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Judgment
N. Ananda, J.—The appellants (hereinafter referred as ''accused 1 & 2'') were tried and convicted for an offence punishable u/s 397 r/w 34 IPC. Therefore., they are before this court. I have heard Sri Dinesh, learned counsel for accused and Sri B. Visweswaraiah, learned HCGP for State.
Accused no. 1 and 2 were tried for following charges:
That on 16.9.2006 at 11 p.m. near Railway Quarters NO. 73/D at Shimoga when CW1 was proceeding to his house, you both accused have stopped him and threatened him with life by putting the chopper near his neck and you have snatched cash of Rs. 250/-, the Railway Pass and other documents and thereby you have committed an offence punishable u/s 397 r/w section 34 IPC and within my cognizance.
The prosecution has relied on evidence of PW. 1 (victim of robbery), arrest of accused and recovery of stolen properties from possession of accused within a day from the date of commission of offence.
Sri Dinesh, learned counsel for accused submits that at the time of incident, there was darkness and accused was not known to PW1 before the incident. In the circumstances, it was not possible for PW1 to identify accused 1 & 2. The Investigation Officer had not arranged for test identification parade. Therefore, evidence of identification of accused 1 & 2 by PW1 is not free from reasonable doubt.
PW1 has deposed; accused 1 & 2 and PW1 are neighbours; PW1 knew accused, therefore there was no need for the Investigating Officer to arrange for test identification parade.
As per evidence of PW. 1, the incident of robbery took place within the city limits of Shimoga town. The incident took place at about 11 p.m. Therefore, PW. 1 could identify the accused in the light shed by streetlights. It is not suggested to PW. 1 that there was total darkness near the place of incident and he was not able to identify the accused. As already stated, accused No. 1 was known to PW1. Therefore, the submission of learned counsel for accused cannot be accepted.
The learned counsel for accused would submit that a long (M.O. 1) stated to have been used by accused no. 1 was not recovered on information volunteered by accused no. 1. There is satisfactory evidence in proof of recovery of long at the instance of accused no. 1. Therefore, the learned counsel would submit that even if the case of prosecution is accepted at its face value, an offence u/s 397 IPC is not attracted.
As already stated, the prosecution has relied on direct evidence of PW1 (victim of robbery) and recovery of stolen properties.
From the evidence of PW1, we find on the date of incident viz. 16.09.2006 at about 11 p.m., when he was going from railway station to his house near the place of incident, accused 1 & 2 confronted him; accused no. 2 held PW1; accused No. 1 was holding a long; they threatened PW1 and robbed a sum of Rs. 200/-, and a railway pass from possession of PW1; PW1 ran away from that place. The police arrested accused 1 & 2 on the same day and stolen properties were recovered from possession of accused 1 & 2. PW1 has identified accused 1 & 2 before court. PW1 lodged first information at about 12.45 a.m., during intervening night of 16/17.09.2006. There are no reasons to suspect the evidence of PW1. The Investigating Officer has given evidence that accused No. 1 was arrested on the following day of incident. The evidence of Investigating Officer does not suffer from discrepancies. The first information lodged by PW1 lends corroboration to evidence of PW1. Therefore, I hold that prosecution has proved that accused 1 & 2 had threatened and robbed a sum of Rs. 200/- from possession of PW1 near place and time suggested by prosecution.
The next point for determination is:-
Whether the alleged act committed by accused 1 & 2 would attract an offence punishable u/s 397 r/w 34 IPC?
In order to prove an offence punishable u/s 397 r/w 34 IPC, prosecution has to prove that accused used any deadly weapon or caused grievous hurt to any person, or attempted to cause death or grievous hurt to any person.
In the case on hand, PW1 has not deposed that accused 1 & 2 used deadly weapons to rob a sum of Rs. 200/- from his possession. There is no satisfactory evidence to prove that a long was recovered on the information volunteered by accused no. 1. Therefore, I hold accused 1 & 2 guilty of an offence punishable u/s 392 r/w 34 IPC.
In the result, I pass the following:
ORDER
The appeal is accepted in part. The impugned judgment is modified. Accused 1 & 2 are acquitted of an offence punishable under sections 397 r/w 34 IPC. Accused 1 & 2 are convicted for an offence punishable u/s 392 r/w 34 IPC. Accused 1 & 2 are sentenced to undergo simple imprisonment for a period of 4 years and pay fine of Rs. 10,000/- each, in default, to undergo simple imprisonment for a period of six months for an offence punishable u/s 392 r/w 34 IPC. The period of detention undergone by accused 1 & 2 during trial and post-conviction stage is given set off as provided u/s 428 Cr.P.C.