- 1 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE V SRISHANANDA CRIMINAL APPEAL NO. 2240 OF 2024 BETWEEN: 1. SYED IBRAHIM @ RAHIL S/O SAIYAD HAFEEZ, AGED ABOUT 23 YEARS, RESIDING NEAR SUNNI MECCA MASJID, 3 CROSS, SEEME ENNE BEE, SHIVAMOGGA. 2. MOHAMMED MUSTAFA @ MUSTU, S/O HAMATULLA, AGED ABOUT 22 YEARS, RESIDING NEAR DANA PALACE, SOOLEBAILU, BYPASS ROAD, SHIVAMOGGA DISTRICT 3. MOHAMMED ALLBHATHI @ BHAKSHI, S/O ANWAR SBA, AGED ABOUT 22 YEARS, RESIDING NEAR DANA PALACE, SOOLEBAILU, BYPASS ROAD, SHIVAMOGGA DISTRICT …APPELLANTS (BY SRI. V.D. RAVIRAJ, ADVOCATE) AND: STATE OF KARNATAKA, BY NEW TOWN POLICE STATION, Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 BHADRAVATHI REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BENGALURU-560 001. …RESPONDENT (BY SRI. RAHUL RAI K., HCGP) *** THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.PC (FILED U/S 415(2) BNSS) PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 07.10.2024 AND ORDER OF SENTENCE DATED 07.10.2024 PASSED IN S.C.NO.5064/2021 BY THE LEARNED IV ADDL. DISTRICT AND SESSIONS JUDGE, SHIVAMOGGA, SITTING AT BHADRAVATHI, FOR THE OFFENCE P/U/S 397 OF IPC AND ACQUIT THE APPELLANTS, IN THE INTEREST OF JUSTICE. THIS CRIMINAL APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.V.D. Raviraj, learned counsel for the accused/appellants and Sri.Rahul Rai K., learned High Court Government Pleader for the respondent/State. 2. Though the matter is listed for Orders, by consent of the parties, the matter is taken up for final disposal. - 3 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 3. The appellants herein have suffered an order of conviction, for the offence punishable under Section 397 of the Indian Penal code, 1860 ('IPC' for short) in Sessions Case No.5064/2021, on the file of the learned IV Additional District and Sessions Judge, Shivamogga (sitting at Bhadravathi) (hereinafter for brevity referred to as the "Sessions Judge"), by judgment dated 07.10.2024 and ordered to undergo simple imprisonment for a period of seven years and one month each. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 3.1. A complaint came to be lodged with the New Town Police, Bhadravathi, by the complainant, stating that, on 28.04.2019, CW-1 had been to Shivamogaa and when he was returning to Bhadravathi to his house near Bilaki Cross, at about 11:15 p.m., on his two wheeler bearing registration No.KA-14/EH-3625, the appellants intercepted his free movement and the first accused took out a knife and under the knife point, demanded the - 4 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 valuables. Second accused said to have held the hands of CW-1 and at that juncture, the third accused robbed a sum of `1,500/- from the shirt pocket of the complainant and a Nokia Mobile hand set and a Sonata Wrist Watch and abused the complainant and they caused fist injury. 3.2. Based on such complaint, the New Town Police registered a case for the offence punishable under Sections 397 of IPC and after detailed investigation, filed a charge sheet. 4. Learned Sessions Judge, after taking cognizance of the aforesaid offence, secured the presence of the appellants and framed the charge only under Section 397 of IPC. 5. The accused/appellants pleaded not guilty and claimed to be tried. Therefore, trial was held. 6. In order to bring home the guilt of the accused/appellants, the prosecution, in all, examined twelve witnesses and placed on record, in all, 24 - 5 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 documents which were exhibited and marked as Exs.P-1 to P-24, besides marking three Material Objects as MO-1 to MO-3, comprising of knife, Mobile phone and another knife with a wooden handle. 7. On conclusion of recording of the evidence, learned Sessions Judge recorded the accused statements as is contemplated under Section 313 of Cr.P.C., wherein the accused have denied all the incriminatory circumstances that were found against them, but did not choose to place their version on record nor placed defence evidence. 8. Thereafter, the learned Sessions Judge heard the arguments of the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record by the prosecution in a cumulative manner, convicted the accused/appellants for the offence punishable under Section 397 of IPC and sentenced them to undergo simple imprisonment for a period of seven years and one month. - 6 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 9. Being aggrieved by the same, the appellants are before this Court in this appeal. 10. Sri.V.D. Raviraj, learned counsel for the accused/appellants, reiterating the grounds urged in the appeal memorandum, contended that conviction of the appellants for the offence under Section 397 of IPC has resulted in miscarriage of justice inasmuch as there is no charge either for the offence under Section 392 or Section 395 of IPC and therefore, the very framing of charge under Section 397 of IPC itself is impermissible and sought for allowing the appeal. 11. Alternatively, Sri. Raviraj, learned counsel for the appellants would contend that, in the event of this Court upholding the order of conviction, it may be scaled down to offence under Section 392 of IPC, as there is no usage of deadly weapon in the incident and the custody period of 172 days already undergone by the appellants may be treated as the period of imprisonment, by enhancing the fine amount, reasonably. - 7 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 12. Per contra, Sri. Rahul Rai K., learned High Court Government Pleader for the respondent/State supports the impugned judgment by contending that, the very fact of the seizure of mobile hand set and the knife would conclude the commission of offence punishable under Section 397 of IPC. 13. He would further contend that, in the absence of any previous enmity or animosity nurtured by the complainant against the appellants, why would the complainant falsely implicate the appellants in a case like this allowing the real culprits to escape away from the clutches of law, is a question that remains un-answered on behalf of the appellants and thus sought for dismissal of the appeal. 14. Insofar as the alternate submission made by the learned counsel for appellants is concerned, Sri. Rahul Rai, learned High Court Government Pleader for the State would contend that, if people like the appellants are shown mercy and leniency by this Court, the same - 8 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 would send wrong message to the Society and thus sought for dismissal of the appeal. 15. Having heard the parties in detail, this Court perused the material on record meticulously and on such perusal of the material on record, the following points would arise for consideration: 1) Whether the material evidence placed on record would be sufficient enough to sustain the order of conviction passed by the learned Sessions Judge for the offence punishable under Section 397 of IPC? 2) Whether the appellants make out a case of legal infirmity and perversity in the impugned judgment? 3) Whether the sentence needs modification of the impugned order? 4) What order? REG. POINT Nos.1 AND 2: 16. In the case on hand, the incident that occurred on 28.04.2019 at about 11:15 p.m., near Bilaki Cross, - 9 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 Bhadravathi, is established by the prosecution, by placing cogent evidence on record. 17. The Test Identification Parade (TIP) conducted by the Tahsildar has been placed on record. The complainant was successful enough in identifying the accused/appellants in the Identification Parade in all the rounds. Moreover, he has identified the appellants before the Court. 18. No doubt, there is an admission in the cross- examination of the complainant that before he participated in the Test Identification Parade, Police had shown him the photographs of the appellants. But, by that itself, the entire Test Identification Parade proceedings and identification of the appellants by the complainant before the Court cannot be doubted. 19. Moreover, as rightly contended on behalf of the prosecution, in the absence of any previous enmity or animosity nurtured by the complainant against the appellants, why would the complainant falsely implicate - 10 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 the appellants in the incident, is a question that remains un-answered. 20. Further, the recovery of mobile hand set belonging to the complainant from the custody of the appellants would sufficiently corroborate the case of the prosecution in establishing the nexus between the incident and appellants. 21. All these factors when viewed cumulatively, the allegation of the prosecution that the appellants have intercepted the free movement of the complainant on 28.04.2019 at about 11:15 p.m. near Bilaki Cross, Bhadravati, when the complainant was proceeding on his two wheeler bearing registration No.KA-14/EH-3625 stands established, by placing necessary evidence on record. 22. Further, as rightly contended on behalf of the appellants, in the absence of any charge being framed for the offence under Section 392 or Section 395 of IPC, framing of charge under Section 397 of IPC alone is - 11 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 impermissible. Moreover, Section 397 of IPC is not a charging Section. Further, usage of knife is not established by the prosecution. Initially, it is the accused No.1 who has threatened the complainant with the knife. But, there are two knives which have been recovered. 23. All these factors when viewed cumulatively, the conviction of the appellants for the offence punishable under Section 397 of IPC, is not permissible or sustainable. 24. In a matter of this nature, when the charge is defective, the only remedy that is left open for the appellate Court is to set aside the judgment of conviction and remand the matter to the Trial Court for framing the modified charge. But, at this distance of time, if the accused are directed to face a de-novo trial by reframing the charges, they would be put to untold hardship and also custody period already undergone by the appellants will be of no consequence. - 12 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 25. Instead, taking note of the fact that there is no bleeding injury caused by use of the seized weapons, namely MO-1 and MO-3, this Court is of the considered opinion that, if conviction of the appellants, scaled down from Section 397 of IPC to Section 392 of IPC, ends of justice would be met. 26. In view of the foregoing discussion, point Nos.1 and 2 are answered partly in the affirmative. REG. POINT No.3: 27. In view of the above finding by this Court on point Nos.1 and 2 above, especially, scaling down the offence from Section 397 to Section 392 of IPC, this Court is of the considered opinion that, the custody period of 172 days already undergone by the appellants, if ordered as period of imprisonment by enhancing the fine amount in a sum of `50,000/- by each appellant, it would meet the ends of justice. - 13 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 28. Further, out of the fine amount recovered, if a sum of `25,000/- is ordered to be paid as compensation to PW-1 -- Mohammad Khalil Ahamad and balance sum of `1,25,000/-, if ordered to be appropriated towards defraying expenses of the State, ends of justice would be met. 29. Accordingly, point No.3 is answered partly in the affirmative. REG. POINT No.4: 30. In view of the findings of this Court on point Nos.1 to 3 as above, following: ORDER i. The criminal appeal is allowed in part; ii. The accused/appellants herein are acquitted for the offence punishable under Section 397 of IPC and the custody period of 172 days already undergone by them is ordered to be treated as the period of imprisonment by - 14 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 directing each of the appellants to pay the enhanced fine amount of `50,000/- before the learned Sessions Judge, on or before 25.03.2025, failing which, the appellants shall undergo simple imprisonment for a period of two years. iii. Out of the recovered fine amount of `50,000/- each (i.e. total `1,50,000/-), a sum of `25,000/- is ordered to be paid as compensation to the complainant (PW-1)- Mohammed Khalil Ahamad, S/o. Riyaz Ahamad, under Section 357 of Cr.P.C., by securing his presence under due identification. The balance sum of `1,25,000/- shall be appropriated towards defraying expenses of the State. iv. In view of disposal of the appeal on merits, I.A.No.1/2024 is consigned to records. - 15 - NC: 2025:KHC:8201 CRL.A No. 2240 of 2024 Office is directed to return the Trial Court records with a copy of this judgment forthwith, for issuing a modified conviction order. Ordered accordingly. Sd/- (V SRISHANANDA) JUDGE BMV* List No.: 1 Sl No.: 20 CT:SNN