Mohd. Aleem vs The State of Karnataka Liyaqat Ali @ Baba Vs The State

Huluvadi G. Ramesh, J.—These two revisions are arising out of the order of learned Sessions Judge in Criminal Appeal No. 11/2009 and 16/2009 dated 22.02.2010 and 22.03.2010 respectively. The petitioners are one Mohd. Aleem who is accused No. 4 and another petitioner is Liyaqat Ali @ Baba who is accused No. 1. According to the prosecution, on 19.06.2006 around 12.00 noon, when CW. 1-Neelkantappa was going from the petrol bunk towards Union Bank Branch near Hanuman temple of Santraswadi to remit the amount to the Bank, the accused No. 1 threw chilly powder on the eyes and snatched the cash bag from the hands of the complainant and the said bag fell down, accused No. 2 took the same which contained Rs. 2,77,434/- and later, both accused No. 1 and 2 have ran away from the spot and also sped away in a Hero Honda motorcycle bearing No. KA-31/L-4648 which belongs to accused No. 4. Incident is said to have taken place at the instance of accused No. 3 who, gave the information and also it is alleged that all the accused No. 1 to 4 have shared the booty. On filing the complaint, the police after investigation filed charge sheet against all the accused before the IV Addl. JMFC, Gulbarga. These accused pleaded not guilty and claimed to be tried. The trial was held and in all, about 18 witnesses were examined and got marked about 20 documents and M.Os. 1 to 9. All the accused were held guilty of the offence u/s 392 R/W Section 34 of IPC and were convicted and sentenced to undergo RI for one year and to pay fine of Rs. 5,000/- each and default sentence of three months. Feeling aggrieved, the two revision petitions are filed separately by accused No. 1 and 4 against the order in Crl. Appeal Nos. 11, 16, 17 and 19 of 2009. The I Addl. Sessions Judge has dismissed the appeal by confirming the order of conviction. Against which these revisions are filed.

Heard the counsel for the respective parties and Addl. SPP.

So far as the first revision is concerned i.e., Crl. RP No. 2573/2010, it is in connection with accused No. 4 who is said to have lent vehicle for the commission of the offence. The argument of the learned counsel for the revision petitioner is that there is no iota of evidence against this accused No. 4 except his vehicle being used and submitted that alleged recovery of Rs. 1,100/- is not a part of booty, nor the petitioner is a party to such commission of offence. It is only that the amount was at home. Father of this accused No. 4 is an Executive Officer from whom the amount is recovered. His involvement is not there and he has been falsely implicated in this case. Accordingly, he has sought for acquittal.

In the connected matter, the counsel appearing for accused No. 1 has submitted that both the courts below have not properly appreciated the evidence on record. Finding given by the courts below are erroneous. Accordingly, he seeks for acquittal.

According to the Addl. SPP, there is a prima facie case against all the accused including this accused No. 2 regarding sharing of booty and by lending motorcycle for commission of offence and as regards another accused i.e., accused No. 1 rather he has taken active part in snatching/robbing the cash bag which was being carried by the complainant to remit huge amount of Rs. 2,77,434/- to the Bank; accused No. 3 is a conspirator and having common intention, committed the offence. There are no grounds to interfere with the finding given by the courts below. Accordingly, he has sought for dismissal of these petitions.

PW-5 is said to be the pancha for recovery. The recovery of the amount is made under panchanama Ex. P. 12. So far as recovery of the amount from A-4 13 concerned, it is only an amount of Rs. 1,100/-. Except recovery of that amount, there are no eyewitnesses to the incident for sharing of booty. Total amount involved is Rs. 2,77,434/-. It is not uncommon to have such a small amount. If some amount is recovered from the house of this A-4, unless such recovery points towards very notes which are the subject matter of seizure out of the robbed amount, it cannot be said that amount recovered from the house of A-4 is the booty amount. So far as the involvement of accused No. 4 is concerned, except lending of the motorcycle, nothing has been made out by the prosecution that this accused had common intention and with that knowledge, accused No. 4 has lent the vehicle to commit robbery. As such, the finding of both the courts below regarding involvement of accused No. 4 based on the recovery panchanama appears to be short of evidence so far as this accused is concerned. Might be that there is a recovery of some small amount from A-4 for which panchas have supported. But the fact remains that there is nothing on record to show that accused No. 4 has shared the booty and that the amount seized is a part of the robbed amount. In that view of the matter, extending the benefit of doubt to A-4, the order of both the trial court as well as appellate court is set aside to that extent and accused No. 4 is held not guilty of the offence with which he was charged. Accordingly, he has been acquitted. The revision petition is allowed. So far as accused No. 1 is concerned, based on the evidence of the witnesses and the complainant, the accused has been identified by the complainant. Already in Crl. Revision Petition No. 2589/2010 filed by this accused No. 2, this Court having accepted the identity of this accused has also noticed that a witness with strong memory could be able to identify a person with whom he had a ghastly experience and also opined that there is nothing elicited in the cross-examination that PW. 1 could not have identified the accused in T.I. parade. Already this court has arrived at a conclusion that this accused has been identified by PW. 1. In that view of the matter, the submission of the counsel for the petitioner that there is T.I. parade held and accused could not have been identified in the spur of the moment cannot be accepted. Rightly, both the courts below held accused No. 1 and 2 guilty of the offence. The said finding cannot be interfered with. Accordingly, revision petition No. 2529/2011 is dismissed.