Karnataka High Court
Sri Manoj Kumar vs State By Jeevan Bheema on 30 August, 2023
Author: K. Natarajan
Bench: K. Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR. JUSTICE K. NATARAJAN
CRIMINAL APPEAL NO.101 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.102 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.206 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.228 OF 2023
CONNECTED WITH
CRIMINAL APPEAL NO.231 OF 2023
IN CRIMINAL APPEAL NO.101 OF 2023
BETWEEN:
1. SRI MANOJ KUMAR
S/O CHANNI
AGED 41 YEARS
R/AT NO.65
MEENAKSHI LAKE VIEW EXTENSION
PARAPPANA AGRAHARA
BENGALURU
2. SRI LAWRENCE D SELVA
S/O LESSI D SELVA
AGED 36 YEARS
R/AT NO.102, MUNESHWARA EXTENSION
11TH CROSS,
YELAHANKA UPANAGAR
BENGALURU
2
3. SRI SETU
S/O DORAI
AGED 42 YEARS
R/AT NO. 5/12, M.G.R. NAGAR
HARINI TIRUVANAMALAI
TAMILNADU
... APPELLANTS
(BY SRI VISHNUMURTHY, ADVOCATE)
AND:
STATE BY JEEVAN BHEEMA
NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE
... RESPONDENT
(BY SRI S. VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 06.01.2023 AND ORDER OF SENTENCE
DATED 09.01.2023 PASSED BY THE LVI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU (CCH-57) IN
S.C.NO.158/2010 (COMMON JUDGMENT PASSED IN
S.C.NO.158/2010 M/W S.C.NO.547/2011) AND THE
APPELLANTS/ACCUSED NO.4, 5 AND 6 ARE CONVICTED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 120(B), 364(A),
395 AND 397 READ WITH SECTION 149 OF IPC.
IN CRIMINAL APPEAL NO.102 OF 2023
BETWEEN:
SRI JAGANNATHAN @ JAGGU
S/O ANANTHAN
AGED ABOUT 28 YEARS
R/AT NO. 68-B, 23RD BLOCK
M I B V QUARTERS
YELAHANKA NEW TOWN
BANGALORE ... APPELLANT
(BY SRI T PRAKASH, ADVOCATE)
3
AND:
STATE BY
JEEVAN BHEEMA NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE ... RESPONDENT
(BY SRI S. VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 6.1.2023 AND ORDER OF SENTENCE
DATED 9.1.2023 PASSED BY THE LVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE (CCH-57) IN S.C.NO.158/2010
M/w S.C.NO.547/2011 - CONVICTING THE
APPELLANT/ACCUSED NO.10 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 120B, 364A, 395, 397 READ WITH SECTION
149 OF IPC.
CRIMINAL APPEAL NO.206 OF 2023
BETWEEN:
JAYAKUMAR
S/O S.A. ALAVADEYAR,
AGED ABOUT 42 YEARS,
R/AT NO. 36, 2ND CROSS,
NEAR GANGAMMA TEMPLE,
MAHADEVAPURA
BENGALURU
... APPELLANT
(BY SRI VISHNU MURTHY, ADVOCATE)
AND:
STATE BY JEEVAN BHEEMA
NAGAR POLICE STATION
REPRESENTD BY ITS
4
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001 ... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 06.01.2023 AND ORDER OF SENTENCE
DATED 09.01.2023 PASSED BY THE LVI ADDL. CITY CIVIL AND
SESSIONS JUDGE, BANGALORE IN S.C.NO.158/2010 M/W
S.C.NO.547/2011 AND THE APPELLANT/ACCUSED NO.2 IS
CONVICTED FOR THE OFFENCES PUNISHABLE UNDER
SECTIONS 120B, 364A, 395 AND 397 READ WITH SECTION 149
OF IPC.
CRIMINAL APPEAL NO.228 OF 2023
BETWEEN:
NIRMAL RAJ KUMAR
S/O PATHYANATHAN
AGED ABOUT 47 YEARS,
R/AT NO. 1542, E BLOCK,
AECS LAYOUT,
MARTHAHALLI,
BENGALURU ... APPELLANT
(BY SRI T PRAKASH, ADVOCATE)
AND:
STATE BY JEEVAN BHEEMA NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDINGS,
BENGALURU - 560 001 ... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. BY THE ADVOCATE FOR THE APPELLANT PRAYING
THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET
5
ASIDE THE COMMON JUDGMENT OF CONVICTION DATED
06.01.2023 AND SENTENCE DATED 09.01.2023 PASSED BY THE
LVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN S.C.NO.158/2010, CONVICTING THE
APPELLANT/ACCUSED NO.1 FOR THE OFFENCES PUNISHABLE
UNDER SECTIONS 120B, 364(A), 395, 397 READ WITH
SECTION 149 OF IPC.
CRIMINAL APPEAL NO.231 OF 2023
BETWEEN:
1 . BASKARAN
S/O JNANAVELU,
AGED ABOUT 40 YEARS,
R/AT NO. 68/23A
GOPALPILLAI TEMPLE ROAD,
TIRUVANANA MALLAI TALUK
TAMIL NADU - 606 601
2 . J MADIVANNA
S/O GOPAL
AGED ABOUT 42 YEARS,
R/AT BRAMANA BEEDI
SERUVALLURU
PUNALURU TALUK,
TIRUVANAMALAI,
TAMIL NADU - 606 601
3 . DAS PRAKASH
S/O A. MANI
AGED ABOUT 23 YEARS,
R/AT NO.12, VALIKARA STREET
TIRUVANAMALAI
TAMIL NADU - 606 601
... APPELLANTS
(BY SRI T PRAKASH, ADVOCATE FOR A1 AND A3
SRI VISHNU MURTHY, ADVOCATE FOR A2)
6
AND:
STATE BY JEEVAN BHEEMA
NAGAR POLICE STATION
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
BANGALORE - 560 001
... RESPONDENT
(BY SRI S. VISHWA MURTHY, H.C.G.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF CR.P.C. PRAYING TO SET ASIDE THE COMMON JUDGMENT
OF CONVICTION DATED 06.01.2023 AND SENTENCE DATED
09.01.2023 PASSED BY THE LVI ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU IN S.C.NO.158/2010,
CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 120B, 364(A), 395,
397 READ WITH SECTION 149 OF IPC.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 26.07.2023 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
JUDGMENT
These appeals are filed by appellants-accused Nos.1 to 8 and 10 under Section 374(2) of Cr.P.C. for setting aside the judgment of conviction and sentence passed by the LVI Additional City Civil and Sessions Judge, Bangalore in S.C.Nos.158/2010 clubbed with S.C.547/2011 for having found the appellants guilty and convicted for the offences punishable under 7 Sections 120B, 364A, 395, 397 read with Section 149 of IPC.
2. Heard the arguments of learned counsel for the appellants and learned High Court Government Pleader for the State.
3. The appellants are accused and respondent is the complainant-State, the rank of the parties before the Trial Court is retained for the sake of convenience.
4. The Assistant Commissioner of Police, Halasuru Sub-Division filed the charge sheet against the appellant-accused persons alleging that the complainant-CW.1/P.W.3 being the Branch Manager of Muthoot Mini Nidhi Finance, situated at No.120, 1st floor, Alfa Diamond Plaza, New Thippasandra Road, Bangalore that on 02.06.2009, in the evening at 5.30 8 p.m., after locking the strong room and the main door, while he was returning to his house in his Honda Activa scooter bearing No.KA-03-EK-3890 by keeping the office keys in the dickey of the said scooter, when he was proceeding near Indira Nagar, accused Nos.6 and 9 followed him in a motor bike bearing No.KA-02- ED-15 and dashed to the vehicle of CW.1, due to which, he fell down. At that time, accused Nos.3, 7 and 8 came in a white colour Maruthi Omni van bearing No.KA-03-M-8138 and abducted the CW.1 to Malur Road under the guise of providing treatment. Accused No.7 poured the spirit on the face of CW.1 in the said Omni van. Accused Nos.3 and 7 assaulted the complainant-CW.1, by threatening him forcibly took the cash of Rs.20,000/- and snatched the mobile phone from him, then pushed out CW.1 from the Omni Van. Thereafter, the accused went near the scooter of the complainant where he was lying, took 9 the keys of Muthoot Mini Nidhi Finance from the scooter and also strong room keys from the dickey of the said scooter. Then accused Nos.1 to 10 assembled and then went to the Muthoot Finance office, opened the main door and committed the dacoity of golden ornaments weighing 40kg and 490 grams worth of Rs.5,68,40,000/- and escaped from the spot. During the investigation, the police arrested the accused persons. The case against accused No.9 was split up, he died during the trial. Accused No.10 was later arrested and a separate charge sheet has been filed in S.C.No.547/2011 and accused Nos.1 to 8 were tried in S.C.No.158/2010. The charges were framed, they denied the charges and claimed to be tried. Accordingly, the prosecution examined 42 witnesses as per PWs.1 to 42, got marked 74 documents as per Exs.P.1 to 74 and 42 material objects as per M.O.Nos.1 to 42. After closing the evidence, the 10 statement under Section 313 of Cr.P.C. was recorded. The case of the accused is one of the total denial, but not examined any witnesses except marking Ex.D.1.
5. After hearing the arguments, the Trial Court found the appellants guilty and convicted as under:
(i) Accused Nos.1 to 8 and 10 are sentenced to undergo rigorous imprisonment for a period of 1 one year and to pay fine of Rs.5,000/- each for the offence punishable under Section 120B of IPC.
(ii) They also sentenced to undergo rigorous imprisonment for a period of 9 years and to pay fine of Rs.10,000/- each for the offence punishable under Section 364(A) of IPC.
(iii) They also sentenced to undergo rigorous imprisonment for a period of 9 years and to pay fine 11 of Rs.10,000/- each for the offence punishable under Section 395 of IPC.
(iv) They also sentenced to undergo rigorous imprisonment for a period of 5 years for the offence punishable under Section 397 of IPC and in default of payment of fine, they shall undergo rigorous imprisonment for a period of 1 year. All the sentences are ordered to run concurrently.
6. Being aggrieved with the judgment of conviction and sentence passed by the Trial Court, the accused Nos.1 to 8 and 10 are before this Court by filing these appeals.
7. Sri T. Prakash, the learned counsel for the appellants appearing for accused Nos.1, 3, 8 and 10 has contended that the judgment of the Trial Court is erroneous and illegal. The Trial Court has not 12 considered that there was delay in lodging the complaint as the incident said to be took place on 02.06.2009 at 5.30 p.m., but the complaint was filed at 8.00 p.m., on the very next day. But the FIR was reached the Magistrate on 04.06.2009. The Investigating Officer investigated the matter and registered the FIR against three unknown persons. The version of the PW.1 is not believable since after the incident, he went and stayed in his relative's house without lodging any complaint and intimating to any persons which is unnatural conduct and even he has not intimated to his employers. He further contended that the complainant said to be took treatment in Vaidehi Hospital, but no documents produced and the material objects also not produced before the Court except marking the photos without any certificates. The Maruti Van is said to be used for commission of offence was also not proved. The 13 witnesses have turned hostile. All the prosecution witnesses including the panch witnesses turned hostile, not supported the prosecution case. The fingerprint which was said to be taken also not produced before the Court. The CCTV Camera Footage kept in the Muthoot Finance is not produced. There is no evidence regarding robbery or dacoity. The abduction or kidnapping also not proved. The T.I.P. has been conducted by the Tahsildar. The ASI is said to be identified the assailants, but the T.I.P. report not produced, therefore, it has no value. The complainant failed to identify the assailants. The Investigating Officer relied upon the Newspaper cutting regarding seizure of the golden ornaments which is marked as Ex.D.1 and the date of arrest was shown as 09.06.2009 and 10.06.2009, but the properties were seized on 08.06.3009 itself. The complainant claimed the insurance for theft of materials which shows this 14 case was set up in order to claim the insurance amount.
8. The learned counsel further contended that the accused No.10 was arrested after one and half year of the incident. Nothing has been recovered from him. None of the witnesses supported the prosecution case. There is zero evidence against accused No.10.
9. The learned counsel further contended that there was two keys for the safe locker, one key with the complainant and another key with the Assistant Manager. The same was noted in the Register in Ex.P.50. But the office was opened and removed the ornaments without breaking the lock which falsify the case of the prosecution. The complaint was drafted by the Director of the Muthoot Finance but not by the complainant. The case was based upon the 15 circumstantial evidence, but none of the witnesses have supported the prosecution case. Hence, prayed for allowing the appeals.
10. Sri Vishnumurthy, learned counsel for the appellants-accused Nos.2, 4, 6 and 7 has adopted the arguments of the learned counsel for the appellant Sri.T.Prakash and further contended that in the evidence of PW.3, he has to identify accused No.3, but he has identified accused No.4 in the Court, there is no corroboration with the evidence of PW.7 and the T.I.P. conducted. PW.7 should identify accused No.1 but the witness already identified the accused in the Police Station, but PW.7 has wrongly identified accused No.7. As per the evidence of PW.3, accused No.1 was on the spot, but as per the evidence of PW.7, accused No.1 was in the vehicle, there is a contradiction in their evidence. PW.3 was unable to 16 identify the accused who had kidnapped him from the spot. PW.3 stayed in the house of PW.23 after the incident. He went to the hospital, but he has not disclosed to PW.23 to his employer and he has stated that both keys are with him, but not explained as to why those keys were kept with him. As per the rules, one key must be with the Assistant Manager. The T.I.P. conducted by the PW.7 has stated only in question and answer but not produced and marked the proceedings for having identified the accused. None of the mahazar witnesses supported the case of the prosecution except police officials. The recoveries were not produced and not identified by any of the panch witnesses. The conduct of the appellant is very much surprised as he has not disclosed the incident to any persons. Therefore, the story of the prosecution is doubtful. The benefit of doubt shall be extended to the accused. Hence, prayed for allowing the appeals. 17
11. Per contra, learned High Court Government Pleader supported the judgment of the Trial Court and contended that the injured took treatment in the hospital, therefore, he has not lodged the complaint. PWs.1 to 8 have supported the prosecution case. T.I.P. was conducted and the witnesses are identified the accused. Therefore, prayed for dismissing the appeals.
12. The points that arise for my consideration are:
"1) Whether the prosecution proves
beyond reasonable doubt that on
02.06.2009 at 5.30 p.m., the accused
persons conspired to commit dacoity,
dashed the complainant to his scooter and abducted him in a Omni Van, robbed cash of Rs.20,000/- and mobile phone, then committed dacoity by removing 40 kgs 950 grams of gold ornaments from the 18 Muthoot Finance, thereby committed the offence punishable under Sections 120B, 364(A), 397, 395 read with Section 149 of IPC?
2) Whether the judgment of the Trial Court calls for the interference?"
13. Having heard the arguments and on perusal of the records, prior to appreciation of the evidence, it is worth to have a cursory look on the evidence adduced by the prosecution before the Trial Court.
14. PW.1-Sajeev who is the spot panch witness to the Ex.P.1 and seizure panch witness to the Ex.P.2 for the seizure of M.Os.1 to 40. He has deposed that the Police called him to the Muthoot Finance Premises and prepared the panchanama as per Ex.P.1. They also deposed that the Police seized M.Os.1 and 2- Godrej Lock. M.O.3-black rexin bag, M.O.4-bottle with 19 chemical. The axa blade, fine cutter, grew cutter, hand gloves kept in the rexin bag and the same were seized by the Police under the panchanama. In the cross examination, he has stated that he cannot say any description of the property that when he went to the spot, the police already were in the spot, 50 to 100 people were assembled. The properties were already collected from the shop. He further admits that the police never called to the Police station and he is not aware about the contents of the panchanamas. He further submits that the police informed him that there was dacoity committed, but he is not aware about the same. On perusal of the evidence of this witness, except for spot panchanama said to be conducted by the police, his evidence is not useful to the prosecution case 20
15. PW.2-Raju Ram, the another panch witness to Ex.P.3 for seizure of gold articles and according to his evidence, he is a jeweler, on 10.06.2009, the Hennur Police called him for weighing the golden ornaments. He was taken to Hosakote Taluk. A person came in the vehicle and he has identified the said person as accused No.3 and he has stated his name is Jayakumar. Then, the said Jayakumar shown some gold items which was hidden in the ground which was seized by the police under Ex.P.3 and further submits he cannot identify the golden ornaments seized by the police by looking to the photographs. He has treated as hostile and he denied the suggestion made by the learned P.P. and once again, he identified accused No.2 as Jayakumar and he has denied the photographs showing the golden ornaments. Though he has denied that he has stated before the police that he will identify the golden ornaments, but 21 deposed false. He further denies Ex.P.4 statement made to the police. In the cross examination of the learned counsel for the accused, he has stated that the police came to the shop for weighing the golden ornaments and he cannot say exactly who were the persons present in the car. The police themselves dug the floor and took the bag and he further admits he is not aware about the sealing of the bag. Except weighing the golden ornaments, he do not know anything and he further admits that he has identified accused No.2 only on the say of the police. On careful perusal of the evidence of this witness, though this witness taken to the spot for recovery and weighing the golden ornaments, but he has turned hostile not fully supported the case of the prosecution and he has identified accused No.3 instead of accused No.2 and later he has changed his version and stated that the police told him to identify accused No.2 and he is not 22 aware about the case and denied Ex.P.4. Therefore, his evidence is not consistent to believe and of no worth.
16. PW.3-Isac John who is the complainant and a star witness to this case. He has deposed that he is worked in the Muthoot finance as Manager from 1999 till 02.06.2009 and the said company running the finance by receiving the golden ornaments. On the date of incident i.e. on 02.06.2009, at 5.30 p.m., he closed the office, went in his motorcycle KA 03 EK 3890 when he was proceeding near the Corporation Bank main road, Indiranagar, a scooter dashed to him, he fell down, sustained injury on the face as well as knee chip. About 8 to 10 persons were present over there, one person opened the dickey of his scooter, took the bank key and 2 to 3 persons came in a Maruti Van and asked to come to the hospital, then, 23 he sat in the car, one person assaulted and robbed Rs.20,000/- from him by spreading the chemical on his face then at 9.30 p.m., the car went towards the Hosakote to Malur. Then he was pushed out and went away. A watchman came there, provided some water thereafter, he telephoned to one Vargeese Kurian and he went to the Vaidehi hospital, after obtaining the treatment, he went to the house of his relative at 1.30 a.m. and in the morning, he went to the spot, the scooter was not found, then he telephoned to the Bank Director, thereafter, he came to the office at Thippasandra and found the strong room was open, then he came to know about missing of 40 kg 650 grams of gold worth of more than Rs.5.00 crores and he found rod, axa blade, chemical bottle, gloves, monkey cap etc. then the police shifted him to the hospital and obtained the complaint as per Ex.P.5. He identified Ex.P.1 panchanama and M.Os.1 to 40 are 24 the materials seized from the spot. His evidence will be appreciated in the later part of the judgment.
17. PW.4-S.G.Kulakarni is the Regional Manager of Muthoot Finance. He has deposed that on 03.06.2009, he received phone call from the Director Mathews to come to the branch office, he went there, the office was open, the articles were scattered, the police not allowed him to go inside. He further deposes that on 06.06.2009, the J.B.Nagar Police called him and obtained signature on Ex.P.6 and informed that some articles seized from the Police. He saw the articles in a bag. He further says the police took to the house of accused No.1 and shown the articles to him and he further deposes that he cannot identify the golden ornaments.
18. The public prosecutor treated this witness as hostile and this witness has stated that he cannot 25 say that the accused No.1 was in the Police Station or not. The police asked him to come along with them, hence he went there and he says accused No.1 shown the rexin bag containing the golden ornaments. In the cross examination, this witness has stated that there was two keys for the room, one key with the Assistant Manager and another key with the Manager and in order to open the strong room, both should come and open the door by unlocking the same. He further deposes that there was CCTV camera and siren installed in the office and if any person entered the strong room, the siren will ring and if any other key is used to put on the lock it will not open and further deposes, there was an insurance coverage for the articles. He further deposes that the said building is consisting for four flours, their office is situated in the ground flour, there are houses and shops in the upstairs and if anybody goes by staircase, it will be 26 noticed by the people of the houses residing in the said building. A suggestion was made by the learned counsel for the accused that when they are not able to obtain the insurance claim, they filed the complaint.
19. On perusal of the evidence of this witness, it reveals, though he is a panch witness to the Ex.P.6 for seizure of articles at the instance of accused No.1, but those articles were not produced and marked before the Court. The CCTV was installed in the office, the footage was not collected by the Investigating Officer and produced before the Court. If any person goes inside the strong room by using the any other key, the siren will ring, but no such siren was heard by the other persons residing in the same building. As per his evidence, if any person entered the building through staircase, the other inmates of the house will be noticed. But no such person stated before the court 27 about the arrival of the accused or entering to the Muthoot finance by opening the main door and strong room for the best reasons known to the Investigating Officer and this witness why the CCTV footage not collected and produce before the Court, that will clinch the issue and easy for identification. Therefore, his evidence is not believable without corroboration of the any independent witnesses.
20. PW.5-Nemaram who is the panch witness to the Ex.P.8 seizure of golden articles, he has turned hostile not supported the prosecution case. That apart, he is a stock witness to the police.
21. PW.6-Srinivasa Murthy, an Accountant of Muthoot Finance, he deposes that as on the date of complaint, he was present and on the earlier day i.e., on 02.06.2009, they closed the office, went to the house and on the very next day, when he came to the 28 office, he found the office was opened, somebody stolen the articles from the strong room, then the police came to the spot. He further deposes that on 05.06.2009, he went to the Police Station and again on 10.06.2009 he was called to the Police Station and police told they seized the articles and they shown 9 persons were arrested. Again on 28.06.2009, they informed the articles were seized. In the cross examination, he has stated that in the said branch they have permitted to keep only 5 lakhs worth of golden ornaments and in order to keep more ornaments, they have to obtain permission from the main branch and the main branch is permitted to keep only golden ornaments worth of 30 to 40 lakhs. He also confirmed there was two keys for the strong room one key with the Assistant Manager and another key with the Manager and in order to open the strong room, both keys namely B1 and B2 are required. He 29 further admitted there was a register maintained in the office mentioning the holder of the keys and the said keys were kept by only Manager and the Assistant Manager, but not any other persons. He further admits, on the next day when he came to the office, the Police were present and came to know about the theft. He further admits there were other houses and shops situated in the same building, CCTV camera also installed.
22. PW.7-Girithimmappa, ASI who deposes that on 02.06.2009 at about 5.30 p.m., he received phone call from the control room that there was an accident on the Indiranagar Main road, he went to the spot, he found Hoysala vehicle also arrived on the spot, there were two, two wheelers found on the spot, one is Honda Activa and another is Yamaha crux. Some public told him that three persons came in a 30 van and took the scooter raider, then he has informed to the tiger van, one person was present on the spot and told the rider of the Honda Activa was his uncle and there was treatment in the Hosmat Hospital. Hence, he requested the vehicle but he refused to give the vehicle. He further deposes that later the vehicles were seized by the Jeevan Bhimanagar police under panchamnama Ex.P10. Exs.P.11 to P.13 are the photographs of the vehicle. He further deposes that on 24.06.2009, the police took him to the Bengaluru jail, conducted T.I.P. and he has identified accused No.1 was the accused before the Court. In the cross examination, he has stated that he do not know how the accident was occurred, there were 10 to 15 people present on the spot. The Hoysala van was on the spot, two police officials were there in the said car and he further admitted he has not reported to the Police Station regarding vehicle and request made by the 31 person for the vehicle and he further admitted, he came to know from the J.B. Nagar Police that accused were traced. Then he went to the Police station, saw the accused in the J.B. Nagar Police station. He further admits he has identified the accused No.1 as told by the Police Officers. He further admits he has not stated the description of the accused before the J.B.Nagar police. He further admits, he do not know when the panchanama was prepared for seizing of the motor cycle and Honda Activa. This witness is very important witness to the prosecution, he has said to be seen accused No.1 on the spot along with the other public, but, he has seen accused No.1 in J.B. Nagar police Station and identified him as accused No.1 and on the say of the J.B.Nagar police, he identified the accused No.1 and when the police shown the accused No.1 in the Police station, subsequently, he said to be identified in the jail. Therefore, T.I.P. conducted by 32 the Tahsildar-PW.37 and identifying accused No.1 by this witness is not in accordance with law and not believable and the identification of the accused No.1 by this witness is only empty formality and it has no evidentiary value.
23. PW.8-T Raju, ASI, who arrested accused No.9 and seized the golden articles deposes that one person found with bag, he apprehended him and his name was Suresh (accused No.9) who is absconding and on perusal of the bag, he was in possession of 1,562 grams golden ornaments, he prepared the panchanama Ex.P.15. Though the learned counsel for the accused cross examined this witness, but accused No.9 was absconding and no judgment was delivered against accused No.9 and he was reported dead.
24. PW.9-Jayaram, who is panch witness to Ex.P8 seizure of golden articles from accused No.8. 33 This witness turned hostile not supported the prosecution case. Hence, his evidence is not useful to the prosecution case.
25. PW.10-Yashwanth Raj Jain, another panch witness to the Ex.P.16 seizure of the golden articles from accused No.6, he also turned hostile and not supported the prosecution case.
26. PW.11-Mallesh, panch witness to Ex.P.17 for seizure of golden articles from accused No.5, he also turned hostile and not supported the prosecution case.
27. PW.12-Devaraj, another panch witness to the Ex.P.17, seizure of golden articles from accused No.5, he also turned hostile, not supported the prosecution case.34
28. PW.13-Noorulla, panch witness to Ex.P.19 seizure of articles from accused No.3, turned hostile and not supported the prosecution case.
29. PW.14-Chinnaswamy, seizure of articles from accused No.4 under Ex.P.20, he also turned hostile and not supported the case.
30. PW.15-M. Ravi Kumar, panch witness to Ex.P.16, seizure of articles from accused No.6, he also turned hostile and not supported the case.
31. PW.16-Pradeep Kumar, the land lord who let out a shop to the accused, but he has turned hostile, not supported the prosecution case.
32. PW.17-Raghu @ Rukmangada is the owner of the apartment staying in the same building, turned hostile and not supported the case.35
33. PW.18-R.Srinivasa, panch witness to the Ex.P.24 seizure of two wheelers, he also turned hostile.
34. PW.19-Jayaram, seizure panch witness to Ex.P.3 for seizure of golden articles from accused No.2 who has also turned hostile.
35. PW.20-Deepak Kumar, who showed the Maruti van to the accused also turned hostile and not supported the case.
36. PW.21-Jabiulla, who is the panch witness to Ex.P.24 seizure of two wheelers turned hostile and not supported the case.
37. PW.22-Abdul Salim, panch witness to the Ex.P.24, he also turned hostile and not supported the case.36
38. PW.23-Vergees Kurian, who has deposed that about 7 years back he came to know that CW.1 was unconscious, therefore, he went to Chikkathirupati, he brought him to the Vaidehi Hospital and he came to know that some unknown persons taken him in a van and left him, he provided treatment and came to know some persons committed theft in the Muthoot Finance. According to his evidence, he has no knowledge about the incident.
39. PW.24-K.S.Mahesh, who arrested the accused No.5 and produced before the Investigating Officer and then the accused took the police official and witness to the house and police seized golden articles under Ex.P.17 but he was unable to identify the accused in the Court. In the cross examination, he has admitted that he do not know the boundaries of the accused house, he do not know the owner of the 37 house and except apprehending the accused, he do not know anything and as per his evidence, though he has apprehended accused No.5, but he was unable to say the details of the recovery under Ex.P.17 and the panch witnesses were already turned hostile and the identity of the articles were not proved before the Court.
40. PW.25-C.P.Madappa PSI, deposed that, on 09.06.2009 at 10.00 p.m., the ASI and other police officials were taken for tracing the accused and one person was found near Byappanahalli and he was apprehended and brought back before the police station and on enquiry, he stated that his name was Nirmalraj and he identified the said person as accused No.1 in the Court. In the cross examination, P.W.25 has stated that for tracing accused No.1, photographs given to him and he has not prepared any 38 panchanama on the spot. No memo was given to him for tracing the accused and for apprehending the accused and he has not given any report to the investigation officer.
41. On perusal of the evidence of P.W.25, it reveals that in order to apprehend the accused, the photographs and descriptions were given to him, and that, if he arrests any person, at least, he should submit a report to the investigation officer. Absolutely, there is no document produced by him or marked by the prosecution to show that this witness was deputed for apprehending accused No.1 and his evidence appears to be an imaginary one and not in accordance with law.
42. P.W.26 - H.G. Vasudev, retired Police Sub Inspector deposed that, on 09.06.2009, he was deputed for apprehending the accused in this case. 39 Then he apprehended accused No.2 and produced before the investigation officer and the investigation officer recorded the voluntary statement of accused No.2 that he participated in the commission of dacoity in Muthoot Finance. In the cross examination, P.W.26 admitted that he has not prepared any report for producing the accused and no description given to him for apprehension of accused No.2. The evidence of this witness appears to be an imaginary and not believable.
43. P.W.27-Munaiah, retired ASI, deposed that on 10.06.2009, he was deputed and apprehended the accused-Manoj Kumar (accused No.4) and produced before the investigation officer. The investigation officer seized the golden ornaments under Ex.P.20. He has stated that the Investigating Officer given photograph to him and therefore, he apprehended 40 accused No.4, but he has not stated in the statement under Section 161 of Cr.P.C. that the investigation officer given the photographs, which reveals that the prosecution tried to develop the evidence after admission given by P.Ws.25 and 26.
44. P.W.28 - M. Venkataramanappa, retired ASI, has deposed that he apprehended accused No.1 on 10.06.2009. According to his evidence, that on the said day at 6.30 p.m., he apprehended accused No.1 and produced before the investigation officer. Then, the investigation officer seized gold articles from him and compared the evidence of P.W.25, who has stated that he apprehended accused No.1 on 09.06.2009, but P.W.28 says that accused No.1 was arrested on 10.06.2009. P.W.25 does not speak about the seizure of gold articles, but P.W.28 deposes that the gold articles seized from accused No.1. There is 41 contradiction between the evidence of P.W.25 and P.W.28 regarding the arrest of accused No.1 and the seizure of articles. That apart, as per Ex.D1-the News Paper, the accused persons were already arrested and the articles were released on 08.06.2009 itself. There is doubt regarding arrest of the accused.
45. P.W.29-Basavaraj Doddamani has apprehended accused No.8-Das Prakash on 10.06.2009 at 8.30 p.m., and produced him before the investigation officer and the Investigating Officer seized gold articles from the said accused. In the cross examination, P.W.29 has admitted that there is no photographs taken at the time of seizure and he has not attested witness to the panchanama.
46. P.W.30 - Basavaraj, a customer to Muthoot Finance, has deposed that he borrowed loan by pledging the gold ornaments, but it was stolen by 42 somebody. He has not given any statement to the police though got released the property.
47. P.W.31 - M.K. Thammaiah, Dy.S.P., the then police inspector, conducted panchanama-Ex.P.8 and seized gold ornaments from accused No.8. He admitted, in the cross examination, that no panchanama was prepared on the spot and no search was conducted, when the accused was apprehended. There was no CCTV camera on the spot in the lodge. He stated that he did not secure any panch witness from the spot, and no video recording and no photographs were taken while seizing the articles.
48. P.W.32-Rangappa, Police Inspector, deposed that he seized the gold articles from accused No.3. He has deposed that accused No.3 was produced before him and he arrested him. The accused took him to the house at Mahadevapura and 43 P.W.32 seized the gold articles under Ex.P.18 in the presence of panchas. He identified accused No.3. He has also admitted that no photography and no videography was taken and no witnesses were examined on the spot.
49. P.W.33-Rajanna, Police Inspector, seized Maruthi Omni van and produced before the Investigation Officer and the same was seized under panchanama as per Exs.P.28 and P.29 and the report is at Ex.P.30.
50. P.W.34-Badrinath, Dy.S.P., who was the then Police Inspector, deposed that he was deputed for arrest of the accused in this case and on 10.06.2009, he apprehended accused No.5. Thereafter, he recorded the voluntary statement of the accused, and took gold appraiser and went to the room and seized the gold ornaments under Ex.P.17. 44 He identified Ex.P.31-voluntary statement of accused No.5.
51. P.W.35-Shanthi, one of the customers, who pledged the gold ornaments in the Muthoot Finance, has turned hostile.
52. P.W.36-Kishore Bharani, police inspector, deposed that he apprehended accused No.6-Sethu on 09.06.2009 near Old Madras Road and recorded the voluntary statement. He prepared panchanama as per Ex.P.16 and seized articles. Then, he produced the accused before the investigation officer.
53. P.W.37-Venkatesh D., the Taluk Executive Magistrate, who conducted test identification parade at the request of the police, has deposed that on 24.06.2009, he went to the Central Jail and kept 8 persons on the queue and requested C.W.47, who 45 identified accused No.1 and recorded the report as per Ex.P.14.
54. P.W.37 further deposed that the accused were asked to stand in a row. Then asked C.W. 35 to identify the accused and he identified accused No.2 and accused No.1, and he prepared a report/certificate as per Ex.P.33.
55. P.W.37 also deposed that again 1 to 8 persons were asked to stand in a queue, then C.W.32 identified accused Nos.1 and 2 and also Bhaskar, and C.W.32 prepared certificate as per Ex.P.23. He further deposed that, again, the accused were shown to C.W.34, who identified the accused Nirmal Rajkumar, Jayakumar and Das Prakash and gave certificate as per Ex.P34. C.W.44 identified the accused and issued report as per Ex.P.35. C.W.43 said to be identified accused No.1 and another 46 accused and issued certificate as per Ex.P.36. C.W.41 identified the accused and issued certificate as per Ex.P.37. C.W.1 identified the accused Das Prakash, Bhaskar and Madivannan and issued certificate as per Ex.P.38. C.W.33 identified the accused Nos.1, 2 and Bhaskar and issued certificate as per Ex.P.39.
56. P.W.38 - D. Kumar, Dy.S.P., the then police inspector, deposed that on 03.06.2009, the complainant filed written complaint as per Ex.P.5 and he prepared FIR as per Ex.P.40. Then, he visited the spot and prepared panchanama on the spot as per Ex.P.41. He seized some articles from the spot under Ex.P.2. He identified the articles seized from the spot as per M.Os.1 to 23. He conducted panchanama and seized two motor cycles under Ex.P.10. The photos are at Exs.P.11 to P.13. He also prepared spot panchanama as per Ex.P.41. Then recorded the 47 statement of some of the witnesses. Accused No.7- Madivannan was apprehended by him and he seized rexin bag and also 1337 grams of gold and prepared panchanama as per Ex.P.43.
57. P.W.39 - G.V. Manjunath, who is the investigation officer and who was the then ACP Ulsoor police, has deposed that, on 03.06.2009, he took up investigation. A memorandum was issued to him as per Ex.P.45. On 09.06.2009, accused No.1 was produced before him and he seized rexin bag and gold ornaments under panchanama. Then, on the same day, he arrested accused-Bharath and seized the golden ornaments under Ex.P.17. He also arrested accused Nos.7, 8, 9, 4, 6 and seized the articles under the panchanama and also seized the Maruthi van, wound certificate and also the records from the 48 finance company. He identified the photographs and filed charge sheet after completion of investigation.
58. P.W.40 - Ranjan Thimmaiah, a panch witness to Exs.P.58 and P.59, was examined as an additional witness and he has turned hostile and not supported the case of prosecution.
59. P.W.41-Paboothmal, an additional panch witness to Exs.P.60 to P.63 for seizure of the articles from accused No.1, has also turned hostile and has not supported the prosecution case.
60. P.W.42-Siddaraju, the investigation officer filed additional charge sheet in respect of recovery of articles under Exs.P.58 to P.63 from accused No.1.
61. On perusal of the entire evidence on record, which reveals the recovery panch witnesses in respect of seizure of alleged golden articles by the 49 Investigating Officer were all turned hostile especially PW.5-Nemaram and PW.9-Jayaram who are the panch witnesses for having seized golden articles under Ex.P.8 from the accused No.8, turned hostile and not supported the case of the prosecution. PW.10 and PW.15-Yashwath Raj Jain and Ravi Kumar who are the seizure panch witnesses for Ex.P.16 from the accused No.6, both of them turned hostile, not supported the case. PW.11-Mallesh and PW.12-Devaraj are the seizure panch witnesses to Ex.P.17 for seizing the golden articles from accused No.5-Lawrence, they also turned hostile, not supported the case. PW.13- Noorulla who is panch witness to the seizure of the golden articles from accused No.3 under Ex.P.18 also turned hostile, not supported the case. PW.14- Chinnaswamy, panch witness to the seizure of golden articles from accused No.4 under the panchanama Ex.P.20 also turned hostile, not supported the case. 50 PW.18-Srinivas, PW.21-Zabiulla and PW.22-Abdul Salam are the panch witnesses to the seizure of the motorcycle and the Honda Activa by the Investigating Officer under Ex.P.24 both turned hostile, not supported the prosecution case. PW.19-Jayaram, the seizure panch witness for the seizure of the golden articles from accused No.2 under Ex.P.3 also turned hostile, not supported the case. PW.20-Deepak Kumar who said to be sold the Maruthi Van to one of the accused Bharath also turned hostile, not supported the case.
62. The only witnesses supported the prosecution case is the Police officials and PW.3- complainant. As per the evidence of PW3-the complainant, he has stated on 02.06.2009, he has closed the office and while going to the home, in his motorcycle on the Corporation Bank Main Road, a 51 scooter dashed him, he sustained injury on his face and some 8 to 10 persons were present and one person opened the dicky of the scooter and took Bank keys and two to three persons came in Maruti van and asked him to come to the hospital and started the car. They robbed Rs.20,000/- by smearing chemical on his face, then the vehicle went near Hoskote to Malur, they pushed him out. Then a watchman came there, he telephoned to PW.23-Vargees Kurian and then went to Vaidehi hospital, took treatment and went to his relative's house. On the next day, he telephoned to Director of the Bank and came to the office, then he found strong wood was opened, golden ornaments weighing more than 40 kgs were missing. Then he lodged the complaint to the police as per Ex.P5. The police came to the spot, prepared the panchanama and seized some articles on the spot and he has identified the material objects from M.Os.1 to 40. 52 According to this witness, some 10 to 12 persons took him in a van and so many persons sat in the vehicle and two persons sat by the side of this witness and he has identified accused No.4 who was sitting on the left side and accused No.5 who sat on the right side. Then, this witness stated, the person who sat on the right side whose name was Nirmal Raj, but this witness identifies accused No.4 by stating the name as accused No.1 and in respect of another witness, he has identified and stated as accused No.6. Even though he has identified accused No.3 and this witness was unable to identify the accused persons in the court and he has given evidence of different versions in different stages and there is inconsistency in the examination-in-chief itself. In the cross examination, PW.7-ASI says accused No.1 was on the spot but this witness says he was in the van. 53
63. PW.3 further stated that he was treated in the hospital for 10 days, then, police took him to the jail, he identified accused Nos.4 and 5 (but this witness identified accused Nos.4 and 6 in the Court) and thereafter, once again this witness changed the version and identified accused Nos.3 and 6 and further stated the accused Nos.7 and 8 came to the accident spot. He further deposes that later the police shown M.Os.41 and 42 are the two golden rings. His evidence in Examination-in-Chief itself is not having any consistency and in the cross examination, he has admitted the Muthoot Finance is situated in the Main Road, there are lot of people residing in surrounded area and it is one of the busy area and it is consisting of three floured building. There are shops in the ground floor. The finance company and other offices are situated in the first floor and in the second floor, there were residential houses. He further admitted 54 that between the house of his relative-PW.23- Varghese Kurian is situated within 3 to 4 kms and Police station is situated within 2 kms and he further admits that he cannot say the names of the persons who were worked in their office and left their job prior to six months. He further admits that there was a register kept in their office wherein one of the strong room key has been taken by him, another key is with the Assistant Manager and the same was mentioned in the said register. In order to open the strong room, both the keys are required and three separate room doors were situated and grill also there and further a siren was fixed but he has denied, there is no siren, but the Investigating Officer says there was a siren.
64. This witness further admits that he has not seen the person who has dashed his vehicle and caused accident. He also further admits, he has not 55 verified the registration number of the vehicle. He further admits the said persons left him near Malur and later he telephoned to his relative Vargees Kurian-PW.23 and stayed in his house. If the version of this witness is believable that the mobile phone was snatched by the accused, the question of again this witness calling the Vargees to the spot and going to the house is not acceptable and he also admitted that he has not produced any document to show that he has obtained treatment in Vaidehi Hospital. The Investigating Officer also not collected any medical documents from Vaidehi Hospital to accept the evidence of this witness that he has treated in Vaidehi hospital and thereafter he stayed in the house of PW.23. There is inconsistency in the evidence of this witness in respect of identifying the accused who were accompanied him in the car. At one stage he has stated, accused No.3 was on the right side and 56 accused No.2 was on the left side while traveling in the car and subsequently, he says accused No.5 was on the right side and accused No.3 was on the left side and further admits, when he was traveling, some spray was smeared on him and he become unconscious and thereafter, they pushed out from the car which reveals he was not able to see any of the accused either accused Nos.2 or 3 or defect in the identification of accused Nos.3, 2 or 5. That apart, he says that accused Nos.7 and 8 dashed his scooter but he has seen accused No.1 on the spot and also says accused Nos.1, 7 and 8 were in the car. Therefore, it is not clear whether accused Nos.7 and 8 were at the spot or accused No.1 was at the spot. But PW.7 says accused No.1 as being on the spot but not accused Nos.5 and 7.57
65. Apart from that, the evidence of PW.37 - Tahsildar is also not clear about the identity of the accused by this witness and there was inordinate delay in lodging the complaint and even though, the incident took place on 02.06.2009 at 5.30 p.m., but no complaint has been lodged till next day evening and his conduct is doubtful and without informing the incident either to PW.23-Vargees Kurian or to his family members or to the Higher Officials, he came to the office in a casual manner on the next day and after he came to know that there was theft of golden ornaments, thereafter, he has created a story that he was met with an accident and somebody abducted him, robbed him and pushed him out from the Omni car. That apart, when one key of the locker is with this witness, the another key was with the Assistant Manager and without two keys, the locker cannot be opened. Apart from that, if the key is kept in the 58 scooter and immediately after the accident, the vehicle was seized by PW.7, how this key went to the hands of the accused is not explained by the prosecution. Therefore, the evidence of this witness is only for setting the law into motion for the purpose of investigation.
66. The another witness PW.23-who is the relation of the complainant, PW.4-Regional Manager of the complainant's company, PW.6-Account Officer of the Reliance company and the remaining witnesses are police official witnesses. PW.24-K.S.Mahesh, Head constable arrested accused No.5 for seizure of the articles as per Ex.P17. PW.34-Badrinath S-Dy.S.P. who said to be arrested the accused and recovered some golden ornaments, but no independent witnesses were taken for seizure of the golden articles from accused No.5 under Ex.P.17, it is by the PW.24 and PW.34. None of the independent witnesses joined 59 as witnesses. Likewise, the PW.25-Madappa, PSI and PW.28 Venkataramanappa, ASI who arrested accused No.1 and seized some golden articles from the accused No.1, but none of the independent witnesses supported the prosecution case regarding seizure of golden ornaments from the possession of the accused. PW.40-Ranjan and PW.41-Paboothmal who were the independent witnesses for the seizure of articles from accused No.1 and Exs.P.58, 59, 62, 63 but these two witnesses i.e., PW.40 and PW.41 turned hostile and not supported the prosecution case. The only police officials have supported regarding the seizure of articles from accused No.1. PW.26-H.S. Vasudeva, PSI, who arrested the accused No.2-Jayakumar and seized golden ornaments under Ex.P.3 though he has supported, but the independent witnesses PW.19- Jayaram not supported the prosecution case. 60
67. Likewise, PW.29 Basavaraj Doddamani, PSI and PW.31-M.K.Thammaiah, Dy.S.P. who arrested the accused No.8-Das Prakash and seized golden ornaments but the independent witnesses not supported the prosecution case and the material objects also were not produced before the Court for the purpose of marking. PW.32-T.Rangappa, Police Inspector, who also arrested the accused No.3, Baskaran and seized the material objects from accused No.3 under Ex.P.19, but the independent witnesses not supported the prosecution case and the material object also not produced and marked before the court for identification. PW.33-Rajanna, Police Inspector who seized the Maruthi Van, which is said to be involved in the commission of offence, but the very owner of the Maruthi Van not supported the prosecution case and the seizure of the Maruthi van also not proved.61
68. PW.21-Zabiulla and PW.22-Abdul Salam were seizure panch witnesses to the panchanama Ex.P.24 for seizing the motorcycle belongs to the accused No.1 and Honda Activa belongs to the PW.3 was also not proved as both the witnesses have turned hostile, not supported the case. PW.35-Shanthi who said to be customer, PW.30-Basavaraj, another customer were all pledged the golden ornaments, they got it released from the Court. They are only formal witnesses, their evidence is not useful for the prosecution case. PW.36-Kishore Bharani who is a Police Officer who arrested accused No.6 and seized the golden ornaments under Ex.P.6, but except the Investigating Officer, the panch witnesses PWs.15 and 10 were not supported the prosecution case.
69. PW.38-Kumar another Investigating Officer who prepared the panchanama and seized the two 62 wheelers, arrested the accused No.7 and except this witness, the panchas, PWs.21 and 22 not supported the prosecution case. PW.39-Manjunath, the another Investigating Officer who arrested the accused persons, recorded the voluntary statement and collected the documents as per Exs.P.49 to 57 regarding letter, key register, missing stock, entry form, copy of the sale deed etc., but none of the other witnesses supported in respect of the seizure. PW.42 - Siddaraju, another Investigating Officer filed additional charge sheet.
70. On perusal of the evidence, except the Investigating Officers and the PW.37-Tahsildar, no other independent witnesses supported the prosecution case.
71. PW.37-Venkatesh.B, Tahsildar who conducted the T.I.P. and according to his evidence, he 63 has conducted the T.I.P. in prison on 24.06.2009 and according to him the PW.7-Thimmaiah, ASI identified accused No.1 as per Ex.P.33, the PW.22 identified the accused Nos.1, 2 and 8. PW.22 is only a panch witness to Ex.P.24 for seizure of the motorcycle and the question of identifying accused Nos.1, 2 and 8 by PW.23 is of no consequence and he has not seen the assailants while committing the offence. He is only panch witness and he has turned hostile before the Court. Therefore, identifying accused Nos.1, 2 and 8 by the PW.22 is not useful to the prosecution.
72. It is further alleged that PW.17 is said to be identified accused Nos.1, 2 and 3 as per Ex.P.23, but this witness not seen the accused persons either while committing the offence or he was seen the accused when the accident was took place for PW.3. Therefore, identifying this witness is not useful to the accused 64 Nos.1, 2 and 8. Likewise, the CW.44 said to be identified the accused Nos.1 and 7 under Ex.P.35 but CW.44 not examined before the Court and the said CW.44 is not a witness who saw the assailants during the incident. Therefore, the evidence of PW.37 for identifying the accused Nos.1 and 7 by CW.44 also not useful.
73. The further evidence of PW.34 is that the CW.43 identified accused Nos.1 and 7, but CW.43 is also not examined before the Court and CW.43 is also not an eye witness to the incident, therefore, Ex.P.36 is also not useful to the prosecution case. It is further deposed by PW.37 that PW.20 identified the accused Nos.7 and 8 under Ex.P.37. PW.20 also turned hostile who said to be sold the Maruthi Van to the accused and therefore, identifying the accused Nos.7 and 8 by the PW.20 is not useful.65
74. As per the further evidence of PW.37, PW.16 said to be identified the accused Nos.1 to 3 under Ex.P.39 but PW.16 also turned hostile, not supported the case and PW.16 is also not the eye witness to the incident. Therefore, question of identifying accused Nos.1 to 3 by PW.16 cannot be acceptable. As per the case of the prosecution, accused Nos.7 and 8 dashed vehicle and accused No.1 was on the spot seen by the PW.3-complainant and no other eye witnesses to the incident and PW.7 who said to have seen accused No.1 on the spot. Therefore, the T.I.P. conducted by PW.37 except for accused No.1, but not useful to others identification.
75. As per PW.37, the PW.7 who is the Assistant Sub-Inspector, identified accused No.1 under Ex.P.33 and PW.3 said to be identified accused Nos.8, 3 and 7 under Ex.P.38. On careful perusal of 66 Ex.P.33 reveals, the question was posed by PW.7 that how many persons participated in the offence and PW.7 stated as '1' and next question was whether he can identify him, for that PW.7 said 'yes'. Likewise, in Ex.P.38, the question was posed by PW.37 to PW.3 that he has answered he can identify and he has seen him. But these two witnesses question and answers were marked by the prosecution, it is not clear whether these two witnesses identify which accused. Likewise, under Exs.P.33 to 39, reveals, the question and answer has been produced before the Court and it is not clear which witness identifies which of the accused and which of the row they made to stand during T.I.P. Therefore, the evidence of PW.37 and Ex.P.33 report is not in accordance with law for having conducted the T.I.P. There is no proceedings of Tahsildar for conducting the T.I.P. has been marked 67 for the purpose of proving the identification of the accused by the witnesses during the T.I.P.
76. The learned counsel for the appellants contended that as per Ex.D.1, the Police Officer already published in the News paper that the accused were arrested, recoveries were done as per the news report dated 08.06.2009 itself and the accused persons were shown as arrested and recovered the articles as per the seizure panchanamas on 10.06.2009. The photograph of the accused were published in the newspaper and there is every possibility of the witnesses seeing the accused persons in the Police Station is not ruled out. Therefore, it is contended the identification of the accused under the T.I.P. is not having any evidential value. The Hon'ble Supreme Court in the case of Suryamoorthi and Another vs. Govindaswamy 68 and Others reported in (1989) 3 SCC 24 has held as under :
"Evidence Act, 1872 - Section 9 - T.I. Parade - Photographs of accused appeared in local newspapers and accused also kept in police lock up for a few days before T.I. parade held - Held, possibility of the accused having been shown to prosecution witnesses cannot be ruled out - Hence evidence of T.I. parade not reliable."
77. Therefore, the very evidence of the Investigating Officers and the Tahzildar who conducted the T.I.P. for identifying the accused were all not proved by the prosecution beyond reasonable doubt.
78. The only witness supported is PW.3 whose evidence is not sufficient and there is lot of consistency in his evidence and his conduct is improbable since the date of incident was on 69 02.06.2009 at 5.30 p.m., but on the night he met PW.23 and he said to be took the treatment in Vaidehi hospital and later stayed in the house of PW.23. But this witness not disclosed about the accident, where he left the scooter and the accused persons abducted him in the Maruthi Van and assaulted him, snatched mobile phone and cash of Rs.20,000/-. In spite of it, he has not lodged the complaint immediately but he was stayed in the house of PW.23 and on the next day, he went to the office, as usual and even without informing his Higher Official, PW.4 who is a Regional Manager. By that time when he went to the office, the police were already present. PW.4 was present, there was theft in the office. The golden articles were stolen, but the complaint was filed by PW.3 in the evening that too the said complaint was prepared by PW.4. Apart from that he said to be left the key in the scooter and the said scooter was taken by PW.7-ASI 70 to the Police station. Such being the case, how this key went to the hands of the accused and the second key was with the Assistant Manager as per the register maintained by the Financier. When the two keys were kept by two different Managers, the question of taking both the keys by PW.3 does not arise. Apart from that, there was lot of contradictions and omissions in his evidence and he was unable to identify the golden ornaments before the Court. Therefore, this witness may be used only for the purpose of setting the law into motion but not for any other purpose.
79. PW.23 also says he has brought PW.3 from the Malur Road and took him to the hospital and later stayed in the house and he is not aware anything about the incident. Therefore, the evidence of PW.23 is also not useful to the case of the prosecution. 71
80. PW.4-S.G.Kulakarni, Regional Manager, though he has stated that there was CCTV Camera installed in the office and there was siren fixed in the strong room, but no CCTV footage produced and marked by the prosecution, therefore, the evidence of PW.4 is also not sufficient to prove the guilt of the accused.
81. As regards to the evidence of PW.7 who is the Police Officer who saw accused No.1 on the spot but he has not registered any case in respect of any accident, even though he took the vehicle and also not chosen to record the statement of the injured. As per his evidence accused No.1 was on the spot but as per PW.3-complainant, the accused No.1 was in the Maruthi Van. Therefore, the evidences of PWs.7 and 3 regarding identifying accused No.1 said to be on the spot or car which is not proved by the prosecution. 72 The Hon'ble Supreme Court in the case of Mustkeem v. State of Rajasthan reported in (2011) 11 SCC 724 has held as under:
"Criminal Trial - Circumstantial Evidence _ Recovery of crime articles/ incriminating articles /other articles _ Recovery of alleged weapons _ Witness of recovery turned hostile _ another witness admitted that the signatures were obtained on memos at Police Station _ Witnesses were residing at distance from place of recovery _ Prosecution failed to establish as to why none of the local persons living close by were called to be witnesses."
82. Here in this case, none of the panch witnesses supported the case except Investigating Officer and T.I.P. was conducted by PW.37 which is not in accordance with law and T.I.P. proceedings were not produced. There is inconsistency in the evidence of PW.3, there is delay in lodging the 73 complaint and after due deliberation, the complaint came to be lodged after one and half days delay and FIR was reached the Court after a day. The golden ornaments were also not identified by any of the witnesses and photographs were produced but there is no panchanama prepared and marked by the prosecution to show this golden ornaments were released to the concerned persons and the photographs were required to be identified by the witnesses in the Court but except police officials, no other evidence available for identification of the articles. The Hon'ble Supreme Court in the case of Sunderbhai Ambalal Desai vs. State of Gujarat in Special Leave Petition (crl.) 2745 of 2002 and guidelines were issued that the photographs must be taken in respect of articles and panchanamas should be prepared and the same shall be used as evidence before the Court but the same was not followed. 74 Therefore, those photographs cannot be acceptable as evidence under Section 65 of the Evidence Act.
83. As regards to the charges framed for the offence punishable under Section 120B of IPC, the prosecution utterly failed to prove the criminal conspiracy held between the accused persons by examining any of the witnesses before the Court. The charges were made only based upon the voluntary statement without any substantive piece of evidence. Therefore, the prosecution failed to prove the charges under Section 120B of IPC.
84. In respect of Section 364(A) of IPC, wherein the definition is as under:-
"Kidnapping for ransom, etc., -
whoever kidnaps or abducts any person or keeps a person in detention after such kidnapping or abduction and threatens to cause 75 death or hurt to such person, or by his conduct gives rise to a reasonable apprehension that such person may be put to death or hurt or causes hurt or death to such person in order to compel the Government or (any foreign state or international, inter governmental organization or any other person) to do or abstain from doing any act or to pay a ransom, shall be punishable with death or imprisonment for life and also be liable to be fined.
85. On perusal of the evidence on record, absolutely there is no ingredient in the prosecution case that the accused person abducted PW.3- complainant and kept him as hostage and demanded any ransom from the Muthoot Finance company or any other person. As per the evidence of PW.3, he was taken by some person in the van for the purpose of providing treatment after the accident and later 76 while traveling the accused said to be snatched the phone and cash from him and pushed him out from the car and there is no evidence for the recovery of the phone or recovery of the cash from the accused. The identity of accused also not proved by satisfactory evidence, therefore, mere taking the complainant in the van and later pushed him out from the van will not constitute any offence under Section 364A of IPC. Therefore, I hold the prosecution failed to prove the charges framed for the offence punishable under Section 364A of IPC.
86. As regards to the charges framed for the offence punishable under Section 397 of IPC, wherein as per the definition that at the time of committing robbery or dacoity, the offender uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any 77 person which is punishable under this Section. Here in this case, it is not the prosecution case that the accused person assaulted him or attempted to cause death or grievous hurt to any persons while committing robbery or dacoity, absolutely there is no evidence, that they caused any hurt or fear of death while committing alleged robbery or dacoity.
87. In respect of Section 395 of IPC, it is alleged that the accused persons opened the door of the finance company by using the key, said to be stolen from the scooter of PW.3 by causing accident. As per the evidence of the PW.3 that immediately after the accident, he was taken by some person in the van under the guise of providing medical treatment and as per his evidence accused Nos.7 and 8 dashed the Honda Activa scooter and he has stated accused No.1 was took the key from the scooter, but 78 he has not stated in the complaint that accused No.1 has taken the key from the scooter. On the other hand immediately after the accident, some public said to be sent him to the hospital in a van. Therefore, question of seeing accused No.1 and taking the key is not possible. That apart, he has stated, accused No.1 on the spot, on the other hand, he has stated that the accused No.1 traveled in the van. PW.7-Police Officer who came to the spot after the accident said to be seen accused No.1 on the spot. If accused No.1 was on the spot, the question of traveling with the complainant by the accused No.1 does not arise. This Court has already held in the above paragraphs in detail, that apart, PW.3 not stated anything about the accident, taking the car key immediately after meeting PW.23 or to his Higher Officers and as usual, he came to the office by next day and found there was theft of golden ornaments in the Finance office and the police 79 were already present there. The same thing has stated by PW.4 also. Though police officers took the fingerprints from the spot and sent to the FSL, but the same was not produced and marked before the court and also the CCTV footage also not seized and produced before the court to show these appellants came to the office of the complainant and stolen the golden ornaments. Apart from that, none of the independent witnesses supported the prosecution case regarding recovery of golden ornaments, the identity of the accused not proved in accordance with law. The arrest of the accused persons on the same day i.e., on 10.06.2009 in different places by the different police officers seizing the gold ornaments individually while said to be carrying the same cannot be acceptable, it is like a filmy style recovery and except police officials, none of them have been supported the case. The evidence of PW.3 is not trustworthy to 80 accept and there was delay in lodging the complaint. The officials of the Muthoot Finance were unable to identify the golden articles, were all goes to show that even if there was theft of golden ornaments from the Muthoot Finance, there is no connecting evidence with the appellants and the stolen articles. That apart the Investigating officer has not chosen to investigate as to whether how the two keys of strong room was with the custody of PW.3 instead of one key must be with Assistant Manager. Therefore, the true facts were not investigated by the police, therefore I hold the prosecution utterly failed to prove that the appellants are involved in the commission of dacoity beyond reasonable doubt. Therefore, I am of the view, the prosecution utterly failed to prove any of the charges against any of the accused beyond reasonable doubt and hence, the benefit of the doubt shall be extended 81 to the accused. Hence, answered point No.1 in the Negative.
88. Point No.2-On perusal of the judgment of the Trial Court, the Trial Court went on mentioning the deposition of the witnesses and finally on the last two pages, it was held that as per the evidence of Investigating Officer and evidence of PW.37-the Tahsildar, the Trial Court proceeded to convict the accused which is not correct. The Trial Court not appreciated the evidence of any of the witnesses in accordance with law. Simply mentioning the deposition and accepting only evidence of Investigating Officer is not enough to prove the guilt in robbery and dacoity cases where the prosecution case relied upon the circumstantial evidences. Therefore the judgment of the Trial Court is required 82 to be set aside. Accordingly, I proceed to pass the following order:
ORDER The appeals filed by the appellants/accused Nos.1 to 8 and 10 are allowed.
The judgment of conviction and sentence passed by the LVI Additional City Civil and Sessions Judge in S.C.No.158/2010 and S.C.No.547/2011 are hereby set aside.
The appellants/accused Nos.1 to 8 and 10 are acquitted for the charges framed under Sections 120B, 364A, 395, 397 read with Section 149 of IPC.
The bail bond of the accused No.10 is cancelled. The appellant/accused Nos.1 to 8 are in custody and they shall be set at liberty forthwith, if they are not required in any other cases.83
The return of golden articles, if any, to the owners and financiers are hereby confirmed. The vehicles if released in any RC Owner's favour and if any properties are forfeited, they are hereby confirmed.
Office to send the Trial Court Records and the copy of the judgment to the Trial Court.
Office to send the copy of this judgment to the Central Jail, Bengaluru for releasing the appellants.
Sd/-
JUDGE GBB/CS/AKV