JUDGMENT : V. SRISHANANDA, J. Heard Sri. Ashok B. Mulage, learned counsel appearing for the appellant and Sri. Veeranagouda M.Malipatil, learned HCGP for the respondent-State. 2. The present appellant is the sole accused, who is convicted in S.C.No.78/2017 and sentenced as under: ORDER The accused is sentenced to undergo simple imprisonment for a period of eight years and to pay fine of Rs.25,000/- (Twenty five thousand rupees only) for the offence punishable under Section 397 of Indian Penal Code. In default to pay fine amount, he shall undergo simple imprisonment for a period of one year. On such deposit of fine amount, entire fine amount of Rs.25,000/- (Twenty five thousand rupees only), shall be paid to injured/PW.1-Pramod T.V. as compensation under Section 357 of Code of Criminal Procedure. The accused shall be entitled to the benefit of set-off for the period of detention undergone as under trial prisoner in terms of 428 of Criminal Procedure of Code. Issue conviction warrant against accused to jail authority. The order of release of M.Os.1 to 3 gold ornaments and cash in favour of PW.1/complainant before trail Court on 13.02.2012 is made absolute. As could be seen from the charge-sheet materials and case papers Bajaj Pulsar motorcycle bearing Registration No.KA-32/W-0011 was seized from the accused which was used by accused for the commission of offence. The said vehicle was released in favour of accused by the trial Court by its order dated 05.06.2012. During the course of trial, the photographs of said vehicle marked as Ex.P.7. In view of the same, aforesaid vehicle is confiscated to State. The accused shall surrender the vehicle along with original documents. Furnish copy of the Judgment to accused free of cost forthwith.” 3. The facts in brief which are utmost necessary for disposal of the present appeal are as under: 3.1. Sri. Pramod T.V., being injured in an unfortunate incident on 19.01.2012 when himself and his colleague had been to Century Hotel to have dinner lodged a complaint with Brahmapur Police Station. 3.2. In the complaint it is alleged that, after finishing the dinner, complainant and his colleague left to their respective houses at about 10.30 p.m. and when the complainant had reached Gubbi colony on his motorcycle bearing registration No.KA-53/Q-9393 in front of Center Kamat Hotel, a person who was riding another motorcycle bearing registration No.KA-32/W-0011 intercepted him and slapped the complainant. In the complaint it is alleged that, after finishing the dinner, complainant and his colleague left to their respective houses at about 10.30 p.m. and when the complainant had reached Gubbi colony on his motorcycle bearing registration No.KA-53/Q-9393 in front of Center Kamat Hotel, a person who was riding another motorcycle bearing registration No.KA-32/W-0011 intercepted him and slapped the complainant. He held the head of the complainant and pushed his face to a pillar and pressed his neck and robbed the neck chain weighing 19.64 grams, finger ring weighing 5 grams and another ring weighing 2.5 grams and cash of Rs.4,500/- which was in the pocket of the complainant. 3.3. After so robbing the complainant, the said stranger left the place. Based on the complaint, Bramhapur Police registered the case on 20.01.2012 and investigated the matter, inter alia arrested the accused and recovered the robbed articles from the custody of the accused based on his voluntary statement. 3.4. After thorough investigation, charge sheet came to be filed which comprised recovered articles, statements of the witnesses and medical certificate of the complainant. Presence of accused was secured and after compliance of Section 207 of Cr.P.C. charges were framed against the accused. Accused pleaded not guilty.Therefore, trial was held. 4. In order to bring home the guilt of the accused, in all nine witnesses were examined as P.W.1 to P.W.9 comprising of complainant, panch witnesses, doctor, who examined the complainant and investigation agency. Prosecution relied on eight documents which were exhibited and marked as Exhibits P.1 to P.8 besides marking 3 material objects as M.O.1 to M.O.3. 5. On conclusion of recording of evidence, accused statement as is contemplated under Section 313 of Cr.P.C. was recorded, wherein accused denied all the incriminatory materials but failed to offer any explanation in writing as is contemplated under Section 313(4) of Cr.P.C. Accused also failed to place any defence evidence on record. 6. Thereafter, the learned Trial Judge heard the matter in detail and convicted and sentenced the accused as aforesaid. 7. Being aggrieved by the same, the accused is before this Court in this appeal on following grounds: “10. That, the impugned Judgment and order is illegal arbitrary and against the principles of natural justice. 11. 6. Thereafter, the learned Trial Judge heard the matter in detail and convicted and sentenced the accused as aforesaid. 7. Being aggrieved by the same, the accused is before this Court in this appeal on following grounds: “10. That, the impugned Judgment and order is illegal arbitrary and against the principles of natural justice. 11. That, PW-1 is the complainant and victim in the above case has lodged the complaint as per Ex.P-1, alleging that in between 11.30 PM and 11.45 PM on 19-01-2012, after having food at Century hotel along with his friend, he proceeding towards his house situated at Gubbi colony, when he was near Kamat hotel, the rider of Plsor motorcycle bearing no.KA-32,W-0011 intercepted him, assaulted and robbed Gold and money and on the next day lodged the complaint and during the course of evidence he has deposed that on the date of incident at about 10.30 PM, he was stopped near Kamat hotel and assaulted and robbed. The complaint is lodged on the next day 8.00 PM and there is a inordinate delay in lodging the complaint and the same is not properly explained and the same creates the doubt regarding prosecution story. There are so many inconsistencies in the evidence of complainant. 12. That, PW-2 is the brother of the complainant and after receipt of the information from his brother he came to Kalaburagi. PW-3 is the PC, he along with cw-8 and cw-10 apprehended the accused and produced before cw-11. PW-4 is the friend of PW-2 and alleged to be accompanied the complainant to the police station to lodge the complaint. But this witness has not supported the case of the prosecution and he has been treated hostile. 13. That, the PW-5 is the doctor who treated the complainant and got admitted in the hospital and issued the wound certificate as per Ex.P-2, and observed that injury no.1,3 and 4 are simple and injury no.2 is grievous in nature but in the cross- examination he has admitted that no X-ray was done regarding fracture of upper left canine tooth and also there are no features to assess the injury no.2. 14. That, PW-6 and PW-9 are a panch witnesses to the alleged panchanamas as per Ex.P.5 to Ex.P.6. and have not supported to the case of prosecution. The prosecution has failed to prove the recovery panchanamas. 14. That, PW-6 and PW-9 are a panch witnesses to the alleged panchanamas as per Ex.P.5 to Ex.P.6. and have not supported to the case of prosecution. The prosecution has failed to prove the recovery panchanamas. Therefore the case of the prosecution itself doubtful and not proved beyond all reasonable doubts. 15. That, PW-7 is the 1.0 who has investigated the case and filed the charge sheet and there are many contradictions in the evidence of this witness and has not done proper investigation. 16. That, PW-8 is the friend of the complainant who alleged to be accompanied him to the hotel for dinner and regarding incident on the next day morning he informed through phone and in the evening at about 8.00PM, he along with his friends went to the hospital and saw the complainant in the hospital with injury. This witness evidence is doubtful. 17. That, the approach of the trial court in appreciating the material on record was not proper and come to the wrong conclusion in the absence of any material to sustain the Judgment. 18. That, the evidence of prosecution witnesses is not consistent and there are so many discrepancies in the evidence and contradictory to each other. Therefore, the trial court has erred in relying on the said witnesses and convicting the appellant. 19. That, the contents of the complaint and the deposition of the witnesses not corroborating and there are many omission and improvements are there. 20. That, the material brought on record by the prosecution do not make out a case for the offences punishable U/Sec. 397 of IPC. Therefore, convicting the appellant for the above said offences is illegal and not sustainable. 21. That, viewed from any angle the Judgment and order of the trial court not sustainable in the eye of law and facts and circumstances of the case and hence deserves to be set aside and accused is to be acquitted from the alleged offences. 22. That, the sentence imposed on the appellant is exorbitant. 23. Some other grounds will be urged at the time of arguments.” 8. Sri Ashok B. Mulage, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the learned Trial Judge has not properly appreciated the material evidence on record and wrongly convicted the accused and sentenced him resulting in miscarriage of justice. 9. 23. Some other grounds will be urged at the time of arguments.” 8. Sri Ashok B. Mulage, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the learned Trial Judge has not properly appreciated the material evidence on record and wrongly convicted the accused and sentenced him resulting in miscarriage of justice. 9. He would further contend that at any rate, an offence under Section 397 of IPC would not get attracted in the absence of any deadly weapon being used by the accused and so also the fact that there is no loss of tooth nor the fracture that has occurred. Therefore, offence under Section 397 of IPC would not get attracted in the case ipso facto. 10. In the alternative, Sri Ashok B. Mulage, learned counsel for the appellant would contend that in the event this Court upholding the order of conviction, accused can only be convicted for the offence under Section 392 of IPC and not under Section 397 of IPC and the appeal may be allowed in part by scaling down the offence from Section 397 of IPC to Section 392 of IPC and custody period of 5 months already undergone by the accused may be treated as period of imprisonment by enhancing the fine amount reasonably. 11. Per contra, Sri Veeranagouda Malipatil, learned High Court Government Pleader supports the impugned judgment. 12. He would further contend that medical certificate marked at Exhibit P.2 would clearly make out that there is a fracture of crown of upper left canine tooth. Therefore, conviction of the accused for the offence under Section 397 of IPC needs to be maintained and no mercy can be shown to the accused. 13. He would further contend that recovery of M.O.1 to M.O.3 from the custody of the appellant based on the voluntary statement of the accused and therefore, false implication of the appellant in the case on hand is per se not acceptable and sought for dismissal of the appeal in toto. 14. Having heard the arguments of both sides, the following points would arise for consideration: (i) Whether the ingredients placed on record would be sufficient enough to maintain the conviction of the appellant for the offence under Section 397 of IPC? (ii) Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? 14. Having heard the arguments of both sides, the following points would arise for consideration: (i) Whether the ingredients placed on record would be sufficient enough to maintain the conviction of the appellant for the offence under Section 397 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? Regarding point Nos.1 and 2: 15. In the case on hand, incident as is enunciated by the prosecution as per the complaint is established through the oral evidence of the complainant and recovery of the material objects No.1 to 3. Though panch witnesses have not supported the case of prosecution, there is no explanation forthcoming from the accused as to the recovery of M.O.1 to M.O.3 based on his voluntary statement. 16. The only flaw that is found in the case is the charge has been framed for the offence under Section 397 of IPC which is per se impermissible, inasmuch as Section 397 of IPC is not a charging section and Section 397 of IPC would only prescribe the higher punishment for the offence under Section 392 or 395 of IPC in an aggravated form. 17. In other words, primarily without the charge under Section 392 of IPC or 395 of IPC as the case may be, there cannot be conviction under Section 397 of IPC. 18. In this regard, this Court gainfully places reliance on the judgment of the Division Bench of this Court in the case of Mr. Mohammed Asif and Another Versus State by Rajajinagar P.S. in Criminal Appeal No.101/2017 dated 08.06.2021. 19. Having said thus, since the complainant has lodged the complaint on the next day with Brahmapur police and there is no loss of time in lodging the complaint, as the incident has occurred near central Kamat hotel on previous day at about 11:00 o'clock and the doctor has examined the complainant and noted the injury as per Exhibit P.2, this Court is of the considered opinion that the ingredients on record would be sufficient enough to maintain the conviction of the accused for the offence under Section 392 of IPC and not under Section 397 of IPC. 20. Further, even as per the complaint and the case of the prosecution, no deadly weapon is used in the incident. 20. Further, even as per the complaint and the case of the prosecution, no deadly weapon is used in the incident. If the injury to the left canine has happened and crown is fractured a bit and tooth being intact, it cannot be termed as a grievous hurt caused in the incident by the accused. Therefore, conviction of the accused under Section 397 of IPC needs to be scaled down from Section397 of IPC to Section 392 of IPC. 21. To that extent, the impugned Judgment is suffering from legal infirmity. 22. In view of the foregoing discussion, point Nos.1 and 2 are answered partly in the affirmative. Regarding point No3. 23. In view of findings of this Court on point Nos.1 and 2 and conviction of the appellant is to be maintained for the offence under Section 392 of IPC, custody period already undergone by the accused for a period of 5 months if treated as period of imprisonment, by enhancing the fine amount by Rs.1,00,000/- and portion of it could be paid as compensation to the complainant, ends of justice would be met. Hence, point No.3 is answered party in the affirmative. Regarding point No.4. 24. In view of findings of this Court on point Nos.1 to 3, the following order is passed: ORDER (a) The Criminal Appeal is allowed in part. (b) The conviction of the accused for the offence punishable under Section 397 of IPC is set aside instead accused is convicted for the offence under Section 392 of IPC. Consequently, the custody period already undergone by the accused is treated as period of imprisonment by enhancing the fine amount in a sum of Rs.1,00,000/- payable on or before20.07.2025. (c) After receipt of the enhanced fine amount, a sum of Rs.75,000/- is ordered to be paid as compensation to the complainant/P.W.1 under due identification and balance amount of Rs.25,000/- is to be appropriated towards the defraying expenses of the State. (d) Failure to pay the enhanced fine amount on or before 20.07.2025, the accused shall undergo simple imprisonment for a period of 3 years for the offence under Section392 of IPC (e) Office is directed to return the Trial Court record with a copy of this judgment for issue of modified conviction warrant.