Bangalore District Court
Jalahalli Ps vs A1 Sanjay Babu Alias Pan Parag on 4 November, 2024
KABC010316192018
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH.No.68)
PRESENT
SMT.RASHMI.M.
BA.LL.B., LL.M.
LXVII Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 4th day of November 2024.
S.C.No.1849/2018
COMPLAINANT: State by
Jalahalli Police,
Bengaluru.
(By learned Public Prosecutor)
.Vs.
ACCUSED : 1. Sanjay Babu @ Pan Parag,
S/o.Late Krishnappa,
Aged about 21 years,
R/at.No.37, 4th Cross,
Behind Srirampura Police
Station,
Muraga Temple Road,
Srirampura,
Bengaluru. (Judicial custody)
2. Shivashaneshwara,
S/o.Late Saravan,
Aged about 20 years,
R/at.No.52, 13th Cross,
2nd Main, Opp. to Vinayaka
Bar, Malleshwaram,
Bengaluru.
2 S.C.No.1849/2018
(By Sri.B.N.R., Advocate for
Accused Nos.1 and 2)
3. Manikanta @ Bottlemani,
S/o.Shakthimelu. .... (Split-up)
4. Karthik @ Kera,
S/o.Kaduruvelu. ..... (Split-up)
Date of commission of offence : 17.07.2018
Date of report of offence : 24.07.2018
Date of arrest of the Accused No.1 - 26.07.2018
accused : Accused No.2 - 26.07.2018
Date of release of the Accused No.1 is in judicial
accused : custody.
Accused No.2 was enlarged on
bail on 10.08.2018
Period of imprisonment Accused No.1 still in judicial
undergone by the accused : custody.
Accused No.2 - 16 days.
Name of the complainant : Sri.Ankaiah.D.
Date of commencement 15.10.2020.
of trial :
Date of closing of evidence : 04.08.2022.
Charges framed : Under Sections 397 and
506(B) of IPC.
Opinion of the court : The Accused No.1 is convicted
for the offence punishable
under Section 392 and 506(B)
of IPC.
The Accused No.2 is convicted
for the offence punishable
under Section 397 and 506(B)
of IPC.
3 S.C.No.1849/2018
JUDGMENT
The Police Inspector of Jalahalli Police Station, Bengaluru has filed the charge sheet against the accused Nos.1 to 4 for the alleged offences punishable under Sections 397 and 506(B) of IPC.
2. The learned Magistrate after complying with the provisions under Section 207 Cr.P.C., has committed the case against the accused Nos.1 to 4 under Section 209 of Cr.P.C., to the Court of Hon'ble Prl. City Civil & Sessions Judge, Bengaluru, as the offence under Section 397 of IPC is exclusively triable by the Court of Sessions. After committal of the case, the case is made over to this court for trial in accordance with law.
3. The brief facts of the prosecution case are as under:
It is the case of the prosecution that on 17.07.2018 at about 6-00 p.m., near Railway Track within the limits of Jalahalli Police Station, Bengaluru while C.W.1 was walking on MES Road Railway Flyover Bridge after he crossed the railway track, the accused Nos.1 to 4 suddenly came and wrongfully restrained CW1 and accused No.1 showed the knife and pointed it on the stomach of C.W.1 and demanded him to give the 4 S.C.No.1849/2018 valuables. When C.W.1 tried to escape, the accused No.2 having club in his hand assaulted C.W.1 on the right leg knee.The accused persons robbed from CW1 his neck chain, Samsung mobile phone and threatened him with dire consequences of life. Thereby, the accused are alleged to have committed the offences punishable under Sections 397 and 506(B) of IPC.
4. The accused No.1 who is in judicial custody was produced before the court and after securing the presence of the accused Nos.2 to 4, my learned predecessor has framed the charge against them for the offences punishable under Sections 397 and 506(B) of IPC. The accused Nos.1 to 4 have pleaded not guilty and claimed to be tried. The case was posted for prosecution evidence. In order to prove its case, the prosecution has examined 11 witnesses as P.Ws.1 to 11 and got marked 19 documents from Exs.P.1 to 19 and M.Os.1 to 4.
5. Meanwhile, the accused No.4 has remained absent before the court. Hence the case against the accused No.4 was split-up and ordered to register split-up charge sheet against him. After closure of the evidence of prosecution witnesses, the statements of accused Nos.1 to 3 under Section 313 of Cr.P.C., were recorded. The accused Nos.1 to 3 have denied the incriminating 5 S.C.No.1849/2018 evidence stated against them. The accused Nos.1 to 3 have chosen not to adduce any evidence on his behalf.
6. In the meantime, the accused No.3 remained absent before the court. Hence the case against him was split-up and ordered to register split-up charge sheet against him. The case is proceeded against the accused Nos.1 and 2.
7. Heard the arguments.
8. The points raised for determination are as under :
1. Whether the prosecution proves beyond reasonable doubt that on 17.07.2018 at about 6-00 p.m., near Railway Track within the limits of Jalahalli Police Station, Bengaluru where C.W.1 was walking on MES Road Railway Flyover Bridge after he crossed the railway track, the accused Nos.1 and 2 along with the split-up accused Nos.3 and 4 suddenly came there and wrongfully restrained him, the accused No.1 showed the knife and pointed it to his stomach and demanded to give the valuables and when C.W.1 tried to escape, the accused No.2 having club in his hand assaulted him on the right leg knee and they robbed from CW1 his neck chain, Samsung mobile phone and thereby committed 6 S.C.No.1849/2018 the offence punishable under Section 397 of IPC ?
2. Whether the prosecution further proves beyond reasonable doubt that on the alleged date, time and place, the accused Nos.1 and 2 along with split-up accused Nos.3 and 4 have posed life threat to C.W.1 and thereby committed an offence punishable under Section 506(B) of IPC ?
3. What Order ?
9. My findings on the above points are as under :
POINT No.1 - Affirmative with respect to the Accused No.2 under Section 397 of IPC and the accused No.1 with respect to Section 392 of IPC POINT No.2 - Affirmative, POINT No.3 - As per final order, for the following :
REASONS
10. POINT Nos.1 & 2 : Since both these points are interconnected to each other, they have been taken up together for discussion in order to avoid the repetition of facts and evidence.
11. The case of the prosecution is that on 17.07.2018 at about 6-00 p.m., near Railway Track within the limits 7 S.C.No.1849/2018 of Jalahalli Police Station, Bengaluru while C.W.1 was walking on MES Road Railway Flyover Bridge when crossed the railway track, the accused Nos.1 to 4 suddenly came there and wrongfully restrained him and the accused No.1 showed the knife and pointed it on the stomach of C.W.1 and demanded him to give the valuables. When C.W.1 tried to escape, the accused No.2 having club in his hand assaulted C.W.1 on the right leg knee. They robbed CW1 of his neck chain, Samsung mobile phone and threatened him with dire consequences of life. Thereby, the accused are alleged to have committed the offences punishable under Sections 397 and 506(B) of IPC.
12. P.W.1-Dr.Uma has deposed about the medical examination conducted on C.W.1-Sri.Ankaiah on 17.07.2018. She has stated about the injuries and the fracture sustained by C.W.1. In this regard she has given the wound certificate as per Ex. P.1. In her cross examination by the learned advocate for accused, it is elicited that the injured had not given the names of the persons who had assaulted him. She denied the suggestion that the injured had not taken any treatment in her hospital.
13. P.W.2-Sri.Ramesh, P.S.I., has stated that on 24.07.2018 he was deputed by C.W.13-P.S.I., to record the statement of the injured/C.W.1 who was admitted in 8 S.C.No.1849/2018 K.C.General Hospital, Malleshwaram, Bengaluru. Accordingly he has recorded the statement of the injured/C.W.1-Sri.Ankaiah in the presence of the Doctor. He was informed by the injured that two persons had tightly held him and another person assaulted him with a club while other person extorted his mobile phone at the point of knife. He handed over the complaint (Ex.P.2) to C.W.13. In his cross examination by the learned advocate for accused, it is elicited that he does not remember the name of the doctor who was present at that time. He denied the suggestion that he had not visited the hospital to record the statement of the injured and he is deposing falsely before the court.
14. P.W.3-Sri.Ankaiah, the injured has stated that on 17.07.2018 Tuesday at 6-00 p.m., he was walking towards his house on MES Road, near railway flyover, at that time four people came and stopped him. Out of them two persons held him, another took out a knife from his pocket and pointed it towards him and threatened him to handover the valuables and also threatened to kill him if he does not do so. One person assaulted him on his right knee with the club. They snatched his chain and mobile phone and threatened him that he should not give a police complaint. At that time one man and a woman came towards him and gave him some water and sent him in an autorickshaw. He told about the incident to his brother, who took him 9 S.C.No.1849/2018 to the private hospital and then he was shifted to K.C.General Hospital, Malleshwaram, Bengaluru. Due to the assault by the club, he sustained fracture on his knee chip. He has given the complaint and his statement to the police on 24.07.2018. Thereafter on 27.07.2018 the police visited him in the hospital and showed him the knife, club, chain and mobile phone and he had identified the same. The police had shown him the four accused persons to him by name Sanjay Babu, Manikanta, Karthik and Shiva. He has identified the mobile, knife and club which are marked as M.Os.1 to 3. He has given his further statement to the police regarding the identification of the accused and material objects. He has identified the accused Nos.2 to 4, who were present before the court. He has also identified the accused No.1 who appeared before the court through V.C. He stated that he has forgotten the name of the accused who pointed the knife at him and threatened to kill him, but he can identify him. He has identified the photograph of the chain (Ex.P.6). He stated that the accused No.2 had assaulted him with a wooden club on his right knee. In his cross examination by the learned advocate for accused, it is elicited that at 6-00 p.m., people were there on the said as they were going home from the work when the alleged incident took place. He has admitted that there were lot of people at the place of incident. It is elicited that four people were sitting on a stone. He stated that he 10 S.C.No.1849/2018 first took treatment at S.K.Hospital and as he was not able to pay money for surgery, he went to K.C.General Hospital on 18.07.2018. It is elicited that he has not told in S.K.Hospital about the assault on him. He has stated that a old lady made him get into the auto. It is elicited that 24.07.2018 when the police came to the hospital, his brother informed the police about the incident. It is elicited that his brother had not intimated him about the information given by him to the police. Even though he has stated that on 24.07.2018 the police wrote down the complaint, he has stated that the police did not read the contents of the complaint. On 27.07.2018 the police brought 3-4 people to the hospital and at that time he was alone. In the hospital he was not shown the chain, mobile phone and other articles seized from the accused. 8-10 weeks after his discharge he went to get the chain and mobile. He has not shown the place of incident to the police. He denied the suggestion that he seeing the accused for the first time before the court. He has stated that he had seen the accused at the spot. He denied the suggestion that the chain (M.O.1) did not belong to him. He stated that he has not received the mobile phone. It is elicited that on 27.07.2018 the police did not receive his statement. He denied the suggestion that he deposing falsely about the incident.
15. P.W.4-Smt.Lakshmi has stated that about two 11 S.C.No.1849/2018 years back she was coming in an autorickshaw, she saw a person fallen down and some assailants who had knife and club in their hands and had snatched his mobile phone and chain. Due to the assault he had fallen down. She made him to drink water and shifted him . She stated that she seen the accused at the spot. She does not know the names of the accused. She has identified the M.Os.1 to 3. She has identified the accused No.4. She has given her statement to the police. As the witness has not supported the prosecution case, on the request of the learned Public Prosecutor she has been treated as hostile. In her cross examination by the learned Public Prosecutor, she admitted that the police informed her the names of the accused Nos.1 to 4 as Sanjay, Shivashaneshwara, Manikanta and Karthik. The witness has not appeared before the court for cross examination by the advocate for the accused.
16. P.W.5-Sri.Balachannaiah is the brother of the complainant. He has stated that on 25.07.2018 between 11-00 a.m. and 12-00 p.m., the spot mahazar (Ex.P.3) was conducted at the place of incident and he has signed the mahazar as per Ex.P.3(a). He has further stated that on 17.07.2018 his brother C.W.1 came to the house between 7-00 to 7-30 p.m., and informed him that somebody had assaulted him with a club resulting which he had sustained injuries on his right knee. He 12 S.C.No.1849/2018 took him first to a private hospital, on scanning and X- ray, they came to know that he had sustained fracture and has needed operation. C.W.1 was then shifted to K.C.General Hospital, Malleshwaram, Bengaluru. In his cross examination by the learned advocate for accused, it is elicited that the police have not given him any notice calling him to be a mahazar witness. He has not given any statement to the police. He has denied the suggestion that he signed the mahazar in the Police Station.
17. P.W.6-Sri.Madhu has stated that on 25.07.2018 between 6-00 to 7-00 p.m., in Jalahalli Police Station, Bengaluru, the police conducted the mahazar as per Ex.P.4. At that time four accused were present and he came to know that their names were Sanjay, Shiva, Karthik. The police seized one chain, one knife and one mobile phone. He stated that the accused No.1 produced the chain and knife before the police. The mobile phone was seized from the accused No.2. He has identified the M.Os.1 and 2. He has signed Ex.P.4 as per Ex.P.4(a). Another mahazar was drawn at railway flyover, where the police seized the club (M.O.3) and chopper (M.O.4). At the time of seizure, the accused Nos.1 to 4 were present along with the police and the spot was shown by the accused. The police drew the mahazar (Ex.P.5) between 11-30 a.m., to 12-00 p.m. He has signed it as per Ex.P.5(a). As the witness has not 13 S.C.No.1849/2018 fully supported the prosecution case, hence on the request of the learned Public Prosecutor he has been treated as partly hostile. In his cross examination by the learned Public Prosecutor, he admitted that on 25.07.2018 the accused Nos.1 to 4 were with the police and the accused No.1 had produced the knife, the accused No.2 had produced the chain, the accused No.3-Manikanta had produced the mobile phone. He admitted that on 27.07.2018 the police conducted mahazar (Ex.P.5) and seized a club and chopper (M.Os.3 and 4) in the bush near the flyover. The witness has not subjected himself for cross examination by the advocate for the accused.
18. P.W.7-Sri.Pavan Kumar is also a witness to the mahazars (Exs.P.4 and P.5). He has stated that he has signed the same as per Ex.P.4(b) and Ex.P.5(b). He has identified M.Os.1 to 4. He has identified his signatures on the chits affixed on the M.Os., as per M.O.1(b) to 4(b). He stated that he can identify the chain in the photo (Ex.P.6). He has signed Ex.P.4 in the Police Station when the police recovered the knife from the accused No.1, gold chain from the accused No.2, mobile phone from accused No.3. On 27.07.2018 C.W.13 called him over the phone to come near railway track, Jalahalli, where the accused Nos.1 to 4 were present and C.W.5 was also present. The police seized the club 14 S.C.No.1849/2018 and conducted the mahazar as per Ex.P.5. In his cross examination by the learned advocate for accused, he denied the suggestion that C.W.1 is his relative. He denied the suggestion that the accused did not show any articles to the police. He has denied the suggestion that he is deposing falsely before the court.
19. P.W.8-Sri.Swaminathan, Police Inspector has deposed about receiving the wound certificate (Ex.P.1) and filing of the charge sheet.
20. P.W.9-Srinivasa Murthy has deposed about apprehending the accused Nos.1 to 4 on 25.07.2018 along with C.Ws.9 to 11 near railway bridge, MES Road, Jalahalli, Bengaluru and he has produced them before C.W.13. He has given the report as per Ex.P.7. He has identified the accused. In the cross examination of P.W.8 and P.W.9 by the learned advocate for accused, P.Ws.8 and 9 have denied the suggestion that they have not conducted any investigation and that they are deposing falsely before the court.
21. P.W.10-Sri.Lepakshamurthy, P.S.I., has deposed about receiving the complaint and filing of the FIR (Ex.P.8). He has conducted the spot mahazar (Ex.P.3). The accused Nos.1 to 4 were produced before him with report (Ex.P.7) by C.Ws.8 to 11. He has recorded the statements of the witnesses and the voluntary 15 S.C.No.1849/2018 statements of the accused persons. On the basis of voluntary statement of accused No.1, he has seized M.O.1-knife, gold chain, Samsung mobile (M.O.2) by conducting mahazar (Ex.P.4). He has identified the photo of the chain as per Ex.P.6. On 27.07.2018 after he obtained the police custody of the accused no2, the accused led him near MES Road, railway bridge where he seized a club and chopper in the bush by conducting mahazar (Ex.P.6). He then produced the accused before the court. He handed over the file to C.W.14 for further investigation. In his cross examination by the learned advocate for the accused, he has denied the suggestion that no article was seized from the place as shown by the accused. He has denied the suggestion that the articles were not seized from the custody of the accused by conducting the mahazar as per Ex.P.4. He has denied the suggestion that he has created the documents and property for the purpose of this case.
22. P.W.11-Dr.Kalavathi has stated that the police came to the hospital on 24.07.2018 and in her presence they took the statement of Ankaiah as per Ex.P.2. She signed the same as per Ex.P.2(d). The patient was in a fit condition to give the statement. On 27.07.2018 the police did not bring the accused or the articles to the hospital to show it to the injured for identification. As the witness has not supported the prosecution case, on the request of the learned Public Prosecutor she has 16 S.C.No.1849/2018 been treated as hostile. In her cross examination by the learned Public Prosecutor she has stated that she does not remember that on 27.07.2018 the police had brought four accused persons with mobile and gold chain to the hospital and the injured had identified them and in this regard she has given the statement as per Ex.P.19.
In her cross examination by the learned advocate for accused, she denied the suggestion that she has not given treatment to the injured and as such she cannot state as to whether he was in a fit condition to give the statement. She denied the suggestion that she deposing falsely before the court.
23. On considering the oral and documentary evidence placed before the court, it is first necessary to note that C.W.2 who has been examined as P.W.4 and C.W.5 who has been examined as P.W.6 have not subjected themselves for cross examination by the advocate for accused .Hence my learned Predecessor passed the order on 21.11.2023 stating that their evidence stands striked out.
24. It is the specific contention of the prosecution that the accused persons have committed the offences punishable under Sections 397 and 506(B) of IPC. The burden lies upon the prosecution to establish that the accused Nos.1and 2 along with the split-up accused 17 S.C.No.1849/2018 No.3 and 4 committed the offence under Section 397 of IPC and Section 506(B) of IPC. Here itself it is necessary to refer to Section 397 of IPC, which reads as under :
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
25. From the oral and documentary evidence placed before the court, it is pertinent to note that the injured who is cited as C.W.1 in the charge sheet has been examined as P.W.3. In his examination in chief he has identified the accused No.4. He has identified the accused No.1 who appeared through video conference from judicial custody. He has also identified the accused Nos.2 to 4 (It is necessary to note that on 10.03.2021 at the time of recording the evidence of P.W.3/C.W.1, the accused Nos.3 and 4 were appearing before the court). The injured has specifically stated that the accused No.2 assaulted him with wooden club on his right knee. He has identified the wooden club (M.O.3). As discussed supra, the injured has stated that out of the four accused, two accused held him, one showed him a knife and threatened to handover the valuables and 18 S.C.No.1849/2018 threatened to kill him and he was assaulted with club on his right knee. They snatched his chain, mobile phone and robbed him of the same and threatened him not to give any police complaint. From the said evidence of the injured, it is observed that he has identified the accused No.2 being the offender who assaulted him with a wooden club on his right knee. His evidence does not throw light on as to which accused showed him the knife. In his cross examination by the learned advocate for accused, nothing has been suggested or elicited to the effect that the accused No.2 did not assault him or hit him with the wooden club. Also advocate for accused has failed to elicit any thing that would raise doubt regarding the credibility of the evidence of the injured CW1/PW3 .
26. Here itself it is pertinent to note that that only on the ground that there are no eye witnesses to the incident. Hence it cannot be a sole ground to ignore and brush away the evidence of the injured, who has identified the accused No.2 as the one who has assaulted him with wooden club and that the other accused persons robbed him, of his chain and belongings , all the accused posed life threat to him, even though he has stated that one accused showed him the knife but his evidence is silent as to which of the accused had knife.
19 S.C.No.1849/201827. The defense taken by the learned advocate for accused is that the injured has not specifically stated as to which accused snatched the gold chain and mobile phone cannot be accepted. As in natural course when a person is hit with a wooden club causing grievous injuries and when he is in pain, one cannot expect him to pin point or identify as to which accused robbed his chain and mobile phone. The mahazar witness (P.W.7) and the Investigating Officer (P.W.10) have given evidence that club was seized from the spot shown by accused No.2. Also from their evidence, it is clear that the chain and mobile were seized from the custody of the accused Nos.1 to 4. The evidence of the Investigating Officer cannot looked with suspicion solely on the ground that he is a police. There is no lacunae nor contradictions brought out in the evidence of Investigating Officer to disbelieve his evidence. Also P.W.7 who is also a mahazar witness has supported the prosecution case. As such when wooden club is seized at the instance of accused No.2, further as C.W.1 has specifically stated that the accused No.2 assaulted him with a wooden club on his knee causing grievous injury, from which it can be safely said that prosecution has placed convincing evidence before the court to prove that the accused No.2 had hit CW1 with a wooden club causing grievous injury.
20 S.C.No.1849/201828. Now the question is as to whether wooden club can treated as a deadly weapon under Section 397 of IPC. A deadly weapon is not explicitly defined in IPC, but is described as any instrument used to cause death or grievous injury like: firearm, sharp edged weapons, swords knives blunt instruments (clubs, hammers). As such it can be safely said that wooden club from which grievous injury was caused to CW1 is deadly weapon as per section 397 of IPC.
29. Here itself it would be appropriate to take note of the decision in the case of Shri Phool Kumar vs.Delhi Administration (1975) 1 SCC 797 wherein it is observed as hereunder:
"5. Section 392 of the Penal Code provides:
Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. The sentence of imprisonment to be awarded under Section 392 cannot be less than seven years if at the time of committing robbery the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous 21 S.C.No.1849/2018 hurt to any person: vide Section
397. A difficulty arose in several High Courts as to the meaning of the word "uses" in Section 397. The term 'offender' in that section, as rightly held by several High Courts, is confined to the offender who uses any deadly weapon. The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had not used any deadly weapon. In that view of the matter use of the gun by one of the culprits whether he was accused Ram Kumar or somebody else, (surely one was there who had fired three shots) could not be and has not been the basis of sentencing the appellant with the aid of Section 397. So far as he is concerned, he is said to be armed with a knife which is also a deadly weapon, to be more precise from the evidence of PW16 "Phool Kumar had a knife in his hand". He was therefore carrying a deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act, such as, brandishing of the knife or causing of grievous hurt with it was not necessary to bring the offender within the ambit of Section 397 of the Penal Code."22 S.C.No.1849/2018
30. The term offender in Section of 397 of IPC as rightly held by several Hon'ble High Courts is confined to the offender who uses any deadly weapon. In the present case the Accused No.2 had hit the injured/C.W.1 on his right knee with the wooden club and as per the wound certificate (Ex.P.1) the injured had sustained patella fracture (right side) which is opined as to grievous in nature by the Doctor. As such it can be safely said that the accused No.2 even though has hit the injured with wooden club, it was a deadly weapon which caused grievous injuries to C.W.1/injured.
31. Further the use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 of IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. When it is proved that only one has used the deadly weapon it only envisages the individual liability and not any constructive liability. In this case Section 397 of IPC is attracted only against the Accused No.2 who has assaulted the injured with wooden club causing grievous injuries for which the other accused are not vicariously liable under Section 397 of IPC for the acts of the co-accused. The term offender under Section 397 of IPC is confined only to the offender who has used the deadly weapon and in the present case it is the Accused No.2. Further in the 23 S.C.No.1849/2018 instant case, charge is not framed against other accused under Section 34 of IPC nor the allegations of Section 397 of IPC is proved against the other accused persons.
32. Further it is alleged that that one other accused had shown knife, as discussed supra it is not proved as to which of the accused had a knife. But from the evidence on record it can be safely said that all the accused had committed robbery of chain and mobile phone from the possession of the injured. Also as discussed supra, the chain and mobile belonging to C.W.1 is seized from the custody of the Accused Nos.1 to 4.
33. Here itself it is pertinent to note that Sections 397 and 392 of the Indian Penal Code (IPC) relate to robbery and dacoity. While they are related offenses, they have distinct legal definitions and penalties.
Further Section 397 IPC deals with "robbery with attempt to cause death or grievous hurt," which is a more severe offense. If a person is charged under Section 397, it means they are accused of committing robbery with the intention to cause death or grievous hurt. While Section 392 IPC, on the other hand, deals with "robbery" in general.
24 S.C.No.1849/201834. Now, the question before the court is :
Can a person charged under Section 397 be convicted under Section 392?
35. Section 392 of IPC reads thus :
"Punishment for robbery :-
Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years"
36. In this regard it is observed that even if charge is framed against all accused under 397 of IPC, But as the prosecution has failed to prove the more severe offence under Section 397 (robbery with attempt to cause death or grievous hurt) against the Accused No.1, but has proved the lesser offense under Section 392 (robbery), the court may convict the Accused No.1 under Section
392. This is because Section 392 is a lesser offence compared to Section 397, and the ingredients of Section 392 are included in Section 397.
37. However, the converse is not true. If a person is charged under Section 392, they cannot be convicted under Section 397, as the more severe offense requires 25 S.C.No.1849/2018 additional elements to be proven. Hence , in view of the evidence placed on record it can be safely said that prosecution has proved that the Accused No.1 has committed offence punishable under Section 392 of IPC. Further the prosecution has proved that the Accused No.2 has committed offence punishable under Section 397 of IPC.
38. Further it is the specific contention of the prosecution that the accused have committed the offence punishable under Section 506(B) of IPC. In this regard it is necessary to refer to Section 506 of IPC of which 506(B) is a integral part which reads as under:
"506. Punishment for criminal intimidation.--Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;If threat be to cause death or grievous hurt, etc.--
And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."26 S.C.No.1849/2018
39. As such it is clear that if threat is to cause death or grievous hurt or to cause an offence punishable with death or (imprisonment for life), or with imprisonment for a term which may extend to seven years, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both
40. In the present case, from the evidence placed before the court it can be safely said that the accused have given life threat which falls under the second part of Section 506 of IPC i.e., 506(B) of IPC. As such it can be safely said that the Accused Nos.1 and 2 along with split up Accused Nos.3 and 4 had given life threat to the injured C.W.1 so as to prevent him lodging police complaint. Hence, in view of the evidence placed on record it can be safely said that prosecution has proved that the Accused No.1 and Accused No.2 have committed offence punishable under Section 506(B) of IPC.
41. In view of the discussion made supra, this court is of the considered view that prosecution has proved beyond all reasonable doubt that the Accused No.1 has committed offence punishable under Section 392 of IPC. Also the prosecution has proved beyond all reasonable doubt that the Accused No.2 has committed offence punishable under Section 397 of 27 S.C.No.1849/2018 IPC. Further the prosecution has proved beyond all reasonable doubt that the Accused No.1 and Accused No. 2 have committed offence punishable under Section 506(B) of IPC.
42. POINT No.3: In view of my findings on Points Nos.1 and 2 as above, I proceed to pass the following :
ORDER Acting under Section 235(2) of Cr.P.C., the Accused No.2 is convicted for the offence punishable under Section 397 and 506(B) of IPC.
Acting under Section 235(2) of Cr.P.C., the Accused No.1 is convicted for the offence punishable under Section 392 and 506(B) of IPC.
Acting under Section 235(1) of Cr.P.C., the Accused No.1 is acquitted for the offence punishable under Section 397 of IPC.
To hear regarding sentence. (Dictated to the Stenographer Grade-II directly on Computer, corrected, signed and then pronounced by me in the open court on this the 4 th day of November 2024) (RASHMI.M) LXVII Addl.City Civil & Sessions Judge, Bengaluru.28 S.C.No.1849/2018
ORDER REGARDING SENTENCE Heard the Accused No.1, Accused No.2, the learned counsel for the accused and the learned Public Prosecutor on the question of sentence to be imposed on the Accused No.1 and Accused No.2.
The Accused No.1 who is in judicial custody submitted that he is in judicial custody since 2018. He is from a poor family having elderly parents and he is the sole earning member of his family. Hence requested the court to release him.
The Accused No.2 present before the court submitted that he has not committed any offence and he has been falsely implicated in this case. He is from a poor family, having aged mother. He is only earning member in his family. Hence prayed to release him.
The learned advocate for the Accused No.1 and Accused No.2 submitted that the Accused No.1 and Accused No.2 were aged below 25 years when the alleged offence is said to taken place. They are innocent of the offences alleged against them. The accused No.1 and accused No.2 have no other criminal antecedents. They are first time offenders. Hence submitted that minimum sentence be imposed. Also submitted that the Accused No.1 is in judicial custody since 2018 and the period of imprisonment undergone by him be set off. Also the accused being aged below 29 S.C.No.1849/2018 25 years are entitled for benefit under the provisions of P.O.Act.
On the other hand the learned Public Prosecutor submitted that the accused Nos.1 and 2 have committed the offences punishable under Sections 397, 392, 506(B) of IPC which are heinous and grievous in nature. The accused are habitual offenders. Hence submitted that maximum imprisonment and fine should be imposed on accused Nos.1 and 2 for the offences punishable under Sections 397, 392 and 506(B) of IPC.
In view of the submission made by both the sides, it is pertinent to note that the offences alleged against the accused Nos.1 and 2 are punishable under Sections 397, 392 and 506(B) of IPC, which are heinous in nature. Section 6(1) of Probation of Offenders Act 1958 restricts probation for offences under Section 397 of IPC. Even otherwise as per the submission of the learned Public Prosecutor, the accused Nos.1 and 2 are habitual offenders. Hence this court is of the considered view that they are not entitled for the benefit under the P.O.Act.
Further the Accused No.1 is entitled for set off for the imprisonment already undergone by him since the date of his arrest in the year 2018. Also the imprisonment undergone by the accused No.2 if any shall be set off.
Further in view of the facts and circumstances of this 30 S.C.No.1849/2018 case, I proceed to pass the following sentence to the Accused Nos.1 and Accused No.2.
ORDER The Accused No.2 is sentenced to undergo rigorous imprisonment for a period of SEVEN YEARS and shall pay fine of Rs.3,000/-, in default he shall further undergo simple imprisonment for ONE MONTH for the offence punishable under Section 397 of IPC.
The Accused No.1 is sentenced to undergo rigorous imprisonment for a period of SIX YEARS and shall pay fine of Rs.3,000/-, in default he shall further undergo simple imprisonment for ONE MONTH for the offence punishable under Section 392 of IPC.
The Accused No.1 and Accused No.2 are sentenced to undergo simple imprisonment for a period of THREE YEARS and shall pay fine of Rs.3,000/- each, in default they shall further undergo simple imprisonment for a period of ONE MONTH, for the offence punishable under Section 506(B) of IPC.
31 S.C.No.1849/2018Both the sentences shall run concurrently.
Acting under Section 428 of Cr.P.C., the accused No.1 and Accused No.2 are entitled for set off for the period of detention undergone by them in judicial custody against the sentence of imprisonment.
The bail bond and surety bond of the accused No.2 stands cancelled.
Free copy of the judgment shall be given to the Accused No.1 and Accused No.2.
M.Os.1 to 4 shall be retained till disposal of the case registered against the split-up Accused No.3 and Accused No.4.
(RASHMI.M) LXVII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for prosecution:
P.W.1 Dr.Uma
P.W.2 Ramesh
P.W.3 Ankaiah
P.W.4 Lakshmi
P.W.5 Balachannaiah
P.W.6 Madhu
P.W.7 Pavan Kumar
32 S.C.No.1849/2018
P.W.8 Swaminath
P.W.9 Srinivasamurthy
P.W.10 Lepakshamurthy
P.W.11 Dr.Kalavathi
List of documents exhibited for prosecution:
Ex.P.1 Wound Certificate
Ex.P.1(a) Signature of P.W.1
Ex.P.1(b) Signature of P.W.1
Ex.P.1(c) Signature of P.W.8
Ex.P.2 Complaint
Ex.P.2(a) Signature of P.W.3
Ex.P.2(b) Signature of P.W.2
Ex.P.2(c) Signature of P.W.10
Ex.P.2(d) Signature of P.W.11
Ex.P.3 Mahazar
Ex.P.3(a) Signature of P.W.5
Ex.P.3(b) Signature of P.W.10
Ex.P.4 Mahazar
Ex.P.4(a) Signature of P.W.6
Ex.P.4(b) Signature of P.W.7
Ex.P.4(c) Signature of P.W.10
Exs.P.4(d) to (g) Signatures of the accused Nos.1 to 4
Ex.P.5 Mahazar
Ex.P.5(a) Signature of P.W.10
Ex.P.5(b) Signature of P.W.7
Ex.P.5(c) Signature of P.W.10
Exs.P.5(d) to (g) Signatures of the accused Nos.1 to 4
Ex.P.6 Photo of the chain
Ex.P.7 Report
Ex.P.7(a) Signature of P.W.9
Ex.P.7(b) Signature of P.W.10
Ex.P.8 F.I.R.
Ex.P.8(a) Signature of P.W.10
Ex.P.9 Voluntary Statement of accused
No.1
Ex.P.9(a) Relevant portion in Ex.P.9
Ex.P.9(b) Signature of accused No.1
Ex.P.9(c) Signature of P.W.10
33 S.C.No.1849/2018
Ex.P.10 Voluntary Statement of accused
No.2
Ex.P.10(a) Signature of accused No.2
Ex.P.10(b) Signature of P.W.10
Ex.P.11 Voluntary Statement of accused
No.3
Ex.P.11(a) Signature of accused No.
Ex.P.11(b) Signature of P.W.10
Ex.P.12 Voluntary Statement of accused
No.4
Ex.P.12(a) Signature of accused No.4
Ex.P.12(b) Signature of P.W.10
Exs.P.13 to 16 Voluntary Statements of accused
Nos.1 to 4
Exs.P.13(a) to Signatures of accused Nos.1 to 4
16(a)
Exs.P.13(b) to Signatures of P.W.10
16(b)
Ex.P.17 Property Form
Ex.P.17(a) Signature of P.W.10
Ex.P.18 Property Form
Ex.P.18(a) Signature of P.W.10
Ex.P.19 Statement of P.W.11
Ex.P.19(a) Signature of P.W.11
List of Material Objects produced and got marked for production:
M.O.1 Mobile Phone
M.O.1(a) Signature of P.W.6
M.O.1(b) Signature of P.W.7
M.O.2 Knife
M.O.2(a) Signature of P.W.6
M.O.2(b) Signature of P.W.7
M.O.3 Club
M.O.3(a) Signature of P.W.6
M.O.3(b) Signature of P.W.7
M.O.4 Chopper
M.O.4(a) Signature of P.W.6
M.O.4(b) Signature of P.W.7
34 S.C.No.1849/2018
List of witnesses examined and documents exhibited for accused:
-Nil-
(RASHMI.M) LXVII Addl.City Civil & Sessions Judge, Bengaluru.
RASHMI M Digitally signed by RASHMI M Date: 2024.11.04 17:45:20 +0530 35 S.C.No.1849/2018