Chandranaika alias Marvadi and Others vs State

This criminal appeal is filed by the appellants-accused 1 to 6 challenging the judgment dated 31-7-2003 passed by the Principal Sessions Judge, Hassan in S.C. No. 211 of 2002, convicting the appellants-accused for an offence punishable u/s 395 of the Indian Penal Code, 1860 and sentencing them to undergo imprisonment for life and to pay fine of Rs. 5,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months for an offence punishable u/s 395 of the IPC.

The case of the prosecution in brief is that:

The complainant namely, K.M. Adaveeshappa (P.W. 1) who is residing in a farm house situated at Kellangere Village, Arasikere Taluk lodged complaint as per Ex. P. 1 stating that he is staying in the said house along with his family members since 40 years and adjacent to his house, his elder brother Rudrappa (P.W. 3) was residing and towards right side of his house at a distance of about 100 feet, there is a house of one K.P. Murthy (P.W. 8). On 6-4-2002 around 11.00 p.m., after having meals, the complainant and his family members slept in their house. At about 1.30 a.m. of 7-4-2002 complainant heard shouting from the side of house of his neighbour and in the meanwhile, his neighbour namely Murthy telephoned and informed the complainant that some thieves have come and they are pelting stones towards his house and requested the complainant to come over there, as his family members prevented him from going outside the house stating that father-in-law of his wife''s sister had been murdered near KB. Cross in a similar situation earlier, and if he goes there, they would be in trouble, so he kept quite. Within a short span, Adaveeshappa and his family members heard the sound of knocking the door of his brother Rudrappa and in the meanwhile, Rudrappa (P.W. 3) called his servant Sannaiah (P.W. 6) who was sleeping outside. At that time, 4 accused assaulted Sannaiah and brought him near the house of complainant and asked the complainant to open the door or else they would finish off Sannaiah (P.W. 6). While saying so, those 4 accused started breaking open the door, the complainant asked them not to break the door and he would open the door, even then the said accused broke open the door and 4 accused gained entry into the house and another 4 accused were standing outside the house. Amongst the 4 accused who entered into the house, one accused was holding a sickle and other 3 accused were holding clubs. Out of the accused who had entered into the house, two accused had smeared some black and white lines on their faces. One among them assaulted the complainant Adaveeshappa on his left shoulder and as such, he sustained severe pain. The other 3 accused smashed the telephone with clubs and they gained entry into the bedroom and threatened the complainant to open the Almirah and after opening the Almirah, complainant handed over cash of Rs. 5,000/-. They also demanded the complainant to reveal as to where he had kept the money realised from the sale of toddy. Then thereafter, amongst them one accused forcibly opened the locker by using sickle and took Rs. 75,000/- cash, gold chain weighing about 30 grams, two gold bangles weighing 24 grams, one HMT ladies watch and also snatched Titan Watch which was in the hand of the complainant and also Rs. 500/- cash which kept on the TV Stand. Out of the accused who had gained entry into the house, one was trying to talk in Tamil, another was trying to talk in Telugu and another was trying to talk in Hindi but they were unable to talk in those languages properly but they were talking Kannada fluently. After committing dacoity, the accused forcibly confined complainant (P.W. 1) Adaveeshappa, his wife (P.W. 2) Prema and his son Harsha in the cattle shed and one accused was guarding them and the other 3 accused went out of the house and the accused who was guarding them got removed a pair of gold ear studs from the wife of complainant and when the wife of complainant tried to remove her Mangalsutra, the said accused told her not to remove Mangalsutra. The accused who had gained entry into the house did not touch the silver articles, which were kept in Almirah. In the meanwhile, some people from Bovi Colony came there and on coming to know about their arrival, the dacoits ran away in the darkness. Later, the complainant and his family members went and saw that dacoits had assaulted their servant Sannaiah (P.W. 6) and even (P.W. 8) K.P. Murthy and his wife had also sustained injuries due to pelting of stones by the dacoits. That the accused who had committed dacoity were in the age group of 25 to 40 years and out of them, one accused had worn lungi and other 3 accused had worn pants. The complainant has stated in his evidence that he could identify them if he sees the accused. It is further case of the prosecution that the dacoits had robbed cash amount of Rs. 80,000/- and gold articles worth, about Rs. 30,000/- and two watches.

After the dacoits went away the complainant and his family members came out of the house and found P.W. 6-Sannegowda had sustained severe bleeding injuries. Thereafter, the injured (P.W. 6) Sannegowda was shifted to the hospital.

On receipt of the complaint-Ex. P. 1, P.W. 5-Police Inspector registered a case in Crime No. 50 of 2002 for an offence punishable u/s 395 of the IPC, prepared FIR Ex. P. 6 and forwarded the same to the jurisdictional Magistrate. The further investigation was taken over by the Police Inspector (P.W. 9) who visited the spot, drew the spot mahazar, seized the broken wooden piece of the doors and the stones and bricks pelted by the dacoits. The dog squad was pressed into action and the dog after going about half k.m. stopped near the lakebed of Thirupathihalli wherein one pair leather chappal was found and they were seized. Again, the further investigation was taken over by P.W. 10.

It is further case of the prosecution that on 27-7-2002, the Investigation Officer (P.W. 10), on getting credible information that accused 1 to 5 are making preparation to commit dacoity, arrested them and registered a case in Crime No. 140 of 2002 for the offences punishable under Sections 399 and 400 of the IPC. On 28-7-2002 at about 3.00 a.m. accused 6 was also apprehended and on the basis of the voluntary statements of the accused, the gold articles, watches which were robbed from the house of complainant were recovered at the instance of accused. After recovery of the said articles, the Investigation Officer summoned the complainant Adaveeshappa (P.W. 1) who identified the articles as the articles which were robbed from their house and after recording the further statement of the complainant and after completing the investigation, P.W. 10 filed charge-sheet against the accused for the offence punishable u/s 395 of the IPC.

In order to establish the guilt of the accused-appellants, the prosecution has examined as many as 14 witnesses and got marked Exs. P. 1 to P. 16 and M.Os. 1 to 12. No evidence was let in on behalf of the accused-appellants. The defence of the accused is one of total denial of the prosecution case. The statements of the accused was recorded u/s 313 of the Criminal Procedure Code, 1973.

P.W. 1-Adaveeshappa who is the complainant in the case has stated in his evidence that he is staying in his farm house along with his wife and son and the house of his brother Rudrappa (3) is attached to his house and the house of Murthy (P.W. 8) is situated about 300 feet from his house and there was electricity connection to his house. One year two and half months prior to his deposition (witness is examined in the Court on 30-6-2003) on the night intervening 6th and 7th April, 2002 at about 1.30 a.m. he received telephone call from his neighbour-Murthy (P.W. 8) who informed him that dacoits had come near his house and the inmates of the house of Murthy were crying. Immediately he switched on the lights of his house. His servant Sannaiah (P.W. 6) was residing in the outhouse. On the date of incident, the dacoits assaulted him (P.W. 6) and brought him near his house and asked (P.W. 1) the complainant to open the door and stated that if he failed to open the door they will finish P.W. 6-Sannegowda. Before he could open the door, the thieves broke open the door of his house and four accused gained entry into his house. One amongst those 4 accused, pushed him into the hall and assaulted with club on his shoulder and the other 3 accused were holding sickles in their hands and they threatened him stating that they would do away with their life if money is not given. He gave Rs. 5,000/- from his Almirah. The accused said that since the complainant (P.W. 1) was carrying on business in sale of liquor, he would be having more money and the same should be given to them. P.W. 1 requested his wife to hand over key of the locker to them. By the time his wife handed over locker key, the dacoits broke open the lock of the locker and took away one pair gold bangles, one gold chain and cash of Rs. 75,000/-, one ladies HMT watch and they snatched one Titan Watch from his hand. Then thereafter, they forcibly took him, his wife and son to the cattle shed and locked them. One accused who was guarding them in the cattle shed took away the ear stud of his wife. He has identified the 4 accused in the Court who had gained entry into his house on the date of incident. He has further stated in his evidence that by mistake he has stated that accused 7 had gained entry into his house but it is accused 1, 2, 5 and 6 who had gained entry into his house to commit dacoity. He has further stated in his evidence that at the time of committing dacoity, 3 accused persons were holding clubs in their hand and one was holding sickle and it is accused 5 who assaulted him with club on his shoulder and accused 6 forcibly broke open the locker and took gold ornaments. He has further deposed that on seeing the people of Bovi Colony rushing towards his house, the dacoits ran away from the scene along with stolen articles. Then thereafter he came out of his cattle shed and saw his servant Sannaiah-P.W. 6 and his neighbour Murthy (P.W. 8) who had sustained injuries, Sannaiah, P.W. 6 was shifted to the hospital for treatment and on the next day morning at about 5.00 a.m. he lodged complaint to the police as per Ex. P. 1. He has further deposed that police arrived at the spot at 10.00 a.m. and drew panchanama and seized the broken wooden pieces of the door (M.Os. 1 and 2) and seized the stones and bricks (M.Os. 3 to 6) pelted by the dacoits at the house of P.W. 8-Murthy under mahazar. Four months thereafter, he was summoned to the police station and was asked to identify the recovered articles i.e., one Titan Watch (M.O. 7), one ladies HMT Watch (M.O. 8), two gold bangles (M.O. 9), one gold chain (M.O. 10) and one pair ear studs (M.O. 11) he identified those articles which were robbed by the accused from his house. He has further stated that he also identified the chain M.O. 10 as he had purchased the same from Ambika Jewelers and there was a marking on the same as (AJ).

P.W. 2-Smt. Prema is the wife of the complainant (P.W. 1) and she is an eye-witness to the incident. She has corroborated the evidence of P.W. 1 in all material particulars. According to her, on the date of incident, the accused persons gained entry into their house at about 1.30 a.m. and that accused 5 was holding club, accused 1 and 2 were also holding clubs and after gaining entry, they assaulted her husband P.W. 1 and they took Rs. 5,000/- from the Almirah and thereafter, they broke open the locker and took Rs. 75,000/- cash and gold ornaments. Then thereafter, they forcibly took P.W. 1, P.W. 2 and their son and confined them in the cattle shed wherein accused 5 forcibly took one pair of gold ear studs worn by her. When the people from Bovi Colony came towards their house, the accused persons ran away from the scene of offence along with the stolen articles. She also identified the stolen articles from her house i.e., M.Os. 7 to 11. She has further stated that on the date of incident, 4 accused persons gained entry into their house and 2 were standing outside the house.

P.W. 3-Rudrappa is the brother of P.W. 1 who is staying adjacent to the house of P.W. 1 he has stated in his evidence that one year two months prior to his deposition (witness examined in the Court on 1-7-2003) at about 1.30 a.m. he heard galata from the house of Murthy (P.W. 8) and immediately he switched on the lights of his house and tried to open the doors and before he could open the doors of his house, the dacoits started pelting stones. He saw from his house that the dacoits had assaulted P.W. 6-Sannaiah and thereafter they forcibly broke opened the door of the house of his brother and gained entry into the house and some accused were standing outside the house. Thereafter, he removed some roof tiles from his house and informed the same to the villagers. After noticing the arrival of the villagers, dacoits ran away from the spot. As Sannaiah-P.W. 6 had sustained injuries, he was shifted to hospital that his brother (P.W. 1) also had sustained injuries. He has further stated in his evidence due to pelting of stones by the dacoits, the door of his house was also broken and those broken pieces were seized by the police as M.Os. 1 and 2.

P.W. 4 who is the Pawnbroker and panch witness for recovery of stolen articles has stated in his evidence that 11 months prior to his deposition (witness examined in Court on 1-7-2003) police called him to the Police Station and asked him to be a pancha. He saw accused 1 to 5 in the Police Station, the accused persons took the police and panchas to Doddahatti near Kadur wherein accused 5 got down from the jeep and took them to the house and asked a person in the house to return the Titan watch and on production of the same, the police seized the same under Ex. P. 3 and said watch is marked as M.O. 7. In the afternoon, accused 5 took them to his house and produced two gold bangles from his trunk and the same were seized under mahazar-Ex. P. 4 and marked as M.O. 9. Two days thereafter, the Police Inspector called him and another pancha to the Police Station and at that time accused 2 and 5 were present. It is recorded in his deposition that this witness after going near the accused in the Court has stated that accused 1, 2 and 5 were present in the Police Station on that day. He has further stated that accused 1 took the police and panchas to his father-in-law''s house at Chikkapattanagere Village and produced one gold chain weighing 30 grams and two ear studs and the same were seized by the police under Ex. P. 5 and those articles were marked as M.Os. 10 and 11.

P.W. 5-K.P. Deepak who was the Police Sub-Inspector at the relevant point of time has stated in this evidence that on 7-4-2002 at about 5.00 a.m. he received complaint from P.W. 1 as per Ex. P. 1 and registered a case in Crime No. 50 of 2002 and prepared FIR, Ex. P. 6 and forwarded the same to the jurisdictional Magistrate.

P.W. 6-Sannegowda who is a servant of P.W. 1, he has given evidence to the effect that 3 years 1 month prior to his deposition (witness examined in Court on 11-7-2003) at about 1.00 a.m. in the midnight he heard sound from the house of Murthy.(P.W. 8) and he asked who is making galata. At that point of time, 4 accused who were holding clubs and sickle assaulted him on his cheek. Immediately thereafter, Adaveeshappa (P.W. 1) switched on the lights. The 4 accused asked P.W. 1 to open the door and if failed to open the door, they would kill P.W. 6. All the 4 accused forcibly broke open the door of the house of P.W. 1 and gained entry into the house of P.W. 1. At that time accused 5 was guarding him, accused 6 was holding club in his hand. He has stated that he saw all the 4 accused in the electric light. As the accused assaulted him, he sustained bleeding injury on his ear. He also heard braking open of the locker by 4 accused who had gained entry into the house. He learnt that the accused had snatched away the watch from P.W. 1 and on seeing the people from Bovi Colony coming towards the house of P.W. 1-the accused ran away from the scene along with stolen gold articles and cash and thereafter as P.W. 6 was injured he was admitted to the hospital.

P.W. 7-Swaminayaka has given evidence to the effect that he knows accused 3 as he was frequently visiting Doddahatti Village and as he belongs to his caste. As requested by accused 3, he gave a sum of Rs. 300/- to accused 3 by keeping one ladies watch. Later, accused 3 came with police and requested him to return the watch and on returning the said ladies HMT watch (M.O. 8), the police seized the same under mahazar Ex. P. 7.

P.W. 8-KP. Murthy who is the neighbour of the house of P.W. 1 has given evidence to the effect that on the date of incident, at about 2.30 a.m. The dacoits pelted stones towards his dog and his dog started barking and he came out of the house and some one slashed battery light towards him and thereafter, 6-7 accused started pelting stones and bricks towards the windows of his house. He and his wife sustained injuries. As they did not open the door of their house, they had gone towards the house of Adaveeshappa (P.W. 1). In the meantime, he telephoned to P.W. 1-Adaveeshappa and informed him that dacoits are making galata. The telephone wire of his house was cut by the accused. He also found that the accused persons forcibly opening the door of the house of P.W. 1 and robbing the household articles from the house of P.W. 1 and assaulted P.W. 1 while stealing the articles. When the people from the village started coming towards the scene, all the accused ran away from the scene.

P.W. 9-K.M. Chinnaswamy who was the Circle Police Inspector of Arasikere Police Station at relevant point of time has given evidence to the effect that on 7-4-2002 he took further investigation from P.W. 5 and immediately he pressed the dog squad into service to trace the accused. The dog, after moving half k.m. towards West, stopped at the lakebed of Thirupathihalli wherein a pair of leather slippers were found and the same were seized under mahazar Ex. P. 3 and the slippers are marked as M.O. 12. Thereafter, he visited the spot and prepared spot mahazar Ex. P. 8 and saw that the front door of the house of P.W. 1 was damaged and he seized the broken door pieces and other articles in the house of P.W. 1 which were also damaged. Thereafter he visited the house of K.P. Murthy (P.W. 8) which was situated just 100 feet away from the house of P.W. 1 and seized the stones and bricks under Ex. P. 2 those articles are marked as M.Os. 1, 2 and 3 to 6. He got prepared the spot sketch as per Ex. P. 9 recorded the statements of witness and handed over further investigation to P.W. 10-CPI, Nagappa, as he was transferred to Hassan.

P.W. 10-Nagappa who was the Police Inspector has stated in his evidence that on 27-7-2002, on the basis of the credible information he arrested accused 1 to 5 and registered a case in Crime No. 140 of 2002 for the offences punishable under Sections 399 and 400 of the IPC, And. on enquiry, the accused 1, 2, 3 and 5 gave their voluntary statements as per Exs. P. 10, P. 11, P. 12 and P. 13. On 28-7-2002 at about 3.0 a.m. he caused arrest of accused 6.

He has further stated that on 28-7-2002, accused 5-Sureshnaika S/o. Ganganaika volunteered a statement and took him and panchas to the house of one Madhukarnaik of Doddahatti Village, wherein he produced one Titan Watch (M.O. 7) and the same was seized under Ex. P. 3. Thereafter, accused 5-Sureshnaika took the Investigation Officer and panchas to his house wherein he produced one pair of gold bangle (M.O. 9) weighing about 24 grams from his trunk and the same were seized under mahazar-Ex. P. 4. Voluntary statement of accused 5 is marked as Ex. P. 13.

Thereafter, he instructed the P.W. 12 Sub-Inspector Devaiah to interrogate and recover the articles from accused 3-Sureshnaika S/o. Ramanaika. Accordingly, Police Sub-Inspector, Devaiah recovered one ladies HMT watch (M.O. 8) from accused 3.

On 30-7-2002, accused 1-Chandranaika volunteered a statement and took the Investigation Officer and panchas to his house situated at Chikkapatanagere and produced one two row gold chains (M.O. 10) weighing about 30 grams and one pair gold ear studs (M.O. 11) and the same were seized under seizure mahazar-Ex. P. 5, voluntary statement of accused 1 is marked as Ex. P. 10.

Thereafter, he summoned the complainant-Adaveeshappa (P.W. 1) who identified the seized articles as that stolen/robbed by the accused from his house on the date of incident. He prepared separate mahazar and subjected them into Crime No. 50 of 2002 and after obtaining permission from the Magistrate, he handed over those gold articles to P.W. 1. After completing the investigation, he filed charge-sheet against the accused for the offence punishable u/s 395 of the IPC.

P.W. 11-Shaysundar who is a panch witness for recovery of the stolen articles under seizure mahazar-Ex. P. 7 has given evidence to the effect that one year prior to his deposition (witness examined in the Court on 14-7-2003) the police called him and others to be a panch for seizure of the articles. Accordingly, he agreed for the same and went to the police station and saw the accused 3 in the Police Station, who volunteered a statement and took the police and panchas to the house of one Swaminayaka (P.W. 7) and requested him to return the ladies watch which was given to him. On production of the same, the police seized it (M.O. 8) under seizure mahazar-Ex. P. 7.

P.W. 12-H.D. Devaiah is the Police Sub-Inspector. He has stated in his evidence that accused 3 volunteered a statement and took him and panchas to the house of one Swaminayaka who produced ladies watch (M.O. 8) which was given to him by accused 3 and he seized the same under seizure Ex. P. 7. Though there is some inconsistency in the recovery of stolen articles, there is consistency in the evidence of P.W. 1 and P.W. 2 regards the entry of accused 1, 2, 5 and 6 into their house to commit dacoity. Accused 3 and accused 4 are alleged to be outside the house and their presence is not conclusively proved even in the evidence of P.Ws. land 2.

P.Ws. 13-Dr. Ashok P. and P.W. 14-Dr. Chakrapani are the Medical Officer who have treated the injured Renuka (not examined in the Court), Sannegowda (P.W. 6), Adaveeshappa (P.W. 1) and issued wound certificates as per Exs. P. 14, P. 15, and P. 16 respectively. Tile doctor who treated the injured have stated in their evidence that those injuries are simple in nature.

The Trial Court, after considering the contentions of the learned Public Prosecutor and the learned Counsel appearing for the accused and on appreciation the oral and documentary evidence adduced by the prosecution, held that the prosecution has proved beyond reasonable doubt the charges levelled against the accused-appellants and thereby held that all the accused guilty of having committed offence punishable u/s 395 of the IPC and after hearing the learned Public Prosecutor and learned Counsel appearing for the accused, sentenced them as herein before stated. Being aggrieved by the said judgment of conviction and sentence, the accused are before this Court in this appeal.

As the appeal was presented through Jail Superintendent, Sri H.R. Sreedhar, Advocate has been appointed as Amicus Curiae to assist the Court. We have heard the learned Amicus Curiae and Sri Bhavani Singh, learned Additional State Public Prosecutor appearing for the respondent-State. Having regard to the contentions urged by the respective Counsel, the points that arise for our consideration are:

(i) Whether the findings of the Trial Court that the prosecution has proved beyond reasonable doubt that on the intervening night of 6/7-4-2002 around 1.30 a.m. accused 1 to 6 having armed with deadly weapons like clubs and sickles gained entry into the garden house of P.W. 1-KM. Adaveeshappa situated at Kellangere Village by breaking open the door of the house and assaulted the inmates of the house of the complainant and committed dacoity of HMT wrist watch, gold articles worth over Rs. 30,500/- and also cash of Rs. 80,000/- and thereby committed the offence punishable u/s 395 of the IPC is justified or calls for interference in this appeal?

(ii) Whether the sentence imposed by the Trial Court calls interference in this appeal?

We answer the Point No. (i) partly in the affirmative by holding that the prosecution has proved beyond reasonable doubt that the accused 1, 2, 5 and 6 have committed the offence punishable u/s 392 of the IPC and not u/s 395 of the IPC and Point No. (ii) in the affirmative as per the final order for the following reasons.-

REASONS

On reappreciation of the material on record we find that the evidence of P.Ws. 1, 2, 3 and 6 is consistent with regard to the involvement of accused 1, 2, 5 and 6 in the commission of the offence. P.W. 1-Adaveeshappa has categorically stated that it was the accused 1, 2, 5 and 6 who had forcibly broke open the door and gained entry into his house and out of them, accused 5 assaulted him with club on his shoulder and accused 6 who possessed sickle in his hand snatched Rs. 5,000/- from him and thereafter he (accused 6) broke open the locker and took away the gold ornaments and cash of Rs. 75,000/-. This part of the evidence has not been shaken in the cross-examination of P.W. 1, though he has been extensively cross-examined by the defence. The evidence of P.W. 1 is further corroborated by P.W, 2 who has stated that 4 accused persons (accused 1, 2, 5 and 6) had gained entry into their house, accused 1, 2 and 5 were holding clubs and accused 6 was holding sickle in his hand. She has stated that it is accused 5 who assaulted her husband and thereafter, when he was (accused 5) guarding P.W. 1 and P.W. 2 and their son near cattle shed he took away the gold ear studs from her. She has further deposed that accused 6 threatened her stating that if she were to make galata, he would commit rape on her. Both these witnesses P.Ws. 1 and 2 had an occasion to see the accused 1, 2, 5 and 6 who had gained entry into their house in close proximity in the electricity light burning in their house and they are the victims of midnight incident of dacoity and both of them have identified the accused 1, 2, 5 and 6 as the persons who have committed dacoity in their house. The evidence of P.Ws. 1 and 2 is further corroborated by P.W. 6 who is an injured eye-witness and servant of P.W. 1 who was staying in the outhouse of P.W. 1. P.W. 6 has clearly stated in his deposition that accused 1 to 4 went inside the house of P.W. 1, accused 5 and 6 were standing outside and they were guarding. In all probabilities, he might have mistaken the identity of accused 5 to be the accused, who had been guarding him, since he had sustained injuries on his ear. His evidence clearly establishes that accused 1 and 2 were the accused who had gained entry into the house, though there is little bit of inconsistency with regard to identity of accused 5 and 6. In all probability, because of lapse of long time between the date of incident and he giving evidence in the Court and also because of he had sustained injuries at the time of incident outside the house of P.W. 1 at the hands of accused, there might have been mistake with regard to the identity of accused 5 and 6 by P,W. 6. However, the evidence of P.Ws. 1 and 2 clearly establishes that it was accused 1, 2, 5 and 6 who had gained entry into the house of P.W. 1 for committing dacoity.

Further, on perusal of evidence of P.W. 10-Investigation Officer we find that M.Os. 10 and 11 (one-two row gold chain and one pair ear studs) were recovered at the instance of accused 1 under seizure mahazar-Ex. P. 5. M.O. 8 (Ladies HMT Watch) was recovered at the instance of accused 3 under seizure mahazar-Ex. P. 7. M.Os. 7 and 9 (Titan Watch and two gold bangles) were recovered at the instance of accused 5 under seizure mahazar-Exs. P. 3 and P. 4. Therefore, the ocular testimony of eye-witness to the incident (P.Ws. 1, 2, 3 and 6) coupled with other materials particularly, the recoveries of the stolen articles at the instance of the accused in the presence of panchas and identification of those articles by P.Ws. 1 and 2 also unerringly establishes the guilt of the accused 1, 2, 5 and 6 of having committed the offence punishable u/s 392 of the IPC and not the offence punishable u/s 395 of the IPC, as held by the Trial Court. The Trial Court, while appreciating the material on record has committed an error in arriving at a conclusion that the evidence on record as regards the other accused namely, accused 3 (Sureshanaika alias Suresha S/o. Ramanaika) and accused 4 (Ganganaika alias Ganga S/o. Ramanaika) is sufficient to hold them guilty of having committed an offence punishable u/s 395 of the IPC.

The material on record clearly establishes that accused 1, 2, 5 and 6 have committed an offence punishable u/s 392 of the IPC, as they have committed robbery and not dacoity. This aspect of the matter has not been considered by the Trial Court. Hence, the finding of the Trial Court that accused are guilty of the offence punishable u/s 395 of the IPC is liable to be set aside. Accordingly, we answer Point 1 in the affirmative holding that the appellants-accused 1, 2, 5 and 6 are guilty of having committed offence punishable u/s 392 of the IPC, and accused 3 and 4 are liable to be acquitted of the charges levelled against them.

In view of our finding on Point No. 1 and Point No. 2 is answered partly in the affirmative and we pass the following order.-

ORDER

The appeal is allowed in part. In modification of the judgment of conviction and sentence dated 31-7-2003 passed by the learned Principal Sessions Judge, Hassan, S.C. No. 211 of 2002 we hold that accused 1 (Chandranaika alias Marvadi), accused 2-Puttanaika, accused 5-Sureshanaika alias Suresha S/o. Ganganaika alias Danthalu and accused 6-Manjanaika alias Manja are guilty of having committed an offence punishable u/s 392 of the IPC and we sentence them (accused 1, 2, 5 and 6) to undergo rigorous imprisonment for 10 (ten) years and to pay fine of Rs. 5,000/- each. In default of payment of fine, they shall suffer rigorous imprisonment for further period of one year.

The judgment of conviction and order of sentence dated 31-7-2003 passed by the Principal Sessions Judge, Hassan in S.C. No. 211 of 2002 holding the accused 3 (Sureshanaika alias Suresha S/o. Ramanaika) and accused 4 (Ganganaika alias Ganga S/o. Ramanaika) as guilty of offence punishable u/s 395 of the IPC is set aside and both appellants-accused 3 and 4 are acquitted of the said charges and they shall be set at liberty forthwith unless they are required to be detained in any other case. The fine amount if any paid by accused 3 and 4 is directed to be refund to them.

The assistance rendered by Sri H.R. Sreedhar, learned Advocate appointed as Amicus Curiae is placed on record. His fee is fixed in a sum of Rs. 5,000/- (Rupees five thousand only).