JAMEER ABDUL GANI AND OTHERS Vs. STATE

JUDGEMENT

(1.) Heard the learned Counsel for the appellants and the learned Government Pleader.

(2.) The appellants were the accused before the Court below and have challenged their conviction for the offence punishable under Sec. 395 of the Indian Penal Code, 1860. The complainant was one Mounesh, driver of a lorry. It was his allegation that on 11.02.2009 he had brought the lorry on which he was engaged as a driver to Gulbarga, on the instructions of the owner, and had loaded the lorry with toor dal and had left Gulbarga at about 10.00 p.m. for Bangalore. When he had crossed Surpur and was 100 metres beyond Devi Cross, a white coloured car is said to have over taken the lorry on the wrong side and had blocked its path, forcing the complainant to stop his lorry. It transpires that five persons had alighted from the car and two of them had rushed into the cabin of the lorry through the driver's door and three others from the other door and one of them had threatened him with a knife and punched and kicked him and had snatched his mobile phone, while also pulling at his shirt and he was brought out of the lorry and was again kicked and punched and he was robbed of Rs.2,000/ - which he was carrying in his pant pocket and when the cleaner tried to put up a resistance, he was said to have been assaulted, repeatedly. Then the time was about 1.30 a.m. on 12.02.2009 and all the five persons after having taken away cash and a cell phone of the complainant had fled away in the car bearing Registration No. KA -36/M -1536 and on the basis of the complaint which was lodged at about 3.00 a.m. with the Shorapur Police, a case was registered in Crime No. 32/2009 against unknown persons and in the course of investigation on the very same day all the five accused were said to have been apprehended at Shahapur and the cell phone belonging to the complainant as well as cash was recovered from them and they were then produced before the Judicial Magistrate and were promptly remanded to judicial custody. Thereafter, alter completion of the investigation, a charge -sheet was said to have been filed. The case was then committed to the Court of Sessions, Gulbarga. The charges were thereafter framed. The accused having pleaded not guilty and having claimed to be tried, the prosecution had examined 13 witnesses and marked several exhibits. The Court below framed the following issues for consideration:

(3.) The learned Counsel for the appellants would contend in support of the grounds raised in the appeal that the very sequence of events as sought to be urged by the prosecution cannot be readily accepted. Apart from the inconsistencies and improbabilities that emerge from the sequence of events, the involvement of the present appellants as the accused is also not established on the basis of the evidence tendered, it is pointed out that if the evidence of the prosecution is examined, it cannot be said that the charges against the accused were proved it all and certainly not beyond all reasonable doubt.