Karnataka High Court
State By Narasimharaja Police vs Fazeel on 18 December, 2023
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CRL.A No. 971 of 2016
C/W CRL.A No. 1835 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.971 OF 2016
C/W
CRIMINAL APPEAL NO.1835 OF 2016
IN CRL.A.NO.971 OF 2016
BETWEEN:
IQBAL AMJAD @ ANJAD
S/O LATE SATHAR
AGED ABOUT 30 YEARS
R/AT D.NO.3270
BEHIND HOSA MASEEDI
GANDHI NAGAR
MYSURU-570 001.
...APPELLANT
(BY SRI C. M. JAGADEESH, ADVOCATE)
AND:
Digitally
signed by
VINUTHA M STATE BY NARASIHMARAJA POLICE
Location: MYSURU,REPRESENTED BY
HIGH PUBLIC PROSECUTOR
COURT OF STATE OF KARNATAKA
KARNATAKA HIGH COURT BUILDING
BENGALURU-560 001.
...RESPONDENT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT 27.05.2016 AND
SENTENCE DATED 31.05.2016 PASSED BY THE III ADDITIONAL
SESSIONS JUDGE, MYSURU IN S.C.NO.64/2012 - CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCE PUNISHABLE UNDER
SECTIONS 392 AND 397 OF IPC.
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CRL.A No. 971 of 2016
C/W CRL.A No. 1835 of 2016
IN CRL.A.NO.1835 OF 2016
BETWEEN:
STATE BY NARASIMHARAJA POLICE
MYSURU, REPRESENTED BY
STATE PUBLIC PROSECUTOR.
...APPELLANT
(BY SRI VINAY MAHADEVAIAH, H.C.G.P.)
AND:
1. FAZEEL
S/O JAMEEL
AGED ABOUT 29 YEARS
LORRY CLEANER
RESIDING AT LIG 27, BADE MAKHAN
MYSURU-570 001.
2. SHABEER
S/O JABEER
AGED ABOUT 30 YEARS
RESIDING AT NO.863, 1ST CROSS
P AND T QUARTERS
NEAR LLAYI MASEEDI, SATHYANAGAR
MYSURU-570 001.
3. MUJAMILLA @ BABU
S/O NOOR AHMED
AGED ABOUT 34 YEARS
R/AT NO.342, BEHIND
ABUHAKIM COLONY
MYSURU-570 001.
4. KHALEED
S/O HAMEED
AGED ABOUT 36 YEARS
RESIDING AT NO.132
4TH CROSS, NACHANAHALLI PALYA
MANANDAVADI ROAD
MYSURU-570 001.
...RESPONDENTS
(BY SRI C. M. JAGADEESH, ADVOCATE FOR R-1
SRI AFROZ PASHA, ADVOCATE FOR R-2 TO R-4)
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CRL.A No. 971 of 2016
C/W CRL.A No. 1835 of 2016
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT 27.05.2016 PASSED
BY THE III ADDITIONAL SESSIONS JUDGE, MYSURU IN S.C.NO.64/2012
- ACQUITING THE RESPONDENT 1 TO 4-ACCUSED NO.2 TO 5 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 395 AND 397 OF IPC.
THESE CRIMINAL APPEALS ARE COMING ON FOR FINAL HEARING,
THIS DAY, VENKATESH NAIK T. J., DELIVERED THE FOLLOWING:
JUDGMENT
Crl.A.No.971/2016 is filed by accused No.1
and Crl.A.No.1835/2016 is filed by the State,
aggrieved by the judgment passed by III Addl.
Sessions Judge, Mysuru in S.C.No.64/2012 dated
27.05.2016, acquitting accused Nos.2 to 5 of the
offences under Sections 395 and 397 Indian Penal
Code, 1860 (for short 'IPC') and convicting
accused No.1 for the offences under sections 392
and 397 IPC.
2. The case of the prosecution in brief is as
under:-
PW-1 and PW-2 are the Accountant and
Cashier of M/s. Atlantic Spinning and Weaving Mill
Limited, Mysore. On 01.02.2011, at about
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11.20 a.m., PW-1 and PW-2 left the Mill premises
in an Autorickshaw with a bag containing cash of
Rs.18,92,500/- in order to deposit the same in
State Bank of Mysuru, Bamboo Bazaar Branch,
Mysuru. At about 11.30 a.m., when the
autorickshaw reached near Madrasa in Siddique
Nagar, accused No.1 and two others came in a
motor bike- Hero Honda CD 100 bearing
registration No.CTO 1828, which overtook the
autorickshaw from behind and stopped in front of
the autorickshaw signaling the auto driver to stop.
The driver of the autorickshaw stopped his vehicle
and accused No.1 came towards PW-2 holding a
sword(chopper) M.O.2 and hit PW-2 on his right
hand with a view to snatch the cash bag, however,
PW-2 did not give the bag at the first blow but,
when the blow with sword(chopper) was repeated,
PW-2 loosened the grip on the cash bag, thus
accused No.1 snatched the bag and started
running away with the bag. At that juncture, PW-1
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who was a co-passenger alighted from the
autorickshaw and raised hue and cry along with
PW-2. In the mean-while, PW-3 traffic police
constable and his relative PW-4 who were traveling
on the motor bike behind the autorickshaw, chased
accused No.1 who was escaping with cash bag and
PW-1 also joined the chase, after running a few
feet, accused No.1 threw away the sword(chopper)
and continued to run with the cash bag, till his
foot got entangled in some plants and thus, he fell
down. Thus, PW-3 caught hold of accused No.1 and
snatched the cash bag from him and PW-3
intimated the police control room through his
wireless, immediately a P.C.R jeep came to the
spot, took injured PW-2 to Columbia Asia Hospital
and admitted him for treatment. PWs-1, 3 and 4
brought accused No.1 to the police station, where
accused No.1 revealed his name as Iqbal Amjad
and name of two other persons who were with him
as Fazeel-accused No.2 and Shabeer as accused
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No.3. In this regard, PW-1 lodged the complaint
Ex.P1 which led to registration of FIR and
investigation.
3. Assessing the evidence of 13 witnesses
examined by the prosecution and the documents
marked as Ex-P1 to Ex.P14 and nine material objects as
M.Os.1 to 9, the trial court came to the conclusion that the
eyewitnesses to the incident viz., PW-1 to 4 have spoken
about the involvement of accused Nos.1 to 3 in the
incident and PW-3 traffic police constable who chased
accused No.1 caught hold of him and snatched the bag
containing cash of Rs.18,92,500/- and in the absence of
any evidence against accused Nos.2 to 5 acquitted them of
the offences charged and convicted accused No.1 for the
offence punishable under section 392 IPC and sentenced
him to undergo rigorous imprisonment for a period of five
years and to pay fine of Rs.5,000/- with default
imprisonment. Further, accused No.1 was convicted for
the offence punishable under section 397 IPC and
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sentenced to undergo rigorous imprisonment for a period
of seven years and to pay fine of Rs.5,000/- with default
imprisonment.
4. Assailing the findings of the trial court,
Sri. C.M. Jagadeesh, learned counsel for accused No.1
argued that though there are contradictions in the
testimonies of PW-1 to 4, the trial court relying on their
evidence has wrongly convicted accused No.1 and the trial
court has considered those contradictions as minor
contradictions and observed that it would not go to the
root of the matter so as to convict the accused in any
manner. It is contended that accused No.1 assaulted PW-2
on his right hand and snatched away the cash bag,
whereas, the case of the prosecution is that accused No.1
assaulted PW-2 twice and thereafter snatched the bag, but
this version has not been supported by the medical
evidence. As per the evidence of PW-3, he and PW-4 went
to Nalapad hotel for having breakfast and from there, they
went to the police station around 11.15 a.m. and reached
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the police station at 11.30 a.m., whereas, the incident
occurred at about 11.20 a.m., when such being the case,
the possibility of PW-3 and PW-4 witnessing the incident
has to be ruled out. But the trial court while accepting the
evidence of PW-3 and PW-4 opined that said evidence is
an aberration and still believed their version. It is
contended that the benefit of admission made by the
prosecution witnesses during trial has to be considered to
the benefit of the accused and not in favour of the
prosecution. Further, PW-1 and PW-2 were traveling in an
autorickshaw and the driver of the autorickshaw has not
been examined by the prosecution. Therefore, non-
examination of the autorickshaw driver and other
members of the public who had gathered during the
incident are fatal to the case of the prosecution. But the
trial court has not considered said aspect and it has not
assigned any plausible explanation and cogent reasons. It
is contended that the trial court ought to have raised a
doubt in respect of origin of the case and the manner in
which the incident has been manipulated by the police at
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the time of the investigation and trial. It is contended that
there is delay in submitting FIR to the court, which is fatal
to the case of the prosecution. Further, there was
controversy in respect of demolition of the building and
sale of scrap to PW-9 in the mill where PW-1 and 2 were
working. As per the case of the prosecution, there was
dispute in respect of sale of scrap. Therefore, a quarrel
took place on that day within the factory premises and not
at the place alleged by the prosecution and accused No.1
has placed sufficient probable evidence to prove the said
defence; the trial court has not appreciated the same in
right perspective. It is contended that the Investigating
Officer has failed to collect the blood stained sample mud
from the spot of the incident, which throws lot of doubt
regarding occurrence of the incident at the alleged spot as
per Ex-P2. Further, the trial court erred in not appreciating
the release of cash of Rs.18,92,500/- on the very next day
of the incident in the police station itself, in right
perspective and the reasons for releasing such huge
amount was in order to disburse salary to the employees,
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but PW-1 admits that there was no need for cash for said
purpose. In spite of these material contradictions, the trial
court assigned reason holding that there was no collusion
between the police officers and the officials of the mill. It
is contended that the trial court disbelieved the
involvement of accused No.2 to 5 in the incident. When
such being the case, the trial court ought to have rejected
the theory of robbery and dacoity alleged to have been
committed by accused No.1, as the commission of robbery
and dacoity are interconnected with each other. Thus,
prayed to allow the appeal.
5. Sri Vinay Mahadevaiah, learned HCGP appearing
for the respondent State argued that the recovery of bag
containing cash of Rs.18,92,500/- was seized from
accused No.1 and PW-1 and 2 have categorically stated
about the manner in which the incident took place and the
assault made by accused No.1 to PW-2 and snatching the
bag containing cash; PW-3 chased accused No.1, caught
hold and snatched the bag from him and thereafter, PW-1,
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PW-3 and PW-4 handed over accused No.1 to the police;
their oral testimony is supported by an independent
witness; Oral evidence of PW-2 being injured is also
supported by the medical evidence; PW-13 Dr. Arun M has
clearly stated that PW-2 sustained injuries on his right
hand which was caused by M.O.2 sword(chopper). It is
contended that on the day of the alleged incident, accused
Nos.1 to 3 came on the motor cycle, they overtook the
autorickshaw, stopped the same and accused No.1
snatched the cash bag from PW-2. At that time, accused
Nos.2 and 3 were sitting on the motor cycle and accused
Nos.4 and 5 came in a Maruthi Esteem car, which shows
their involvement in the case, in spite of which, the trial
court acquitted accused Nos.2 to 5 on the ground that
there is insufficient evidence against them. But as per the
evidence of the Investigating Officer and the disclosure
statement made before the Investigating Officer by
accused No.1 and the evidence of PW-11- Police Inspector,
the involvement of accused Nos.2 to 5 is clearly
established, however, the trial court failed to consider the
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said aspect. Hence, learned HCGP prayed to reject the
appeal filed by accused No.1 and allow the appeal filed by
the State and to convict accused Nos.2 to 5, for the
offences charged.
We have perused the entire evidence both oral and
documentary and considered the arguments.
6. As per the charge, accused No.1 came on a motor
cycle, assaulted PW-2 with M.O.2 sword(chopper) and
snatched the cash bag and ran away in the presence of
PW-1. Immediately, PW-3 traffic police constable caught
hold of accused No.1, snatched the said bag containing
cash and handed over the bag to the police, accused Nos.2
to 5 had accompanied accused No.1 and participated in
the crime, thereby committed the offence of robbery and
dacoity.
6(a). From the perusal of evidence of PW-1, it
appears that, he was working as an Accountant in Atlantic
Spinning and Weaving Mills Limited at the relevant point of
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time and he was a co-passenger in the autorickshaw. On
31.01.2011, the manager of the Mill handed over a cash of
Rs.18,92,500/- to him with instructions to deposit the
same in the bank on the following day. Accordingly, on the
following day i.e., on 01.02.2011, at about 11.30 a.m., he
and PW-2 K.M.Sharma(injured) cashier of the Mill
proceeded in an autorickshaw with cash in order to reach
the bank. At about 11.35 a.m., when the autorickshaw
reached Madrasa, Siddique Nagar, at that time, three
persons came on a motor bike, over took the autorickshaw
and insisted the driver of the autorickshaw to stop the
autorickshaw. Hence, the driver of the autorickshaw
stopped the same on the left side of the road. Then a third
person sitting on the motor cycle(accused No.1) hit PW-2
on the right hand with M.O.2 Sword(Chopper). However,
PW-2 did not release the cash bag, again accused No.1 hit
PW-2 with a sword(chopper), thus PW-2 loosened his grip
on the bag. At that time, accused No.1 snatched the cash
bag and started running away. Therefore, PW-1 got down
from the autorickshaw and raised hue and cry saying that
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a thief is running away with cash and he also ran after
accused No.1, at the same time, PW-3 traffic police
constable came on the motor cycle along with PW-4 and
he followed accused No.1. After running away a few feet,
accused No.1 threw the sword(Chopper) on the ground
and started running away with the cash bag. At that time,
his leg got entangled in some plants. Thus, he fell down to
the ground with the bag. Thereafter, PW-4 who was with
the traffic police constable took the bag and handed over
to PW-1. PW-3 caught hold of accused No.1 and informed
the police. PW-6 and PW-7 came to the spot and accused
No.1 was apprehended. Later, PW-1, 3 and 4 brought
accused No.1 to the police station in the police jeep, where
PW-1 lodged a complaint as per Ex-P1 and injured PW-2
was taken to Columbia Asia Hospital, Mysore for
treatment.
6(b). PW-2 K.M.Sharma is the injured witness who
was carrying the cash bag at the time of the incident. He
has stated that on 01.02.2011, he and PW-1 were
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proceeding in an autorickshaw towards the bank for
deposit of cash of Rs.18,92,500/-. When the autorickshaw
came near Madrasa, accused No.1 and two other accused
came on the motor cycle, stopped the autorickshaw and
accused No.1 assaulted him with M.O.2 sword(chopper)
twice and snatched the cash bag. Then PW-3 came to the
spot, saw the incident and chased accused No.1 and as
accused No.1 fell down, he snatched the bag and also
caught hold of accused No.1 and handed over him to the
police. As PW-2 had sustained injuries in the incident, he
was admitted to Columbia Asia Hospital for treatment as
an inpatient.
6(c). PW-3 Mallesh is the traffic police constable, who
was riding another motorcycle behind the autorickshaw
along with his relative PW-4-Srikanth at the time of the
incident. He has stated that PW-1 and PW-2 were traveling
in the autorickshaw, the motorcycle overtook said
autorickshaw, accused No.1 assaulted PW-2 with MO-2
sword(chopper), snatched the cash bag and started to run.
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Hence, he followed him, accused No.1 threw MO-2
sword(chopper) on the ground, accused No.1 fell down as
his legs were entangled in plants, he snatched the
sword(chopper) and cash from accused No.1, informed the
police and later, handed over accused No.1 to the police,
thereby he identified accused No.1 before the Court. PW-
3 has identified accused No.2, who was sitting in the
middle of the motorcycle and he also identified accused
No.3, who was riding the motorcycle.
6(d). PW-4 Srikanth is the nephew of PW-3, who was
riding the motorbike along with PW-3 and they were riding
the motor bike behind the autorickshaw at the time of the
incident. He has reiterated the version of PW-3 and
corroborated his oral testimony.
7. So far as evidence of PW-5 is concerned, who is
seizure mahazar witness to Exs-P5 to P7 wherein, four
mobile phones, a motor cycle and the Esteem car were
seized in his presence, he has categorically stated that the
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police seized those articles in his presence and drew
mahazars as per Exs-P5 to P7.
8. So far as evidence of PW-6 and PW-7 is
concerned, PW-6 M. Ningaraju is the Assistant Sub
Inspector of Police, N.R. Mohalla police station, Mysore. He
has stated that on the day of the incident, he was on
patrolling duty, he received information about the
commission of offence near Madrasa, Siddique Nagar, from
the control room, hence, he immediately rushed to the
spot alongwith PW-7 police constable and saw PW-3
holding accused No.1 with a bag and from PW-3, he came
to know about the incident. Therefore, he secured accused
No.1 with cash bag, came to the police station and handed
over accused No.1 and cash bag to SHO.
9. PW-7 Lingarajappa is the police constable, N.R.
Police Station who reiterated the oral testimony of PW-6
and corroborated his oral testimony.
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10. PW-8 Ramesh is another witness to seizure
mahazars Ex-P5 to P7, who turned hostile to the
prosecution case.
11. PW-9 Syed Dastgir is the Civil Contractor. In his
evidence, he has stated that he was successful in auction
purchase of scrap materials from K.R. Mills and he
obtained work order from K.R. Mills for demolition of
building and taking scrap and in this regard, he had
deposited cash of Rs.13,60,000/- on 30.01.2011 to the
Mill and thereafter some unknown persons came to him
and asked him to transfer said work order/tender to him
and stated that said person wanted to take the tender
which has been taken by PW-9 and he asked PW-9 to give
a sum of Rs.5.00 lakh, for which, PW-9 refused, but PW-9
is treated as a hostile witness.
12. PW-10 K.S.Guruswamy, head constable, N.R.
Police Station has stated that he arrested accused Nos.2 to
5 on the information of accused No.1.
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13. PW-11 K.N. Yeshawantha Kumar is Police
Inspector, N.R. Police Station, Mysore, who conducted the
investigation and filed the charge sheet.
14. PW-13 Dr. Arun M., Columbia Asia Hospital,
Mysore, who treated PW-2 at Columbia Asia Hospital has
stated that, PW-2 sustained cut wound over right hand
measuring 6cmx 2cm till depth of bone and issued wound
certificate as per Ex-P10.
15. In the instant case, PW-1, 3 and 4 are the eye
witnesses to the incident and PW-2 is the injured witness.
From perusal of the evidence of PWs.1 to 4, it appears
that their testimony is consistent with regard to accused
No.1 coming on motor cycle and assaulting PW-2 with
M.O.2-sword(chopper), causing injuries and snatching the
bag containing cash. Their evidence is also consistent that,
PW-3 chased accused No.1 and as the legs of accused
No.1 were entangled in the plants, he fell down, PW-3
caught hold of him and snatched the cash bag,
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immediately informed to police control room. Their
evidence is clear and corroborative in nature.
16. The counsel for accused No.1 contended that
there are major contradictions in the testimony of
PW-1 to 4. When eye witnesses are examined at length, it
is quite possible for them to make some discrepancies. In
the instant case, PW-1 to 4 have consistently stated that
accused No.1 who was sitting behind on the motor cycle
came with MO-2 sword(chopper), assaulted PW-2 with
M.O.2 twice, caused injuries and snatched the bag
containing cash and PW-1 and 2 raised hue and cry, PW-3
and 4 who were coming on the motor cycle behind the
autorickshaw stopped their motor cycle, PW-3 chased
accused No.1 and caught hold of accused No.1 and
snatched the cash bag. This aspect is consistently stated
by the prosecution witnesses and there are no omissions,
contradictions and improvements on this aspect. The
contention that PW-3 and PW-4 reached to the police
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station or had breakfast in the hotel prior to lodging the
complaint is a matter of trivial nature.
17. By and large, a witness cannot be expected to
possess a photographical memory and to recall the details
of an incident. It is not as if a videotape is replayed on
the mental screen. The power of observation differs from
person to person. What one may notice another may not.
The object or movement might emboss its image on one
person's mind, whereas it may go unnoticed on the part of
another. By and large, people cannot accurately recall a
conversation and reproduce the very words used by them
or heard by them. They can only recall the main probable
conversation. It is unrealistic to accept a witness to a
human tape recorder.
18. Ordinarily a witness cannot be expected to recall
accurately the sequence of events which take place in a
rapid succession or in short time span. A witness is liable
to get confused or mixed up when interrogated later. To
put it simple, in assessing the value of evidence of PW-1
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to 4, two principle considerations are, whether in the
circumstances of the case, it is possible to believe their
presence at the scene of occurrence or in such situation,
as what makes it possible for them to witness the facts
deposed to by them and consequently, whether there is
anything inherently improbable or unreliable in their
evidence. On perusal of evidence of PWs-1 to 4 and
assessing their testimonies, their testimonies are credible
and it is not adversely prejudged. Though there are minor
discrepancies in their evidence, such discrepancies are not
important which goes to the very root of the case.
19. Learned counsel for accused No.1 contended that
the officials of K.R. Mill and the police officers implicated
accused No.1 in this case, as he was raising voice against
the irregularities committed by the Mill officials in
awarding the tender, the Mill officials in collusion with
police officers have created a story regarding the incident
which took place in front of Siddique Nagar and foisted a
false case against accused No.1.
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20. In this regard, learned counsel for accused No.1
placed reliance upon the admission given by PW-9 in order
to establish that there was controversy regarding awarding
tender to him, but, PW-9 neither supported the case of the
prosecution nor supported the defence of accused No.1.
However, in the cross examination, he categorically denied
that accused Nos.1 to 5 and others took quarrel in the
premises of K.R. Mill. From the perusal of the material
available on record, it appears that the injuries caused to
PW-2 is not in dispute and from the admission of PW-11
Investigating Officer, it is clear that on 01.02.2011, there
was no galata in respect of distribution of scrap in K.R.
Mills and in that galata, accused No.1 was not present
alongwith scrap dealers, and accused No.1 has not hit
PW-2 with a paper cutter which was on the table of PW-2
and caused injuries to him. The contention of accused
No.1 as to the incident occurred in the premises of K.R.
Mill was denied by PW-11 and similar suggestions were
put to PW-1 and PW-2 and they too denied the same.
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Hence, there is no substance in the contention of learned
counsel for accused No.1.
21. Further, learned counsel contended that while
drawing the complaint, there was intervention of police
officials and hence there was delay in submitting FIR to
the Court and there was no explanation for the delay. In
the instant case, PWs-1 to 4 have clearly stated about the
manner in which the incident took place and since PW-2
was admitted to Columbia Asia Hospital on 01.02.2011, at
12.30 p.m., on the same day, FIR was lodged by PW-1
and it has reached the court at 7.00 p.m. on the same
day. Therefore, there is no question of delay in sending
FIR to the court. Further, PW-2 injured has disclosed
before the Doctor regarding the incident of assault which
occurred at Siddique Nagar when he was travelling in an
autorickshaw. These circumstances corroborate the
evidence of PWs-1 to 4 and support the prosecution
version regarding the incident.
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22. So far as contention of accused No.1 that the
police have released the cash of Rs.18,92,500/-, the same
was released after taking permission of the Magistrate,
who has endorsed at Ex-P4 that the police are permitted
to return the money after complying the provisions of
Cr.P.C. It is seen in Ex-P4 that as per the requisition made
by the police to the Magistrate to permit the police to
release the money on the ground that said money was
required for disbursing salaries of the employees of the
company, therefore the police have returned the cash to
PW-1 after taking permission of the Court. As the police
have released the cash in favour of PW-1, solely on this
basis, it cannot be said that there was collusion between
the police and the Mill officials.
23. It is the contention of the learned counsel for
accused No.1 that the prosecution has failed to examine
the driver of the autorickshaw or any independent witness
relating to the incident. PW-1 and 2 are employees of the
K.R. Mill and PW-2 is the injured witness. The testimony of
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an injured witness is accorded a special status in law. Such
a witness comes with a built in guarantee of his presence
on the scene of the crime and is unlikely to spare his
actual assailant in order to falsely implicate someone. The
evidence of injured eyewitness is corroborated by the
evidence of PW-1, PW-3 and PW-4 and their evidence is
cogent and believable and nothing has been elicited in
their cross examination so as to disbelieve their version.
24. Learned counsel for accused No.1 contended that
Investigating Officer has failed to collect the blood stained
samples of the mud from the spot of the incident. In that
case, it cannot be insisted as an inflexible rule that the IO
should take blood stained sample of mud from the spot of
the incident and to take such sample depends upon the
injury, place of injury, falling upon blood on the ground.
For the failure of the Investigating Officer to recover the
blood stained mud from the scene of occurrence, it is not
possible to infer that occurrence had not taken place at
the spot and therefore, the evidence of PWs-1 to 4 could
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not, therefore, be rejected as unreliable. Therefore, from
the evidence of PWs-1 to 4 and the medical evidence, it
establishes that the evidence of PW-13 and contents of
Ex-P10 wound certificate clearly establishes that the
prosecution has been able to prove that the incident or
robbery took place in the broad day light, accused No.1
caused injury to PW-2 with M.O.2 and snatched away his
bag and was caught red handed by PW-3 at the spot.
Hence, accused No.1 committed offence of robbery.
Further, at the time of committing robbery, accused No.1
used a deadly weapon- sword(chopper) and caused
grievous injury to PW-2 and thereby it attracted section
397 IPC.
25. Learned HCGP contended that the offence of
robbery is committed by accused No.1 in association with
accused Nos.2 to 5 and contended that at the scene of
offence, accused Nos.2 and 3 came on the motorcycle and
accused Nos.4 and 5 were sitting in the Maruti Esteem car,
it shows their involvement in this case. On perusal of the
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material available on record, so far as accused Nos.2 to 5
are concerned, they did not assault or snatch the cash bag
from PW-2. The prosecution has failed to attribute any
specific overt-acts against them or their very presence at
the crime scene does not establish the ingredient of
sections 395 and 397 IPC. Further, there is no
incriminating evidence against accused Nos.2 to 5 and
material on record are just vague statement, therefore,
the trial court rightly acquitted accused Nos.2 to 5 for the
offences charged.
26. From the perusal of the prosecution evidence, it
appears that none of the prosecution witnesses have
stated about the role played by accused Nos.2 to 5, their
involvement in the commission of the offence, particularly
meeting of minds and ingredients of sections 392 and 397
IPC are not forthcoming against accused Nos.2 to 5. There
may be evidence that accused Nos.2 and 3 came in a
motor cycle and accused No.1 was the second pillion rider,
but their actual involvement is not elicited from the mouth
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of the prosecution witnesses. Further, it is stated that
accused Nos.4 and 5 came in the Maruthi esteem car at
the spot, but none of the prosecution witnesses have
stated about this aspect. It shows that there is insufficient
evidence against accused Nos.2 to 5. Therefore, the trial
court has rightly acquitted accused Nos.2 to 5 for the
offences charged. Looking into any angle, the prosecution
has been able to prove its case beyond reasonable doubt
that accused No.1 committed the offence under sections
392 and 397 IPC and therefore, the trial court has rightly
convicted accused No.1 for the offences charged, for
which, no interference is called for. Hence, we pass the
following:-
ORDER
1. Crl.A.No.971/2016 filed by accused No.1 is
dismissed. His bail bonds stand cancelled and he is
directed to surrender before the trial court immediately to
serve the sentence. Trial court to issue conviction warrant
accordingly.
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2. Crl.A.No.1835/2016 filed by the State is
dismissed.
3. The judgment of conviction and sentence dated
27.05.2016 passed in S.C.No.64/2012 by learned III Addl.
Session Judge, Mysuru is confirmed.
4. The Registry is directed to send copy of this
judgment alongwith trial court records, forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
MN
