- 1 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MS. JUSTICE J.M.KHAZI CRIMINAL APPEAL NO.100021 OF 2017 C/W CRIMINAL APPEAL NO.100093 OF 2017 IN CRIMINAL APPEAL NO.100021 OF 2017 BETWEEN: 1. MANJUNATH @ SAIENTIST MANJYA S/O. KRISHNAPPA BHANDARI, AGE: 24 YEARS, OCC: AGRICULTURE/COOLIE, R/O: RAJAGOPALNAGAR-HUBBALLI, NOW AT NEAR RAILWAY TRACK, RAJAIVGANDHINAGAR, DHARWAD. 2. SHRINIVAS @ SHEENYA @ RAJYA SAIENTIST MANJYAS BROTHER PRAKASH S/O. SIDDAPPA WALMIKI, AGE: 26 YEARS, OCC: AGRICULTURE/COOLIE, R/O: NAGALINGANAGAR, ANANDANAGAR ROAD, OLD HUBBALLI. …APPELLANTS (BY SRI HANUMESH M.DESAI FOR SRI NEELENDRA D.GUNDE, ADVOCATES) AND: THE STATE OF KARNATAKA, BY GOKUL ROAD-HUBBALLI POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD. …RESPONDENT (BY SRI ABHISHEK MALIPATIL, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO ALLOW THIS CRIMINAL APPEAL BY SETTING ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND SENTENCE RECORDED BY THE LEARNED V ADDL. DISTRICT AND SESSIONS JUDGE-DHARWAD SITTING AT HUBBALLI IN S.C. NO.86 OF 2013 DATED 27.10.2016, THEREBY CONVICTING THE APPELLANTS FOR Digitally signed by V N BADIGER Location: HIGH COURT OF KARNATAKA - 2 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 THE OFFENCE PUNISHABLE UNDER SECTION 397 READ WITH 34 OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY. IN CRIMINAL APPEAL NO.100093 OF 2017 BETWEEN: 1 . RAGHVENDRA @ RAGHU @ PARVEEN S/O. HANUMANT AMBIGER, AGE: 23 YEARS, OCC: COOLIE, R/O: GADAG ROAD, HUBBALLI, DIST: DHARWAD. (NOW IN JUDICIAL CUSTODY) 2. NASIR @ RANEBENNUR ASHOK S/O. SATTARSAB KHAJI, AGE: 30 YEARS, OCC: COOLIE, R/O: DHARWAD, PRESENTLY RESIDING AT: GADAG ROAD, RPF OFFICE, JODAPATHI, HUBBALLI. (NOW IN JUDICIAL CUSTODY) …APPELLANTS (BY SRI R.H. ANGADI, ADVOCATE) AND: THE STATE OF KARNATAKA, (GOKUL ROAD POLICE STATION), R/BY ITS S.P.P. DHARWAD, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …RESPONDENT (BY SRI ABHISHEK MALIPATIL, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., SEEKING TO ALLOW THE APPEAL AND SET ASIDE THE IMPUGNED JUDGMENT PASSED IN S.C.NO.86/2013, DATED 27.10.2016, PASSED BY THE LEARNED V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD, SITTING AT HUBBALLI, AND CONSEQUENTLY, THE APPELLANTS / ACCUSED NO.1 TO 4 BE ACQUITTED IN THE INTEREST OF JUSTICE AND EQUITY, PUNISHABLE UNDER SECTION 394 R/W 34 OF I.P.C. AND ETC., THESE CRIMINAL APPEALS, HAVING BEEN HEARD AND RESERVED ON 28.11.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 3 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 CORAM: THE HON’BLE MS. JUSTICE J.M.KHAZI CAV JUDGMENT (PER: THE HON'BLE MS. JUSTICE J.M.KHAZI) In this appeal filed under Section 374(2) of the Code of Criminal Procedure, accused Nos.1 to 4 have challenged their conviction and sentence for the offences punishable under Section 397 r/w Section 34 of IPC. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. A charge sheet came to be filed against accused Nos.1 to 4 for the offence punishable under Section 392 r/w 34 of IPC. It is the case of the prosecution that complainant Ramachandra is a driver. He used to drive the lorry number KA-2/A–5764 belonging to one Shankar of Bengaluru. On 18.02.2009, he loaded steel bundles from Zindal factory and reached Hubli at 2.00 p.m. By the time the said material was unloaded at Surya industries factory, it was 8.00 p.m. The complainant collected transportation charges in a sum of ₹9,300/-. He was having personal - 4 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 money in a sum of ₹2,500/- and along with him cleaner was also there. They parked the lorry near Jyothi petrol bunk, Gokul Road near office of Indian minerals. They cooked dinner and had it. They went to sleep at 10.00 p.m. 3.1 Around 12.30 a.m, four persons woke him up, two of them were holding knives. They demanded him to hand over money. One of them picked up a club from the spot and started assaulting him. The other person dashed his head against the head of the complainant. They snatched away the cash from his pant pocket and returned ₹500/- to him. They also snatched away Nokia handset from him. Hearing his cries when the cleaner tried to get down from the lorry, he was also given threat by the accused persons. The accused persons were aged around 25 to 28 years. Out of them, one was limping. Two of them were wearing red T-shirt. One was wearing green colour T-shirt and the fourth one was wearing yellow colour T-shirt. All of them were speaking in Kannada. A scooterist who was passing by gave him drop to the police - 5 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 station. The concerned police sent him to the hospital for treatment and in this regard he has given complaint. 4. Based on the complaint, the concerned police have registered case in Cr.No.21/2009. According to the prosecution, on 09.05.2010, the investigating officer received information that some persons are in the process of committing offence. He along with his staff proceeded to Gokul Road Bypass and apprehended accused No.2. His statement revealed that he and other accused are involved in Cr.No.21/2009 and Cr.No.20/2010. Similarly, on 28.05.2010 accused No.4 was apprehended and incriminating articles were seized from his possession. After conducting detailed investigation charge sheet came to be filed against accused Nos.1 to 4. 5. Accused Nos.1 to 4 pleaded not guilty and claimed trial. - 6 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 6. In order to prove the allegations against the accused, the prosecution has relied upon the evidence of PWs-1 to 13 and Exs.P1 to 9 and MOs-1 to 3 are marked. 7. Vide the impugned judgment and order the trial Court has convicted all the accused and sentenced them as detailed in the order. 8. Aggrieved by the same accused Nos.1 to 4 have filed these appeals contending that the impugned judgment and order is highly erroneous, perverse and contrary to the settled principles of law. It is contrary to law, facts and evidence on record. The evidence of circumstantial witnesses contradict each other. The injury sustained by the complainant is contrary to his evidence that he was assaulted by knife and club. No test identification parade was conducted. In the absence of the same, identification of the accused is doubtful. The trial Court has also erred in holding that recovery is true, even though the independent witnesses have turned hostile. - 7 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 8.1 Except the testimony of police officers, there is no independent evidence regarding the apprehension of accused persons. The trial Court has convicted accused only on the basis of their voluntary statement. The appreciation of evidence of prosecution witnesses is not in its proper perspective and as such the trial Court has reached to a wrong conclusion. The prosecution has failed to prove allegations against accused beyond reasonable doubt. Hence, the same is not sustainable and calls for interference by this Court. 9. On the other hand, learned HCGP supported the judgment and order of the trial Court and sought for dismissal of the appeal. 10. Heard arguments of both sides and perused the record. 11. PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya are the eye witnesses. PW-5 Ramachandra Gollar is also injured and he has filed the complaint. They - 8 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 are the driver and cleaner of the lorry in question. They have clearly deposed that on the date of incident they transported powder from Bengaluru to Hospet. From Hospet they loaded steel and brought it to Hubli. After unloading the same, they parked the lorry near Jothi Petrol Bunk, prepared food and had dinner and went to sleep around 12.00 in the midnight. While PW-6 Suresh Subramanya slept inside the cabin, PW-5 Ramachandra Gollar slept under the lorry to prevent anyone committing theft of parts. 12. The evidence of PW-6 Suresh Subramanya reveal that accused persons approached him and enquired about the driver and on being informed that driver is sleeping under the lorry, they went towards him. PW-5 Ramachandra Gollar has deposed that around 12.30 - 1.00 a.m, accused persons woke him up. They showed him knife and demanded money. When he refused to give away the money which he had kept in his pant pocket and also cell phone which he had kept in his shirt pocket by - 9 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 covering both pockets with his hands, two of them assaulted on his hands and thigh with club. When he no longer able to prevent them, they forcibly took away the cash and cell phone from him. 13. PW-6 Suresh Subramanya has also deposed that when PW-6 Suresh Subramanya tried to get down from the lorry and come to his rescue and also a security person in the adjoining building sounded whistle and a scooterist tried to come to his rescue, all of them were given threat by the accused persons not to come to the rescue of complainant. The evidence of PW-6 Suresh Subramanya also corroborate with the testimony of PW-5 Ramachandra Gollar. He has clearly stated that when he tried to get down from the lorry, he was given threats by the accused persons. The security person who was blowing whistle and a scooterist who tried to intervene were also threatened by the accused persons. 14. Both PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya have deposed after snatching cash - 10 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 and cell phone from the complainant all the four accused ran away and out of them one person was limping. In fact they have identified the accused persons before the Court. They have also stated that it was accused No.1 who was limping and the date on which they gave evidence also they found him limping. Even though a suggestion is made to PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya that accused No.1 met with accident subsequent to the date of incident and since then he is limping, the accused have failed to establish the said fact. A suggestion was made to PW-5 Ramachandra Gollar that after lapse of 3-4 years it is difficult to identify the accused persons, he has replied that having beaten and given threat by the accused persons and being robbed, the faces of accused persons are imprinted in his mind as a Xerox copy. A suggestion is made to them that there was no sufficient light at the place to enable them to identify the accused persons. Both PW-5 Ramachandra Gollar and PW- 6 Suresh Subramanya have deposed that there was sufficient light and in fact they prepared food and had - 11 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 dinner in the said light. They have also identified the cell phone belonging to PW-5 Ramachandra Gollar which was recovered from the possession of the accused No.1. 15. PW-5 Ramachandra Gollar has denied the suggestion that the transportation charges are being credited to the account of the transporter. However, he has explained that it is a recent development and as on the date of incident, the owner of the goods used to pay the transportation charges into the hands of driver which he used to pay to the owner of the lorry. The testimony of PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya clearly establish the fact that they were attacked by accused Nos.1 to 4 for the purpose of taking away the money found with PW-5 Ramachandra Gollar and also the cell phone. There was sufficient time, light and opportunity for both PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya to identify the accused persons. 16. The evidence of PW-3 Suresh Yellur, PSI, PW-9 Parameshwar Kawatagi, PW-10 Ramagonda Basaragi, PI - 12 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 and PW-11 Vijaya Biradar prove the fact that on 20.03.2010 accused No.1, on 09.05.2010 accused No.2, on 13.05.2010 accused No.3 and on 28.05.2010 accused No.4 were apprehended. So far as the present case is concerned, from the possession of accused No.1 cell phone belonging to complainant i.e., PW-5 Ramachandra Gollar was recovered. The statements of accused Nos.1 to 4 also reveal that they are not only involved in the present case but also in series of cases of robbery, theft etc. 17. Even though the independent witnesses have not supported the prosecution case regarding apprehension of these accused persons, the testimony of PWs-3, 9 and 10 is trustworthy and reliable. As held by Hon'ble Supreme Court in Mallikarjun and Ors. Vs. State of Karnataka (Mallikarjun)1. Despite independent witnesses not supporting the official witnesses, this Court is of the considered opinion that the testimony of PWs-3, 9 and 10 is reliable and trustworthy and can be relied upon. Their 1 (2019) 8 SCC 359 - 13 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 evidence get support from the testimony of PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya who have clearly identified the accused persons and also the cell phone belonging to PW-5 Ramachandra Gollar which was stolen by the accused persons, the knife and club used by the accused persons to threaten and assault him. This corroborates the evidence of PW-9, regarding the apprehension of accused No.1 and recovery of cell phone at MO-1 from his possession. 18. PW-8 Dr.S.B.Katakol examined and treated the complainant i.e., PW-5 Ramachandra Gollar. He has clearly deposed that on 19.02.2009, at 3.10 a.m, PW-5 Ramachandra Gollar was brought before him with history of assault. On examination he found pain and swelling on left thigh, left shoulder, left forehand. He had also suffered a scratch injury measuring 15 cms. He treated and issued injury certificate at Ex.P5. Such injuries are possible if assaulted with a club similar to MO-3. During his cross- examination he has denied the suggestion that injuries - 14 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 suffered by PW-5 Ramachandra Gollar are possible in a road traffic accident or when a vehicle is suddenly stopped and person comes in contact with a sharp article or when a person falls from the vehicle. The testimony of PW-8 supports and corroborate the evidence of PW-5 Ramachandra Gollar and PW-6 Suresh Subramanya. 19. PW-7 Hanamanthagouda Hosamani and PW-12 Ravindra Shirur are the Investigating Officers. Their evidence prove the investigation and filing of charge sheet. 20. Taking into consideration the oral and documentary evidence placed on record the trial Court has come to a correct conclusion that the allegations against accused are proved beyond reasonable doubt. It is consistent with the evidence placed on record. This Court finds no perversity, calling for interference. In the result, the appeals fail and accordingly, the following: - 15 - CRL.A.No.100021 of 2017 c/w CRL.A.No.100093 of 2017 ORDER (i) Crl.A.No.100021/2017 filed accused Nos.2 and 3 and Crl.A.No.100093/2017 filed by accused Nos.1 and 4 are dismissed. (ii) The impugned judgment and order dated 27.10.2016 in S.C.No.86/2013 on the file of V Addl.District and Sessions Judge, Dharwad, sitting at Hubli is confirmed. (iii) The Registry is directed to send back the trial Court records along with copy of this judgment forthwith. Sd/- (J.M.KHAZI) JUDGE RR CT: UMD