Karnataka High Court
Sri Vadiraja vs State By C.P.I Udupi on 23 July, 2014
1 Crl.A 386/12
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23RD DAY OF JULY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
CRIMINAL APPEAL No.386 OF 2012
BETWEEN:
VADIRAJA,
S/O. RAMA KOTIAN,
AGED ABOUT 27 YEARS,
R/AT JANATHA COLONY,
3RD CROSS, DODDANAGUDDE,
SHIVALLI VILLAGE, UDUPI.
... APPELLANT
[BY M/S. AMAR CORREA ASSTS, ADVS]
AND:
STATE BY C.P.I., UDUPI,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BANGALORE.
... RESPONDENT
[BY SRI. K. NAGESHWARAPPA, HCGP]
THIS CRL.A. IS FILED UNDER SECTION 374(2)
CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT DATED
22.03.2012 PASSED BY THE DIST. & S.J., UDUPI IN
S.C.NO.101/2010 - CONVICTING THE APPELLANT/ACCUSED
NO.2 FOR THE OFFENCE P/U/S.392 IPC. THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR
10 YEARS AND TO PAY A FINE OF RS.5,000/- IN
2 Crl.A 386/12
DEFAULT OF PAYMENT OF FINE, HE SHALL UNDERGO R.I.
FOR TWO MONTHS FOR THE OFFENCE P/U/S.392 IPC.
THIS CRL.A. COMING ON FOR HEARING, THIS DAY
THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has challenged his conviction and sentence for the offence punishable under Section 392 IPC on a trial held by the Sessions Judge, Udupi.
2. The facts reveal that PW1 - Nirmala and her son PW2 - Girish are the neighbors of PW4 - Varijakshi and on 24.04.2010 they attended the marriage function and while they were returning they came in an autorickshaw and stopped it near the house of one Raviraj. While all the three were proceeding on the road towards their residence, the appellant came from the opposite direction and tried to snatch the golden chain of PW4. she held the portion of chain in her hand at the neck to avoid snatching and as the appellant- accused herein pushed her, she fell down and part 3 Crl.A 386/12 of the chain was in the hand of accused and he ran away from the place. He escaped on a motor cycle which came from her side and rider of the motor cycle and the chain snatcher went on it.
All the three approached the police and submitted the complaint (Ex.P2) and on registration of the crime, the police held spot mahazar as per Ex.P1 in the presence of PWs.3, 4 and 11. Statement was recorded and on 18.07.2010, accused Nos.1 and 2 were arrested and their voluntary statement was recorded. Accused No.3 produced the broken chain (MO1) and coral chain (MO2). They were seized under the mahazar. PW12
- Prasanna Kumar, the Tahsildar held the identification parade. The appellant was identified by PWs.1, 2 and 4. The report (Ex.P22) was collected and on completion of investigation, chargesheet was laid against the accused for the offence under Section 392 IPC.
4 Crl.A 386/12
Learned Trial Judge framed the charge and in trial, PWs.1 to 12 were examined and in their evidence, Exs.P1 to P22 and Mos.1 and 2 were marked. After recording the statement of accused under Section 313 Cr.P.C. no defence evidence was led. The Trial Court after hearing the counsel and on appreciation of the evidence on record, convicted the appellant (accused No.2) for the charge under Section 392 IPC and ordered him to undergo rigorous imprisonment for 10 years and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for 2 months. Aggrieved by the judgment and order, the present appeal is filed.
3. Heard the learned Counsel for appellant and also learned High Court Government Pleader.
4. The point that arises for my consideration is:
5 Crl.A 386/12
"Whether the appellant has made out any grounds to warrant interference in his conviction and sentence for the offence under Section 392 IPC?"
5. Learned Counsel for the appellant submits that the Trial Court has not framed proper charge and the evidence on record is insufficient to attract the provisions of Section 392 IPC. He submits that at the most, it could be an offence under Section 379 IPC. He submits that proper identification parade was not held and the evidence of PW12 cannot be relied upon.
Alternatively, it is his contention that the sentence is on the higher side and he seeks reduction on the ground that the appellant has been defending the case for the last morethan 5 years. On these grounds, he has sought for setting aside the conviction and sentence ordered by the Trial Court.
6 Crl.A 386/12
6. On the other hand, learned High Court Government Pleader supporting the judgment and order of the Trial Court submits that there is consistent and cogent evidence to prove the offence under Section 392 IPC.
7. PWs.1, 2 and 4 are the eye witnesses who speak about the incident of chain snatching and their evidence reveals that while all the three were returning by walk towards their residence in the night at about 9.30 p.m., the appellant came from the opposite direction and tried to snatch the gold chain and coral chain from the neck of PW4. At that time, she held the portion of chain to resist the snatching and when the accused dragged the chain, she was pushed and she fell to the ground. The evidence of PWs.1, 2 and 4 on this aspect of the matter is consistent. All these three witnesses have identified the appellant as accused No.2 in the Trial Court. 7 Crl.A 386/12
8. So far as other accused are concerned, they are the persons who brought the scooter and enabled accused No.2 to escape from the place of incident. PWs.1, 2 and 4 have not identified the rider of scooter. Perusal of their evidence would reveal that there was an opportunity to the victim and also PWs.1 and 2 to observe the features of accused at the time of his effort to snatch the chain. PW12 - Prasanna Kumar held the identification parade and scrutiny of the report (Ex.P22) would reveal that the aforesaid witnesses identified the appellant when he was made to stand among the other persons in the identification parade. The evidence of PW.12 and the contents of Ex.P22 are consistent and as the aforesaid witnesses have identified him in the identification parade, their evidence of identifying the accused even in the open Court substantiates the evidence of PW12 and the report submitted in this regard.
8 Crl.A 386/12
9. As to the question whether it is a theft or robbery, as contended by learned counsel inviting the provisions of Sections 341 and 392 IPC, it is contended that it is a simple case of chain snatching and at the most it would amount to an offence under Section 379 IPC. He submits that there was no wrongful restraint of the victim and that the ingredients of Section 341 IPC are not fulfilled. So far as the offence under Section 392 IPC is concerned, causing wrongful restraint at the time of commission of theft is the offence of robbery. The offence of wrongful restraint is not an independent offence. It is the act of accused to restrain the victim at the time of committing theft.
10. So if this definition as provided under Section 392 IPC is looked into, it is relevant to note that the accused came from the opposite direction, put his hands on the neck of the victim and tried to snatch the ornaments and at that 9 Crl.A 386/12 time, she held the chain and portion of chain came in her hands. There was effort by the accused to snatch it and at that time, she fell down. The chain was broken and portion of the chains remained in her hand and other portions were taken away by the accused. This conduct of snatching by using force and during which she fell down amounts to the act of wrongful restraint i.e., part of the offence of robbery in committing the theft of ornaments of victim. Therefore, I am of the opinion that the Trial Court has rightly framed the charge for the offence under Section 392 IPC and the evidence of PWs.1, 2 and 4 is sufficient to prove the act of robbery.
11. Learned Counsel for the appellant has placed reliance on the decision of Apex Court reported in (1989) 3 SCC 221 (Suryamoorthi and another Vs Govindaswamy and Others). The Apex Court has held that Section 392 IPC is an aggravated form of theft wherein there is a 10 Crl.A 386/12 intention on the part of accused either to cause threat or wrongful restraint in committing the offence of theft. As the material placed on record is sufficient to prove that there was instant wrongful restraint at the time of snatching, she had right to defend her own property i.e., the ornaments. She held the portion of chain and that the accused pursued his effort to snatch the chain. Due to the force used in the commission of crime, she fell down and this act of the accused is a wrongful restraint in commission of theft and thereby the ingredients of Section 392 IPC are proved. I do not find any force in the contention on the principle laid down in the decision referred to supra.
12. The prosecution has examined PW6 - Ramadas Nayak to prove the recovery of Mos.1 and 2 under the mahazar Ex.P7. The witness has turned hostile to the prosecution. Anyhow, the investigating officer has spoken about the 11 Crl.A 386/12 recovery of Mos.1 and 2, at the instance of accused No.3, these material objects have been identified by PW4, the victim as her jewellery. Anyhow, the portion of chain which was snatched at the instance of accused No.2 on the date of incident was recovered at the instance of accused No.3 and this recovery also substantiates the case of prosecution.
13. PW5 - Sudhakara is the attesting witness for the mahazar (Ex.P4), wherein the accused shown the place of incident. There is no incriminating circumstance in the evidence of PW5 or mahazar Ex.P4. PW7 - Abhijith Kumar is the pancha witness for drawing the mahazar Ex.P7 and he has also not supported the case of prosecution.
14. Whenever the attesting witnesses do not support the case of prosecution as the investigating officer is the person who has been entrusted the responsibility of detention of crime and seek punishment of the accused persons, there 12 Crl.A 386/12 is no impediment to accept the evidence of investigating officer to prove the recovery. Hence, I am of the opinion that apart from the recovery, there is other evidence of eye witnesses i.e., the victim and also the evidence of PW12, the Tahsildar who held the identification parade. The accused was arrested on 18.07.2010 and the identification parade was held on 17.08.2010 within a short period and as the incident was in the month of April 2010, the identification of accused by PWs.1, 2 and 4 cannot be doubted.
15. The evidence of PW8 - Guruprasad is not relevant. PW9 - Narayana is the police officer who registered the crime on the complaint filed by PW4. PW10 - Madhu is the police officer who apprehended the accused, whereas PW11 - Girish is the investigating officer. The scrutiny of material placed on record would indicate that the prosecution is able to prove the offence under 13 Crl.A 386/12 Section 392 IPC. Hence, the conviction ordered by the Trial Court cannot be interfered with.
16. Perusal of the facts of incident would reveal that no injury has been caused to the victim. It is only a case she tried to protect the ornaments and that she fell down. Taking into consideration the nature of offence, the punishment provided, the interest of justice would be met in case if the sentence is reduced to 5 years with fine. Therefore, the above point is answered partly in 'Affirmative' and partly in 'Negative'.
17. Consequently, the appeal is allowed in part affirming the conviction of appellant for the offence under Section 392 IPC. The sentence is modified. The appellant shall undergo rigorous imprisonment for 5 years and to pay fine of Rs.5,000/- in default to undergo simple imprisonment for 2 months.
14 Crl.A 386/12
The appellant is entitled to set off under Section 428 Cr.P.C.
Sd/-
JUDGE *bgn/-