Karnataka High Court
Sri Yogesha vs State Of Karnataka on 18 April, 2024
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NC: 2024:KHC:15382-DB
CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA
CRIMINAL APPEAL NO. 775/2017 (A)
C/W
CRIMINAL APPEAL NO.103/2017 (C)
CRIMINAL APPEAL NO.105/2017 (C)
CRIMINAL APPEAL NO.777/2017 (C)
CRL.A.No.775/2017:
BETWEEN:
STATE OF KARNATAKA
BY SHANTHIGRAMA POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001. ...APPELLANT
Digitally signed (BY SRI.THEJESH P., HCGP)
by PRABHU
KUMARA
NAIKA AND:
Location: High
Court of 1. SRI.YOGESHA
Karnataka
SON OF CHELUVARAMAIAH
AGE 31 YEARS
NO.284/5, NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
ANCHE PALYA, BANGALORE
PERMANENT PLACE:
UJANI, HULIYURU DURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT - 572 130.
2. HANUMANTHA @ KOTHA
SON OF RANGAPPA
AGED 23 YEARS
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CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
TIPPENAHALLI
BANGALORE -562 163.
3. RAVI
SON OF SUBRAMANYACHARI
AGED 24 YEARS
CHOKKASANDRA
BAIRAVESHWARA NAGARA
NEAR PREETHI WATER SUPPLY
DODDA BIDARAKALLU
NAGASANDRA POST
BANGALORE - 560 073
4. NAGESHA
SON OF CHELUVARAMAIAH
AGED 29 YEARS
NO.284/5, NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
ANCHE PALYA
BANGALORE
PERMANENT PLACE:
UJANI, HULIYURU DURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572 130
5. VENKATESHA
SON OF KRISHNAPPA
AGED 31 YEARS
NO.283/5, BEHIND
ANJANEYASWAMY TEMPLE
ANCHE PALYA, BANGALORE - 560 073
6. KEMPARAJU
SON OF GOVINDAPPA
AGED 27 YEARS
GOPALAPPA BUILDING
BEHIND ANJANEYASWAMY TEMPLE
ANCHE PALYA
BANGALORE - 560 073 ...RESPONDENTS
(BY SRI PRATHEEP K C, ADVOCATE FOR R1, R3, R4, R5 & R6;
APPEAL AGAINST R2 IS ABATED V/C/O DATED 31.07.2023)
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CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1) AND
(3) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 05.01.2017 PASSED BY THE III ADDITIONAL
DISTRICT AND SESSIONS JUDGE, HASSAN IN S.C.NO.220/2012 FOR
THE OFFENCE PUNISHABLE UNDER SECTION 397 IPC.
CRL.A.No.103/2017:
BETWEEN:
1. SRI.YOGESHA
SON OF CHELUVARAMAIAH
AGED ABOUT 30 YEARS
R/O NO.284/5, NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
ANCHE PALYA, BANGALORE - 67
PERMANENT PLACE:
UJANI, HULIYURU DURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT - 56
2. SRI.HANUMANTHA @ KOTHA
SON OF RANGAPPA
AGED ABOUT 23 YEARS
R/AT NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
TIPPENAHALLI
BANGALORE - 56
3. VENKATESHA
SON OF KRISHNAPPA
AGED ABOUT 31 YEARS
R/AT NO.283/5, BEHIND
ANJANEYASWAMY TEMPLE
ANCHE PALYA, BANGALORE - 56 ...APPELLANTS
(BY SRI.PRATHEEP K C., ADVOCATE
APPEAL AGAINST A2 IS ABATED V/C/O DTD:31.07.2023)
AND:
STATE OF KARNATAKA
BY SHANTHIGRAMA POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 01 ...RESPONDENT
(BY SRI.THEJESH P. HCGP)
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CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 05.01.2017
PASSED BY THE III-ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN IN S.C.NO.220/2012 CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
395,506,347 OF IPC.
CRL.A.No.105/2017:
BETWEEN:
1. SRI. RAVI
S/O SUBRAMANYACHARI
AGED ABOUT 24 YEARS
R/O CHOKKA SANDRA
BAIRAVESHWARA NAGARA
NEAR PREETHI WATER SUPPLY
DODDA BIDARAKALLU
NAGASANDRA POST
BANGALORE - 98
2. SRI NAGESHA
S/O CHELUVARAMAIAH
AGED ABOUT 27 YEARS
R/AT NO.284/5, NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
ANCHE PALYA
BANGALORE-67
PERMANENT PLACE: UJANI
HULIYURU DURGA HOBLI
KUNIGAL TALUK
3. KEMPARAJU
S/O GOVINDAPPA
AGED ABOUT 27 YEARS
R/AT GOPALAPPA BUILDING
BEHIND ANJANEYASWAMY TEMPLE
ANCHE PALYA
BANGALORE - 78 ...APPELLANTS
(BY SRI.PRATHEEP K C, ADVOCATE)
AND:
STATE OF KARNATAKA
BY SHANTHIGRAMA POLICE STATION
REP. BY ITS STATE PUBLIC PROSECUTOR
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CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
HIGH COURT OF KARNATAKA
BANGALORE - 01 ...RESPONDENT
(BY SRI.THEJESH P., HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT DATED 05.01.2017
PASSED BY THE III-ADDITIONAL DISTRICT AND SESSIONS JUDGE,
HASSAN IN S.C.NO.220/2012 CONVICTING THE APPELLANTS/
ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
395,506,347 OF IPC.
CRL.A.No.777/2017:
BETWEEN:
STATE OF KARNATAKA
BY SHANTHIGRAMA POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU-560 001 ...APPELLANT
(BY SRI.THEJESH. P., HCGP)
AND:
1. YOGESHA
S/O CHELUVARAMAIAH
AGE 31 YEARS
NO.284/5, NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
ANCHE PALYA, BANGALORE
PERMANENT PLACE
UJANI, HULIYURU DURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572 130
2. HANUMANTHA @ KOTHA
S/O RANGAPPA
AGED 23 YEARS
NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
TIPPENAHALLI
BANGALORE-562 163
3. RAVI
S/O SUBRAMANYACHARI
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CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
AGED 24 YEARS
CHOKKASANDRA
BAIRAVESHWARA NAGARA
NEAR PREETHI WATER SUPPLY
DODDA BIDARAKALLU
NAGASANDRA POST
BANGALORE-560 073.
4. NAGESHA
AGED 29 YEARS
S/O CHELUVARAMAIAH
NO.284/5, NATARAJA BUILDING
NEAR ANJANEYASWAMY TEMPLE
ANCHE PALYA
BANGALORE
PERMANENT PLACE
UJANI, HULIYURU DURGA HOBLI
KUNIGAL TALUK
TUMKUR DISTRICT-572 130
5. VENKATESHA
S/O KRISHNAPPA
AGED 31 YEARS
NO.283/5, BEHIND ANJANEYASWAMY TEMPLE
ANCHE PALYA
BANGALORE-560 073.
6. KEMPARAJU
AGED 27 YEARS
S/O GOVINDAPPA
GOPALAPPA BUILDING
BEHIND ANJANEYASWAMY TEMPLE
ANCHE PALYA, BANGALORE-560 073 ...RESPONDENTS
(BY SRI. PRATHEEP K C, ADVOCATE FOR R1,R3 TO R6;
APPEAL AGAINST R2 ABATED V/O/DATED 31.07.2023)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 377 OF
CR.P.C PRAYING MODIFY THE ORDER OF SENTENCE IMPOSED ON
05.01.2017 PASSED BY THE III ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HASSAN IN S.C.NO.220/2012 AND IMPOSE
APPROPRIATE AND ADEQUATE SENTENCE AGAINST THE
RESPONDENTS/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER
SECTION 395 OF IPC.
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CRL.A No.775/2017
C/W CRL.A No.103/2017
CRL.A No.105/2017
CRL.A No.777/2017
THESE APPEALS COMING ON FOR FURTHER HEARING, THIS
DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
JUDGMENT
The above appeals are filed by accused Nos.1,2 and 4 to 7
in S.C.No.220/2012 on the file of the III-Additional District and
Sessions Judge, Hassan challenging their conviction and
sentence and by the State questioning the adequacy of
sentence and acquittal of the accused for the offence punishable
under Section 397 IPC in the same case.
2. The particulars of the appeal and corresponding
parties are as follows:
Crl.A. No. Appeal by Prayer
Seeking conviction for
775/2017 State
Section 397 IPC.
Accused Nos.1,2
103/2017 Seeking acquittal
and 6
Accused Nos.4,5
105/2017 Seeking acquittal
and 7
Questioning adequacy
777/2017 State
of sentence.
3. Accused Nos.1, 2 and 4 to 7 were tried in
S.C.No.220/2012 by the Trial Court for the charges for the
offences punishable under Sections 395, 397, 347 IPC on the
basis of the charge sheet filed by Circle Inspector of Police,
Hassan Rural Police circle in Crime No.155/2011 of
Shanthigrama police station. Accused No.3 in the said case was
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found to be juvenile and he was sent for enquiry to the Juvenile
Justice Board under the provisions of Juvenile Justice (Care and
Protection of Children) Act, 2015. Crime No.155/2011 was
registered initially against unknown persons on the basis of the
complaint of PW.2-J.J Anilkumar.
4. The case of the prosecution in brief is as follows:
(i) That on 18.09.2011 at 10:00 p.m. when PW.2 was
waiting in Sakaleshpura bus-stand to go to Bengaluru, he found
Tempo Traveller bearing registration No.KA-02-AD-6696 in
bus-stand. Accused representing that they will give him drop to
Hassan to enable him to go to Bengaluru, got him boarded in
the said Tempo Traveller at 10:45 p.m. When the vehicle was
proceeding on N.H-48, accused Nos.3 and 4 threatened him to
the point knife, accused Nos.2 and 6 gripped the hands and legs
of PW.2, accused Nos.5 and 7 gouged the mouth of PW.2 with a
towel and tied his hand and legs with jute thread. Accused No.2
robbed one watch and one gold finger ring from PW.2. Accused
No.5 robbed cash of Rs.13,000/- and mobile handset of PW.2.
Accused No.4 robbed PW.2 of his gold neck chain. Accused No.7
robbed PW.2 of his mobile phone. When vehicle was proceeding
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near Tendalli cross at 11:00 p.m., accused pushed him out of
the vehicle and sped away.
(ii) PW.2 got himself untied thread and towel and
reached the road, from there, he approached Hassan Rural
police. Hassan Rural police intern took him to Shanthigrama
Police Station. In Shanthigrama Police Station PW.2 filed
complaint as per Ex.P2 before PW.13-PSI of Shanthigrama
Police Station. On the basis of the complaint, he registered FIR
as per Ex.P22 against unknown persons and he handed over the
further investigation to PW.12-CPI of Hassan Rural Circle.
(iii) PW.12 deputed PWs.8 to 11 and 13 to 15 to nab
accused. On tracking IMEI number of mobile handset of the
victim they apprehended accused No.5 in Anchepalya. On the
basis of the information furnished to him, they apprehended
accused No.2 to 4, 6 and 7. Since accused No.3/the child in
conflict with law he was sent to Juvenile Justice Board and the
other accused were arrested. On the basis of the voluntary
statements of the accused at their instance robbed, phone,
watch, gold chain were recovered and knife used in the
commission of offence were recovered under mahazar Exs.P9 to
11. PW.12 on completing the investigation filed charge sheet.
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5. The Trial Court on hearing the parties, framed
charges against accused Nos.1,2 and 4 to 7 for the offences
punishable under Sections 395, 397, 347 IPC. As the accused
denied the charge, trial was conducted.
6. In support of the case of the prosecution, PWs.1 to
15 were examined. Exs.P1 to 23 and MOs.1 to 8 were marked.
Accused Nos.1,2 and 4 to 7 after their examination under
Section 313 Cr.P.C did not lead defence evidence.
7. The Trial Court on hearing the parties by the
impugned judgment and order, convicted the aforesaid accused
for the charges punishable under Sections 395, 347, 506 IPC.
Further the trial Court sentenced the said accused for various
terms of imprisonment and fine as follows:
Sl. Convicted Sentence Fine
No. for Offences amount in
U/s Rs.
1 395 IPC RI of 2 years 5,000/-
2 347 IPC RI of 1 year 1,000/-
3 506 IPC RI of 1 year 1,000/-
8. In the above appeals the State has challenged
acquittal of the accused for the offence punishable under
Section 397 IPC and adequacy of sentence awarded. The
aforesaid accused have questioned the judgment and order of
their conviction and sentence.
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9. The Trial Court held that charges against accused
were proved by the evidence of PW.2 the victim and the same
was corroborated by the evidence of other witnesses. The Trial
Court further held that though there were some discrepancies
in the evidence, they were not material and witnesses to the
seizure of incriminating articles i.e., MOs.3 to 8 turning hostile
did not dent the evidence of PW.2 or identification of the
accused by him.
Submissions of Sri Pratheep. K.C, learned Counsel for accused
Nos.1, 2 and 4 to 7:
10. PW.2 initially did not implicate accused No.7.
According to him only, soon after boarding the vehicle he fell
asleep, he woke up only when was assaulted. Soon thereafter,
PW.2 was blindfolded. He claims that police showed accused
Nos.1,2 and 4 to 7 in the police station saying that they were
culprits. PW.2 identifying the accused was highly doubtful.
Though the accused were allegedly tracked on the basis of IMEI
number of phone MO.7, the same did not match with the
description of cell-phone in the complaint or in the deposition of
PW.2. The evidence of PWs.8 to 11, 14 and 15 about they
apprehending accused was highly doubtful. The accused were
strangers to PW.2. Absolutely no identification particular were
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given either in the complaint or during the investigation.
Therefore, identity of accused or their involvement in the case
was wholly unfounded. PWs.3 and 6 the alleged panchas to
seizure under Exs.P9 to 11 did not support those proceedings.
11. The Trial Court committed grave error in
appreciating the evidence for convicting the accused. The
judgment and order of conviction and sentence is contrary to
the settled legal propositions. No test identification parade was
conducted. Therefore, the impugned judgment and order of
conviction and sentence is liable to be set aside and the State
appeal has to be dismissed. In support of his submission, he
relies on the following judgments:
i. Amrik Singh Vs. State of Punjab1
ii. Ramesh Vs. State of Karnataka2
iii. Jafar Vs. State of Kerala3
Submissions of Sri Tejesh.P, learned HCGP:
12. PW.2 the injured eyewitness categorically identified
accused Nos.1,2 and 4 to 7. He had traveled with them for
more than 45 minutes. Therefore, he had sufficient opportunity
to identify them. There was recovery of robbed articles at the
(2022) 9 SCC 402
(2009) 15 SCC 35
2024 SCC Online SC 310
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instance of the accused. That circumstance was not explained
by accused. The defect in the investigation, if any, was not
material and that did not impeach the evidence of PW.2. The
trial Court on judicious appreciation of the evidence has
convicted and sentenced the accused. The Trial Court failed to
address itself to the charge for the offence punishable under
Section 397 IPC. Having regard to the weapons deployed and
acts of the accused, the Trial Court was not justified in
acquitting the accused for the offence punishable under Section
397 IPC merely on the ground that no grievous hurt was
caused. Therefore, impugned judgment and order of conviction
needs to be maintained. However, sentence imposed is
inadequate and contrary to the spirit of Section 397 IPC.
Therefore, the order of sentence needs to be modified imposing
higher period of sentence.
13. On considering the submissions of both side and
examining the materials on record, the questions that arise for
the determination of the Court are:
" (i) Whether the impugned judgment and
order of conviction for the offence punishable under
Sections 395, 347 and 506 of IPC is sustainable?
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(ii) Whether the trial Court was justified in
acquitting the accused for the charge under Sections
397 of IPC?
(iii) Whether the impugned order of sentence
is inadequate?"
Analysis
14. According to the prosecution, the accused made the
victim PW-2 to board the Tempo Traveller vehicle in the guise of
giving him drop and during the course of journey, he was
assaulted with MOs-3 and 4 the knives causing him the injuries
and robbed him of MOs-5 to 8 the gold chain, gold ring, mobile
handset, watch, cash of Rs.13,000/- and another mobile phone
and ultimately pushed him out of the vehicle and sped away.
During the course of the robbery, he attempted to commit him
grievous hurt.
15. The case of the prosecution was based on:
(i) the evidence of PW-2 the victim;
(ii) the evidence of PW-1 the Doctor who treated
PW-2 soon after the incident;
(iii) the evidence of PW-4 the registered owner of
Tempo Traveller bearing No.KA-02/AD-6696;
(iv) the seizure of MOs-3 to 8 under the mahazar
Exs.P9, P10 and P11 from accused Nos.2, 4 and
5 in the presence of PWs-3 and 5;
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(v) the circumstance of seizure of MOs-1 and 2
under the mahazar Exs.P3 and P4 and pancha
witnesses PWs-5 and 6;
(vi) the evidence of PW-7 the owner of the vehicle
which was hired by the Police for nabbing the
accused;
(vii) the evidence of PWs-8 to 11, 14 and 15 who
allegedly apprehended the accused;
(viii) the evidence of PW-13 the PSI who registered
the FIR and PW-12 the Investigating Officer.
16. The evidence of PW-2 and PW-1 coupled with wound
certificate Ex.P1, complaint Ex.P2 and FIR Ex.P23 show that
PW-2 was taken to Primary Health Centre, Shanthigrama on
19.09.2011 at 12:45 pm with the history of assault on
18.09.2011 between 10:30 and 11:30 pm. Ex.P1 and evidence
of PW-1 further show that PW-2 was accompanied to the
hospital by the Police Constable Sri. Kantharaj. As per the
evidence of PW-1 and Ex.P1, PW-2 had suffered the following
injuries:
(i) Blunt injury to left eye with contusion and
tenderness around eye.
(ii) Multiple scratch marks over anterior neck running
from left side of front of neck and upward and
backward towards right side of neck.
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17. According to PW-2, when the incident took place, it
was 09:30 p.m., he went to Hassan Rural Police Station by
11:00 p.m. and then he was taken to Shanthigrama Police
Station. But, no Police of Hassan Police Station was examined
to show that the victim had gone to Hassan Rural Police Station
first and then he was taken to Shanthigrama Police Station. As
per Ex.P23 the FIR, the complaint was allegedly filed at 03:00
am on 19.09.2011, but the FIR was delivered to the Court at
09:15 am. To explain the delay in delivering the FIR, no
evidence was adduced. As per the complaint, the assailants
were only 3 persons. However, subsequently in all, 7 persons
were implicated in the case. If the complaint was filed at 03:00
am, why there was delay of around 10 hours in taking PW-1 for
medical examination was also not explained.
18. In complaint, PW-2 has clearly stated that
assailants/culprits were strangers to him. He has not given any
identification particulars like age or physical features of the
assailants. The evidence of PW-2 shows that at the time of the
offence, he was blind-folded by using towel MO-2. PW-2 in his
chief examination itself states that soon after he boarding the
Tempo Traveller, he fell asleep and he woke up only when
somebody hit him. He says that when he opened his eyes, he
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found 5 to 6 persons who had screened their mouths with
clothes. In the chief examination, he states that he saw the
accused in the light which was inside the vehicle. However, in
the cross-examination, he states that on 17.02.2012, Police
phoned him saying that they have arrested the persons who
kidnapped him and called him for identification, accordingly he
went to the Police Station and there were 6 persons, he
identified them. In the cross-examination by counsel for
accused Nos.1, 5 and 7, though he denied the suggestion that
while the Tempo Traveller was moving, the lights were off, he
states that there was a dim light. He was not able to identify
the driver of the vehicle. He says he did not notice the other
persons who boarded the vehicle along with him. After the
vehicle passing 2-3 kilometers, on he boarding the same, he fell
asleep and he woke up only when he was hit by the assailants.
He says he could not identify who assaulted him, but one
among six had assaulted him. Therefore, it cannot be said that
he had sufficient time and opportunity to see the assailants and
to identify them. His evidence clearly shows that he identified
the accused in the Police Station at the instance of the Police.
19. The Hon'ble Supreme Court in the judgments in
Amrik Singh, Ramesh and Jafar's cases referred to supra,
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referring to its several earlier precedents, held that the
evidence of identification of the accused person merely at the
trial for the first time is from its very nature inherently of a
weak character, the purpose of a prior test identification, is to
test and strengthen the trustworthiness of that evidence and
rule of prudence requires corroboration to the sworn testimony
of the witness who identifies the accused who were strangers to
him earlier. Therefore, test identification proceedings are
required. It was further held that the test identification parades
belong to the stage of investigation and much evidentiary value
cannot be attached to the identification of the accused in Court
where identifying witness is a total stranger who had just a
fleeting glimpse of the person identified or who had no
particular reason to remember the person concerned. It was
further held that only one identification cannot eliminate the
possibility of pointing out being purely through chance,
therefore the same is insufficient to establish the charge. In the
present case also, the accused were not known to PW-2 earlier.
He had only a fleeting glimpse of his assailants. He had not
even given any identification particulars like age, physical
features or clothes of the accused. He claims to have identified
the accused on Police telling him that they have arrested the
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culprits. Therefore, the said identification was at the behest of
the Police. That does not satisfy the test laid down by the
Hon'ble Supreme Court in the above referred judgments.
20. Even the theory of Police apprehending accused
Nos.2, 4 to 7 was not free from doubts. According to PWs-14
and 15, PW-12 deputed them to apprehend the accused. PWs-
8 to 11 were the Police in the said team. According to
prosecution, first they tracked accused No.5 on the basis of the
IMEI number of MO-7 the robbed mobile phone. According to
them, the other mobile phones robbed were destroyed by the
accused, MO-7 was seized under the mahazar Ex.P9 in the
presence of PWs-3 and 6. The mobile phone seized under Ex.P9
is Nokia 2700 bearing IMEI No.35360/04/675083/1. In Ex.P2
the complaint, the mobile phone model or IMEI number were
not stated. PW-2 in his deposition states that the robbed
mobiles were Nokia set 4233 and 3210. Description of the said
mobile numbers do not match with the description of MO-7
which was allegedly seized at Ex.P9. Though they were treated
as hostile, even in the cross-examination, nothing was elicited
to show that they were deposing falsely.
21. PW-3 in the chief examination states that Police
took his signature on Exs.P9 to P13 in the Police Station saying
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that they have caught some thieves, as there is no space in the
Police Station, they have to send them to jail. He said no
mahazar was conducted. In the evidence of PW-6, it was not
even elicited that he has subscribed his signature to Ex.P9 or
anything was seized in his presence. According to PW-12 the
Investigating Officer, MOs-6 and 8 the watch and finger ring
were seized under mahazar at Ex.P10 from accused No.2 in the
presence of PWs-3 and 6. The gold chain MO-5, knives MOs-3
and 4 were seized at the instance of accused No.4 under
mahazar Ex.P11 and mobile phone MO-7 was seized under
mahazar Ex.P9 in the presence of PWs-3 and 6. But they did not
support those proceedings. Accused Nos.2 and 4 to 7 were
allegedly arrested on 15.02.2012, but why there was such a
delay in the alleged seizure of MOs-3 to 8 was not explained.
When the seizure of MO-7 fails and when the description of MO-
7 does not match with the complainant's version, the Police
tracing the accused based on the IMEI number of MO-7 the
robbed mobile itself falls to the ground. Consequently, the
other recoveries also fail.
22. The evidence of PWs-14 and 15 was also not
consistent regarding the theory of apprehension of the accused.
According to PWs-8 to 11, 14 and 15 and the Investigating
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Officer, the Police hired Tata Sumo of PW-7 to nab the accused
and they came to Bengaluru and nabbed accused No.2 and 4 to
7 on 15.02.2012. PW-7 only says that Police had hired his
vehicle to nab the accused. The said evidence is of no help to
the prosecution to connect the accused to the crime. PW-14
says that they went to Bengaluru and stayed in the Police Guest
House near Garuda Mall, whereas PW-15 says that they went
and stayed in a private lodge and all of them stayed in the
same lodge by booking 2 rooms. PW-14 could not even identify
the accused apprehended by them. The evidence of PWs-8 to
11 were also of no use for identification of the accused or to
support the apprehension on the basis of IMEI number of MO-7,
etc.
23. The trial Court without noticing such inherent and
material inconsistencies in the prosecution evidence which go to
the root of the matter convicted the accused on the ground that
PW-2 the injured witness in a fleeting glimpse, saw the
assailant. The Investigating Officer ought to have conducted
the test identification parade for identifying the accused through
PW-2. Therefore, this matter is fully covered by the judgments
of the Hon'ble Supreme Court in Amrik Singh, Ramesh and
Jafar's cases referred to supra. It may be true that PW-2 was
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robbed and injured, but that sympathy itself cannot take the
place of proof. The liberty of the accused is as important as the
cause of the victim and both to be balanced. If a person is
deprived of his liberty without required proof of his involvement
in the crime, the same defeats ends of justice. That's why it is
said that prosecution has to prove the charges beyond all
reasonable doubts.
24. In the present case, the identity of the accused, the
circumstance of recovery of the incriminating materials were
not proved by legally acceptable evidence. Therefore, the
impugned judgment and order suffers the test of legal
sustainability and the same is liable to be set aside.
Consequently, the State appeals also fail. Hence, the following:
ORDER
i) Crl.A.No.775/2017 and Crl.A.No.777/2017 are
hereby dismissed.
ii) Crl.A.No.103/2017 and Crl.A.No.105/2017 are
hereby allowed.
iii) The impugned judgment and order of conviction
and sentence passed by the III Additional
District and Sessions Judge, Hassan in
S.C.No.220/2012 against accused Nos.1, 2 and
4 to 7 is hereby set aside.
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iv) The accused are acquitted of the charges for the
offences punishable under Sections 395, 506
and 347 of IPC.
v) Accused No.6 shall be set at liberty forthwith, if
his detention is not required in any other case.
vi) Bail bonds of accused Nos.1 and 4 to 7 shall
stand discharged.
vii) The fine amount deposited, if any, by accused
Nos.1 and 4 to 7 shall be refunded to them and
the fine amount deposited by accused No.2, if
any, shall be refunded to his legal
representatives.
viii) The order of the Trial Court with regard to
disposal of the properties is maintained.
ix) Communicate copy of this order to the Trial
Court and the concerned prison forthwith.
Sd/-
JUDGE
Sd/-
JUDGE
PKN,PA,KSR
