Bangalore District Court
3. Name Of The Devaraj H.S vs S/O. Late Shiva Murthy on 2 November, 2016
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 2nd day of November 2016.
Present : Sri.Mohamed Ashraf Aris, B.A., LL.B.
VIII ADDL. C.M.M., BENGALURU.
C.C.NO: 468/2007
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
Sl. No. of the Case 468-2007
1. The date of 02/12/2006
commission of the
offence
2. Name of the State by Koramangala P.S.
complainant
3. Name of the Devaraj H.S.,
accused S/o. late Shiva Murthy,
24 years, R/at : Pandavamatti,
Village & Post, Channagiri
Taluk, Davanagere Dist.
4. The offence U/sec.392 of IPC.
complained of or
proved
5. Plea of the accused Pleaded not guilty
and his
examination
6. Final Order Acting U/sec. 248(2) Cr.PC
Accused is convicted.
7. Date of such order 02/11/2016
For the following:-
2 C.C.NO: 468/2007
JUDGMENT
This is the charge sheet filed by the PI, Koramangala P.S. against the accused for the offence punishable U/sec.392 of IPC.
2. The brief facts of the prosecution case is that:
On 2/12/2006 at about 8.45 p.m. when CW.1 was standing infront of BDA Complex in the Bus Stand, at 3rd Block, Koramangala, the accused came and snatched the golden chain worth Rs.5,000/- from the neck of CW.1 and ran away and thereby committed the alleged offence.
3. Accused is on bail. Copies of the charge sheet papers were furnished to the accused. The accused pleaded not guilty to the charge read over to him. Prosecution examined PWs:1to 5 and got marked Ex.P.1 to 8. Accused has been questioned u/sec. 313 of Cr.PC., accused has not led any defence evidence.
3 C.C.NO: 468/2007
4. Heard arguments from both the sides .
5. The points that arise for determination are as follows:
1) Whether the prosecution proves beyond all reasonable doubt that on 2/12/2006 at about 8.45 p.m. when CW.1 was standing infront of BDA Complex in the Bus Stand, at 3rd Block, Koramangala, the accused came and snatched the golden chain worth Rs.5,000/-
from the neck of CW.1 and ran away and thereby committed the offence punishable U/sec.392 of IPC.?
2) What order?
6. The Answer to the above points are as follows:
Point No.1 In the Affirmative.
Point No.2 As per final order for the following:4 C.C.NO: 468/2007
REASONS
7. Point No.1:-
CW.1 has been examined as PW.1. She has stated in her chief-examination that on 2/12/2006 between 7.30 to 8 p.m. when she was standing at the bus stand along with her friend infront of BDA Complex, at Koramangala, the accused came near her and showed a small telephone directory and asked to read the address in the said directory. She has stated that when she started reading phone directory by bending little, the accused snatched the golden chain, which she was wearing and ran away. She has stated that she shouted and at that time CW.2 and one Suraj Rao chased the accused, but they could not catch the accused. She has stated that the accused ran and a scooter came on that way and he boarded the scooter and fled away . She has stated about going to the police station and lodging the complaint as per 5 C.C.NO: 468/2007 Ex.P1 and thereafter police came to the spot and drew the spot mahazar as per Ex.P2.
8.CW.2 has been examined as PW.2. He is an eye witness he has stated that on 2/12/2006 between 8.45 to 9 p.m. when he and his friend was standing at the bus stop, at BDA Complex, Koramangalam a girl was standing in the said bus stand and that one person came to the bus stand and showed a small diary to her and after some time the girl started shouting and the person who showed the diary started running away . He has stated that the police had come to the spot and have drawn the mahazar, on the same day spot mahazar was conducted as per Ex.P2 in his presence. This witness has been cross-examined by the counsel for the accused but there is nothing to disbelieve his evidence.
9.PW.1 i.e., the complainant has further stated in his chief-examination that after about 10-12 days police called 6 C.C.NO: 468/2007 her to the police station and showed the chain and she identified the chain. Further, she has stated that the police showed 10-12 persons in the police station and she identified the accused. She has stated that she got released the gold chain. The photograph of the chain is marked as Ex.P3.
10.CW.5, who was the ASI of Koramangala P.S. has been examined as PW.4. He has stated that on 5/12/2006 he and PC-8830 were deputed to trace the accused and the stolen articles and accordingly they went to Kudalur village in Kadur Taluk of Chikamangalur District and at about 10.10 a.m. he received credible information and he noticed a person coming on the road and immediately the said person was apprehended. He has stated that the said person is the accused and the accused revealed his name and address and gave voluntary statement before him and thereafter the accused led the police to Hitesh Bankers, 7 C.C.NO: 468/2007 Birur, where the accused identified the shop keeper and the shop keeper admitted the transaction between the accused and him and also identified the accused. He has stated that the shop keeper produced a gold neck chain, which the accused had pledged with the shop keeper on 4/12/2006 under receipt No.408. He has stated that he seized the said chain under mahazar Ex.P5 and the receipt is marked as Ex.P4. He has further stated that he produced the accused along with the gold chain receipt and mahazar and produced the accused before the Police Inspector with the said document and submitted report as per Ex.P6. He has identified the photograph Ex.P3 and has identified the accused.
11.The Police Inspector of Koramangala P.S. i.e., CW.7 has been examined as PW.5. He has stated that on 2/12/2006 at about 9.40 p.m. CW.1 appeared before him and lodged a written complaint, which he received and 8 C.C.NO: 468/2007 registered under Cr.No. 123/2006 and sent FIR to the court. FIR is marked as Ex.P7. Further, he has stated about going to the spot and drawing the mahazar as per Ex.P2 between 10.15 to 10.45 p.m. in the presence of CW.2. He has also stated about deputing CW.3 and 6 for tracing the accused as well as property. He has stated that on 6/12/2006 at about 6.30 p.m. CW.5 and 6 brought the accused and produced the accused along with the report and the receipt and the gold chain. He has further stated that he formally arrested the accused and recorded the voluntary statement of the accused as per Ex.P8. Further, he has stated that on 8/12/2006 he called the complainant to the police station and the complainant identified her gold chain and he recorded further statement of the complainant. He has also stated about returning the gold chain to the complainant as per the court order and he has identified the chain and the photograph Ex.P3. He has stated about recording the statement of CW.6. 9 C.C.NO: 468/2007
12.CW.3 who is the pawn broker at Birur has been examined as PW.3. He has admitted that he knows the accused and that he has issued the document Ex.P4. He has stated in his evidence that on 4/12/2006 the accused pledged a gold neck chain in his shop for a sum of Rs. 2,000/- and that on 6/12/2006 police brought the accused to his shop and he identified the accused. He has stated that while pledging the gold chain the accused-1 told him that the said chain belongs to him and he was in need of money to take his ailing mother for treatment . He has stated that he came to know from the police that it was a stolen chain and hence he returned the chain to the police. He has stated about drawing the panchanama as per Ex.P5 in his shop. He has stated that the chain in the photograph Ex.P3 may be the same chain that the accused had pledged.
10 C.C.NO: 468/2007
13.The counsel for the accused has argued that the ingredients of Section - 392 is not made out and that there was no wrongful restraint or extortion and that there was no fear of death or instant fear and that the ingredients of Section - 392 are not attracted.
Section - 392 states that: Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Robbery is defined U/sec.390 wherein it is stated that, in all robbery there is either theft or extortion. Further it is stated that, theft is "robbery" if, in order to the committing of 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 11 C.C.NO: 468/2007 any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint . Further, it is stated that Extortion is robbery if the offender at the time of committing extortion is in the presence of the person put in the fear and commits the extortion by putting that person in fear of instant death of instant hurt or instant wrongful restraint to that person or another person and by so putting in fear, induces the person so put in fear then and there to delivery up the thing extorted.
The illustration to Section - 390 is similar to this case illustration(a) states as follows:
(a) : A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft , has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.12 C.C.NO: 468/2007
14.In the case on hand the accused has made CW.1 to bend down in order to read the diary and snatched the chain causing hurt and putting her in fear. It is therefore, an offence coming U/sec.392.
15.The counsel for the accused has pointed out the cross-examination and has contended that no test identification parade has been conducted. But this is a case where CW.1 has clearly seen the accused at the time of committing of the offence and he has also identified the accused in the court and also in the police station. Therefore, the identity of the accused is clearly established and it is also corroborated by the evidence of PW.2.
16.The counsel for the accused has pointed out some minor discrepancies in the cross-examination of the PW.1 and PW.3, but the said minor discrepancies will not go to the root of the case. The non-production of register or 13 C.C.NO: 468/2007 maintaining the register by PW.3, is not a material infirmity. The non-examination of some of the witnesses i.e., CW.4 and 6 is also not fatal to the case of prosecution.
17.On going through the entire materials available in this case and the documentary and oral evidence, this court is of the opinion that the prosecution has been able to establish beyond all reasonable doubt a case U/sec.392 of IPC against the accused. Therefore, I answer point no.1 in the affirmative.
18. Point No.2:- In the result, the following order is passed:
ORDER Acting under Section-248(2) of Cr.P.C., the accused is found guilty of the offence punishable U/sec.392 of IPC.
Looking at the gravity of the offence, this court is of the opinion that this is not a fit case to extend the benefit of P.O.Act.14 C.C.NO: 468/2007
Hearing on sentence shall follow:
(Dictated to the stenographer, transcript thereof, corrected and then pronounced by me in the open court this the 2nd day of November 2016.) (Mohamed Ashraf Aris) VIII Addl.C.M.M. Bengaluru.
ORDERS ON SENTENCE Heard the accused on sentence.
The accused submits that he was aged 24 years at the time of offence and that he has wife, 2 children with aged mother and that he is the only earning member.
The offence U/sec.392 is punishable with R.I. for a term which may extend to 10 years and fine.
Looking at the circumstances, this court is of the opinion that the accused could be sentenced to R.I. for 2 years and with fine of Rs. 3,000/- in default to undergo S.I. for one month. Hence, the following order is passed.15 C.C.NO: 468/2007
ORDER The accused is sentenced to undergo Rigorous Imprisonment for a period of 2 years and with fine of Rs.3,000/-, in default to undergo simple imprisonment for one month.
Counsel for accused has filed application U/sec.389(3) of Cr.PC. Heard. The accused was on bail throughout and the sentence does not extend more than 3 years. Hence, application is allowed.
Accused has already executed bond with surety U/sec.437 of Cr.PC.
Hence, sentence is suspended for a period of one month, but the fine amount shall be paid. Office to receive the fine amount and put up.
Call on 5/12/2016.
VIII Addl.C.M.M. Bangalore.16 C.C.NO: 468/2007
Annexure:
1.List of Witnesses examined on behalf of the prosecution: P. Ws:
1. Sangamithra
2. Karthik Raj
3. Jugaraj Jain
4. K.Puttalingayya
5. Purushotham M.L.
2.List of Documents marked on behalf of the prosecution:- Ex.Ps:
1. Complaint
2. Spot Mahazar
3. Photo
4. Document
5. Seizure mahazar
6. Report of PW.4
7. FIR
8. Voluntary statement of accused.
3.List of Material objects marked on behalf of the prosecution:- - NIL -
4.List of witnesses and documents marked on behalf of the accused:- - NIL -
VIII Addl. C. M. M. Bengaluru.
17 C.C.NO: 468/200718 C.C.NO: 468/2007