Karnataka High Court
Ramesh Poojary vs The State on 13 October, 2025
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CRL.A No. 240 of 2013
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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
Digitally signed by REP. BY PUBLIC
LAKSHMINARAYAN N
Location: HIGH
PROSECUTOR
COURT OF
KARNATAKA ...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
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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
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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
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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
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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.
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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?
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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.
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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:
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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.
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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.
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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,
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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
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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:
ORDER
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
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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
