Narayanaswamy vs State of Karnataka - Criminal Appeal

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Narayanaswamy vs The State Of Karnataka By on 3 March, 2026

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

-1-
NC: 2026:KHC:12882-DB
CRL.A No. 91 of 2018

           HC-KAR

                IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 3RD DAY OF MARCH, 2026

                                   PRESENT
                  THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
                                        AND
                  THE HON'BLE MR. JUSTICE VENKATESH NAIK T
                     CRIMINAL APPEAL NO. 91 OF 2018 (A)

           BETWEEN:

                 NARAYANASWAMY
                 AGED ABOUT 51 YEARS,
                 S/O VARADAPPA,
                 R/O HYADALA VILLAGE,
                 DEVANAHALLI TALUK,
                 BENGALURU RURAL DISTRICT.
                                                          ...APPELLANT

           (BY SRI. MAYUR M.R., ADVOCATE (P/H))

           AND:

Digitally
signed by 1. THE STATE OF KARNATAKA BY
LAKSHMI T
CHANNARAYAPATNA POLICE,
Location:
High Court DEVANAHALLI TALUK,
of Karnataka
BENGALURU RURAL DISTRICT,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
BENGALURU-560 001.

           2.    MUNIYAPPANNA
                 AGED ABOUT 56 YEARS,
                 S/O LATE MUNIYAPPA,

           3.    MUNEGOWDA
                 AGED ABOUT 37 YEARS,
                 S/O THATHAPPA @ MARAPPA,
                         -2-
                               NC: 2026:KHC:12882-DB
                                CRL.A No. 91 of 2018

HC-KAR

1. RAMESH
   AGED ABOUT 29 YEARS,
   S/O THATHAPPA @ MARAPPA,

2. MARIYAPPA
   AGED ABOUT 39 YEARS,
   S/O DODDAMARAPPA,

3. THIMMARAYAPPA
   AGED ABOUT 51 YEARS,
   S/O SANNAPPA,

4. MUNIRAJU
   AGED ABOUT 46 YEARS,
   S/O CHIKKAPILLAPPA,

5. MANJUNATH
   AGED ABOUT 36 YEARS,
   S/O MARAPPA @ MOTAPPA,

6. ANJINAPPA
   AGED ABOUT 41 YEARS,
   S/O SONNAPPA,

7. CHIKKASIDDAPPA
   AGED ABOUT 32 YEARS,
   S/O MARAPPA,

   ALL ARE RESIDING AT
   HYDALU VILLAGE,
   DEVANAHALLI TALUK,
   BENGALURU RURAL DISTRICT.
   ...RESPONDENTS

(BY SRI. RAHUL RAI K., HCGP FOR R1 (P/H);
SRI. N.K. SIDDESWARA, ADVOCATE FOR R2 TO R10 (P/H))
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NC: 2026:KHC:12882-DB
CRL.A No. 91 of 2018

HC-KAR

 THIS CRL.A. IS FILED U/S.372 CR.P.C., PRAYING TO SET

ASIDE THE ACQUITTAL JUDGMENT PASSED ON 06.07.2017
PASSED BY THE V ADDITIONAL DISTRICT AND SESSIONS
JUDGE, DEVANAHALLI IN S.C.NO.15016/2016 - ACQUITTING
THE RESPONDENTS/ACCUSED NO.1 TO 9 FOR THE OFFENCE
P/U/S 395 OF IPC.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
and
HON'BLE MR. JUSTICE VENKATESH NAIK T

                ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE VENKATESH NAIK T)

 Heard learned counsel for the appellant, learned High

Court Government Pleader for respondent No.1- State and

the learned counsel for respondent Nos.2 to 10.

1. The appellant/defacto complainant

Narayanaswamy (PW1) has filed this appeal challenging

the acquittal judgment passed in SC No.15016/2016 dated

06.07.2017 by V Additional District and Sessions Judge,

Devanahalli, Bengaluru Rural District, acquitting -4- NC: 2026:KHC:12882-DB CRL.A No. 91 of 2018 HC-KAR

respondent Nos.2 to 10 for the offence punishable under Section 395 of IPC.

For the sake of convenience, the parties are referred

as per their ranking before the Trial Court. The appellant

is defacto complainant, respondent No.1 is the State and

respondent Nos.2 to 10 are accused Nos.1 to 9.

1. The brief facts of the prosecution case is as

under:

On 28.01.2009 at about 9.30 a.m., PW1-

Narayanaswamy lodged a complaint - Ex.P1 to the first

respondent Police, alleging that the land bearing Survey

No.83/3 measuring 30 guntas belongs to his father, CW2-

Varadappa and there was civil dispute between his family

and the accused persons in respect of the said land. The

borewell, which was situated in their land was under repair

and they removed the borewell pipes, chain pulley, and

cables for repair and had kept the same in their land. On

26.01.2009, at about 11.00 p.m., accused Nos.1 to 9, in -5- NC: 2026:KHC:12882-DB CRL.A No. 91 of 2018 HC-KAR

furtherance of common object trespassed into their land

and abused the complainant and his father-PW2 in filthy

language and took away eight 20 feet iron pipes, 100 feet

cable wire, chain pulley in a tempo bearing No.KA 43-
1226 by threatening their lives. Hence, he lodged a

complaint vide Ex.P1. Thereafter, the jurisdictional police

have registered the case in Crime No.11/2009 for the

offence punishable under Section 379 of IPC. The matter

was investigated and the I.O., filed charge sheet for the

offence punishable under Sections 143, 447, 504, 323 and 506 r/w 149 of IPC. Initially, the matter was tried by the

jurisdictional Magistrate. While recording the evidence, the

prosecution filed an application under Section 323 of

Cr.P.C., before JMFC, Devanahalli, for committal of the

case to the Court of Sessions on the ground that [Section

395](https://indiankanoon.org/doc/1119707/) of IPC would attract. Later, the matter was remitted

to the Court of Sessions for trial and the Court of Sessions

framed charge under Section 395 of IPC, for which, -6- NC: 2026:KHC:12882-DB CRL.A No. 91 of 2018 HC-KAR

accused Nos.1 to 9 pleaded not guilty and claimed to be

tried.

1. The prosecution in order to prove its case

examined in all 6 witnesses as PWs.1 to 6 and got marked

documents as Exs.P1 to P8(a) and material objects as

MOs.1 to 3. After recording 313 statement of the accused,

the accused did not adduce any defence evidence. The

trial Court based on the oral and documentary evidence on

record, acquitted accused Nos.1 to 9 of the offence

punishable under Section 395 of IPC.

1. Being aggrieved by the impugned judgment

passed by the trial Court, PW1/complainant preferred this

appeal.

1. Learned counsel for the appellant/complainant

contended that the trial Court has not properly appreciated

the evidence on record. On the contrary, the trial Court

has misread the evidence and acquitted the accused

persons. The evidence of PW1-V.Narayanaswamy and the -7- NC: 2026:KHC:12882-DB CRL.A No. 91 of 2018 HC-KAR

evidence of PW2-Varadaraju clearly goes to show that on

the date of alleged incident, accused Nos.1 to 9 forcibly

took MOs.1 to 3 from the land of PW1 and to corroborate

the evidence of PW1, PW2-Varadaraju was examined and

their evidence corroborates with each other. Further, PW3-

Papanna, though he has given statement as per Ex.P5,

later he turned hostile, but the fact remains that MOs.1 to

3 were recovered from the house of PW3. PW.4-

Munegowda, panch witness to Exs.P2 and P3-spot

mahazar and seizure mahazar has supported the case of

the prosecution and he has identified the photos, which

are marked as Ex.P4. PW5- Kalandra Khan, Police

Inspector, has clearly stated before the Court with regard

to seizure of material objects MOs.1 to 3 from the house of

PW3. Though all the material witnesses have clearly stated

that MOs.1 to 3 were taken away by the accused,

however, the trial Court has acquitted accused Nos.1 to 9

on unsustainable ground. Though there are minor

omissions and contradictions in the evidence of the -8- NC: 2026:KHC:12882-DB CRL.A No. 91 of 2018 HC-KAR

prosecution witnesses, the same do not go to the very root

of the case and they are not sufficient to discard the

prosecution case in its entirety. The trial Court has totally

failed to appreciate the evidence on record and

erroneously acquitted accused Nos.1 to 9 for the offence

punishable under Section 395 of IPC. It is contended that

there are sufficient materials to convict the accused

persons for the offence under Section 395 of IPC. Hence,

he prays for allowing the appeal.

1. The learned High Court Government Pleader

appearing for respondent No.1/State contended that the

reasons assigned by the trial Court are not proper and not

in accordance with law. In fact, PWs.1, 2 and 4 have

clearly stated against accused Nos.1 to 9 and the

ingredient of Section 395 of IPC clearly gets attracted. The

Investigating Officer has also stated regarding the seizure

of articles MOs.1 to 3. Hence, learned High Court

Government Pleader also prays to allow the appeal. -9-

NC: 2026:KHC:12882-DB CRL.A No. 91 of 2018 HC-KAR

1. Learned counsel for respondent Nos.2 to

10/accused Nos.1 to 9 vehemently contended that there

are contradictory testimonies of PW1 and PW2 with regard

to arrival of accused Nos.1 to 9 to the land, trespass and

robbing of MOs.1 to 3 from the land of PW1 and PW2.

Learned counsel further contended that there is an

inordinate delay of 2 days in lodging the complaint. The

incident has occurred on the night of 26.01.2009, but the

complaint was lodged on 28.01.2009 and the delay is not

properly explained. There is civil litigation pending

between the parties and PW1, who is litigating minded

person right from 1987 is filing original suits one after the

another. The original suit which was filed by him in OS

No.192/1987 and OS No.2199/2006 came to be dismissed

and hence, he had grudge against accused Nos.1 to 9. In

that context, he has filed this false case against accused

Nos.1 to 9. The recovery is also not proved to attract Section 27 of Indian Evidence Act. PW3 has also turned

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hostile to the case of prosecution. Hence, he prayed to

dismiss the appeal.

1. After hearing the learned counsel from both

sides, the points that arise for our consideration in this

appeal are:

"i. Whether the prosecution has proved beyond
reasonable doubt that on 26.01.2009 at 11.00 p.m.,
accused Nos.1 to 9 trespassed to the land of PW1,
took quarrel with PW1 and PW2, abused them in
filthy language, intentionally insulted them, made
criminal intimidation to eliminate them and also
took away 8 iron pipes measuring 20 feet length
along with chain pulley, 120 meters cable wires in
the tempo, thereby committed an offence
punishable under Section 395 of IPC?

ii. Whether the judgment of acquittal under
appeal warrants any interference at the hands of
this Court?"
10. Before proceeding further in analyzing the

evidence led in the matter, it is to be borne in mind that

this is an appeal preferred against the judgment of

acquittal passed by the trial Court. Therefore, the accused

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has the double benefit. Firstly, the presumption under law

is that unless the guilt of accused is proved, he has to be

treated as an innocent. Secondly, the accused has already

been enjoying the benefit of judgment of acquittal passed

under the impugned judgment. As such, bearing the same

in mind, the evidence placed by the prosecution in the

matter is required to be analyzed.

(a) The Hon'ble Apex Court, in its judgment in the

case of Chandrappa and others -vs- State of

Karnataka, reported in (2007) 4 Supreme Court Cases

415, while laying down the general principles regarding

powers of the Appellate Court while dealing in an appeal

against an order of acquittal, was pleased to observe at

paragraph 42(4) and paragraph 42(5) as below:

"42(4) An appellate Court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent Court of

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law. Secondly, the accused having secured
acquittal, the presumption of innocence is further
reinforced, reaffirmed and strengthened by the trial
Court.

42(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal
recorded by the trial Court."
(b) In the case of Sudershan Kumar -vs- State

of Himachal Pradesh reported in (2014) 15 Supreme

Court Cases 666, while referring to Chandrappa's case

(supra), the Hon'ble Apex Court at Paragraph 31 of its

judgment was pleased to hold that, it is the cardinal

principle in criminal jurisprudence that presumption of

innocence of the accused is reinforced by an order of

acquittal. The Appellate Court, in such a case, would

interfere only for very substantial and compelling reasons.

(c) In the case of Jafarudheen and others -vs-

State of Kerala reported in (2022) 8 Supreme Court

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Cases 440, at Paragraph 25 of its judgment, the Hon'ble

Apex Court was pleased to observe as below:

"25. While dealing with an appeal against acquittal
by invoking Section 378 Cr.P.C, the appellate Court
has to consider whether the trial Court's view can
be termed as a possible one, particularly when
evidence on record has been analysed. The reason
is that an order of acquittal adds up to the
presumption of innocence in favour of the accused.
Thus, the appellate Court has to be relatively slow
in reversing the order of the trial Court rendering
acquittal. Therefore, the presumption in favour of
the accused does not get weakened but only
strengthened. Such a double presumption that
enures in favour of the accused has to be disturbed
only by thorough scrutiny on the accepted legal
parameters."
11. The above principle laid down in previous case

was reaffirmed by the Hon'ble Apex Court, in the case of

Ravi Sharma -vs- State (Government of NCT of

Delhi) and another reported in (2022) 8 Supreme

Court Cases 536 and also in the case of Roopwanti -vs-

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State of Haryana and others reported in AIR 2023

SUPREME COURT 1199.

1. Keeping in mind the above principles laid down

by the Hon'ble Apex Court, we proceed to analyze the

evidence placed by the prosecution in this matter.

1. The prosecution, in order to prove the alleged

guilt against accused Nos.1 to 9 has examined in all eight

witnesses PW.1 to PW.8.

1. PW1-V.Narayanaswamy, in his evidence has

stated that PW2-Varadappa is his father. He knows

accused Nos.1 to 9. He owns land bearing Survey No.83/3

measuring 30 guntas at Hyadalu village, Channarayapatna

Hobli, Devanahalli Taluk, and the land has been standing

in the name of his father, PW2-Varadaraju and they are in

possession of the said land. They had grown grapes in the

said land and there is a borewell in the land. He further

stated that on 26.01.2009, the motor got burnt and with

the help of chain pulley, pipes and cable wire, the motor

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was removed and the said materials were kept in their

land. At that time, they were in their land. On the same

day, at 09.00 p.m., all the accused trespassed into their

land in a tempo, abused them in filthy language and took

away MOs.1 to 3 chain pulley, 120 meter cable wire, 8 iron

pipes measuring 20 feet length in the tempo and

threatened them with dire consequences. The villagers

told him to approach the panchayat. However, no

panchayat was convened in the village. Therefore, on

28.01.2009, he lodged a complaint. Soon after receipt of

the complaint, the police came to his land, drew

Panchanamma vide Ex.P2. Later, he came to know that

MOs.1 to 3 were kept in the house of PW3-Papanna.

Hence, he showed the house of Papanna, where the police

seized MOs.1 to 3 from the house of PW3 under Ex.P3

seizure panchanama.

1. PW1 was cross examined. In his cross

examination, he has clearly admitted that PW2-Vardappa

has four brothers namely, Muniyappa, Doddapapanna,

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Chikkapapanna and Varadappa. Accused No.1 is none

other than the son of Muniyappa. In land bearing Survey

No.83/3, there were three partitions. Muniyappa, Pillamma

and Varadappa got 6 guntas each and PW.2-Varadappa

got 18 guntas in the said land. Later, Chikkapapanna and

PW2 exchanged their land. He admitted that the land of

accused No.1 and PW1 are abutting to each other. He also

admitted that there is civil dispute between the parties

and suit filed by PW1 in OS No.192/1987 and

O.S.No.2199/2006 came to be rejected by Civil Judge,

Devanahalli. He further stated that soon after the incident,

he visited the police station and gave complaint,

immediately the police came to the spot and in front of

the police itself, accused Nos.1 to 9 took MOs.1 to 3 in a

tempo.

1. PW2-Vardaraju has reiterated the oral

testimony of PW1 and corroborates his testimony.

1. PW3-Pappanna, the owner of neighbouring land

has stated that for the past nine years, the pipes, cable

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wires and chain pulley belonging to PW1 were lying in the

land of PW3, as there was no one to watch over them.

However, he has turned hostile to the case of prosecution

and nothing has been elicited in his cross-examination by

the learned Public Prosecutor.

1. PW4-Munegowda, though supported the case of

prosecution and corroborated the testimonies of PW1 and

PW2, however, in the cross-examination, he stated that he

has not seen the incident. Therefore, he is a hearsay

witness.

1. PW5-Kalandar Khan-Police Inspector, who

received the complaint and registered the FIR has stated

that on 28.01.2009 at 9.30 a.m., PW1 lodged the

complaint vide Ex.P1. Thereafter, he visited the scene of

offence, where he drew Ex.P2-mahazar and later seized

MOs.1 to 3 from the house of PW3-Papanna under Ex.P3.

1. PW6-Chowdappa-PSI, investigated the matter

and filed the charge sheet. With this evidence, learned

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counsel for appellant vehemently contended that PWs.1, 2

and 4 have supported the case of the prosecution.

1. The learned counsel for appellant contended

that the evidence of PW-4 Munegowda, who is panch

witness to Ex.P2 and P3 spot and seizure mahazar, has

supported the case of the prosecution and he has

identified the photos, which are marked as Ex.P4, but,

nothing has been elicited in the cross-examination to

impeach his testimony and the Trial Court has not properly

considered the evidence of this witness.

1. He further contended that PW-5 N.A.Khalandar

Khan, Police Inspector has clearly stated that, the material

objects MOs.1 to 3 were recovered and seized articles

were identified. Even in the cross-examination of this

witness, nothing is elicited to impeach his testimony.

Though this witness is an official witness and investigating

officer, his evidence cannot be brushed aside on the

ground that he is an official witness. The Trial Court has

failed to consider the evidence of this witness also.

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1. He further contended that in his evidence, PW-6

Chowdappa, PSI, has stated that, the initial investigation

was done by him and after concluding the investigation,

the charge sheet was laid before the Court. This witness

is only a formal witness.

1. The learned counsel contended that the trial

Court has failed to appreciate the evidence of PW-1, PW-2

and PW-4, who are the independent material witnesses,

who have supported the case of the prosecution to the

fullest extent. The Trial Court failed to appreciate that,

discrepancies in the evidence of independent witnesses are

minor discrepancies, whose statements have been

recorded after lapse of 3-4 years. The minor variations in

the evidence will not go to the very root of the case.

Further, the Trial Court has totally failed to appreciate the

evidence on record and erroneously acquitted the accused

i.e., respondent No.2 to 10 for the offences punishable

under Sections 395 of Indian Penal Code. There are

sufficient materials to convict respondent No.2 to 10 for

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the offences punishable under Sections 395 of Indian

Penal Code.

1. Admittedly, the appellant made allegations that

on the relevant date, time and place, the accused persons

trespassed to his land, intentionally insulted appellant to

provoke his breach of peace, voluntarily caused hurt to

PWs.1 and 2 by hands, made criminal intimidation to

eliminate them and took MOs.1 to 3 from their land.

1. A perusal of the material available on record

goes to show that a suit was filed by accused No.1 against

the appellant in O.S. No.217/2014 and there is civil

litigation pending between the parties in respect of share

to be allotted in the property. The records reveal that, the

father of appellant and accused persons are brothers and

the property in dispute is their ancestral property. Under

these circumstances, it is just and necessary to analyse Section 504 of IPC.

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1. The Hon'ble Apex Court in the case of Fiona

Shrikhande vs. State of Maharastra and

another1 at paragraph Nos.13 and 14 held as under:

''13. Section 504 IPC comprises of the
following ingredients viz. (a) intentional insult, (b)
the insult must be such as to give provocation to the
person insulted, and (c) the accused must intend or
know that such provocation would cause another to
break the public peace or to commit any other
offence. The intentional insult must be of such a
degree that should provoke a person to break the
public peace or to commit any other offence. The
person who intentionally insults intending or knowing
it to be likely that it will give provocation to any
other person and such provocation will cause to
break the public peace or to commit any other
offence, in such a situation, the ingredients of
Section 504 are satisfied. One of the essential
elements constituting the offence is that there should
have been an act or conduct amounting to intentional
insult and the mere fact that the accused abused the
complainant, as such, is not sufficient by itself to
warrant a conviction under Section 504 IPC.

1. We may also indicate that it is not the law that the actual words or language should figure 1 (2013) 14 SCC 44

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in the complaint. One has to read the complaint as a
whole and, by doing so, if the Magistrate comes to a
conclusion, prima facie, that there has been an
intentional insult so as to provoke any person to
break the public peace or to commit any other
offence, that is sufficient to bring the complaint
within the ambit of [Section 504](https://indiankanoon.org/doc/555306/) IPC. It is not the
law that a complainant should verbatim reproduce
each word or words capable of provoking the other
person to commit any other offence. The background
facts, circumstances, the occasion, the manner in
which they are used, the person or persons to whom
they are addressed, the time, the conduct of the
person who has indulged in such actions are all
relevant factors to be borne in mind while examining
a complaint lodged for initiating proceedings under [Section 504](https://indiankanoon.org/doc/555306/) IPC.''

1. Further, appellant - de-facto complainant made

allegations that on the relevant date and time, accused

persons intentionally insulted him to provoke his breach of

peace, but on perusal of the charge-sheet at column No.17

and the evidence before the Court, the prosecution

witnesses have not stated about the ingredients of Section

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504 of the IPC. Therefore, in the case on hand, ingredients

of Section 504 of the IPC are not made out.

1. In the complaint, the appellant - de-facto

complainant has taken the contention that on the relevant

date, time and place, the accused persons made criminal

intimidation to eliminate him, but on perusal of the

charge-sheet material and the evidence before the Court,

the clear terms used by accused persons have not been

stated by the appellant - de-facto complainant.

1. On perusal of the above provisions, it is clear

that in order to satisfy the ingredients of criminal

intimidation, there has to be a threat or injury to person,

reputation or property of the complainant by the accused

persons, which should be with an intention to cause threat

to that person or cause that person to do any act, which

he is not legally bound to do, or to omit to do so as to

avoid the execution of such threat.

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1. In case of [Manik Taneja and another v.

State of Karnataka](https://indiankanoon.org/doc/141108167/) and another2, the Hon'ble Supreme

Court had an occasion to examine the ingredients of Section 503 and 506 of the IPC.

'' Section 506 IPC prescribes punishment for the
offence of criminal intimidation. "Criminal
intimidation" as defined in Section 503 IPC is as
under:

"503.Criminal intimidation.--Whoever threatens
another with any injury to his person, reputation or
property, or to the person or reputation of any one in
whom that person is interested, with intent to cause
alarm to that person, or to cause that person to do
any act which he is not legally bound to do, or to omit
to do any act which that person is legally entitled to
do, as the means of avoiding the execution of such
threat, commits criminal intimidation.

Explanation.--A threat to injure the reputation of any
deceased person in whom the person threatened is
interested, is within this section."
A reading of the definition of "criminal intimidation"

would indicate that there must be an act of
threatening to another person, of causing an injury to 2 (2015) 7 SCC 423

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the person, reputation, or property of the person
threatened, or to the person in whom the threatened
person is interested and the threat must be with the
intent to cause alarm to the person threatened or it
must be to do any act which he is not legally
bound to do or omit to do an act which he is
legally entitled to do.''

 3 2 . The perusal of the foregoing proposition of

law, it is clear that in order to constitute an offence of

criminal intimidation, there must be threat with intention

to cause alarm to the complainant or to do any act which

is not legally bound to do. Mere expression of any words

without any intention to cause alarm to the complainant

or to make him to do, or omit to do any act, is not

sufficient to bring the act within the definition of criminal

intimidation. Therefore, in the instant case, even

ingredients of Section 506 of the IPC are not made out

against the accused persons. The evidence of prosecution

witnesses clearly demonstrates that, there is civil case

pending between the family of the appellant and the

accused persons. Further, the allegations made against

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the accused persons appears to be civil in nature and in

order to offshoot from civil suit, the appellant has foisted

this criminal case against the accused persons.

1. In order to attract Section 395 of IPC, it is just

and necessary to analyse Section 395 of IPC.

1. 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.

     The term dacoity defined under [Section 391](https://indiankanoon.org/doc/1337698/) of IPC -

"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".
34. In the light of the above definition, let us

examine the evidence of prosecution. PW1, in his evidence

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has categorically stated that on 26.01.2009, the motor

pumpset installed in his land was burnt. Therefore, in

order to get the repair done, they had removed all pipes

with motor with chain pulling along with cable wire. At the

same time, all the accused persons trespassed into their

land and taken the chain pulley - 120 meter cable wire

and 8 iron pipes measuring 20 feet length in a tempo

vehicle, by making criminal intimidation. However, in the

cross-examination, he has admitted that, there was a civil

litigation between the parties and when PW1 and PW2

were guarding their land, the accused persons trespassed

into their land in a tempo and took away chain pulley,

meter cable wire and iron pipes at the instance of the

police itself.

1. If really the instant incident had occurred on

26.01.2009 at about 09.00 p.m., then PW1 could have

lodged the complaint on the same night and that too if the

incident occurred in the presence of police itself, he could

have lodged complaint to the police on the spot itself.

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However, he did not lodge any complaint on the date of

incident, but after two days of the incident i.e., on

28.01.2009, he lodged the complaint. Therefore, there is

inordinate delay in lodging the complaint. In the

complaint, PW1 has stated that since the villagers assured

him to compromise the matter and restore MOs.1 to 3

articles to his land, on that premise, he could not lodge

the complaint in time. But, the cross-examination of PW1

clearly reveals that on the date of incident i.e., on

26.01.2009 at 10.00 p.m., itself the police visited his land

and accused Nos.1 to 9 robbed MOs.1 to 3 in their

presence itself. He did not lodge complaint to the police in

the land itself, which is contrary to the contents of Ex.P1

and falsifies the statement of the complainant.

1. Insofar as delay in lodging the complaint is

concerned, mere delay in lodging the complaint cannot be

a ground to acquit the accused in a criminal case.

However, the delay in lodging a complaint (FIR) does not

automatically invalidate a case, but puts the Court on

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guard, often casting suspicion on the prosecution's story.

While not fatal on its own, unexplained, long, or

unreasonable delays may suggest fabrication,

exaggeration, or embellishment of facts. However, if a

plausible reason for the delay is provided, or if witnesses

have no motive to implicate the accused falsely, the delay

can be overlooked. Whereas in the instant case, the

complainant has motive against the accused persons and

there is series of civil litigations between the parties.

1. Admittedly, MOs.1 to 3 were not recovered at

the instance of accused Nos.1 to 9. On the contrary, the

same were recovered from the house of PW3. However,

PW1 has stated that soon after committing robbery, MOs.1

to 3 were kept in the house of PW3. But PW3 has stated

that PW1-complainant himself brought MOs.1 to 3 to his

house and kept there and the police have seized the

aforesaid articles at the instance of PW1 and not at the

instance of accused persons. Therefore, there is material

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contradictions in the evidence of PWs.1 and 3 with regard

to recovery of robbed articles such as MOs.1 to 3.

1. Very interestingly, PW1 has deposed that police

station is situated nearby his village and immediately after

the incident, he rushed to the police station and gave

information. He went one step ahead and deposed that on

the same night, he lodged the complaint at about

10.00 pm., and immediately police rushed to the spot. It

shows that there is inconsistency in the evidence of PW1.

1. Insofar as the oral testimony of PW2 is

concerned, he is a hearsay witness. According to him, in

his presence, spot Mahazar was drawn vide Ex.P2, so also

in his presence, seizure Mahazar was drawn vide Ex.P3. In

the cross-examination, he denied the suggestion that he

has not made statement vide Ex.P4 and insofar as the oral

testimony of PW3 is concerned, it is alleged that in his

house, theft articles were kept, but he turned hostile to

the case of the prosecution.

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1. From perusal of the material available on

record, the contents of Ex.P2-spot mahazar and Ex.P3-

seizure mahazar are not proved. Further, the delay is not

properly explained by the prosecution and non-seizure of

tempo is also fatal to the case of prosecution. The oral

testimonies of PWs.1, 2 and 4 is full of inconsistencies and

their testimonies are not reliable and corroborative with

each other. Therefore, the trial Court has rightly

appreciated the oral testimony of the prosecution

witnesses and rightly acquitted accused Nos.1 to 9.

1. PWs.1 and 2 have categorically admitted that

there is a civil dispute pending between the parties.

Therefore, there is serious doubt with regard to alleged

offence committed by the accused persons. Hence, there is

no merit in the appeal.

1. On considering both oral and documentary

evidence placed before the Sessions Court, the Sessions

Court has rightly acquitted the respondents of the alleged

offence. Hence, we do not find any reasons to interfere

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with the impugned judgment. Accordingly, we pass the

following:

ORDER

(i) The Criminal Appeal stands dismissed.

(ii) The judgment of acquittal dated 06.07.2017

passed in SC No.15016/2016 by V Additional

District and Sessions Judge, Devanahalli,

acquitting accused Nos.1 to 9 of the offence

punishable under Section 395 of IPC is

confirmed.
Sd/-

(MOHAMMAD NAWAZ)
JUDGE

                                    Sd/-

(VENKATESH NAIK T)
JUDGE

HB
List No.: 1 Sl No.: 13