- 1 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.240 OF 2013 (C) BETWEEN: RAMESH POOJARY S/O GIRIYA POOJARY DRIVER AGED ABOUT 37 YEARS R/A ANUGRAHA NILAYA GUNDIBAIL, NEAR RASIKA BAR SHIVALLI VILLAGE, UDUPI TALUK, UDUPI DISTRICT …APPELLANT (BY SRI. H.S. SHANKAR, ADVOCATE, AMICUS CURIAE VIDE COURT ORDER DATED:18.07.2025.) AND: THE STATE BY UDUPI POLICE REP. BY PUBLIC PROSECUTOR …RESPONDENT (BY MS. ASMA KAUSER, ADDL SPP.) THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 15.02.2013 PASSED BY THE S.J., UDUPI IN S.C.NO.109/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 392 R/W SEC.34 OF IPC. THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 10 YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO FURTHER S.I. FOR 6 MONTHS FOR THE OFFENCE P/U/S 392 R/W SEC.34 OF IPC. THE SENTENCE SHALL RUN CONSECUTIVELY AFTER SERVING PREVIOUS SENTENCE, IF ANY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA ORAL JUDGMENT Accused No.1-Ramesh Poojary has preferred the appeal against the Judgment of conviction and order and sentence dated 15th February, 2013 passed in S.C. No.109 of 2010 by the Sessions Judge, Udupi (for short "the trial Court"). 2. The case of the prosecution is that, Circle Inspector of Police, Udupi Circle, submitted charge-sheet against accused 1 to 3 for offence under Sections 413 and 392 read with Section 34 of Indian Penal Code. It is by the prosecution that on 24th September 2009 at about 7:30 pm, near Police Quarters at Doddannangudde of Shivalli, the accused No.2 Ravi Poojary along with accused No.1-Ramesh Poojary, came on a motorcycle No.KA-20/Q-7494 and when they came near the scooter of Ramachandra, restrained him and snatched the - 3 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 vanity bag containing golden articles worth Rs.5,34,000/-, one Samsumg mobile handset and cash of Rs.700/- from CW2- Harinakshi while she was going to her house along with her husband on motorcycle as a pillion rider, and fled the scene along with accused No.1, thereby, committed offence punishable under Sections 392 read with Section 34 IPC. The accused No.3-Umesh Kamat received the stolen articles by purchasing the same from accused 1 and 2, knowing fully well that the said articles were stolen property, thereby committed offence punishable under Section 413 of Indian Penal Code. 3. Case was committed to the Court of Sessions and thereafter registered as SC No.109 of 2010. The learned trial judge has framed charges against the accused for the alleged commission of offences and the same read over and explained to the accused. Having understood the same, the accused pleaded, not guilty and claimed to be tried. 4. To prove the guilt of the accused, prosecution has examined eleven witnesses as PWs1 to 11 and marked 30 documents as Exhibits P1 to P30 and nineteen material objects were marked as MOs1 to 19. On closure of prosecution side - 4 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 evidence, statement of the accused Section 313 of Code of Criminal Procedure was recorded. The accused totally denied the evidence of prosecution witnesses, but have not chosen to lead any defence. Having heard the arguments on both sides, the trial Court convicted the accused 1 and 2 for offence punishable under Section 392 read with Section 34 of Indian Penal Code and passed sentence for a period of 10 years for the offence punishable under Section 392 read with section 34 and to pay fine of Rs.5,000/- each payable to PW2 Smt. Harinakshi. The trial Court acquitted accused No.3 for offence punishable under Section 413 of Indian Penal Code. Being aggrieved by the Judgment of conviction and order on sentence, accused No.1-Ramesh Poojary, has preferred this appeal. 5. Though this appeal is filed by an Advocate, but subsequently he has not appeared before the Court to prosecute the case. Hence, as per order dated 18th July 2025, this Court has appointed Sri H.S. Shankar as Amicus Curiae, to address his arguments. 6. Sri H.S. Shankar, Amicus Curiae, would submit that absolutely there are no cogent, corroborative and acceptable - 5 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 legal evidence to convict the accused No.1 for the offence under Section 392 read with Section 34 of Indian Penal Code. Even if this Court comes to the conclusion that the accused has snatched the chain from the possession of PW2-victim, then also the offence under Section 392 read with Section 34 is not applicable. Absolutely, there are no essential ingredients to attract the alleged commission of offence under Section 392 read with section 34 of Indian Penal Code. If the contents of the complaint and the evidence are read together, only the offence under Section 379 will be attracted and the said defence is punishable with only imprisonment of three years or fine or with both. The accused No.1 has already undergone judicial custody for a period of 2 year 8 months. Accused has also paid the fine amount imposed by the trial Court. Considering the period of detention undergone by the accused for period of 2 year 8 months, and also having paid the fine amount of Rs.5,000/-, the learned Counsel prays that this Court may set off the period of detention under section 428 of Code of Criminal Procedure. On all these grounds he sought to allow the appeal. - 6 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 7. As against this, Smt. Asma, Kauser, the learned Additional State Public Prosecutor appearing for the respondent- State, would submit that since there is threat by the accused, the offence punishable under Section 392 of Indian Penal Code will be attracted. Accordingly, the trial Court has convicted the accused. Absolutely, there are no grounds to interfere with the impugned judgment of conviction and order on sentence. Accordingly, it is sought for dismissal of the appeal. 8. Having heard the argument on both sides, the following points would arise for consideration: 1) Whether the appellant/accused No.1 has made out a ground to interfere with the impugned judgment of conviction and order on sentence passed against him? 2) Whether the trial Court has committed an error in convicting accused for the offence punishable and Section 392 read with Section 34 instead of convicting under Section 379 read with Section 34 of Indian Penal Code? - 7 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 3) What order? Regarding Points 1 and 2: 9. I have examined the materials place before me. It is the case of the prosecution that on 24th September 2009 at about 7:30 pm, near Police Quarters at Doddanangudde of Shivalli, the accused No.2 Ravi Poojary along with accused No.1-Ramesh Poojary, came on a motorcycle No.KA-20/Q-7494 and when they came near the scooter of Ramachandra, restrained him and snatched the vanity bag containing golden articles worth Rs.5,34,000/-, one Samsumg mobile handset and cash of Rs.700/- from CW2-Harinakshi while she was going along with her husband on motorcycle as a pillion rider, thereby, committed offence punishable under Sections 392 read with Section 34 Indian Penal Code. 10. To prove the guilt of the accused, eleven witnesses were examined as PWs1 to 11. Thirty documents are marked as exhibits P1 to P30 and 19 Material Objects are marked as MOs1 to 19. - 8 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 11. Before appreciation of evidence on record, it is necessary to mention here as to the complaint which is marked as Exhibit P1. The same reads thus: "«µÀAiÀÄ: AiÀiÁgÉÆà E§âgÀÄ AiÀÄĪÀPÀgÀÄ ¨ÉÊQ£À°è §AzÀÄ ¨ÁåUï J¼ÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀ §UÉÎ zÀÆgÀÄ. £Á£ÀÄ F ªÉÄð£À «¼Á¸ÀzÀ°è ªÁ¸ÀªÁVzÀÄÝ, ªÉĸÁÌA£À°è »jAiÀÄ ¸ÀºÁAiÀÄPÀ DV PÀvÀðªÀå ¤ªÀð»¸ÀÄwÛzÀÄÝ, £À£Àß ºÉAqÀw ºÀjuÁQë (48) ºÁUÀÆ ªÀÄUÀ¼ÀÄ ¢ªÀå (25) ºÁUÀÆ ªÀÄUÀ zsÀ£Àĵï (15) gÀªÀgÉÆA¢UÉ ªÁ¸ÀªÁVgÀĪÀÅzÁVzÉ. F ¢£À ¢£ÁAPÀ 24.09.2009 gÀAzÀÄ £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀw ºÀjuÁQë ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 6.30 UÀAmÉUÉ ªÀģɬÄAzÀ £À£Àß ¢éZÀPÀæ ªÁºÀ£À ºÉÆAqÁ J«AiÉÄÃlgï £ÀA§gï KA 20 V 8916 gÀ°è nÃZÀgïì PÉÆà D¥ÀgÉÃnªï ¸ÉƸÉÊn, GqÀĦUÉ vÉgÀ½ C°èAzÀ gÀxÀ©Ã¢UÉ §AzÀÄ, ªÁ¥À¸ÀÄì ªÀÄ£ÉUÉ §gÀÄwÛgÀĪÁUÀ ªÀÄ£ÉÆß½UÀÄfÓ PÀqɬÄAzÀ ºÀÄqÉÆÌ PÁ°¤AiÀÄ PÀqÉUÉ §gÀÄwÛzÀÄÝ ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 7.30 UÀAmÉ ºÉÆwÛUÉ zÉÆqÀØUÀÄqÉØ ¥Éưøï PÁélæ¸ï ºÀwÛgÀ £ÀªÀÄä »A¢¤AzÀ ¨ÉÊPï£À°è §AzÀ E§âgÀÄ AiÀÄĪÀPÀgÀ°è »AzÉ PÀĽvÀ AiÀÄĪÀPÀ £À£Àß ¢éZÀPÀæ ªÁºÀ£ÀzÀ°è »AzÉ PÀĽwgÀĪÀ £À£Àß ºÉAqÀwAiÀÄ PÀwÛUÉ PÉʺÁQ PÀjªÀÄt ¸ÀgÀªÀ£ÀÄß »rzÀÄ J¼ÉAiÀÄĪÁUÀ £À£Àß ºÉAqÀw vÀ£Àß MAzÀÄ PÉÊAiÀÄ°è ¸ÀgÀªÀ£ÀÄß »r¢zÀÄzÀjAzÀ ¸ÀgÀ vÀÄAqÁV PɼÀUÉ ©vÀÄÛ. 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F J¯ÁèªÀÅUÀ¼À CAzÁdÄ ªÀiË®å ¸ÀĪÀiÁgÀÄ 5,34,000/- DVzÀÄÝ D ¸ÀªÀÄAiÀÄzÀ°è £ÀªÀÄä »A¢¤AzÀ §AzÀ ¨sÀªÁ¤ ±ÀAPÀgÀ JA§ÄªÀgÀÄ «µÀAiÀÄ w½zÀÄ ¨ÉÊPÀ£ÀÄß »A¨Á°¹zÀgÀÆ DgÉÆæUÀ¼ÀÄ ¹UÀzÉà ¥ÀgÁjAiÀiÁVgÀÄvÁÛgÉ. DgÉÆæUÀ¼À£ÀÄß gÀ¸ÉÛ §¢AiÀÄ ¢Ã¥ÀzÀ ¨É¼ÀQ£À°è £ÉÆÃrzÀÄÝ, ªÀÄÄAzÉ £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀĪÀÅzÁ¸ÁzsÀåªÁVzÉ. vÀÄAqÁV PɼÀUÉ ©zÀÝ £À£Àß PÀjªÀÄt ¸ÀgÀªÀÅ £À£ÀUÉ zÉÆgÉwgÀÄvÀÛzÉ. DzÀÄzÀjAzÀ ¸À¢æ DgÉÆæUÀ¼À£ÀÄß ¥ÀvÉÛ ºÀaÑ PÁ£ÀÆ£ÀÄ PÀæªÀÄ vÉUÉzÀÄPÉƼÀî¨ÉÃPÁV PÉÆÃjPÉ." 12. The complainant-Sri Ramachandra is examined as PW1. He has deposed in his evidence as to the contents of the complaint and also the mahazar conducted by the police as per Exhibit P3. He has also deposed as Exhibit P4-test identification parade. 13. PW2-Smt. Harinakshi, the victim, has also deposed as to the theft of property by the accused. She has also deposed as to the identification parade conducted by the Police. 14. PW3 Bhavanishankar, has deposed in his evidence that on the date of accident, he was proceeding on the motorcycle and that day PWs1 and 2 were standing on the road. - 10 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 Upon enquiry, he came to know about the theft of gold property. 15. PW4-Naveena has deposed in his evidence as to spot mahazar conducted by the police as per Exhibit P3. 16. PW5-K Madhava has deposed as to seizure mahazar as per Exhibit P9. 17. PW6-Abhijit Kumar said to be the attester to Dastagir seizure as also seizure mahazar has not fully supported the case of prosecution. 18. PW7-Prasanna V, Tahsildar, has deposed as to the identification parade conducted by him. 19. PW8-Suresh, Pawn broker has deposed that accused No.3 has handed over the golden jewels to convert them as ingot. 20. PW9-S.V. Girish, Investigating Officer has deposed as to the investigation conducted by him. 21. PWs9 and 10-Police Constables have deposed as to their respective investigation. - 11 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 22. PW11-Harikanth Nayak has deposed as to seizure of property under mahazar Exhibits P24 and P25. 23. At this juncture, it is necessary to refer to Section 390 of Indian Penal Code. The same reads thus: "390. Robbery.- In all robbery there is either theft or extortion. When theft is robbery — Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery — Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted. Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint." 24. A careful examination of the said definition makes it clear that in order to call the theft as a robbery in committing such theft or in carrying away or attempting to carry away property obtained by theft, the offender, for that end, - 12 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant wrongful restraint. 25. In the case on hand, admittedly, PW2-victim has not sustained any injuries and absolutely, there are no ingredients to attract the offence punishable under Section 392 read with section 34 of Indian Penal Code. However, the trial Court has convicted the accused for a said sections which is not sustainable under law. The materials placed by the prosecution reveals that accused 1 and 2 have committed offence punishable under Section 379 in Indian Penal Code. It is not in dispute that the accuse no.1 has already undergone judicial custody for a period of 2 years 8 months and also remitted the fine amount of Rs.5,000/-. The offence under Section 379 Indian Penal Code is punishable with imprisonment for three years or with fine or both. In the case on hand, since the accused has already undergone 2 years 8 months in judicial custody and also paid the fine amount of Rs.5,000/- it is just and proper to allow the appeal. Accordingly, the accused has made out a ground to interfere with the Judgment of conviction - 13 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 and order and sentence. Hence, I answer Point No.1, partly in the affirmative and answer point number two in the affirmative. Regarding Point No.3: 26. For the aforestated reasons and discussions, I proceed to pass the following: O R D E R i) Appeal is allowed in part; ii) Judgment of conviction and order sentence dated 15th February, 2013 passed in S.C. No.109 of 2010 by the Sessions Judge, Udupi stated stands modified as under: a) Appellant/accused No.1 is convicted for the offence punishable under section 379 read with Section 34 of Indian penal code; b) Appellant/accused No.1 shall undergo simple imprisonment for a period of 2 years 8 months and to pay a fine of Rs.5,000/; c) The period of detention already undergone by the appellant/accused - 14 - HC-KAR NC: 2025:KHC:40471 CRL.A No. 240 of 2013 No.1 shall be set off under Section 428 of Code of Criminal Procedure; iii) Send the copy of this Judgment, along with trial Court records to the concerned Court forthwith; iv) Fee of learned Amicus Curiae is fixed at Rs.5,000/-. Sd/- (G BASAVARAJA) JUDGE lnn List No.: 1 Sl No.: 88