1 IN THE HIGH COURT OF KARNATAKA 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 SHIMOGA 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 (Basava) 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, Shimoga District, 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. 8 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.