Karnataka High Court
Sri. Hussain Kabir @ Kabeer vs State Of Karnataka on 9 June, 2017
Equivalent citations: 2017 (4) AKR 76, (2017) 3 KCCR 2597 (2018) 1 KANT LJ 91, (2018) 1 KANT LJ 91
Author: K.N.Phaneendra
Bench: K. N. Phaneendra
1
IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2017
BEFORE
THE HON'BLE MR.JUSTICE K. N. PHANEENDRA
CRIMINAL APPEAL NO. 839/2016
C/W
CRIMINAL APPEAL NO. 1709/2016
IN CRIMINAL APPEAL NO. 839/2016
BETWEEN
SRI. HUSSAIN KABIR @ KABEER
S/O MAIYADHI, AGED 33 YEARS,
DRIVER, R/AT KALAVARA,
BALA-VILLAGE, NEAR MRPL,
MANGALORE TALUK,
DHAKSHINA KANNADA DISTRICT ... APPELLANT
(BY SRI. PAVAN SAGAR, ADV. FOR
SRI. P. PRASANNA KUMAR, ADV.)
AND
STATE OF KARNATAKA,
REP. BY SRINGERI POLICE,
CHIKKAMAGALURU. ... RESPONDENT
(BY SRI. NAGESWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE JUDGMENT AND ORDER DATED 06.04.2016
PASSED BY THE PRL. S.J., CHIKKAMAGALURU IN
S.C.NO.3/2013 - CONVICTING THE APPELLANT/ACCUSED
NO.2 FOR THE OFFENCE P/U/S 353, 332, 394 R/W 34 OF
IPC.
2
IN CRIMINAL APPEAL NO. 1709/2016
BETWEEN
MOHAMMED HANEEF @ HANEEF,
S/O HAMMABBA BYARI,
AGED ABOUT 38 YEARS,
OCC:BUSINESS,
R/AT NEAR MASJID,
KAMMARADI, KOPPA TALUK,
CHIKKAMAGALURU DISTRICT,
PIN CODE -577 125. ... APPELLANT
(BY SRI. HASHMATH PASHA, ADV.)
AND
STATE OF KARNATAKA BY,
SRINGERI POLICE STATION,
CHIKKAMAGALURU DISTRICT,
PIN CODE -577139.
(REP. BY LEARNED STATE
PUBLIC PROSECUTOR) ... RESPONDENT
(BY SRI. K. NAGESWARAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED U/S 374(2) CR.P.C
PRAYING THAT THIS HON'BLE COURT MAY BE PLEASED TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION
DATED 1.10.2013 AND SENTENCE DATED 5.10.2013
PASSED BY THE PRL. S.J., CHIKMAGALUR IN
S.C.NO.86/2012 - CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE P/U/S 353, 332, 394 R/W 34 OF IPC AND
U/S 25(1A) OF ARMS ACT.
THESE CRIMINAL APPEALS COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
3
JUDGMENT
At the time of hearing IA No.1/2016 in CRL.A.No.839/2016 and IA No.2/2016 in
CRL.A.No.1709/2016 filed for suspension of sentence, the learned counsel for the appellants and the learned High Court Government Pleader submitted that in view of the memo filed by the learned counsels for the appellants that they are not pressing the appeal sofar as the judgment of conviction and sentence passed by the trial Court for the offences punishable under sections 353, 332 and 394 of IPC and u/s.25A of the Arms Act, but only challenges the conviction and sentence passed u/s.394 of IPC, the above said two appeals are taken up together, heard on the merits itself, and disposed off.
2. The appellant in Criminal Appeal No.1709/2016 is arrayed as A1, wherein the appellant in Criminal Appeal No.839/2016 is arrayed as A2 originally in Crime No.59/2010 on the file of the 4 Sringeri Police Station. Subsequently, as A2 was absconding, his case was split up. A Sessions Case No.86/2012 was registered sofar as A1 is concerned and SC No.3/2013 has been registered against A2 is concerned after securing his presence by the trial court. The above said two accused tried separately in the above said two cases separately. However, both are convicted for the offences punishable u/s.353, 332 and 394 of IPC and in addition, A1 was convicted and sentenced for the offence punishable under section 25A of the Arms Act. Though there are two judgments rendered sofar as A1 and A2 are concerned, the origin of the case is one and the same and the allegations made against both the accused are one and the same and they are inseparable and indivisible in nature and arising out of the same cause of action. Therefore, both the appeals are taken up together sofar it relates to judgment of conviction and sentence passed with regard to Section 394 of IPC.
5
3. In view of the memos filed by the counsels appearing for the accused, there is no need for this court to refer to the details of the evidence recorded in both the cases and the judgment and the reasonings given in the two judgments with reference to the offences punishable u/s.353, 332 and as well u/s.25A of the Indian Arms Act. Therefore, it goes without saying that the judgment of conviction and sentence passed by the trial Court in the above said two Sessions Cases deserves to be confirmed sofar as the offences as noted above u/s.353, 332 of IPC and Section 25A of the Indian Arms Act.
4. In the above said background, this court is called upon to ascertain whether the judgment of conviction and sentence passed by the trial Court in the above said two Sessions Cases sofar it relates to Section 394 of IPC is concerned and sentencing them to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- is proper and correct. 6
5. I have heard the arguments of the learned counsel for the appellants and the learned High Court Government Pleader in this regard. I have also carefully perused the judgments of the trial Court in the above said two cases and the evidence recorded by the trial Court.
6. The learned counsel for the appellants strenuously contends before this court that the offence u/s.394 of IPC is not at all made out because no ingredients of Section 394 of IPC is canvassed by the prosecution. Even at the initial stages i.e., at the time of filing of the charge sheet or during the course of evidence led by the prosecution before the trial Court, no material facts are placed attracting the provision under Section 394 of IPC. Even without considering the ingredients of the said Section with reference to charge sheet and the evidence, the trial Court has erroneously recorded its finding holding that the appellants are guilty of the offence punishable under section 394 of 7 IPC which is not in accordance with law facts and the same is liable to be set aside.
7. Per contra, the learned High Court Government Pleader submitted that though there is no specific averment made in the charge sheet. But on overall reading of the entire materials on record, the prosecution has made out a case for the offence punishable under section 394 of IPC. Therefore, the judgments are not liable to be interfered with, at the hands of this court.
8. On overall analysis of the entire materials on record, the only point that would arise for the consideration of this court is whether the prosecution has proved beyond reasonable doubt the offence punishable u/s.394 of IPC against accused Nos.1 & 2 and the judgment of conviction and sentence is proper and correct.
9. In order to appreciate the above said points for consideration and to give finding, it is just and 8 necessary to have the brief factual matrix of the case and the evidence led by the prosecution only with reference to the offence punishable u/s.394 of IPC.
10. The charge sheet filed by the police i.e., Sub Inspector of Police, Sringeri Police discloses that on 21.04.2012, PW-1 Ramachandra Naik, Deputy Superintendent of Police along with his staff was on duty and after finishing the combing work, they came back to Thanikodu Forest checkpost, and he was checking the vehicles passing through the check post. At about 8.50 p.m., the accused persons [the appellants herein] were coming in a black colour Scorpio vehicle bearing Registration No.KA-19/Z-7248. On suspicion, PW-1 and his staff have intercepted the said vehicle. As A1 and A2 did not give proper answers to the question put to them by PW-1 and that PW-1 has doubted the conduct of the accused persons in order to have a detailed enquiry. PW-1 has asked PW-2 to get into the said Scorpio vehicle along with AK-47 Gun with 9 25 live cartridges and in fact the said PW-2 was asked to bring A1 and A2 in Scorpio vehicle to the Police Station. PW-1 along with staff other also proceeded towards Sringeri Police Station. While moving, towards Police Station it is alleged that accused Nos.1 & 2 over took, the vehicle in which Cw-8 was sitting and after going for some distance accused No.1 assaulted PW-2 and also co-operated accused No.1 with an intention to prevent PW-2 from discharging his public duty as such a public servant and also snatched AK-47 from PW-2 and shunted him out from the said Scorpio vehicle by causing simple injuries to PW-2.
11. On the above said facts originally the police have registered a case u/s.353, 332, 394 and 307 read with Section 34 of IPC and also u/s.7 and 25A of the Indian Arms Act. After filing of the charge sheet, it appears the accused persons were arrested and they were in jail and thereafter A1 was committed to the court of sessions and a case has been registered 10 against him in SC No.86/2012. Subsequently, another split up case was also registered in SC No.3/2013 against A2.
12. The prosecution in order to prove the guilt of the accused in SC No.86/2012 examined PWs.1 to 31 and got marked exhibits P1 to P74 and marked Material Objects MOs.1 to 5. Whereas in SC No.3/2013, the prosecution has examined as many as 23 witnesses as PWs.1 to 23 and got marked Exhibits P1-P51 and MOs.1 to 5. The accused persons were also examined u/s.313 of Cr.PC., and after hearing the arguments, the Trial Court has rendered the above said two judgments convicting the accused persons as noted above in both the cases. The relevant evidence recorded by the Trial Court particularly with reference to Section 394 of IPC, is of PW1 & 2. There is no need for this court to go in detail with regard to the other evidence because PW-2 is the person who implicated A1 and A2 for the offence punishable under section 394 of IPC.
11
13. First let me go through the evidence of PW-2 in both the cases which is the replica recorded by the Trial Court in both the cases. PW-2 has categorically re-iterated the entire charge sheet averments at paragraph 3 as to what exactly happened on that particular day. He has stated that -
"3. since I was working as a gunman I have been entrusted with AK47/M.O.1 gun from the office the office of P.W.1 with magazine/M.O.2. The driver of the Scorpio vehicle was wearing a checks shirt and the person who was sitting by the side was wearing white T-shirt. I saw the accused and the dress in the light of check post. A1 who is present before the court was the person who was wearing the white T-shirt on that day. After suspecting, P.w.1 asked me to sit in the Scorpio vehicle of the accused to bring it to Sringeri Police Station. Accordingly along with M.O.1/AK-47 gun I went and sat in the back seat. The said Scorpio vehicle was bearing registration No.KA-19/Z-7248. I was instructed to take the accused and Scorpio vehicle to Sringeri Police Station. C.w.8 and his staff were instructed to pilot the Scorpio vehicle and 12 P.w.1 told that he will follow the Scorpio vehicel. When we reached Thyavana village the Scorpio vehicle in which I was sitting over took the jeep of C.w.8 and went ahead with speed. I told the driver of the Scorpio vehicle not to overtake and not to go fast and asked them to take to Sringeri Police Station. The person who was sitting by the seat of the driver told to go straight. When the said Scorpio vehicle was proceeding, at that time the accused person who is present before the court assaulted me with hands and A2/driver was holding my hand with one hand. A1 snatched M.O.1/AK-47 gun from my hand and kept it near the footrest. When I tried to take the said M.O.1/AK-47 gun at that time A1 stood up and turned towards me and assaulted me and thereafter by opening the left side of the door by opening the lock throw me out with an intention to kill. A1 who is present before the court is the same person who threw me from the Scorpio vehicle. After throwing me the said Scorpio Vehicle went away from that place. Due to the fall from the Scorpio Vehicle I sustained injury to my face and other parts of the body. When I was thrown out of the Scorpio vehicle it may be about 9.20 p.m. The place where I have been thrown out of the Scorpio vehicle was 13 Dharekoppa near Halagaru bus stop. Thereafter when I got up and was waiting on the road at that time the Jeeps of P.w.1 and C.w.8 came. By seeing me and the injuries they asked me and to them I narrated all the events. Thereafter P.w.1 instructed C.w.8 to take me to Sringeri Hospital. Accordingly he took me in his jeep to Sringeri Hospital and there I took treatment."
14. On careful perusal of the entire charge sheet averments and the evidence of PW-2, there is absolutely no semblance of evidence led by the prosecution to show that AK-47 Gun was snatched by the accused person for the purpose of committing theft and there is no material available on record as to for what purpose that AK-47 was snatched by the accused person from PW-2. Whether the accused persons intended dishonestly to take away AK-47 gun for the purpose of conversion of the same for their benefit or for wrongful gain for themselves or to cause any wrongful loss to PW-2. Therefore, in the absence of elucidation of such factual aspects so as to enable the 14 court to draw an inference that the accused have committed such an act only with a dishonest intention to commit theft of the said AK-47 Gun and during committing theft, they have extorted PW-2 and caused hurt so as to attract provisions of Section 394 of IPC. In this background when there is no evidence to that effect whether the court can still convict the accused persons is to be looked into.
15. In order to ascertain whether the above said evidence falls within the four corners of Section 378 of IPC, it is just and necessary for this court to have a brief look of the above said provisions, which is extracted hereunder:
"378.. Theft.--Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
Explanation 1.--A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of 15 theft as soon as it is severed from the earth.
Explanation 2.--A moving effected by the same act which affects the severance may be a theft.
Explanation 3.--A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it.
Explanation 4.--A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal.
Explanation 5.--The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied."
(Emphasis Supplied) Therefore, on plain reading and on plain interpretation of the said provision which clearly says that the person who commits theft, he should have intended to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to have committed theft. Therefore, dishonest intention on the 16 part of the accused in taking away the property from its lawful owner or lawful possessor of the property is the harbinger and prime ingredient of that Section which has to be established by the prosecution on facts.
16. Now, in order to understand what is meant by dishonest intention. Again the court has to go back to Section 24 of IPC to understand what is the definition of 'Dishonestly' which says that "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly". The words "wrongful gain" and "wrongful loss" is defined u/s.23 of the IPC which also says that "wrongful gain is a gain by unlawful means of property to which the person gaining is not legally entitled to and Wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled to." 17
17. Before adverting to the above said provisions in detail, let me have a look at Section 394 of IPC which says -
"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
The provision invoked in this case is Section 394 of IPC. In order to prove the said provision in accordance with the above said definition, the prosecution has to first prove that the accused persons have actually committed theft or robbery and in committing or attempting to commit robbery, voluntarily caused hurt and thereby committed the said offence and then only they are punishable under that particular Section.
18. Robbery is also defined u/s.390 of IPC. It is not all thefts are robberies. When theft is robbery is 18 defined. Theft is "robbery" if, in order to count or while committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily caused or attempts to cause any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint." Therefore, in order to show robbery, there should be a theft first, and while committing or attempting to commit theft and while carrying away or attempting to carry away the property obtained by the theft if hurt is caused, then it attracts the provision of Section 390 of IPC punishable u/s.394 of IPC.
19. On plain reading of the above said provision, mere snatching away the property of some other person bereft of dishonest intention would not constitute an offence u/s.378 or 394 of IPC, dishonest intention in taking away the property has to be 19 established by means of direct evidence or by means of circumstantial evidence.
20. Now, returning to the facts of this particular case, it is a clear case of prosecution that A1 and A2 were suspected by the police and they were taking the accused persons to the police station for detail enquiry. While taking them for that purpose, the intention of the accused persons is to escape from the clutches of the police. In that context when the policeman who is sitting inside the scorpio car along with A1 and A2 have made attempts to through him away from the said vehicle in order to escape from the clutches of PWs1 &
2. In that context, it is said by PW-2 and also as stated in the charge sheet papers first they snatched the Gun and assaulted PW-2 and thereafter, throw him away from the said vehicle. Therefore, even looking to the circumstance, which is prevailing at that particular point of time, there was no semblance of material placed to draw an inference that the accused persons in any 20 manner dishonestly intended to take away AK 47 Gun for their wrongful gain and to cause wrongful loss to PW-2.
21. In the above said facts and circumstances of the case the trial Court after appreciating the evidence of PW-2, have not bestowed their attention and thought throughout sofar as the definition of the penal provisions are concerned, as noted above.
22. In Criminal Appeal No.839/2016, the learned Sessions Judge, in his Judgment, while dealing with the case of A2 at paragraph 49 has stated that A2 has not committed any offence of snatching Gun. It is stated that - Conduct of A2 clearly shows that he had shared the common intention with A1 in voluntarily causing hurt to PW-2 by allowing A1 to push PW-2 from out of the moving Scorpio vehicle. For that reason, he is also punishable for the offence punishable under section 394 of IPC. When A1 himself is not liable for the 21 punishment u/s.394 of IPC, automatically A2 is also to be absolved from the liability.
23. For the above said reasons, I am of the opinion that the Trial Court in the above said two cases have committed a serious error in drawing an inference of guilt under section 394 IPC without there being any legal evidence. Therefore to that extent, the impugned judgments deserve to be set aside. Hence, I proceed to pass the following:
ORDER The appeals are partly allowed. The judgment of conviction and sentence passed by the trial Court in Sessions Case No.86/2012 and Sessions Case No.3/2013 sofar it relates to Section 394 of IPC is concerned are hereby set aside. Accused Nos.1 & 2 respectively are acquitted of the offence punishable under section 394 of IPC.22
In view of the memo filed by the learned counsel for the appellants, stating that the appellants are not pressing the appeals so far as the other offences are concerned, for which they are convicted and sentenced, the judgment of conviction and sentences passed by the trial Court for the offences under sections 353 and 332 of IPC sofar as A2 is concerned and for the offence punishable under sections 353, 332 of IPC and Section 25A of the Indian Arms Act sofar as A1 is concerned, are not disturbed and the same stand confirmed.
Originally Accused No.1 was arrested in connection with Sessions Case No.1/2005 on the file of FTC-I of Shivamogga on 17.3.2003. Thereafter, it appears, he was released on parole and during parole period, he has committed the offence pertaining to this case on 21.04.2012 and in connection with this case, the accused persons were arrested on 23.04.2012 and from 23.04.2012 accused No.1 has been in Judicial 23 Custody till date. However, A2 was released on bail 22.09.2012 and he was re-arrested on 30.12.2013.
So accused No.2 also has been in Judicial Custody from 30.12.2013. Therefore, accused No.1 has already undergone the period of punishment imposed by the trial Court in Sessions Case No.86/2012.
Calculating the period of imprisonment from 30.12.2013, A2 has also undergone the punishment imposed upon him in Sessions Case No.3/2013. Therefore, if it is said that the sentences passed by the trial Court for the above said offences i.e., u/s.353, 332 of IPC and Section 25A of the Indian Arms Act to run concurrently, as the accused have completed the period of punishment already undergone, there is no need to retain them any more in jail. Therefore, extending the benefit u/s.428 of IPC, the period already undergone by the appellants amounts to undergoing the punishment imposed by the trial Court in the above said cases.
24
Under the above said circumstances, it is a fit case where the court can direct the jail authorities to release the appellants i.e., A1 and A2 in connection with Sessions Case No.86/2012 and Sessions Case No.3/2013 respectively, if they are not required in any other case.
Accordingly, Registry is hereby directed to send an intimation along with a copy of this order for release of the accused persons in the above said two Sessions Cases by directing the concerned jail authorities to release them forthwith, if they are not required in any other case.
In view of the disposal of the main appeals, pending consideration of Interlocutory applications filed for suspension of sentence do not survive and the same are dismissed.
Sd/-
JUDGE PL*