Karnataka High Court
M D Shakeel S/O Md. Afzal vs The State Of Karnataka on 28 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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CRL.A No. 200054 of 2015
C/W CRL.A No. 200031 of 2015
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF JULY, 2025
PRESENT
THE HON'BLE MR. JUSTICE H.P.SANDESH
AND
THE HON'BLE MR. JUSTICE T.M.NADAF
CRIMINAL APPEAL NO. 200054 OF 2015
(378 Cr.P.C)/(419 BNSS)
C/W
CRIMINAL APPEAL NO.200031 OF 2015
(372 CR.P.C/413 BNSS)
IN CRL.A NO.200054/2015:
BETWEEN:
THE STATE OF KARNATAKA
Digitally signed by THROUGH THE SANTHPUR POLICE STATION,
BASALINGAPPA
SHIVARAJ REPRESENTED BY
DHUTTARGAON THE ADDITIONAL STATE PUBLIC PROSECUTOR
Location: HIGH
COURT OF KALABURAGI.
KARNATAKA ...APPELLANT
(BY SRI SIDDALING P. PATIL, ADDL. SPP)
AND:
1. AFROZ KHAN
S/O SAYED KHAN
AGE 30 YEARS, CASTE MUSLIM,
OCC: TATA ACE DRIVER,
R/O. SHASTRI NAGAR,
MAILOOR, BIDAR.
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CRL.A No. 200054 of 2015
C/W CRL.A No. 200031 of 2015
HC-KAR
2. MAHBOOB
S/O SHAIK FATE MOHAMMED,
AGE 42 YEARS, CASTE MUSLIM,
OCC: ATTENDER IN GND COLLEGE,
R/O SHASTRI NAGAR,
MAILOOR, BIDAR.
...RESPONDENTS
(BY SRI GANESH NAIK, ADV. FOR R1 & R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378
(1) & (b) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL
AGAINST THE JUDGMENT DATED 16.12.2014 PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, AT BIDAR, IN
S.C. NO.138/2013 INSOFAR AS ACQUITTING ACCUSED FOR
THE OFFENCE PUNISHABLE UNDER SECTIONS 120-B, 392, 394
& 397 OF IPC AND SET ASIDE THE JUDGMENT DATED
16.12.2014 PASSED BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, AT BIDAR, IN S.C. NO.138/2013 INSOFAR
AS ACQUITTING ACCUSED FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 120-B, 392, 394 & 397 OF IPC AND
CONVICT THE RESPONDENTS/ ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120-B, 392, 394 & 397 OF IPC,
IN THE INTEREST OF JUSTICE AND EQUITY.
IN CRL.A NO.200031/2015:
BETWEEN:
M.D. SHAKEEL
S/O. MD. AFZAL TABOLI
AGE: 28 YEARS, OCC:BUSINESS,
R/O. SHAHGUNJ, BIDAR.
...APPELLANT
(BY SRI B K HIREMATH, ADVOCATE)
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CRL.A No. 200054 of 2015
C/W CRL.A No. 200031 of 2015
HC-KAR
AND:
1. THE STATE OF KARNATAKA
(THROUGH SANTHPUR P.S)
REPRESENTED BY
ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
2. AFROZ KHAN
S/O. SYED KHAN,
AGE: 31 YEARS, OCC: DRIVER
R/O. SHASTRI NAGAR,
MAILOOR, BIDAR.
3. MAHBOOB
S/O. SHAIK FATE MOHAMMED,
AGE: 43 YEARS,
OCC: ATTENDAR IN GND COLLEGE,
R/O. SHASTRI NAGAR,
MAILOOR, BIDAR.
...RESPONDENTS
(BY SRI SIDDALING P. PATIL, ADDL. SPP, FOR R1;
SRI GANESH NAIK, ADV. FOR R2 & R3)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 372
OF CR.P.C., PRAYING TO CALL FOR RECORDS OF LOWER
COURT AND CONVICT THE RESPONDENT NO.2 AND 3 BY
SETTING ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL
PASSED BY THE ADDL. DISTRICT AND SESSIONS JUDGE,
BIDAR IN S.C.NO.138/2013 DATED 16.12.2014 AND APPEAL
BE ALLOWED, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS ARE COMING ON FOR FINAL HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CRL.A No. 200054 of 2015
C/W CRL.A No. 200031 of 2015
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
AND
HON'BLE MR. JUSTICE T.M.NADAF
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE H.P.SANDESH) These matters are listed for final hearing.
2. Heard the learned Additional State Public Prosecutor in respect of appeal filed by it in Crl.A.No.200054/2015 and also the learned counsel appearing for the complainant/appellant in Crl.A.No.200031/2015 and so also the learned counsel appearing for the accused i.e., respondent Nos.1 and 2.
3. The factual matrix of case of prosecution before the trial Court in S.C.No.138/2013 are that, accused Nos.1 and 2 and also the accused No.3, who is a Juvenile Offender, few days prior to 25.03.2013, entered into criminal conspiracy by agreeing to do and cause to be done illegal act of committing robbery to rob Rs.16,58,000/- from C.W.1 on 25.03.2013 and in -5- NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR furtherance of the said conspiracy, on 25.03.2013 at about 9.45 p.m. on Aurad-B - Bidar road near Kappikeri cross, while C.W.1 proceeding in the vehicle i.e., TATA Ace Car bearing Registration No.KA-38/6849, all of them came on the Motorcycle and stopped the same infront of the said Car, before that they sparkled the chilli powder on the face of the driver, who was driving the said vehicle and particularly, accused No.2 spread the chilli powder on the face of C.W.1 and also by showing the knife, caused threat to part with the amount of Rs.16,58,000/- and committed the offence of robbery and, thereafter immediately, C.W.1 had been to Santhpur Police Station at about 2.00 a.m. where he reveals the incident before the Station House Officer and the same is reduced into writing. Thereafter, a case in Crime No.26/2013 was registered and criminal law was set into motion by issuing the FIR.
4. The Circle Police Inspector of Aurad Circle took up the further investigation in the case and he visited the spot, drawn spot panchanama and also he sent the injured -6- NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR to the Government Hospital, Aurad for his treatment. He did record the statement of the witnesses, he returned Tata Ace Car, under the panchanama and that accused Nos.1 and 2 were apprehended, recorded the voluntary statement of accused persons and accused Nos.1 and 2 in their voluntary statement admitted the guilt and took the investigating officer as well as panch witnesses to their respective houses wherein the investigation officer seized the amount of Rs.3,16,000/- from the houses of the accused No.1 and an amount of Rs.4,79,000/- from the house of the accused No.2 and accused No.3 was secured who is the Juvenile Offender and from him Rs.1,89,000/- was secured and after thorough investigation, Police have filed the charge-sheet.
5. On receipt of the charge sheet, the Court took the cognizance against the accused persons and they were released on bail. Charges for the offences punishable under Sections 120-B, 392, 394 and 397 of IPC have been -7- NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR framed. Accused persons did not plead guilty and they claim to be tried.
6. In view of denial of charges, the prosecution in order to prove its case totally examined 19 witnesses as P.Ws.1 to 19 and also got marked total 15 documents as Exs.P.1 to 15. One material object i.e., knife is marked as M.O.1. Thereafter, accused Nos.1 and 2 were subjected to trial. During the 313 Cr.P.C. statement, accused have denied the incriminating circumstances and they did not chose to lead any defence evidence.
7. The trial Court having considered both oral and documentary evidence and on appreciation of entire material, acquitted the accused Nos.1 and 2 who have faced the trial on the ground that the prosecution has failed to prove the case beyond all reasonable doubt, cancelled the bail and M.O.1-knife being worthless was ordered to be destroyed.
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8. Being aggrieved by the acquittal of the accused Nos.1 and 2, these two appeals are filed by the State as well as the complainant.
9. The main contention of the learned counsel appearing for the State before this Court is that, even though prosecution mainly relied upon the evidence of P.Ws.3 and 4, who were present at the spot of the incident, examined the recovery witness as P.W.16 and even though marked Ex.P.10 i.e., call details of accused persons, same have been ignored by the trial Court while acquitting the accused. Learned Addl. State Public Prosecutor would vehemently contend that the witnesses namely, P.Ws.6 to 10 are the witnesses who gave money to P.W.3 when the amount was collected after supplying the goods and they have supported the case of the prosecution that P.W.3 came and collected the money from their respective shops. Even in spite of these materials available before the Court, the trial Court committed an error in disbelieving the evidence of P.Ws.3 -9- NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR and 4. Further, it is vehemently contended that the trial Court even did not discuss the evidence of P.W.16, who is the panch witness and so also the evidence of investigating officer -P.W.19.
10. The learned counsel appearing for the complainant/ appellant also vehemently contend that the trial Court fails to consider the incriminating evidence available on record which particularly point out the recovery of the amount which belongs to the complainant which was robbed from P.W.3 and even in spite of recovery at the instance of accused Nos.1 and 2 as well as accused No.3 - Juvenile Offender, the trial Court fails to consider the incriminating evidence and committed an error in acquitting the accused persons.
11. Both the learned counsel would vehemently contend that this Court has to re-appreciate the material available on record and consider the incriminating evidence available on record and reverse the finding of the
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR trial Court and thereby convict the accused persons for the offences which they have been charged.
12. Per contra, learned counsel appearing for the accused would vehemently contend that though the offences invoked particularly Section 120-B of IPC, in order to substantiate the same, nothing has been placed on record to show that there was a conspiracy hatched by accused Nos.1 to 3 in order to commit the offence alleged against them. The learned counsel also vehemently contend that P.Ws.3 and 4 have categorically narrated how the incident has taken place i.e., all the accused persons came on a motorcycle and spread the chilli powder on the driver of Tata Ace Car as well as on P.W.3 and also assaulted them and thereby committed the offence and very same ingredient of Sections 392, 394 and 397 of IPC has not been proved and also learned counsel vehemently contend that the evidence of P.W.3 is contrary to the evidence of P.W.4 and though P.W.3 in the complaint specifically stated that he went along with Tata
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR Ace vehicle and supplied the material and collected the amount and while returning, the incident taken place and the evidence P.W.3 is not consistent and also not believed the evidence of P.W.4 and when inconsistent evidence is found, the trial Court rightly acquitted the accused persons and even though P.W.16 deposes before the Court that the recovery is made at the instance of accused Nos.1 and 2, the same was not credible and hence the trial Court rightly acquitted the accused persons in the absence of incriminating evidence and hence it does not require any interference.
13. Having heard the learned Addl. State Public Prosecutor for the appellant/State and also the learned counsel appearing for the accused/respondent Nos.1 and 2, the points that would arise for consideration are:
1) Whether the trial Court committed an error in acquitting the accused Nos.1 and 2 and whether these two appeals deserve to be
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR allowed setting aside the acquittal order to invoke the offences which have been invoked against the respondent/accused Nos.1 and 2?
2) What order?
14. Having heard the appellants' counsel and also the counsel appearing for the respondents and also considering the material on record, the prosecution mainly relied upon the evidence of P.Ws.1 to 19, Exs.P.1 to 15 and so also relied upon M.O.1- knife.
15. No doubt, it is the case of the prosecution that the incident was taken place on 25.03.2013 at about 9.45 p.m. and also it is the specific case of the prosecution that these respondent/accused Nos.1 and 2 came along with a Juvenile Offender i.e., accused No.3 on a motorcycle and first spread the chilli powder on the driver and thereafter on P.W.3, thereby committed the offence of robbery by snatching the amount, and hence criminal law was set in
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR motion by registering FIR. Investigation was conducted by investigating officer and recovery is also made.
16. Now, the question before this Court is whether the trial Court committed an error in acquitting the accused persons. Now, this Court has to consider the very document of complaint which is marked as Ex.P.2.
17. Having perused Ex.P.2, it is made clear that the complainant was working as a Manager in the Rayal Challiya Store at Bidar. It is the specific case that they used to supply gutka to Aurad and they used to collect the money from the owners. It is also specific case that on 25.03.2013, they left the place at 5.00 p.m. and went in Tata Ace vehicle bearing Registration No.KA-38/6849 and when they left the Bidar it was 5.00 p.m. and they reached Aurad at 7.00 p.m. Along with him, driver by name Afroz also accompanied him in order to supply the gutka. He was also having a person by name Syed Aslam. It is also his statement that he had collected the amount
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR from the owners and kept the same in the bag and while returning, when they reached near Kappikeri cross, the accused persons came on a Hero Honda Motorcycle who aged about 30-35 years, they spread the chilli powder and stopped their vehicle, thereafter immediately the driver and himself got down from the vehicle, at that time, again spread chilli powder on one of the persons on his eyes and a person hit on his face near the right eye. As a result, he had sustained injuries and all of three accused persons left the place and hence he had lodged the complaint stating that he cannot tell exactly what was the amount in his bag. However, he has specifically mentioned that he collected amount of Rs.2,25,000/- from one Santosh Jirge, other than the said amount, some records were also there in the said bag and so also they snatched the mobile phone of Nokia Company from the driver of the vehicle and the same was valued about Rs.2,000/- and complaint was lodged on the very same day night at 2.00 a.m.
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18. In order to substantiate the contents of the complaint as well as the charge-sheet material, the prosecution mainly relied upon the evidence of P.Ws.1 to
19. Out of that, P.Ws.3 and 4 are the main witnesses. In the evidence of P.W.3, he reiterates the averments in his chief-examination and also says that accused No.1 was the driver of the said vehicle and he was accompanying all of them. He also says that they supplied the articles to the various dealers and while returning, this incident has taken place and also deposed that he collected Rs.2,25,000/- from C.W.13 and also collected the amount from C.Ws.11 and 13, but again he says that he has not remembered the exact amount what he has collected from C.Ws.11 and 13 and says that incident was taken place. It is also his evidence that C.W.6 and accused No.1 got down from their vehicle, at that time, accused No.2 shown the knife and assaulted him with the knife on the right side of his eyebrow, on account of which he sustained injury. It is also his evidence that he was asked to remove the
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR amount, accused persons snatched the amount nearly about Rs.16 lakhs and odd, thereafter they went away. The said Motorcycle Hero Honda was having the number plate and all the three persons snatched the mobile phone of accused No.1 and they went away. Thereafter, he went to the Police Station and lodged the complaint in terms of Ex.P.2.
19. In the cross-examination, it is elicited that on that day, they took two vehicles to Aurad for distribution of goods. But, he cannot say the number of one vehicle and about two vehicles were fully loaded with the goods that were to be distributed. But, he categorically admits in the cross-examination that at the time of moving the goods in the vehicle to Aurad, he was not travelled in the above two vehicles. However, at the time of return to Bidar, he was traveling in one of the vehicle and further he says that he himself had distributed the goods to the various retailers and he deposed that he alone had collected the amount from the above dealers, he had
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR counted the amount before pocketing. But he cannot say the denomination of the currency notes and he collected the amount in a plastic bag from five dealers and put the said amount in a leather bag. While they left the Aurad, not stopped the vehicle anywhere till reaching the spot. Near the place of incident, there are no houses or villages or any other residential place, but at the time of incident, he was by the side of the driver. While the persons came there, they smeared the chilli powder to the face of the driver and the said chilli powder had also spread on his face also and the incident taken place for about 15 or 20 minutes. But, he admits that he cannot say who was the rider and who was the pillion rider of the two wheeler when the said two wheeler came near their vehicle, but all three persons wearing pants and shirts and he cannot say even the colour, but he has not got down from the vehicle and he was in the cabin till the incident had over.
20. The other main witness which the prosecution relies upon is P.W.4, who is the driver and also says that
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR P.W.3 was working as a Manager. The delivery of such articles were using to be made through Tata Ace vehicle in which he was the driver. Accused No.1 also the driver of the said vehicle and he was used to accompany themselves and also his evidence is that they went to Khanapur, Halbarga and Nittur and supplied the same to the various dealers and collected the money from C.Ws.11 to 13 and he also says that when P.W.3 collected Rs.2,25,000/- from C.W.13 and also collected the amount from C.Ws.11 and 13, his evidence is also very clear in terms of P.W.3 that accused persons who came on the motorcycle smeared chilli powder to his face and the face of the accused Nos.1 and P.W.3. It is also his evidence that himself, P.W.3 and accused No.1 got down from their vehicle, at that time accused No.2 shown the knife to them and he assaulted with the knife on the right side eye of P.W.3 on account of which he had sustained injury. He was also asked to remove the amount to P.W.3 and they snatched the amount of R.16,00,000/-. The said
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR motorcycle was bearing number plate. Thereafter, P.W.3 went to the Police Station at about 2.00 a.m. and lodged the complaint by narrating the incident.
21. P.W.4 is also subjected to cross-examination. In the cross-examination, he says that they took two vehicles and says that he did not know the name of driver of another vehicle and also he did not know the numbers of both the vehicles, but he says four persons were in the above two vehicles and above two vehicles were fully loaded and they went to Aurad, but he says that he did not know to how many dealers the goods were distributed and also he did not know the extent of the amount that P.W.3 had collected. P.W.3 was in his Max Pick-up vehicle and he was in Tata Ace vehicle. He was alone in the cabin of the vehicle along with driver. Likewise, P.W.3 alone was in the cabin along with the driver and also he does not know the Kappikeri cross and same is on the highway and there are no houses or villages, but he cannot say the total time of the incident. He further deposed that the
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR chilli powder had also thrown to his face. Therefore, it had fell on his eyes and he cannot say the exact time of the incident. From the place of incident, they went to the Santhpur Police Station. The witness admits that Santhpur is at the distance of 3 k.m. from Kappikeri cross and the police having recorded his statement and statement of P.W.3 at the Police Station. However, his statement had been explained to himself in Hindi language and also he does not know the time when they reached the Police Station, Santhpur. It is also his evidence that since 3-4 years, he was working under C.W.7. Within half an hour of they reaching to Santhpur, C.W.7 had been to Santhpur along with 7-8 persons and also he cannot say the total amount that had robbed and he cannot say the denomination of the said amount. The above persons wearing pants and shirts and also he cannot say the colour of the pants and shirts. But he says that all the three persons tied Kerchief to their face. It was suggested that he was not in the said vehicle and no such incident had
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR occurred. A suggestion was also made that false complaint was lodged.
22. The other material witness relied upon by the State i.e., panch witness and no doubt the trial Court not discussed the evidence of P.W.16. But P.W.16 says that on 09.04.2013 he himself and C.W.5 were called to Mailoor road at Bidar and when they reached Mailoor road, he had seen accused Nos.1 and 2 in the custody of the Police. Accused No.1 took himself, C.W.5 and the police to his house and he had produced the amount of Rs.3,16,000/- and mahazar was drawn in terms of Ex.P.8 and he has also identifies his signature. It is also his evidence that accused No.2 took himself, C.W.5 and police to his house at Mailoor and he brought Rs.4,79,000/- and same was seized under panchanama - Ex.P.9. He identifies his signature as Ex.P.9(a) and he also produced motorcycle and he identifies the motorcycle but that motorcycle was not having the number. Therefore, engine and chassis numbers were incorporated in Ex.P.9.
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23. P.W.16 was subjected to cross-examination. In the cross-examination, he says that when he himself and C.W.5 were proceeding on the road, Police called them and also he says that his house is at the distance of 3 k.m. from the Mailoor road and C.W.5 is also having his residential house at the same distance and he also admits that C.W.5 is having his house at Dargapura and he is having his house at Rohilegalli. He also admits that Mailoor is at the outskirts of Bidar city and his place of business is at Bidar. He also admits that he does not know accused Nos.1 and 2 earlier to the date of drawing panchanama as per Exs.P8 and P9 so also, he does not know PWs.3 and 4 and CW.7. Accused Nos.1 and 2 were having their residential houses at the distance of half kilometer from Mailoor road and he was not familiar to the police and admits that houses of accused Nos.1 and 2 are surrounded by other residential houses. He went to the houses of accused Nos.1 and 2 in his two wheeler. It is also his evidence that the house of accused No.1 was facing west.
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR However, he cannot say how many rooms the said house was consisting of and also whether other family members were having their separate rooms and he does not know how many rooms were in possession of accused No.1. But, the door of the room from where accused No.1 collected the amount was facing towards east and accused No.1 opened the steel almirah with the help of key and accused No.1 was not having any other amount in the said almirah. He has not counted the amount but, Police counted the said amount. The amount seized from accused No.1 is packed in one pocket and amount seized from accused No.2 is packed in another pocket. He stated that they took jeeps and there were six to seven police in the team. The witness stated that Writer did not tell him what was reduced into writing. The suggestion was made that accused Nos.1 and 2 did not take him, another panch witness and police to their respective houses and they have not produced any amounts however, the same was denied. Counsel for accused No.2 got elicited from the
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR mouth of this witness that accused No.2 is residing in a rented house. The police have not enquired regarding the name of the landlord of accused No.2 and not made any efforts to record the statement of the owner.
24. The other witnesses is PW.19. He is the Investigating Officer who conducted the investigation. In his evidence, he stated that he took up further investigation on the very next day i.e. on 26.03.2013. He had been to the place of incident where he had drawn the mahazar in terms of Ex.P3 in the presence of PW.5 and PW.13. The said mahazar was drawn from 09.30 a.m., to 10.30 a.m. It is also his evidence that he has recorded the statements of PW.14 and PW.18 and directed PW.15 and staff to search the accused. He retained the vehicle which was produced by accused No.1 under the panchanama in the presence of PW.5 and PW.13. He identified the signature in Ex.P4. It is his evidence that he had collected the call details of the mobile of accused No.1 which is in three sheets and the same is marked as Ex.P10. The
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR relevant portion of the same is marked as Ex.P10(a) and same was pertaining to 25.03.2013. It is also his evidence that he recorded the further statement of PW.3 so also, the statements of PWs.6 to 10. On 08.04.2013, he himself, PW.15 and other staff were in search of accused No.2 and thereafter, accused Nos.1 and 2 were found near the railway station and both of them were apprehended and voluntary statements were recorded in terms of Exs.P12 and P13. It is also his evidence that they called PW.16 and CW.5 and seizure panchanama was drawn in terms of Exs.P8 and P9 and accused Nos.1 and 2 have produced the amount of Rs.3,16,000/- and Rs.4,79,000/- respectively. An amount of Rs.1,89,000/- was recovered from accused No.3/juvenile offender. He has also recorded the statement of other witnesses. This witness was subjected to cross examination. In the cross examination, he admits that he did not observe spreading of chilli powder on the place of incident but, he found the chilli powder inside the vehicle. However, he admits that the
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR quantum of chilli powder was not capable of extortion. He has stated that he cannot say the quantity of the chilli powder found inside the vehicle. The suggestion was made that accused Nos.1 and 2 were not able to read and write Kannada language, besides they could not speak the Kannada language and the same was denied. He admitted that he did not collect the documents to show as to whom the particular mobiles were belonging and in whose names mobiles were standing. As such, he cannot say at whose names the above two mobiles were standing. But, on suspicion, he has arrested accused No.1. Prior to arresting of accused No.1, he had not collected the statements of other witnesses regarding the involvement of accused No.1 in the incident and he admitted that there were no houses or shops near the place of incident and within 01 km., there are no other villages. He has not put his efforts to conduct the identification parade as complainant identified accused No.1. It is suggested that accused Nos.1 and 2 have not given any voluntary statements, they did
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR not take them to their respective houses and not seized any amount in total denial of recovery.
25. Having considered both oral and documentary evidence available on record, particularly, the main witnesses i.e., PWs.3, 4, 16 and 19 and in order to prove the case against the accused persons, the Court has to take note of the incriminating evidence available on record. We have perused the complaint which is marked as Ex.P2 wherein it was narrated as to how an incident has taken place and about snatching of the amount. In the complaint, the complainant has stated only about collecting an amount of Rs.2,25,000/- from one Santhosh Jirge and he stated that, he cannot say what was the exact amount. The complainant ought to have stated the approximate amount which was robbed. But, according to the police, the amount robbed was Rs.16,58,000/-. However, PWs.3 and 4 even at the time of evidence have deposed with regard to an amount of Rs.2,25,000/-. But, PW.16 has stated that an amount of Rs.3,16,000/- was
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR recovered at the instance of accused No.1, Rs.4,79,000/- from accused No.2 and Rs.1,89,000/- from accused No.3/juvenile offender. Even when further statement was recorded, it was stated that an amount of Rs.5,20,000/- was collected from one of the accused. When such huge amount was collected, complainant ought to have stated that robbing amount is around Rs.15,00,000/- to Rs.16,00,000/- however, in the complaint, complainant specifically mentions amount of Rs.2,25,000/-.
26. It is also important to note that in the complaint, PW.3 categorically stated that he took driver and another person for his help i.e., PW.4. It is his specific case that they took the materials in two vehicles however, he has not stated details of other vehicle, driver and other person who was taken for assistance. Evidence of PWs.3 and 4 is contrary to each other. Though PW.3 who is the complainant categorically stated that he did not go along with two vehicles from Bidar to Aurad, but while he returning, he has come in the said vehicle. Having
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR considered answers elicited from the mouth of PW.3, he returning in the vehicle itself is doubtful. In the complaint, he stated that he took assistance of PW.4, but PW.4 stated that he was also one of the drivers and he is not an assistant. In the cross-examination, he admitted that, at the time of moving goods to Aurad, he has not traveled in above two vehicles however, while returning from Bidar, he was traveling in one of the vehicles. It is his case that he himself distributed goods to various dealers, but he did not accompany with the material. He also stated that he alone collected the amount from dealers and he counted the said amount before packing, but he cannot say the denomination of the currency notes. The fact is that the Court also cannot expect the denomination of the amount which was collected, but atleast, when the complainant has alone collected the amount, he should be aware of atleast quantity of the amount though not exactly. In the complaint, robbed amount was mentioned as only Rs.2,25,000/-, but at the time of filing of chargesheet, it
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR was mentioned as Rs.16,58,000/-. The complainant has stated in his evidence that he was sitting by the side of driver at the time of incident, but, PW.4 says he was sitting along with the driver at the time of incident and not PW.3. The evidence of PW.4 is contrary to the evidence of PW.3. Apart from that, when the prosecution mainly relies upon the evidence of PW.16, at one breadth, he stated he went along with the police, but, again he stated that when he himself and CW.5 were near Mailoor, at that time, police called both of them. He categorically admitted that both accused nos.1 and 2's houses are surrounded by other residential houses and prior to that, he was not aware of accused nos.1 and 2, PWs.3 and 4 so also PW.7. It is also important to note that, in the cross-examination, he says that he went to the house of accused Nos.1 and 2 in his two wheeler, at another breadth, he stated that they went in the vehicle and there were five to six persons. Therefore, it creates doubt with regard to the recovery of money at the instance of accused Nos.1 and 2. It is also
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR important to note that he stated that accused No.2 is residing in the rented house, but the police have not recorded statement of owner of the said house. Though PW.19 who is the Investigating Officer deposed before the Court that he collected call details in terms of Ex.P10 and mobile numbers of accused Nos.1 and 2 are given. He categorically admits that though he collected call details, but he did not secure any records as to in whose names mobiles are standing. No doubt, PW.19 given answer that he did not conduct identification parade as the complainant identified the accused persons. Even PW.3- complainant was unable to tell who was riding the motorcycle and who was the pillion rider. It is difficult to believe the evidence of PW.3 regarding identification of accused. PW.4 says that they were wearing kerchiefs on their faces and same is not spoken to by PW.3. When such being the case, very identification of accused Nos.1 and 2 is doubtful. Evidence of PW.3 and PW.4 is contrary
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR to each other with regard to wearing of kerchiefs by accused on their face.
27. It is also important to note that when the Investigating Officer did not collect records at whose names above two mobiles were standing and he had not collected the documents and even collecting of the call details also not spoken, same cannot be taken note of as proof. There is no certificate collected from the concerned persons in compliance of Section 65(4)(b) of the Indian Evidence Act to prove the same.
28. The trial Court while considering material on record though mainly found inconsistent evidence of PWs.3 and 4 but, not considered of evidence of PW.16 and PW.19-investigating Officer evidence while discussing same. On reconsideration of material available on record before this Court i.e., PWs.16 and 19, same do not inspire confidence of this Court to reverse the acquittal order passed by the trial Court. Evidence of each of the
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR witnesses on which the prosecution relies upon is contrary to each other. The evidence of PW.3 is contrary to evidence of document of Ex.P2. When all these material contradictions are available on record, we do not find any substance in the contentions of counsel appearing for the State as well as complainant's counsel. When such being the case, we do not find any material particularly, incriminating evidence to connect the accused persons for the incident concerned.
29. In view of inconsistent evidence and contrary evidence available on record to believe their evidence and when the prosecution fails to prove the case against the appellants beyond reasonable doubt, we do not find any substantive piece of evidence to reverse the finding of the trial Court and to convict the accused persons. Therefore, it is not a case for reversing the judgment of the trial Court. Hence, we answer the point for consideration in negative.
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NC: 2025:KHC-K:4251-DB CRL.A No. 200054 of 2015 C/W CRL.A No. 200031 of 2015 HC-KAR
30. In view of the discussions made above, both the appeals are dismissed.
Bail bonds, if any, executed stand cancelled.
Sd/-
(H.P.SANDESH) JUDGE Sd/-
(T.M.NADAF) BL/NB List No.: 1 Sl No.: 41 Ct: