4 IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 17FF1 DAY OF MARCH 201 i PRESENT THE HON’BLE MR. JUSTICE SUBHASH B, ADI AND THE HON’BLE MR. JUSTICE N. ANANDA CRIMINAL APPEAL Noi777/2005 C / w NAL APPEAL No.928 2005 AND JNAL APPEAL No.982 2005 .A.No.1777 2005 BETWEEN: The State of Karnataka, Tilakwadi Police Station, . . Appellant (By Shri.V. M.Banakar. Additional S. P. P1 AND: 1. Raju Govind Kanabarkar. Age: 33 years, R/o. Tanaji Galli, 1 Cross, Shastri Nagar, Belgaum. ‘S 2. Prashant Prakash Mane. Age: 30 years, Opp. Maruthi Mandir, R/o. Hindadi. Belgaum. .. . Respondents (By Shri.R.B.Deshpande. Advocate for R2 (Absent), Ri abated> This criminal appeal is filed under Section 378(i) and (3) of the Code of Criminal Procedure, by the State Public Prosecutor for the State praying that this Hon’ble Court may be pleased to grant leave to file an appeal against the judgement and order of acquittal dated 30.04.2005 passed by the Fast Track Court — IV, Belgaum, in S.C.No.234/2002 acquitting the respondents accused for the offences punishable under Sections 392, 394 and 397 read with Section 34 of Indian Penal Code, j.No.9j2PQ5 BETWEEN: Prashant, S/o. Prakash Mane. Age: 27 years, 0cc: Barber, R/o. Hindwadi, Belgaum. . . .Appellant (By Shri.Ganapati M. Bhat, Advocate) AND: The State of Karnataka, .. . Respondent (By Shri,V.M.Banakar, Addi. SP.P.) This criminal appeal is filed under Section 374(2> of the Code of Criminal Procedure, by the ppe1lant Accused against the judgment dated 30.04.: 005 passed by the Addi. S.J., Fast Track Court IV, Belgaum, in S.C.No.234/2002 convicting the appellantaccused for the offence punishable under Section 379 read with Section 34 of IPC and sentencing him to undergo R.I. for 2 years and to pay fine of 1,000/ I.D. to undergo S.I. for 6 months, BETWEEN: Raju Govind Kanabarkar, Aged about 30 years, 0cc: Petty Business, R/o. Tanaji Galli, Belgaum. . . .Appellant (By Shri. R. B. Deshpande, Advocate) (Absent) P. ‘.T i-UN The State of Karnataka, . . .Respondent (B’ Shri.V.M.Banakar, Addl. S.P.P.) This criminal appeal is filed under Section 374(2) of the Code of Criminal Procedure, by the Advocate for the Appellant - Accused against the judgment dated 30.04.2005 passed by the Addl. 5.3., Fast Track Court IV, Beigaum, in S.C ,No, 234/ 2002 convicting the appellant—accused for the offence punishable under Section 379 read with Section 34 of IPC and sentencing him to undergo RI. for 2 years and to pay fine of1,000 1 / ID. to undergo SI. for 6 months. These c..riminal appeals coming on for final h.earing this day, ubhsh B d J heil\u ed thc 4 p JUDGMENT Criminal Appeal No.1777/2005 is by the State against acquittal of accused for offences punishable under Sections 392, 394 and 397 read with Section 34 of the Indian Penal Code. 2. Criminal Appeal No.928/2005 is by the accused No.2 against judgment of conviction for an offence punishable under Section 379 read with Section 34 of the Indian Penal Code. 3. Criminal Appeal No.982/2005 is by the accused No.1 against judgment of conviction for an offence punishable under Section 379 read with Section 34 of the Indian Penal Code. 4. Since all these appeals arise out of the judgment in Sessions Case No.234/2002, dated 30.04.2005, on the file of learned Additional District and Sessions Judge, Fast Track Court -IV, Belgaum. They were heard together. 5 5. Accused No.1 — Raju ()ovind Kanabarkar, now deceased, accused No.2 — Prashant Prakash Mane, were tried for offences 392, 394 and 397 r/w Section 34 of the Indian Penal Code. 6. PW.2 - Ajit Gopalkrishna Saraf is the victim. He is having a petrol bunk, near third railway gate, Tilakwadi, Belgaum. On 26.05.2001, at about 09:00 p.m., he closed the petrol bunk and was returning with the cash collected for the day in a cash bag to the tune of Rs.2,54,780/-. He left the petrol bunk in Indica Car. His brother, PW.3-Ashok Gopalkrishna Saraf had already left the petrol bunk. After reaching the house, in order to open the garage shutters he got down from the car. At that time, one person taking the cash bag kept on the back seat of the car, the accused No.1 after taking the bag ran from the said place, PW2 chased him, he saw another accused No.2 on the motor bike trying to start the motor bike and accused No.1 who went near the bike was standing nearby the bike. The complainant caught hold of the accused standing near the motor cycle, The accused No.2, took an iron rod and assaulted him, accused No.2 gave 6 7 blows. Accused No.1 lifted the PW.2 and took him to the nearby open ground and assaulted him with an iron rod on his head and face, he lost one tooth. Both the accused assaulted him severely, at that time a car came. Seeing the car, they left assaulting and also left the motor cycle and started running. PW.4 who came in the car and PW.2 chased the accused for some distance however, they were not able to catch the accused. 7. PW.5 - Shamrao Thimmappa Shanbhag, went to the Police Station and informed the incident to PW8. PW.8 received the information at about 09:20 p.m.. he went to the house of PW.2 and sent PW.2 victim to the hospital. PW.2 gave a written complaint as per Ex.P5, PW.8 registered a case and engaged two constables to guard the motor cycle. which was left by the accused. He searched for accused however, he could not succeed in catching them. C 7 8. On 27.05.2001, in the presence of Panchas, he conducted a spot mahazar and also seized motor cycle bearing No.GA02H3477, as per M.O.2. He also seized blood stained shirt and pant of PW.2 marked as per M.Os,3 and 4. He recorded the statements of prosecution wjtnesses viz., C,Ws7, 8, 9, 6, 12, 13 and 14. Further, he came to know that the motor cycle seized as M.O.2 was stolen property in crime No.103/2001 registered in Shahapur Police Station. On 08.06.2001, the owner of the motorcycle got the motor cycle released through Court. On 22.06.2001, the Inspector P.W.6 suspecting Accused Nos. 1 and 2, arrested them and produced them before P.W.8. P.W.8 recorded the voluntary statement of Accused No.1 as per ExP9(a) and that of Accused No.2 as per Ex.P.9(b). He secured the panchas P.W.4 and P.W7. On 23.06.2001, along with panchas he followed the accused. Accused No.2 took the panchas and the P.W.8 to his house and from cupboard he removed Rs58,900/- bundled in a cloth and the same was seized under Ex,P6. The bundle is produced as per MOi3. Cit ‘ 8 A Accused No.1 took them to the first floor of his house in Shahapur and removed green colour (military colour) bag marked as M.O.7 which contained SB! card, driving licence, SBI slips and cash of Rs.44,500/- and he produced M.O.1- iron rod. Same were seized under Ex.P.7. SBI Credit Card M.O.9, Driving Licence-M.O. 10, seven slips of SBI-M.O.8, Music system, stereo and CD player-M.O. 12 and cash of Rs.44,500/--M.O.6 were seized from accused no.1. Thereafter, P.W.8 came to police station and recorded the further statement of complainant and collected the wound certificate from P.W. 1 as per Ex.P. 1 and opinion of the Doctor as per Ex.P.4. On the completion of the investigation, he Med charge sheet. 9. Since one of the offence alleged against the accused being punishable under Section 397 IPC and was triable by the Sessions Court, the case was committed to learned Sessions Judge. Learned Sessions Judge secured the presence of the accused and framed the following charge. y pç& cp pi.cc j • C2 Qc c 2 o± -c p cpc cp& cc cc t- o O C •OO O DD çi 2JW ip UL)O8Lt Dp “-a’ ,n ‘ -—‘ c, -v---’ — p.’— .._ ,___ — — — , a— p pCD DIJ pc , 2 LLt O 22 Z32 O(jcZ3 CQ ‘- —v-. ‘‘‘ 6c OQ ‘2 C — — — p. — — — cD OOOQ p2 6 -ccç.;p’j t6 XQ 2 (! i - —-----“— —-“--- ‘ •• >, (_. c !JC —‘ “-,‘-- —‘‘-‘ —‘ —‘-,‘- (r ?;t ‘Y C— ‘ — C- — ‘- 23cD CjCQQrp OOOL’c’ Q(D$ D ‘ThC- LIflC — ‘ ‘ C- -opj OC Z6 oc Q C 1 3P J$ — ,—‘ — — ,-n ‘---- -‘ — ,- —-- - —-—— OS i)O)St O p ‘JCQD2 ‘J pc eri . [2D C — —- -- - 2OCD CpC 32 iZ2 0 11 _...c-. -, 4. (LUO Z& T1) 3 2 ci - jjd —, ‘ - —. ro z3b cd dr r . m: Ofi Z3. 4o. c c 397 C 34 — ..Oi L Itr’. cci zd Both the accused denied the charges and claimed to be tried, 10. The prosecution in order to prove the charges, examined P.W. I to PW8, marked Ex.P. 1 to Ex,PI 1 and produced M.O1 to M.O13 . Accused got portion of 161 statement of P.W,3 marked as Ex.D2 and got marked Ex.D,1-the purchase receipt of sound system and sketch carbon copy as per ExD3. 11. The Trial Court on appreciation of the entire evidence, found that the prosecution has failed to prove the charge for the offence punishable under Section 392, 394 and 397 r/w Sec. 34 IPC and accordingly acquitted both the accused for the said offence. However, held that prosecution has proved the charge against the accused for the offence punishable under Section 379 r/w Sec. 34 IPC and accordingly convicted and sentenced both the accused with two years Rigorous imprisonment and fine of Rs.l,000/- each, in default, to undergo six months simple imprisonment each. 12, As against the Judgment of conviction, Accused Nos. 1 and 2 have filed separate appeals. State has filed an Appeal against the acquittal of accused for the offence punishable under Section 392. 394 and 397 r/w Sec. 34 IPC. During the pendency of these appeals, Accused No.1 died. The State has filed the report before this Court informing the death of accused No. 1 in an encounter and also produced the postmortem repoit o thc bod’ of cused No 1 in ieu of 13 the same, as per order dated 28.06.2006 passed by this Court in CrLA. No. 1777/2005, appeal filed by the State as against Accused No.1/Respondent NoJ stood abated, Accordingly, Crl.A. No. 982’2005 filed by the Accused No.1 also stands abated. Hence, the State appeal survives only against Accused no.2/ Respondent No.2. Same is heard along with Crl.A, No.928/2005 filed by Accused No.2. Heard Addi. SPP for the State, Though accused no.2 is represented by learned counsel, none appeared. These appeals are of the year 2005 and have been listed in the hearing list in advance, Hence we were constrained to take up the appeals. Accordingly, we were taken through the entire record and considered the matter on merit. 13. The facts which are not in dispute are, P,W.2 and P.W.3 are the brothers, On 26.05.2001, P.W.2 had gone to his petrol bunk and after closing the petrol bunk at about 900 pm. he took the cash collected for the day to the tune of Rs254.780/. He bundled the currency notes and put the 14 seal of the petrol bunk and kept the same in cash bag and kept the same on the back seat of the car and returned home, He parked the car infront of garage (car shed) and got down from the car to open to garage door, While doing so, he turned towards his car and saw a person opening the car door and taking the cash bag. After seeing P.W.2, accused started running along with cash bag. P.W.2 also saw motor cycle (M.O.2) standing at a distance of about 100 ft. and accused no.2 was trying to start the motor cycle. P.W.2 chased the accused no.1 and caught hold, Accused No.2 who was trying to start the motor cycle, took the iron rod and assaulted P.W.2. Thereafter, both of them physically lifted P.W.2 and took him to the open ground and started assaulting him, He suffered injuries. Accused wanted to finish him, However, by that time, P.W.5 came there in a car, Seeing th..e car, accused lef.t P,W,2 and motor cycle there on•••ly and started running. P,W,4 chased the accused for.. some distance but failed to catch the accused, Thereafter, he enquired P,W,2 as to what happened and went to the Police 15 State and informed the incident. P.W.8- Dy.S.P. after getting the information went to the house of P.W.2 and sent PW.2 to the hospital where P.W. 1 examined P.W.2 and treated him. He issued Injury certificate as per Ex.P. 1. On the next day i.e., on 27.05.2001, P.W.8 conducted spot panchanama in the presence of panchase and seized motor cyc1eM.O.2. 14. On 22.06.2001, P.W.6Inspector of Police of D.C.LB., suspecting Accused Nos. 1 and 2, arrested them and produced them before P.W.8 and P,W.8 recorded the voluntary statements of Accused Nos. I and 2 as per Ex.P.9 and Ex.P.10 respectively. Accused No.2 took panchas P.W.4 and P.W. 7 and P.W.8 to his house. From the cupboard at his house, accused no.2 removed 58,900.00-M.O.5 bundled in cloth and same was seized under Ex,P,6, Since the other recoveries were at the instance of Accused No, 1 and since he is dead, case is only considered in so far as Accused No.2. 15. P.W.5 is the natural witness who was just passing by in his car. He has come to the spot immediately after the CD CD CD c) CD DJQ C) Co CD CD DJQ L. C) Co t3 1 3 ) r ) () C) x Co C) C) CD C) C) C) ) QN CD ) CD CD C) cD CD j c CD CD c - C) ) iq — -i CD — — CD Co rf Co CD CD r- CD r CD -‘. — CD ( CD CD. C) rv CD C) Co CD r - r — .. . Co C) CD )CD g CD 9 ) C) r- CD Co C) m CD . r* . CD ,. CD r* Q CD CD Co CD C) Q S CD Co CD C) C) CD CD C) ) () ) CD CO CD CD CD CD Co CTQ CD CD Dj;) rf C) Co CD CD Co C) CD CD C) CD CD Q CD CD — 5, CD — CD b CD CD CD CD C) CD Co CD CD CD CD CD C) CD CD CD CD S CD C) j < CD Co ‘S CO Co r1 CD CD CD C) Co Co r 1) Co r—’ CD “55 r- - (IQ CD —S CD CD Co CD Co rv m Ct CD CD Ct — Ct Co CD CD CD r — C) CD ‘S Ct CO r+ CD CD Co CD CI) Ci) Ct “ Ct CD Ct CD C) CD Co CD CD CO CD 17 petrol pump alleging that they were unemployed. This suggestion also shows that accused were seen by P.W.2. P.W.4 and P.W.7-the panchas who have supported the prosecution case have stated that at the instance of Accused No.2, they followed him to his house. Accused no.2 went inside his house and from bundle of cloth he removed Z58,900/- which were seized as per M.O.5. Though P.W.4 and P.W.7 have been cross-examined in detail, nothing contrary has been elicited. This evidence is supported by the evidence of P.W.8-I.O. who has stated that P.W.6 arrested Accused No. 1 and 2, produced them before him on 22.06.200 1 and he recorded the voluntary statement of both the accused as per Ex.P.9 and P.10 and at the instance of the accused, he went to the house of Accused no.2 along with panchas. There is no reason to disbelieve the evidence of P.W.4, P.W.7 and P.W.8 which supports the case of the prosecution to prove the seizure of Z58,900/- at the instance of Accused No.2. The recovery is made within a span of one month from the date of the offence. It is suggested to P.W.2 18 t that both accused were unemployed. There is no reason for accused no.2 to have such a huge cash of Z58,900/- at his house. Further, it is not the defence of the accused that he acquired the money from any other source and the currency notes have been identified as they were having the seal of the petrol bunk. From the evidence of P.W.4, 7 and 8 and recovered amount of M.O.5-?58,900/- having the seal of petrol bunk, it is clear that the amount was the part of the amount robbed from the car of P.W.2. 17. P.W. 1-Doctor who has examined P.W.2 immediately after the incident,has issued Ex.P. 1-Wound Certificate which shows that P.W.2 has suffered six injuries viz., C.LW over fore head and swelling, upper lip torn inside with bleeding, upper one tooth broken, left middle finger with bleeding, left index finger with bleeding and over right shoulder and upper arm. The Doctor has given opinion-Ex.P.4 that these injuries must have been caused by the use of an iron rod. M.O. 1 was shown to the Doctor. P.W.2 has stated that the accused 1 1 9 and 2 assaulted him with steel rod, From the evidence of P.W. lDoctor and the wound certificate Ex.P. 1 and opinion of the DoctorEx.P.4, it is established that in the commission of the offence, the accused have used the iron rod. 18. The prosecution has established that Accused No. 1 had robbed cash from the car of P.W.2. Accused no.2 was trying to start the motor cycle. When P.W.2 caught hold of Accused no.1, accused no.2 assaulted P.W.2 with iron rod. It shows that accused had used iron rod and assaulted P.W.2 in commission of robbery which act of the accused, in our opinion, amounts to voluntarily causing hurt in committing robbery. Robbery has been defined under Section 390 IPC. A person who voluntarily causes hurt on the victim in commission of robbery is punishable under Sec. 394 IPC. No doubt, the learned Sessions Judge has framed the charge for the offence punishable under Section 392, 394 and 397. In our opinion, the entire evidence proves the guilt of accused No2 for the offence punishable under Section 394 IPC, 20 1• 19. The evidence of P.W.2 complainant, P.W.5 witness to the incident, P.W.4 and P.W.7 panch witnessES to the seizure mahazar of cash, P.W. 1 Doctor who has treated P.W.2 and issued wound certificate Ex.P. 1 and opinion Ex.P.4 showing the nature of injuries and use of the weapon and the evidence of P.W.8-I.O. is credible and reliable and their evidence clearly prove the ingredients of Section 394 of the IPC. 20. The Trial Court has not considered the evidence of these witnesses and the documents in its proper perspective and committed an error in acquitting the accused for the offence punishable under Section 394 of IPC. 21. In the circumstances, Appeal filed by the State is partly a allowed. The judgment of acquittal of the accused for offence punishable under Section 394 IPC is set aside. Accused No.2 is convicted for the offence punishable under Section 394 IPC. The appeal filed by the Accused No.2 in Crl.A. No.928/2005 is dismissed. 21 Crl.A. No.982/2005 filed by Accused No.1 stands abated as he is dead. In modification of the Judgment of the Trial Court, Accused No.2 is convicted for offence punishable under Section 394 of IPC. Learned Addi. SPP submits that Accused No.2 has committed a heinous offence of robbery by causing hurt and such persons are dangerous to the society and hence maximum sentence has to be awarded. Learned counsel for accused no.2 has remained absent. Considering the gravity of the offence and the circumstances of the case and the sentence for the offence punishable under Section 394 of IPC is extendable upto to 10 years, we find it proper to sentence the Accused no.2 with R.I. for 5 years with finç of Rs. 10,000/- and in default to undergo 22 V S.I. for one year. The accused no.2 is entitled for set off if any for the period of detention/sentence already undergone. Sdft JUDGE sal NP/Rsh/mkc