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2020 Supreme(Kar) 761
IN THE HIGH COURT OF KARNATAKA AT BENGALURU (DHARWAD BENCH)
Shivashankar Amarannavar, J.
Khatalahammed @ Shyanavaj Abduljij Lalshaha - Appellant
Versus
State Of Karnataka - Respondent
Criminal Appeal No. 2934 of 2012
Decided On : 01-07-2020
Ramesh B Chigari, Advocate, Vishwanath Badiger, Advocate
The main legal point established in the judgment is the requirement for concrete evidence to establish the intent to commit dacoity under Section 399 of the Indian Penal Code (IPC). The court emphasized the need for conclusive evidence to prove the guilt of the accused persons.
Headnote:
IPC - Conviction under Section 399 - Summary of IPC Section 399 - The court acquitted the accused-appellants (Nos. 2, 4, and 5) who were charged under Section 399 of the Indian Penal Code (IPC) for attempting to commit dacoity. The court found that the prosecution failed to prove the guilt of the accused persons under Section 399 of IPC, as there was no conclusive evidence that the accused persons were gathered there for the purpose of committing dacoity. The court referred to the decision of CHATURI YADAV AND ORS. VS STATE OF BIHAR, (1979) AIR SC 1412, which emphasized the need for concrete evidence to establish the intent to commit dacoity. The court set aside the judgment of conviction and order of sentence passed by the III Addl. Sessions Judge, Belgaum and acquitted the accused/appellant Nos. 2, 4, and 5 for the offence under Section 399 of IPC.
Fact of the Case:
The appellants (accused Nos. 2, 4, and 5) were charged under Section 399 of IPC for attempting to commit dacoity. The prosecution's case was based on the evidence of witnesses and the recovery of certain articles from the accused persons. The trial court convicted the accused-appellants, but the appellants appealed against the judgment.
Finding of the Court:
The court found that the prosecution failed to prove the guilt of the accused persons under Section 399 of IPC. It noted that there was no concrete evidence to establish that the accused persons were gathered there for the purpose of committing dacoity. The court referred to the decision of CHATURI YADAV AND ORS. VS STATE OF BIHAR, (1979) AIR SC 1412, which emphasized the need for concrete evidence to establish the intent to commit dacoity. As a result, the court set aside the judgment of conviction and order of sentence passed by the III Addl. Sessions Judge, Belgaum and acquitted the accused/appellant Nos. 2, 4, and 5 for the offence under Section 399 of IPC.
Issues: The main issue was whether the trial court had erred in convicting the accused-appellants for the offence punishable under Section 399 of IPC.
Ratio Decidendi: The court's decision was based on the lack of concrete evidence to establish that the accused persons were gathered there for the purpose of committing dacoity. The court referred to the decision of CHATURI YADAV AND ORS. VS STATE OF BIHAR, (1979) AIR SC 1412, which emphasized the need for concrete evidence to establish the intent to commit dacoity.
Final Decision: The court set aside the judgment of conviction and order of sentence passed by the III Addl. Sessions Judge, Belgaum and acquitted the accused/appellant Nos. 2, 4, and 5 for the offence under Section 399 of IPC.
JUDGMENT
Shivashankar Amarannavar, J. - The appellants are arrayed as accused Nos.2, 4 and 5 in SC.No.364/2011 for the offence punishable under Section 399 of IPC.
2. The learned III Additional Sessions Judge, Belgaum has convicted the accused-appellants for the offence punishable under Section 399 of IPC and sentenced them to undergo rigorous imprisonment for a period of two years and each one should pay a fine of Rs.5,000/-(Five thousand only). In default of payment of fine amount, each one of the accused persons shall undergo rigorous imprisonment for a further period of three months.
3. The brief factual matrix of the case that amid from the records are that on 27.04.2010 PW.1-Mallangouda Malagouda Navalgatti, PSI of Belgaum Rural Police Station received a credible information at about 7 p.m. regarding four to five persons by putting stones across the road trying to stop the vehicles passing on Belgaum-Jamboti road near Kinaye Village nearby Forest in order to commit a dacoity. On receipt of such credible information PW.1- Mallanagouda Malagouda Navalgatti along with PW.2-Maruti Bhimappa Gujanal, ASI and CW.5- M.Y.Karimani, Head Constable, CW.6- S.R.Dodanaikar as well as CW.7-N.J.Madar, Police Constables of Belgaum Rural Police Station and PW.3-Shankar Krishna Koli and PW.5-Mahammedayub Khudabax Patte being the Panchas, proceeded to Belgaum-Jamboti road near Kinaye Forest through Peeranwadi Village and stopped their vehicle at a curve and observed the fact that these accused Nos.2, 4 and 5 along with absconded accused No.1-Rafiz Istakahamed Shaikh and accused No.3-Indrajit Gujjar who are on the said road at about 8 p.m. and placed stones across the road. Then these witnesses saw the vehicles passing on the said road and these accused holding clubs, iron rod in their hands, tried to stop the vehicles and the drivers of such vehicles, without stopping their vehicles passed through the said road. In the meanwhile, these PW.1-Mallanagouda Malagouda Navalgatti and PW.2-Maruti Bhimappa Gujanal and CWs.5 to 7 in the presence of Panchas apprehended these accused persons along with absconded accused Nos. 1 and 3. Then, the said accused did not give any proper and satisfactory explanation. They found one chil li powder packet each on search of shirt pocket of accused Nos.1 and 2 and accused No.3 found holding a college bag containing five black cloth pieces. They also found having three jungle clubs and two rods at the said place and also two stones placed across the road.
4. The mahazor as per EX.P-1 being conducted and thereafter, PW.1 took the accused Nos.2, 4 and 5 including absconded accused Nos.1 and 3 and seized articles and produced before PW.5-PSI of Belgaum Rural Police Station and filed Ex.P-2 report.
5. On the basis of the said report a case in Crime No.109/2010 being registered against the accused persons for the offence punishable under Section 399 of IPC and submitted the Ex.P-4 FIR.
6. On completion of investigation, PW.5 submitted charge sheet. Learned II JMFC., Belgaum took cognizance of the offence and provisions of Section 207 of Cr.P.C. have been duly complied. Since, accused No.3 subsequently remained absent, the case against him being split up. Thereafter, the case against these accused Nos.1, 2 4 and 5 being committed to Sessions Court under Section 209 of Criminal Procedure Code.
7. The charges framed for the offence punishable under Section 399 of IPC. In order to prove the charge leveled against the accused, the prosecution examined in all five witnesses as PWs. 1 to 5 and got marked five documents as per Ex.P1 to P5 and Material Object Nos.1 to 6.
8. The statement of accused-appellants under Section 313 of Cr.P.C. is recorded. Subsequently, the accused No.1-Rafiq Istakahamed Shaikh absconded and case against him being split up under Chapter IV of Karnataka Criminal Rules of Practice, 1968 to dispose of the case against the accused Nos.2, 4 and 5.
9. The trial Court after hearing the arguments on both sides
