Karnataka High Court

Manikanta @ Mani vs State By Channarayapatna Town Police on 25 January, 2025

Author: V Srishananda

Bench: V Srishananda

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                                             CRL.A No. 2079 of 2023




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

               DATED THIS THE 25TH DAY OF JANUARY, 2025

                                   BEFORE
                   THE HON'BLE MR JUSTICE V SRISHANANDA
                   CRIMINAL APPEAL NO. 2079 OF 2023 (C)
            BETWEEN:

               MANIKANTA @ MANI
               S/O KUMARA
               AGED ABOUT 20 YEARS
               R/O NEW ROAD, NEW ESWARA TEMPLE
               CHANNANAKOPPALU
               KIKKERI TOWN, K.R.PETE TALUK
               MANDYA - 577 133
                                                         ...APPELLANT
            (BY SRI. VIKYATH B, ADVOCATE)

            AND:

                STATE BY CHANNARAYAPATNA TOWN POLICE
                HASSAN, REP BY SPP
Digitally       HIGH COURT OF KARNATAKA
signed by       BANGALORE - 01
MALATESH                                           ...RESPONDENT
KC
            (BY SRI. CHANNAPPA ERAPPA, HCGP)
Location:
HIGH
COURT OF         THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C
KARNATAKA   PRAYING TO SET ASIDE THE JUDGMENT CONVICTION DATED
            17.04.2023 AND SENTENCE DATED 19.04.2023, PASSED BY
            THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AT
            CHANNARAYAPATNA, IN S.C.No.96/2021.

                THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
            JUDGMENT WAS DELIVERED THEREIN AS UNDER:

            CORAM:    HON'BLE MR JUSTICE V SRISHANANDA
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                                                  NC: 2025:KHC:3623
                                             CRL.A No. 2079 of 2023




                      ORAL JUDGMENT

Heard Sri Vikyath B., learned counsel for the appellant

and Sri Channappa Erappa, learned High Court Government

Pleader for the respondent.

2. Appeal is filed by the accused who has been

convicted for the offence punishable under Section 397 IPC in

S.C.No.96/2021, on the file of IV Additional District and

Sessions Judge, Hassan, sitting at Channarayapatna, by

judgment dated 17.04.2023.

3. Facts in brief which are utmost necessary for

disposal of the present appeal are as under:

On 27.01.2021 at about 7.30 a.m., Sri Kumar S.K.,

lodged a written complaint with Channarayapatna police station

based on which a criminal case came to be registered by

Channarayapatna town police station for the offence punishable

under Section 392 IPC.

4. Complaint averments reveal that the complainant

has been doing supervising work in a newly constructed

building under Akkibabanna at Mysoru road in front of Nagesh

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Hospital at Channarayapatna. He used to sleep in the said

building along with the workers in the night hours.

5. It is further contended that on 26.01.2021 as usual

himself, masons Babu Sheik and Muneer Sheik were sleeping in

the said building. At about 5.30 a.m., on 27.01.2021, an

unknown person entered inside the building and put them

under knife point, threatened them with dire consequences and

demanded the valuables to be parted away from them.

6. On account of fear of life threat, complainant parted

away sum of Rs.500/- which was in his custody. The said

unknown person snatched two mobile phones from Babu Sheik

and Muneer Sheik and escaped away from the spot.

7. After receiving such written complaint, Town Police,

Channarayapatna having registered the case in Cr.No.26/2021

initially for the offence punishable under Section 392 IPC,

continued with the investigation and ultimately filed the charge

sheet for the offence punishable under Section 397 IPC, inter

alia arrested the accused.

8. On receipt of charge sheet, learned trial Magistrate

committed the matter to the Sessions Court.

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9. Presence of the accused secured before the

Sessions Court and after compliance of Section 207 Cr.P.C.,

charges were framed. Accused pleaded not guilty. Therefore,

trial was held.

10. In order to bring home the guilt of the accused,

prosecution examined eleven witnesses as P.Ws.1 to 11,

comprising of complainant, mahazar witnesses, police

witnesses. Nine documentary evidence were placed on record,

which were exhibited and marked as Exs.P.1 to P.9, comprising

of seizure mahazar, spot mahazar, complaint, FIR, report and

admissible portions of the contradiction in the statements of

P.Ws.10 and 11. Voluntary statement given by the accused

Ex.P.7, where under M.Os.1 to 4 came to be recovered.

11. On conclusion of recording of evidence, learned

Trial Judge recorded the accused statement as is contemplated

under Section 313 Cr.P.C., wherein the accused has denied all

the incriminatory materials and did not choose to place any

written submissions nor he placed any defence evidence.

12. Thereafter learned Trial Judge heard the parties in

detail and on cumulative consideration of the oral and

documentary evidence on record, convicted the accused for the

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offence punishable under Section 397 IPC and sentenced him to

undergo imprisonment for seven years.

13. Being aggrieved by the same, accused has

preferred the present appeal.

14. Sri Vikyath B., learned counsel for the appellant

reiterating the grounds urged in the appeal memorandum

vehemently contended that the impugned judgment is suffering

from serious legal infirmities and therefore, it is to be termed

as perverse and sought for setting aside the same and acquit

the appellant.

15. He further contended that the material evidence on

record would not demand conviction of the appellant for the

offence punishable under Section 397 IPC.

16. He further contended that admittedly M.O.1 did not

contain any blood stain. In the case of the prosecution the

appellant actually assaulted the complainant and other two

persons with the knife and therefore, all the ingredients to

attract the offence punishable under Section 397 IPC is not

established by the prosecution by placing cogent and

convincing evidence on record and sought for setting aside the

impugned judgment.

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17. Learned counsel for the appellant also contended

that in the event this Court upholding the order of conviction,

sentence may be reduced by directing the custody period

already undergone by the appellant and sought for allowing the

appeal.

18. Per contra, Sri Channappa Erappa, learned High

Court Government Pleader supports the impugned judgment by

contending that admittedly, complainant and two his masons

were sleeping in the under construction building. Complainant

being the supervisor had slept in the said building along with

two of the masons in the night on 26.01.2021. At about 5.30

a.m., on 27.01.2021, all of a sudden an unknown person came

and threatened the complainant and two others under the knife

point and snatched away Rs.500/- cash and two mobile

telephone handsets belonging to two masons who had also

slept along with the complainant in the under construction

building and ran away from the spot. Complainant had

identified the accused before the Court so also Rs.500/- cash

and material objects namely mobile telephones.

19. All these facts have been considered by the learned

Sessions Judge in a cumulative manner and noting the absence

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of any explanation offered by the accused/appellant, convicted

the accused/appellant for the offence punishable under Section

397 IPC, which is justified and sought for dismissal of the

appeal.

20. He further pointed out that in the absence of

previous enmity or animosity, why would the complainant

falsely implicated the appellant in the incident, is a question

that remains unanswered on behalf of the appellant and thus,

sought for dismissal of the appeal.

21. He also pointed out that if the appellant is shown

any mercy as is contended by the counsel for appellant, the

appellant would further indulge in similar activities and leniency

shown to such people would result in encouraging the crime,

besides sending the wrong signal to the society and thus,

sought for dismissal of the appeal in toto.

22. Having heard the arguments of both sides, following

points would arise for consideration:

1. Whether the material on record is sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 397 IPC?

2. Whether the appellant would makes out a case that the impugned judgment is

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suffering from legal infirmity and perversity and thus calls for interference?

3. Whether the sentence is excessive?

4. What order?

23. Regarding point Nos.1 and 2 : In the case on

hand, admittedly appellant was a stranger to the complainant.

Material on record depicts that the complainant was discharging

the work of supervisor in a under construction building under

Akkibabanna and the building was situated in Mysure Road in

front of Nagesha Hospital at Channarayapatna. As a part of his

job, complainant used to sleep in the night hours in the under

construction building itself along with the masons namely, Babu

Sheik and Muneer Sheik.

24. He has deposed before the Court with graphic

details about the contents of the complaint and reiterated that

the accused who entered at about 5.30 a.m., on 27.01.2021 in

the place and under the knife point demanded the valuables to

be parted away from the complainant and two masons.

Complainant under the fear, handed over sum of Rs.500/- cash

with him and accused snatched away two mobile hand sets of

the masons.

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25. Detail cross-examination of complainant, mahazar

witnesses and the mason - Muneer Sheik, did not yield any

positive material so as to disbelieve the case of the

prosecution.

26. Admittedly, accused was apprehended after the

incident by the police and report marked at Ex.P.6 would depict

that accused has been captured by the police personnel while

investigation was under progress. After the arrest, accused

was enquired by the Investigating Officer. Under such enquiry,

accused/appellant said to have given voluntary information and

based on said voluntary information, Investigating Officer has

recovered M.Os.1 to 4 in the presence of pancha witnesses.

27. Pancha witnesses have supported the case of the

prosecution so also the Investigating Officer insofar as recovery

of M.Os.1 to 4 is concerned, pursuant to Ex.P.7 which is the

admissible portion of voluntary statement of appellant/accused.

28. Taking note of these aspects of the matter it is

crystal clear that the prosecution has established that the

accused high handedly under the knife point snatched away

M.Os.2 to 4 from the custody of complainant and his

companions on 27.01.2021 at about 5.30 a.m.

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29. As rightly contended by the prosecution, since the

accused is stranger to the complainant, in the absence of any

previous enmity or animosity, why would complainant falsely

implicate the appellant in the incident is a question that

remains unanswered on behalf of the accused. The said stand

taken by the prosecution gets fortified in complainant lodging

the complaint in the Town Police Station, Channarayapatna that

the unknown person came and snatched away the valuables

from the custody of the complainant and his companions.

30. After the accused has been apprehended, mobile

telephones which were seized by investigation officer pursuant

to voluntary information given by accused have been identified

and so also the appellant has been identified by the

complainant before the Court.

31. All these aspects of the matter when viewed

cumulatively, this Court is of the considered opinion that

ingredients to attract the offence under Section 397 IPC is

established by the prosecution by placing cogent evidence on

record, though initially the offence came to be registered under

Section 392 IPC.

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32. In order to attract the offence under Section 397

IPC, use of deadly weapon is required to be established by the

prosecution and not the injury in every case. If the deadly

weapon is used and a fear is instilled in the mind of the persons

automatically offence under Section 397 IPC gets attracted and

there need not be injury caused by such deadly weapon in each

and every case.

33. Taking note of these aspects of the matter, the

learned Sessions Judge was of the considered opinion that the

offence against the accused stands established under Section

397 IPC.

34. But, in the case on hand, the learned Sessions

Judge has framed the charge only for the offence punishable

under Section 397 IPC which is incorrect. However, since the

offence under Section 392 merges with the offence under

Section 397 IPC, the framing of charge under Section 397 IPC

cannot be faulted.

35. Division Bench of this Court in the case of

Dayasagar @ Sumith vs. State of Karnataka, in

Crl.A.No.2179 of 2017 has clearly ruled out that charge

under Section 397 IPC alone would not be permissible in the

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absence of charge under Section 392 or 395 IPC. While so

holding, this Court considered judgment of the Hon'ble apex

Court in the case of State of Uttarpradesh vs. Iliyaz,

reported in (2009) 1 SCC 365.

36. However, since the FIR came to be filed by the

police at the first instance for the offence punishable under

Section 392 IPC, mere fact that the charge was framed under

Section 397 IPC by the learned Sessions Judge should not be

ipso facto result in acquittal of the appellant.

37. At the most, if the charge is defective and if it is

detrimental to the interest of the appellant, the only remedy for

this Court is to set aside the order of conviction and direct the

Trial Court to frame appropriate charges and direct de novo

trial.

38. Sri Vikyath B., at this juncture submits that since

the accused has already spent more than two years seven days

and twenty days in the prison before the trial and after his

conviction, such an exercise would result in futile exercise and

therefore, submitted that the improper framing of the charge

would not be result in de novo trial.

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39. Taking note of the said submission, on re-

appreciation of the material evidence on record, this Court is of

the considered opinion that since the ingredients are made out

from the material evidence on record to attract the offence

under Section 397 IPC, this Court is of the considered opinion

that the matter needs no de novo trial.

40. Material evidence in the form of oral testimony of

complainant, recovery of material objects M.Os.1 to 4, pursuant

to the voluntary statement - Ex.P.7 is sufficient enough to hold

that finding of the guilt of the accused/appellant recorded by

the learned Trial Judge in the impugned judgment is based on

sound and logical reason and requires no interference.

41. In view of the foregoing discussion, point No.1 is

answered in the affirmative and point No.2 in the negative.

42. Regarding point No.3: Sri Vikyath B., contended

that there is no criminal antecedent of the accused/appellant

and therefore, sought for release of the appellant by directing

the custody period already under gone by him. Same is

opposed on behalf of the prosecution.

43. Admittedly, since the knife is used in the incident

and all the ingredients to attract under Section 397 IPC is

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established and punishment of seven years is ordered by the

learned Trial Judge. But, there was no charge framed under

Section 392 IPC and directly convicted the offence punishable

under Section 397 IPC, this Court is of the considered opinion

that sentence needs to be reduced to five years instead of

ordering for de novo trial.

44. Accordingly, point No.3 is answered partly in the

affirmative.

45. Regarding Point No.4: In view of findings on

point Nos.1 to 3, this Court proceed to pass the following:

ORDER

(i) Criminal appeal is allowed in part.

(ii) While maintaining the conviction of the

appellant, even though the charge was defective

on account of the submission made by the

learned counsel for the appellant, conviction

under Section 397 IPC is to be maintained.

(iii) Though minimum punishment for the offence

punishable under Section 397 IPC is seven

years, taking note of the fact that the concession

has been given by the counsel for appellant in