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IN THE HIGH COURT OF AT BANGALORE

DATED THIS THE 22 ND DAY OF NOVEMBER 2013

BEFORE

THE HON’BLE MR.JUSTICE N.ANANDA

CRIMINAL APPEAL No.1123/2006 C/W CRIMINAL APPEAL No.1091/2006 CRL.A.No.1123/2006 BETWEEN:

1. GAFFUR KHAN @ GAFFUR S/O MUSTAN PARI, 35 YEARS KUMARAPET, PUTTANPARTHI VILLAGE ANANTHAPURA DISTRICT, A.P

2. NARAYANSWAMY S/O PEDDANNA, 60 YEARS R/AT GORANTLI ANANTHAPRUA DISTRICT, A.P

2. ANWARTHAN S/O LATE HASSANKHAN AGED ABOUT 45 YEARS WELDING WORK R/AT SHIALAYAM ROAD PUTTANPARTHI VILLAGE ANANTHAPURA DISTRICT, A.P. ... APPELLANTS

(BY SRI N SRINIVAS, ADV.)

AND: STATE OF KARNATAKA REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDNG BANGALORE. ... RESPONDENT

(BY SRI B T VENKATESH, SPP-II) 2

THIS APPEAL IS FILED UNDER SECTION 374 CR.P.C., AGAINST THE JUDGMENT DATED 29.04.2006, PASSED BY THE PRESIDING OFFICER, I FAST TRACK COURT AT IN S.C.NO.115/2005, CONVICTING APPELLANTS-ACCUSED 1, 2 & 4 FOR OFFENCES PUNISHABLE UNDER SECTIONS 395, 295 & 427 R/W 34 IPC & ETC.

CRL.A.No.1091/2006 BETWEEN:

PRAKASH REDDY S/O JAYARAMAREDDY AGED 25 YEARS SHAMIYANA VENDING SHOP R/O PEDDA BAZAAR PUTTAPARTHI, ANANTHAPUR DISTRICT ANDHRA PRADESH STATE. ... APPELLANT

(BY SRI N SRINIVAS, ADV.)

AND:

THE STATE OF KARNATAKA REP. BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE – 560 001. ... RESPONDENT

(BY SRI B T VENKATESH, SPP-II)

THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C., AGAINST THE JUDGEMNT DATED 29.04.2006 PASSED BY THE PRESIDING OFFICER, FAST TRACK COURT-I AT SHIMOGA IN S.C.NO.115/2005, CONVICTING APPELLANT-ACCUSED NO.5 FOR OFFENCES PUNISHABLE UNDER SECTIONS 395, 295 & 427 R/W 34 IPC & ETC. ***

THESE APPEALS COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: 3

J U D G M E N T

The appellants (hereinafter referred to as ‘accused 1 to

5’) were tried, convicted and sentenced for offences punishable under Sections 427, 395, 295 r/w 34 IPC.

Accused 6 to 10 were absconding. Therefore, case against them was separated. Accused 1, 2, 4 and 5 have filed these appeals against impugned judgment of conviction.

2. I have heard Sri.N.Srinivas, learned counsel for accused and learned State Public Prosecutor for the State.

3. In brief, the case of prosecution is as follows:-

There is a temple of Sri Neelakanteshwara in Balligavi village within the jurisdiction of Shiralakoppa Police Station,

Shimoga District. There is a Shivalinga and a statue of bull

() in the temple. It is one of the ancient temples. The accused who hail from Puttaparthi, Gorantla and Khadri of

Ananthpur District had come to the temple at about 11.00 p.m., on 13.06.2005. They had brought a gas cylinder and a 4

gas cutter for cutting the base of Shivalinga and also pedestal of Bull (Basava) as they had believed that there was hidden treasure beneath Shivalinga and idol of bull (Basava).

It appears, the temple was not properly guarded. The accused along with absconding accused and some other persons entered and displaced the statue of bull (Basava) and they were cutting the base of Shivalinga with the fond hope of finding hidden treasure beneath Shivalinga and idol of bull. At that time, the villagers of Balligavi village heard the noise from the side of temple and reached the temple.

The accused and other persons came out of the temple and they were holding weapons. When the villagers tried to apprehend them, they inflicted injuries to PW3 & PW4 and threw stones at the villagers. The villagers also threw stones at accused and they chased them. Accused 1 and 2 fell down, therefore, the villagers, including the prosecution

witnesses caught hold of them. In the meanwhile, the mater had been informed to police. The jurisdictional police officer came to the place, on the way they apprehended accused 3 5

to 5 and brought them to temple. The jurisdictional police officer inspected the temple and found that there was a gas cylinder and a gas cutter. On inquiry, the Investigation

Officer came to know that accused hail from Ananthpur

District of Andhra Pradesh which is at a distance of 500 kilometers from Balligavi village of Shiralakoppa Taluk.

4. The police inspector prepared the inspection report and seized incriminating articles namely MO.1-Gas Cylinder of 4”, MO.2-3” Gas Cylinder, MO.3-two rubber pipes fitted

with meter gauge, MO.4- 5 Kg. gas cylinder, MO.5-‘T’ Shape box spanner, MO.6-two hand gloves, MO.7-Iron patti of 14

½”, MO.8- Iron Uli, MO.9-Two Plastic old bags, MO.10- two gunny bags, MO.11-Turkey towel, MO.12-two old bedsheets,

MO.13-one stone, MO.14-9” folding knife and MO.15- 8” folding knife from the possession of accused. After completing the arrest formalities they were produced before the learned Magistrate on 14.06.2005. The injured persons

were treated in the hospital. The charge sheet was filed against accused for aforestated offences. 6

5. The plea of accused is one of total denial.

6. Before adverting to appreciation of evidence adduced by prosecution, it is necessary to refer to glaring incriminating circumstances appearing against accused. As already stated, accused hail from Puttaparthi, Khadri,

Gorantla of Anathpur District of Andhra Pradesh. The accused were arrested by police near Sri Neelakanteshwara

Temple situate at Balligavi village within the jurisdiction of

Shiralakoppa Taluk, , which is at a distance of 500 kilometers from the place of accused.

7. The accused have not given plausible explanation for their presence during odd hours near the place of incident. It is not the case of accused, they were on a pilgrimage. It is not the case of accused, they had come to the place as pilgrims. The accused had brought gas cutters and a gas cylinder. They were also in possession of spanners, hand gloves, chisels, gunny bags, stones and two folding knives.

The possession of these weapons and incriminating articles 7

by accused would lead to an inference that accused had come to Sri Neelakanteshwara temple to cut the base of

Shivalinga and displaced the idol of bull (Basava) under the belief that there was hidden treasure beneath Shivalinga and the idol of bull (Basava). These facts are established from evidence of Investigation Officer and other witnesses who reached the temple immediately after accused were apprehended and found that base of Shivalinga was cut and idol of bull was displaced. The Investigation Officer had also taken photographs of base of Shivalinga and displaced idol of

Bull marked as Ex.P3. Therefore, apart from oral evidence, there are strong incriminating circumstances to infer the intention of accused which in fact was manifest by the acts committed by them inside Sri Neelakanteshwara Temple of

Balligavi village.

8. PW1-N.Nagaraja, PW2-Rudrappa, PW3-

Virupakshappa, PW4-Ramesha and PW5-D.Rudrappa are residents of Balligavi Village.

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9. PW2-Rudrappa has deposed; on 13.06.2005 at about

11 to 11.15 p.m. he saw flash of light; he also heard sound of cutting some object; as he was afraid of going to Sri

Neelakanteshwara Temple, he informed other witnesses, who came along with PW2 reached Sri Neelakanteshwara Temple by holding torches; when PW2 reached temple, 3-4 persons came out of temple and ran away; PW2 and other witnesses chased those persons; accused by name Gafoor Khan was holding a knife and threatened them by showing knife; PW2

& PW1 apprehended Gafoor Khan (accused No.1) and other persons by name Shivakumar and Mahesh apprehended accused No.2-Narayanaswamy; PW2 has identified accused 1

& 2 before court; in the meanwhile, police who had learnt about incident, on their way to place of incident, apprehended accused 3 to 5, who had ran away from place of incident; accused No.3-Srinivasa was driver of Tata Sumo bearing No.AP-9-W-7673, in which accused had come to

Balligavi Village; police inspected Sri Neelakanteshwara Temple and found a gas cylinder, a gas cutter, a gas light, a hammer 9

and a chisel; PW2 has identified incriminating articles marked as M.O.1 to M.O.13; they had also noticed that

Shivalinga had been displaced and idol of ‘Basava’ (bull) had also been displaced.

During cross-examination, PW2 has reiterated version given in examination-in-chief. PW2 has denied suggestion that accused were not apprehended by them.

10. At this juncture, it is relevant to state that accused

were not known to PW2. PW2 had no reasons to implicate them. The accused have sought to establish that PW2 could not have identified accused under the cover of darkness.

PW2 has deposed that he could identify accused in the light flashed by torch. Therefore, there are no reasons to suspect or discard evidence of PW2.

11. The evidence of PW3-Virupakshappa is similar to evidence of PW2-Rudrappa. PW3 has deposed; when he tried to apprehend accused, some of accused pelted stones and

PW3 suffered injuries and he was treated in hospital. 10

12. PW13-Dr.L.Gangibai has deposed; on 14.06.2005 at about 10.30 a.m., she examined PW3 and found following injuries:-

I. 4 to 5 abrasions on left knee joint measuring ½ cm

x ½ cm.

II. 8 to 10 abrasions measuring ½ cm x ½ cm.

Thus, we find that PW3 had suffered injuries in the incident. These injuries would lend corroboration to evidence of PW3.

13. At this juncture, it is relevant to state that incident had taken place at about 11 p.m., on 13.06.2005. If he had not noticed illegal activities committed in temple, there was no reason for PW3 to go to Sri Neelakanteshwara Temple.

14. PW4-Ramesh has deposed; at the time of incident he

was sitting in front of shop of one Shivakumar; at that time,

PW2-Rudrappa came and informed them that he had heard some sound in Sri Neelakanteshwara Temple; therefore, they 11

took torches and reached temple; at that time, 8-10 persons ran away from that place; PW4, PW2 and other prosecution

witnesses chased them; out of them, one Shivakumar and

Mahesh apprehended one accused; Nagarajappa (PW1) &

Rudrappa (PW2) apprehended another accused; other accused who had ran away from that place had pelted stones at PW4 and other witnesses, PW3 & PW4 had suffered injuries. PW4 has identified persons, who were apprehended by them as accused No.1-Gafoor Khan and accused No.2-

Narayanaswamy.

15. The evidence of PW5-Rudrappa is more or less similar to evidence of PW4-Ramesh.

During cross-examination of these witnesses, certain discrepancies are elicited as to how many persons had come to Sri Neelakanteshwara Temple and how many persons

were able to escape and how many persons were caught by

witnesses and police. These witnesses have consistently deposed that accused 1 & 2 were apprehended by them. The 12

other accused namely accused 3 to 5 were apprehended by police.

16. The evidence of PW6-Ramappa, PW7-Thirukappa and

PW8-Ashoka relates to seizure of incriminating articles, including seizure of Tata Sumo vehicle. Their evidence has not been controverted.

17. At the relevant time, PW10-T.Huchappa was working as a Police Constable of Shiralakoppa Police Station. PW10 has deposed; on 13.06.2005 at about 10.55 p.m., PSI called him and told him that some persons were trying to commit theft in Sri Neelakanteshwara temple; therefore, they proceeded to Balligavi Village; when PW10 and PSI were about to reach Sri Neelakanteshwara temple, 8-9 persons

were running away from that place and people had gathered there; those persons were running towards Tata Sumo, which had been parked near tank bed; PW10, PSI and other persons chased them and they apprehended three persons namely accused

No.3-Srinivasa, accused No.4-Anwarkhan and accused No.5- 13

Prakasha Reddy; thereafter, they took them to Sri

Neelakanteshwara temple and inspected the temple; PW10 found that idol of bull had been displaced and base of

Shivalinga had been cut with a gas cutter.

Much of cross-examination of PW10 was concentrated on distance factor. The distance factor has no bearing on evidence of PW10.

18. At the relevant time, PW11-R.Gopalappa was the PSI of Shiralakoppa Police Station. PW11 has deposed; on

13.06.2005 at about 10.50 p.m., he received a phone call stating that certain persons were committing illegal activities in Sri Neelakanteshwara temple; therefore, PW11 and other police staff proceeded to Sri Neelakanteshwara temple; at that time, 8-10 persons were running away; PW11 and other police staff apprehended them; those persons are accused 3 to 5; accused 1 & 2 suffered injuries, therefore, they were sent to hospital for treatment. 14

During cross-examination, PW11 has deposed that accused 3 to 5 were running towards tank bed.

19. Thus, from the evidence of above witnesses, prosecution has proved that on 13.06.2005 at about 11.15 p.m., accused 1, 2, 4 & 5 along with accused No.3 (since deceased) had entered temple and had cut base of Shivalinga and also displaced idol of bull, under the belief that there

was treasure beneath Shivaling idol. In the process of running away from Sri Neelakanteshwara temple, accused 1 to 5 had had caused injuries to PW3 & PW4, thereby committed offences punishable under sections 395, 295 &

427 r/w 34 IPC.

20. The defence has made a feeble attempt to establish that loss or damage caused due to displacement of idols was not a sum of Rs.50/- or upwards. In my considered opinion, value of idols of Shivalinga and bull, cannot be estimated below Rs.50/-.

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21. The learned trial Judge on proper appreciation of evidence has convicted accused 1, 2, 4 & 5 for offences punishable under sections 395, 295 & 427 r/w 34 IPC. On re-appreciation of evidence, I do not find any reasons to interfere with the impugned judgment.

22. In the result, I pass the following:-

ORDER

The appeal is dismissed.

Sd/- JUDGE

Np/SNN