CHANDRANAIKA ALIAS MARVADI Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THIS Criminal Appeal is filed by the appellants-accused nos. 1 to 6 challenging the judgment dated 31 -7-2003 passed by the principal Sessions Judge Hassan in S. C. No. 211/2002, convicting the appellants-accused for an offence punishable u/s 395 of IPC and sentencing them to undergo imprisonment for life and to pay fine of rs. 5,000/- each and in default of payment of fine, to undergo simple imprisonment for a period of six months for an offence punishable u/s. 395 of IPC.

(2.) THE case of the prosecution in brief is that: the complainant namely, K. M. Adaveeshappa (PW. 1) who is residing in a farm house situated at Kellangere village, Arasikere taluk lodged complaint as per Ex. P. 1 stating that he is staying in the said house along with his family members since 40 years and adjacent to his house, his elder brother Rudrappa (PW. 3) was residing and towards right side of his house at a distance of about 100 feet, there is a house of one K. P. Murthy (PW. 8 ). On 06-04-2002 around 11. 00 p. m. , after having meals, the complainant and his family members slept in theirs house. At about 1. 30 a. m. , of 7-4-2002 complainant heard shouting from the side of house of his neighbour and in the meanwhile, his neighbour namely Murthy telephoned and informed the complainant that somef thieves have come and they are pelting stones towards his house and requested the complainant to come over there, as his family members prevented him from going outside the house stating that father-in-law of his wife's sister had been murdered near K. B. cross in a similar situation earlier, and if he goes there, they would be in trouble, so he kept quite. Within a short span, adaveeshappa and his family members heard the sound of knocking the door of his brother Rudrappa and in the meanwhile, Rudrappa (PW. 3) called his servent Sannaiah (P W. 6) who was sleeping outside. At that time, 4 accused assaulted Sannaiah and brought him near the house of complainant and asked the complainant to open the door or else they would finish off Sannaiah (P W. 6 ). While saying so, those 4 accused started breaking open the door, the compalinant asked them not to break the door and he would open the door, even then the said accused broke open the door and 4 accused gained entry into the house and another 4 accused were standing outside the house. Amongst the 4 accused who entered into the house, one accused was holding a sickle and other 3 accused were holding clubs. Out of the accused who had entered into the house, two accused had smeared some black and white lines on their faces. One among them assaulted the complainant Adaveeshappa on his left shoulder and as such, he sustained severe pain. The other 3 accused smashed the telephone with clubs and they gained entry into the bedroom and threatened the compalainant to open the Almirah and after opening the Almirah, complainantd handed over cash of Rs. 5000/ -. They also demanded the complainant to reveal as to where he had kept the money realised from the sale of toddy. Then thereafter, amongst them one accused forcibly opened the locker by using sickle and took Rs. 75,000/-cash, gold chain weighing about 30 grams, two gold bangles weighing 24 grams, one HMTd ladies watch and also snatched Titan watch which was in the hand of the complainant and also Rs. 500/- cash which kept on the TV stand. Out of the accused who had gained entry into the house, one was trying to talk in Tamil, another was trying to talk in Telugu and another was trying to talk in Hindi but they were unable to talk in these languages properly but they were talking kannada and fluently. After committing dacoidy, the accused foraibly confined complainant (PW. 1) Adaveeshappa, his wife (PW. 2) Prema and his son Harsha in the cattle shed and one accused was guarding them and the other 3 accused went out of the house and the accused who was guarding them got redmoved a pair of gold ear stude from the wife of complainant and when the wife of complainant tried to remove her Mangalasuthra, the said accused told her not to remove mangalasuthra. The accused who had gained entry into the house did not touch the silver articles, which were kept in Almirah. In the meanwhile, some people from Bovi colony came there and on coming to know about their arrival, the decoits ran away in the darkness. Later, the complainant and his family members went and saw that deceits had assulted their servant Sannaiah (PW. 6) and even (PW. 8)K. P. Murthy and his wife had also sustained injuries due to pelting of stones by the decoits. That the accused who had committed dacoity were in the age group of 25 to 40 years and out of them, one accused had worn Lungi and other 3 accused had worn pants. The complainant has stated in his evidence that he could identity them if he sees the accused. It is further case of the prosecution that the dacoits had robbed cash amount of Rs. 80,000/- and gold articles worth about rs. 30,000/- and two watches. After the dacoits went away the complainant and his family members came out of the house and found PW. 6 Sannegowda had sustained severe bleeding injuries. Thereafter, the injured (PW. 6)Sannegowda was shifted to the hospital. On receipt of the complaint Ex. P. 1, PW. 5 Police inspector registered a case in crime No. 50/2002 for an offence punishable u/w. 395 IPC, prepared FIR Ex. P. 6 and forwarded the same to the jurisdictional Magistrate. The further investigation was taken over by the Police Inspector (PW. 9) who visited the spot, drew the spot mahazar, seized the broken wooden piece of the doors and the stones and bricks pelted by the dacoits. The dog squad was pressed into action and the dog after going about half K. M. Stopped near the lake bed of Thirupathihalli wherein one pair leather chappal was found and they were seized. Again, the further investigation was taken over by pw. 10. It is further case of the prosecution that on 27-7-2002, the investigation officer (PW. 10), on getting credible information that accused Nos. 1 to 5 are making preparation to commit dacoity, arrested them and registered a case in crime No. 140/2002 for the offences punishable U/s. 399, 400 IPC. On 28-7-2002 at about 3. 00 a. m. Accused No. 6 was also apprehended and on the basis of the voluntary statements of the accused, the gold articles, watches which were robbed from the house of complainant were recovered at the instance of accused. After recovery of the said articles, the investigation officer summoned the comoplainant Adaveeshappa (PW. 1) who identified the articles as the articles which were robbed from their house and after recording the further statement of the complainant and after completing the investigation, PW. 10 filed charge sheet against the accused for the offence punishable U/s. 395 of IPC.

(3.) IN order to establish the guilt of the accused-appellants, the prosecution has examined as many as 14 witnesses and got marked ex. P. l to P16 and Mos. 1 to MO. 12. No evidence was let in on behalf of the accused-appellants. The defence of the accused is one of total denial of the prosecution case. The statements of the accused was recorded U/s. 313 of Cr. P. C.