Sri Muniraju vs State Of Karnataka
2022 Latest Caselaw 10852 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 15TH DAY OF JULY, 2022

                         BEFORE

      THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

           CRIMINAL APPEAL NO.355 OF 2011
BETWEEN

1.   SRI. MUNIRAJU
     S/O. YALLAPPA,
     AGED ABOUT 22 YEARS,
     R/AT NEAR COTTON NALLORE CROSS,
     NIMBEKAYIPURA, HOSKOTE TALUK.

2.   SRI. VENKATESH @ THAMMAIAH
     S/O. VENKATESHAPPA,
     AGED ABOUT 26 YEARS,
     DRIVER BY PROFESSION,
     R/AT NO.463, 9TH CROSS,
     JAYANNA BUILDING, TAVAPURA,
     PEENYA II STAGE, BANGALORE.

3.   SR. B. MANJUNATHA @ RAJU
     S/O. BHIMANNA,
     AGED ABOUT 23 YEARS,
     DRIVER BY PROFESSION,
     R/AT NO.560, 3RD CROSS,
     1ST MAIN ROAD, 1ST FLOOR,
     LAGGERE, BANGALORE.

     PERMANENT R/OF:
     KADIRENAHALLI VILLAGE,
     SIRA TALUK, TUMKUR DISTRICT.

4.   SRI. ZAMEER PASHA BHASHA
     S/O. ANWAR PASHA,
     AGED ABOUT 26 YEARS,
     R/AT NO.205, ANANDAPPA BUILDING,
     1ST MAIN ROAD, GORAGUNTEPALYA,
     BANGALORE.                          ... APPELLANTS

[BY SRI. K.A. PASHA & ASSOCIATES, ADVOCATE (ABSENT)
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      SRI. N.S. SAMPANGIRAMAIAH, AMICUS CURIAE]

AND

STATE OF KARNATAKA
BY VISHWANATHAPURA POLICE STATION,
DEVANAHALLI TALUK,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE.                                     ... RESPONDENT

[BY SRI. KRISHNAKUMAR K.K., HCGP]

                           ***

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER AND JUDGMENT
PASSED BY THE FTC AND SESSIONS JUDGE, DEVANAHALLI, IN
S.C. NO.85/2010 (D.D.25.02.2011), IN THE FINALISATION OF THE
MAIN PETITION AND FURTHER BE PLEASED TO PASS AN ORDER
COMMENSURATING THE FACTS AND CIRCUMSTANCES OF THE
CASE, IN THE INTEREST OF JUSTICE AND EQUITY.

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



                       JUDGMENT

This appeal is preferred against the judgment and

order dated 25.02.2011 passed in S.C. No.85/2010 on

the file of the Fast Track Court, Devanahalli, whereby the

appellants/accused Nos.1 to 4 are convicted and

sentenced for the offence punishable under Section 395

of IPC.

2. The Trial Court has sentenced the accused to

undergo R.I. for a period of 7 years and to pay fine of

Rs.2,000/- (Rupees Two Thousand only) and in default of

payment of fine, to further undergo S.I. for a period of 3

years.

3. Since the learned counsel for the appellants

remained continuously absent and as there was no

representation for the appellants, this Court appointed

learned counsel Sri N.S. Sampangiramaiah as Amicus

Curiae and the paper book was furnished to him.

4. I have heard the learned Amicus curiae

appearing for the appellants and the learned High Court

for respondent/State and perused the entire material on

record.

5. It is the case of prosecution that on

18.07.2009 during mid night at about 12.30 a.m., on

Doddaballupura - Devananhalli NH Road 207, the

accused persons travelled in a Qualis car bearing

Registration No.KA-04-Z-1881 and waylaid the

complainant/PW.3 who was proceeding on a lorry

bearing Registration No.AP-28-X-5697 near

Chickkachimmanahalli Road and entered the cabin of the

lorry and assaulting and threatening PW.3 with the

weapons they were carrying took away a sum of

Rs.1,620/- (Rupees One Thousand Six Hundred and

Twenty only) and thereby committed an offence

punishable under Section 395 of IPC.

6. The charge-sheet was filed against accused

Nos. 1 to 4, stating that a separate charge-sheet will be

filed against accused No.6 and also showing accused

Nos.5 and 7 as absconding.

7. Trial was held against accused Nos.1 to 4. To

establish the guilt of the accused, the prosecution got

examined 7 witnesses and got marked 8 documents and

M.Os 1 to 5. The trial Court held that the prosecution

has established its case against accused Nos.1 to 4

beyond all reasonable doubts. Accordingly, convicted

them for the charged offence under Section 395 of IPC

and imposed sentence as noted supra.

8. It is the specific case of the prosecution that

the accused persons travelled in a Qualis Car bearing

Registration No.KA-04-Z-1881 and waylaid the

complainant/PW.3 who was proceeding in a lorry bearing

Registration No.AP-28-X-5697 and by assaulting him

with knives, robbed a cash of Rs.1,620/-.

9. The complainant/victim is examined as PW3.

The complaint lodged by him is marked as Ex.P4. It is

stated that about six persons aged between 20-25 years

entered the cabin of the lorry and threatened him to

hand over the cash. One of them sat on his lap and

another held his hands. When he screamed, he was

assaulted on the back of his head and another person

caused injuries to his abdomen with a knife. They robbed

a sum of Rs.1,620/- and they searched the cabin for

cash. At that time, on seeing the police who were on

patrolling duty on a motorcycle, all the six accused who

had entered the cabin sped away. Out of them two were

caught by the police and the Qualis vehicle was also

seized. It is stated that the complainant came to know

the names of two persons as Muniraju and Venkatesh

namely accused Nos.1 and 2 respectively. He has stated,

the remaining four accused ran away from the spot.

10. According to the prosecution accused Nos.1

and 2 were caught red handed. The police who were on

patrolling duty are examined as PWs1 and 2. PW.1 has

stated that there were about 6 to 7 persons in the cabin.

PW.2 has stated that there were 7 persons in the cabin

of the lorry. They have deposed that the accused were

attempting to rob the complainant and when they went

near the lorry accused ran away. They chased them and

apprehended accused Nos.1 and 2. PW.2 has stated that

the said accused disclosed the names of other accused

persons who ran away from the spot.

11. The victim-PW.3 has deposed that he was

driving the lorry bearing Registration No. AP-28-X-5697

and on 18.07.2009 he was driving the said lorry from

Tyamagondalu to Hyderabad. When he was proceeding

near Devanahalli in Doddaballapura, the accused persons

who were following him in a Quails car waylaid his

vehicle at about 12 in the midnight and six of the

accused entered the lorry cabin. Out of them three held

him and threatened him to hand over the cash. One of

the accused sat on his lap and another held his neck

holding a knife. He has stated that the said accused

assaulted him. He has further stated that the Police came

to the spot and on seeing them the accused got down

from the cabin of the lorry and started running. The

police held one of the accused. Thereafter, went to the

Police Station and he lodged a complaint as per Ex.P4.

He has further stated that on account of the assault, he

sustained injuries to his abdomen and therefore he was

treated at Government Hospital Devanahalli.

12. According to P.Ws 1 and 2 there were seven

accused persons. On the other hand, PW.3 who is the

victim and complainant has stated that there were 6

persons who entered the lorry cabin. P.Ws1 and 2 have

stated that they chased the accused and apprehended

two of them namely accused Nos.1 and 2, but PW.3 has

stated that the police apprehended one of the accused.

13. It is contended by the learned Amicus Curiae

that there is discrepancy in the evidence of PWs.1 and 2

and their evidence is not corroborated in material

particulars by PW.3. He has contended that there is no

proper identification of the accused and no identification

parade has been conducted and therefore, argued that

benefit of doubt has to be extended to the appellants.

He contends that though the case was registered at 2.00

a.m., and FIR was forwarded to the learned Magistrate at

3.00 a.m., the FIR was received by the learned

Magistrate at 3.10 p.m., and therefore false implication

of the accused is not ruled out. He further contends that

the evidence of PW.5 namely the panch witness and the

seizure mahazar-Ex.P6 cannot be believed since there is

discrepancy with regard to the timing. He contends that

accused Nos.3 to 5 were arrested without any basis, only

on the voluntary statements of the co-accused which is

also not admissible in evidence. He contends that the

trial Court has not properly appreciated all these aspects

and erroneously convicted and sentenced the accused,

which has resulted in miscarriage of justice.

14. PW.4 is the owner of the Qualis vehicle in

which accused persons have traveled. The said Qualis

was seized from the spot. In his evidence PW.4 has

deposed that the Quails vehicle bearing Registration

No.KA-04-Z-1881 belongs to him and accused No.3 was

the driver of the said vehicle. Since accused No.3 did not

bring the vehicle and gave the hire charges, he called

him over phone but his mobile was switched off.

Thereafter, on the same day, accused No.3 informed his

friend Manjunath that when he was taking the customers

in the vehicle, those persons attacked him and took

away the vehicle.

15. The evidence of PW.4 would disclose that he

had appointed accused No.3 as a driver of the Qualis

vehicle. However, according to him he was informed

that while accused No.3 was taking the passengers in the

said vehicle, those passengers attacked him and took

away the vehicle. Admittedly, accused Nos.3 to 5 are

not apprehended at the spot. On the other hand, it is

the case of prosecution that the accused who were

arrested from the spot revealed the names of the other

accused persons.

16. According to PW.7 namely the Investigation

Officer, on 24.07.2009 accused No.3 was arrested and

on 25.07.2009 accused No.4 was arrested. PW.3 has not

given any description about the identity of the accused

who sped away. It appears that only on the voluntarily

statement of accused No.1, the other accused namely

accused Nos.3 and 4 came to be arrested. PW.7 has

deposed in his evidence that accused No.4 who was

shown by accused No.3 was taken into custody and

thereafter they recorded the voluntarily statements of

the said accused. It is relevant to see that PW.3 who is

the victim himself has not identified accused Nos.2 to 4

and therefore it is very difficult to accept the case of

prosecution that even those accused were present and

they have committed the offence.

17. PWs.1 and 2 have identified accused Nos.1

and 2 as the persons whom they chased and

apprehended. However, PW.3 who is the victim in this

case has stated that he could identify only one person

and he identified that person as accused No.1 who was

present before the Court. It is also relevant to see that

PW.3 has clearly stated that other accused after seeing

the police got down from the cabin and ran away and the

police apprehended one of them. In view of the said

evidence of PW.3, it is difficult to accept that the police

have chased and apprehended even accused No.2 from

the spot.

18. The learned Amicus Curiae has contended that

the accused persons have not committed any offence

and they have been falsely implicated. He would point

out to the cross-examination of PW.3, wherein he has

stated that he told the police initially that he is not

interested to lodge a complaint. He contends that there

was a minor quarrel between PW.3 and some other

persons and since the said persons abused the police, a

false complaint was registered against them.

19. The above contention of the learned Amicus

Curiae cannot be accepted as there was no reason for

PW.3 to lodge a false complaint. According to

prosecution, PW.3 sustained some injuries to his

abdomen etc., and he was taken treatment in the

Government Hospital. The wound certificate-Ex.P8 is

marked though the investigation officer. Ex.P8 shows

that PW.3 sustained:

1. A circular contusion over left side of temporal

area and

2. A superficial punctured wound over left

epigastria area.

Both the injuries are mentioned as simple injuries.

20. In the cross-examination, PW.3 has admitted

that out of the four accused persons present in the Court

one of them was taken to the Police Station. As already

noted supra, PW.3 who is the victim and the complainant

in this case has not identified accused Nos.2 to 4 and he

has only identified accused No.1. Hence, the evidence

adduced by the prosecution in so far as accused No.1 is

concerned cannot be disbelieved.

21. The prosecution has got examined PW.5 as

the panch witness for the seizure mahazar Ex.P6 under

which M.Os 1 to 5 are seized. Ex.P6 is prepared on

19.07.2009 between 4.00 and 5.00 a.m. The said

document is signed by PW.3/complainant, PW.5 and one

Ramanuja (CW.5).

22. According to prosecution M.Os.1 and 2 were

seized from accused No.1 and M.Os.3 and 5 are

recovered from accused No.2, M.O.4 namely rope was in

the Qualis vehicle. PW.5 in the cross-examination has

stated that he was asked to come to the Police Station

over phone at about 8-9 a.m., and when he went to the

Police Station the seized materials were already on the

table. As already noted Ex.P6 was prepared between 4-5

a.m., on 19.07.2009. PW.5 has admitted that he went to

the Police Station in the morning at about 8-9 a.m., and

at that time the material objects were already on the

table. Therefore, it cannot be accepted that PW.5 was

present when M.Os.1 to 5 were seized from the accused

persons. PW.3 is also one of the signatory to Ex.P6. In

the cross-examination, PW.3 has stated that the police

seized the cash which was in his possession and he has

not stated that the police have seized the said cash from

the accused persons. PW.6 is the PSI who registered the

case and PW.7 is the Investigation Officer who has filed

the charge-sheet.

23. The evidence and material adduced by the

prosecution is not sufficient to establish the guilt of

accused Nos.2 to 4. However, insofar as accused No.1 is

concerned there is sufficient evidence. Therefore, the

impugned judgment passed in respect of accused Nos.2

to 4 is liable to be set aside.

24. The trial Court has sentenced the accused to

undergo R.I. for 7 years for the offence punishable under

Section 395 of IPC. The evidence of PWs.1 to 3 is

sufficient to show that the accused persons have

conjointly attempted to commit the offence and there

were more than 5 accused. However, there is no

sufficient evidence to show the participation of accused

Nos.2 to 4 as they are not identified by PW.3 as the

persons who committed the offence. Hence, benefit of

doubt has to be extended to accused Nos.2 to 4.

25. The incident is of the year 2009 and almost

13 years have lapsed. The learned Amicus Curiae

submits that accused No.1 was aged 22 years at the

time of incident and he has undergone the ordeal of trial

since 2010 and therefore, a lenient view may be taken.

He has prayed to pass minimum sentence against

accused No.1.

In the light of above discussion and for the

foregoing reasons, I proceed to pass the following :

ORDER

Appeal is partly allowed.

The judgment and order dated 25.02.2011 passed

in S.C. No.85/2010 by the Court of Fast Track,

Devanahalli, convicting and sentencing accused Nos.2 to

4 for the offence punishable under Section 395 of IPC is

hereby set aside.

The conviction of accused No.1 for the offence

punishable under Section 395 is confirmed. The

sentence imposed against him is modified.

Accused No.1 shall undergo R.I. for a period of 3

years for the offence punishable under Section 395 of

IPC and he shall pay fine of Rs.2,000/- (Rupees Two

Thousand only) and in default of payment of fine, shall

undergo S.I. for 3 months.

Accused No.1 is entitled for set off for the period of

sentence he has already undergone.

Learned Amicus Curiae is entitled for a sum of

Rs.8,000/- (Rupees Eight Thousand only) for the able

assistance rendered by him.

The Registry shall certify the judgment to the trial

Court, for securing the presence of the accused and to

proceed against him, for serving the sentence imposed

against him.

Sd/-

JUDGE

HB/-