Karnataka High Court
Manjunatha S/O Narayanappa vs The State Of Karnataka By Oorgaum Police on 10 March, 2014
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 10TH DAY OF MARCH 2014
BEFORE
THE HON'BLE MR.JUSTICE N.ANANDA
CRIMINAL APPEAL NO.260 OF 2009
Between:
1. Manjunatha
S/o Narayanappa
Aged about 19 years
R/at Gangamannapalya
Bangarpet, Kolar
2. Ravi @ Ravikumar
S/o Venkateshappa
Aged about 19 years
R/at Banahalli Village
Budikote Hobli
Bangarpet ... Appellants
(By Sri.S.Balakrishnan, Advocate)
And:
The State of Karnataka
By Oorgaum Police
Represented by
State Public Prosecutor ... Respondent
(By Sri.B.Visweswaraiah, HCGP)
*****
This Criminal Appeal is filed under Section 374(2)
Cr.P.C praying to set aside the judgment of conviction
dated 5.3.2009 passed by the Principal Sessions Judge,
2
Kolar in S.C.No.73/2008 convicting the appellants/
accused 2 and 3 for the offence punishable under
Section 399 IPC and the appellants/accused 2 and 3
sentenced to undergo rigorous imprisonment for a
period of two years and to pay a fine of Rs.5,000/- each
and in default of payment of fine, they shall further
undergo rigorous imprisonment for a period of six
months for offence punishable under Section 399 IPC.
This Appeal coming on for Hearing this day, the
Court delivered the following:-
JUDGMENT
The appellants were arrayed as accused 2 and 3 and they were tried along with accused No.1 (since deceased) for offences punishable under Sections 398 and 201 IPC. The learned Sessions Judge convicted accused 1 to 3 for offence punishable under Section 399 IPC and acquitted them of offence punishable under Section 201 IPC. Therefore, accused No.1 had filed Crl.A.No.244/2009 and accused 2 and 3 have filed the instant appeal (Crl.A.No.260/2009). During the pendency of Crl.A No.244/2009, accused No.1 died and this Court has recorded abatement of appeal on 26.2.2014.
3
2. I have heard Sri Balakrishnan, learned counsel for accused 2 and 3 and learned Government Advocate for State.
3. It is the case of prosecution that during midnight of 8/9.2.2008, accused No.1 (deceased) and accused 2 and 3 were changing number plate of a Tata Sumo car. Accused 1 to 3 were in possession of dangerous weapons like knives, blade and rope. The accused had attempted to commit dacoity by changing number plate of Tata Sumo car. The police on credible information reached the place, apprehended accused 1 to 3 and seized Tata Sumo car and weapons that were in possession of accused.
4. The prosecution has relied on evidence of PW1 to PW7.
5. PW1 - John Willi has not supported the case of prosecution. PW1 has deposed that on a particular date, a Tata Sumo was parked behind his house. There 4 were two persons near the car. PW1 was declared as hostile witness. Therefore, evidence of PW1 is of no avail to prosecution.
6. PW2 - D.V.Ravi is the owner of Tata Sumo car bearing registration No.KA 09 M 6465. Accused No.3 - Ravi was working as driver of the said car. He had been employed by PW2. PW2 has deposed that on a particular date about eight months prior to 13.11.2008 at 4.00 p.m., accused No.3 told PW2 that his mother had fallen ill. Therefore, he sought permission of PW2 to take his Tata Sumo car bearing No.KA 09 M 6465 to see his ailing mother. PW2 permitted accused No.3 to take his car. On the following day, PW2 learnt that his car was parked near jurisdictional police station. Therefore, PW2 visited the police station and identified his car. Accused 1 to 3 were in police station. PW2 learnt that accused had attempted to commit dacoity by using car belonging to PW2. PW2 filed an application and obtained custody of his car. PW2 has deposed that 5 accused had changed the number plate of his car. The police had prepared Mahazar and he had attested the same.
During cross-examination, PW2 has denied the suggestion that accused No.3 was not working as a driver of his Tata Sumo car. PW2 has deposed that he had reposed confidence in accused No.3 and permitted accused No.3 to take his car, to see his ailing mother. Apart from this, nothing has been elicited from PW2 to discredit his evidence.
From evidence of PW2, it is clear that PW2 did not have any grudge or grievance against the accused. Accused No.3 had taken Tata Sumo car bearing No. KA 09 M 6465 which belonged to PW2 on the pretext of seeing his ailing mother. PW2 believing accused No.3 had permitted him to take his car to see his ailing mother. Accused No.3 had taken car of PW2 near house of PW1 and he changed the number plate of the car by using stickers. Accused No.3 had changed the 6 number of Tata Sumo car from KA 09 M 6465 to KA 01 B 5371.
7. PW3 - Y.A.Villi has deposed that on a certain day in the month of February 2008, police came near the house of PW1 and prepared Mahazar that there was a Tata Sumo car parked behind house of PW1 and knives, ropes and other weapons were found in car. The police prepared Mahazar and PW3 attested the Mahazar. During cross-examination, PW3 has deposed that after going through contents of Mahazar he has attested the same. From evidence of PW3, we find that police had seized the car and incriminating articles such as knife and rope.
8. At the relevant time, PW4 - Mushtaq Pasha was working as the Sub-Inspector of Police in Oorgaum Police Station. PW4 has deposed that on 8.2.2008 at 11.00 p.m., he was on night patrolling duty along with other staff members and when they were patrolling near Oorgaum - Krishnavaram main road, at 2.30 a.m., they 7 found a Tata Sumo car parked behind an isolated house. They secured other police constables and reached that place. At that time, 3 persons tried to run away from that place. Out of them, 2 persons were apprehended and produced before PW4. Those persons were later identified as accused No.2 - Manjunath and accused No.3 - Ravi. Accused No.3 was in possession of rope and a number plate. Accused 1 and 2 had changed the number plate of Tata Sumo car from KA 09 M 6465 to KA 01 B 1573. The owner of car namely PW2
- D.V.Ravi has identified his car and also identified the number plate which had been changed by accused. PW4 has seized knife from possession of accused 2 and
3. During cross-examination, PW4 has deposed that when they seized the car and apprehended accused 2 and 3, there was moon light. He did not verify about inmates in the house behind which the car had been parked. PW4 was working as the Sub-Inspector of Police and he was on patrolling duty. He has deposed 8 about presence of accused and suspicion manner in which the car had been parked behind house of PW1. There are no reasons to suspect evidence of PW4. The accused have no case that PW4 had grudge or grievance against accused.
9. PW5 - Narayanaswamy has not supported case of prosecution. At the relevant time, PW6 - M.Shivakumar was working as Head Constable in Oorgaum Police Station. His evidence is more or less similar to evidence of PW4. During cross-examination nothing has been elicited to disbelieve his evidence. The evidence of PW7
- A.K.Vivekananda relates to investigation of case.
10. It is seen from order sheet maintained by jurisdictional Magistrate that accused 2 and 3 were produced before the jurisdictional Magistrate at 8.00 p.m. on 9.2.2008 along with remand application and they were remanded to judicial custody till 11.2.2008. 9
11. Sri Balakrishnan, the learned counsel for accused would submit that prosecution has failed to prove that accused had attempted to commit robbery. The learned counsel would submit that mere preparation to commit robbery is not an offence. The evidence adduced by prosecution is discrepant. The prosecution has not examined independent witnesses. PW1 has not supported the case of prosecution.
12. From the evidence of PW3 - Ravi, it is proved that accused No.3 was working as driver with PW2 and he had taken the Tata Sumo car bearing No.KA 09 M 6465 on the pretext of seeing his ailing mother. PW2 had reposed confidence in accused No.3 and permitted accused No.3 to take his car. Accused No.3 betraying the trust reposed by PW2 had taken the car to an isolated place along with accused 1 and 2 and they had changed number plate of the car and to use the same to commit robbery. The accused by changing the number plate of the car had made attempts to commit robbery. 10 There are no reasons to suspect evidence of PW3. Accused 2 and 3 were apprehended from place of incident. Accused No.1 ran away and he was apprehended later.
In order to constitute an offence punishable under Section 398 IPC, the prosecution has to establish that accused had made an attempt to commit robbery. In the case on hand, the prosecution has proved that accused No.3 betraying confidence reposed by his employer (PW2), had falsely told him that his mother was ill and sought permission to take Tata Sumo car bearing No.KA 09 M 6465, belonging to PW2. PW2 honestly believing accused No.3 permitted him to take his car to see his ailing mother. Accused No.3 had taken the car to an isolated place (behind house of PW1) during mid night and he along with accused 1 and 2 had changed the number plate of the car and they were also in possession of stickers, number plate, blades and ropes. The evidence of police officials who had apprehended accused does not suffer from any 11 discrepancy. Therefore, it can safely be held that accused 1 to 3 had attempted to commit robbery by using Tata Sumo car belonging to PW2.
13. The learned counsel for accused would submit that possession of weapons and vehicle with accused is not sufficient to hold that they attempted to commit robbery. As already stated, the accused had taken positive steps to commit offence. Accused No.3 had taken the car from possession of PW2 on the false pretext to see his ailing mother. Accused No.3 had joined accused 1 and 2 and they had parked the car behind house of PW1 during mid night of 8/9.2.2008, changed number plate of car. Thus accused had made attempts to commit robbery. It is not a mere case of preparation to commit an offence as contended by the learned counsel for accused. The learned Sessions Judge has convicted accused for an offence punishable under Section 399 IPC. In my considered opinion, an offence under Section 399 IPC is not attracted as the 12 accused were not five in number. Accused 1 to 3 had attempted to commit robbery.
14. The learned counsel for accused would submit that accused do not bear criminal antecedents. They have chances to reform themselves. The learned counsel submit that a lenient view may be taken in the matter of sentence imposed.
15. The learned Government Advocate would submit that accused armed with deadly weapons had attempted to commit robbery and thereby, committed an offence punishable under Section 398 IPC and offence under Section 398 IPC is punishable with imprisonment not less than seven years. Therefore, lenient view is not warranted.
16. The accused were aged about 19 years at the time of commission of offence. They do not bear criminal antecedents. They have chances to reform themselves. At the time of docoity or robbery, if the offender is 13 armed with deadly weapon, imprisonment shall not be less than 7 years. In the case on hand, the prosecution has failed to prove that accused were in possession of deadly weapons. Therefore, minimum sentence of imprisonment under Section 398 IPC is not attracted. Having regard to these mitigating and aggravating circumstances, I deem it appropriate to reduce the sentence of imprisonment from two years to one year maintaining the fine imposed by the learned Sessions Judge.
17. In the result, I pass the following:
ORDER The appeal is accepted in part. The impugned judgment is modified.
Accused 2 and 3 are acquitted of an offence punishable under Section 399 IPC.
Accused 2 and 3 are convicted for offences punishable under Sections 511, 398 read with Section 34 IPC.14
Accused 2 and 3 are sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.5,000/- each, in default to undergo rigorous imprisonment for a period of six months for an offence punishable under Section 511, 398 read with Section 34 IPC.
The period of detention undergone by accused 2 and 3 during trial, is given set off under Section 428 Cr.P.C.
Sd/-
JUDGE AHB