IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23RD DAY OF SEPTEMBER 2017 BEFORE THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA CRL.A.NO.836/2012 BETWEEN:
State of Karnataka, by Indiranagar Police Station, Bengaluru. … Appellant (By Sri. K. Nageshwarappa, HCGP) AND:
1. Francies S/o Das, Aged about 34 years, R/o C/o Muniraju, Opp. Infant Jesus Church, Viveknagar, Bengaluru.
2. Venu S/o Srinivas, Aged about 25 years, R/o No.11, 4th Cross, 8th Main, Viveknagar further Extension, Bengaluru.
3. David Sandeep, S/o William, Aged about 24 years, R/o No.31, 4th Cross, 8th Main, Viveknagar further Extension, Bengaluru. ... Respondents (By Sri. F.S. Dabali, Advocate for R-1) This Criminal Appeal filed u/s 378(1) and (3) Cr.P.C praying to grant leave to appeal against the judgment and order of acquittal dated 14.10.2009 passed by the Addl. Sessions Judge & P.O, F.T.C-III, Mayo Hall Unit, Bengaluru in S.C No.398/2007-acquitting the respondent / accused for the offence p/u/s 397B r/w 34 of IPC.
This Criminal Appeal coming on for Orders this day, the Court made the following:
J U D G M E N T This matter is listed for orders. However with the consent of Sri.K.Nageshwarappa, learned HCGP for the appellant and Sri.F.S.Dabali, learned counsel for accused No.1, the matter is taken up for final hearing.
2. The appeal is filed by the State against the acquittal of the respondents/accused for the offence under Section 397 of IPC. Respondent No.1/accused No.1 is duly served and is represented by Sri.F.S.Dabali, Advocate. Accused No.2 is represented by Sri.M.D.Raghunath, Advocate. However the learned counsel has filed a memo for retirement. Respondent No.3 is not served with the notice of the appeal.
3. By the impugned judgment dated 14.10.2009 in S.C.No.398/2007 respondent Nos.2 and 3 are acquitted of the offence punishable under Section 397 r/w 34 IPC and respondent No.1 is held guilty of the offence under Section 394 IPC. The appeal is filed contending that the trial court should have convicted the respondents under Section 397 of IPC.
4. On going through the records, it is seen that though the charge sheet was filed under Section 397 of IPC, the case of the prosecution is that on 28.10.2005 at about 8.00 p.m. respondent Nos.1 to 3 with common intention to commit robbery, wrongfully restrained Ramesh-PW.3 who was going by walk after finishing his office work and threatened him by show of knife and snatched his mobile phone, hit him on the cheek and caused bleeding injury; Respondent Nos. 2 and 3 assaulted him on the body and took away the purse of PW.3.
5. In order to constitute the offence under Section 397 of IPC, the prosecution is required to prove that at the time of committing robbery or dacoity the offender i)used any deadly weapon; or ii)caused grievous hurt to any person; or iii) attempted to cause death or grievous hurt to any person. In the instant case, the material allegations are that respondent nos.2 and 3 assaulted PW3 with knife, but the trial court has recorded a categorical finding that accused Nos. 2 and 3 are not identified by eye witnesses and no recovery is effected from accused Nos. 2 and 3. Though recovery of cash of Rs.1200/- was said to have been effected at the instance of accused Nos.2 and 3, this recovery is not proved and even otherwise, the trial court has observed that recovery of the said cash cannot be connected to the offences in question or to accused Nos. 2 and 3. That finding in my view does not call for interference by this court. Since the appeal is filed solely to seek reversal of the impugned judgment in order to seek conviction under Section 397 of IPC the basic ingredients of Section 397 IPC are not attracted to the facts of the case. The appeal is wholly misconceived and is liable to be rejected.
6. In so far as respondent No.1 and is concerned learned counsel submits that the respondent No.1 has already served the full term of the sentence awarded by the trial court. The said fact is not disputed by the High Court Government Pleader. The records indicate that the fine of Rs.1,000/- has been paid by accused on 23.1.2010 and the records also bear the endorsement in this regard. Hence nothing survives for consideration in this appeal. Hence the appeal is dismissed.
Sd/- JUDGE RS/* CT:LL