Karnataka High Court
Mr B G Ramu vs State Of Karnataka on 19 March, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 734 of 2012
C/W CRL.A No. 793 of 2012
CRL.A No. 1177 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
CRIMINAL APPEAL NO. 734 OF 2012
C/W
CRIMINAL APPEAL NO. 793 OF 2012
CRIMINAL APPEAL NO. 1177 OF 2012
IN CRL.A NO. 734/2012:
BETWEEN:
1. M. VIJAY
S/O MOHANKUMAR
DIPLOMA STUDENT
R/O LAKSHMIPURA
GOLLARAHATTI
TIPTUR TALUK
TUMAKURU DISTRICT.
...APPELLANT
Digitally signed (BY SRI. G.S.BALAGANGADHAR, ADVOCATE)
by DEVIKA M AND:
Location: HIGH
COURT OF 1. THE STATE OF KARNATAKA
KARNATAKA BY THE POLICE OF HULIYAR POLICE STATION
TUMAKURU DISTRICT.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE ORDER OF
CONVICTION AND SENTENCES PASSED BY THE P.O., F.T.C.,
TIPTUR BY THE JUDGEMENT AND ORDER DATED 29.06.2012 IN
S.C.NO.63/2009 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCE P/U/S 395 OF IPC.
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CRL.A No. 734 of 2012
C/W CRL.A No. 793 of 2012
CRL.A No. 1177 of 2012
IN CRL.A NO. 793/2012:
BETWEEN:
1. MR. B.MAHESH
S/O BASAVARAJA
AGED ABOUT 21 YEARS
R/AT NO.216, KONANAKUNTE CROSS
KANAKAPURA ROAD
BANGALORE.
2. MR. B.R.KUMARA
S/O RAMEGOWDA
AGED ABOUT 24 YEARS
R/OF ASALU BOMMANAHALLI
SATHANUR HOBLI
KANAKAPURA TALUK.
RAMANAGARA DISTRICT
PRESENTLY AT C/O BUILDER RAVI
'BESIDE DEVEGOWDA'S HOUSE
PADMANABANAGARA, BANGALORE.
...APPELLANTS
(BY SRI. K.J.GOPI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY HULIYAR POLICE
REP. BY THE STATE PUBLIC PROSECUTOR
HIGH COURTS COMPLEX
BANGALORE.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER PASSED ON 29.06.2012 BY THE P.O., F.T.C.,
TIPTUR IN S.C.NO.63/2009 AND 263/2011 - CONVICTING
THE APPELLANTS/ACCUSED FOR THE OFFENCE P/U/S 395
OF IPC.
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CRL.A No. 734 of 2012
C/W CRL.A No. 793 of 2012
CRL.A No. 1177 of 2012
IN CRL.A NO. 1177/2012:
BETWEEN:
1. MR. B.G. RAMU
S/O GOPALAIAH
AGED ABOUT 20 YEARS
R/OF BOMMDANAHALLI VILLAGE
KANAKAPURA TALUK
BANGALORE.
PRESENTLY AT
KONANAKUNTE CROSS
VENKATAREDDY LAT.
BANGALORE.
2. MR. M.KUMARA @ MASTANA
S/O MUGAIAH
AGED ABOUT 22 YEARS
R/OF YEDDAMARANAHALLI
KANAKAPURA TALUK
RAMANAGARA DISTRICT
PRESENTLY AT
KONANAKUNTE CROSS,
KANAKAPURA ROAD,
BANGALORE.
...APPELLANTS
(BY SRI. K.J.GOPI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY HULIYAR POLICE,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURTS COMPLEX,
BANGALORE.
...RESPONDENT
(BY SRI. CHANNAPPA ERAPPA, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
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CRL.A No. 734 of 2012
C/W CRL.A No. 793 of 2012
CRL.A No. 1177 of 2012
374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
AND ORDER DATED 29.06.2012 PASSED BY THE P.O.,
F.T.C., TIPTUR IN S.C.NO.63/2009 AND S.C.NO.263/2011 -
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
P/U/S 395 OF IPC.
THESE APPEALS COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellants and learned
HCGP for the respondent-State.
2. Crl.A.No.734/2012 is filed by the accused No.1,
Crl.A.No.793/2012 is filed by accused Nos.3 and 6 and
Crl.A.No.1177/2012 is filed accused Nos.2 and 4 challenging
the judgment of conviction and imposing sentence for a period
of five years with fine of Rs.5,000/- each for the offence under
Section 395 of IPC, in default of payment of fine, to undergo
simple imprisonment for a period of three months and also
invoked Section 428 Cr.P.C. that accused Nos.1, 2, 3, 4 and 6
are entitled for set off for the period they have undergone in
judicial custody.
3. The factual matrix of the case of the prosecution
before the Trial Court is that on 18.12.2008 at 10.00 p.m., near
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Bellara Village, Huliyar Hobli, Chikkanayakanahalli Taluk at
Sira-Huliyar Road, within the jurisdiction of Huliyar Police
Station, the accused Nos.1 to 4 and 6 along with absconded
accused Nos.5 and 7 have committed dacoity i.e., when C.W.1
was driving the lorry bearing No.KA-44-1995 belonging to
Purushottama from Sira side towards Huliyar, the accused
Nos.1 to 4 and 6 along with absconded accused Nos.5 and 7
threatened C.W.1 with knife and snatched Rs.16,500/- and
voluntarily caused hurt to C.W.1 with razor and thereby
committed offence. The Police investigated the case based on
the complaint given by C.W.1 and filed the charge-sheet
against all the accused persons and matter was assigned to
FTC-I Tumakuru, and after FTC-IV Court is transferred to
Tiputur, this case is transferred to Tiptur.
4. Having secured the accused, the accused did not
plead guilty and claimed for trial and accused Nos.5 and 7 were
not secured and split-up case was registered against both of
them. Hence, accused Nos.1, 2 to 4 and 6 have faced trial. The
prosecution in order to prove the case examined the witnesses
as P.Ws.1 to 14 and marked the documents as Exs.P1 to P16
and marked M.Os.1 to 6 and accused was subjected to 313
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statement and not led any evidence. The Trial Court having
considered evidence of prosecution, particularly P.Ws.1, 3, 8 to
4 and 14 comes to the conclusion that nothing is elicited from
the mouth of these witnesses and merely because independent
mahazar witnesses have not supported the prosecution version,
the evidence of other witnesses cannot be thrown away and
comes to the conclusion that even after exercising great care
and caution, as already discussed above, no material
discrepancy was elicited from the evidence of P.Ws.1, 3, 8 to
11 and 14. Their evidence clearly establishes that accused
Nos.1 to 4 and 6 along with absconded accused were caught on
22.12.2008 and the same is sufficient to convict the accused
persons and convicted the accused persons having considered
the evidence of prosecution witnesses.
5. Learned counsel for the appellant in
Crl.A.No.734/2012 would vehemently contend that, except the
evidence of P.W.1 and P.W.11, no other evidence before the
Court. Learned counsel would contend that even P.W.1 also
turned hostile and he could not able to identify any of the
accused persons. Learned counsel also brought to notice of
this Court that P.W.11 only identified two accused persons and
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P.W.2 is mahazar witness and P.W.3 is seizure mahazar witness
and all of them have turned hostile. The Trial Court considered
the evidence of C.W.1 and that too, when suggestion was made
to C.W.1 that for the first time they are seeing the accused
persons, he did not give any reply that he had seen the
accused person and even C.W.1 was not able to identify the
accused and the said suggestion ought not to have been relied
upon by the Trial Court. Even in the cross-examination after
one month, when C.W.1 was recalled, the same was relied
upon and owner of the vehicle was not examined in which
C.W.1 was working as driver and it is the case of the
prosecution that Tata Sumo was used for committing offence.
Though it is contended that documents are collected, but owner
of the Tata Sumo was not examined before the Trial Court.
Learned counsel would contend that answer elicited from
P.W.14, who is also Investigating Officer is not credible and
committed error in believing his evidence and the Court has to
take note of the fact that accused No.1 was in custody for a
period of 8 months 26 days during the time of trial as well as
he was there in jail after conviction.
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6. Learned counsel for the appellants in other two
connected appeals would contend that he would not reiterate
the submissions made by learned counsel for the appellant in
Crl.A.No.734/2012 appearing on behalf of accused No.1, but he
would contend that they relied upon the evidence of P.Ws.1 and
11 and would vehemently contend that P.W.2 is the person who
witnessed the accused persons through the light of the vehicle
and the incident has taken place in the night at 10.00 p.m.
Learned counsel would vehemently contend that when both the
witnesses have not identified the accused, the Trial Court ought
not to have relied upon the prosecution material for convicting
the accused. Learned counsel would contend that no Test
Identification Parade was conducted, since both P.Ws.1 and 11
were not knowing the accused persons prior to the incident and
they were not known to each other earlier and that they are
strangers, Investigation Officer ought to have conducted Test
Identification Parade. Learned counsel also would vehemently
contend that even seizure mahazar was conducted in the
presence of P.Ws.1 and P.W.11 and Investigating Officer has
not property assessed the fact as to vehicles belongs to whom
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and when there is a weak piece of material on record, the Trial
Court ought not to have relied upon the same.
7. Learned counsel for the appellant in
Crl.A.No.734/2012 in support of his argument with regard to
suggestion made to P.W.1 by the accused is concerned relied
upon the judgment in KOLI TRIKAM JIVRAJ AND ANOTHER
VS. THE STATE OF GUJARAT reported in AIR 1969
GUJARAT 69, wherein the Apex Court held that when
suggestions put in cross-examination are no evidence at all
against the accused and on the basis of such suggestions no
inference can be drawn against the accused that he admitted
the facts referred to in the suggestions. It is possible that in
putting suggestions the lawyer of the accused, if he thinks fit
and proper, may not put the entire case of the accused in the
cross-examination of a prosecution witness. Therefore, the
accused is entitled to the benefit of the plea set up by the
lawyer but it cannot be said that the plea or defence which his
lawyer puts forward must bind the accused.
8. The counsel also in support of his argument relied
upon the judgment of Madhya Pradesh in SAKARIYA VS.
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STATE OF M.P. reported in 1991 CRI.L.J.1925, wherein
Madhya Pradesh High Court held that, defence-statement of
accused containing plain denial and false implication,
subsequent suggestion by defence lawyer to prosecutrix about
consent on her part, does not amount to admission that
accused was guilty.
9. Learned counsel for the appellants in
Crl.A.No.793/2012 also relied upon the judgment in
BASAVARAJ @ BASYA VS. STATE OF KARNATAKA reported
in 2019 (2) CRIMES 371 (SC), particularly the counsel
concentrated with regard to identification of the appellant-
accused satisfactorily established, recovery of weapon at the
instance of the accused also established, evidence corroborated
by medical evidence, conviction is justified. Learned counsel
would contend that in the case on hand, even though recovery
was made in terms of Ex.P5-seizure mahazar, witnesses have
turned hostile and recovery is not proved.
10. The counsel also relied upon the judgment in
STATE OF RAJASTHAN VS. TALEVAR & ANR. reported in
2011 (3) Crimes 61 (SC), wherein the Apex Court held that
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recovery on the disclosure statements of either of the
respondents/accused persons not in close proximity of incident,
moreover, the materials recovered could have been passed
from one person to another without any difficulty, no
presumption can be drawn against the accused.
11. The counsel also in support of his argument relied
upon the judgment in MOHD. IQBAL M. SHAIKH & ORS. VS.
STATE OF MAHARASHTRA reported in 1998 (2) CRIMES
106 (SC), wherein the Apex Court held that delay in
examination of eye-witnesses, not satisfactorily explained, Test
Identification Parade not held to corroborate substantive
evidence, delay in arresting accused persons even though
identified much earlier. Hence, in the absence of Test
Identification Parade, there is no incriminating evidence against
the accused persons.
12. The counsel also relied upon the judgment in
MOHANLAL GANGARAM GEHANI VS. STATE OF
MAHARASHTRA reported in 1982 SCC (CRI) 334. In this
judgment also, the Apex Court relies upon Test Identification
Parade, testimony of a witness who identified the accused for
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the first time in Court without knowing him before, in the
absence of any T.I. Parade, held, would be valueless and
unreliable.
13. The counsel also relied upon the judgment of
Bombay High Court in RAKESH GOPAL SHETTY & ANOTHER
VS. STATE OF MAHARASHTRA reported in 2013 (4)
CRIMES 166 (BOM.), wherein the Court held that the accused
was identified in the Court, the truth complainant was not
called upon by the Investigating Officer to identify the accused
at the test identification parade besides pacifies the statement
of accused that no proper opportunity to see faces of the
accused persons. Hence, evidence of complainant is of no use
to convict the accused persons to crime.
14. The counsel also relied upon the judgment of Delhi
High Court in DHAN BAHADUR VS. STATE reported in 2008
(3) CRIMES 666 (DEL.) and contend that identification of
accused during trial without holding test identification parade
was valueless, witnesses could not be said to be reliable and
conviction could not be set sustained.
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15. Per contra, learned High Court Government Pleader
for the respondent-State would contend that Ex.P10 clearly
disclose that he had suffered injuries i.e., wound certificate and
case of P.W.1 and P.W.11 is that at the time of committing the
offence inflicted injury with razor on the neck of P.W.1. He
would contend that Doctor has been examined as P.W.12
before the Trial Court with regard to nature of injury is
concerned and specific case of P.W.1 and P.W.11 is that all the
accused persons came in Tata Sumo and caused obstruction to
the vehicle by parking vehicle in front of their vehicle and all of
them climbed the vehicle on the side of P.W.1 and P.W.11 and
when P.W.11 showed his pocket that he is not having money,
he was made to alight from the vehicle. P.W.11 categorically
says that they inflicted injury on P.W.1 and took him and their
evidence is consistent and corroborates with each other. The
Trial Court in detail considered the evidence on record and
rightly convicted the accused persons and it does not require
interference of this Court. He would contend that even amount
was recovered at the instance of accused persons, particularly
the amount which was robbed from P.W.1.
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16. Having heard learned counsel for the appellants and
learned High Court Government Pleader for the respondent-
State and also considering the material on record and also the
principles laid down in the judgments referred by learned
counsel for the appellants, the points that would arise for
consideration of this Court are:
(1) Whether the Trial Court committed an error
in convicting the appellants/accused for the
offence under Section 395 IPC and whether it
requires interference?
(2) What order?
Point No.(1)
17. Having heard respective learned counsel for the
appellants and learned High Court Government Pleader for the
respondent-State and also taking note of the material on
record, the case of the prosecution is that on 18.12.2008 at
10.00 p.m., accused persons came in the vehicle and caused
obstruction to P.W.1 and P.W.11, who were proceeding in the
lorry towards Huliyar Hobli and threatened P.W.1 with knife and
snatched Rs.16,500/- and voluntarily caused injury. Having
perused the material on record, particularly the evidence of
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prosecution witnesses, though the prosecution examined
P.Ws.1 to 14, the relevant witness P.Ws.1, 11 and 14 and other
witnesses have not supported the case of the prosecution with
regard to the mahazar as well as seizure mahazar and only
Court has to take note of material on record whether evidence
of P.W.1 is credible to convict the accused persons.
18. No doubt, P.Ws.1 and 11 reiterate with regard to
the incident, when the accused persons came in Tata Sumo and
caused obstruction to the vehicle in which they were
proceeding and climbed the said lorry in two different direction
on the side P.Ws.1 and 11, in the evidence of P.W.1, though he
reiterates regarding the incident, but says that one of the
assailant inflicted injury with knife and they snatched money of
Rs.16,500/- and instructed him to move the lorry and when he
tried to put gear, there was jerk, at that time, all of them fell
down from the lorry and he escaped from the clutches of
accused persons but, cleaner was there in the lorry itself and
thereafter, accused flew away from the place and at that time,
there was darkness. But, he could not identify the accused
persons and immediately, he rushed to the police station and
lodged the complaint at 11.30 and he also identifies signature
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and says that Police took him to the hospital and he took
treatment in the hospital. He categorically says that he came to
know that on the very same day, the accused persons were
arrested, but he cannot identify those persons and also he has
not given any statement before the Police. He also identifies
M.Os.2 and 3 and so also M.O.4 and also identified the photo of
vehicle. But, he says later on Police showed the persons, who
snatched the money from him, but he cannot identify those
persons and he identifies M.O.5 i.e., Rs.15,000/- cash and this
witness turned hostile.
19. In the cross-examination of P.W.1, a suggestion
was made that he came to know that accused were
apprehended on 22.12.2008 and the said suggestion was
denied. However, he says that he went to the office of Circle
Inspector of Police on 23rd and vehicle Tata Sumo was parked.
But, he came to know that assailant came in the said vehicle
and he also says that M.O.s.1 to 4 are shown to him by the
Police. But, he did not count the money. It is suggested that
though he gave the statement in terms of Ex.P4, he is deposing
falsely before the Court. At the first instance, accused persons
stated that no cross-examination, but accused Nos.1 to 3 were
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thereafter recalled and suggestion was made to the witness
that M.Os.1 to 5 were not seized and the same was denied.
When suggestion was made that for the first time, they are
seeing the accused persons in the Court, it is stated that
witness had seen the accused persons at the time of incident.
20. The other material witness is P.W.11, since other
witness have not supported the case of the prosecution.
P.W.11 in his evidence reiterates the evidence of P.W.1, but he
says he showed his pocket, when there was no money, he was
left by the accused. He says accused person inflicted injury to
P.W.1 and thereafter took him and when he found a person
coming in the motorcycle, he informed the same and he also
says on the next date, Police called him to the Police Station
and he found Tata Sumo and he identified the accused persons
in the Police Station. But, he says that he can identify only two
persons and identify only accused Nos.2 and 4 before the
Court. He also says he did not see who was with P.W.1. This
witness was subjected to cross-examination and in the cross-
examination of SPP, when the witness turned hostile, he says
that P.W.1 was inflicted with M.O.1 and snatched the money
forcibly and also he was pulled down from the vehicle and
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admits that an amount of Rs.16,500/- was snatched from
P.W.1 and this witness was cross-examined by accused
counsel, he says he cannot state on what distance, he stopped
the vehicle in front of their vehicle and also cannot state from
which side, how many of them boarded their lorry and also
cannot state, who was driving said Tata Sumo and also cannot
state who are all boarded lorry from his side and also he did
not notice when the amount was snatched from P.W.1 after
making him to get down from vehicle and also he cannot state
what happened to him after dragging P.W.1. But, he says he
witnessed the incident of inflicting injury once and he did not
notice whether he was bleeding or not. But, he says he came
to know about that only P.W.1 alighted from vehicle and also
he cannot state which accused inflicted injury on P.W.1 and he
cannot identify except M.O.1 and also he cannot state what
statement the police have recorded and also he cannot state on
what date, he went to office of Circle Inspector of Police and he
cannot state the amount belongs to whom.
21. The other witness is P.W.14-Investigating Officer
and he reiterates with regard to conducting of investigation
after receipt of complaint, drawing of mahazar and seizure of
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M.Os.1 to 6 and drawing of Exs.P5 and P7 and also Ex.P2 and
taking of signature of accused persons on the mahazar. He
categorically admits in the cross-examination, when he went to
spot, he did not found any object at the spot. He also admits,
he did not enquire with the localites of the said spot and also
did not call them as witness to the mahazar. He admits that
there was correction in the PF and also he did not collect the
document in respect of the lorry from the owner of the lorry
and also he admits that he did not mention the denomination of
the notes which have been recovered from the accused persons
in the mahazar and PF. It is suggested that there is no
voluntary statement regarding Exs.P12 to P16 are recorded.
22. Having considered the evidence of P.Ws.1, 11 as
well as P.W.14, P.Ws.1 and 14 speak about the incident that
accused persons came in the Tata Sumo and caused
obstruction to proceed. Hence, they stopped the vehicle and all
of them boarded the vehicle and caused threat. The relevant
material to be considered by the Trial Court is whether the
accused persons have been identified by the witnesses.
Admittedly, P.W.1 was not identified and he reiterates that he
cannot identify the accused and he admits that there was
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darkness. No doubt, in the cross-examination of accused Nos.1
and 3, a suggestion was put to P.W.1 that for the first time he
is seeing the accused persons in the Court, but witness
volunteers that he has seen the accused. But, the fact is that
when he did not identify the accused persons before the Court,
the said suggestion ought not to have been relied upon by the
Trial Court. No doubt, Trial Court has also taken note of the
said fact, but considering other evidence comes to the
conclusion that prosecution has proved the case.
23. The judgments which have been relied upon by the
learned counsel for the appellants i.e., AIR 1969 GUJARAT 69
as well as judgment of Madhya Pradesh High Court in 1991
CRI.L.J.1925, suggestion should not be considered as an
admission, when suggestion is put to the witness and no
dispute with regard to the principles laid down therein.
However, the Court has to consider whether evidence of P.Ws.1
and P.W.11 is credible to convict the accused. No doubt, P.W.1
deposed with regard to the manner in which the incident has
taken place and inflicting of injury, P.W.11 also could not
identify, who inflicted injuy and though both of them were
called to the Police Station on the very same day and they were
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arrested, but the fact is that they were arrested on 22nd and
not on the very same day and P.W.2 says on the next day, he
was called to the Police Station.
24. It is important to note that these accused persons
are not known to P.W.1 and P.W.11 earlier and they are
strangers and not having acquaintance with each other prior to
this incident. But, the Investigating Officer ought to have
conducted Test Identification Parade for identification of the
accused. In the case on hand, no Test Identification Parade
was conducted by the Investigating Officer and P.W.1 says that
he was called to Police Station subsequent to the arrest and
P.W.1 not identified the accused before the Court and the only
evidence is P.W.11 and P.W.2, who also say that they could not
identify, but identified the accused Nos.1 and 4 before the
Court and P.W.2 says that those persons were identified
through the light of the vehicle but, P.W.1 says that there was
darkness and there are material contradiction with regard to
the identification of the accused person. Having considered the
evidence of P.Ws.1 and P.W.11, in the absence of Test
Identification Parade, since all of them are not known to each
other and not having acquaintance with each other, it is the
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bounden duty of the Investigating Officer to conduct Test
Identification Parade. In the said circumstance, when the
offence invoked is under Section 395 IPC, the same has not
been done.
25. Learned counsel for the other appellants would
contend that with regard to the seizure is concerned, relied
upon the judgment of the Apex Court in 2019 (2) CRIMES
371 (SC) with regard to identification of the appellant-accused
satisfactorily established, recovery of weapon at the instance of
the accused also established, evidence corroborated by medical
evidence, conviction is justified. The counsel also relied upon
the judgment in 2011 (3) Crimes 61 (SC), wherein the Apex
Court held that recovery on the disclosure statements of either
of the respondents/accused persons not in close proximity of
incident, moreover, the materials recovered could have been
passed from one person to another without any difficulty, no
presumption can be drawn against the accused. Further, as
contended by the learned counsel for the appellants as held in
the judgments referred (supra) by Delhi High Court and
Bombay High Court as well as Apex Court, in the absence of
Test Identification Parade, when they were unable to identify
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the accused persons, since the incident has taken place at dark
hours and P.Ws.1 and 11 identified the accused persons before
the Trial Court for the first time would be valueless and
unreliable and much importance cannot be given to the said
identification and all the accused persons were not identified by
them.
26. Learned High Court Government Pleader for the
respondent-State would contend that injury is inflicted and
wound certificate is also produced and Doctor has been
examined as P.W.10 and unless the accused persons are
identified, medical report also will not support the case of the
prosecution. He would contend that recovery is made from the
accused persons i.e., amount of Rs.16,500/- and recovery
witness also turned hostile and mere recovery of money from
the accused, unless the same is proved by leading any cogent
evidence before the Court, question of considering the evidence
does not arise and there cannot be an order of conviction. No
doubt, Trial Court considered the material on record and relied
upon the evidence, even P.Ws.1 and P.W.11 turned hostile to
the some extent, except stating the manner in which the
accused caused obstruction, but P.W.11 categorically says that
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when there was no money, he was made to alight from the
vehicle and thereafter made P.W.1 also to get down from the
vehicle and thereafter, took him along with them and though
he says that in his presence inflicted injury, but he was not able
to identify which accused inflicted injury and in the admission
of P.W.11, he categorically says that he does not know what
happened to P.W.1 after he was taken with them, but P.W.1
says that after the accused persons flew from the place in the
vehicle, cleaner was in the vehicle and material contradictions
are not taken note by the Trial Court. The Trial Court even
considered the evidence of other hostile witnesses, particularly
in paragraph No.53 of the order of the Trial Court, as already
observed, P.Ws.1, 3 to 11, particularly P.Ws.3, 8 to 11 not
supported the case of the prosecution and evidence of P.W.14
is also very clear with regard to recovery is concerned and he
did not mention the denomination of notes which was
recovered in terms of the mahazar and ought to have
mentioned the same and the same is not mentioned in the PF.
When the evidence of P.W.14 is not credible, the very
reasoning given by the Trial Court that with due care and
caution appreciated the evidence of prosecution witnesses
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NC: 2025:KHC:12416
cannot be accepted and Trial Court committed an error in
convicting the accused and in the absence of consistent
evidence, the Trial Court ought not to have convicted the
accused persons. Hence, it requires interference of this Court.
Accordingly, I answer Point No.(1) as 'negative'.
Point No.(2)
27. In view of the discussion made above, I pass the
following:
ORDER
(i) The criminal appeals are allowed.
(ii) The impugned judgment of conviction passed
by the Trial Court is set aside. The bail bonds
executed by the appellants are cancelled.
(iii) The Trial Court is directed to refund the fine
amount, if any deposited by the appellants in
favour of the respective appellants on proper
identification.
Sd/-
(H.P.SANDESH)
JUDGE
ST
