Dismissed

The State by v. Vikki Singh @ Vikki

Karnataka HC15 Sept 2023CRL.A/1836/2016

Case brief

AI extract

What is this about?

State appeals against acquittal of two accused for robbery and dealing in stolen property. The High Court found that the victims could not identify the accused reliably, the Test Identification Parade was vitiated by prior police showing, and the alleged recovery of stolen articles was not proved due to hostile witnesses and contradictory police evidence. Appeals dismissed.

What the court decided

AI extract

The State by Vs Vikki Singh @ Vikki — Quashing and FIR | Karnataka HC (2023)

¶1

¶2

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 15^TH DAY OF SEPTEMBER, 2023

¶5

PRESENT

¶6

THE HON'BLE DR. JUSTICE H.B.PRABHAKARA SASTRY

¶7

AND

¶8

THE HON'BLE MR JUSTICE ANIL B KATTI

¶9

CRIMINAL APPEAL NO.1836 OF 2016 (A)

¶10

C/w

¶11

CRIMINAL APPEAL NO.1834 OF 2016 (A) AND

¶12

CRIMINAL APPEAL NO.1962 OF 2016 (A)

¶13

In Criminal Appeal No.1836/2016 :

¶14

BETWEEN:

¶15

The State by Jnanabharathi Police Station,

¶16

Represented by

¶17

State Public Prosecutor, High Court Building,

¶18

Bengaluru-01. …Appellant

¶19

(By Sri. B.N.Jagadeesh, Addl. SPP)

¶20

AND:

¶21

Vikki Singh @ Vikki,

¶22

S/o Mulsingh,

¶23

Aged about 36 years, R/at No.127, Dowki Post, Fatehbad Taluk,

¶24

Agra District,

¶25

Uttar Pradesh - 202 124.

¶26

Vishal Singh,

¶27

S/o Pramod Singh,

¶28

¶29

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶30

Aged about 26 years, R/o.Dowki Post, Fathehbad Taluk, Agra District, Uttar Pradesh-202124. …Respondents

¶31

(By Sri. N.S.Sampangiramaiah, Advocate)

¶32

This Appeal is filed under Section 378(1) and (3) of Code of Criminal Procedure, praying to grant leave to appeal against the judgment and order of acquittal dated 01.07.2016 passed by the Court of the 56^th Addl. City Civil and Sessions Judge in S.C.No.1205/2013 acquitting the respondents for the offence punishable under Section 392 r/w Section 397 and 413 of IPC and set aside the judgment and order of acquittal dated 01.07.2016 passed by the Court of the 56^th Addl. City Civil and Sessions Judge in S.C.No.1205/2013 for the offence punishable under Section 392 r/w Section 397 and 413 of IPC and convict and sentence the accused for the offences punishable under Sections 392 r/w 397 and 413 of IPC by allowing the appeal, in the interest of justice.

¶33

In Criminal Appeal No.1834/2016

¶34

BETWEEN:

¶35

The State by Jnanabharathi Police Station, Represented by State Public Prosecutor, High Court Building, Bengaluru-01. …Appellant

¶36

(By Sri. B.N.Jagadeesh, Addl. SPP)

¶37

AND:

¶38

Vikki Singh @ Vikki, S/o Mulsingh, Aged about 36 years, R/at No.127, Dowki Post,

¶39

¶40

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶41

Fatehbad Taluk, Agra District, Uttar Pradesh - 202124.

¶42

Vishal Singh, S/o Pramod Singh, Aged about 26 years, R/o.Dowki Post, Fathehbad Taluk, Agra District,

¶43

Uttar Pradesh-202124. …Respondents

¶44

(By Sri. N.S.Sampangiramaiah, Advocate)

¶45

This Appeal is filed under Section 378(1) and (3) of Code of Criminal Procedure, praying to grant leave to appeal against the judgment and order of acquittal dated 01.07.2016 passed by the Court of the 56^th Addl. City Civil and Sessions Judge in S.C.No.1289/2013 for the offence punishable under Section 392 r/w Section 397 and 413 of IPC and set aside the judgment and order of acquittal dated 01.07.2016 passed by the Court of the 56^th Addl. City Civil and Sessions Judge in S.C.No.1289/2013 for the offence punishable under Section 392 r/w Section 397 and 413 of IPC by allowing the appeal and convict and sentence the accused for the offences punishable under Sections 392 r/w 397 and 413 of IPC by allowing the appeal, in the interest of justice.

¶46

In Criminal Appeal No.1962/2016 :

¶47

BETWEEN:

¶48

State of Karnataka By Jnanabharathi Police Station, Rep. by State Public Prosecutor, High Court Building, Bengaluru-1. …Appellant

¶49

(By Sri. B.N.Jagadeesh, Addl. SPP)

¶50

¶51

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶52

AND:

¶53

Vikki Singh @ Vikki, S/o Mulasingh, Aged 36 years, R/at No.127, Dowki Post, Fatehbad Taluk, Agra District, Uttar Pradesh - 283 111.

¶54

Vishal Singh, S/o Pramod Singh, Aged about 26 years, R/o.Dowki Post, Fathehbad Taluk, Agra District, Uttar Pradesh-283 111. …Respondents

¶55

(By Sri. N.S.Sampangiramaiah, Advocate)

¶56

This Appeal is filed under Section 378(1) and (3) of Code of Criminal Procedure, praying to grant leave to appeal against the judgment and order of acquittal dated 01.07.2016 passed by the Court of the 56^th Addl. City Civil and Sessions Judge in S.C.No.1206/2013 acquitting the accused for the offence punishable under Section 392 r/w Section 397 of IPC and Section 413 of IPC and set aside the judgment and order of acquittal dated 01.07.2016 passed by the Court of the 56^th Addl. City Civil and Sessions Judge in S.C.No.1206/2013 acquitting the accused for the offence punishable under Section 392 r/w Section 397 of IPC and Section 413 of IPC and convict and sentence the Respondents -Accused for the offences punishable under Section 392 r/w Section 397 of IPC and Section 413 of IPC, in the interest of justice and equity.

¶57

These Criminal Appeals having been heard through Physical Hearing/Video Conference and reserved for Judgment on 22.08.2023, coming on for pronouncement this day, Dr. H.B.PRABHAKARA SASTRY, J., delivered the following :

¶58

¶59

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶60

COMMON JUDGMENT

¶61

In all these three appeals, the very same

¶62

complainant-Police have challenged the judgment of acquittal under Section 378 (1) and (3) of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as the Cr.P.C.'), passed in S.C.No.1205/2013, S.C.No.1289/2013 and S.C.No.1206/2013, by the learned LVI Addl.City Civil & Sessions Judge, Bengaluru (hereinafter for brevity referred to as the Sessions Judge's Court'), dated 01.07.2016, acquitting the present respondent Nos.1 and 2, who were accused Nos.1 and 2 in all the above three Sessions Cases, for the offences punishable under Section 397 and Section 413 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as `the IPC').

¶63

The summary of the case of the prosecution in S.C.No.1205/2013 is that, on the date 01.03.2013, at about 4.00 p.m., while PW-1 (CW-1) Smt.Subbalakshmi was going by walk in 7^th Cross, IV Block, Nagarabhavi II

¶64

¶65

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶66

Stage, Bengaluru, within the limits of complainant-Police Station, the present respondents (accused Nos.1 and 2) coming over there on a motorcycle, by threatening said Smt.Subbalakshmi to her life by showing her a knife, have robbed a golden Mangalya chain worn by her, weighing about 60 gms. and thus, have committed the offence punishable under Sections 397 of IPC.

¶67

The summary of the case of the prosecution in S.C.No.1289/2013 is that, on the date 22.05.2013, at about 3.15 p.m., while PW-1 (CW-1) Smt.Bhagyamma was going by walk in front of House No.222, V Cross of Annapoorneshwari Nagar, Bengaluru, within the limits of complainant-Police Station, the present respondents (accused Nos.1 and 2) approaching her on a motorcycle on the pretext of ascertaining the location of an extension, put her into life threat by showing a knife to her and robbed a golden Mangalya chain worn by her, weighing about 42 gms. and thus, have committed the offence punishable under Section 397 of IPC.

¶68

¶69

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶70

The summary of the case of the prosecution in S.C.No.1206/2013 is that, on the date 13.02.2013, at about 5.40 p.m., while PW-1 (CW-1) Smt.Sundaramba was going by walk towards Adarsha Hospital, situated at Papareddipalya, Nagarabhavi II Stage, Bengaluru, within

¶71

the limits of complainant-Police Station, the present respondents (accused Nos.1 and 2) approaching her on a motorcycle, pushed her and made her to fall on the ground and putting her life threat by showing a knife which they were possessing, robbed Smt.Sundaramba of a

¶72

golden Mangalya chain worn by her, weighing about 55 gms. And thus, have committed the offence punishable under Section 397 of IPC.

¶73

Subsequent to the commission of the robbery, the accused have pledged the stolen articles knowing fully well that they were the stolen articles, as such, they dealt with the stolen articles as habitual dealers and thereby, have committed the offences punishable under Section 413 of IPC.

¶74

¶75

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶76

After perusing the materials placed before it

¶77

and hearing both side, the Sessions Judge's Court framed charges against the accused for the offences punishable under Section 397 and Section 413 of IPC in all the three Sessions Cases. Since the accused pleaded not guilty, the trial was held, wherein, in order to prove the alleged guilt against the accused, the prosecution got examined thirteen (13) witnesses as PW-1 to PW-13, got produced and marked documents from Exs.P-1 to P-14 and got produced one Material Object at MO-1, and from the accused’s side, no witnesses were examined, however, one document was marked as Ex.D-1 in S.C.No.1205/2013.

¶78

In S.C.No.1289/2013, the prosecution has examined

¶79

eleven (11) witnesses as PW-1 to PW-11, got produced and marked documents from Exs.P-1 to P-14 and got produced one Material Object at MO-1 and from the accused’s side, no witnesses were examined, however, one document was marked as Ex.D-1.

¶80

¶81

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶82

In S.C.No.1206/2013, the prosecution has examined eleven (11) witnesses as PW-1 to PW-11, got produced and marked documents from Exs.P-1 to P-12(a) and got produced one Material Object at MO-1 and from the accused’s side, no witnesses were examined, however, one document was marked as Ex.D-1.

¶83

After hearing both side, the learned Sessions Judge’s Court, by its judgments all dated 01.07.2016, acquitted the accused of the offence punishable under Section 397 and Section 413 of IPC. Challenging the same, the appellant - State has preferred these three appeals.

¶84

The appellant –State in all these three appeals is represented by the learned Addl.State Public Prosecutor.

¶85

The Sessions Judge’s Court records were called

¶86

for and the same are placed before this Court.

¶87

In view of the fact that the learned counsel for the respondents (accused Nos.1 and 2) failed to appear before this Court on several dates of hearing, this Court by

¶88

10 -

¶89

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶90

its reasoned order dated 31.07.2023, appointed learned counsel - Sri N.S.Sampangiramaiah, as Amicus Curiae for the appellants/accused to represent them in these three appeals.

¶91

Heard learned Addl.State Public Prosecutor for the appellant-State and learned Amicus Curiae for the respondents/accused in all these three appeals, who are physically present in the Court. Perused the materials placed before this Court, including the memorandum of appeals, impugned judgments and the Sessions Judge’s Court records.

¶92

For the sake of convenience, the parties would be henceforth referred to as per their rankings before the learned Sessions Judge’s Court.

¶93

Learned Addl.State Public Prosecutor in all these three appeals in his arguments submitted that though the accused have taken a contention that they were tourists to visit Bengaluru and Ooty and they were falsely implicated by the police in the crime, but, they have not

¶94

11 -

¶95

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶96

produced any document in support of their contention. He also submitted that the Sessions Judge's Court was at error in observing that the accused ought to have been shown to the complainants in all the cases by the police in the Police Station. He further submitted that in all these appeals, the complainants/victims have identified the accused specifically and stated that it was the accused who have committed the alleged offences, however, the Sessions Judge's Court erred in not appreciating the evidence on the said point in its proper perspective. He further submitted that recovery of the robbed articles were made at the instance of the accused and those articles were identified by the complainants//victims. As such, there was sufficient evidence to hold the accused guilty of the alleged offence, however, the Sessions Judge's Court erred in pronouncing the judgment of acquittal.

¶97

Learned Amicus Curiae for the

¶98

respondents/accused in all these three cases in his argument submitted that the accused were shown by the

¶99

12 -

¶100

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶101

police to the complainant prior to Test Identification Parade, as such, Test Identification Parade has lost its sanctity. The original seizure panchanamas of the alleged recovery of the robbed articles have not been produced. The alleged property lost is different from what was given

¶102

by the police to the complainants as it varies in its description and weight. He also submitted that the alleged voluntary statement of the accused have not been produced by the Investigating Officer in all these cases. Further, the alleged owners of the Pawn Broker Shops, from where the alleged recovery was said to have been made, have totally turned hostile to the case of the prosecution. Under such circumstances, noticing the absence of the evidence to prove the alleged guilt against the accused, the Sessions Judge's Court has rightly pronounced the judgment of acquittal, which does not warrant any interference at the hands of this Court.

¶103

Both, the learned Addl.State Public Prosecutor for the appellant and the learned counsel for the respondents

¶104

13 -

¶105

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶106

in their arguments submitted that, except the evidence of the complainants and scene of offence panchas, the evidence of remaining witnesses in all these three Sessions Cases are identical and they are exactly the copy of the evidence of the same witness in the previous case.

¶107

After hearing the learned counsels from both side, the points that arise for our consideration in this appeal are:

¶108

(i) Whether the prosecution has proved beyond reasonable doubt that on the date 01.03.2023, at about 4.10 p.m., near the house of Smt.Subbalakshmi CW-1 (PW-1 in S.C.No. 1205/2013), on 7th Cross, IV Block, Nagarabhavi II Stage, Bengaluru, within the jurisdiction of complainant-Police Station, both the accused putting life threat to CW-1 Smt.Subbalakshmi by showing the knife to her, robbed golden Mangalya chain, weighing 60 gms. worn by her in her neck and thus, have committed the offence punishable under Section 392 read with Section 397 of IPC?

¶109

[ii] Whether the prosecution has proved beyond reasonable doubt that on the date 22.05.2023, at about 4.45 p.m., while

¶110

14 -

¶111

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶112

Smt.Bhagyamma CW-1 (PW-1 in S.C.No.1289/2013), was going by walk, in front of house bearing No.222, V Cross, Annapoorneshwari Nagar, Bengaluru, within the jurisdiction of complainant-Police Station, both the accused putting life threat to CW-1 Smt.Bhagyamma by showing the knife to her, robbed golden Mangalya chain, weighing 42 gms. worn by her in her neck and thus, have committed the offence punishable under Section 392 read with Section 397 of IPC?

¶113

[iii] Whether the prosecution has proved beyond reasonable doubt that on the date 13.02.2023, at about 5.40 p.m., in front of Adarsha Hospital, Papireddipalya, Nagarabhavi II Stage, Bengaluru, within the limits of complainant-Police Station, both the accused putting life threat to Smt.Sundaramba CW-1 (PW-1 in S.C.No.1206/2013), by showing the knife to her, robbed golden Mangalya chain, weighing 55 gms. worn by her in her neck and thus, have committed the offence punishable under Section 392 read with Section 397 of IPC?

¶114

[iv] Whether the prosecution has proved beyond reasonable doubt that, in all these three Sessions Cases i.e., in S.C.No.1205/2013, S.C.No.1289/2013 and S.C.No.1206/2013, both the accused were habitually dealing in stolen golden

¶115

15 -

¶116

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶117

ornaments with Gold Merchants having knowledge that the said golden properties were the stolen properties and thereby the accused being habitual dealers of stolen property, committed the offence punishable under Section 413 of IPC?

¶118

[v] Whether the judgments of acquittal under appeals warrants any interference at the hands of this Court?

¶119

Before proceeding further in analysing the evidence led in the matter, it is to be borne in mind that,

¶120

the present appeals are filed by the complainant-State against the judgments of acquittal of the accused from the alleged offences punishable under Section 392 read with Section 397 and Section 413 of IPC. Since as per criminal law, the accused is presumed to be innocent until his guilt is proved and further the accused, in the instant case, have already been benefitted by the impugned judgment of acquittal in their favour, this Court, as a Court of appeal upon the impugned judgment of acquittal, must be very careful and cautious in analysing and appreciating the evidence led in the matter.

¶121

16 -

¶122

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶123

(a) Our Hon’ble Apex Court, in its judgment in the

¶124

case of Chandrappa and others -vs- State of Karnataka, reported in (2007) 4 Supreme Court Cases 415 , while laying down the general principles regarding powers of the Appellate Court while dealing in an appeal against an order of acquittal, was pleased to observe at paragraph 42(4) and paragraph 42(5) as below:

¶125

“ 42(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

¶126

42(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

¶127

17 -

¶128

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶129

(b) In the case of Sudershan Kumar -vs- State of Himachal Pradesh reported in (2014) 15 Supreme Court Cases 666, while referring to Chandrappa’s case (supra), the Hon’ble Apex Court at Paragraph 31 of its Judgment was pleased to hold that, it is the cardinal principle in criminal jurisprudence that presumption of innocence of the accused is reinforced by an order of acquittal. The Appellate Court, in such a case, would interfere only for very substantial and compelling reasons.

¶130

(c) In the case of Jafarudheen and others -vs- State of Kerala, reported in (2022) 8 Supreme Court Cases 440, at Paragraph 25 of its judgment, the Hon’ble Apex Court was pleased to observe as below:

¶131

“25. While dealing with an appeal against acquittal by invoking Section 378 Cr.P.C, the appellate Court has to consider whether the trial court’s view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate Court has to be relatively slow in reversing the order of the trial court rendering acquittal.

¶132

18 - CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶133

Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters.”

¶134

The above principle laid down by it in its previous case was reaffirmed by the Hon’ble Apex Court, in the case of Ravi Sharma -vs- State (Government Of NCT Of Delhi) and another reported in (2022) 8 Supreme Court Cases 536.

¶135

It is keeping in mind the above principles laid down by the Hon’ble Apex Court, we proceed to analyse the evidence placed in this matter.

¶136

PW-1 (CW-1) Smt.Subbalakshmi in S.C.No. 1205/2013 in her examination-in-chief has stated that, on the date 01.03.2013, after completing her work as a Teacher in a school, while she was returning to her home by walk at about 4.00 p.m. in 7^th Cross, Nagarabhavi, near her home, two riders came near to her on a motorcycle. Coming near to her, the pillion rider pushed

¶137

19 - CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶138

her down, to which, she fell on the earth. She was frightened. She slowly got up and noticed that the golden chain weighing about 60 gms. worn by her in the neck was found missing. The riders of the motorcycle had robbed a golden chain from her. She went home and informed to her son Keshav Kiran, who was at home. He telephoned to the police. The police came to the spot and recorded her statement. Stating so, the witness has identified her statement at Ex.P-1.

¶139

The witness has further stated that, thereafter in the month of July, the Police telephoned to her and showing two persons as the thieves, asked her to come to Parappana Agrahara Jail. In the said Jail, she identified both the accused in a Test Identification Parade. In that regard also, she has put her signature to a document. The witness has further stated that, once again in the month of November, the Police telephoned to her stating that her golden chain has been recovered from them. Accordingly, she took the interim custody of the said gold ornament by

¶140

20 -

¶141

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶142

the order of the Court. Stating so, the witness has identified the said chain worn by her, which was marked at MO-1. However, she stated that though the accused in the Court were shown to her by the Police in the Police Station, still, she cannot identify them as the one who had robbed the golden chain.

¶143

Since the witness did not identify the accused in the Court, at the request of the prosecution, she was treated as hostile and permitted to be cross-examined.

¶144

Even in her cross-examination from the prosecution side, she adhered to her original version of her inability to identify the accused.

¶145

In a single sentence cross-examination from the accused side, it was only denied that she had been to Parappana Agrahara Jail with the police.

¶146

Thus, the entire evidence of this witness about the entire incident of robbery and two motorcycle riders robbing her of her golden Manglaya chain, has remained

¶147

21 -

¶148

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶149

undenied from the accused side. Further, it is also not denied that the golden chain at MO-1 in S.C.No.1205/2013 is the chain that was robbed from her possession.

¶150

PW-1 (CW-1) Smt.Bhagyamma in

¶151

S.C.No.1289/2013 in her evidence has stated that on the date 22.05.2013, at about 3.15 p.m. in order to meet her friend by name Lakshmi, while she was going on by walk in Annapoorneshwari Nagar, Bengaluru, two persons came on a motorcycle from the opposite side and enquired her about the location of a locality called Parvathahalli. She told that it is not Parvathahalli, but, it is Mallatahalli and shown them the route. However, after going a little forward in that direction, they once again came back to her and asked her to tell them the route to Parvathahalli.

¶152

She told them that it was not Parvathahalli, but, Mallathahalli and explained the route again. At that time, the pillion rider on the motorcycle shown her the knife and attempted to snatch the chain worn by her. In the said process, he succeeded and took away the golden chain

¶153

22 -

¶154

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶155

worn by her around her neck. The chain was weighing 42 gms. She fell down and was struggling, at that time, the people gathered. The motorcycle riders who had robbed the chain had left the place by then. She went to the complainant-Police Station and lodged a complaint, which she has identified as Ex.P-1. The witness has also stated that the police verified the spot and drew a panchanama, which she has identified at Ex.P-2. She further stated that, after few days, in

¶156

Rajarajeshwarinagara Police Station, the ornaments were given back to her. The police had summoned her to identify the accused in the jail. She identified the accused. Stating so, the witness has identified both the accused in the Court as the robbers who robbed her golden chain. She identified the said golden chain claiming that she has brought the same and got it marked as MO-1.

¶157

In her cross-examination, she stated that the chain that was robbed in the incident was weighing higher than the chain that was given to her and marked at MO-1.

¶158

23 -

¶159

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶160

She also stated that the chain given to her is different in its pattern with the one she had lost in the incident. She identified a photograph at Ex.P-3 and stated that the police had given her the chain at MO-1 stating to her that till the actual chain lost by her is traced and recovered by them, she can retain the other chain given by them. She categorically stated that the police did not show her the accused in the Police Station and that she has identified the accused in the Jail.

¶161

Thus, in the cross-examination of this witness also,

¶162

the occurrence of the incident of robbery of her gold chain on 22.05.2023 at a knife point by two motorcycle riders has not been denied or disputed.

¶163

PW-1 (CW-1) Smt.Sundaramba in

¶164

S.C.No.1206/2013 has stated in her evidence that, on the date of the incident, she joined by her husband Sri Ramakrishna Shetty (PW-2) in order to meet her brother-

¶165

in-law by name Sri Jayasheel Shetty, had gone to a hospital at Nagarabhavi in an autorickshaw. After getting

¶166

24 -

¶167

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶168

down from the autorickshaw, while they were about to enter the hospital, at that time, two persons approached them on a motorcycle, among whom, the pillion rider snatched the golden chain worn around her neck and made her to fall on the earth. The people gathered there. She gave a complaint before the police. Stating so, the witness has identified the second accused Vishal Singh in the Court and identified her complaint at Ex.P-1. She also stated that, after showing the spot of offence to the police, they drew a scene of offence panchanama, which she has identified at Ex.P-2.

¶169

She further stated that, within a month after she lodging the complaint, the police had summoned her to the Police Station, where she identified the accused. She stated that the accused present in the Court are the very same accused whom she identified in the Police Station. She further stated that, thereafter the police had taken her to Parappana Agrahara Jail, where, in the Jail also, she identified both the accused. Stating that the police had

¶170

25 -

¶171

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶172

returned her chain, the witness has identified the said chain worn by her as MO-1.

¶173

Since this witness did not speak anything about she being threatened by the accused with the knife, she was permitted to be treated as hostile by the prosecution and the prosecution was permitted to cross-examine her.

¶174

In her cross-examination, she admitted the

¶175

suggestions made to her as true, including a suggestion that, on the date 13.02.2013, while she was walking near Adarsha Nursing Home at Papiraddipalya, two unidentified accused coming on a motorcycle from the opposite direction, threatened her showing a knife to her and enquired about what she possess, by which, being frightened, she gave them one long Mangalya chain, weighing about 55 gms. which she had worn around her neck along with golden pendent it had. She admitted that, accordingly she gave her complaint to the police. She also admitted a suggestion as true that on 14.04.2013, the Police had once again summoned her to the Police Station,

¶176

26 -

¶177

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶178

at which time, she was wearing a golden chain not with the one pendent and black pearls. She admitted a suggestion as true that being scared, she has stated so in the complaint.

¶179

In her cross-examination from the accused side, she has further stated that in the incident, she lost conscious. She has also stated that, within the blink of eyelids, her chain had disappeared. She admitted a suggestion as true that, on the date of the incident, she was wearing golden Karimani chain with Mangalya. In her further statement, she has stated that, on the date of the incident, she was not wearing golden Karimani Manglya chain and the same was kept in her house. She also admitted as true that a Manglya chain would not be removed from the neck. The denial suggestions made to her were not admitted as true by the witness.

¶180

Even in this case also, the evidence given by PW-1 Smt.Sundaramba about the incident of two motorcycle riders robbing her of a golden neck chain has not been

¶181

27 -

¶182

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶183

specifically denied or disputed from the accused side. Thus, in all the three cases, the accused have not denied the occurrence of the incident of robbery of the gold chains by two motorcycle riders, threatening the respective complainants with the knife. Thus, the incident of robbery of golden chain from the above said three complainants and of the fact that those golden chains which the respective complainants have identified at MO-1, in each of these three cases, stands established.

¶184

Regarding the place of the alleged offence, there is no much dispute from the accused side. According to the complainant (PW-1/CW-1), Smt.Subbalakshmi in S.C.No.1205/2013, the place of the offence was on 7^th Cross, Nagarabhavi II Stage, Bengaluru.

¶185

PW-2 (CW-2) Keshav Kiran and PW-3 (CW-3) Praveen in S.C.No.1205/2013, have stated that the scene of offence panchanama was drawn in their presence in the matter, which the witnesses have identified at Ex.P-2. Except making a suggestion to the witnesses that they

¶186

28 -

¶187

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶188

have put their signature to the said panchanama in the police station, no more questions were put to the witnesses. The above suggestion made to them was not admitted as true by them.

¶189

On the other hand, PW-10 (CW-22) Suryaprasad S., the then Police Sub-Inspector of the complainant-Police Station, has in his evidence in S.C.No.1205/2013 stated that the scene of offence panchanama was drawn by him as per Ex.P-2 in the presence of panchas, including PW-2 Keshav Kiran and PW-3 Praveen. Thus, the place of occurrence of the offence stands established in S.C.No.1205/2013.

¶190

In S.C.No.1289/2013, according to the complainant Smt.Bhagyamma (PW-1/CW-1), the place of offence was Annapoorneshwari Nagar, Bengaluru. In her cross-examination, apart from non-denial of occurrence of incident of robbery, even the place of occurrence of the offence also has not been denied. Furthermore, PW-2 (CW-2) Venkatarmaiah in S.C.No.1289/2013, has also

¶191

29 -

¶192

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶193

stated that the scene of offence panchanama as per Ex.P-2 was drawn in his presence in front of the house bearing No.222, on 5^th Cross, Annapoorneshwari Nagar, Bengaluru. Even in his cross-examination also, except suggesting to the witness that he has put his signature to the said panchanama in the Police Station, no further questions were put to the witness. The said suggestion also was not admitted as true by the witness.

¶194

PW-6 (CW-22) Imtiaz Patel, then Sub-Inspector of the complainant-Police Station in S.C.No.1289/2013, has in his evidence stated that, apart from receiving the complaint from the complainant as per Ex.P-1 on 22.05.2013 and submitting FIR to the Court as per Ex.P-4, he has visited the scene of offence on the very same day and drew a scene of offence panchanama as per Ex.P-2. The said evidence of the Investigating Officer stands corroborated by the evidence of PW-1 and PW-2 in the matter. As such, the place of occurrence of the offence stands proved even in S.C.No.1289/2013 also.

¶195

30 -

¶196

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶197

In S.C.No.1206/2013, according to PW-1 (CW-1) Smt.Sundaramba, the place of offence was in front of a hospital at Nagarabhavi. In her cross-examination, the said place of offence has not been denied or disputed. However, PW-2 K.S.Ramakrishna Shetty in the said case is the husband of PW-1 Smt.Sundaramba. In his evidence, he was not quite sure as to whether he has put his signature on the scene of offence panchanama at Ex.P-2. In his examination-in-chief, he stated that, he put the signature in the Police Station. However, after treating him hostile, when the prosecution cross-examined him, he admitted a suggestion as true that mahazar was drawn near Adarsha Hospital at Nagarabhavi, Bengaluru and it is in that place only, he has put his signature. However, in his cross-examination from the accused side, he stated that he has signed to the said mahazar, however, due to his age, he is unable to remember in which place he has signed to the said mahazar. As such, his evidence may not be of much help to the prosecution.

¶198

31 -

¶199

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶200

In spite of these evidence, the evidence of PW-10 (PW-22) Suryaprasad S., the then Police Sub-Inspector of complainant-Police Station shows that, he after receiving and registering the complaint from the complainant Smt.Sundarambha as per Ex.P-1 on the date 13.02.2013 and submitting FIR to the Court as per Ex.P-12, visited the place of offence on the same evening and drew a scene of offence panchanama as per Ex.P-2. The said evidence of PW-10 corroborates the evidence of PW-1

¶201

Smt.Sundaramba that the police had visited the place of offence. Thus, the place of offence stands proved as in front of Adarsh Hospital, Nagarabhavi, Bengaluru, in S.C.No.1206/2013.

¶202

Thus, in all the above three Sessions Cases, the place of offence as shown in the charge sheet stands proved.

¶203

The next question that arises for consideration is whether it was the present accused and accused alone who have committed the act of robbery. In that regard,

¶204

32 -

¶205

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶206

admittedly there are no eye witnesses to the alleged incident, except the victims, who are PW-1 in all these three cases. Admittedly, none of the complainants (PW-1's) in all these three cases have given the names of the accused or their identity in the complaint since the accused were strangers to them. It is only after the arrest of the accused in the alleged recovery said to have been made by the police, the process of identification of the accused has taken place. Therefore, the alleged involvement of the accused in the commission of the crime is attempted to be established by the prosecution only through the alleged recovery said to have been made at the instance of the accused and their identification in the Test Identification Parade.

¶207

In order to prove the arrest of the accused, alleged recovery of the alleged robbed articles from the accused and about proving the Test Identification Parade, the prosecution has examined same set of witnesses in all these three Sessions Cases, who are, Sri Upendra Gowda,

¶208

33 -

¶209

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶210

Sri Mahadevaiah, Sri Vinayaka, Sri Balaraju, Sri Ravi K., and Sri Umeshachandra.

¶211

In addition to them, to prove the alleged recovery, one Sri Manish Agarwal and one Sri Jitendra Agarwal were examined in S.C.No.1205/2013 and S.C.No.1289/2013. The evidence of each of these witnesses is identical in all the three Sessions Cases.

¶212

In addition to these witnesses, towards proving the alleged recovery at the instance of the accused, one more witness by name Sri Imtiyaz Patel was examined as PW-6 in S.C.No.1289/2013.

¶213

Sri Upendra Gowda, then Head Constable of complainant-Police Station was examined as PW-4 in S.C.No.1205/2013 and S.C.No.1206/2013 and as PW-3 in S.C.No.1289/2013.

¶214

One Sri Mahadevaiah, Asst.Sub-Inspector of Rajarajeshwarinagar Police Station, Bengaluru was

¶215

examined as PW-8 in all these Sessions Cases.

¶216

34 -

¶217

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶218

Sri Upendra Gowda in his examination-in-chief has stated that on 04.06.2013, the Police Inspector of Rajarajeshwarinagar Police Station by name Sri Ravi (PW-9 in all the three Sessions Cases), instructed him and other staff, including Sri Mahadevai, the

¶219

Asst.Sub-Inspector to search for the accused in their Station Crime No.243/2012 and the articles. On the same day, at about 5.00 O'Clock, the police informants informed them that the accused who were required were available in Room No.106 of EST Lodge on Tank-Bund Road. Accordingly, himself, joined by the other members of the team, who were instructed by PW-9 to search for

¶220

the accused, went to Room No.106 of the said Lodge. They found two male persons in the said Lodge and collected their details, who identified themselves as Vicky Singh and Vishal Singh (the accused in all these three appeals). The team conducted a physical search of accused Vicky Singh and noticed the presence of two ladies golden neck-chain in the pocket of the pant of the said accused. Then the team, including this witness,

¶221

35 -

¶222

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶223

produced the accused, as well the articles found in the possession of the accused, in front of said Sri Ravi, the Police Inspector of Rajarajeshwarinagar Police Station (PW-9). Sri Mahadevaiah, Asst.Sub-Inspector, submitted his report in that regard. Stating so, the witness has identified both the accused in the Court.

¶224

In his cross-examination, the witness stated that Inspector Sri Ravi had neither given them the name and address of the accused nor even their photographs or identification marks. He also stated that no order in writing was given in assigning the work of search for the accused. The denial suggestions made to them were not admitted as true by this witness.

¶225

Sri M.V.Mahadevaiah was examined as PW-8 in

¶226

all these three Sessions Cases. In his evidence, he has reiterated what PW-4/CW-3 Sri Upendra Gowda has stated about they receiving the information about the availability of accused in Room No.106 of a Lodge (this witness has stated the name of the Lodge as ESP' not EST''),

¶227

36 -

¶228

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶229

and these people going to the said room in the Lodge and noticing the presence of present two accused and also about subjecting the accused-Vicky Singh for physical search and finding the accused possessing two ladies golden chain in his pant pocket and thereafter, producing both the accused with the articles before the Police Inspector Sri K.Ravi. PW-8 has further stated that, in that regard, he has submitted his report to the Investigating Officer, which he has identified at Ex.P-8. He has also identified both the accused in the Court.

¶230

The common thing to be noticed in the evidence

¶231

of both these witnesses is that, in their evidence as narrated above, neither of them anywhere have stated that they came to know that these accused were found connected to the offence in these three Sessions Cases for which the accused are charged. Further, even though both these witnesses have stated that accused No.1 - Vicky Singh was found in possession of two ladies golden neck-chain and stated that they could identify those two

¶232

37 -

¶233

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶234

chains, however, the prosecution has not made any

¶235

attempt to show those two golden chains and got them marked as Material Objects. Had really these accused were found with possession of two golden chains, nothing had prevented the prosecution from producing those two

¶236

golden chains and getting the same marked through any of the witnesses, which it did not do.

¶237

PW-9 Sri K.Ravi, then Police Inspector of

¶238

Rajarajeshwarinagar Police Station in his evidence in all these three Sessions Cases has stated that he formed a

¶239

team of his staff members, including Sri Upendra Gowda and Mahadevaiah, for the search of accused involved in the commission of crime in these cases and the said team

¶240

on the same day evening, along with the report of Mahadevaiah, Asst.Sub-Inspector, produced both the accused along with articles. He arrested both the accused

¶241

and recorded their voluntary statement and also seized two golden chains found in the possession of accused No.1-Vicky Singh by drawing a mahazar.

¶242

38 -

¶243

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶244

PW-9 further stated that, on the date 05.06.2013, he produced both the accused before the Court and took their police custody till 18.06.2013. On 06.06.2013, he recorded further voluntary statement of the accused and proceeded to the places Agra and Koshikala in the State of Uttar Pradesh on the same day to conduct further investigation taking along with him Sri Balaraju, the Police Inspector of Gnanabharathi Police Station, Sri Imtiyaz Patel, the Police Sub-Inspector, Sri Mahadevaiah, the Asst.Sub Inspector, Sri Yogendra Kumar, Sri Aravind, Sri Narasimhamurthy, Sri Nagaraju and Sri Vinayaka, the Police Constables.

¶245

The witness has further stated that, on the date 09.06.2013, they reached a village called Koshikala in Uttara Pradesh. There, in the presence of panchas by name Disember Dayal bin Babulal and Manish Agarwal and from one Jitendra Agarwal, who was the owner of a jewellery shop and was shown by the accused, he seized ten golden chains and one broken chain under a mahazar.

¶246

39 -

¶247

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶248

Stating that the original of the said mahazar is produced in S.C.No.243/2012 and S.C.No.54/2013, the witness has produced a copy of the said mahazar attested by him as `true copy' at Ex.P-9, however, subject to the objection. He also stated that, on the same day, he recorded the statement of Disember Dayal, Jitendra Agarwal and Manish Agarwal.

¶249

PW-9 has further stated that, on the date 11.06.2013, the accused have taken them to a shop of one Sri Pawan Jain at Kashmir Bazar, Agra, and stated that six golden chains and six bangles were given there, the same were seized in the presence of panchas by name Ashok Agarwal bin Ramesh Chand and Rajan Agarwal Thereafter, the statements of Pawan Jain, Rajan Agarwal and Ashok were recorded by him. The witness has also stated that on 14.06.2013, they returned to Bengaluru.

¶250

On 15.06.2013, he subjected the seized articles at Koshikala and Agra to the Property Form and submitted to the Court. On the same day, the accused took them to

¶251

40 -

¶252

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶253

S.P. Lodge at Majestic to Room No.106, stating that they

¶254

have kept some more ornaments there. As such, in the presence of panchas by name Manjunath bin Krishnegowda, Madhu bin Krishnegowda, he seized three golden chains produced by the accused from out of the ceiling fan by drawing a mahazar. Subject to the objection, he got marked the said mahazar at Ex.P-10.

¶255

The witness has also stated that since the accused shown a motorbike used in the commission of the crime near the Lodge, he seized the same by drawing a seizure panchanama. The said motorbike was bearing its registration No.MH-43-AA-6529. The witness has identified the said motorbike in the photographs at Ex.P-11 and Ex.P-12. He has stated that, thereafter, he recorded the statements of Manjunath bin Krishnegowda, Madhu bin Krishnegowda and the statements of his police staff, who accompanied him for the recovery and seizure.

¶256

He has also stated that, on 18.06.2013, he remanded the accused to judicial custody and on 25.07.2013, based on

¶257

41 -

¶258

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶259

the jurisdiction and obtaining the permission from the Court, he transferred the matter to Gnanabharathi Police Station. He stated that, he could identify the accused present before the Court.

¶260

PW-9 was subjected to a detailed cross-examination

¶261

from the accused side, wherein, for the several of the basic details regarding the alleged journey to the State of Uttar Pradesh and the alleged recovery, including the details of the vehicle in which they were said to have gone to the State of Uttar Pradesh, no details could be given by this witness, except stating that he does not know.

¶262

Among the team said to have been to the State of Uttar Pradesh for recovery, the prosecution examined two more witnesses by name Vinayaka as PW-5 in S.C.No.1205/2013, S.C.No.1206/2013 and as PW-4 in S.C.No.1289/2013 and Sri Balaraju as PW-6 in S.C.No.1205/2013, S.C.No.1206/2013 and as PW-5 in S.C.No.1289/2013. Both these witnesses in their evidence

¶263

have stated that they were in the police team which went

¶264

42 -

¶265

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶266

to the state of Uttara Pradesh along with accused for the recovery to be made at the instance of the accused. They went in a private vehicle to the State of Uttar Pradesh. The accused first took them to a place called Kaushikana (PW-6 calls it as Koushikana) a small Town near Mathura. There they took them to a Jewellary shop of one Sri Jitendra Agarwal. The said Jitendra Agarwal stating that said accused had sold him 10 golden chains and two golden bangles, produced those articles. Those articles were seized in the presence of one Sri Bisinder Dayal and Manish Agarwal. According to PW-5 - Vinayaka, those articles in total were weighing 459 grams.

¶267

Both the witnesses have further stated that, thereafter, the accused took them to the place Agra. PW-5 alone has stated that accused took them to a Jewellery shop of one Sri Pawan Jain. There, six golden chains, two golden bangles, in total weighing about 352 gms. were seized from the said shop. Though they tried to trace third accused in the surrounding places,

¶268

43 -

¶269

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶270

they could not find him, as such, they returned to Bengaluru on 14.06.2013.

¶271

PW-5 Vinayaka though has stated that he could identify those articles seized in his presence, however, the prosecution did not show those articles to him and got them identified. PW-6-B.Balaraju has identified one of the chain shown to have been seized from the shop of Jitendra Agarwal through its photograph at Ex.P-4, however, subject to objection.

¶272

PW-5 Vinayaka in his cross-examination, like the Investigating Officer Sri Ravi K. (PW-9), has pleaded his ignorance about several of the details regarding the alleged recovery of the golden articles in the State of Uttar Pradesh. He could not give the name of the Lodge where they were said to have stayed in Uttar Pradesh. He could not say on which day, they reached Agra and on which day, they left State of Uttara Pradesh.

¶273

Similarly, PW-6 B.Balaraju also has not stated as to in which crime number, he had accompanied the

¶274

44 -

¶275

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶276

Investigating Officer in the present case as an Assistant. He too pleaded his ignorance about from which travels, the two vehicles were taken on hire from them. He could not even give the registration number of the vehicles in which they have gone to the State of Uttara Pradesh.

¶277

Thus, except stating that they were the members of the Police team which went to the State of Uttara Pradesh for the alleged recovery, both these witnesses, like PW-9 Ravi K., could not give further details about their journey to Uttara Pradesh, there the vehicle number etc., Therefore, the evidence of PW-5 Vinayaka, PW-6 B.Balaraju and PW-9 Ravi K., are not by themselves sufficient to hold that the recovery of golden articles were made in the State of Uttara Pradesh at the instance of the accused (respondents).

¶278

In S.C.No.1289/2013, one more witness by name Imtiaz Patel was examined by the prosecution to support its case regarding alleged recovery at the instance of the accused. This witness who was the Police Sub-Inspector

¶279

45 -

¶280

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶281

of the complainant-Police Station, apart from stating that on 22.05.2013, PW-1 (CW-1) Smt.Bhagyamma appeared before him and lodged a complaint as per Ex.P-1 and after registering the same, he prepared FIR as per Ex.P-4 and visited the scene of offence and drew a scene of offence Panchanama as per Ex.P-2, has also stated that, on 06.06.2013, the Police Inspector of Rajarajeshwarinagara Police Station by name Ravi (PW-9) took him along with other police staff and accused in two private vehicles to a village called Koshikala near Mathura in the State of Uttar Pradesh. The accused took them to the shop of one Sri Jitendra Agarwal at Koshikala village on 09.06.2013. The Police Inspector- Ravi K., in the presence of panchas, seized ten golden chains. On 11.06.2013, accused took them to the shop of one Sri Pawan Jain at Agra, there, the Police Inspector- Ravi K., seized six gold chains and two golden bangles by drawing a panchanama. On 14.06.2013, all of them returned to Bengaluru.

¶282

46 -

¶283

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶284

The witness has further stated that, it is thereafter, he summoned the complainant Smt.Bhagyamma and got the robbed articles and accused identified by her. He has identified the accused in the Court. He has stated that he has filed the charge sheet in the Court in S.C.No.1289/2013. Though this witness has stated that

¶285

he too can identify the robbed articles, however, the prosecution did not get the articles identified in the Court through him.

¶286

In his cross-examination, compared to PW-5 Vinayaka, PW-6 B.Balaraju and PW-9 Ravi K., he could give some details about the alleged journey to the State of Uttar Pradesh and the dates of visiting Koshikala village and Agra, however, he too could not give the details of the vehicle in which they were said to have gone to the State of Uttara Pradesh. He also could not give the details of the hirer of the vehicle, so also, the names of the hotel where they were said to have stayed in the State of Uttar Pradesh. He further stated that, to accompany the

¶287

47 -

¶288

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶289

Investigating Officer Sri Ravi K., he did not have order in writing by his superiors.

¶290

Thus, the evidence of PW-6 Imtiyaz Patel is not sufficient and with full details to believe the alleged recovery made at the instance of the accused. It is to be noticed that none of these witnesses have specifically stated that either in the shop of Jitendra Agarwal or in the shop of Pawan Jain, the alleged pledged golden articles were produced at the specific instance and asking of the accused. They have only stated that accused have shown the shop. However by that itself, it cannot be inferred that, it was at the instance of the accused, either Jitendra Agarwal or Pawan Jain produced the alleged seized golden ornaments before this team.

¶291

The last two witnesses whom the prosecution has examined to prove the alleged recovery of the golden articles at the instance of the accused are one Sri Manish Agarwal (PW-12 in S.C.No.1205/2013 and PW-10 in S.C.No.1289/2013) and one Sri Jitendra Agarwal (PW-13

¶292

48 -

¶293

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶294

in S.C.No.1205/2013 and PW-11 in S.C.No.1289/2013). According to the prosecution, the witness Manish Agarwal (PW-12 in S.C.No.1205/2013 and PW-10 in

¶295

S.C.No.1289/2013), was a Jeweller at Koshikala in Uttar Pradesh. His brother Sri Jitendra Agarwal was running a Jewellery shop and accused had sold the robbed golden articles to said Jitendra Agarwal. It is also the case of the prosecution that the accused led the police and panchas to the shop of Jitendra Agarwal and in the presence of this witness (Manish Agarwal), ten golden chains and one broken golden chain were recovered from the shop of Jitendra Agarwal under a panchanama. However, this witness though stated that he has a Jewellery shop at Koshikala, but, categorically stated that he has not seen the accused at any point of time. Still, he stated that his younger brother Jitendra Agarwal was looking after the said Jewellery shop and in the year 2013, the Bengaluru Police had visited the said shop along with a boy. The police took their signatures and told them that they would be summoned to Bengaluru, however, the police did not

¶296

49 -

¶297

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶298

call them to Bengaluru at any point of time. The witness also stated that the boy whom the police had brought was not one among the accused. He also stated that, he did not know what was written in the paper to which the police took his signature.

¶299

Since he did not support the case of the prosecution, he was permitted to be treated as hostile by the prosecution and to cross-examine him. However, the prosecution could not get any support from the witness. He categorically denied a suggestion that golden ornaments were seized by police from his shop. He also denied that he has given any statement to the police, much less, as per Ex.P-14. Thus, no support could be gathered from the evidence of PW-12/PW-10 Manish Agarwal.

¶300

PW-13 - Jitendra Agarwal in S.C.No.1205/2013 and PW-11 in S.C.No.1289/2013, in his evidence has followed the statement made by his brother i.e., Manish Agarwal. He too stated that he does not know the

¶301

50 -

¶302

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶303

accused. Though he stated that he was looking after the Jewellery shop belonging to his family in Koshikala, however, he stated that he does not know why police had been to his shop. He further stated that he did not give any articles to the police and also not given any statement to the police. Even after treating him hostile, the prosecution could not get any support from this witness. Thus, both the witnesses with respect to recovery in the form of seizure of the stolen articles have not supported the case of the prosecution.

¶304

The analysis of evidence of PW-9 K.Ravi, the Investigating Officer, would go to show that no where the said witness in his evidence has clearly and specifically stated that they had taken both the accused along with them while going to Koshikala and Agra in the State of Uttar Pradesh.

¶305

Secondly, this witness though has stated that he can identify the accused in the court, however, the prosecution did not get the accused properly identified by him.

¶306

51 -

¶307

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶308

There is lot of difference between a witness saying that he can identify the accused'_ and _identified the accused' . In the instance case, PW-9 has only stated that he can identify the accused, but, no attempt was made by the prosecution to get the accused identified by him.

¶309

Thirdly, as already observed, being the Investigating Officer, who claims to have gone to the State of Uttar Pradesh for the alleged recovery of robbed articles from the State of Karnataka by road in two motorcars, however, could not able to give any details about the vehicles he claims to have taken to Uttar Pradesh, the registration number of the vehicles, the details of the owner etc., Further, he could not able to give the details of the hotel where they claim to have stayed in their journey at a place called Mehaboobnagar and Mathura. He could not even give the details of the room rent in the hotels where they claim to have stayed. This creates a doubt about this witness, joined by panchas, visiting the two Jewellery

¶310

52 -

¶311

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶312

shops in the State of Uttar Pradesh and recovering the golden articles from them.

¶313

Fourthly, according to PW-9, from the shop of Jitendra Agarwal at Koshikala, ten golden chains and one broken golden chain were seized by drawing a seizure panchanama, whereas, according to PW-6, pancha for the alleged recovery, the details of the golden articles recovered from the said shop were ten chains and two golden bangles. Thus, there is greater discrepancy with respect to articles said to have been seized from the shop of Jitendra Agarwal at Koshikala.

¶314

Fifthly, with respect to the alleged recovery from the shop of Pawan Jain at Agra, PW-9 has not stated as to who were the panchas present at the time of the alleged recovery of six golden chains and two bangles from his shop. Interestingly, the alleged seizure panchanama was also not identified and marked by this witness.

¶315

Sixthly, as rightly argued by the learned Amicus Curiae for respondent Nos.1 and 2, the alleged voluntary

¶316

53 -

¶317

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶318

statement of the accused has neither been produced nor marked by the prosecution in this case. Even though PW-9 - the Investigating Officer has stated that on 06.06.2013, he recorded further voluntary statement of the accused, however, there is no reference about the alleged previous voluntary statement of the accused nor the alleged voluntary statements of the accused were produced in the case. Further, even PW-9 also has not stated as to what was that voluntary statement that was made before him by the accused.

¶319

Seventhly, as observed above, both the Jewelers by name Manish Agarwal and Jitendra Agarwal have uniformly stated that though the police had visited their shop, but, no recovery was made in their shop by the police. They have clearly stated that no article, much less, the golden ornaments, were given by them to the police nor any accused were identified by them.

¶320

Eighthly, as submitted by learned Amicus Curiae for the respondents, even though PW-9 - the Investigating

¶321

54 -

¶322

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶323

Officer has stated that his staff Sri Mahadevaiah (PW-8) and Upendra Gowda (PW-4/PW-3) produced both the accused before him along with two golden chains said to be in the possession of the accused, however, none of the witnesses, including PW-9, have stated as to what happened to those two golden chains said to have been found in the possession of the accused. They have not even stated whether those two golden chains pertain to the present case.

¶324

Ninthly, even according to PW-1 (CW-1)

¶325

Smt.Bhagyamma in S.C.No.1289/2013, the golden chain given to her by the police after the alleged recovery, which was marked as MO-1 in the said Sessions Case, was weighing about 25 gms. According to PW-1 Smt.Bhagyamma, the golden chain robbed from her was weighing 42 gms., nearly double the weight of MO-1 given to her and further the said lost golden chain was totally different in its design and description. She has narrated the difference between those two chains by herself.

¶326

55 -

¶327

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶328

She further stated that the police had given the chain at MO-1 to her as a stop-gap arrangement stating that till her actual chain that was robbed is recovered, she may have to keep MO-1 with her.

¶329

Thus, when according to the loser of the gold chain, the alleged recovered golden chain at MO-1 in S.C.No.1289/2013 was not the jewellery that was lost, the alleged recovery further loses its meaning. The above discrepancies in the alleged recovery makes the prosecution case very unsafe to believe.

¶330

Lastly, the prosecution has relied upon the identification of the accused in a Test Identification

¶331

Parade. Sri N.R.Umeshchandra, examined as PW-7 in all the three Sessions cases, has uniformly stated that, while working as Tahsildar of Bengaluru North Taluk, upon the request of the Police Inspector of complainant-Police Station, he conducted a Test Identification Parade on 24.07.2013 at 3.00 p.m. in Parappana Agrahara Jail. The five witnesses - Smt.Subbalakshmi (PW-1 in

¶332

56 - CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶333

S.C.No.1205/2013), Smt.Bhagyamma (PW-1 in

¶334

S.C.No.1289/2013), and Smt.Sundaramba (PW-1 in S.C.No.1206/2013), along with one Smt.Anita and Smt.Shubha, have identified two accused. The witness has given the details of conducting the Test Identification Parade. However, the witness Smt.C.V.Subbalakshmi (PW-1 in S.C.No.1205/2013) in her evidence has failed to identify the accused in the Court. On the other hand, she has stated that the accused in the Court were shown by the police to her in their Police Station and thereafter, the Test Identification Parade was conducted.

¶335

Smt.Bhagyamma (PW-1 in S.C.No.1289/2013) though has stated that she has identified the accused in the jail and identified them in the Court, but, she has not given any reason as to on what basis, she has identified the accused. Admittedly, in her complaint, she has not given the details of the accused, except their approximate age as 18 to 20 years, wearing T-Shirt. Therefore, the

¶336

57 -

¶337

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶338

identification of the accused by PW-1 Smt.Bhagyamma is not safe to believe.

¶339

Smt.Sundaramba (PW-1 in S.C.No.1206/2013) in her evidence has stated that within a month after the incident, the police had summoned her to the Police Station stating that the accused were caught by them and the accused were shown to her by the police, whom she identified in the Police Station. Stating that she has identified the accused in the Court, she stated that even in Jail also, she has identified the accused. Thus, this witness also has stated clearly that before identifying the accused in a Test Identification Parade, the police had shown the accused to them in their Police Station.

¶340

Our Hon'ble Apex Court in Udayakumar -vsState of Tamil Nadu, reported in 2023 SCC Online SC 283 , while dealing with the importance of Test Identification Parade, was pleased to observe that, holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of

¶341

58 -

¶342

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶343

a Test Identification Parade is that witnesses who claim to have seen the culprits at the time of the occurrence are to identify them from the midst of many other persons without any aid or any other source. It further observed that the identification parade does not hold much value when the identity of the accused is already known to the witnesses.

¶344

In the very same case, the Hon'ble Apex Court referred to its previous judgment in Sk.Umar Ahmed Shaikh -vs- State of Maharashtra, reported in (1998) 5 SCC 103, wherein it was held at Para-8 as below :

¶345

"8……… But, the question arises : what value could be attached to the evidence of identity of accused by the witnesses in the Court when the accused were possibly shown to the witnesses before the identification parade in the police station. The Designated Court has already recorded a finding that there was strong possibility that the suspects were shown to the witnesses. Under such circumstances, when the accused were already shown to the witnesses, their identification in the Court by the witnesses was meaningless. The statement of witnesses in the Court identifying the accused in the Court lost all its value and could not be made the

¶346

59 -

¶347

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶348

basis for recording conviction against the accused……"

¶349

In the instant case also, both Smt.Subbalakshmi

¶350

and Smt.Sundaramba have clearly stated that the accused were shown to them in the Police Station and then they were asked to identify them in jail (Test Identification Parade). As such, the alleged Test Identification Parade said to have been conducted by PW-7 - Umeshchandra where, according to him, all the three complainants in these three Sessions Cases, have identified the accused, would not become a meaningful identification of the accused which can be relied and acted upon. As such, the Test Identification Parade also would be of no help to the prosecution in the instant case.

¶351

In addition to the above, though it is the case of the prosecution that the accused had committed the alleged offences by threatening the victims i.e., PW-1 in all the three Sessions Cases, by showing them a knife, however, for the reasons best known to it, it has not recovered the said knife from the accused and got it marked as

¶352

60 -

¶353

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶354

Material Object. The Investigating Officer in his evidence also has not whispered about any attempt made for the recovery of said knife and the reason for not recovering the said knife. As such, though the prosecution could able to show that an incident of robbery has taken place, however, it failed to establish that the said offence was committed by the accused and accused alone.

¶355

It is also the case of the prosecution that the accused have committed an offence punishable under Section 413 of IPC. In order to show that the accused have robbed the golden articles from PW-1 in all the three Sessions Cases and had pledged them with a Jeweller at two places, one at Koshikala and another at Agra, both in the State of Uttar Pradesh and attempted to establish the

¶356

said act through the alleged recovery, but, as analysed above, the prosecution has failed to establish the alleged recovery of the alleged robbed articles at the instance of the accused. Thus, the prosecution has also failed to establish that the accused/respondents herein were

¶357

61 - CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶358

habitually receiving and dealing in property knowing or having reasons to believe that they are stolen property. Thus, even the offence punishable under Section 413 of IPC also could not be proved against the accused by the prosecution.

¶359

Since it is considering the evidence placed before it by the prosecution and appreciating the evidence, the Sessions Judge's Court has given its finding acquitting all the accused of the alleged offences, which by the above analysis, could not be found fault with, we find no reasons to interfere in the judgments of acquittal passed by the Sessions Judge's Court in all the three Sessions Cases under appeals.

¶360

Accordingly, we proceed to pass the following:

¶361

ORDER

¶362

The Criminal Appeal No.1836/2016, Criminal Appeal No.1834/2016 and Criminal Appeal No.1962/2016 stands dismissed as devoid of merits.

¶363

62 -

¶364

CRL.A No.1836/2016 C/w. CRL.A.No.1834/2016 & CRL.A.No.1962/2016

¶365

The Court, while acknowledging the services rendered by the learned Amicus Curiae for the respondents/accused - Sri N.S. Sampangiramaiah, recommends an honorarium of a sum of not less than `4,000/- in each appeal, payable to him by the Registry.

¶366

Registry to transmit a copy of this judgment along with Sessions Judge's Court records to the concerned Sessions Judge's Court without delay.

¶367

Sd/JUDGE

¶368

Sd/JUDGE

¶369

bk/

The State by v. Vikki Singh @ Vikki

Case brief

What is this about?

What the court decided

The State by v. Vikki Singh @ Vikki

Case brief

What is this about?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

The State of Karnataka Vs Karunakara Shetty

The State by Anavatti Vs Shankar

State of Karnataka Vs Siddaraju

The State by Lashkar Vs Sri.K.C.Girisha

State of Karnataka Vs Lakshmana @ Ouranga

The State of Karnataka Vs B H Thippeswamy @ Thippeshi