Karnataka High Court
Sri Ravi @ Johnson vs State Of Karnataka on 7 March, 2014
Author: N.Ananda
Bench: N.Ananda
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL No.864/2009 C/W
CRIMINAL APPEAL Nos.876/2009 & 894/2009
CRL.A.No.864/2009
BETWEEN:
SRI RAVI @ JOHNSON
S/O MUNIYAPPA, 22 YEARS
R/AT SINGANAYAKANAHALLI
YELAHANKA HOBLI
BANGALORE. ... APPELLANT
(BY SRI K B K SWAMY, ADV.)
AND:
STATE OF KARNATAKA
DODDABALLAPURA POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR
OFFICE OF THE ADVOCATE GENERAL
HIGH COURT BUILDING
BANGALORE. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE CONVICTION AND SENTENCE
PASSED BY THE ADHOC DISTRICT AND SESSIONS JUDGE,
FTC-I, BANGALORE RURAL DISTRICT, BANGALORE IN
S.C.NO.71/2009 DATED 24.10.2009 - CONVICTING THE
APPELLANT/ACCUSED FOR OFFENCES PUNISHABLE UNDER
SECTIONS 399 & 402 IPC & ETC.
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CRL.A.No.876/2009
BETWEEN:
SRI DEVARAJ @ AJIT @ MORRI
S/O CHELUVARAYAPPA, 28 YEARS
KACHERIPALYA
DODDABALLAPUR - 561 203
BANGALORE RURAL DISTRICT. ... APPELLANT
(BY SRI S A KHADRI, ADV.)
AND:
THE STATE OF KARNATAKA
REP. BY ITS STATION HEAD OFFICER
DODDABALLAPUR TOWN POLICE
BANGALORE RURAL DISTRICT. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT DATED 24.10.2009 IN
S.C.NO.71/2009, PASSED BY THE ADHOC DISTRICT AND
SESSIONS JUDGE, FTC-I, BANGALORE RURAL DISTRICT,
BANGALORE, CONVICTING THE APPELLANT/ACCUSED NO.4
FOR OFFENCES PUNISHABLE UNDER SECTIONS 399 & 402 IPC
& ETC.
CRL.A.No.894/2009
BETWEEN:
VIJAY KUMAR @ VIJAY
S/O PUTTAPPA, 23 YEARS
R/AT SINGANAYAKANAHALLI
YELAHANKA HOBLI
BANGALORE. ... APPELLANT
(BY SRI G R VENKATESH, ADV.)
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AND:
STATE OF KARNATAKA
BY DODDABALALPUR POLICE. ... RESPONDENT
(BY SRI B VISWESWARAIAH, HCGP)
THIS APPEAL IS FILED UNDER SECTION 374(2) CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER AND
SENTENCE DATED 24.10.2009 PASSED IN S.C.NO.71/2009 ON
THE FILE OF THE ADHOC DISTRICT AND SESSIONS JUDGE,
FTC-I, BANGALORE RURAL DISTRICT, BANGALORE -
CONVICTING THE APPELLANT/ACCUSED FOR OFFENCES
PUNISHABLE UNDER SECTIONS 399 & 402 IPC & ETC.
THESE APPEALS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A 864/2009 is filed by accused no.1, Crl.A 876/2009 is filed by accused no.4 and Crl.A 894/2009 is filed by accused no.3 against judgment of conviction for offences punishable under Sections 399 and 402 IPC, in S.C.No.71/2009 on the file of Fast Track Court-I, Bangalore Rural District.
Accused no.2 and accused no.5 absconded during trial. Therefore, case against them was separated.
2. I have heard learned counsel for accused and learned Government Advocate for the State. 4
3. It is the case of prosecution that, Sub-inspector of Police of Doddaballapura P.S., received a credible information on the afternoon of 30.10.2008 that some persons had gathered in a abandoned house near Gollahalli of Doddaballapura-Gowribidanur road with an intent to commit dacoity. Those persons had made preparations to commit dacoity by possessing weapons like long, club and chilly powder.
4. The Sub-inspector of Police along with other members of raiding party and some independent witnesses reached the place. Out of five persons, two persons ran away and three persons were apprehended and they were later identified as accused no.1 to 3. On the information volunteered by accused no.1 to 3, they came to know that persons who ran away from the place were accused no.4 and 5. The Sub-inspector conducted personal search of the accused and found that accused no.1 was in possession of a Long and accused no.3 was in possession of a club. On personal search of accused no.2, chilly powder was found in the pocket of accused no.2.
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5. The independent witnesses examined for the prosecution have not supported the case of prosecution. Therefore, the prosecution has relied on evidence of police officials namely PW.3-Narasimha, PW.4-Krishnappa, PW.5- Krishna and PW.6-Siddalingappa.
6. Before adverting to appreciation of evidence of aforestated witnesses, it is necessary to state that under Section 399 IPC, preparation to commit dacoity is made punishable.
7. In order to bring home the guilt of accused under Section 399 IPC, the prosecution has to prove that preparations were being made by the accused to commit dacoity. In other words, five persons had joined and made preparations necessary to commit dacoity. The evidence to prove the above facts may be direct or circumstantial. The place and time chosen by the accused is one of the relevant circumstances. The steps taken or preparations made by the accused to commit robbery can be inferred by their 6 conduct and possession of weapons/incriminating materials to commit dacoity.
8. In the case on hand, evidence of PW's.3 to 6 would reveal that PW.6 had received credible information about accused making preparations to commit dacoity at Gollahalli near Doddaballapur-Gowribidanur road and accused were staying in a abandoned house near Gollahalli. As already stated, independent witnesses have not supported the case of prosecution. The owner of land/abandoned house was not examined to prove that the house was not in occupation or possession of any other person, all and sundry had access to the house.
9. The prosecution has not adduced evidence to prove that house situated near Doddaballapur-Gowribidanur road was easily accessible to Doddaballapur-Gowribidanur road so that accused could go to Doddaballapur- Gowribidanur road to commit dacoity. The time at which the accused were apprehended would also give raise to a reasonable doubt in the evidence adduced by 7 prosecution. The evidence adduced by prosecution reveals that Doddaballapur-Gowribidanur road is a State Highway and the vehicles would be frequently plying on the road. In the circumstances, evidence adduced by prosecution that accused had gathered at about 4.50 p.m., (in the broad day light) and they were waiting to commit dacoity does not inspire confidence.
10. The investigation officer has deposed that accused no.1 was in possession of long and accused no.3 was armed with club and accused no.4 was implicated on the information volunteered by accused no.1 and he was arrested on 12.01.2009 after a period of two months. The implication of accused no.4 was on the basis of confessional statements made by accused no.1 and 3.
11. Now, adverting to seizure of long from the possession of accused no.1 and club from the possession of accused no.3, we find that investigation officer has not subjected these properties to the property form and he had not obtained permission from the jurisdictional magistrate to 8 retain the property during the course of investigation. On the other hand, the investigation officer had submitted a report to the learned Sessions Judge on 14.08.2009 submitting the properties viz., a long and club. The investigation officer had seized these properties from the possession of accused on 30.10.2008. He had not subjected the properties to property form. He had not sought the permission of jurisdictional magistrate to retain the properties. Therefore, evidence adduced by the prosecution that accused no.1 was found in possession of long and accused no.3 was found in possession of a club in a dilapidated place near Doddaballapur-Gowribidanur road at about 4.50 p.m., is not free from reasonable doubt.
12. In order to bring home the guilt of accused under Section 402 IPC, mere assembly of accused without preparation is not enough. An offence under Section 402 IPC contemplates that the whole design or intention to commit an offence would still remain in the rhelm of the accused without therebeing any intent or without taking further step to commit dacoity. If the prosecution fails to 9 adduce satisfactory evidence in proof of an offence punishable under Section 399 IPC, accused cannot be held guilty of an offence punishable under Section 402 IPC.
13. In the case on hand, the prosecution has failed to prove that five or more persons had gathered at a place and they had made preparations to commit dacoity. The prosecution has implicated accused no.2 and 5 on the confessional statement made by accused no.1 to 3. The evidence adduced by the prosecution in proof of seizure of long from the possession of accused no.1 and club from the possession of accused no.3 is not free from reasonable doubt. Accused no.4 was arrested on 12.01.2009 presumably on the confessional statement made by accused no.1 to 3. The prosecution has not examined the owner of the house/abandoned house to prove that it was accessible to all and sundry and it was a convenient hide out.
14. The learned Sessions Judge without bearing in mind the essential ingredients to prove offences punishable under Sections 399 and 402 IPC and without considering the 10 discrepancies in the evidence adduced by the prosecution has held the accused guilty of Sections 399 and 402 IPC. Therefore, the impugned judgment cannot be sustained.
15. In the result, I pass the following:
ORDER Criminal Appeal 864/2009 filed by accused no.1, Criminal Appeal No.876/2009 filed by accused no.4 and Criminal Appeal No.894/2009 filed by accused no.3 are accepted. The impugned judgment as it relates to conviction of accused no.1, 3 and 4 for offences punishable under Sections 399 and 402 IPC is set aside. Accused no.1, 3 and 4 are acquitted of offences punishable under Sections 399 and 402 IPC. They shall be released if they are not required to be in custody in connection with any other case.
Sd/-
JUDGE Np/-