N. LOKESH Vs. STATE

JUDGEMENT

(1.) THESE appeals are heard and disposed of by this common judgment.

(2.) THE facts of the case are as follows: It was alleged that by virtue of a conspiracy entered into between Accused no. 14, who was serving time in Parapana Agrahara jail, and Accused nos.1 & 13 having agreed to commit dacoity on the instigation and prompting of Accused no. 14, as was sought 10 be established by reference to call details of their respective cellular phones of having contacted each other, and in furtherance thereof, as on 14.4.2010 at about 5.30 p.m., the accused nos.l to 12, had armed themselves with deadly weapons and occupying two vehicles, namely a Tata Sumo, bearing registration no. KA -53 -3293 and a Honda City, bearing registration no. KA -02 Z 6667, had followed another vehicle, namely, a Tata Indigo car, bearing registration no. KA -05 MB 947, with the knowledge that the occupants were carrying large amounts of cash and with the intention to commit dacoity had intercepted the said vehicle, which was going from Tiptur to Turuvekere, behind the Albui tank on Tiptur - Yediyur road, within the jurisdiction of Nonavinakere Police Station,and had smashed the front and rear wind shields of the said vehicle and while threatening to cause grievous hurt to the occupants of the car, with the deadly weapons which they were all wielding, had snatched a cash bag containing Rs.2,05,200/ -, a gold finger ring and a cell phone from Chandrakeerthi (PV/ -1) one of the occupants; a cash bag containing Rs.2,10,000/ fiom K.N. Vinod (PW -2) and another cash bag containing Rs.2,10,000/ - from one Arkakeerthi (CW -3) the other occupant. While departing, they had inflicted simple injuries to all the occupants of the car and had sped away in their vehicles. One Vajregowda, PW -5 who was travelling to Bellur in his car is said to have noticed that the complainant and others had been waylaid and their car damaged and hence, had taken CWs -4 & 5 in his car to the Turuvekere hospital. While PW -1 and CW -5 had boarded a KSRTC bus to go to Turuvekere, on the way, CW -5 who was said to be acquainted with a police constable at Turuvekere Police Station is said to have contacted him on his cell phone and informed him of the incident. After having received first aid treatment at Turuvekere hospital, they had proceeded to Nonavinakere Police Staiion and PW -1 had lodged the complaint. In the meanwhile, the PSI Nonavinakere Police Station is said to have received a message of the dacoity from Turuvekere Police Station at about 5.45 p.m. Thereby, he had rushed to the Turuvekere hospital, met the injured victims and visited the spot where the dacoity had taken place and came back to the Station to receive the complaint from PW -1, at about 7.30 p.m. The wireless control room, Tiptur is said to have received the message of the dacoity at 5.45 p.m., which was relayed to the concerned superior officers and on further instructions, the message was flashed to all the police stations of Tumkur District to put up check points and to look out for the accused.  The driver of a Highway patrolling & escort vehicle (PW -15) who had routinely intercepted the message, had noticed that the very vehicles of the accused were going towards Amruthur and had responded by informing the Amruthur Police Station of having spotted the vehicles and reported the direction in which they were proceeding. He did not follow the vehicles since he was assigned with other duties. On receipt of the information, PW -14 is said to have immediately informed PW -10 & PW -23. The latter is said to have directed PW -10 and his staff to immediately proceed to Kempegowda Circle at Amruthur to intercept the accused. They are said to have immediately reached the said place and put up barricades awaiting the arrival of the accused. As expected, the vehicles in which the accused were proceeding are said to have come to the Kempegowda circle and were immediately surrounded by PW -10 and his men. But four of the accused are said to have got out of the vehicles and are said to have run away. PW -23 is also said to have arrived at the spot and had taken charge of the situation and had arrested eight of the accused. On a search of the cars, four long bladed machetes (described as 'longs'), 2 chilly powder packets and 2 cash bags are said to have been recovered from the Honda City vehicle and found 2 long bladed machetes and four machetes (described as sickles) and a cash bag with cash and one gold finger ring from the Tata sumo vehicle. PW - 23 is also said to have recovered five mobile phones and a 'dragon' knife, from the accused. After having apprehended the accused, at about 8 p.m., PW -23, PW -JO and other personnel are said to have produced them before the Circle Police Inspector, PW -24 at about 12.00 midnight on 14.4.2010. PW -23 is said to have submitted a report about the interception, the search and seizure, to PW -24, who is then said to have drawn up a mahazar in the presence of witnesses. On 15.4.2010, the accused 1 to 8 were said to have been formally arrested and produced before the Magistrate.  The case was thereafter committed to the court of sessions. The case against accused nos. 9 to 12 was split up as they had absconded and were not traceable. Three case numbers were assigned before the trial court for the reason that case no. S.C.55/2011 was against Accused nos.1 to 8, case no.S.C. 129/2011 was against accused no. 13. Accused no.2 is said to have briefly absconded and hence the case had been split up against him and a case no.315/2011 assigned to his case. But since he was later traced and his presence was secured, all the above three cases were tried together and disposed of by a common judgment. After further proceedings, charges having been framed against the accused and they having pleaded, not guilty and having claimed to be tried, the prosecution had tendered evidence and had examined PW -1 to PW -24 and marked several documents and material objects. The trial court had then recorded the statements of the accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Cr.P.C.,' for brevity) and after having heard both sides had framed the following points for consideration:

(3.) IT is contended that the complainant who was examined as PW -2, as well as PW -1, who were both said to be the alleged victims of the crime had not identified the accused before the court. Further, the said witnesses have deposed that they had identified the material objects exhibited at the trail, a day after the incident. Whereas the police are said to have seized the said material objects, MO -1 to M0 26 on the very date of the incident. It is pointed out that the said witnesses have also stated that when the test identification parade was conducted to ascertain the identity of the accused, held on the jail premises, the Tahshildar is said to have merely obtained the signatures of the above witnesses, without a word. It is on record that the test identification parade was conducted a clear two months after the incident. And the presence of the respondent police which was noticed by the witnesses further indicated that the entire proceeding of a so called test identification parade was stage managed and contrived and was of no significance. The evidence of these two witnesses being most crucial to bring home the charges, and when they have not supported the case of the prosecution, the trial court was not justified in convicting the accused.  It is contended that the registered owners of the two vehicles involved in the incident, PW -8 & PW -9 had been treated as hostile witnesses by the prosecution and hence the case of the prosecution was substantially diluted and hence the order of conviction could not be sustained. Similarly a witness to the mahazar drawn as regards the material objects seized from the accused and recovered from the cars, PW -13. had turned hostile and did not support the case of the prosecution. The evidence of PW -10 & PW -22, the witnesses who were involved in apprehending the accused, was totally inconsistent and ridden with contradictions and hence could not have been reconciled by the trial court in arriving at its findings. It is contended that the PSI of Amruthur Police Station, examined as PW -23 who had lead the team of police men to apprehend the accused, had admittedly seized various articles including cash from the person of the accused and is said to have recovered other articles and cash from the two cars, but had not drawn up a mahazar at the spot, but had subsequently prepared a report and placed it before the CPI at Tiptur, who in turn is said to have drawn up the mahazar in his office. This, it is contended is a serious infirmity that would vitiate the entire proceedings. The learned counsel have placed reliance on the following authorities to contend that the recovery of an object is not a discovery of fact: