Bangalore District Court
Hulimavu Ps vs A1 Manjunath Alias Manja on 11 July, 2024
KABC010334552018
IN THE COURT OF LXVI ADDL CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY (CCH-67)
PRESENT
SHRI. JAYAPRAKASH A.
B.A.L., L.L.M.,
LXVI Addl. City Civil & Sessions Judge,
Bengaluru.(CCH-67)
Dated this the 11th day of July, 2024
S.C.No. 1958/2018
COMPLAINANT : State by:
Hulimavu Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED : 1. Manjunatha @ Manja,
S/o Babu,
Aged about 23 years,
R/at No.10, 1st cross, Janatha colony,
Hulimavu, BG Road,
Bangalore.
2. Narayanaswamy @ Kulla Narayana,
S/o Chinnappa,
Aged about 23 years,
R/at No.15, 1st cross, Muneshwara
2 S.C.No.1958/2018
Badavane,
Hulimavu, BG Road,
Bangalore.
3. Manu,
S/o Chikkanna,
Aged about 24 years,
R/at ETB Layout,
Someshwara Badavane,
Hulimavu, BG Road,
Bangalore.
(By Sri.KR,Advocate.)
DATE OF:
Occurrence of offence : 12.09.2017
Commencement of trial : 17.02.2021
Closing of trial : 06.01.2024
Name of the complainant: Sri.Deepak.S.R.
Offence alleged : Under Sections 120(B),
364(A) 397 IPC.
Opinion of the judge : Charge leveled against the
accused are proved.
Sentence or order : Convicted for the offences
punishable under section
120B & 392 IPC.
3 S.C.No.1958/2018
JUDGMENT
The Hulimavu police have filed charge sheet against accused No.1 to 3 for the offences punishable under section 120(B), 364(A) and 397 of IPC.
2. The brief facts of the prosecution case is that on 12/9/2017 at about 7.30 p.m. accused No.1 to 3 assembled in front of Sai Baba Temple which is situated near the bus stop of Hulimavu village. They hatched a conspiracy to kidnap CW1 and to commit robbery. CW1 was standing by the side of the road in front of Sai Baba Temple. Accused No.3 handed over the bike bearing registration No. KA 51 EQ 9204 to accused No.1 and 2 and asked them to kidnap CW1 and threaten him with knife point and to rob the gold jewelry, cash and valuables from him. Accordingly accused No.1 and 2 dragged CW1, made him to sit in between them in motorcycle and kidnapped him and took him to Robo Nagar to a abandoned place and snatched his mobile and undressed him. Thereafter they threatened him with the help of a knife and caused injury to his chest with the knife and removed his golden chain weighing 21 grams and golden ring weighing 8 grams and searched for cash and fled away from the said place. CW1 managed to get his clothes and mobile and went to the shop of CW2 and sought for help and called his 4 S.C.No.1958/2018 brother. Thereafter brother of CW1 came to the said shop and took him to the police station and thereafter taken him to Fortis Hospital for treatment. On 17/9/2017 CW15 got arrested accused No.1 to 3 through CW8 to 11 and seized one knife, one Bajaj Pulsar motorcycle, golden chain, golden ring from the accused persons. The accused No.1 to 3 hatched a conspiracy, kidnapped CW1, caused him hurt and robbed his golden chain and ring by putting him on threat by knife point and thereby committed offence punishable under sections 120B, 364A and 397 of IPC.
3. On the complaint of CW1 Deepak S.R., police registered this case as per their crime No.240/2017 for the offence punishable under section 120B, 364A and 397 of IPC and took up the investigation. At the initial stage, i.e., on 18/9/2017 accused No.1 to 3 were arrested and produced before the learned Magistrate. Thereafter accused filed application for regular bail and got enlarged on bail. Hence accused No.1 to 3 have been on bail in this case.
4. After the completion of investigation the police have filed charge sheet against the accused No.1 to 3 for the above said offences before the learned Magistrate. After filing of charge sheet the learned Magistrate took cognizance of the offence, charge sheeted and registered the case 5 S.C.No.1958/2018 against accused No.1 to 3 for the above said offences. In pursuance of the summons issued by the Magistrate, accused No.1 to 3 appeared through their counsel. The copy of charge sheet was furnished to them and hence the learned Magistrate has complied with the provisions of section 207 of Cr.P.C. As the offence charge sheeted against the accused persons are exclusively triable by this Court the learned Magistrate acting under section 209 of Cr.P.C. has committed the case against accused No.1 to 3 to this Court for trial. The matter is taken up before this Court for further proceedings accordingly.
5. In pursuance of summons issued by this Court, accused No.1 to 3 have appeared through their counsel and got enlarged on bail. After hearing both the parties and on considering the materials forthcoming from the prosecution and from the materials on record this Court has framed charge against the accused No.1 to 3 for the offences punishable under section 120B, 164A, 397 r/w 34 of IPC to which all the accused have pleaded not guilty and thereby they have claimed to be tried for the said offences.
6. In support of the case of prosecution 9 witnesses were examined as PW1 to PW9. The prosecution has produced documents at Ex.P1 to Ex.P16 and the properties at MO1.
6 S.C.No.1958/2018After closing of the evidence of the prosecution witnesses my Predecessor-in-office has examined accused No.1 to 3 under section 313 of Cr.P.C., in which they have denied all the incriminating materials appearing against them in the prosecution evidence. But the accused persons have not chosen to adduce any oral evidence or produced any documents in support of their defence.
7. Heard the arguments of learned prosecutor and also learned counsel for accused No.1 to 3. Perused the oral and documentary evidence forthcoming on record. On going through the materials, the points that arise for my consideration are:-
(1) Whether the prosecution has proved beyond all reasonable doubt that on 12/9/2017 at about 7.30 p.m. when PW1 Deepak P.R. was in front of Sai Baba temple, accused No.1 to 3 with a common intention, gathered near the bus stop of Hulimavu and accused No.3 called accused No.1 and 2 and hatched conspiracy to kidnap CW1 and to rob the cash, golden jewelry and valuables and gave his motor bike bearing registration No. KA 51 EQ 9204 for commission of the offence and thereby committed the offence punishable under section 120B r/w 34 of IPC ?7 S.C.No.1958/2018
(2) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, the accused No.1 to 3 with a common intention, came near CW1 and accused No.1 and 2 dragged CW1 and made him to sit between them in a two wheeler bearing registration No.KA 51 EQ 9204 and kidnapped him and proceeded through BDA road via Maruthi Dental College to Kammanahalli road and took him to a abandoned place near Robonagar near Hulimavu lake and demanded ransom and robbed the valuables and thereby committed an offence punishable under section 364A r/w section 34 of IPC ?
(3) Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time and place, accused No.1 to 3 with common intention, threatened CW1 with knife point and assaulted him with the help of knife on his chest, snatched his phone and thrown it away and removed his clothes and put him under fear of death and grievous injury, robbed the gold finger ring inscribed with the name Druthi and also removed golden chain and thereby committed an offence punishable under section 397 r/w section 34 of IPC ?
(4) What order?
8 S.C.No.1958/20188. After hearing the arguments of both the parties and on considering the relevant materials on record, my findings on the above points are as hereunder.
9. My answer to the above points are:-
Point No.1:- In the Affirmative Point No.2:- As per the discussion in point No.2 Point No.3:- In the Negative Point No.4:- As per final order for the following;
REASONS
10. Point No.1:- As per the case of the prosecution accused No.1 to 3 conspired to kidnap CW1 with an intention to rob him and make unlawful gain. According to the charge framed against the accused persons, accused No.1 to 3 gathered near the bus stop and conspired to kidnap CW1 in order to rob him.
11. A criminal case was set into motion against the accused persons by the complainant CW1 Deepak S.R. CW1 is the victim, injured and eye witness to the incident. He has been examined as PW1. In his chief examination he has stated 9 S.C.No.1958/2018 that on 12/9/2017 at around 7.30 p.m. when he was moving by walk in front of Sai Baba Temple, Hulimavu road, two persons came on motorcycle and with a knife point on his neck forcibly dragged him and made him to sit in between them in the motorcycle. Thereafter they took him to a abandoned place at Robonagar, removed his clothes, thrown his mobile and forcibly took gold ring and gold chain and stopped him with knife on his chest. In so far as the incident is concerned, he has clearly stated regarding the overt act of accused No.1 and 2.
12. In so far as the conspiracy is concerned the learned counsel for the accused has vehemently argued that there is no mention regarding the presence of accused No.3 in the first information. Ofcourse it is true that nothing is mentioned regarding accused No.3 in the first information. It is to be noted that accused No.3 has not taken part in kidnapping CW1 but he has conspired to kidnap and rob CW1 along with accused No.1 and 2 by hatching conspiracy with them and handing over his motorcycle to accused No.1 and 2 for commission of offence. This aspect cannot be within the knowledge of CW1 because accused No.3 was behind the scene. Therefore PW1 cannot be expected to state the role of accused No.3 in the First Information. The available materials on record indicates that role of accused No.3 came 10 S.C.No.1958/2018 to light only during the investigation. Now it is to be seen whether there are any connecting circumstances or materials to connect accused No.3 with the alleged offence and sharing of common intention with the accused No.1 and 2. Hence it is necessary to go through the cross-examination of PW1.
13. During the course of cross-examination of PW1 it was elicited that there was already a person at the incident spot when two other persons took PW1 in the motorcycle. This aspect has not been denied by the accused. Hence the presence of accused No.3 at the spot is proved by the evidence of PW1. Apart from the above PW3 who has apprehended the accused persons has categorically stated that they apprehended all the three accused persons with two motorcycles and accused No.3 was also in the company of said other accused persons along with the articles they robbed from PW1. Apart from his evidence there were also other witnesses like PW5 who has also spoken regarding the presence of accused No.3 along with other accused persons after the incident. The presence of the accused persons before commission of offence and conduct of accused persons after the commission of offence is very much relevant to find out whether they have hatched conspiracy for commission of offence. There is clear evidence of PW1 regarding presence of accused No.3 in the spot while he was 11 S.C.No.1958/2018 being kidnapped. After the incident all the accused No.1 to 3 were gathered together with the robbed articles. There is also evidence to the effect that the pendent of the golden chain was removed when they were apprehended. The said aspect go to show that they were distributing the robbed articles amongst themselves when they were apprehended by the police. These aspects clearly indicates the common intention of accused persons and also regarding conspiracy to commit robbery. These aspects have not been disproved by the prosecution during the cross-examination. The evidence produced by the prosecution in this regard is very much reliable. On perusal of the above evidence and circumstances it is clear that accused No.1 to 3 hatched conspiracy with common intention to kidnap PW1 and to commit robbery for unlawful gain. Therefore point No.1 is answered in the Affirmative.
14. Point No.2: It is the case of the prosecution that accused No.1 and 2 dragged CW1 and made him to sit in the motorcycle, took him to abandoned place and by threatening him through knife point injured him and robbed golden chain and golden ring from him. In a case of robbery the prosecution must prove that the property was taken from either the victim person or persons and that the taking was accomplished either by violence or by a threat of violence. In 12 S.C.No.1958/2018 so far as kidnapping is concerned PW1 has categorically stated that when he was moving by walk on Sai Baba Temple road, two persons came on Bajaj Pulsar motorcycle bearing registration No. KA 51 EQ 9204 and with a knife point on his neck forcibly made him to sit in between them in motorcycle and abducted him to abandoned place at Robonagar, removed his clothes and forcibly took the gold chain and gold ring and stabbed him on middle of his chest. He has also identified the accused persons before the court who kidnapped him. It is stated by PW1 that for the purpose of jewelry they have kidnapped him.
15. It is the defence of the accused that PW1 lost his gold chain and ring somewhere else and to get them recovered with the help of police has lodged a false complaint. At this juncture it is necessary to go through the chief examination of PW1 wherein it is stated that on 17.9.2017 the police called him to the police station and shown the accused persons as well as the articles they had robbed from him. He has also stated that he identified the accused persons before the police. During the cross-examination when he was questioned as to on what basis he identified the accused persons, he categorically stated that they were very much close to him and he has seen them during the incident. The 13 S.C.No.1958/2018 said oral testimony of PW1 appears to be very natural and cannot be brushed aside.
16. It is pertinent to note that except PW1 there are no other other eye witnesses to the incident of robbery. Therefore now it is necessary to understand certain circumstances which happened after the incident. PW1 in his examination-in-chief has stated that soon after the incident he called his brother Ganesh with the help of CW2 Thouseef and on receiving call PW2 came near the shop of CW2 and took PW1 to the police station and thereafter to the hospital. This circumstance is corroborated by the evidence of PW2. In his oral testimony PW2 has clearly stated that on 12.9.20017 at in between 7.30 p.m. to 8.30 p.m. when he was in his house he received a phone call from mobile No. 9738202234 who intimated that he is Thouseef and PW1 sustained injuries and lying on the road near his garage. Immediately he rushed to the said spot and found PW1 sitting in the said garage with injury over the chest and he intimated that somebody kidnapped him on motorcycle near Sai Baba Temple, Hulimavu, removed his clothes and forcibly took his gold chain and ring. Immediately CW2 helped him and took him to Hulimavu police station, got lodged the complaint and thereafter took him to Fortis Hospital for treatment. During the cross-examination of PW2 nothing has been elicited to 14 S.C.No.1958/2018 disprove his version. It is to be noted that no cross- examination is forthcoming denying the fact of visit of PW2 near the shop of Thouseef and the fact of taking PW1 to the police station and hospital. The evidence of PW1 and PW2 clearly indicates that the incident of kidnapping and robbery has been taken place.
17. Now it is to be seen whether the victim was actually placed in fear and forced for violence. PW1 has categorically stated in his evidence that the accused persons threatened him with knife point and forced him to handover the gold chain and ring to them. Apart from the above it has also come in the evidence that they have stabbed on the chest which resulted in injury to PW1. In so far as the injury is concerned PW2 has categorically stated that there was bleeding injury in between the chest of PW1. The prosecution has examined PW7 Dr.Nagaraj in order to prove the injury. PW7 doctor has categorically stated that on 12.09.2017 at 9.40 p.m. injured by name Deepak visited him with the history of alleged assault and on examination he found incised wound measuring 2 x 1 cms. on the right chest wall in the middle line. He has also stated that the above injury could be possible with weapon like MO1 knife. Nothing much has been elicited during the cross-examination of PW7 15 S.C.No.1958/2018 so as to dis-prove the evidence of PW7, in so far as the injury sustained by PW1 is concerned.
18. In so far as the injury is concerned PW1 has stated that accused persons kept him under fear with the help of knife. The said knife was seized by police and the same is marked as MO1. PW1 has identified the said knife before the Court. The accused persons have not denied or disputed the use of said MO1 knife during the cross-examination. Therefore it is clear that the accused persons put PW1 under fear with the help of knife and caused him simple injury during the course of robbery.
19. Now it is to be seen whether the victim's fear was the result of the accused threats. In this regard the counsel for accused has cross-examined PW1 wherein he has stated that he himself was made to remove the chain and ring by knife point and after taking the chain and ring forcibly they assaulted him with the knife on his chest. This evidence of PW1 clearly indicates that PW1 experienced fear due to the threat by the accused persons with the help of knife. Nothing has been elicited during the cross-examination in order to disprove the said oral testimony of PW1.
16 S.C.No.1958/201820. Now it is to be seen under what circumstances the robbed articles were seized from the accused persons. According to the materials placed before the Court by the prosecution PW3 Satish Kumar, PW5 Chandra and PW9 Shekar were examined to prove the recovery of the robbed articles. In so far as the evidence of PW3 and PW5 is concerned they have categorically stated that CW15 deputed them to apprehend the accused persons and accordingly they left the police station at 10.30 a.m. on 17/9/2017 and obtained information from the informants regarding the accused. As per the information received by them regarding the presence of the suspected persons, when they went to the main road of Kothanur Dinne Village, they found three persons with two motorcycles who on seeing them started the motorcycle. Immediately police covered them and caught hold of them. On enquiry they came to know that their names are Manjunath, Narayanaswamy and Manu. On search of their person, they found a knife, a gold chain with a dollar and a finger ring with Narayanaswamy and accused No.3 was in possession of Bajaj Pulsar motorcycle bearing No. KA 51 EQ 9204. Thereafter they took them before CW15 and produced them before him along with the seized articles and vehicles used for the commission of offence. PW1 has stated in his evidence that police called him to the police station and showed the accused persons and robbed articles and he 17 S.C.No.1958/2018 identified the accused persons who committed robbery and also identified the articles which were robbed by them. PW3 was thoroughly cross-examined by the counsel for the accused. It is brought out in the cross-examination that accused No.1 and 2 are the rowdy sheeters of Hulimavu police station. It is also elicited that Bajaj Pulsar vehicle was with accused No.3 Manu. The conduct of the accused persons when the police went near them is also very relevant. During the cross-examination it is brought out that while police tried to catch them they tried to escape but police covered them and caught hold of them. All these aspects indicates that the accused No.1 to 3 were in possession of the articles robbed by them. PW5 has also stated in the same manner as that of PW3. During the cross-examination PW5 has also stated that Narayanaswamy and Manu were on Pulsar motorcycle. This assumes much importance for the reason that accused No.1 and 3 forcibly made PW1 to sit in the said Pulsar bike which belonged to accused No.3 and PW1 has stated in his oral testimony regarding the presence of accused No.3 in the place from where he was abducted.
21. In so far as the common intention of the accused persons is concerned it is to be noted that PW1 during the course of cross-examination has clearly stated regarding the presence of accused No.3 in the said spot before he was 18 S.C.No.1958/2018 abducted by accused No.1 and 2 in the bike. Similarly the conduct of the accused persons after the commission of crime is also important. Such circumstance has been elicited during the cross-examination of PW5. PW5 has stated that when they apprehended accused No.1 to 3 and found the robbed articles, the gold chain and the dollar were separated. The said aspect indicates that they were trying to distribute the robbed articles amongst them. Apart from the above there are evidences to show that they were standing a little away from Pawn Broker Shop. Therefore the intention of the accused persons was clear that they wanted to sell the robbed articles to the said Pawn Broker Shop. The above aspect clearly indicates that accused No.1 to 3 had common intention to abduct PW1 for the purpose of robbery with the help of dangerous weapon.
22. In so far as the presence of the accused persons at the police station is concerned there is no dispute because counsel for accused has put a suggestion to the effect that accused persons were brought to the police station from their respective houses. Under these circumstances the fact is clear that accused persons were brought to the police station on 17.09.2017. Now it is to be seen as to how the accused persons came into possession of the gold chain and ring pertaining to CW1. It is the defence of the accused persons 19 S.C.No.1958/2018 that PW1 lost the gold chain and ring somewhere and in order to get them recovered with the help of police they gave a false complaint. If the said defence has to be believed, the accused persons have to explain as to how they came into possession of the robbed articles. It is not their case that they found the lost article somewhere else. Under these circumstances it is very much necessary that accused must explain the circumstances as to how they came into possession of the said articles. There is no explanation in the evidence as to how they came into possession of the robbed articles. Under these circumstances the evidence of PW1 coupled with the evidence of PW3 and PW5 clearly indicates that accused persons robbed the said articles from PW1 and same was recovered from them.
23. At this juncture it is necessary to note that except PW1 and official witnesses, no independent witnesses have supported the case of the prosecution in so far as apprehension of the accused persons and recovery of robbed articles from them is concerned. It is worthwhile to go through a decision reported in 2023 SCC online SC 355 in the case of Balu Sudam Khalde Vs. State of Maharashtra wherein Hon'ble Apex Court summed up the principles which are to be kept in mind when appreciating the evidence of an injured eye-witness. The court held as follows:
20 S.C.No.1958/2018"When the evidence of an injured eye- witness is to be appreciated, the under- noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or 21 S.C.No.1958/2018 embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
24. Further in a ruling reported in (2010) 9 SCC 608 in the case of Darampal Singh Vs. State of Punjab, it is held that lack of independent witness is not fatal to the case of prosecution.
25. In the case on hand the evidence of independent eye witness, i.e., PW1 is not shaken in the cross-examination in so far as kidnapping, keeping him under threat, robbing of articles and identification of the accused persons is concerned. Though counsel for accused has vehemently argued that identification of accused is failed on the basis of the hostile evidence of the independent witness. The said argument cannot be accepted for the reason that there is no reason to disbelieve the evidence of injured eye witness. There is no reason for PW1 to allow the real culprits to escape and falsely implicate the accused persons.
22 S.C.No.1958/201826. On perusal of the above principles laid down by the Hon'ble Apex Court it can be safely concluded that the evidence of PW1 is corroborated by the evidence of PW2, PW3 and PW5 official witnesses. Though PW9 who is independent mahazar witness has turned hostile same is not fatal to the case of prosecution since the recovery is supported by the official witnesses apart from oral testimony of PW1. Under these circumstances the prosecution is able to place before the Court ample materials to prove the kidnapping, threat and robbery committed by the accused persons.
27. The counsel for accused advanced his arguments stating that no identification period was held and no voice test was conducted, therefore same is fatal to the case of the prosecution. It is to be noted that PW1 has clearly stated in his cross examination that he has seen the face of the assailant clearly during the incident. The said evidence appears to be natural because the accused No.1 and 2 have threatened PW1 with knife point and robbed his valuables and undressed him. Under these circumstances PW1 definitely observed the accused persons and the said evidence cannot be brushed aside. Under these circumstances there is no error in the identification of the accused person and therefore test identification period may 23 S.C.No.1958/2018 not find any importance in the case on hand and non-conduct of identification period and voice test is not fatal to the case under the facts and circumstances of this case.
28. In the case at hand the case of abduction and robbery and injury to PW1 by deadly weapon are well established by the prosecution. All that now left to determine is whether the offence under section 364(A) of IPC is made out.
29. It is to be noted that section 364(A) is an offence where kidnapping or abduction is made and a person is put to death or hurt or a person is threatened with death or actually murdered on demand of ransom. Section 364(A) covers cases where the demand of ransom is made for monetary gains for a private individual. In the present case the evidence placed by the prosecution to establish a case under section 364(A) is not sufficient to conclude that accused persons demanded ransom. As per the version of PW1 accused persons kidnapped him, put him under threat with the help of knife and took away his gold ornaments. There is no evidence to the effect that the accused persons asked for ransom. No further statement is also recorded by the Investigating Officer in respect of demand of ransom.
24 S.C.No.1958/201830. In a ruling reported in (2021) 9 SCC 59 in the case of Shaik Ahmed Vs. State of Telangana, the Hon'ble Apex Court held that in order to make out an offence under section 364(A) three conditions must be met:
(a) There should be a kidnapping or abduction of a person or a person is to be kept in detention after such kidnapping or abduction;
(b) There is a threat to cause death or hurt to such a person or the accused by their conduct give rise to a reasonable apprehension that such person may be put to death or hurt,
(c) Or cause death or hurt to such a person in order to compel the Government or any foreign state or intergovernmental organisation or any other person to do or abstain from doing any act or to pay a ransom.
31. The necessary ingredients which the prosecution prove beyond all reasonable doubt before the Court are not only an act of kidnapping or abduction but thereafter a demand of ransom coupled with the threat to life of a person who has been kidnapped or abducted must be there.
32. In the present case what the prosecution has miserably failed to establish is the demand of ransom. As per the prosecution version accused persons abducted CW1, put him under threat with the help of knife and took away the golden 25 S.C.No.1958/2018 ornaments from him and went away and during the course of robbery they caused simple hurt to PW1. In the present case, I do not find that the evidence would come under the ambit of section 364(A). However the prosecution has proved beyond all reasonable doubt the abduction, putting PW1 under fear and robbing of golden ornaments from PW1.
33. At this juncture I would like to invoke section 222 of Cr.P.C;
"When offence proved included in offence charged :-
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted 26 S.C.No.1958/2018 of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
The above provision states that the accused can be convicted for the minor offence though he was not charged with it. As per section 390 of IPC extortion is robbery if the offender at the time of committing extortion is in the presence of person putting 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 delivery of the thing extorted.
27 S.C.No.1958/201834. In the case on hand the accused persons kidnapped PW1 putting him under fear and made him to deliver the golden ornaments to them. Under these circumstances the accused persons are liable to be punished under section 392 of IPC. Therefore instead of convicting the accused persons under section 364(A) of IPC it is just and proper to convict them under section 392 of IPC to meet the ends of justice. Therefore point No.2 is answered accordingly.
35. Point No.3: The Investigating Officer has submitted charge sheet against the accused for the offence punishable under section 397 of IPC, i.e., robbery or dacoity with attempt to cause death or grievous hut. In so far as robbery is concerned the prosecution is able to prove the allegation against the accused persons. To attract the section 397 robbery must be coupled with attempt to cause death or rigorous hurt. On perusal of the materials placed before the Court and oral testimony of prosecution witnesses, no where it is stated that accused attempted to cause death or cause grievous hurt. The evidence available on record is that the accused persons with the help of knife caused incised wound measuring 2 x 1 cms. on the right chest wall in the middle line. The doctor has opined that the said injury is simple in nature. Under these circumstances there are no materials to come to a conclusion that the accused persons have 28 S.C.No.1958/2018 committed robbery with attempt to cause death or grievous hurt. On perusal of the materials placed before the Court the ingredients of section 397 are not forthcoming in the case on hand. Therefore there are no materials to hold that the accused persons have committed the offence punishable under section 397 of IPC. Therefore point No.3 is answered in the Negative.
36. Point No.4: In view of my above discussion on point No.1 to 3, I proceed to pass the following:
ORDER Accused No.1 to 3 are convicted for the offences punishable under section 120B of IPC and sentenced to undergo simple imprisonment for a period of 2 years.
Accused No.1 and 2 are convicted for the offence punishable under section 392 IPC and sentenced to undergo rigorous imprisonment for a period of four years and shall also liable to fine of Rs.20,000/- each.29 S.C.No.1958/2018
Accused No.3 is sentenced to undergo rigorous imprisonment for a period of three years and shall also liable to pay a fine of Rs.20,000/-.
Both the punishments shall be run concurrently.
On recovery of the fine amount a sum of Rs.30,000/- shall be paid to PW1 Deepak.S.R as compensation.
(Dictated to the Stenographer Grade-I online, typed by her directly, corrected and then pronounced by me in the Open Court on this 11th day of July, 2024) (JAYAPRAKASH . A) LXVI Addl. City Civil & Sessions Judge, Bengaluru 30 S.C.No.1958/2018 :ANNEXURE: LIST OF WITNESSES EXAMINED BY THE PROSECUTION: PW.1 Deepak.S.R. PW.2 Ganesha PW.3 Satish Kumar PW.4 Pradeep PW.5 V.Chandru PW.6 Ananda.L PW.7 Dr.Nagaraj PW.8 Sanjeev Kumar Mahajan PW.9 Shekar LIST OF WITNESS EXAMINED FOR DEFENCE: None LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION: Ex.P1 Complaint of PW1 Ex.P1(a) Signature of PW1 Ex.P2 Spot Mahazar of PW1 Ex.P2(a) Signature of PW1 Ex.P2(b) Signature of PW4 Ex.P2(c) Signature of PW8 Ex.P3 Pulsar Motorcycle Ex.P4 Seizure Mahazar Ex.P4(a) Signature of PW1 Ex.P4(b) Signature of PW8 Ex.P5 Colour photo 31 S.C.No.1958/2018 Ex.P6 Honda photo Ex.P7 Report of PW5 Ex.P7(a) Signature of PW5 Ex.P7(b) Signature of PW8 Ex.P8 Indemnity bond Ex.P8(a) Signature of PW6 Ex.P9 Statement of PW6 Ex.P10 Wound Certificate Ex.P10(a) Signature of PW7 Ex.P10(b) Signature of PW8 Ex.P11 FIR Ex.P12 Seizure Mahazar Ex.P13 PF Form No.117/17 Ex.P13(a) Signature of PW8 Ex.P13(b) Signature of PW8 Ex.P14 Mahazar of Release of two wheeler Ex.P14(a) Signature of PW8 Ex.P15 Mahazar of PW8 Ex.P15(a) Signature of PW8 Ex.P16 Statement of PW9 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE: Ex.D1 Further statement of PW1 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION: MO.1 Knife 32 S.C.No.1958/2018 LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE: Nil (JAYAPRAKASH . A) LXVI Addl. City Civil & Sessions Judge, Bengaluru Digitally signed by JAYAPRAKASH JAYAPRAKASH ANGARAKODY ANGARAKODY Date: 2024.07.20 10:49:50 +0530 33 S.C.No.1958/2018 The Judgment is pronounced in the open Court (vide separate Order).
ORDER LXVI Addl.CC & SJ, Bengaluru.
34 S.C.No.1958/2018Order pronounced in open Court vide separate order with following operative portion:
ORDER Accused No.1 to 3 are found guilty and convicted for the offence punishable under section 120B and 392 IPC.35 S.C.No.1958/2018
To hear the accused
persons on quantum of
sentence.
LXVI A.C.C & S.J, Bengaluru
Heard the accused No.1
to 3 on quantum of sentence.
Accused No.1 submits that he
has got a mother, wife and two
children. Accused No.2 submits
that he has got mother, wife and
married sister. Accused No.3
submits that he is unmarried and
has got father, mother and
brother.
The counsel for accused
submitted that accused No.1 to
3 are the sole bread earners of
their family. He has also brought
to the notice of this court that
accused No.1 is MOB person.
36 S.C.No.1958/2018
He has prayed to take lenient
view while passing sentence.
There are no other
mitigating circumstances
brought out by the accused
persons. In so far as accused
No.1 is concerned since he is
MOB person on the file of
Hulimavu police station it is a
aggravating circumstance which
is brought before the court. The
prosecution has brought to the
notice of the court that accused
No.2 is involved a case
punishable under section 399
and 402 IPC.
On perusal of the
materials no overt act except
conspiracy is forthcoming
against accused No.3.
Therefore this court is of the
opinion that some lenient view
37 S.C.No.1958/2018
may be taken against accused
No.3 while passing sentence. In
view of the above discussions, I
proceed to pass the following:
ORDER
Accused No.1 to 3 are
convicted for the offences
punishable under section 120B
of IPC and sentenced to
undergo simple imprisonment for
a period of 2 years.
Accused No.1 and 2 are
convicted for the offence
punishable under section 392
IPC and sentenced to undergo
rigorous imprisonment for a
period of four years and shall
also liable to fine of Rs.20,000/-
each.
Accused No.3 is
sentenced to undergo rigorous
38 S.C.No.1958/2018
imprisonment for a period of
three years and shall also liable
to pay a fine of Rs.20,000/-.
Both the punishments
shall be run concurrently.
On recovery of the fine
amount a sum of Rs.30,000/-
shall be paid to PW1
Deepak.S.R as compensation.
Counsel for accused filed
application under section 389(3)
of Cr.P.C to suspend the
sentence against the accused
No.3 pending appeal. Heard
learned counsel for accused
and learned PP.
In so far as accused No.3
is concerned, he is convicted to
undergo rigorous imprisonment
for a period of three years. It is
stated that he intends to prefer
39 S.C.No.1958/2018
an appeal against the judgment
of this court. Therefore there is
no impediment to suspend the
execution of sentence in so far
as accused No.3 pending
appeal.
Hence the following:
ORDER
The execution of sentence
is suspended for a period of 30
days in so far as accused No.3
is concerned with the following
conditions:
(1) Accused shall execute
personal bond for a sum of
Rs.50,000/- along with one
surety for the like sum.
LXVI A.C.C & S.J, Bengaluru