G. Raghu and Others vs State by Dabaspet P.S.

A.S. Pachhapure, J.

The appellants have challenged their conviction and sentence for the offence punishable under Section 395 IPC, on a trial held by the Fast Track Court, Bangalore Rural District.

The facts reveal that on 24.01.2009 at 7.30 p.m., Latha-P.W.1, Geetha-P.W.3, Ashwini-P.W.14 and Gagan were waiting for a bus at Dabaspet bus stand and at that time, accused No. 5-driver brought his TATA Sumo vehicle bearing reg. No. KA-01/N-5508 and 8th accused in a loud voice called the passengers to travel in their vehicle, if they were go to Pavagada and Madhugiri. Accused 1 and 7 were sitting in the said vehicle pretending themselves as travelers. In the circumstances, P.Ws. 1, 3, 14 and Gagan boarded the said vehicle and sat in the middle row. While the said vehicle was proceeding towards Kortegere, near Madhenahalli village, accused 1, 3, 4 and 6 boarded the said TATA Sumo vehicle. Thereafter when it was proceeding towards Hallenahalli village, accused Nos. 1 and 8 said to have put a bed sheet on the face of P.W.1 and accused 1 and 2 asked her to remove her jewelry. P.Ws. 3 and 14 raised their voice and at that time accused 3, 4 and 6 threatened her pointing out a knife at her. The 6th accused threatened P.W.3-Geetha and snatched her ear-rings. Accused 3 and 6 tied her hands and legs and dumped in an isolated place about 10.00 p.m. on the said day. Later P.Ws. 1, 3 and 14 and Gagan went to a nearby place and called the police and came to the Police Station and on 25.01.2009, a complaint came to be filed and it was registered in Crime No. 15/2009 for the offence punishable under Section 395 IPC. Investigation was taken up. Spot-mahazars as per Exs. P2 and 3 were held in the presence of the attesting witnesses. Statements of the witnesses were recorded. Accused were arrested in the course of the investigation. Their voluntary statements as per Exs. P14 to 19 were recorded. At the instance of the accused, stolen articles were recovered inclusive of the knife and on completion of the investigation, a charge-sheet was laid.

The case against accused 4 to 6 was split up. The rest of the accused were tried and in the course of the trial, the prosecution examined P.Ws. 1 to 15, got marked the documents Exs. P1 to 19 and M.Os. 1 to 17.

After recording the statements of the accused, the trial Court heard counsel for the parties and on appreciation of the evidence on record, convicted the appellants for the charge under Section 395 IPC and ordered them to undergo rigorous imprisonment for 3 years and to pay a fine of Rs. 3,000-00 with default sentence. Against the conviction and sentence ordered by the trial Court, the present appeals are filed.

The appellants in Crl.A. No. 1010/2010 are accused Nos. 1 to 3 and 7, whereas the appellant in other appeal is accused No. 8 before the trial Court.

I have heard learned counsel for the appellants and also learned High Court Government pleader.

The point that arises for my consideration is;

"Whether the appellants have made out any grounds to warrant interference in their conviction and sentence for the offence punishable under Section 395 IPC?"

It is the contention of learned counsel for the appellants that the incident occurred during the night hours and there was no light at the place. There is no identification parade held by the Tahsildar. He submits that the identity of the culprits has not been proved. It is also his submission that the recovery evidence placed on record is not proved and therefore, he submits that the appellants are not responsible for the offence under Section 395 IPC.

On the other hand, learned High Court Government Pleader supports the Judgment and Order and submits that the trial Court was justified in convicting and sentencing the appellants for the charge under Section 395 IPC as there is abundant evidence to sustain the order.

Learned counsel for the appellants has taken me through the oral and documentary evidence placed on record. So far as proof of the incident is concerned, it is the oral evidence of P.Ws. 1, 3 and 14, which is relevant. The evidence placed on record is by way of evidence of the eye-witnesses, who are P.Ws. 1, 3 and 14 and the evidence of recovery.

It is relevant to mention here that at the instance of accused No. 2 the gold chain [mangala sutra] - M.O.4 has been recovered, whereas at the instance of accused No. 7, the earring-M.O.5 has been recovered. So also, there is recovery of knife at the instance of accused No. 3. The leg chains [anklets] - M.O.6 were recovered at the instance of accused No. 8. To prove the recovery, the prosecution has examined P.Ws. 2 and 4 to 9 and 11 to 13 in addition to the evidence of the Investigating Officer. Recovery mahazars are at Exs. P4 to 6 and 10 and so far as the recovery is concerned, the prosecution in addition to the evidence of the attesting witnesses relies upon the evidence of the Investigating Officer as well. The spot-mahazars at the place of the incident have been drawn as per Exs. P2 and 3. At the place of the incident, M.Os. 1 to 3 were seized in the presence of P.W.2. It is relevant to note that learned counsel for the appellants only did the cross-examination of the prosecution witnesses in respect of accused No. 8 while in respect of rest of the accused, the evidence of the prosecution witnesses is not challenged. P.W.4 is the attesting witness for the mahazar-Ex. P4, whereas P.W.5 is the attesting witness for the mahazars-Exs. P5 and 6 i.e., seizure of anklets and gold chain [Mangala Sutra]. P.W.6 is a co-pancha for Ex. P6. P.W.7 is examined regarding seizure of the knife as per Ex. P8. Ex. P8 is the owner of the TATA Sumo vehicle and accused No. 5 was the driver of the said vehicle.

Anyhow, so far as accused Nos. 4 to 6 are concerned, as the case against them have been split up, there is no question of positive evidence as against the said accused. P.W.9 is an attesting witness for the mahazar-Ex. P10 has not supported the case of the prosecution and he has been treated as hostile. The scrutiny of the evidence relating to the seizure reveals that there is also evidence of the Investigating Officer, who has spoken to the recovery of the material objects, etc., P.W.13 is the co-pancha for the mahazar-Ex. P5 relating to the seizure of anklets. The scrutiny of the evidence made available with regard to recovery reveals that it is satisfactorily proved. Now, to scrutinize the evidence of P.Ws. 1, 3 and 14, they were persons who were in the vehicle. From P.Ws. 1 and 3, gold ornaments were snatched by the accused persons. P.W.14 is the child witness. From the above evidence, it is necessary to consider the question of conviction for the offence punishable under Section 395 IPC.

So far as accused Nos. 1 and 8 are concerned, it is relevant to note that they were sitting on both the sides of the victim. It is accused No. 8, who after stopping the vehicle at the place went for calling the travelers/passengers to go with the TATA Sumo stating that the vehicle is proceeding towards Pavagada and it is on his request that the victims P.Ws. 1, 3 and 14 boarded the said vehicle. On the date of the incident when the said victims were proceeding in the vehicle, this incident having taken place at that time is not seriously disputed. The only question is with regard to identity of the accused persons and the role of each of them. So far as the appellant in Crl.A. No. 393/2012 is concerned, it is he who was responsible to get P.Ws. 1, 3 and 14 in the vehicle and thereafter the incident has taken place and looking to the role of the said accused, there is nothing to disbelieve the evidence of these witnesses and in my opinion, there are no reasons to reject their evidence.

Accused No. 1 is the main accused and he was sitting on the side of the victims P.Ws. 1, 3 and 14. His identity has been proved from the evidence of P.Ws. 1, 3 and 8 and the said evidence is not challenged by accused No. 1 in the cross-examination. It is relevant to mention here that except accused No. 1, all other accused persons had engaged the lawyer. The witnesses have not been cross-examined and their evidence remained unchallenged. Therefore, I am of the opinion that the evidence as against the 1st accused has to be accepted as it is not challenged at all.

So far as the 2nd accused [appellant No. 2] is concerned, at his instance gold chain [Mangala Sutra] - M.O.4 was seized and the said chain was identified by P.W.1 as belonging to her. So, apart from the identity, there is recovery of gold chain-M.O.4 at the instance of accused No. 2 and therefore, I am of the opinion that the material placed on record is sufficient to affirm conviction of the said accused.

Accused No. 3 is appellant No. 3 and he is physically handicapped person. So far as his role is concerned, there is nothing in the evidence. It is in the circumstance, M.O.17-knife has been recovered. But, none of the witnesses have stated that it is accused No. 3, who was holding the knife and he played a role in the dacoity.

Apart from the aforesaid facts, he is a physically handicapped person and possibility of he having played a role in the incident cannot be accepted. None of the stolen articles have been seized at his instance.

So far as accused No. 7 is concerned, the earrings - M.O.5 have been seized at her instance. But, in the crime that has been alleged, in the evidence of P.Ws. 1, 3 and 14, her role is not stated. But, anyhow, the recovery of M.O.5 is at her instance. Though she cannot be held directly responsible for the offence under Section 395 IPC, there is no reason to reject the evidence of the prosecution witnesses as she is found in custody of the stolen articles immediately after the incident and therefore, she is responsible for the offence under Section 411 IPC.

Furthermore, though it is contended that identification parade was not held. It is relevant to mention here that the victim and P.W.14 had sufficient opportunity to see the accused persons while they entered the vehicle at 7.30 p.m. at the place of the incident while boarding the TATA Sumo vehicle and thereafter they traveled by sitting side by side. Some of the accused persons were sitting in the back seat of the vehicle. They have been identified by the witnesses as the real culprits and therefore, are responsible for the offence by the witnesses while they were in the police custody. Therefore, mere fact that identification parade has not been held for identity itself is insufficient to discard the evidence of the prosecution witnesses. So, taking into consideration the aforesaid material placed on record, I am of the opinion that accused No. 3 is entitled to an order of acquittal, whereas the conviction of accused No. 7 for the offence under Section 395 IPC has to be set aside holding her guilty for the offence under Section 411 IPC. The sentence as against the other accused is to be affirmed.

Consequently, Crl.A. No. 1010/2010 is allowed in part. The appeal as against appellant Nos. 1 and 2 [accused Nos. 1 and 2] is dismissed, confirming their conviction and sentence for the offence under Section 395 IPC. Accused No. 3 [appellant No. 3] is acquitted of the charge under Section 395 IPC and his conviction and sentence for the said offence is set aside. The conviction and sentence of accused No. 7 [appellant No. 4] for the offence under Section 395 IPC is set aside. She is convicted for the offence under Section 411 IPC. She has been in the custody for 11 months. Her sentence for the offence under Section 411 IPC is confined to the custodial period.

Crl.A. No. 393/2012 is dismissed, confirming the conviction and sentence of accused No. 8 [appellant] for the offence under Section 395 IPC.

The accused are entitled to the set-off under Section 428 Cr.P.C. Fine if any deposited by the accused shall be refunded.