PREMAKUMAR Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) THE Judgment and Order of conviction passed by the Prl. Sessions Judge/I/c 1st Addl. Sessions Judge, Bangalore Rural District, Bangalore in S.C. No. 135/2009 is called in question in this appeal by the convicted accused.

(2.) CASE of the prosecution in brief is that the lorry bearing Regn. No. TN -23 -D -8727 was driven by P.W. 21 -complainant on the night of 27.11.2008; The said lorry was loaded with iron rods belonging to Sunvik Steel Factory, Tumkur, of which P.W. 12 was having the possessory right; The lorry in question was owned by P.W. 23; The deceased Ronald Khaf was the security guard and he was proceeding alongwith the lorry for providing security to the iron rods that were being transported; On the night intervening between 26.11.2008 and 27.11.2008, the driver had parked the lorry near the fly over of Dobaspet, on N.H. 4 leading from Poona to Bangalore within the limits of Dabaspet Police Station; On the early morning of 27.11.2008 while deceased and P.W. 21 were asleep at about 3 a.m. Accused No. 1 - Premakumar alongwith other accused entered into the cabin of the lorry forcibly from both doors of the cabin and immediately threw chilli powder on the face of the complainant; All the accused were covering their faces with a view to shield their identity. After throwing chilli powder, the accused assaulted on the head of the complainant with wheel spanner, consequently complainant fainted and then he was thrown out of the lorry. Thereafter the lorry was taken to certain distance and the security guard was also murdered. After murdering the security guard Ronald Khaf, the lorry with the goods were robbed by the accused.

(3.) SRI K.M. Nataraj, learned, senior advocate appearing on behalf of the convicted accused/appellants submits that except the evidence of P.W. 21 - complainant and the evidence of the doctor who conducted the PM examination and the evidence of the Police Officer, the evidence of all other witnesses is of no use to the case of the prosecution inasmuch as all the witnesses have turned hostile; the identity of the accused is in serious doubt inasmuch as the complainant/injured had not seen the assailants at an earlier point of time; The accused were not known to him prior to the incident in question; The persons who entered the lorry were covering their faces in full; Immediately after entering the lorry, they threw chilli powder on the face of the complainant and assaulted him with wheel spanner, consequent upon which the complainant fainted; Thus according to him, there was no occasion for the complainant to know, identify and remember the faces of the assailants at the time of the incident. He further draws the attention of the Court to the fact that though Accused Nos. 3 to 5 were arrested on 28.11.2008; Accused No. 2 was arrested on 29.11.2008 and Accused No. 1 was arrested on 2.12.2008, the Test Identification parade in respect of Accused Nos. 2 to 5 was conducted only on 17.2.2009 i.e., after lapse of about 2 1/2 months and the Test Identification parade in respect of Accused No. 1 was not at all conducted; Absolutely no valid reason is forthcoming as to why the identification parade was not conducted immediately after the arrest of the accused; Since the identification of the assailants is in serious doubt, the appellants cannot be convicted merely on suspicion or on assumption.