Karnataka High Court
Surendra S/O Shanthkumar Kote vs The State Of Karnataka on 18 June, 2025
Author: V Srishananda
Bench: V Srishananda
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CRL.A No. 200009 of 2021
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE V SRISHANANDA
CRIMINAL APPEAL NO.200009 OF 2021
(374(Cr.PC)/415(BNSS))
BETWEEN:
SURENDRA S/O SHANTHKUMAR KOTE,
AGE: 32 YEARS, OCC: LABOUR,
R/O HALLADKERI, DIST. BIDAR-585 201.
...APPELLANT
(BY SRI. SHIVANAND V. PATTANASHETTI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
R/BY ADDL. SPP, HIGH COURT OF KARNATAKA,
Digitally signed KALABURAGI BENCH-585 106,
by RENUKA
(THROUGH BIDAR GANDHI GUNJ P.S.
Location: HIGH
COURT OF DIST. BIDAR-585 201).
KARNATAKA
...RESPONDENT
(BY SRI. JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.A. IS FILED UNDER SECTION 374 (2) OF
CR.P.C., PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION AND ORDER OF SENTENCE DATED 16.12.2020
AND 17.12.2020 RESPECTIVELY PASSED BY THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AND BIDAR IN S.C. NO.
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CRL.A No. 200009 of 2021
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243/2016 AND ACQUIT THE APPELLANT/ACCUSED, FOR THE
OFFENCES PUNISHABLE U/S 394 OF IPC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V SRISHANANDA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE V SRISHANANDA)
1. Heard Sri. Shivanand V. Pattanashetty, learned
counsel for the appellant and Sri. Jamadar Shahabuddin,
learned HCGP for the respondent-State.
2. The present appellant is the accused who has
suffered an order of conviction in S.C.No.243/2016 on the
file of the Principal District and Sessions Judge, Bidar, by
Judgment dated 16.12.2020 sentenced the accused as
under:
ORDER
i. Accused Surendera S/o. Shanthkumar Kote,
is hereby sentenced to undergo rigorous imprisonment for
4 years for the offence punishable U/Sec. 394 of IPC and
shall pay fine of Rs.10,000/-. In default of payment of
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fine, he shall undergo simple imprisonment for a period of
three months.
ii. The DLSA, Bidar, is directed to work out
compensation to Pw.8 Ramu and Pw.9 Anilkumar, by
taking into consideration nature of injuries and the period
of hospitalization.
iii. The accused is entitled for set off the period
of detention during crime stage as provided U/Sec. 428 of
Cr.P.C.,
iv. The bail bonds and surety bonds of the
accused stands cancelled.
v. MO.1 knife is ordered to be confiscated to the
State after the appeal period.
vi. The interim order of custody of vehicle given
in favour of accused Surender S/o. Shanthkumar Kote, is
hereby recalled and the vehicle bearing Reg. No.KA 38 L
4985 is ordered to be confiscated to State. Since accused
is in judicial custody the concerned policed shall take
possession of the vehicle and produce before the Court for
confiscation.
vii. Issue conviction warrant accordingly.
viii. The Chief Administrative Officer of this Court
is directed to send the certified copy of the judgment of
conviction and order of sentence to the District
Magistrate/Deputy Commissioner, Bidar, in compliance of
Section 365 of Cr.P.C. and also DLSA, Bidar.
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ix. The Chief Administrative Officer of this Court
is directed to furnish free copy of the Judgment of
conviction and order on sentence to the accused
forthwith.
3. Facts in the nutshell which are utmost necessary for
disposal of the present appeal are as under:
3.1. On 15.06.2016 a complaint came to be alleged with
the Gandhi Gunj Police Station, Bidar, contending that, at about
11.00 p.m., the appellant came on a motorcycle bearing
registration No.KA-38/L-6985, to Beldale Petrol Pump, Gumpa,
Bidar, for filling the petrol to his motorcycle. Ganapathi being
the salesman in the said petrol pump filled the petrol worth
Rs.100/- at the request of the appellant. After filling the petrol,
Ganapathi demanded payment of Rs.100/- being the cost of the
petrol. The appellant not only refused to pay the amount of
Rs.100/- but also he snatched Rs.500/- cash held by Ganapathi
and wanted to escape away on the motorcycle.
3.2. On hearing the hue and cry, one Ramu and another
Anilkumar who were the co-workers of Ganapathi, rushed to
the scene and held the motorcycle and caught hold of the
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accused. Having failed to escape away from the scene of
offence, the accused took out a knife which was in his
possession and stabbed on the stomach of Anilkumar and
assaulted Ramu with the same weapon behind the ear and
caused grievous injuries and later on escaped away with the
cash of Rs.500/-.
3.3. Immediately thereafter, Ganapathi approached the
Gandhi Gunj Police Station and lodged the complaint. The
police after registering the case thoroughly investigated the
matter inter alia, arrested the accused and recovered the knife
which was used in the incident pursuant to the voluntary
statement given by the accused and on conclusion of the
investigation, filed the charge-sheet.
4. Learned trial Magistrate committed the matter to
the Sessions Court in view of the fact that, the offence alleged
against the accused under Sections 394 and 307 of IPC, are
exclusively triable by the Sessions Court. Learned Sessions
Judge after committal, secured the presence of the accused by
applying Section 207 of Cr.P.C. and framed charges under
Section 397 of Cr.P.C. It is pertinent to note that, charges are
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framed against the accused twice i.e. on 30.03.2018 and again
on 14.11.2018 (perhaps not noticing the framing of charge
earlier on 30.03.2018). It is pertinent to note that, on both
occasions, the charge is framed under Section 397 of IPC.
Accused pleaded not guilty, therefore, the trial was held.
5. In order to bring home the guilt of the accused, the
prosecution proceeded to examine thirteen witnesses as P.W.1
to P.W.13 and placed on record thirteen documents which were
exhibited and marked as Ex.P.1 to Ex.P.13 comprising of
complaint, further statement of complainant, seizure mahazar,
spot mahazar, would certificates of P.W.8 and P.W.9, case-
sheet pertaining to P.W.8 and P.W.8, FIR and voluntary
statement of accused and list of properties. The prosecution
also placed on record the material object namely knife which
was used in the incident which was recovered pursuant to the
voluntary statement.
6. On conclusion of recording of the evidence, the
statement of the accused as is contemplated under Section 313
of Cr.P.C., was recorded, wherein the accused has denied all
the incriminating circumstances, but failed to furnish any
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explanation to the incriminatory circumstances, nor in his
version about the incident as is contemplated under Section
313 (4) of Cr.P.C.
7. Thereafter, the learned Sessions Judge heard the
matter in detail and convicted the accused for the offence
punishable under Section 394 of IPC and sentenced as referred
supra.
8. Being aggrieved by the same, the accused is before
this Court in this appeal on the following grounds:
"GROUNDS
5) That, the judgment of conviction and order of
sentence passed by the learned judge is contrary to the
facts of the case, evidence on record & against the settled
principles of law.
6) That, PW-1 being the complainant, star witness
and eye witness to the case of the prosecution, PW-1
turned hostile to the case of the prosecution and even
learned P.P. cross examined the PW-1, but not able to
elicit any clinching material against the appellant from the
mouth of the PW-1 and even prosecution is not able to
extract the contents of Ex.P-1 relating to the incident of
robbery resulting in injury cause to PW-8 Ramu and PW-9
Anilkumar. So, trial court while appreciating the evidence
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of PW-1 ought to have extended the benefit of said
evidence in favour of appellant. Hence, the judgment of
conviction and order of sentence passed by the trial court
is liable to be set aside.
7) That, PW-2, PW-3 are the panch witness for the
seizer panchanama are turned hostile to the case of the
prosecution. So, trial court ought to have come conclusion
that prosecution utterly failed to prove the seizer
panchanama i.e. Ex.P-3 and ought to have extended the
benefit in favour of appellant.
8) That, PW-4 & PW-5 are the star witnesses and
eye witnesses for the prosecution and PW-6 & PW-7 are
the witnesses for Ex.P-6 i.e. spot mahazar turned hostile
to the case of the prosecution. So, trial court ought to
have come conclusion that prosecution utterly failed to
prove the seizer panchanama i.e. Ex.P-6 and ought to
have extended the benefit in favour of appellant.
9) That, PW-8 & PW-9 are the injured eye
witnesses they partly supported the case of the
prosecution to the extent of quarrel taken place between
them with the appellant and not with regard to charges
framed by the trial court and case of the prosecution. So,
trial court ought to have come to conclusion that,
prosecution utterly failed to prove the case U/s 397 & 394
of IPC.
10) That, PW-10 Dr. Sujit Patil has given a
evidence to the effect that the injured have not named
assailant and the names of attendants while giving the
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history. So, trial court ought to have extended the benefit
of same and acquitted the appellant.
11) That, prosecution failed to seize the blood
stained cloths of the injured to prove their case
independently. Hence, the judgment of sentence and
order of conviction is liable to be set aside.
12) That, identification of articles alleged to have
been recovered from accused is not properly proved and
looking into evidence of injured eye witnesses PW-8 &
PW-9, they have not identified the M.O-1 knife. Hence,
the judgment of sentence and order of conviction is liable
to be set aside.
13) That, looking into the case of the prosecution
and evidence on record absolutely there are no material
convict the appellant U/s 394 of IPC.
14) That, So, trial court while appreciating their
evidence ought to have taken great care to evaluate their
evidence and acquitted the appellant.
15) That, the Learned Sessions Judge has
committed a serious error in convicting the appellant
without properly appreciating the evidence in its right
prospective manner.
16) That, without admitting the case of the
prosecution, the order of sentence imposed is too
exorbitant and too higher side.
17) That, prosecution failed to give any explanation
regarding the non examinations of material witnesses.
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18) That, trial court failed to follow the basic
principles of law regarding the proving of prosecution
case. It is settled law that, the prosecution must prove
the case independently without depending upon the
weakness or lacuna on the part of the defense.
19) That, trial court ought to have come to
conclusion that, 1.0. as conducted the tainted
investigation.
20) That, trial court not properly put the
incriminating circumstances to the appellant while
recording 313 statements.
21) That, trial court ought to have given a benefit
of doubt to the appellant and acquitted him.
22) That, it is respectfully submitted that, the
learned Sessions Judge has not at all appreciated the case
of the appellant in the light to human probabilities and the
same has vitiated the findings. The reason assigned by
court in convicting the appellant is illegal and incorrect.
The same has resulted in miscarriage of justice to the
appellant.
23) That, the appellant seeks leave of this Hon'ble
Court to urge the other grounds at the time of final
hearing."
9. Sri. Shivanand V. Pattanashetti, learned counsel
appearing for the appellant, reiterating the grounds urged in
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the appeal, pointed out that, the trial stood vitiated for not
framing the charge properly as admittedly Section 397 of IPC,
is not a charging section.
10. He would further contend that, since the charge is
not properly framed, the right of the accused is put to jeopardy
which vitiated the entire trial and sought for setting aside the
order of the conviction.
11. He would further point that, among the prosecution
witnesses, P.W.1, P.W.2 and P.W.5 have not supported the
case of the prosecution. P.W.6 and P.W.7 were the mahazar
witness to the spot mahazar have also turned hostile to the
case of the prosecution and therefore, the Sessions Judge
ought not have convicted the accused, and sought for allowing
the appeal.
12. He would also contend that, mere recovery of the
knife at the instance of the alleged voluntary statement of the
accused would not ipso facto makes out a case and sought for
allowing the appeal.
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13. Alternatively, Sri. Shivanand V. Pattanashetti,
would contend that, in the event this Court upholds the order of
conviction, the custody period of one month six days be treated
as period of imprisonment for the offence punishable under
Section 324 of IPC by scaling down the offence punishable
under Section 394 to 324 of IPC by enhancing the fine amount.
14. Per contra, Sri. Jamadar Shahabuddin, learned High
Court Government Pleader supports the impugned Judgment by
contending that, on mere fact that some of the prosecution
witnesses have turned hostile to the case of the prosecution
would not ipso facto result in prosecution case as doubtful.
15. He would further contend that, the injured
witnesses namely P.W.8 and P.W.9 have supported the case of
the prosecution in toto and they have withstood the searching
cross-examination on behalf of the accused.
16. He would invite the attention of this Court that,
P.W.10 who is a Doctor who examined P.W.8 and P.W.9 on the
very day of the incident and without loss of time issued the
wound certificate marked at Ex.P.7 and Ex.P.8, wherein, he has
noted that, P.W.8 and P.W.9 have suffered grievous injuries.
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The case-sheet maintained in the Government Hospital were
also placed on record by P.W.10 and therefore, the case of the
prosecution sands established by placing necessary materials
on record and thus sought to dismiss the appeal.
17. Having heard the arguments from both sides, this
Court perused the materials on record meticulously.
18. On such perusal of the material on record, the
following points would arise for consideration:
(i) Whether the materials placed on record by
the prosecution in the form of oral testimony of
prosecution witnesses and documentary evidence coupled
with one material object-Knife would be sufficient enough
to maintain the conviction of the appellant for the offence
punishable under Section 394 of IPC?
(ii) Whether the impugned Judgment is suffering
from legal infirmity or perversity and thus calls for
interference?
(iii) Whether the sentence is excessive?
(iv) What order?
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19. Regarding point Nos.1 to 3:
19.1. At the outset, even though Sri. Shivanand V.
Pattanashetti, contended that, framing of the charge under
Section 397 of IPC, is incorrect, since there is no conviction of
offence punishable under Section 397 of IPC and the conviction
is under Section 394 of IPC, improper framing of charge has
not caused any serious prejudice to the rights of the accused.
19.2. In the case in hand, the complainant is
examined as P.W.1. He did not support the case of the
prosecution to any extent, except stating that, he was working
as a petrol dispenser in Beldale Petrol Pump about five to six
years prior to the date of deposition and he was acquainted
with C.W.5 to C.W.9.
19.3. Since he failed to identify the accused and
depose about the incident, he was treated as a hostile witness
and cross-examined by the learned public prosecutor with
permission of the Court by confronting the contents of the
complaint, marked at Ex.P.1.
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19.4. However, in such cross-examination, the
complainant denied the contents of complaint as well as the
further statement.
19.5. P.W.2, P.W.3, P.W.4 and P.W.5 are the co-
workers of the complainant who also did not support the case
of the prosecution to any extent. According to the prosecution,
they are the eyewitnesses to the incident and they were also
treated as hostile witnesses by the prosecution with the
permission of the Court and the statements said to have been
given by them before the Investigating Officer were confronted
to them.
19.6. But in such cross-examination also the
prosecution is unable to elicit any useful material to the
prosecution case. P.W.6 and P.W.7 are the witnesses to Ex.P.6
mahazar. They also did not support the case of the prosecution.
19.7. P.W.8 and P.W.9 are the co-workers of the
complainant who were injured in the incident. They have
supported the case of the prosecution in toto. In their cross-
examination, it is suggested that, they have deposed falsely to
help the complainant and to help the prosecution is denied by
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them. The injury sustained by P.W.8 and P.W.9 is supported by
the oral testimony of the Doctor who is examined as P.W.10
and placed on record the would certificates of P.W.8 and P.W.9,
vide Ex.P.7 and Ex.P.8 and the case-sheet pertaining to them
as Ex.P.9 and Ex.P.10.
19.8. P.W.11 is the Assistant Sub-Inspector, who
registered the case and handed over the further investigation
to P.W.12. They supported the case of the prosecution by
deposing about the filing of the FIR, conducting the
investigation, spot mahazar, arrest of the accused and
voluntary statement given by them. P.W.13 is the further
Investigating Officer who completed the investigation and filed
charge-sheet. He also supported the case of the prosecution.
19.9. The above evidence on record is sought to be
re-appreciated by the counsel for the appellant. Sri. Shivanand
Pattanashetti, would contend that, in the absence of any cogent
evidence placed on record by the prosecution especially as per
the oral testimony of P.W.1, the offence under Sections 392 or
Section 394 or further Section 397 is not established by the
prosecution.
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19.10. On close scrutiny it is seen that, the
complainant and other eyewitnesses to the incident have
turned hostile to the prosecution case. The Police were unable
to collect or recovery the sum of Rs.500/- from the custody of
the accused who is said to have been robbed by the accused.
19.11. However, with the material evidence placed
on record, P.W.8 and P.W.9 have suffered injuries as per Ex.P.7
and Ex.P.8 and the case-sheet vide Ex.P.9 and Ex.P.10. The
Doctor who is the author of Ex.P.7 to Ex.P.10 is examined as
P.W.10. In his evidence, it is elicited that, on the date of
incident at about 11.45 p.m. he has examined P.W.8 and P.W.9
and noted the injuries found on them and the history narrated
by them is taken into consideration.
19.12. When the injuries that are noted in Ex.P.7 and
Ex.P.8 are considered, except stating that, it is a grievous in
nature, the said injuries are not classified by P.W.10, nor it is
elicited by the prosecution through oral testimony of P.W.10 as
grievous injuries with supporting material. The learned
Sessions Judge has also considered the same and has
specifically opined that, the injuries found in the wound
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certificate vide Ex.P.7 and Ex.P.8 would not fall under the
classification of grievous injury as is defined under Section 320
of IPC.
19.13. The prosecution for the reasons best known to
it, did not challenge the quantum of sentence that no grievous
injury has been caused by using of M.O.1-knife in the incident.
19.14. Under such circumstances, following the
dictum of the Hon'ble Supreme Court in the case of Govind
Ramji Jadhav Vs. State of Maharastra, reported in (1990)
4 SCC 718, in an appeal filed by the accused this Court cannot
enhance the sentence, nor record a finding which is injuries to
the accused in the absence of any specific challenge to the
findings or the sentence by the State.
19.15. Taking note of these aspects of the matter,
especially, P.W.1 to P.W.3 having turned hostile to the case of
the prosecution and the ingredients required to attracts the
offence of robbery or using of the weapon in the process of
robbery causing grievous hurt, the conviction order passed by
the learned trial Judge cannot be countenanced in law and the
conviction of the accused under Section 394 of IPC needs to be
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scaled down to offence under Section 324 of IPC as there is a
bleeding injury caused to the P.W.8 and P.W.9 as per Ex.P.7
and Ex.P.8.
19.16. Accordingly, the conviction of the accused
needs to be set aside for the offence punishable under Section
394 of IPC and it should be scaled down to the offence
punishable under Section 324 of IPC, whereby, the custody
period already undergone by the accused if treated as period of
imprisonment by enhancing the fine amount in a sum of
Rs.50,000/- would meet the ends of justice in the facts and
circumstances of the case.
19.17. After receipt of the fine amount, if a sum of
Rs.20,000/- each is ordered as compensation to P.W.8 and
P.W.9 would serve the ends of justice.
19.18. Accordingly, point Nos.1 to 3 are answered
partly in affirmative.
20. Regarding Point No.4.
20.1. In view of the finding of this Court on point
Nos.1 to 3 as above, the following order is passed:
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ORDER
(i) The appeal is allowed in part;
(ii) The conviction of the appellant for the
offence punishable under Section 394 of IPC is set
aside; instead he has been convicted to the offence
punishable under Section 324 of IPC. Consequently
the sentence ordered by the trial Judge is modified
by directing the custody period already undergone by
the accused/appellant for the period of one month
six days is treated as period of imprisonment for the
offence punishable under Section 324 of IPC and
directed to pay enhanced fine amount of Rs.50,000/-
on or before 20.07.2025.
(iii) Out of the fine amount recovered, a sum
of Rs.20,000/-each is to be paid as compensation to
P.W.8 and P.W.9 under due identification. The
balance amount of Rs.10,000/- is ordered to be
appropriated towards defraying expenses of the
State.
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(iv) Failure to pay the enhanced fine amount,
the same shall be recovered as fine levy warrant
from the assets of the appellant.
(v) Office is directed to return the trial Court
records with copy of this order forthwith for issuing
the modified conviction order.
Sd/-
(V SRISHANANDA)
JUDGE
SVH
CT: AK
