of the Investigating officer and the Panch witnesses, with regard to recovery of allegedly stolen articles on various dates at the instance of some of the accused as reflected in the Panchnamas, agreed with the reasoning of the Sessions Court that the evidence was not reliable or acceptable. The High Court, accordingly, also did not rely upon recovery evidence. The entire prosecution case, therefore, is based on the identification of accused by various prosecution witnesses.