Karnataka High Court
Anil And Ors vs The State on 15 February, 2024
Author: Rajendra Badamikar
Bench: Rajendra Badamikar
1 Crl.A.No.200043/2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE RAJENDRA BADAMIKAR
CRIMINAL APPEAL NO.200043 OF 2018 (374)
BETWEEN
1. ANIL S/O BASAPPA ASKI,
AGE: 24 YEARS, OCC: AGRICULTURE,
R/O OTIHAL VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPUR-586101.
2. REVANSIDDA S/O SHEKHAPPA PUJARI,
AGE: 27 YEARS, OCC: AGRICULTURE,
R/O OTIHAL VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPUR-586101.
3. MAHANTESH S/O MALKAPPA WATHAR,
AGE: 24 YEARS, OCC: COOLIE,
R/O OTIHAL VILLAGE, TQ. SINDAGI,
DIST. VIJAYAPUR-586101.
...APPELLANTS
(BY SRI SANJAY A. PATIL, ADVOCATE)
AND
THE STATE OF KARNATAKA THROUGH
POLICE, SINDAGI POLICE STATION,
TQ. SINDAGI, DISTRICT VIJAYAPUR,
REPRESENTED BY ADDL. SPP,
HIGH COURT OF KARNATAKA,
BENCH AT KALABURAGI-585103.
...RESPONDENT
(BY SMT. ANITA M. REDDY, HCGP)
2 Crl.A.No.200043/2018
THIS CRL.A. IS FILED U/S.374 (2) OF CR.P.C PRAYING TO
SET ASIDE THE IMPUGNED JUDGMENT OF CONVICTION AND
SENTENCE DATED: 28.02.2018 PASSED BY THE I ADDITIONAL
SESSIONS JUDGE, VIJAYAPUR IN S.C. NO.22/2014 THEREBY
CONVICTING AND SENTENCING THE APPELLANTS FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 392 R/W 397 OF IPC
AND SENTENCING THEM TO UNDERGO RI OF 7 YEARS AND TO
PAY FINE OF 1 LAKH TO EACH IN DEFAULT TO UNDERGO SI FOR
6 MONTHS. ACQUIT THE APPELLANTS OF ALL CHARGES IN
S.C.NO.22/2014 ON THE I ADDITIONAL SESSIONS JUDGE,
VIJAYPUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 10.01.2024 COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGEMENT
This appeal is filed by the appellants/accused Nos.1 to
3 challenging the judgment of conviction and order of
sentence passed by the I Additional Sessions Judge,
Vijayapuar in Sessions Case No.22/2014 dated 28.02.2018
whereby the learned Sessions Judge has convicted the
appellants herein/accused Nos.1 to 3 for the offence
punishable under Section 392 read with Section 397 of
Indian Penal Code, 1860 by imposing imprisonment for a
period of 7 years with fine of Rs.1,00,000/- each.
2. For the sake of convenience, the parties herein
are referred with the original ranks occupied by them before
the Trial Court.
3. The brief factual matrix leading to the case are as
under:
That on 31.07.2011 at 7-30 p.m. in the jewelry shop of
the complainant, Dayanand Pattar, situated in R.S.No.1118
at Sindagi Town, accused Nos.1 to 4 committed robbery of
gold, silver articles and cash of Rs.15,000/- totally worth of
Rs.2,31,500/- kept in the treasury of the shop of the
complainant. It is also alleged that while committing the
said offence, accused No.4 was armed with country pistol
while accused Nos.1 to 3 were armed with machu, stick and
they covered their faces with handkerchief and posed threat
by firing one round of bullet in the air. It is further case of
the prosecution that while committing the offences, they
have also assaulted by stick on the head of the complainant
resulting in injuries to him. After having committed the
offences, the accused fled from the spot and the complainant
was admitted in the hospital and then, he lodged a complaint
as per Ex.P.1. On the basis of this complaint, the case was
registered in Crime No.164/2011 of Sindagi Police Station for
the offence punishable under Section 394 of IPC. However,
accused Nos.1 to 3 were subsequently arrested in Crime
No.53/2012 by P.W.9 and on interrogation, in the said case,
they have alleged to have confessed the commission of the
offence in this case and lead the police for recovery of stolen
articles. Accordingly, the stolen articles were recovered and
they were identified by the complainant and he obtained
interim custody of the same. Hence, the accused were
implicated in the case. After submission of the charge-sheet,
the learned Magistrate has taken the cognizance of the
offences and issued process. The accused were represented
by their counsel and they were provided with the prosecution
papers. After committal of the matter, the learned Sessions
Judge has framed the charge against the accused for the
offences punishable under Sections 398 of IPC and 25 (1A)
and 27 of the Arms Act and they denied the same. Initially
accused No.4 was absconding and the case against him was
spilt-up, but subsequently, he was secured during the trial
and the said case was also tried with this main matter
simultaneously
4. During the course of evidence, the prosecution
has examined in all 9 witnesses as P.W.1 to P.W.9 and also
placed reliance on 16 documents marked at Exs.P.1 to P.16
and 7 material objects. After conclusion of the evidence of
the prosecution, the statements of the accused under Section
313 of Cr.P.C. is recorded to enable the accused to explain
the incriminating evidence appearing against them in the
case of the prosecution. The case of the accused is of total
denial.
5. Then after hearing the arguments and after
appreciating the oral and documentary evidence, the learned
Sessions Judge has acquitted accused No.4 for the offences
punishable under Section 392 read with Section 397 of IPC
as well as under the provisions of the Indian Arms Act and
the present appellants were also acquitted for the offences
under the provisions of the Indian Arms Act. However, the
appellants/accused Nos.1 to 3 were convicted for the offence
under Section 392 read with Section 397 or IPC and after
hearing on the sentence, they were imposed rigorous
imprisonment for seven years with fine. Being aggrieved by
this judgment of conviction, the appellants are before this
Court by way of this appeal.
6. Heard the arguments advanced by the learned
counsel for the appellants and the learned High Court
Government Pleader for the respondent/State. Perused the
records.
7. The learned counsel for the appellants would
contend that the entire case of the prosecution is based on
the evidence of P.W.2 and P.W.9 as well as P.W.4. He would
contend that no test of identification was held and as such,
the question of identity of the accused itself is not
established. He would also contend that the evidence of
P.W.3 is inconsistent as it varies with timing of recovery and
hence, the evidence is not trustworthy. He would contend
that only on account of their alleged involvement in other
crime, they have been fixed in the instant case and the
learned Sessions Judge has failed to appreciate all these
aspects and in a mechanical way convicted the accused.
Hence, he would seek for allowing the appeal.
8. Per contra, the learned High Court Government
Pleader would support the judgment of conviction and order
of sentence passed by the Sessions Judge. It is submitted
that P.W.1 has identified the material objects i.e., golden and
silver ornaments marked at M.O.1 to M.O.7 and the accused
have never made any claim. He would also assert that the
evidence of P.W.3 coupled with the evidence of P.W.9 clearly
disclose that the material objects were recovered at the
instance of accused Nos.1 to 3 and they were consistent
regarding the accused leading them to their respective places
and producing these material objects. He would contend
that though, there are certain variances regarding time, it is
bound to occur since the evidence was recorded after long
time. Hence, he would contend that minor inconsistencies
itself would disclose that the witnesses are natural witnesses
and there is no animosity between the witnesses so as to
falsely fix the accused. It is further submitted that since the
complainant has not seen the accused, as they were said to
have covered their faces upto nose by handkerchief, holding
test of identification parade was irrelevant and does not have
any impact on the case of the prosecution and recovery itself
establish the involvement of the appellants as they did not
give any explanation regarding possessing these ornaments
belonging to the complainant. He would further assert that
the evidence of the prosecution again corroborated by the
medical evidence regarding injury being caused to the
complainant and hence, it is prayed for dismissal of the
appeal, as the learned Sessions Judge has appreciated oral
and documentary evidence in proper perspective and
imposed reasonable sentence.
9. Having heard the arguments and after perusing
the oral and documentary evidence, now the following point
would arise for my consideration:
"Whether the judgment of conviction and order of
sentence passed by the learned I Additional
Sessions Judge, Vijayapur in Sessions Case
No.22/2014 dated 28.02.2018 is perverse,
arbitrary and erroneous so as to call for any
interference by this Court?"
10. It is the specific case of the prosecution that the
complainant is running jewelry shop in R.S.No.1118 at
Sindagi Town on rent. The allegations were that on
31.07.2011 at 7-30 p.m. when the complainant was
preparing to close the shop, the accused entered the said
shop and assaulted him by stick, threatened him and
committed robbery of gold, silver and cash total worth of
Rs.2,31,500/-. In this regard, a complaint was lodged.
11. The complainant is examined as P.W.1 and in his
evidence, he specifically deposed that he is the owner of
Kalika jewelry shop and further asserted that on 31.07.2011,
robbery was committed in his shop by four persons who had
covered their faces upto nose and in the said process, he was
assaulted by stick. He further deposed that he went to the
police station, lodged a complaint and initially, he was under
shock because of assault on head and robbery. His evidence
further discloses that the police visited his shop and drawn
mahazar as per Ex.P.2.
12. His evidence is again corroborated by the
evidence of P.W.2 to show that the spot mahazar as per
Ex.P.2 was conducted in his presence. Both P.W.1 and P.W.2
were cross-examined at length, but nothing was elicited.
However, the evidence of P.W.1 discloses that he has not
identified the accused and the police have reported that the
accused have committed offence. But his complaint
allegations and the evidence disclose that they had covered
their faces upto nose by handkerchief and as such, the
question of identification does not arise at all. The main
contention of the learned counsel for the appellants is non-
holding of identification parade. But however, when the
complainant is not in a position to identify the accused due to
coverage of their faces, the identification parade loses it
important and hence, non-holding of identification parade
does not have any relevancy.
13. P.W.4 Dr. Anil Hugar has deposed regarding the
complainant being brought to his hospital in Sindagi on
31.07.2011 and he sustained injuries on right side of his
head and he has provided first aid and referred him to the
Government hospital and he issued certificate as per Ex.P.5.
14. P.W.5 has deposed regarding the complainant
lodging a complaint and he registering the complaint as per
Ex.P.1 and issuing FIR as per Ex.P.6 by registering the case
in Crime No.164/2011. P.W.7 has deposed regarding
conducting of further investigation and visiting the shop and
in the presence of P.W.2 and C.W.2. drawn a mahazar as per
Ex.P.2.
15. The evidence of these witnesses does establish
that the robbery was committed in the shop of the
complainant. Admittedly, accused were arrested in a
different crime. The evidence of P.W.3 and 6 to 9 become
relevant in this case.
16. P.W.9 deposed that on 04.03.2012 at Sindagi-
Byakod bye-pass road at 4-15 a.m. apprehended accused
Nos.1 to 3 along with vehicles and other things. P.W.9 is the
investigating officer and his evidence clearly discloses that
after apprehending the accused, he recorded voluntary
statement as per Exs.P.14 to P.16 and he along with his staff
and mahazar witnesses recovered MO.1 to MO.7. His
evidence clearly discloses that first accused No.1 lead them
to his house and produced MO.1 to MO.3 and then accused
No.3 took them to the place wherein he has concealed MO.4
and MO.5 and then, accused No.2 laid them to the place
wherein he has concealed MO.6 and MO.7. P.W.9 specifically
deposed regarding recovery at the instance of accused Nos.1
to 3.
17. Further the evidence of P.W.9 is corroborated by
mahazar witness P.W.3 who has specifically deposed that he
about 5-6 years earlier he and C.W.5 summoned to police
station and the accused lead them to their village and
production of MO.1 to MO.7 and drawing seizure mahazar in
this regard as per Ex.P.4. Further, these seized material
objects were identified by P.W.1 and they were given to the
custody of the complainant. It is interesting to note here that
the accused have not objected for granting the interim
custody to the complainant and not made any claim for these
seized properties. No animosity is forthcoming between
accused and P.W.1 so as to falsely implicate them. No doubt
there are certain variances in the evidence regarding times,
since the witnesses are giving evidence after long lapse of
times, these variances are bound to occur and that itself
discloses that their evidence is natural. The evidence of
P.W.3 and 9 clearly establish that MO.1 to MO.3 were
recovered at the instance of accused No.1 from his house
while MO.4 and MO.5 were recovered at the instance of
accused No.3 from his house and MO.6 and MO.7 were
recovered at the instance of accused No.2 from his house.
Further P.W.3 has also identified the accused as well as
recovered material objects. He had no animosity against the
accused to give false evidence or falsely implicate them. As
observed above, there are certain variances regarding
timings, but that itself is not a ground to discard their
evidence. The entire case is based on the circumstantial
evidence regarding recovery and the chain of circumstance
are established as the accused were arrested in different
crime and on the basis of their confessional statements,
MO.1 to MO.7 pertaining to this case were recovered.
18. The recovery from the custody of the accused at
their instance was established by the prosecution. Under
such event, it is for the accused to explain as to under what
circumstances, they came in possession of these properties.
They neither claimed that the properties belong to them nor
given any explanation for possessing these properties. There
is no reason for discarding the evidence of P.W.3 and 9 and
the evidence of P.W.1 clearly establish that MO.1 to MO.7
belong to the complainant.
19. The learned Sessions Judge considered the fact
that there is no incriminating evidence as against accused
No.4, acquitted him and further acquitted the
accused/appellants for the offences under the provisions of
Arms Act. That clearly discloses that the learned Sessions
Judge has applied his mind and he has analyzed oral and
documentary evidence in detail. No illegality or perversity is
found in the judgment of conviction passed by the learned
Sessions Judge. He has considered all the citations relied by
the learned counsel for the accused and considered their
impact. Further considering the nature and gravity of the
offences and the manner in which the offence was
committed, the learned Sessions Judge has also imposed a
reasonable sentence and at no stretch of imagination, the
sentence can be stated to be erroneous or illegal. The
manner in which the offence is committed and in the said
process, the injury is being caused, the accused/appellants
do not deserve any leniency. Under such circumstance,
considering all these facts and circumstances, I am
constrained to answer the point under consideration in the
Negative. As such, the appeal being devoid of any merits,
does not survive for consideration and needs to be
dismissed. Accordingly, I proceed to pass the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RSP
