- 1 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE H.P.SANDESH CRIMINAL APPEAL NO.1018 OF 2013 C/W CRIMINAL APPEAL NO.279 OF 2013 IN CRL.A No.1018/2013 BETWEEN: VELU S/O BYATAPPA AGED ABOUT 23 EYARS R/O SHANIMAHATHMA TEMPLE ROAD VASANTHAPRUA SLUM SUBRAMANYAPUR POST NEAR UTTARAHALLI BANGALORE …APPELLANT (BY SRI PREMA KUMAR G A, ADVOCATE) AND: STATE OF KARNATAKA BY YELAHANKA POLICE STATION BANGALORE CITY (REP. BY LEARNED STATE PUBLIC PROSECUTOR) Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 …RESPONDENT (BY SMT. K P YASHODHA, HCGP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE DATED 26.02.2013 PASSED BY THE CITY FAST TRACK COURT-IV, BANGALORE IN S.C.NO.817/2012 AND ETC. IN CRL.A NO. 279/2013 BETWEEN: PRAVEENA S/O SIDDARAJU, AGED ABOUT 23 YEARS, R/AT NEARS J.E.T. SCHOOL, HOUSING BOARD, KANAKAPURA TOWN, RAMANAGAR ...APPELLANT (BY SRI A N RADHA KRISHNA, ADVOCATE) AND: STATE OF KARNATAKA BY THE POLICE OF YELAHANKA POLICE STATION BANGALORE ...RESPONDENT (BY SMT. K P YASHODHA, HCGP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER - 3 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 OF CONVICTION AND SENTENCE DATED 26.02.2013 PASSED BY THE F.T.C.-IV, BANGALORE IN S.C.NO.817/2012 AND ETC. THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE H.P.SANDESH ORAL JUDGMENT These two appeals are filed by accused Nos.1 and 2 challenging the judgment of conviction and sentence dated 26.02.2013 passed in S.C.No.817/2012. 2. Heard the learned counsel appearing for the respective parties. 3. The factual matrix of the case of the prosecution before the Trial Court that PW3 has received the credible information that these two accused along with other accused persons making the preparation to commit dacoity. On the said information, they went to the spot and observed that some persons are making preparation - 4 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 and hence, raid was conducted on 01.07.2011 at 9.30 p.m. near Neelagiri plantation compound, Kenadiyan school road, Yelahanka, Bengaluru also charges leveled against the accused persons that all of them belongs to a gang of persons assembled for the purpose of habitually committing dacoity and four accused were apprehended at the spot and one person ran away from the spot and thereafter, the person who ran away from the spot has been arrayed as accused No.5. Accused No.2 was on bail and he was arrested on 01.07.2011 and released on 21.07.2011. Accused No.1 also granted bail and subsequently, he was taken to the custody on 01.08.2011 under body warrant and still, he is in judicial custody. 4. The Trial Court considered the plea of the accused persons and they claim for trial. The prosecution examined the witnesses as PW1 to PW4 and also got marked the documents at Ex.P.P1 to P4 and also got marked the material objects as MO1 to MO3. PW1 is an independent panch witness and other witnesses PW2 to - 5 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 PW4 are the raiding parties. The Trial Court considering both oral and documentary evidence placed on record comes to the conclusion that the accused persons were making preparation of committing the dacoity and also they are the habitual offenders and hence, convicted and sentenced for a period of four years for both the offences with fine of Rs.10,000/-. 5. The learned counsel for accused No.2 would vehemently contend that according to the prosecution, the incident was taken place on 01.07.2011 at about 9.30 p.m. PW3 who has received the credible information of preparing to commit the offence of dacoity, went along with PW1 and PW2 to the spot and found that some persons were sitting behind the compound. Hence, immediately he sent PW1 along with one of his staff and both of them went and confirmed that the accused are talking about committing dacoity and immediately, conducted the raid and apprehended four accused persons at the spot and one accused ran away from the spot. The - 6 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 counsel would vehemently contend that when the information was received about committing of dacoity, even did not make any entry in the Station House Diary but proceeded to the spot and conducted the raid. The counsel also would vehemently contend that PW3 who received the credible information is the complainant as well as the investigator. Though part of the investigation was done by PW4 who registered the case and conducted the investigation, but again PW3 only investigated the mater and filed the charge-sheet. 6. The counsel brought to notice of this Court the Ex.P1 - spot mahazar wherein it is stated that knives are seized when the same was hiding with their waist and pocket. The counsel also brought to notice of this Court that PW1 categorically deposed that they found the accused persons along with knife with their hands. Hence, there are material contradictions with regard to the possession of knife. The counsel also would vehemently contend that the very preparation of committing offence of - 7 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 dacoity is doubtful since there are material contradictions. Even though PW1 was an independent witness, he has not signed the mahazar and he categorically says that his signature was not taken at Ex.P1-spot mahazar. The counsel contend that there are material contradictions in the evidence of prosecution witnesses though PW1 says that knife was with their hands but in the cross- examination, he says that he could identify the accused persons with the help of light but he categorically admits that in Ex.P1, it is not mentioned about the light. 7. The counsel also brought to notice of this Court that PW2 also categorically admits in his cross- examination that PW1 came and informed that accused persons are having knife. But in the cross-examination, he also claims that they found the accused persons with the help of light and categorically admits that same was not stated in the statement. Apart from that he categorically admits that at the distance of 50 to 60 feet, it is difficulty to see the persons who are sitting behind the compound. - 8 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 8. The counsel appearing for the appellant brought to notice of this Court the admission elicited from the mouth of PW3 evidence wherein he categorically says that he did not mention anything at Ex.P2 that when he was there at the time of receiving of the credible information and also admits that school was closed at that time and also admits that no notice was given to the panch witnesses and also admits that in the said place of incident public normally pass through in that road and he also admits that the front light of the vehicle go up to 100 feet and they have parked the vehicle at the distance of 50 to 60 feet . It is also admits that when the vehicle was parked, accused persons did not make any attempt to run away from the spot and they were standing at the spot about 10 minutes and also admits that the details of knife measurement are not mentioned in Ex.P1. 9. The counsel also would vehemently contend that the evidence of PW4 also not credible. Though he says that accused Nos.1 to 4 were arrested at the spot - 9 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 and recorded the voluntary statement of the accused persons, but the said voluntary statement was not placed on record before the Court. He says that FIR was sent on the next day to the Court not on the same day. He cannot tell to whom the same was sent. The counsel also brought to notice of this Court Ex.P1 - spot mahazar wherein a reference was made with regard to the fact that each of the accused persons having possessed the knife and two accused persons were hiding the same in their waist and two of them having the same in their pocket. The counsel also contends that all these contradictions were not taken note of by the Trial Court. The counsel would vehemently contend that in order to invoke Section 400 of IPC also there is no material before the Court and the Trial Court committed an error in convicting and sentencing the appellants for both the offences. 10. The counsel in support of his arguments relied upon the judgment of the Apex Court reported in 1995 CRI.L.J 3988 in the case of MEGHA SINGH vs STATE - 10 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 OF HARYANA wherein the Apex Court discussed with regard to the appreciation of evidence of police officials and held that discrepancy in their depositions as to number of cartridges recovered and independent witnesses, though available, no examined and such discrepancy would not inspire confidence about reliability of prosecution case and also held that Head Constable arresting accused and recovering pistol and cartridges from him, formal FIR lodged on his complaint, being complainant, he should not have proceeded with investigation of the case. 11. 11. The counsel also relied upon the judgment of the Apex Court reported in AIR 1979 SC 1412 in the case of CHATURI YADAV AND OTHERS vs STATE OF BIHAR wherein the Apex Court held that the conviction under Sections 399 and 402 was not sustainable because the mere fact that these persons were found at 1 a.m. did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations - 11 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 to accomplish that object. The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated, hence, held that unable to sustain the judgment of the High Court. 12. The counsel also relied upon the judgment of the Allahabad High Court reported in 1999 CRI. L J. 4680 in the case of RAM SEWAK AND ETC. vs THE STATE wherein discussion was made with regard to the prosecution case that after receiving information that gang of dacoits would assemble at a particular place to commit dacoity police raiding party raided the place, made spot arrests while they were making preparations and recovered weapons of offence, fact that dacoits did not notice presence of police party near the place where they assembled and did not open fire was difficult to believe, evidence of members of police party and other witnesses full of discrepancies and not reliable and prosecution story - 12 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 of spot arrest and recovery of weapons highly doubtful and held that accused entitled for acquittal. 13. The counsel also relied upon the judgment of Allahabad High Court reported in 2000 CRI. L. J. 867 in the case of RAM KISHAN AND ANOTHER vs STATE OF U.P. OPPOSITE PARTY wherein also an observation is made with regard to Sections 399 and 402 of IPC and held that police officer who was architect of raid not testifying before Court about time and place where alleged information of dacoity was received. Nothing to show as to how witnesses for raid were procured, spot position of raiding parties not found convenient to avoid detection by dacoits, position of witnesses not such as to make possible even hearing of conversation of dacoits, and it was unlikely that gang of dacoits would submit themselves before police without contest and under such circumstances, prosecution story of raid, spot arrest, recovery highly doubtful and accused entitled to acquittal. - 13 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 14. Per contra, the learned counsel appearing for the State would vehemently contend that the raid was conducted based on the credible information and on the said information only, police went to the spot and after confirmation by sending one of the raiding party and independent panch witness with regard to the committing of dacoity, raid was conducted and accused persons were apprehended. The counsel also would vehemently contend that one of the accused person ran away from the spot and split charge-sheet is also filed against accused Nos.4 and 5. The counsel also would vehemently contend that the Investigating Officer who investigated the matter though received the credible information and conducted part investigation and same will not cause any injustice and also fact that PW4 also registered the case and partly conducted the investigation is not in dispute and same cannot be a ground to set aside the judgment of conviction and sentence. - 14 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 15. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record and also considering the principles laid down in the judgments referred supra, the point that would arise for the consideration of this Court is: 1. Whether the Trial Court committed an error in convicting accused Nos.1 and 2 for the offences punishable under Sections 399 and 400 of IPC and whether it requires interference of this Court exercising the appellate jurisdiction? 2. What order? Point No.1: 16. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that it is the case of the prosecution that these two accused persons along with other accused - 15 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 persons making preparation to commit dacoity and charge under Section 400 of IPC shows that they are habitual offender and intent to commit dacoity. Before going to consider the accusation is concerned, this Court would like to make it clear that none of the witnesses speak with regard to the charge under Section 400 of IPC. Though an attempt is made by the learned counsel for the State to show that PW4 was spoken with regard to the fact that the accused themselves have stated that they have committed the similar offences in different places and if they accompany them, they are going to show the material for having committed the offence in their voluntary statement. But no such voluntary statement is placed before the Court except placing the document of Ex.P1 and P2. When such material is not placed, except oral say of PW4, the question of invoking Section 400 of IPC does not arise. Unless the material is placed before the Court that the accused persons have indulged in committing of similar offence and ingredients of Section 400 of IPC is also very clear that whoever, at any time after the passing - 16 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 of this Act, shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. In order to attract Section 400 of IPC is concerned, except oral say of PW4, nothing is placed on record. Hence, the very order passed by the Trial Court convicting the accused for the offence punishable under Section 400 of IPC is erroneous and same is passed without any material. 17. Now, coming to the aspect of offence under Section 399 of IPC that is making of preparation to commit dacoity is concerned, no doubt, PW3 says that he has received the credible information about committing of cognizable offence. But he has not stated anywhere that he has noted the same in the Station House Diary and he proceeded to the spot along with PW1 and PW2. In the cross-examination of PW3, he categorically admits that he did not mention anything that where he was there when - 17 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 he received the credible information and same is not mentioned in Ex.P.P2. It is important to note that he says that he went along with raiding party and secured PW1. He categorically admits that even for PW1 also, no notice was given. He also categorically admits that the place where they were sitting is a public road behind the compound. 18. It is also important to note that PW1 also categorically admits that notice was not given to him in writing but he is aware of the contents of Ex.P1 and also he admits that his house is at the distance of 1½ km from the police station. He also says that compound height is 4 to 5 feet. But it is the evidence of PW3 that they were sitting behind the compound and also categorically admits that no one will be visible at the distance of 50 to 60 feet since they were at 50 to 60 feet distance. 19. Apart from that PW3 evidence is that when the raid was conducted and apprehended the accused persons, recovered the knife from the waist as well as from the pocket. PW1 says that he went along with the raiding - 18 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 party to confirm that whether the accused persons making the preparation to commit dacoity, he found the knives in their hands. But it is the case of the prosecution that the accused were hiding the same in their waist as well as in the pocket and the same is contradictory to each other. 20. PW3 categorically says that they went and parked the vehicle for 10 minutes, they did not make any attempt to ran away from the place. But he says that vehicle light could be seen at the distance of even 100 feet. 21. Having taken note of these facts into consideration and even the evidence of other witnesses, no doubt, evidence of PW2 to PW4 who are raiding parties is available in the absence of independent witness, the Court can consider the same. But there are material contradictions in the evidence of PW1 and PW3 regarding the seizure of knife at MO1 to MO3 from the accused. I have already pointed out that there are material contradictions in the evidence of PW1 and PW3. It is - 19 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 important to note that PW4 says that when the arrest was made, accused gave the voluntary statement with regard to the committing of similar offences at different places. But no such statement is placed on record and no recovery from the accused. When such materials are there, the Trial Court fails to consider all these material on record. It is important to note that PW3 who had received the information had conducted the raid and also he conducted part investigation. The judgment of the Apex Court referred supra wherein it is held with regard to the acting as the complainant as well as conducting of investigation. In the case on hand also, no doubt, PW4 registered the case and conducted the investigation in part. But PW3 himself conducted raid and also the investigation being a complainant as well as raiding party and the same causes prejudice to the interest of the accused. Apart from that when there are material contradictions and also no material with regard to making preparation to commit dacoity, the Trial Court fails to take note of all these material on record. Unless the evidence of official witness - 20 - NC: 2025:KHC:14603 CRL.A No. 1018 of 2013 C/W CRL.A No. 279 of 2013 is credible, question of convicting the accused persons does not arise. Hence, it requires interference of this Court exercising the appellate jurisdiction. 22. In view of the discussions made above, I pass the following: ORDER The appeals are allowed. The impugned judgment dated 26.02.2013 passed in S.C.No.817/2012 is set aside for both the offences and accused Nos.1 and 2 are acquitted for the offences punishable under Sections 399 and 400 of IPC. If any fine amount is deposited, the same is ordered to be released in favour of the accused Nos.1 and 2 on proper identification. Bail bond of accused Nos.1 and 2 stand cancelled. Registry is directed to send the intimation to the Jail Authority to release accused No.1 forthwith. Sd/- (H.P.SANDESH) JUDGE SN