Karnataka High Court
Vishwanath S/O. Somanna Koliwad vs The State Of Karnataka on 9 September, 2022
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CRL.RP No. 100200 of 2014
IN THE HIGH COURT OF KARNATAKA, DHARWAD
BENCH
DATED THIS THE 9TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE G BASAVARAJA
CRIMINAL REVISION PETITION NO. 100200 OF 2014
(397)
BETWEEN:
VISHWANATH S/O. SOMANNA KOLIWAD
AGE: 25 YEARS, OCC: AGRICULTURE
R/O. KOLIWAD, NEAR HIGH SCHOOL
TQ: HUBLI, DIST:DHARWAD
...PETITIONER
(BY SRI. T R PATIL,ADVOCATE)
AND:
THE STATE OF KARNATAKA
BY BETAGERI EXTENSION P.S.
R/BY SPP, HIGH COURT OF KARANATAKA
DHARWAD
...RESPONDENT
(BY SRI.V.M.BANAKAR, ADDL SPP.)
THIS CRIMINAL REVISION PETITION IS FILED U/S 397 R/W
401 OF CR.P.C. SEEKING TO SET ASIDE THE JUDGMENT DATED
22.12.2012 PASSED IN C.C.NO.70/2012 PASSED BY THE COURT OF
1ST ADDITIONAL CIVIL JUDGE AND JMFC GADAG. AND ALSO SET
ASIDE THE JUDGMENT DATED 04.07.2014 PASSED IN CRL APPEAL
NO.02/2013 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE GADAG, CONFIRMING THE JUDGMENT OF CONVICTION OF
THE TRIAL COURT AND ACQUIT HIM.
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CRL.RP No. 100200 of 2014
THIS CRIMINAL REVISION PETITION IS COMING ON FOR
FINAL HEARING, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
This revision petition is filed by the petitioner/accused No.1 under Section 397 R/w. 401 of Cr.P.C. seeking to set aside the judgment dated 13.12.2012 passed in CC.No.70/2012 by the I Addl. Civil Judge & JMFC, Gadag and also judgment dated 04/07/2014 passed in Crl.A.No.2/2013 passed by the Prl. District and Sessions Judge, Gadag, confirming the judgment and order of conviction of the trial Court.
2. Brief facts of the prosecution case is that on 04/04/2011 at about 7.20 p.m. upon Hatalageri road, near the farm of one Sankannavar, nearby a pool, when the complainant Smt.Vanishri Menadalmath was returning from her morning walk with her sister-in-law Vijayalaxmi Menadalmath, the accused Nos.1 and 2 came from the back side in a Hero Honda motor cycle bearing No.KA-25 EB 2949 and the accused no.2 threw the chilli power to the eyes of the Vijayalaxmi Menadalmath and snatched -3- CRL.RP No. 100200 of 2014 the golden tali chain which the complainant was wearing in her neck and fled away from there on the motorcycle and thereby committed the offence punishable under Section 392 R/w. 34 of IPC.
3. After filing of the charge sheet, the learned Magistrate has taken cognizance against the accused for the offence punishable under Section 392 R/w. 34 of IPC and a case was registered in CC.No.70/2012. Charges are framed by the learned Magistrate and the same was read over and explained to the accused. The accused pleaded guilty and claims to be tried. To prove the case of prosecution, 12 witnesses were examined as PWs.1 to 12. 10 documents were marked as Exs.P.1 to 10. On closure of prosecution side evidence, accused were questioned under Section 313 of Cr.P.C. Accused have denied the evidence appearing against them, but they have not chosen to lead any defence evidence on their behalf.
4. On hearing arguments of both sides, the trial Court has convicted the accused Nos.1 and 2 for the offence -4- CRL.RP No. 100200 of 2014 punishable under Section 392 R/w. Section 34 of IPC. It is submitted that accused No.2 already served sentence as per the judgment of the trial Court. The accused No.1 has preferred the appeal against the judgment passed by the trial Court before the Prl. District and Sessions Judge, Gadag in Crl.A.No.2/2013, which came to be dismissed on 04/07/2014. Being aggrieved by the same, the petitioner/accused No.1 has preferred this Revision Petition.
5. Learned counsel for the Revision Petitioner submits that after recovery of the property, identification period has not conducted by the investigating officer, which is fatal to the case of the prosecution and there is material omissions and contradictions in the evidence of PWs.1 to 4 as to the snatching of the chain. PW.9-Bommayya Nagappa Palanakar said to be the receiver of the stolen property, he has clearly deposed in his cross examination that the police have not recovered the property. Further, he had admitted that he has not given any statement to -5- CRL.RP No. 100200 of 2014 the police and he has not issued any receipt as to the receiver of this property in question. PW-10-owner of the motorcycle has not supported the case of the prosecution. Further he submits that prosecution has failed to prove the offence punishable under Section 392 R/w. 34 of IPC. On all these grounds, he sought for allowing the Revision Petition.
6. Alternatively, he submits that, even if this Court has accepted the evidence of prosecution witnesses and come to the conclusion that accused have snatched Mangalsutra chain then at best, the alleged case of the prosecution comes under the provision of Section 379 of IPC R/w. Section 34 of IPC, which is punishable with only imprisonment for three years or with fine or both. Accused already undergone in judicial custody for a period of three months seventeen days. Fine amount of Rs.2,000/- has already deposited by the accused No.1 before the trial Court. Hence, the same may be considered as sentence for -6- CRL.RP No. 100200 of 2014 the commission of offence punishable under Section 379 R/w. 34 of IPC.
7. As against this, learned Addl. SPP submitted his arguments that PW.1 has clearly deposed as to the stolen property and during the course of investigation, investigating officer has arrested accused on the basis of voluntary statement of the accused investigating officer has recovered the property at the instance of accused under mahazar-Ex.P5. The non-conducting of test identification parade is not fatal to the case of prosecution as it is not a substantial piece of evidence. Both courts have properly appreciated the evidence on record passed the impugned judgment. Prosecution has placed sufficient materials to prove the recovery of the property at the instance of the accused and that there is no illegality in the impugned judgments passed by both the Courts below. With regard to the applicability of provisions of 392 is concerned, the learned Addl. SPP fairly submitted that ingredients of Section 392 of IPC is not attracted to the -7- CRL.RP No. 100200 of 2014 case on hand and alleged offences come under the provisions of Section 379 r/w 34 of IPC.
8. On perusal of the records, it reveals that PW1- Vanishri Menidalamath has lodged the compliant to Police as per Ex.P1 as to the theft of her Mangalasutra. On the basis of this complaint-EX.P1, the concerned Police have registered the case and submitted FIR to the Court. Thereafter, investigating officer has conducted spot panchanama and during the course of investigation, arrested the accused persons. At the instance of the accused, Police have seized mangalasutra under mahazar Ex.P5.
9. After recovery of the property PW1 has summoned to the police station, she has identified the accused and also the mangalasutra. Both courts have properly appreciated the evidence of prosecution witnesses and come to the conclusion that the investigating officer has recovered the stolen property at the instance of the accused from the possession of PW.9 under seizure -8- CRL.RP No. 100200 of 2014 mahazar. The accused No.2 has already undergone the sentence as per the judgment of trial Court. Even, in the statement under Section 313 of Cr.P.C. accused No.1 has not offered any explanation as to the seizure of stolen property at his instance under seizure mahazar. Accordingly, prosecution has proved its case beyond all reasonable doubt as to the theft of mangalasutra. But, both the Courts have not considered that the offence come under the provisions of Section 379 r/w 34 of IPC. Instead of that, trial court has convicted the accused for the offence punishable under Section 392 r/w 34 of IPC and the same was up held by the Appellate Court.
10. 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 -9- CRL.RP No. 100200 of 2014 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 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.
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CRL.RP No. 100200 of 2014
(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.
11. 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 death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
12. In the instant case, Prosecution has not placed substantial evidence to prove that 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, accused is convicted for the offence under Section 392 r/w 34 of IPC, which is not correct. The evidence placed by the prosecution will attract the
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CRL.RP No. 100200 of 2014 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. The judgment and order of conviction to the petitioner/accused no.1 for commission of offence under Section 392 r/w Section 34 of IPC is set aside.
The petitioner/accused No.1 is convicted for the commission of offence punishable under Section 379 r/w 34 of IPC.
The petitioner/accused No.1 shall undergo simple imprisonment for a period of three months, 17 days and also shall pay fine of Rs.2000/-.
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CRL.RP No. 100200 of 2014 It is submitted by the learned Addl. SPP and petitioner counsel that the accused No.1 has already undergone judicial custody for over a period of 3 months and deposited the fine amount of Rs.2,000/- in the trial Court.
The fine amount deposited by the accused shall be remitted to the Government.
Send back the trial court records along with copy of this order.
Sd/-
JUDGE HMB List No.: 1 Sl No.: 6