- 1 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 1167 OF 2013 (C) BETWEEN: 1. MANJUNATHA B.R @ MITHUN S/O B.S RAJASHEKAR AGED ABOUT 25 YEARS RESIDING AT NO.152 NEAR JAIN HOSTEL ARAVINDANAGAR GOWRIBIDANUR TOWN CHIKKABALLAPURA 561 208. 2. SAGAR S/O SHANTHINATH AGED ABOUT 23 YEARS RESIDING AT BRAHMADEVA NILAYA 2ND CROSS, SRINAGARA, COURT ROAD GOWRIBIDANUR TOWN CHIKKABALLAPURA-561 208. 3. CHANDAN @ CHANDU S/O JAIPAL AGED ABOUT 22 YEARS RESIDING AT SAMPIGE ROAD B.H. ROAD, KAREKALLALLI GOWRIBIDANUR TOWN CHIKKABALLAPURA-561 208. 4. IRFAN S/O SHOWKATH ALI AGED ABOUT 24 YEARS RESIDING AT NO.630 MADHAVANAGAR, B.H ROAD GOWRIBIDANUR TOWN CHIKKABALLAPURA-561 208. Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 5. KIRAN S/O RAMAIAH AGED ABOUT 24 YEARS RESIDING AT 2ND MAIN, 2ND CROSS, VIDYANAGAR, KAREKALLALI GOWRIBIDANUR TOWN CHIKKABALLAPURA-561 208. …APPELLANTS (BY SRI. M.T.NANAIAH, SENIOR COUNSEL ALONG WITH SRI.PRABHUGOUD B TUMBIGI, ADVOCATE FOR A1 TO A3, SRI. S.G.LOKESH, ADVOCATE FOR A4 & A5) AND: STATE OF KARNATAKA BY CHIKKAJALA P.S BANGALORE DISTRICT …RESPONDENT THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 11.11.2013 PASSED BY THE V ADDL. DIST. AND S.J., DEVANAHALLI IN S.C.NO.103/2012 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 399 OF IPC.THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I. FOR 3 YEARS AND PAY FINE OF RS.10,000/- EACH, IN DEFAULT TO PAY FINE, THEY SHALL UNDERGO R.I. FOR 6 MONTHS FOR THE OFFENCE P/U/S 399 OF IPC. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA - 3 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 ORAL JUDGMENT Heard Sri.M.T.Nanaiah, learned Senior Counsel for Sri.Prabhugouda B. Tumbigi, learned counsel for the appellants and Sri.Channappa Erappa, learned High Court Government Pleader for the State/respondent. 2. Appellants are the accused, who have been convicted for the offence punishable under Section 399 of IPC in S.C.No.103/2012 and sentenced to undergo three years rigorous imprisonment for the offence under Section 399 of IPC and to pay a fine of Rs.10,000/- each, in default of payment of fine, they shall undergo imprisonment for a period of 6 months. 3. Facts in brief, which are utmost necessary for disposal of the present appeal, are as under: 3.1. Prosecution charge sheet materials disclose that on 30.01.2012 at about 3.45 p.m., H.J.Tippeswamy, Inspector of Police Chikkajala Police Station received a credible information that near Chappararada Kallu, on V.I.T Road, near Narayanapura cross, about 5 to 6 persons, who are holding the deadly weapons, are in the process of committing dacoit. Accordingly, he revealed the information to his sub-staff and - 4 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 formed a raid team comprising of himself, PSI and other sub- staff members including two panch witnesses namely Suresha and Ramachandra. 3.2. Based on that information, they proceeded to the place of incident and stopped their vehicle and noticed that Maruti Esteem car was parked near the place of incident. They observed that three persons were sitting in the car and two persons were standing outside. Immediately they raided them and apprehended all the five persons and also enquired them. They were able to seize an iron rod, a knife, a chilli powder packet and a car. A mahazar was drafted with regard to the same and later on, Sri H.J.Tippeswamy along with the apprehended persons and seized articles visited the Chikkajala Police Station and lodged the report vide Ex.P2. 3.3. Based on the same, a case came to be registered in Cr.No.6/2012. Thereafter, Sri H.J.Tippeswamy himself registered the case and arrested the appellants and sent them to judicial custody. They also effected the seizure of the articles and sent the same to the Magistrate with a permission to keep - 5 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 them in their custody for the purpose of investigation and later on completed the investigation and filed a charge sheet. 4. Learned trial Magistrate committed the matter to the Sessions Court for trial. Learned Sessions Judge secured the presence of appellants and on completing the necessary formalities, framed the charges for the offences under Sections 399 and 400 of IPC. All the appellants pleaded not guilty. Therefore, trial was held. 5. In order to bring home the guilt of the appellants, four witnesses were examined on behalf of the prosecution comprising of head of the raid party-Sri H.J.Tippeswamy, panch witnesses namely Suresha and Ramachandra and one of the member of the raid party namely Chandrashekar as PW.1 to PW.4. 6. The prosecution placed on record 5 documents comprising of Seizure Mahazar, report given by PW.1, FIR and thereafter, statements of PW.2 and PW.3, which were exhibited and marked as Exs.P1 to P5. The prosecution also placed on record 6 material objects comprising of steel road, iron machete, clubs, knife, a black cloth and chilli powder. - 6 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 7. On conclusion of recording of the evidence, learned trial Judge recorded the statements of the accused as is contemplated under Section 313 of Cr.P.C., wherein the accused have denied the incriminatory circumstances. Thereafter, learned trial Judge heard the parties in detail and convicted the appellants for the aforesaid offence and sentenced as referred to supra. 8. Being aggrieved by the same, the appellants are before this Court, in this appeal. 9. Sri.M.T.Nanaiah, learned Senior Counsel representing the appellants contended that the procedure adopted by PW.1 is incorrect inasmuch as without registering the FIR, he has conducted the raid especially when he had the credible information received in the station itself. 10. He pointed out that there is a serious lacuna in the case of the prosecution inasmuch as when a raid party and investigation officer being one and same. As such, the rights of the appellants have been hampered which is against the principles of law enunciated by various decisions of the Hon’ble - 7 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 Apex Court and this Court and thus, sought for allowing the appeal. 11. He would also contended that in the absence of any independent evidence placed on record, as PW.2 and PW.3 have turned hostile to the case of the prosecution, the testimony of PW.1 and PW.4 are to be considered as self serving and interested testimony and thus, sought for allowing the appeal. 12. Per contra, Sri.Channappa Erappa, learned High Court Government Pleader for the State/respondent supports the impugned judgment. 13. He contended that FIR was based on Ex.P2 and therefore, sufficient compliance has been made that head of the raid party in respect of the incident initially lodged the report. Thereafter, FIR came to be recorded and in the matter of this nature, a protocol that has been followed by the head of the raid party is just and proper and sought for dismissal of the appeal. - 8 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 14. He would point out that mere panchas having turned hostile to the case of the prosecution would not ipso facto resulting doubt in the prosecution case and in such circumstances, panchanama can be proved with the aid of the old testimony of the author of panchanama and the persons, who have participated in the panchanama proceedings and sought for dismissal of the appeal. 15. Having heard the parties in detail, this Court perused the materials on record meticulously. On such perusal of the materials on record, following points would arise for consideration: 1. Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellants for the offence punishable under Section 399 of IPC? 2. Whether the appellants make out a case that the impugned judgment is suffering from legal infirmity and perversity and thus, calls for interference? 3. Whether the sentence needs modification? 4. What order? - 9 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 Regarding POINT Nos.1 AND 2: 16. In the case on hand, even according to the case of the prosecution, PW.1 received the credible information at about 3.45 p.m. when he was in Chikkajala police station. There is no material on record to show that he has entered the said information in the general dairy nor registered any FIR. However, in the matter of this nature, registration of FIR is not a compulsory prerequisite. Thereafter, PW.1 formed the raid party comprising of himself and other police personnel of the Chikkajala police station and he also secured two panch witnesses (PW.2 and PW.3). Thereafter, all of them proceeded to the place as per the credible information, which is near Narayanapura cross on VIT-Chappararada Kallu road. As per the information, head of the raid party spotted the Maruti Esteem car. On close observation, the raid party has noticed that three persons were sitting in the car and two persons were standing outside. Raid party surrounded them and captured all the five persons and on enquiry, they revealed their names and incriminate the articles in the form of MO.1 to MO.6 were recovered from their custody. A panchanama was drafted vide Ex.P1 in this regard. - 10 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 17. Thereafter, head of the raid party brought the persons to the police station who were taken to custody, seized articles and lodged a report vide Ex.P2. Till this stage, the protocol that has been followed by the head of the raid party is an acceptable protocol having regard to the nature of offence that is alleged. 18. However, after Ex.P2 came to be lodged in Chikkajala police station, admittedly other than PW.1, there was somebody who was the Station House Officer. It was the duty of the Station House Officer to register the case based on Ex.P2 and thereafter, he was required to take up the investigation. 19. But, in the case on hand, after lodging Ex.P2, FIR came to be registered by PW.1, matter was investigated by PW.1, arrest of the appellants has been taken place by PW.1, seizure of material objects and sending the same to the FSL, sending the same to the Magistrate, seeking permission and recording the statements of the members of the raid party have all been done by PW.1, which is impermissible in law. - 11 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 20. It is settled principles of law that the head of the raid party and the investigation officer cannot be the same person as the rights of the appellants would get prejudiced in such matters. Therefore, the further investigation conducted by PW.1 and filing charge sheet against the appellants is not in consonance with law. This aspect of the matter has not been taken note of by the learned trial Judge while convicting the appellants. Solely on this ground, the entire trial stood vitiated and learned trial judge ought not have taken cognizance of the offence. Therefore, order of conviction recorded by the learned trial Judge needs interference by this Court terming the impugned judgment as perverse and suffering from legal infirmities. Accordingly, pointy No.1 is answered in the negative and point No.2 in the affirmative. Regarding POINT No.3: 21. In view of finding of this Court on point Nos.1 and 2 as above, the appellants are entitled for acquittal and sentence - 12 - NC: 2025:KHC:6247 CRL.A No. 1167 of 2013 needs to be set aside. Hence, point No.3 is answered in the affirmative. Regarding POINT No.4: 22. In view of the findings of this Court on point Nos.1 to 3 as above, following: ORDER i. Appeal is allowed. ii. Impugned judgment of conviction of the appellants for the offence punishable under Section 399 of IPC is hereby set aside. Consequently, the sentence also set aside. iii. Bail bonds of the appellants stand discharged. iv. Appellants are entitled to refund of the fine amount, if already deposited. Sd/- (V SRISHANANDA) JUDGE VM List No.: 1 Sl No.: 47