Narayana vs State of Karnataka

Huluvadi G. Ramesh, J.—Appeal is by the accused challenging the order of conviction and sentence passed by the Prl. Sessions Judge, Tumkur on 24.9.2004 in SC 112/2002. The Appellant is the 3rd accused in the sessions case and has been convicted for the offence u/s 397, IPC and sentenced to undergo rigorous imprisonment for seven years and also to pay a fine of Rs. 1,000/- and in default, to undergo simple imprisonment for fifteen days.

The allegation against the Appellant is, on 17.1.2000 around 9.00 p.m. the accused along with others went to the house of one Basavaraj situate at Parthihalli, Madhugiri Taluk armed with deadly weapons and committed robbery of gold ornaments and cash belonging to Basavaraj and his family members and also that of two other ladies and also the articles belonging to Ramachandrappa and in the process, they also threatened Basavaraj, Jagadish, Jayamma and other ladies present there. On the strength of the complaint filed, accused was arrested during investigation. Also, a test identification parade was held. Ultimately, on filing of the charge sheet, having conducted trial, the accused was convicted for the offence u/s 397, IPC. This order of conviction against the accused has been challenged.

In another appeal filed by the accused before this Court i.e., against the order in SC 53/1999, in Crl.A 1157/2003, by ar. order of conviction and sentence rendered by the I Addl. Sessions Judge, Tumkur on 5.4.2003 for having committed the offence u/s 4 and 5 of the Explosive Substances Act, 1908, this very accused/Appellant was sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 2,000/- and in default, to undergo simple imprisonment for two months for the offence u/s 4 and, to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- and default sentence of one month simple imprisonment for the offence u/s 5 of the Act, this Court by its order dated 27.3.2007 has confirmed the order of conviction rendered by the I Addl. Sessions Judge, Tumkur on 5.4.2003.

The allegation against the accused in SC 53/1999 is, on 31.1.1999 around 7.30 p.m., one Shivashankara Reddy filed a complaint against the accused before the Pavagada Police for the above said offences which was registered in Crime No. 40/1999. This accused along with other accused was found near a flour mill holding a small bag, moving about in suspicious circumstances and at that time, when the complainant and others inquired, it was revealed that the accused is from Indupur and another persons is a resident of Penakonda. After checking the contents of the bag, some heavy substances were found and the accused were apprehended by the villagers on that day i.e., 31.1.1999 and handed him over to the police. The police having found some explosive substances, charge sheeted this accused.

The allegation against the accused in the present case is, on 17.1.2000 he is involved in the commission of offence (robbery). However, in SC 53/1999, this accused is said to have been apprehended by the villagers and, on 31.1.1999 itself he was taken into custody.

It appears, as per the submission made by the Appellant''s counsel, when the accused is taken into custody on 31.1.1999 itself, the involvement of this accused in another case i.e., in the case on hand wherein the accused has been charge sheeted for the offence u/s 397, IPC in the incident said to have taken place on 17.1.2000 around 9.00 p.m., appears to be remote. However, it may be subject to clarification.

If at all the accused is involved, and some semblance of evidence is lead and a decision is rendered based on that, without properly verifying the records, if the accused was arrested during 1999 itself in connection with the Explosive Substances Act and he was not released on bail, necessarily the story of the prosecution and also the order of conviction also falls to the ground. If no material is produced to the effect that after the accused has been arrested in connection with SC 53/1999, he was released and thereafter in the interregnum while the accused was on bail, if he has committed any offence, then the order of conviction would sustain.

Be that as it may. The fact remains that by the order dated 5.4.2003 in SC 53/1999 the accused was charge sheeted for the offences u/s 4 and 5 of the Explosive Substances Act and was sentenced to undergo rigorous imprisonment for 7 and 5 years respectively and was also imposed with fine.

It is the submission of the counsel representing the accused that the accused is in custody since 1999 January. Such being the case, then the question of his involvement in some other case, i.e., in the case on hand, appears to be a mere concoction. However, in the appeal filed against the order in SC 53/1999, this Court in Crl.A 1157/2003 by order dated 27.3.2007, confirmed the order of conviction and sentence and the sentence is ordered to run concurrently.

In the case on hand, in SC 112/2002, by order dated 24.4.2004 for the offence u/s 397, IPC, the accused was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay fine of R. 1,000/-.

If the accused is in custody since 1999, subject to verification, if the sentence is ordered to run concurrently, the accused is deemed to have served the sentence along with the sentence imposed in SC 53/1999 or else, even if it is ordered to run consecutively, the accused has almost served 12 years of sentence. Further, the accused is shown to have served sentence of 11 years as of this day.

In the circumstances, without commenting on the merits of the case, since it is submitted that the accused is seeking the benefit u/s 427, Cr.PC to set of the sentence for the sentence already undergone by ordering the sentence to run concurrently, this appeal is allowed in part. Since the accused is said to be in custody since 1999, subject to verification, it is deemed that he has also served the sentence in this case. However, so far as default sentence is concerned, if the fine amount is not paid in this ease, he has to serve fifteen days simple imprisonment. Further, since the accused is almost in custody for nearly 11 years, he be set at liberty forthwith, if not required in any other case.

Appeal is allowed in part.