Karnataka High Court
Mahendra Reddy @ Raja S/O Ramareddy vs State By Paper Town Police Station on 30 July, 2012
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY 2012
BEFORE
THE HON'BLE MR JUSTICE K. N. KESHAVANARAYANA
CRIMINAL APPEAL NO.1543/2005 (C)
BETWEEN:
MAHENDRA REDDY @ RAJA,
S/O. RAMAREDDY,
AGED ABOUT 25 YEARS,
TAILOR,
R/O. BALLARAPPA COLONY,
A.P.M.C. YARD,
B.G. OIL MILL BACKSIDE,
KOKKARA JEDU VILLAGE,
ALOORU TALUK,
KARNUL DISTRICT,
ANDRA PRADESH. .... APPELLANT
(BY SRI. SANTOSH NAGARALE, ADVOCATE)
AND :
STATE BY PAPER TOWN
POLICE STATION,
BHADRAVTHI. ... RESPONDENT
(BY SRI BHAVANI SINGH, ADDL. SPP )
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374 CR.P.C BY THE ADV., FOR THE APPELLANT AGAINST
THE JUDGMENT DATED 27-07-2005 PASSED BY THE S.J.,
FTC-III, SHIMOGA, IN S.C. NO. 1/03-CONVICTING THE
APPELLANT-ACCUSED FOR THE OFFENCE P/U/S 394
R/W 397 OF IPC AND SENTENCING HIM TO UNDERGO R.I.
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FOR 7 YEARS AND TO PAY FINE OF RS. 10,000/-, I.D. TO
UNDERGO R.I. FOR 6 MONTHS.
THIS CRIMINAL APPEAL COMING FOR HEARING ON
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the convicted sole accused in S.C. No.1/2003 before the Presiding Officer, Fast Track Court- III, Shimoga and is directed against the judgment of conviction and order of sentence dated 27.07.2005 convicting him for the offences under Sections 394 r/w. 397 of IPC and sentencing him to undergo Rigorous Imprisonment for seven years and to pay fine of Rs. 10,000/- for the aforesaid offences.
2) The case of the prosecution in brief is as under:-
PW.1-Saraswathi is the wife of PW.7-B. Venkatesha. PW.6-Thimmareddy is the elder brother of PW.7 and PW.3-Ramakka is the mother-in-law of PW.1 and mother of PWs.6 & 7. One Sheshagiri is the younger brother of PW.7. PWs.1, 3, 7 and Sheshagiri were residing together 3 in the House No.35, Paper Town, Bhadravathi. The appellant-accused is the son of younger sister of PW.3 and he is resident of Kokkarejedu village in Alur Taluk of Karnul District, Andhra Pradesh. On 13.06.2002 at about 5.30 am, as usual, PW.7 left the house for his work in MPM Factory and at about 7.00am, Sheshagiri left the house. Thus, PW.1 and PW.3 were the only persons in the house apart from the two small kids of PW.1, who were aged about 2 years and 10 months. At about 10.00am, the accused came to the house of PWs.1 & 3 stating that he had come to a neighbouring village to attend a marriage. After some time, when PW.3 was cooking food inside the kitchen and PW.1 was feeding her child in the bedroom, the accused went inside the kitchen and assaulted PW.3 with a chopper. On hearing the cries of PW.3, PW.1 went inside the kitchen and saw PW.3 lying on the floor with the bleeding injury on the head. When PW.1 enquired, the accused threatened PW.1 also and demanded her to give cash and gold ornament kept in the house. When initially PW.1 refused, the 4 appellant/accused assaulted PW.1 with a chopper on the head, shoulder and other parts of the body and thereafter, PW.1 told the accused that cash and gold ornaments are kept in almirah inside the room. The accused opened the almirah and took away cash of Rs.15,000/- and a gold chain kept in a tumbler. On hearing the screams of PWs.1 & 3, the neighbourers came there and on seeing them, the accused ran away from the place. Immediately, PWs.1 & 3 were taken to the Government Hospital at Bhadravathi, from where, they were taken to Nanjappa Hospital in Shimoga for better treatment. While PW.1 was taking treatment in Nanjappa Hospital in Shimoga, her statement as to the incident came to be recorded by the police, based on which the case came to be registered and investigation was taken-up.
3) During investigation, the Investigating Officer visited the scene of occurrence, drew-up mahazar as per Ex.P.11, collected the blood stain found on the floor of the house, recorded the statement of witnesses and thereafter 5 apprehended the accused. On personal search of the accused in the presence of PW.8-Ashok, PW.9-Manjunath, PW.10-Varada, PW.11-Sheshadri Pavarsar, the accused was found possessing a gold chain-MO.1 and cash of Rs.15,000/- MO.2, in his pocket and the same was recovered by drawing mahazar-Ex.P.14. Subsequently, pursuant to the voluntary statement said to have been made by the appellant/accused, chopper MO.3 said to have been used in the commission of the offence and a Plastic Bag-MO.6 were recovered at the instance of the accused under Mahazar-Ex.P.15, in the presence of PW.13-Kondaiah and others. Later the accused was subjected to judicial custody. After completing investigation, the charge sheet came to be filed. Subsequently, the accused was enlarged on bail.
4) On committal of the case, the appellant- accused appeared before the learned Sessions Judge and pleaded not guilty for the charges levelled against him for 6 the offences punishable under Sections 394 r/w. 397 of IPC and claimed to be tried.
5) The prosecution in order to bring home the guilt of the accused for the charges levelled against him, examined PWs.1 to 20 and relied on documentary evidence-Exs.P1 to P20 and MOs. 1 to 12. During his examination under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing against him in the evidence of prosecution witnesses. However, the accused did not choose to lead any defence evidence. The defence of the accused was one of total denial and that of false implication in the background of the litigation and ill-will between PW.1 on the one hand and her husband and his relatives on the other hand.
6) After hearing both sides and on assessment of oral as well as documentary evidence, the learned Sessions Judge by the judgment under appeal, held the appellant-accused guilty of the charges levelled against him and consequently, convicted the appellant for the 7 aforesaid offences and sentenced him accordingly. Aggrieved by the said judgment of conviction and order of sentence, the accused is in appeal before this Court.
7) I have heard the learned counsel appearing for the appellant as well as the Additional S.P.P. for the Respondent-State and perused the records secured from the court below.
8) Learned counsel for the appellant/accused contended that the judgment under appeal suffers from perversity and illegality inasmuch as the learned Sessions Judge has not properly appreciated the circumstances brought-out on record, which proves innocence of the accused. He contended that, except the interested testimony of PW.1, no other acceptable evidence is produced by the prosecution to establish the complicity of the accused for the injuries sustained by PWs.1 & 3 and in spite of the same, the learned Sessions Judge has proceeded to hold that the prosecution has proved the complicity of the accused in the commission of the alleged 8 offence. He further contended that all the independent witnesses examined to prove the alleged recovery of gold chain-MO.1 and cash-MO.2 from the possession of the accused having not supported the case of the prosecution during their evidence before the Court, the learned Sessions Judge has committed error in accepting the alleged recovery only on the basis of the evidence of the Investigating Officer. Therefore, he contended that there is no acceptable evidence placed by the prosecution to prove the alleged recovery of MOs.1 & 2 from the possession of the accused and in the absence of such proof, the trial Court has committed error in holding that the accused is guilty of committing robbery. According to the learned counsel, if for any reason, this Court were to hold that the evidence of PW.1 with regard to the incident is acceptable, in the absence of any acceptable evidence as to the recovery of MOs.1 & 2 from the possession of the accused, the act alleged against the accused would only attract the offence under Section 324 of IPC and therefore, the judgment of the trial Court requires modification. 9
9) On the other hand, the learned Additional S.P.P. sought to justify the judgment under appeal and contended that the judgment under appeal does not suffer from any perversity or illegality since the learned Sessions Judge on proper appreciation of the oral and documentary evidence has held the appellant/accused guilty of the charges levelled against him and since those findings are sound and reasonable, regard being had to the evidence on record, there is no justifiable ground warranting interference by this Court. He further contended that the suggestions put to PW.1 in the cross-examination by the defence itself is sufficient to indicate the presence of the accused in the house of PW.1 at the time of the incident and since the medical evidence on record clearly corroborates the evidence of PWs. 1 & 3 with regard to they sustaining injuries, the court below is justified in accepting the evidence of PWs.1 & 3 as to the complicity of the accused in the commission of the offences. He further contended that merely because the independent 10 witnesses for the recovery of MOs. 1 & 2 have not supported the case of the prosecution, the evidence of the Investigating Officer in this regard cannot be discarded merely on the ground that he is a Police Officer. He further contended that the evidence of the Investigating Officer in this regard is corroborated by PW.1 with regard to the accused committing robbery of gold chain as well as cash and therefore, the trial Court is justified in acting on the evidence of Investigating Officer with regard to the recovery, as such, the judgment under appeal does not suffer from any perversity or illegality. With these submissions, he sought for dismissal of the appeal.
10) In the facts and circumstances of the case and in the light of the submission made by the learned counsel on both sides, the points that arise for my consideration are,-
i) Whether the judgment under appeal suffers from any perversity or illegality warranting interference by this Court?
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ii) Whether the learned Sessions Judge is justified in holding the appellant-accused guilty of the offence punishable under Sections 394 r/w. 397 of IPC?
11) The appellant-accused has not disputed his relationship with PWs.1 & 3. Appellant/accused is the son of younger sister of PW.3. He is admittedly a resident of Kokkarejedu village in Karnul District of Andhra Pradesh.
12) The case of the prosecution that, on 13.06.2002 at about 10.00 a.m. the appellant/accused came to the house of PWs.1 & 3, is not seriously disputed by the accused. On the other hand, the suggestions put to PW.1 in the cross-examination would substantiate the case of the prosecution in this regard. These suggestions clearly indicate that the accused admits his presence in the house of PWs.1 & 3 on 13.06.2002 at about 10.00 am. The relevant suggestions put to PW.1 in the cross- examination reads as under:-
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13) Even during his examination under Section 313 of Cr.P.C., the appellant/accused has stated that about three years ago, on one day, he had come to the house of his senior maternal aunt. Thus, the presence of the accused in the house of PWs.1 & 3 on the date of the incident is clearly admitted by the accused himself. The evidence of PW.2 -Dr. Manjuanth B.S. establishes that at about 11.20am on 13.06.2002 he examined PW.1 and noticed as many as seven injuries and as per his advise, the injured PW.1 was taken to major hospital in Shimoga. According to PW.2, on the same day, he examined PW.3- Smt.Ramakka and noticed an injury on the head. There is no serious cross-examination to PW.2 in this regard. His evidence is further corroborated by the evidence of PW.15- Dr. R.D. Hegde, Casualty Medical Officer at Nanjappa Hospital, Shimoga, who in his evidence has stated that at 1.15pm on 13.06.2002 he examined PW.1-Saraswathi and 14 noticed as many as seven injuries and CT Scan taken showed Brain Hemorrhage Contusion in the left temporal occipital lobe and mild cerebral edema. Thus, the medical evidence on record clearly establishes the injuries on the person of PWs. 1 & 3.
14) In fact, the very suggestions put to PW.1 in the cross-examination, extracted above, indicate that the accused has not disputed PWs.1 & 3 sustaining injuries on that day. However, his defence was that PWs.1 & 3 sustained injuries by an accident fall. Regard being had to the nature of injuries suffered by PWs.1 & 3, the suggestion put to them in the cross-examination that they sustained injuries by fall, cannot be accepted. PW.1 had sustained as many as seven injuries and by a single fall one could not sustain all those seven injuries on different parts of the body. Therefore, the accused has failed to substantiate his stand with regard to PWs.1 & 3 sustaining injuries. PW.1 is an injured eye-witness and there are no reasons for her to depose falsely against the 15 accused. Nothing is brought-out in the cross-examination of PW.1 to show that she had any kind of animosity or ill- will against this accused nor she had an axe to grind against him. Of course, PW.1 has admitted that she has differences with her husband, mother-in-law and brother- in-law and she has filed maintenance as well as divorce petition against her husband and also a private complaint against her mother-in-law and brother-in-law. However, on this ground, the evidence of PW.1 with regard to the incident cannot be discarded. PW.3-mother-in-law of PW.1 no doubt has not supported the case of the prosecution with regard to the complicity of the accused. Nevertheless, the evidence of PW.3 clearly supports the say of PW.1 with regard to the presence of PW.3 in the house at the time of the incident and she having been assaulted by some one from behind while she was preparing food in the kitchen. Obviously, while cooking food if she has been assaulted from behind, she could not identify the assailant. It is therefore, she has rightly stated in her evidence that she does not know as to who 16 assaulted her from behind. At the time of the incident, the only persons in the house were PWs.1, 3 and the accused. PW.3 was inside the kitchen. PW.1 was inside the bedroom feeding her child. The only other person was the accused. Therefore, it is reasonable to hold that none other than the accused assaulted PW.3. In this view of the matter, the evidence of PW.1 gains corroboration from PW.3 with regard to the acts of assault by the accused on PWs.1 & 3. PW.1 has categorically stated that the accused assaulted PW.3 and herself with a chopper.
15) Regard being had to the nature of injuries sustained by PWs.1 & 3 as spoken to by the Doctors, it is clearly established that those injuries have been inflicted by a sharp edged weapon like chopper. Thus, the user of the chopper is satisfactorily established. Of course, with regard to the recovery of the chopper, there is no independent evidence. Nevertheless, the chopper produced before the Court as per MO-3 has been identified by PW.1, as the one used in the commission of 17 the offence. PW.1 has stated that when the accused came to her house, he was holding a plastic wire bag and in the said bag, he had brought a chopper. The plastic wire bag is also seized and marked as MO.6. Thus, the evidence of PW.1 clearly establishes the acts of assault by the accused on PWs.1 & 3 with the Chopper-MO.3. According to the Doctor's opinion, PW.1 had sustained grievous injuries while PWs.3 had sustained simple injuries.
16) PW.1 in her evidence has stated that the accused threatened her to give cash and gold ornaments kept in the house and when she refused, she was assaulted and later, she disclosed that the cash and gold ornaments have been kept in the almirah and thereafter, the accused opened the almirah and took away the cash of Rs.15,000/- and a gold chain and went away from the place. She has identified MOs. 1 & 2 as the gold chain and cash taken away from her house.
17) According to the case of the prosecution, on the apprehension of the accused, personal search was 18 conducted and at that time, he was found possessing a gold chain as well as cash of and the same were seized. No doubt, the independent witnesses examined with regard to the recovery of MOs. 1 & 2 have not supported the case of the prosecution. However, the Investigating Officer in his evidence has spoken about the recovery of MOs. 1 & 2 from the possession of the accused. PW.3 has also stated in her evidence that they had kept a gold chain and cash of Rs.15,000/- in the almirah and she has also identified MO.1 as the chain belonging to her family. Thus, the evidence of Investigating Officer with regard to the seizure of MOs.1 & 2 gains corroboration from the evidence of PW.1.
18) In the light of the evidence of PW.1 with regard to the accused robbing cash and gold chain from her house, the evidence of the Investigating Officer regarding seizure of MOs. 1 and 2, cannot be discarded merely on the ground that he is a Police Officer.
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19) It is fairly well-settled law that evidence of a witness cannot be discarded merely on the ground that he is a police officer. However, the evidence of such witnesses requires close scrutiny before acceptance.
20) In the case on hand, the evidence of the Investigating Officer gains corroboration from the evidence of PW.1 with regard to the acts of robbery committed by the accused. In this view of the matter, I find no error committed by the learned Sessions Judge in accepting the evidence of the Investigating Officer with regard to the recovery of MOs. 1 & 2 from the possession of the accused. Thus, the evidence placed by the prosecution beyond reasonable doubt established the act of robbery committed by the accused from the house of PW.1 and causing of grievous hurt to PW.1 and hurt to PW.3 at the time of committing robbery by using dangerous weapon like chopper. In this view of the matter, I am of the opinion that the learned Sessions Judge is justified in convicting the appellant/accused for the offence 20 punishable under Section 394 r/w. 397 of IPC. I find no infirmity in the judgment nor any perversity in the findings recorded by the trial Court. In this view of the matter, the judgment under appeal does not call for interference by this Court.
21) The offence under Section 397 is punishable with minimum imprisonment of seven years. The trial Court has sentenced the appellant/accused to undergo imprisonment for a period of seven years and to pay fine of Rs. 10,000/-. Therefore, the sentence ordered by the trial Court cannot be termed as harsh or as excessive. In this view of the matter, I find no merit in this appeal. Therefore, the appeal is dismissed. The judgment of conviction and order of sentence passed by the Trial Court is affirmed. Bail and surity bonds executed by the accused ordered to be cancelled. The appellant/accused is directed to surrender himself before the Trial Court forthwith. Upon such surrender, the Trial Court shall commit him to prison to serve the sentence. If he fails to 21 do so, the Trial Court shall take necessary steps to secure the presence of the accused and commit him to prison.
SD/-
JUDGE KGR*