Karnataka High Court
Srinivas S/O. Siddappa Walmiki vs The State Of Karnataka on 7 September, 2022
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CRL.RP No. 100077 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL R.P. NO. 100077 OF 2014 (397)
BETWEEN:
1. SRINIVAS S/O SIDDAPPA WALMIKI
AGE: 27YEARS, OCC: COOLIE
R/O.RAYANAL VILLAGE,
OLD HUBLI, HUBLI.
2. NASHIR S/O SATTARSAB HAJI
AGE: 24 YEARS, OCC: AGRICULTURE
R/O. GOLLAR ONI, HUBLI
...PETITIONERS
(BY SRI. R H ANGADI AND H S NAYAK.,ADVOCATE)
AND:
THE STATE OF KARNATAKA
R/BY THE SPP, HIGH COURT BENCH
DHARWAD
...RESPONDENT
(BY SRI. ADDL. SPP.,ADVOCATE)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397
R/W 401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT
AND ORDER OF CONVICTION DATED 15.02.2014, PASSED IN
CRL.A.NO.136/2013, BY THE I-ADDL. DIST. & SESSIONS
JUDGE, DHARWAD, SITTING AT HUBLI, AND THEREBY
CONFIRMING THE JUDGMENT AND ORDER OF CONVICTION IN
C.C.NO.3183/2010, DATED 13.08.2013, PASSED BY THE JMFC
I-COURT, HUBLI, AND ACQUIT THE REVISION PETITIONERS
NO.1 & 2.
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CRL.RP No. 100077 of 2014
THIS CRIMINAL REVISION PETITION IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This Criminal revision petition is filed under Section 397 r/w 401 of Cr.P.C. seeking to set aside the judgment and order of conviction dated 15.02.2014 passed in Crl.A.No.136/2013 by the I Addl. District and Sessions Judge, Dharwad sitting at Hubballi and thereby confirming the judgment and order of conviction in CC No.3183/2010 dated 13.08.2013 passed by the JMFC-I Court, Hubballi and acquit the revision petitioner Nos.1 and 2.
2. Heard the arguments of learned counsel for the petitioners and the learned Addl. SPP Sri.V.M.Banakar.
3. The parties will be referred to as per their ranks in the trial Court.
4. Brief facts of the prosecution case is that on 06.09.2008 around 9 p.m. both accused came in motor cycle and a person sitting on the motorcycle snatched the -3- CRL.RP No. 100077 of 2014 Mangalsurtra of one Smt.Vidhyavathi and disappeared from the place. Smt.Vidyavathi lodged a complaint to the Gokul road Police station, Hubbali in Crime No.130/2008 or the offences punishable under Section 392 of IPC. During the time of investigation, Police arrested the accused and recovered incriminating articles and filed charge sheet against the accused persons for the offence punishable under Section 392 r/w 34 IPC.
5. Trial Court has framed the charge against the accused for commission of offence under Section 392 r/w 34 of IPC. Both accused pleaded not guilty and claimed to be tried.
6. The prosecution to prove its case in all examined 18 witnesses as PWs.1 to 18 and got marked documents as Ex.P1 to P.8. On closure of prosecution side evidence, accused were examined under Section 313 of Cr.P.C. Accused have totally denied the incriminating evidence found against them and have not chosen to lead defence evidence on their side.
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7. On hearing the arguments on both sides, the trial Court has convicted the accused for commission of offence punishable under Section 392 r/w 34 IPC and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- each in default to undergo rigorous imprisonment for 30 days.
8. Being aggrieved by the judgment and order of conviction and sentence, the accused has preferred the appeal before the First Additional District and Sessions Judge, Dharwad, sitting at Hubballi in Crl.A.No.136/2013 and the same came to be dismissed on 15.02.2014 as against the same, revision petitioner has filed this petition.
9. The learned counsel appearing for petitioners/accused submitted that the alleged incident took place on 06.09.2008 wherein petitioners were arrested by the Police on 13.05.2010 i.e. after lapse of 1½ year. At the instance of the accused they have recovered the Mangalasutra. The nature of recovery of property is quite unnatural. Investigating office has not conducted -5- CRL.RP No. 100077 of 2014 Test Identification parade. Hence, both courts below have failed to appreciate the evidence on record in proper perspective manner and there are no ingredients to attract the offence punishable under Section 392 r/w 34 of IPC.
10. It is the case of the prosecution that as snatched Mangalasutra from the possession of complainant-PW1, no injury or threat is made by the accused. Hence, at the best, the alleged offence comes under the provision of Section 379 r/w 34 IPC. If this court has come to the conclusion that the accused have committed offence under Section 379 r/w 34 IPC, the accused have already undergone judicial custody from 07.01.2011 till 12.06.2014, more than 3 years, months, 5 days. Hence, sought for passing suitable orders.
11. As against this, learned Addl. SPP has submitted that not conducting of test identification parade is not a fatal to the case of prosecution, as it is not a substantial piece of evidence. Both the courts have rightly appreciated the evidence on record and passed impugned judgment. -6- CRL.RP No. 100077 of 2014 Prosecution has placed sufficient material to prove the recovery of property from the accused and witnesses have identified the properties which were snatched. Hence there is no illegality in the impugned judgment passed by both the Courts below. With regard to applicability of the provisions of Section 392 is concerned, learned Addl. SPP fairly submitted that the ingredients of Section 390 of IPC is are not attracted to the case on hand and the alleged offence is not come under the provisions of Section 379 r/w 34 of IPC.
12. On perusal of records, it reveals that PW1-Vidyavathi has lodged the complaint to the Police as per Ex.P1 regarding theft of her Mangalasutra. On the basis of this complaint-EX.P1, investigating officer-PW-14 has registered the case and submitted FIR to the Court. Thereafter, Police have conducted spot panchanama and during the course of investigation, Police have arrested the accused persons and at the instance of both the accused, Police have seized the Mangalasutra in the presence of -7- CRL.RP No. 100077 of 2014 panchas under mahazar-Ex.P3. PW.2-Iranna Tegginamani is the mahazar witness has deposed to the contents of the Mahazar and the seizure of mangalasutra as per Ex.P3. Thereafter, PW.1 has summoned to the Police station and she has identified the accused and also mangalasutra and after completion of investigation, investigating officer has submitted charge sheet against the accused for commission of offence under Section 392 r/w 34 of IPC. The prosecution has proved its case beyond all reasonable doubts as to the property in dispute from the possession of the accused.
13. Both courts have properly appreciated the evidence on record and come to the conclusion that investigating officer has seized the property at the instance of accused under mahazar-Ex.P.3. Hence, prosecution has proved that the accused have committed offence punishable under Section 379 r/w 34 IPC. Both the courts have not considered that the offence come under the Section 379 r/w 34 IPC instead of that trial Court has convicted the -8- CRL.RP No. 100077 of 2014 accused for the offence punishable under Section 392 r/w 34 of IPC and the same was upheld by the First Appellate Court.
14. In this regard, it is relevant to mention here as to the provisions of Section 390 of IPC. Section 390 Indian Penal Code contemplates as under:
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing 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 any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in 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 deliver up the thing extorted. Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes without Z's consent. Here A has -9- CRL.RP No. 100077 of 2014 committed theft, and in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high roads, shows a pistol, and demands Z's purse. Z in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying--"Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such; but it is not robbery, unless Z is put in fear of the instant death of his child.
15. In order to prove the offence of robbery, the prosecution has to prove that Theft is "robbery" if, in order to the committing of the theft, or in committing 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 any person
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CRL.RP No. 100077 of 2014 death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
16. In the instant case, the accused have not voluntarily caused or attempted to cause death or injury or wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint to the complainant. However, the investigating officer has submitted the charge sheet under Section 392 r/w 34 of IPC. Unfortunately, both the Courts below have not considered this aspect of provisions of Section 390 and convicted the accused for the commission of offence punishable under Section 392 r/w 34 of IPC which is not correct. The evidence placed by the prosecution will attracts the provisions of Section 379 r/w Section 34 of IPC. Accordingly, prosecution has proved that the accused have committed offence under Section 379 r/w 34 of IPC. Hence, I proceed to pass the following:
ORDER Revision petition is partly allowed.
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The judgment and order of conviction to the accused nos.1 and 2 for commission of offence under Section 392 r/w Section 34 of IPC is set aside.
Accused nos.1 and 2 are convicted for the commission of offence punishable under Section 379 r/w 34 of IPC.
The accused Nos.1 and 2 shall undergo simple imprisonment for a period of one year each and also shall pay fine of Rs.500/- each for commission of offence under Section 379 r/w 34 of IPC.
It is submitted by the learned Addl. SPP and petitioners counsel that the accused Nos.1 and 2 have already undergone judicial custody from 07.01.2011 to 12.06.2014 for a period of 3 years 5 months 5 days. Accordingly, petitioners have
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CRL.RP No. 100077 of 2014 already completed their simple imprisonment for one year.
The fine amount deposited by the accused shall be appropriated to Government.
Send back the trial court records along with copy of this order.
Sd/-
JUDGE HMB List No.: 1 Sl No.: 9