Karnataka High Court
Sri Manoj Kumar vs State By Jeevan Bheema on 30 August, 2023
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.101 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.102 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.206 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.228 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.231 OF 2023
IN CRIMINAL APPEAL NO.101 OF 2023
BETWEEN:
1. SRI MANOJ KUMAR
S/O CHANNI
AGED 41 YEARS
R/AT NO.65
MEENAKSHI LAKE VIEW EXTENSION
PARAPPANA AGRAHARA
BENGALURU
2. SRI LAWRENCE D SELVA
S/O LESSI D SELVA
AGED 36 YEARS
R/AT NO.102, MUNESHWARA EXTENSION
11TH CROSS,
YELAHANKA UPANAGAR
BENGALURU
2
3. SRI SETU
S/O DORAI
AGED 42 YEARS
R/AT NO. 5/12, M.G.R. NAGAR
HARINI TIRUVANAMALAI
TAMILNADU
... APPELLANTS
(BY SRI VISHNUMURTHY, ADVOCATE)
AND:
STATE BY JEEVAN BHEEMA
NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE
... RESPONDENT
(BY SRI S. VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 06.01.2023 AND ORDER OF SENTENCE
DATED 09.01.2023 PASSED BY THE LVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-57) IN
S.C.NO.158/2010 (COMMON JUDGMENT PASSED IN
S.C.NO.158/2010 M/W S.C.NO.547/2011) AND THE
APPELLANTS/ACCUSED NO.4, 5 AND 6 ARE CONVICTED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 364(A),
395 AND 397 READ WITH SECTION 149 OF IPC.
IN CRIMINAL APPEAL NO.102 OF 2023
BETWEEN:
SRI JAGANNATHAN @ JAGGU
S/O ANANTHAN
AGED ABOUT 28 YEARS
R/AT NO. 68-B, 23RD BLOCK
M I B V QUARTERS
YELAHANKA NEW TOWN
BANGALORE ... APPELLANT
(BY SRI T PRAKASH, ADVOCATE)
3
AND:
STATE BY
JEEVAN BHEEMA NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE ... RESPONDENT
(BY SRI S. VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 6.1.2023 AND ORDER OF SENTENCE
DATED 9.1.2023 PASSED BY THE LVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE (CCH-57) IN S.C.NO.158/2010
M/w S.C.NO.547/2011 - CONVICTING THE
APPELLANT/ACCUSED NO.10 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 120B, 364A, 395, 397 READ WITH SECTION
149 OF IPC.
CRIMINAL APPEAL NO.206 OF 2023
BETWEEN:
JAYAKUMAR
S/O S.A. ALAVADEYAR,
AGED ABOUT 42 YEARS,
R/AT NO. 36, 2ND CROSS,
NEAR GANGAMMA TEMPLE,
MAHADEVAPURA
BENGALURU
... APPELLANT
(BY SRI VISHNU MURTHY, ADVOCATE)
AND:
STATE BY JEEVAN BHEEMA
NAGAR POLICE STATION
REPRESENTD BY ITS
4
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 06.01.2023 AND ORDER OF SENTENCE
DATED 09.01.2023 PASSED BY THE LVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE IN S.C.NO.158/2010 M/W
S.C.NO.547/2011 AND THE APPELLANT/ACCUSED NO.2 IS
CONVICTED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 120B, 364A, 395 AND 397 READ WITH SECTION 149
OF IPC.
CRIMINAL APPEAL NO.228 OF 2023
BETWEEN:
NIRMAL RAJ KUMAR
S/O PATHYANATHAN
AGED ABOUT 47 YEARS,
R/AT NO. 1542, E BLOCK,
AECS LAYOUT,
MARTHAHALLI,
BENGALURU ... APPELLANT
(BY SRI T PRAKASH, ADVOCATE)
AND:
STATE BY JEEVAN BHEEMA NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001 ... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING
THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET
5
ASIDE THE COMMON JUDGMENT OF CONVICTION DATED
06.01.2023 AND SENTENCE DATED 09.01.2023 PASSED BY THE
LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN S.C.NO.158/2010, CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 120B, 364(A), 395, 397 READ WITH
SECTION 149 OF IPC.
CRIMINAL APPEAL NO.231 OF 2023
BETWEEN:
1 . BASKARAN
S/O JNANAVELU,
AGED ABOUT 40 YEARS,
R/AT NO. 68/23A
GOPALPILLAI TEMPLE ROAD,
TIRUVANANA MALLAI TALUK
TAMIL NADU - 606 601
2 . J MADIVANNA
S/O GOPAL
AGED ABOUT 42 YEARS,
R/AT BRAMANA BEEDI
SERUVALLURU
PUNALURU TALUK,
TIRUVANAMALAI,
TAMIL NADU - 606 601
3 . DAS PRAKASH
S/O A. MANI
AGED ABOUT 23 YEARS,
R/AT NO.12, VALIKARA STREET
TIRUVANAMALAI
TAMIL NADU - 606 601
... APPELLANTS
(BY SRI T PRAKASH, ADVOCATE FOR A1 AND A3
SRI VISHNU MURTHY, ADVOCATE FOR A2)
6
AND:
STATE BY JEEVAN BHEEMA
NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001
... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE COMMON JUDGMENT
OF CONVICTION DATED 06.01.2023 AND SENTENCE DATED
09.01.2023 PASSED BY THE LVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN S.C.NO.158/2010,
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 120B, 364(A), 395,
397 READ WITH SECTION 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 26.07.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
These appeals are filed by appellants-accused
Nos.1 to 8 and 10 under Section 374(2) of Cr.P.C. for
setting aside the judgment of conviction and sentence
passed by the LVI Additional City Civil and Sessions
Judge, Bangalore in S.C.Nos.158/2010 clubbed with
S.C.547/2011 for having found the appellants guilty
and convicted for the offences punishable under
Sections 120B, 364A, 395, 397 read with Section 149
of IPC.
2. Heard the arguments of learned counsel for
the appellants and learned High Court Government
Pleader for the State.
3. The appellants are accused and respondent
is the complainant-State, the rank of the parties
before the Trial Court is retained for the sake of
convenience.
4. The Assistant Commissioner of Police,
Halasuru Sub-Division filed the charge sheet against
the appellant-accused persons alleging that the
complainant-CW.1/P.W.3 being the Branch Manager of
Muthoot Mini Nidhi Finance, situated at No.120, 1st
floor, Alfa Diamond Plaza, New Thippasandra Road,
Bangalore that on 02.06.2009, in the evening at 5.30
p.m., after locking the strong room and the main
door, while he was returning to his house in his Honda
Activa scooter bearing No.KA-03-EK-3890 by keeping
the office keys in the dickey of the said scooter, when
he was proceeding near Indira Nagar, accused Nos.6
and 9 followed him in a motor bike bearing No.KA-02-
ED-15 and dashed to the vehicle of CW.1, due to
which, he fell down. At that time, accused Nos.3, 7
and 8 came in a white colour Maruthi Omni van
bearing No.KA-03-M-8138 and abducted the CW.1 to
Malur Road under the guise of providing treatment.
Accused No.7 poured the spirit on the face of CW.1 in
the said Omni van. Accused Nos.3 and 7 assaulted the
complainant-CW.1, by threatening him forcibly took
the cash of Rs.20,000/- and snatched the mobile
phone from him, then pushed out CW.1 from the
Omni Van. Thereafter, the accused went near the
scooter of the complainant where he was lying, took
the keys of Muthoot Mini Nidhi Finance from the
scooter and also strong room keys from the dickey of
the said scooter. Then accused Nos.1 to 10 assembled
and then went to the Muthoot Finance office, opened
the main door and committed the dacoity of golden
ornaments weighing 40kg and 490 grams worth of
Rs.5,68,40,000/- and escaped from the spot. During
the investigation, the police arrested the accused
persons. The case against accused No.9 was split up,
he died during the trial. Accused No.10 was later
arrested and a separate charge sheet has been filed in
S.C.No.547/2011 and accused Nos.1 to 8 were tried in
S.C.No.158/2010. The charges were framed, they
denied the charges and claimed to be tried.
Accordingly, the prosecution examined 42 witnesses
as per PWs.1 to 42, got marked 74 documents as per
Exs.P.1 to 74 and 42 material objects as per
M.O.Nos.1 to 42. After closing the evidence, the
statement under Section 313 of Cr.P.C. was recorded.
The case of the accused is one of the total denial, but
not examined any witnesses except marking Ex.D.1.
5. After hearing the arguments, the Trial
Court found the appellants guilty and convicted as
under:
(i) Accused Nos.1 to 8 and 10 are sentenced
to undergo rigorous imprisonment for a period of 1
one year and to pay fine of Rs.5,000/- each for the
offence punishable under Section 120B of IPC.
(ii) They also sentenced to undergo rigorous
imprisonment for a period of 9 years and to pay fine
of Rs.10,000/- each for the offence punishable under
Section 364(A) of IPC.
(iii) They also sentenced to undergo rigorous
imprisonment for a period of 9 years and to pay fine
of Rs.10,000/- each for the offence punishable under
Section 395 of IPC.
(iv) They also sentenced to undergo rigorous
imprisonment for a period of 5 years for the offence
punishable under Section 397 of IPC and in default of
payment of fine, they shall undergo rigorous
imprisonment for a period of 1 year. All the sentences
are ordered to run concurrently.
6. Being aggrieved with the judgment of
conviction and sentence passed by the Trial Court, the
accused Nos.1 to 8 and 10 are before this Court by
filing these appeals.
7. Sri T. Prakash, the learned counsel for the
appellants appearing for accused Nos.1, 3, 8 and 10
has contended that the judgment of the Trial Court is
erroneous and illegal. The Trial Court has not
considered that there was delay in lodging the
complaint as the incident said to be took place on
02.06.2009 at 5.30 p.m., but the complaint was filed
at 8.00 p.m., on the very next day. But the FIR was
reached the Magistrate on 04.06.2009. The
Investigating Officer investigated the matter and
registered the FIR against three unknown persons.
The version of the PW.1 is not believable since after
the incident, he went and stayed in his relative's
house without lodging any complaint and intimating to
any persons which is unnatural conduct and even he
has not intimated to his employers. He further
contended that the complainant said to be took
treatment in Vaidehi Hospital, but no documents
produced and the material objects also not produced
before the Court except marking the photos without
any certificates. The Maruti Van is said to be used for
commission of offence was also not proved. The
witnesses have turned hostile. All the prosecution
witnesses including the panch witnesses turned
hostile, not supported the prosecution case. The
fingerprint which was said to be taken also not
produced before the Court. The CCTV Camera Footage
kept in the Muthoot Finance is not produced. There is
no evidence regarding robbery or dacoity. The
abduction or kidnapping also not proved. The T.I.P.
has been conducted by the Tahsildar. The ASI is said
to be identified the assailants, but the T.I.P. report not
produced, therefore, it has no value. The complainant
failed to identify the assailants. The Investigating
Officer relied upon the Newspaper cutting regarding
seizure of the golden ornaments which is marked as
Ex.D.1 and the date of arrest was shown as
09.06.2009 and 10.06.2009, but the properties were
seized on 08.06.3009 itself. The complainant claimed
the insurance for theft of materials which shows this
case was set up in order to claim the insurance
amount.
8. The learned counsel further contended that
the accused No.10 was arrested after one and half
year of the incident. Nothing has been recovered
from him. None of the witnesses supported the
prosecution case. There is zero evidence against
accused No.10.
9. The learned counsel further contended that
there was two keys for the safe locker, one key with
the complainant and another key with the Assistant
Manager. The same was noted in the Register in
Ex.P.50. But the office was opened and removed the
ornaments without breaking the lock which falsify the
case of the prosecution. The complaint was drafted
by the Director of the Muthoot Finance but not by the
complainant. The case was based upon the
circumstantial evidence, but none of the witnesses
have supported the prosecution case. Hence, prayed
for allowing the appeals.
10. Sri Vishnumurthy, learned counsel for the
appellants-accused Nos.2, 4, 6 and 7 has adopted the
arguments of the learned counsel for the appellant
Sri.T.Prakash and further contended that in the
evidence of PW.3, he has to identify accused No.3, but
he has identified accused No.4 in the Court, there is
no corroboration with the evidence of PW.7 and the
T.I.P. conducted. PW.7 should identify accused No.1
but the witness already identified the accused in the
Police Station, but PW.7 has wrongly identified
accused No.7. As per the evidence of PW.3, accused
No.1 was on the spot, but as per the evidence of
PW.7, accused No.1 was in the vehicle, there is a
contradiction in their evidence. PW.3 was unable to
identify the accused who had kidnapped him from the
spot. PW.3 stayed in the house of PW.23 after the
incident. He went to the hospital, but he has not
disclosed to PW.23 to his employer and he has stated
that both keys are with him, but not explained as to
why those keys were kept with him. As per the rules,
one key must be with the Assistant Manager. The
T.I.P. conducted by the PW.7 has stated only in
question and answer but not produced and marked
the proceedings for having identified the accused.
None of the mahazar witnesses supported the case of
the prosecution except police officials. The recoveries
were not produced and not identified by any of the
panch witnesses. The conduct of the appellant is very
much surprised as he has not disclosed the incident to
any persons. Therefore, the story of the prosecution is
doubtful. The benefit of doubt shall be extended to the
accused. Hence, prayed for allowing the appeals.
11. Per contra, learned High Court Government
Pleader supported the judgment of the Trial Court and
contended that the injured took treatment in the
hospital, therefore, he has not lodged the complaint.
PWs.1 to 8 have supported the prosecution case.
T.I.P. was conducted and the witnesses are identified
the accused. Therefore, prayed for dismissing the
appeals.
12. The points that arise for my consideration
are:
"1) Whether the prosecution proves
beyond reasonable doubt that on
02.06.2009 at 5.30 p.m., the accused
persons conspired to commit dacoity,
dashed the complainant to his scooter and
abducted him in a Omni Van, robbed cash
of Rs.20,000/- and mobile phone, then
committed dacoity by removing 40 kgs
950 grams of gold ornaments from the
Muthoot Finance, thereby committed the
offence punishable under Sections 120B,
364(A), 397, 395 read with Section 149 of
IPC?
2) Whether the judgment of the Trial Court
calls for the interference?"
13. Having heard the arguments and on
perusal of the records, prior to appreciation of the
evidence, it is worth to have a cursory look on the
evidence adduced by the prosecution before the Trial
Court.
14. PW.1-Sajeev who is the spot panch witness
to the Ex.P.1 and seizure panch witness to the Ex.P.2
for the seizure of M.Os.1 to 40. He has deposed that
the Police called him to the Muthoot Finance Premises
and prepared the panchanama as per Ex.P.1. They
also deposed that the Police seized M.Os.1 and 2-
Godrej Lock. M.O.3-black rexin bag, M.O.4-bottle with
chemical. The axa blade, fine cutter, grew cutter,
hand gloves kept in the rexin bag and the same were
seized by the Police under the panchanama. In the
cross examination, he has stated that he cannot say
any description of the property that when he went to
the spot, the police already were in the spot, 50 to
100 people were assembled. The properties were
already collected from the shop. He further admits
that the police never called to the Police station and
he is not aware about the contents of the
panchanamas. He further submits that the police
informed him that there was dacoity committed, but
he is not aware about the same. On perusal of the
evidence of this witness, except for spot panchanama
said to be conducted by the police, his evidence is not
useful to the prosecution case
15. PW.2-Raju Ram, the another panch witness
to Ex.P.3 for seizure of gold articles and according to
his evidence, he is a jeweler, on 10.06.2009, the
Hennur Police called him for weighing the golden
ornaments. He was taken to Hosakote Taluk. A person
came in the vehicle and he has identified the said
person as accused No.3 and he has stated his name is
Jayakumar. Then, the said Jayakumar shown some
gold items which was hidden in the ground which was
seized by the police under Ex.P.3 and further submits
he cannot identify the golden ornaments seized by the
police by looking to the photographs. He has treated
as hostile and he denied the suggestion made by the
learned P.P. and once again, he identified accused
No.2 as Jayakumar and he has denied the
photographs showing the golden ornaments. Though
he has denied that he has stated before the police
that he will identify the golden ornaments, but
deposed false. He further denies Ex.P.4 statement
made to the police. In the cross examination of the
learned counsel for the accused, he has stated that
the police came to the shop for weighing the golden
ornaments and he cannot say exactly who were the
persons present in the car. The police themselves dug
the floor and took the bag and he further admits he is
not aware about the sealing of the bag. Except
weighing the golden ornaments, he do not know
anything and he further admits that he has identified
accused No.2 only on the say of the police. On careful
perusal of the evidence of this witness, though this
witness taken to the spot for recovery and weighing
the golden ornaments, but he has turned hostile not
fully supported the case of the prosecution and he has
identified accused No.3 instead of accused No.2 and
later he has changed his version and stated that the
police told him to identify accused No.2 and he is not
aware about the case and denied Ex.P.4. Therefore,
his evidence is not consistent to believe and of no
worth.
16. PW.3-Isac John who is the complainant and
a star witness to this case. He has deposed that he is
worked in the Muthoot finance as Manager from 1999
till 02.06.2009 and the said company running the
finance by receiving the golden ornaments. On the
date of incident i.e. on 02.06.2009, at 5.30 p.m., he
closed the office, went in his motorcycle KA 03 EK
3890 when he was proceeding near the Corporation
Bank main road, Indiranagar, a scooter dashed to
him, he fell down, sustained injury on the face as well
as knee chip. About 8 to 10 persons were present over
there, one person opened the dickey of his scooter,
took the bank key and 2 to 3 persons came in a
Maruti Van and asked to come to the hospital, then,
he sat in the car, one person assaulted and robbed
Rs.20,000/- from him by spreading the chemical on
his face then at 9.30 p.m., the car went towards the
Hosakote to Malur. Then he was pushed out and went
away. A watchman came there, provided some water
thereafter, he telephoned to one Vargeese Kurian and
he went to the Vaidehi hospital, after obtaining the
treatment, he went to the house of his relative at 1.30
a.m. and in the morning, he went to the spot, the
scooter was not found, then he telephoned to the
Bank Director, thereafter, he came to the office at
Thippasandra and found the strong room was open,
then he came to know about missing of 40 kg 650
grams of gold worth of more than Rs.5.00 crores and
he found rod, axa blade, chemical bottle, gloves,
monkey cap etc. then the police shifted him to the
hospital and obtained the complaint as per Ex.P.5. He
identified Ex.P.1 panchanama and M.Os.1 to 40 are
the materials seized from the spot. His evidence will
be appreciated in the later part of the judgment.
17. PW.4-S.G.Kulakarni is the Regional
Manager of Muthoot Finance. He has deposed that on
03.06.2009, he received phone call from the Director
Mathews to come to the branch office, he went there,
the office was open, the articles were scattered, the
police not allowed him to go inside. He further
deposes that on 06.06.2009, the J.B.Nagar Police
called him and obtained signature on Ex.P.6 and
informed that some articles seized from the Police. He
saw the articles in a bag. He further says the police
took to the house of accused No.1 and shown the
articles to him and he further deposes that he cannot
identify the golden ornaments.
18. The public prosecutor treated this witness
as hostile and this witness has stated that he cannot
say that the accused No.1 was in the Police Station or
not. The police asked him to come along with them,
hence he went there and he says accused No.1 shown
the rexin bag containing the golden ornaments. In the
cross examination, this witness has stated that there
was two keys for the room, one key with the Assistant
Manager and another key with the Manager and in
order to open the strong room, both should come and
open the door by unlocking the same. He further
deposes that there was CCTV camera and siren
installed in the office and if any person entered the
strong room, the siren will ring and if any other key is
used to put on the lock it will not open and further
deposes, there was an insurance coverage for the
articles. He further deposes that the said building is
consisting for four flours, their office is situated in the
ground flour, there are houses and shops in the
upstairs and if anybody goes by staircase, it will be
noticed by the people of the houses residing in the
said building. A suggestion was made by the learned
counsel for the accused that when they are not able to
obtain the insurance claim, they filed the complaint.
19. On perusal of the evidence of this witness,
it reveals, though he is a panch witness to the Ex.P.6
for seizure of articles at the instance of accused No.1,
but those articles were not produced and marked
before the Court. The CCTV was installed in the office,
the footage was not collected by the Investigating
Officer and produced before the Court. If any person
goes inside the strong room by using the any other
key, the siren will ring, but no such siren was heard
by the other persons residing in the same building. As
per his evidence, if any person entered the building
through staircase, the other inmates of the house will
be noticed. But no such person stated before the court
about the arrival of the accused or entering to the
Muthoot finance by opening the main door and strong
room for the best reasons known to the Investigating
Officer and this witness why the CCTV footage not
collected and produce before the Court, that will clinch
the issue and easy for identification. Therefore, his
evidence is not believable without corroboration of the
any independent witnesses.
20. PW.5-Nemaram who is the panch witness
to the Ex.P.8 seizure of golden articles, he has turned
hostile not supported the prosecution case. That
apart, he is a stock witness to the police.
21. PW.6-Srinivasa Murthy, an Accountant of
Muthoot Finance, he deposes that as on the date of
complaint, he was present and on the earlier day i.e.,
on 02.06.2009, they closed the office, went to the
house and on the very next day, when he came to the
office, he found the office was opened, somebody
stolen the articles from the strong room, then the
police came to the spot. He further deposes that on
05.06.2009, he went to the Police Station and again
on 10.06.2009 he was called to the Police Station and
police told they seized the articles and they shown 9
persons were arrested. Again on 28.06.2009, they
informed the articles were seized. In the cross
examination, he has stated that in the said branch
they have permitted to keep only 5 lakhs worth of
golden ornaments and in order to keep more
ornaments, they have to obtain permission from the
main branch and the main branch is permitted to keep
only golden ornaments worth of 30 to 40 lakhs. He
also confirmed there was two keys for the strong
room one key with the Assistant Manager and another
key with the Manager and in order to open the strong
room, both keys namely B1 and B2 are required. He
further admitted there was a register maintained in
the office mentioning the holder of the keys and the
said keys were kept by only Manager and the
Assistant Manager, but not any other persons. He
further admits, on the next day when he came to the
office, the Police were present and came to know
about the theft. He further admits there were other
houses and shops situated in the same building, CCTV
camera also installed.
22. PW.7-Girithimmappa, ASI who deposes
that on 02.06.2009 at about 5.30 p.m., he received
phone call from the control room that there was an
accident on the Indiranagar Main road, he went to the
spot, he found Hoysala vehicle also arrived on the
spot, there were two, two wheelers found on the spot,
one is Honda Activa and another is Yamaha crux.
Some public told him that three persons came in a
van and took the scooter raider, then he has informed
to the tiger van, one person was present on the spot
and told the rider of the Honda Activa was his uncle
and there was treatment in the Hosmat Hospital.
Hence, he requested the vehicle but he refused to give
the vehicle. He further deposes that later the vehicles
were seized by the Jeevan Bhimanagar police under
panchamnama Ex.P10. Exs.P.11 to P.13 are the
photographs of the vehicle. He further deposes that on
24.06.2009, the police took him to the Bengaluru jail,
conducted T.I.P. and he has identified accused No.1
was the accused before the Court. In the cross
examination, he has stated that he do not know how
the accident was occurred, there were 10 to 15 people
present on the spot. The Hoysala van was on the spot,
two police officials were there in the said car and he
further admitted he has not reported to the Police
Station regarding vehicle and request made by the
person for the vehicle and he further admitted, he
came to know from the J.B. Nagar Police that accused
were traced. Then he went to the Police station, saw
the accused in the J.B. Nagar Police station. He further
admits he has identified the accused No.1 as told by
the Police Officers. He further admits he has not
stated the description of the accused before the
J.B.Nagar police. He further admits, he do not know
when the panchanama was prepared for seizing of the
motor cycle and Honda Activa. This witness is very
important witness to the prosecution, he has said to
be seen accused No.1 on the spot along with the other
public, but, he has seen accused No.1 in J.B. Nagar
police Station and identified him as accused No.1 and
on the say of the J.B.Nagar police, he identified the
accused No.1 and when the police shown the accused
No.1 in the Police station, subsequently, he said to be
identified in the jail. Therefore, T.I.P. conducted by
the Tahsildar-PW.37 and identifying accused No.1 by
this witness is not in accordance with law and not
believable and the identification of the accused No.1
by this witness is only empty formality and it has no
evidentiary value.
23. PW.8-T Raju, ASI, who arrested accused
No.9 and seized the golden articles deposes that one
person found with bag, he apprehended him and his
name was Suresh (accused No.9) who is absconding
and on perusal of the bag, he was in possession of
1,562 grams golden ornaments, he prepared the
panchanama Ex.P.15. Though the learned counsel for
the accused cross examined this witness, but accused
No.9 was absconding and no judgment was delivered
against accused No.9 and he was reported dead.
24. PW.9-Jayaram, who is panch witness to
Ex.P8 seizure of golden articles from accused No.8.
This witness turned hostile not supported the
prosecution case. Hence, his evidence is not useful to
the prosecution case.
25. PW.10-Yashwanth Raj Jain, another panch
witness to the Ex.P.16 seizure of the golden articles
from accused No.6, he also turned hostile and not
supported the prosecution case.
26. PW.11-Mallesh, panch witness to Ex.P.17
for seizure of golden articles from accused No.5, he
also turned hostile and not supported the prosecution
case.
27. PW.12-Devaraj, another panch witness to
the Ex.P.17, seizure of golden articles from accused
No.5, he also turned hostile, not supported the
prosecution case.
28. PW.13-Noorulla, panch witness to Ex.P.19
seizure of articles from accused No.3, turned hostile
and not supported the prosecution case.
29. PW.14-Chinnaswamy, seizure of articles
from accused No.4 under Ex.P.20, he also turned
hostile and not supported the case.
30. PW.15-M. Ravi Kumar, panch witness to
Ex.P.16, seizure of articles from accused No.6, he also
turned hostile and not supported the case.
31. PW.16-Pradeep Kumar, the land lord who
let out a shop to the accused, but he has turned
hostile, not supported the prosecution case.
32. PW.17-Raghu @ Rukmangada is the owner
of the apartment staying in the same building, turned
hostile and not supported the case.
33. PW.18-R.Srinivasa, panch witness to the
Ex.P.24 seizure of two wheelers, he also turned
hostile.
34. PW.19-Jayaram, seizure panch witness to
Ex.P.3 for seizure of golden articles from accused No.2
who has also turned hostile.
35. PW.20-Deepak Kumar, who showed the
Maruti van to the accused also turned hostile and not
supported the case.
36. PW.21-Jabiulla, who is the panch witness to
Ex.P.24 seizure of two wheelers turned hostile and not
supported the case.
37. PW.22-Abdul Salim, panch witness to the
Ex.P.24, he also turned hostile and not supported the
case.
38. PW.23-Vergees Kurian, who has deposed
that about 7 years back he came to know that CW.1
was unconscious, therefore, he went to
Chikkathirupati, he brought him to the Vaidehi
Hospital and he came to know that some unknown
persons taken him in a van and left him, he provided
treatment and came to know some persons committed
theft in the Muthoot Finance. According to his
evidence, he has no knowledge about the incident.
39. PW.24-K.S.Mahesh, who arrested the
accused No.5 and produced before the Investigating
Officer and then the accused took the police official
and witness to the house and police seized golden
articles under Ex.P.17 but he was unable to identify
the accused in the Court. In the cross examination, he
has admitted that he do not know the boundaries of
the accused house, he do not know the owner of the
house and except apprehending the accused, he do
not know anything and as per his evidence, though he
has apprehended accused No.5, but he was unable to
say the details of the recovery under Ex.P.17 and the
panch witnesses were already turned hostile and the
identity of the articles were not proved before the
Court.
40. PW.25-C.P.Madappa PSI, deposed that, on
09.06.2009 at 10.00 p.m., the ASI and other police
officials were taken for tracing the accused and one
person was found near Byappanahalli and he was
apprehended and brought back before the police
station and on enquiry, he stated that his name was
Nirmalraj and he identified the said person as accused
No.1 in the Court. In the cross examination, P.W.25
has stated that for tracing accused No.1, photographs
given to him and he has not prepared any
panchanama on the spot. No memo was given to him
for tracing the accused and for apprehending the
accused and he has not given any report to the
investigation officer.
41. On perusal of the evidence of P.W.25, it
reveals that in order to apprehend the accused, the
photographs and descriptions were given to him, and
that, if he arrests any person, at least, he should
submit a report to the investigation officer.
Absolutely, there is no document produced by him or
marked by the prosecution to show that this witness
was deputed for apprehending accused No.1 and his
evidence appears to be an imaginary one and not in
accordance with law.
42. P.W.26 - H.G. Vasudev, retired Police Sub
Inspector deposed that, on 09.06.2009, he was
deputed for apprehending the accused in this case.
Then he apprehended accused No.2 and produced
before the investigation officer and the investigation
officer recorded the voluntary statement of accused
No.2 that he participated in the commission of dacoity
in Muthoot Finance. In the cross examination, P.W.26
admitted that he has not prepared any report for
producing the accused and no description given to him
for apprehension of accused No.2. The evidence of
this witness appears to be an imaginary and not
believable.
43. P.W.27-Munaiah, retired ASI, deposed that
on 10.06.2009, he was deputed and apprehended the
accused-Manoj Kumar (accused No.4) and produced
before the investigation officer. The investigation
officer seized the golden ornaments under Ex.P.20.
He has stated that the Investigating Officer given
photograph to him and therefore, he apprehended
accused No.4, but he has not stated in the statement
under Section 161 of Cr.P.C. that the investigation
officer given the photographs, which reveals that the
prosecution tried to develop the evidence after
admission given by P.Ws.25 and 26.
44. P.W.28 - M. Venkataramanappa, retired
ASI, has deposed that he apprehended accused No.1
on 10.06.2009. According to his evidence, that on the
said day at 6.30 p.m., he apprehended accused No.1
and produced before the investigation officer. Then,
the investigation officer seized gold articles from him
and compared the evidence of P.W.25, who has stated
that he apprehended accused No.1 on 09.06.2009,
but P.W.28 says that accused No.1 was arrested on
10.06.2009. P.W.25 does not speak about the seizure
of gold articles, but P.W.28 deposes that the gold
articles seized from accused No.1. There is
contradiction between the evidence of P.W.25 and
P.W.28 regarding the arrest of accused No.1 and the
seizure of articles. That apart, as per Ex.D1-the News
Paper, the accused persons were already arrested and
the articles were released on 08.06.2009 itself. There
is doubt regarding arrest of the accused.
45. P.W.29-Basavaraj Doddamani has
apprehended accused No.8-Das Prakash on
10.06.2009 at 8.30 p.m., and produced him before
the investigation officer and the Investigating Officer
seized gold articles from the said accused. In the cross
examination, P.W.29 has admitted that there is no
photographs taken at the time of seizure and he has
not attested witness to the panchanama.
46. P.W.30 - Basavaraj, a customer to Muthoot
Finance, has deposed that he borrowed loan by
pledging the gold ornaments, but it was stolen by
somebody. He has not given any statement to the
police though got released the property.
47. P.W.31 - M.K. Thammaiah, Dy.S.P., the
then police inspector, conducted panchanama-Ex.P.8
and seized gold ornaments from accused No.8. He
admitted, in the cross examination, that no
panchanama was prepared on the spot and no search
was conducted, when the accused was apprehended.
There was no CCTV camera on the spot in the lodge.
He stated that he did not secure any panch witness
from the spot, and no video recording and no
photographs were taken while seizing the articles.
48. P.W.32-Rangappa, Police Inspector,
deposed that he seized the gold articles from accused
No.3. He has deposed that accused No.3 was
produced before him and he arrested him. The
accused took him to the house at Mahadevapura and
P.W.32 seized the gold articles under Ex.P.18 in the
presence of panchas. He identified accused No.3. He
has also admitted that no photography and no
videography was taken and no witnesses were
examined on the spot.
49. P.W.33-Rajanna, Police Inspector, seized
Maruthi Omni van and produced before the
Investigation Officer and the same was seized under
panchanama as per Exs.P.28 and P.29 and the report
is at Ex.P.30.
50. P.W.34-Badrinath, Dy.S.P., who was the
then Police Inspector, deposed that he was deputed
for arrest of the accused in this case and on
10.06.2009, he apprehended accused No.5.
Thereafter, he recorded the voluntary statement of
the accused, and took gold appraiser and went to the
room and seized the gold ornaments under Ex.P.17.
He identified Ex.P.31-voluntary statement of accused
No.5.
51. P.W.35-Shanthi, one of the customers, who
pledged the gold ornaments in the Muthoot Finance,
has turned hostile.
52. P.W.36-Kishore Bharani, police inspector,
deposed that he apprehended accused No.6-Sethu on
09.06.2009 near Old Madras Road and recorded the
voluntary statement. He prepared panchanama as
per Ex.P.16 and seized articles. Then, he produced
the accused before the investigation officer.
53. P.W.37-Venkatesh D., the Taluk Executive
Magistrate, who conducted test identification parade
at the request of the police, has deposed that on
24.06.2009, he went to the Central Jail and kept 8
persons on the queue and requested C.W.47, who
identified accused No.1 and recorded the report as per
Ex.P.14.
54. P.W.37 further deposed that the accused
were asked to stand in a row. Then asked C.W. 35 to
identify the accused and he identified accused No.2
and accused No.1, and he prepared a
report/certificate as per Ex.P.33.
55. P.W.37 also deposed that again 1 to 8
persons were asked to stand in a queue, then C.W.32
identified accused Nos.1 and 2 and also Bhaskar, and
C.W.32 prepared certificate as per Ex.P.23. He
further deposed that, again, the accused were shown
to C.W.34, who identified the accused Nirmal
Rajkumar, Jayakumar and Das Prakash and gave
certificate as per Ex.P34. C.W.44 identified the
accused and issued report as per Ex.P.35. C.W.43
said to be identified accused No.1 and another
accused and issued certificate as per Ex.P.36. C.W.41
identified the accused and issued certificate as per
Ex.P.37. C.W.1 identified the accused Das Prakash,
Bhaskar and Madivannan and issued certificate as per
Ex.P.38. C.W.33 identified the accused Nos.1, 2 and
Bhaskar and issued certificate as per Ex.P.39.
56. P.W.38 - D. Kumar, Dy.S.P., the then
police inspector, deposed that on 03.06.2009, the
complainant filed written complaint as per Ex.P.5 and
he prepared FIR as per Ex.P.40. Then, he visited the
spot and prepared panchanama on the spot as per
Ex.P.41. He seized some articles from the spot under
Ex.P.2. He identified the articles seized from the spot
as per M.Os.1 to 23. He conducted panchanama and
seized two motor cycles under Ex.P.10. The photos
are at Exs.P.11 to P.13. He also prepared spot
panchanama as per Ex.P.41. Then recorded the
statement of some of the witnesses. Accused No.7-
Madivannan was apprehended by him and he seized
rexin bag and also 1337 grams of gold and prepared
panchanama as per Ex.P.43.
57. P.W.39 - G.V. Manjunath, who is the
investigation officer and who was the then ACP Ulsoor
police, has deposed that, on 03.06.2009, he took up
investigation. A memorandum was issued to him as
per Ex.P.45. On 09.06.2009, accused No.1 was
produced before him and he seized rexin bag and gold
ornaments under panchanama. Then, on the same
day, he arrested accused-Bharath and seized the
golden ornaments under Ex.P.17. He also arrested
accused Nos.7, 8, 9, 4, 6 and seized the articles under
the panchanama and also seized the Maruthi van,
wound certificate and also the records from the
finance company. He identified the photographs and
filed charge sheet after completion of investigation.
58. P.W.40 - Ranjan Thimmaiah, a panch
witness to Exs.P.58 and P.59, was examined as an
additional witness and he has turned hostile and not
supported the case of prosecution.
59. P.W.41-Paboothmal, an additional panch
witness to Exs.P.60 to P.63 for seizure of the articles
from accused No.1, has also turned hostile and has
not supported the prosecution case.
60. P.W.42-Siddaraju, the investigation officer
filed additional charge sheet in respect of recovery of
articles under Exs.P.58 to P.63 from accused No.1.
61. On perusal of the entire evidence on
record, which reveals the recovery panch witnesses in
respect of seizure of alleged golden articles by the
Investigating Officer were all turned hostile especially
PW.5-Nemaram and PW.9-Jayaram who are the panch
witnesses for having seized golden articles under
Ex.P.8 from the accused No.8, turned hostile and not
supported the case of the prosecution. PW.10 and
PW.15-Yashwath Raj Jain and Ravi Kumar who are the
seizure panch witnesses for Ex.P.16 from the accused
No.6, both of them turned hostile, not supported the
case. PW.11-Mallesh and PW.12-Devaraj are the
seizure panch witnesses to Ex.P.17 for seizing the
golden articles from accused No.5-Lawrence, they also
turned hostile, not supported the case. PW.13-
Noorulla who is panch witness to the seizure of the
golden articles from accused No.3 under Ex.P.18 also
turned hostile, not supported the case. PW.14-
Chinnaswamy, panch witness to the seizure of golden
articles from accused No.4 under the panchanama
Ex.P.20 also turned hostile, not supported the case.
PW.18-Srinivas, PW.21-Zabiulla and PW.22-Abdul
Salam are the panch witnesses to the seizure of the
motorcycle and the Honda Activa by the Investigating
Officer under Ex.P.24 both turned hostile, not
supported the prosecution case. PW.19-Jayaram, the
seizure panch witness for the seizure of the golden
articles from accused No.2 under Ex.P.3 also turned
hostile, not supported the case. PW.20-Deepak Kumar
who said to be sold the Maruthi Van to one of the
accused Bharath also turned hostile, not supported
the case.
62. The only witnesses supported the
prosecution case is the Police officials and PW.3-
complainant. As per the evidence of PW3-the
complainant, he has stated on 02.06.2009, he has
closed the office and while going to the home, in his
motorcycle on the Corporation Bank Main Road, a
scooter dashed him, he sustained injury on his face
and some 8 to 10 persons were present and one
person opened the dicky of the scooter and took Bank
keys and two to three persons came in Maruti van and
asked him to come to the hospital and started the car.
They robbed Rs.20,000/- by smearing chemical on his
face, then the vehicle went near Hoskote to Malur,
they pushed him out. Then a watchman came there,
he telephoned to PW.23-Vargees Kurian and then
went to Vaidehi hospital, took treatment and went to
his relative's house. On the next day, he telephoned
to Director of the Bank and came to the office, then
he found strong wood was opened, golden ornaments
weighing more than 40 kgs were missing. Then he
lodged the complaint to the police as per Ex.P5. The
police came to the spot, prepared the panchanama
and seized some articles on the spot and he has
identified the material objects from M.Os.1 to 40.
According to this witness, some 10 to 12 persons took
him in a van and so many persons sat in the vehicle
and two persons sat by the side of this witness and he
has identified accused No.4 who was sitting on the left
side and accused No.5 who sat on the right side.
Then, this witness stated, the person who sat on the
right side whose name was Nirmal Raj, but this
witness identifies accused No.4 by stating the name as
accused No.1 and in respect of another witness, he
has identified and stated as accused No.6. Even
though he has identified accused No.3 and this
witness was unable to identify the accused persons in
the court and he has given evidence of different
versions in different stages and there is inconsistency
in the examination-in-chief itself. In the cross
examination, PW.7-ASI says accused No.1 was on the
spot but this witness says he was in the van.
63. PW.3 further stated that he was treated in
the hospital for 10 days, then, police took him to the
jail, he identified accused Nos.4 and 5 (but this
witness identified accused Nos.4 and 6 in the Court)
and thereafter, once again this witness changed the
version and identified accused Nos.3 and 6 and further
stated the accused Nos.7 and 8 came to the accident
spot. He further deposes that later the police shown
M.Os.41 and 42 are the two golden rings. His evidence
in Examination-in-Chief itself is not having any
consistency and in the cross examination, he has
admitted the Muthoot Finance is situated in the Main
Road, there are lot of people residing in surrounded
area and it is one of the busy area and it is consisting
of three floured building. There are shops in the
ground floor. The finance company and other offices
are situated in the first floor and in the second floor,
there were residential houses. He further admitted
that between the house of his relative-PW.23-
Varghese Kurian is situated within 3 to 4 kms and
Police station is situated within 2 kms and he further
admits that he cannot say the names of the persons
who were worked in their office and left their job prior
to six months. He further admits that there was a
register kept in their office wherein one of the strong
room key has been taken by him, another key is with
the Assistant Manager and the same was mentioned in
the said register. In order to open the strong room,
both the keys are required and three separate room
doors were situated and grill also there and further a
siren was fixed but he has denied, there is no siren,
but the Investigating Officer says there was a siren.
64. This witness further admits that he has not
seen the person who has dashed his vehicle and
caused accident. He also further admits, he has not
verified the registration number of the vehicle. He
further admits the said persons left him near Malur
and later he telephoned to his relative Vargees
Kurian-PW.23 and stayed in his house. If the version
of this witness is believable that the mobile phone was
snatched by the accused, the question of again this
witness calling the Vargees to the spot and going to
the house is not acceptable and he also admitted that
he has not produced any document to show that he
has obtained treatment in Vaidehi Hospital. The
Investigating Officer also not collected any medical
documents from Vaidehi Hospital to accept the
evidence of this witness that he has treated in Vaidehi
hospital and thereafter he stayed in the house of
PW.23. There is inconsistency in the evidence of this
witness in respect of identifying the accused who were
accompanied him in the car. At one stage he has
stated, accused No.3 was on the right side and
accused No.2 was on the left side while traveling in
the car and subsequently, he says accused No.5 was
on the right side and accused No.3 was on the left
side and further admits, when he was traveling, some
spray was smeared on him and he become
unconscious and thereafter, they pushed out from the
car which reveals he was not able to see any of the
accused either accused Nos.2 or 3 or defect in the
identification of accused Nos.3, 2 or 5. That apart, he
says that accused Nos.7 and 8 dashed his scooter but
he has seen accused No.1 on the spot and also says
accused Nos.1, 7 and 8 were in the car. Therefore, it
is not clear whether accused Nos.7 and 8 were at the
spot or accused No.1 was at the spot. But PW.7 says
accused No.1 as being on the spot but not accused
Nos.5 and 7.
65. Apart from that, the evidence of PW.37 -
Tahsildar is also not clear about the identity of the
accused by this witness and there was inordinate
delay in lodging the complaint and even though, the
incident took place on 02.06.2009 at 5.30 p.m., but
no complaint has been lodged till next day evening
and his conduct is doubtful and without informing the
incident either to PW.23-Vargees Kurian or to his
family members or to the Higher Officials, he came to
the office in a casual manner on the next day and
after he came to know that there was theft of golden
ornaments, thereafter, he has created a story that he
was met with an accident and somebody abducted
him, robbed him and pushed him out from the Omni
car. That apart, when one key of the locker is with this
witness, the another key was with the Assistant
Manager and without two keys, the locker cannot be
opened. Apart from that, if the key is kept in the
scooter and immediately after the accident, the
vehicle was seized by PW.7, how this key went to the
hands of the accused is not explained by the
prosecution. Therefore, the evidence of this witness is
only for setting the law into motion for the purpose of
investigation.
66. The another witness PW.23-who is the
relation of the complainant, PW.4-Regional Manager of
the complainant's company, PW.6-Account Officer of
the Reliance company and the remaining witnesses
are police official witnesses. PW.24-K.S.Mahesh, Head
constable arrested accused No.5 for seizure of the
articles as per Ex.P17. PW.34-Badrinath S-Dy.S.P.
who said to be arrested the accused and recovered
some golden ornaments, but no independent
witnesses were taken for seizure of the golden articles
from accused No.5 under Ex.P.17, it is by the PW.24
and PW.34. None of the independent witnesses joined
as witnesses. Likewise, the PW.25-Madappa, PSI and
PW.28 Venkataramanappa, ASI who arrested accused
No.1 and seized some golden articles from the
accused No.1, but none of the independent witnesses
supported the prosecution case regarding seizure of
golden ornaments from the possession of the accused.
PW.40-Ranjan and PW.41-Paboothmal who were the
independent witnesses for the seizure of articles from
accused No.1 and Exs.P.58, 59, 62, 63 but these two
witnesses i.e., PW.40 and PW.41 turned hostile and
not supported the prosecution case. The only police
officials have supported regarding the seizure of
articles from accused No.1. PW.26-H.S. Vasudeva,
PSI, who arrested the accused No.2-Jayakumar and
seized golden ornaments under Ex.P.3 though he has
supported, but the independent witnesses PW.19-
Jayaram not supported the prosecution case.
67. Likewise, PW.29 Basavaraj Doddamani, PSI
and PW.31-M.K.Thammaiah, Dy.S.P. who arrested the
accused No.8-Das Prakash and seized golden
ornaments but the independent witnesses not
supported the prosecution case and the material
objects also were not produced before the Court for
the purpose of marking. PW.32-T.Rangappa, Police
Inspector, who also arrested the accused No.3,
Baskaran and seized the material objects from
accused No.3 under Ex.P.19, but the independent
witnesses not supported the prosecution case and the
material object also not produced and marked before
the court for identification. PW.33-Rajanna, Police
Inspector who seized the Maruthi Van, which is said to
be involved in the commission of offence, but the very
owner of the Maruthi Van not supported the
prosecution case and the seizure of the Maruthi van
also not proved.
68. PW.21-Zabiulla and PW.22-Abdul Salam
were seizure panch witnesses to the panchanama
Ex.P.24 for seizing the motorcycle belongs to the
accused No.1 and Honda Activa belongs to the PW.3
was also not proved as both the witnesses have
turned hostile, not supported the case. PW.35-Shanthi
who said to be customer, PW.30-Basavaraj, another
customer were all pledged the golden ornaments, they
got it released from the Court. They are only formal
witnesses, their evidence is not useful for the
prosecution case. PW.36-Kishore Bharani who is a
Police Officer who arrested accused No.6 and seized
the golden ornaments under Ex.P.6, but except the
Investigating Officer, the panch witnesses PWs.15 and
10 were not supported the prosecution case.
69. PW.38-Kumar another Investigating Officer
who prepared the panchanama and seized the two
wheelers, arrested the accused No.7 and except this
witness, the panchas, PWs.21 and 22 not supported
the prosecution case. PW.39-Manjunath, the another
Investigating Officer who arrested the accused
persons, recorded the voluntary statement and
collected the documents as per Exs.P.49 to 57
regarding letter, key register, missing stock, entry
form, copy of the sale deed etc., but none of the other
witnesses supported in respect of the seizure. PW.42 -
Siddaraju, another Investigating Officer filed
additional charge sheet.
70. On perusal of the evidence, except the
Investigating Officers and the PW.37-Tahsildar, no
other independent witnesses supported the
prosecution case.
71. PW.37-Venkatesh.B, Tahsildar who
conducted the T.I.P. and according to his evidence, he
has conducted the T.I.P. in prison on 24.06.2009 and
according to him the PW.7-Thimmaiah, ASI identified
accused No.1 as per Ex.P.33, the PW.22 identified the
accused Nos.1, 2 and 8. PW.22 is only a panch
witness to Ex.P.24 for seizure of the motorcycle and
the question of identifying accused Nos.1, 2 and 8 by
PW.23 is of no consequence and he has not seen the
assailants while committing the offence. He is only
panch witness and he has turned hostile before the
Court. Therefore, identifying accused Nos.1, 2 and 8
by the PW.22 is not useful to the prosecution.
72. It is further alleged that PW.17 is said to be
identified accused Nos.1, 2 and 3 as per Ex.P.23, but
this witness not seen the accused persons either while
committing the offence or he was seen the accused
when the accident was took place for PW.3. Therefore,
identifying this witness is not useful to the accused
Nos.1, 2 and 8. Likewise, the CW.44 said to be
identified the accused Nos.1 and 7 under Ex.P.35 but
CW.44 not examined before the Court and the said
CW.44 is not a witness who saw the assailants during
the incident. Therefore, the evidence of PW.37 for
identifying the accused Nos.1 and 7 by CW.44 also not
useful.
73. The further evidence of PW.34 is that the
CW.43 identified accused Nos.1 and 7, but CW.43 is
also not examined before the Court and CW.43 is also
not an eye witness to the incident, therefore, Ex.P.36
is also not useful to the prosecution case. It is further
deposed by PW.37 that PW.20 identified the accused
Nos.7 and 8 under Ex.P.37. PW.20 also turned hostile
who said to be sold the Maruthi Van to the accused
and therefore, identifying the accused Nos.7 and 8 by
the PW.20 is not useful.
74. As per the further evidence of PW.37,
PW.16 said to be identified the accused Nos.1 to 3
under Ex.P.39 but PW.16 also turned hostile, not
supported the case and PW.16 is also not the eye
witness to the incident. Therefore, question of
identifying accused Nos.1 to 3 by PW.16 cannot be
acceptable. As per the case of the prosecution,
accused Nos.7 and 8 dashed vehicle and accused No.1
was on the spot seen by the PW.3-complainant and no
other eye witnesses to the incident and PW.7 who said
to have seen accused No.1 on the spot. Therefore, the
T.I.P. conducted by PW.37 except for accused No.1,
but not useful to others identification.
75. As per PW.37, the PW.7 who is the
Assistant Sub-Inspector, identified accused No.1
under Ex.P.33 and PW.3 said to be identified accused
Nos.8, 3 and 7 under Ex.P.38. On careful perusal of
Ex.P.33 reveals, the question was posed by PW.7 that
how many persons participated in the offence and
PW.7 stated as '1' and next question was whether he
can identify him, for that PW.7 said 'yes'. Likewise, in
Ex.P.38, the question was posed by PW.37 to PW.3
that he has answered he can identify and he has seen
him. But these two witnesses question and answers
were marked by the prosecution, it is not clear
whether these two witnesses identify which accused.
Likewise, under Exs.P.33 to 39, reveals, the question
and answer has been produced before the Court and it
is not clear which witness identifies which of the
accused and which of the row they made to stand
during T.I.P. Therefore, the evidence of PW.37 and
Ex.P.33 report is not in accordance with law for having
conducted the T.I.P. There is no proceedings of
Tahsildar for conducting the T.I.P. has been marked
for the purpose of proving the identification of the
accused by the witnesses during the T.I.P.
76. The learned counsel for the appellants
contended that as per Ex.D.1, the Police Officer
already published in the News paper that the accused
were arrested, recoveries were done as per the news
report dated 08.06.2009 itself and the accused
persons were shown as arrested and recovered the
articles as per the seizure panchanamas on
10.06.2009. The photograph of the accused were
published in the newspaper and there is every
possibility of the witnesses seeing the accused
persons in the Police Station is not ruled out.
Therefore, it is contended the identification of the
accused under the T.I.P. is not having any evidential
value. The Hon'ble Supreme Court in the case of
Suryamoorthi and Another vs. Govindaswamy
and Others reported in (1989) 3 SCC 24 has held
as under :
"Evidence Act, 1872 - Section 9 - T.I.
Parade - Photographs of accused appeared
in local newspapers and accused also kept
in police lock up for a few days before T.I.
parade held - Held, possibility of the
accused having been shown to prosecution
witnesses cannot be ruled out - Hence
evidence of T.I. parade not reliable."
77. Therefore, the very evidence of the
Investigating Officers and the Tahzildar who
conducted the T.I.P. for identifying the accused were
all not proved by the prosecution beyond reasonable
doubt.
78. The only witness supported is PW.3 whose
evidence is not sufficient and there is lot of
consistency in his evidence and his conduct is
improbable since the date of incident was on
02.06.2009 at 5.30 p.m., but on the night he met
PW.23 and he said to be took the treatment in Vaidehi
hospital and later stayed in the house of PW.23. But
this witness not disclosed about the accident, where
he left the scooter and the accused persons abducted
him in the Maruthi Van and assaulted him, snatched
mobile phone and cash of Rs.20,000/-. In spite of it,
he has not lodged the complaint immediately but he
was stayed in the house of PW.23 and on the next
day, he went to the office, as usual and even without
informing his Higher Official, PW.4 who is a Regional
Manager. By that time when he went to the office, the
police were already present. PW.4 was present, there
was theft in the office. The golden articles were
stolen, but the complaint was filed by PW.3 in the
evening that too the said complaint was prepared by
PW.4. Apart from that he said to be left the key in the
scooter and the said scooter was taken by PW.7-ASI
to the Police station. Such being the case, how this
key went to the hands of the accused and the second
key was with the Assistant Manager as per the
register maintained by the Financier. When the two
keys were kept by two different Managers, the
question of taking both the keys by PW.3 does not
arise. Apart from that, there was lot of contradictions
and omissions in his evidence and he was unable to
identify the golden ornaments before the Court.
Therefore, this witness may be used only for the
purpose of setting the law into motion but not for any
other purpose.
79. PW.23 also says he has brought PW.3 from
the Malur Road and took him to the hospital and later
stayed in the house and he is not aware anything
about the incident. Therefore, the evidence of PW.23
is also not useful to the case of the prosecution.
80. PW.4-S.G.Kulakarni, Regional Manager,
though he has stated that there was CCTV Camera
installed in the office and there was siren fixed in the
strong room, but no CCTV footage produced and
marked by the prosecution, therefore, the evidence of
PW.4 is also not sufficient to prove the guilt of the
accused.
81. As regards to the evidence of PW.7 who is
the Police Officer who saw accused No.1 on the spot
but he has not registered any case in respect of any
accident, even though he took the vehicle and also not
chosen to record the statement of the injured. As per
his evidence accused No.1 was on the spot but as per
PW.3-complainant, the accused No.1 was in the
Maruthi Van. Therefore, the evidences of PWs.7 and 3
regarding identifying accused No.1 said to be on the
spot or car which is not proved by the prosecution.
The Hon'ble Supreme Court in the case of Mustkeem
v. State of Rajasthan reported in (2011) 11 SCC 724
has held as under:
"Criminal Trial - Circumstantial
Evidence _ Recovery of crime articles/
incriminating articles /other articles _
Recovery of alleged weapons _ Witness of
recovery turned hostile _ another witness
admitted that the signatures were obtained
on memos at Police Station _ Witnesses
were residing at distance from place of
recovery _ Prosecution failed to establish
as to why none of the local persons living
close by were called to be witnesses."
82. Here in this case, none of the panch
witnesses supported the case except Investigating
Officer and T.I.P. was conducted by PW.37 which is
not in accordance with law and T.I.P. proceedings
were not produced. There is inconsistency in the
evidence of PW.3, there is delay in lodging the
complaint and after due deliberation, the complaint
came to be lodged after one and half days delay and
FIR was reached the Court after a day. The golden
ornaments were also not identified by any of the
witnesses and photographs were produced but there is
no panchanama prepared and marked by the
prosecution to show this golden ornaments were
released to the concerned persons and the
photographs were required to be identified by the
witnesses in the Court but except police officials, no
other evidence available for identification of the
articles. The Hon'ble Supreme Court in the case of
Sunderbhai Ambalal Desai vs. State of Gujarat in
Special Leave Petition (crl.) 2745 of 2002 and
guidelines were issued that the photographs must be
taken in respect of articles and panchanamas should
be prepared and the same shall be used as evidence
before the Court but the same was not followed.
Therefore, those photographs cannot be acceptable as
evidence under Section 65 of the Evidence Act.
83. As regards to the charges framed for the
offence punishable under Section 120B of IPC, the
prosecution utterly failed to prove the criminal
conspiracy held between the accused persons by
examining any of the witnesses before the Court. The
charges were made only based upon the voluntary
statement without any substantive piece of evidence.
Therefore, the prosecution failed to prove the charges
under Section 120B of IPC.
84. In respect of Section 364(A) of IPC,
wherein the definition is as under:-
"Kidnapping for ransom, etc., -
whoever kidnaps or abducts any
person or keeps a person in
detention after such kidnapping or
abduction and threatens to cause
death or hurt to such person, or by
his conduct gives rise to a reasonable
apprehension that such person may
be put to death or hurt or causes
hurt or death to such person in order
to compel the Government or (any
foreign state or international, inter
governmental organization or any
other person) to do or abstain from
doing any act or to pay a ransom,
shall be punishable with death or
imprisonment for life and also be
liable to be fined.
85. On perusal of the evidence on record,
absolutely there is no ingredient in the prosecution
case that the accused person abducted PW.3-
complainant and kept him as hostage and demanded
any ransom from the Muthoot Finance company or
any other person. As per the evidence of PW.3, he
was taken by some person in the van for the purpose
of providing treatment after the accident and later
while traveling the accused said to be snatched the
phone and cash from him and pushed him out from
the car and there is no evidence for the recovery of
the phone or recovery of the cash from the accused.
The identity of accused also not proved by satisfactory
evidence, therefore, mere taking the complainant in
the van and later pushed him out from the van will not
constitute any offence under Section 364A of IPC.
Therefore, I hold the prosecution failed to prove the
charges framed for the offence punishable under
Section 364A of IPC.
86. As regards to the charges framed for the
offence punishable under Section 397 of IPC, wherein
as per the definition that at the time of committing
robbery or dacoity, the offender uses any deadly
weapon or causes grievous hurt to any person or
attempts to cause death or grievous hurt to any
person which is punishable under this Section. Here
in this case, it is not the prosecution case that the
accused person assaulted him or attempted to cause
death or grievous hurt to any persons while
committing robbery or dacoity, absolutely there is no
evidence, that they caused any hurt or fear of death
while committing alleged robbery or dacoity.
87. In respect of Section 395 of IPC, it is
alleged that the accused persons opened the door of
the finance company by using the key, said to be
stolen from the scooter of PW.3 by causing accident.
As per the evidence of the PW.3 that immediately
after the accident, he was taken by some person in
the van under the guise of providing medical
treatment and as per his evidence accused Nos.7 and
8 dashed the Honda Activa scooter and he has stated
accused No.1 was took the key from the scooter, but
he has not stated in the complaint that accused No.1
has taken the key from the scooter. On the other hand
immediately after the accident, some public said to be
sent him to the hospital in a van. Therefore, question
of seeing accused No.1 and taking the key is not
possible. That apart, he has stated, accused No.1 on
the spot, on the other hand, he has stated that the
accused No.1 traveled in the van. PW.7-Police Officer
who came to the spot after the accident said to be
seen accused No.1 on the spot. If accused No.1 was
on the spot, the question of traveling with the
complainant by the accused No.1 does not arise. This
Court has already held in the above paragraphs in
detail, that apart, PW.3 not stated anything about the
accident, taking the car key immediately after meeting
PW.23 or to his Higher Officers and as usual, he came
to the office by next day and found there was theft of
golden ornaments in the Finance office and the police
were already present there. The same thing has
stated by PW.4 also. Though police officers took the
fingerprints from the spot and sent to the FSL, but the
same was not produced and marked before the court
and also the CCTV footage also not seized and
produced before the court to show these appellants
came to the office of the complainant and stolen the
golden ornaments. Apart from that, none of the
independent witnesses supported the prosecution case
regarding recovery of golden ornaments, the identity
of the accused not proved in accordance with law.
The arrest of the accused persons on the same day
i.e., on 10.06.2009 in different places by the different
police officers seizing the gold ornaments individually
while said to be carrying the same cannot be
acceptable, it is like a filmy style recovery and except
police officials, none of them have been supported the
case. The evidence of PW.3 is not trustworthy to
accept and there was delay in lodging the complaint.
The officials of the Muthoot Finance were unable to
identify the golden articles, were all goes to show that
even if there was theft of golden ornaments from the
Muthoot Finance, there is no connecting evidence with
the appellants and the stolen articles. That apart the
Investigating officer has not chosen to investigate as
to whether how the two keys of strong room was with
the custody of PW.3 instead of one key must be with
Assistant Manager. Therefore, the true facts were not
investigated by the police, therefore I hold the
prosecution utterly failed to prove that the appellants
are involved in the commission of dacoity beyond
reasonable doubt. Therefore, I am of the view, the
prosecution utterly failed to prove any of the charges
against any of the accused beyond reasonable doubt
and hence, the benefit of the doubt shall be extended
to the accused. Hence, answered point No.1 in the
Negative.
88. Point No.2-On perusal of the judgment of
the Trial Court, the Trial Court went on mentioning
the deposition of the witnesses and finally on the last
two pages, it was held that as per the evidence of
Investigating Officer and evidence of PW.37-the
Tahsildar, the Trial Court proceeded to convict the
accused which is not correct. The Trial Court not
appreciated the evidence of any of the witnesses in
accordance with law. Simply mentioning the
deposition and accepting only evidence of
Investigating Officer is not enough to prove the guilt
in robbery and dacoity cases where the prosecution
case relied upon the circumstantial evidences.
Therefore the judgment of the Trial Court is required
to be set aside. Accordingly, I proceed to pass the
following order:
ORDER
The appeals filed by the appellants/accused
Nos.1 to 8 and 10 are allowed.
The judgment of conviction and sentence
passed by the LVI Additional City Civil and Sessions
Judge in S.C.No.158/2010 and S.C.No.547/2011 are
hereby set aside.
The appellants/accused Nos.1 to 8 and 10 are
acquitted for the charges framed under Sections
120B, 364A, 395, 397 read with Section 149 of IPC.
The bail bond of the accused No.10 is cancelled.
The appellant/accused Nos.1 to 8 are in custody
and they shall be set at liberty forthwith, if they are
not required in any other cases.
The return of golden articles, if any, to the
owners and financiers are hereby confirmed. The
vehicles if released in any RC Owner's favour and if
any properties are forfeited, they are hereby
confirmed.
Office to send the Trial Court Records and the
copy of the judgment to the Trial Court.
Office to send the copy of this judgment to the
Central Jail, Bengaluru for releasing the appellants.
Sd/-
JUDGE
GBB/CS/AKV
