Sunilkumar @ Chikka and Others - Appellants @HASH State of Karnataka

H. Billappa, J. - This appeal by the appellants-accused 1 to 5 is directed against the judgment and order dated 3-11-2012 passed by the District and Sessions Judge, Ramanagara in S.C. No. 86 of 2010.

By the impugned judgment and order, the Trial Court has convicted the appellants-accused 1 to 5 for the offences punishable under Sections 395 and 398 of Indian Penal Code, 1860. For the offence punishable under Section 395 of IPC, the appellants-accused 1 to 5 have been sentenced to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 20,000/- each and in default of payment of fine, to undergo RI for a period of one year. For the offence punishable under Section 398 of IPC, the appellants-accused 1 to 5 have been sentenced to undergo RI for a period of seven years and to pay fine of Rs. 10,000/- each and in default of payment of fine, to undergo RI for a period of six months. The accused 6 has been acquitted of the offence punishable under Section 411 of IPC.

Aggrieved by the conviction and sentence passed by the Trial Court, the appellants-accused 1 to 5 have filed this appeal.

Briefly stated the case of the prosecution is as follows:

That P.W. 1-Munjane Satya is the complainant. Ex. P. 1 is the complaint. It is stated, in Ex. P. 1, that on 8-8-2008, at about 10.15 p.m., the complainant was dropped near Satellite stand in his office vehicle. Thereafter, the complainant came to Kengeri in BMTC bus. At about 10.30 p.m. One Indica Car was standing there. The complainant asked to give drop to Bidadi. He was allowed to board the car. There were four persons in the car aged about : 20 to 25 years. Along with the complainant one more person also boarded the car. They were made to sit in the middle. After about 3 or 4 minutes, except the driver, the other three persons showed chaku (knife) and choori and asked the complainant to give his belongings. The complainant shouted at them. The accused persons increased the volume of the tape recorder. Thereafter, the accused persons assaulted the complainant on his face, head, legs and neck and snatched away three gold rings, one chain with dollar, cash of Rs. 20,000/-, hand watch, Modicare chain and two Nokia mobile sets. Thereafter, in front of a Kalyana Mantapa behind Toyota Cross, the complainant was pushed down from the car. So also the other person. Thereafter, the complainant went to the Police Station in an auto-rickshaw and lodged the complaint. It is stated, the accused persons were talking in Kannada and also in Tamil language. Based on Ex. P. 1, a case in Crime No. 385 of 2008 of Bidadi Police Station has been registered for the offence punishable under Section 394 of IPC. After investigation, charge-sheet has been filed for the offence punishable under Sections 395 and 411 of IPC against the appellants herein and accused 6.

At the trial, the prosecution has examined in all 16 witnesses i.e., P.Ws.1 to 16 and Exhibits P. 1 to P. 25 and M.Os. 1 to 8 have been marked. On behalf of the accused, no evidence has been adduced.

The Trial Court on appreciation of the evidence on record has held that the appellants-accused 1 to 5 are guilty of the offences punishable under Sections 395 and 398 of IPC and has sentenced them as stated in para 2. The accused 6 has been acquitted of the offence punishable under Section 411 of IPC.

Aggrieved by the conviction and sentence passed by the Trial Court, the appellants-accused 1 to 5 have filed this appeal.

The learned Counsel for the appellants contended that the impugned judgment and order cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that Ex. P. 1 shows that there were only four persons in the car, but charge-sheet has been filed against six persons. It clearly shows that a false case has been foisted against the appellants. Further he submitted that the evidence of P.Ws. 1 and 2 is inconsistent. The recovery is not proved. Therefore, the Trial Court was not justified in convicting the appellants. Further he submitted that though no charge was framed for the offence punishable under Section 398 of IPC, the Trial Court has convicted the appellants for the offence punishable under Section 398 of IPC which is illegal and cannot be sustained in law. He also submitted that the incident has occurred during night time. The accused were strangers. Therefore, test identification parade should have been held. In the absence of that, the Trial Court was not justified in convicting the appellants. He also submitted that the articles were seized in some other case. It is not clear, how P.W. 1 identified M.Os. 1 to 7. Therefore, the Trial Court was not justified in convicting the appellants. They are entitled for an order of acquittal. In the alternative, he submitted that if this Court, for any reason, holds that the appellants are guilty of any offence, then, the order passed in Cri. P. No. 6346 of 2015 may be extended to this case also and direct that the sentence shall run concurrently. Further he submitted that the sentence imposed is unreasonable and it may be modified suitably.

As against this, the learned Government Pleader submitted that the impugned judgment and order does not call for interference. He also submitted that the Trial Court on proper consideration of the material on record has rightly convicted the appellants for the offences punishable under Sections 395 and 398 of IPC and therefore, the impugned judgment and order does not call for interference. He also submitted that P.Ws. 1 and 2 have deposed regarding the incident. They have stated that all the accused persons participated in the alleged crime. They have identified all the accused before the Court. The discrepancy in the complaint cannot be a ground to reject the testimony of P.Ws. 1 and 2. Their evidence is trustworthy. It shows that all the accused have participated in the alleged crime and robbed P.Ws. 1 and 2. Further he submitted that though P.Ws. 5,6, 11 and 12 have turned hostile, there is enough evidence on record to sustain the conviction. The evidence on record clearly establishes the guilt of the accused i.e., the appellants herein. However, he fairly submitted that there was no charge for the offence punishable under Section 398 of IPC. He, therefore, submitted that the impugned judgment and order does not call for interference.

I have carefully considered the submissions made by the learned Counsel for the parties.

The points that arise for my consideration are:

(1) Whether the Trial Court was justified in convicting the appellants for the offence punishable under Section 398 of IPC when there was no charge?

(2) Whether the conviction and sentence passed by the Trial Court for the offence punishable under Section 395 of IPC can be sustained in law?

Point No. 1. -

It is relevant to note, the case is registered against unknown persons for the offence punishable under Section 394 of IPC. After investigation charge-sheet has been filed against the appellants for the offences punishable under Section 395 of IPC. Against A6 charge-sheet has been filed for the offence punishable under Section 411 of IPC. The charge has been framed against the appellants i.e., accused 1 to 5 for the offence punishable under Section 395 of IPC. Against A6, the charge has been framed for the offence punishable under Section 411 of IPC. A6 has been acquitted. Though there was no charge against the appellants for the offence punishable under Section 398 of IPC, they have been convicted for the offence punishable under Section 398 of IPC which is not correct. There was no opportunity for the appellants to deny or defend the charge under Section 398 of IPC. Therefore, the Trial Court was not justified in convicting the appellants for the offence punishable under Section 398 of IPC. The conviction and sentence passed by the Trial Court for the offence punishable under Section 398 of IPC cannot be sustained in law and it is liable to be set aside.

Point No. 2. -

Insofar as charge under Section 395 of IPC is concerned, the prosecution has examined in all 16 witnesses i.e., P.Ws. 1 to 16. P.Ws. 5, 6, 11 and 12 have turned hostile. The other witnesses have supported the prosecution case.

The material witnesses are P.Ws. 1, 2, 3, 4, 7, 8, 9, 10, 13, 14 and 15.

P.W. 1 is the complainant. He has deposed that he has seen accused 1 to 5 and he knows P.W. 2. On the date of alleged incident, he left his office at 9.00 p.m. He was dropped at Satellite Stop. From there he went to Kengeri in BMTC bus at about 10.30 p.m. There were no vehicles to go to Bidadi. At about 10.45 p.m., an Indica Car bearing No. KA-02-C-4947 came and stopped there. At that time, the accused 1,4 and 5 i.e., appellants 1, 4 and 5 got down from the car and told that they will give drop to passengers who are going towards Mandya, Mysuru and Ramanagar. The complainant asked for a drop to Bidadi. At that time, P.W. 2-Narasimhaiah asked for a drop to Kaniminike. They were made to sit in the middle of back seat. In the front seat, there were three persons. In the back seat, P.Ws. 1 and 2 and two others were sitting. When the car came near Vishwa Okkaligara Sangha Compound, A2-Aruna Mohana, A3-Kumara and A4-Ranjith showed the knife. Then A2-Aruna Mohana asked P.W. 1 to give all the valuables with him. The complainant was frightened. He refused to give the articles with him. At that time, P.W. 2 told that he has got Rs. 500/- with him and requested the accused to take that amount and leave him. When the car came near Kumbalagodu, A2-Aruna Mohan snatched away gold chain of the complainant, A4-Ranjith snatched away 2 gold rings and A5-Prasad snatched away one gold ring. The accused persons robbed his two mobiles, watch and panchaloha chain. A4-Ranjith robbed cash of Rs. 20,000/-. When the complainant shouted, the accused increased the volume of the tape recorder. Thereafter, the complainant was assaulted by the accused persons. When the car came near the Toyota Company, in front of Kalyana Mantapa, the car was slowed down and P.W. 1 was pushed out of the car and he fell down. Similarly P.W. 2 was also pushed out of the car. When the complainant asked P.W. 2 to join him to lodge the complaint, P.W. 2 went away saying that some how he has survived. Thereafter, P.W. 1 went to the Police Station and lodged tire complaint as per Ex. P. 1. His signature is at Ex. P. 1(a). Thereafter, he was taken to the hospital. He stayed in the hospital for about one week.

Further, P.W. 1 has stated that on 22-9-2008, the Inspector of Byatarayanapura Police Station informed him that he has arrested the accused persons. P.W. 1 went there and identified the accused persons and told the Inspector that they are the persons who robbed him. P.W. 1 was shown gold articles which were seized. He has identified his articles as M.Os. 1 to 7. He has also identified M.O. 8-car.

In the cross-examination of P.W. 1, it is elicited that the accused persons were seen by him for the first time in the car and thereafter, in the police station. In the complaint no identification marks have been mentioned. The Station House Officer showed the accused persons and thereafter, he identified the accused persons. He has denied the suggestion that M.Os. 1 to 7 do not belong to him and he is making a false claim.

P.W. 2 has deposed that he knows accused 1 to 5. P.W. 1 is also known to him. On 8-8-2008, at about 10.00 p.m., he was waiting for the bus. At about 10.45 p.m., the accused persons before the Court came in Indica Car. Two of them got down from the car and told that they would give drop to the passengers going towards Bidadi. P.W. 1 and himself boarded the car. After crossing Nice Bridge, the accused persons showed knife and asked to give the valuables with them and took 1500/- from him and also snatched away, his mobile phone. Thereafter, he went to his place in a lorry. Next day, he lodged the complaint in the Bidadi Police Station. He showed the place of occurrence. Ex. P. 2 is the spot mahazar and his signature is at Ex. P. 2(a). He has stated that the accused persons robbed his money and gold articles of P.W. 1. Thereafter, the accused persons pushed P.W. 1 and himself from the car.

In the cross-examination of P.W. 2, it is elicited that the accused tied clothes to their face. He gave a written complaint in the police station on the next day. By the time he got up and saw P.W. 1 he was not there. P.W. 1 was not known to him prior to the incident. He has denied the suggestion that the incident did not occur as deposed by him. The evidence of P.W. 2 with regard to the identification of the accused is not challenged.

P.W. 3 has deposed that after receiving the complaint from P.W. 1 at about 11.30 p.m., he registered a case in Cri. No. 385 of 2008 for the offence punishable under Section 394 of IPC and sent FIR to the Court. Ex. P. 1 is the complaint and his signature is at Ex. P. 1(b). FIR is marked as Ex. P. 5 and his signature is at Ex. P. 5(a).

P.W. 4 has deposed that the place of incident was shown by P.W. 2 and spot mahazar was conducted as per Ex. P. 2. His signature is at Ex. P. 2(b).

P.W. 5 is a witness to seizure of Indica Car. He has not supported the prosecution case. However, he has stated that his signature was taken at Byatarayanapura Police Station. He has signed Ex. P. 6 and his signature is at Ex. P. 6(a).

P.W. 6 is a recovery witness. He has not supported the prosecution case. However, he has stated that he signed Ex. P. 8 and his signature is at Ex. P. 8(a). He does know the contents of Ex. P. 8.

P.W. 7 has deposed that on 18-9-2008, when they were doing patrolling duty, at about 2.30 a.m., the Inspector received information stating that some people are preparing to commit dacoity. They went there and came to know that the accused persons were preparing to rob the people. They apprehended the accused persons. On enquiry, the accused persons revealed about the earlier incident. Three knives, one long, one club and insulation tape were seized.

P.W. 8 is the Police Inspector of Byatarayanapura Police Station. He has deposed that on 18-9-2008, at about 11.00 p.m., along with his staff he was doing patrolling duty on Mysuru Road. At about 2.00 a.m., they received information that about five persons are preparing to commit dacoity. Thereafter, P.W. 8 and his staff went there along with the panchas. They came to know that the accused persons were preparing to commit dacoity and apprehended them. On enquiry, the accused persons revealed about the earlier incident. They revealed their names as Sunil Kumar alias Chikka, Arun Mohan, Kumar, Ranjith and Prasad. Thereafter, three knives, one long and one club were seized. The car was also seized. Thereafter, a case in Cri. No. 402 of 2008 for the offence punishable under Sections 399 and 402 of IPC was registered.

Further he has deposed that the appellants-accused 1 to 5 volunteered information. On 21-9-2008, A4-Ranjith gave voluntary statement as per Ex. P. 10. Pursuant to that, A4 led them to his house at Pantharapalya and produced two Nokia mobile phones, one Titan watch and also other articles. The mahazar was drawn as per Ex. P. 8 and the articles were seized. He has identified M.Os. 5 to 7. Thereafter, A4 gave voluntary statement as per Ex. P. 11. Pursuant to that, A4 led them to Pawn Broker''s shop of Ponnulal Jain and one gold ring with blue stone was seized under Ex. P. 12. It is M.O.3. Thereafter, on 22-9-2008, A5-Prasad gave voluntary statement as per Ex. P. 13. Pursuant to that, A5 led them to his house in Marutinagar and produced one gold ring with green stone. It was seized under Ex. P. 14 and his signature is at Ex. P. 14(a). A5 has also produced some other articles pertaining to some other cases. They were also seized. P.W. 8 has identified gold ring as M.O. 2.

Further he has stated that on 19-9-2008, the accused 1 volunteered information as per Ex. P. 15. He took them and panchas to Ramdev Pawn Broker shop. A person who was in the shop produced the gold ring and gold chain with dollar. It was seized under Ex. P. 16. They are M.Os. 1 and 4. He has deposed that he called the complainant to the police station and asked him to identify the articles and also the accused persons. The complainant identified the articles and also accused 1 to 5. Further statement of the complainant was recorded.

In the cross-examination of P.W. 8, nothing worth noticing has been elicited.

P.W. 9 is one Sunilkumar. He has deposed that car was seized under Ex. P. 6. His signature is at Ex. P. 6(b). He has identified the photos of the car Exhibits P. 3 and P. 4.

P.W. 10 has deposed that on 11-8-2008, he took up further investigation from PSI Mallikarjun of Bidadi Police Station. On 13-9-2008, he asked P.W. 2 to appear in the police station. On 7-11-2008, a Constable from Byatardyanapura Police Station came to their police station and produced the articles seized in Crime No. 402 of 2008 which are related to this case and handed over three gold rings, one Lakshmi dollar chain, two mobile phones and also witness statements and documents. The articles were subjected to P.F. No. 388 of 2008. Thereafter, on 18-11-2008 he called the owner of Sohanlal shop from whom one Lakshmi dollar gold chain and one gold ring were recovered. Thereafter, after investigation he filed the charge-sheet against the appellants and A6.

P.W. 11 is the witness to Ex. P. 14. He has not supported the prosecution case. However, he has stated that he signed Ex. P. 14 and his signature is at Ex. P. 14(b).

P.W. 12 is a witness to Exs. P. 14 and P. 16. He has not supported the prosecution case, but he has stated that he signed Exs. P. 14 and P. 16. His signatures are at Exs. P. 14(c) and P. 16(b).

P.W. 13 is the owner of M/s. Pannalal Jain Pawn Broker shop. He has deposed that on 21-9-2008, at about 3.00 p.m., the police went to his shop along with the accused 4-Ranjith. On enquiry, he told that on 13-9-2008, the accused 4-Ranjith had pledged gold ring with him and he produced it. The police seized the gold ring under Ex. P. 12. His signature is at Ex. P. 12(b). He as identified the gold ring as M.O. 3. However, he has stated that he cannot identify the accused 4-Ranjith in the video as it was four years'' back.

P.W. 14 has deposed that accused 4-Ranjith produced gold ring, gold Chain and mobile phones from his hut. He has identified M.Os. 5 to 7. He has stated that M.Os. 5 to 7 were seized under Ex. P. 8-mahazar. He has identified his signature as Ex. P. 8(b). He has identified the accused also.

P.W. 15 is the owner of the car bearing No. KA-02-C-4947. He has deposed that the accused 5-Prasad was his driver. He came to know that his car was used in the commission of dacoity. The accused admitted it. The police seized the car under Ex. P. 6-mahazar. His signature is at Ex. P. 6(c). He has identified the car by seeing the photographs-Exhibits P. 3 and P. 4. He has stated that the car is sold to somebody. The accused 5 was working with him as driver since about one year.

In his cross-examination, it is elicited that he had sent the car to Cabs India Company on hire basis. Without his permission, the car was not going outside.

P.W. 16 is Dr. Syed Salimuddin. He has deposed that P.W. 1-Munjane Satya was examined by Dr. Ananth Kishan, Neurosurgeon. He has noticed three injuries. They are simple in nature. He has produced the inpatient record. It is marked as Ex. P. 21.

In his cross-examination, P.W. 16 has stated that he has not examined the patient. In Exhibits P. 20 and P. 21, the nature and age of wounds has not been mentioned. He has denied the suggestion that false documents have been created.

Ex. P. 1 is the complaint. Ex. P. 2 is the spot mahazar. Exhibits P. 6, P. 8, P. 12, P. 14 and P. 16 are the seizure mahazars. Through Exhibits P. 6, P. 8, P. 12, P. 14 and P. 16, the car and stolen articles have been seized.

From the evidence on record, it is clear, P.Ws. 1 and 2 have deposed regarding the incident. They have stated that on the date of alleged incident, P.Ws. 1 and 2 boarded the car at about 10.45 p.m. The accused persons robbed P.W. 1 of his gold rings, gold chain with dollar, cash of Rs. 20,000/-, hand watch, panchaloha chain, two Nokia mobile sets. Cash of Rs. 500/- was robbed from P.W. 2. P.W. 1 has deposed regarding the overt acts of the accused persons. In fact, he has struggled with them. P.W. 2 has also deposed that all the accused persons participated in the alleged crime. P.Ws. 1 and 2 have identified the accused persons i.e., A1 to A5 before the Court.

It was contended by the learned Counsel for the appellants that no test identification parade has been conducted and it is fatal to the prosecution case. He also submitted that in the complaint it is stated that there were only four accused persons in the car. Their description is not given. Therefore, it was necessary to conduct test identification parade. It is fatal to the prosecution case.

I do not find any merit in the contention of the learned Counsel for the appellants, for the reason, that the incident has occurred at about 10.30 or 10.45 p.m. When P.Ws. 1 and 2 boarded the car, some of the accused persons have got down from the car and told P.Ws. 1 and 2 that they would give drop to the persons who are going towards Mandya, Mysuru and Ramanagar. Thereafter, P.Ws. 1 and 2 have boarded the car. In the car also, they have seen the accused persons very closely. In fact, P.W. 1 has struggled with the accused persons. He has deposed regarding the overt acts of the accused persons. P.W. 2 has stated that the accused persons robbed P.W. 1 and A1 took cash and mobile from him. The evidence of P.Ws. 1 and 2 shows that all the accused persons have participated in the alleged crime. No doubt, in a case like this, this is desirable that test identification parade is conducted. However, that cannot be a reason to disbelieve the evidence of P.Ws. 1 and2 in this case. P.Ws. 1 and 2 have seen the accused persons very closely. P.W. 1 has struggled with them. In the circumstances, the evidence of P.Ws. 1 and 2 can be believed. It shows that all the accused persons have participated in the alleged crime.

Pursuant to the voluntary statement of the accused persons, stolen articles-M.Os. 1 to 7 have been recovered. Ex. P. 6 is the mahazar dated 19-9-2008. At the instance of accused 5, Indica Car bearing No. KA-02-C-4947 said to have been used in the alleged crime has been recovered as per Ex. P.6, Ex. P. 8 is the mahazar dated 21-9-2008. At the instance of accused 4, M.Os.5 to 7 have been recovered. Ex. P. 12 is the mahazar dated 21-9-2008. At the instance of accused 4, a gold ring-M.O. 3 has been recovered from the Pawn Broker Shop. Ex. P. 14 is the mahazar dated 22-9-2008. At the instance of accused 5-Nokia mobile phones, wrist watch and gold articles have been recovered from the house of accused 5. Ex. P. 16 is the mahazar dated 22-9-2008. At the instance of accused persons, some gold articles have been recovered. P.Ws. 5, 6, 8,9,13 and 14 are the mahazars witnesses. P.W. 5 has not supported the prosecution case. But, he has admitted his signature in Ex. P. 6-mahazar. Similarly, P.W. 6 has not supported the prosecution case, but he has admitted his signature in Ex. P. 8-mahazar. P.W. 7 has deposed that on 18-9-2008, while doing patrolling duty, the accused persons were apprehended and weapons were recovered from them. P.W. 8 has deposed that on 18-9-2008, while doing patrolling duty at Mysuru Road, he received information that about five persons armed with weapons are preparing to rob the people near NICE road junction. Along with his staff, he went there and noticed that the appellants were armed with deadly weapons and they were planning to rob people. The appellants were apprehended. Thereafter, pursuant to the voluntary statement of accused 4 as per Ex. P. 10, Nokia mobile, Titan watch and other articles were recovered under Ex. P. 8-mahazar. He has identified M.Os. 5 to 7. Further he has deposed that pursuant to the voluntary statement of accused 4-Ranjith as per Ex. P. 11, a gold ring was recovered from Pawn Broker shop. Ex. P. 12 is the mahazar. The gold ring is identified as M.0.3. On 22-9-2008, pursuant to the voluntary statement of accused 5 as per Ex. P. 13, a gold ring and other articles were recovered under Ex. P. 14-mahazar. The gold ring is identified as M.O.2, Further he has stated that on 19-9-2008, pursuant to the voluntary statement of accused 1, as per Ex. P. 15, a gold ring and chain with Laxmi dollar were recovered under Ex. P. 16-mahazar. They are M.Os. 1 and 4. He has stated that the complainant was called to the police station and he identified M.Os. 1 to 5.

P.W. 9 has deposed that the car was seized under Ex. P. 6. Exhibits P. 3 and P. 4 are the photographs. He has identified his signature as Ex. P. 6(b). P.W. 11 has not supported the prosecution case, but he has admitted his signature in Ex. P. 14. P.W. 12 also has not supported the prosecution case, ''out has admitted his signature in Exhibits P. 14 and P. 16-mahazars. P.W. 13 is the owner of Pawn Broker shop. He has deposed that on 21-9-2008 at about 3.00 p.m., Byatarayanapura Police went to his shop along with the accused 4. On 13-9-2008, the accused 4 had pledged one gold ring. He produced the gold ring before the police and it was seized under Ex. P. 12. Ex. P. 12(b) is the signature of P.W. 13. Tire book is also produced. It is marked as Ex. P. 19.

P.W. 14 has deposed that the accused 4 produced from his hut gold ring, chain and mobile phones i.e., M.Os. 5 to 7. They were seized under mahazar-Ex. P. 8. His signature is at Ex. P. 8(b).

P.W. 15 is the owner of the car. He has deposed that he is the owner of Tata Indica bearing No. KA-02-C-4947. Accused 5 was working as driver with him. He came to know that the car was used in the commission of dacoity. The car was seized under Ex. P. 6-mahazar. His signature is at Ex. P. 6(c).

From the evidence of P.Ws. 5, 6, 8, 9, 13 and 14, it is clear, the stolen articles have been recovered at the instance of the accused persons. The articles relating to this case i.e., M.Os. 1 to 7 have been recovered at the instance of the accused persons. The accused persons have not explained as to how they came in possession of M.Os. 1 to 7 belonging to P.W. 1. Therefore, adverse inference has to be drawn against the accused persons under Section 114, Illustration (a) of the Indian Evidence Act, 1872. There is ample evidence on record to show that the accused persons have robbed P.Ws. 1 and 2. The articles have been recovered at the instance of the accused persons. P.W. 1 has identified M.Os. 1 to 7. Therefore, the Trial Court was justified in convicting the appellants-accused 1 to 5 for the offence punishable under Section 395 of IPC. However, the Trial Court was not justified in convicting the appellants-accused 1 to 5 for the offence punishable under Section 398 of IPC. The Trial Court has sentenced the appellants-accused 1 to 5 for the offence punishable under Section 395 of IPC to undergo RI for a period of ten years and to pay fine of Rs. 20,000/- each and in default of payment of fine, the appellants shall undergo RI for a period of one year. The sentence needs to be modified in the circumstances of the case.

Accordingly, the criminal appeal is allowed in part. The conviction and sentence passed by the District and Sessions Judge, Ramanagar in S.C. No. 86 of 2010 for the offence punishable under Section 398 of IPC is hereby set aside.

The conviction passed by the Sessions Court for the offence punishable under Section 395 of IPC is confirmed.

The learned Counsel for the appellants submitted that the sentence imposed is unreasonable and therefore, it may be modified. Further he submitted that in Cri. P. No. 6346 of 2015 this Court has directed that the sentence of imprisonment passed against the appellants-accused 1 to 5 in S.C. Nos. 145 to 149, 119 and 68 of 2009 and 205 of 2010 shall run concurrently. Therefore, it may be directed that the sentence of imprisonment in this case shall run concurrently with the sentence of imprisonment in the above cases.

The learned Government Pleader submitted that the sentence imposed is reasonable. The appellants are habitual offenders. Therefore, the sentence cannot be modified.

I have carefully considered the submissions made by the learned Counsel for the parties.

The appellants are aged between 24 to 31 years. They have been sentenced to imprisonment in other cases. The maximum sentence imposed in the other cases is seven years rigorous imprisonment. Therefore, in this case also, it is appropriate to impose seven years rigorous imprisonment instead of ten years and to direct the appellants to pay fine of Rs. 10,000/- each instead of Rs. 20,000/- each.

Accordingly, the sentence imposed in this case for the offence punishable under Section 395 of IPC is modified as follows:

The appellants-accused 1 to 5 shall undergo RI for a period of seven years and shall pay fine of Rs. 10,000/- each and in default of payment of fine, the appellants shall undergo RI for a period of six months.

In Cri. P. No. 6346 of 2015, this Court has directed that the sentence of imprisonment passed against the appellants-accused 1 to 5 in S.C. Nos. 145 to 149,119 and 68 of 2009 and 205 of 2010 shall run concurrently. Therefore, it is appropriate to direct that the sentence of imprisonment passed in this case shall run concurrently with the sentence of imprisonment passed in S.C. Nos. 145 to 149,119 and 68 of 2009 and 205 of 2010. It is directed accordingly.

The appellants shall be entitled to the benefit of Section 428 of Criminal Procedure Code, 1973. The period of detention shall be reckoned from the date of detention in this case.

Out of the fine amount, after it is deposited, a sum of Rs. 25,000/- shall be paid to P.W. 1 and a sum of Rs. 5,000/- shall be paid to P.W. 2.

Send a copy of this judgment along with copy of the judgment passed in Cri. P. No. 6346 of 2015 to the concerned Jail Authorities for necessary action.