Karnataka High Court

Arshad Pasha vs The State Of Karnataka on 22 July, 2025

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                                                            NC: 2025:KHC:27449
                                                         CRL.A No. 217 of 2012


                   HC-KAR



                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 22ND DAY OF JULY, 2025

                                              BEFORE
                                THE HON'BLE MRS. JUSTICE M G UMA

                               CRIMINAL APPEAL NO. 217 OF 2012 (C)

                   BETWEEN:
                   ARSHAD PASHA,
                   S/O MUNAVAR PASHA,
                   AGED ABOUT 24 YEARS,
                   R/AT NO.62, SHANTHINAGAR,
                   1ST CROSS, UDAYAGIRI, MYSORE
                                                                    ...APPELLANT
                   (BY SRI. P.B. UMESH, ADVOCATE)
                   (APPOINTED AS AMICUS CURIAE V/O DT.1/7/25)

                   AND:
                   THE STATE OF KARNATAKA,
                   NARASHIMHARAJA POLICE,
                   REPRESENTED BY THE
                   STATE PUBLIC PROSECUTOR,
                   HIGH COURT BUILDING,
Digitally signed   BANGALORE - 560 001
by SWAPNA V                                                       ...RESPONDENT
Location: High     (BY SMT. RASHMI JADHAV, ADDL. SPP)
Court of
Karnataka

                          THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO SET
                   ASIDE THE ORDER DATED:28.1.12 PASSED BY THE P.O., FTC-II,
                   MYSORE IN S.C.NO.234/10 - CONVICTING THE APPELLANT/ACCUSED
                   FOR    THE OFFENCE P/U/S   399 AND 402 OF     IPC. AND THE
                   APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A
                   PERIOD OF 4 YEARS AND TO PAY A FINE OF RS.3,000/- EACH FOR
                   THE OFFENCE P/U/S 399 OF IPC. IN DEFAULT OF PAY THE FINE THE
                   ACCUSED SHALL UNDERGO S.I. FOR A PERIOD OF 2 YEARS. AND
                   THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO R.I. FOR A
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                                                 NC: 2025:KHC:27449
                                              CRL.A No. 217 of 2012


HC-KAR



TERM OF 2 YEARS AND TO PAY FINE OF RS.1,000/- EACH, FOR THE
OFFENCE P/U/S 402 OF IPC. IN DEFAULT TO PAY THE FINE THE
ACCUSED SHALL UNDERGO S.I. FOR A PERIOD OF 1 YEAR. BOTH
THE SENTENCES UNDER THE ABOVE SAID OFFENCES SHALL RUN
CONCURRENTLY.

     THIS CRL.A., COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:      HON'BLE MRS. JUSTICE M G UMA

                        ORAL JUDGMENT

The appellant being accused No.5 in SC.No.234/2010, on

the file of learned Fast Track Court-II, Mysore is impugning the

Judgment of Conviction and Order of Sentence dated

28.01.2012, convicting him for the offences punishable under

Sections 399 and 402 of the Indian Penal Code (for short 'the

IPC') and sentencing to undergo rigorous imprisonment for a

period of 4 years with fine of Rs.3,000/- for the offence

punishable under Section 399 of IPC and to undergo rigorous

imprisonment for a period of 2 years with fine of Rs.1,000/- for

the offence punishable under Section 402 of IPC, with default

sentence.

2. Brief facts of the case of the prosecution are that,

on 08.11.2009, PW5 received credible information at about

07.45p.m., that 5 persons have made preparations and

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assembled behind Bannadanagar, Bannimantapa B.Layout, on

the ring road at a distance of 100 meters from the Ring Road

Railway Bridge, for the purpose of committing dacoity. PW5,

who was in the police station has proceeded to the spot along

with mahazar witness, apprehended them and under the

mahazar the longs, clubs, chilli powder, maruti omni van were

recovered and therefore, it is contended that the accused has

committed the offences punishable under Sections 399 and 402

of IPC.

3. The learned Magistrate took cognizance of the

offence, and committed the matter to the Sessions Court. The

Trial Court summoned the accused. The accused has appeared

before the Trial Court, pleaded not guilty and claimed to be

tried. Prosecution examined PWs1 to 5 and got marked Exs.P1

to 5 in support of its contention. The accused has denied all the

incriminating materials available on record, but has not chosen

to lead any evidence in his defence. The Trial Court, after

taking into consideration the materials on record came to the

conclusion that, the prosecution is successful in proving the

guilt of the accused beyond reasonable doubt and accordingly,

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passed the impugned judgment of conviction and order of

sentence. Being aggrieved by the same, the accused is before

this Court.

4. Heard Sri. P.B.Umesh, learned Amicus Curiae for

the appellant and Smt. Rashmi Jadhav, learned ASPP for the

respondent. Perused the materials including the Trial Court

records.

5. In view of the rival contentions urged by learned

counsel for both the parties, the point that would arise for my

consideration is:

"Whether the appellant-accused has made out a case 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

6. It is the contention of the prosecution that, accused

Nos.1 to 5 were armed with longs, clubs, chilli powder, a plastic

rope, a torch and assembled at the scene of occurrence with a

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maruti omni van and they have made preparations for

committing dacoity. On receiving credible information by PW5-

the PSI of Narasimharaja Police Station, Mysore on 08.11.2009

at 07.45 p.m went to the spot along with the mahazar witness,

found accused Nos.1 to 5 with a Maruthi Omni car bearing

Reg.No.CKQ-3832 and was satisfied that, the accused have

assembled there by making preparations to commit dacoity.

PWs.1, 2 and 4 are the police officials, who accompanied PW5

and PW3 is the mahazar witness. All these witnesses have

supported the case of the prosecution. However, immediately

after receipt of the credible information by PW5, regarding

assembly of the accused with an intention to commit dacoity,

the same was not recorded in the diary. But PW5 along with

her staff PWs.1, 2, 4 and PW3 went to the spot, apprehended

the accused and seized the incriminating materials. Strangely,

even the incriminating materials were not identified as material

objects to substantiate the contention of the prosecution.

7. It is brought to the notice of the Court that accused

Nos.1 to 4 have preferred Crl.A.No.201/2012. The Co-ordinate

Bench of this Court, vide judgment dated 26.10.2023, allowed

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the appeal and acquitted accused Nos.1 to 4. However, in the

operative portion of the order, the judgment of the Trial Court

passed against the accused Nos.1 to 5 was set aside and all of

them were acquitted. It appears the pendency of the present

appeal preferred by accused No.5 was not bought to the notice

of the Co-ordinate Bench of this Court.

8. The allegations made against accused Nos.1 to 5

are similar. No separate overt act is alleged against the present

appellant - accused No.5. The Co-ordinate Bench of this Court

found that, there is discrepancy in the evidence of the

prosecution witnesses with regard to seizure of the material

objects. It has also commented as to why the credible

information received by PW5 was not recorded in the station

house diary. It is found that the case of the prosecution

regarding commission of the offence by the accused cannot be

accepted, without reasonable doubt. Under such circumstances,

the benefit of doubt was extended to accused Nos.1 to 4 to

acquit them. When the co-accused against whom similar

allegations are made are already acquitted, I do not find any

justification to confirm the judgment of the conviction for the

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present appellant - accused No.5 as he is also entitled for the

benefit of doubt.

9. In view of the above, I am of the opinion that the

impugned judgment of conviction and order of sentence passed

by the Trial Court is liable to be set aside. Accordingly, I

proceed to pass the following:

ORDER

(i) The Criminal Appeal is allowed.

(ii) The Judgment of Conviction and Order of Sentence dated 28.01.2012 passed in S.C.No.234/2010, on the file of learned Fast Track Court- II, Mysore, is hereby set aside.