Karnataka High Court
Abdul Naseer @ Naseer S/O Late Bademiya vs State Of Karnataka on 17 July, 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JULY, 2018
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRL.A.No.141/2011
C/W
CRL.A.No.107/2011 & CRL.A.No.193/2011
IN CRL.A.No.141/2011:
BETWEEN:
ABDUL NASEER @ NASEER
S/O LATE BADEMIYA
AGED ABOUT 21 YEARS
HOUSE OF SARDAR
NEAR WATER TANK
8TH CROSS, GANGONDANAHALLI
NAYANDANAHALLI POST
CHANDRALAYOUT
BANGALORE -39. ...APPELLANT
(BY SRI SYED SALMAN, ADVOCATE FOR
M/S. YOUNOUS ALIKHAN & ASSTS.)
AND:
STATE OF KARNATAKA
BY RAJAJI NAGAR P S
BANGALORE.
REPRESENTED BY
THE STATE PUBLIC PROSECUTOR
2
HIGH COURT OF KARNATAKA
HIGH COURT BUILDINGS
BANGALORE. ...RESPONDENT
(BY SRI S VISHWAMURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND SENTENCE
DATED:19.1.2011 PASSED BY THE PRESIDING
OFFICER, FTC-8, BANGALORE IN S.C.No.505/2006-
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE 395 OF IPC AND THE
APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
R.I.FOR 3 YEARS AND HE SHALL ALSO PAY THE FINE
OF Rs.5,000/- AND IN DEFAULT OF PAYMENT OF
FINE HE SHALL UNDERGO SIMPLE IMPRISONMENT
FOR 9 MONTHS FOR AN OFFENCE PUNISHABLE
UNDER SECTION 395 OF IPC.
IN CRL.A.No.107/2011:
BETWEEN:
AMJAD
S/O HABEEB
AGED ABOUT 21 YEARS
R/AT No.35, 4TH CROSS
ANJANEYA TEMPLE ROAD
GANGONDANAHALLI
NAYANDANAHALLI POST
CHANDRALAYOUT
BANGALORE -39. ...APPELLANT
(BY SRI CHANDRAPPA K N, ADVOCATE)
3
AND:
STATE OF KARNATAKA BY
RAJAJINAGAR POLICE STATION. ...RESPONDENT
(BY SRI S VISHWAMURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE JUDGMENT OF CONVICTION AND SENTENCE
DATED:19.1.2011 PASSED BY THE PRESIDING
OFFICER, FTC-8, BANGALORE IN S.C.No.505/2006-
CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE PUNISHABLE UNDER SECTION 395 OF IPC
AND THE APPELLANT/ACCUSED IS SENTENCED TO
UNDERGO R.I.FOR 3 YEARS AND HE SHALL ALSO PAY
THE FINE OF Rs.5,000/- AND IN DEFAULT OF
PAYMENT OF FINE HE SHALL UNDERGO SIMPLE
IMPRISONMENT FOR 9 MONTHS FOR AN OFFENCE
PUNISHABLE UNDER SECTION 395 OF IPC.
IN CRL.A.No.193/2011:
BETWEEN:
1. SHABBER AHMED @ SHABBER
S/O ABDUL NAZEER
AGE:20 YEARS
RESIDING AT THE HOUSE OF HASEENA
INFRONT OF FERLA MASJID
7TH CROSS, GANGONDANAHALLI
NAYANDANAHALLI CROSS
CHANDRA LAYOUT
BANGALORE -560 039.
2. FIROZ PASHA @ FIROZ @ GORU
S/O HABEEB, AGE:22 YEARS
4
RESIDING AT No.445, II MAIN ROAD
II CROSS, GANGONDANAHALLI
NAYANDANAHALLI POST
CHANDRALAYOUT
BANGALORE - 560 039.
3. THANVEER PASHA @ THANVEER @ THANNU
S/O FIYAZ PASHA, AGE:21 YEARS
RESIDING AT 573, NEAR MUTTHURAYA
TEMPLE, MUTTHURAYA BANDE
NAYANDANAHALLI,
CHANDRALAYOUT
BANGALORE - 560 039.
...APPELLANTS
(BY SRI A S KULKARNI, ADVOCATE)
AND:
STATE OF KARNATAKA BY
RAJAJINAGAR POLICE STATION
BANGALORE CITY.
...RESPONDENT
(BY SRI S VISHWAMURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER
SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE
THE ORDER DATED:19.1.2011 PASSED BY THE
PRESIDING OFFICER, FTC-8, BANGALORE IN
S.C.No.505/2006-CONVICTING THE
APPELLANTS/ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTION 395 OF IPC AND THE
APPELLANTS/ACCUSED IS SENTENCED TO
UNDERGO R.I.FOR 3 YEARS AND HE SHALL ALSO PAY
THE FINE FOR Rs.5,000/- EACH, IN DEFAULT OF
PAYMENT OF FINE THEY SHALL UNDERGO SIMPLE
5
IMPRISONMENT FOR 9 MONTHS FOR AN OFFENCE
PUNISHABLE UNDER SECTION 395 OF IPC.
THESE CRIMINAL APPEALS COMING ON FOR
FINAL HEARING THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
JUDGMENT
Sri Chandrappa, K.N., learned counsel for accused No.5/appellant in Crl.A.No.107/2011 is present.
Sri A.S.Kulkarni, learned counsel in Crl.A.No.193/2011 for appellants/accused Nos.1, 3 and 4 absent. No representation.
Learned counsel Sri.Syed Salman for M/s. Younous Alikhan and Associates in Crl.A.No.141/2011 for appellant/accused No.6 seeks time.
Sri. S. Vishwamurthy, learned High Court Government Pleader for State is present.
Learned counsel Sri.A.S.Kulkarni, represents
appellants/accused Nos. 1,3 and 4 in
6
Crl.A.No.193/2011. Learned counsel Sri.Syed Salman represents appellant/accused No.6 in Crl.A.o.141/2011
2. The appeals are of the year 2011 listed under the head "Final Hearing (oldest matters)." The hearing date was notified well in advance. There are no grounds to adjourn the matters. Thus, heard the arguments of learned counsel Sri.Chandrappa K.N. for accused No.5/appellant in Crl.A.No.107/2011 and Sri.S.Vishwamurthy, learned High Court Government pleader for State and after perusing the materials available on record, court proceeds to dispose of the appeals as per law.
3. Accused persons bearing original ranking Nos.7 and 8 by virtue of splitting up were tried in SC No.1030/2006 and accused persons bearing original ranking Nos.1 to 6 were tried in SC No.505/2006. 7
4. Thus, the rankings of the accused persons with reference to their respective appeals are as under:
Appeal Numbers Accused Numbers
Crl.A.No.141/2011 Accused No.6
Crl.A.107/2011 Accused No.5
Crl.A.No.193/2008 Accused Nos. 1, 3 and 4
Because of death of accused No.2, case abate
against accused No.2. Accused No.8 acquitted. Accused No.1, 3 to 6 convicted.
5. These appeals are directed against the judgment passed in SC No.505/2006 and 1030/2006 dated 19.1.2011, by the presiding officer, Fast Track Court-VIII Bengaluru, wherein, the accused 1, 3 to 6 before the trial court came to be convicted for the offences punishable under Section 395 of IPC and were sentenced to undergo RI for three years and fine of Rs.5,000/- each, in default of payment of fine, to undergo SI for nine months. Regarding acquittal of accused No.8 no appeal is preferred by the prosecution. 8
6. A criminal case came to be registered in Crime No.8/2006 by Rajajinagar Police Station Bangalore, for offence punishable under Section 395 IPC against 05 unknown persons.
7. The complaint is lodged by one Venkatesh B.H. aged 20 years, S/o. Hanumegowda, Bilagunda Village, Bellur Hobli, Nagamangala Taluk, Mandya District, and working in the Habeeb Lathif Agency, No.39, 4th Main Road, New Taragupet, Bangalore, regarding looting of Rs.9.73,625/- by five unknown persons. The complainant is working in Habib lathief agency as office boy for the lost 6 years prior to the date of complaint. He does the job of his master and collects the amount or proceeds of sugar from the different buyers.
8. On 10.1.2006 at 5.35 p.m., complainant and another office boy Mahadev went to RMC Yard and 9 collected Rs.9,73,625/- from eight different shops and were coming back on Yamaha Motor Cycle bearing No. KA.01.S.1961 at Vatal Nagaraj Road near Karur Vysya Bank, Rajajinagar, Bangalore. The said amount was supposed to be remitted to Amanath Co-operative bank at B.V.K.Iyengar street. Thus, the complainant and Mahadeva on the said motor cycle were going through West of Chord Road of Rajajinagar, 5 unknown persons came on TVS Victor motor cycle bearing Registration No>KA.05.EL.6366 and Bajaj chetak scooter bearing Registration No.KA.05.V.5385. They obstructed the complainant's vehicle in a way and almost collided against the complainant's vehicle. The complainant tried to take his vehicle backwards. Two persons were sitting on the rear side of vehicle and one person from scooter came down and hit Mahadeva on the face with hand. The other two tried to snatch the bag, but Mahadeva did not leave and was holding it strongly. In this process, there was pushing. Mahadeva got down 10 from the vehicle. Complainant applied the stand. One of the interceptors came and tried to hit the complainant with hand. Two persons from the said group snatched the bag containing cash. And ran away in the vehicle. Another person was being chased by the complainant. He escaped by sitting on the rear side of the scooter. The complainant further states that at the time of snatching the cash bag, the scooter and the TVS Victor vehicles were kept in engine running condition. After snatching the cash bag, they occupied vehicles whose engines were running and they went towards Bashyam circle. Complainant states age of the persons who were attackers were ranged from 22 to 25 years.
9. After registering the case, mahazar of the spot was conducted on 10.01.2006 as per Ex.P2.
10. After apprehending the accused persons an amount of Rs.6,25,000/- was said to have been 11 recovered from the accused under the mahazar as detailed below:
Ex. Recovery Accused PF Date of No. No. No. mahazar P25 Rs. 2,95,000 A1 09/2006 29.01.2006 P26 Rs. 59,000 A2 10/2006 29.01.2006 P27 Rs. 60,000 A3 11/2006 29.01.2006 P44 Rs. 59,500 A4 12/2006 30.01.2006 P45 Rs. 75,500 A5 13/2006 30.01.2006 P46 Rs. 76,000 A6 14/2006 30.01.2006 TOTAL Rs.6,25,000
11. Thus, out of the amount of Rs.9,73,625/- an amount of Rs.6,25,000/- was recovered from the accused persons. On investigation, the charge sheet came to be filed against accused Nos.1 to 8 for the offence punishable under Section 395 of IPC.
12. After the matter was charge sheeted in CC No.1137/2006 and on being committed to the Court of Sessions Judge, the trial Judge found grounds to frame charges for the offence punishable under Section 395 of IPC.
12
13. The learned trial Judge was accommodated with the oral evidences of PWs.1 to 21, documentary evidence of Exs.P1 to P65(a), the material objects of MOs.1 to 5.
14. Among the witnesses examined, PW1 - Venkatesh is the complainant. PW2 is Mahadev who had gone along with the complainant. PW3 - Salim Habeeb is the master under whom PWs.1 and 2 are employees.
15. PW3 - Salim Habeeb sells sugar in wholesale. PW4 - Mohammad Mushtaq, PW5 - Soyab Farooq, PW6 - Ahamad Hanees, PW7 - Mohammad Saleem, PW8 - Juneed and PW9 - Liyaz are those who purchased sugar from PW3.
16. PW10 - R.S.Shivakumar is a seizure mahazar witness for Ex.P23 to P-27 regarding seizure of cash, who turns hostile. PW11 - Ravi Kumar is said to 13 be the person who had sold TVS Victor vehicle to CW22. PW12 - Basha Khan was said to have sold the mobile to accused No.2 who turns hostile. PW13 - S.Dorai, taken photographs of the currency notes that were seized. PW14 - T.S.N.Murthy is the one who has sold Bajaj Chetak scooter to one Rafique who turns hostile.
17. PW15 - Shivaramaiah, Sub Inspector of police registered the complaint in Crime No.8/2006 for the offence punishable under Section 395 of IPC against five unknown persons on the basis of the complaint lodged by PW1 - Venkatesh as per the complaint registered in FIR.
18. PW 16-Stanely who has issued call details of Mobile No.9845049453, as per Ex.P-35.
19. PW17 - Shamanna Police Inspector who has completed investigation and submitted final report. 14
20. PW18 - Mujamil Pasha is the seller of motor cycle that was ultimately sold to accused No.2. PW19 - A.S.Patil, who is the Retired Executive Magistrate who has conducted test identification parade. PW20 - Hanumanthaiah is the Police Head Constable who arrested accused No.8.
21. The criminal appeals coming up for disposal are three in numbers namely Crl.A.No.141/202011 c/w Crl.A.Nos.107/2011 and 193/2011 connecting to the common judgment passed in SC Nos.505/2006 and 1030/2006.
22. Learned counsel Sri.A.S.Kulkarni, representing accused Nos.1, 3 and 4 in Crl.A.No.193/2006 would submit that the entire case is based on the identification of the accused by PWs.1 and 2 in the test identification parade and the recovery of amount under Exs.25, 26 and 27 dated:29.01.2006 and Exs.44, 45 and 46 dated:30.01.2006. It was submitted 15 that as the identification parade was not conducted in accordance with the established principles of criminal jurisprudence and the recovery is not effected in a manner known to law, the accused persons might not have been convicted. He has further submitted that the procedures followed by the learned Executive Magistrate in conducting the parade is not strictly in accordance with the principles established by the precedents. He would further submit that even the statement in the complaint is vague and ambiguous.
23. Sri.Chandrappa.K.N learned counsel appearing for appellant in Crl.A.No.107/2011, would submit that there is confusion by PWs.1 and 2 regarding identification of accused No.5 as the complainant himself and PW2 are not sure about the presence of accused No.5.
24. Learned counsel appearing for accused No.6 ie., the appellant in Crl.A.No.141/2011 submits that the 16 accused persons have been nailed in a false case for statistical purpose and there is no evidence either oral or documentary against accused No.6 who is the appellant in Crl.A.No.141/2011.
25. Sri.Vishwamurthy, learned High Court Government Pleader would submit that in most of the cases involving the offence punishable under Section 395 IPC, it is the known persons to the victims who are trapped to the force of the accused persons. The life safety and the principles are at stake and the identity has to be established to connect the accused to the guilt and in this case, test identification parade and the evidence deposed in the Court are more than sufficient to bring the guilt of the accused to book.
26. The offence punishable under Section 395 of IPC is as under:
"Whoever commits dacoity shall be punished with imprisonment for life or with rigorous 17 imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 391 defines dacoity as under:-
"When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity"."
27. Thus, the ingredients of Section 391 are number of persons. It is not necessary that the whole number of persons conjointly to commit the offence, or attempt to commit the offence. It includes persons present and thus, aiding such commission or attempt. Robbery committed by five or more persons would turn out to be dacoity. Thus, the identification of the accused by the victims is essential ingredient to attract the offence punishable under Section 395 of IPC or 18 there must also be a way in which the identity of the accused is established beyond reasonable doubt through scientific means standing the test of reasonability and reliability.
28. Thus, the question of identification of the accused or the objects when standing proved distinctly, it is taken as proper identification. It is not necessary that identification parade is the only exclusive means to know the identity of the accused. The identification nevertheless establishes the act as a corroborative evidence to the claim of the prosecution. The undisputed factors are PW1 - Venkatesh and PW2 - Mahadeva are the employees working under one Salim Habeeb who is the sugar merchant doing his business at New Taragupet, Bengaluru.
29. PW1 in his evidence dated 06.03.2007 has stated that he was working under PW3 for past six to seven years at New Taragupet. His master is the sugar 19 merchant and the business carried is in the name of his master's father. PW2 - Mahadeva is colleague of PW1. It was on 10.01.2006 at 3.00 PM., the complainant and PW2 - Mahadeva had gone to RMC Yard, Yeshwanthpur on Yamaha Bike for collection of the proceeds of sugar earlier sold by their master and the total amount of collection as on that date was Rs.9,73,625/-. After collecting the said amount, they were returning to the office on the Yamaha motor cycle and the amount of Rs.9,73,625/- that was collected from the buyers was with them. PW1 - Venkatesh was riding the motorcycle and PW2 - mahadeva was a pillion rider. When they passed through West of Chord Road and moving through Vatal Nagaraj Road, they saw about 5 persons coming in two motor cycles, followed the complainant and stood in front of him and one of them held the complainant, two persons tried to snatch the cash bag from Mahadev, one person was holding the Bajaj Chetak with engine in running condition, another was similarly 20 holding TVS Victor maintaining the engine in running condition. PW1 applied stand to the vehicle and by the time the complainant could go near Mahadev, the person who held the complainant did not allow him to go. The bag that was held by Mahadev was snatched by two persons by hitting Mahadev and passing blows on him. Afterwards, they got into the motorcycles whose engines were in running condition. The complainant told Mahadev to go to shop and inform their Master. In the meanwhile, the key of the motor cycle was not seen and the complaint was lodged at 5.55 pm., on 10.01.2006.
30. He has been cross examined and it is elicited from him that accused No.5 was not present at the time of snatching the bag. He works at M/s.S.S Corporation at RMC Yard. Accused No.5 was known to the complainant earlier. Accused Nos.2 and 4 were holding the two wheelers with engine in running condition. The 21 other part of the cross examination is regarding ability of the witnesses to recollect and tell as to the amount collected in each shop wise and this witness was unable to remember.
31. The next prime witness for the prosecution is, PW2 Mahadeva. This witness was examined as PW2 on 07.03.2007. He reiterated the version that has been spoken by PW1. Further, he identified the accused with reference to the incident and also the identification parade at Ex.P16, conducted by PW19 on 06.03.2006 at Central Jail, Parappana Agrahara. Further, he identifies accused Nos.1 to 5 who are present before court and says that they are the persons who are identified by them. Incidentally, he tells that accused No.5 was working in M/s.S.S.Corporation at RMC Yard and this witness was knowing about the said accused even earlier to the incident. He identifies accused No.1 as the person who snatched the cash bag from this 22 witness. Accused No.2 - Aftab is the person who was holding the motor cycle with engine in running condition. Accused No.4 - Tanveer Pasha was similarly holding Bajaj Chetak Scooter. Thus, these two witnesses are the persons who were holding the amount of Rs.9,73,625/- on 10.01.2006, when they were waylaid near Karur Vysya Bank by five unknown persons (Accused). The amount what they were holding was belonging to PW3 as he is the master of PWs.1 and 2 who had sold sugar to various merchants namely PWs.4 to 9. His evidence is that he is running the business in the name and style of Habeeb Lathif Agency at New Taragupet, Bengaluru and he supplies sugar for retail merchants. In this connection, PWs.1 and 2 after coming to know about the collection he had instructed PWs.1 and 2 to deposit the said amount to Amanath Co- operative Bank at BVK Iengar Street, Bengaluru. Later, he was informed that the amount was snatched in the offence of dacoity. This witness also goes to the police 23 station and also seen the complaint. He has been cross examined on behalf of accused No.8.
32. Insofar as the collection of the amount of proceeds of sugar sold by PWs.4 to 9 is as under:
Sl. Purchased by Amount Date Receipt No./ No. in rupees Exhibit 1 PW4 - Mohammad 58,275 10.01.2006 1059/P7 Mushtaq 2 PW5 - Soyab 82,550 10.01.2006 1062/P10 3 PW6 - Ahamad Anees 70,000 10.01.2006 1063/P11 4 PW7 - Mohammad 2,39,720 10.01.2006 1065/P13 Saleem 5 PW8 - Juneed 1,35,000 10.01.2006 1066/P14 6 PW9 - Liyaz 2,50,000 10.01.2006 1064/P12 7 M/s Chinni Traders 88,080 10.01.2006 1061/P8 8 M/s Mustaq Traders 50,000 10.01.2006 1060/P9 Total 9,73,625 Incidentally, the said witnesses came to know that the offence of dacoity was committed and the amount was looted from PWs.1 and 2.
33. Insofar as PW10 mahazar witness is concerned, he turned hostile. PW11 - Ravi Kumar is cited as a circumstantial witness because it was he who had sold TVS motor cycle to CW22 for Rs.25,000/- and the said vehicle was used for commission of offence. 24 Similarly PW12 - Basha Khan had sold mobile to accused No.2. PW13 has taken photographs of the currency before they were returned conditional. PW14 sold the Bajaj Chetak to accused No.4.
34. Insofar as the other witnesses are concerned, they are circumstantial and are not exclusive material witnesses to the prosecution. However, they tell regarding the circumstances such as PW18 - Muzamil Pasha regarding selling of Victor vehicle to accused No.2, who inturn has sold the vehicle to CW22.
35. PW19 A.S.Patil conducted identification parade on 06.03.2006 at Central Jail, Parappana Agrahara, Bengaluru. He speaks about the procedure conducted by him after receiving intimation/request from the Investigating Officer. The copy of identification parade report is marked at Exs.P60 and 61. This witness states in his evidence that the witnesses 25 Mahadev and Venkatesh were procured and totally 32 persons were present. Among that Mahadev identify Amjad, accused No.5 who was at Sl.No.6. 4th accused Tanveer Pasha, who was at Sl.No.17 after which the standing order was shuffled. Thereafter, Venkatesh, the witness was asked to identify, but he did not identify accused No.3 Firoz Pasha who was at Sl.No.8 and accused No.5 Amjad who was at Sl.No.14, accused No.4 Tanveer Pasha at Sl.No.23, accused No.2 Aftab at Sl.No.27 and accused No.1 Shabber Ahmed at Sl.No.32. Accused No.6 Abdul Naseer was on bail by that time. Hence, he was not subjected to identification parade.
36. It is in respect of the identification, learned counsel Sri.Kulkarni appearing for the appellants in Crl.A.No.193/2011 would submit that the principles of identification were not followed and the identity and involvement of the accused in the offence are not established. The version of PWs.1 and 2 and the 26 Executive Magistrate PW19 does not throw light to identify the Accused. He further disputed regarding recovery of cash. The quantum of amount and the recovery from the respective accused persons are stated in a tabular form above.
37. In this connection, it is necessary to take judicial note of the fact that the amount of Rs.6,25,000/- was said to have been recovered. If such an amount was planted either by the prosecution or by the complainant, there is no occasion to blame such version as there cannot be logic and reliability in the explanation to file a case against accused spending amount of Rs.6,25,000/- was required.
38. Insofar as recovery mahazar and the hostility of the witnesses regarding recovery is concerned, every recovery need not be of the same kind. In the context and circumstances of the present case, it cannot be the case of throwing away of Rs.6,25,000/- only to prove 27 accused guilty of the offence punishable under Section 395 of IPC. Thus, there cannot be a wrong investment of huge amount only to ensure that the accused persons to found guilty.
39. More over, in the set of circumstances and facts of the cases, the statement given by the Investigating Officer regarding mahazar cannot be brushed aside because the amount is said to have been recovered. Regarding currency, serial number of the currency cannot be equated with the amount recovered.
40. Further, insofar as the memory is concerned, it all depends on the nature of the incident, victimization, loosing something material or gain something costly or book and incident having a great effect on the life style or the personality of person are remembered because of the drastic nature of the incident like in case of murder, the victims whose lives are taken away in the presence of the complainant or 28 other witnesses kith and kin being butched. This incident leave drastic impact on them and they are remembered so long a person is alive. In this connection the rememberance during the identification parade or before the Court is with reference to the incident and it is not the accused person being seen first time during the identification parade. The very basis for the accused being identified in central jail by the witnesses PWs.1 and 2 is due to a bitter and danger experience undergo by them on the date of incident.
41. Learned counsel Sri.Kulkarni would submit that discrepancy regarding the persons as to their appearance, complexion, personality are not stated in the complaint. One has to remember that it is a dacoity case wherein the victim cannot be expected to have audience of the accused in a free atmosphere and photographic memory could be expected. Minor discrepancy cannot be glorified and used as a weapon to 29 dislodge the case of the prosecution. Further, there was no animosity on the part of the complainant and prosecution against the accused.
42. No doubt, in a case wherein the witnesses had no occasion to see the face of the accused in full, in such cases the identification cannot be in a ambiguous way, even to the extent when the accused persons in a case of dacoity were found wherein monkey caps are put to their faces or some colour or appliance to keep their original face in suppression and the identification of voice, personality. The identification has to be made with assigning reasons as well and the basis of identification by the witnesses, more particularly, when the incident happened during dark hours. Here is a case wherein the incident had happened in day light at about 5.30 p.m., in a busy area. The accused going on motor cycle, accused persons getting down from the motor cycle after objecting PWs.1 and 2 but were also 30 on motor cycle and PW1 applied a stand to his vehicle. Accused approaching or rushing towards the complainant and his colleague PW2. Thereafter, trying to snatch, then literally snatching cash bag from PW2. All these occasions mean that the PWs.1 and 2 had sufficient opportunity of seeing the accused. Even in the evidence they say that they identify the accused who had committed dacoity on them.
43. Now insofar as accused No.5 is concerned, learned counsel would submit that he was admitted to be working at M/s.S.S.Corporation, RMC Yard. On the contextual reading of the evidence of PWs.1 and 2, insofar as the identification of accused No.5 is concerned, it is stated by PW1 that accused No.5 was not present and he was at M/s.S.S.Corporation which goes to show that he knows accused No.5. Therefore, in the context of the matter, PW2 says that he identified 31 five persons and accused No.5 was one among them, out of the total number of persons of 22 to 30.
44. On the other hand, it is from the incident dated 10.01.2006 and the oral evidence of PWs.1 and 2 dated 06.03.2006. There is nexus between the date of incident and the date of adducing oral evidence, wherein accused No.5 is identified in principle.
45. Insofar as the evidence of PWs.1 and 2 who are the star witnesses regarding identifying the accused is concerned, they have spoken regarding the place, time, nature, impact and the other aspects of the offence committed by the accused persons punishable under Section 395 IPC. The witnesses cannot be expected to have photographic memory with computer precision and they don't answer questions as a participant in rapid fire round but answers immediately on pressing of the buzzer. The probability of the version and the sequence of event spoken are also to be 32 considered. It is necessary to mention that the trial was conducted against six persons two remained absconding. The evidence regarding commission of offence, reliability in the version of the witnesses, material objects inspire confidence for the Court to come to a finding.
46. In these circumstances and context the cases, the oral and documentary evidence, recovery mahazar, establish the offence committed by the accused on 10.01.2006 in accordance with the charges leveled against them.
47. The learned trial Judge is right in finding the accused guilty after confirming their participation, their identity and he has come to a right conclusion by convicting the accused.
48. In over all circumstances of the case, I am of the view that there are no infirmities, irregularities or 33 material defects in the judgment passed by the learned Presiding Officer, Fast Track Court No.VIII, Bangalore City in SC Nos.505/2006 c/w 1030/2006 in convicting the accused guilty of the offence punishable under Section 395 of IPC and sentencing them.
Hence, `all the appeals being devoid of merit are rejected.
Sd/-
JUDGE tsn*/GH