Sri Sathish Bhandary vs The State Of Karnataka
2023 Latest Caselaw 6427 Kant

                         1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

  DATED THIS THE 11TH DAY OF SEPTEMBER, 2023

                      BEFORE

       THE HON'BLE MR. JUSTICE K. NATARAJAN

           CRIMINAL APPEAL NO.939 OF 2020
                   CONNECTED WITH
            CRIMINAL APPEAL NO.8 OF 2021
                   CONNECTED WITH
           CRIMINAL APPEAL NO.47 OF 2021


IN CRIMINAL APPEAL NO.939 OF 2020

BETWEEN:

FAROOK @ UMMAR FAROOK
@ AGARTHIMOOLE FAROOK
AGED ABOUT 32 YEARS
S/O MOHAMMED KUNHA
R/AT ALIMA MANZIL
AGARTHIMOOLE HOUSE
BEKOORU VILLAGE AND POST
VIA UPPALA MANJESHWAR TALUK
KASARGODU TALUK - 671 322
                                       ... APPELLANT
(BY SRI RAJESH RAO K, ADVOCATE)

AND:

THE STATE BY
MOODABIDRE P.S.,
REPRESENTED BY
                          2


THE GOVERNMENT PLEADER
HIGH COURT OF KARNATAKA
BENGALURU - 560 001                   ... RESPONDENT

(BY SRI S. VISHWA MURTHY, H.C.G.P.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 26.08.2020 AND
ORDER OF SENTENCE DATED 28.08.2020, PASSED BY THE
IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, D.K.,
MANGALURU IN S.C.NO.17/2017, CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 341, 392 AND 397 READ WITH
SECTION 34 OF IPC.

IN CRIMINAL APPEAL NO.8 OF 2021

BETWEEN:

KEMPAYYA GOWDA @ HARISH SHETTY
@ HARISH KUMAR SHETTY
@ RAVI @ RAVI KUMAR
AGED ABOUT 47 YEARS,
S/O LATE ANNU GOWDA
@ SHANKAR SHETTY
R/AT CHANDAKOOR HOUSE,
KUTHROTTU, NADA VILLAGE,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 214
                                        ... APPELLANT
(BY SRI K.B.K. SWAMY, ADVOCATE)

AND:

THE STATE OF KARNATAKA BY
MOODABIDARE POLICE STATION
REPRESENTED BY SPP
                          3


HIGH COURT OF KARNATAKA
BANGALORE - 560 001                   ... RESPONDENT

(BY SRI S. VISHWA MURTHY, H.C.G.P.)

      THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. BY THE ADVOCATE FOR THE
APPELLANT PRAYING THAT THIS HONBLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 26.08.2020 AND ORDER OF SENTENCE DATED
28.08.2020, PASSED BY THE IV ADDITIONAL DISTRICT
AND    SESSIONS    JUDGE,   D.K.,  MANGALURU   IN
S.C.NO.17/2017 - CONVICTING THE APPELLANT/ACCUSED
NO.2 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS
341, 392 AND 397 READ WITH SECTION 34 OF IPC.

IN CRIMINAL APPEAL NO.47 OF 2021

BETWEEN:

SRI SATHISH BHANDARY
AGED ABOUT 54 YEARS,
S/O LATE ANANDH BHANDARY,
R/AT SHARADHA NILAYA,
SUVARNA NAGAR,
KARINJE VILLAGE,
KALLABETTU POST,
MANGALURU TALUK - 574 197
                                        ... APPELLANT

(BY MS RACHITHA RAJSEHKAR, ADVOCATE FOR
 SRI VENKATESH SOMAREDDI, ADVOCATE)

AND:

THE STATE OF KARNATAKA
INSPECTOR OF POLICE,
                            4


MOODABIDARE POLICE STATION,
REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 575 001
                                         ... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)

     THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C. BY THE ADVOCATE FOR THE
APPELLANT PRAYING THAT THIS HONBLE COURT MAY BE
PLEASED TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 26.08.2020 AND SENTENCE DATED 28.08.2020
PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS
JUDGE,   D.K.    MANGALURU    IN   S.C.NO.17/2017,
CONVICTING THE APPELLANT/ ACCUSED NO.3 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 341, 392, 397
READ WITH SECTION 34 OF IPC.

     THESE CRIMINAL APPEALS HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 24.7.2023 THIS DAY,
THE COURT PRONOUNCED THE FOLLOWING:

                  JUDGMENT

These appeals are filed by the appellants/accused

Nos.1 to 3 under Section 374 of Cr.P.C for setting aside

the judgment of conviction and sentence passed by the IV

Additional District and Sessions Judge, DK, Mangaluru, in

S.C.No.17/2017 dated 26.8.2020 for the offence

punishable under Sections 341, 392 and 397 read with 34

of IPC.

2. Heard the arguments of learned counsel for

appellants and learned HCGP for the State.

3. The appellants are accused and the respondent

are complainant before the Trial Court. Hence the ranks of

the parties are retained for the sake of convenience.

4. The fact of the prosecution is that on 9.11.2015

at about 9.30 p.m., the accused Nos.1 to 3 and along with

the absconding accused No.4 with a common intention to

commit robbery, armed with deadly weapons like sword,

(mandekatthi in local language), had come in the Maruthi

800 Car bearing No.KA-19-M-9613 driven by the

absconding accused No.4, in front of the Pranthya

Government School and they waited. At that time, the

complainant came in a scooter bearing No.KA-19EG-6197

which was ridden by P.W.1. and P.W.2. Immediately

accused Nos.1 to 3 got down from the car, assaulted

P.W.1. and P.W.2, the riders of the scooter and snatched

away the bag from PW1 which contained Rs.4,50,000/-

along with bills belonging to the P.W.6 and fled away from

the spot. Thereafter, the accused persons were charge

sheeted by the police for the offence punishable under

Sections 341 and 397 of IPC. After securing the presence

of the accused, the Trial Court framed the charges. The

accused persons denied the charges and claimed to be

tried. Accordingly, to prove its case, the prosecution

examined 16 witnesses and got marked 26 documents and

20 Material objects and also marked C1 and C2. After

closing the evidence, the statement of accused under

section 313 of Cr.P.C., was recorded. The case of the

accused persons is one of the total denial, but not entered

any evidence. Later the trial Court framed additional

charges under Section 392 of IPC. After hearing the

arguments, the Trial Court found the accused guilty and

convicted and sentenced the appellants/accused Nos.1 to 3

to pay fine of Rs.500/- each, in default they shall undergo

simple imprisonment for 7 days, for the offence punishable

under Section 341 of IPC. They were also sentenced to

undergo rigorous imprisonment for 10 years and pay fine

of Rs.12,000/- each and in default of payment of fine, they

shall undergo rigorous imprisonment for a period of one

year for the offence punishable under Section 392 read

with 34 of IPC. The appellants were further sentenced to

undergo rigorous imprisonment for 8 years for the offence

punishable under Section 397 read with 34 of IPC. All the

sentences were ordered to run concurrently. Out of the

fine amount sum of Rs.15000/- was to be paid to the

victims/P.W.1 and P.W.2 as compensation under Section

357(1) of Cr.P.C and remaining Rs.7500/- ordered to be

adjusted towards the State Exchequor. Being aggrieved

by the same, the accused Nos.1 to 3 are before this court

by filing these appeals.

5. Learned counsel for the appellant has contended

the judgment of conviction and sentence are liable to be

set aside, since the case was registered against unknown

persons. The evidence of the prosecution witnesses not

reliable. The alleged recovery of the bag and other

materials from the bushes looks fresh. It was recovered

after 4 and half months. Even the blood stained cloths

were seized as it is, which is not believable. The incident

took place within 2-3 minutes during the night hours.

Identifying the accused was not possible, even otherwise

conducting the Test Identification Parade by keeping the

accused present by making them wear the saffron colour

Dhothi in all the rows and made it easy for the witnesses

for the identification. Further contended the vehicle was

not mentioned in the complaint and same was inserted

after the arrest of the accused. The said vehicle was not

identified before the court and there is no evidence. The

description of the bag and weapons were not mentioned by

the complainant. The police recovered only the bag, but

not the cash, the weapon was seized from the forest area,

without any rust which cannot be believable. The

complainant has not stated anything about the arrival of

the P.W.3 and P.W.4 to the spot. There are lot of

discrepancies in the evidence of prosecution witnesses.

Therefore, prayed for acquitting the accused persons.

6. Per contra, learned HCGP supported the

judgment of the Trial Court and contended, the accused

persons are habitual offenders. They are involved in

various cases. During the incident, they caused grievous

hurt to the complainant, the offence is serious one. The

witnesses categorically stated and identified the accused

persons. Therefore, there is no error in the judgment,

hence prayed for dismissing the appeal.

7. Having heard the arguments, and perused the

records, the point that arises for my consideration is

(1) Whether the prosecution proves beyond all reasonable doubt that on 09.11.2015 at 9.30 p.m., the accused nos.1 to 3 have committed robbery by assaulting the P.W.1 and P.W.2 with sword and snatched away the cash of Rs.4,50,000/- along with bag and the bills which belongs to P.W.6. Thereby they committed the offence punishable under Section 341, 392 and 397 read with 34 of IPC?

(2) Whether the judgment of conviction and sentence passed by the Trial Court calls for interference of this court?

8. Before going to appreciate evidence on record, it

is worth to mention the evidence of the prosecution

witnesses lead before the Trial Court.

9. PW1-Chandrashekar who is the complainant,

deposed that he is working in the shop of CW2 Poornesh

as salesman and on 9.11.2015. The owner did not visit

the shop, therefore he has closed the shop at 9.30 p.m.

and took the sale proceeds of Rs.4,50,000/- and bill book.

He along with CW2 were proceeding to handover the same

to the owner of the shop and they went in a scooter KA-

19EG-6197. On that day, it was Deepawali, therefore

there was delay in closing the shop. When he was riding

the scooter, the CW2 was on the back seat as pillion rider,

when they reached near Pranthya Government school at

9.30 p.m., at that time a Maruthi 800 Car bearing No.KA-

19-M-9613 came from backside by overtaking the scooter

and intercepted the scooter. Three persons got down from

the car, all of them were holding swords (MandaKathi).

One person assaulted on the head, another two persons

were trying to snatch the cash bag and once again they

assaulted on the shoulder and on the left hand. Due to

which, P.W.1 sustained injuries on the left fingers. When

the P.W.2 also was trying to stop the said persons from

assaulting him on his head, neck and leg, then they

snatched the cash bag. One person was kept ready seated

in the car and immediately these three persons fled away

by boarding the car. They went towards the paper mill,

due to the assault, the clothes were stained with the blood.

Later, some persons came and shifted them to the Alva's

Hospital. After getting the first aid, they were shifted to

the AJ hospital, Mangaluru by 11 pm. Then the police

came to the spot and the injured was unable to sign the

complaint, then the police obtained his complaint as per

Ex.P1 and he has affixed his thumb impression. He further

identified the blood stained clothes as per M.O.1 to M.O.3.

He also identified the bag which carried the cash M.O.4

and also identified three swords as per MO.5 to MO.7.

Also deposed after one or two months, the police took him

to the Mangaluru jail for the purpose of identification, then

he has identified the assailants in the jail and he has

identified the accused Nos.1 to 3 in the Court.

PW.2-Poornesh Kunder, who is also an injured eye

witness and accompanied the PW1 in the scooter, at the

time of incident, he also deposed that on the day of

Deepawali after closing the shop, himself and PW1 went in

the scooter in order to handover the sale proceeds to their

owner and at about 9.30 p.m., the Maruthi 800 car

intercepted their scooter, 3 persons assaulted both of them

and snatched away the cash. He also deposes on par with

PW1 and identifies his cloths as well as slipper as per

M.O.8 and M.O.10. He also identified the cash bag as per

M.O.4, the swords as M.O.5 to 7. He further deposes the

police enquired him in the hospital after six months himself

and PW1 went to the jail and identified the assailants in

the jail during the Test Identification Parade. He also

identified the signature on the Ex.P1 and also identified the

accused Nos.1 to 3.

10. P.W.3-Mohammad Isac, Tahzildar, and Taluk

execute Magistrate has deposed that on 11.5.2016 on the

request he has conducted Test Identification Parade to get

identification of the accused by four witnesses.

Accordingly, on 18.6.2016, he visited the jail, the

witnesses also came to the jail, then he has conducted

Test Identification Parade and the witnesses have

identified the 3 accused persons, accused Nos.1 to 3 when

he kept them in different row, in different time.

Accordingly, he prepared the Test Identification Report and

he has identified Ex.P2 and Ex.P3.

11. P.W.4-Santhosh Madivala, he has deposed on

9.11.2015 when he was proceeding in his motorbike along

with P.W.5-Sandeep Madivala in the motorbike bearing

No.KA 20K-7250 on the high way at about 9.00 to 9.30

p.m., the P.W.1 and P.W.2 were found lying with blood, a

two wheeler also lying on the road and on enquiry he came

to know that some unknown persons assaulted them and

snatched the cash bag. Then, they arranged some car on

the way and he sent them to the Alva's hospital,

Moodabidri. On the next day, the police came to the spot,

conducted the spot Mahazar as per Ex.P4. The police

seized the blood stained mud, slippers and he has

identified the same as per MO.10 to MO.13. Thereafter, he

also went to the jail for identifying the accused. However,

he has not properly identified the accused Nos.1 to 3.

However, he has stated that some 3 persons assaulted

P.W.1 and P.W.2 and snatched the bag from the hand, but

he has stated he came to know through P.W.1 and P.W.2.,

but he has not seen the accused persons.

12. PW5/Sandeep Madivala, he also accompanied

the P.W.4 in the motor cycle. He also stated that when

himself and P.W.4 went near the spot the P.W.1 and P.W.2

were found sustained with injuries and he came to know

from P.W.1 and P.W.2 that some person assaulted and

snatched the cash bag. Then they have been sent to the

hospital. He also stated the police prepared the spot

panchanama and seized the material objects as per MO.10

to MO.13. He also identified the photographs taken by the

police. However, he has not supported in respect of

identifying the accused in the jail and witnessing the

incident.

13. P.W.6-Mohammad Sharif, deposed that he is

having grocery shop in Masjid Road Moodabidri. The P.W.1

and P.W.2 are working in the shop and P.W.1 was the

Manager. P.W.2 was assistant in the shop and normally

the shops used to be closed by 9 to 9.30 p.m.

Accordingly on 9.11.2015 also, he was in the shop.

However, later he left the shop by giving instruction to

P.W.1 and P.W.2 to bring the cash after the sales.

Accordingly, he came to know from the P.W.1 and P.W.2

that some persons assaulted them and snatched the cash

bag from P.W.1 and P.W.2. Later, he went to the Alva's

Hospital and saw P.W.1 and P.W.2, who had sustained

injuries and they informed regarding robbery done by the

accused persons. He has identified the bag as per MO.4

and photos as per Ex.P6.

14. PW7/Rakshith Karkera, deposed that on

11.11.2015 he was called by police as pancha for seizure

of blood stained cloths. The police seized cloths and other

articles as per Ex.P8 and he has identified the MOs.1 to 3,

8 and 9 he has identified the same. Further deposes after

6 months i.e., on 1.5.2016 again police summoned him

and shown some of the accused persons also the accused

persons produced the Mandakatthi, sword and bag. The

same were seized under the panchanama as per Ex.P4.

This witness has identified the bag, Mandakathi as per

MO.4 to MO.7. He also deposes those persons also

produced the cloths which were seized by the police under

panchanama and has identified the MOs.14 to 19. He has

identified the said panchanama as per Ex.P9. He has also

identified the accused persons in the court and the photos

marked as per Ex.P10.

15. PW8-Walter Robo, another panch witness for

seizure of the car. He said to be the owner of the car KA-

19-M-9613 and he has deposed that on 8.11.2015

somebody stolen his car, when it was nearby his house

and he has given complaint. However, later he has got

released the car. Thereafter on 18.6.2016 police requested

him to produce the car once again. The Moodabidri police

taken his car and seized under panchanama as per Ex.P11.

He has identified the photographs of the car as per Ex.P16.

16. PW9-Dr.Francis N.P.Monteiro deposes that on

9.11.2015 he has examined one Poornesh Kunder with

history of having been assaulted by unknown persons by

using weapons which was brought by one Sunil, his

relative and he was found with 7 injuries. According to his

opinion, injury Nos.5 and 6 are grievous and remaining are

simple in nature. The same can be caused by using sharp

edged weapon. He has issued wound certificate as per

Ex.P12. He further deposes that on 9.11.2015, same day

he also examined one Chandrashekar with same history of

the assault by unknown persons. He also sustained 8

injuries and issued wound certificate as per Ex.P13. As per

his opinion, the injury Nos.1 and 2 are simple in nature

remaining are grievous in nature.

17. P.W.10-Dr.Jnanesh Kamath deposed on

23.6.2016 one Chandrashker and Poornesh were brought

to the hospital for verifying the blood group of these

witnesses and he has verified the blood group of

Chandrashekr as A-ve and Poornesh was B-ve. He has

given the OPD chit as per Exs.14 and 15.

18. P.W.11-Naveen D'Souza deposed that P.W.8

produced a Murthi Car and the same was seized under the

panchanama as per Ex.P11 he has taken photographs as

per ex.p16.

19. P.W.12-Aithappa, the then ASI of Moodabidri

deposed that on 9.11.2015, when he was in the police

station at 9.30 p.m., he came to know two persons

admitted in the Alva's Hospital, Moodabidri, due to assault

and robbery. He has visited the hospital at 00.05 a.m.

midnight. The injured were taking treatment, he has

recorded the statement of the P.W.1 as per Ex.P1 and

handed out to the SHO.

20 P.W.13/Prakash Devadiga, Police Inspector who

deposes when he was working as PSI, he took up the

investigation in Crime No.59/2016 and while patrolling at

1.00 a.m., he has stopped one motor cyclist and on

verification, he came to know that person brought the bike

by stealing. Then same was seized and recorded the

voluntary statement and on interrogation he has stated in

the voluntary statement that he is involved in the present

criminal case. Then that person has been arrested in

Crime No.59/2016.

21. P.W.14-Dejappa, PSI deposes the P.W.8

produced the car on 18.,6.2016. He seized the same

under the panchanama as per Ex.P11 and Ex.P16 is the

photographs.

22. P.W.15-Dr.Geethalakshmi P., Sr.Scientific

Officer, R.F.S.L., who deposes that she received the

sealed bundles and chemically examined and given report.

According to her, the blood stains in the articles were

belonging to A and B groups and she has given her

evidence as per Exs.17 and 18.

23. P.W.16-Anantha Padmanabh, police inspector he

has investigated the matter and filed charge sheet.

24. On perusal of the entire evidence on record,

which reveals, the P.W.6 was running the grocery shop

and the P.W.1 and P.W.2 are Manager and worker in his

shop respectively. That on 09.11.2015 after closing the

shop the P.W.1 and P.W.2 carried the cash of

Rs.4,50,000/- in a bag and when they were proceeding on

the high way at about 9.30 p.m., a Maruthi 800 Car, came

and intercepted the scooter and 3 persons got down along

with the weapons and assaulted P.W.1 and P.W.2. It is

further stated, that they snatched the cash bag from the

hands, they fled away in the car. One person was sitting in

the car, in the driver seat by kept the car ready to move,

so as to escape. Accordingly these 3 persons boarded the

vehicle and fled away. The P.W.1 and P.W.2 were shifted

to Alva's Hospital by the P.W.4 and P.W.5 who came in

their motorbike behind the P.W.1 and P.W.2.

Subsequently, the P.W.1 and P.W.2 took the first aid

treatment in the Alva's Hospital at Moodabidre. The

injuries were serious in nature, they have been shifted to

AJ Hospital, Mangaluru. The P.W.1. gave statement before

the police as per Ex.P1. The evidence of P.W.1 and P.W.2

stated above corroborates clearly about the incident and

snatching the cash bag from the hands of P.W.1. Though

the P.W.4 and P.W.5 trying to project as eye witness, but

they have stated they came to the spot at that time, P.W.1

and P.W.2 were fell down by sustaining injuries, then they

came to know from P.W.1 and P.W.2 about the incident.

Later, they shifted the injured to the hospital. The

evidence of P.W.4 and P.W.5 also corroborates in respect

of the incident, when they reached the spot after the

completion of the incident. Both of them deposed that

when they came to the spot, by that time the incident was

already over. During the cross examination, the learned

counsel for the accused trying to elicit that the P.W.1 and

P.W.2 were not able to see the accused persons as it was

night hours etc., But the P.W.1 and P.W.2 categorically

stated the accused persons came and assaulted and

snatched the cash bag. The Ex.P1 and evidence of P.W.1

and P.W.2 corroborates with each other. The evidence of

P.W.1 and P.W.2 also corroborates with P.W.16-the police

inspector who sent the P.W.14 to the hospital for recording

the statement of the injured. The P.W.12-who was ASI,

had visited the hospital and recorded the statement at

00.05 a.m. till 00.50 a.m., as per Ex.P1 and handed over

to the P.W.16. In turn the P.W.16 registered the FIR in

Crime No.515/2015 for the offence punishable under

Section 397 and 341 of IPC. He issued FIR as per Ex.P19.

Evidence of these witnesses cleary corroborates in respect

of incident occurred on 9.11.2015 at 9.30 pm.

25. The P.W.1 and P.W.2 further deposes that after

taking treatment in the hospital, the police also prepared

the spot panchanama and they seized his blood stained

clothes, and he has handed over the same. He further

identifies the M.O.1 to M.O.3 are the clothes, M.O.4 is a

rexin bag, in which cash was carried and also identified the

M.O.5 to M.O.7 as the swords used by the accused

persons. They also further deposed, the policed called

them to the jail for the purpose of identification of the

accused. The P.W.1 and P.W.2 deposed they identified the

accused persons from accused Nos.1 to 3 in the jail. The

P.W.3 Tahzildar and Executive Magistrate also deposed

that he has conducted the Test Identification Parade in the

jail and the witnesses have identified the accused persons.

Though the counsel for the accused has disputed the

identity of the accused persons by the witnesses on the

ground, the accused persons were made to stand, wearing

the same clothes etc., but these witnesses categorically

stated and identified the accused persons. Though P.W.4

and P.W.5 were projected as eye witnesses but they are

only a circumstantial witnesses and they came to the spot

immediately after the incident. Therefore, the contention

of the learned counsel for the appellant cannot be

acceptable that the PW.3 scuffled those 7 persons, other

than the accused persons. Even in the evidence of P.W.1

and P.W.2 they were trying to project that the accused

No.3 used to come to the shop for purchase but the same

was denied by the P.W.1 and P.W.2. Therefore, the

evidence of P.W.1 and P.W.2 also corroborated with the

evidence of Taluk Executive Magistrate as they identified

the accused Nos.1 to 3 in the court, after identifying them

in the prison. Thereby, the prosecution established the

identity of the accused from the evidence of P.W.1 and

P.W.2. The evidence of P.W.6 who is the owner of the

shop where P.W.1 and P.W.2 were working, he also given

evidence on par with the P.W.1 and P.W.2. However he

came to know, the incident from P.W.1 and P.W.2. He met

the injured in the hospital, he also identified the cash bag

in which the cash was carried by the P.W.1 and P.W.2.

26. The prosecution also relied upon another

circumstances to connect the accused with the crime that

the blood stained cloth of the accused as well as victim,

which were seized by the police, as per the evidence of the

P.W.10-Dr.Jnanesh Kamath who examined the blood group

and given evidence before the court. As per evidence of

P.W.7, the clothes as per M.O.1 to M.O3, slippers were all

seized under panchanama as per Ex.P8 and again on

1.5.2016, the police summoned him for acting as a pancha

for recovery. Accordingly, the accused persons were

produced and seized material objects as per M.Os.4 & 5 to,

7. The Mandakathi swords and seized the same by the

police along with a bag. He also stated the accused Satish

also took the witness as well as police to the house and

produced the clothes which were seized by the police and

he has identified the same as per M.O.14 to M.O.19 under

the panchanama as per Ex.P9 and he also identified Ex.P10

photographs, he also identified the accused persons in the

court, where the accused were produced through video

conference during the cross examination and nothing has

been elicited to disbelieve the evidence of this witness and

the PW.15-Sr.Scientific officer Geetha lakshmi also

deposed she has verified the clothes, although blood stains

found were of A-ve and B-ve and issued as per Exs.P17

and 18. Nothing is elicited to disbelieve evidence of this

witness. The blood stained cloth seized from the accused

and blood stains found in the cloth of the victim and blood

group of P.Ws.1 and 2 were all pertaining to the same

blood group, clearly reveals the accused persons were

involved in the commission of the crime. Thereby the

prosecution established that the accused committed the

offence.

27. The evidence of the P.W.9-Dr.Francis

N.P.Monterio who examined P.W.1 and P.W.2 given the

evidence and issued certificate at Ex.P12 and 13 which

clearly reveals, at the time of incident, the accused

persons assaulted P.W.1 and P.W.2 with sword and caused

both grievous and simple injuries. The investigation officer

investigated the matter, whose evidence corroborate with

the injured, the doctor and panch witness, apart from

Sr.Scientific officer. Hence, from the evidence of all the

witnesses, the prosecution establishes the fact that on

9.11.2015 at 9.30 p.m., these accused Nos.1 to 3 have

committed the robbery and also by snatching the cash and

assaulting the P.W.1 and P.W.2 with deadly weapons by

intercepting the motor cycle by using the car which was

stolen from the P.W.8. Thereby, the prosecution proves

that the accused were involved in commission of offence

punishable sections 341, 392, 397 of IPC. the Trial Court

after considering the evidence on record, appreciated the

evidence and rightly came to the conclusion, the accused

have committed the offence and the accused No.4 who is

absconding and the case against him was split up.

28. As regards to the sentence passed by the Trial

Court in respect of section 392 of IPC sentenced to

undergo rigorous imprisonment for 10 years and 397 of

IPC rigorous imprisonment for 8 years. Though the

provisions of section 392 of IPC provides if any offence

committed is punishable with rigorous imprisonment may

extended to 10 years and if it is high way robbery during

night hours, it may be extended to 14 years. But no

minimum sentence has been prescribed like provisions of

section 397 of IPC where it provides minimum sentence of

rigorous imprisonment for 7 years. The appellants are in

jail from the date of arrest on 09.05.2016 already, in

custody during the trial and subsequent to the judgment

almost more than 7 years 4 months. Therefore, this court

is of the opinion if the sentence passed by the Trial Court

is reduced to already undergone period, that will meet the

ends of justice.

Accordingly, I proceed to pass the following;

All the Criminal Appeal Nos.939/2020, 8/2021 and

47/2021 are allowed-in-part.

The judgment of conviction for the offence

punishable under Sections 341, 392 and 397 of IPC is

hereby confirmed.

However, the sentence passed by the Trial Court is

reduced as under;

The appellant Nos.1 to 3 sentence to undergo

rigorous imprisonment for 7 years and pay fine of

Rs.12000/- and in default he shall undergo further

imprisonment for 6 months for the offence punishable

under Section 392 of read with 34 of IPC .

The appellants shall undergo rigorous imprisonment

for 7 years for the offence punishable under Section 397

read with 34 of IPC.

The appellants also to pay fine of Rs.500/- each for

the offence punishable under Section 341 of IPC, in default

of payment of fine they shall undergo 7 days of simple

imprisonment.

If any fine amount is collected Rs.15000/- each shall

be payable to the P.W.1 and P.W.2 as compensation and

the remaining amount shall be deposited to the State

exchequer.

All the sentences are ordered to run concurrently.

The appellants are entitle for set off under Section

428 of Cr.P.C.

The appellants shall be set at liberty forthwith, if

they have already undergone the punishment of 7 years

and if the entire fine amount is paid and they shall be

released forthwith if they are not required in any other

case.

Sd/-

JUDGE AKV