Karnataka High Court
State Of Karnataka vs Vikki Singh @ Vikki on 15 September, 2023
Author: H.B.Prabhakara Sastry
Bench: H.B.Prabhakara Sastry
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CRL.A No.1836/2016
C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
PRESENT
THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY
AND
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO.1836 OF 2016 (A)
C/w
CRIMINAL APPEAL NO.1834 OF 2016 (A) AND
CRIMINAL APPEAL NO.1962 OF 2016 (A)
In Criminal Appeal No.1836/2016 :
BETWEEN:
The State by
Jnanabharathi Police Station,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-01. ...Appellant
(By Sri. B.N.Jagadeesh, Addl. SPP)
AND:
1. Vikki Singh @ Vikki,
S/o Mulsingh,
Aged about 36 years,
R/at No.127, Dowki Post,
Fatehbad Taluk,
Agra District,
Uttar Pradesh - 202 124.
2. Vishal Singh,
S/o Pramod Singh,
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& CRL.A.No.1962/2016
Aged about 26 years,
R/o.Dowki Post,
Fathehbad Taluk,
Agra District,
Uttar Pradesh-202124. ...Respondents
(By Sri. N.S.Sampangiramaiah, Advocate)
This 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 dated 01.07.2016 passed
by the Court of the 56th Addl. City Civil and Sessions Judge in
S.C.No.1205/2013 acquitting the respondents for the offence
punishable under Section 392 r/w Section 397 and 413 of IPC
and set aside the judgment and order of acquittal dated
01.07.2016 passed by the Court of the 56th Addl. City Civil and
Sessions Judge in S.C.No.1205/2013 for the offence punishable
under Section 392 r/w Section 397 and 413 of IPC and convict
and sentence the accused for the offences punishable under
Sections 392 r/w 397 and 413 of IPC by allowing the appeal, in
the interest of justice.
In Criminal Appeal No.1834/2016
BETWEEN:
The State by
Jnanabharathi Police Station,
Represented by
State Public Prosecutor,
High Court Building,
Bengaluru-01. ...Appellant
(By Sri. B.N.Jagadeesh, Addl. SPP)
AND:
1. Vikki Singh @ Vikki,
S/o Mulsingh,
Aged about 36 years,
R/at No.127, Dowki Post,
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
Fatehbad Taluk,
Agra District,
Uttar Pradesh - 202124.
2. Vishal Singh,
S/o Pramod Singh,
Aged about 26 years,
R/o.Dowki Post, Fathehbad Taluk,
Agra District,
Uttar Pradesh-202124. ...Respondents
(By Sri. N.S.Sampangiramaiah, Advocate)
This 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 dated 01.07.2016 passed
by the Court of the 56th Addl. City Civil and Sessions Judge in
S.C.No.1289/2013 for the offence punishable under Section
392 r/w Section 397 and 413 of IPC and set aside the judgment
and order of acquittal dated 01.07.2016 passed by the Court of
the 56th Addl. City Civil and Sessions Judge in
S.C.No.1289/2013 for the offence punishable under Section
392 r/w Section 397 and 413 of IPC by allowing the appeal and
convict and sentence the accused for the offences punishable
under Sections 392 r/w 397 and 413 of IPC by allowing the
appeal, in the interest of justice.
In Criminal Appeal No.1962/2016 :
BETWEEN:
State of Karnataka
By Jnanabharathi Police Station,
Rep. by State Public Prosecutor,
High Court Building,
Bengaluru-1. ...Appellant
(By Sri. B.N.Jagadeesh, Addl. SPP)
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& CRL.A.No.1962/2016
AND:
1. Vikki Singh @ Vikki,
S/o Mulasingh,
Aged 36 years,
R/at No.127, Dowki Post,
Fatehbad Taluk,
Agra District,
Uttar Pradesh - 283 111.
2. Vishal Singh,
S/o Pramod Singh,
Aged about 26 years,
R/o.Dowki Post,
Fathehbad Taluk,
Agra District,
Uttar Pradesh-283 111. ...Respondents
(By Sri. N.S.Sampangiramaiah, Advocate)
This 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 dated 01.07.2016 passed
by the Court of the 56th Addl. City Civil and Sessions Judge in
S.C.No.1206/2013 acquitting the accused for the offence
punishable under Section 392 r/w Section 397 of IPC and
Section 413 of IPC and set aside the judgment and order of
acquittal dated 01.07.2016 passed by the Court of the 56th
Addl. City Civil and Sessions Judge in S.C.No.1206/2013
acquitting the accused for the offence punishable under Section
392 r/w Section 397 of IPC and Section 413 of IPC and convict
and sentence the Respondents -Accused for the offences
punishable under Section 392 r/w Section 397 of IPC and
Section 413 of IPC, in the interest of justice and equity.
These Criminal Appeals having been heard through
Physical Hearing/Video Conference and reserved for Judgment
on 22.08.2023, coming on for pronouncement this day,
Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :
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COMMON JUDGMENT
In all these three appeals, the very same
complainant-Police have challenged the judgment of
acquittal under Section 378 (1) and (3) of the Code of
Criminal Procedure, 1973 (hereinafter for brevity referred
to as `the Cr.P.C.'), passed in S.C.No.1205/2013,
S.C.No.1289/2013 and S.C.No.1206/2013, by the learned
LVI Addl.City Civil & Sessions Judge, Bengaluru
(hereinafter for brevity referred to as the `Sessions
Judge's Court'), dated 01.07.2016, acquitting the present
respondent Nos.1 and 2, who were accused Nos.1 and 2 in
all the above three Sessions Cases, for the offences
punishable under Section 397 and Section 413 of the
Indian Penal Code, 1860 (hereinafter for brevity referred
to as `the IPC').
2. The summary of the case of the prosecution in
S.C.No.1205/2013 is that, on the date 01.03.2013, at
about 4.00 p.m., while PW-1 (CW-1) Smt.Subbalakshmi
was going by walk in 7th Cross, IV Block, Nagarabhavi II
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Stage, Bengaluru, within the limits of complainant-Police
Station, the present respondents (accused Nos.1 and 2)
coming over there on a motorcycle, by threatening said
Smt.Subbalakshmi to her life by showing her a knife,
have robbed a golden Mangalya chain worn by her,
weighing about 60 gms. and thus, have committed the
offence punishable under Sections 397 of IPC.
The summary of the case of the prosecution in
S.C.No.1289/2013 is that, on the date 22.05.2013, at
about 3.15 p.m., while PW-1 (CW-1) Smt.Bhagyamma
was going by walk in front of House No.222, V Cross of
Annapoorneshwari Nagar, Bengaluru, within the limits of
complainant-Police Station, the present respondents
(accused Nos.1 and 2) approaching her on a motorcycle on
the pretext of ascertaining the location of an extension,
put her into life threat by showing a knife to her and
robbed a golden Mangalya chain worn by her, weighing
about 42 gms. and thus, have committed the offence
punishable under Section 397 of IPC.
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& CRL.A.No.1962/2016
The summary of the case of the prosecution in
S.C.No.1206/2013 is that, on the date 13.02.2013, at
about 5.40 p.m., while PW-1 (CW-1) Smt.Sundaramba
was going by walk towards Adarsha Hospital, situated at
Papareddipalya, Nagarabhavi II Stage, Bengaluru, within
the limits of complainant-Police Station, the present
respondents (accused Nos.1 and 2) approaching her on a
motorcycle, pushed her and made her to fall on the
ground and putting her life threat by showing a knife
which they were possessing, robbed Smt.Sundaramba of a
golden Mangalya chain worn by her, weighing about
55 gms. And thus, have committed the offence punishable
under Section 397 of IPC.
Subsequent to the commission of the robbery, the
accused have pledged the stolen articles knowing fully well
that they were the stolen articles, as such, they dealt with
the stolen articles as habitual dealers and thereby, have
committed the offences punishable under Section 413 of
IPC.
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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 Section 397 and Section 413 of IPC in all the three
Sessions Cases. 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
thirteen (13) witnesses as PW-1 to PW-13, got produced
and marked documents from Exs.P-1 to P-14 and got
produced one Material Object at MO-1, and from the
accused's side, no witnesses were examined, however,
one document was marked as Ex.D-1 in
S.C.No.1205/2013.
In S.C.No.1289/2013, the prosecution has examined
eleven (11) witnesses as PW-1 to PW-11, got produced
and marked documents from Exs.P-1 to P-14 and got
produced one Material Object at MO-1 and from the
accused's side, no witnesses were examined, however,
one document was marked as Ex.D-1.
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& CRL.A.No.1962/2016
In S.C.No.1206/2013, the prosecution has examined
eleven (11) witnesses as PW-1 to PW-11, got produced
and marked documents from Exs.P-1 to P-12(a) and
got produced one Material Object at MO-1 and from the
accused's side, no witnesses were examined, however,
one document was marked as Ex.D-1.
4. After hearing both side, the learned Sessions
Judge's Court, by its judgments all dated 01.07.2016,
acquitted the accused of the offence punishable under
Section 397 and Section 413 of IPC. Challenging the same,
the appellant - State has preferred these three appeals.
5. The appellant -State in all these three appeals is
represented by the learned Addl.State Public Prosecutor.
6. The Sessions Judge's Court records were called
for and the same are placed before this Court.
7. In view of the fact that the learned counsel for
the respondents (accused Nos.1 and 2) failed to appear
before this Court on several dates of hearing, this Court by
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& CRL.A.No.1962/2016
its reasoned order dated 31.07.2023, appointed learned
counsel - Sri N.S.Sampangiramaiah, as Amicus Curiae for
the appellants/accused to represent them in these three
appeals.
8. Heard learned Addl.State Public Prosecutor for the
appellant-State and learned Amicus Curiae for the
respondents/accused in all these three appeals, who are
physically present in the Court. Perused the materials
placed before this Court, including the memorandum of
appeals, impugned judgments and the Sessions Judge's
Court records.
9. For the sake of convenience, the parties would be
henceforth referred to as per their rankings before the
learned Sessions Judge's Court.
10. Learned Addl.State Public Prosecutor in all these
three appeals in his arguments submitted that though the
accused have taken a contention that they were tourists to
visit Bengaluru and Ooty and they were falsely
implicated by the police in the crime, but, they have not
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produced any document in support of their contention. He
also submitted that the Sessions Judge's Court was at
error in observing that the accused ought to have been
shown to the complainants in all the cases by the police in
the Police Station. He further submitted that in all these
appeals, the complainants/victims have identified the
accused specifically and stated that it was the accused
who have committed the alleged offences, however, the
Sessions Judge's Court erred in not appreciating the
evidence on the said point in its proper perspective. He
further submitted that recovery of the robbed articles were
made at the instance of the accused and those articles
were identified by the complainants//victims. As such,
there was sufficient evidence to hold the accused guilty of
the alleged offence, however, the Sessions Judge's Court
erred in pronouncing the judgment of acquittal.
11. Learned Amicus Curiae for the
respondents/accused in all these three cases in his
argument submitted that the accused were shown by the
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& CRL.A.No.1962/2016
police to the complainant prior to Test Identification
Parade, as such, Test Identification Parade has lost its
sanctity. The original seizure panchanamas of the alleged
recovery of the robbed articles have not been produced.
The alleged property lost is different from what was given
by the police to the complainants as it varies in its
description and weight. He also submitted that the alleged
voluntary statement of the accused have not been
produced by the Investigating Officer in all these cases.
Further, the alleged owners of the Pawn Broker Shops,
from where the alleged recovery was said to have been
made, have totally turned hostile to the case of the
prosecution. Under such circumstances, noticing the
absence of the evidence to prove the alleged guilt against
the accused, the Sessions Judge's Court has rightly
pronounced the judgment of acquittal, which does not
warrant any interference at the hands of this Court.
12. Both, the learned Addl.State Public Prosecutor for
the appellant and the learned counsel for the respondents
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
in their arguments submitted that, except the evidence of
the complainants and scene of offence panchas, the
evidence of remaining witnesses in all these three
Sessions Cases are identical and they are exactly the copy
of the evidence of the same witness in the previous case.
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
01.03.2023, at about 4.10 p.m., near the house of
Smt.Subbalakshmi CW-1 (PW-1 in S.C.No.
1205/2013), on 7th Cross, IV Block, Nagarabhavi II
Stage, Bengaluru, within the jurisdiction of
complainant-Police Station, both the accused putting
life threat to CW-1 Smt.Subbalakshmi by showing
the knife to her, robbed golden Mangalya chain,
weighing 60 gms. worn by her in her neck and thus,
have committed the offence punishable under
Section 392 read with Section 397 of IPC?
[ii] Whether the prosecution has proved
beyond reasonable doubt that on the date
22.05.2023, at about 4.45 p.m., while
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& CRL.A.No.1962/2016
Smt.Bhagyamma CW-1 (PW-1 in
S.C.No.1289/2013), was going by walk, in front of
house bearing No.222, V Cross, Annapoorneshwari
Nagar, Bengaluru, within the jurisdiction of
complainant-Police Station, both the accused putting
life threat to CW-1 Smt.Bhagyamma by showing the
knife to her, robbed golden Mangalya chain, weighing
42 gms. worn by her in her neck and thus, have
committed the offence punishable under Section 392
read with Section 397 of IPC?
[iii] Whether the prosecution has proved
beyond reasonable doubt that on the date
13.02.2023, at about 5.40 p.m., in front of Adarsha
Hospital, Papireddipalya, Nagarabhavi II Stage,
Bengaluru, within the limits of complainant-Police
Station, both the accused putting life threat to
Smt.Sundaramba CW-1 (PW-1 in
S.C.No.1206/2013), by showing the knife to her,
robbed golden Mangalya chain, weighing 55 gms.
worn by her in her neck and thus, have committed
the offence punishable under Section 392 read with
Section 397 of IPC?
[iv] Whether the prosecution has proved
beyond reasonable doubt that, in all these three
Sessions Cases i.e., in S.C.No.1205/2013,
S.C.No.1289/2013 and S.C.No.1206/2013, both the
accused were habitually dealing in stolen golden
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& CRL.A.No.1962/2016
ornaments with Gold Merchants having knowledge
that the said golden properties were the stolen
properties and thereby the accused being habitual
dealers of stolen property, committed the offence
punishable under Section 413 of IPC?
[v] Whether the judgments of acquittal
under appeals 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 appeals are filed by the complainant-State
against the judgments of acquittal of the accused from the
alleged offences punishable under Section 392 read with
Section 397 and Section 413 of IPC. Since as per criminal
law, the accused is presumed to be innocent until his guilt
is proved and further the accused, in the instant case,
have already been benefitted by the impugned judgment
of acquittal in their 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.
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(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
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."
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(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 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.
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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.
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. PW-1 (CW-1) Smt.Subbalakshmi in S.C.No.
1205/2013 in her examination-in-chief has stated that, on
the date 01.03.2013, after completing her work as a
Teacher in a school, while she was returning to her home
by walk at about 4.00 p.m. in 7th Cross, Nagarabhavi,
near her home, two riders came near to her on a
motorcycle. Coming near to her, the pillion rider pushed
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her down, to which, she fell on the earth. She was
frightened. She slowly got up and noticed that the golden
chain weighing about 60 gms. worn by her in the neck was
found missing. The riders of the motorcycle had robbed a
golden chain from her. She went home and informed to
her son Keshav Kiran, who was at home. He telephoned
to the police. The police came to the spot and recorded
her statement. Stating so, the witness has identified her
statement at Ex.P-1.
The witness has further stated that, thereafter in the
month of July, the Police telephoned to her and showing
two persons as the thieves, asked her to come to
Parappana Agrahara Jail. In the said Jail, she identified
both the accused in a Test Identification Parade. In that
regard also, she has put her signature to a document. The
witness has further stated that, once again in the month of
November, the Police telephoned to her stating that her
golden chain has been recovered from them. Accordingly,
she took the interim custody of the said gold ornament by
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the order of the Court. Stating so, the witness has
identified the said chain worn by her, which was marked at
MO-1. However, she stated that though the accused in
the Court were shown to her by the Police in the Police
Station, still, she cannot identify them as the one who had
robbed the golden chain.
Since the witness did not identify the accused in the
Court, at the request of the prosecution, she was treated
as hostile and permitted to be cross-examined.
Even in her cross-examination from the prosecution
side, she adhered to her original version of her inability to
identify the accused.
In a single sentence cross-examination from the
accused side, it was only denied that she had been to
Parappana Agrahara Jail with the police.
Thus, the entire evidence of this witness about the
entire incident of robbery and two motorcycle riders
robbing her of her golden Manglaya chain, has remained
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undenied from the accused side. Further, it is also not
denied that the golden chain at MO-1 in S.C.No.1205/2013
is the chain that was robbed from her possession.
16. PW-1 (CW-1) Smt.Bhagyamma in
S.C.No.1289/2013 in her evidence has stated that on the
date 22.05.2013, at about 3.15 p.m. in order to meet her
friend by name Lakshmi, while she was going on by walk
in Annapoorneshwari Nagar, Bengaluru, two persons came
on a motorcycle from the opposite side and enquired her
about the location of a locality called Parvathahalli. She
told that it is not Parvathahalli, but, it is Mallatahalli and
shown them the route. However, after going a little
forward in that direction, they once again came back to
her and asked her to tell them the route to Parvathahalli.
She told them that it was not Parvathahalli, but,
Mallathahalli and explained the route again. At that time,
the pillion rider on the motorcycle shown her the knife and
attempted to snatch the chain worn by her. In the said
process, he succeeded and took away the golden chain
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worn by her around her neck. The chain was weighing
42 gms. She fell down and was struggling, at that time,
the people gathered. The motorcycle riders who had
robbed the chain had left the place by then. She went to
the complainant-Police Station and lodged a complaint,
which she has identified as Ex.P-1. The witness has also
stated that the police verified the spot and drew a
panchanama, which she has identified at Ex.P-2. She
further stated that, after few days, in
Rajarajeshwarinagara Police Station, the ornaments were
given back to her. The police had summoned her to
identify the accused in the jail. She identified the accused.
Stating so, the witness has identified both the accused in
the Court as the robbers who robbed her golden chain.
She identified the said golden chain claiming that she has
brought the same and got it marked as MO-1.
In her cross-examination, she stated that the chain
that was robbed in the incident was weighing higher than
the chain that was given to her and marked at MO-1.
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She also stated that the chain given to her is different in
its pattern with the one she had lost in the incident. She
identified a photograph at Ex.P-3 and stated that the
police had given her the chain at MO-1 stating to her that
till the actual chain lost by her is traced and recovered by
them, she can retain the other chain given by them. She
categorically stated that the police did not show her the
accused in the Police Station and that she has identified
the accused in the Jail.
Thus, in the cross-examination of this witness also,
the occurrence of the incident of robbery of her gold chain
on 22.05.2023 at a knife point by two motorcycle riders
has not been denied or disputed.
17. PW-1 (CW-1) Smt.Sundaramba in
S.C.No.1206/2013 has stated in her evidence that, on the
date of the incident, she joined by her husband Sri
Ramakrishna Shetty (PW-2) in order to meet her brother-
in-law by name Sri Jayasheel Shetty, had gone to a
hospital at Nagarabhavi in an autorickshaw. After getting
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down from the autorickshaw, while they were about to
enter the hospital, at that time, two persons approached
them on a motorcycle, among whom, the pillion rider
snatched the golden chain worn around her neck and
made her to fall on the earth. The people gathered there.
She gave a complaint before the police. Stating so, the
witness has identified the second accused Vishal Singh in
the Court and identified her complaint at Ex.P-1. She also
stated that, after showing the spot of offence to the police,
they drew a scene of offence panchanama, which she has
identified at Ex.P-2.
She further stated that, within a month after she
lodging the complaint, the police had summoned her to
the Police Station, where she identified the accused. She
stated that the accused present in the Court are the very
same accused whom she identified in the Police Station.
She further stated that, thereafter the police had taken
her to Parappana Agrahara Jail, where, in the Jail also, she
identified both the accused. Stating that the police had
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
returned her chain, the witness has identified the said
chain worn by her as MO-1.
Since this witness did not speak anything about she
being threatened by the accused with the knife, she was
permitted to be treated as hostile by the prosecution and
the prosecution was permitted to cross-examine her.
In her cross-examination, she admitted the
suggestions made to her as true, including a suggestion
that, on the date 13.02.2013, while she was walking near
Adarsha Nursing Home at Papiraddipalya, two unidentified
accused coming on a motorcycle from the opposite
direction, threatened her showing a knife to her and
enquired about what she possess, by which, being
frightened, she gave them one long Mangalya chain,
weighing about 55 gms. which she had worn around her
neck along with golden pendent it had. She admitted that,
accordingly she gave her complaint to the police. She also
admitted a suggestion as true that on 14.04.2013, the
Police had once again summoned her to the Police Station,
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& CRL.A.No.1962/2016
at which time, she was wearing a golden chain not with
the one pendent and black pearls. She admitted a
suggestion as true that being scared, she has stated so in
the complaint.
In her cross-examination from the accused side, she
has further stated that in the incident, she lost conscious.
She has also stated that, within the blink of eyelids, her
chain had disappeared. She admitted a suggestion as true
that, on the date of the incident, she was wearing golden
Karimani chain with Mangalya. In her further statement,
she has stated that, on the date of the incident, she was
not wearing golden Karimani Manglya chain and the same
was kept in her house. She also admitted as true that a
Manglya chain would not be removed from the neck. The
denial suggestions made to her were not admitted as true
by the witness.
Even in this case also, the evidence given by PW-1
Smt.Sundaramba about the incident of two motorcycle
riders robbing her of a golden neck chain has not been
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specifically denied or disputed from the accused side.
Thus, in all the three cases, the accused have not denied
the occurrence of the incident of robbery of the gold
chains by two motorcycle riders, threatening the
respective complainants with the knife. Thus, the incident
of robbery of golden chain from the above said three
complainants and of the fact that those golden chains
which the respective complainants have identified at
MO-1, in each of these three cases, stands established.
18. Regarding the place of the alleged offence, there
is no much dispute from the accused side. According to
the complainant (PW-1/CW-1), Smt.Subbalakshmi in
S.C.No.1205/2013, the place of the offence was on
7th Cross, Nagarabhavi II Stage, Bengaluru.
19. PW-2 (CW-2) Keshav Kiran and PW-3 (CW-3)
Praveen in S.C.No.1205/2013, have stated that the scene
of offence panchanama was drawn in their presence in the
matter, which the witnesses have identified at Ex.P-2.
Except making a suggestion to the witnesses that they
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have put their signature to the said panchanama in the
police station, no more questions were put to the
witnesses. The above suggestion made to them was not
admitted as true by them.
On the other hand, PW-10 (CW-22) Suryaprasad S.,
the then Police Sub-Inspector of the complainant-Police
Station, has in his evidence in S.C.No.1205/2013 stated
that the scene of offence panchanama was drawn by him
as per Ex.P-2 in the presence of panchas, including PW-2
Keshav Kiran and PW-3 Praveen. Thus, the place of
occurrence of the offence stands established in
S.C.No.1205/2013.
20. In S.C.No.1289/2013, according to the
complainant Smt.Bhagyamma (PW-1/CW-1), the place of
offence was Annapoorneshwari Nagar, Bengaluru. In her
cross-examination, apart from non-denial of occurrence of
incident of robbery, even the place of occurrence of the
offence also has not been denied. Furthermore, PW-2
(CW-2) Venkatarmaiah in S.C.No.1289/2013, has also
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stated that the scene of offence panchanama as per
Ex.P-2 was drawn in his presence in front of the house
bearing No.222, on 5th Cross, Annapoorneshwari Nagar,
Bengaluru. Even in his cross-examination also, except
suggesting to the witness that he has put his signature to
the said panchanama in the Police Station, no further
questions were put to the witness. The said suggestion
also was not admitted as true by the witness.
21. PW-6 (CW-22) Imtiaz Patel, then Police
Sub-Inspector of the complainant-Police Station in
S.C.No.1289/2013, has in his evidence stated that, apart
from receiving the complaint from the complainant as per
Ex.P-1 on 22.05.2013 and submitting FIR to the Court as
per Ex.P-4, he has visited the scene of offence on the very
same day and drew a scene of offence panchanama as per
Ex.P-2. The said evidence of the Investigating Officer
stands corroborated by the evidence of PW-1 and PW-2 in
the matter. As such, the place of occurrence of the
offence stands proved even in S.C.No.1289/2013 also.
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22. In S.C.No.1206/2013, according to PW-1 (CW-1)
Smt.Sundaramba, the place of offence was in front of a
hospital at Nagarabhavi. In her cross-examination, the
said place of offence has not been denied or disputed.
However, PW-2 K.S.Ramakrishna Shetty in the said case is
the husband of PW-1 Smt.Sundaramba. In his evidence,
he was not quite sure as to whether he has put his
signature on the scene of offence panchanama at Ex.P-2.
In his examination-in-chief, he stated that, he put the
signature in the Police Station. However, after treating him
hostile, when the prosecution cross-examined him, he
admitted a suggestion as true that mahazar was drawn
near Adarsha Hospital at Nagarabhavi, Bengaluru and it is
in that place only, he has put his signature. However, in
his cross-examination from the accused side, he stated
that he has signed to the said mahazar, however, due to
his age, he is unable to remember in which place he has
signed to the said mahazar. As such, his evidence may
not be of much help to the prosecution.
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& CRL.A.No.1962/2016
23. In spite of these evidence, the evidence of PW-10
(PW-22) Suryaprasad S., the then Police Sub-Inspector of
complainant-Police Station shows that, he after receiving
and registering the complaint from the complainant
Smt.Sundarambha as per Ex.P-1 on the date 13.02.2013
and submitting FIR to the Court as per Ex.P-12, visited the
place of offence on the same evening and drew a scene of
offence panchanama as per Ex.P-2. The said evidence of
PW-10 corroborates the evidence of PW-1
Smt.Sundaramba that the police had visited the place of
offence. Thus, the place of offence stands proved as in
front of Adarsh Hospital, Nagarabhavi, Bengaluru, in
S.C.No.1206/2013.
Thus, in all the above three Sessions Cases, the
place of offence as shown in the charge sheet stands
proved.
24. The next question that arises for consideration is
whether it was the present accused and accused alone
who have committed the act of robbery. In that regard,
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& CRL.A.No.1962/2016
admittedly there are no eye witnesses to the alleged
incident, except the victims, who are PW-1 in all these
three cases. Admittedly, none of the complainants
(PW-1's) in all these three cases have given the names of
the accused or their identity in the complaint since the
accused were strangers to them. It is only after the arrest
of the accused in the alleged recovery said to have been
made by the police, the process of identification of the
accused has taken place. Therefore, the alleged
involvement of the accused in the commission of the crime
is attempted to be established by the prosecution only
through the alleged recovery said to have been made at
the instance of the accused and their identification in the
Test Identification Parade.
25. In order to prove the arrest of the accused,
alleged recovery of the alleged robbed articles from the
accused and about proving the Test Identification Parade,
the prosecution has examined same set of witnesses in all
these three Sessions Cases, who are, Sri Upendra Gowda,
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& CRL.A.No.1962/2016
Sri Mahadevaiah, Sri Vinayaka, Sri Balaraju, Sri Ravi K.,
and Sri Umeshachandra.
In addition to them, to prove the alleged recovery,
one Sri Manish Agarwal and one Sri Jitendra Agarwal were
examined in S.C.No.1205/2013 and S.C.No.1289/2013.
The evidence of each of these witnesses is identical in all
the three Sessions Cases.
In addition to these witnesses, towards proving the
alleged recovery at the instance of the accused, one more
witness by name Sri Imtiyaz Patel was examined as PW-6
in S.C.No.1289/2013.
Sri Upendra Gowda, then Head Constable of
complainant-Police Station was examined as PW-4 in
S.C.No.1205/2013 and S.C.No.1206/2013 and as PW-3 in
S.C.No.1289/2013.
One Sri Mahadevaiah, Asst.Sub-Inspector of
Rajarajeshwarinagar Police Station, Bengaluru was
examined as PW-8 in all these Sessions Cases.
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26. Sri Upendra Gowda in his examination-in-chief
has stated that on 04.06.2013, the Police Inspector of
Rajarajeshwarinagar Police Station by name Sri Ravi
(PW-9 in all the three Sessions Cases), instructed him and
other staff, including Sri Mahadevai, the
Asst.Sub-Inspector to search for the accused in their
Station Crime No.243/2012 and the articles. On the same
day, at about 5.00 O'Clock, the police informants
informed them that the accused who were required were
available in Room No.106 of EST Lodge on Tank-Bund
Road. Accordingly, himself, joined by the other members
of the team, who were instructed by PW-9 to search for
the accused, went to Room No.106 of the said Lodge.
They found two male persons in the said Lodge and
collected their details, who identified themselves as Vicky
Singh and Vishal Singh (the accused in all these three
appeals). The team conducted a physical search of
accused Vicky Singh and noticed the presence of two
ladies golden neck-chain in the pocket of the pant of the
said accused. Then the team, including this witness,
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& CRL.A.No.1962/2016
produced the accused, as well the articles found in the
possession of the accused, in front of said Sri Ravi, the
Police Inspector of Rajarajeshwarinagar Police Station
(PW-9). Sri Mahadevaiah, Asst.Sub-Inspector, submitted
his report in that regard. Stating so, the witness has
identified both the accused in the Court.
In his cross-examination, the witness stated that
Inspector Sri Ravi had neither given them the name and
address of the accused nor even their photographs or
identification marks. He also stated that no order in
writing was given in assigning the work of search for the
accused. The denial suggestions made to them were not
admitted as true by this witness.
27. Sri M.V.Mahadevaiah was examined as PW-8 in
all these three Sessions Cases. In his evidence, he has
reiterated what PW-4/CW-3 Sri Upendra Gowda has stated
about they receiving the information about the availability
of accused in Room No.106 of a Lodge (this witness has
stated the name of the Lodge as `ESP' not `EST''),
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& CRL.A.No.1962/2016
and these people going to the said room in the Lodge and
noticing the presence of present two accused and also
about subjecting the accused-Vicky Singh for physical
search and finding the accused possessing two ladies
golden chain in his pant pocket and thereafter, producing
both the accused with the articles before the Police
Inspector Sri K.Ravi. PW-8 has further stated that, in that
regard, he has submitted his report to the Investigating
Officer, which he has identified at Ex.P-8. He has also
identified both the accused in the Court.
28. The common thing to be noticed in the evidence
of both these witnesses is that, in their evidence as
narrated above, neither of them anywhere have stated
that they came to know that these accused were found
connected to the offence in these three Sessions Cases for
which the accused are charged. Further, even though
both these witnesses have stated that accused No.1 -
Vicky Singh was found in possession of two ladies golden
neck-chain and stated that they could identify those two
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& CRL.A.No.1962/2016
chains, however, the prosecution has not made any
attempt to show those two golden chains and got them
marked as Material Objects. Had really these accused
were found with possession of two golden chains, nothing
had prevented the prosecution from producing those two
golden chains and getting the same marked through any
of the witnesses, which it did not do.
29. PW-9 Sri K.Ravi, then Police Inspector of
Rajarajeshwarinagar Police Station in his evidence in all
these three Sessions Cases has stated that he formed a
team of his staff members, including Sri Upendra Gowda
and Mahadevaiah, for the search of accused involved in
the commission of crime in these cases and the said team
on the same day evening, along with the report of
Mahadevaiah, Asst.Sub-Inspector, produced both the
accused along with articles. He arrested both the accused
and recorded their voluntary statement and also seized
two golden chains found in the possession of accused
No.1-Vicky Singh by drawing a mahazar.
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& CRL.A.No.1962/2016
PW-9 further stated that, on the date 05.06.2013, he
produced both the accused before the Court and took their
police custody till 18.06.2013. On 06.06.2013, he
recorded further voluntary statement of the accused and
proceeded to the places Agra and Koshikala in the State of
Uttar Pradesh on the same day to conduct further
investigation taking along with him Sri Balaraju, the Police
Inspector of Gnanabharathi Police Station, Sri Imtiyaz
Patel, the Police Sub-Inspector, Sri Mahadevaiah, the
Asst.Sub Inspector, Sri Yogendra Kumar, Sri Aravind,
Sri Narasimhamurthy, Sri Nagaraju and Sri Vinayaka, the
Police Constables.
The witness has further stated that, on the date
09.06.2013, they reached a village called Koshikala in
Uttara Pradesh. There, in the presence of panchas by
name Disember Dayal bin Babulal and Manish Agarwal and
from one Jitendra Agarwal, who was the owner of a
jewellery shop and was shown by the accused, he seized
ten golden chains and one broken chain under a mahazar.
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
Stating that the original of the said mahazar is produced in
S.C.No.243/2012 and S.C.No.54/2013, the witness has
produced a copy of the said mahazar attested by him as
`true copy' at Ex.P-9, however, subject to the objection.
He also stated that, on the same day, he recorded the
statement of Disember Dayal, Jitendra Agarwal and
Manish Agarwal.
PW-9 has further stated that, on the date
11.06.2013, the accused have taken them to a shop of
one Sri Pawan Jain at Kashmir Bazar, Agra, and stated
that six golden chains and six bangles were given there,
the same were seized in the presence of panchas by name
Ashok Agarwal bin Ramesh Chand and Rajan Agarwal
Thereafter, the statements of Pawan Jain, Rajan Agarwal
and Ashok were recorded by him. The witness has also
stated that on 14.06.2013, they returned to Bengaluru.
On 15.06.2013, he subjected the seized articles at
Koshikala and Agra to the Property Form and submitted to
the Court. On the same day, the accused took them to
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& CRL.A.No.1962/2016
S.P. Lodge at Majestic to Room No.106, stating that they
have kept some more ornaments there. As such, in the
presence of panchas by name Manjunath bin
Krishnegowda, Madhu bin Krishnegowda, he seized three
golden chains produced by the accused from out of the
ceiling fan by drawing a mahazar. Subject to the
objection, he got marked the said mahazar at Ex.P-10.
The witness has also stated that since the accused
shown a motorbike used in the commission of the crime
near the Lodge, he seized the same by drawing a seizure
panchanama. The said motorbike was bearing its
registration No.MH-43-AA-6529. The witness has
identified the said motorbike in the photographs at
Ex.P-11 and Ex.P-12. He has stated that, thereafter, he
recorded the statements of Manjunath bin Krishnegowda,
Madhu bin Krishnegowda and the statements of his police
staff, who accompanied him for the recovery and seizure.
He has also stated that, on 18.06.2013, he remanded the
accused to judicial custody and on 25.07.2013, based on
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& CRL.A.No.1962/2016
the jurisdiction and obtaining the permission from the
Court, he transferred the matter to Gnanabharathi Police
Station. He stated that, he could identify the accused
present before the Court.
PW-9 was subjected to a detailed cross-examination
from the accused side, wherein, for the several of the
basic details regarding the alleged journey to the State of
Uttar Pradesh and the alleged recovery, including the
details of the vehicle in which they were said to have gone
to the State of Uttar Pradesh, no details could be given by
this witness, except stating that he does not know.
30. Among the team said to have been to the State
of Uttar Pradesh for recovery, the prosecution examined
two more witnesses by name Vinayaka as PW-5 in
S.C.No.1205/2013, S.C.No.1206/2013 and as PW-4 in
S.C.No.1289/2013 and Sri Balaraju as PW-6 in
S.C.No.1205/2013, S.C.No.1206/2013 and as PW-5 in
S.C.No.1289/2013. Both these witnesses in their evidence
have stated that they were in the police team which went
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
to the state of Uttara Pradesh along with accused for the
recovery to be made at the instance of the accused. They
went in a private vehicle to the State of Uttar Pradesh.
The accused first took them to a place called Kaushikana
(PW-6 calls it as Koushikana) a small Town near Mathura.
There they took them to a Jewellary shop of one
Sri Jitendra Agarwal. The said Jitendra Agarwal stating
that said accused had sold him 10 golden chains and two
golden bangles, produced those articles. Those articles
were seized in the presence of one Sri Bisinder Dayal and
Manish Agarwal. According to PW-5 - Vinayaka, those
articles in total were weighing 459 grams.
Both the witnesses have further stated that,
thereafter, the accused took them to the place Agra.
PW-5 alone has stated that accused took them to a
Jewellery shop of one Sri Pawan Jain. There, six golden
chains, two golden bangles, in total weighing about
352 gms. were seized from the said shop. Though they
tried to trace third accused in the surrounding places,
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& CRL.A.No.1962/2016
they could not find him, as such, they returned to
Bengaluru on 14.06.2013.
31. PW-5 Vinayaka though has stated that he could
identify those articles seized in his presence, however, the
prosecution did not show those articles to him and got
them identified. PW-6-B.Balaraju has identified one of
the chain shown to have been seized from the shop of
Jitendra Agarwal through its photograph at Ex.P-4,
however, subject to objection.
PW-5 Vinayaka in his cross-examination, like the
Investigating Officer Sri Ravi K. (PW-9), has pleaded his
ignorance about several of the details regarding the
alleged recovery of the golden articles in the State of Uttar
Pradesh. He could not give the name of the Lodge where
they were said to have stayed in Uttar Pradesh.
He could not say on which day, they reached Agra and on
which day, they left State of Uttara Pradesh.
Similarly, PW-6 B.Balaraju also has not stated as to
in which crime number, he had accompanied the
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& CRL.A.No.1962/2016
Investigating Officer in the present case as an Assistant.
He too pleaded his ignorance about from which travels,
the two vehicles were taken on hire from them. He could
not even give the registration number of the vehicles in
which they have gone to the State of Uttara Pradesh.
Thus, except stating that they were the members of
the Police team which went to the State of Uttara Pradesh
for the alleged recovery, both these witnesses, like PW-9
Ravi K., could not give further details about their journey
to Uttara Pradesh, there the vehicle number etc.,
Therefore, the evidence of PW-5 Vinayaka, PW-6
B.Balaraju and PW-9 Ravi K., are not by themselves
sufficient to hold that the recovery of golden articles were
made in the State of Uttara Pradesh at the instance of the
accused (respondents).
32. In S.C.No.1289/2013, one more witness by name
Imtiaz Patel was examined by the prosecution to support
its case regarding alleged recovery at the instance of the
accused. This witness who was the Police Sub-Inspector
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& CRL.A.No.1962/2016
of the complainant-Police Station, apart from stating that
on 22.05.2013, PW-1 (CW-1) Smt.Bhagyamma appeared
before him and lodged a complaint as per Ex.P-1 and after
registering the same, he prepared FIR as per Ex.P-4 and
visited the scene of offence and drew a scene of offence
Panchanama as per Ex.P-2, has also stated that, on
06.06.2013, the Police Inspector of Rajarajeshwarinagara
Police Station by name Ravi (PW-9) took him along with
other police staff and accused in two private vehicles to a
village called Koshikala near Mathura in the State of Uttar
Pradesh. The accused took them to the shop of one
Sri Jitendra Agarwal at Koshikala village on 09.06.2013.
The Police Inspector- Ravi K., in the presence of panchas,
seized ten golden chains. On 11.06.2013, accused took
them to the shop of one Sri Pawan Jain at Agra, there, the
Police Inspector- Ravi K., seized six gold chains and two
golden bangles by drawing a panchanama. On
14.06.2013, all of them returned to Bengaluru.
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& CRL.A.No.1962/2016
The witness has further stated that, it is thereafter,
he summoned the complainant Smt.Bhagyamma and got
the robbed articles and accused identified by her. He has
identified the accused in the Court. He has stated that he
has filed the charge sheet in the Court in
S.C.No.1289/2013. Though this witness has stated that
he too can identify the robbed articles, however, the
prosecution did not get the articles identified in the Court
through him.
In his cross-examination, compared to PW-5
Vinayaka, PW-6 B.Balaraju and PW-9 Ravi K., he could
give some details about the alleged journey to the State of
Uttar Pradesh and the dates of visiting Koshikala village
and Agra, however, he too could not give the details of the
vehicle in which they were said to have gone to the State
of Uttara Pradesh. He also could not give the details of
the hirer of the vehicle, so also, the names of the hotel
where they were said to have stayed in the State of Uttar
Pradesh. He further stated that, to accompany the
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& CRL.A.No.1962/2016
Investigating Officer Sri Ravi K., he did not have order in
writing by his superiors.
33. Thus, the evidence of PW-6 Imtiyaz Patel is not
sufficient and with full details to believe the alleged
recovery made at the instance of the accused. It is to be
noticed that none of these witnesses have specifically
stated that either in the shop of Jitendra Agarwal or in the
shop of Pawan Jain, the alleged pledged golden articles
were produced at the specific instance and asking of the
accused. They have only stated that accused have shown
the shop. However by that itself, it cannot be inferred
that, it was at the instance of the accused, either Jitendra
Agarwal or Pawan Jain produced the alleged seized golden
ornaments before this team.
34. The last two witnesses whom the prosecution has
examined to prove the alleged recovery of the golden
articles at the instance of the accused are one Sri Manish
Agarwal (PW-12 in S.C.No.1205/2013 and PW-10 in
S.C.No.1289/2013) and one Sri Jitendra Agarwal (PW-13
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& CRL.A.No.1962/2016
in S.C.No.1205/2013 and PW-11 in S.C.No.1289/2013).
According to the prosecution, the witness Manish Agarwal
(PW-12 in S.C.No.1205/2013 and PW-10 in
S.C.No.1289/2013), was a Jeweller at Koshikala in Uttar
Pradesh. His brother Sri Jitendra Agarwal was running a
Jewellery shop and accused had sold the robbed golden
articles to said Jitendra Agarwal. It is also the case of the
prosecution that the accused led the police and panchas to
the shop of Jitendra Agarwal and in the presence of this
witness (Manish Agarwal), ten golden chains and one
broken golden chain were recovered from the shop of
Jitendra Agarwal under a panchanama. However, this
witness though stated that he has a Jewellery shop at
Koshikala, but, categorically stated that he has not seen
the accused at any point of time. Still, he stated that his
younger brother Jitendra Agarwal was looking after the
said Jewellery shop and in the year 2013, the Bengaluru
Police had visited the said shop along with a boy. The
police took their signatures and told them that they would
be summoned to Bengaluru, however, the police did not
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
call them to Bengaluru at any point of time. The witness
also stated that the boy whom the police had brought was
not one among the accused. He also stated that, he did
not know what was written in the paper to which the
police took his signature.
Since he did not support the case of the prosecution,
he was permitted to be treated as hostile by the
prosecution and to cross-examine him. However, the
prosecution could not get any support from the witness.
He categorically denied a suggestion that golden
ornaments were seized by police from his shop. He also
denied that he has given any statement to the police,
much less, as per Ex.P-14. Thus, no support could be
gathered from the evidence of PW-12/PW-10 Manish
Agarwal.
35. PW-13 - Jitendra Agarwal in S.C.No.1205/2013
and PW-11 in S.C.No.1289/2013, in his evidence has
followed the statement made by his brother i.e., Manish
Agarwal. He too stated that he does not know the
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& CRL.A.No.1962/2016
accused. Though he stated that he was looking after the
Jewellery shop belonging to his family in Koshikala,
however, he stated that he does not know why police had
been to his shop. He further stated that he did not give
any articles to the police and also not given any statement
to the police. Even after treating him hostile, the
prosecution could not get any support from this witness.
Thus, both the witnesses with respect to recovery in the
form of seizure of the stolen articles have not supported
the case of the prosecution.
36. The analysis of evidence of PW-9 K.Ravi, the
Investigating Officer, would go to show that no where the
said witness in his evidence has clearly and specifically
stated that they had taken both the accused along with
them while going to Koshikala and Agra in the State of
Uttar Pradesh.
Secondly, this witness though has stated that he can
identify the accused in the court, however, the prosecution
did not get the accused properly identified by him.
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
There is lot of difference between a witness saying that
`he can identify the accused' and `identified the accused'.
In the instance case, PW-9 has only stated that he can
identify the accused, but, no attempt was made by the
prosecution to get the accused identified by him.
Thirdly, as already observed, being the Investigating
Officer, who claims to have gone to the State of Uttar
Pradesh for the alleged recovery of robbed articles from
the State of Karnataka by road in two motorcars, however,
could not able to give any details about the vehicles he
claims to have taken to Uttar Pradesh, the registration
number of the vehicles, the details of the owner etc.,
Further, he could not able to give the details of the hotel
where they claim to have stayed in their journey at a place
called Mehaboobnagar and Mathura. He could not even
give the details of the room rent in the hotels where they
claim to have stayed. This creates a doubt about this
witness, joined by panchas, visiting the two Jewellery
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
shops in the State of Uttar Pradesh and recovering the
golden articles from them.
Fourthly, according to PW-9, from the shop of
Jitendra Agarwal at Koshikala, ten golden chains and one
broken golden chain were seized by drawing a seizure
panchanama, whereas, according to PW-6, pancha for the
alleged recovery, the details of the golden articles
recovered from the said shop were ten chains and two
golden bangles. Thus, there is greater discrepancy with
respect to articles said to have been seized from the shop
of Jitendra Agarwal at Koshikala.
Fifthly, with respect to the alleged recovery from the
shop of Pawan Jain at Agra, PW-9 has not stated as to who
were the panchas present at the time of the alleged
recovery of six golden chains and two bangles from his
shop. Interestingly, the alleged seizure panchanama was
also not identified and marked by this witness.
Sixthly, as rightly argued by the learned Amicus
Curiae for respondent Nos.1 and 2, the alleged voluntary
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& CRL.A.No.1962/2016
statement of the accused has neither been produced nor
marked by the prosecution in this case. Even though
PW-9 - the Investigating Officer has stated that on
06.06.2013, he recorded further voluntary statement of
the accused, however, there is no reference about the
alleged previous voluntary statement of the accused nor
the alleged voluntary statements of the accused were
produced in the case. Further, even PW-9 also has not
stated as to what was that voluntary statement that was
made before him by the accused.
Seventhly, as observed above, both the Jewelers by
name Manish Agarwal and Jitendra Agarwal have uniformly
stated that though the police had visited their shop, but,
no recovery was made in their shop by the police. They
have clearly stated that no article, much less, the golden
ornaments, were given by them to the police nor any
accused were identified by them.
Eighthly, as submitted by learned Amicus Curiae for
the respondents, even though PW-9 - the Investigating
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
Officer has stated that his staff Sri Mahadevaiah (PW-8)
and Upendra Gowda (PW-4/PW-3) produced both the
accused before him along with two golden chains said to
be in the possession of the accused, however, none of the
witnesses, including PW-9, have stated as to what
happened to those two golden chains said to have been
found in the possession of the accused. They have not
even stated whether those two golden chains pertain to
the present case.
Ninthly, even according to PW-1 (CW-1)
Smt.Bhagyamma in S.C.No.1289/2013, the golden chain
given to her by the police after the alleged recovery, which
was marked as MO-1 in the said Sessions Case, was
weighing about 25 gms. According to PW-1
Smt.Bhagyamma, the golden chain robbed from her was
weighing 42 gms., nearly double the weight of MO-1 given
to her and further the said lost golden chain was totally
different in its design and description. She has narrated
the difference between those two chains by herself.
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
She further stated that the police had given the chain at
MO-1 to her as a stop-gap arrangement stating that till
her actual chain that was robbed is recovered, she may
have to keep MO-1 with her.
Thus, when according to the loser of the gold chain,
the alleged recovered golden chain at MO-1 in
S.C.No.1289/2013 was not the jewellery that was lost,
the alleged recovery further loses its meaning. The above
discrepancies in the alleged recovery makes the
prosecution case very unsafe to believe.
37. Lastly, the prosecution has relied upon the
identification of the accused in a Test Identification
Parade. Sri N.R.Umeshchandra, examined as PW-7 in all
the three Sessions cases, has uniformly stated that, while
working as Tahsildar of Bengaluru North Taluk, upon the
request of the Police Inspector of complainant-Police
Station, he conducted a Test Identification Parade on
24.07.2013 at 3.00 p.m. in Parappana Agrahara Jail. The
five witnesses - Smt.Subbalakshmi (PW-1 in
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
S.C.No.1205/2013), Smt.Bhagyamma (PW-1 in
S.C.No.1289/2013), and Smt.Sundaramba (PW-1 in
S.C.No.1206/2013), along with one Smt.Anita and
Smt.Shubha, have identified two accused. The witness
has given the details of conducting the Test Identification
Parade. However, the witness Smt.C.V.Subbalakshmi
(PW-1 in S.C.No.1205/2013) in her evidence has failed to
identify the accused in the Court. On the other hand, she
has stated that the accused in the Court were shown by
the police to her in their Police Station and thereafter, the
Test Identification Parade was conducted.
38. Smt.Bhagyamma (PW-1 in S.C.No.1289/2013)
though has stated that she has identified the accused in
the jail and identified them in the Court, but, she has not
given any reason as to on what basis, she has identified
the accused. Admittedly, in her complaint, she has not
given the details of the accused, except their approximate
age as 18 to 20 years, wearing T-Shirt. Therefore, the
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
identification of the accused by PW-1 Smt.Bhagyamma is
not safe to believe.
39. Smt.Sundaramba (PW-1 in S.C.No.1206/2013) in
her evidence has stated that within a month after the
incident, the police had summoned her to the Police
Station stating that the accused were caught by them and
the accused were shown to her by the police, whom she
identified in the Police Station. Stating that she has
identified the accused in the Court, she stated that even in
Jail also, she has identified the accused. Thus, this
witness also has stated clearly that before identifying the
accused in a Test Identification Parade, the police had
shown the accused to them in their Police Station.
40. Our Hon'ble Apex Court in Udayakumar -vs-
State of Tamil Nadu, reported in 2023 SCC Online SC 283,
while dealing with the importance of Test Identification
Parade, was pleased to observe that, holding an
identification parade can arise only when the accused are
not previously known to the witnesses. The whole idea of
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a Test Identification Parade is that witnesses who claim to
have seen the culprits at the time of the occurrence are to
identify them from the midst of many other persons
without any aid or any other source. It further observed
that the identification parade does not hold much value
when the identity of the accused is already known to the
witnesses.
In the very same case, the Hon'ble Apex Court
referred to its previous judgment in Sk.Umar Ahmed
Shaikh -vs- State of Maharashtra, reported in (1998) 5
SCC 103, wherein it was held at Para-8 as below :
"8......... But, the question arises : what value could
be attached to the evidence of identity of accused by the
witnesses in the Court when the accused were possibly
shown to the witnesses before the identification parade
in the police station. The Designated Court has already
recorded a finding that there was strong possibility
that the suspects were shown to the witnesses. Under
such circumstances, when the accused were already
shown to the witnesses, their identification in the Court
by the witnesses was meaningless. The statement of
witnesses in the Court identifying the accused in
the Court lost all its value and could not be made the
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
basis for recording conviction against the
accused......"
41. In the instant case also, both Smt.Subbalakshmi
and Smt.Sundaramba have clearly stated that the accused
were shown to them in the Police Station and then they
were asked to identify them in jail (Test Identification
Parade). As such, the alleged Test Identification Parade
said to have been conducted by PW-7 - Umeshchandra
where, according to him, all the three complainants in
these three Sessions Cases, have identified the accused,
would not become a meaningful identification of the
accused which can be relied and acted upon. As such, the
Test Identification Parade also would be of no help to the
prosecution in the instant case.
42. In addition to the above, though it is the case of the
prosecution that the accused had committed the alleged
offences by threatening the victims i.e., PW-1 in all the
three Sessions Cases, by showing them a knife, however,
for the reasons best known to it, it has not recovered the
said knife from the accused and got it marked as
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
Material Object. The Investigating Officer in his evidence
also has not whispered about any attempt made for the
recovery of said knife and the reason for not recovering
the said knife. As such, though the prosecution could able
to show that an incident of robbery has taken place,
however, it failed to establish that the said offence was
committed by the accused and accused alone.
43. It is also the case of the prosecution that the
accused have committed an offence punishable under
Section 413 of IPC. In order to show that the accused
have robbed the golden articles from PW-1 in all the three
Sessions Cases and had pledged them with a Jeweller at
two places, one at Koshikala and another at Agra, both in
the State of Uttar Pradesh and attempted to establish the
said act through the alleged recovery, but, as analysed
above, the prosecution has failed to establish the alleged
recovery of the alleged robbed articles at the instance of
the accused. Thus, the prosecution has also failed to
establish that the accused/respondents herein were
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C/w. CRL.A.No.1834/2016
& CRL.A.No.1962/2016
habitually receiving and dealing in property knowing or
having reasons to believe that they are stolen property.
Thus, even the offence punishable under Section 413 of
IPC also could not be proved against the accused by the
prosecution.
44. Since it is considering the evidence placed before
it by the prosecution and appreciating the evidence, the
Sessions Judge's Court has given its finding acquitting all
the accused of the alleged offences, which by the above
analysis, could not be found fault with, we find no reasons
to interfere in the judgments of acquittal passed by the
Sessions Judge's Court in all the three Sessions Cases
under appeals.
45. Accordingly, we proceed to pass the following:
ORDER
The Criminal Appeal No.1836/2016, Criminal Appeal No.1834/2016 and Criminal Appeal No.1962/2016 stands dismissed as devoid of merits.
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CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016The Court, while acknowledging the services rendered by the learned Amicus Curiae for the respondents/accused - Sri N.S. Sampangiramaiah, recommends an honorarium of a sum of not less than `4,000/- in each appeal, payable to him by the Registry.
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/