(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
learned High Court Government Pleader for the parties.
2. Accused No.2 who suffered an order of
Sessions Judge, Karwar, is the revision petitioner.
3. Facts in the nutshell which are utmost
3.1. Accused No.1 and Santosh (accused No.2) were
charge sheeted for the offence punishable under Section
394 of IPC and Section 98 of the Karnataka Police Act.
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Charge sheet came to be filed by Yellapur police based on
the investigation conducted by them on the complaint
whereunder it was alleged that on 20.10.2010 at about 8.
p.m. near Tilak Chowk, Yellapura Town, accused Nos.1
and 2 with an intention to commit robbery, managed to
efface the chassis number of a motorcycle and put a fake
number plate to show that the registration number of bike
as KA.30.K.2159.
3.2. When they spotted complainant - Jayashree who
was waiting for C.W.2 near the provisions store, accused
No.1 came and purchased a chocolate. In the guise of
purchasing a chocolate, taking advantage of the loneliness
of the complainant he snatched her mangalsutra. While so
snatching, there was an injury caused to the complainant.
Thereafter, with the aid of accused No.2, accused no.1
tried to escape.
3.3. On hearing the alarm raised by the complainant,
C.W.7 chased the accused persons and intercepted them
near Akbargalli cross. At that juncture, accused No.2 with
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an intention to escape away from the clutches of C.W.7,
bitten his left hand. However, he was unsuccessful in
escaping from the spot as other general public gathered
there and were able to capture both the accused persons.
4. Based on the complaint lodged by Jayashree,
Yellapur Police registered the case and accused persons
were taken to the custody. Based on their statement,
snatched managalsutra was recovered from the custody of
accused No.1.
5. After thorough investigation, charge sheet came
to be filed inter alia seizing the motorcycle on which the
accused persons were trying to escape away from the
place of incident and also noted that they have
manipulated the chassis, engine and registration number
of the motorcycle.
6. On receipt of the charge sheet, learned Trial
Judge took cognizance of the offences and framed
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charges. Accused pleaded not guilty and thereafter, trial
was held.
7. Prosecution in order to bring home the guilt of
the accused persons, examined 16 witnesses as P.W.1 to
16 and 15 documentary evidence were placed on record
which were exhibited and marked as Exs.P.1 to 15.
8. Material objects were three in number which
were also marked as MO.1 to 3 consisting of mangalsutra
chain, piece of mangalsutra and motorcycle with which
accused Nos.1 and 2 tried to escape.
9. Detailed cross-examination of the prosecution
witnesses did not yield any positive materials inasmuch as
the witnesses stood the searching cross-examination and
recovery of MO.1 to 3 has also been established by placing
cogent and convincing evidence on record.
10. Thereafter, learned Trial Judge recorded the
accused statement as is contemplated under Section 313
of Cr.P.C. wherein accused has denied all the incriminatory
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circumstances but failed to place their version on record
nor laid any defence evidence.
11. Thereafter, Learned Trial Judge heard the
parties in detail and on cumulative consideration of the
oral and documentary evidence placed on record
especially, identification of the accused persons have been
established by the complainant and C.W.7 and recovery of
the material objects from the custody of the accused
persons, convicted the accused persons and sentenced as
referred to supra.
12. Both the accused persons filed separate appeals
before the First Appellate Court in Crl.A.Nos.96/2011 and
101/2011.
13. Learned Judge in the First Appellate Court after
securing the records, heard the arguments of the parties
in detail and in the light of the appeal grounds raised in
the respective appeals, reappreciated the material
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evidence on record and dismissed both the appeals by
considered judgment dated 15.09.2017.
14. It is submitted that accused No.1 did not
choose to take up the matter further; whereas, being
aggrieved by the order of conviction passed by the learned
Trial Judge confirmed by the First Appellate Court, accused
No.2 has filed the present revision petition.
15. Sri.S.R.Hegde, learned counsel for the revision
petitioner reiterating the grounds urged in the revision
petition vehemently contended that learned Trial Judge
failed to note that the recovery of the precious ornaments
is from the custody of accused No.1.
16. He would further submit that at the most,
material evidence on record would only indicate the action
attributable to the accused No.2 is to the offence traceable
under Section 324 of IPC and therefore, sought for
allowing the revision petition atleast in part.
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17. Alternatively, he would also contend that
revision petitioner is now aged about 42 years and is
married person and well settled with his family and having
two children to maintain. At this distance of time, if he is
directed to join the prison, untold hardship will be caused
not only to the revision petitioner but also his family
members.
18. He would further emphasize the fact that it is
an isolated incident and there is no criminal antecedents
for the revision petitioner. So also, there is no complaint
against the revision petitioner post the present incident.
Thus, sought for taking a lenient view by directing the
custody period already undergone by him as period of
imprisonment by enhancing the fine amount reasonably.
19. Per contra, Sri.Praveen Devareddyavar, learned
High Court Government Pleader supports the impugned
judgments.
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20. He would further contend that in the matter of
this nature, there need not be recovery of robbed articles
from both the accused persons. Fact remains that it was a
joint act committed by both the accused persons inasmuch
as when accused No.1 snatched MO.1 from the neck of the
complainant, it is accused No.2 who was able to flee away
from the spot on a motorcycle wherein engine, chassis and
registration number were manipulated by both the
accused persons.
21. He would further contend that it is a
premeditated act of both the accused persons and but for
the active assistance given by accused No.2, accused No.1
could not have accomplished the act of snatching MO.1
from the neck of the complainant.
22. He would also contend that C.W.7 chased the
accused persons, in order to escape away from their
clutches, accused No.2 bitten the hand of C.W.7 which is
established by examining C.W.7 before the Court and
injury certificate that has been placed on record.
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23. He would further contend that, material
evidence available on record would be sufficient enough to
maintain the conviction of both the accused persons for
the aforesaid offences.
24. Insofar as alternate submission is concerned,
learned High Court Government Pleader contends that if
any leniency is shown for the people like the revision
petitioner, it would not only send a wrong message to the
society but also encourages similarly placed perpetrators
of the crime to indulge in such activities in future and
therefore, sought for dismissal of the revision petition.
25. Having heard the parties in detail, this Court
perused the material on record meticulously.
26. On such perusal of the material on record,
following points would arise for consideration:
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1. Whether the revision petitioner makes out a case
that impugned judgments are suffering from legal
infirmity or perversity or patent factual error so as
to call for interference in this revisional jurisdiction?
2. Whether the sentence needs modification?
3. What order?
REG.POINT No.1:
27. In the case on hand, on the date of incident
itself, by virtue of C.W.7 chasing accused No.1 on a
motorcycle and intercepted them near Akbargalli and
thereafter, general public were able to apprehend the
revision petitioner and accused No.1 stands established by
placing cogent and convincing evidence on record.
28. Based on the complaint lodged by Jayashree,
Yellapur Police registered the case and apprehended
accused persons were taken to the custody by the police
and on enquiry, MO.1 to 3 have been recovered from the
custody of accused Nos.1 and 2.
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29. Admittedly, MO.3 - motorcycle was used in the
incident. Chassis, engine and registration number of the
motorcycle were manipulated by both the accused persons
which in to be construed as sufficient preparation to
commit the act of Robbery.
30. All these factors when viewed cumulatively,
there was a premeditated plan for robbing and for which
accused Nos.1 and 2 are equally responsible.
31. It is pertinent to note that when once MO.1 was
snatched from the neck of the complainant, it is accused
No.2 who took accused No.1 on the MO.3-motorcycle and
tried to flee away from the spot. If they were successful
in doing so, the incident could not have been nabbed by
the police at all. It is C.W.7 who chased them and was
successful in apprehending accused Nos.1 and 2.
32. Further, recovery of MO.1 to 3 under the
panchanama has been established by the prosecution by
examining panch witnesses. MO.1 and 2 is identified by
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the complainant and she has identified the accused
persons also before the Court.
33. All these factors when viewed cumulatively,
arguments put forward on behalf of the revision petitioner
since there is no recovery of the valuable material from
the custody of accused No.2, he cannot be held
responsible for the offence punishable under Section 394
of IPC cannot be countenanced in law.
34. On the contrary, material evidence placed on
record, would sufficiently establish the role played by
accused No.2 in the incident as well. Therefore, point No.1
is to be answered in negative having regard to the limited
scope of revisional jurisdiction as is held in Amit Kapoor
v. Ramesh Chander and Another reported in (2012)9
SCC 460.
REG.POINT No.2:
35. Sri.S.R.Hegde, learned counsel for the revision
petitioner made an alternate submission that since the
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accused is now aged about 42 years and having family to
maintain including a girl child. Taking note of the fact that
it is an isolated incident and revision petitioner is not
having any criminal antecedents, custody period of 10
days already undergone by the revision petitioner may be
treated as period of imprisonment by enhancing the fine
amount reasonably.
36. Sri.Praveen Devareddyavar, learned High Court
Government Pleader however opposed the said
submission.
37. Taking note of the fact that it is an isolated
incident especially in the absence of criminal antecedents
to the revision petitioner and there is no complaint post
the present incident against the revision petitioner, this
Court is of the considered opinion that enhancing the fine
amount in a sum of Rs.1,00,000/- payable by accused
No.2, if the custody period already undergone by him is
treated as period of imprisonment for the offence
punishable under Section 394 of IPC, as there is no
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minimum punishment prescribed for the said offence, ends
of justice would be met.
38. Further, out of the fine amount recovered, sum
of Rs.75,000/- is ordered to be paid as compensation to
the complainant and sum of Rs.10,000/- to C.W.7 -
P.W.4, ends of justice would be served better.
Accordingly, point No.2 is answered partly in the
affirmative.
REG.POINT No.4:
39. In view of the findings of this Court on point
Nos.1 to 3 as above, following:
ORDER
i. Criminal revision petition is allowed in part.
ii. While maintaining the conviction of the revision
petitioner/accused No.2 for the offence
punishable under Section 394 of IPC, custody
period of 10 days already undergone by the
revision petitioner is treated as period of
imprisonment for the said offence by directing
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the revision petitioner to pay enhanced fine
amount of Rs.1,00,000/- (Rs.1,00,000/- +
Rs.10,000 = Rs.1,10,000/-) on or before
30.03.2025 failing which the revision petitioner
shall undergo imprisonment as ordered by the
learned Trial Judge confirmed by the First
Appellate Court.
iii. Further, out of the fine amount recovered, sum
of Rs.75,000/- is ordered to be paid as
compensation to P.W.1 - Jayashree and sum of
Rs.10,000/- to P.W.4 - Srinivas Murdeshwar as
compensation under due identification.
Office is directed to return the Trial Court Records
with copy of this order forthwith after issuing modified
conviction warrant.
Sd/-
(V.SRISHANANDA)
JUDGE
KAV
CT:PA
