PRABHU Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned Counsel for the appellants and the learned Additional State Public Prosecutor. Having regard to the common incident involved in both the appeals, they are heard together and disposed of by this common judgment. The appellants were accused of offences punishable under Section 395 of the Indian Penal Code, 1860 (hereinafter referred to as 'the IPC', for brevity). It was the case of the prosecution that on 16-3-2007, at about 1.00 a.m., all the accused persons had entered the Venkateshwara Filling Station, with an intention to commit dacoity, with dangerous weapons and had demanded that the complainant and others, namely C.Ws. 6, 7 and 8 who were in the filling station, to hand over their valuables and cash in the cash counter. When they refused, they were all assaulted with stones and clubs, and cash of Rs. 2,000/- was snatched from C.W. 6. The cash box was broken open and the cash of Rs. 23,000/- was taken from the cash box, apart from one Titan wrist watch and a calculator, and smashed the light which was on, and disappeared from the spot. It is claimed that the material objects were later recovered, apart from the cash, from the accused by the Rural Police, at a later date, on their being apprehended. After investigation and on their committal to the Sessions Court, the appellants stood trial after claiming that they were not guilty of the charges brought against them. The Court below had framed the following point for consideration:

(2.) The learned Counsel for the appellants would point out that except the Investigating Officer and the Tahsildar, all other witnesses examined for the prosecution had been treated as hostile witnesses. Therefore, the sequence of events as sought to be narrated by the crucial witnesses, was not established. The Court below however, has read between the lines insofar as the testimony of the several witnesses is concerned and notwithstanding that the witnesses have resiled from their positive statements made earlier at the trial, the Court below has proceeded on the basis of the selective evidence in its brief judgment. The learned Counsel would point out that the Trial Court has reproduced the statements of the several witnesses, to hold that the prosecution had established its case beyond all reasonable doubt, notwithstanding the statements to the contrary, which has compelled the Public Prosecutor to treat the witnesses as hostile witnesses and cross-examine them. The learned Counsel would submit that this would run counter to established principles of criminal jurisprudence, where the prosecution is required to prove its case beyond all reasonable doubt. The Court below seeking to draw sustenance from the decided case in Maruthi Yamanappa Danoji v. State of Karnataka,2000 8 KarLJ 153 , is not tenable. The ratio of that case was at best an authority for the facts and circumstances of that case and insofar as the present case on hand is concerned, it would be material as to the aspects on which the witnesses had resiled from their statements and therefore, had been treated as hostile witnesses. Insofar as the complainant, namely the Manager of the Filling Station who was examined as P.W. 3, is concerned, he has been treated as hostile witness, on account of the fact that he has denied the identity of the accused. This was most crucial to the case of the prosecution. The very witness has also categorically indicated that he was prompted by the Investigating Officer to identify the present accused, which he has reiterated before the Court at the trial, by denying that he could identify the accused at all. Similarly, the other injured witnesses claimed that assailants had covered their faces and therefore, they could not recognise them. P.W. 1 is the panch witness who has been treated as a hostile witness. In that, he had stated that his signature had been obtained on a blank piece of paper and there was nothing written on it. Therefore, he was cross-examined as a hostile witness. Similarly, P.W. 2 had also stated that he did not know as to what he was required to sign, but his signature was obtained on two documents. Hence, he was also treated as a hostile witness. P.W. 4 was one of the injured witnesses and the very first sentence in his testimony was he did not know the number of persons who had come there at the time of the incident and what articles had been taken away. Similarly, P.W. 5 has denied that he had identified the accused in jail at the Test Identification Parade. P.W. 6 was the Tahsildar, who of course, has spoken to the Test Identification Parade conducted, and she has been extensively cross-examined but she has stood by the statement that the Test Identification Parade was indeed conducted and that the accused had been identified by the complainant and others. P.W. 7 was another panch witness to the seizure mahazar, who has denied that the police had seized anything to his knowledge. P.W. 8 was the Investigating Officer who has been cross-examined, but who has stood by his statements. P.W. 9 was the person who had received the complaint at the hospital and was only a formal witness.

(3.) The learned Additional State Public Prosecutor on the other hand, would submit that the incident was reported by the complainant and the statements of the other injured witnesses were all recorded at the earliest point of time. It is apparently out of fear of retaliation that the witnesses had resiled from their positive statements, at the trial. This being present to the mind of the Court below, the Court below having found that the negative statements made by the witnesses had indeed required them to be treated as hostile witnesses, that portion of their evidence where positive statements could yet be accepted as supporting the case of the prosecution, as those statements are not controverted in cross-examination, nor have the witnesses, especially the complainant, resiled from the positive statements that are made, coupled with the fact that the Tahsildar who is not interested in either the complainant or the accused having categorically stood by her statement that the Test Identification Parade was conducted, at which the complainant and the other witnesses had identified the accused as the persons involved and further, the Investigating Officer in turn having supported the case of the prosecution and having spoken to the record, the Court below proceeding to hold that the prosecution had established its case beyond all reasonable doubt and reproducing the statements of witnesses which in its opinion, was sufficient to squarely implicate the petitioners and to establish the case of the prosecution, cannot be faulted. Though the judgment of the Court below is brief, it is to the point and the reliance having been placed on a Division Bench judgment of this Court to hold that the evidence, in part, of witnesses, would also be relied upon to establish the case of the prosecution having been applied, there is no warrant for interference by this Court, as the Court below has not committed any error and would submit that the appeal be dismissed. Given the above facts and circumstances, and after having examined the record, as pointed out by the learned Counsel for the appellants, each one of the witnesses whose testimony was crucial to being home the charge against the accused, have indeed turned hostile and have resiled from their earlier statements. This is unfortunate, and the suspicion of the learned Additional State Public Prosecutor that the witnesses have apparently resiled from their statements from out of fear of retaliation by the accused, who, according to the prosecution, were ruthless dacoits, even if cannot be ruled out, the presumption that it was so and to pick and choose statements of the witnesses while ignoring the negative answers of the witnesses, would lead to a dangerous situation where the negative statements are incapable of being reconciled with the statements that are sought to be used against the accused. It may be possible in a given situation notwithstanding that witnesses for the prosecution have turned hostile, other independent statements that would yet be available for the prosecution to rely upon, that the Court could safely proceed on that basis.