STATE Vs. SHIVAKUMAR AND ORS.

JUDGEMENT

(1.) THE judgment and order of conviction convicting accused Nos. 2, 4, 5, 6, 7, 8 and 10 dated 17th July 2010 passed by Fast Track Court, Holenarasipura in S.C. No. 98/2007 is called in question in Crl. A. No. 755/2010 by the convicted accused. Crl. A. No. 37/2011 is filed by the State seeking enhancement of compensation.

(2.) THE case of the prosecution in brief is that PW -16 is the owner of a tanker lorry bearing registration No. KA -19 -3362; PW -17 is the driver of the said lorry; PW -16 being the owner of the lorry was also driving the lorry -very frequently; in effect, the said lorry was having two drivers including owner of lorry viz., PWs -16 and 17. The lorry was transporting petrol/diesel from MRPL Mangalore to KSRTC depot, Chamarajanagar regularly; on 11.8.2005, the tanker lorry filled with diesel left Mangalore at 6.00 p.m.; they reached Peddanahally at about 2.00 a.m. on 12.8.2005; Peddanahlly village falls within the limits of Holenarasipura rural police station, Hassan District; at that time, a maruthi van came and waylaid the lorry; the lorry driven by PW -17 was stopped by him; PW -16 was sleeping in the cabin of the - lorry; immediately seven persons alighted from a Maruthi van and boarded the lorry from both doors; they threatened and assaulted PW -17 and tied him after tying his mouth also; when PW -16 got up, he was also assaulted and his face as well as mouth was also covered and he was also covered tightly with the help of torn clothes; such seven persons who boarded the lorry took the lorry to a far off distance for about four hours and ultimately PWs -16 and 17 were thrown out of the lorry into a ditch after threatening with dire consequences; before throwing PWs -16 and 17 out of the lorry, they robbed of Rs. 700/ - possessed by PW -16 and two mobile phones of PWs -16 and 17; PW -16 and 17 did not know the name of the place, wherein they were thrown; however in the morning of 12.8.2005, with the help of passersby, they got their hands and legs freed and thereafter they came to Huliyurdurga police station. The Inspector of police at Huliyurdurga having come to know about the incident in question took PWs -16 and 17 to Holenarsipura police station, inasmuch as, the incident of dacoity had taken place within the jurisdiction of Holenarsipura police station. PWs -16 and 17 drivers of the lorry lodged the complaint as per Ex -P10 before Holenarsipura police station at 11.10 p.m. on 12.8.2005. The same was reduced to writing by PW -21 -Inspector of Police -Holenarsipura rural police station. Based on the said complaint Ex -P10, a case in Cr. No. 143/2006 came to be registered against eight unknown persons for the offence punishable under section 395 IPC. At the time of lodging the complaint, neither PW -16 nor PW -17 were not knowing whereabouts of the lorry inasmuch as, they were taken by the accused blindfolded in a maruthi van. They did not even notice the registration number of the maruthi van, in which, they were carried by the accused. The Inspector of police attached to Holenarsipura police station i.e., PW -22 laid the charge -sheet after completion of investigation.

(3.) SRI C.R. Gopala Swamy, learned counsel appearing on behalf of convicted accused taking us through the material on record submits that the Court below is not justified in convicting all the accused merely on suspicion; there is no reliable material to show that these accused were involved in the incident in question; the registration number of the maruthi van is not forthcoming; the test identification parade conducted by Taluka Executive Magistrate (PW -18) does not fulfill the necessary formalities relating to test identification parade; in the absence of satisfactory material to show that Taluka Executive Magistrate had taken all safe -guards while conducting test -identification parade, the report of test identification parade should not have been relied upon by the trial Court. He further draws the attention of the Court that except robbing Rs. 700/ - and one mobile phone, no other material is found on record against the accused; the allegation that there was theft of 3200 it of diesel from the diesel tanker is not proved by the prosecution, inasmuch as, no evidence is let in on that aspect; the panchanama 'Ex -P3' under which the tanker is seized does not anywhere disclose that there was loss of 3200 lts of diesel; the seizure panchanama relating to seizure of lorry merely discloses that three compartments were open. There is no concrete material to show that there was theft of diesel by anybody, much less by the accused. On these among grounds, he prays for setting aside the judgment of the Court below.