Back
2017 Supreme(Kar) 931
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
RAVI MALIMATH, JOHN MICHAEL CUNHA, JJ.
The Registrar General High Court of Karnataka, Bengaluru – Petitioner
Vs.
Venkatesha @ Chandra, S/o Venkataswamy & Ors. – Respondents
Criminal Referred Case No.14 of 2010 C/W Criminal Appeal No.799 OF 2011, 637 OF 2012
Decided On : 04-09-2017
For the Petitioner: Sri. H.N. Nilogal, Spl. Pp.
For the Respondent: Sri. Hashmath Pasha, Adv.
The participation of five or more persons is a sine qua non to maintain the charge under Section 396 of IPC.
Headnote:
The appellants were convicted under Section 396 of the Indian Penal Code (IPC) for the offense of dacoity with murder. The prosecution's case was that the appellants, along with other accused, had committed dacoity and murdered the deceased in her house. The appellants challenged their conviction and sentence, arguing that the prosecution had failed to prove the circumstances which established their guilt beyond reasonable doubt. The court re-appreciated the evidence and found that the prosecution had conclusively proved the circumstances which unerringly pointed towards the complicity of the accused in the crime. However, the court held that the conviction under Section 396 of IPC could not be sustained as the prosecution had failed to establish the participation of five or more persons in the commission of the crime. The court convicted the appellants under Section 394 read with Section 34 of IPC for robbery with hurt and sentenced them to rigorous imprisonment for life and a fine of Rs.25,000/- each.
Fact of the Case:
The deceased was murdered in her house and her gold ornaments were stolen. The appellants were arrested and charged with dacoity with murder under Section 396 of IPC. The prosecution produced evidence to prove the circumstances which established the guilt of the accused, including the recovery of the stolen ornaments at the instance of the accused, the recovery of the weapons used for the commission of the offence, and the conduct of the accused in pointing out the place of occurrence.
Finding of the Court:
The court found that the prosecution had conclusively proved the circumstances which unerringly pointed towards the complicity of the accused in the crime. However, the court held that the conviction under Section 396 of IPC could not be sustained as the prosecution had failed to establish the participation of five or more persons in the commission of the crime. The court convicted the appellants under Section 394 read with Section 34 of IPC for robbery with hurt and sentenced them to rigorous imprisonment for life and a fine of Rs.25,000/- each.
Issues: 1. Whether the prosecution had proved the circumstances which established the guilt of the accused beyond reasonable doubt. 2. Whether the conviction under Section 396 of IPC could be sustained in the absence of evidence of the participation of five or more persons in the commission of the crime.
Ratio Decidendi: 1. The court held that the prosecution had conclusively proved the circumstances which unerringly pointed towards the complicity of the accused in the crime. The court relied on the evidence of the recovery of the stolen ornaments at the instance of the accused, the recovery of the weapons used for the commission of the offence, and the conduct of the accused in pointing out the place of occurrence. 2. The court held that the conviction under Section 396 of IPC could not be sustained as the prosecution had failed to establish the participation of five or more persons in the commission of the crime. The court noted that Section 396 of IPC requires the participation of five or more persons to constitute the offence of dacoity with murder.
Final Decision: The court convicted the appellants under Section 394 read with Section 34 of IPC for robbery with hurt and sentenced them to rigorous imprisonment for life and a fine of Rs.25,000/- each.
JOHN MICHAEL CUNHA, J.
1. Criminal Reference Case No.14 of 2010 is registered on the basis of the Reference made by the XXXIV Addl. City Civil & Sessions Judge (Special Court), Central Prison Premises, Bengaluru, for confirmation of the death sentence awarded on the appellants/accused Nos.1 to 4 vide judgment dated 17.9.2010/30.9.2010 in S.C.No.443 of 2001 & S.C.No.55 of 2004 for the offence punishable under Section 396 of IPC.
2. Criminal Appeal No.799 of 2004 is preferred by accused Nos.1 & 2 and Criminal Appeal No.637 of 2012 is preferred by accused Nos.3 & 4, challenging the conviction under the impugned judgment dated 17.9.2010 and the order of sentence dated 30.9.2010. All these proceedings are heard together and are disposed of by this common judgment.
3. The case of the prosecution is that on 28.10.1999, the deceased Smt. Sudhamani was alone in her house bearing No.960, near Kaveri Apartment, 5th Cross, Shanthaveri Gopala Gowda Nagara, Moodalapalya, within the limits of Vijayanagara Police Station. Between 11.00 a.m. and 1.30 p.m., the appellants (hereinafter referred to as “accused Nos.1 to 4”) and accused Nos.5 to 9 gained entry into the house, conjointly committed dacoity and in so committing dacoity, caused the death of the aforesaid Sudhamani by inflicting injuries on her head and other parts of the body.
4. In the afternoon at about 2.00 p.m., when her son returned home, he found the deceased lying dead in a pool of blood with bleeding injuries over her body. Immediately, the police were alerted. PW-21 - the Police Inspector of Vijayanagara Police Station rushed to the spot. He received the written complaint from the son of the deceased as per Ex.P-4 and based on this complaint, FIR was registered in Crime No.674 of 1999 for the offence punishable under Section 302 of IPC against unknown persons.
5. PW-21 took up investigation, conducted the inquest over the dead body as per Ex.P-2, drew up the spot mahazar Ex.P-3 and collected the blood samples and pieces of glass bangles from the spot of occurrence. The body was forwarded for post mortem examination and it was ascertained that the deceased died due to shock and hemorrhage as a result of injuries to the head. Though, in the course of investigation, he recorded the statements of number of witnesses, there was no clue about the perpetrator of the crime.
6. On 31.1.2001, PW-24, the then Police Inspector of Vijayanagara Police Station received information about the escape of accused No.1 and other accused from Chittor prison. PW.24 and his team apprehended accused Nos.1 to 4 and on interrogation, recorded their voluntary statements as per Exhibits P.21 to P24. Based on these voluntary disclosures, he recovered the gold and silver ornaments belonging to the deceased at the instance of the accused Nos.1 to 4. During the course of investigation, the accused Nos.1 to 4 pointed out the spot of offence and accordingly, a mahazar in this regard was drawn up as per Ex.P-6. The weapons used for the commission of offence namely a knife and an iron rod marked at M.Os.16 and 17 were also recovered at the instance of accused Nos.1 to 4 and thus, the Investigating Officer having gathered necessary incriminating material in proof of murder and dacoity, laid the charge-sheet against nine accused persons for the offences punishable under Sections 454, 396 and 302 of IPC on 27.4.2001.
7. The Special Court having been constituted for trial of the offences committed by the charge-sheeted accused and other members of the Dandupalya gang, after hearing the accused, the learned Special Judge framed charges under section 396 read with Section 34 of IPC. The case against accused No.5 was split up and accused No.9 was reported as dead. Accused Nos.1 to 4, 6, 7 and 8 having denied the charges, the matter was set down for trial.
8. In support of the charges, the prosecution examined 24 witnesses as PWs.1 to 24 and got marked 29 documents as Exhibits P-1 to P-29 and the material objects as M.
