Babu Khan @ Shabeer vs State By Arasikere Railway Police
2022 Latest Caselaw 1125 Kant

                                          CRL.A.No.1316/2017


                              1



IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 25th DAY OF JANUARY 2022

                        BEFORE

       THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

          CRIMINAL APPEAL NO.1316/2017
BETWEEN:

1.     BABU KHAN @ SHABEER
       S/O JAHEER
       AGED ABOUT 40 YEARS

2.     FATHIMA
       W/O BABU KHAN @ SHABEER
       AGED ABOUT 30 YEARS

       BOTH ARE RESIDING AT NO.778
       BEHIND KANNADA SCHOOL
       PENSION MOHALLA
       HASSAN                         ... APPELLANTS

(BY SRI.SUYOG HERELE E, ADVOCATE APPOINTED AS
     AMICUS CURIAE FOR APPELLANT NO.1;
     SRI.SUYOG HERELE E, ADVOCATE FOR APPELLANT NO.2)

AND:

STATE BY ARASIKERE RAILWAY POLICE
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE                             ... RESPONDENT

(BY SRI.SHANKAR H.S., HCGP)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 07.06.2017 PASSED BY THE V ADDITIONAL DISTRICT
                                                   CRL.A.No.1316/2017


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AND SESSIONS JUDGE, HASSAN IN S.C.NO.188/2015 -
CONVICTING THE APPELLANT/ACCUSED NOS.1 AND 2 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 394 AND 397 OF IPC.

     THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING    THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:


                           JUDGMENT

Aggrieved by the order of conviction and sentence

passed against them for the offences punishable under

Sections 394 and 397 of IPC, accused Nos.1 and 2 in

S.C.No.188/2015 on the file of V Additional District and

Sessions Court at Hassan have preferred the above appeal.

2. The appellants were prosecuted in

S.C.No.188/2015 for the aforesaid offences on the basis of

the charge sheet filed by the Arasikere Railway Police in

Crime No.37/2014 of their police station. Crime

No.37/2014 was registered against unknown persons for

the offence punishable under Section 394 of IPC on the

basis of the complaint of PW.4 K.M.A Khadar Haji as per

Ex.P11.

CRL.A.No.1316/2017

3. For the purpose of the convenience appellants

are referred henceforth as accused No.1 and 2 which is

their rank before the trial Court.

4. The case of the prosecution in brief is as

follows:

(i) PW.4 is the resident of Kasargodu, Kerala district.

On 26.10.2014 he visited Javagal to offer prayer in a

Darga. From Javagal he intended to go to Goa. When he

was waiting at Javagal bus stand to board the bus to

Chikmagalur, the accused enquired about his journey and

told that to go to Goa, he could reach Arasikere through

Shivmogga-Chamrajanagara train. They travelled with him

from Javagal to Banavara in a tempo. They also boarded

Shivmogga-Chamarajanagara train. Since there was rush

in the train, they persuaded him to board the luggage

bogie. During the journey, they demanded his phone.

When he declined, the accused closed the door of luggage

bogie, tied his legs, assaulted him with blade on his neck,

chest, and forearm. They bet him and robbed his Samsung CRL.A.No.1316/2017

mobile phone and cash of Rs.2,000/-. When the train

stopped in Arasikere station, they alighted and escaped.

PW.4 was screaming with the injuries. PWs.5 and 6 the

coffee vendors in the railway station noticed him and the

accused running away from the train.

(ii) On 27.10.2014 railway police recorded the

statement of PW.4 and shifted PW.4 to the hospital. In the

hospital PW.10 the Medical Officer examined and treated

PW.4 and she issued MLC as per Ex.P19 to Railway police.

(iii) On receipt of MLC intimation, PW.9 again

visited the hospital on 28.10.2014 at 7.15 p.m. and

recorded the statement of PW.4 as per Ex.P.11. During

such visit he seized MOs.2 to 4 blade, railway ticket and

other articles belonging to PW.4 under the mahazar Ex.P2.

On the basis of Ex.P11 on returning to the police station he

registered the FIR as per Ex.P15 against the unknown

persons.

(iv) PW.8-police constable of the Arasikere police

station apprehended accused Nos.1 and 2 in Arasikere

railway station on suspicion and produced them before CRL.A.No.1316/2017

PW.9 with his report in Ex.P14. PW.9 interrogated them

and recorded their voluntary statement as per Ex.P16 and

17. Their voluntary statement revealed their involvement

in Crime No.37/2014.

(v) On the basis of their voluntary statement PW.9

recovered MO.1 blade, MOs.5 and 6 Samsung mobile

phone of PW.4 and cash of Rs.1,500/- under the mahazar

at Ex.P3 in the police station. Such seizure proceedings

were photographed as per Ex.P4 to 7. He handed over the

further investigation to PW.11.

(vi) PW.11 the Police Inspector of Arasikere Railway

Police Station recorded the statements of witnesses and

sent seized articles to the FSL and collected the wound

certificate.

(vii) He issued requisition to PW.7 the Executive

Magistrate for identification of the accused through the

injured, received the Test Identification parade report and

filed the charge sheet for the offence punishable under

Section 394 of IPC.

CRL.A.No.1316/2017

5. On filing of the charge sheet, learned Principal

Civil Judge and JMFC, Arasikere took cognizance of the

aforesaid offences and registered the case in

C.C.No.159/2015. The learned Magistrate framed the

charge against the accused for the offence punishable

under Section 394 of IPC and proceeded to hold the trial.

During the trial, the Assistant Public Prosecutor filed an

application under Section 323 of Cr.P.C claiming that the

acts alleged against the accused attract Section 397 of IPC

which is triable by the Sessions Court and sought

committal of the case to the Sessions Court.

6. Learned Magistrate allowed the said application

and committed the case to the Sessions Court. On

committal of the case, the trial Court registered the same

in S.C. No.188/2015. Initially the trial Court framed the

charge against the accused for the offence punishable

under Sections 394 read with Section 34 of IPC. Later the

trial Court amended the charge and framed the amended

charge for the offence punishable under Sections 397 and CRL.A.No.1316/2017

394 read with Section 34 of IPC. Since the accused

claimed the trial, the trial Court conducted the trial.

7. To substantiate its case the prosecution

examined PWs.1 to 11 and got marked Ex.P1 to Ex.P22

and MOs.1 to 8. After their examination under Section

313 of Cr.P.C, the accused did not lead any defence

evidence.

8. The trial Court on hearing the parties by the

impugned judgment and order convicted accused Nos.1

and 2 for the offences punishable under Sections 397 and

394 of IPC. Further the trial Court sentenced accused

Nos.1 & 2 for Rigorous Imprisonment of 7 years and fine of

Rs.5,000/- for each of the offence.

9. Submissions of Sri Suyog Herele E, learned

Amicus Curiae representing the accused assailing the

impugned judgment are as follows:

There is unexplained delay in registering the FIR. As

per the prosecution, on commission of the offence the CRL.A.No.1316/2017

accused stayed back in Arasikere platform for one day i.e.

till they were allegedly arrested. A person committing the

offence always tries to flee from the scene of the offence.

Therefore the case of apprehending from Railway station

as alleged on the next day is unnatural. The alleged

seizure of incriminating material from the accused is joint

recovery in the police station. PWs 2 and 3 the seizure

mahazar witnesses have not supported the seizure

proceedings. PW.1 the alleged eyewitness has not

supported the prosecution case. PW.5 and 6 are not the

eyewitnesses, they had not seen the accused earlier.

Therefore their evidence that they saw the accused

running away and identification of the accused by them in

the Court does not inspire confidence. The evidence of

injured witness PW.4 is also not consistent. Test

Identification parade proceedings are vitiated since the

Test Identification parade was conducted after two

months. The investigation was not fair. The charge

under Section 397 of IPC is not properly framed, as the CRL.A.No.1316/2017

blade is not a deadly weapon. The trial Court has failed to

appreciate the evidence in proper manner.

10. In support of his submissions, he relies upon

the following judgments:

i) Sheikh Hasib alias Tabarak Vs The State of Bihar1

ii) Jagdish and Others Vs The State2

iii) Rajender Yadav Vs The State (NCT of Delhi)3

iv) Guddu Vs The State4

v) Babubhai Vs State of Gujarat & Others5

vi) Ram Ratan Vs State of Madhya Pradesh6

vii) Rekha Murarka Vs State of West Bengal and Another7

viii) K.V Shiva Raddy Vs State of Karnataka and Others8

11. Justifying the impugned order of conviction

and sentence, the learned HCGP made the following

submissions:

PW.4 is the injured eyewitness. He had the occasion

to see the accused for quite a long time, he has identified

(1972) 4 SCC 733

1985 Crl LJ 1621

2013 SCC online Del 3120

2019 SCC Online Del 7855

(2010) 12 SCC 254

2021 SCC Online SC 1279

(2020) 2 SCC 474

ILR 2005 KAR 4780 CRL.A.No.1316/2017

the accused. Under such circumstances even if the Test

Identification parade evidence fails that is not fatal to the

prosecution case. The evidence of PW.4 was corroborated

by the evidence of PWs.5 and 6. The presence of PWs.5

and 6 at the scene of offence is probable and natural. Their

evidence further corroborated by the evidence of Medical

officer. Soon after the incident, the victim was taken to

the hospital with the history of the assault. The evidence of

PWs.4 to 6 was further corroborated by the medical

evidence and evidence of police witness. By such evidence

charges against the accused stood proved beyond

reasonable doubt. To invoke Section 397 of IPC the use of

deadly weapon is a pre-condition. If there is attempt to

cause death or grievous hurt to the victim during the

course of robbery by using deadly weapon, then also

section 397 of IPC is attracted. The evidence of PW.4 and

10, the wound certificate at Ex.P8 shows that injuries were

inflicted on the neck, a vital part and several injuries on

chest, abdomen etc. That itself goes to show that there CRL.A.No.1316/2017

was attempt to cause grievous hurt or death. Therefore

the conviction under Section 397 IPC sustains.

12. In support of his submission he relied on the

judgment of Hon'ble Supreme Court in State of Himachal

Pradesh Vs Premchand9.

13. On considering the rival submissions and

examining the material on record, the question that arise

for consideration of this Court is "Whether the impugned

order of conviction and sentence is sustainable in law?".

14. To bring home the guilt of the accused, the

prosecution has to prove that:

(i) Accused robbed and assaulted PW.4 in

Shivamogga-Chamarajanagar train;

(ii) He was found in Arasikere Railway station with

such injuries.

(iii) The accused were authors of such injuries.

(2002) 10 SCC 518 CRL.A.No.1316/2017

15. Sections 397 and 394 of IPC for which the

accused are convicted and sentenced read as follows:

"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.-

           394.   Voluntarily      causing      hurt    in
     committing robbery.--          If any person, in
     committing    or   in    attempting   to    commit
     robbery,   voluntarily     causes     hurt,     such
     person,    and     any    other   person      jointly

concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

16. In view of above provisions, the prosecution

has to prove that the accused committed the robbery and

during the course of such robbery, they voluntarily caused CRL.A.No.1316/2017

hurt to PW.4. It was argued that to attract Section 397

IPC, the weapon used shall be deadly weapon and blade is

not the deadly weapon, therefore conviction of Section 397

IPC is unsustainable.

17. Section 397 IPC consists of three parts:

i) First part is employing a deadly weapon in

committing the robbery and dacoity.

ii) Second part is causing grievous hurt to any

person during the course of robbery.

iii) Third part is attempting to cause death or

grievous hurt to victim.

18. There need not be all the three aspects

together as the word 'or' is used between all the three

aspects. If any one of the acts amongst the three is done

that attracts Section 397 of IPC.

19. No doubt it is true that in this case as per

medical evidence, PW.4 has not suffered any grievous

hurt. Of course as per the judgment of the Delhi High CRL.A.No.1316/2017

Court in Guddu v. State10 relied by learned counsel for the

appellant, the blade is not a deadly weapon. Even if it is

accepted, first two components of Section 397 of IPC are

attracted. The question is whether there was attempt on

the part of the accused to cause death or grievous hurt to

PW.4 during the course of the crime, for which entire

evidence on record has to be appreciated.

20. So for as the scene of offence PW.4 in his

complaint/statement Ex.P11 as well as in his deposition

has consistently stated that when he was traveling from

Banavara to Arasikere in Shivmogga-Chamarajanagar train

the accused on befriending him, assaulted him with blade,

caused injuries, robbed his mobile phone and cash. He

further deposed that after assaulting him, the accused de-

boarded from the train in Arasikere station and escaped.

He has stated in the complaint that when he alighted from

the train, Railway police shifted him to hospital. The

incident has taken place on 27.10.2014 at 10.20 a.m.

2019 SCC Online Del 7855 CRL.A.No.1316/2017

21. The evidence of PW.10 Medical Officer of

Arasikere Government hospital shows that PW.4 was taken

to Government hospital on 27.10.2014 at 11.33 a.m.

PW.10 stated that she examined PW.4 and issued wound

certificate at Ex.P18. She also deposed that on 28.10.2014

at 8 a.m. police visited the hospital and recorded the

statement of PW.4 in her presence as per Ex.P11 and she

has subscribed her signature as per Ex.P11(b). She also

speaks of issuance of MLC intimation as per Ex.P19.

Ex.P19 shows that the same was issued on 27.10.2014.

22. The evidence of PW.4 and PW.10 regarding

PW.4 suffering the injuries mentioned in Ex.P18 is not

disputed. Only an attempt is made to contend that those

injuries are accidental injuries which the witnesses have

denied. Even the fact of shifting PW.4 from Arasikere

Railway police station to hospital is not disputed. Thereby

the injuries and the scene of offence are not disputed in

the cross-examination of PWs.4 and 10.

CRL.A.No.1316/2017

23. PWs.5 and 6 are the coffee vendors in

Arasikere railway platform. They deposed that on

27.10.2014 when they were vending Tea in the Railway

station they found the accused deboarding from luggage

bogie of Chamarajanagara train and running away and

later they found PW.4 screaming with injuries. They also

deposed that the people assembled there and then they

left the scene of offence. The fact that PWs.5 and 6 were

the coffee vendors in railway station was not disputed in

their cross-examination. Therefore, their presence at the

scene of the offence is probable and natural.

24. As rightly observed by the trial Court, whether

the identification of the accused by PWs.4 and 5 is

acceptable or not is a different question. However, so far

as PW.4's presence in Arasikere Railway station with the

injuries as mentioned at Ex.P18 and shifting him from

Arasikere Railway station to Government hospital stand

proved by the aforesaid evidence.

CRL.A.No.1316/2017

25. The next question is whether those injuries

were accidental or homicidal and who were the authors of

the injuries? PW.4 is the injured victim. His evidence

carries more weight. Nothing is elicited in his cross-

examination for false implication of the accused. The

accused were strangers to him. He did not have any ill-will

against them. In his complaint as well as in his deposition

he stated that he was assaulted with blade on his body and

hands. In the complaint, he has stated that his legs were

tied with a belt. He states that accused cut on his

stomach, neck, right hand with a blade, they kicked and

hit him, but he has not spoken about the bite injuries.

26. PW.10 in her deposition as well as in the wound

certificate has stated that there were bite injuries. Ex.P18

and the deposition of PW.10 revealed the following

injuries.

1. Multiple scratch injuries 6 in numbers, each measuring 8 to 10 c.ms, which were present on the anterior surface of the neck.

2. Scratch injuries around 3 in numbers, each measuring around 3 c.m., present over anterior chest wall.

CRL.A.No.1316/2017

3. Hemorrhage inside the right eye

4. Scratch injuries around 10 c.m. which were 2 in numbers were present on anterior abdomen wall.

5. Deep lacerated injury around 6 c.m. x 0.25 c.m.

present over the right hand.

6. Diffused contused injury around 5 c.m. x 6 c.m.

which was reddish in colour with multiple teeth bitten mark over the left forearm.

7. Diffused contused injury around 5 c.m. x 4 c.m.

over which multiple teeth bitten marks present over the right forearm.

27. In the cross-examination of PW.10 those

injuries being found on the body of the PW.4 is not at all

disputed. It is only suggested that such injuries are

possible if a person falls on a sharp edged object like zink

sheets. Therefore there is no reason to disbelieve that

PW.4 had suffered the aforesaid injuries. If the injuries

were accidental one, there was no reason for PW.4 to

falsely implicate the accused or to shield the true culprits.

Therefore this Court is inclined to accept that the

prosecution proved beyond reasonable doubt that PW.4

suffered those injuries when he was traveling in the train CRL.A.No.1316/2017

due to assault. This Court is not inclined to accept that the

injuries were accidental one.

28. Then the next question is Whether accused

were authors of those injuries?. It is contended that the

accused were strangers to PW.4 and they were not

properly identified during the course of test identification

parade, therefore they cannot be implicated in the case. It

is no doubt true that the accused were strangers to PW.4.

It is also true that the test identification parade is

conducted after two months.

29. However, as per the evidence of PW.4 and

Ex.P11 the accused befriended him at Javagal town in the

guise of guiding him about the route to Goa. He deposed

that the accused told him that to go to Goa reach

Arasikere by train and from Arasikere he can take up

another train to Goa. He has said that from Javagal to

Banavara Railway station they together traveled in a

tempo and the accused only got ticket for such travel.

CRL.A.No.1316/2017

30. He says they boarded the train at Banavara

Railway station into the luggage bogie, enroute the

accused demanded his mobile phone, when he declined to

handover the same, both of them assaulted him, tied his

legs by belt and then assaulted with blade and robbed him

of his mobile phone, cash and then in Arasikere station

they alighted the train and escaped.

31. The fact of PW.4 belonging Kasaragodu is not

disputed. It is already held that he was found with injuries

in the train in Arasikere. The fact of he traveling from

Javagal to Arasikere is not disputed in his evidence. Such

evidence goes to show that consistently for a long time

PW.4 was in the company of the accused. Therefore his

identification before the Court cannot be suspected. In the

considered opinion of this Court having regard to the

aforesaid fact that the Test Identification Parade was not

required at all.

32. The Hon'ble Supreme Court in Premchand's

case has held that when the victim has the opportunity to CRL.A.No.1316/2017

see the accused for considerable length of time, he

identifying the accused in the Court for the first time shall

not be disbelieved and there need not be any corroboration

for such evidence of the victim by test identification

parade.

33. In the light of the aforesaid judgment and facts

the judgment in Sheikh Hasib alias Tabarak's case relied

by the learned counsel for the appellant/accused has no

application.

34. Even assuming that PWs.5 and 6 are only the

chance witnesses and their identification of the accused is

not acceptable, the evidence of PW.4 was sufficient to hold

that the accused were the culprits. Their identification by

PW.4 before the Court was sufficient. So also the evidence

of PW.4 is credible to hold that the accused were the

assailants.

CRL.A.No.1316/2017

35. The next question is "Whether the conviction

for the offence punishable under Section 397 and 394 of

IPC is sustainable"?.

36. To prove the aforesaid charges the prosecution

apart from relying on the evidence of PW.4 relied on the

circumstance of recovery of MOs.1, 5 to 6 under the

mahazar Ex.P3. According to the prosecution, the accused

when arrested, had possessed those material objects and

produced them before the Investigating Officer and they

were seized under the mahazar Ex.P3 in the presence of

PWs.2 and 3 the mahazar witness. PWs.2 and 3 had not

supported the proceedings under Ex.P3.

37. The alleged recovery was a joint recovery in the

police station. In Ex.P3 it is not specified from which of

the accused which of the items were seized. Therefore,

there was much force in the contention of defence counsel

that the circumstance of recovery was not proved beyond

reasonable doubt. Even in the absence of circumstance of

recovery there was no reason to disbelieve the evidence of CRL.A.No.1316/2017

PW.4 that he was assaulted in the train with sharp edge

object.

38. It is no doubt true that in the complaint and

the deposition of PW.1 the weapon of offence is shown as

blade whereas history given before Doctor and recorded in

the wound certificate Ex.P18 is that he was assaulted with

knife. There is no consistency with regard to the weapon

of offence. Even if that benefit of doubt is given to the

accused, they will be entitled only for acquittal for the

offence under Section 397 of IPC. However, there is no

reason to interfere with the order of conviction and

sentence against the appellant for the offence under

Section 394 IPC.

39. Therefore appeal is partly allowed.

The impugned order of conviction and sentence

passed against the appellant/accused for the offence

punishable under Section 394 of IPC is hereby confirmed.

The impugned order of conviction and sentence passed

against the appellant/accused for the offence punishable CRL.A.No.1316/2017

under Section 397 of IPC is hereby set aside. They are

acquitted for the offence punishable under Section 397 of

IPC.

Learned counsel for the appellant seeks indulgence

in the order of sentence at least for appellant No.2. It is

submitted that she is a woman having two children.

Therefore lenience may be shown for her.

The appellants taking the victim into confidence

have committed grave offence against him betraying his

trust. The offence under Section 394 of IPC is punishable

with imprisonment for life or rigorous imprisonment for a

term which may extend to 10 years. Therefore for

appellant No.1, no indulgence can be shown.

So far as appellant No.2 she is a woman having two

children. The trial Court has sentenced her to undergo

imprisonment for 7 years and she has already undergone

the substantial portion of the sentence.

CRL.A.No.1316/2017

Taking into consideration the aforesaid aspects, the

order of sentence, so far as accused No.2 is modified as

follows:

Accused No.2 is sentenced to the period of detention

already undergone by her and the sentence of fine and

default sentence passed against her are maintained.

This Court places on record its appreciation for the

able assistance rendered by Sri Suyog Herele E, learned

Amicus Curiae.

Registry shall pay the remuneration of Rs.15,000/-

to the learned Amicus Curiae.

Sd/-

JUDGE Akc