Mohan M. Shantana Goudar, J.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.

By the impugned judgment, the trial Court convicted accused Nos. 2, 4, 5, 6, 7, 8 and 10 for the offence punishable under sections 395 IPC and sentenced them to undergo imprisonment for five years and to pay fine of Rs. 15,000/- with default clause.

Before proceeding further, it is relevant to note that case against accused Nos. 1 and 3 was split up, inasmuch as, they absconded after framing of charges against them by the trial Court. During the course of trial, accused No. 9 died, thus the trial as against him abated. Accordingly, the trail proceeded only against respondent Nos. 2, 4, 5, 6, 7, 8 and 19 and all of them are convicted.

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. In order to prove its case, the prosecution in all examined 22 witnesses and got marked 39 exhibits and 11 material objects. On behalf of the defence, three witnesses were examined and one document was got marked. As aforementioned, the trial Court on evaluation of the material on record convicted accused Nos. 2, 4, 5, 6, 7, 8 and 10 for the offence punishable under section 395 IPC.

4. 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.

Per-contra, learned Government Pleader submits that the sentence imposed on the convicted accused is on the lower side, inasmuch as, the accused have committed offence in the midnight; the accused have threatened PWs-16 and 17 with dire consequences of taking away their life and threw them in a ditch.

5. Among 22 witnesses, PWs-1 to 13 have not supported the case of the prosecution. All of them have turned hostile. Their evidence is of no help to the case of the prosecution or to the defence. PWs-14 and 15 are the police constables who participated in the investigation at different levels.

PWs-16 and 17 are the victims. Among them, PW-16 is the owner of the lorry, PW-17 is the driver of the lorry.

PW-17 has lodged the first information as per Ex-P10, based on which, crime came to be registered. Both of them have supported the case of the prosecution.

PW-18 is the Taluka Executive Magistrate. He conducted the test identification parade in the jail-premises at Holenarsipura police station. Exs-P11 to P24 are the test identification parade reports.

PW-19 is the Doctor, who examined and treated injured PW-16 and 17. Exs-P25 and 26 are the wound certificates. The wound certificates not only reveal that both the victims have suffered simple injuries, but also the history of the incident in question.

PW-20 is the PSI of Huliyurdurga police station. Initially, as aforementioned, PWs-16 and 17 with the help of passersby went to Huliyurdurga police station and reported about the incident to PW-20. The Sub-inspector i.e., PW-20 brought PWs-16 and 17 to Holinarsipura police station since offence was committed within the jurisdiction of Holenarasipura police station.

PW-21 is the PSI. He received the complaint filed by PW-17 and registered Crime No. 143/2006. He also conducted part of the investigation.

PW-22 is the Investigating Officer, who completed the investigation and laid the charge-sheet.

DWs-1, 2 and 3 are accused Nos. 2, 5 and 10 respectively. PWs-1 and 3 have practically pleaded alibi. PW-2 has produced certificate as per Ex-D1 and contended that he was juvenile during the relevant time.

6. Case of the prosecution mainly depends on the evidence of ocular testimony of P.Ws. 16 and 17 and the evidence of the Taluka Executive Magistrate-P.W. 18 as well as the doctor-P.W. 19, who treated the victims.

As aforementioned, the first information came to be lodged by P.W. 17 wherein it is specified by the complainant that about 7 (seven) persons came in a Maruthi Omni and waylaid the tanker lorry which was being driven by P.W. 17. The first information further reveals that all such seven persons entered the lorry from both the doors; P.Ws. 16 and 17 were fisted and were assaulted by the said persons; they also threatened P.Ws. 16 and 17 with dire consequences by showing the knife, revolver, etc; P.Ws. 16 and 17 were tied tightly and their faces were covered; their mouths were gagged with clothes; consequently, P.Ws. 16 and 17 could not cry out; thereafter, P.Ws. 16 and 17 were taken by such persons in Maruthi Omni for about 3 to 4 hours and thereafter they were thrown out of the said vehicle, which means that P.Ws. 16 and 17 travelled about 3 to 4 hours leaving the tanker lorry at the place wherein the accused waylaid the lorry and assaulted them.

These facts as found in the complaint at Ex. P10 are supported by P.Ws. 16 and 17. P.W. 17 has reiterated in his evidence that seven persons waylaid the tanker lorry by threatening P.W. 17 that P.Ws. 16 and 17 are carrying spirit and brown sugar in the lorry and they want to check the same; such seven persons posed themselves as Sales Tax Authorities; P.W. 17 stopped the lorry and at that point of time, all the seven persons boarded the lorry holding the knives and revolver and thereafter all such persons assaulted them, tied their hands and legs, covered faces and gagged their mouth; at about 7.30 a.m. on the next date of the incident, i.e., on 12.8.2006 they were thrown out from Maruthi Omni in which they were carried by such persons; with the help of villagers of that place, P.Ws. 16 and 17 were able to get themselves released from the clothes and ropes with which they were tied. P.W. 17 has also deposed that he went to prison premises for identification of the accused. According to him, he has identified accused Nos. 1, 4 and 6 in Test Identification parade. Curiously nothing is found in his examination-in-chief that he identified all the accused as the persons who were involved in the incident in question.

7. The evidence of P.W. 17 is further supported by P.W. 16 who is the owner of the lorry. He has also deposed that P.W. 17 was driving the lorry and that he was sleeping in the cabin; at that point of time, 6 to 7 persons waylaid the lorry and boarded inside by threatening them with dire consequences. P.W. 16 has identified accused Nos. 4 and 5 and another person (who is not arrayed as accused) from among the accused before the Court. Except these two persons, he has not identified any of the other accused in the Court Hall. He was subjected to Test Identification parade. He has deposed that he has identified accused No. 1 and certain others in Test Identification parade.

We find that the evidence of P.Ws. 16 and 17 is consistent, cogent and reliable. Both of them have deposed about the complicity of accused. Their version is consistent with regard to time and place of the offence and the manner in which it has taken place. Their version is supported by the contents of the complaint at Ex. P10.

However, it is merely clear from the evidence of P.Ws. 16 and 17 that 6 to 7 persons have waylaid the lorry and boarded the said lorry and not 10 persons as alleged by the prosecution. Though the eye witnesses (PWs. 16 and 17) who are the victims have deposed that only 6 to 7 persons have waylaid the lorry and participated in the crime, curiously the Investigating Officer has arrayed 10 persons as the accused. Absolutely, no valid reasons are forthcoming for the same. However, the case of the prosecution cannot be discarded merely because of such a fault committed by the Investigating Officer. The duty lies on the Court to eschew chaff from the grain. Only such accused who are actually involved in the incident if can be pointed out by the evidence on record, can be convicted. Therefore, we have meticulously perused the evidence of these witnesses and compared the same along with the evidence of Taluka Executive Magistrate and the doctor.

8. P.W. 19, the doctor who treated P.Ws. 16 and 17 has deposed that P.Ws. 16 and 17 were brought to the hospital by Sub-Inspector of Police at about 10.40 p.m. on 12.8.2006 with a history of the incident that a group of seven persons waylaid the lorry, assaulted them and robbed cash; P.Ws. 16 and 17 had sustained simple injuries; Exs. P25 and P26 are the wound certificates of P.Ws. 16 and 17 respectively. Even from the evidence of the doctor, it is clear that P.Ws. 16 and 17 (victims) were on the scene of offence and robbed by seven persons.

9. Taluka Executive Magistrate is examined as P.W. 18. He has deposed about conducting of Test Identification parade. According to him, P.W. 16 identified seven persons and whereas P.W. 17 identified all the accused except two. The reports of Test Identification parade are at Exs. P11 to P24. It is clear from the evidence of P.W. 18 that sufficient safeguards are taken by him while conducting Test Identification parade. It has come in his evidence that none of the-Police Officers or the relatives of P.Ws. 16 and 17 were present at the time of conducting the Test Identification parade; that the accused as well as other persons were shuffled each time at the time of identification; sufficient care was taken by P.W. 18 to see that the persons having the same age, height, colour, etc., were made to stand along with the accused. However, the reports of Test Identification parade disclose that P.Ws. 16 and 17 have not identified accused Nos. 2 and 7 at all during the Test Identification parade. It is also evident from the said reports and the evidence of P.W. 18-Taluka Executive Magistrate that accused Nos. 8 and 10 were not subjected to Test Identification parade and they were not also identified by P.Ws. 16 and 17 in the Court. Thus, it is clear that identification of accused Nos. 2, 7, 8 and 10 is not proved beyond reasonable doubt. They were neither identified before the Court properly nor were identified in the proceedings conducted by P.W. 18 relating to Test Identification parade. As aforementioned, accused Nos. 8 and 10 were not subjected to Test Identification parade and were also not identified by the eye witnesses in the Court.

10. Added to it, it is the case of the prosecution that the recovery of tanker lorry was made at the instance of accused No. 1. However, it is further case of the prosecution that two mobile phones were seized from accused Nos. 1 and 2. Firstly, there is nothing on record to show that in whose name the SIM cards of those two mobile phones were standing. No witness either from BSNL or airtel, etc., is examined to prove the ownership of those SIM cards of mobile phones. More over, what is produced is only one mobile phone and not two mobile phones. There is no material as to how and why another mobile phone is missing during the course of investigation. P.Ws. 4, 5 and 6 are the witnesses for Ex. P4, the mahazar relating to seizure of mobile phones and all of them have turned hostile. Except seizure panchanama at Ex. P4 and the evidence of Investigating Officer, no other reliable material is found to prove the seizure of mobile phones. Since one of the mobile phones is not placed on record and as no evidence is placed before the Court by the Investigating Officer to show the name of owner of SIM card of the mobile phone so seized, in our considered opinion, the aspect of seizure of mobile phone, fails.

Thus, virtually, there is no material worth believing as against accused Nos. 2, 7, 8 and 10. It appears, those persons are innocent. We say so because even according to the eye witnesses, viz., P.Ws. 16 and 17, only 6 to 7 persons had come to the spot and were involved in the incident. Therefore, out of 10 accused arrayed before the Court, the aforementioned four persons need to be exonerated. The other six persons must have come to the spot and committed the offence.

11. As aforementioned, case against accused Nos. 1 and 3 is split up inasmuch as they are absconding. The trial as against them has not yet held. The case against accused No. 9 stood abated in view of his death. Since the prosecution has not proved its case beyond reasonable doubt as against accused Nos. 2, 7, 8 and 10, (as mentioned supra) it can safely be concluded that the case is proved by the prosecution as against accused Nos. 4, 5 and 6. As aforementioned, two other accused (accused Nos. 1 and 3) are absconding.

From the material on record, we find that the evidence pertaining to robbing cash of Rs. 700/- is also reliable. As aforementioned, P.Ws. 16 and 17 were made to part away from the tanker lorry on the night of 12.8.2006. The lorry was recovered only on 22.8.2006 at the out skirts of Mysore at the instance of accused No. 1. Thus, it is a clear case of dacoity. However, it is relevant to note that though it is the case of the prosecution that accused have taken out and robbed 3270 ltrs. of diesel from the tanker lorry, no material worth believing is placed on record by the prosecution. The recovery panchanama at Ex. P3 relating to recovery of lorry also nowhere discloses that 3270 ltrs. of diesel is missing from the lorry. Except the bald statement of P.Ws. 16 before the Court as mentioned supra, no reliable material is placed by the prosecution relating to the said aspect of the matter Therefore, robbing of 3270 ltrs. of diesel is not proved by the prosecution.

Having regard to the totality of the facts and circumstances, in our considered opinion, interest of justice will be met if accused Nos. 4, 5 and 6 are convicted under Section 395 IPC. Since the trial against other two accused (accused Nos. 1 and 3) is yet to be tried, and as the case as against accused No. 9 is abated in view of his death, we find that the offence committed by accused Nos. 4, 5 and 6 squarely falls under the offence of dacoity and not offence of robbery. However, having regard to the fact that the convicted accused had robbed Rs. 700/- from P.Ws. 16 and 17 and-as the lorry is recovered at the instance of accused No. 1 after 10 days leniency may be shown as against accused Nos. 4, 5 and 6.

At this stage, Sri Gopalasway, learned advocate appearing on behalf of the accused submits that accused Nos. 4, 5 and 6 are stated to be receivers of petrol, diesel and actually they are not the dacoits. Be that as it may, having regard to the totality of the facts and circumstances of the case, the following order is made:-

(i) Accused Nos. 4, 5 and 6, viz., Girish, S/o. Muthanna, Faridkhan @ Babhu, S/o. Ameerkhan and M. Lawrence @ Lali S/o. Marijoseph Anandan are convicted for the offence punishable under Section 395 of IPC. It is made clear that the absconding accused i.e., accused Nos. 1 and 2 shall be tried subsequently after their arrest as per law for the said offence.

ii) Accused Nos. 4, 5 and 6 shall be sentenced to undergo imprisonment for a period of one year and each of them to pay fine of Rs. 15,000/- (Rupees fifteen thousand only). In default of payment of fine amount, they shall undergo further imprisonment of one year.

iii) In case of recovery of fine amount, 90% of the fine so recovered shall be paid to P.Ws. 16 and 17, namely, Sri Vittal Shetty S/o. late Narayanappa Shetty and Sri Nagesh Bolangadi S/o. Babu Bolangadi, who sustained injuries in the incident in question.

iv) The period of imprisonment already undergone by the accused Nos. 4, 5 and 6 shall be given set off under Section 428 of Cr.P.C.

v) The judgment and order of conviction dated 17.7.2010 convicting accused Nos. 2, 7, 8 and 10 (Shivakumar, V. Mohankumar @ Kumar, Raja and Puttaswamy @ Kalla Police) stands set aside. They are acquitted of the charges levelled against them.

If the fine amount is already deposited by accused Nos. 2, 7, 8 and 10, the same shall be refunded to them.

Crl. A. No. 755 filed by the accused is allowed-in-part.

Crl. A. No. 37/2011 filed by the State stands dismissed