IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.802/2019 Between:
1. Siraj @ Siru S/o Late Ikbal Hussein, Aged about 26 years, R/o. Pension Mohalla, Hassan City, Hassan-573 201.
2. Syed Sadiq S/o. Sayad Karim, Aged about 27 years, R/o. 4th Cross, Ilayi Nagar, Masidi Road, Pension Mohalla, Hassan-573 201. … Petitioners (By Sri. Chethan.B, Advocate) And:
State by Hassan Extension Police, Hassan-573 201.
Rept. By State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001. … Respondent (By Sri. M. Divakar Maddur, HCGP) This Criminal Revision Petition is filed under Section 397 R/W Section 401 of Cr.P.C., praying that this Hon’ble Court may be pleased to set aside the judgment dated 15.05.2019 passed in Crl.A.No.251/2018 on the file of the II Additional District and Sessions Court, Hassan and judgment dated 25.07.2018 passed in C.C.No.298/2010 on the file of the IV Additional Civil Judge and JMFC at Hassan.
This Criminal Revision Petition is coming on for Admission, this day, the Court made the following:
O R D E R The present Criminal Revision Petition has been filed by the petitioners/accused Nos.1 and 2 challenging the judgment passed by the Court of II Additional District and Sessions Judge, Hassan in Crl.A.No.251/2008 dated 15.05.2019, whereunder, the judgment of conviction was confirmed and sentence was modified and accused Nos.1 and 2 were sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/- each for the offence punishable under Section 392 of IPC.
2. I have heard the learned counsel for the petitioners and learned High Court Government Pleader for the respondent-State.
3. The case of the prosecution in brief is that on 26.02.2010 at about 2.30 p.m., both accused Nos.1 and 2 have committed snatching of gold mangalya chain and a piece of necklace weighing about 50 grams 700 milee totally worth Rs.80,000/- from the neck of CW.1- Smt. Shantha while she was proceeding to her brother- in-law’s house along with CW.2-Saroja on Gowri Koppalu Road, Hassan. On the basis of the complaint, a case has been registered and after investigation, the charge sheet has been filed and thereafter, learned Magistrate took cognizance of the offence, secured the presence of the accused and therein, the charge was framed. The accused pleaded not guilty and claims to be tried. As such, the trial was held.
4. In order to prove the case of the prosecution, it has got examined 9 witnesses as PWs.1 to 9 and marked 9 documents at Exs.P1 to P9 and also marked got marked 3 material objects at M.Os.1 to 3. Thereafter, the statement of accused Nos.1 and 2 was recorded under Section 313 of Cr.P.C. and the accused have not chosen to lead any evidence or marked any documents. After hearing the learned counsel for the parties, the Court below has come to the conclusion that there is material as against the accused for the offences punishable under Section 392 of IPC. Being aggrieved by the same, they preferred an appeal, which was allowed and modified as indicated above.
5. It is the contention of the learned counsel for the petitioner/accused Nos.1 and 2 that the trial Court as well as the 1st Appellate Court have not taken into consideration the fact that the provisions of Section 392 of IPC are not attracted. Neither the charge sheet nor the complaint contains the ingredients mentioned under Section 392 of IPC. Under such circumstances, the conviction entered by both the Courts for the offences punishable under Section 392 of IPC is not sustainable in law. It is his further submission that the recovery of gold mangalya chain and a piece of necklace have been done at the instance of accused Nos.1, except that no other material is there as against the accused. It is his further submission that the Test Identification Parade has not been conducted to identify the accused. In the absence of such material, conviction order entered by the Court below is not sustainable in law. On these grounds, he prayed to allow the petition and to set aside the impugned order and to acquit the accused.
6. Per contra, learned High Court Government Pleader vehemently argued and submitted that PWs.1 and 2 have fully supported the case of the prosecution and in their evidence they have stated that when they were going for walk, accused Nos.1 and 2 came and snatched the gold mangalya chain and a piece of necklace from the neck of PW.1. PW.2 is the spot mahazar pancha. Along with PW.1, the police have visited the house of the accused and from the house of accused No.1, they have recovered gold chains and motor bike. He is fully supported the case of the prosecution and the said evidence has not been shakened by the accused. It is his further submission that accused No.2 has accompanied with accused No.1 and in that light, the evidence produced clearly goes to show that the accused persons have committed the alleged offence. The trial Court as well as the 1st Appellate Court after considering the material placed on record have come to a right conclusion and have rightly convicted the accused. There are no good grounds to interfere with the orders of the Courts below. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records including the trial Court records.
8. The main contention which has been taken by the learned counsel for the petitioners is that though the trial Court as well as the 1st Appellate Court convicted the accused under Section 392 of IPC, none of the ingredients of Section 392 of IPC are satisfied and were proved by the prosecution. It is the case of the prosecution that when PWs.1 and 2 were proceeding by walk on 26.02.2010 at about 2.30 p.m., two unknown persons came on a motor bike from opposite direction and pillion rider snatched the gold mangalya chain and he also attempted to snatch the necklace from her neck. In order to attract the ingredients of robbery, certain essential ingredients are very much necessary. For the purpose of brevity, I quote Section 390 of IPC which reads as under:
“390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery. - Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery. – Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation. - The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.”
On going through the said definition, in order to call the theft as a robbery in committing such theft or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. But no such single incidents as stated in the said section have been stated either by PW.1 or by PW.2. In that light, the contention taken up by the petitioners/accused appears to be having force in law. But insofar as the evidence, if it is perused, PWs.1 and 2 have categorically stated about snatching of gold mangalya chain and necklace and they have identified accused No.2. Evidence of PW.4 clearly goes to show that himself along with PW.1 had been to the house of accused No.1 and the gold articles have been recovered at the instance of accused No.1. Motor bike has also been recovered and the same has been seized by drawing mahazar at Ex.P3. During the course of cross-examination of PW.4, nothing has been elicited so as to discard his evidence. PW.5 who has apprehended accused Nos.1 and 2 by giving a report as per Ex.P6. PWs.P6 and P7 have not supported the case of the prosecution, therefore, they have been treated as hostile.
9. Taking into consideration the evidence which has been produced, though there is a evidence to substantiate the fact that accused Nos.1 and 2 came on a motor bike and snatched gold mangalya chain and a piece of necklace, the main ingredients of Section 392 of IPC are not there in the case of the prosecution.
10. Taking into consideration the above said facts and circumstances, I am of the considered opinion that the provisions of Section 392 of IPC are not attracted. But however, some incident has taken place, in that light, it attracts the provisions of Section 379 of IPC. In that light, the petitioners/accused Nos.1 and 2 are liable to be convicted for the offence punishable under Section 379 of IPC. Taking into consideration of the above said facts and circumstances as discussed above, the petition is allowed and the judgment passed by the Court of II Additional District and Sessions Judge, Hassan in Crl.A.No.251/2008 dated 15.05.2019 is modified and the petitioners/accused Nos.1 and 2 have been convicted for the offence punishable under Section 379 of IPC. Accused Nos.1 and 2 have been sentenced to undergo imprisonment for a period which they have already undergone i.e., accused No.1 for two months twenty days and accused No.2 for two months fifteen days and they have to pay a fine of Rs.10,000/- each, in default they shall undergo simple imprisonment for a period of six months. The petitioners/accused Nos.1 and 2 are given set off under Section 428 of Cr.P.C. If the petitioners have already deposited Rs.5,000/-, the Trial Court is directed to recover the remaining fine amount.
Sd/- JUDGE NR/-