—t —1• IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE I F’ DAY OF AUGUST, 2011 BEFORE THE HON’BLE MR.JUSTICE B.V.PJNTO CRIMINAL APPEAL NO.2664/2009 Between: Huligeppa @ Huligesh Sb.Shivappa Sherigi, Age 20 years, Caste Nayak, R/o.Bannigida Camp, Gangavathi Town. Appellant jl3v Shri.Ganapathi M.Bhat, Amictis Curiaci AND: The Suite of T’Carnataka. Through Gangavathi Town Police Station, Represented by SPP. (By Sri.Anand K.Navalgimath. HC’( P) This criminal appeal is filed by corn let, appeilant ‘accused through Superintendent. Central Prison. Bcllarv, against thc judgment and order dared 15.01.2009 passed by the Fast Track Courti. Koppul iii S.C.No.3 1/2008 convicting the convict; appellant! accused for the offence p/u/s 397 of IPC and sentenced to undergo RI for seven years and to pay fine of Rs.500/- in default to tinder Simple Imprisonment for three months. Further the accused is sentenced to -2- under go S.I. for three months for the offence p/u/s 504 of IPC and further accused is sentenced to under 5.1. for six months for offence p/ti; s SOn of IPC. This criminal appeal coming on for hciring this day, the Court delivered the Mlowing: JUDGMENT This appeal is filed dmllenging the judgment dated 15.01.2009 passed by the Fast Track Court-I, Koppal in S.C.No.2008 convicting the appellant for the offence under Section 397 TPC and sentencing him to undergo R.I. for 7 years and to pay a fine of Rs.500/-, in dcl.tt,!t to undergo Si. for three months for t1e our;” punishable under Section 3Q7 (PC and lurtim” sentencing him to undergo Si. for 3 months for the offence punishable wider Section 504 IPC and further sentencing him to undergo 5.1. for 6 months for the offence punishable under Section 506 IPC. 2. It is the case of the prosecution that, on 12. 1 1 .2007, at about 1 .00 am within the jurisdiction of Ciangavathi Police Station at B saveshvarn Housmg Colony near Shive Talkie. tl;t’ appellant cc:’nirnitted 61 robber of Rs. ,t U and i i Ii om thc c r p ii t b assaultinp him c n isis Lec ‘i ‘1 in c pt (.1St hisdeathbir U’ nihiii F c is alleged to hate cont 1 tU i nffenc j in under Section 397 1PC. It . , ilicgcd iI t I abc,e said 1)16CC, 1 mc it I ( t ‘insaction, the accused ab 1st 1 h comp1izu 1 filth 3 language and also intimicl iLed him b dirt it - t , Inc life. ther4n te is ill’ ft d ha rr c oiIent ‘mdci Seetioi 4 ci ‘ .‘ Ii’C. 3 The prosecution ii examined in all 8 utnesst P8 and produced M.( )s I vc. u5c’d as ci.e ) t(ti mm ,ugned judçmtm.t. U t pit ased to nut 1 ti-i IIY)( here nbefore ientu ian. flied this appel. rose I S cot markL I I 1C de ii 1 Iloc’ St si )i S Lt I l1 stntt’ (1 i cted ‘gc ‘Si- (1(ji’. and I 1l F’. P, Ii,ht I S r 4. Heard Shri Ganapati M. Bhat, learned Amicus Curiae for the accused — appellant and Shri Anatiici Kumar Navalgimath. learned High Court (iovernnwnt Pleader for the State. 5. The learned counsel for the appellant submits that apart from the evidence of complainant PAV. 1 there is no other material to support the rose of the prosecution. The evidence of P.W. I is doubtful since. even prior to the date of the incident he has seen the a’ .aised. It is stated in the compliiint that thcn \err notes uf Rs. 100/- and twu nncs of Rs. 50 n th pocket of the complainant. Whereas the prosecution has produced one 500/- rupees note and other amount in other denominations makina in all a sum ol Rs 1 .450;. The accused was arrested on 02:30 p.m. on thc saw’. day. Hence, there could not have been a change ol denominations of the notes. Hence. he submits that the entire case is artificial in nature and that the accused has been wrongly convicted I;’: che learned Sessions Judge. I-fe further submits that the prosecution has noi conducted any test Identification parade to identify 1w accused as the one who commit Led the robbery. Hence. he submits that the entire evidence of the prosecution witnesses is unreliable and therefore, he submits that the appeal may be allowed and the accused may be acquitted. 6. The learned High Court Government Pleader on the other hand submits that the order of ronviction passed is based on the evidence of the witnesses and the same does not call for interference in this appeal. Hence, he submits that the appeal may be dismissed. 7. The prosecution in this case commence? with the filing of a complaint b’ one Thimmanna S;. Nagappa on 12.11.2007 before the Gangavathi Poller Station. In the Complaint, it is stated that on 12.11.2007 at about 1:00 p.m., the complainant was walking towards his house situated at Basavesh ara Housing Colony. When he was near Shia Taikies. -6- suddenly, some persons came and by opening knife held the same on his stomach with his left hand and asked for money. When he saw at that person he was Huligeppa (24 Huligeshi of Bannigida Camp and therefore he asked him as why he requires money. At that time the accused assaulted him on his left temporal region and also assaulted on the stomach three to four times. Thereafter he snatched the money, which was in the shirt pocket along with his blue colored diary which has also been snatched by him. The pocket contained fifteen notes of Rs.lOO/-, two notes of Rs.50/- denomination and four notes of Rs. 10/- denomination, in all a sum of Rs. 1.640/-. The accused thereafter abused and threatened him and told that, if he will inform the police he will cause his murder. The accused had further stated that he came out of the jail recently and going to jail is routine to him. When the complainant raised cry. the accused ran away. Thereafter. he came to the Police Station and lodged a complaint. The Police on receipt of 4- -7- the said complaint at 02:30 a.rn. on that day registered a case in Crime No.1 43/2007 and comnwnced thc investigation. After arresting the accused on the same day, the police have filed the charge sheet on completion of investigation. 8. P.W. 1 -Timmanna S/ct Nagappa reiterated the version found in the complaint and has further stated that the accused had snatched the cash and diary from his pocket and thereafter assaulted him. He nas stated that the watchman of one Prabbakar. went near the scene of occurrence and that time accused ran a’av. However, it is elicited in the cross-examination that he has not stated about the arrival of the watchman of one Prabhakar and that he is deposing falsely. 0. PW2-Sharanappa is the watchman of Prabhakar. He has stated that when he came out of the house at about 1:30 p.m. on the date of incident the accused was running in froni. of the house of Prabhakar. He went and asked the complainant, the -8- complainant informed him that 11w accused assaulted and snatched a sum of Rs. I ,640/• by showing knife. This P.W.2 has turned hostile to the case of the prosecution. 10. P.W.3 Sharanbasappa S/ o.Mahade appa is the Junior Engineer, who has prepared the sketch of scene of occurrence. 11. P.W.4-Yousuffsab S/o.Ajij Sab is the ASI. He was recorded the statement of the complainant and registered a case in Crime No.143/2007. ihereafter handed over the investigation to the Inspector. PW5••Ajij Sab S/o.Budsab is the Police. He has transmitted the FIR to Court. 12. PW6-Yallappa S/o.Chiclanandappa is the witness for recovery of cash of Rs. 1,450/-, the diary and also the knife from the possession of accused. In the cross-examination, it is elicited that i he cash of C) Rs. 1,450/- - MOl comprises of one five hundred rupee note and other notes of other denominations. 13. PW7-Shrikant S/o.Bheemappa Katimani is the Inspector. He has conducied the investigation in this case and arrested the accused and recovered the money and after investigation he filed the charge sheet. 14. PW8-Dr.Ramkrishna S/o.Hanumantappa is the Doctor, who has issued the certificate, that he has examined PW1 at about 3.45 a.m. on 12.11.2007 rind has foutid two simple injuries on the person of PW I 15. It is from the evidence of these witnesses, that the learned Sessions Judge has found the accused guilty of the offence under Section 397 of IPC. 16. On a careful consideration of these materials on record. it is seen that the et of the accused 45 narrated by PWI does not attract the offence under Section 397 of IPC, since, the accused has not caused any grievous injuries to PW 1. Hence. the appellant a deserves to be acquitted of the offence under Seci ion 397 of IPC. 17. However, from the evidence of PW8 — Doctor and the evidence of PW 1 an offence under Section 394 of IPC is made out and accordingly, the appellant is convicted for the offence under Section 394 of IPC. 18. So far as sentence is concerned. it is SCCfl that the prosecution has not stated that thc appellant is iti olved in an other cases and the amount robed has been recovered. Hence. I am of the opinion that the sentence of three ‘ears R.l. would meet the ends of justice. 19. In the result, the appeal is allowed in part. ‘The order of conviction for the offence Im(Icr Secti.n 397 of IPC is hereby set aside and in its place the appellant is convicted for the offence tinder Section 394 of IPC. The appellant is sentenced to undergo RI. 11w three years for the offence punishable under Section a 1 41 TPC anti to ja’. !iia . R%.!i.’OO . .i( .. eL. t%t t I I su icr ‘.i. mr inn t m’ni.fls. 10. The learned ( ut isc i for the app’ Pa t ‘ that the appellant is in ‘ ustorl mc nt 12.11 JQ’. •t . Ii’ ii is i1renci siiffrred . ‘H • N delta i s titt’ m.w imposed on hun. Hrmn. ;h. •)‘p’llHnt c:,r’ I • Set t hbert forthwith. if not rrcita;red in am.’ f)1:)rl c;Iliec• is direned ti. rr.insniii til’ ..p.InItive 1’’t:oi’ ‘. 1: t)flj(’r to the learned Sessiuns ‘clpe and 11:11 ( ?rtta Pi’’. ,n. BclIar forthwith. .21. The senite rendir’’! by Sr: tn :, .•‘t ‘1 .LIF at. the learned jffl tt ( .r.. l 1)1auC1 ‘1! ;‘itii ..opreriation. (nTi. is ‘(ii’ c ted ‘o i; s R’ 5.000 to the ln,rned “eftiflsel is and • pa oitssiunal fees to the m etr’wc i us curk’i sal- (jab Rsh Vnnht