Karnataka High Court
Manjunath @ Puk Puk vs The State Of Karnataka on 23 September, 2017
Author: John Michael Cunha
Bench: John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER 2017
BEFORE
HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL NO.331 OF 2011
C/W
CRIMINAL APPEAL NO.1004 OF 2012
IN CRIMINAL APPEAL NO.331 OF 2011
BETWEEN:
MANJUNATH @ PUK PUK
S/O.LATE SATHISH
AGED ABOUT 19 YEARS
R/AT.NO.1046, 1ST MAIN ROAD,
1ST CROSS, BANGARAPPANAGUDDE
RAJARAJESHWARINAGAR
BENGALURU. ... APPELLANT
(By Sri: C PARAMESWARAPPA, ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY ANEKAL POLICE STATION
BENGALURU. ... RESPONDENT
(By Sri: K.NAGESHWARAPPA, HCGP)
2
THIS CRL.A. FILED U/S.374(2) CR.P.C BY THE ADV.,
FOR THE APPELLANT PRAYING THAT THIS HON'BLE COURT
MAY BE PLEASED TO SET ASIDE THE ORDER DT:5.2.11
PASSED BY THE P.O., FTC-V, BANGALORE RURAL DIST.,
BANGALORE, IN S.C.NO.84/09 - CONVICTING THE
APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF
IPC. AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO 10 YEARS R.I. FOR THE OFFENCE P/U/S 395 OF
IPC.
IN CRIMINAL APPEAL NO.1004 OF 2012
BETWEEN:
1. SHRI RAVI ALIAS GONNE
S/O ERAPPA, ABOUT 21 YEARS
H.NO. 696, 8TH CROSS, 8TH MAIN
2. SHRI JAGADISH ALIAS THIRUPATHY
AGED ABOUT 21 YEARS
H.NO. 638, 8TH CROSS, 8TH MAIN
ALL ARE RESIDENTS OF BANGARAPPANA GUDDE,
RAJARAJESWARI NAGAR
BENGALURU. ... APPELLANTS
(By Sri: D BASAVARAJAPPA, ADVOCATE)
AND
STATE BY ANEKAL POLICE
REPT. BY TH PUBLIC PROSECUTOR
RURAL DISTRICT & SESSION COURT
BENGALURU. ... RESPONDENT
(By Sri: K.NAGESHWARAPPA, HCGP)
3
THIS CRL.A FILED U/S.383 R/W.374(2) OF CR.P.C
BY THE ADVOCATE FOR THE APPELLANTS PRAYING THAT
THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
THE JUDGMENT AND ORDER OF CONVICTION PASSED BY
THE ADDL. DIST. & SESSIONS JUDGE, FTC-V, BANGALORE
RURAL DIST., BANGALORE IN S.C. No.84/2009 DATED
5/2/2011 -CONVICTING THE APPELLANTS/ ACCUSED-3&4
FOR OFFENCES P/U/S.395 OF IPC. APPELLANTS/ACCUSED-
3 & 4 ARE SENTENCED TO UNDERGO 10 YEARS
RIGOROUS IMPRISONMENT FOR THE OFFENCE P/U/S.395
OF IPC.
*****
THESE CRL.A's COMING ON FOR FINAL HEARING
THIS DAY, JOHN MICHAEL CUNHA J., DELIVERED THE
FOLLOWING:
JUDGMENT
These two appeals are filed by accused Nos.3, 4 and 5 questioning the correctness and the legality of the conviction recorded against them by the Addl. District & Sessions Judge, Fast Track Court-V, Bengaluru Rural District in S.C.No.84 of 2009 by order dated 5.2.2011 for the offence punishable under section 395 Indian Penal Code. The 4 appellants are sentenced to undergo 10 years rigorous imprisonment.
2. The brief facts of the prosecution case are that on 9.11.2008, PWs.1 to 4 had been to Muthyalamadu Falls. At about 4.30 p.m., they were sitting beneath a tree. At that time, six persons holding knife, chopper, razor, blade threatened PWs-1 to 4 by show of deadly weapons and robbed a golden chain, ear stud, hangings, silver leg chain, ring, titan watch, china set and nokia mobiles and a cash of Rs.3,000/- from PWs-1 to 4. It is further alleged that during the incident, the accused persons caused bleeding injuries to PWs-1 to 4 as a result of which, they had to rush to the hospital and take treatment.
3. A complaint was lodged by PW-1 before the Anekal Police Station, based on which, a case was registered against six accused persons under Section 395 Indian Penal Code. Upon investigation, a charge-sheet came to be lodged against the appellants herein including three other accused persons under section 395 Indian Penal Code. Proceedings 5 against accused No.6 have been abated and the case against accused Nos.1 and 2 have been split up and accused Nos.3, 4 and 5 viz., the appellants herein faced trial.
4. The appellants having denied the charge, the prosecution examined 12 witnesses as PWs-1 to 12 and got marked 16 documents as Exs-P1 to P16 and 23 Material objects as M.Os.1 to 23. The incriminating circumstances were denied by the appellants, but they did not choose to examine any witnesses on their behalf or to adduce any defence evidence. On hearing the parties and on considering the oral and documentary evidence produced by the prosecution, the trial court found the appellants herein guilty of the offence under section 395 Indian Penal Code and accordingly convicted them for the said offence and imposed a sentence of rigorous imprisonment for 10 years under Section 395 Indian Penal Code.
5. I have heard Sri. C. Parameshwarappa and Sri. D. Vasavarajappa, learned counsel for the appellants and 6 Sri. K. Nageshwarappa, learned HCGP and have examined the records.
6. The learned counsel for the appellants mainly contend that the evidence produced by the prosecution does not satisfy the ingredients of Section 395 Indian Penal Code. The accused have not been identified by the witnesses. Even the investigating agency did not conduct any identification parade. Therefore, the identification whatsoever made by them in the court, could not have been given any credence in establishing the identify of the accused. With regard to the recovery evidence it is contended that the testimony of the solitary witness viz., PW-12 is contrary to the testimony of the Investigating Officer. The Investigating Officer has stated that pursuant to the voluntary disclosures recovery was effected, whereas, PW-12 has stated that all the properties were seized in the police station. There is no clear and definite evidence as to the which of the items were seized from the possession of which of the accused so as to connect them to the offence in question. The trial court has 7 failed to consider all these material aspects which has led to grave miscarriage of justice and hence, the learned counsel has sought for reversal of the impugned judgment and for acquittal of the accused.
7. The learned counsel has further submitted that the punishment imposed by the trial court is excessive and disproportionate to the offence alleged against the appellants/accused. Apart from the incident in question, accused do not have any other criminal antecedents. The accused are of young age. The severe punishment imposed by the court has ruined their entire life and has affected their basic human rights. The learned counsel therefore has pleaded for reduction of the sentence, in the event, the offence is held proved against the appellants/accused.
8. The learned HCGP however has defended the impugned conviction as well as the sentence awarded by the Trial Court . The learned HCGP would submit that the young age of the accused is not a criteria for reduction of the sentence. The manner in which, the accused have 8 committed the offence in broad day light itself would indicate that the accused have committed the heinous offence in utter disregard of law. The accused were armed with deadly weapons. The injuries sustained by PWs-1 to 4 are substantiated by the wound certificates. The identification of the accused is beyond pale of doubt. The incident having taken place in broad light, there was ample opportunity for all the witnesses to get the physical features of accused imprinted in there mind. Besides, the accused were apprehended within two days from the date of the incident, and the articles recovered from their possession are proved to be that of the PW-1 to PW-4. All these circumstances, therefore, cumulatively point out the guilt of the accused. The learned Sessions Court having considered all these facts and having based the findings on the admissible pieces of evidence, there is absolutely no reason to interfere with the well considered judgment rendered by the court below, and thus the learned HCGP has sought for dismissal of the appeals.
9
9. Having considered the rival contentions and on examining the records and the statement of the witnesses, the questions that arise for consideration are :-
1. Whether the evidence on record establish the ingredients of the offence under section 395 Indian Penal Code?
2. Whether the punishment imposed by the court is excessive and harsh in the facts and circumstances of the case?
10. In support of the charge, the prosecution has examined, in all 12 witnesses. Amongst them, PW.1 to PW.4 are the victims. All these witnesses have consistently stated regarding the incident in accordance with the case of the prosecution. They have identified the accused and have also spoken about the injuries sustained by them during the occurrence. The material objects seized from the possession of the accused have been identified by these witnesses. 10
PW.5-Gangadharaiah is a witness for the spot mahazar Ex.P2.
PW.6 Rajanna accompanied the police in apprehending the accused. According to this witness, all the six accused persons were found in a forest area near Anekal and at the time of apprehension, the accused were found with knife, chopper, small razor, chain, mobiles and cash. This witness has identified these articles namely M.Os.2 to 7, 15 and 16. He has also identified the knife M.O.8 and five mobiles- M.O.19. He has also stated that he could identify three other accused, who did not face the trial.
PW.7 Dr C.B. Mohan, is a Doctor in Vijaya Nursing Home, Bengaluru, who issued age certificates in respect of accused Nos.3 and 4 certifying that they were of 18 to 19 years of age as on the date of his examination.
PW.8 is Dr. Kumar was the Medical Officer Government Hospital, Anekal. He examined PW.2 and PW.4 and issued medical certificates at Exhibits P6 and P7 and 11 gave his opinion to the effect that the injuries noted in the wound certificate could be caused by assault with razor, chopper and sickle.
PW.9 -Ismail is a witness for seizure of chain and two mobiles-M.O.20 to M.O.23 under the mahazar Ex.P8.
PW.10- Chowdappa is the PSI of Anekal Police Station, who received the complaint and registered the FIR against six accused persons. Through this witness, FIR is marked as Ex.P9. This witness has further stated about the apprehension of the accused on 11.11.2008 and the seizure of weapons, mobiles and cash from their possession.
PW-11-Venkatesha is the Police Inspector of Anekal Police Station. He laid the charge sheet against the accused. On arrest of the accused, he recovered the weapons as well as gold ornaments from the possession of the appellants as well as other three accused and got them identified through the witnesses and laid the charge sheet against the accused. 12
PW-12- Mariyappa is the panch witness for the seizure of the above properties under mahazar Ex-P16. This witness has identified all the properties viz., M.Os.1 to 23.
11. From the above evidence, the prosecution has proved that the incident in question had taken place on 9.11.2008 at about 4.30 p.m., PWs-1 to4 have not only narrated the manner of incident but have also identified the accused in the court and have specifically stated that the accused robbed them off the valuables and the articles viz., M.Os.1 and 2, 6 to 14, 16, 19 to 23 and they have duly identified them during their evidence. The identification of the accused and the articles seized from the possession of the accused has not been discredited in the cross- examination. The above evidence in my opinion clearly make out the offence charged against the appellants/accused.
12. The contention of the learned counsel for the appellants/accused that these witnesses have not identified the accused and the identification made by them is the court cannot be given credence as the accused were shown to the 13 witnesses in the police station cannot be accepted. As already stated above, the incident is proved to have taken place in broad daylight. The evidence of PWs-1 to 4 suggest that there was sufficient time for them during the occurrence to note the physical features of the assailants. Moreover, it is proved in evidence that these witnesses suffered injuries which prompted them to take treatment and in this regard, the wound certificates are produced as corroborative piece of evidence. The fact that the accused were apprehended on the very next day of the incident is also established beyond any pale of doubt. Apart from the police officer who apprehended the accused, even the seizure pancha viz., PW-12 and others have corroborated the case of the prosecution reiterating that all the accused were apprehended in the forest area near Anekal. The evidence of the Investigating Officer indicates that soon after their apprehension, PWs-1 to 4 were summoned to the Police Station and they identified the accused as well as the properties robbed from them. All these circumstances, therefore, inspires full confidence to hold that the accused were duly identified by PWs-1 to 4 and 14 soon after the arrest of the accused, the robbed articles were seized from their possession and the said articles also have been identified by PWs-1 to 4. The testimony of PWs-1 to 4 with regard to the identification of these accused has not been falsified or demolished in the cross-examination. Likewise, the identification of the ornaments made by them also not been demolished. The trial court therefore was justified in placing reliance on this material in arriving at the finding of guilt of the appellants for the offence under section 395 Indian Penal Code.
13. It is now well settled that an identification parade is not mandatory nor it can be claimed by the suspect as matter of right. The purpose of pretrial identification evidence is to assure the investigating agency that the investigation is going on in the right direction and to provide corroboration of the evidence to be given by the witness or victim later in court at the trial. If the suspect is a complete stranger to the witness or victim, then an 15 identification parade is desirable unless the suspect has been seen by the witness or victim for some length of time.
14. In MALKHAN SINGH vs STATE OF M.P.(2003) 5 SCC 746, it was held that "The identification parades belong to the stage of investigation and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence as these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact."
15. In the light of the above legal position and in view of the facts and circumstances discussed above, I am of the view that the prosecution has convincingly established the offence charged against the accused. On scrutiny of the impugned judgment, I find that the trial court has 16 appreciated all the above facts and circumstances in right perspective and has come to a proper conclusion which is based on legal evidence. Even on re-appreciating the entire material, I do not find any reason or justification to differ with the view held by the trial court. I do not find any merit in the contentions urged by the learned counsel for the appellants. As a result, the appeals are liable to be dismissed and the order of conviction deserves to be confirmed and the same is hereby confirmed.
16. Insofar as the sentence is concerned, it is seen from the records that before the trial court, the appellants/accused had taken up a plea that they were of young age and were not having any criminal antecedents. However, the trial court rejected the pleas of the appellants on the ground that the offence proved against them is a heinous one and accordingly considered it proper to impose the maximum punishment prescribed under section 395 of Indian Penal Code. No-doubt it is true that punishment must be commensurate with the offence, yet, while 17 determining the quantum of sentence, the court is also required to taken into consideration the circumstance of the crime and the criminal. In the instant case, it is relevant to be noted that the appellants are the first offenders. The evidence on record indicate that they committed the offence in broad daylight. Even though the accused are stated to have been armed with deadly weapons like choppers and knives, the injuries sustained by PWs-1 to 4 are shown to be simple in nature. There is no material to show that any of the witnesses had suffered any grievous injuries or were treated as inpatient on account of the injuries sustained during the occurrence. That apart, all the accused are stated to have been apprehended on the very next day in a forest area. All of them were found in possession of the ornaments and the articles robbed by them on the previous day which indicate that the accused had not sold or divided the properties among themselves. All these circumstance, therefore go to show that the daredevil act committed by the accused was a misadventure and they were caught on the commission of the first offence. The records indicate that on 18 admitting the appeals, the appellants/accused were granted bail and were released on 11.6.2013. There are no allegations that after the release, the appellants/accused have been involved in similar offences or any other charges. The learned HCGP submitted that no other cases are either registered or pending against the accused. It is submitted that the appellants/accused have joined the mainstream of the society and have shown marked reformation in their conduct. In that view of the matter, the rigorous imprisonment of 10 years imposed by the trial court is likely to have adverse and deleterious affect on the accused and their family members. Having regard to the circumstance in which the above offence was committed and the subsequent conduct of the accused, a sentence of rigorous imprisonment for five years and a fine of Rs.2,000/- would be just and adequate sentence in the facts and circumstances of the present case.
19
17. Hence the following:-
ORDER The appeal is allowed-in-part. The conviction of the appellants/accused under Section 395 Indian Penal Code is confirmed. The sentence imposed by the trial court is modified. The appellants are sentenced to undergo rigorous imprisonment for a period of five years and shall pay a fine of Rs.2,000/- each. In default of payment of fine amount, the appellants shall undergo further rigorous imprisonment for six months each.
It is seen from the records that the appellants were arrested on 11.11.2008 and were released on 11.6.2013. The dates furnished by the HCGP indicate that the appellants have already served the sentence of 8 years and 10 months including the period of remission. Thus, the appellants having already served the sentence, they are directed to be set at large on payment of the fine amount. The learned counsel for the appellants submits that the fine amount of 20 Rs.2,000/- each shall be deposited within 15 days from the date of receipt of the copy of this order. If the fine amount is not deposited within the said period, respective accused shall undergo rigorous imprisonment for three months each.
Sd/-
JUDGE mn/-