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2009 DIGILAW 841 (KAR)

Arun v. State of Koramangala Police, Bangalore

2009-11-11

ARALI NAGARAJ

body2009
Judgment :- Arali Nagaraj, J. This appeal is by accused Nos. 2 and 3 in Sessions Case No. 328/2006 on the file of the learned Presiding Officer, Fast Track Court-V. Bangalore City (hereinafter referred to as the ‘Trial Court’ for short). 2. The appellants have challenged in this appeal the impugned Judgment and Order of conviction and sentence dated 16.2.2008 passed in the said case convicting both these appellants–accused for the offence under Section 398 read with Section 511 IPC and sentencing each of them to undergo R.I. for a period of three years and six months. 3. At the outset, the learned High Court Government Pleader submitted that accused No. 2 (appellant No. 1) had been in judicial custody from 24.7.2006 and accused No. 3 (appellant No. 2) had been in judicial custody from 31.1.2006 and thus, as on this date, both these appellants-accused have been set at liberty on their completion of the total period of imprisonment for three years and six months and as such, the present appeal deserves to be dismissed as having become infructuous. 4. As against this, Sri. A.N. Radha Krishna, learned Counsel for the accused-appellants strongly contended that though these appellants had filed their application seeking suspension of sentence and bail in this appeal, the same could not be disposed of and the appeal came to be ordered to be listed for final hearing and therefore, his arguments be heard on merits. He further submitted that these appellants had been falsely implicated by the Police concerned and therefore, if the impugned Judgment and Order of conviction and sentence remains on record, the future of the appellants would be adversely affected and therefore this appeal be disposed of on merits. Accepting these submissions of the learned Counsel for the appellant-accused the arguments of both the sides are heard on merits of the appeal. I have perused the impugned judgment and order of conviction and sentence and also the entire material found in the original records obtained from the Trial Court. 5. Accepting these submissions of the learned Counsel for the appellant-accused the arguments of both the sides are heard on merits of the appeal. I have perused the impugned judgment and order of conviction and sentence and also the entire material found in the original records obtained from the Trial Court. 5. As alleged in Ex.P2, the report submitted by PW3 Ramakrishnaiah, then P.S.I, of Koramangala P.S., the case of the prosecution is as under: (a) On 5.1.2006 at about 11 p.m. while PW3 P.S.I was on beat duty along with CWs 3 to 6 on Club Road at Koramangala, he found four persons holding knives and clubs and on seeing them, the said Persons tried to run away from the said place. However the said P.S.I. and his stall apprehended all the said four persons and interrogated them. (b) They disclosed their names as Madhavan (A1), Arun (A2), Gunda (A3) and Nanda (A4). They disclosed before the complainant PSI that when they tried to rob some persons on the said road by threatening them showing knives, they raised cry and then, on seeing the Police, they (accused) tried to run away from the said place, but they came to be apprehended by the Police. Then the said P.S.I. and his staff brought all the said four accused to Koramangala Police Station and registered a case in Crime No. 6/2006 of the said P.S. against all the accused Nos. 1 to 4 for the offence under Section 398 read with Section 511 IPC. 6. On appreciation of the oral evidence of PWs. 1 to 6 documents at Exs. P1 to P3 and M.O. Nos. 1 and 2 knives, the Trial Court, by its Impugned Judgment and Order, convicted all the accused Nos. 1 to 4 for the offence under Section 398 read with Section 511 IPC. Of the said four accused, only accused Nos. 2 and 3 have preferred the present appeal. It appears that the other two accused have not chosen to file their appeal. 7. On careful reading of the averments in Ex. 1 to 4 for the offence under Section 398 read with Section 511 IPC. Of the said four accused, only accused Nos. 2 and 3 have preferred the present appeal. It appears that the other two accused have not chosen to file their appeal. 7. On careful reading of the averments in Ex. P2 report submitted by PW3 P.S.I., it could be seen that the accused are said to have disclosed before the said PSI and his staff that they attempted to rob the persons moving on the said road by showing knives and clubs, PW3 P.S.I. has stated in his cross-examination that, at the time when himself and his stall apprehended accused Nos. 1 to 4, no others were found on the said road. 8. PWs. 4 and 5 are projected as the persons whom the accused attempted to rob. PW 4 has stated in his evidence that when these accused force them, by showing the knives and wooden clubs to part with the money and other articles possessed by them, they raised cry and Police apprehended all the four persons by chasing them. PW5 has also stated in his evidence that on the said date, time and place while himself and PW4 were together moving on the road, some four persons came from their opposite direction holding knives and clubs and forced them to part with the money possessed by them and at that time, the Police, who were on beat duty at that place, came there and all the said persons ran away from the said place on seeing the Police coming there. He has further deposed that the accused Nos. 1 to 4 in this case were shown to him on the next day in the Police Station and he identified them as the same persons, who attempted to rob him and PW5. 9. On careful reading of the evidence of PW3 P.S.I. and PWs. 4 and 5, it could be seen that their evidence is not consistent with the allegations in the complaint. Further, though PW3 complainant P.S.I. has stated in his evidence that he secured the presence of CWs 1 and 2 as panchas at the scene of offence itself and seized from the possession of accused Nos. 1 and 3 M.O. Nos. 1 and 2 knives, the said CWs. Further, though PW3 complainant P.S.I. has stated in his evidence that he secured the presence of CWs 1 and 2 as panchas at the scene of offence itself and seized from the possession of accused Nos. 1 and 3 M.O. Nos. 1 and 2 knives, the said CWs. 1 and 2 have not been examined to prove the seizure of M.O.Nos.1 and 2 under the panchanama Ex. P1. PWs. 4 and 5 have not stated anything about the Police apprehending the accused at the scene of offence itself and seizing from the person of accused Nos. 1 and 3. M.O.Nos. 1 and 2, the two knives. Though it is alleged that the said four persons were holding knives and clubs also, no club is said to have been seized from any of the accused Nos. 2 and 4. Besides this, no evidence whatsoever is placed on record by the prosecution to establish that, M.Os. 1 and 2, the knives said to have been seized from the person of accused Nos. 1 and 3 were deadly weapons so as to attract the penal provisions of Section 398 IPC. 10. The above being the nature of evidence of PWs. 3 to 5. I am of the considered opinion that the Trial Court committed error in relying upon the said evidence to base the conviction of the accused for the offence under Section 398 read with Section 511 IPC. Therefore, the appellants-accused deserve an order of acquittal. 11. This is yet another appeal which is being disposed of after it became infructuous by reason of delay in listing it for final hearing. Order Sheet in this appeal dated 27.08.2008 reveals that this appeal came to be admitted on that date and I.A.No. 1/2008 filed by the accused-appellants seeking suspension of sentence and bail was ordered ‘to go along with the main appeal. This being so, this appeal should have been listed for final hearing within a reasonable time. Unfortunately, it came to be listed for final hearing on 6.11.2009 i.e., more than one year and two months after it came to be admitted. This delay in listing the appeal for final hearing, despite the accused-appellants being in prison, has resulted in ‘injustice to the appellants-accused’ in violation of their fundamental right to life and personal liberty. Unfortunately, it came to be listed for final hearing on 6.11.2009 i.e., more than one year and two months after it came to be admitted. This delay in listing the appeal for final hearing, despite the accused-appellants being in prison, has resulted in ‘injustice to the appellants-accused’ in violation of their fundamental right to life and personal liberty. For no fault of their own, the accused-appellants herein have suffered the entire period of Rigorous Imprisonment for 3 years and six months. 12. I feel that if this matter of delay is not viewed seriously and suitable guidelines are not issued by the High Court in respect of speedy disposal of such Criminal Appeals wherein the accused-appellants are in prison, such instances of injustice to the unfortunate. Poor accused-appellants would be repeated, resulting in loss of public confidence in the Justice Delivery system itself. Therefore, the Registrar (Judicial) is hereby directed to see the suitable guidelines are issued to the concerned members of the staff of High Court, in the matter of listing of such appeals on some priority over other categories of appeals. For the reasons aforesaid, the present appeal is allowed. The impugned Judgment and Order dated 16.2.2008 passed in Sessions Case Nos. 328/2006 by the learned Presiding Officer, Fast Tract Court-V, Bangalore City is hereby set aside. Both the appellants, who are respectively accused Nos. 2 and 3 in the said case, are hereby acquitted of the offence under Section 398 read with Section 511 IPC.