- 1 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA CRIMINAL APPEAL NO. 411 OF 2013 C/W CRIMINAL APPEAL NO. 412 OF 2013 CRIMINAL APPEAL NO. 425 OF 2013 IN CRL.A No. 411/2013 BETWEEN: PRAJWAL SALDHANA S/O VIJAYA SALDHANA AGED ABOUT 22 YEARS NEAR RAILWAY BRIDGE SALMARA, UPPOOR VILLAGE UDUPI TALUK AND DISTRICT - 576 105 …APPELLANT (BY SRI. ARUNA M SHYAM, SR. ADV. FOR SRI. SUYOG HERELE E., ADVOCATE) AND: THE STATE OF KARNATAKA THROUGH MANIPAL POLICE, REP. BY THE STATE PUBLIC PROSECUTOR HIGH COURT BUILDINGS, BANGALORE - 560 001 …RESPONDENT (BY SMT. RASHMI JADHAV, ADDL. SPP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.04.2013 PASSED BY THE S.J., UDUPI DISTRICT, UDUPI IN S.C.NO.43/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 143,395 AND 323 R/W SEC.34 OF IPC AND ETC. Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 IN CRL.A NO. 412/2013 BETWEEN: MR RAVINDRA S/O LATE SRINIVASA MENDON, AGED ABUT 24 YEARS, R/AT: DEVI KRIPA,CHELLAMAKKI ROAD, SASTANA, AIRODY VILLAGE, UDUPI TALUK & DISTRICT - 576 101 ...APPELLANT (BY SRI. ARUNA M. SHYAM, SR. ADV. FOR SRI. DILIP KUMAR GOWDA, ADVOCATE) AND: STATE OF KARNATAKA BY P.I. MANIPAL POLICE STATION, REP. BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE-560 009 ...RESPONDENT (BY SMT. RASHMI JADHAV, ADDL. SPP) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.04.2013 PASSED BY THE S.J., UDUPI DISTRICT, UDUPI IN S.C.NO.43/2011 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 143, 395 AND 323 R/W SEC.34 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO IMPRISONMENT FOR 6 MSONTHS AND PAY FINE OF RS.500/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER IMPRISONMENT FOR 1 WEEK FOR THE OFFENCE P/U/S 143 R/W SEC.34 OF IPC AND ETC. - 3 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 IN CRL.A NO. 425/2013 BETWEEN: 1. GOWTHAM POOJARY S/O LATE VIVEKA POOJARY, AGED ABOUT 21 YEARS, HADIMANE, KALYANAPURA, MUDHUTHONSE VILLAGE, UDUPI TALUK AND DISTRICT- 576 114 2. CHETHAN POOJARY S/O VIJAYA POOJARY, AGED ABOUT 19 YEARS, R/O MATHRUCHYAMANE, MODUBETTU, MUDHUTHONSE VILLAGE, UDUPI TALUK AND DISTRICT - 576114 ...APPELLANTS (BY SRI. S K ACHARYA., ADVOCATE) AND: THE STATE OF KARNATAKA REP. BY THE THROUGH MANIPAL POLICE, STATE PUBLIC PROSECUTOR, HIGH COURT BUILDINGS, BANGALORE - 560 001 ...RESPONDENT (BY SMT. RASHMI JADHAV, ADDL. SPP) - 4 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION DATED 06.04.2013 PASSED BY THE DIST., AND S.J., UDUPI IN S.C.NO.43/2011 - CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 143,395 AND 323 R/W SEC.34 OF IPC.THE APPELLANTS/ACCUSED ARE SENTENCED SUFFER 6 MONTHS IMPRISONMENT WITH FINE OF RS.500/- FOR THE OFFENCE P/U/S 143 R/W SEC.34 OF IPC, AND IN DEFAULT TO PAY THE FINE THE ACCUSED SHALL UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF ONE WEEK. AND THE APPELLANTS/ACCUSED ARE SENTENCED UNDERGO IMPRISONMENT FOR A PERIOD OF ONE YEAR AND SHALL PAY A FINE OF RS.1000/- EACH, IN DEFAULT TO PAY THE FINE AMOUNT, THE ACCUSED SHALL UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF 2 WEEKS FOR THE OFFENCE P/U/S 323 R/W 34 OF IPC. AND THE APPELANTS/ACCUSED ARE SENTENCED TO SUFFER R.I. FOR A PERIOD OF 10 YEARS AND TO PAY A FINE OF RS.9,000/- EACH, IN DEFAULT TO PAY THE FINE AMOUNT, THE ACCUSED SHALL UNDERGO FURTHER IMPRISONMENT FOR A PERIOD OF 1 YEAR FOR THE OFFENCE P/U/S 395 R/W SEC. 34 OF IPC. ALL THE SENTENCES TO RUN CONCURRENTLY. THESE APPEALS, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 5 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 CORAM: HON'BLE MRS. JUSTICE M G UMA COMMON ORAL JUDGMENT The appellant in Crl.A.No.411/2013 being accused No.1; the appellant in Crl.A.No.412/2013 being accused No.3 and the appellants in Crl.A.No.425/2013 being accused Nos.2 and 4 in S.C.No.43/2011 on the file of the learned District and Sessions Judge, Udupi, are impugning the judgment of conviction and order of sentence dated 06.04.2013 convicting them for offences punishable under Sections 143, 323, 395 read with Section 34 of IPC; and sentencing to undergo six months imprisonment with fine of Rs.500/- for the offence under Section 143 read with Section 34 of IPC; to undergo imprisonment for a period of one year and shall pay a fine of Rs.1,000/- each for offence under Section 323 read with Section 34 of IPC; to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.9,000/- each for offence under Section 395 read with Section 34 of IPC, with default sentences. - 6 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 2. Brief facts of the case made out by the prosecution are that, on 22.01.2011 at about 9:00 p.m., when PW.6 - the informant along with the eyewitness - PW.11 were near Railway Bridge Platform, Hoige Kudru of Muduperampalli, Shivalli village, Udupi Taluk, accused Nos.1 to 5 formed an unlawful assembly with an intention to commit robbery. Accused No.3 assaulted the informant with hand, accused No.2 snatched the ATM card and obtained the pin number, accused Nos.1 and 2 went to Corporation Bank ATM center at Santhekatte, Puttur village, Udupi Taluk and withdrew an amount of Rs.18,000/- from the account of the complainant by using the ATM card. In the meantime, accused Nos.1, 2 and 3 snatched cash of Rs.4,000/-, accused No.4 snatched Rs.3,000/- and they have assaulted the informant with hands and committed the offences as stated above. 3. On the basis of first information lodged by PW.6, an FIR came to be registered. Accused Nos.1 to 4 were apprehended. It is the contention of the prosecution that cash of Rs.19,000/- was recovered from accused Nos.1 to 5 i.e., - 7 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 including the juvenile offender. After investigation, the charge sheet came to be filed. 4. Learned Magistrate took cognizance of the offences and committed the matter to the Sessions Court. The Trial Court summoned the accused, and all the accused who have appeared before it pleaded not guilty and claimed to be tried. The prosecution has examined PWs.1 to 11, got marked Exs.P1 to 20 and identified MOs 1 and 2 in support of its contention. The accused have denied all the incriminating materials available on record in their statement under Section 313 of Cr.P.C., but have not led any evidence in support of their defence. However, they got marked Exs.D1 to D10 during cross-examination of the prosecution witnesses. The Trial Court after taking into consideration all these materials on record came to the conclusion that prosecution is successful in proving the guilt of accused beyond reasonable doubt and accordingly, passed the impugned judgment of conviction and order of sentence. Being aggrieved by the same, accused Nos.1 to 4 are before this Court. - 8 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 5. Heard Sri Aruna M Shyam, learned senior advocate for Sri. Suyog Herele in Crl.A.No.411 of 2013, Sri Aruna M Shyam, learned senior advocate for Sri Dilip Kumar Gowda in Crl.A.No.412 of 2013, Sri S.K. Achary learned counsel in Crl.A.425 of 2013, for the appellants, and Smt. Rashmi Jadhav learned Additional State Public Prosecutor for the respondent- State. Perused the materials on record including the Trial Court records. 6. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is as under: "Whether the appellants have made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point is in the 'Affirmative' for the following: REASONS 7. It is the contention of the prosecution that accused Nos.1 to 5 forming themselves into an unlawful assembly with an intention to commit robbery, snatched and assaulted PW.6 - 9 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 on 22.01.2011 at about 9:00 p.m., near Railway Bridge platform, Hoige Kudru of Muduperampalli, Shivalli village, Udupi Taluk. As per the case made out by the prosecution, even though the incident had taken place on 22.01.2011 at 9.00 p.m., the informant had gone to KMCIC hospital and informed the fact to PW.5 - the Doctor who treated him and had given the history of assault by unknown persons on 23.01.2011. Ex.P19 is the MLC intimation issued by Kasturba Hospital Manipal on 23.01.2011 at 4.30 p.m., and as per the endorsement found on Ex.P19 - the MLC intimation was received on the very same day i.e., on 23.01.2011 by the Head Constable. But strangely, the FIR as per Ex.P3 came to be registered on 25.01.2011 at 4.30 p.m. 8. The learned Additional SPP submits that PW.6 being the student was in a shock and confused state of mind and therefore, there was delay in lodging the first information. Even if this explanation is to be accepted, PW.6 met the PW.5 - the Doctor at KMCIC Hospital and they registered the MLC for assault by six unknown persons on 23.01.2011 at 4.30 p.m., and Ex.P19 - the MLC intimation reached the police station on the very same day i.e., on - 10 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 23.01.2011. Inspite of that, the FIR came to be registered on 25.01.2011. This delay in registering the FIR is not properly explained. The Investigating Officer is examined as PW.10. He states that since the informant was in ICU, he could not record his statement. The wound certificate issued by PW.5 is as per Ex.P5, according to which, the injured had sustained six simple injuries. It is not the contention of the prosecution that the injured was admitted to the hospital as inpatient or that he was treated in ICU, for any purpose. When no such materials are placed before the Court, the explanation offered by the Investigating Officer cannot be accepted and unexplained delay in registering the FIR even after receipt of MLC intimation is fatal to the case of the prosecution. 9. It is the contention of the prosecution that PW.7 - the Tahsildar has conducted Test Identification Parade in District Prison, Udupi. Both the informant and the eyewitness said to have identified accused Nos.1 to 4. The informant is examined as PW.6, and the eyewitness as PW.11. When these witnesses were examined before the Trial Court, the learned Prosecutor elicited from them that, accused Nos.1 to 4 were lined up before them in the Police Station and they could - 11 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 identify them in the police station itself on the date of their arrest. Subsequently, on 08.02.2011, the Test Identification Parade was conducted in District Prison, Udupi. When on 27.01.2011 itself accused Nos.1 to 4 were shown to PW.6 and 11, no sanctity could be attached to that Test Identification Parade that was conducted on 08.02.2011. 10. The next contention taken by the prosecution to connect the accused to the offence in question is the recovery of cash of Rs.19,000/- i.e., Rs.5,000/- from accused No.1, Rs.4,000/- from accused No.2, Rs.3,000/- from accused No.3. Rs.3,000/- each from accused Nos.4 and 5 on 27.01.2011, when the accused were brought to the police station on suspicion, as per the information by the localities. The Investigating Officer who has been examined as PW.10 deposes that the accused have given their voluntary statement that, the cash that was robbed from PW.6 is with them, but no such voluntary statement is produced before the Court for the prosecution to rely on the recovery of cash of Rs.19,000/-, as per the seizure mahazar - Ex.P2. In the absence of any voluntary statement leading to recovery, such recovery cannot be accepted to base the conviction of the accused. Moreover, - 12 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 PW.2 and 8 being the Mahazar witnesses to Ex.P2 have turned hostile and not supported the case of the prosecution. 11. It is the further contention of the prosecution that, accused No.2 had gone to ATM centre at Santhepete, Udupi to withdraw the cash from the account of PW.6. CCTV camera in the ATM center said to have captured the image of accused No.2, which was in turn forwarded by the bank Manager - PW.9 to the Investigating Officer, who in turn downloaded it in a CD and produced it as per MO.2. No Mahazar was drawn by the Investigating Officer for recovering the CCTV footage. No procedure known to law was followed in recovering the CCTV footage. Since the recovery of the said footage was not in accordance with law, no importance could be attached to the same. Under these circumstances, the prosecution has miserably failed to connect the accused to the offence in question. When the prosecution is not successful in connecting the accused to the offence in question, it cannot be said that it is successful in proving the guilt of accused beyond reasonable doubt. It can only be said that there is a shabby investigation that was undertaken by the Investigating Officer, and equally a - 13 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 shabby trial conducted by the prosecution. Unfortunately, the Trial Court proceeded to convict accused Nos.1 to 4 on such materials on record. Therefore, I am of the opinion that the benefit of doubt will have to be extended to the accused, and they are to be acquitted. 12. Accordingly, I answer the above point in the Affirmative and proceed to pass the following: ORDER i) Crl.A.Nos.411/2013, 412/2013, 425/2013 are allowed; ii) The judgment of conviction and order of sentence dated 06.04.2013 passed in S.C.No.43/2011 on the file of the District and Sessions Judge, Udupi, is hereby set aside; iii) Consequently, accused Nos.1 to 4 who are the appellants herein are acquitted for the offences punishable under Sections 143, 323 and 395 read with Section 34 of IPC. iv) Bail bonds of the accused and that of their sureties shall stand cancelled; - 14 - HC-KAR NC: 2025:KHC:25771 CRL.A No. 411 of 2013 C/W CRL.A No. 412 of 2013 CRL.A No. 425 of 2013 v) Fine amount, if any, deposited by the accused shall be refunded to them on due identification. Registry is directed to send back the Trial Court records along with copy of this judgment, for information and needful action. Sd/- (M G UMA) JUDGE KG List No.: 1 Sl No.: 19