Karnataka High Court
Aruna R @ Arunkumar vs The State Of Karnataka on 28 February, 2020
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL No.79 OF 2020
BETWEEN
ARUNA R. @ ARUNKUMAR,
AGE 22 YEARS,
S/O. RAMESHA,
RESIDING AT BASAVANAPURA VILLAGE,
MALAVALLI TALUK,
MANDYA DISTRICT,
PERMANENTLY RESIDENT AT
KOTE KUMBARARA BEEDI HALLI,
MALAVALLI TOWN,
MANDYA DISTRICT-571405. ... APPELLANT
[BY SRI. ARJUN RAMAKHOT, ADVOCATE]
AND
THE STATE OF KARNATAKA,
BY MALAVALLI TOWN POLICE
STATION-571 401,
REPRESENT BY STATE PUBLIC
PROSECUTOR. ... RESPONDENT
[BY SRI. K.NAGESHWARAPPA, HCGP]
***
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
11.12.2019 AND ORDER OF SENTENCE DATED 12.12.2019 PASSED
BY THE PRINICPAL DISTRICT AND SESSIONS JUDGE, MANDYA IN
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S.C. NO.54/2019 CONVICTING THE APPELLANT/ACCUSED NO.2
FOR THE OFFENCE P/U/S 398 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by accused No.2 in S.C. No.54/2019 on the file of the Court of Principal Sessions Judge at Mandya, challenging the Judgment and Order dated 11.12.2019/12.12.2019, wherein the learned Sessions Judge convicted and sentenced him for the offence punishable under Section 398 of IPC.
2. The case of the prosecution in brief is that; On 04.05.2015 at about 8.45 p.m., at Malavalli Town, near KSRTC bus stop, within the limits of Malavalli Town Police Station, accused Nos.1 to 4 were found moving in a suspicious manner and they were in possession of deadly weapons concealed in Indigo-Ecs car bearing reg. No.TN- 22/CR-8025, thereby making preparation to commit robbery or dacoity and hence committed an offence punishable under Section 398 of IPC.
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3. I have heard the learned counsel for the accused and learned HCGP appearing for the respondent/State and perused the material on record.
4. It is contended by the learned counsel appearing for the accused that the entire case of the prosecution is false. He contends that there is absolutely no evidence to show that the accused were either making preparation or attempting to commit robbery or dacoity. The panchwitnesses to the seizure mahazar have not supported the case of prosecution. The evidence of the official witnesses cannot be believed since they are interested witnesses. He submits that even if the case of prosecution is accepted, the ingredients of Section 398 of IPC are not made out. Therefore, the trial Court was not justified in convicting the accused. The learned Counsel contends that though P.Ws.1 and 2 i.e., the alleged panchwitnesses have turned hostile, the learned Sessions Judge accepting the testimony of the Police officials has convicted the accused even though there are no corroborative piece of evidence to bring home the guilt of the accused. Hence, he submits that the impugned Judgment and Order is 4 unjust, illegal and seeks to allow the appeal by setting aside the Judgment and Order of conviction and sentence passed by the trial Court.
Per contra, the learned HCGP has contended that, accused persons were found moving suspiciously and therefore, they were apprehended by the police. From their possession deadly weapons-M.Os.1 to 4 i.e., two iron rods and two knives were seized, which they had concealed in the car bearing reg. No.TN-22/CR-8025. He submits that the accused persons have travelled from Tamil Nadu in the said car after committing the murder of the driver of the car and came to Malavalli town Mandya district with an intention of committing robbery. The accused were armed with deadly weapons and therefore, it is obvious that they were making preparation to commit robbery. The weapons have been seized and in this regard, evidence of P.Ws.4 and 5 are sufficient. He submits that the trial Court rightly convicted the accused and seeks to dismiss the appeal.
5. The charge leveled against the accused is that on 04.05.2015 at about 8.45 p.m., near KSRTC bus stop in 5 Malavalli Town, within the limits of Malavalli Police Station, accused Nos.1 to 4 were found in possession of deadly weapons in Indigo-Ecs car bearing reg. No.TN-22/CR-8025, thereby attempting to commit robbery or dacoity and hence committed an offence punishable under Section 398 of IPC.
6. Ex.P9 is the report submitted by ASI-B.Javaraiah to the Police Inspector of Malavalli Pura Police Station. It is stated that on 04.05.2015 when he along with P.W.3 and other police constables were on patrolling duty on the outskirts of Malavalli Town, at about 8.45 p.m., they noticed the accused near the KSRTC bus stop moving in a suspicious manner, opening and closing the door of the car. On suspicion, when they surrounded the said persons, they attempted to run away from the spot. Immediately, with the help of public, they apprehended them. They did not give any satisfactory answer and did not possess the documents of the car. On search, they found two iron rods and two knives inside the car. The accused were then produced before P.W.5, who arrested them and recorded their voluntary statements. The weapons and car were seized and a mahazar was conducted in the presence of panchwitnesses. 6
7. Initially, trial was held in S.C. No.82/2015 on the file of the Principal Sessions Judge at Mandya. Accused No.4 was reported to be dead. After conclusion of the trial, since accused No.2 i.e., appellant herein absconded, the case against him was split-up and separate sessions case in S.C. No.54/2019 was registered. The learned Sessions Judge by Judgment and Order dated 05.08.2019/13.08.2019 passed in S.C. NO.82/2015 convicted and sentenced accused Nos.1 and 3 for the charged offence punishable under Section 398 of IPC. In so far as accused No.2 is concerned, he was arrested and produced before the Court on 14.10.2019 and thereafter, the learned Sessions Judge by Judgment and Order dated 11.12.2019/12.12.2019, in S.C. No.54/2019, convicted and sentenced accused No.2 for the offence punishable under Section 398 of IPC.
8. Against the said Judgment of conviction and sentence, accused No.2 has preferred this appeal.
9. According to the prosecution, the accused were in possession of deadly weapons like iron rods and knives, which 7 were concealed in the car and they were attempting to commit robbery or dacoity.
10. To attract an offence under Section 398 IPC, the prosecution has to establish that the accused were attempting to commit dacoity or robbery and that time, they were armed with any deadly weapon.
Section 398 of IPC reads as under;
"398. Attempt to commit robbery or dacoity when armed with deadly weapon.-- If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."
Section 391 of IPC reads as under;
"391. Dacoity.-- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to 8 five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
To attract the definition of dacoity, there shall be at least five persons. In the case on hand, the accused are less than five in number. Hence, it can not be said that the accused were attempting to commit dacoity.
Section 390 of IPC reads 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 9 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."
11. To establish the guilt of the accused, the prosecution has examined P.Ws.1 to 5 and got marked Exs.P1 to 12. P.Ws.1 and 2 are the panchwitnesses to Ex.P1, seizure of weapons. Both P.Ws.1 and 2 have turned hostile and not supported the case of prosecution.
12. P.W.3 is a police constable working at Malavalli Police Station. According to him, while they were on patrolling duty, at about 8.45 p.m., they noticed a car near the bus stand and when they came near the car, the inmates of the car made an attempt to escape and they apprehended them. They found two iron rods and two knives in the said car. They suspected that the accused were about to commit 10 the offence of robbery. The car and the weapons were seized. The accused were apprehended and produced before the Police Inspector. In the cross-examination it is elicited from P.W.3 that on seeing them, the accused did not try to flee away from the spot. P.W.3 has denied the suggestion that M.Os.1 to 4 i.e., two iron rods and two knives are not concerned to the accused.
13. P.W.4 is the ASI and he is the first informant, who filed a report as per Ex.P9. He has stated that he along with P.W.3 and other police constables were on patrolling duty. At about 8.45 p.m. when they were proceeding near KSRTC bus stand, they noticed a white car bearing reg. No.TN-22/CR- 8025. On suspicion, they went near the car and saw 4 persons inside the car. The said persons after seeing them, attempted to flee away. They caught hold of them and enquired their names. They failed to give documents of the car. They found two iron rods and two knives inside the car. Hence, they suspected that the said persons were attempting to commit robbery or dacoity. The said accused were apprehended and brought to the Police Station and produced before the Police Inspector. He has stated that two iron rods, 11 two knives and a pair of shoes were seized under mahazar- Ex.P1. Thereafter, they conducted the spot-mahazar as per Ex.P2.
14. P.W.5 is the Police Inspector, who has registered the case and thereafter arrested the accused and recorded his voluntary statement. After completion of investigation, he has filed the charge-sheet.
15. The Hon'ble Apex Court in the case of 'CHINNADURAI VS. STATE OF T.N.' reported in 1996 AIR SCW 4457 at para 4 has observed as under:
"4. It seems to us that the conviction of the appellant under Section 398, IPC whereunder he has been sentenced to seven years' rigorous imprisonment cannot be sustained. Section 398, IPC gets attracted if at the time of attempting to commit robbery or dacoity, the offender is armed with a deadly weapon which will attract an imprisonment not less than seven years. When no robbery or dacoity has been committed as such, in the sense that no property was removed from the house of the complainants and nothing said to be belonging to the complainants was 12 recovered, it would be difficult to hold that there was any attempt in regard to the commission of robbery or dacoity. Scattering of articles in the house may cause a scene as if ransacked, but that does not proved the charge. We thus feel that on the evidence, the conviction of the appellant under Section 398, IPC is not sustainable. Accordingly, the same is set aside."
16. In the instant case, according to prosecution, accused were found in possession of two iron rods and two knives, which were concealed inside the car. It is alleged that the accused were attempting to commit robbery or dacoity. Though the evidence of P.Ws.3 to 5 shows that the accused had in their possession M.Os.1 to 4, unless there is evidence to show that the accused were attempting to commit robbery, Section 398 of IPC will not be attracted. To attract Section 398 of IPC., the prosecution has to show that the accused were in fact attempting to commit either theft or extortion and at that time they were armed with any deadly weapon. The prosecution has miserably failed to establish the ingredients of Section 398 of IPC. Section 398 of IPC is not attracted to the facts of the present case and therefore, the 13 trial Court was not justified in convicting the accused for the offence under Section 398 of IPC.
17. Learned HCGP would contend that according to the voluntary statements of accused recorded by the I.O., the accused persons have committed murder of the driver of the car in Tamil Nadu and thereafter they brought the car to Malavalli after disposing off the dead body. He submits that possession of arms in the car shows that the accused were attempting to commit one more offence.
18. Record discloses that in so far as the allegation of committing murder of the car driver viz., Chandrashekar is concerned, there is a separate case registered on the basis of a missing complaint lodged by the wife of the deceased, in Crime No.660/2015 of CMBT Police Station, Chennai. Further, the Investigating Officer has taken permission of the Court to transfer the records pertaining to the said case to the jurisdictional police. In so far as the present case is concerned, from the material on record it cannot be said that the accused have committed an offence under Section 398 of IPC. The prosecution has failed to establish the case against 14 the appellant/accused No.2 for the offence punishable under Section 398 of IPC. Hence, the following:
ORDER Appeal is allowed. The Judgment and Order dated 11.12.2019/12.12.2019 passed in S.C. No.54/2019 on the file of the Principal District and Sessions Judge, Mandya, is set aside.
The appellant/accused No.2 is acquitted of the offence punishable under Section 398 of IPC. He is set at liberty, if not required in any other case.
In view of disposal of the main appeal, pending I.A. does not survive for consideration and the same is disposed of.
Sd/-
JUDGE Ksm*