IN THE RIOE COURT OE KARNATAKA AT BANGALORE
DATED THIS THE 1" DAY OF SEPTEMBER, 2009
BEFORE:
THE HON'BLE MR. JUSTTCE A.s. PAORRARURE _
CRTMTNAL REVTSTON PETITION No.48? gg 2005"»
BETWEEN:
1. Eranna,
S/o. late Eranna, »""-
Aged about 44 years, I
2. Umesha,
S/o. Eranna,
Aged about 26 years, EKEV. "_E"-EEfITioNER/S'
{By M/S. H.Devendfappa.&mAsepoeE; AdVf]"
AND:
The State of KaEnataka;'
Kallambella"POiiOe,'
._ By it; Public Prosecutor. N RESPONDENT/S
.{Ey_5:E..B.Balakrishna, Adv.]
'k'k7'r
"«Th;e aCrl.R.P. is filed u/Section 397 Cr.P.C.
._ gprayiuq to set aside the Order dt. 5.11.99 passed by
"»V£he c.J.'{J:.on.g and JMFC., Sira, in C.c. No.%39/97
4vfandEVthe Order' dt. 24.2.05 passed. by the 11 Addl.
"_'S{J.,= Tumkur, in Crl.A. No.55/99 and acquit the
'«*petitioners.
This Crl.R.P. coming on for Finai Hearing this
day, the court made the following:
2 Crl.RP 487/O5
ORDER
The petitioners have challenged their
conviction and sentence for the offence punishable
under Sections 392 and 394 lPC., on a trial held by
the JMFC., Sira and confirmed in the appeal hetore_
the Sessions Judge, Tumkur.
2. The facts relevant tor ph§i§u;§¢sé”o: this
revision are as under: ‘ i
I will be referring the parties as per their
rank before the Trig; Court’ tog. the Mpurpose of
conveniences d”
The petitioners_herein are the accused 1 and 2
before” the ‘aria: Court. P.Ws.l and 2 are the
‘spouses and were under employment of P.W.4. They
Kwere “iaogifig, after the land of P.W.4 and were
residing inCa room, wherein an eiectric motor was
i’~pdinstalied. On 11.07.1996, they were sleeping in the
*fiaid room by just closing the door without latching
‘o,” and there were electric lights inside and. outside
drthe room. At about 1.00 a.m., the accused knocked
st
and by pushing the door entered the room. The i
accused asked the complainant to give the valuafifiéfiww
3 Crl.RP 487/O5
kept in the room and the 2″ accused took the metal
box [trunk] containing some amount and while going
out, he snatched the ear rings of POWA2 and caused_
injury and her ear lobes were torn. »w1n the metalu
box, the complainant had :kepti:.an leamountiaiof
Rs.l,OO0–0O and there were old ear rings and clethes*s
in the said box. Totally’: 1§>”‘:~m«>:i5ierty lv§7OV.5″1Vi’}’i~xv’:Rs:’.§2,Ht3GOw-O0
was robbed by the accused ineluding the amount of
Rs.l,OOOmOO kept in in these
circumstances? «that ithedicomblainant iaccompanied by
P.W.2 i.e.g”hiSmwifiestafterCyisiting the hospital
approached _ *§ih}fieStatioh”~ «douse Officer of
Kallambiella’ and submitted his
complaint-Ex;Pl,d_fihichfl=came to be registered in
_ Crime No;79/l§96 under Section 384 IPC and sent the
Vb,eomplainttEx}Pl and the FER to the Magistrate. He
visited the scene of occurrence and in the presence
dd of the attesting witnesses held the spot Hmhazarm
“sffgExtP2 and seized the metal box [trunkj and the towel
&’=trom_the said place. On i3.G7.l996 the accused were
R*,broduced before him and he recorded their voluntary
‘”.u_statement. The 1″ accused ‘volunteered tx> produce
the ear~rings kept in the metal box and he led the
Police and the attesting witnesses to his house and
4 Crl.RP 487/O5
produced M.O.2eearerings from the metal box. He
seized them under mahazar~Ex.P5. Exs.P6 and 7 are
the voluntary statements of the accused recorded by
P.W.9. P.W.8 continued the investigation’ and
secured the injury certificate–ExiP3_ land ireni%
completion of the investigation ‘filed$.the_ charge
sheet against the accused.’
During the trial, the .prosecution ,examined
P.Ws.1 to E9 and in their evidence got Hérked the
documents Exs.P1 to ill andQ’M,©s}i rand 2. The
Section 313 €%%PJ&£’ They have taken the defence of
total denial and have not led any defence evidence.
_Qn appreciation of the material on record, the
.7, trial Court kconvicted. the accused. for the offence
pu;1ii’shi§LvJf’e..,,V_ under Sections 392 and 394 IPC’ and
V ordered “to? undergo rigorous imprisonment for a
‘”;period of 3 years for each of the offences and to
°_pay. the fine and to undergo default sentence.
i”wuAggrieved by the conviction and sentence, the
{accused has approached the Sessions Court in
Criminal Appeal No.55/1999 and the said appeal came
to be heard and dismissed on merits. Aggrieved by
5 Crl.RP 487/O5
the concurrent findings of conviction and sentence,
the petitioners have approached this Conrttain
revision.
3. I have heard the learned cpunsel for the
petitioners as also the learnedKGovernmenfi.pleaderfi*
4. The point that arises for my consideration
is;
Whether the Jndgment and firder of
conviction gof the “petitioners/accused
for théf_iofi;én¢ei*_pnnishabie under
Sections t3§gV andiA3§smtiPC and the
sentefi¢é<j:né%éa§% as_ ordered by the
trial Court and confirmed in the appeal
is illegal and perverse?
“5. Vit is the contention of the learned counsel
for the petitioners that both P.Ws.1 and 2 are the
employees.. of P.W.4wRamakrishna, whereas the
f’.,petitioners/accused, are the employees of one
‘”._Karegowda and there was enmity between both. these
V*, employers and therefore, she contends that the
V’*. “accused were falsely implicated in this crime. So
also, it is her contention that except the evidence
of P.Ws.l and 2, who are the interested witnesses,
safe
6 Crl.RP 487/O5
no material is placed on record by the prosecution
though available to prove the guilt of the accused
beyond reasonable doubt. Therefore, she’ subfiits_
that the conviction and sentence ordered” by theul
trial Court and confirmed hat the jlower* appellate
Court is illegal and perverse.
Per contra, the learned Governfient_Pleader has
supported the Judgment_ anqatdrder” of the courts
below. ,_ gwalV
6. 1 have scrutinized the evidence led by the
parties, the documentszadmitted in the evidence and
the statement of the accused recorded under Section
313 Cr.P.C,_”ErWsEi and 2 are the persons, who were
_ in the room at the time of the incident and it is in
lg theg evidence, of P.W.l ands also in the complaint-
Ex Pl that there were electric lights both inside
V and. outside’ the roonu Further more, it is also
‘”;c1ear from the evidence of P.W.l that though there
‘”_was._light in the night at about 1.00 a.m., the
vd”_accused gained entry and the 1″ accused asked P.W.l
fto show as to where are the valuables and he took
the metals box containing” an amount of Rs.l,OOO–OO
and old earerings, whereas the 2″d accused snatched
7 Cri.RP 487/O5
the earwrings of P.W.2 i.e., the wife of P.W.l and
while snatching the said earwrings, P.W.2 sustained
tearing of her earwlobes and sustained Vgrieyous
injury. The accusedo after the robbery; “left Tthe
metal box {trunk} and took away the rameunt tofu’
Rs.1,0GO~O0 in addition to the
were kept in the metal box and also the egfcfingg sf;
P.W.2 worth more than RsgdySOOwOQi”idCluding thei
clothes. So far as the identity of these accused
are concerned, P.Ws.l and 2 have named each of the
accused. and ass the jincidentaftook1«place where the
electric —- ~lidht Kwas *hurning¢i the complainant P.W.l
and his wife ?;w}2 had ample opportunity to witness
the accused” and rthe§= have identified the said
_ accused “before. the VCourt as well. Even in the
in Police Station, when the accused were arrested and
brought} P wsyi and 2 have identified them and in
V the circumstances, considering the evidence of these
d”22′ witnesses, I do not think that there is any
“_difficulty insofar as the identity of the accused
“Huare concerned.
7. The acts of the accused have been spoken by
P.Ws.l and 2. Accused No.1 went inside, questioned
8 Crl.RP 487/O5
P.W.l as to the valuables and thereafter, he took
the metal box [trunk] and from it he took out the
old earerinqs, the ‘clothes, whereas accused_kNo.2
snatched the ear–rings of P.W.2 i.e., the uife of
P.W.l by causing injury and tearing her ear lobestyé
The overtwact of each of the yaccused_Whaue_ been
stated by P.Ws.l and 2v_andi their ,evidence <isw
consistent, cogent and accefitable.
8. Further more} §.W,2u*was”aexamined by the
doctor–P.W.6 and hey xhab ; issuedW’ the injury
certificate at }fix.P3.§ it ireyealse that P.W.2 was
examined. on *ll5Q§€19§En at– about 9.00 a.m. and he
states ‘that both Nthe Vearerings were torn. The
doctor is of the opinion that the injury sustained
i”by éjw,;_ia grievous in nature and accordingly he
vfihas kdeposedfi before the court and speaks to the
contests ‘efs3Ex.P3. So, the medical evidence
kcorroborates the evidence of P.W.2 who is an injured
{witness and it is welleestablished principle that an
m injured generally does not implicate an innocent and
‘kfdoes not leave a person who really has caused the
harm. She has spoken to the overt–act of accused
No.2 and the presence of accused No.1 and she has
5
9 Cri.RP 487/05
also identified both the accused before the Court as
well in the Police Station. There was ample
opportunity for P.W.2 to see the accused7 and
therefore, her evidence corroborates the version of
P.W.l i.e-, her husband. and in the light fofn this 7»
evidence led by the prosecution ‘is? sufficieht’ to
prove the guilt of the accused;f_1
9. P.W.5 is the employer_of P:Wsli and 2 and
he states about the injuries sustained by P.W.2 and
having seen her after the in¢iaefit;;fse is also an
attesting witness for the spotwmahazar–Ex.P2 along
with P{W.4 and the seisure–of the metal box {trunk}
M.0.1 and the toweirM;©C1{a). P.W.7 is the resident
of the same village and he took the injured to the
x”hospita;_and he is also an attesting witness with
vFregard_”tolithev recovery of the ear–rings at the
instance of the l”‘accused. The said ear–rings have
ibeen. marked in the evidence as M.O.2 and. seizure
Lmahazar has been produced at Ex.PS. It appears that
— there is a mistake in numbering the material objects
xpby the trial Court. Anyhow, the mistake committed
by the trial Court does not come in the way of the
prosecution as it is a minor discrepancy. P.W.9 is
10 Crl.RP 487/O5
the Police Officer, who registered the complaint of
P.W.l and held the Investigation, which was
completed by P.W.8, who filed the charge sheet after
collecting the injury certificate. SO,mdthesg Vis
consistent material so far as the offience ‘under’
Section 394 IPC is concerned. ”
10. It is necessary to note that the accused
caused injury to P.W.2 while snatching the ear¥rings
and that has been stated b§”doctor~P)W,6; who has
issued the injury certificate%E§flP3iz_Therefore, the
accused have committéi an offence punishable under
Section 394 EEC fl which is an act of robbery and at
that time grievous injury was caused to P.W.2. It
is in. the mcontextilof” these circumstances, if the
3″.,Qffé:n!E:e3y”..,1{{1I’1CiE!f Sec”t’i’oVn 392 IPC is considered, it is a
‘tminorx offence}. whereas Section 394 IPC is major
offence. ‘B when there is a punishment for major
woffence and the ingredients of Section 392 ZPC do
{merge with the offence under Section 394 IPC., the
‘ conviction for the offence under Section 392 IPC is
“a redundant. The ample material placed on record is
sufficient to hold the accused guilty for the
offence under Section 394 IPC. The mere existence
11 Crl.RP 487/05
of some enmity between P.W.§ and the employer of the
accused does not take away the evidence led by the
prosecution, which has been supported by P.Wi2, who
is an injured witness. The material placed’ on
record is consistent, cogent, natural and there is,
no much delay in lodging the _complaint5 “ins thel
circumstances, I am of the fopinion jthafiw the
petitioner has not made” out anyf such ogrounds top
warrant the interference to the extent of the proof
of offence punishable under Section 394 lPC. The
accused. will have to _be_ acguittedf for the charge
under soction.392gIPC,=n
lf, rso far as the sentence is concerned, the
learned cbunsel for the petitioners submit that the
accused 2are “aged vabout 40 years and 22 years
7_ respectifielyrv they are married persots and
maintaining Stheir family. They are the only
persons5″wno are looking after the members of their
“knfamily and that it is their first offence and in the
“u circumstances, she submits that these mitigating
1
“‘,circumstances may oe considered to reduce the
lsentence. So, taking into consideration the
submission made, I think it would be just and proper
12 Crl.RP 487/O5
to reduce the sentence to 2% years. Hence, I answer
the point partly in affirmative and partly in
negative and proceed to pass the following:
ORDER
The petition is allowed in parts a iihe
conviction and. sentence of rim: petitionersfaccusedu°
for the offence under Section 392 his ‘set,xaside.
Their conviction for the offence under Section 394:
is affirmed by modifyin§*. the __5eatéh¢e. The
petitioners/accused.a:e ordered to undergo rigorous
imprisonment” for%j2%’ years” and. to pay the fine as
ordered by the triaiaficurt, failing which have to
undergo default _sentence. Their bail bonds stand
__ cancéiied. The trial Court is directed to secure the
dr presence pm? the petitioners/accused tx> undergo the
sentence:V_ dihey are entitled to set off under
Sect1onr4295Cr.P.C.
Sd/-i
KJDQE
” Ksm*