Karnataka High Court
Mr Arif S/O Lt Usman Saheb vs State By Kaup Police on 22 June, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22ND DAY OF JUNE 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL REVISION PETITION No.994 OF 2009
BETWEEN :
Mr Arif,
Son of Late Usman Saheb,
Aged about 25 Years,
Residing at No.46, Agrahara,
Katpadi, Yennegude Village,
Udupi Taluk and District. ...PETITIONER
( By Shri. Abubacker Shafi, Advocate )
AND:
State by Kaup Police,
Udupi District. ...RESPONDENT
( By Shri. P.Karunakara, Advocate)
*****
This Criminal Revision Petition is filed under Section 397 read
with 401 Criminal Procedure Code 1973 by the advocate for the
petitioner praying that this Hon'ble Court may be pleased to set aside
the final conviction order and judgment passed by the Fast Track
2
Judge at Udupi in Criminal Appeal No.18/2009 on 03.10.2009 and in
consequence set aside the order of conviction and judgment passed by
the Principal Civil Judge (Sr.Dn.) and Chief Judicial Magistrate at
Udupi in C.C.No.10/2008 dated 18.04.2009.
This Criminal Revision Petition is coming on for Hearing, this
day, the court made the following:
ORDER
Heard the learned counsel for the petitioner and the learned Government Pleader. The petitioner was the accused before the Trial Court in the following background:
It was alleged by the prosecution that on 25.2.2008 at about 8.30 p.m., when the complainant after alighting from the express bus stop at Yenagudde, Katpady and while walking towards the Petrol Bunk, the accused is said to have accosted him and snatched a bundle of currency notes amounting to Rs.10,000/- from his hand and had run away, and thereby it was alleged that he had committed an offence punishable under Section 392 of the Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity). The accused had pleaded not guilty and claimed to be tried. The prosecution thereafter 3 examined PWs 1 to 7 at the trial and marked several documents and identified material objects. The court below, having held that the charges were proved, had convicted the petitioner for the offence punishable under Section 392 IPC and sentenced him to undergo rigorous imprisonment for one year apart from imposing a fine of Rs.10,000/-. That having been carried in appeal, the Appellate Court has affirmed the judgment of the Trial Court. It is that which is under challenge in the present petition.
2. It is seen that PW-1 who was the complainant, was a flower vendor and it was his case that he had been to Mangalore to recover Rs.10,000/-, which was due to be paid to him by one Khasim Saheb, who was examined as PW-4 and this was in relation to a transaction whereby the complainant had sold flowers to the said Khasim Saheb and while he was returning with such money tied in a white cloth bundle, that the accused had forcibly snatched the amount from his hand and on the complainant raising a hue and cry, that others had chased the accused and when the accused tripped and fell down, he 4 was apprehended and brought to the Police Station and thereafter, proceedings were initiated against him.
3. The learned counsel for the petitioner would seek to point out that the entire prosecution case is false and without any basis. The petitioner was admittedly a florist who was well-to-do and that his father was also engaged in the said business and he was well-known in the locality. However, there was enmity between the petitioner's father and others, including the complainant and his friends. It is alleged that PWs 2, 3 and 5 who had allegedly chased the accused and apprehended him, apart from PW-4, the other witness who was a merchant from Mangalore who had paid the money, were all activists of right-wing Hindu outfits, who were inimically disposed to the petitioner's Muslim community, and therefore, the entire episode had been stage-managed. This is apparent from the circumstances which are sought to be set up against the petitioner. Firstly, the claim that the complainant had alighted from a bus and that he was proceeding towards the petrol bunk, at which point of time the accused is said to 5 have snatched the bundle from his hand and had tried to run away, is a story which cannot be accepted. Admittedly, the complainant was wearing trousers and he could have very well carried the cash in his trouser pocket. It was not expected of him to be carrying currency notes, which were all admittedly in the denomination of Rs.100/- in a cloth bundle. It could have very well been carried in his pocket. It is only to fortify the story that the money was visible and that the money could be snatched from his hand, the complainant had set up a claim that he was carrying the money in a cloth bundle. Further, PW-2, 3 and 5 were all florists who had admitted that they knew the accused. Therefore, the learned counsel would submit that human conduct, especially involving a crime would not be conducted by known persons knowing fully well that he would be identified and brought to book and therefore, the entire prosecution case is ridden with suspicious circumstances and it is consistent with the further circumstance that there was unrest between the Hindu and the Muslim community and it was an ongoing situation at that point of time and 6 therefore, the case of the accused that he was being falsely implicated by the group of people who belonged to such right-wing Hindu outfits, is patent on the face of it. It is further pointed out that insofar as PW-4 is concerned, he has also stated that he knew the accused, which would again indicate that it was a deliberate conspiracy hatched by PWs 1 to 5 to ensure that the charges against the accused were brought home. In the cross-examination of PW-4, he has clearly admitted that he could not say whether MO-1 which was the cash bundle which was produced as the evidence for the prosecution, was indeed the money that had been paid to the complainant PW-1. Therefore, the entire story was not capable of being accepted. In this regard, the learned counsel would take this Court through the record extensively, especially with reference to the cross-examination of several witnesses, to demonstrate that the case of the prosecution that there was a robbery, is not established. It is further pointed out that an offence punishable under Section 392 IPC, requires certain ingredients to be present and going by the allegations, it cannot be said that an 7 offence punishable under Section 392 IPC has been made out. In this regard, the learned counsel would submit that though there is either theft or extortion in all robbery, theft is robbery, if, in order to commit theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. None of these latter circumstances are present. Therefore, to have alleged that there was an offence punishable under Section 392 IPC and the courts below having held that the same was established and having imposed the punishment on that footing, is clearly a miscarriage of justice and hence, would have to be set at naught. It is these aspects which the learned counsel would emphasise and re-emphasise and would plead that the petitioner has a family consisting of two unmarried sisters, and if the conviction is sustained on the basis of such nebulous material, it would result in the reputation of the petitioner being destroyed and the effect of the same would befall his family as well, and would therefore, ruin his family and hence, he would plead that 8 this Court view the facts and circumstances with greater circumspection, in order to avoid miscarriage of justice.
4. While the learned Government Pleader would seek to justify the judgment and would submit that the findings of fact by the courts below are concurrent findings on the basis of cogent evidence of several witnesses. The petitioner was caught red-handed in the commission of the offence and this has been substantiated by consistent evidence of all the witnesses. The allegation that there was a conspiracy by the witnesses in order to implicate the petitioner on account of his belonging to a particular community, is not established neither by tendering positive evidence, nor on the basis of cross- examination of the prosecution witnesses. Though suggestions have been made to the effect that several witnesses belonged to right-wing Hindu outfits and due to Hindu - Muslim clashes prevailing at that particular point of time, the petitioner who belonged to the Muslim community against whom the complainant was inimically disposed, was falsely implicated in the offence, is not material to the facts and 9 circumstances of the case when the evidence of the several witnesses can be sustained independently, and since they have been tested in cross-examination, it cannot be said that the offence made out against the petitioner is baseless. Therefore, the learned Government Pleader would submit that there is no warrant for interference by this Court in revision, especially since the petitioner calls upon this Court to re- examine the evidence which would be the outside usual scope of revision, unless circumstances are made out to demonstrate that the courts below have overlooked evidence which was present or have arrived at findings without any basis, nor is there any perversity in the findings of the courts below and since the punishment imposed is nominal in spite of the fact that the maximum punishment prescribed was much more, there is no injustice caused to the petitioner and hence, prays for dismissal of the petition.
5. In the above background, it is to be seen that insofar as the merits of the case is concerned, there is one aspect of the matter which stands out namely, that the allegation of commission of an offence 10 punishable under Section 392 IPC. As rightly pointed out by the counsel for the petitioner, the ingredients of an offence punishable under Section 392 IPC are apparently not there. It cannot be characterized as robbery, if the theft which may stand established in the circumstances of the case, is not accompanied by the commission of voluntary hurt or wrongful restraint or fear of instant death or instant hurt. The allegations of the complainant do not indicate any such ingredients, in which event, the offence if at all established, is one of theft and it cannot be characterized as robbery. In which event, the commission of the offence of theft would be punishable under Section 379 IPC for which the prescription is imprisonment, which may extent to three years or that of fine or both. In that view of the matter, this is one aspect that has been overlooked by both the courts below and would require to be modified. Insofar as the contentions on the facts are concerned, or the theory that is set up by the petitioner, in that there was a conspiracy on the part of the witnesses to implicate the petitioner since he belonged to the Muslim 11 community and that they were activists of particular Hindu Outfits, is not established. On the other hand, the fact of the petitioner having snatched the currency bundle from the hand of the complainant and the petitioner having been apprehended after a chase by the several witnesses, is established by the consistent evidence of those witnesses. The further circumstance that the money was being carried in a cloth bundle and the petitioner could very well have carried the same in his trouser pocket, is a circumstance that would not detract from the fact that the incident may have occurred in the manner which has been suggested. Therefore, though a serious attempt has been made by the counsel for the petitioner to demonstrate that there were circumstances which could absolve the petitioner of commission of any offence, the evidence is consistent and there has been no dent made in the case of the prosecution except for the infirmity as pointed out hereinabove.
6. There is no reason for this Court to disbelieve the evidence of the prosecution. In that light of the matter, the petition is allowed in 12 part. Having regard to the fact that the evidence would at best make out the commission of theft and given the circumstances of the case and the further circumstance that the courts below also have imposed a punishment having due regard to the gravity of commission of the offence, and the manner in which it has occurred, it would be appropriate if the sentence imposed by the courts below stand modified to that of simple imprisonment for a period of three months, and imposition of fine of Rs.20,000/- instead of Rs.10,000/-, and in default of payment of fine to undergo a further simple imprisonment of three months.
Sd/-
JUDGE KS