IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2019 BEFORE THE HON'BLE MR. JUSTICE K N PHANEENDRA CRIMINAL APPEAL NO.1337 OF 2010 (C) BETWEEN:
MANJUNATHA @ KOLI MANJA, AGED ABOUT 30 YEARS, S/O PAPANNA, R/O NO.297, 6TH CROSS, INDIRANAGAR, P.K.ROAD, BANGALORE – 560 010.
(NOW IN JUDICIAL CUSTODY) ...APPELLANT (BY KUM. RAKSHA KEERTHANA K,(AMICUS CURIAE)) AND:
THE STATE OF KARNATAKA, BY BASAVESHWARANAGAR POLICE STATION, BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE – 01. …RESPONDENT (BY SRI ROHITH B.J, HCGP) **** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 347(2) CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 4/10.11.10 PASSED BY THE P.O. FTC-II, BANGALORE CITY IN S.C.NO.324/09-CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 397 AND 506 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR SEVEN YEARS – FOR THE OFFENCE P/U/S 397 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO S.I. FOR TWO YEARS-FOR THE OFFENCE P/U/S 506 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant aggrieved by the judgment of conviction and sentence passed in S.C. No.324/2009 has preferred this appeal. The trial Court has convicted the appellant for the offence under Section 397 and 506 of Indian Penal Code and sentenced him to undergo simple imprisonment for seven years for the offence under Section 397 and two years for the offence under Section 506 of the Indian Penal Code.
2. The brief facts of the case on hand is that the complainant by name Vikas of Manjunathanagar, Bengaluru, on 6.9.2008 at about 4.30 p.m. was near Ganesha Pendal in front of their house along with his friends CWs.1, 3 to 6. The accused went there and took out a knife which was kept there for the purpose of cutting flowers and threatened the complainant with dire consequences of killing him and asked him to give his mobile phone and the complainant stated that he has no mobile phone with him. At that time the accused checked the pocket of the complainant and found the mobile phone in his pocket, on the ground that the complainant has told falsehood to him he assaulted the complainant with the knife and threatened all of them with dire consequences of killing them if they informed the police and lodged any complaint against him. On the above said allegations initially the police have registered a case in Crime No.298/2008 for the offence under Section 307 and 506 of Indian Penal Code and investigated the matter. After the investigation the police found the offence are proved against the petitioner – accused, they laid a charge sheet from the above said offence. The accused was actually arrested in connection with this case on 19.09.2008 and since the date of his arrest he was in custody throughout during the pendency of the trial. However, he was released on bail by this Court while suspending the sentence vide order dated 07.01.2011. Therefore, from the date of his arrest the accused was in jail upto 07.01.2011, for more than 2½ years he was in jail.
3. The trial Court after securing the presence of the accused registered a case in S.C. No.324/2009 initially framed charges against the accused for the offence under Section 307 and 506 of Indian Penal Code. However, after the evidence it altered the charges for the offence under Section 397 and 506 of Indian Penal Code.
4. The prosecution examined as many as 9 witnesses, PWs.1 to 9 and got marked documents at EXs.P1 to P6 and marked MO.1 – knife on behalf of the prosecution. The accused was also examined under Section 313 Cr.P.C. However, the accused though called upon to enter into defence evidence he did not choose for the same. After hearing both the sides the trial Court came to the conclusion that the prosecution has proved the case against the accused for the offence under Section 397 and 506 and sentenced accordingly as stated supra.
5. The Amicus Curiae Kum. Raksha Keerthana K who is appointed by the Court has strenuously contended before the Court that there is an unexplained long delay in lodging the complaint. The incident happened on 6.9.2008, but the complaint was lodged on 19.09.2008. Therefore, the prosecution story itself is not believable unless it is corroborated by material witnesses. She further contends that there is a previous ill will between the accused and PW.1 with reference to collection of some amount for Ganesha festival. Therefore, it cannot be ruled out that a false case might have been foisted by the complainant against the accused. She further contended before the Court that no dacoity or robbery has been committed by the accused. As mobiles have not been taken away by the accused the offence under Section 397 is not made out. Therefore, looking to the above said facts and circumstances, she submits that it is a case for acquittal but the trial Court wrongly appreciating the oral and documentary evidence on record convicted and sentenced the accused, which judgment of conviction and sentence is liable to be set aside.
6. Contrary to the above submission the learned High Court Government Pleader Sri Rohith B J submits before the Court that though there is some delay in lodging the complaint the delay has been explained. Due to the fear on the accused, the complainant has not lodged the complaint in time. Nevertheless the evidence of the complainant is fully supported by the statement of his mother and friend with regard to delay and also their evidence corroborates the evidence of PW.1 with regard to happening of the incident. There is no reason for false implication of the accused into the crime because there is not even a suggestion made that accused was known to PW.1 earlier and because of some previous ill will a false case has been foisted. Therefore, he submits that there is no room for interference by this Court with regard to the judgment of the trial Court.
7. Having heard the arguments, I have reevaluated the materials on record. On careful perusal of the evidence on record PW.1 is the injured eye witness; PW.2 is the eye witness to the incident and PWs.3 and 4 are the panch witnesses for recovery of the knife at the instance of the accused under EX.P3; PW.5 Smt. Mangala is the mother of PW.1; PW.6 Mallikarjunaiah is the doctor who treated the injured; PW.7 is the police constable who apprehended the accused, PWs.8 and 9 are the Investigating Officers.
8. The star witnesses are PWs.1 and 2. PW.1 has categorically narrated the incident which happened on 6.9.2009 at about 4.30 p.m. He has stated that the accused suddenly came there who was unknown to him and taken the knife which was there in the Ganesha pendal kept for the purpose of cutting the flowers and he threatened the complainant and other witnesses in order to rob the mobile and money. Even though the accused found mobile in the pocket of PW.1 he did not take away the same, on the other hand it is alleged that he assaulted on the neck of the complainant in order to kill him. This particular portion has been fully corroborated by the evidence of PW.2, but there is a delay in lodging the complaint. The complainant and PW.2 and as well as the mother of PW.1 have stated that the accused has threatened them not to lodge any complaint. Therefore, the complainant kept quite, but the father of the complainant who was working as a bus driver when he came to the house and know the said factum of the incident disclosed to his father by the complainant and thereafter on the advise of the father he lodged a complaint. This particular portion of the evidence has not been seriously controverted during the course of cross examination. On the other hand in the cross examination it is elicited that at the earliest point of time he himself gone to the hospital, taken treatment and he told before the doctor that he has suffered with injury due to some scratch by some iron ore which has been admitted by the complainant, but he also explains that the said statement was given because of the threat given by the accused.
9. Looking to the above said facts and circumstances, even without referring to the evidence of other witnesses, the doctor who has given the treatment has stated that the complainant has suffered simple injuries. Therefore, the above said factual aspects discloses that the accused came to the particular spot abruptly without any premeditation and he has not armed at that particular point of time. Only after coming to the spot he took out a knife which was there already in the Ganesha Pendal and tried to extract the mobile phone from PW.1, but he was not successful.
Therefore, there is no robbery or any ingredients of Section 397 is made out. The threat given by the accused has been spoken to by all the witnesses – PWs.1, 2 and mother of PW.1. Therefore in my opinion, looking to the above said facts and circumstances the incident being fully supported by the injured eye witness, there is no reason to discard his evidence. Therefore, at the most it can be said that the accused has voluntarily caused simple injuries to the complainant in order to attract Section 324. There need not be any intention on the part of the accused because the provision itself says, whoever causes simple hurt voluntarily, in such an eventuality the offence under Section 324 is attracted as the giving of threat by the accused is also spoken to, Section 506 is also attracted. In the above facts and circumstances, the conviction and sentence passed by the trial Court so far as Section 397 is concerned, is devoid of merits and the same is liable to be modified and the accused is liable to be convicted for the offence under Section 324 of the Indian Penal Code.
10. Though there is no charge under Section 324, the said offence being lesser offence compared to Section 397 for which the accused was convicted the appellate Court can reduce the conviction for the offence under Section 324.
11. For the above said reasons, the judgment of conviction and sentence passed by the trial Court deserves to be modified.
12. Before parting with this judgment, I record a word of appreciation so far as the Amicus Curiae Kum. Raksha Keerthana K for having rendered able assistance to the Court for disposal of this appeal. An amount of Rs.5,000/- is fixed as fee to the Amicus Curiae. Office is hereby directed to pay the said amount to the Amicus Curiae on proper acknowledgement.
13. Accordingly, I proceed to pass the following order.
ORDER The appeal is partly allowed. The judgment of conviction and sentence passed by the trial Court in S.C. No.324/2009 under Section 397 IPC is hereby set aside. However, the conviction for the offence under Section 506 and sentence passed therein is maintained.
The accused/appellant is also convicted for the offence under Section 324 of Indian Penal Code and he is sentenced to undergo simple imprisonment for a period of two years.
It appears the accused has already undergone the punishment of two years as imposed for the offence under Section 324 and 506 of the Indian Penal Code.
There is no further direction for him to undergo any further punishment.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE ykl