Karnataka High Court
State Of Karnataka vs Shahid Khan on 19 January, 2024
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.1567 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE UMESH M. ADIGA
CRIMINAL APPEAL NO.1567 OF 2017 (A)
BETWEEN:
State of Karnataka,
By Pulikeshi Nagar Police Station,
Bangalore City,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-01. .. Appellant
( By Sri P.Thejesh, HCGP )
AND:
Shahid Khan @
Dakar Shahid,
Son of Noor Khan,
Aged about 38 years,
R/a 7th Cross,
Muniswamy Layout,
Idayathnagar,
Near Lidkar Colony,
K.G.Halli,
Bangalore City - 560 045. .. Respondent
( By Smt. Archana K.M., Amicus Curiae )
This Criminal Appeal is filed under Section 378(1) and (3)
of Code of Criminal Procedure, praying to grant leave to appeal
against the judgment and order of acquittal passed by the
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CRL.A No.1567 of 2017
learned 57th Addl.City Civil and Sessions Judge, Mayohall Unit,
Bangalore City in S.C.No.1467/2012 dated 15.05.2017, thereby
acquitting accused/respondent of the offence punishable under
Sections 341, 364-A, 397 of IPC, set aside the aforesaid
judgment and order of acquittal passed by the learned 57th
Addl.City Civil and Sessions Judge, Mayohall Unit, Bangalore
City in S.C.No.1467/2012 dated 15.05.2017, thereby acquitting
accused/respondent of the offences punishable under Sections
341, 364-A, 397 of IPC and convict and sentence the
respondent/accused for the offences punishable under Sections
341, 365-A, 397 of IPC, in the interest of justice and equity.
This Criminal Appeal having been heard through Physical
Hearing/Video Conference and reserved for Judgment on
07.12.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
JUDGMENT
The State has filed this appeal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as `the Cr.P.C.'), challenging the judgment of acquittal dated 15.05.2017, passed by the learned LVII Addl.City Civil and Sessions Judge, Mayohall Unit, Bengaluru City, (hereinafter for brevity referred to as the `Sessions Judge's Court') in Sessions Case No.1467/2012, acquitting the accused of -3- CRL.A No.1567 of 2017 the offences punishable under Sections 341, 364-A and 397 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC').
2. The summary of the case of the prosecution as stated in the charge sheet is that, on the date 11.07.2012, at about 9.30 p.m., while PW-1/CW-1 Karthik Selvaraj was proceeding in a Hyundai i-10 car bearing registration No.KA-03-ML-9647 along with PW-5/CW-6 Smt.Malini to drop her to her home and when they were near Pottery road of Richmond Town, the present respondent, who is accused No.1, joined by split-up accused No.2 by name Idayat Khan @ Iddu bin Mehaboob Khan, coming in a TVS Victor motorcycle bearing registration No.TN-29-AZ-6169, armed with deadly weapons like button knife, with an intention to snatch the belongings from PW-1 and PW-5, forcibly and wrongfully restrained PW-1 and PW-5 along with their car and made them to stop the car. When PW-1 stopped the car, accused No.2 by pointing a button knife to PW-1 threatened him and accused No.1 by pointing the button knife to PW-5 Smt.Malini, entered the car and sat -4- CRL.A No.1567 of 2017 next to PW-5 - Malini. Accused No.2 who had entered the car, made PW-1 to vacate the driver's seat and occupy the other seat and himself sat in the driver's seat and started driving the car. In the meantime, the accused who was sitting next to PW-5 Malini in the rear seat of the car snatched a cell phone which was in the possession of said PW-5. The other accused snatched the neck chain and two finger rings, made of the silver, and worn by PW-1 and demanded to pay cash. Since PW-1 stated that he does not possess cash amount, he drove the car to a ATM near Regional Transport Office at Indiranagar and made PW-1 to draw a sum of `20,000/- in total from Canara Bank ATM and took the said amount. Thereafter, both the accused took PW-1 and PW-5 for some more distance and by threatening PW-1 and PW-5 that they should not disclose before anybody about the incident, made them to got down from the car and left the place along with car. In that regard, PW-1 lodged a complaint with the complainant police, which was registered against three unidentified accused in Crime No.176/2012 for the -5- CRL.A No.1567 of 2017 offences punishable under Sections 341, 363, 392 of IPC. The police after completing the investigation filed the charge sheet only against accused No.1 who is the present respondent and accused No.2 Idayath Khan for the offences punishable under Sections 341, 364-A, 397 of IPC, however, dropping accused No.3 Tabrez @ Sayed Suhaib from the charge sheet.
3. After perusing the materials placed before it and hearing both side, the Sessions Judge's Court framed charges against the accused for the offences punishable under Sections 341, 364-A, 397 of IPC. Since the accused pleaded not guilty, the trial was held, wherein in order to prove the alleged guilt against the accused, the prosecution got examined eleven witnesses from PW-1 to PW-11, got produced and marked documents from Exs.P-1 to P-18(a) and got produced three Material Objects at MO-1 to MO-3. From the accused's side, neither any witness was examined nor any documents were got marked as exhibits.
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4. After hearing both side, the learned Sessions Judge's Court, by its judgment dated 15.05.2017, acquitted accused No.1 of the offences punishable under Sections 341, 364-A and 397 of IPC. Challenging the same, the appellant - State has preferred the present appeal.
5. The appellant -State is represented by the learned High Court Government Pleader.
6. In view of the fact that the learned counsel for respondent/accused No.1 failed to appear before this Court on several dates of hearing, this Court by its reasoned order dated 18.11.2023, appointed learned counsel - Smt.Archana K.M., as Amicus Curiae for the respondent/accused No.1 to represent him in this case.
7. The learned High Court Government Pleader and the learned Amicus Curiae for the respondent (accused No.1) are physically appearing in the Court.
8. The Sessions Judge's Court records were called for and the same are placed before this Court. -7- CRL.A No.1567 of 2017
9. Heard the arguments from both side. Perused the materials placed before this Court, including the memorandum of appeal, impugned judgment and the Sessions Judge's Court records.
10. For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge's Court.
11. Learned High Court Government Pleader for the appellant/accused No.1 in his brief argument submitted that evidence of PW-1 and PW-5 proves the incident, as well the role of present respondent in the commission of the crime. Except the evidence regarding the place of the accused dropping PW-1 and PW-5, for the remaining overacts of the accused, the evidence of PW-1 and PW-5 have come in uniformity. He further submitted that the Investigating Officer has seized the vehicle robbed from PW-1 by the accused. Though the pancha for the seizure of the vehicle has not supported the case of the prosecution, however, the evidence of the Investigating Officer in that regard is sufficient to prove the case of the -8- CRL.A No.1567 of 2017 prosecution. PW-1 and PW-5 have identified the accused in the Court. With this, he submitted that the learned Sessions Judge did not appreciate the evidence in their proper perspective which has resulted in Sessions Judge's Court passing the judgment of acquittal which deserves to be set aside by allowing the appeal.
12. Per contra, learned Amicus Curiae for the respondent/accused No.1 in her argument submitted that prosecution has utterly failed to prove the alleged kidnapping of PW-1 and PW-5 by the accused, much less, kidnapping for ransom, as such, Section 364-A of IPC is not proved. Assuming that there is abduction of PW-1 and PW-5, however, the abduction simplicitor is not an offence punishable under the law. She further submitted that there are discrepancies in the evidence between PW-1 and PW-5 on various aspects. No evidence has been placed by the prosecution to show that the Blackberry cell phone was belonging to PW-5 and the alleged recovery also is not proved. There is no evidence to show that PW-1 and PW-5 were wrongfully restrained by the accused. The -9- CRL.A No.1567 of 2017 non-examination of owner of the alleged motorcycle said to have been involved in this crime is also fatal to the case of the prosecution. With this, she submitted that the impugned judgment does not warrant any interference at the hands of this Court.
13. After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:
(i) Whether the prosecution has proved beyond reasonable doubt that on the date 11.07.2012 at about 9.30 p.m. on Pottery Road in Richmond Town, within the limits of complainant-
Police Station, accused No.1 along with accused No.2
- the split-up accused, going there on a motorcycle bearing registration No.TN-29/AZ-6169, wrongfully restrained PW-1 and PW-5 along with their car by showing them button knives and thereby have committed an offence punishable under Section 341 of Indian Penal Code, 1860?
[ii] Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned at point No.1, the accused after wrongfully restraining PW-1 and PW-5, threatened them of killing them by showing a knife and
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CRL.A No.1567 of 2017abducted both of them and forcibly made PW-1 to withdraw a sum of `20,000/- from his bank account through ATM and snatched that amount and thereby have committed an offence punishable under Section 364-A of Indian Penal Code, 1860?
(iii) Whether the prosecution has proved beyond reasonable doubt that on the date, time and place mentioned above, the accused No.1, joined by the spilt-up accused No.2, robbed PW-1 of his silver neck chain and two silver finger rings and of a sum of `20,000/- in cash which PW-1 was made to withdraw at the force and threat of the accused and robbed PW-5 by threatening with the point of knife and thereby has committed an offence punishable under Section 397 of Indian Penal Code, 1860?
[iv] Whether the judgment of acquittal under appeal warrants any interference at the hands of this Court?
14. Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that the present appeal is filed by the complainant-State against the judgment of acquittal of the accused from the alleged offences punishable under Sections 341, 364-A, 397 of IPC. Since as per criminal law, the accused is
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CRL.A No.1567 of 2017presumed to be innocent until his guilt is proved and further the accused, in the instant case, has already been benefitted by the impugned judgment of acquittal in his favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.
(a) Our Hon'ble Apex Court, in its judgment in the case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415, while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:
" 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further
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reinforced, reaffirmed and strengthened by the trial court.
42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa's case (supra), the Hon'ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.
(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon'ble Apex Court was pleased to observe as below:
" 25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial
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court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters."
The above principle laid down by it in its previous case was reaffirmed by the Hon'ble Apex Court, in the case of Ravi Sharma -vs- State (Government of NCT of Delhi) and another reported in (2022) 8 Supreme Court Cases 536 and also in Roopwanti -vs- State of Haryana and others, reported in AIR 2023 SC 1199.
It is keeping in mind the above principles laid down by the Hon'ble Apex Court, we proceed to analyse the evidence placed in this matter.
15. In order to prove the alleged incident, among the evidence of eleven witnesses examined by the
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CRL.A No.1567 of 2017prosecution, the evidence of PWs.1, 2, 5, 6 and 7 are important and material evidence. The evidence of PWs.10 and 11, who are the case registering authorities and Investigating Officers in the matter requires to be corroborated by the evidence of other witnesses.
16. PW-1 (CW-1) Karthik Selvaraj in his evidence has stated that PW-5/CW-6 Smt.Malini and one Smt.Sandhya were known to him. He owns a red colour Hyundai I-10 motorcar bearing registration No.KA-03-ML- 9647. On the date 11.07.2012, himself accompanied by said Smt.Sandhya and Smt.Malini, in the evening, had been to a place called Banasawadi for dinner. After the dinner, he dropped Smt.Sandhya to her house and was proceeding along with Smt.Malini (PW-5) to drop her to her house at Benson Town. While they were on Pottery road, in front of House No.4, a TVS Victor motorcycle bearing registration No.TN-29-AZ-6169 with a rider and a pillion rider came there and stopped his car. It was 9.30 p.m. Smt.Malini was sitting in the back side of the seat. Among the two riders of the motorcycle, one person
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CRL.A No.1567 of 2017opened the back door and sat next to Smt.Malini. The other person showing a knife to him, asked him to vacate the driver's seat and himself sat in the driver's seat and taking the key, started driving the car towards Halasuru Lake and then took the car near Regional Transport Office at Indiranagar. He robbed the cell phone which was with him (of this witness). The other person sitting next to Smt.Malini in the back side, took away the cell phone that was with said Smt.Malini. The accused also took silver neck chain, two silver finger rings from him and demanded for money. Since he stated that he does not possess the money, the accused insisted that he should withdraw money from a ATM. Accordingly, they took them to an Axis Bank ATM. Since the card did not work at the said ATM, the accused took him to a ATM of Canara Bank which was nearer to it and made him to withdraw in total a sum of `20,000/-, at `10,000/- per withdrawal. The accused took the said amount to himself and then took himself along with Smt.Malini, who was sitting in the back side of the car, in the same car to a some more
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CRL.A No.1567 of 2017distance on a dark road and threatened him and Malini and asked them not to reveal about the incident to anybody and made them to got down from the car and drove away from the place along with car. The time was about 10.20 p.m. Thereafter, he along with Smt.Malini went to the complainant-Police Station and lodged a complaint. The witness has identified the complaint at Ex.P-1 and his signature therein at Ex.P-1(a). Identifying the present respondent as accused No.1 in the Court, the witness stated that he is the one who had sat in the back seat of the car and had robbed him of a silver neck chain and two finger rings and cell phone from Smt.Malini. He also stated that he can identify the other accused also.
17. PW-1 has further stated in his evidence that, on the date 12.07.2012, the Police Officer Maheshwarappa (PW-11) along with his staff came to the spot of the offence that was shown by him and drew a scene of offence panchanama in front of House No.4 of Pottery road as per Ex.P-2. The witness has stated that he has
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CRL.A No.1567 of 2017stated before the police that due to the incident, he has suffered a sum of `4,03,000/-.
18. PW-1 has further stated that on the date 25.08.2012, in response to a phone call from the complainant-Police, he went to the complainant-Police Station, there the police shown him two accused and asked him to identify them. He identified both of them. The witness has stated that he could only get the robbed car, but, not the other articles. He has identified the car through its photographs at Exs.P-3 and P-4. He also stated that he could identify the motorcycle used by the accused and the other articles. He stated that the car stands in the name of his father Selvaraj. Further stating that he had given the withdrawal slips of Canara Bank to the police in the matter, the witness has identified the copies of two ATM withdrawal slips and got them marked at Exs.P-5 and P-6. Further stating that his cell phone number is 9844703777, the witness has identified the bill with respect to the said cell phone number at Ex.P-7.
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19. PW-1 was subjected to a detailed cross- examination from the accused side, wherein he adhered to his original version. He stated that, on the date of the incident, in the evening, himself, Smt.Malini and Ms.Sandhya had dinner in a hotel at Kasturinagar, Banasawadi, however, he does not remember the name of the hotel and its owner. He gave the details as to what time he left the hotel and in which route he was proceeding in his car. He stated that, at the time and place of the incident, there were no general public and the police in the spot. Though there were no street lights in that area, however, lights from the houses were available. He stated that the accused were talking in Hindi language and on the pretext of searching for their younger sister and expressing their suspicion that she must be in the car, they peeped inside the car. He also stated that he could identify the knife used by the accused. He stated that in both the ATMs, there were no security staff. The denial suggestions made to him were not admitted as true by this witness.
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20. In his further examination-in-chief after his recalling by the prosecution, the witness has identified the alleged motorcycle said to have been brought by the accused with them, through its photographs at Ex.P-8 and P-9. He identified two knives and one Blackberry cell phone from MO-1 to MO-3 and stated that said Blackberry cell phone belongs to Smt.Malini (PW-5).
The denial suggestions made to him in his cross- examination after his further examination-in-chief were not admitted as true by the witness.
21. PW-2 (CW-7) Sri Selvaraj in his evidence has stated that, in his name there is a red colour Hyundai I-10 motorcar bearing registration No.KA-03-ML-9647. PW-1 is his son. On the date 11.07.2012, his son had left the home in the morning and he told on the next day that in the previous night between 9.30 p.m. to 10.00 p.m., two persons threatened him by showing the knife and robbed a silver neck chain, two finger rings and a sum of `20,000/- in cash after getting the same withdrawn from a ATM. The
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CRL.A No.1567 of 2017witness stated that on 28.08.2012, he went to the complainant-Police Station as per their telephone call and identified his car. The witness identified the said car through its photographs at Exs.P-3 and P-4.
The denial suggestions made to him in his cross- examination were not admitted as true by this witness.
22. PW-5 (CW-6) Smt.Malini in her evidence has stated that PW-1 Karthik Selvaraj is known to her. On the date of the incident, she joined by PW-1, after dropping Ms.Sandhya, were going on Pottery road in a car. She was sitting in the back seat of the car. When their car was on Pottery road at about 9.30 p.m., two persons coming there on a motorcycle stopped their car. They shown knife to PW-1 Karthik and among the two persons, one person sat in the driver's seat and proceeded to drive the car by himself. She further stated the person sat next to her, snatched the cell phone which was in her possession and they also robbed Karthik of his silver neck chain, two finger rings and his wallet. Thereafter, they took Karthik to a near by ATM and got some amount
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CRL.A No.1567 of 2017withdrawn through him, however, she does not know the exact amount that was drawn by Karthik at their instance. After making them to got down near police station at Indiranagara, they drove away along with car from the said place. The witness has identified the said car through its photographs at Exs.P-3 and P-4. She stated that she had accompanied PW-1 to the police station to lodge a complaint. She also stated that she had been to the police station, where she had identified the two accused and given her statement. She has identified her cell phone at MO-3.
23. In her cross-examination, she gave more details about the incident. She denied a suggestion that she did not notice the registration number of the motorcycle and it pertains to which State. She admitted that there was darkness on that night, as such, she cannot describe the type of pant and shirt worn by the accused. She clearly stated that, on that day, neither of the accused drove the car and it was Karthik himself who drove the car. She also stated that after the accused made them to got down
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CRL.A No.1567 of 2017from the car, they went to Indiranagar Police Station, however, the police took them to Frazer town police station.
24. PW-6 (CW-8) Nagasundar, Asst.Sub-Inspector of Police of Shankarapura Police Station in his evidence has stated that, on 27.07.2012, while he along with PC No.11376 Tippeswamy were on patrolling duty on a Cheetah motorcycle in the afternoon at about 1.00 p.m., they received an information that somebody had parked a car in front of Mahaveer Jain building, on 5th Main of Chamarajpet and the car number was KA-03-ML-9647. Accordingly, these people went there and after enquiry, could not find out its owner in that place. As such, with the help of Traffic police, they brought the said car to the police station and gave a report as per Ex.P-12 to the Police Sub-Inspector. The witness has identified the car through its photographs at Exs.P-3 and P-3.
The denial suggestions made in his cross- examination from the accused side were not admitted as true by the witness.
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25. PW-7 (CW-9) Subbanna, Police Sub-Inspector of Shankarapura Police Station, Bengaluru, has stated in his evidence that on 27.07.2012, the Asst.Sub-Inspector Sri Nagasundar (PW-6) produced the motorcar bearing registration No.KA-04-ML-9647 along with his report as per Ex.P-12. He subjected the said motorcar to Property Form, which he has identified at Ex.P-13 and has identified the motorcar through its photographs at Exs.P-3 and P-4.
The denial suggestions made from the accused side were not admitted as true by this witness.
26. PW-10 (CW-15) Sri M.Satyanarayana, the Asst.Sub-Inspector of complainant-Police Station has stated about PW-1 Karthik appearing before him in the police station at 11.45 p.m. on 11.07.2012 and lodging a complaint as per Ex.P-1. He also stated that he prepared FIR as per Ex.P-14 and handed over further investigation in the matter to CW-16.
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27. About the place of the offence, PW-3/CW-3 Harsha Vikranth has stated that on 12.07.2012, in front of house No.4, on Pottery road, the Investigating Officer has conducted spot inspection in his presence. A blue colour TVS motor vehicle was there in the spot. The police drew a mahazar as per Ex.P-2. The witness has identified the vehicle in the photograph at Ex.P-8.
In his cross-examination, though attempts were made to show that he was not present when the panchanama at Ex.P-2 was drawn, the witness did not give any scope to shake his evidence given by him in his examination-in-chief.
28. The evidence of PW-2, coupled with the evidence of PW-1 would go to show that the motorcar bearing registration No.KA-03-ML-9647 stands in the name of PW-2, however, PW-1 being the son of PW-2, was using the said car. According to PW-1, on the date of the incident, he had a dinner with one Ms.Sandhya and PW-5 Smt.Malini and then he dropped said Sandhya at
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CRL.A No.1567 of 2017her house and was proceeding to drop PW-5 Smt.Malini to her house at Benson Town. While they were on Pottery road, in front of House No.4, the accused intercepted them on their motorcycle, wrongfully restrained them and robbed the valuables, including the motorcar. Though the evidence of PW-1 on its bare reading appears to be a true and honest account of the alleged incident, however, the same requires to be considered carefully.
29. Firstly, according to PW-1 and PW-5, Sandhya was their friend and they had dropped her to her house. Admittedly, the said Ms.Sandhya has not been examined by the prosecution. Therefore, at the first instance, there is no evidence, except the oral statement of PW-1 and PW-5 to show that before coming to Pottery road, PW-1 and PW-5 had dropped one Ms.Sandhya at her house. In order to show that PW-1 and PW-5 had reason to go to Pottery road on their alleged way to Benson Town, it was required of the prosecution to examine said Ms.Sandhya, however, the prosecution did not examine her.
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30. Secondly, according to PW-1, Smt.Malini (PW-5) is a friend of his colleague. No where, PW-1 has stated as to who the said colleague was, of whom, PW-5 was said to be a friend. It is also not stated by PW-1 that said PW-5 was also his friend and their friendship was to such an extent that they were together going to dinner. Thus, it creates a doubt as to whether PW-5 had accompanied PW- 1 at the time of the alleged incident.
31. Thirdly, according to PW-5, PW-1 Karthik was known to her two years prior to the alleged date of the incident. PW-1 and Ms.Sandhya were working together in a Consultant Firm and said Ms.Sandhya was her friend. This evidence of PW-5 does not tally with the evidence of PW-1 who has not stated that Ms.Sandhya was his colleague. He has only stated that he knows Ms.Sandhya. Further, as observed above, PW-1 has stated that PW-5 Smt.Malini was friend of his colleague. He does not directly knows said Smt.Malini (PW-5). Had really Ms.Sandhya was his colleague and Smt.Malini (PW-5) was friend of Ms.Sandhya, then PW-1 should have clearly
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CRL.A No.1567 of 2017stated in his evidence about the same, however, both these primary details about the reason of their alleged knowing each other has not been convincingly stated by PW-1. When PW-5 has stated that she knew PW-1 since two years prior to the incident, however, PW-1 has stated that he does not know directly PW-5, but, he knows her as a friend of his colleague. Therefore, about the acquaintance of between PW-1 and PW-5, there is no clear evidence. As such, how come PW-1 on the alleged evening takes PW-5 with him for a dinner creates a doubt in the case of the prosecution.
32. Fourthly, according to PW-1, himself joined by Ms.Sandhya and Smt.Malini (PW-5), left his house at 6.40 p.m. PW-5 has not stated from where she was accompanying PW-1 on the said day to go along with him in his car. Had really PW-1 left his house joined by Ms.Sandhya and PW-5 Smt.Malini, then, PW-2 Selvaraj, the father of PW-1 should have necessarily stated about the same. On the contrary, PW-2 in his evidence has stated that on 11.07.2012, which is the alleged date of
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CRL.A No.1567 of 2017incident, his son (PW-1) left the house in the morning at 10.00 O'Clock. This once again falsifies the evidence of PW-1 that he left the house along with PW-5 Smt.Malini and Ms.Sandhya at 6.40 p.m. on that evening.
33. Fifthly, according to PW-1, on that evening, all the three of them i.e., himself, joined by Ms.Sandhya and Smt.Malini (PW-5) had been to a dinner to a hotel at Banasawadi, whereas, according to PW-5, they had been to a hotel at Kammanahalli. There is no evidence from any of the prosecution witnesses nor even it was stated in the argument by learned High Court Government Pleader that Banasawadi and Kammanahalli refer to the very same area. Moreover, PW-1 in his cross-examination has stated that the said hotel was at Kasturinagar, Banasawadi. Thus, several names as Banasawadi, Kammanahalli and Kasturinagar are being given by the prosecution witnesses without there being any evidence to the effect that all the names pertain to the very same area. Therefore, about the location of the alleged hotel itself, there exists some doubt in the case of the prosecution.
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34. Sixthly, PW-1 has stated that he does not remember the name of the hotel to which they had been on the said day, whereas, PW-5 has stated that the said hotel was `Tamarind Restaurant'. The evidence of PW-1 that he was not aware of the name of the hostel appears to be little bit unusual. Generally before going to the hotel, particularly to have a dinner in that place, the friends discuss as to which hotel would be preferable for them. It is after selecting the hotel, normally they go to the said restaurant, whereas in the present case, when according to PW-1, they had been to the hotel for the very purpose to have a dinner there at, still, he claims that he does not remember the name of the hotel. Even otherwise also, after the incident and before coming to the Court to give his evidence, he could have known the name of the hotel to which they were said to have gone for a dinner, however, PW-1 has expressed his ignorance about the name of the hotel.
35. Seventhly, according to PW-1, he did not receive the hotel bill. He does not even know the amount shown
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CRL.A No.1567 of 2017in the bill. PW-5 has stated that they have not given restaurant bill to the police. Thus, according to PW-5, a bill was given to them, however, they did not gave it to the police, whereas, according to PW-1, he neither received the bill nor remembers the bill amount. This further intensifies the doubt about PW-1, PW-5 and Ms.Sandhya visiting the restaurant for dinner on that evening and also makes the evidence of PW-1 not trustworthy to believe because of the above observed discrepancies in his evidence.
36. About the incident, PW-1 has specifically at more than one place in his evidence has stated that incident had took place in front of house bearing No.4 on Pottery road. At that time, the present respondent (accused No.1) along with accused No.2 came on a TVS Victor motorcycle from the opposite direction and made their motorcycle to touch the motorcar in which PW-1 was said to be moving along with PW-5. According to PW-1, the incident continued for about ten to fifteen minutes in front of the said house, during which time, several vehicles passed by. If that
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CRL.A No.1567 of 2017were to be the case, nothing had prevented PW-1 or PW-5 for alerting the people who were moving around them or yelling or shouting for help. However, there is no whisper about the same in the evidence of either PW-1 or PW-5. Both being employed persons, appearing to be having worldly knowledge, did not attempt to raise hue and cry or alert the people which normally any person in danger or under the threat would have done in the said circumstances of the case. No reasons have been attributed either by PW-1 or PW-5 for not alerting the people residing nearby or people passing by. This further intensifies the doubt in the case of the prosecution and also makes the evidence of PW-1 or PW-5 unsafe to believe.
37. Eighthly, if according to PW-1, they were in the place of the incident in front of House No.4 in Pottery road for about ten to fifteen minutes and the lamp outside the said house was glowing, then, somebody either from the said house or in the surrounding area should have witnessed the incident. However, for the reasons best
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CRL.A No.1567 of 2017known to it, the prosecution has not examined any of the witnesses who were the residents in that locality, more particularly, the residents of house No.4 and the nearby houses. No reasons are forthcoming to that effect even in the evidence of Investigating Officers i.e., PW-7 and PW-11.
38. Ninthly, according to PW-1, the incident took place at about 9.15 or 9.30 p.m. on 11.7.2012. According to him, he had left the house in the evening accompanied by Ms.Sandhya and PW-5 Smt.Malini. After the incident, PW-1 must have returned to his house, however, PW-2, the father of PW-1 has stated that he was told about the incident only on the next day. No reasons are forthcoming for PW-1 not disclosing about the incident to his father on the same day. This also contributes in doubting the evidence of PW-1 about the alleged incident.
39. Tenthly, PW-1 has stated that among the two accused, one shown knife to him and asked him to vacate the driver's seat and to go to the adjacent seat. Then that person who had shown him the knife sat in the
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CRL.A No.1567 of 2017driver's seat and himself drove the car till both the accused are said to have made PW-1 and PW-5 got down from the car in a dark road. Thus, from the time the car of PW-1 was said to have restrained by the accused till they drove away the car, it was one among the accused, who according to PW-1 was accused No.2, alone was driving the car, whereas, PW-5 who also claims herself to be the inmate in the said car along with PW-1 at the time of the incident, has categorically stated that none of the accused drove the car on the said day, it was Karthik (PW-1) alone drove the car. She also stated that car was not stopped near any traffic signal nor any help by the police was sought for. They stopped the car near Indiranagar Police Station, however, they did not inform the police at Indiranagar Police Station about the incident.
40. This evidence of PW-1 and PW-5 about who drew the car being quite contrary to each other on a material fact, makes the case of the prosecution further doubtful to believe and also the evidence of PW-1 and PW-5 becomes doubtful to believe. Had really PW-5 being an inmate in the
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CRL.A No.1567 of 2017car at the time of the incident, she should have definitely noticed, remembered and stated as to who was the driver of the car when they were said to have been abducted. Similarly, it was equally required of PW-1 also to exactly and specifically state as to who was driving the car once they were said to have been wrongfully restrained and taken to different place. Since there is a material contradiction on the said point between these two witnesses, it is not safe to believe the version of the prosecution about the incident.
41. Added to the above, if according to PW-5, it was PW-1 Karthik who was driving the car all-through, then PW-1 being in the driver's seat, could have stopped the car at any of the places where he could notice good number of the people or the police or even in the traffic signal and alerted the other persons. However, according to PW-5, PW-1 Karthik did not do any of such things. To the height of all, if according to PW-5, it was them, but, not the accused, who stopped the car near Indiranagar Police Station, then, it was very much expected of both PW-1 and PW-5 to run into the police
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CRL.A No.1567 of 2017station and inform them about the incident, however, admittedly neither of them made any attempt in that regard. Neither PW-1 nor PW-5 anywhere have stated that they could not alert the people nearby or go to the police station though they parked the car near the police station as they were being threatened of their life by the accused with the point of knife. However, no whisper in that regard has come out in the evidence of PW-1 or PW-5 that the accused had threatened them of dire consequences or to their life or even of causing any hurt to them in case if they did not oblige to do what they (the accused) wanted. As such also, the narration about the incident given by PW-1 and PW-5 does not appear to be safe to believe. Further, neither PW-1 nor PW-5 have stated that the accused had threatened either of them of causing their death or causing any hurt to them while showing knife at them. On the other hand, both these witnesses have only stated that accused shown them a knife.
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42. In Ravi Dhingra -vs- State of Haryana, reported in (2023) 6 SCC 76, relied upon by the learned Amicus Curiae for the respondent, our Hon'ble Apex Court while analysing the scope of Sections 363, 364 and 364-A of IPC, was pleased to refer in Paragraph-25, its previous judgment in S.K.Ahmed -vs- State of Telangana, reported in (2021) 9 SCC 59, wherein the Hon'ble Apex Court in Para-33 of its judgment about the essentials of Section 364-A of IPC was pleased to observe as below :
"Para-25 : xxx xxx xxx
xxx xxx xxx
33. After noticing the statutory provision of Section 364-A and the law laid down by this court in the abovenoted cases, we conclude that the essential ingredients to convict an accused under Section 364-A which are required to be proved by the prosecution are as follows:
(i) Kidnapping or abduction of any person or keeping a person in detention after such kidnapping or abduction; and
(ii) 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,
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(iii) causes hurt or death to such person in order to compel the Government or any foreign State or any Governmental organisation or any other person to do or abstain from doing any act or to pay a ransom.
Thus, after establishing first condition, one more condition has to be fulfilled since after first condition, word used is "and". Thus, in addition to first condition either Condition (ii) or (iii) has to be proved, failing which conviction under Section 364-A cannot be sustained."
It is after considering the essentials of Section 364-A of IPC and the evidence before it, the Hon'ble Apex Court was pleased to hold in the appeal before it that, the prosecution could not prove the offence punishable under Section 364-A of IPC, as such, it set aside the conviction under Section 364-A of IPC, though had convicted the accused for the offence punishable under Section 363 of IPC.
43. The said essential of Section 364-A of IPC identified by the Hon'ble Apex Court shows that one of the essential ingredient to constitute an offence under Section
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CRL.A No.1567 of 2017364-A of IPC is the presence of threat to cause death or hurt to such person or his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt.
However, in the instant case, except stating that the accused shown them a knife, neither PW-1 nor PW-5 anywhere whispered that they were threatened by the accused of causing death or causing hurt to them while showing a knife. PW-1 and PW-5 did not even stated in their evidence that the conduct of the accused gives rise to a reasonable apprehension that they (PW-1 and/or PW-5) may be put to death or hurt. Thus, merely by showing a knife itself without there being any apprehension of threat to them, PW-1 vacating the driver's seat and enabling the accused to drove the car, is highly unsafe to believe, that too, particularly when PW-5 has categorically stated that none of the accused drove the car.
44. PW-1 in his evidence has stated that they (PW-1 and PW-5) went to Pulakeshinagar Police Station
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CRL.A No.1567 of 2017(complainant-Police Station) and lodged a complaint. On the contrary, PW-5 in her evidence has stated that after they were made to got down from the car by the accused, they went to Indiranagar Police Station. The police there took them to Frazer Town Police Station. Thus, according to PW-5, the complaint was lodged at Frazer Town Police Station and that it was Indiranagar police who took them to the said police station, whereas, according to PW-1, the complaint was lodged with Pulakeshinagar Police station. PW-10, the then Assistant Sub-Inspector of complainant- Police Station has stated that on the night at 11.45, PW-1 gave the complaint as per Ex.P-1. The said PW-10 has not stated that complainant (PW-1) and PW-5 were brought by Indiranagar Police to his Police Station. Thus, there is a major contradiction in the evidence of PW-1 and PW-5 even with respect to the police station to which they had been to lodge the complaint. This further aggravates the doubt in the case of the prosecution and makes the evidence of PW-1 and PW-5 not safe to believe.
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CRL.A No.1567 of 2017
45. Lastly, PW-1 in his further examination-in-chief has identified two knives as the knives used by the accused at the time of the incident. Those two knives were marked as MO-1 and MO-2 respectively. However, the very same witness in his cross-examination at Page-6 though has stated that he could identify the knife, but, in the very next sentence has stated that he has not seen the knife at the time of the incident. If he had not seen the knife at the time of the incident, then, how come PW-1 stated that he can identify the knife and further identified the knife in the Court as MO-1 and MO-2 intensifies the doubt in the case of the prosecution and also makes the evidence of PW-1 highly unsafe to believe. As such, the only evidence of PW-1 and PW-5 which was a strong pillar for the prosecution to prove the alleged offences against the accused since has proved to be not safe to believe, the remaining evidence of the prosecution witnesses would not assist it considerably in proving the alleged guilt against the accused.
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CRL.A No.1567 of 2017
46. The other evidence on which the prosecution mainly relies upon to prove the alleged offence against the accused is the evidence regarding alleged recovery said to have been made at the instance of the accused.
So far as the motorcar said to be used by PW-1 at the time of the incident is concerned, it was not a recovery made at the instance of any of the accused, for the reason that, even according to the prosecution, it is PW-7, the Police Sub-Inspector received a report of car seizure by PW-6, who is the Assistant Sub-Inspector. The said PW-6 has stated that based upon a report regarding abandoned car, he proceeded to the place and towed the car to the Police Station and along with his report, produced it before PW-7. Thus, though it can be taken that the car bearing registration No.KA-03-ML-9647 must have been found abandoned in a public place and police brought it to their Police Station, but, by that itself, it cannot be held that the said car was robbed from the possession of PW-1 by anyone, much less, by the respondent herein.
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CRL.A No.1567 of 2017
47. The other articles which the prosecution claims to have recovered at the instance of the accused are the two knives at MO-1 and MO-2 and Blackberry cell phone belonging to PW-5. In that regard, the prosecution has examined one Sri Hussain Shariff (PW-4/CW-4) showing him to be a pancha for recovery panchanama. The said witness in his evidence has stated that he has not seen the accused earlier and police had not seized any of the articles in his presence. He stated that, in the year 2011, when he had been to the complainant-Police Station to get his motorcycle released, at that time, the police took his signature on a document. The document in which the witness has identified his signature was marked at Ex.P-10, which was described as a seizure panchanama. The witness has stated that since the police asked him to sign, he has put his signature to that document without knowing what that document was and what was written in it.
48. Even after treating him as hostile, the prosecution could not get any support from him. In his
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CRL.A No.1567 of 2017cross-examination, he specifically denied that a cell phone and two button knives were seized in his presence from the possession of the accused and that he has given his statement in that regard to the police as per Ex.P-11. Thus, from the independent alleged pancha to the alleged recovery panchanama, the prosecution could not get any support.
49. The other witnesses upon whom the prosecution relies regarding recovery are PW-8 (CW-11) Siddalingaswamy and PW-9 (CW-14) Tukaram Kenchappa Kotre. Both these witnesses are the Police Constables working in the complainant-Police Station at the relevant point of time.
PW-8 in his evidence has stated that on 25.08.2012, while he was accompanying Sri Balanayak, Assistant Sub-Inspector and other police personnel in search of the accused in several crimes of their Station, they noticed the three accused, including the present respondent, who were shown to them by their informants. These people
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CRL.A No.1567 of 2017caught hold of those persons and enquired them about their names and addresses. They disclosed their names as Shahid Khan @ Dakkar Shahid (the respondent/accused No.1 herein) and another accused by name Imtiyaz @ Imtu and third accused as Kabrez. When they were physically searched, they noticed one knife each in the possession of the accused Shahid and accused Imtiyaz. The accused Imtiyaz had a cell phone also in his possession. Since they did not give any convincing reasons for possession of those articles, these witnesses brought those articles along with those three persons to their Police Station and produced them before their Police Inspector. Both these witnesses have identified two knives and a Blackberry cell phone at MO-1, MO-2 and MO-3 respectively.
50. Interestingly, even though PW-9 also has given his evidence on the similar lines of PW-8 about they catching hold of three accused, including the present respondent and by their physical search, noticing MO-1 to MO-3 in their possession, however, according to PW-9,
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CRL.A No.1567 of 2017the said incident of apprehending the accused was on 28.07.2012, which date is totally a different date from what PW-8 has stated. Therefore, even among PW-8 and PW-9, there is no consistency as to on which date they have apprehended three accused, including the present respondent.
51. PW-11 (CW-16) Maheshwarappa S.B., the Police Inspector, who is the Investigating Officer in the case, in his evidence has stated that the above referred three accused, including the present respondent/accused No.1 were produced before him by Balanayak and his staff on 25.08.2012 in his Police Station. In the presence of panchas, he drew a seizure panchanama and recovered two button knives and one Blackberry cell phone from the possession of the accused. Stating so, the witness has identified the said panchanama at Ex.P-10 and the alleged seized articles at MO-1 to MO-3.
52. A comparison of evidence of PW-8, PW-9, PW-11 and PW-4 Hussain Shariff would go to show that, with
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CRL.A No.1567 of 2017respect to the date of alleged seizure of MO-1 to MO-3, there is a material variation in the evidence of PW-8 and PW-9. As such, at the threshold itself, the evidence of PW-8 and PW-9 creates a serious doubt in the mind of the Court as to when exactly the alleged seizure or recovery was said to have been made in the case.
53. Secondly, according to PW-8 and PW-9, immediately after apprehension of the three accused, including the present respondent/accused No.1, they noticed the possession of two knives and one cell phone by those three accused persons. PW-8 and PW-9 produced those articles and three accused, including the present respondent, before PW-11 (the Police Inspector). Thus, according to both PW-8 and PW-9, they had already taken the possession of the alleged articles at MO-1 to MO-3 in the alleged spot itself from the alleged possession of the accused without drawing any panchanama or without following required procedure before taking the possession of the articles. It is them i.e., PW-8 and PW-9 who produced those three articles along with accused
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CRL.A No.1567 of 2017before their Police Inspector (PW-11). Thus, if at all any seizure or recovery were to be there, it is not by PW-11, but, may be by PW-8 and PW-9. However, PW-8 and PW- 9 are only Police Constables who are on duty to trace the accused in few other crimes of their Station, as such, they are not the Investigating Officers in the matter. Moreover, no panchanama with respect to the alleged seizure or recovery was made by them.
54. Thirdly, PW-11 also has not stated that articles at MO-1 to MO-3 were recovered from the possession of the accused, including the present respondent. He has only stated that he has seized the articles in the presence of panchas. No where, PW-11 has stated that MO-1 to MO-3 were in the possession of the accused.
55. Fourthly, as already observed above, the alleged pancha to the said panchanama at Ex.P-10, who is PW-4 (CW-4) Hussain Shariff, has not all supported the case of the prosecution and has categorically stated that no articles was seized in his presence. However, at the
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CRL.A No.1567 of 2017instance of the police, he has put his signature on a document without knowing what that document was about. Therefore, the evidence of PW-11 and PW-4 also does not inspire confidence to believe the case of the prosecution.
56. Lastly, even according to PW-11, the alleged seizure of MO-1 to MO-3 was made under Ex.P-10. A perusal of the said document at Ex.P-10 go to show that it is titled as "Articles Seizure Panchanama. This recital only mentions that, stating that two button knives and one cell phone were found in the possession of the accused, the three articles were produced. It further says, "the accused were apprehended by Sri Balanayak, the ASI and his staff and they physically searched the accused." Thus, even according to Ex.P-10, the articles at MO-1 to MO-3 were not recovered from the actual possession of the accused by PW-11, the Investigating Officer, but those articles were produced before the Investigating Officer by his staff stating that they were found in possession of the accused. Thus, even the panchanama at Ex.P-10 also
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CRL.A No.1567 of 2017does not certify and prove that MO-1 to MO-3 were seized from the actual and physical possession of the alleged three accused, who according to the prosecution, includes the present respondent/accused No.1 also.
57. Therefore, the entire evidence led by the prosecution i.e., PW-4, PW-8, PW-9 and PW-11 since is not in consonance with one another and is at greater variation and also does not speak about seizing those articles from the possession of the accused by following the procedure prescribed under law, it cannot be considered as an acceptable proof to prove the alleged recovery or the seizure as the prosecution is making use of both the terminologies. As such, the alleged recovery or seizure also does not stand proved.
58. Regarding the alleged place of the incident (scene of offence), according to PW-1, it was in front of house bearing No.4 on Pottery road, within the limits of complainant-Police Station. According to PW-5, it is on Pottery road, however, she has not stated that it was in
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CRL.A No.1567 of 2017front of House No.4. The prosecution examined PW-3 (CW-3) Harsha Vikrant as a pancha for the scene of offence panchanama at Ex.P-2 and seixure of a TVS Victor motorcycle. The said witness in his evidence has stated that while he was coming on Pottery road on 12.07.2012, the Police explaining him about the incident said to have taken place on the previous day, drew a mahazar as per Ex.P-2. In the said spot, a TVS Victor motor vehicle was also there. The witness has identified the said motorcycle in the photograph at Ex.P-8.
59. Even if it is taken that the evidence of PW-3 is believable, however, no where the witness has stated as to what that mahazar was about. He has not stated that a scene of offence panchanama was drawn in his presence and that a motorcycle was seized in his presence under the said panchanama. He has only stated that, after narrating about the incident, the Police drew a panchanama. Thus, his evidence is also not reliable to hold that a scene of offence panchanama was drawn in his
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CRL.A No.1567 of 2017presence as per Ex.P-2 and a motorcycle was seized in his presence.
60. Added to the above, for the reasons best known to him, the Investigating Officer has not collected the details of the owner of the said motorcycle bearing registration No.TN-29-AZ-6169. When it is the case of the prosecution that the accused had come on the said motorcycle and according to prosecution, said motorcycle was also seized by the Investigating Officer under a panchanama at Ex.P-2, it was very much required of the Investigating Officer to ascertain the ownership of the said motorcycle and to find out how come the said motorcycle came in the possession of the accused. For the reasons best known to him, the Investigating Officer has not put his effort in that direction, thus, keeping the said doubt open.
61. The accused No.1/respondent in his defence has taken a contention that the complainant has got a relative, who is a Police Officer by name Ravikantegowda,
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CRL.A No.1567 of 2017Asst.Commissioner of Police and with his guidance, a false case has been lodged against him. He has also taken a defence that someone else must have got touched their vehicle to the car of PW-1, however, said Sri Ravikantegowda, ACP, advised PW-1 to lodge a complaint as per Ex.P-1. The said defence was taken in the form of a suggestion made to PW-1, however, PW-1 has not admitted those suggestions as true.
In spite of the above, the defence taken by the accused could not succeed in imbibing any doubt in the case of the prosecution, still, as analysed above, the prosecution could not stand on its own leg. The evidence of PW-1 and PW-5 who are the material witnesses in the case has proved to be not safe to believe. Similarly, the evidence regarding the alleged seizure or recovery of MO-1 to MO-3 also could not be established by the prosecution. Even the scene of offence also could not be established through PW-3, the pancha, by the prosecution.
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62. Under the said circumstances, when the evidence led by the prosecution has carried with it serious doubts throughout, the benefit of the same is necessarily required to be given to the accused. Thus, it is analysing the evidence led by the prosecution since the Sessions Judge's Court has rightly arrived at a finding holding that the prosecution has failed to prove the alleged guilt against the accused, we do not find any reason to interfere in it.
63. Accordingly, we proceed to pass the following:
ORDER The Criminal Appeal stands dismissed as devoid of merits.
The Court while acknowledging the services rendered by the learned Amicus Curiae for the respondent/accused
- Smt.Archana K.M., recommends an honorarium of a sum of not less than `6,000/- payable to her by the Registry.
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Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.
Sd/-
JUDGE Sd/-
JUDGE bk/