IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2019 BEFORE:
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ CRIMINAL REVISION PETITION NO.497 OF 2011 BETWEEN:
UMA MAHESH, SON OF LATE GANGADHARAPPA, AGED ABOUT 40 YEARS, RESIDING AT GONISOMANAHALLI VILLAGE, BELUR TALUK, HASSAN DISTRICT. ... PETITIONER [BY SRI. S.SHANKARAPPA, ADVOCATE] AND:
STATE BY ARASIKERE RAILWAY POLICE- REPRESENTED BY S.P.P., HIGH COURT BUILDING, BANGALORE. ... RESPONDENT [BY SRI. HONNAPPA, HCGP] * * * THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 R/W SECTION 401 OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 22.02.2006 PASSED BY THE CIVIL JUDGE (SR.DN.) & JMFC., KADUR IN C.C. NO.31/2005 AND ALSO THE JUDGMENT OF CONVICTION DATED 26.07.2010 PASSED BY THE PRESIDING OFFICER, FTAST TRACK COURT, CHIKMAGALUR IN CRL.A.NO.19/2006 AND THE PETITIONER MAY BE ACQUITTED.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL DISPOSAL, THIS DAY THE COURT MADE THE FOLLOWING:
ORDER This revision petition is filed by the accused challenging the concurrent findings recorded by the Courts below, wherein the trial Court by its Judgment and Order dated 22.02.2006 in C.C. No.31/2005 convicted him for the charged offence punishable under Section 392 of IPC and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,000/-, in default of payment of fine, to undergo simple imprisonment for three months, which was confirmed by the lower appellate Court in Crl.A. No.19/2006 by Judgment and Order dated 26.07.2010.
2. I have heard the learned counsel appearing for the petitioner and the learned HCGP appearing for the respondent/State.
3. It is the case of the prosecution that;
On 24.05.2005 at about 9.45 p.m., the complainant [P.W.1] and his wife [P.W.2] were traveling in the Hubli- Arasikere Passenger train. The accused was also traveling in the said train sitting in the same compartment. When the train left Ballekere Railway Station, suddenly, the accused snatched the ‘Mangalya chain’ of P.W.2 and jumped out of the moving train and ran away. In this regard, P.W.1 lodged a complaint before the Arasikere Railway Police, which was registered in Crime No.15/2005. A broken piece of ‘Mangalya chain’ [M.O.1] which remained with P.W.2, when the accused snatched the chain, came to be seized under a mahazar Ex.P2. During the course of investigation, on 06.06.2005, the accused came to be arrested and at his instance, ‘Mangalya chain’ [M.O.2] was seized. After completion of the investigation, charge-sheet was filed for the offence punishable under Section 392 of IPC.
Before the trial court, the accused pleaded not guilty for the charge framed under Section 392 of IPC and he claimed to be tried. The prosecution got examined P.Ws.1 to 13 and got marked Exs.P1 to 8 and M.Os.1 and 2.
The defence of the accused was one of total denial. However, he did not choose to lead any evidence on his behalf.
The trial Court after considering the evidence and material on record convicted the accused for the charged offence under Section 392 of IPC and imposed sentence as noted supra.
The accused preferred Crl.A. No.19/2006 before the Sessions Court. The said appeal came to be dismissed by the learned Sessions Judge by Judgment and Order dated 26.07.2010.
Against the aforesaid Judgment and Order passed by the Courts below, the present revision petition has been preferred.
4. It is the contention of the learned counsel for the petitioner that the evidence of the prosecution witnesses is inconsistent and both the courts have failed to properly appreciate the evidence on record and therefore, he submits that the impugned Judgment and Order of conviction and sentence are liable to be set aside. He submits that according to P.W.1, he has not handed over the piece of ‘Mangalya chain’ to the police, which is contrary to Ex.P2, under which the said M.O.1 came to be seized. He further submits that the panch-witness has not stated as to how M.O.2 came to be seized from the possession of the accused. The witnesses have not identified the accused in the Court. He also contended that there is nothing on record to show that M.O.1 is the broken piece of M.O.2. Therefore, he submits that the evidence and material on record is not sufficient to bring home the guilt of the accused and accordingly, seeks to allow the petition.
Per contra, the learned HCGP contended that P.Ws.1 and 2 are the material witnesses and they have identified the accused in the Police Station and they have also identified M.O.2, which was seized from the possession of the accused. He contends that a piece of ‘Mangalya chain’ remained with P.W.2 and after the arrest of the accused, the remaining part of ‘Mangalya chain’ was also seized and there is nothing elicited from the prosecution witnesses to deny the same. He further contended that the accused after committing robbery jumped out of the train and in the process, he sustained injury and took treatment in the hospital and there is evidence on record to show that he was treated for the injuries sustained and submits that both the Courts have concurrently held that the accused is guilty of the charged offence and accordingly seeks to dismiss the petition.
5. The case of the prosecution is that on 24.05.2005 at about 9.45 p.m., when P.Ws.1 and 2 were traveling in the Hubli-Arasikere passenger train, in which the accused was also traveling in the same compartment. When the train started moving, the accused snatched away the ‘Manglya chain’ belonging to P.W.2 and jumped out of the moving train and ran away. The complaint in this regard came to be lodged by P.W.1. In the First Information Report it is stated that the broken piece of chain remained in the hands of the victim and the other part of the chain was taken away by the accused. The complaint has been marked as per Ex.P1.
M.O.1 is the piece of ‘Mangalya chain’ remained with the victim-P.W.2. The same came to be seized under mahazar- Ex.P2. P.W.3 is the panchwitness to the said seizure at Ex.P2 and he has identified the said ‘Manglya chain’, which was marked as M.O.1.
6. The evidence of the Investigating Officer-P.W.12 discloses that after collecting information with regard to the person who sustained injury, they traced the accused and apprehended him on 06.06.2005. After his arrest, M.O.2 was seized at his instance. The evidence of P.Ws.1 and 2 goes to show that they identified the accused in the Police Station.
M.O.2 was seized under a mahazar Ex.P3 in the presence of panch-witnesses.
7. It is the contention of the learned counsel for the petitioner that though it is the case of the prosecution that M.O.1 was seized under a mahazar and it was subjected to property form, however, according to P.W.1, the same is not seized by the police on the other hand, it was given back to P.W.1. However, it is seen from the evidence of P.Ws.1 and 2 and also the evidence of the Investigating Officer that M.O.1 was seized under a mahazar and thereafter it was returned to them.
8. The prosecution has got examined P.W.9-doctor, who treated the accused with regard to the injuries sustained by him. A perusal of the evidence of P.W.9 goes to show that on 25.05.2005 at about 12.45, during night hours, he examined the accused and noticed certain injuries and he issued wound certificate as per Ex.P5. According to the prosecution, when the accused jumped from the moving train after committing robbery, he fell down and sustained injuries. There is no explanation by the accused for having sustained the said injuries. It is pertinent to see that on the very same day of the incident the accused was examined and treated by the doctor for the injuries sustained by him.
9. It is the contention of learned counsel for the petitioner that P.Ws.5 and 6-panchwitnesses to Ex.P3 have not supported the case of the prosecution. Though they have not supported the case of the prosecution, the evidence of P.Ws.1 and 2 and also the evidence of P.Ws.11 and 12 are sufficient to hold that the said M.0.2 was seized at the instance of the accused.
10. Though it is contended by the learned counsel for the petitioner that the ingredients of robbery is not made out or Section 392 of Cr.P.C. is not attracted, it is seen that the accused snatched away the ‘Mangalya chain’, which was worn by victim–P.W.2 and in the process, certainly he has caused fear of instant hurt to the victim and therefore, it cannot be said that the ingredients of Section 390 are not made out or the accused has not committed an offence punishable under Section 392 of IPC.
11. The learned counsel for the petitioner submits that the incident is of the year 2005 and the sentence imposed against the accused/petitioner was suspended and therefore, he submits that at this stage, if the accused is sent to judicial custody, then great hardship will be caused to him.
12. The offence punishable under Section 392 of IPC is punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Both the Courts have concurrently held that the accused is guilty of an offence punishable under Section 392 of CPC. There are no grounds to take a different view taken by the Courts below.
13. Considering the facts and circumstances of the case and that there are no other criminal background against the accused and also the fact that the incident has occurred in the year 2005, I am of the view that the sentence imposed by the trial Court may be reduced from 3 years to 2½ years. Accordingly, I pass the following:
ORDER The revision petition is partly allowed.
The Judgment and Order of conviction and sentence passed by the trial Court confirmed by the lower appellate Court is hereby affirmed. The sentence is modified. The accused/petitioner is hereby sentenced to undergo 2 [two] years 6 [six] months rigorous imprisonment for the offence punishable under Section 392 of IPC and he shall pay the fine amount as ordered by the trial Court, in default to pay the fine, to undergo simple imprisonment for 3 [three] months.
Sd/-
JUDGE Ksm*