- 1 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MRS JUSTICE M G UMA CRIMINAL APPEAL NO. 485 OF 2012 (C) C/W CRIMINAL APPEAL NO. 430 OF 2012 (C) CRIMINAL APPEAL NO. 457 OF 2012 (C) IN CRL.A NO. 485/2012 BETWEEN: MOHAN @ MANU S/O KRISHNAPPA, AGED ABOUT 32 YEARS R/O BELAGUMBA ROAD BHAGYANAGAR, TUMKUR. (NOW IN JUDICIAL CUSTODY CENTRAL PRISON, BANGALORE) …APPELLANT (BY SRI. N.A. KARIYAPPA, ADVOCATE SRI. MOHAMMED MUBARAK, ADVOCATE) AND: STATE OF KARNATAKA BY KYATHASANDRA POLICE, TUMKUR. (REPRESENTED BY LEARNED STATE PUBLIC PROSECUTOR) …RESPONDENT (BY SRI. HARISH GANAPATHY, HCGP) THIS CRL.A IS FILED U/S 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED: 28.2.12 AND SENTENCES DATED: 29.2.12 PASSED BY THE III ADDL.SJ, TUMKUR IN S.C.NO.41/12-CONVICTING THE APPELLANT/ACCUSED Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 FOR THE OFFENCE P/U/SEC.399 R/W 149 OF IPC AND U/SEC.400 R/W 149 OF IPC AND ETC., IN CRL.A NO. 430/2012 BETWEEN: 1. ANANTHA S/O. NARASAPPA AGED 24 YEARS PLUMBING WORKER R/AT 1ST CROSS, NETHAJI ROAD, VIDHYANAGAR, TUMKUR 2. NAGESH S/O NARAYANASWAMY AGED 20 YEARS, BOREWELL WORKER A-2 IS ABATED V/O DATED 17.12.2024 3. HEMANTH S/O. DODDAHANUMAIAH AGED 21 YEARS, ELECTRICIAN BOTH 2 AND 3 ARE R/O. BEHIND WATER TANK VIDHYANAGAR, TUMKUR (NOW IN JC) ...APPELLANTS (BY SRI. VIJAY KUMAR PRAKASH, ADVOCATE FOR SRI. A.H. BHAGAVAN, ADVOCATE) AND: STATE OF KARNATAKA BY KYATHASANDRA POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING, BANGALORE ...RESPONDENT (BY SRI. HARISH GANAPATHY, HCGP) - 3 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 THIS CRL.A IS FILED U/S 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED: 28/29.02.2012 PASSED BY THE III ADDL. S.J., TUMKUR IN S.C.NO.41/11-CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/SEC.399 R/W 149 OF IPC AND U/SEC.400 R/W 149 OF IPC AND ETC., IN CRL.A NO. 457/2012 BETWEEN: 1. DEVARAJA, S/O SRINIVASA, AGED ABOUT 26 YEARS R/AT. BELAGUMBA THOTA TUMKUR. 2. GANGARAJU, S/O CHANDRAPPA, AGED ABOUT 22 YEARS R/O. KUNDUR, TUMKUR TALUK, TUMKUR 3. MANJU, S/O. RAMAIAH, AGED ABOUT 29 YEARS, R/AT. BESIDE N.H.4, JAGANNATHAPURA, TUMKUR. 4. KANTHARAJU, S/O. RAMAIAH, AGED ABOUT 24 YEARS, R/AT: NEAR KEMPEGOWDA COLLEGE, BELGAUMBA, TUMKUR. ...APPELLANTS (BY SRI. R.L.N. MURTHY, ADVOCATE) AND: STATE OF KARNATAKA - 4 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 BY KYATHASANDRA POLICE STATION, TUMKUR. ...RESPONDENT (BY SRI. HARISH GANAPATHY, HCGP) THIS CRL.A IS FILED U/S 374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED: 28.02.2012 PASSED BY THE III ADDL. S.J., TUMKUR IN S.C.NO.41/11-CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/SEC.399 R/W 149 OF IPC AND U/SEC.400 R/W 149 OF IPC AND ETC., THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE M G UMA ORAL COMMON JUDGMENT The appellants in Crl.A.No.430/2012 being accused Nos.1, 5 and 7; the appellants in Crl.A.No.457/2012 being accused Nos.2, 3, 4 and 8; and the appellant in Crl.A.No.485/2012 being accused No.6 in S.C.No.41/2011 on the file of the learned III Additional Sessions Judge at Tumkur, are impugning the judgment of conviction and order of sentence dated 28.02.2012, convicting the accused for the offences punishable under Sections 399 and 400 r/w 149 of IPC and sentencing them to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.1,000/- each, for the - 5 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 offence punishable under Section 399 r/w. 149 of P.C Act and to undergo rigorous imprisonment for a period of 7 years and to pay fine of Rs.1,000/- each, for the offence punishable under Section 400 r/w 149 of IPC, with default sentences. 2. Brief facts of the case are that, accused Nos.1 to 8 were found near Rotiger hotel on 80 feet ring road in Kyathasandra-Tumkur City on 08.07.2010 at 11.30 p.m., forming themselves into an unlawful assembly, armed with deadly weapons like sickle, clubs, knife, wickets etc, with the common object of committing dacoity and being the members of the gang who are habitually committing dacoity. 3. It is stated that PW.8-the Police Inspector received credible information regarding the assembly of accused Nos.1 to 8, and went to the spot, over heard the conversation between the accused and, confirmed that the accused have formed themselves into an unlawful assembly with the common object of committing dacoity. They held a raid, apprehended accused Nos.1 to 8, seized lethal weapons marked as MOs.1 to 8 under the mahzar Exhibit P1 and later registered the FIR. After investigation, the charge sheet has been filed. - 6 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 4. The learned Magistrate took cognizance and committed the matter to the Sessions Court. The Trial Court summoned the accused. They appeared before the Trial Court, pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 8, got marked Exhibits P1 to 5 and identified MO's.1 to 8 in support of its contention. The accused have denied all the incriminating materials available on record in their statements recorded under section 313 of Cr.PC, but have not chosen to lead any evidence in support of their defence. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, and accordingly convicted and sentenced the accused for the offences punishable under Sections 399 and 400 read with 149 of IPC. Being aggrieved by the same, the accused are before this court. 5. During pendency of the appeals, accused No.5 died, and the appeal preferred by him in Crl.A.No.430/2012 was dismissed as abated. - 7 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 6. Heard Sri.N.A.Kariyappa, learned counsel for Sri.Mohammed Mubarak, learned counsel for the appellants and Sri. Harish Ganapathy, learned HCGP for the respondent-State. Perused the materials on record including the Trial Court records. 7. In view of the rival contentions urged by learned counsel for the both the parties, the point that would arise for my consideration is as under: "Whether the appellants have made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point is in the 'affirmative' for the following: REASONS 8. It is the contention of the prosecution that, accused Nos.1 to 8 have formed themselves into unlawful assembly near Rotiger Hotel on 80 feet ring road of Kyathasandara- Tumkur City with the common object of committing dacoity. They were the members of the gang who are habitual in commit dacoity. PWs.1 to 5 and 8 are the police officials who - 8 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 were the part of raiding party. PW.6 and 7 are the independent witnesses, who are said to have accompanied the police to the spot and signatory to the seizure mahazar Exhibit P1. They have not supported the case of the prosecution. 9. PW.1 being the Head Constable, PW.2 being the Police Sub-Inspector, PWs.3 to 5 being the Police constables and PW.8 being the Police Inspector who held the raid have consistently deposed about the facts. Exhibit P5 is the spot sketch of the scene of occurrence, according to which, the place where accused Nos.1 to 8 were found in an unlawful assembly is just beside the hotel called 'Rotiger' which was said to be open till 12.30 p.m. The hotel is abutting to the ring road or 80 feet road. According to the case made out by the prosecution, it was pitch dark at the scene of occurrence and PWs.1 to 8 and CWs.4, 6 and 11, all-together 11 persons went near the place where the accused have formed unlawful assembly and could over-hear the conversation between the accused. It is quiet unnatural to believe the version of the prosecution that even though 11 persons gone so close to the accused without giving them any suspicion, and could apprehend all the eight accused - 9 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 without allowing them to run away from the scene of occurrence. MOs.1 to 8 are the sickle, wicket, club and knife said to be recovered from the possession of accused No.1 to 8. None of these weapons were sealed as required under law and the prosecution witnesses admit that such weapons are available easily in the open market. 10. Learned counsel for the appellants has drawn the attention of the Court to the FIR-Exhibit P2 registered on 08/09.07.2010 at 1.00 p.m., but it reached the learned Magistrate only on 09.07.2010 at 8.10 p.m. This delay in dispatching the FIR and reaching the learned Magistrate is not explained. 11. The other contention raised by the learned counsel for the appellants is that registration of the FIR as per Exhibit P2 is not in accordance with law. No first information is filed in the present case. It is the contention of the prosecution that PW.8 being the Police Inspector received credible information regarding accused forming unlawful assembly and he proceeded to the spot without registering the FIR. Upon recovery of the weapons, he has drawn the mahazar at the - 10 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 spot, and after returning to the police station, he registered the FIR only on the basis of seizure mahazar Exhibit P2. 12. Learned counsel for the appellants places reliance on the decision of this Court in Ekbal S/o Sathar Sab v. State of Karnataka1, where the Co-ordinate Bench of this Court placing reliance on other Co-ordinate Bench decision in Sri.Dayananda @ R.Babu's (supra), held that the conviction recorded by the Trial Court in a case where the FIR was registered on the basis of the mahazar is a non est in law. There is absolutely no explanation by PW.8 who is the Investigating Officer as to why the FIR was not registered immediately after apprehending the accused, nor as to why the credible information received by him was not reduced into writing before proceeding to the spot. 13. As I have already stated above, PWs.1, 5 and 8 are the Police officials, PW.6 and 7 are only the independent witnesses who have not supported the case of the prosecution. Considering all these facts and circumstances of the case, a reasonable doubt will arise in the mind of the Court about the 1 Crl.A.No.873/2013 D.D. 19.11.2024, - 11 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 case made out against the accused. Under such circumstances, the accused are entitled for acquittal. 14. I have gone through the impugned judgment of conviction and order of sentence. The Trial Court has proceeded to convict the accused based on the parrot like version given by PWs.1 to 5, 7 and 8 regarding commission of offence. No materials are placed before the Court to contend that the accused were in the habit of committing the offence and any criminal case is registered against them earlier. Under such circumstances, I am of the opinion that the impugned judgment of conviction and the order of sentence passed by the Trial Court is liable to be set aside and the accused are entitled for acquittal. Accordingly, I answer the above point is in the affirmative and I proceed to pass the following: ORDER i. The appeals are allowed. ii. The impugned judgment of conviction and order of sentence dated 28.02.2012 passed in Sessions Case No.41/2011 by the learned III Additional Sessions Judge at Tumkur, is hereby set aside. - 12 - HC-KAR NC: 2025:KHC:22295 CRL.A No. 485 of 2012 C/W CRL.A No. 430 of 2012 CRL.A No. 457 of 2012 iii. Consequently, the accused are acquitted for the offences punishable under Sections 399 and 400 read with 149 of IPC. iv. Their bail bonds and that of their sureties shall stand cancelled. v. Fine amount deposited, if any, is ordered to be refunded to the accused after expiry of appeal period. Registry to send back the original records along with copy of this judgment to the Trial Court, for information and necessary action. Sd/- (M G UMA) JUDGE MKM List No.: 1 Sl No.: 19