Karnataka High Court
Raghvendra @ Raghu @ Parveen vs The State Of Karnataka on 6 June, 2025
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CRL.A No. 100015 of 2017
C/W CRL.A No. 100020 of 2017
HC-KAR
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)
Digitally signed AND:
by
MOHANKUMAR
B SHELAR THE STATE OF KARNATAKA,
Location: HIGH R/BY ITS S.P.P.,
COURT OF
KARNATKA HIGH COURT OF KARNATAKA,
DHARWAD
BENCH DHARWAD BENCH, DHARWAD.
Date: 2025.06.19
14:54:44 +0530 ...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.
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CRL.A No. 100015 of 2017
C/W CRL.A No. 100020 of 2017
HC-KAR
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
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CRL.A No. 100015 of 2017
C/W CRL.A No. 100020 of 2017
HC-KAR
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
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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
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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
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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
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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
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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
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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
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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
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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
