Criminal Appeal No. 2079 of 2023 · The High Court
Case Details
- 1 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 2079 OF 2023 (C) BETWEEN: MANIKANTA @ MANI S/O KUMARA AGED ABOUT 20 YEARS R/O NEW ROAD, NEW ESWARA TEMPLE CHANNANAKOPPALU KIKKERI TOWN, K.R.PETE TALUK MANDYA – 577 133 (BY SRI. VIKYATH B, ADVOCATE) AND: …APPELLANT Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA STATE BY CHANNARAYAPATNA TOWN POLICE HASSAN, REP BY SPP HIGH COURT OF KARNATAKA BANGALORE - 01 (BY SRI. CHANNAPPA ERAPPA, HCGP) …RESPONDENT THIS CRL.A IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT CONVICTION DATED 17.04.2023 AND SENTENCE DATED 19.04.2023, PASSED BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE AT CHANNARAYAPATNA, IN S.C.No.96/2021. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA - 2 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 ORAL JUDGMENT Heard Sri Vikyath B., learned counsel for the appellant and Sri Channappa Erappa, learned High Court Government Pleader for the respondent. 2. Appeal is filed by the accused who has been convicted for the offence punishable under Section 397 IPC in S.C.No.96/2021, on the file of IV Additional District and Sessions Judge, Hassan, sitting at Channarayapatna, by judgment dated 17.04.2023. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under:
Legal Reasoning
On 27.01.2021 at about 7.30 a.m., Sri Kumar S.K., lodged a written complaint with Channarayapatna police station based on which a criminal case came to be registered by Channarayapatna town police station for the offence punishable under Section 392 IPC. 4. Complaint averments reveal that the complainant has been doing supervising work in a newly constructed building under Akkibabanna at Mysoru road in front of Nagesh - 3 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 Hospital at Channarayapatna. He used to sleep in the said building along with the workers in the night hours. 5. It is further contended that on 26.01.2021 as usual himself, masons Babu Sheik and Muneer Sheik were sleeping in the said building. At about 5.30 a.m., on 27.01.2021, an unknown person entered inside the building and put them under knife point, threatened them with dire consequences and demanded the valuables to be parted away from them. 6. On account of fear of life threat, complainant parted away sum of Rs.500/- which was in his custody. The said unknown person snatched two mobile phones from Babu Sheik and Muneer Sheik and escaped away from the spot. 7. After receiving such written complaint, Town Police, Channarayapatna having registered the case in Cr.No.26/2021 initially for the offence punishable under Section 392 IPC, continued with the investigation and ultimately filed the charge sheet for the offence punishable under Section 397 IPC, inter alia arrested the accused. 8. On receipt of charge sheet, learned trial Magistrate committed the matter to the Sessions Court. - 4 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 9. Presence of the accused secured before the Sessions Court and after compliance of Section 207 Cr.P.C., charges were framed. Accused pleaded not guilty. Therefore, trial was held. 10. In order to bring home the guilt of the accused, prosecution examined eleven witnesses as P.Ws.1 to 11, comprising of complainant, mahazar witnesses, police witnesses. Nine documentary evidence were placed on record, which were exhibited and marked as Exs.P.1 to P.9, comprising of seizure mahazar, spot mahazar, complaint, FIR, report and admissible portions of the contradiction in the statements of P.Ws.10 and 11. Voluntary statement given by the accused Ex.P.7, where under M.Os.1 to 4 came to be recovered. 11. On conclusion of recording of evidence, learned Trial Judge recorded the accused statement as is contemplated under Section 313 Cr.P.C., wherein the accused has denied all the incriminatory materials and did not choose to place any written submissions nor he placed any defence evidence. 12. Thereafter learned Trial Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence on record, convicted the accused for the - 5 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 offence punishable under Section 397 IPC and sentenced him to undergo imprisonment for seven years. 13. Being aggrieved by the same, accused has preferred the present appeal. 14. Sri Vikyath B., learned counsel for the appellant reiterating the grounds urged in the appeal memorandum
Decision
vehemently contended that the impugned judgment is suffering from serious legal infirmities and therefore, it is to be termed as perverse and sought for setting aside the same and acquit the appellant. 15. He further contended that the material evidence on record would not demand conviction of the appellant for the offence punishable under Section 397 IPC. 16. He further contended that admittedly M.O.1 did not contain any blood stain. In the case of the prosecution the appellant actually assaulted the complainant and other two persons with the knife and therefore, all the ingredients to attract the offence punishable under Section 397 IPC is not established by the prosecution by placing cogent and convincing evidence on record and sought for setting aside the impugned judgment. - 6 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 17. Learned counsel for the appellant also contended that in the event this Court upholding the order of conviction, sentence may be reduced by directing the custody period already undergone by the appellant and sought for allowing the appeal. 18. Per contra, Sri Channappa Erappa, learned High Court Government Pleader supports the impugned judgment by contending that admittedly, complainant and two his masons were sleeping in the under construction building. Complainant being the supervisor had slept in the said building along with two of the masons in the night on 26.01.2021. At about 5.30 a.m., on 27.01.2021, all of a sudden an unknown person came and threatened the complainant and two others under the knife point and snatched away Rs.500/- cash and two mobile telephone handsets belonging to two masons who had also slept along with the complainant in the under construction building and ran away from the spot. Complainant had identified the accused before the Court so also Rs.500/- cash and material objects namely mobile telephones. 19. All these facts have been considered by the learned Sessions Judge in a cumulative manner and noting the absence - 7 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 of any explanation offered by the accused/appellant, convicted the accused/appellant for the offence punishable under Section 397 IPC, which is justified and sought for dismissal of the appeal. 20. He further pointed out that in the absence of previous enmity or animosity, why would the complainant falsely implicated the appellant in the incident, is a question that remains unanswered on behalf of the appellant and thus, sought for dismissal of the appeal. 21. He also pointed out that if the appellant is shown any mercy as is contended by the counsel for appellant, the appellant would further indulge in similar activities and leniency shown to such people would result in encouraging the crime, besides sending the wrong signal to the society and thus, sought for dismissal of the appeal in toto. 22. Having heard the arguments of both sides, following points would arise for consideration: 1. Whether the material on record is sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 397 IPC? 2. Whether the appellant would makes out a case that the impugned judgment is - 8 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 suffering from legal infirmity and perversity and thus calls for interference? Whether the sentence is excessive? What order? 3. 4. 23. Regarding point Nos.1 and 2 : In the case on hand, admittedly appellant was a stranger to the complainant. Material on record depicts that the complainant was discharging the work of supervisor in a under construction building under Akkibabanna and the building was situated in Mysure Road in front of Nagesha Hospital at Channarayapatna. As a part of his job, complainant used to sleep in the night hours in the under construction building itself along with the masons namely, Babu Sheik and Muneer Sheik. 24. He has deposed before the Court with graphic details about the contents of the complaint and reiterated that the accused who entered at about 5.30 a.m., on 27.01.2021 in the place and under the knife point demanded the valuables to be parted away from the complainant and two masons. Complainant under the fear, handed over sum of Rs.500/- cash with him and accused snatched away two mobile hand sets of the masons. - 9 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 25. Detail cross-examination of complainant, mahazar witnesses and the mason - Muneer Sheik, did not yield any positive material so as to disbelieve the case of the prosecution. 26. Admittedly, accused was apprehended after the incident by the police and report marked at Ex.P.6 would depict that accused has been captured by the police personnel while investigation was under progress. After the arrest, accused was enquired by the Investigating Officer. Under such enquiry, accused/appellant said to have given voluntary information and based on said voluntary information, Investigating Officer has recovered M.Os.1 to 4 in the presence of pancha witnesses. 27. Pancha witnesses have supported the case of the prosecution so also the Investigating Officer insofar as recovery of M.Os.1 to 4 is concerned, pursuant to Ex.P.7 which is the admissible portion of voluntary statement of appellant/accused. 28. Taking note of these aspects of the matter it is crystal clear that the prosecution has established that the accused high handedly under the knife point snatched away M.Os.2 to 4 from the custody of complainant and his companions on 27.01.2021 at about 5.30 a.m. - 10 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 29. As rightly contended by the prosecution, since the accused is stranger to the complainant, in the absence of any previous enmity or animosity, why would complainant falsely implicate the appellant in the incident is a question that remains unanswered on behalf of the accused. The said stand taken by the prosecution gets fortified in complainant lodging the complaint in the Town Police Station, Channarayapatna that the unknown person came and snatched away the valuables from the custody of the complainant and his companions. 30. After the accused has been apprehended, mobile telephones which were seized by investigation officer pursuant to voluntary information given by accused have been identified and so also the appellant has been identified by the complainant before the Court. 31. All these aspects of the matter when viewed cumulatively, this Court is of the considered opinion that ingredients to attract the offence under Section 397 IPC is established by the prosecution by placing cogent evidence on record, though initially the offence came to be registered under Section 392 IPC. - 11 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 32. In order to attract the offence under Section 397 IPC, use of deadly weapon is required to be established by the prosecution and not the injury in every case. If the deadly weapon is used and a fear is instilled in the mind of the persons automatically offence under Section 397 IPC gets attracted and there need not be injury caused by such deadly weapon in each and every case. 33. Taking note of these aspects of the matter, the learned Sessions Judge was of the considered opinion that the offence against the accused stands established under Section 397 IPC. 34. But, in the case on hand, the learned Sessions Judge has framed the charge only for the offence punishable under Section 397 IPC which is incorrect. However, since the offence under Section 392 merges with the offence under Section 397 IPC, the framing of charge under Section 397 IPC cannot be faulted. 35. Division Bench of this Court in the case of Dayasagar @ Sumith vs. State of Karnataka, in Crl.A.No.2179 of 2017 has clearly ruled out that charge under Section 397 IPC alone would not be permissible in the - 12 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 absence of charge under Section 392 or 395 IPC. While so holding, this Court considered judgment of the Hon’ble apex Court in the case of State of Uttarpradesh vs. Iliyaz, reported in (2009) 1 SCC 365. 36. However, since the FIR came to be filed by the police at the first instance for the offence punishable under Section 392 IPC, mere fact that the charge was framed under Section 397 IPC by the learned Sessions Judge should not be ipso facto result in acquittal of the appellant. 37. At the most, if the charge is defective and if it is detrimental to the interest of the appellant, the only remedy for this Court is to set aside the order of conviction and direct the Trial Court to frame appropriate charges and direct de novo trial. 38. Sri Vikyath B., at this juncture submits that since the accused has already spent more than two years seven days and twenty days in the prison before the trial and after his conviction, such an exercise would result in futile exercise and therefore, submitted that the improper framing of the charge would not be result in de novo trial. - 13 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 39. Taking note of the said submission, on re- appreciation of the material evidence on record, this Court is of the considered opinion that since the ingredients are made out from the material evidence on record to attract the offence under Section 397 IPC, this Court is of the considered opinion that the matter needs no de novo trial. 40. Material evidence in the form of oral testimony of complainant, recovery of material objects M.Os.1 to 4, pursuant to the voluntary statement - Ex.P.7 is sufficient enough to hold that finding of the guilt of the accused/appellant recorded by the learned Trial Judge in the impugned judgment is based on sound and logical reason and requires no interference. 41. In view of the foregoing discussion, point No.1 is answered in the affirmative and point No.2 in the negative. 42. Regarding point No.3: Sri Vikyath B., contended that there is no criminal antecedent of the accused/appellant and therefore, sought for release of the appellant by directing the custody period already under gone by him. Same is opposed on behalf of the prosecution. 43. Admittedly, since the knife is used in the incident and all the ingredients to attract under Section 397 IPC is - 14 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 established and punishment of seven years is ordered by the learned Trial Judge. But, there was no charge framed under Section 392 IPC and directly convicted the offence punishable under Section 397 IPC, this Court is of the considered opinion that sentence needs to be reduced to five years instead of ordering for de novo trial. 44. Accordingly, point No.3 is answered partly in the affirmative. 45. Regarding Point No.4: In view of findings on point Nos.1 to 3, this Court proceed to pass the following: (i) (ii) ORDER Criminal appeal is allowed in part. While maintaining the conviction of the appellant, even though the charge was defective on account of the submission made by the learned counsel for the appellant, conviction under Section 397 IPC is to be maintained. (iii) Though minimum punishment for the offence punishable under Section 397 IPC is seven years, taking note of the fact that the concession has been given by the counsel for appellant in - 15 - NC: 2025:KHC:3623 CRL.A No. 2079 of 2023 not getting the matter remitted to the Trial Court for de novo trial, sentence is reduced to five years from seven years in the impugned judgment. (iv) Needless to emphasise that the appellant would be entitled to benefit under Section 428 Cr.P.C. (v) After serving the remaining part of the sentence, appellant is ordered to be set at free, if not required in any case. (vi) Office is directed to return the Trial Court Records along with copy of this Court for issuance of modified conviction order. Sd/- (V SRISHANANDA) JUDGE MR List No.: 2 Sl No.: 1