The State By Hulimavu Police, Bangalore Vs. Ramanjj - Court Judgment

SooperKanoon Citationsooperkanoon.com/1173531
CourtKarnataka High Court
Decided OnAug-26-2014
Case NumberCriminal Appeal No. 1039 of 2012
JudgeC.R. KUMARASWAMY
AppellantThe State By Hulimavu Police, Bangalore
RespondentRamanjj
Excerpt:
(prayer: this criminal appeal is filed under section 378(1) and (3) cr.p.c by the state p.p. praying that this hon'ble court may be pleased to grant leave to file an appeal against the judgment date d:20.10.2010 passed by the additional sessions judge, ftc-xiv, bangalore in s.c.no.999/2009- acquiting the respondent for the offence punishable under sections 397, 398 read with section 511 of ipc.) 1. this criminal appeal is filed under section 378(1) and (3) cr.p.c. praying to grant leave to file an appeal against the judgment dated 20.10.2010 passed by the additional sessions judge, ftc-xiv, bangalore, in s.c. no.999/2009, acquitting the respondent for the offence punishable under sections 397, 398 r/w section 511 of ipc. 2. heard the learned special public prosecutor and the learned counsel for the respondent. the records of the trial court were called for and i have carefully examined the same. 3. facts of the case is as under: that on 22.01.2008 at about 9.20 a.m. accused came to the brigade millennium apartment, j.p. nagar, 7th stage, bangalore, and rang the bell of house of cw.1. cw.1 was inside the house and she opened the door. accused pushed her, trespassed into the house and caught hold of cw.2 and put his hand on the neck of cw.2 and threatened her and asked her to point out the money and ornaments which has been kept in the house. he also threatened, in case if she failed to point out the place where the money and ornaments were kept, he will cut her neck by means of a knife. thereafter, he took her to the bed room. at that time cw.2 struggled and escaped and raised a cry. the neighbourers namely, cws.3 and 4 and security guards cws.5, 6 and 7 came and caught hold of the accused. thereafter cw.1 came to the house and the accused was taken to the police station. the police have arrested him. the police seized one red towel, one stainless steel small knife and subjected them to property form 9/2009. thereby accused is alleged to have committed an offence punishable under sections 397, 398 read with section 511 of ipc. 4. in the trial court, pws.1 to 6 were examined; exs.p1 to p5(a) were marked; mo.1 knife and mo.2 towel were marked. the defence has not examined any witnesses. 5. pw.1 is the husband of pw.2. his evidence is of hearsay. pw.2 is the eye witness. she has deposed that on 22.01.2009 at 8.30 a.m. her husband had gone to work. herself and her daughter were present. at 9.30 a.m. she has to leave her daughter to the school. she was about to leave her daughter, at that time calling bell ranged, ft was 9.20 a.m. she thought that her maid servant has come to the house and therefore, she opened the door. the person who ranged the calling bell was not her maid servant. she had also seen him on the previous day. so she was frightened and she raised cry. she identified the accused in the court. since she raised cry, neighbourers, security guards and cw.5 came there. then' they apprehended the accused. then she telephoned to her husband. the accused was brought to the ground floor from third floor. he was made to sit in the reception hall. they enquired as to why he has come to the apartment. he did not give satisfactory reply. by that time, the occupants of the apartment had reported the matter to the police. police came to the apartment and took the accused from the reception hall. since accused came to her house, she thought that he might have come to commit robbery. accused was having one knife which is marked as mo.1. during her cross examination she states that there are five blocks in the brigade millennium. in and around five blocks there is a compound. there is fencing in and around the compound. in the main gate, there are two security guards. from the main gate to reach her house, it takes about two minutes. normally there will be two to three security guards. there is visitor's book in the reception counter. visitors have to make entry in the visitor's book. there are lifts. at the time of incident, the security guards were there. when she raised cry, security guards came there and they caught hold of the accused. she has omitted to state before the police that on the previous day, she saw the accused. she narrated this only before the security personnel. she does not know who has telephoned to police. the other suggestions put to her were all denied. after accused was made to sit in the reception hall, police came after half an hour.  pw.3 is a retired air force officer. when he was in the flat at 9.00 a.m. he heard a cry and lie came out of the flat. the accused had come to the flat and trespassed into the house of charge sheet witness no.4. he enquired the accused as to why he came to the flat and he did not give satisfactory explanation. accused was taken to the reception counter. he enquired him, but he did not open his mouth. police came there. accused was having mo. 1-weapon-knife. mo.1 was folded in a cloth. the statement -was recorded by the police. during his cross examination, he states that visitors' book is kept in the reception hall. if any visitor comes, they have to make entries in the visitors book. visitors who have come to the flat have to come from the main gate, after crossing the reception.  pw.4 is the psi. he received the complaint and registered a case in crime no.08/2009. he sent fir to the court. he arrested the accused and recorded his voluntary statement. he was holding a stainless steel knife in a red cloth. in the presence of charge sheet witness nos.5 and 8 he seized the weapon under the seizure panchanama. mo.1 is the knife, mo.2 is the red cloth. he subjected mo.nos. 1 and 2 to property form no.09/2009. pw 4 has deposed that himself and charge sheet witness no.3 have caught hold of accused and brought him to the reception counter. though he was cross examined, nothing is elicited in his cross examination to disbelieve his evidence. pw.5 is the security supervisor. he speaks about apprehending the accused. he further deposes that accused was made to sit in the reception hall and he reported the matter to the police through telephone.  pw.6 is one of the security guards. he heard the cry of cw.2. accused was taken from the reception hall to the police station. he further deposes that himself, cw.1, cws.6 and 7 apprehended the accused. statement under section 313 of cr.p.c. was recorded. accused denied the allegation made against him. 6. sum and substance of the finding of the trial court is as under: admittedly the evidence clearly speaks that the accused has not committed any criminal act. he was just present in the apartment when he was taken to custody. no property is said to have been stolen or removed from the house of pw.2 or pw.5. no property was found in the possession of the accused. none of the residents knew the purpose of visit of the accused. merely because accused was possessing mos.1 and 2, they made their own guesswork.  therefore, the trial court came to a conclusion that the evidence on record does not satisfy the ingredients either for the offence punishable under section 397 or sections 398 and 511 ipc. besides, the trial court has held that the evidence of the prosecution does not inspire confidence of the court. there is material contradictions. therefore, the trial court came to a conclusion that the prosecution has failed to establish its case and acquitted the accused. 7. feeling aggrieved by the same, the state has preferred this criminal appeal. 8. the essential ingredients for the offence under section 397 of ipc are as follows: (1) accused committed robbery or dacoity; (2) while committing such robbery or dacoity the accused - (a) used a deadly weapon;  (b) caused grievous hurt to any person; (c) attempted to cause death or grievous hurt to any person. 9. the essential ingredients for the offence under section 398 of ipc is as under: (1) accused attempted to commit robbery or dacoity; (2) while attempting to do so, the accused was armed with a deadly weapon. the charge sheet laid against the accused is for the offences punishable under sections 397,398 read with section 511 of ipc. 10.  in the instant case, i have examined the deposition of pw.2. she is a material witness. she has stated that accused rang calling bell, she opened the door and she raised cry. there is omission to state before the police that on the previous day, she saw the accused. except this, she has not stated anything about accused trespassing into the house or pointing out knife at her or holding her neck; therefore, the prosecution has not established that the accused trespassed into the house, caught hold the neck of the victim - pw.2 and threatened her by pointing out the knife and attempted to rob or commit dacoity, 11.  learned state public prosecutor submitted that the learned sessions judge has failed to appreciate the ingredients of sections 397 or 398 of ipc. the learned sessions judge has not properly appreciated the evidence of pw.2. the learned sessions judge was not justified in acquitting the respondent without assigning any reasons. 12.  as stated earlier, i have carefully examined the evidence of pw.2. though the charge sheet reveals that the accused trespassed into the house, pointed out the knife, caught hold the neck of pw.2, the same is not forthcoming in the evidence of pw.2. there is positive evidence to the effect that she omitted to state before the police that on the previous day, she saw the accused. 13.  the record reveals that the accused was under pre-trial detention. accused was in custody for about three months and seven days. 14.  records of the trial court were received and i have perused the same. under section 384 of the cr.p.c., this court can dismiss the appeal when there is a clear finding by the trial court regarding acquittal of the accused. presumption of innocence continues even at the appellate stage. when two views are possible, a view which is in favour of the accused is to be given weightage. the facts and evidence on record clearly discloses that the accused has not stolen any article nor he has trespassed into the house of the victim nor he has threatened the victim by pointing out the knife. therefore, the trial court has rightly acquitted the accused. in my view, no ground is made out to interfere with the impugned judgment of the trial court. 15. hence i pass the following: order this criminal appeal is dismissed.
Judgment:

(Prayer: This Criminal Appeal Is Filed Under Section 378(1) And (3) Cr.P.C By The State P.P. Praying That This Hon'ble Court May Be Pleased To Grant Leave To File An Appeal Against The Judgment Date D:20.10.2010 Passed By The Additional Sessions Judge, Ftc-Xiv, Bangalore In S.C.No.999/2009- Acquiting The Respondent For The Offence Punishable Under Sections 397, 398 Read With Section 511 Of IPC.)

1. This Criminal Appeal is filed under Section 378(1) and (3) Cr.P.C. praying to grant leave to file an appeal against the judgment dated 20.10.2010 passed by the Additional Sessions Judge, FTC-XIV, Bangalore, in S.C. No.999/2009, acquitting the respondent for the offence punishable under Sections 397, 398 r/w Section 511 of IPC.

2. Heard the learned Special Public Prosecutor and the learned counsel for the respondent. The records of the trial court were called for and I have carefully examined the same.

3. Facts of the case is as under:

That on 22.01.2008 at about 9.20 a.m. accused came to the Brigade Millennium Apartment, J.P. Nagar, 7th Stage, Bangalore, and rang the bell of house of CW.1. CW.1 was inside the house and she opened the door. Accused pushed her, trespassed into the house and caught hold of CW.2 and put his hand on the neck of CW.2 and threatened her and asked her to point out the money and ornaments which has been kept in the house. He also threatened, in case if she failed to point out the place where the money and ornaments were kept, he will cut her neck by means of a knife. Thereafter, he took her to the bed room. At that time CW.2 struggled and escaped and raised a cry. The neighbourers namely, CWs.3 and 4 and Security Guards CWs.5, 6 and 7 came and caught hold of the accused. Thereafter CW.1 came to the house and the accused was taken to the Police Station. The police have arrested him. The Police seized one red towel, one stainless steel small knife and subjected them to property form 9/2009. Thereby accused is alleged to have committed an offence punishable under Sections 397, 398 read with Section 511 of IPC.

4. In the trial court, PWs.1 to 6 were examined; EXs.P1 to P5(a) were marked; MO.1 knife and MO.2 towel were marked. The defence has not examined any witnesses.

5. PW.1 is the husband of PW.2. His evidence is of hearsay. PW.2 is the eye witness. She has deposed that on 22.01.2009 at 8.30 a.m. her husband had gone to work. Herself and her daughter were present. At 9.30 a.m. she has to leave her daughter to the school. She was about to leave her daughter, at that time calling bell ranged, ft was 9.20 a.m. She thought that her maid servant has come to the house and therefore, she opened the door. The person who ranged the calling bell was not her maid servant. She had also seen him on the previous day. So she was frightened and she raised cry. She identified the accused in the Court. Since she raised cry, neighbourers, security guards and CW.5 came there. Then' they apprehended the accused. Then she telephoned to her husband. The accused was brought to the ground floor from third floor. He was made to sit in the reception hall. They enquired as to why he has come to the apartment. He did not give satisfactory reply. By that time, the occupants of the apartment had reported the matter to the police. Police came to the apartment and took the accused from the reception hall. Since accused came to her house, she thought that he might have come to commit robbery. Accused was having one knife which is marked as MO.1. During her cross examination she states that there are five blocks in the Brigade Millennium. In and around five blocks there is a compound. There is fencing in and around the compound. In the main gate, there are two security guards. From the main gate to reach her house, it takes about two minutes. Normally there will be two to three security guards. There is visitor's book in the reception counter. Visitors have to make entry in the visitor's book. There are lifts. At the time of incident, the security guards were there. When she raised cry, security guards came there and they caught hold of the accused. She has omitted to state before the police that on the previous day, she saw the accused. She narrated this only before the security personnel. She does not know who has telephoned to police. The other suggestions put to her were all denied. After accused was made to sit in the reception hall, police came after half an hour. 

PW.3 is a retired Air Force Officer. When he was in the flat at 9.00 a.m. he heard a cry and lie came out of the flat. The accused had come to the flat and trespassed into the house of charge sheet witness No.4. He enquired the accused as to why he came to the flat and he did not give satisfactory explanation. Accused was taken to the reception counter. He enquired him, but he did not open his mouth. Police came there. Accused was having MO. 1-weapon-knife. MO.1 was folded in a cloth. The statement -was recorded by the police.

During his cross examination, he states that visitors' book is kept in the reception hall. If any visitor comes, they have to make entries in the visitors book. Visitors who have come to the flat have to come from the main gate, after crossing the reception. 

PW.4 is the PSI. He received the complaint and registered a case in Crime No.08/2009. He sent FIR to the Court. He arrested the accused and recorded his voluntary statement. He was holding a stainless steel knife in a red cloth. In the presence of charge sheet witness Nos.5 and 8 he seized the weapon under the seizure panchanama. MO.1 is the knife, MO.2 is the red cloth. He subjected MO.Nos. 1 and 2 to property form No.09/2009. PW 4 has deposed that himself and charge sheet witness No.3 have caught hold of accused and brought him to the reception counter. Though he was cross examined, nothing is elicited in his cross examination to disbelieve his evidence.

PW.5 is the Security Supervisor. He speaks about apprehending the accused. He further deposes that accused was made to sit in the reception hall and he reported the matter to the police through telephone. 

PW.6 is one of the security guards. He heard the cry of CW.2. Accused was taken from the reception hall to the police station. He further deposes that himself, CW.1, CWs.6 and 7 apprehended the accused. Statement under Section 313 of Cr.P.C. was recorded. Accused denied the allegation made against him.

6. Sum and substance of the finding of the trial Court is as under:

Admittedly the evidence clearly speaks that the accused has not committed any criminal act. He was just present in the apartment when he was taken to custody. No property is said to have been stolen or removed from the house of PW.2 or PW.5. No property was found in the possession of the accused. None of the residents knew the purpose of visit of the accused. Merely because accused was possessing MOs.1 and 2, they made their own guesswork. 

Therefore, the trial Court came to a conclusion that the evidence on record does not satisfy the ingredients either for the offence punishable under Section 397 or Sections 398 and 511 IPC. Besides, the trial court has held that the evidence of the prosecution does not inspire confidence of the Court. There is material contradictions. Therefore, the trial court came to a conclusion that the prosecution has failed to establish its case and acquitted the accused.

7. Feeling aggrieved by the same, the State has preferred this criminal appeal.

8. The essential ingredients for the offence under Section 397 of IPC are as follows:

(1) Accused committed robbery or dacoity;

(2) While committing such robbery or dacoity the accused -

(a) used a deadly weapon; 

(b) caused grievous hurt to any person;

(c) attempted to cause death or grievous hurt to any person.

9. The essential ingredients for the offence under Section 398 of IPC is as under:

(1) Accused attempted to commit robbery or dacoity;

(2) While attempting to do so, the accused was armed with a deadly weapon.

The charge sheet laid against the accused is for the offences punishable under Sections 397,398 read with section 511 of IPC.

10.  In the instant case, I have examined the deposition of PW.2. She is a material witness. She has stated that accused rang calling bell, she opened the door and she raised cry. There is omission to state before the police that on the previous day, she saw the accused. Except this, she has not stated anything about accused trespassing into the house or pointing out knife at her or holding her neck; Therefore, the prosecution has not established that the accused trespassed into the house, caught hold the neck of the victim - PW.2 and threatened her by pointing out the knife and attempted to rob or commit dacoity,

11.  Learned State Public Prosecutor submitted that the learned Sessions Judge has failed to appreciate the ingredients of Sections 397 or 398 of IPC. The learned Sessions Judge has not properly appreciated the evidence of PW.2. The learned Sessions Judge was not justified in acquitting the respondent without assigning any reasons.

12.  As stated earlier, I have carefully examined the evidence of PW.2. Though the charge sheet reveals that the accused trespassed into the house, pointed out the knife, caught hold the neck of PW.2, the same is not forthcoming in the evidence of PW.2. There is positive evidence to the effect that she omitted to state before the Police that on the previous day, she saw the accused.

13.  The record reveals that the accused was under pre-trial detention. Accused was in custody for about three months and seven days.

14.  Records of the trial Court were received and I have perused the same. Under Section 384 of the Cr.P.C., this Court can dismiss the appeal when there is a clear finding by the Trial Court regarding acquittal of the accused. Presumption of innocence continues even at the appellate stage. When two views are possible, a view which is in favour of the accused is to be given weightage. The facts and evidence on record clearly discloses that the accused has not stolen any article nor he has trespassed into the house of the victim nor he has threatened the victim by pointing out the knife. Therefore, the Trial Court has rightly acquitted the accused. In my view, no ground is made out to interfere with the impugned judgment of the Trial Court.

15. Hence I pass the following:

ORDER

This Criminal Appeal is dismissed.