Karnataka High Court
Babu Khan @ Shabeer vs State By Arasikere Railway Police on 25 January, 2022
CRL.A.No.1316/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25th DAY OF JANUARY 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1316/2017
BETWEEN:
1. BABU KHAN @ SHABEER
S/O JAHEER
AGED ABOUT 40 YEARS
2. FATHIMA
W/O BABU KHAN @ SHABEER
AGED ABOUT 30 YEARS
BOTH ARE RESIDING AT NO.778
BEHIND KANNADA SCHOOL
PENSION MOHALLA
HASSAN ... APPELLANTS
(BY SRI.SUYOG HERELE E, ADVOCATE APPOINTED AS
AMICUS CURIAE FOR APPELLANT NO.1;
SRI.SUYOG HERELE E, ADVOCATE FOR APPELLANT NO.2)
AND:
STATE BY ARASIKERE RAILWAY POLICE
REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE ... RESPONDENT
(BY SRI.SHANKAR H.S., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
DATED 07.06.2017 PASSED BY THE V ADDITIONAL DISTRICT
CRL.A.No.1316/2017
2
AND SESSIONS JUDGE, HASSAN IN S.C.NO.188/2015 -
CONVICTING THE APPELLANT/ACCUSED NOS.1 AND 2 FOR THE
OFFENCE PUNISHABLE UNDER SECTIONS 394 AND 397 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the order of conviction and sentence passed against them for the offences punishable under Sections 394 and 397 of IPC, accused Nos.1 and 2 in S.C.No.188/2015 on the file of V Additional District and Sessions Court at Hassan have preferred the above appeal.
2. The appellants were prosecuted in S.C.No.188/2015 for the aforesaid offences on the basis of the charge sheet filed by the Arasikere Railway Police in Crime No.37/2014 of their police station. Crime No.37/2014 was registered against unknown persons for the offence punishable under Section 394 of IPC on the basis of the complaint of PW.4 K.M.A Khadar Haji as per Ex.P11.
CRL.A.No.1316/20173
3. For the purpose of the convenience appellants are referred henceforth as accused No.1 and 2 which is their rank before the trial Court.
4. The case of the prosecution in brief is as follows:
(i) PW.4 is the resident of Kasargodu, Kerala district.
On 26.10.2014 he visited Javagal to offer prayer in a Darga. From Javagal he intended to go to Goa. When he was waiting at Javagal bus stand to board the bus to Chikmagalur, the accused enquired about his journey and told that to go to Goa, he could reach Arasikere through Shivmogga-Chamrajanagara train. They travelled with him from Javagal to Banavara in a tempo. They also boarded Shivmogga-Chamarajanagara train. Since there was rush in the train, they persuaded him to board the luggage bogie. During the journey, they demanded his phone. When he declined, the accused closed the door of luggage bogie, tied his legs, assaulted him with blade on his neck, chest, and forearm. They bet him and robbed his Samsung CRL.A.No.1316/2017 4 mobile phone and cash of Rs.2,000/-. When the train stopped in Arasikere station, they alighted and escaped. PW.4 was screaming with the injuries. PWs.5 and 6 the coffee vendors in the railway station noticed him and the accused running away from the train.
(ii) On 27.10.2014 railway police recorded the statement of PW.4 and shifted PW.4 to the hospital. In the hospital PW.10 the Medical Officer examined and treated PW.4 and she issued MLC as per Ex.P19 to Railway police.
(iii) On receipt of MLC intimation, PW.9 again visited the hospital on 28.10.2014 at 7.15 p.m. and recorded the statement of PW.4 as per Ex.P.11. During such visit he seized MOs.2 to 4 blade, railway ticket and other articles belonging to PW.4 under the mahazar Ex.P2. On the basis of Ex.P11 on returning to the police station he registered the FIR as per Ex.P15 against the unknown persons.
(iv) PW.8-police constable of the Arasikere police station apprehended accused Nos.1 and 2 in Arasikere railway station on suspicion and produced them before CRL.A.No.1316/2017 5 PW.9 with his report in Ex.P14. PW.9 interrogated them and recorded their voluntary statement as per Ex.P16 and
17. Their voluntary statement revealed their involvement in Crime No.37/2014.
(v) On the basis of their voluntary statement PW.9 recovered MO.1 blade, MOs.5 and 6 Samsung mobile phone of PW.4 and cash of Rs.1,500/- under the mahazar at Ex.P3 in the police station. Such seizure proceedings were photographed as per Ex.P4 to 7. He handed over the further investigation to PW.11.
(vi) PW.11 the Police Inspector of Arasikere Railway Police Station recorded the statements of witnesses and sent seized articles to the FSL and collected the wound certificate.
(vii) He issued requisition to PW.7 the Executive Magistrate for identification of the accused through the injured, received the Test Identification parade report and filed the charge sheet for the offence punishable under Section 394 of IPC.
CRL.A.No.1316/20176
5. On filing of the charge sheet, learned Principal Civil Judge and JMFC, Arasikere took cognizance of the aforesaid offences and registered the case in C.C.No.159/2015. The learned Magistrate framed the charge against the accused for the offence punishable under Section 394 of IPC and proceeded to hold the trial. During the trial, the Assistant Public Prosecutor filed an application under Section 323 of Cr.P.C claiming that the acts alleged against the accused attract Section 397 of IPC which is triable by the Sessions Court and sought committal of the case to the Sessions Court.
6. Learned Magistrate allowed the said application and committed the case to the Sessions Court. On committal of the case, the trial Court registered the same in S.C. No.188/2015. Initially the trial Court framed the charge against the accused for the offence punishable under Sections 394 read with Section 34 of IPC. Later the trial Court amended the charge and framed the amended charge for the offence punishable under Sections 397 and CRL.A.No.1316/2017 7 394 read with Section 34 of IPC. Since the accused claimed the trial, the trial Court conducted the trial.
7. To substantiate its case the prosecution examined PWs.1 to 11 and got marked Ex.P1 to Ex.P22 and MOs.1 to 8. After their examination under Section 313 of Cr.P.C, the accused did not lead any defence evidence.
8. The trial Court on hearing the parties by the impugned judgment and order convicted accused Nos.1 and 2 for the offences punishable under Sections 397 and 394 of IPC. Further the trial Court sentenced accused Nos.1 & 2 for Rigorous Imprisonment of 7 years and fine of Rs.5,000/- for each of the offence.
9. Submissions of Sri Suyog Herele E, learned Amicus Curiae representing the accused assailing the impugned judgment are as follows:
There is unexplained delay in registering the FIR. As per the prosecution, on commission of the offence the CRL.A.No.1316/2017 8 accused stayed back in Arasikere platform for one day i.e. till they were allegedly arrested. A person committing the offence always tries to flee from the scene of the offence. Therefore the case of apprehending from Railway station as alleged on the next day is unnatural. The alleged seizure of incriminating material from the accused is joint recovery in the police station. PWs 2 and 3 the seizure mahazar witnesses have not supported the seizure proceedings. PW.1 the alleged eyewitness has not supported the prosecution case. PW.5 and 6 are not the eyewitnesses, they had not seen the accused earlier. Therefore their evidence that they saw the accused running away and identification of the accused by them in the Court does not inspire confidence. The evidence of injured witness PW.4 is also not consistent. Test Identification parade proceedings are vitiated since the Test Identification parade was conducted after two months. The investigation was not fair. The charge under Section 397 of IPC is not properly framed, as the CRL.A.No.1316/2017 9 blade is not a deadly weapon. The trial Court has failed to appreciate the evidence in proper manner.
10. In support of his submissions, he relies upon the following judgments:
i) Sheikh Hasib alias Tabarak Vs The State of Bihar1
ii) Jagdish and Others Vs The State2
iii) Rajender Yadav Vs The State (NCT of Delhi)3
iv) Guddu Vs The State4
v) Babubhai Vs State of Gujarat & Others5
vi) Ram Ratan Vs State of Madhya Pradesh6
vii) Rekha Murarka Vs State of West Bengal and Another7
viii) K.V Shiva Raddy Vs State of Karnataka and Others8
11. Justifying the impugned order of conviction and sentence, the learned HCGP made the following submissions:
PW.4 is the injured eyewitness. He had the occasion to see the accused for quite a long time, he has identified 1 (1972) 4 SCC 733 2 1985 Crl LJ 1621 3 2013 SCC online Del 3120 4 2019 SCC Online Del 7855 5 (2010) 12 SCC 254 6 2021 SCC Online SC 1279 7 (2020) 2 SCC 474 8 ILR 2005 KAR 4780 CRL.A.No.1316/2017 10 the accused. Under such circumstances even if the Test Identification parade evidence fails that is not fatal to the prosecution case. The evidence of PW.4 was corroborated by the evidence of PWs.5 and 6. The presence of PWs.5 and 6 at the scene of offence is probable and natural. Their evidence further corroborated by the evidence of Medical officer. Soon after the incident, the victim was taken to the hospital with the history of the assault. The evidence of PWs.4 to 6 was further corroborated by the medical evidence and evidence of police witness. By such evidence charges against the accused stood proved beyond reasonable doubt. To invoke Section 397 of IPC the use of deadly weapon is a pre-condition. If there is attempt to cause death or grievous hurt to the victim during the course of robbery by using deadly weapon, then also section 397 of IPC is attracted. The evidence of PW.4 and 10, the wound certificate at Ex.P8 shows that injuries were inflicted on the neck, a vital part and several injuries on chest, abdomen etc. That itself goes to show that there CRL.A.No.1316/2017 11 was attempt to cause grievous hurt or death. Therefore the conviction under Section 397 IPC sustains.
12. In support of his submission he relied on the judgment of Hon'ble Supreme Court in State of Himachal Pradesh Vs Premchand9.
13. On considering the rival submissions and examining the material on record, the question that arise for consideration of this Court is "Whether the impugned order of conviction and sentence is sustainable in law?".
14. To bring home the guilt of the accused, the prosecution has to prove that:
(i) Accused robbed and assaulted PW.4 in Shivamogga-Chamarajanagar train;
(ii) He was found in Arasikere Railway station with such injuries.
(iii) The accused were authors of such injuries. 9 (2002) 10 SCC 518 CRL.A.No.1316/2017 12
15. Sections 397 and 394 of IPC for which the accused are convicted and sentenced read as follows:
"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.-
394. Voluntarily causing hurt in committing robbery.-- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
16. In view of above provisions, the prosecution has to prove that the accused committed the robbery and during the course of such robbery, they voluntarily caused CRL.A.No.1316/2017 13 hurt to PW.4. It was argued that to attract Section 397 IPC, the weapon used shall be deadly weapon and blade is not the deadly weapon, therefore conviction of Section 397 IPC is unsustainable.
17. Section 397 IPC consists of three parts:
i) First part is employing a deadly weapon in committing the robbery and dacoity.
ii) Second part is causing grievous hurt to any person during the course of robbery.
iii) Third part is attempting to cause death or grievous hurt to victim.
18. There need not be all the three aspects together as the word 'or' is used between all the three aspects. If any one of the acts amongst the three is done that attracts Section 397 of IPC.
19. No doubt it is true that in this case as per medical evidence, PW.4 has not suffered any grievous hurt. Of course as per the judgment of the Delhi High CRL.A.No.1316/2017 14 Court in Guddu v. State10 relied by learned counsel for the appellant, the blade is not a deadly weapon. Even if it is accepted, first two components of Section 397 of IPC are attracted. The question is whether there was attempt on the part of the accused to cause death or grievous hurt to PW.4 during the course of the crime, for which entire evidence on record has to be appreciated.
20. So for as the scene of offence PW.4 in his complaint/statement Ex.P11 as well as in his deposition has consistently stated that when he was traveling from Banavara to Arasikere in Shivmogga-Chamarajanagar train the accused on befriending him, assaulted him with blade, caused injuries, robbed his mobile phone and cash. He further deposed that after assaulting him, the accused de- boarded from the train in Arasikere station and escaped. He has stated in the complaint that when he alighted from the train, Railway police shifted him to hospital. The incident has taken place on 27.10.2014 at 10.20 a.m. 10 2019 SCC Online Del 7855 CRL.A.No.1316/2017 15
21. The evidence of PW.10 Medical Officer of Arasikere Government hospital shows that PW.4 was taken to Government hospital on 27.10.2014 at 11.33 a.m. PW.10 stated that she examined PW.4 and issued wound certificate at Ex.P18. She also deposed that on 28.10.2014 at 8 a.m. police visited the hospital and recorded the statement of PW.4 in her presence as per Ex.P11 and she has subscribed her signature as per Ex.P11(b). She also speaks of issuance of MLC intimation as per Ex.P19. Ex.P19 shows that the same was issued on 27.10.2014.
22. The evidence of PW.4 and PW.10 regarding PW.4 suffering the injuries mentioned in Ex.P18 is not disputed. Only an attempt is made to contend that those injuries are accidental injuries which the witnesses have denied. Even the fact of shifting PW.4 from Arasikere Railway police station to hospital is not disputed. Thereby the injuries and the scene of offence are not disputed in the cross-examination of PWs.4 and 10.
CRL.A.No.1316/201716
23. PWs.5 and 6 are the coffee vendors in Arasikere railway platform. They deposed that on 27.10.2014 when they were vending Tea in the Railway station they found the accused deboarding from luggage bogie of Chamarajanagara train and running away and later they found PW.4 screaming with injuries. They also deposed that the people assembled there and then they left the scene of offence. The fact that PWs.5 and 6 were the coffee vendors in railway station was not disputed in their cross-examination. Therefore, their presence at the scene of the offence is probable and natural.
24. As rightly observed by the trial Court, whether the identification of the accused by PWs.4 and 5 is acceptable or not is a different question. However, so far as PW.4's presence in Arasikere Railway station with the injuries as mentioned at Ex.P18 and shifting him from Arasikere Railway station to Government hospital stand proved by the aforesaid evidence.
CRL.A.No.1316/201717
25. The next question is whether those injuries were accidental or homicidal and who were the authors of the injuries? PW.4 is the injured victim. His evidence carries more weight. Nothing is elicited in his cross- examination for false implication of the accused. The accused were strangers to him. He did not have any ill-will against them. In his complaint as well as in his deposition he stated that he was assaulted with blade on his body and hands. In the complaint, he has stated that his legs were tied with a belt. He states that accused cut on his stomach, neck, right hand with a blade, they kicked and hit him, but he has not spoken about the bite injuries.
26. PW.10 in her deposition as well as in the wound certificate has stated that there were bite injuries. Ex.P18 and the deposition of PW.10 revealed the following injuries.
1. Multiple scratch injuries 6 in numbers, each measuring 8 to 10 c.ms, which were present on the anterior surface of the neck.
2. Scratch injuries around 3 in numbers, each measuring around 3 c.m., present over anterior chest wall.
CRL.A.No.1316/201718
3. Hemorrhage inside the right eye
4. Scratch injuries around 10 c.m. which were 2 in numbers were present on anterior abdomen wall.
5. Deep lacerated injury around 6 c.m. x 0.25 c.m.
present over the right hand.
6. Diffused contused injury around 5 c.m. x 6 c.m.
which was reddish in colour with multiple teeth bitten mark over the left forearm.
7. Diffused contused injury around 5 c.m. x 4 c.m.
over which multiple teeth bitten marks present over the right forearm.
27. In the cross-examination of PW.10 those injuries being found on the body of the PW.4 is not at all disputed. It is only suggested that such injuries are possible if a person falls on a sharp edged object like zink sheets. Therefore there is no reason to disbelieve that PW.4 had suffered the aforesaid injuries. If the injuries were accidental one, there was no reason for PW.4 to falsely implicate the accused or to shield the true culprits. Therefore this Court is inclined to accept that the prosecution proved beyond reasonable doubt that PW.4 suffered those injuries when he was traveling in the train CRL.A.No.1316/2017 19 due to assault. This Court is not inclined to accept that the injuries were accidental one.
28. Then the next question is Whether accused were authors of those injuries?. It is contended that the accused were strangers to PW.4 and they were not properly identified during the course of test identification parade, therefore they cannot be implicated in the case. It is no doubt true that the accused were strangers to PW.4. It is also true that the test identification parade is conducted after two months.
29. However, as per the evidence of PW.4 and Ex.P11 the accused befriended him at Javagal town in the guise of guiding him about the route to Goa. He deposed that the accused told him that to go to Goa reach Arasikere by train and from Arasikere he can take up another train to Goa. He has said that from Javagal to Banavara Railway station they together traveled in a tempo and the accused only got ticket for such travel. CRL.A.No.1316/2017 20
30. He says they boarded the train at Banavara Railway station into the luggage bogie, enroute the accused demanded his mobile phone, when he declined to handover the same, both of them assaulted him, tied his legs by belt and then assaulted with blade and robbed him of his mobile phone, cash and then in Arasikere station they alighted the train and escaped.
31. The fact of PW.4 belonging Kasaragodu is not disputed. It is already held that he was found with injuries in the train in Arasikere. The fact of he traveling from Javagal to Arasikere is not disputed in his evidence. Such evidence goes to show that consistently for a long time PW.4 was in the company of the accused. Therefore his identification before the Court cannot be suspected. In the considered opinion of this Court having regard to the aforesaid fact that the Test Identification Parade was not required at all.
32. The Hon'ble Supreme Court in Premchand's case has held that when the victim has the opportunity to CRL.A.No.1316/2017 21 see the accused for considerable length of time, he identifying the accused in the Court for the first time shall not be disbelieved and there need not be any corroboration for such evidence of the victim by test identification parade.
33. In the light of the aforesaid judgment and facts the judgment in Sheikh Hasib alias Tabarak's case relied by the learned counsel for the appellant/accused has no application.
34. Even assuming that PWs.5 and 6 are only the chance witnesses and their identification of the accused is not acceptable, the evidence of PW.4 was sufficient to hold that the accused were the culprits. Their identification by PW.4 before the Court was sufficient. So also the evidence of PW.4 is credible to hold that the accused were the assailants.
CRL.A.No.1316/201722
35. The next question is "Whether the conviction for the offence punishable under Section 397 and 394 of IPC is sustainable"?.
36. To prove the aforesaid charges the prosecution apart from relying on the evidence of PW.4 relied on the circumstance of recovery of MOs.1, 5 to 6 under the mahazar Ex.P3. According to the prosecution, the accused when arrested, had possessed those material objects and produced them before the Investigating Officer and they were seized under the mahazar Ex.P3 in the presence of PWs.2 and 3 the mahazar witness. PWs.2 and 3 had not supported the proceedings under Ex.P3.
37. The alleged recovery was a joint recovery in the police station. In Ex.P3 it is not specified from which of the accused which of the items were seized. Therefore, there was much force in the contention of defence counsel that the circumstance of recovery was not proved beyond reasonable doubt. Even in the absence of circumstance of recovery there was no reason to disbelieve the evidence of CRL.A.No.1316/2017 23 PW.4 that he was assaulted in the train with sharp edge object.
38. It is no doubt true that in the complaint and the deposition of PW.1 the weapon of offence is shown as blade whereas history given before Doctor and recorded in the wound certificate Ex.P18 is that he was assaulted with knife. There is no consistency with regard to the weapon of offence. Even if that benefit of doubt is given to the accused, they will be entitled only for acquittal for the offence under Section 397 of IPC. However, there is no reason to interfere with the order of conviction and sentence against the appellant for the offence under Section 394 IPC.
39. Therefore appeal is partly allowed. The impugned order of conviction and sentence passed against the appellant/accused for the offence punishable under Section 394 of IPC is hereby confirmed. The impugned order of conviction and sentence passed against the appellant/accused for the offence punishable CRL.A.No.1316/2017 24 under Section 397 of IPC is hereby set aside. They are acquitted for the offence punishable under Section 397 of IPC.
Learned counsel for the appellant seeks indulgence in the order of sentence at least for appellant No.2. It is submitted that she is a woman having two children. Therefore lenience may be shown for her.
The appellants taking the victim into confidence have committed grave offence against him betraying his trust. The offence under Section 394 of IPC is punishable with imprisonment for life or rigorous imprisonment for a term which may extend to 10 years. Therefore for appellant No.1, no indulgence can be shown.
So far as appellant No.2 she is a woman having two children. The trial Court has sentenced her to undergo imprisonment for 7 years and she has already undergone the substantial portion of the sentence. CRL.A.No.1316/2017 25
Taking into consideration the aforesaid aspects, the order of sentence, so far as accused No.2 is modified as follows:
Accused No.2 is sentenced to the period of detention already undergone by her and the sentence of fine and default sentence passed against her are maintained.
This Court places on record its appreciation for the able assistance rendered by Sri Suyog Herele E, learned Amicus Curiae.
Registry shall pay the remuneration of Rs.15,000/- to the learned Amicus Curiae.
Sd/-
JUDGE Akc