1 IN THE HIGH COURT OF KARNATAKA AT DATED …judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/...were alleged to have been preparing to commit dacoity. The police are said to

1

® IN THE HIGH COURT OF KARNATAKA AT

BANGALORE

DATED THIS THE 26th DAY OF SEPTEMBER 2014

BEFORE

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

CRIMINAL APPEAL No.1586 OF 2007

CONNECTED WITH





IN CRL.A.No.1586/2007

BETWEEN:

Tanveer Ahmed @ Tanveer

Son of Abdul Roof, 36 years,

Residing at No.314, Venkateshwara Road Cross,

Muslim Colony, Tyanari Road,

Pillanna Garden,

Bangalore. …APPELLANT

(By Shri. S. Shivakumar, Advocate for Appellant, vide court

order dated 19.8.2014 Shri. Mohammed Mujassin, Advocate

appointed as Amicus Curiae)

2

AND:

State of Karnataka,

By High Grounds Police Station,

Bangalore.

…RESPONDENT

(By Shri. K.R. Keshava Murthy, State Public Prosecutor 1)

*****

This Criminal Appeal filed under Section 374(2) of the

code of Criminal Procedure, 1973, by the advocate for the

appellant against the judgment dated 27.9.2007 passed by the

Additional Sessions Judge, Fast Track Court-IX, Bangalore in

S.C.No.933/2005 – convicting the appellant/accused no.1 for

the offence punishable under Section 307, 332 of the I.P.C. and

under Section 3 punishable with Section 25 of the Arms Act

and etc;

IN CRL.A.No.838 OF 2008

BETWEEN:

Atush @ Athik Pasha,

Son of Bakshi Khan,

27 years, residing at No.62,

Ittige Anjanappa Lane,

Pension Mohalla,

Behind Masjid,

Banglaore.

…APPELLANT

(By Shri. Younous Ali Khan, Advocate for Appellant, vide

court order dated 19.8.2014 Shri. Mohammed Mujassin,

Advocate appointed as Amicus Curiae)

3

AND:

State of Karnataka,


Bangalore.

…RESPONDENT


*****



appellant against the judgment dated 22.7.2008 in

S.C.No.204/2007, passed by the I/C, Presiding Officer, City

Fast Track (Sessions) Judge, Bangalore City (FTC-VI) –

convicting the appellant/accused for the offences punishable

under Section 307 and 332 read with Section 34 of IPC and etc;

IN CRL.A.No.930/2009

BETWEEN:

Sajjad @ Jan Sajjad,

Aged about 31 years,

Son of Sabjan,

Residing at No.6,

6th

Cross, Charminar Road,

Boti Market, Shivaji Nagar,

Bangalore.

…APPELLANT

(By Shri. Younous Ali Khan, Advocate for Appellant, vide

court order dated 19.8.2014 Shri. Mohammed Mujassin,

Advocate appointed as Amicus Curiae)

4

AND:

State of Karnataka,


Bangalore.

Represented by

The State Public Prosecutor,

High Court of Karnataka,

High Court Buildings,

Bangalore.

…RESPONDENT


*****



appellant praying to set aside the judgment and order dated

10.9.2009 passed by the Presiding Officer, Fast Track Court-

IX, Bangalore, in S.C.No.26/2008 – convicting the

appellant/accused No.3 for the offence punishable under

Section 332 read with Section 34 of IPC and etc;

IN CRL.A.No.849/2009

BETWEEN:

Shakeer @ Syed Shakeer @

Syed, son of Sahajahan,

Aged 27 years,

Resident of No.77,

Basappa Lane,

Tyanari Road,


5

(By Shri. S. Shivakumar, Advocate for Appellant, vide court

order dated 19.8.2014 Shri. Mohammed Mujassim, Advocate

appointed as Amicus Curiae)

AND:

State of Karnataka,


Bangalore.

…RESPONDENT


*****



appellant praying to set aside the judgment of conviction and

sentence dated 10.9.2009 passed by the Presiding Officer, Fast

Track Court-IX, Bangalore in S.C.No.26/2008 – convicting the

appellant/accused for the offence punishable under Section 332

read with Section 34 of IPC and etc;

IN CRL.A.No.1597/2007

BETWEEN:

Mohd. Ayub @ Gobad Ayub

@ Tinkar Ayub,

Son of Mohd. Ibrahim,

Aged 37 years,

No.18, A Lal Masjid Street,

Shivajinagar,


(By Shri. C.R. Raghavendra Reddy, Advocate for Appellant)

6

AND:

State of Karnataka,

By High Grounds Police.

…RESPONDENT


*****



appellant against the judgment dated 27/29.9.2007 in

S.C.No.933/2005 on the file of the Presiding Officer, Fast

Track Court-IX, at Bangalore – convicting the

appellant/accused No.5 for the offence punishable under

Section 3 punishable with Section 25 of Arms Act and etc;

These Criminal Appeals having been heard and reserved

on 12.09.2014 and coming on for pronouncement of Judgment

this day, the Court delivered the following:-

JUDGMENT

These appeals are heard and disposed of by this common

judgment.

2. The facts leading up to these appeals are as follows:-

It is stated that on 8.5.2004 at about 9-40 PM, seven persons

had assembled at an Amusement park inside the Palace

Grounds at Bangalore, known as Fun World. More

particularly, they were said to have assembled near a go-carting

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pavilion and were grouped around a car bearing registration

no.KA-05 MB 876 and were armed with deadly weapons and

were alleged to have been preparing to commit dacoity. The

police are said to have received information of their intention

and presence there and are said to have arrived on the scene.

When the police were about to arrest them, the accused no.1,

Tanveer, who was said to have been at the wheel of the car

being used by the group, having noticed the approaching police

personnel, had spurted forward in his car and is said to have

driven straight at the police officers, at very high speed

particularly a police inspector, Revanna, who was leading the

posse of policemen in seeking to arrest the accused, is said to

have narrowly escaped being run over, as he had managed to

leap out of the way of the speeding car. At that time the other

accused namely, Atush, Sajjad and Shakeer were said to be

occupying the car along with Tanveer. Revanna is said to have

then fired at the car with his revolver and had managed to shoot

at and hit the tyres of the car, throwing it out of control and it is

8

said to have come to a halt after crashing into a mud heap.

Immediately, Accused no.1 is said to have bounded out of the

vehicle wielding a machete and rushed at the police men.

Atush and Sajjad had also charged out of the car wielding

clubs. A ‘free for all’ scuffle is said to have ensued between the

police men, on the one side, namely, Revanna, Umesh,

Ratnakar Shetty, Nanjundegowda and others, and the accused-

on the other. The police are said to have managed to overpower

the accused, and had sustained injuries in the process. Shakeer

is said to have sustained a bullet injury on his left arm. Dhobhi

Ayub, one of the accused is said to have managed to escape.

On a further search of their vehicle, the police are said to have

recovered a long bladed machete (described as a ‘long’), a

revolver, six bullets, a 3.5MM country made pistol, 2 knives

and 5 mobile phones. The accused having been arrested had

been brought to the jurisdictional police station and a formal

complaint was said to have been filed. And a case in Crime

no.170/2004 is said to have been registered.

9

After further investigation, sufficient material is said to

have been found against the accused to file a charge sheet for

offences punishable under Sections 399, 400, 332, 307 read

with Section 34 of the Indian Penal Code, 1860 (hereinafter

referred to as the ‘IPC’, for brevity) and Sections 3 and 25 of

the Arms Act, 1959, before the Court of the VIII Additional

City Metropolitan Magistrate Court, Bangalore. The magistrate,

after having taken cognizance, is said to have committed the

case to the Court of Sessions in terms of Section 209 of the

Code of Criminal Procedure, 1973 (Hereinafter referred to as

the ‘CrPC’, for brevity).

After committal of the case, the Sessions court had heard

the prosecution and the accused, had framed the charges. The

accused had pleaded not guilty and claimed to be tried. The

Accused no.2 to 4 are said to have remained absent after the

framing of the Charges. Hence the case as against them had

been split up. Accused no.1 – Tanveer, was in judicial

custody, Accused no.5 – Mohammed Ayub, was on bail.

10

The prosecution had then examined 19 witnesses and got

marked several exhibits and material objects. The statements of

the accused under Section 313 of the CrPC, was said to have

been recorded and the court framed the following points for

consideration, in case no.SC 933/2005:

“1. Whether the prosecution proved, beyond

all reasonable doubt that, on 8.5.2004 at 9.40 p.m. at

Bangalore Palace ground, near Gokarting Pavilion,

behind Fun World, Bangalore, accused No.1 and 5

along with absconding accused made preparation by

holding deadly weapons and hatching a plan for

committing dacoity and thereby committed an offence

punishable under Section 399 of IPC?

2. Whether the prosecution proved, beyond all

reasonable doubt that, that on the above said date,

place and time, accused No.1 and 5 along with

absconding accused belong to a gang of persons

associated for the purpose of habitually committing

dacoity and thereby committed an offence punishable

under Section 400 of IPC?

3. Whether the prosecution proved, beyond

all reasonable doubt that, that on the above said date,

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place and time, accused No.1 and 5 along with

absconding accused with their common intention tried

to pass the car on C.W-1 B.K.Shivaram and C.W-22

Revanna, with such intention or knowledge and under

such circumstances by that act they had caused death

of B.K.Shivaram and Revanna, they would have been

guilty of murder and that they have thereby committed

an offence punishable under Section 307 read with

Section 34 of IPC?



place and time accused No.1 and 5 along with

absconding accused with their common intention

voluntarily caused hurt to CW1 B.K.Shivaram, CW9

Kalegowda, CW10 Suresh, CW11 Navaz, CW12

Ramachandraiah, CW22 Revanna, CW23

Nanjundegowda, CW24 Umesh, CW25 Rathnakar,

while they were discharging the duties, as such public

servants and thereby committed an offence punishable

under Section 332 read with Section 34 of IPC?



place and time, accused No.1 having revolver and 6

live cartridges and accused No.5 was in possession of

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a double barrel pistol, 2 single barrel pistol, single

barrel country made Gun and 2 magazines, 3

cartridges without holding license in this behalf as per

the provisions of Arms Act and thereby violated the

provisions of Section 3 punishable under Section 25 of

the Arms Act?”

In the meanwhile, Accused no.2 - Athush, who had

jumped bail, was produced before the Court and the split up

charge sheet against the said accused was said to have been

filed in SC 204/2007, since the trial had commenced as against

Accused no.1 and Accused no.5, the same is said to have

continued and of the witnesses, PW-6 to 13, were said to have

been examined in the presence of Accused no.2. The

documents and material objects – marked in case no.SC

933/2005 were summoned and ordered to be read in case no.SC

204/2007. After following the procedure in so far as Accused

no.2 is concerned, the following points were framed for

consideration in SC 204/2007:

13

“1. Whether the prosecution has proved that

on 8.5.2004 at about 9.30 P.M. at Bangalore Palace

Grounds near Gokarting Pavillion behind Fun World,

Bangalore accused No.2 along with other accused,

made preparations by holding deadly weapons and

hatching a plan for committing dacoity and thereby,

committed an offence punishable under Section 399 of

IPC?

2. Whether the prosecution has further

proved that on the above said date, time and place,

this accused No.2 along with other belonged to a gang

of persons associated for the purpose of habitually

committing dacoity and thereby committed an offence

punishable under Section 400 of IPC?


proved that on the above said date, place and time

accused No.2 and other accused with their common

intention tried to pass the car on CW-1 B.K.Shivaram

and CW-12 Revanna with intention or knowledge

under such circumstances by the act they had caused

death of B.K.Shivaram and Revanna and they would

have been guilty of murder and thereby committed

offence punishable under Section 307 read with 34 of

IPC?

14


proved that on the above said date, time and place

accused No.2 and other accused sharing common

intention voluntarily caused hurt to CW-1, CW9,

CW10, CW-12, CW-22, 25 while they were

discharging the duty as a public servant and thereby

committed an offence punishable under Section 332

read with 34 of IPC?”

Further, Accused no. 3 – Sajjad and Accused no. 4 –

Shakeer, who had jumped bail, were produced before the court

and the split up charge sheet against them was filed against

them. On committal of the case to the Court of Sessions, a

case was registered against them in SC 26/2008. After

compliance with further procedures and charges having been

framed against them, the said accused had pleaded not guilty

and claimed to be tried. The prosecution had then examined

PW.1 to PW.14 and marked several exhibits and material

objects. Thereafter, the court had recorded the statements of

the accused under Section 313 CrPC and after having heard the

15

prosecution and the accused, had framed the following points

for consideration in the case as against Accused no.3 and

Accused no.4:

“1. Whether the prosecution proves that on

08.05.2004 at 9.40 p.m, near Gokarting pavilion in

Palace ground, A.3 and A.4 along with 4 persons

made preparation to commit dacoity by holding lethal

weapons?

2. Whether the prosecution further proves

that on 08.05.2004 at 9.40 p.m, near Gokarting

pavilion in palace ground, A.1 to A.4 along with 4

others belongs to gang of persons associated for the

purpose of habitually committing dacoity?

3. Whether the prosecution proves that on


palace ground A.3 and A.4 along with 4 others with

common intention voluntarily caused hurt to CW.1

Shivaram, CW.9-Kalegowda, CW.10 Suresh, CW.11

Navaz, CW.12 Ramachandriah, CW.22 Revanna,

CW.23 Nanjundegowda, CW.24 Umesh and CW.25

Rathnakar while they were discharging the duties as

such public servants?

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4. Whether the prosecution proves that on


palace ground with common intention tried pass the

car on CW.1 Shivaram and CW.22 Revanna with

knowledge and under such circumstances by that act

had caused the death of B.K.Shivaram and Revanna?”

The sessions court has convicted Accused no. 1 to 5 in

three separate judgments in case numbers – SC 933/2005 (A-1

and A-5), SC 204/2007 (A-2) and SC 26/2008 (A-3 and A-4).

The said Accused have been found guilty and have been

convicted and have been imposed the following sentences :

SC 933/205

Accused no.1 was sentenced to undergo rigorous

imprisonment for 3½ years with fine of Rs.25,000/- for the

offence under section 307 of the IPC and further sentenced to

undergo imprisonment for 2 years with fine of Rs.2,000/- for

the offence punishable under Section 332 of the IPC. Accused

nos.1 to 5 were sentenced to undergo rigorous imprisonment for

2 years each and to pay fine of Rs.1,000/- for the offences

17

punishable under Sections 3 and 25 of the Arms Act. All the

sentences were ordered to run concurrently.

SC 204/2007

Accused no.2 was convicted and sentenced to undergo

rigorous imprisonment for a period of 3 years and to pay a fine

of Rs.10,000/- for the offence punishable under section 307 of

the IPC read with Section 34 of the IPC and further sentenced

to undergo rigorous imprisonment for 2 years and to pay a fine

of Rs.2,000/- for the offence punishable under section 332 read

with Section 34 of the IPC. Both the sentences were ordered to

run concurrently.

SC 26/2008

Accused nos.3 and 4 were convicted and sentenced to

undergo rigorous imprisonment for a period of 2 years and to

pay a fine of Rs.3,000/-for the offence punishable under section

332 read with Section 34 of the IPC.

It is the respective convictions, which are the subject

matter of these individual appeals.

18

3. It is contended on behalf of Appellant no.1, that there

was not a single independent witness, who has corroborated the

evidence of the official witnesses, namely, PWs.5 to 10 and 12

to 16 and 33, twelve witnesses in all. The evidence tendered

through the above witnesses was self serving and was only with

an intention to frame the said accused on false and fabricated

charges.

On the other hand, PW.1 to PW.4, the independent

witnesses have not supported the case of the prosecution.

It is also pointed out that even the partisan witnesses

have not provided any consistent particulars. The serious

contradictions and omissions that were apparent in their

respective testimony, has been glossed over by the trial court.

It is pointed out that the complainant - police had foisted

not one, but two cases against this appellant on the same day.

Crime no.172/2004 resulted in the present proceedings and

Crime no.179/2004 for an offence punishable under Section 5

of the Explosives Act, 1884 and a large number of witnesses

19

cited in both the cases were the same witnesses. It is stated that

the case in Crime no.179/2004 was said to have been tried as

Sessions case no.211/2005, before the Fast Track Court - 10

and the appellant is said to have been acquitted in that case.

The blatantly false evidence tendered by the prosecution

is sought to be demonstrated with reference to the evidence of

the following witnesses :

PW.5, who had deposed that he was in the police Station

at 9-45 PM on 8.5.2004, when information is said to have been

received of the accused persons planning to commit dacoity

after having assembled in the Palace Grounds. But the witness

had contradicted himself in also stating that he had received the

information at 8:55 PM at the police station. Further, though he

was also a witness in SC 211/2005, referred to above, he had

blatantly denied that he was a witness in the said case. Such

false hood, in the face of the record, ought to have been

perceived seriously by the Court, which has however, ignored

the same.

20

PW.6, the complainant, is said to have been injured in the

incident on 8.5.2004, and he is said to have taken treatment on

9.5.2004 at a hospital in Malleswaram, when the Bowring

Hospital was a short distance away from the Palace grounds

where the incident is said to have occurred. The wound

certificate had indicated the place of incident as Malleswaram,

but the same has been altered as Sadashivnagar, after a period

of two months.

PW.7, was unable to describe the colour of dress which

the appellant was wearing. He is also said to have been injured,

but could not remember when he obtained treatment.

PW.8 as well as the complainant had stated that after the

car driven by the appellant had been brought to a halt, the

appellant had come out of the car wielding a “chopper”, at

them. However, there is no such weapon forthcoming in the

course of the trial and there are not even statements made

before the Investigation Officer regarding the same.

21

The witnesses have made inconsistent statements as

regards the distance at which the police vehicles, in which the

raiding party had gone to the palace grounds to nab the accused,

were parked. While PW.10 had claimed that the vehicles were

parked half a kilometre away, the other witnesses had claimed

they were parked a 100 feet away from the car of the accused,

while some others have said they were parked close to the

vehicle of the accused.

PW.11, the registered owner of the vehicle, which the

accused were said to be using, was allegedly taken away by the

Central Crime Branch – personnel, two days after the incident

from her premises, the prosecution claiming it had been in use

by the accused at the time of the incident, it is pointed out is a

serious lacuna in the case of the prosecution.

PW.12 had claimed that this appellant had attacked one

Nanjunde Gowda, with a chopper on his right hand. But

Nanjunde gowda does not claim to have been so injured. There

was no “chopper “ produced as a weapon used by the accused.

22

The said witness had also stated that the police vehicles were

parked a 100 feet away from the car of the accused, quite

contrary to the statement of other witnesses in this regard. He

had also denied that he was a witness in the other case against

this appellant in SC 211/2005, contrary to the record.

It is pointed out that the witnesses, PWs.14, 15 and 16

have inconsistently stated that it took twenty minutes to reach

the spot from the police station, while others had claimed it

would take only five minutes to reach the spot, as it was in the

next compound from the police station and yet others had,

inexplicably, claimed it would take 40 to 50 minutes.

PW.17, the medical practitioner who had stated that the

Medico Legal Register maintained at the hospital would contain

all particulars of the manner, in which an injured person had

sustained such injury, when he is treated. The Register

produced by him did not contain any such details.

It is pointed out that PW.19 has admitted in his evidence

that there are no signatures, PF numbers, Crime number or the

23

names of the police station – on any of the material objects

produced and would lead to an adverse inference that the same

were planted. This witness has categorically admitted that the

case in SC 211/2005 arose out of a criminal case registered on

the same day against this appellant and that the witnesses in that

case and in this case were the same and that the appellant had

been acquitted in the said case.

Significantly, the said witness has candidly admitted that

the statements of the police witnesses were recorded 15 days

after the incident and there was no explanation forthcoming in

respect of the same.

It is hence contended that the above and several other

minor discrepancies could not have been overlooked by the trial

court in holding that the prosecution had proved its case beyond

all reasonable doubt.

It is contended on behalf of Accused no.5, who is the

appellant in Criminal Appeal 1597/2007, that the trial court has

overlooked several glaring circumstances in arriving at findings

24

against the said appellant. It is pointed out that PW.1 to PW.4

were the witnesses fielded to establish the alleged recovery of

the alleged weapons and the vehicle, which the accused were

said to be using at the time of the incident. All the said

witnesses had turned hostile and had not supported the case of

the prosecution, in spite of which the trial court had come to the

conclusion that such recovery was established.

It is further asserted that this appellant had not been

apprehended at the alleged spot where the incident is said to

have taken place, but was arrested by PW.13, a Police

constable, at his house in Shivaji Nagar. There is no

explanation as to how the appellant could be connected to the

incident. It is clearly a false and concocted case sought to be

foisted on the appellant.

It is contended that it is the case of the prosecution that

this appellant, accused no.5, had lead PW.19, the Investigating

Officer (IO), along with the Panch witnesses, PW.3 and PW.4,

to his house and had handed over a pistol, two magazines, three

25

0.135mm cartridges and a rexine bag, as recorded under Exhibit

P.5. However, the panch witnesses have not supported the said

document and it is hence inexplicable that the court below has

yet accepted the case of the prosecution, only on the basis of the

evidence of PW.19.

The contentions on behalf of Accused no.2 , the appellant

in Criminal Appeal 838/2008, Accused no.3, the appellant in

Criminal Appeal 930/2009 and Accused no.4, the appellant in

Criminal Appeal 849/2009, are similar to the contentions

raised on behalf of Accused no.1, as the very infirmities and

glaring contradictions highlighted therein, would equally apply

to this appellant as well. Except that there are more direct

allegations of overt acts against Accused no.1.

In the light of the above contentions, the respective

learned counsel appearing for the appellants pray that the

appeals be allowed and the impugned judgments be set aside.

4. The learned State Public Prosecutor seeks to justify

the impugned judgments.

26

5. On a close perusal of the record and on hearing the

rival contentions – without having to repeat the facts as alleged

by the prosecution, which is, in any event, summarized

hereinabove, a significant feature to be noted is that there have

been three independent trials conducted against the accused in

respect of the same incident. Each trial was presided over by a

different judge, but they have consistently answered two

common points framed for consideration in rendering their

respective judgments, namely :

(1) whether it was proved that the accused had assembled near a

“go kart” pavilion, within the Bangalore Palace Grounds at

9-40 PM on 8.5.2004 and had armed themselves with deadly

weapons and were plotting to commit dacoity;

(2) Whether it was proved that the accused, who had assembled

there, were associated as a gang to habitually commit dacoity;

(Paraphrased for convenience).

27

In all the three judgments under scrutiny, the above two

points (worded differently of course) have been answered in the

negative. But however, the further acts of the accused,

excepting the acts alleged against accused no.5, as claimed by

the prosecution, have been held proved. And therein lies the

choke. In that, this court is not convinced about the very

presence of the accused at the time and place as alleged and the

manner in which the police are said to have confronted them, let

alone the subsequent events, which are even more dramatically

depicted.

The following are some of the grey areas in the case of

the prosecution, which would throw a serious doubt about the

very incident having taken place in the manner sought to be

depicted.

i. The time at which the incident is said to have taken place is

9-40 PM and the place was the Bangalore Palace Grounds,

vaguely described as behind the Fun World amusement park

and near the ‘go kart’ pavilion. The Palace grounds are vast,

28

but the police were able to zero in on the accused without any

difficulty. The terrain of the spot is not detailed, it is left to

one’s imagination. Was it an open area ?, Was it accessible by

any motorable path or road?, Was it wooded, to offer cover for

the several police men to approach the accused, unseen and

unheard, to within hearing distance – while claiming that the

policemen themselves could recognize each and every one of

the accused and could also hear who was saying what.

ii. It is stated that Accused no.1 was sitting in a car with its

headlights on. Four others were said to be standing outside the

vehicle. This would mean all the accused were behind the glare

of the headlights, and could possibly be noticed as dark

silhouettes, provided the policemen were approaching them

from behind the glare of the headlights. If they were on the

other hand facing the glare of the headlights, in an ill lit and

dark area, they would see nothing behind the head lights. Did

the policemen converge in a circle around the accused or

29

proceed as a group with lathis in hand. These aspects are not

forthcoming from the record.

iii. It is difficult to accept the allegation that the accused were

plotting dacoity in raised voices with the car headlights on. On

the other hand, it is doubtful whether the car was there at all.

For it is not the case of the prosecution that it belonged to any

of the accused or that they had stolen or borrowed the same.

The registered owner of the car was a prosecution witness –

who has stated that the CCB Police had requisitioned the car

from her two days after the incident.!

iv. Were there no other people in the area, what about security

guards or watchmen who would have atleast come to

investigate, what with gun fire and shouted attacks with

machetes and truncheons and when the night was still early, at

least for dacoits. It is also claimed that there was moonlight, the

police should be aware that traditionally dacoits have avoided

moon lit nights for their activity.

30

v. The car was said to be a Ford Ikon, it is a modern car with a

highly responsive acceleration power, if the car had shot

forward to make a getaway, it would certainly be driven in a

manner to unnerve a police man trying to block its path, which

could also be seen as an attempt to murder, though death would

not be certain – if he is merely bumped out of the way. In any

case PW.8, having shot out the tyres of the car and having

brought it to a halt, the car is later said to have been taken to the

police station. Were the flat tyres changed or was the car

driven or towed to the Station house – with the flat tyres,

unchanged?. There is no evidence of the damage caused to the

car.

Even if it could be said that the above are aspects, which

the defence, at best, could have addressed in seeking to

discredit the prosecution case and not for an appellate court to

raise, especially in the light of the trial court in three

independent opinions having accepted the presence of the

accused at the scene of the crime. The subsequent acts, which

31

again are held established most certainly, cannot be sustained in

the light of the several inconsistencies and unexplained

circumstances, apart from other circumstances, which cannot be

reasonably accepted.

The accused were alleged to be notorious criminals,

against whom several cases were said to be pending. This was

especially urged against accused no.1 by emphasizing that a red

cornered look out notice was issued by even the Interpol against

him. But no evidence was tendered of any case pending against

any of the accused. On the other hand, it was the defence

claimed by the accused that along with the initiation of these

proceedings by lodging the case in Crime no.172/2004, yet

another case in Crime no.179/2004 was instituted on the same

day. The witnesses in this case were also the witnesses in that

case. The same had been tried before the Court of Sessions as

case no.SC 211/2005 and had resulted in an acquittal. This was

suppressed by the prosecution. To compound matters – when

witness after witness was questioned as to whether the above

32

circumstance was true. The witnesses had feigned ignorance,

or worse, one had even denied the same. This is certainly a

circumstance, which could not have been ignored by the trial

court. This is especially so, when the prosecution has not

thought it fit to explain the background in which that other case

was filed and the reluctance on the part of the witnesses to even

acknowledge that there was such a case.

This coupled with the further circumstance that the

complainant had taken treatment for the injuries said to have

been suffered by him, a day after the incident. The doctor who

had treated him had been examined as PW.18, he has admitted

that the place of the incident was recorded as “ Malleswaram”,

as on 9.5.2004. But it was altered as “Sadashivanagar”, as on

7.7.2004. This correction was said to have been made on the

day the wound certificate was issued.

The fact that there are no independent witnesses to

support the case of the prosecution, it required the standard of

evidence tendered through the several official witnesses be of

33

an unimpeachable nature. But the very sequence of events is

not convincingly portrayed. On the other hand, it is

demonstrated that the testimony of the several witnesses is

ridden with inconsistencies and infirmities which does not

evoke the confidence of this court to hold that the prosecution

has established its case against the accused beyond all

reasonable doubt. The glaring incongruity is the naivety, with

which the prosecution has sought to attribute a notoriety of epic

proportions to the accused who were said to be armed to the

teeth with deadly weapons and were not hesitant to commit

murder and then to glibly contend that such notorious men

could be tamely disarmed by truncheon or lathi wielding

policemen, with minimal damage to themselves except minor

cuts and bruises.

The seizure of the material objects produced as evidence

against the accused is not supported by the Mahazar witnesses.

In this regard, the only basis on which Accused no.5 has been

convicted for Offences punishable under Sections 3 and 25 of

34

the Arms Act and was acquitted in respect of the other charges.

The finding is only on the basis of the alleged recovery made of

the incriminating materials from his residence. As the said

accused was not one who was claimed to have been arrested at

the alleged spot and since his conviction is only on the above

basis, the seizure mahazar not being supported by the

independent witnesses thereto – cannot be relied upon to sustain

the conviction.

In the light of the above circumstances referred to by this

court, the conviction of the accused for the offences alleged

cannot be sustained.

The appeals are allowed. The conviction and sentence

imposed on each of the accused are set aside. The accused are

acquitted. The bail bonds furnished by the accused stand

cancelled. The fine amounts, if any, paid by the accused shall

be refunded.

Shri Mohammed Mujassim, who was appointed as

amicus curiae, for the appellants in Criminal Appeal 849/2009,

35

Criminal Appeal 930/2009, Criminal Appeal 838/2008 &

Criminal Appeal 1586/2007 shall be paid a fee of Rs.5,000/- in

each case.

Sd/-

JUDGE

nv*

Documents

1 IN THE HIGH COURT OF KARNATAKA AT DATED …judgmenthck.kar.nic.in/judgmentsdsp/bitstream/123456789/...were alleged to have been preparing to commit dacoity. The police are said to