Karnataka High Court
Bangaru Shetty @ Bangaru vs The State Of Karnataka on 14 August, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14th DAY OF AUGUST, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
CRIMINAL APPEAL No.1242 OF 2010
BETWEEN:
1. BANGARU SHETTY @ BANGARU
S/O LATE BEERASHETTY
AGED ABOUT 47 YEARS
R/O MEGALAHUNDI VILLAGE
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT.
2. BANGARU @ BANGARU SHETTY
S/O LATE MUDDASHETTY
AGED ABOUT 57 YEARS
R/O MEGALAHUNDI VILLAGE
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT.
3. NAGARAJA @ KULLA @ PUTTANNA
S/O CHIKKANNA SHETTY
AGED ABOUT 35 YEARS
R/O SINGANAPURA VILLAGE
CHAMARAJANAGAR TALUK
CHAMARAJANAGAR DISTRICT.
4. MAHESH @ MAHADEVASWAMY
S/O BILAGIRI RANGA
AGED ABOUT 27 YEARS
R/O MEGALAHUNDI VILLAGE
CHAMARAJANAGAR TALUK
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CHAMARAJANAGAR DISTRICT. ...APPELLANTS
(BY SRI BASAVANNA K M FOR
SRI M V HIREMATH, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY H D KOTE POLICE
MYSORE DISTRICT. ...RESPONDENT
(BY SRI K P YOGANNA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
OF CONVICTION AND SENTENCE DATED:23/25.10.10
PASSED BY THE P.O. FTC-IV, MYSORE IN
S.C.No.106/2008- CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 395 READ WITH 397, 399 AND 402 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR TEN YEARS AND PAY A
FINE OF RS. 3,000/- EACH, IN DEFAULT OF PAYMENT OF
FINE THEY SHALL UNDERGO SIMPLE IMPRISONMENT FOR
SIX MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 395 READ WITH SECTION 397 OF IPC. THE
APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO
RIGOROUS IMPRISONMENT FOR EIGHT YEARS AND PAY A
FINE OF RS.2,000/- EACH, IN DEFAULT OF PAYMENT OF
FINE THEY SHALL UNDERGO SIMPLE IMPRISONMENT FOR
THREE MONTHS FOR THE OFFENCE PUNISHABLE UNDER
SECTION 399 OF IPC. THE APPELLANTS/ACCUSED ARE
SENTENCED TO UNDERGO RIGOROUS IMPRISONMENT
FOR SIX YEARS AND PAY FINE OF RS.1,000/- EACH, IN
DEFALUT OF PAYMENT OF FINE THEY SHALL UNDERGO
SIMPLE IMPRISONMENT FOR TWO MONTHS-FOR THE
OFFENCE PUNISHABLE UNDER SECTION 402 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:-
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JUDGMENT
Appeal is directed against the judgment of conviction and sentence dated 23/25.10.2010 passed by the Presiding Officer, Fast Track Court-IV , Mysore in S.C.No.106/2008, wherein, appellants/accused are convicted for the offence punishable under Section 395 read with Sections 397, 399 and 402 of IPC. The appellants/accused are sentenced to undergo rigorous imprisonment for ten years and pay a fine of Rs.3,000/- each, in default of payment of fine they shall undergo simple imprisonment for six months for the offence punishable under Section 395 read with Section 397 of IPC. The appellants/ accused are sentenced to undergo rigorous imprisonment for eight years and pay a fine of Rs.2,000/- each, in default of payment of fine they shall undergo simple imprisonment for three months-for the offence punishable under Section 399 of IPC. The appellants/accused are sentenced to undergo rigorous 4 imprisonment for six years and pay fine of Rs.1,000/- each, in default of payment of fine they shall undergo simple imprisonment for two months for the offence punishable under Section 402 of IPC. The same is challenged in this appeal.
2. The proceedings before the Trial Court came to be initiated because of the incident dated 28.1.2008, in respect of which, a criminal case came to be registered in Crime No.9/2008 against the accused persons for the offence punishable under Section 397 of IPC. The details of the incident are as under:
It is stated by the complainant-Ranganath, S/o. Rangappa, 23 years, resident of Doddabanagere village, Sira Taluk, Tumkur that from the past 3 years, he and one Chittanna and his brothers Manjunathagowda and cousin Navin Kumar and Chittanna's wife Sumitra, daughter Shilpa, uncle Maranna and Eeranna, and one Bujjanna were shepherds. They wanders from place to place for the purpose of grazing sheep and they came 5 down to H.D.Kote Taluk Mysore. There were 200 sheep belonged to CW1 and 700 sheep belonged to Chittanna. They kept the flock of sheep in the land bearing Survey No.86/3 at Chikkadevammanna Bettada Tappalu. There is a road, which runs from Huradakatte to Hoovinakola. During the night, CW4 and CW9 were watching the sheep from 12.00 a.m. to 2.00 a.m. on 28.1.2008. For every three hours two persons used to guard the sheep. There was a turn of CW4 and CW9. At about 2.00 a.m. accused persons were armed with tones and re-piece patties robbed 100 to 150 from that flock. CW1 and CW9 shouted. They made attempt to prevent them. Then the accused persons pelted stones at CWs 1 to 9, Accused No.1 assaulted CW1, CW6 and CW9 and accused No.4 assaulted CWs. 2,3 and 4 with re-piece patties caused injuries. CW5 suffered grievous injuries. The other neighboring persons rushed to the spot when they heard the galata. At that time, lorry bearing No.KA.18>A.7000 was parked at Huradakatte and 6 Hoovinakola at a distance of 300 feet from the flock of sheep. Accused persons loaded 78 sheep into the lorry and left the others and went off. The other accused persons called one of the accused persons by name 'Tebren Jalldi Haavo'. Therefore, they came to know the name of one of the accused. Immediately, CW1 informed the Saragur Police. They rushed to the spot. Intimated the control room. Then shifted the injured persons to Vivekananda Hospital. The statement was recorded on 28.1.2008 at 4.15 a.m. to 4.45 a.m. in Vivekananda Hospital and same was registered in Crime No.9/2008 for the offence punishable under Section 397 IPC.
3. Thereafter, formalities of conducting spot mahazar, seizure mahazar were conducted which were marked during the trial.
4. After completion of the investigation, chargesheet came to be filed under Section 173 of Cr..P.C. against the accused persons including 7 absconding accused for the offences punishable under Sections 395,397,400 and 401 IPC.
5. During trial, learned trial Judge found that there were grounds to frame charge against the accused and framed charge against them for the offences punishable under Sections 395 r/w 397 IPC, 399, 400, 401 and 402 IPC. Accused pleaded not guilty and came to be tried.
6. The learned trial Judge was accommodated with the oral evidence of PWs 1 to 26, documentary evidence of Exs.P1 to P25 and MOs 1 to 5. After hearing the parties and perusing the materials available on file, learned trial Judge found the accused 2 to 5 guilty and convicted them for the offence punishable under Sections 395 read with Section 397, 399 and 402 of IPC and sentenced them as stated above.
7. The learned counsel for the accused/appellants would submit that, there is no whisper regarding identification of the accused by the eye witnesses and 8 no identification parade as contemplated under law was conducted and material contradictions and omissions are ignored by the learned trial Judge and proceeded to hold the accused/appellants guilty of the offences alleged.
8. Learned High Court Government Pleader appearing for respondent submits that prosecution has proved the guilt of the accused/appellants beyond all reasonable doubt and supports the conviction and sentence imposed by the learned trial Judge.
9. Among 26 witnesses examined by the prosecution, PW1- Ranganath is the complainant. He tells about the incident. He is also an eye witness who has seen the sheep being driven away by the persons, but this witness was not able to identify any witness as he could not remember and also doesn't remember who assaulted the persons nearby him. However, he gives the account of the age of sheep between 2 to 3 years. He tells the court that the accused persons were the 9 same who are present and committed the offence at the time of incident.
10. PW2-Basavarajappa is a witness to seizure mahazar Ex.P2. He turns hostile. His evidence is that police asked him to sign the mahazar and he does not know the details of it.
11. PW3-Dr. Seetharam who has examined all the injured persons in the incident namely (i) Chithanna, (ii)Maranna (iii) Shilpa (iv) Manja (v) Ranganath. They suffered the following injuries:
Chithanna-
(i) Lacerated wound 1 cm in posterior aspect or right thumb - bleeding
(ii) Swelling tenderness right leg exp. mid antero medial adjacent of skin
(iii) No bone injury on clinical examination.
Maranna -
(i) Abrasions over right FA - left knee
(ii) Tenderness over left lower chest above the 10 sub-costal margin Manja -
(i) Injury over the membrium sterni -syperticial abrasion 1cm x 1cm
(ii) Swelling and tenderness over medial aspect of left knee
(iii) Tender and swelling over lateral aspect of right elbow - Rom -Restricted Ranganath -
(i) Heamatoma over lateral aspect of left knee joint 6 cm - No external injury
(ii) Tender+over left shoulder posterior aspect Minimal abrasion over right superior aspect of leg
(iii) Minimal abrasion right palm posterior aspect.
Shilpa -
(i) Cut lacerated wound over the upper lip extending into the mucous membrane of the floor of nose
(ii) Abnormal mobility of the right maxillary set of teeth down ward displacement of the upper right teeth
(iii) Abrasion on superficial -lateral aspect of left forearm just below elbow 11
(iv) Heamatoma over greater trochanter of femur.
and issued the wound certificates as per Exs.P4 to P8. It is elicited that he has not mentioned regarding the fracture injury of PW.13 - Shilpa.
12. PW4-Dr.Prakash is a veterinary doctor who has conducted postmortem of the sheep and stated that it died because of congestion when all the sheep were put in a single truck.
13. PW5-Swamy is the Tahsildar in H.D. Kote. He tells that at the time of incident he was working as Sheristedar in Tahsildar's Office. He tells that he has issued Exs.P11 and P12.
14. PW6-Bettanayaka is the owner of land in Survey No.26 of Hoovinakola village.
15. PW7-Mudduraju is P.S.I. He tells that on 27.1.2008 at 9.00 p.m., he deployed the team for patrolling and he also left for patrolling in the vehicle 12 and he received information from control room at 3.00 a.m. (in the midnight). He informed his staff to watch and look out of any lorry carrying sheep and he also went for rounds. At 4.30 a.m. a lorry came on the Dharga road and he asked the driver to stop, but he did not stop. Immediately he alerted his staff and also chased the vehicle. Near M.D.C.C. circle, he overtook the lorry and stopped it. He saw there were five persons in the cabin and three persons ran away. He along with his staff caught hold of the persons who were available in the cabin of the lorry. He further tells that PC 467 and 351 caught accused No.2, PC 457, 522 caught hold accused No.3, PC 361 caught hold accused No.4 and PC 33 caught accused No.5. When they enquired, they told the names of the accused who ran away. He conducted the mahazar in the presence of Shivanna, Babu and Chandra who were secured for the purpose of mahazar and seized vehicle bearing No.KA 18 A 7000, 77 sheep along with one dead sheep as per 13 Ex.P.13. He identifies weapons and photos regarding vehicle No.KA 18 A 7000. He tells about the accused who were apprehended and the other accused who ran away he tells about the description about the spot, its location and related.
However, during cross examination except identification there are no further material contradiction.
16. PW8-Shivanna and PW9-Babu, are the witnesses to Ex.P13.
17. PW10-Chittanna is a circumstantial witness who tells before the Court that he knows PWs 4,5,6, 7, 8 and 9 and they are related to each other. He owns about 700 sheep. On the date of incident they were looking after the sheep at Chikkadevamma temple road. He tells about the fact of watching the sheep upto 12 'O' clock on 27th Sunday. When he and others were watching at about 11 p.m. the truck went towards Hoovinakola. village and they thought that it might be 14 going for getting sugarcane. His further evidence is, he got up on hearing the barking sound. He deposes that accused persons came, hit him and others. He received injuries. The accused persons pelted stones and made havoc and took away about 80 sheep. He tells because of galata and pelting stones, complainant, PW4- Manjunath, this witness, and CW5-Shilpa suffered injuries. He identifies the accused persons before the Court. Thus he tells that the accused persons are those who attacked the folk and sheep on the date of incident, caused hurt and chased 150 sheep and caught 80 sheep which they carried. He tells that accused persons in tandem pelted stones and tells about the injuries suffered by himself and other witnesses.
18. He has been cross examined at length. He denies suggestions during cross examination. No significant contradictions are forthcoming in his cross examination.
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19. PW11-Maranna. His evidence is similar to that of the evidence of PW10. He tells about the possession of 700 sheep by Chittanna and 100 by complainant, 50 by his brother and 50 by him. He tells about the sheep being maintained and looked after by this witness and others in the village Siddapura. He identifies the accused No.4 by name and other accused person Venkatesh. He deposes that the accused persons dragged the sheep from the flok and about 80 were taken away by them in their lorry. This witness screamed and shouted the name of Jayanna. Further, he tells about the injuries sustained by him, complainant and others. Thus, this witness speaks not only about the incident having seen and the injured in the attack, but mentions accused No.4 Nagaraju by name.
20. However, in his cross examination, it is elicited that he went to the spot after half an hour of 16 taking away of sheep. Incidentally in the cross examination, it is elicited from him by answers to series of suggestions that before he would get up complainant and Shilpa had sustained injuries and denies suggestion regarding pelting of stones when they went to gather the sheep (however, the sentence is not clear).
21. PW12-Doddaveeranna deposes in the lines of evidence of PWs 8 and 9 and he also possessing certain sheep. He further states regarding possession of sheep by his son- in- law, CW2. He gives account of owning 50 sheep by him, 700 by CW2, 50 by CW3. He tells about the incident dated 27.1.2008. According to him, CWs 1,2,3,4,6,7,8 were looking after the sheep at Chikkadevammana Betta during night. When this witness along with others were looking after the sheep and at 2.00 a.m. certain persons were coming near the sheep and dogs were barking. Accused persons came towards them and were possessing clubs and stones. 17
22. He identifies one accused who pelted stones to his shoulder and hit him with the help of reaper on the leg. 70 to 80 sheep were taken away by the accused and the witnesses were able to see their faces in the light of chargers/batteries. He also states that he informed the police. He further tells about the arrival of police, admission of the Shilpa to the Hospital in Mysore and drawing up for mahazar and seizure and he identifies MOs 1 to 5.
23. He was cross examined by the learned counsel for accused regarding genuineness of his identification of the accused. It is elicited that he had seen the accused on the date of incident and seeing them only in the Court. He tells that he has not taken treatment. Accused persons, according to him were 17 to 18 numbers.
24. PW13-Shilpa is the sister- in- law of PW2. She also gives the account of number of sheep with the 18 complainant, PWs 8, 9 and 10 and attack and that she was hit by the reaper. She identifies accused as Nagaraju and tells that when she was sleeping he hit her with reaper and when she got up, he hit on her lips with stone and she sustained bleeding injuries and lost one tooth.
In her cross examination, it is elicited that she cannot give the details or features or overtacts of accused persons because of darkness.
25. PW14-Sumithra, is the wife of Chittanna, PW10. CW3 is her father. CW5 is her sister. She tells about the arrival of the accused, attack made by them and causing injuries by pelting stones and hitting with reaper. She asserts that she has seen that the accused robbing 70 to 80 sheep and taking away in a lorry. She also tells that the accused hit her with reaper and identifies the weapon used for assault. She tells that she saw the faces of the accused with the help of torch. 19 She also identifies the accused persons in the court. She has been cross examined at length. She denies the false assertion and the conspiracy of this witness.
26. PW15-Manjunatha is the brother of complainant. His evidence is in the same line to that of PW14.
27. PW16- Madegoweda is the Head Constable. His evidence is regarding receiving of information about the accused. He tells about his patrolling and rounding along with PWs 7, CW36. He further states that he has apprehended the accused. He identifies MOs. It is elicited from him that there were nearly 20 to 25 persons along with him. He denies the suggestion made in respect of mahazar, photographs, and the related aspects.
28. PW17-Nagaraj Nayak is the Police Constable. He tells that as per the instructions of Police Sub Inspector he went to MDCC Circle at that time, their 20 staff have caught hold the accused. Further he tells about the other formalities.
29. PW18-Fyroz Pasha is the owner of lorry bearing KA.18.A.7000. He identifies the lorry that was seen in the photo.
30. PW19-Sajugan s/o Abdul Kuddus, is the witness to Ex.P21.
31. PW20-Mohammed Khaleel is a witness to Ex.P21. He does not speak substantial version. He accepts the presence of sheep and lorry and he does not go on with the substantial matter.
32. PW21-Raju is the worker under the complainant. He tells about the incident and the fact of owning of sheep by his owner and others. His further evidence is 78 sheep were taken away. He also tells about the clubs and stones through which accused assaulted them.
33. The deposition of PW22 is not available. No discussion are seen and even for that matter the 21 deposition as well. However, it appears in the circumstances, on 16.2.2010 CW23 by name Jayanna was given up.
34. PW23-Vinaykumar is the owner of lorry bearing No.KA.18.A.7000 and he sold it to CW20 as per Exs.P21 and P22.
35. PW24-Afrozpasha is the owner of the lorry bearing No. KA.18.A.7000 who has given the same to accused No.1 to transport the items.
36. PW25-Arun is the police constable who has registered the case, submitted FIR to the court and higher officer and handed over the further investigation to PW26.
37. PW26- Rachappaswamy Circle Inspector at the time of incident who has filed chargesheet against the accused after competition of investigation.
38. Insofar as the incident and acts of the accused persons on the date of incident which is at 3 a.m. 22 Hoovinakola Village is concerned, in the land in Sy.No.26 these witnesses were present upto 12 'O' Clock in the night and thereafter hearing the noise of barking of dogs they got up and to their surprise they saw accused persons who are reported to be 5 to 8 in numbers were chasing sheep flock and when these witnesses were trying to chase them or catch them attacked the complainant and the witnesses as stated above. PW1 -Ranganath is the complainant. The substance of the evidence of the said witness including complaint is that all of them owned sheep which formed a big flock namely 50, 100, 150, 800 etc., and the accused persons who came in a truck/lorry was mistook by these witnesses and others that they might have come for carrying sugarcane. Out of total number of sheep, sheep that were carried away by accused are about 78. In this connection, the substance of the deposition of the complainant is that on the date of incident on 27.01.2008 he along with the 23 said witnesses for the purpose of watching the sheep were camping at the said land at Hoovinakola and they went to sleep at 12 midnight. At that time they asked CW-4 and 9 to be alert about 1.30 to 2 a.m. on hearing barking of the dogs they got up and one truck was moving from Hoovinakola towards Katte and it returned at 3 a.m about 8 persons armed with stones and clubs attacked and hit complainant, Ranganath, Chittanna, Doddaveeranna, Manjunath, Maranna, Sumitra, Shilpa and they fell down. They were able to see the faces of the accused with the help of the light from torch and the accused persons grabbed hundred of sheep and took them in a truck. When they were moving Jayanna and Raja of complainant's village came and accused left some sheep and carried about 80 sheep. This witness asked them to inform the matter to police and thereafter police came and took the complainant and other witnesses to hospital for treatment and they identified 24 the accused persons who were present and this witness identifies the accused.
39. In the given set of circumstances and context, the evidence of witnesses PW-8 -Shivanna and PW-9 - Babu - villagers speak regarding post offence scene. Their evidence is for having seen seizure of a truck and sheep including a dead sheep. It was stated that police seized them and they identified the photographs 14 to 17 and 77 sheep and one dead sheep -M.O-14. Thus, the evidence of these witnesses that they are eye witnesses and the injured persons and the aggrieved persons.
40. Insofar as the evidence of Chittanna-PW10 is concerned, in substance, his oral evidence is similar to that of PW-1- complainant as he is placed in same position. He vouch owning sheep, watching them looking after on the date of the incident and at midnight 12 he was awake and saw a truck passing towards 25 Hoovinakola and this witness thought that might have come for transporting the sugarcane. This witness also identifies accused No.4 as Nagaraju in the open court and who is said to have assaulted this witness and other accused persons also assaulted. This witness saw the accused persons through torch light. Then accused persons started pelting stones, he called Jayanna and Raja who came there. Similarly regarding the residents of Hoovinakola village carrying on the work of looking after the sheep that belonged to all of them being awake at 12 midnight because of the barking noise of the dogs and finding that the accused persons were chasing out the sheep belonging to this witness and others. Grabbing a block consisting of 80 sheep accused were loading them to truck. Meanwhile accused were grabbing few (it is also stated that sheep were being loaded to truck) any how at the said circumstances on seeing awakening and moving of these witnesses the accused started pelting stones and hitting complainant 26 and other persons with clubs. In the process the witnesses sustained injuries. The witnesses who sustained injuries on various parts of the body are PW- 1, PW10-Chittanna, PW11-Maranna, PW12- Doddaveeranna, PW13-Shilpa, PW14 - Sumitra and PW15 - Manjunath.
41. The evidence of this witness in substance and the evidence of PW-1 and all these witnesses is that they are eye-witnesses to the incident and they were guarding sheep that belonged to them with the exception of PW13-Shilpa who is the daughter of Maranna-PW-11. They speak regarding their presence, the presence of the accused who committed offence, barking noise of the dogs, accused persons being chased by the complainant and male witnesses. However, the accused while grabbing the sheep and loading in the truck started pelting stones and hitting 27 with club in the process as a result of their assault and act PW1, 10, 11, 12, 13, 14 and 15 sustained injuries.
42. In this connection learned counsel for appellant Sri Basavanna would submit that, point of discrepancy is in the evidence of PW11- Maranna. In the cross examination it is elicited from him that he went to the spot after half an hour to the incident and that of PW13 -Shilpa to the effect that she was not looking after sheep and she could not remember the features of accused persons.
43. Apart from the evidence of these witnesses stated above, the evidence of PW-7 who is the Police Inspector. On the date of incident, he tells that he was working as PSI of Hunsur police station and Hoovinakola village comes within its limits. His evidence is that, on the date of incident he had deployed patrolling team at 9.00 P.M. and he also left the police station in jeep. At 3.00 a.m he received a message from control room that near Hoovinakola coming within the 28 limits of Saraguru village Police Station there was dacoity of sheep. Immediately he informed his patrolling team to apprehend the offenders. When he was carrying on patrolling work, a truck came from the side of Darga, he asked to stop, it was 4.30 a.m. but it was not stopped and he started chasing the said truck that contained sheep. He directed the patrolling team to stop it. However, at MDCC circle, he over took the said truck and stopped it. There were five persons in the cabin and three persons in the truck ran away. He submits that with the help of their jeep driver he caught one Tabrej @ Tabren Ahamed - accused No.1. So also, PC467 and 351 caught one Bangaru Shetty @ Bangaru
- accused No.2, PC457 and 522 caught Bangaru @ Bangarushetty - accused No.3, PC361 caught Nagaraju @ Kulla @ Puttanna - accused No.4 and PC33 caught Mahesh @ Mahadevaswamy - accused No.5. He further deposes that three more persons ran away. 29
44. Thus, the evidence of PW7 is not a mere formality of explaining the steps taken by him. On the other hand, he tells that he and his team apprehended the aforesaid number of accused persons, truck and sheep as well. He has been cross examined at length. He denies suggestion made by the learned counsel for accused during cross examination.
45. On plain observation of the documents available on record and oral evidence of PW1, PW7 and PW8 establish that the accused persons were seen at Hoovinakola and they also had lorry with their control and in the mid-night they entered the land bearing Sy. No. 26 of Hoovinakola belonging to PW6-Bettanaika and were loading the sheep (78 Sheep) into the said truck. By that time, the complainant and the other witnesses PW7 and PW8 awoke and saw the act of the accused. When they tried to chase and catch the accused persons, accused attacked the complainant and others 30 by pelting stones and hitting with clubs and inflicted injuries to them and carried away the sheep.
46. Thus, in the circumstance the overt act of the accused persons is spoken to by the said witnesses. The persons who attacked, threatened and loaded the sheep (78 Nos.) into the truck belonging to them, taken away them. In the course of taking away the sheep, accused persons who were in the group of 8 persons voluntarily caused hurt. The complainant, PW10 and PW11 were inflicted injuries in the course of the act. The accused persons were said to have possessed the arms like stones and clubs, which they used for causing hurt.
47. The charge that were framed against the accused persons are for the offence punishable under Section 395 read with Section 397, 399, 400, 401 and 402 IPC. The learned trial Judge convicted the accused Nos. 2 to 5 for the offences punishable under Section 31 395 read with Sections 397, 399 and 402 IPC. On hearing, the sentence was ordered against them to undergo Rigorous imprisonment for a period of ten years and fine of Rs.3,000/- each, in default of payment of fine to undergo Simple imprisonment for a period of six months for the offence punishable under Section 395 read with 397 IPC; they were sentenced to undergo Rigorous imprisonment for a period of eight years and fine of Rs.2,000/- each, in default of payment of fine to undergo Simple imprisonment for a period of three months for the offence punishable under Section 399 IPC and further sentenced to undergo Rigorous imprisonment for a period of six years and fine of Rs.1,000/- each, in default of payment of fine to undergo Simple imprisonment for a period of two months for the offence punishable under Section 402 IPC. They were given benefit of set off under Section 428 Cr.P.C.
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48. However, insofar as the sentence is concerned, a mistake is crept in. The learned trial Judge has not mentioned as to whether all the sentences shall run concurrently or consecutively. That error has to be rectified and is accordingly, held as all the sentences shall run concurrently.
49. Section 395 IPC, is very clear that 'whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.' Robbery is the one that transforms into dacoity depending on the number of persons who commit the offence. If deadly weapons are used and caused serious hurt or attempted to cause death, the punishment prescribed is not less than seven years.
50. It is necessary to mention here that whether Section 399 IPC provides for preparation for committing dacoity, still attracts that when dacoity itself is proved, 33 the question of considering Section 399 does not arise. If the offence committed falls within the meaning of the term 'dacoity', then it is punishable under Section 395 IPC.
51. A separate punishment for Section 399 IPC and 402 IPC when the accused persons are convicted for the offence punishable under Section 395 read with Section 397 IPC which is the major offence in the line does not arise.
52. On going through the materials on record including oral and documentary evidence and considering the circumstance of the case, I find that the findings recorded by the learned trial Judge for holding the accused persons guilty of the offences alleged and convicting them for the offence punishable under Section 395 IPC does not warrant any interference. However, Section 397 IPC is sub merged in Section 395 IPC.
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53. The learned counsel for appellants would submit that there was no test identification parade conducted by the respondent - police. He further submits that even though if the test identification parade is conducted, there is no proper identification of the accused persons by the complainant or other witnesses. He also relied on the judgment of this Court in the case of Ramesh and another Vs. State by Munirabad Police, (Crl. A. No.100005/2014), wherein the order of conviction and sentence passed against the accused therein for the offence punishable under Section 392 IPC has been set aside on the ground of non-conducting of test identification parade.
54. In this context, it is necessary to place on record that when Test Identification Parade is conducted, regard has to be given to the procedure and in the absence of which a prejudice or right of the accused are deprived. But, it is not necessary that 35 there must be a Test Identification Parade in each and every criminal case pertaining to dacoity or other related offences.
55. It is necessary to state that when the accused persons are strangers to the complainant and others due to factors like non-availability of sufficient light, covering their faces and other aspects test identification is required. But it is not so in this case. The complainant and other witnesses are definite regarding the identity of accused persons , more particularly, one of them is identified with reference to his name.
56. The accused persons were seen at 3.00 AM by the complainant and other witnesses. They unequivocally confirms with regard to the faces of the accused persons and deposed in their crystal clear words that they saw the accused persons. It is also the case where the accused persons were apprehended within two or two and half hours on the same day after 36 intercepting the truck near MDCC Bank Circle of Hoovinakola. It is necessary to mention that it is not that the accused persons had painted their faces or wearing caps to hide their identity. It is the case where the complainant and other witnesses were confident regarding the faces, may be, on the same day they were also seen the accused persons near MDCC Bank Circle. Thus, the identity of accused persons when confirmed by the complainant and other witnesses cannot be attributed as biased. In this connection, the evidence of PW7-Mudduraju, PSI, cannot be termed biased. It is in this case Police Officer's evidence is both substantial and procedural. I find that it should have been mentioned in the judgment. Regard being had to the fact that the conviction of the accused persons is upheld for the offence punishable under Section 395 read with Section 397 IPC which is punishable up to ten years imprisonment.
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57. The learned counsel for appellants would submit that the accused persons are family holders. In the context and circumstance, I find it just and necessary to reduce the maximum punishment of ten years to eight years.
58. The learned counsel for appellants also submit that there is no proof of recovery in the light of PW8 and PW9 have turned hostile. In this connection, the evidence of the aggrieved or victim inspires confidence in the mind of the Court, it did not wait for the evidence of PW8 and PW9, more particularly, when the evidence of PW1 and other witnesses, by themselves prove unbiased and consistent for identification of the accused. It is necessary to mention that in a criminal case the best witness is the injured witness.
59. The another development in the case is that PW1 and other witnesses are the victims and losers of their property (Sheep). However, they cannot say what 38 they had lost. Thus, hostility of PW8 and PW9 neither helps the case of the prosecution nor the accused. The prosecution has proved the commission of offence under Section 395 IPC beyond reasonable doubt against the accused/appellants. However, in the light of circumstances of the case, the quantum of sentence of imprisonment of ten years imposed is on the higher side and if the same is reduced by two years it would be just and proper.
60. Accordingly, the appeal is allowed in part. The judgment and order of conviction passed by the Presiding Officer, Fast Track Court-IV, Mysore, dated 23/25.10.2010 in SC No.106/2008 is modified, convicting the accused persons for the offence punishable under Section 395 IPC.
61. However, the conviction of the appellants for the offence punishable under Sections 399 and 402 IPC need not be necessary when they are convicted for 39 having committed the offence punishable under Section 395 IPC. Thus the said sections are not applicable and the sentence of imprisonment and fine imposed for the said offences are not sustainable and the same is set aside.
62. In the context and the circumstance, the period of imposition of sentence would be for the offence punishable under Section 395 IPC. Accordingly, the accused/appellants are sentenced to undergo imprisonment for eight years.
63. It is brought to my notice that the appellants 2 to 5 are released on suspension of sentence by this Court. However, they were said to be in Judicial Custody from 28.01.2008 till 10.01.2010. Therefore, they are given benefit of set off as provided under Section 428 of Cr.P.C.
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The Registry is directed to send back the entire file to the trial Court with a direction to take necessary steps to secure the appellants by issue of necessary warrant to serve the remaining term of the sentence.
Sd/-
JUDGE Ykl/tsn*/SBN/VK