IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE gTI DAY OF DECEMBER, 2011 PRESENT THE HON’BLE MRJUSTICE MOHAN SHANTANAGOUDAR AND THE HON’BLE MR.JUSTICE RAVI MALIMATH CRIMINAL APPEAL NO.2246/2005 BETWEEN: State of Karnataka Through P.1., Kalaghatlgi ... Appellant (BY Srl.V.M.BANAKAR, ASPP) AND: 1. Ramappa @ Ramanna Sb Chandappa Lamani, Aged about 59 years, Res: DuddurTanda, now Residing at Kondikoppa Tanda, Shirahatti Taluk. 2. Manappa Meetappa Lamani Aged about 58 years, Res: Adralli Tanda, Shirahatti Taluk. 3. Channappa Channappa Lamanfl Age: Major, ,. A3 is deleted since Res: Hirumullolli Tanda, J case is split up Savanur Taluk. 4. Hanumantappa Channappa Lamani Aged about 23 years, c.cc: Coofle, Res: Gudagur Tanda, Ranebennur Taluk. S. Ramesh Ganlyappa Laman i, AS is deleted since o - — - ,- -‘ I LJe JIL tJJ Sflirahatti Taluka. 6. Parameshi Ramappa Lamani, Aged about 24 years, 0cc: Coolie, Res: Doddur Tanda, Now residing at Mullolli Plot, Savanur Taluk, Dist: Dharwad. Respondents (BY 5riJBasavaraj, Arnicus Curiae f RI R, This Criminal Appeal is filed ui’s 378(1) & (3) Cr. PC. seeking to grant leave to file an appeal aainst the judgment dt,23,12,04 passed by the FrC-1i, Dharwad, in S,C,No,17/04 — acquitting the respondents/accused for the offence p/u/s 395 of 1PC and etc. This Criminal Appeal coming on for orders, this day, Mohan Shantanagoudar J, delivered the following: U r\r’’,A CM[ J,JLjJI9L’J Learned Additional State Public Prosecutor fairly submits that he does not rind any case against accused Nos4 and 6. Hence, the State does not press appeal agilnst them. In view of the above, the appeal filed by 3 the State is heard In respect of accused Nos. 1 and 2 who are respondents 1 and 2 respectively. 2. The record reveals that six accused were charged for the offence punishable under SectIon 395 of IPC. The trial against accused Nos.3 and 5 was spilt up inasmuch as, they absconded and are not traced. The trIal went on agaInst accused Nos.1, 2, 4 and 6. The Thai Court, on hearing, acquitted accused Nos.4 and 6 fully. However, the Trial Court convicted accused Nos.1 and 2 for the offence punishable under Section 394 read with Section 34 of IPC Instead of Section 395 of IPC. 3. This appeal is fIled by the State under Section 378 (1) & (3) of Cr.P.C. questioning the judgment and order of acquittal acquitting the accused Nos.1 to 4 for the offence punishable under Section 395 of IPC. As aforementioned now the appeal Is restricted only In respect of accused Nos. 1 and 2 Inasmuch as, the appeal Is not pressed as against accused Nos.4 and 6. 4 4. The case of the prosecution in brief is that when the complainant Basavantappa Bheemappa Aralikatti along with his wife Girijavva and son Nagappa slept on a katta in front of his house on 02.02.2003 at about 10.30 p.m., he heard the hue and cry of his son Manjunath and his wife Kamalawa from inside the house. It Is relevant to note that his another son Manjunath and his wife Kamalavva slept inside the house during the relevant point of time by locking the door from inside. After hearing the hue and cry, Basavantappa (complainant), his wife Glrijavva and his son Nagappa opened the door of the house with great difficulty and entered the house where they saw three thieves. The back door of the house was open. It was also noticed that Manjunath had sustained Injuries on the face due to assault made by those thieves by knife. The wounds were bleeding. He and his son tried to catch hold those thieves and were able to nab one of them only and the remaining two escaped. After hearing the noise, the neighbours viz., Naganagouda Path and Nannaesab Huded came to the spot and assisted the 5 complainant and his son for apprehending one of the accused. 5. During the scuffle, the wife of the complainant had also sustained injury. When they tried to apprehend other accused, one of the accused assaulted the complainant with an axe on his shoulder and consequently, he too sustained injuries. The thieves had stolen away of Rs.5,800/- cash which was kept in the cupboard and had snatched the gold and silver ornaments. The complaint was lodged by PW-1 Basavantappa as per Ex.P1 before the Police Station Kundogol, which came to be registered in Crime No.15/2003 for the offence punishable under SectIon 394 of IPC. The police after investigation laid the charge sheet. 6. In order to prove the case of the prosecution, 15 witnesses were examined and got marked Ex.P1 to Ex.P23 and 13 materIal objects. On consideration of the material on record, the trial proceeded as only against accused Nos.1, 2, 4 and 6. On hearing, the Trial Court convicted accused Nos.1 and 2 for the offence punishable 6 under Section 394 read with Section 34 of IPC. Accused Nos.4 and 6 were acquitted of all other charges. 7. The complaint is lodged by PW-1 as per Ex.P1 on 03.02.2003. The same reveals that the complainant and his wife Girijawa and son by name Nagappa had slept outside the house on a katta at about 10.30 p.m. on 02.02.2003. The complainant, his wife and his son Nagappa heard crying sound from Inside the house. Immediately, the complainant and two other woke up and opened the door with great difficulty. When they entered Inside the house, they saw three thieves. The back door of the house was opened. Manjunath had suffered bleeding injuries inasmuch as, he was assaulted with knife. When the compiainant and the family members tried to apprehend the thieves, one of the thieves assaulted the complainant with an axe on the right shoulder. On hearing the hue and cry, neighbours Naganagouda Patii and Nannesab Huded and others came to the spot and apprehended one of the accused (accused No.1). The complaint further reveals that the cash of Rs.5,800/- kept 7 in the almirah of the complainant was stolen along with gold and silver ornaments worth Rs.2,450/-. Thus in the said incident, the complainant and his family members had lost about Rs.8,250/- in total. According to the complainant, the accused were 30 to 35 years of old. 8. The complaint is lodged at about 9.00 a.m. on 03.02.2003, which means no delay Is caused by the complainant in lodging the complaint. 9. The version found In Ex.P1-complaint is fully supported by the version of PW-1-compiainant. He has reiterated the averments made in the compiaint in his deposition before the Court. He has meticuiously narrated the incident In question before the Court also. His oral evidence reveais that he heard the sound at 2.30 a.m. on 03.02.2003 and immediateiy rushed Inside the house by brake opening the door aiong with the family members. He found three thieves inside the house. Out of them, he was able to apprehend one accused (accused No.1). By the time, the complainant, his wife and his son entered the house, his another son Manjunath had already sustained ‘is) 8 injuries and had lost one tooth. He had noticed that the back door of the house was opened. When they tried to apprehend the accused, the complainant has also sustained certain injuries. However, accused No.1 was apprehended on the spot by the family members of the complainant along with the help of neighbours including PW-4. Inspite of such a lengthy cross-examination, his evidence is not shaken. 10. Same Is the version of PW-2. He Is the injured son of PW-1. He has also deposed about the Incident In question and as to how he was assaulted by the thieves. According to him, he saw three persons who had entered the house and out of them, two accused assaulted him and the third one snatched the gold ornament from the neck of his wife. From the evidence of PWs.1 and 2, It is clear that only three persons had entered the house. The version found in the complaint also specifically mentions the complicity of three persons. Out of the three persons, accused No.1 was apprehended on the spot. 9 11. SInce only three persons were Involved In the IncIdent, the offence under SectIon 395 of IPC cannot be made out. However, the offence will definitely fail under Section 394 of IPC. The Trial Court on proper evaluation of material on record clearly concluded that the accused Nos.1, 2 and 3 entered the house of the complainant and committed the offence under SectIon 394 of IPC. The voluntary statements of accused Nos.1 and 2 recorded during the course of investigatIon wIth regard to recovery of öold and silver ornaments reveals that accused No.3 also accompanied accused Nos.1 and 2. In view of the consistent and cogent evidence on record, the Trial Court Is justified In convicting the accused Nos.1 and 2 for the offence punIshable under SectIon 394 of IPC. As aforementIoned the case agaInst accused No.3 was splIt up. 12. The State has filed this appeal with a prayer that the accused should be punished for the offence punIshable under Section 395 of IPC. The appeal Is mlsconceived Inasmuch as, the trial went on against four n I0 accused. Out of them, two are acquitted. Learned SPP has fairly submitted before the Court that no case Is found against, accused Nos.4 and 6. In view of the same, the Trial Court is justified in convicting only accused Nos.1 and 2 for the offence punishable under SectIon 394 read with Section 34 of IPC. The said two accused cannot be convicted under Section 395 of IPC. Therefore, no interference is called for. The appeal fails. Accordingly, it is dismissed. We place on record the valuable assistance rendered by SriJ.Basavaraj, learned Amicus Curiae. In recognition of his assistance, he shall be paid a sum of Rs.7,000/- as honorarium. - A Sd/e JUDGE Sdft JUDGE Prs*