Krishna @ Balakrishna Vs State of Karnataka

THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SETASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DT 18.11.2011 PASSED BY THE P.O., FTC-XVII, BANGALORE CITY IN S.C.NO.744/2009 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 397 OF IPC.

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

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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Appellants have preferred this appeal against the Judgment of Conviction and order on Sentence dated 18^th November, 2011 passed in Sessions Case No.744 of 2009, by the Presiding Officer, Fast Track Sessions Court-XVII, Bangalore City (for short “the trial Court”).

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Parties herein are referred to as per their rank before the trial Court.

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Brief facts leading to this appeal are that the Inspector of Police, Mahadevapura Police Station, Bangalore submitted charge-sheet against accused 1 and 2 for offences punishable under Sections 397 & 307 of Indian Penal Code. It is the case of the prosecution that on 10^th December, 2008 at 11:45 am, accused who were doing tiles work at the house of Smt. Geeta Sharma, at No.313, Knights Bridge Apartments, Kundalahalli, within the limits of Mahadevapura Police Station, Bangalore City, caught hold of CW1-Smt. Geeta Sharma while

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she was doing household work, whereby accused No.1 held her tightly and accused No.2 fisted her face with hands and tried to strangulate her and attempted to commit her murder. Further, accused have also snatched her gold ornaments, robbed cash of Rs.50,000/- and fled the scene. Thus, committed offences punishable under Sections 397 & 307 of Indian Penal Code.

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Charges were framed by the trial Court and the same was read over and explained to the accused in the language known to them. Having understood the same, accused pleaded not guilty and claimed to be tried. To prove the guilt of the accused, prosecution has examined sixteen witnesses as PWs1-16 and marked twelve documents as Exhibits P1 to P12 and also marked 12 Material Objects as MoS1 to 12. On closure of prosecution side evidence, statement of the accused under Section 313 of Code of Criminal Procedure was recorded. Accused have totally denied the evidence of prosecution witnesses, however, have not adduce any defence evidence on their behalf. During the crossexamination of the prosecution witnesses, six documents were marked as Exhibits D1 to D6. Having heard the argument on

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both sides, the trial Court has convicted the accused for the offence punishable under Section 397 of Indian Penal Code and sentenced the accused to undergo imprisonment for a period of seven years and to pay fine of Rs.2,000/- each. In default of payment of fine, accused to undergo simple imprisonment for a period of two months. Accused were acquitted of the offence under Section 307 read with Section 34 of Indian Penal Code. Respondent-State has not preferred any appeal against acquittal under Section 307 read with Section 34 of Indian Penal code. Appellants/accused, being aggrieved by the impugned judgment of conviction and order on sentence, have preferred this appeal.

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Though the appeal is filed by one Smt. Budrunnisa, learned Advocate, subsequently she has not appeared before the Court. Therefore, as per order dated 17^th June 2025, this Court has passed an order by appointing Sri S. Javeed, learned Advocate as Amicus Curiae to assist the Court.

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Sri S Javeed, Learned Amicus Curiae, would submit

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that the trial Court has not properly appreciated the evidence on record in accordance with law and facts. Except evidence of

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PW1, there are no eye witnesses to this incident. PW1 has not identified the accused. The identification parade has also not been conducted by the Investigating officer. One Sri Senthil, who has assigned the work to the accused, has not been examined by the prosecution. On all these grounds he sought to allow the appeal.

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As against this Sri M.R. Patil, learned High Court Government Pleader appearing for the respondent-State, would submit that the trial Court has properly appreciated the records and evidence on record in accordance with law and facts, and there are no grounds to interfere with impugned Judgment of conviction and order on sentence passed by the trial Court and hence sought for dismissal of the appeal.

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8. Having heard the arguments on both sides, the following points, would arise for consideration:

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1) Whether the appellants have made out a ground to interfere with the Judgment of conviction and order on sentence passed by the trial Court?

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2) What order?

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Regarding Point No.1:

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9. I have examined the materials place before me. It is the case of the prosecution that on 10^th December, 2008 at 11:45 am, accused who were doing tiles work at the house of Smt. Geeta Sharma, at No.313, Knights Bridge Apartments, Kundalahalli, caught hold of Smt. Geeta Sharma while she was doing household work. Accused No.1 held her tightly and accused No.2 fisted her face with hands and tried to strangulate her and attempted to commit her murder. Further, the accused also snatched her gold ornaments and robbed cash of Rs.50,000/- and fled the scene. Thus, committed offences punishable under Sections 397 & 307 of Indian Penal Code. To prove the guilt of the accused, 16 witnesses are examined as PWs1 to 16, 12 documents were marked as Exhibits P1 to P12 and twelve material objects have been marked as MOs1 to 12.

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10. PW1 is the complainant; PWs2 to 5, 8 and 14 are the circumstantial witnesses; PWs 6, 9 and 10 are witnesses to the

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seizure mahazar; PW5 is the Medical Officer; PWs11 and 12 are the Police Constables; and PW16 is the Investigating Officer.

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11. PW1-Smt. Geeta Sharma being the complainant, has

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deposed that she is residing at No.313 Knights Bridge Apartments, Kundalahalli, Bengaluru and in her house tiles laying work was going on in the month of December 2008. One Senthil and other two labourers, were doing the tiles work. By 10^th December 2008, the tiles laying work were almost at the completion stage and on that day supervisor Senthil had informed her that he would come late to work thereafter, at about 8.00 am while she was going to the bus stop to leave her daughter to the school, both accused 1 and 2 were standing at the near the security point at main gate. At that time, accused No.1 informed her that he has left his wrist watch in her house and expressed his intention to take back the same, to which she instructed him to come afterwards. Thereafter, at about 9:45 am, her husband left for office. Within 10 to 15 minutes, both accused came to the house and upon hearing the ring of calling-bell, she opened the door. Both the accused entered the house and engaged themselves in attending to tiles

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cleaning work. After both of them engaged in work, she started to attend her household work and tried to call Senthil, but there was no response from that side. After sometime, at about 11.00 am she received phone call from Senthil stating that he would come late to attend the work. At that time, accused No.1, entered the room and told that he had to contact Senthil, to which she told that he can call Senthil by using the landline and the accused No.2 was standing at the door. Accused No.1 entered the room under the pretext of making a call and at the same time accused No.2 gagged her mouth and hands and accused No.2 caught hold of her and hit her right cheek, pressed her neck and thereby attempted to strangulate her, by which act, she became unconscious. When she regained consciousness, at that time, she could see accused entering her bedroom and were searching for valuables. Again, both of them came near her, hit her on her mouth and kicked her. Again she lost consciousness. After regaining consciousness at about 12.15 p.m., she tried to call her husband on his mobile, but there was no response. Thereafter, upon the information given by her husband to her neighbours, CWs4 and 5 came to her house and took her to Vydehi Hospital

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where she was given first-aid treatment. Thereafter, Police came to the hospital and recorded her statement and obtained her signature on the complaint as per Exhibit P1. Later, she was taken to Manipal Hospital, where she was admitted as an inpatient for seven days. Police paid visit to her house and did the spot mahazar as per Exhibit P2. She came to know that her gold ornaments, as well as cash of Rs.50,000/-, kept in the locker was stolen by the accused. On 23^rd December, 2008, she was called to Police Station, where she identified the stolen articles, and she had received the same from the police. She also came to know that the accused have purchased to mobile handsets and also came to know from the Police that the police have recovered MOs1 to 12 from both the accused.

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12. PW2 who is the husband of PW1, has spoken to the effect that on 10^th December, 2008, he left office at about 9.15 am. Thereafter, at about 11.45 to 12.00 noon, he received phone call from his wife and she was unable to speak properly and was weeping, as such, he immediately contacted his neighbours CWs3 & 4 to visit his house. Thereafter, he came to know about the robbery committed in the house and his wife

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being taken to the hospital. Then he immediately rushed to hospital where his wife was being treated and thereafter, got shifted her to Manipal Hospital for further treatment. The police recorded statement office wife at Vydehi Hospital. His wife suffered pain in her right jaw. It is his further evidence that on 25^th December, 2008, he was called by Police to the station. Where he identified both the accused as persons who were doing tiles work at his Flat. The police recovered the stolen articles as also two mobile sets which were purchased out of the stolen money. He had seen both the accused visiting his Flat doing tiles work along with CW 14.

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13. PWs 3 & 4 are circumstantial witnesses and are the neighbours of PW1 and are residents of the same Apartments in Flats No.312 and 201-B. It is the evidence of PW3, who is the immediate neighbour of PW1 that, he has seen the accused moving in the corridors of the Apartments prior to the incident for doing tiles work. It is his further evidence that on 10^th December, 2008 at 11:45 to 12.00 noon, on receiving a mobile call from PW2, he contacted his wife to visit the house of PW1 and report the situation. Thereafter, his wife informed him

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about the robbery committed in the House of PW1, and PW1 was in the state of shock. Then he immediately informed PW2 about the incident and rushed to Vydehi Hospital, where PW1 was being treated. He has further deposed that on 23^rd December, 2008, Mahadevpura Police, brought both accused to the Apartments and conducted mahazar as per Exhibit P2 and he has signed on it.

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14. PW5 being material witness, has deposed that the tiles work was going on during the month of December 2008 in the Apartment. The workers were engaged in laying tiles in the Flat of PW1 for the past 3 to 4 days. On 10^th December, 2008 at about 12 noon, upon receiving phone call from her husband i.e. PW4, she went to the house of PW1, where she came to know that PW1 was in a semi-conscious state and was having pain in the neck and face, as also, about the robbery committed in her house. Upon enquiry, PW1 informed her that accused committed robbery of gold ornaments and also attempted to cause her death by strangulating her. Then, herself and others, shifted PW1 to Vydehi Hospital. Thereafter,

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Police came and enquired. Thereafter PW1 was taken to Manipal Hospital.

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15. PWs6, 7 and 10 are the seizure mahazar witnesses has deposed in their evidence as to the mahazar conducted by the police as per Exhibit P3 and also as to seizure of properties.

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16. PW8-Security Guard of the Apartments, has spoken to the effect that PWs 1 to 5 are the residents of the Apartments. The accused were doing tiles work in the said Apartment and on 10^th December, 2008, work was going on in the House of PW1 and at about 12.40 to 12.55 pm, he came to know that the tiles laying workers committed robbery in the house of PW1 by assaulting her. Thereafter, on 23^rd December, 2008, Police brought both the accused to the Apartments.

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17. The prosecution has produced spot mahazar-Exhibit P2 and also seizure mahazar-Exhibit P3. The Police have seized properties under Exhibit P3 and inserted the same in property form No.141 of 2008 dated 23^rd December, 2008. On the same day, Police have reported the same to the jurisdictional Magistrate under Section 102 of Code of Criminal Procedure and the learned Magistrate has ordered for retaining the seized

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properties. Police have also conducted seizure mahazar as per Exhibit P4 and seized two Nokia Mobile handsets and inserted the same in property form No.140 of 2008 and have submitted the same to the investigating officer as required under Section 102 of Code of Criminal Procedure. The investigating officer has also produced the wound certificate Exhibits P7 to 9 and also Security Register Extract-Exhibit P18. Exhibit P7 the wound certificate reveals that the injured-Geeta Sharma was admitted to the hospital with history of assault by two labours on 10^th December, 2008 and the same is not disputed by the accused. Upon careful examination of the entire material and record, the trial Court has properly appreciated evidence and record in accordance with law and facts and passed the Judgment of conviction and order on sentence.

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18. With regard to test identification parade is concerned, since injured PW1-Geeta Sharma, has clearly deposed in her evidence that she has identified accused at the time of commission of offence. When the injured PW1 has identified the accused and deposed the name of the accused, the question of conducting identification parade does not arise.

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The trial Court has also properly appreciated the evidence in this regard. On re-appreciation of the evidence, I do not find any error/illegality in the impugned judgment of conviction and order on sentence passed by the trial Court. Prosecution has placed sufficient materials to prove the guilt of the accused for commission of offence and Section 397 of Code of Criminal Procedure. Appellants have not made out any ground to interfere with the impugned Judgment of conviction and order on sentence. Accordingly, I answer Point No.1 in the negative.

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Regarding point No.2:

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For the reasons and discussions above, I proceed to pass the following:

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O R D E R

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i) Appeal dismissed;

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ii) Judgment of Conviction and order on Sentence dated 18^th November, 2011 passed in SC No.744 of 2009 by the Presiding Officer, Fast Track Sessions Court-XVII, Bangalore City is

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confirmed;

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