- 1 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2026 BEF'ORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL CRIMINAL APPEAL NO. 83 OF 2014 (C) C/W CRIMINAL APPEAL NO. 64 OF 2014 IN CRL.A No. 83/2014 BETWEEN: 1. KIRAN @ SUNIL S/O.LATE SURESHA, AGED ABOUT 23 YEARS, CAR DRIVER, R/O.BALLEKETTE, KUPPALU HOBLI, TIPTUR TALUK, TUMKUR DISTRICT, NOW R/O.LAGGERE, CHOWDESHWRAI NAGAR, BENGALURU-560 091. 2. SANTHOSH @ SANTHOSHKUMAR @ MUNNA S/O.B.M.RAJU, AGED ABOUT 24 YEARS, R/O.KENCHAYYANA PALYA, BELLAVI POST, KORA HOBLI, TUMKUR DISTRICT-572128. (NOW IN J.C.) …APPELLANTS (BY SRI. NAGARAJ M. BHAT.,ADVOCATE-AMICUS CURIAE FOR A1; SMT.ANANYA RAI.,ADVOCATE FOR A2) Digitally signed by SUMA B N Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 AND: THE STATE BY KYATHASANDRA POLICE STATION TUMKUR, REPRESENTED BY THE STATE PUBLIC PORSECUTOR, HIGH COURT BUILDING, BANGALORE-560 001. …RESPONDENT (BY SRI. B. LAKSHMANA, HCGP) THIS CRL.A. FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:27.12.2013 PASSED BY THE PRL. SESSIONS JUDGE (SPECIAL JUDGE), TUMKUR IN S.C.NO.30/13 -CONVICTING THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC. AND THE APPELLANTS/ACCUSED ARE SENTENCED TO UNDERGO R.I. FOR A PERIOD OF FIVE YEARS AND TO PAY A FINE OF RS.5,000/- EACH, AND IN CASE OF DEFAULT OF PAY FINE AMOUNT, THEY SHALL UNDERGO ADDL.S.I. FOR A PERIOD OF ONE YEAR FOR THE OFFENCE P/U/S 395 OF IPC. IN CRL.A NO. 64/2014 BETWEEN: SURESH SON OF HANUMANTHARAYAPPA, AGED ABOUT 23 YEARS, RESIDING AT NARUGANAHALLI, GULUR HOBLI, TUMKUR TALUK, TUMKUR. ...APPELLANT (BY SRI.THAMMAIAH H.M.,ADVOCATE) - 3 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 AND: STATE BY KYATHSANDRA POLICE, REP. BY SPECIAL PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE. ...RESPONDENT (BY SRI. B. LAKSHMANA, HCGP) THIS CRL.A. FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 27.12.2013 PASSED BY THE PRL. DIST. AND S.J., TUMKUR IN S.C.NO.30/2013 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 395 OF IPC.THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A PERIOD OF 5 YEARS AND PAY FINE OF RS.5,000/-, IN DEFAULT TO PAY FINE, HE SHALL UNDERGO ADDL. S.I. FOR A PERIOD OF 1 YEAR FOR THE OFFENCE P/U/S 395 OF IPC. THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.G.S. KAMAL ORAL JUDGMENT Criminal Appeal in Crl.A.No.64/2014 is by accused No.4 and Criminal Appeal in Crl.A.No.83/2014 is by accused Nos. 1 and 2, who have been convicted and sentenced in S.C.No.30/2013 dated 27.12.2013 on the file of the Principal District and Sessions Judge, Tumkur, to undergo rigorous - 4 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 imprisonment for a period of 5 years and to pay fine of Rs.5,000/- each and default to undergo additional simple imprisonment of 1 year for the offence punishable under Section 395 of Indian Penal Code. 2. Case of prosecution is that; a complaint dated 14.11.2009 came to be filed by one Shibani-the complainant before the Sub Inspector of Police, Kyathsandra Police Station, Tumkur, alleging that on 14.11.2009 at about 02.30 p.m. when complainant and five other students of S.I.T. College, Tumkur who were pursuing III semester Architector in S.I.T College, Tumkur, had gone to Siddaganga Mutt. They went around a temple and surrounding areas and climbed up the hill. While they were climbing up the hill, they saw three boys sitting there, who were joined by another three boys. All the six boys came together and sat close to the complainant and her friends. When complainant and her friends got up and started to proceed away from the spot, the said persons came near them and took away three cell phones, namely, Motorola with Vodafone SIM No. 9739694027, Nokia 5310 set with Airtel SIM No. 9972827300 and Nokia Music Express with Reliance SIM - 5 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 No. 9019311350, a gold chain with pendant worth Rs.10,000/- and cash amount of Rs.4,500/-. The complainant accidentally took the photographs of the said person when she was taking the photograph of her friends. However, their faces were covered by their hands. That she could identify the said persons if she saw them again. As such, had sought for registration of a case and for investigation of the matter. 3. Pursuant to said complaint, a case in Crime No. 353/2009 for the offence punishable under Section 395 IPC was registered. Investigation was commenced. Spot Panchanama was drawn. Accused were arrested. Incriminating material objects were recovered from the accused and seized. Witnesses statements were recorded. Charge sheet was filed for the offence punishable under Section 395 of IPC against the accused persons. Accused pleaded not guilty. Accordingly, matter was set down for trial. 4. Prosecution examined 6 witnesses as PW1 to PW6 and exhibited 13 documents marked as Ex.P1 to Ex.P13, with three material objects marked as MO.1 to MO.3. On appreciation of evidence, the trial Court convicted the accused - 6 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 persons for offence punishable under Section 395 and consequently sentenced them to undergo imprisonment as noted above. Being aggrieved, accused Nos.1, 2 and 4 are before this Court in the aforesaid appeals as noted. 5. Learned counsel appearing for accused No.2 at the outset draws attention of this Court to provisions of Sections 390 and 391 of IPC and thereafter takes this Court through the contents of complaint dated 14.11.2009 produced at Ex.P1. So also the contents of spot panchanama drawn on 15.11.2009 produced at Ex.P2 and the panchanama of arrest and recovery body search of the accused person drawn on 18.11.2009 as per Ex.P4. Referring to the same, she emphatically submitted that the complaint averment simplicitor do not constitute an offence under Sections 390 and 391 of IPC. As such, charging the accused of the offence punishable under Section 395 was far- fetched. She submits there is no whisper in the complaint about accused persons threatening in the manner required to constitute an offence under Sections 390 and 391 of the IPC. Juxtaposing the contents of complaint at Ex.P1 with Ex.P2 spot panchanama, she submits, it is for the first time in the spot - 7 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 panchanama, the prosecution has introduced theory of they finding a knife which was not mentioned by the complainant in Ex.P1. The details of the knife is found in Ex.P4, panchanama drawn at the time of arrest and body search of the accused persons. 6. She thereafter refers to the deposition of PW1/complainant, who apart from introducing theory of knife being used by the accused, at the time of the incident, has also spoken about a sickle being used by the accused. She submits the prosecution has not whispered about the existence of the sickle until PW1 was examined. There is no record of prosecution recovering the sickle either on their own or on the information provided by the accused. She refers to specific statement of PW1 that the respondent/Police had taken the weapon allegedly used by the accused to her hostel where she identified the same having been used by the accused. Thus, she submits there is exaggeration and embellishment in the case of the prosecution who have at every stage introduced new different ingredients only to bring the case within the four corners of Section 395 of IPC. - 8 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 7. She further refers to the deposition of PW1 wherein at para 5 she stated that after 10 days of the incident police had called her to the police station where she was asked to identify persons who had robbed her and her friends. That the police showed her 3 to 4 persons and she identified them. She submits in the spot panchanama at Ex.P4, the prosecution has recorded that the complainant had taken the photographs of the accused persons by chance, though they had covered their faces by their hands, and that she could identify them. The said photograph is produced at Ex.P3. That if the complainant had already given the indication and identity of the accused person, there was no requirement of conducting any identification parade as deposed by PW1 at para 5. Nevertheless, even if such an identification was conducted, it is not in accordance with law, is her submission. 8. The mahazar witness Siddaiah/PW3 has turned hostile and he has not supported the case of the prosecution. Therefore, the prosecution has failed to prove the ingredient of the offences alleged against accused. They have also failed to prove the involvement of the accused persons in the matter. - 9 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 Since only mahazar witness has been examined, who has not supported case of the prosecution, there was no reason for the trial Court to have convicted the accused persons based on the said evidence. Hence, seeks for acquittal of the accused. 9. Learned counsel appearing for the accused No.4 in Crl.A.No.64/2014 supplementing the submissions made by the counsel for the accused No.2 in addition submitted that the gold chain which was allegedly recovered from accused under mahazar at Ex.P6, has not examined the pawn broker from whom it was recovered. He was arraigned as accused No.6/Chandrakanth, who since dead has been given up. 10. He points out according to the version of PW1 the gold chain was snatched by the accused from her neck while according to the version of PW2 who was with the complainant and an eye witness, the gold chain was snatched from CW6. He submits as per the complainant version along with PW2 and four others were present. The other persons who were present were Pranadeep(CW.3), Denni(CW.4), Asharaya (CW.5) and Divya(CW.6). However, the prosecution has not examined said Pranadeep, Denni, Asharaya and Divya. That according to - 10 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 prosecution, accused persons had stolen 3 mobiles. While they have recovered only 1 mobile, there is no trace of other 2 mobiles. Though the prosecution claimed to have arrested the accused person on 18.11.2009, it is not clear as to the basis on which they were arrested. 11. She refers to deposition of Investigation Officer recorded on 25.11.2013 at paragraph 4 wherein the Investigating Officer has stated that on 18.11.2009 while he was on search of accused persons, he found some persons had blocked the road near Siddaganga cross with boulders and stones and on suspicion he had arrested 6 persons of which 3 of them had escaped and he had arrested only 3 of the said persons. On enquiry he found them to be the persons involved in the present case. He submits the prosecution has not proved the case beyond reasonable doubt. Hence, seeks for allowing of the appeal. 12. Learned amicus curiae appearing for accused No.1 adopted the submission made by learned counsel for accused No.2. - 11 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 13. Learned HCGP on the other hand, justifying the judgment and order passed by the trial Court submitted that the case of the prosecution has been based on the evidence of the witnesses, more particularly of the complainant herself, who is victim of the circumstances. He submits that nothing is elicited from PW1 to discredit her evidence. He submits recovery of incriminating material objects would indicate the involvement of the accused. The accused have not given any justification of their presence at the spot. Therefore, the prosecution has proved the case beyond reasonable doubt. Hence, seeks for dismissal of the appeals. 14. Heard. Perused the records. 15. Sections 390, 391 and 395 of IPC reads as follows: 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 - 12 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 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. 391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit “dacoity”. 395. Punishment for dacoity.— Whoever commits dacoity shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." 16. Since the accused persons have been charged of the offence punishable under Section 395, the prosecution is required to establish at the first instance, as rightly submitted by counsel for the appellants/accused, fulfilment of the ingredients of the offence of dacoity. Perusal of Section 391 of IPC, as extracted above, indicate that it requires five or more persons conjointly committing or attempt to commit the robbery. For an offence to constitute a robbery, in terms of Section 390 a theft would be considered as a robbery, if while committing the theft or in carrying away or attempting to carry away the property obtained by them, the offender for that end, voluntarily causes or attempts to cause to any person death or - 13 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 hurt or wrongful restraint or fear of instant death or instant hurt or instant wrongful restraint. 17. Appropriate at this juncture to extract the contents of Ex.P1 /complaint which reads as under; To, 14.11.09 Sub Inspector of Police, Kythsandra Police Station, Tumkur. Sir, I Shibani D/o S. Jayapal, residing in Bangalore, No.11, Meenakshikoil street, Shivajinagar, Bangalore. I am studying in SIT, Tumkur 3rd Sem Architecture from 2008. Today the 14th November 2009 2.30 P.M. myself and 5 more students went to the Siddaganga Math. We saw the temple and went to see the surrounding area and climbed the hill, when we were climbing the hill we saw 3 guys sitting there. We went on top of the hill, around 3.30 p.m., three more guys joined them. All the six guys came together and sat close to us, then we got up to go back, they too got up and came near us and took away 3 cell phones, Numbers Motorola set 9739694027 (Vodaphone), Nokia 5310 set 9972827300 (Airtel) and Nokia music express 9019311350 (Reliance), a gold chain with pendent worth 10,000 and cash amount 4,500. I accidentally took their photo when I was taking my friends photo, but their faces are covered with their hands. I can identify them if I see them again, pleas trace the accused and take legal action. We went to hostel left our friends and came back to the Police Station at 7.00 and now I am giving complaint. Sd/- 4.11.09 Shibani aged 19 years, Hindu, Naidu - 14 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 18. The contents of the complaint/Ex.P1 dated 14.11.2009 read in the light of the provisions of Sections 390, 391 and 395 referred to above, indicate that there is no whisper in the complaint, even remotely suggesting commission of robbery or dacoity and there is no reference to any weapon being used by the accused persons. There is also no whisper in the complaint of they threatening to cause any hurt or restraint the witnesses in the complaint and her friends. 19. Ex.P2 is the panchanama, contents of which would indicate the same was recorded as per the statement given by the complainant. The said mahazar is recorded on 15.11.2009 at the place where purportedly incident had occurred. In the said panchanama, it is for the first time alleged that the said 6 unknown persons had shown the knife to the complainant and her friends and thereafter had snatched 3 mobile phones, a gold chain and cash of Rs.4,500 from them. 20. Panchanama/Ex.P4 drawn on 18.11.2009, which is 4 days after the incident, indicate the respondent/Police having arrested accused Nos.2, 3 and 4 had subjected them for the body search and found a knife measuring 1 feet with a wooden - 15 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 handle kept under the belt of the pant of the accused No.3. There is no mention of any sickle being used either in the complaint or they having recovered such weapon in terms of Ex.P4 either, which glaringly brought on record as per the version of PW1, who in the deposition recorded on 21.09.2013 has stated as under; "we were bit scared and we got up to go. At that time they took out knife and sickle like weapon from their possession….." 21. The said knife is shown to complainant/PW1 by the prosecution and the same is marked on her identification as per MO.2. Though the complainant has repeated about she having seen the sickle being used by the accused, there is no material placed by the prosecution in that regard. Thus, as rightly pointed by the learned counsel for the appellants, the theory of accused persons using knife and sickle like weapons at the time of the incident appears to have been inserted subsequently only to embellish the case against the accused persons. Even the same has not been proved in the manner known to law. - 16 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 22. Sri. Siddaiah/PW3, the lone punch witness to Ex.P4, has not supported the case of prosecution. In his deposition recorded on 21.10.2013 he has denied he accompanying the police either to the spot of the incident or to the police station or he having witness the incident of respondent/Police recovering and seizing the incriminating material objects. 23. Rithuraj/PW2, who is the friend of the complainant, stated to be present at the incident, has refused to identify the accused persons. The said witness in the cross-examination has stated that, "I cannot exactly say that these four accused were the persons who were on the top of the hill on the said day. But I am sure three guys were there when we went there and three more came joined them after we went." The said witness has however reiterated accused person using the knife at the time of the incident putting them under threat. 24. Neither PW1 nor PW2 have specifically spoken as to which of the accused persons have used the knife. Thus, as rightly pointed out by learned counsel for the appellants since there is no specific averment, evidence of proof as to the existence of the knife at the initial stage though introduced - 17 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 subsequently, as to who has used the knife, it becomes ambiguous. Therefore, the theory of prosecution against accused persons using the knife to threaten the complainant and her associates in committing the offence cannot be said to have been proved beyond reasonable doubt. 25. As already noted above, Section 390 of the IPC specifically requires proof of theft and an attempt to voluntarily causing death or hurt or wrongful restraint or fear of instant deaths or instant hurt. When the prosecution has not proved by producing acceptable evidence, it becomes difficult to accept the theory of accused persons committing offence of dacoity. No explanation is given by the prosecution for not examining other three persons who are found to be along with PW.1 and PW2. 26. Based on the aforesaid material evidence, the handing over of the punishment of rigorous imprisonment as noted above, in the considered view of this Court, is unsustainable. As such, appeals succeed. The order of conviction and sentence dated 27.12.2013 passed by the trial - 18 - HC-KAR NC: 2026:KHC:15381 CRL.A No. 83 of 2014 C/W CRL.A No. 64 of 2014 Court in S.C.No.30/2013 on the file of the Principal District and Sessions Judge, Tumkur, is thus set aside. 27. The assistance rendered by the Amicus Curie is appreciated and same is placed on record. Sd/- (M.G.S. KAMAL) JUDGE RU, List No.: 1 Sl No.: 37