Karnataka High Court
Mohammed Arif vs State Of Karnataka on 29 October, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:43522
CRL.A No. 389 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 389 OF 2012
BETWEEN:
MOHAMMED ARIF
S/O ABDUL MALIK
AGED ABOUT 26 YEARS
RESIDING AT No.2
NEAR HUSSAININA MAZJID
MODI ROAD, D J HALLI
BANGALORE - 560 045.
Digitally signed by ...APPELLANT
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH
COURT OF (BY SRI A S KULKARNI, ADVOCATE)
KARNATAKA
AND:
STATE OF KARNATAKA
BY SHIVAJINAGAR POLICE STATION
BANGALORE.
...RESPONDENT
(BY SRI B LAKSHMAN, HCGP)
THIS CRL.A. IS FILED UDER SECTION 374(2) Cr.P.C
PRAYING TO SET ASIDE THE JUDGMENT DATED:29.02.2012
PASSED BY THE P.O. FTC-VI, BANGALORE IN
S.C.No.1049/2011-CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTION 392 OF IPC
AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
-2-
NC: 2024:KHC:43522
CRL.A No. 389 of 2012
ORAL JUDGMENT
1. This appeal is filed by accused No.2 praying to
set-aside the judgment of conviction and order on
sentence dated 29.02.2012 passed in S.C.No.1049/2011.
The appellant - accused No.2 and accused No.1 have been
convicted for the offence under Section 392 of the Indian
Penal Code, 1860 (for short hereinafter referred to as
"IPC") and sentenced to under rigorous imprisonment for
a period of three years and to pay fine of Rs.5,000/- and
in default, to undergo simple imprisonment for a period of
three months.
2. The factual matrix of the prosecution case are as
under;
(i) On the intervening night of 18th / 19th October,
2009, at about 1.45 am., while PWs.1 and 2 were smoking
near a scrap shop in front of Stephen Square Merchants
Association and behind Royal Restaurant, Broad-way road,
Shivajinagar, Bengaluru City, accused Nos.1 and 2 by
showing the knife, committed extortion and snatched cash
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of Rs.1,200/- and one Sony Erricson R-305 mobile, one
Titan Fast Track belt watch and Canara Bank debit card
and Carbon K-447 mobile, by putting them under instant
fear of death. Charge came to be framed against the
appellant - accused No.2 and also accused No.1 for the
offence under Section 392 r/w Section 397 of IPC.
(ii) In order to prove the charge, the prosecution has
examined seven witnesses as PWs.1 to 7 and got marked
the documents as Exs.P1 to P15 and material objects as
MOs.1 and 2. The statement of the accused persons came
to be recorded under Section 313 of Cr.P.C. The Trial
Court after hearing the arguments has formulated the
points for consideration and passed the judgment of
conviction and order on sentence, which is impugned
herein.
3. Heard learned counsel for the appellant - accused
No.2 and learned High Court Government Pleader for the
respondent - State.
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4. Learned counsel for the appellant - accused No.2
would contend that;
(i) The F.I.R came to be registered against two
unknown persons and the appellant - accused No.2 and
accused No.1 came to be secured under suspicion. The
appellant - accused No.2 and another accused have been
shown to PWs.1 and 2 in the police station. The Test
Identification Parade has not been conducted. The
evidence on record is not sufficient to convict the appellant
- accused No.2 and another accused for the offence under
Section 392 of IPC.
(ii) He further submits that, even if the Court comes
to the conclusion that the appellant - accused No.2 has
committed the offence, the benefit of the Probation of
Offenders Act, 1958 may kindly be extended to the
appellant - accused No.2. With this, he prayed to allow
the appeal.
5. Per contra, learned High Court Government Pleader
for the respondent - State would contend that;
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(i) PWs.1 and 2 who are the victims have identified
accused Nos.1 and 2 when they were shown to them in
the police station. They also identified the articles seized
from possession of the accused persons. PWs.1 and 2
have also identified the appellant - accused No.2 and
another accused in the Court at the time of recording the
evidence.
(ii) Considering the evidence on record, the Trial
Court has rightly convicted the appellant - accused No.2
and another accused for the offence under Section 392 of
IPC. He supports the reasons assigned by the Trial Court.
With this, he prayed to dismiss the appeal.
6. Having heard the learned counsels, the following
point would arise for my consideration;
"Whether the Trial Court has erred in
convicting the appellant - accused No.2 for
the offence under Section 392 of IPC?"
7. My answer to the above point is in the negative for
the following reasons;
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The incident had taken place during the intervening
night of 18th / 19th October, 2009 at about 1.45 am. Two
accused persons showing the knife to PWs.1 and 2 have
extorted cash of Rs.1,200/-, two mobile phones, watch
and debit card. Accused Nos.1 and 2 have been secured
by PW4 and other police staff on 21.10.2009 and they
were brought to the police station. PW5 - the
Investigating Officer has conducted personal search of
accused Nos.1 and 2 in the presence of Panchas and found
the knife (MO.1) with accused No.1 and cash of Rs.1,400/-
with accused No.2 and they were seized under mahazar -
Ex.P8. PW3 is one of the Pancha to Ex.P8 - seizure
mahazar. PW3 has deposed regarding seizure of knife,
cash of Rs.1,400/- from the accused persons and
preparing the mahazar as per Ex.P8 and identified the
knife at MO.1.
8. PWs.1 and 2 have been secured to police station and
accused Nos.1 and 2 were shown to them and they
identified them as the persons who robbed cash, mobiles
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etc., from them. PWs.1 and 2 not only identified the
accused persons in the police station, they have also
identified them in the Court at the time of giving evidence.
Learned counsel for the appellant - accused No.2 would
contend that as the F.I.R came to be registered against
two unknown persons, the Investigating Officer ought to
have conducted the Test Identification Parade. It is not
mandate to conduct the Test Identification Parade. PWs.1
and 2 have identified the accused persons when they were
shown to them in the police station. More so, PWs.1 and 2
have also identified the accused persons in the Court at
the time of giving the evidence.
9. PW5 - Investigating Officer has recorded the
voluntary statement of the accused persons. Accused
No.2 in his voluntary statement has stated that he has
kept the mobile phones in his house which were robbed
and he will produce the same. The said portion of his
statement is at Ex.P13. PW5 along with the Panchas and
accused No.2 who is the appellant herein went in the
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police jeep and accused No.2 took them to his house and
produced two mobiles kept in his house and they were
seized under mahazar - Ex.P11 in the presence of PW7
and another Pancha. PW7 has deposed regarding accused
No.2 taking him, another Pancha and the police to his
house and producing two mobile phones and seizure of the
said mobile phones under mahazar at Ex.P11. The
photographs of the said mobile phones are at Exs.P3
and 4. PWs.1 and 2, on seeing the said photographs have
identified the said mobile phones. The said mobile phones
have been returned to PWs.1 and 2 respectively and
therefore, the photographs are marked. The robbed
articles ie., two mobile phones and cash have been
recovered from the accused persons. PWs.1 and 2 have
identified the accused persons and also the knife - MO.1,
mobile phone - MO.2 and the photographs of mobile
phones and cash which is at Ex.P3.
10. Considering the evidence on record, the learned
Sessions Judge has rightly convicted the appellant -
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accused No.2 and another accused for the offence under
Section 392 of IPC.
11. Learned counsel for the appellant - accused No.2 has
prayed for extending the benefit of the Probation of
Offenders Act, 1958 to the appellant - accused No.2.
Since, the offence committed by the appellant - accused
No.2 is robbery by putting PWs.1 and 2 under life threat
by using the knife, the appellant - accused No.2 is not
entitled for the benefit of the Probation of Offenders Act,
1958. In the result, the following;
ORDER
The appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
GH
