Karnataka High Court
P H Shahir @ Sukru vs State Of Karnataka on 6 December, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:50429
CRL.A No. 725 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 725 OF 2013
BETWEEN:
1. P H SHAHIR @ SUKRU
SON OF P.Y.HAMSA
AGED ABOUT 23 YEARS
BETHU VILLAGE, NAPOKLU
MADIKERI.
2. KANDAKERE SUBAIR
S/O K.K.YOUSUF
AGED ABOUT 23 YEARS
NEHRU NAGAR PAISARY, VIRAJPET
MADIKERI.
3. B M ALI ASGAR
S/O LATE MOHAMMED
AGED ABOUT 21 YEARS
KALLUMOTTE, NAPOKLU
MADIKERI.
Digitally signed by
LAKSHMINARAYANA 4. M JALEEL @ ABDUL JALEEL
MURTHY RAJASHRI
@ KUNJI ABDULLA
Location: HIGH
COURT OF S/O MOHAMMED
KARNATAKA AGED ABOUT 30 YEARS
BALAMURI VILLAGE, MURNAD
MADIKERI.
...APPELLANTS
(BY SRI B S SACHIN, ADVOCATE FOR A-1 AND A-3
SRI SUNIL S RAO, ADVOCATE FOR A-2 AND A-4)
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NC: 2024:KHC:50429
CRL.A No. 725 of 2013
AND:
STATE OF KARNATAKA
BY SUB-INSPECTOR
KUSHALNAGAR POLICE STATION
(BY PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI K NAGESHWARAPPA, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C
PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED
06.07.2013 PASSED BY THE 1ST ADDITIONAL DISTRICT & S.J.,
KODAGU, MADIKERI IN S.C.No.17/2011-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 397, 394 R/W 34 OF IPC AND ETC.,
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
1. This appeal is filed by the appellants - accused Nos. 1 to 4 praying to set aside the judgment of conviction and order on sentence dated 06.07.2013 passed in S.C. No. 17/2011 by the I Additional District and Sessions Judge, Kodagu, Madikeri. Appellant - accused Nos. 1 to 4 have been convicted for offence under Section 394 read with Section 34 of IPC and sentenced to undergo rigorous imprisonment for a period of 4 years and to pay fine of -3- NC: 2024:KHC:50429 CRL.A No. 725 of 2013 Rs.1,500/- each and accused Nos. 1 to 3 have been convicted for offence under Section 397 read with Section 34 of IPC and have been sentenced to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.2,500/- each.
2. The factual matrix of the prosecution case is, that appellant - accused Nos. 1 to 4 were in need of money to meet their day-to-day expenses, hence, they joined together, talked regarding how to get money in the easier manner and on 09.06.2010, at about 04.10 pm, accused Nos. 1 to 3 committed robbery in pursuance of information given by accused No. 4 to the other accused regarding drawing of money by P.W.2 belonging to Coffee Curing Trading Company of P.W.1 under 2 cheques in a sum of Rs.9,96,630/- and Rs.7,00,000/- in total Rs.16,96,736/- from the State Bank of Mysore, Kushal Nagar Branch, and while he was going with the said money in his Hero Honda Splendor Bike bearing registration No. KA-20-H-7650, on the information given by appellant - accused No. 4, the other accused chased -4- NC: 2024:KHC:50429 CRL.A No. 725 of 2013 the said bike in the red colour Maruti Swift car bearing registration No. KL-13-Q-6442 and dashed to the said bike of P.W.2 in front of D.Ed. College on the road leading from Harangi towards Kudlur. Due to the said hit, P.W.2 fell down from his bike and at that time, accused No. 2 got down from the car and threw chilly powder on the face of P.W.2 and snatched the bag containing cash of Rs.16,96,736/- and all the 3 accused persons went away in the said car and committed the offence. Charge sheet came to be filed against the appellants for offence under Sections 394 and 397 of IPC. The Magistrate committed the case to the Sessions Court. The Sessions Court framed charge for offence under Sections 394, 397 read with Section 34 of IPC. In order to prove the charge the prosecution has examined 29 witnesses as P.W.1 to P.W.29 and got marked 35 documents as Ex.P.1 to Ex.P.35 and material objects are marked as M.O.1 to M.O.9. Statement of the accused persons came to be recorded under Section 313 of Cr.P.C. The accused persons have examined 2 witnesses on their behalf as -5- NC: 2024:KHC:50429 CRL.A No. 725 of 2013 D.W.1 and D.W.2. D.W.1 is the mother of accused No. 1 and D.W.2 is the brother of accused No. 2 and they got marked Ex.D.1 to Ex.D.7. The trial Judge after hearing arguments on both sides formulated points for consideration and convicted the appellant - accused Nos. 1 to 4 for offence under Section 394 read with Section 34 of IPC and convicted accused Nos. 1 to 3 for offence under Section 397 read with Section 34 of IPC and sentenced them as noted supra. Said judgment of conviction and order on sentence is challenged in this appeal.
3. Heard learned counsel for appellant - accused Nos. 1 to 4 and learned HCGP for respondent - State.
4. Learned counsel for appellant - accused Nos.1 and 3 would contend that FIR came to be registered for offence under Section 394 of IPC against 2 - 3 unknown persons and charge sheet came to be filed against accused Nos.1 to 4 for offence under Sections 394 and 397 of IPC. The title to the cash in possession of P.W.2 has not been established. The said cheques tendered for encashment in the Bank are drawn in the name of Suresh and Bhavishya -6- NC: 2024:KHC:50429 CRL.A No. 725 of 2013 and they are not examined. As cheques were not drawn in favour of P.W.1 and P.W.2, they are not having any title over the said cash. The Investigating Officer has not collected the said cheques and details of denomination handed over by the Bank to P.W.2. He contends that the prosecution has not placed any documents or material to indicate that P.W.2 was working with P.W.1. As per the mahazar, the bike fell on right side and P.W.2 sustaining injuries on left hand is not probable. The injury noted in Ex.P.22 - wound certificate cannot cause unconsciousness. There is a delay in conducting the Test Identification Parade. Therefore, the Test Identification Parade is farce as there is probability of prosecution witnesses seeing the accused persons between the date of arrest and date of conducting of Test Identification Parade. There is delay in recording the statement of the eye witnesses, namely, P.W.7 and P.W.8. One JB who informed about the incident to P.W.1 has not been cited as a witness and he has not been examined. Recording of voluntary statement and recovery of cash at the instance of accused Nos. 1, 2 and -7- NC: 2024:KHC:50429 CRL.A No. 725 of 2013 4 is not in accordance with the decision of the Hon'ble Apex Court in the case of Subramanya Vs. State of Karnataka, reported in AIR 2022 SC 5110. No deadly weapon is used and therefore, offence under Section 397 of IPC is not attracted. Among the offenders if any one uses deadly weapon, then only such offender who used the weapon would be liable for offence under Section 397 of IPC. Considering the evidence on record, at the most, offence under Section 394 of IPC is attracted. The accused Nos. 1 and 3 have already spent more than 3 years in judicial custody. He placed reliance on the following decisions.
1. Subramanya Vs. State of Karnataka -
reported in AIR 2022 SC 5110"
2. Suresh Vs. State of Karntaka - reported in 2024(2) KCCR 1784.
3. Arjun marik Vs. State of Bhihar -reported in (1994) 25 CR 265.
4. Raju and Ors Vs. State of Karnataka -
reported in 2021 1 KarLJ 289.
5. Kannan & Another Vs. State through the inspector of police, Mudarai - reported in 2018 1 MLJ(Cri)735.
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013
6. Tiruvengadam @ tiruvenkatam Lakanadhan Vs State of Karnataka - reported in 2006 O ILR (Kar) 2739.
7. Giressan Nair & Ors Vs State of Kerala -
reported in 2022 SCC online SC 1558
8. Ganesan Vs State Rep. By Station House officer - reported in (2021) O Supreme (SC)
852.
9. Dilwar Singh Vs State of Delhi - reported in AIR 2007 SC 3234.
10. Babu Sahebagouda Rudragoudar Vs State of Karnataka - reported in (2024) O Supreme (SC) 357
11. Ramanada @ Nandlal Bharti Vs State of Uttar Pradesh - reported in (2022) O AIR (SC) 5273.
12. Sonu @ Sunil Vs State of Madhya Pradesh -
reported in 2020 O Supreme (SC) 385.
13. Devassia Joseph Vs State of Kerala - reported in 1982 CriLJ 714.
14. Harbeer Singh And Ors Vs Sheeshapal and Ors - reported in AIR 2016 SC 4958.
5. Learned counsel for appellant - accused Nos. 2 and 4 would contend that the news of robbery has spread in the entire Madikeri and residents of Madikeri have seen -9- NC: 2024:KHC:50429 CRL.A No. 725 of 2013 the accused persons who are in custody. The accused persons were not kept in cognitive (Beparada - ¨É¥ÀgÀzÁ). P.W.2 has stated that he became unconscious and therefore, eye witnesses P.W.7 and P.W.8 enquiring him is doubtful. P.W.7 and P.W.8 are students and they are concocted witnesses. In the wound certificate - Ex.P.22 there is no reference that P.W.2 has been referred to higher center and it is mentioned that mob of people brought him to the hospital. P.W.6 - Bank employee has stated that Suresh and Bhavishya in whose favour cheques were drawn were present in the bank, cheques were drawn and therefore, P.W.2 is not having title to the cash and therefore, custody of cash has not been established. In the Test Identification Parade accused No. 4 who was not present at the spot at the time of incident has also been identified by the witnesses and that itself indicates that the prosecution witnesses have seen the accused persons prior to the Test Identification Parade. Age of persons who participated in the Test Identification Parade
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 is not stated. Accused No. 3 came to be arrested on 20.08.2010 and accused Nos. 1, 2 and 4 were arrested on 20.09.2010 and Test Identification Parade has been conducted on 30.10.2010 and there is a delay in conducting the Test Identification Parade. P.W.2 has stated that he was unconscious and he got consciousness only after 1-½ days and the Doctor who examined P.W.2 has stated that he is injured and gave history of robbery. He further submits that no deadly weapon has been used and no injury has been caused by the accused persons and therefore, offence under Sections 394 or 397 of IPC are not attracted. He further submits that at the most, offence under Section 379 of IPC is attracted. He further submits that if the Court comes to the conclusion that appellants have to be convicted for the offences alleged against them, he prays for sentencing them for the period already undergone by them. He further submits that there is no resistance by P.W.2 at the time of taking away the bag containing cash and therefore, it does not attract offence under Sections 394 or 397 of IPC and at the most it
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 attracts offence under Section 379 of IPC. On these grounds both the learned counsel prayed for allowing the appeal.
6. Learned HCGP would contend that the evidence of bank officials, i.e., P.W.5 and P.W.6 itself indicates that cash of Rs.16,96,730/- has been handed over to P.W.2 on the date of incident after honouring 2 cheques. Said evidence of P.W.5 and P.W.6 coupled with the evidence of P.W.2 establish that P.W.2 was possessing the said cash and he was traveling on his bike. P.W.7 and P.W.8 are eye witnesses to the incident who have seen accused Nos. 1 to 3 coming in the car, dashing to the bike of P.W.2, one of the accused getting down from the car and taking away the bag containing cash. They have identified the accused persons in the Test Identification Parade. P.W.25 - the Doctor who examined P.W.2 has issued wound certificate Ex.P.22 wherein injury No. 2 is stated to be grievous in nature and injury No. 2 is stated to be simple injury. Recovery of cash from accused Nos. 1, 2 and 4 under mahazar Ex.P.15 has been established by the evidence of
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 P.W.15, P.W.16 and Investigating Officer - P.W.28. P.W.2, P.W.7 and P.W.8 have identified the accused persons in the Test Identification Parade. The Tashildar who conducted the Test Identification Parade has stated regarding conducting of Test Identification Parade and identification of the accused persons by the witnesses. He has supported the reasoning assigned by the trial Court in convicting the appellants. On these grounds he prayed for dismissal of the appeal.
7. Having heard the learned counsel for the appellants and learned HCGP for respondent, considering the grounds raised and urged and on perusal of the records, the following points arise for consideration in this appeal.
i. Whether the trial Court has erred in convicting accused Nos. 1 to 3 for offence under Section 397 of IPC?
ii. Whether the trial Court has erred in convicting accused Nos. 1 to 4 for offence under Section 394 read with Section 34 of IPC?
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 iii. Whether the appellants - accused Nos. 1 to 4 have made out grounds for reduction of sentence of imprisonment for the period already undergone by them?
8. My answer to the to the above points are:
Point No. i - Affirmative
Point No. ii - Negative
Point No. iii - Affirmative
REASONS ON POINT Nos. i and ii
9. P.W.1 is the complainant and he was running the business of Coffee Curing Trading Company wherein P.W.2 was working. P.W.1 in his complaint and also in his evidence has stated regarding sending P.W.2 on 09.06.2010 to State Bank of Mysore, Kushalnagar Branch for encashment of 2 cheques one drawn for Rs.9,96,730/- and another for Rs.7,00,000/-. P.W.2 has deposed regarding he working under P.W.1 and going to State Bank
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 of Mysore, Kushalnagar Branch on 09.06.2010 for encashing the said 2 cheques. It is the evidence of P.W.2 that he encashed the said 2 cheques and got cash of Rs.16,96,730/- from the Bank, kept it in his bag and was moving with the said bag on his Hero Honda Splendor bike bearing No. KA-20-H-7650. P.W.2 and P.W.6 who are the officials of State Bank of Mysore, Kushalnagar Branch have deposed regarding they honouring the said 2 cheques brought by P.W.2 drawn in the name of Suresh and Bhavishya and handing over cash of Rs.16,96,730/- to P.W.2. Learned counsel for appellants argued much regarding title of the said cash carried by P.W.2. It is the evidence of P.W.5 and P.W.6 that even though the said 2 cheques were drawn in the name of Suresh and Bhavishya they honoured the cheques as said Suresh and Bhavishya were present in the Bank and P.W.2 carried cash of Rs.16,96,730/-. It is not the title to the said cash that is required to be considered and it is possession of cash by P.W.2 which requires consideration. Evidence of P.W.2, P.W.5 and P.W.6 itself establishes that P.W.2 has
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 encahsed cheques and got cash of Rs.16,96,730/- and he was carrying the said cash on his bike. Said evidence establishes that P.W.2 was traveling in his Hero Honda Splendor bike with cash of Rs.16,96,730/- in a bag.
10. Evidence of P.W.2, P.W.7 and P.W.8 establish that three persons came in Maruti Car and it dashed to the bike of P.W.2 and he fell down and one person from the car got down and snatched the bag containing cash from P.W.2 and took it and all the 3 accused went in the said car. P.W.2 has stated that due to the said dashing of the car to his bike he fell down and sustained injury to his head and hand. Ex.P.22 - wound certificate indicate that P.W.2 has sustained 2 injuries, one on left fist and another on left side of forehead.
11. The Doctor who examined P.W.2 has stated that he was brought by a mob of people and he was conscious and gave history of robbery of cash after dashing of a car to his bike. The Doctor examined P.W.2 on 09.06.2010 at 04.30 pm. As per evidence of P.W.2 and averments of complaint - Ex.P.1, the incident has taken
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 place at 04.10 pm on 09.06.2010. Even though there is no mention of referring P.W.2 to the other hospital, but there is a reference of Vikram John Hospital in Ex.P.22. P.W.2 has also stated that he was treated in Vikram John Hospital, Mysore.
12. Accused Nos. 1, 2 and 4 were arrested on 20.09.2010 and there is recovery of cash from the possession of accused Nos. 1, 2 and 4 under mahazar - Ex.P.15. P.W.15 and P.W.16 are panchas to the said mahazar Ex.P.15 who have deposed regarding seizure of cash from the possession of accused Nos. 1, 2 and 4.
13. Learned counsel for appellants - accused have argued much on the validity of said recovery/discovery referring to Section 27 of the Evidence Act and placing reliance on the decision of the Hon'ble Apex Court in the case of Subramanya (supra). There is no discovery of any article at the instance of accused Nos. 1, 2 and 4. Based on their voluntary statements there is recovery of cash in their possession in the Police premises in the presence of P.W.15 and P.W.16. As there is recovery of
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 cash from the possession of accused persons in the Police premises, there is no question of any discovery based on their voluntary statement which needs following of procedure of recording voluntary statement in the mahazar in their own words in the presence of panchas as held in the case of Subramanya (supra). There is recovery of cash of Rs.8,00,000/- from the possession of accused No. 1, Rs.1,00,000/- from the possession of accused No. 2 and Rs.10,000/- from the possession of accused No. 4 under mahazar - Ex.P.15 in the presence of P.W.15 and P.W.16. Evidence of P.W.15 and P.W.16 coupled with the evidence of P.W.28 - Investigating Officer establishes the seizure of cash from the possession of accused Nos. 1, 2 and 4.
14. P.W.2 has identified accused Nos. 1 to 3 in the Test Identification Parade conducted by the Tahsildar. The proceedings of Test Identification Parade are at Ex.P.8 and Ex.P.9. P.W.7 and P.W.8 have also participated in the Test Identification Parade and they have identified accused Nos.1 to 4. Learned counsel for appellants much
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 highlighted that accused No. 4 who was not present at the spot in the car was also identified by the eye witnesses and that itself indicate that they have seen accused No. 4 earlier to the conduct of Test Identification Parade. Merely because eye witnesses have identified accused No. 4 in the Test Identification Parade itself would not vitiate the Test Identification Parade. P.W.1, P.W.7 and P.W.8 have identified accused Nos. 1 to 3 in the Test Identification Parade conducted by the Tahsildar as per proceedings which are at Ex.P.8 and Ex.P.9. On 2 dates Test Identification Parade has been conducted, one on 30.10.2010 and another on 19.11.2020. Learned counsel much highlighted on the gap between the date of arrest of the accused persons and the date of conduct of Test Identification Parade and possibility of the prosecution witnesses seeing the accused persons in between that period. There is no suggestion either to P.W.2 or to P.W.7 and P.W.8, in their cross-examination, that from the date of arrest of accused persons till the date of Test Identification Parade whether they have seen the accused
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 persons. P.W.2, P.W.7 and P.W.8 have not only identified accused Nos.1 to 3 in the Test Identification Parade but have also identified accused Nos. 1 to 3 in the Court at the time of giving evidence. Therefore, evidence of P.W.2, P.W.7 and P.W.8 establishes that accused Nos. 1 to 3 came in the car which dashed against the bike of P.W.2, accused No. 2 got down and snatched the bag containing cash from P.W.2 and all the accused persons went in the car.
15. Recovery of Rs.10,000/- from the possession of accused No. 4 which is part of robbed amount itself establish that there was a prior meeting of mind between accused Nos. 1 to 3 and accused No. 4 on 08.06.2010 and accused No. 4 informing accused Nos. 1 to 3 of P.W.2 encashing cheques and carrying cash on his bike. Therefore, accused Nos. 1 to 4 are having common intention to rob cash from the possession of P.W.2.
16. The accused persons lead defence evidence stating that after arrest of accused Nos. 1 and 2, D.W.1 - mother of accused No. 1 and D.W.2 - brother of accused
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 No. 2 for release of accused persons they have handed over cash to the Police on their demand. There is no suggestion to P.W.1 and P.W.2 in that regard. There is no suggestion of name and rank of Police official who demanded and to whom D.W.1 and D.W.2 have given cash for release of accused Nos. 1 and 2. The trial Court considering the oral evidence of D.W.1 and D.W.2 and documents Ex.D.1 to Ex.D.7 has rightly come to the conclusion that defence set up by the defence witnesses that amount alleged to have been seized under mahazar Ex.P.15 is the amount given by D.W.1 and D.W.2 to the Police. Therefore, evidence on record is sufficient to hold that the accused Nos. 1 to 4, with a common intention, hatched a plan and accused No. 4 intimated carrying of cash by P.W.2 on his bike to accused Nos. 1 to 3 and they came in the car and dashed the car against the bike of P.W.2 and snatched away the bag containing cash from the possession of P.W.2 and went away in the said car.
17. Considering the arguments advanced the next question that arises is, whether the accused persons have
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 committed offence under Section 397 or they have committed offence under Section 394 of IPC?
18. Learned counsel for accused Nos. 2 and 4 has argued that appellants only committed offence under Section 379 of IPC, i.e. theft. Theft is defined under Section 378 of IPC which reads thus:
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 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
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 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."
19. Punishment for theft is provided under Section 379 and it reads thus:
379. Punishment of theft. - Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
20. The act proved by the prosecution against accused Nos.1 to 4 is theft. Whether that theft is robbery requires consideration. Robbery is defined under Section 390 of IPC which reads thus:
390. Robbery - In all robbery there is either theft or extortion.
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 When theft is robbery - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, 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. When extortion is robbery - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted.
Explanations - The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
21. In order to committing of theft or in committing theft, or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes or attempts to cause to any
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 person death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint, that amounts to robbery. In the case on hand accused Nos.1 to 3 dashed their car to bike of P.W.2 who fell down and it caused hurt. Ex.P22 - wound certificate establishes that hurt has been caused to P.W.2 and he has sustained injuries. The act of accused Nos.1 to 3 dashing their car to the bike of P.W.2 is in order to commit theft and it caused hurt to P.W.2. Therefore, said theft by accused persons amounts to robbery as defined under Section 390 of IPC. As hurt is caused to P.W.2 in the act of robbery, it is punishable under Section 394 of IPC. Accused Nos. 1 to 3 have not used any deadly weapons for causing hurt to P.W.2 and therefore, the offence under Section 397 of IPC is not attracted. As per ingredients of Section 394 of IPC, the person who caused hurt and other persons jointly concerned in committing such robbery also commit said offence. Accused No.4 had common intention with accused Nos.1 to 3 for committing robbery of cash carried by P.W.2 and he intimated the movement of P.W.2
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 with cash on his bag to accused Nos.1 to 3. Therefore, accused No.4 is liable and committed offence punishable under Section 394 of IPC. In view of the above reasons point Nos.1 and 2 are answered accordingly.
REASONS ON POINT No. iii
22. The trial Court has imposed sentence of rigorous imprisonment for a period of 4 years and fine of Rs.1,500/- each against accused Nos.1 to 4 who are appellants herein for offence punishable under Section 394 read with Section 34 of IPC. Learned counsel for appellants submits that the alleged incident occurred in the year 2010 and appellants who were young at that time are now married and having family responsibilities and prayed to reduce sentence of imprisonment for the period already undergone by them. Accused No.3 is in custody for a period of 3 years 1month and 22 days and accused Nos. 1, 2 and 4 are in custody for a period of 3 years and 22 days. Considering the age, lapse of time and family responsibilities of accused persons, the sentence for
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013 offence punishable under Section 394 of IPC requires to be reduced to the period already undergone by them by enhancing fine amount to a sum of Rs.50,000/- each from Rs.1,500/- each. Accordingly, point No.3 is answered.
23. In the result, the following ORDER The appeal is allowed in part. The judgment of conviction and order on sentence dated 06.07.2013 passed in S.C. No. 17/2011 by the I Additional District and Sessions Judge, Kodagu, Madikeri is modified as under
i) Appellant accused Nos.1 to 3 are acquitted for the offence punishable under Section 397 read with Section 34 of IPC.
ii) The conviction of appellants - accused Nos. 1 to 4 for the offence punishable under Section 394 read with Section 34 of IPC is affirmed.
iii) Sentence of imprisonment for the said offence is reduced to the period in custody already undergone by accused Nos.1 to 4.
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NC: 2024:KHC:50429 CRL.A No. 725 of 2013
iv) Fine for the said offence is enhanced from Rs.1,500/- each to Rs.50,000/- each. In default of payment of fine, appellants to undergo simple imprisonment for a period of two months.
v) Appellants are directed to deposit fine amount within 15 days from this day. If appellants fail to deposit the fine amount before the trial Court within that period, the trial Court is directed to secure them for undergoing default sentence. In view of the disposal of the appeal I.A. No. 1/2024 does not survive for consideration and it is disposed of.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE LRS, DSP List No.: 1 Sl No.: 5