Eshwarachari Vs State of Karnataka by

THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 20.08.2018 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR SITTING AT K.G.F. IN S.C.NO.168/2011 - CONVICTING THE APPELLANT/ACCUSED NO.9 FOR THE OFFENCE

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HC-KAR

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P/U/S 201 OF IPC. THE APPELLANT/ACCUSED NO.9 IS SENTENCED TO UNDERGO SIMPLE IMPRISONMENT FOR 3 YEARS AND TO PAY FINE OF RS.3,000/- AND IN DEFAULT OF PAYMENT OF FINE HE SHALL UNDERGO FURTHER IMPRISONMENT FOR 2 MONTHS FOR THE OFFENCE P/U/S 201 OF IPC. SENTENCE OF IMPRISONMENT SHALL RUN CONCURRENTLY. THE APPELLANT/ACCUSED NO.9 PRAYS THAT HE BE ACQUITTED.

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IN CRL.A NO. 1635/2019

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BETWEEN:

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B. MAHESH S/O BASAVARAJU, AGED ABOUT 32 YEARS, R/O KUDIKE BEVURU VILLAGE, CHANNAPATNA TALUK - 562 108 RAMNAGAR DISTRICT, NOW R/AT HAROHALLI, KANAKAPURA ROAD, RAMANAGAR DISTRICT - 562 112

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...APPELLANT

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(BY SRI. JAVEED .S., ADVOCATE) (APPELLANT AS AMICUS CURIAE V/O DT.17/06/2025)

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AND:

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STATE OF KARNATAKA BY POLICE SUB INSPECTOR, ANDERSONPET POLICE STATION, K.G.F., KOLAR DISTRICT - 563 113 REP. BY SPP, HCK BANGALORE - 01.

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…RESPONDENT

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(BY SMT. RASHMI JADHAV, ADDL. SPP)

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THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 22.12.2018 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR (SITTING AT KGF) IN S.C.NO.168/2018, CONVICTING THE

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HC-KAR

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APPELLANT/ACCUSED NO.6 FOR THE OFFENCE P/U/S 120B, 395 AND 397 R/W 149 OF IPC AND ETC.,

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MRS. JUSTICE M G UMA

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COMMON ORAL JUDGMENT

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The appellant in Criminal Appeal No.1641 of 2018 being accused No.9 in SC No.168 of 2011 on the file of the learned III Additional District and Sessions Judge, Kolar (sitting at KGF), is impugning the judgment of conviction and order of sentence dated 20.08.2018, convicting him for the offence punishable under Section 201 of IPC and sentencing him to undergo imprisonment for a period of 3 years and to pay fine of Rs.3,000/-, with default sentence.

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The appellant in Criminal Appeal No.1635 of 2019 being accused No.6 in SC No.168 of 2018 before the Trial Court, is impugning the judgment of conviction and order of sentence dated 22.12.2018, convicting him for the offences punishable under Sections 120-B, 395 and 397 read with Section 149 of IPC and sentencing him to undergo imprisonment for a period of 10 years and to pay fine of

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HC-KAR

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Rs.10,000/- for the offence punishable under Section 120B and 395 read with Section 149 of IPC respectively, to undergo rigorous imprisonment for a period of 7 years and pay a fine of Rs.10,000/- for the offence punishable under Section 397 of IPC, with default sentences.

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Brief facts of the case as made out by the prosecution is that, on 30.05.2011, accused Nos.1 to 11 have conspired together to commit dacoity. In furtherance of the same, accused Nos.1 to 7 made preparations, armed with deadly weapons, have trespassed into the house of PWs.1 to 3, committed dacoity and took away the gold ornaments, silver articles, cash of Rs.54,000/- and Samsung mobile phone by giving life threat to the inmates of the house. Thereby, accused No.6 has committed offences punishable under Sections 120-B, 395, 397 and 201 read with Section 149 of IPC.

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It is stated that, accused No.9 knowing fully well

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that the gold and silver items were the proceeds of such dacoity, accepted them from accused Nos. 1 and 3 and prepared 13 Gold and 4 Silver ingots by melting them, and

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HC-KAR

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gave them back to accused No.1, by receiving Rs.10,000/-, Thus, he caused disappearance of evidence with an intention to screen the offenders. Moreover, as per Ex.P70-voluntary statement of accused No.9, the Investigating Officer recovered some material objects i.e., M.Os.58 to 64 which were used by accused No.9 to melt the gold and silver. A DVD player and mobile phone were also seized which were purchased by accused No.9 from the amount he received from accused No.1. Thereby, accused No.9 has committed offences punishable under Sections 201 of IPC.

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In SC No.168 of 2011, the Trial Court took cognizance of the offences and summoned the accused. Accused No.9 appeared before the Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 22 got marked Exs.P1 to P82 and identified MOs.1 to 73 in support of its contention. The accused had denied all the incriminating materials available on record in the statement recorded under Section 313 of Cr.P.C., but not led any evidence nor got marked any documents in support of his defence. The Trial Court after taking into consideration all the materials on record, came to the conclusion that the prosecution is

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HC-KAR

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successful in proving the guilt of the accused beyond reasonable doubt. Hence, convicted and sentenced as stated above. Being aggrieved by the same, the appellant - accused Nos.9 has preferred Criminal Appeal No.1641 of 2018.

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During the pendency of SC No.168 of 2011, accused

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No.6 had remained absconding and the therefore, split up charge sheet came to be filed. Later accused No.6 was tried by the Trial Court in SC No.168 of 2018. The accused appeared before the Court, pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 20, got marked Exs.P1 to P81 and identified MOs.1 to 73 in support of its contention. The accused has denied all the incriminating materials available on record in the statement recorded under Section 313 of Cr.P.C., but not led any evidence nor got marked any documents in support of his defence. The Trial Court after taking into consideration all the materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt and convicted and sentenced as stated above. Being aggrieved by the same, the appellant - accused No.6 has preferred Criminal Appeal No.1635 of 2019.

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HC-KAR

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Heard Sri. Javeed.S, learned Amicus curiae for the appellants and Smt. Rashmi Jadhav, learned Additional SPP for the respondent - State. Perused the materials including the Trial Court records.

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In view of the rival contentions urged by learned

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counsel for both the parties, the points that would arise for my consideration is:

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"Whether the appellants in these appeals have made out any grounds to interfere with impugned judgment of conviction and order of sentence passed by the Trial Court and to acquit them for the charges leveled against them?"

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My answer to the above point is 'partly in the affirmative' for the following:

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REASONS

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It is the contention of the prosecution that accused No.6, who is the appellant herein being a member of an unlawful assembly has conspired with accused Nos.1 to 5 and 7 to commit dacoity and in furtherance of the same, they went to the house of PWs.1 to 3, armed with deadly weapons, gave life threat to them, committed dacoity. They looted the cash, gold and silver ornaments. In order to cause disappearance of

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evidence, they have distributed cash among themselves, sold gold and silver articles to different persons and some were converted into gold and silver ingots or gold jewellery with the help of accused No.9. Accused No.9, despite knowing that the gold and silver were product of dacoity, accepted the same, melted it into ingots and received Rs.10,000/- from accused No. 1. The first information was filed by PW1-the eye witness, and FIR came to be registered. Investigation was undertaken.

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During investigation, these appellants were apprehended along with co-accused and incriminating materials were seized at their instance. It is stated that MOs.1 to 5, 39, 52, 53, 71 and 72 were recovered under Exs.P35, 36 and 39 at the instance of accused No.6 and MOs. 58 to 64 were recovered under Ex.P70 at the instance of accused No.9. PW6 is the material witness who speak about selling of MOs.44 to 51 which were recovered at the instance of accused No.6 under Ex.P34. The Investigating Officer who is examined as PW19 speaks about spot mahazar Ex.P2 and seizure mahazar Ex.P33 to 35 and speaks about accused No.6 leading to recovery of the incriminating materials. PW21-the Tahsildar who conducted test identification parade where PWs.1 to 3 being the eye

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witnesses have identified accused No.6. PW3 is the Investigating Officer who completed the investigation and filed the charge sheet, speaks about voluminous statement given by accused No.1 regarding his transactions with accused No.9 and also which led to the recovery of MOs.39 and 40.

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In view of the above, the contention of the learned counsel for accused No.6 that, PW.1 has never disclosed any information regarding the descriptions of the dacoits in his complaint as there was only a zero-watt bulb was on, which was not sufficient to identify the accused and that, the test identification parade was conducted about 1½ months after the arrest of the appellant or that, there was no damage to the doors or windows to prove the involvement of accused No.6 in commission of the offences, cannot be accepted. There are sufficient materials to connect accused No.6 to the offences in question that are placed before the Court by the prosecution. Hence, this Court is satisfied that the prosecution is successful in proving the guilt of accused No.6 for the offences as stated above.

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Learned counsel for the appellant - accused No.9 submitted that even though PWs.3 and 6 have identified the

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appellant - accused No.9, who produced the DVD player, mobile phone and instruments used to melt gold and silver which were seized under Ex.P42, the same are not sufficient to convict accused No.9.

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It is pertinent to note that accused No 1 to 3 have led the Investigating Officer to the residence of accused No.9. PWs.3 and 6 have identified accused No.9. PW6 speaks about accused No.9 leading to the recovery of incriminating materials and drawing of mahazar as per Ex.P42 based on his voluntary statement as per Ex.P70. Hence, the prosecution is successful in proving the guilt of accused No.9 beyond reasonable doubt. Hence, accused No.9 is liable for conviction.

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At this stage, learned counsel for the appellant - accused No.6 contended that the Trial Court has imposed maximum imprisonment while sentencing him. Therefore, prays for leniency in sentencing him. He further submits that accused No.6 is in custody since more than 7 years, 4 months. Similarly accused No.9 has also undergone imprisonment for 360 days. Therefore, seeks to impose minimum sentence.

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On considering the submissions made by the learned counsel for accused No.6 and 9, it is seen that the Trial

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HC-KAR

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Court in SC No.168 of 2018 had sentenced accused No.6 to undergo imprisonment for 10 years for the offence punishable under Section 120-B of IPC; 10 years for the offence punishable under Section 395 of IPC; 7 years for the offence punishable under Section 397 of IPC; and it has sentenced accused No.9 to undergo simple imprisonment for 3 years for the offence punishable under Section 201 of IPC; with default sentences. It is stated that accused No.6-appalent herein is in custody since 7 years 4 months.

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I do not find any reason to impose the maximum sentence, since admittedly, accused No.6 has not caused any injuries to the inmates of the house, while committing dacoity. Hence, I am of the opinion that leniency could be shown while sentencing accused No.6 and 9.

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I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has taken into consideration all the materials on record and has arrived at a right conclusion. I do not find any reason to interfere with the judgment of conviction passed by the Trial Court. However, for the reasons stated above, relief could be granted in favour of the present appellants-accused Nos.6 and

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HC-KAR

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9 by modifying the order of sentence. Accordingly, I answer

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the above point partly in the affirmative and proceed to pass the following:

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ORDER

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(i) Appeals are allowed in part.

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(ii) The judgment of conviction dated 20.08.2018

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passed in SC No.168 of 2011 on the file of the learned III Additional District and Sessions Judge, Kolar (sitting at KGF), for the offence punishable under Sections 201 of IPC, against appellant - accused No.9 is hereby confirmed.

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(iii) The order of sentence passed by the Trial Court is modified as under:

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(a) The appellant-accused No.9 is sentenced to undergo simple imprisonment for a period of 1 year and to pay a fine of Rs.10,000/- and in default to pay fine, to undergo simple imprisonment for 3 months.

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(b) The appellant-accused No.9 is entitled for set-off for the period he has already undergone the sentence.

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(iv) The judgment of conviction dated 22.12.2018 passed in SC No.168 of 2018 on the file of the learned III

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Additional District and Sessions Judge, Kolar (sitting at KGF), for the offences punishable under Sections 120-B, 395 R/w Section 149 of IPC and Section 397 of IPC, against appellantaccused No.6 is hereby confirmed.

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(v) The order of sentence passed by the Trial Court is modified as under:

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(a) The appellant - accused No.6 is sentenced to undergo imprisonment for a period of three years for the offence punishable under Section 120-B of IPC and to undergo imprisonment for a period of 6 years for the offence punishable under Section 395 of IPC.

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(b) The fine amount imposed by the Trial Court remains intact with 1/4th of default sentence.

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(c) The substantive sentence shall run concurrently.

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(d) The accused are entitled for set off for the period they were in prison during trial.

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Registry is directed to send back the Trial Court records

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along with copy of this judgment for information and needful action i.e., to issue conviction warrant, if not already issued.

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