Karnataka High Court
Shivarama @ Shivarama Achari vs State Of Karnataka Rep By Thirthahalli ... on 3 November, 2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS TI-IE 3RD DAY OF NOVEMBER, 2009
BEFORE
THE IIONBLE MR. JUSTICE ARALI A'
CRIMINAL APPEAL Nos.259, 222 'I
BETWEEN:
Shivarama @ Shivarama Aehari,
s/0 Venkataramana Achari,
Aged about 35 years,
1'/a Thallurangadi,
Thirthahaiii Taluk, _ V --,_ ,
Shimoga Dist. } ViA.j3pel~1ant in
-"'~C"r'i--.fA .2-59 /2009
(By Sri Diwakara 81; a
BETWEEN: -- '
1. Sri ShiVakU.}:.V}'1£"lI: @ SVh_iv'u., " ,
s/0 Vee1"23.bhadia_ial1V,. A 'D
Aged .sI§j)ou1.~ 33 y€'E[i'S, I
A .1'/a Sriliaga 1', "K.alappéI"BlD0ck,
2.
S/0 I°3_§lgaraj.. " '
.Aged a'b0u'; 24' years,
I'/a Madhfaira, Malur Taiuk,
' < "KxoIa;~A ..Dis*€1'1'et.
'\bflm
{By 811 Kuznar Majage. HCGP)
3. Sri Dinesh @ Rajesh.
s / o Thimmegowda.
Aged about 27 years,
r/ a Srirarnpur. Bangalore.
Native of:
Eshwarahalli, near Kalsapura,
Chickmagalur District.
4. Kumari vijayalakshmi @ Vijaya.
d/ o Basavalingappa,
Aged about 25 years,
r/a Chikkabasavana Koppa.
Vitto Nagar, KR. Purarn, _
Bangalore. * :lAp.pellan't.s in
; V . "~«.."C.rlI;A.222/2009
{BY Sri M. Sharass Chandra. Adi} bl =
Between:
Ambika, d/o Basa1in«gapvpa. V
Aged about 25 years. ll '
r/a Chikkabasavalr'takop:pa, p _
Vetto Nagarzv, K.R. lPn:ram'.3..V . '
Bangalore. 1 l V M Appellant in
- '- ' ' V' Crl.A.86/2009
(By Sri TS. Maliantepshl, Adv.)
A116" a.
State of "represented
by Tiriirtha'halli_Pol'iee.':..
ShimogaDgistric_t»..__ Respondent in
' " 'd all the appeals
C}?]_._A. 25:9/09 is filed u/s.374[2) Cr.P.C. praying to set; aside
'j_l_l'th_e"j1"idgme.nt of conviction and sentence dated 21.01.09 passed by
'th_e-_Se_ss"ions Jduge, FTC--I, Shimoga in S.C.No.25'?/O7 convicting
. --i"tl__1_e"appellant for the offences punishable U/S. 'l20[b), 395 and 448
lo'f_I?C~etc. etc.
¢--~.Smy«'-'""\-~m-
Crl.A. 222/O9 is filed u/s.374(2) Cr.P.C. praying to set)-aside
the judgment of conviction and sentence dated 21.01.09 _passed_by
the Sessions Jduge. F'!(l--I, Shimoga in SC No.25?/Oiuonvicting
the appellants / accused nos.2 to 5 for the offences pun':;s.13jae_1_é'
u/s.120(b), 395 and 448 of IPC etc. etc.
Crl.A. 86/09 is filed 1,1/s.37-4(2) C:'r'.l5.C;.«
the judgment of conviction and sentence=.._dat.edl.-09 passedilby
the Sessions Judge, F l(3--I, Shirnoga in "No.25?/.0'? ..conVv,icting_x
the appellants / accused No.67 for the._ offences' :_:ptlul'liS:l'1abl€V I
Ll/312002)], 395 and 448 of IPC etc.
These appeals cominggon fo.r"'i*ieVaring_ thisdd'ay,~7the court
delivered the following: ' f . ~ V.
These arisen from the
same dated 21.1.2009
Passed in the Fast Track Court~l.
Shimoga (herei.n'aftver" as 'Trial Court' for short).
Tfotally charge sheeted in the said session
case» for» tj;heV_of1"en"ce_s under Sections 1208, 448 and 395 IPC.
All were tried by the Trial Court for the
_"-__said offences... V
iloxyefier, on appreciation of the oral evidence of PWs.1
documents at Exs.P1 to P46 and MOs.1 to 88,
c"~=-~§'K""""*'
the Trial Court, by its impugned Judgment and Order,
acquitted accused No.7 V125,, B R Shivananda Hegdc-'--,.._ but
convicted accused Nos.1 to 6 for the offences underl--Se'ct'isoIis
120B. 395 and 448 11°C and sentenced them toVu'ili.dergolllRl¥
a period of five years and fine of {for
under Section 12013 with default sefltence l' forl."s'1lX~c
months; R1 for a period of ten yea1::s;'l'a1jd firielfofRs;§2fl.000/--
with default sentence of one year for the
offence under Section 395_I.PC_ iSI"fo.r'sixfmollths for the
Offenw under S¢Ctt:oi§it448sllipc.,
3. Crl.Al<..' fby accused No.6, Crl.A
No.222/09 is fiéed l\l0s.2 to 5 and Crl.A No.25?)/09
_i.s«...fi1ed~'5:by__l"accu.sed.____No.1 arising out of the said S.C.
Lv ;Alil't.'.hese accused and also accused No.7 B R
.7"u,____.Shivanai1dal (who is acquitted) were also tried by the
Trial Court in S C No-5.254, 255 and 256 of 200'? for the
s_ai:ne.Voff'ences in respect of different incidents that occurred
H the same night between 14"' and 15"'? of July, 2007.
€__'__{""""'3e""'¥.»'\._.,...~..=--«
4. The Trial Court recorded the evidence of prosecatpion
mtnesses in all the four Session Cases separately,
the witnesses, except PW} complainant. are con}-rrion'~.in Valli V'
the cases and the respective witnesses have "'dispose-d._as" to?
the same set of facts in all thev,ca_ses.l'T_h'us, s:a'r'neV'r,
witnesses have been examined prosec1:i:tionHl°Ws.2
to 21 in all the four Sessior.1sf evidence in all
the cases is identical. pAl1 have been
marked as 4' (in respect
whereof éiellos have been filed by
the respective appel'laii1::sijllaccused] and certified copies of the
same documentsfareVrnarlkedprespectively as E:~s:s.P2 to P46 in
of l\l'o-s:25Vl5';'*-25§_Aand 257 of 2007. Since these three
appeals" different accused in SC No.25'?/2007,
'»._,they hyuthis Common Judgment.
I-Eeard"'i:he arguments of Sriyuths M Sharaschandra,
llajktirriar and R G Chouhan, the learned Advocates
reiprelseiitiiig the respective appellants ~ accused in all these
(_¢-.....§"""V"~...._....
appeals and also Sri Vijaya Kurnar Majage, the learned High
Court Government Pleader for the respondent
Perused the entire original records in all the
Cases, which are obtained from the Tri_a1...Court:; " '~~:'" .
6. The victim of robbery narnely 1
Channegowda, R/o Balehalii Thirthahalllii aiuk,
Shirnoga District has not of the
incident of robbery which:'oceu:1?redA".hi'§\~\';Vfes'idential house
during the and 151%: day of
July.O 2oo_7__.__e 'lllA:::VllVI):l:C:i'flll3rappa, the A.S.i. of
Thirthahalli.,_AP s, has.filedtheieoinplaint Ex.P2 on the basis of
the the said Victim. The said
ieietulidaée
' 1.45 a.m. on 15.07.07 (during the night
~b!e«:weei%;'_i_1.4rend 15 of July. 2007) while the complainant
had s_l'ep,ltl' in his residential house, some strangers
xl<r1oci~:e.éi the main door of his house. Then the
.c:or"nplaina11t opened the door. Immediately. five
"persons holding gun and pistol forcibly entered into the
"w
7.
house saying that they were naxalites. They threatened
the complainant showing pistol.
(b) Then one of them forcibly took the
almerah from the cornplainanfs house
the almerah 2 gold bangles, one cliaiiiaone:_p'ear.l'1
chain, four rings and other si1ve1:7ar:ti_cles an.Ad'~a1so"
of Rs.39,000/- The gold the
cash were worth Rs.7E_3,O00/f,___uPifter_tal§i11.g_ the said gold
and silver ornament..sf forciblel "the said
persons threatened the should not
inform the polie.e'y:abo§ut '_incid'erit and then went
away. Since' threatened by
the any complaint before
the police iln'lres_pect 9 said' incident of robbery.
As cou1d°l:_4)e ,seVen.'4Vfro'rn"..»sthe charges framed against the
Va'cc_usec_l"tr1 the said"Sessions Case, the case of prosecution is
that accused Nos.1, 3 and 7 respectively
' lVi'~A.....».Shivai=a'n'i @ Shiijyarlama Achari, Shivakurnar @ Shivu and B R
-._.'_j..Shiyananda"Hegde conspired together and during the said
conspiracy, they agreed that. accused Nos.2 to 6 should
. dacoity on the night of l-4.7.2007 in Balehalli village.
<_»--~§M""\--"\....--
In order to prove this faetum of conspiracy, the prosecution
has placed reliance on the evidence of PW3 Lokesh.
driver, PW4 Ravikumar, a contractor at Theerthahlalli _
PW5 Venkatesh, an agrilcuturist in thesaid' vil_iage;i: . '
8. PW3 Lokesh has stated in his_ evidence thatv-'éJnV'oi1e
about a year prior to 19.9.2008 date' evidence}
while he was at Gandhi accused
Nos.2 and 3 viz. Shivaigumar»-and. him and, at
that time, that he wanted
to hire a egu and PW3 agreed to
give them deposed that two days
thereafter; at about accused Nos.2 to 6 together
left on the way to Dharmasthala,
told him that they had some work. at
l'.V-thearlefore at about 4.30 p.m, when the car
..l_lQi'_:«.reached Shvilrrgoga and they took a room in Ganesh Lodging
them stayed there on that day. He has further
' that he also stayed in the said Lodging on that day
€"
and at about $.30 am. on the next day, all the five accused
[A2 to A6] returned to Bangalore in his said ear. 4HVe»._:has
further deposed that during the said night. _
his car somewhere in Shimoga.
9. PW4 B K Ravikumar has stated evidence' thatlonl'--..p
one day at about 4.00 pm about a priorllto [the
date of his evidence} whi1e_.":p'h_e Stopulnear TB
Hospital in Shimogacity, Shivananda
Hegde and Acccused l. alongwith a third
person tal}<i'I1'g?J-Vrt'O'VV.'E§dé:'c1L§.:::Qt.1r1'é::'} * V
10. PW5 in his evidence that on one '
day about a year prior.v"to"'2fi'I§).2008 [the date of his evidence}
lab.opu't/I \:,if.00~.rA_a.mtVllliithile he was at the Bus Stand of
Gutuggol'l_ilpvtllagel he was to go to T hirthahalli, he saw
ac_.cused"----l\fo.__;'l' Shivaramachari and accused No.7 Shivarama
together coming there, on a motor cycle, along with
an_0th:er"person. He has further deposed that he again saw
c-.r*v~»v
I9
accused Nos} and 7 alongwith the said third person at 6.45
p.IT1. at Agurnbe Bus Stand.
11.. On careful reading of the above evidence of
it could be seen that the said evidence not~i'in:_"'anvWay".
establish that accused Nos.l, 3 and 7 together
agreednbetween themselves that to "should
comrnitt dacoity at .,the between
14th and 15"1 July ZOQ7. of PW3, the
driver of the left Bangalore at
11.00 am. p.m. there could be
no occasior1..Afor'Wv?1.'l~lax'il{uh1ar'to see any of these accused
at about 4.OOV°p.lrn_. xatlthe Stand near T 8 Hospital in
Sliirnoga Sirnilar.ly_,___'tl1ere could be no occasion for PW5
Venkatesh of accused Nos.2 to 6 at the Bus Stand
Gujulgolli 'vdiiiagé at 11.00 am. on that date along with
-:d_lrl'_;':,.auccused l\:'~os';;_l V8: 7. Though it is the evidence of PWs.3 and «fl
saw accused Nos.l and 7 together with a third
the Trial Court has acquitted accused No.7, of all the
<"*-§"""*"'\.....»...»
'ii-
offences under Sections 120(8). 448. 395 and 427. This
being so, I am of the considered opinion that the Tria.i_VC.o'o_rt
committed serious error in convicting accused Nos3V,_1"to_f6. _
the offence under Section 12013 IPC. H.en_ee, allwthieig
Nos.1 to 6 ~ who are appellants in these :a_'ppVeai's. .'t:_0.:
be acquitted of the said offence
12. The said Nagesh, has been
examined in the has stated in
his evidence the night of iéiih
and 15th of the door of his
residential him by taking his name.
there was no eieictrioityaa at that time, when he opened
rnaie female persons forcibly entered in
the -.._,'tiie5Ii:'showed him a pamphlet and told that they
' iV....v.were iriajialitesnff has further deposed that the said persons
-.i.d.d'_j:,.forc,ibly the key of almerah from his wife, opened the
a1inerah'""and took from it two pairs of gold bangles, two rings,
gold chain of single thread another gold chain, two silver
z:-"-(W""'\.,..»»-.»
coins. cash of R5.8.000/-- etc. He has further deposed that
since he was threatened by the said persons that he.sh.oti1d
not inform the police about. the said incident, .
complaint in respect thereof. He hasAAfu_rthe'rh
two gold rings and one gold chain were
police of Thirthahalli Police StatiVOI7_i]E1I}d he ig:ier1tifieCi;._tl':eV« same
as the gold ornaments thatwererobbed"-»froml his residential
house during the said that he
was told by the» llgold and silver
ornaments were -persons. As to the
identity of sarrielvpersons who committed
robbery in he has deposed in his
evidence is that on he was summoned by the
lFaltik« thelmplremises of jail at Shimoga when the
Test'' was conducted and he identified
accused"-2 tolii the same persons who committed robbery
house' during the said night.
«=-=-~F"*-x..i....
f%
13. It is pertinent to note that it is stated in Ex.P2 complaint
that cash of Rs.39,000/- was taken by the robbers,
victim has stated in his evidence that cash of _
was taken away by the accused at thattime. Eor:1a§i;,1'thoog5"
it is stated in the complaint Ex.P2 anri.yals:or~
in his evidence that the said petlsons took':fi"om'y:l9fi.g.wife.'§ the
key of the alrnerah forcibly, the got. the
complainants wife examined as a,.,.1t is an admitted
fact that there was«nuo'---sup-iplyl e:1:e«eft1jicitj,§.ll complainant's
house at the tinielof V_l'~loH material is placed
on record to source of light so as to
enable PW1'the"vic'ti,rr1'.l the physical features of the
persons fwvho robbery during the said night.
lieeoioeoiifhié; hey haooot informed the police who lodged
corriplaintl fnor has he UPW1] stated in his evidence the
physical--- features of any of the said four persons who
Further, if it is alleged in Ex.P2 that five
K pyeréoris'forcibly entered into the house of PW} and committed
PW} has stated in his evidence that four persons ~
.:,--~....{M""""'v..,---'**'~--
were robbed by the accused in the respective houses of
complainants in all the said four Session Cases including SC
No.25?/2007 were melted and gold and silver ingots were
prepared by the accused and therefore the i'jesp_"ective
complainants could not have opportunity to
gold and silver ornaments robbed:""from -'_4their'f.respective '
houses. It is the further case of pros'ec1i--tioln 'M0
and 16 respectively silver 82: go1d--v..i:£igots dare lthe"_.slét;ne"'ingotsl.'
which were got prepared, by thei'éiccn;sed.._by ge'tti1'1'g many of
the ornaments that were l houses of the
respective Zconipiain ants. _".,
15. It is the spe(:ificA.jeaiSe_:3of Vtlie prosecution that the said
ingots were prelpa_red..7byA.'PW.11 Vishnu Patil and. MO No.14
'silveryViVrigiot5'iha's.ypbeeri"recovered by 20, the Police inspector
from of accused No.4 Dinesh under the
ln"lipanchAanarn_a'E§;:'.l58 in the presence of panch viz. PW9 Sathish
No.16 gold ingot has been recovered, under
"pa:r1chan.ama by the same 10 in the presence of the
(....,_,_,_,,....¢:'°"""§'_V,.»»-=ua
same panch. (PW9], from the person of accused No.3' Vijay
Kumar alongwith MO Nos.l7 to 19 respectively"casliguof
Rs. 10,000/- and two mobile phones and also
chit for having pledged the gold chain:
16. PW11 Vishnu Patii is said' to have
and M016 intogs. He has stated that accused
No.1 Shivaram @ Shivara.n51'acl"larii_ gold chain, ear
W€a1'S and Wrings totally Wei-<f.hing~--abou.tv_ fglranis and silver
leg chains, one silver§€*g]._as,sl'and other silver ornaments totally -
weighing about the said ornaments
and prepared and 16 respectively the Silver
81 gold ingots' to accused No.1. If this
ve¥.rid€ncvl3«}lplf: isVlha__c_cepted, it goes to show that it was
alccusged gave him the stolen ornaments, by melting
16 ingots came to be prepared by PW11
_l=.._an:'l_ghe gavehthle same to Accused No.1. If that was so, the
'[_""s.ai'cl"ingo'ts should have been recovered from the person of, or
it instance of. accused No.1 only. But, the case of the
,¢-:-»_..,...C\\"\....-»-vo-w
%
prosecution is that the said ingots came to be recovered
respectively from the person of accused Nos.3 and 4.
17. it is pertinent to note that accused No.1 is not alleged to
have accompanied accused Nos.2 to 6, who are
have committed robbery in the houses of
complainants on the said date andj'tim'e'.« p_ the
weight of the silver and gold ingotsAldole's_znot
weight of the silver and gold or"n,a'rnents"*saidyto have been
robbed from the house.s'Wof t«hel_l'1*e§ppeCt\ive complainants.
Therefore, based on the __l.Nos.14 and 16
respectivelysth-.e' --ingots it could not be held that
the said ingotsécamel to'.beV.l:pl1"epared by melting many of the
ornamentsvvallegedllto have been robbed by accused No.2 to 6
from the respective complaints. Therefore, I am
of the 'eo'r1lsiderled.view that on the basis of recoveries of there
_'l=.l.ing.ots from lthelperson of Accused Nos. 3 & 4, it could not be
either accused No.1 or any of accused Nos.3 and 4
'
Prakash and the same came to be seized from the said pawn
broker under the panchanama EXP9. The Trial Court has
recorded its finding that the prosecution has proved beyond
reasonable doubt recoveries of MO Nos.22,- 27
claimed by the prosecution.
19. The learned advocates for the ..
contended that, the CW13 Chaitanya' P3-aakaslfi,..p.awn'Vbroiter
has not been examined by the prosecution' andiwthe1*e,fO}"€l,
finding recorded by the Trial Cour_t_l:t:hat'»l_\_/iO came to be
seized from the said pawn b-roykei?p_carinotclV'b.e"sustained in law.
This be accepted as there is no
explanation bly.._4the lllpros.ec,ui;oion as to why the said pawn
lC}i'Ol{€I' vct:iul:cl'not be'~~e;ga1riined. However, I do not find any
-Vto'v.in*teri"ere with the finding recorded by the Trial
s.___.Court'th'at gold ring came to be recovered by PW20
person of accused No.5 under the panchanarna
presence of PW9 Satish Poojari as panch, and
l 1\/£0 No.2'? another ring came to be recovered by him from
w
the person of accused No.6 under the same panchanarna in
the presence of the same panch. Further, these":
Nos.5 and 6 have not claimed MO Nos.22 and
to themselves. Besides this, they"i"have snot'jzpgiyen'-ileany
explanation as to how they came to of
gold rings. Further, PW]. victirnva.s:.Vli~as iclenjzlifiefd gold V
rings as two of the ornarh~e_nts'.~'thatt.:ljtgis'reg.rololjledlillrom his
house during the said nights that though
the prosecution against all the
accused Nos. 1 leyellled against them for
the offences' and 448 of IPC,
Accused 5 aridu 6 are of an offence under S.411
IPC i1.1asrnt1eh as .5wei*el"lf.ound possessed of MO Nos.22_
"27 re's:pect.ilVely the stolen articles knowing the same to be
stolen hetefore. both the accused Nos.5 and 6 are
vjliahle tolbe co-n'c'i:c~ted for the said offence.
ll..fE'Ao:i*"éhe reasons aforesaid, Cr}. A. No.259/2009 is hereby
.
{i} The impugned Judgment and Order dated 21.01.2009 passed in SC. No.25'?/2007 by the Fast Track Court -- I, Shimoga, insofar as it relates to conviction of A1 therein for the offences under«_S--eCtiCns 120B. 395 and 448 of IPC is hereby therein is hereby acquitted of all-1 the said (11) Crl. A. N0s.86/2009san;l 222,(2oo9s.a'f¢':
part. The impugned Judgr1n,:e11--t_» 0_'(:)rder dated 21.01.2009 passed d1s_d0'i=s,c}1Njs1,02i57Ty1/'Q00? insofar as it relates to c0nvicti0r1"'of-iacctigg to 6 for the offences 395 and 448 EPC is hereby set as1deV'.0«.__VThexacct1_sed..'i'N0s.2 to 6 are hereby acquitted '_ Qffenceshnder Sections 120-8, 395 and 448 of .(iii')._. H0'weV*e'I*,"" since accused Nos.5 and 6 are found gliiitiy as offence under S411 of IPC, they are hereby 'conyicted for the said offence. Having regard to the age Qfddaccused N0s.5 and 6 and the facts and clrcumstances r"-~..§""""I,-»--~.......
of the case, each of them is sentenced to undergo RE. for a period of two years and three months onlyl§"»s A6 Srnt.Ambik.a has been Convicted by this Cofart same offence under S.-411 of IPC in No.84/2009 [Sessions Case been disposed of by this Ciourt sentenced to undergo R} for 2_ly.e_ar.s and «3_mon}ths. The sentence of irnprisonrnenty imp.osed.lpienl'her in this appeal shall run _eoneur1'en't*ly'p sentence of imprisonn1ef1t__iinp'os'e.d__on her in the said ease.
(iv) ondate-,jvliflthesellaecused Nos.5 and 6 have already' eornpletedl'theiperiod of imprisonment for two years" and th»ree"rnol1ths, if they are not required to be detainecl _i:na__eonneetion with any other case, they shall forthwith.
(vial , 'impugned order in SC. No.25?/2007 insofar it relates to the disposal of material objects therein is left: undisturbed. if any fine amount has been deposited 5m sac* with the Trial Court by any of the accused Nos.l to 6 therein, in Compliance with the impugned sentence passed by the Trial Court. the sarne refunded to the respective accuse-di.»..' A {vi} é A copy of this order shall heeent. Trial Court and also to the.Superintelr1d'ent; Central Prison, Bangalore, for i.r'.forr_na;Vjtioii-.. i compliance.