M.S. RAMU @ NAGARAJA, S/O SHESHAIAH, AGED 25 YEARS, RESIDING AT NO. 195, SALOMAN RAJVEER ROAD TO ANTHONY STREET, ANANDAPURA, BANGALORE-560036 Vs. STATE OF KARNATAKA, BY KADUR POLICE, REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR, HIGH COURT BUI

JUDGEMENT

(1.) THIS appeal by the convicted accused No. 1 is directed against the judgment of conviction and order of sentence dated 28.10.2005 passed by the Presiding Officer, Fast Track Court, Kadur in S.C. No. 92/2002 convicting him for the offence punishable under Section 394 read with 395 of IPC and sentencing him to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 2,000/ - for the said offence. The appellant along with 5 other persons was tried for the offences punishable under Sections 397, 398, 120(B) read with 395 of IPC inter alia alleging that all the accused persons hatched a conspiracy to commit dacoity and in furtherance of the said conspiracy, at about 8.15 p.m. on 25.7.2001 while PW. 1 -Siddalingaiah and his brother -PW. 2 -Chandraiah were proceeding on their motor cycle bearing registration No. KA -18 -E -3255, the appellant and accused No. 4 way laid PWs. 1 and 2, accused No. 4 first assaulted PW. 2 who was sitting as pillion rider on the motor cycle, with chopper twice or thrice, as a result of the impact PW. 1 who was riding the motor cycle lost balance and both of them fell down, thereafter accused No. 1 assaulted PW. 1 with knife thereby both PWs. 1 and 2 sustained injuries, at that juncture PW. 2 snatched the weapon from the hands of accused No. 1 and assaulted accused No. 1 as a result, accused No. 1 also sustained injury and fell down. On seeing this, accused No. 4 and other accused who were waiting at a distance ran away from the place and before running away, accused No. 4 by searching the pockets of PW. 2 attempted to commit robbery. As Accused No. 4 was shown as absconding, case against him was split up while the case against accused Nos. 1 to 3, 5 and 6 came to be committed to the Court of Sessions. Before the Court of Sessions, the appellant and other accused persons pleaded not guilty for the charges levelled against them and claimed to be tried. The prosecution in order to bring home the guilt of the accused persons for the charges levelled against them examined PWs. 1 to 20, relied on documentary evidence Exs. P.1 to P.30 and M.Os. 1 to 8. The appellant and other accused persons denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. However, they did not choose to lead any defence evidence. Their defence was one of total denial and that of false implication.

(2.) AFTER hearing both sides and on assessment of oral and documentary evidence, the learned Sessions Judge by the judgment under appeal, held that the evidence placed by the prosecution though established an attempt to commit robbery and in the process PWs. 1 and 2 were assaulted with dangerous weapons like chopper and knife as a result of which PWs. 1 and 2 sustained injuries, the evidence placed on record does not establish the complicity of accused Nos. 2, 3, 5 and 6 and it only establishes the complicity of accused No. 1 and absconding accused No. 4. In that view of the matter, the learned Sessions Judge acquitted accused Nos. 2, 3, 5 and 6 of all the charges levelled against them. In the light of the same, the learned Sessions Judge convicted the appellant / accused No. 1 for the offence under Section 394 read with 395 of IPC and sentenced him to undergo imprisonment as well as to pay fine. Aggrieved by the said judgment, accused No. 1 is in appeal before this Court.

(3.) LEARNED counsel for the appellant contended as under: that the judgment under appeal is highly perverse and illegal inasmuch as the findings recorded by the learned Sessions Judge are not based on any legal and acceptable evidence as such it calls for interference by this Court; that even according to the evidence of PWs. 1 and 2 there was complete darkness at the alleged place of incident, therefore, there was no opportunity for PWs. 1 and 2 to identify the assailants as such the identification of the appellant before the court as one of the assailant could not have been the sole basis to record conviction against the appellant, in the absence of conduct of TI parade immediately after the occurrence of the incident alleged; that even if the evidence of PWs. 1 and 2 are accepted at its face value, it would not establish that there was any attempt to commit robbery and therefore the act said to have been committed by the appellant do not fall within the purview of offence punishable under Section 394 IPC, at best it may attract the offence under Section 324 of IPC; that having acquitted accused Nos. 2, 3, 5 and 6 by recording a finding that there is absolutely no evidence regarding conspiracy and since even according to PWs. 1 and 2 there were only two assailants, the learned Sessions Judge has committed serious error of law in finding the appellant guilty of the offence punishable under Section 394 read with 395 of IPC; that in this regard the learned Sessions Judge has failed to notice that to constitute an offence punishable under Section 395 of IPC, it should answer the requirement of Section 391 of IPC which defines dacoity and it is only if the act of robbery or an attempt to commit robbery is by five or more persons conjointly, it would become dacoity within the meaning of Section 391 punishable under Section 395 of IPC and since in the case on hand, even according to the findings of the learned Sessions Judge, there were only two assailants viz., accused Nos. 1 and 4, the appellant could not have been convicted for the offence under Section 394 read with 395 IPC. Therefore, he sought for setting aside the judgment under appeal.