Venkatesha Vs the State of Karnataka

THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 29.02.2012 PASSED BY THE PRESIDING OFFICER, FTC-IX, BANGALORE IN S.C.No.960/2010-CONVICTING THE APPELLANT/ ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 395 R/W 397 OF IPC.

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IN CRL.A.No.424/2012

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BETWEEN

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S RAMABABU @ BABU S/O LATE SRINIVASU AGED ABOUT 24 YEARS R/AT NO.73, RAJAPPA BEEDI CHIKKABEGUR, BANGALORE.

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...APPELLANT

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(BY SRI G.NATARAJ, ADVOCATE FOR SRI RAVI KUMAR.S, ADVOCATE)

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AND

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THE STATE BY HSR LAYOUT POLICE REPTD. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BANGALORE

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…RESPONDENT

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(BY SRI CHANNAPPA ERAPPA, HCGP)

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THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET-ASIDE THE JUDGMENT OF CONVICTION DATED 29.02.2012 AND SENTENCE DATED 22.03.2012 PASSED IN S.C.No.960/2010 BY THE PRESIDING OFFICER, FAST TRACK COURT -IX, BANGALORE - CONVICTING THE APPELLANT/ACCUSED NO.3 FOR THE OFFENCE PUNISHABLE UNDER SECTION 395 R/W. 397 OF IPC.

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IN CRL.A.No.538/2012

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BETWEEN

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NAGARAJA @ NAGA S/O VENKATESHAPPA,

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AGED ABOUT 24 YEARS, R/O NO.17, SIDDARTHA NAGAR, MADIVALA, BANGALORE

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...APPELLANT

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(BY SRI SHIVARAJ N. ARALI, ADVOCATE)

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AND

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1 . THE STATE BY H.S.R LAYOUT POLICE REPTD. BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA AT BANGALORE

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…RESPONDENT (BY SRI CHANNAPPA ERAPPA, HCGP) THIS CRL.A. IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 29.02.2012/DATED 21.03.2012, PASSED BY THE PRESIDING OFFICER, FTC-IX, BENGALURU IN S.C.No.960/2010 CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER SECTION 395 R/W 397 OF IPC.

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THESE APPEALS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:-

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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CAV JUDGMENT

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(PER: HON'BLE MR JUSTICE V SRISHANANDA)

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These appeals have been filed by the accused persons who have been convicted in S.C No.960/2010 on the file of the Presiding Officer, Fast Track Court-IX, Bengaluru, by the judgment dated 29.02.2012, for the offence punishable under Section 395 r/w 397 of the Indian Penal Code and sentenced as under:

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“Accused Nos.1 to 5 are sentenced to undergo R.I for a period of 07 (seven) years and are also liable to pay fine of Rs.5,000/- (Rs.five thousand) each, and I/d to pay the fine amount, they shall further undergo S.I. for a period of two (02) months for the offence u/sec.395 R/w 397 IPC.

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The accused are entitled for set off for the period in which they were in judicial custody.”

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For the sake of convenience, name of the accused, their rank before the Trial Court, Number of Sessions Case, Criminal Appeal Number before this Court, conviction and sentence, is tabulated hereunder for easy understanding:

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Name of the accused	Rank before Trial Court	S.C. No.	Criminal Appeal No. before this Court	Conviction for the offence p/u/s	Sentenc passed	e
Venkatesha	Accused No.5	960/2010	391/2012	395 r/w 397 IPC	R.I. for years fine Rs.5,00 each, default, for months.	07 and of 0/- in SI 2
S.Rambabu @ Babu	Accused No.3	-do-	424/2012	-do-	-do-
Nagaraja @ Naga	Accused No.1	-do-	538/2012	-do-	-do-

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Facts of the case in brief which are utmost necessary for disposal of the present appeals are as under:

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On 26.12.2009 at about 12.45 am, infront of Shahi Garments, Kudlu Gate Main Road, accused Nos.1 to 5 came in two motor cycles and intercepted a moving lorry bearing registration No.AP-09/TA-1607, and accused Nos.1 and 2 got into driver cabin of the lorry and assaulted Venugopal-driver of the lorry (P.W.7) with knife and hands. They also robbed a sum of Rs.1,100/- from P.W.7

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under knife point. Accused No.3 was standing infront of the lorry and accused Nos.4 and 5 were holding stones in their hands and caused fear to the cleaner of the lorry. At that juncture, a passerby viz., Ramesh/P.W.14 who was moving on his Honda Activa scooter on hearing the hue and cry made by P.W.7, tried to rescue P.W.7. Accused No.3 assaulted P.W.14. Accused No.2 also showed the knife point to said Ramesh-P.W.14 and they robbed a Nokia mobile hand set and cash of Rs.6,300/- which was kept in his purse.

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Honda Activa Scooter belonging to P.W.14 was also robbed by accused No.2 and he escaped in the said vehicle. On the very same night, accused Nos.1 and 2 were apprehended and they were brought to the police station. From their custody, sum of Rs.500/- Honda Activa scooter a pulsar motor cycle bearing registration No.KA01/EH-647 and a knife were recovered. On 22.10.2010, based on the information given by accused No.3, accused No.5 was apprehended.

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The lorry driver-Venugopal (P.W.7) had lodged the complaint to the police orally which was reduced into writing and a case came to registered in Crime No.401/2009 in respect of the aforesaid incident. The matter was thoroughly investigated and chargesheet came to be filed.

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Thereafter, initially, learned Sessions Judge framed the charge for the offence punishable under Section 395 of the Indian Penal Code and later on, charge was altered and charge for the offence punishable under Sections 395 and 397 of the Indian Penal Code were framed against the accused.

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All accused persons pleaded not guilty and therefore, trial was held. In order to prove the guilt of the accused persons, prosecution proceeded to examine 17 witnesses as P.Ws.1 to 17. Complainant was one among them who has been examined as P.W.7 and Ramesh who was also robbed in the said incident was examined as P.W.14.

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The prosecution, in all, placed on record 16 documents which were exhibited and marked as Exs.P.1 to 16 comprising of report of P.W.1, statements of P.Ws.2, 3 and 4, complaint, mahazar, statements of P.W.7, FIR, report of ASI, reports, statements and rough sketch of the incident.

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The prosecution placed on record the photographs of the Pulsar motor cycle and Honda Activa scooter which were given to interim custody, Rs.500/- currency note and the knife as M.Os.1 to 4.

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On conclusion of recording of evidence of prosecution witnesses, accused statement as is contemplated under Section 313 of the Code of Criminal procedure was recorded wherein, accused have denied all the incriminatory circumstances, but did not chose to place on record any defence evidence.

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Thereafter, learned Trial Judge heard the parties in detail and by the impugned judgment, convicted the accused persons and sentenced as referred to supra.

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Being aggrieved by the same, above appeals are filed by the accused.

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Sri B. Lethif, Sri Shivaraj N. Arali, Sri G.Nataraj for Sri Ravi Kumar S, learned counsel for the appellants vehemently contended that the entire case of the prosecution appears to be based on surmises and conjectures, inasmuch as, according to the report of the police, accused Nos.1 and 2 were apprehended by the general public and later on, an oral complaint is lodged by P.W.7 in respect of the incident and P.W.14 is a chance witness according to the prosecution which is highly unbelievable. Rs.6,300/- is not recovered by the police and only Rs.500/- has been recovered. The recovery of alleged knife admittedly did not contain any specific mark and therefore, it is implanted by the prosecution only to

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establish the offence punishable under Section 397 of the Indian Penal Code.

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They also pointed out that the Honda Activa Scooter said to have been robbed by the accused No.2 from P.W.14 is not recovered from accused No.2 and only Pulsar motor cycle has been forcibly implanted in the case.

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It is also contended that accused Nos.3 and 5 admittedly did not have any nexus whatsoever to the case on hand and alleged stones held by accused Nos.4 and 5 are not recovered. It is also contended that there was no FIR lodged in respect of credible information nor there was any entry made in the general diary of the HSR Layout Police Station, Madivala Sub Division, Bengaluru.

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The police, admittedly came in Hoysala Jeep to the place intimated by P.W.7. By then, accused Nos.1 and 2 were already in the custody of general public and therefore, theory of robbing the lorry driver and absence of injuries on the person of the driver and the cleaner

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exposes the hollowness in the case of the prosecution and thus sought for allowing the appeals.

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They also contended that in the event of this Court upholding the Order of conviction, the custody period already undergone by the appellants may be treated as period of sentence by enhancing the fine amount reasonably and sought for allowing the appeals to that extent.

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Per contra, Sri Channappa Erappa, learned High Court Government Pleader supports the impugned judgment.

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He would further contend that admittedly neither P.W.7- Venugopal who is the driver of the lorry nor P.W.14-Ramesh did not nurture any previous enmity or animosity against the accused persons. On bear reading of the complaint itself, it could be seen that incident was reported by the lorry driver-P.W.7 orally and same has

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been reduced into writing by C.W.16-Mahadevaiah who is examined as P.W.11.

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He would further contend that the police also did not nurture any previous enmity against accused persons to falsely implicate them. He would further contend that recovery of Pulsar motor cycle, Honda Activa scooter, Rs.500/- currency note and a knife is established by placing necessary evidence on record and for the sake of foisting a false case, nobody would implant Pulsar motor cycle and Honda Activa scooter in the incident and thus sought for dismissal of the appeals.

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Learned High Court Government Pleader also opposes the alternative submission made by learned counsel for appellants contending that people like appellants if shown leniency, similarly placed perpetrators of crime would get encouraged and thus sought for dismissal of the appeals in toto.

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In view of the rival contentions of the parties, this Court perused the material on record, meticulously.

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On such perusal of the material on record, the following points would arise for consideration:

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(i) Whether the material evidence available on record would be sufficient enough to maintain the conviction of the appellants for the offence punishable under Sections 395 r/w 397 of IPC?

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(ii) Whether the appellants make out a case that the impugned judgment of conviction is suffering from legal infirmity, perversity and thus calls for interference?

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(iii)Whether the sentence needs modification?

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(iv)What Order?

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REGARDING POINT Nos.1 and 2: In the case on

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hand, admittedly P.W.7 is the driver of the lorry bearing registration No.AP-09/TA-1607. In his oral testimony, he

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has deposed that he is working as driver with Arunachala Transports Corporation since three years and one Mahendra Reddy was the cleaner of the lorry. On 26.12.2009 when they were proceeding from Yelahanka to godown at Kudlu, near a garment factory at Kudlu gate, he had to slow down the lorry. At that juncture, five unknown persons came on two motor cycles and assaulted him and robbed Rs.1,100/-. One of the accused assaulted him with knife on the left hand.

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When he raised alarm seeking help, a scooter rider came near the spot and tried to rescue him. But the accused persons started assaulting the scooter rider also. Immediately, P.W.7 proceeded to the godown and intimated the police. He further deposed that police came to the godown and he had taken them to the place of incidence by proceeding in the police jeep. However, he failed to identify the knife.

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He has further deposed that on the very same day, accused Nos.1 and 2 were apprehended in the police

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station and he has identified them in the police station. He has also further deposed that he had two currency notes of Rs.500/- and one currency note of Rs.100/-. At that stage, he was treated as hostile witness by the prosecution and in his cross-examination, he has identified the photograph of Pulsar Motor cycle-M.O.1 and Honda Activa scooter-M.O.2. He has stated that he could identify accused Nos.1 and 2. It is further elicited that he did not give the details as to the identification of accused Nos.1 and 2.

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He has answered that police have reduced his oral statement to complaint. He has admitted that when the complaint was reduced into writing, accused Nos.1 and 2 were present in the police station. He denied the suggestion that none of the accused persons have participated in the incident and he has deposed falsely. He has specifically answered that he could not say the registration number of the motor cycle as it was written in Kannada language, but he has given the number of another motor cycle.

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Ramesh is yet another important witness for prosecution who has been examined as P.W.14. According to prosecution he is also victim in the incident. He deposed that on 25.12.2009, at about 8 or 9 pm, he had been to his friend’s house for dinner and was returning at 12.30 pm to his house. At that time, when he was near Shahi Garments, he heard the hue and cry and some body was shouting ‘PÁ¥Ár’ ‘PÁ¥Ár’(help, help).

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Out of curiosity, he went there and enquired the persons who were present there and at that juncture, somebody assaulted him on the head and he lost the consciousness. When he regained consciousness, he was near his house. He has stated that he was riding his Honda Activa scooter, but has not seen the accused persons. He got released his Honda Activa scooter from the police station and signed the document.

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Since he did not support the case of the prosecution in entirety, he was treated as hostile witness and crossexamined by prosecution. He admits in his crossexamination that before the police he has given the statement that accused persons had snatched his Nokia mobile handset and Rs.6,300/- cash and took away his Honda Activa scooter. He has identified accused No.3 and stated that he is the one who assaulted him on his head with helmet but he failed to identify the other accused persons.

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In the cross-examination on behalf of the accused persons, he has stated that he has not given any statement to the police about the identification of his scooter and the knife. He denied the suggestion that police had not shown him the knife earlier. Further he denied the suggestion that he has not given any statement and only with an intention to help the police, he is giving false statement.

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The panch witnesses to the seizure mahazar are also examined as P.W.15 and P.W.16. They have partly supported the case of the prosecution.

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Other important witness on behalf of the prosecution is P.W.1 who has apprehended accused No.4-Nagaraja @ Naga @ Muga @ Ibbaluru Naga near Hibbaluru junction and gave the report vide Ex.P.1. In his cross-examination, he has denied the suggestion that accused No.5 was apprehended on 14.03.2010 from his work place at Marathhalli.

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P.W.3-Shivalingegowda, Assistant Sub Inspector of Police, HSR Layout Police Station deposed that on 25.12.2009, he was in night duty. He was discharging his work in Police Patrolling Jeep-‘Hoysala-62’. Based on the information he received from the Control Room, he came to know that some persons have been apprehended by general public.

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Therefore, he proceeded to the said spot in A.E.C.S. Layout. They took custody of accused Nos.1 and 2 who were apprehended by general public and also recovered one Honda Activa scooter and Pulsar Motorcycle. On further enquiry they told that other persons have escaped away from the spot. They were produced before the Sub Inspector of Police on the same day. He has identified his report that Ex.P.3 and also identified the photographs of M.O.1 and 2.

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In his cross-examination, he denied the suggestion that he has given false report.

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P.W.5 is the Head Constable who has deposed in line with ASI-P.W.3.

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Police Constable by name Manjunath is examined as P.W.6 who deposed that he has been deputed to find out the whereabouts of accused No.4- Nagaraja @ Naga @ Muga @ Ibbaluru Naga and accused No.5-Venkatesha.

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He has further deposed that they had taken accused No.3-S. Rambabu @ Babu with them and they all went to Mayasandra, Anekal Taluk and after accused No.3 showed Nagaraja @ Muga, they tried to apprehend him, but he escaped. But they were able to apprehend Venkateshaaccused No.5. In his cross-examination, suggestion made to him that Venkatesha-accused No.5 was apprehended on 14.03.2010 from his work place at Marathahalli is denied.

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One of the panch witness to Ex.P.6 is Pramod-P.W.8 who has supported the case of the prosecution and he denied the suggestion that he has given false evidence to help the police.

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Another police personnel P.W.9-Manjunath also deposed in line with other police personnel who apprehended accused No.5.

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Ashoka is yet another police constable who has been examined as P.W.10 has deposed in line with P.W.9.

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Mahadevaiah is the Sub Inspector of Police-P.W.11. He has been examined as P.W.11. He deposed about P.W.7 visiting the police station and giving the oral complaint which was reduced into writing based on which Crime No.401/2009 was registered on 26.12.2009 for the offence punishable under Section 395 of the Indian Penal Code and took accused No.1 to the custody and arrested them and produced before the learned Trial magistrate and deposed about seizure of Pulsar motor cycle and Honda Activa scooter under Ex.P.6-mahazar. In his crossexamination, he denied the suggestion that a false case has been registered against accused persons.

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One of the Investigation Officers is P.W.13Venugopal. He has deposed about seizure of M.Os.1 and 2 and drafting the mahazar.

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Rajesh, yet another Investigation Officer who further investigated the matter and concluded the investigation and filed charge sheet has been examined as P.W.16. He

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deposed about different stages in the investigation and filing of the charge sheet.

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In his cross-examination he denied the suggestion that accused Nos.1 and 2 did not give any voluntary statement and those voluntary statements were concocted. He denied the suggestion that cleaner of the lorry-Mahendra Reddy and P.W.14 did not identify the accused in the police station. He has denied the suggestion that he has filed false charge sheet.

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The Tahsildar-Manjunath who conducted the Test Identification Parade is examined as P.W.17. He deposed about holding Test Identification Parade in HSR Layout Police Station and furnished the report vide Ex.P.16. In his cross-examination, he denied the suggestion that P.W.14 did not participate in the Test Identification Parade and denied the further suggestion that accused Nos.1 and 2 were not identified by P.W.14.

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The above evidence on record is sought to be reappreciated and sought for allowing the appeals.

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On careful re-appreciation of the above evidence on record, it is crystal clear that P.W.7-Venugopal being the driver of the lorry belonging to Arunachala Transport is not in dispute. It is his specific say before the Court that when he moved from Yelahanka to office godown near Kudlu, he had to slow down the lorry near the garment factory. At that juncture, five persons came on two motor cycles and among them, two persons entered the driver cabin of the lorry and assaulted him and robbed Rs.1,100/- cash from him and hurt him with knife. When he raised the alarm, P.W.14 came in Honda Activa scooter. When P.W.14 tried to rescue him, at that juncture, accused Nos.1 and 2 over powered him and cash of Rs.6,300/- and a Nokia mobile hand set were snatched and Honda Active scooter on which P.W.14 had come to the place of incident was also taken away by accused No.2.

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Soon thereafter, P.W.7 went to the go down and called the police through telephone number of the godown. P.W.7 specifically deposed that after a while police came in a Hoysala Jeep and took him to the place of the incident in police jeep itself. In the mean time, accused Nos.1 and 2 were apprehended by the general public is the say of the prosecution and thereafter, police went to the spot and took accused Nos.1 and 2 to their custody and produced them before the Sub Inspector of Police.

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It is pertinent to note that even though there is no specific material evidence to show that who are actually the general public who apprehended accused Nos.1 and 2, but the fact remains that it is not the case of accused Nos.1 and 2 that they were picked up by the police from their respective houses and taken to the police station. Moreover, seizure of Honda Activa scooter belonging to P.W.14 from the custody of accused No.2 would be sufficient enough to believe the case of the prosecution as true and correct.

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Admittedly, accused Nos.1 and 2 are strangers to both P.Ws.7 and 14. Under such circumstances, case of the prosecution cannot be doubted in the absence of any previous enmity or animosity possessed by P.Ws.7 and 14 or for that matter, police personnel towards the accused persons to falsely implicate them in the case.

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The case of the prosecution would further reveal that based on the enquiry made by the police personnel when accused Nos.1 and 2 were in custody, accused No.3 was apprehended by the police. With the help of accused No.3, police were able to reach Mayasandra, Anekal Taluk and spotted both accused Nos.4 and 5. However, seeing accused No.3 in the police custody, accused No.4 was successful in escaping from the scene, but police were able apprehend accused No.5.

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No doubt, it has been specifically suggested to prosecution witnesses that accused No.5 was actually apprehended from the place where he was discharging the

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work as mason in Marathhalli. If it is so, what prevented the family members of accused No.5 to file necessary petition before the proper forum about missing of accused No.5 or illegal detention by the police, is not forthcoming.

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In the absence of any such material evidence placed on record, arrest of accused No.5 at the instance of accused No.3 stands established. Further, why accused No.3 would show the place where accused Nos.4 and 5 were found is a question that remains unanswered on behalf of the defence.

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Mere non seizure of entire amount of Rs.6,300/would not ipso facto doubt the case of the prosecution. Likewise, non identification of accused Nos.3, 4 and 5 is also of no consequence in doubting the case of the prosecution.

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Having said thus, P.W.7 has stated that he has sustained injury on the hand by virtue of use of knife

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marked at M.O.4. But, no wound certificate is forthcoming nor any blood stains are found on the M.O.4-knife. Therefore, use of weapon in the incident is doubtful. M.O.4 is not identified by P.W.7 nor any other material evidence is forthcoming for recovery of M.O.4.

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It is also the case of the prosecution that accused No.3 had stood before the lorry and accused Nos.4 and 5 were holding the stones in their hands to threaten P.W.7 and the cleaner. The cleaner has not been examined to identify accused Nos.4 and 5.

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Further, non seizure of stones or helmet raises sufficient doubt about use of deadly weapons. Therefore, this Court, on re-appreciation of the material evidence on record, is of the considered opinion that the ingredients to attract the offence under Section 397 of the Indian Penal Code are absent. As such, appellants are entitled for acquittal for the offence punishable under Section 397 of

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the Indian Penal Code. Accordingly, point Nos.1 and 2 are answered partly in the affirmative .

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REGARDING POINT No.3: In view of the foregoing discussion and answer to point Nos.1 and 2, since the appellants are acquitted for the offence punishable under Section 397 of the Indian Penal Code, this Court is of the opinion that if the custody period already undergone by the appellants is treated as period of imprisonment for the offence punishable under Section 397 of the Indian Penal Code by enhancing the fine amount in a sum of Rs.50,000/- payable by each of the appellants, ends of justice would be met. Out of fine amount recovered, portion thereof can also be paid as compensation to P.W.7 and P.W.14. Accordingly, point No.3 is answered partly in the affirmative .

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REGARDING POINT No.4: In view of the finding of this Court on point Nos.1 to 3 as above, the following:

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ORDER

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(i) Criminal Appeals are allowed in part .

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(ii) All the appellants are acquitted for the offence punishable under Section 397 of the Indian Penal Code.

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(iii) Conviction of the appellants for the offence punishable under Section 395 of the Indian Penal Code is maintained and the custody period already undergone by them is treated as period of imprisonment subject to payment of enhanced fine in a sum of Rs.50,000/payable by each of the appellants on or before 20^th March 2025.

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