- 1 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 6TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ CRIMINAL APPEAL NO. 100015 OF 2017 (C) C/W CRIMINAL APPEAL NO. 100020 OF 2017 IN CRL.A.NO.100015 OF 2017: BETWEEN: 1. RAGHVENDRA @ RAGHU @ PARVEEN S/O. HANUMANT AMBIGER, AGE: 23 YEARS, OCC: COOLIE, R/O: GADAG ROAD, HUBBALLI, DIST: DHARWAD. 2. NASEER @ RANEBENNUR ASHOK S/O. SATTARSAB KHAJI, AGE: 22 YEARS, OCC: COOLIE, R/O: HUBBALLI COTTON MARKET, GOLLAR ONI, NOW AT: RPF OFFICE, JOPADPATTI, GADAG ROAD, HUBBALLI. …APPELLANTS (BY SRI. R.H.ANGADI, ADVOCATE) AND: THE STATE OF KARNATAKA, R/BY ITS S.P.P., HIGH COURT OF KARNATAKA, DHARWAD BENCH, DHARWAD. …RESPONDENT (BY SRI. M.B.GUNDAWADE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CRPC SEEKING TO KINDLY ALLOW THE APPEAL AND KINDLY SET ASIDE THE IMPUGNED JUDGMENT PASSED IN SESSIONS CASE NO. 85 OF 2013, DATED 7.12.2016 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 AN OFFENCES PUNISHABLE UNDER SECTION 397 OF IPC AND CALL FOR RECORDS IN THE INTEREST OF JUSTICE AND EQUITY. Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.06.19 14:54:44 +0530 - 2 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 IN CRL.A.NO.100020 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 TRUCK, 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. NEELENDRA D.GUNDE, ADVOCATE) AND: THE STATE OF KARNATAKA BY GOKUL ROAD-HUBBALLI POLICE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, DHARWAD. …RESPONDENT (BY SRI. M.B.GUNDAWADE, ADDL. SPP) THIS CRIMINAL APPEAL IS FILED UNDER SECION 374(2) OF CR.P.C., PRAYING TO CALL FOR THE RELEVANT RECORDS AND 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 SESSIONS CASE NO. 85 OF 2013 DATED 27.10.2016, THEREBY CONVICTING THE APPELLANTS FOR THE OFFENCE PUNISHABLE UNDER SECTION 397 READ WITH 34 OF IPC, IN THE INTEREST OF JUSTICE AND EQUITY. THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ - 3 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 ORAL JUDGMENT The accused who were convicted by the V Additional District and Sessions Judge, Dharwad sitting at Hubballi (hereinafter referred to as the ‘trial Court’ for short) in Spl.C.No.85/2013 for the offence punishable under Section 397 r/w 34 of the Indian Penal Code, (hereinafter referred to as ‘the IPC’ for short) have filed these appeals. They have also challenged the sentence imposed on them. 2. The case of the prosecution was that the complainant and his friend were waiting for a lorry near Tarihal Bridge on 02.02.2010 to go to Davangere. At that time, an auto-rickshaw, carrying four passengers came by the by-pass road and complainant and his friends halted the vehicle. The auto driver demanded a sum of Rs.5/- from each of them to drop them at Gabbur cross. One of the passengers was carrying a cricket bat. After proceeding for a kilometer, the auto rickshaw took a right turn towards Revadihalli cross. When the complainant enquired, the auto rickshaw driver told that the other passengers were going to play cricket in a nearby ground and that he would drop them and thereafter drop the complainant and his friend. After traveling for 1.5 kms., the - 4 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 auto stopped and the co-passengers threatened the driver and asked him to get down. The driver was asked to leave the place and the passengers threatened the complainant and his friend to handover the cash and other valuables. They forcibly took away a sum of Rs.5,000/- from the complainant and a silver ring that he was wearing, a sum of Rs.500/- from the friend of the complainant. One of the passengers assaulted the friend of the complainant while complainant was also assaulted with the bat. They were threatened and were forced to run away from the place. Thereafter, the passengers took the auto and ran away from the spot along with the driver. The complainant thereafter informed the police on 02.02.2010 at 2.30 pm who registered a Crime No.20/2010 and took up investigation. 3. It appears that the accused No.1 was arrested by Vidyagiri police on 20.03.2010 and on enquiry he disclosed about commission of several offences including the offence complained on 02.02.2010. Later, accused No.2 was arrested on 26.05.2010, accused No.3 was arrested on 13.05.2010 and accused No.4 was arrested on 28.05.2010. The silver ring belonging to the complainant was recovered from the house of accused No.2 under Ex.P7. The respondent recorded the - 5 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 statement of mahazar witnesses as well as the complainant and the friend of the complainant and therefore filed a charge sheet for offences punishable under Sections 397 r/w 34 of IPC. Copies of the charge sheet were furnished to the accused. The Trial Court framed charges against the accused for the offences stated above. The accused denied the charges and claimed that they be tried. 4. In order to prove the charges, the prosecution examined the complainant as PW.1 and the other panchas as PW.2, PW3 and PW4 and the friend of the complainant as PW.5. The complainant turned hostile while the other panchas also turned hostile. The only witness who supported the prosecution was PW5. The incriminating evidence against accused was confronted to the accused under Section 313 of Cr.P.C. Their defence was one of denial and that they were implicated in the case. 5. Based on the oral and documentary evidence, the trial Court held that the prosecution failed to prove the ingredients of offence punishable under Section 397 of Indian Penal Code. However, it relied upon the recovery of silver ring - 6 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 from the house of accused No.2. It also relied upon the evidence of PW5 who was one of the victims of the crime and who deposed that it was the accused who committed the offence. Consequently, the Trial Court held that the prosecution had proved the guilt of the accused beyond reasonable doubt and having regard to the nature of the offence committed, the Trial Court held that the accused were all guilty of an offence punishable under Section 397 of Indian Penal Code r/w Section 34 of Indian Penal Code and accordingly convicted them for the said offence and sentenced them to undergo simple imprisonment for a period of five years and to pay fine of Rs.1,000/- each. Being aggrieved by the same, the accused are before this Court in these appeals. 6. Learned counsel for the accused submitted that the offence was allegedly committed on 02.02.2010 and first information was furnished on 02.02.2010. They contend that accused were not apprehended by the respondent police. However accused No.1 was apprehended by Vidyagiri police station and based on the information furnished by accused No.1, the other accused were arrested subsequently. They contend that respondent did not take any steps for test - 7 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 identification parade. But after the accused were arrested, they were shown to PW5 who identified the accused. They submit that between February 2010 till May 2010, substantial time had lapsed and the accused were not known to PW5. Therefore, it was reasonably impossible for PW5 to identify the accused. Therefore, the non conduct of a test identification parade is fatal to the prosecution. Besides this, he contends that PW1 who was the complainant turned hostile and hence, except the evidence of PW5, there was no tangible evidence to prove the guilt of the accused beyond doubt. Therefore, he contends that the impugned judgment passed by the learned counsel for the appellants is without appreciation of the evidence on record and is liable to be set aside. 7. Learned Additional SPP on the other hand, contended that the offence was committed in broad day light at 10.30 am. PW5 was one of the victims of the crime and was aged 42 years as on the date of he deposing before the Court. He submits that since the offence was committed in broad day light, it was quite possible that PW5 could easily identify the accused. Therefore, he contends that mere non conduct of test identification parade is not fatal to the prosecution. He also - 8 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 contends that the silver ring which belonged the complainant was recovered from the house of accused No.2 and the recovery established that the accused had committed the offence. 8. I have considered the submissions made by the learned counsel for the accused and the learned Addl. SPP. I have perused the records of the Trial Court and its judgment. 9. In view of the contentions urged, the following point arise for my consideration: “Whether there was sufficient evidence before the Trial Court to convict the accused for the offence punishable under Section 379 r/w 34 of IPC?” 10. As rightly contended by the learned counsel for the accused, the offence was allegedly committed on 02.02.2010 at about 10.30 am. PW1 and PW5, did not know the accused. PW1 and PW5 also did not know from which place the accused hailed. They also did not disclose the facial features of the accused when PW1 lodged the complaint. PW1 claimed in the complaint that he could identify the accused if they were produced before him. It was after nearly two months from the - 9 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 date of the crime that accused No.1 was arrested by Vidyagiri police station. Accused No.2 was thereafter arrested on accused No.2 on 26.05.2010, accused No.3 was arrested on 13.05.2010 and accused No.4 was arrested on 28.05.2010. Based on such arrests and the confession statement of the said accused, further statement of PW1 was recorded on 09.08.2010, 13.05.2010 and 28.05.2010. No doubt, the silver ring belonging to the complainant was recovered from the house of accused No.2 as per Ex.P7. However, the recovery of silver ring was not proved in the manner known to law as all the panch witnesses turned hostile. 11. A perusal of the evidence of PW5 shows that after nearly five months from the date of incident, the respondent police had summoned the complainant to identify the accused. It is therefore, evident that between the date of commission of offence, till they were produced before the complainant in the police station, the complainant had not seen the accused. In order to rule out any doubt and to ensure that no person innocent of the crime is implicated, the least that the police should have done was to conduct a test identification parade to identify the accused. It is no doubt true that test identification - 10 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 parade is not necessary in all cases. The respondent police did not collect the facial features of the accused from the complainant when he lodged the complaint on 02.02.2010. Therefore, in a case where, accused were not known to the complainant and when substantial time had elapsed from the date of commission of the offence till the date of apprehension of the accused, in order to rule out any foul play and in order to ensure that the real accused are brought to book, the least that the respondent police must have done was to conduct test identification parade. Having regard to the fact that the accused were identified by PW.5 for the first time, after nearly three months and since the complainant turned hostile, it is rather difficult to accept the case of the prosecution that the accused had committed the offence. 12. In view of the fact that none of the prosecution witnesses except PW5 supported the case of the prosecution, the trial Court ought to have been slow before convicting the accused more particularly, for an offence punishable under Section 397 r/w 34 of IPC. PW1 who was the complainant failed to identify the accused, while PW5 who saw the accused for the first time after nearly five months, identified the accused which - 11 - HC-KAR NC: 2025:KHC-D:7409 CRL.A No. 100015 of 2017 C/W CRL.A No. 100020 of 2017 could be based on the assertion of the police that the accused had confessed that they had committed the offence. The accused were therefore entitled to the benefit of doubt, which the Trial Court did not consider. 13. In that view of the matter, the impugned conviction of judgment passed by the learned counsel for the appellants warrants interference. Consequently, both the appeals are allowed. The impugned judgment convicting of the accused for offences punishable under Section 397 r/w Section 34 of IPC and the consequent sentence are set aside. The accused are acquitted of the offence punishable under Section 397 r/w 34 of the Indian Penal Code. The registry is directed to return the records along with a copy of this judgment to the trial Court. Sd/- (R.NATARAJ) JUDGE VMB Ct:vh List No.: 1 Sl No.: 1