Mr. P.R. Rajesh vs State

N. Ananda, J.—The appellant (accused No. 2) along with accused No. 1, 3 to 5 was tried for offences punishable under Sections 395, 397, 398, 402 IPC and also for offences punishable under Sections 3, 4 and 5 of the Indian Explosive Act. Accused No. 1 was absconding during trial. Therefore, case against him was separated.

The learned trial judge has convicted and sentenced accused No. 2 to 5 for an offence punishable u/s 397 IPC. Accused No. 3 to 4 have not filed appeal against judgment of conviction.

The learned counsel for appellant is absent. I have heard learned State Public Prosecutor for the State.

In Criminal Appeal No. 1680/2013 dated 07.10.2013 (in the case of Surya Baksh Singh Vs. State of Uttar Pradesh), the Supreme Court has held:-

(a) That the High Court cannot dismiss an appeal for non-prosecution simpliciter without examining the merits; (b) That the Court is not bound to adjourn the matter if both the Appellant or his counsel/lawyer are absent; (c) That the Court may, as a matter of prudence or indulgence, adjourn the matter but it is not bound to do so; (d) That it can dispose of the appeal after perusing the record and judgment of the trial court. (e) That if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the Appellant-accused if his lawyer is not present, and if the lawyer is absent and the court deems it appropriate to appoint a lawyer at the State expense to assist it, nothing in law would preclude the court from doing so; and (f) That if the case is decided on merits in the absence of the Appellant, the higher court can remedy the situation.

In view of conviction of accused No. 2 for an offence punishable u/s 397 IPC, following points would arise for determination:

1) Whether the prosecution has proved that at about 8.00 p.m., on 05.03.2001 accused No. 2 along with accused No. 1, 3 to 5 committed dacoity of gold jewels from the Meena Jewelers (Jewellery shop of P.W. 4-Vimal Raj) situate at No. 45, CMH Road, Indiranagar, Bangalore, and in the process of committing dacoity, they wielded deadly weapons on P.W. 1-Meena Bai, thereby committed an offence punishable u/s 397 IPC?

2) Whether the learned trial judge has properly appreciated the evidence on record?

3) To what order?

As already stated, accused No. 1 was absconding during trial and case against him was separated. Accused No. 3 to 5 have not preferred appeal against judgment of conviction. Therefore, it is necessary to consider the evidence adduced by prosecution in proof of guilt of accused No. 2.

P.W. 1-Meena Bai is the wife of P.W. 4-Vimal Raj. P.W. 4 is the proprietor of Meena Jewelers situate at No. 45, CMH Road, Indiranagar, Bangalore. P.W. 3-Kumari Asha and Reshma are the daughters of P.W. 1 and P.W. 4.

P.W. 1 has deposed; that on 05.03.2001 at about 7.30 p.m., she was in her shop (Jewellery shop of P.W. 4); her daughter namely P.W. 3-Asha and Reshma (not examined before the court) were also in the shop; at that time, five persons entered the shop; they were armed with deadly weapons; one amongst, them held a chopper on the neck of P.W. 1; another person held a chopper on the neck of P.W. 3-Asha; the persons threatened to kill P.W. 1 and P.W. 3; they ransacked the gold jewels and put them in a bag. When one amongst them was holding chopper on the neck of P.W. 1 she leaned backward to avoid injuries. In the process she suffered an injury on the left side of her neck and also on the left shoulder; after committing dacoity from the shop of P.W. 4, accused threw bomb in front of the shop and ran away; when those persons were running away, the police came to the place; she informed the police; the police chased and apprehended two persons who were later identified as accused No. 1 and 2; they were found in possession of 20 gold jewels. The police inspector seized the gold jewels and choppers under a mahazar.

P.W. 1 has identified the gold jewels as Mos. 3 to 16. She has identified accused No. 1 and 2 as the persons who had entered the shop to commit dacoity. P.W. 1 has deposed; that subsequently test identification parade was held and she had identified accused No. 2 in the test identification parade. P.W. 1 has deposed; that accused No. 2 was holding chopper on her neck and accused No. 2 had cut the telephone wire.

During cross-examination, P.W. 1 has deposed; that at the time of incident, her husband (P.W. 1) had gone out of the shop. She has deposed; that she could not escape from the clutches of accused. She has deposed that she had identified accused when he was apprehended by the police and also identified accused in the test identification parade.

Thus, from the evidence of P.W. 1, it is proved that accused No. 2 along with accused No. 1, 3 to 5 committed dacoity of gold jewels in the shop of P.W. 4. P.W. 1 is a house wife; she had come to the shop in the absence of her husband. The entire incident was a shock to her. She had no grudge or animosity to falsely depose against accused No. 2.

P.W. 2-Nandulal is a neighboring shop owner of P.W. 4. P.W. 2 has deposed about the incident of dacoity that took place at about 8.00 p.m., on 05.03.2001 in the shop of P.W. 4.

P.W. 2 has deposed; on hearing the sound of smashing of glasses, he came out of the shop; at that time, one person tried to assault him with a knife. P.W. 2 escaped from the blow. At that time he saw two persons standing near the shop of P.W. 4 and they were holding choppers; after five minutes, they threw bombs in front of the shop of P.W. 4; he saw in all five persons running away from the shop of Meena Jewellers; those persons had committed dacoity of gold jewels from the shop of P.W. 4; those persons ran on a cross road which was straight opposite to the shop of P.W. 2; at that time a police jeep came to the place; P.W. 2 informed that five persons who had committed dacoity of gold jewels from the shop of P.W. 4 are running on the cross road; the police chased and apprehended two persons; later, they were identified as accused No. 1 and 2. P.W. 2 has identified accused No. 1 and 2.

During cross-examination, P.W. 2 has deposed that he was not aware of names of accused who were apprehended by the police. He had seen accused No. 2 at the time incident later, before the court. P.W. 2 has deposed that P.W. 1 had suffered cut injury on her neck. The injury was bleeding. P.W. 2 is a neighboring shop owner of P.W. 4. He had no reasons to falsely depose against accused No. 2. Therefore, evidence of P.W. 1 finds substantial corroboration from evidence of P.W. 2.

P.W. 3-Asha is the daughter of P.W. 1 and P.W. 4. P.W. 3 has deposed; that on 05.03.2001 at about 7.00 p.m., her father (P.W. 4) wanted to go out, therefore, he asked P.W. 1 and P.W. 3 to sit in the shop; on that day, at about 7.00 p.m., or 8.00 p.m., five persons armed with deadly weapons entered the shop; out of five persons, two persons who were armed with choppers were standing near the door of the shop; the other two persons who had entered the shop smashed the showcase glasses of the shop and committed dacoity of gold jewels; when P.W. 3 tried to contact the police over the phone, one amongst them held a knife on the neck of P.W. 3 and threatened her by saying if she were to make a phone call to the police, she would be killed; P.W. 3 has identified accused No. 2 as the person who had kept the knife on her neck; those persons committed robbery of gold jewels; after going out of the shop, they threw a bomb in front of the shop and left the place; immediately the police jeep came there; P.W. 3 informed the police that accused who had committed robbery had run across the cross road in front of the shop; the police chased the accused.

During cross-examination, P.W. 3 has reiterated the version given in examination-in-chief. P.W. 3 has deposed that accused No. 1 and 2 were apprehended and brought to their shop; she had identified them and came to know their names as Rajesh and Ramesh. P.W. 3 has deposed; that accused were talking in Tamil and she is able to understand Tamil but she could not be able to speak. P.W. 3 has deposed; that she had identified the accused in the test identification parade held by the Tahsildar. She had also identified accused No. 2 before the court.

P.W. 3 is the daughter of P.W. 1 and P.W. 4. She was present at the time of dacoity. She had ample opportunity to see accused No. 2. The police had chased and apprehended accused No. 2. Soon after the incident when he was brought back, P.W. 3 had identified accused No. 2. Accused No. 2 was found in possession of certain items of stolen gold jewellery. Therefore, there are no reasons to suspect the evidence of P.W. 3.

P.W. 4-Vimal Raj is the owner of Meena Jewellers. P.W. 4 has deposed; at the time of incident, he had gone out. After he came there, he came to know that some persons had committed dacoity of gold jewels. The police had apprehended two persons who were later identified as accused No. 1 and 2. P.W. 4 has identified accused No. 2 before the court. He had also identified the gold ornaments seized from the possession of accused No. 2.

During cross-examination, P.W. 4 has reiterated the version given in examination-in-chief. P.W. 4 has deposed; that he had taken his wife (P.W. 1) to hospital as she had suffered injury on her neck. He has denied the suggestion that gold jewels were not seized from the possession of accused No. 2. Accused No. 2 was a total stranger to P.W. 4. The incident of dacoity of gold jewels from the shop of P.W. 4 has not been controverted by the accused. It is difficult to conceive that P.W. 14 had concocted dacoity of gold jewels from his shop. He had no grudge against accused No. 2 to give false evidence against accused No. 2.

The evidence of P.Ws. 1 to 4 finds substantial corroboration from the evidence of P.W. 9-Suryanarayana, the then Head Constable of Indiranagar Police Station; P.W. 10-Mahadev, Jeep driver of Assistant Commissioner of Police of Indiranagar Police Station.

P.W. 13-Siddaguru was working as Assistant Sub-inspector of Indiranagar Police Station. He has given evidence about dacoity which had taken place in the shop of P.W. 4 at about 8.00 p.m., on 05.03.2001. He had registered the first information report.

P.W. 18-S. Badrinath was working as PSI of Indiranagar Police Station. P.W. 18 has deposed; that on 05.03.2001, Police Inspector Ashwathanarayan, P.W. 18 and other constables were patrolling in Indiranagar Police Station jurisdiction; at about 8.00 p.m., they received wireless message that a dacoity had taken place in CMH Road and some persons have attacked some persons in Meena Jewellery shop and robbed gold jewels; immediately, they rushed to the spot; on enquiry, they were informed that accused are running in the opposite lane; P.W. 18 had chased the accused and apprehended two persons; later, he had identified accused No. 2-Rajesha as one amongst two persons who were apprehended soon after the incident of dacoity. P.W. 18 has deposed; that he had brought accused No. 1 and 2; P.W. 1 has identified them.

Thus, the prosecution has proved that accused No. 2 along with other accused had committed dacoity in the shop of P.W. 4, in the process of dacoity, they had caused injury to P.W. 1 with deadly weapons. Accused No. 2 was apprehended soon after the dacoity and stolen gold jewels were recovered from the possession of accused No. 2. Accused No. 2 has been identified by P.Ws. 1, 2 and 3. In the circumstances, learned trial judge was justified in convicting accused No. 2 for an offence punishable u/s 397 IPC. There are no reasons to interfere with the impugned judgment. The appeal is dismissed.