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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH

DATED THIS THE 1ST DAY OF MARCH, 2014

BEFORE

THE HONOURABLE MR. JUSTICE K.N. PHANEENDRA

CRIMINAL APPEAL NO. 100005/2014

BETWEEN:

1. RAMESH S/O. GIDDAPPA WADDAR,AGED ABOUT 29 YEARS,OCC: LORRY MAINTENANCE,R/O. RAMALINGANA GUDI,CHITRAKERI STREET,

HOSPET.(UNDERGOING SENTENCE).

2. BABA PATEL S/O. MOHAMMEDPATEL BIRADAR,AGED ABOUT 24 YEARS,

OCC: DRIVER, R/O. GUDNAL,MUDDEBIHAL TALUK,DISTRICT : BIJAPUR,AT PRESENT R.T.O. OFFICE,BTR NAGAR, HOSPET.,(UNDERGOING SENTENCE).

…APPELLANTS

(BY SRIYUTHS VIJAY S. CHINIWAR & MAHIBOOB S.HALLI, ADVOCATES)

AND:

THE STATE OF MUNIRABAD POLICE,

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REP. BY STATE PUBLIC PROSECUTOR,DHARWAD.

…RESPONDENT

(BY SRI. V.M. BANAKAR, ADDL. STATE PUBLICPROSECUTOR)

THIS CRIMINAL APPEAL IS FILED UNDER SECTION374(2) OF CODE OF CRIMINAL PROCEDURE, PRAYING TO

ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENTAND ORDER OF CONVICTION PASSED BY LEARNEDDISTRICT AND SESSIONS JUDGE, KOPPAL IN S.C.NO.9/2013 DATED 11.12.2013, CONVICTING THEAPPELLANTS FOR THE OFFENCE PUNISHABLE UNDERSECTION 392 OF I.P.C. AND ETC.

I.A. NO.1/2014 IS FILED FOR SUSPENSION OFSENTENCE.

THIS CRIMINAL APPEAL A/W. I.A. COMING ON FORDICTATING JUDGMENT THIS DAY, THE COURT

DELIVERED THE FOLLOWING:

JUDGMENT

The appellants are accused Nos.1 and 2 in S.C.

No.9/2013 on the file of Sessions Judge, Koppal, have

preferred this appeal against the judgment of conviction and

sentence passed by Sessions convicting and sentencing the

appellants to undergo simple imprisonment for a period of

10 years and to pay fine of Rs.5,000/- for the offence

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punishable under Section 392 of the Indian Penal Code,

1860 (hereinafter referred to as ‘I.P.C.’ for brevity)

2. Heard arguments of learned counsel for the

appellants and learned State Public Prosecutor for

respondent.

3. Learned counsel for the appellants strenuously

contends that except the Investigation Officer, all the

prosecution witnesses examined by prosecution have turned

hostile. The learned Sessions Judge by solely relying upon

the evidence of Investigation Officer with regard to recovery

of some articles at the instance of accused Nos.1 and 2 has

convicted the accused, which is illegal and is not tenable

under law.

4. It is also contended by the learned counsel for

appellants that the discrepancies in the evidence of

Investigation Officer has made it untrustworthy for

acceptance. Though the prosecution has failed to prove the

guilt of accused beyond all reasonable doubt the trial Court

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has wrongly convicted appellants and same is liable to be

interfered by this Court. The learned counsel further

contended that the complainant examined before trial Court

as P.W.1 has not even identified the accused persons before

the Court nor he has implicated the accused persons into

crime and none of the pancha witnesses with regard to

recovery of incriminating articles at the instance of accused

Nos.1 and 2 have supported the case of prosecution.

Therefore, for all these reasons, the accused persons are

entitled to be acquitted and the trial Court has committed

serious error in appreciating the evidence on record. Hence,

the appeals deserve to be allowed.

5. Per contra, learned Additional State Public

Prosecutor argued before the Court that though there is no

evidence from the independent witnesses, nevertheless, the

evidence of Investigation Officer is trustworthy for

acceptance. On appreciation of the evidence on record, if

the Court comes to a conclusion that the evidence of

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Investigation Officer is trustworthy for acceptance merely

because he is a Police Officer, his evidence cannot be

doubted or rejected on that particular ground. This Court

has to dismiss the appeal confirming the orders of trial

Court. He further contends that there are ample materials

to show and connect the accused persons to the crime as the

incriminating articles like mobile phone which was the

subject matter of theft from the custody of P.W.1 and also

the lorry recovered at the instance of accused Nos.1 and 2

and further the recovery of sponge iron ore at the instance of

accused No.1 clearly discloses that they have committed an

offence punishable under Section 392 of I.P.C. Even though

there are some discrepancies in the evidence of prosecution

witnesses, the evidence of Investigation Officer can be

believed.

6. After hearing both sides the point that arises for my

consideration is as under:

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“ Whether the appellants have made out any

reasonable or substantial ground to interfere with

the judgment of conviction and sentence passed by

the trial Court?”

7. Before adverting to the evidence of prosecution

witnesses recorded in this case, it is just and necessary to

have a cursory look at the factual matrix of this case. As per

the complaint lodged by C.W.1 - Channaiah, the Munirabad

Police have registered a case in Crime No.231/2012 for the

offence punishable under Section 384 of I.P.C. Thereafter

they have investigated the matter and submitted charge

sheet for the offence under Section 395 of I.P.C. It is the

allegation that complainant by name Channayya was the

driver of the vehicle bearing its registration No.KA-36/7411,

which belonged to P.W.9 Vikas S/o. Vinod Thather. It is the

case that complainant on 14.10.2012 after loading the

vehicle with sponge iron weighing about 17.530 tonnes was

proceeding from Dhanapur to Kottur. When the lorry

reached near Simla cross at 10.00 p.m. on NH-13 near

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Tungabhadra dam three persons came in a motor cycle from

behind and intercepted the lorry and took the complainant

on their motor cycle, on the pretext that he has caused some

accident and the injured has been admitted to hospital, they

also snatched the lorry key, mobile and an amount of

Rs.2,000/- from him. Thereafter two persons took the

complainant near a canal and left the complainant with one

person and another person went away from the said place.

On the pretext of bringing some food to complainant that

person also left the place. Even though complainant was

waiting in the said place, none of them returned. Thereafter,

complainant by catching a bus came near Simla cross,

where his vehicle was intercepted by accused persons, and

found his lorry missing. On these allegations, a complainant

came to be filed after bringing this fact to the notice of lorry

owner. During the course of investigation, police have

received a credible information that accused Nos.1 and 2

were talking to each other that they have to secure two

lorries for the purpose of lifting iron ore from that particular

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place. On the basis of this information, police have arrested

accused Nos.1 and 2 recorded their voluntary statements

and proceeded with the investigation. At the instance of

accused Nos.1 and 2, a lorry belonging to P.W.9 and mobile

belonging to complainant were seized on 15.10.2012. At the

instance of accused Nos.1 and 2 and some other accused,

police have also seized the following materials, which are

marked at M.O.Nos.1 to 16 in S.C. No.21/2013 :

1. One Birla Company tyre.

2. One Apollo Company tyre – AMAR DLX

3. One Apollo Company tyre – X7-7

4. One MRF Company tyre.

5. Four Lorry tyre disks.

6. One MRF Company tyre.

7. One lorry tyre disk.

8. Hero Honda motor cycle bearing its Reg. No.KA-48E/1575.

9. Another Hero Honda motor cycle bearing itsReg. No.KA-37/S-3547.

10. One MRF Company tyre.

11. One Birla Company tyre.

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12. One Lorry disk.

13. One Lorry disk.

8. After recovering all these materials, the

Investigation Officer has filed charge sheet. The accused

persons were arrested and produced before the Court. Since

the date of their arrest, accused persons are in judicial

custody. The learned Sessions Judge has framed charges

against the accused persons and also recorded the plea.

Earlier there were five accused persons, out of them,

accused No.3 was juvenile. In order to bring home the guilt

of accused persons, the prosecution has examined P.Ws.1 to

9, got marked Exs.P-1 to P-10 and one material object has

been marked at M.O. No.1. The accused persons were also

examined under Section 313 of Code of Criminal Procedure,

1973 (hereinafter referred to as ‘Cr.P.C.’ for brevity).

Ultimately after appreciating the materials on record,

accused Nos.1 and 2 were found guilty by the trial Court

and accused Nos. 4 and 5 were acquitted.

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9. As rightly argued by learned counsel for appellants,

none of the witnesses including the complainant have

supported the case of the prosecution. It appears that the

evidence of Investigation Officer has been solely relied upon

by trial Court.

10. P.W.1 Channayya in his examination-in-chief has

reiterated the complaint averments. Even though he has

stated in the complaint that he can identify the culprits, he

has not done so before the Court. No Identification Parade

had been conducted, nor he has earlier identified any one of

the accused persons before the Court or at the time of

evidence. On the other hand, he has specifically stated

that, at no point of time he has seen the accused persons.

He thought that somebody have taken away his lorry. He

has further stated that the bills, which were raised for

transporting sponge iron in the lorry were kept underneath

of driver’s seat in the lorry. But during the course of cross-

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examination, he has identified the mobile, which was

recovered from the accused Nos.1 and 2.

11. According to the prosecution, P.W.3

Jeevankumar and P.W.4 Prabhu are the pancha witnesses

for seizure of M.O. No.1 under Ex.P-6. However, the said

pancha witnesses have turned hostile to the case of

prosecution by simply stating that their signatures were

obtained by police in police station itself and no material

objects has been recovered in their presence. During the

course of cross-examination, whole contents of Ex.P-6 was

put to the mouth of these witnesses, but nothing could be

elicited from them. P.W.2 Manjunath and PW-5 Ramu are

the witnesses for seizure of lorry on 15.10.2012 under Ex.P-

4. These two witnesses have totally turned hostile. In the

cross-examination nothing has been elicited with regard to

seizure of said lorry. P.W.6 M.B. Inayat, Police Constable,

has translated the information of complainant. P.W.7

Vishwanath is the prime witness to prosecution case, who

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has conducted the investigation. P.W.8 Venkatappa, C.P.I.,

has submitted charge sheet and he is not a material witness.

P.W.9 Vikas S/o. Vinod Thather, is the owner of lorry in

which sponge iron was being transported. Therefore, except

the evidence of Investigation Officer, none of the witnesses

have supported the prosecution case. Now the question is,

whether the trial Court is right in believing the version of

Investigation Officer in order to convict the accused Nos.1

and 2 for the offence punishable under Section 392 of I.P.C.

The trial Court has also come to the conclusion that none of

the witnesses have supported prosecution case. However,

the learned Sessions Judge recorded the conviction by

relying upon a decision reported in –

AIR 2013 Supreme Court 3344 between Pramod

Kumar v. State (GNCT) of Delhi.

In the said judgment, the Hon’ble Supreme Court has

held that –

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“The witnesses from the department of police

cannot per se be said to be untruthful or

unreliable. It would depend upon the veracity,

credibility and unimpeachability of their testimony.

There is no absolute command of law that the

police officers cannot be cited as witnesses and

their testimony should always be treated with

suspicion. Ordinarily, the public at large show

their disinclination to come forward to become

witnesses. If the testimony of the police officer is

found to be reliable and trust worthy, the Court

can definitely act upon the same. If, in the course

of scrutinizing the evidence, the court finds the

evidence of the police officer as unreliable and

untrustworthy, the court may disbelieve him but it

should not do so solely on the presumption that a

witness from the department of police should be

viewed with distrust. This is also based on the

principle that quality of the evidence weighs over

the quantity of evidence.”

12. Basing on this decision, the evidence of

Investigation Officer has been believed by the trial Court.

But that disturbs this Court is that though the trial Court

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has believed the Investigation Officer, but failed to discuss

the evidence of Investigation Officer on the touch stone of

arguments or the defence taken up by the accused that the

mahazar drawn by Police Officer was in the police station

itself as none of the witnesses have supported, the

uncorroborated testimony of Investigation Officer should not

be believed. When such a plea has been taken by accused,

it is incumbent upon the Court to discuss the evidence of

Investigation Officer and find out whether his evidence can

be relied upon beyond all reasonable doubt and it is so

trustworthy and credible to record a conviction of judgment.

Therefore, there is a burden on the part of this Court to find

out that, in view of the above decision of Hon’ble Supreme

Court, whether the evidence of Investigation Officer can be

made a sole basis for confirming the judgment of trial Court.

13. Before adverting to the evidence of Investigation

Officer, it is worth to note here some of the rulings cited by

learned counsel for appellants. In a case reported in –

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2013 (1) Kar. L. J. 591 (SC) between Govindaraju

Alias Govinda v. State by Sriramapuram Police Station

and Another.

14. The relevant portion of judgment is at paragraphs

15 and 16, wherein it is said that -

“It cannot be stated as a rule that a Police

Officer can or cannot be a sole eye-witness in a

criminal case. It will always depend upon the

facts of a given case. if the testimony of such a

witness is reliable, trustworthy, cogent and duly

corroborated by other witnesses or admissible

evidences, then the statement of such witness

cannot be discarded only on the ground that he

is a Police Officer and may have some interest in

success of the case. It is only when his interest

in the success of the case is motivated by

overzealousness to an extent of his involving

innocent people; in that event, no credibility can

be attached to the statement of such witness.”

In another ruling, which is reported in -

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2013 (2) Kar. L.J. 638 between Prabhu and Others

v. State by Rural Police Station, Bidar Rural.

15. In the said judgement the Hon’ble Supreme

Court has held that -

A social evil and offence i.e., Section 395 of I.P.C.

dacoity out of zeal the trial Court convicted the

accused. Such convictions bend the rule of law.

Complainant himself turned hostile; other

witnesses not supported prosecution – Held, it

could not be said, prosecution proved its case

beyond reasonable doubt, thus all appellants are

acquitted and appeals are allowed.”

16. What has been observed in this particular case is

that,

“ The Court below having laboured to find

a case for the prosecution by choosing to quote

certain statements of those witnesses, is hardly

the manner in which it could be said that the

prosecution had established its case beyond all

reasonable doubt. The zeal of the Court below to

bring home the charges against the accused who

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may be dangerous dacoits, would bend the rule

of law which cannot be permitted.”

17. The next ruling cited by learned counsel for

appellants is reported in –

AIR 2011 Supreme Court 2271 between State of

Rajasthan v. Talevar and Another.

In the said judgment, the Hon’ble Supreme Court has

held at paragraph 7.7 that –

“Thus, the law on this issue can be

summarized to the effect that where only

evidence against the accused is recovery of

stolen properties, then although the

circumstances may indicate that the theft and

murder might have been committed at the same

time, it is not safe to draw an inference that the

person in possession of the stolen property had

committed the murder. It also depends on the

nature of the property so recovered, whether it

was likely to pass readily from hand to hand.

Suspicion should not take the place of proof.”

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The last judgment cited by learned counsel for

appellants is reported in –

2011 (2) S.C.D. (Cri.) 536 between Mustkeem @

Sirajudeen vs. State of Rajasthan.

18. The Hon’ble Supreme Court has held in the said

judgment that,

“the inference of guilt in circumstantial evidence

case can be justified only when all the

incriminating facts and circumstances are found to

be incompatible with the innocence of the accused

or the guilt of any other person. Discovery of the

material object, burden lies on the prosecution to

establish a close link between discovery of the

material objects and its use in the commission of

the offence. What is admissible under Section 27

of the Act is the information leading to discovery

and not any opinion formed on it by the

prosecution. It was also held that, the witnesses

declared hostile, it would be not sufficient to hold

accused persons guilty for commission of the

offence”.

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The last decision cited by learned counsel for

appellants is reported in –

(2012) 2 Supreme Court Cases 399 between Madhu

vs. State of Kerala.

19. The Hon’ble Supreme Court has held in the said

judgment that –

“Conviction was recorded with a

consequence of recovery of ornaments worn by

deceased, in the said case pursuant to

information furnished by accused and factum of

their having been sighted close to the place of

occurrence at or around the time of occurrence –

Held, evidence produced by prosecution does not

in any way establish guilt of accused.”

20. The sum and substance of the above said rulings

as to my perception is that the evidence of the witnesses

even though they turn hostile, but, there must be some

corroboration from the evidence of the witnesses in order to

link the recovery of any articles to the accused persons. The

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Investigation Officer, though a sole witness, should connect

the accused persons to the incriminating articles. His

evidence should not be discarded only on the ground that he

is the Investigation Officer and he is always interested in the

success of the prosecution. Therefore, he should not be

dubbed as an interested witness, on that particular ground

if his evidence is otherwise trustworthy and credible for

acceptance. However, the Court also should bear in mind

the Investigating Officers so far as the criminal cases are

concerned, they are naturally interested in the success of

the prosecution. The implanting of the witnesses, creating of

the evidence against the accused persons, collecting

materials against the accused persons, with over

enthusiastic manner can’t be ruled out, but the evidence

should be tested in the touch stone of above rulings to

ascertain whether the Investigating Officer is in any manner

not reliable and his evidence cannot be made use of as a sole

basis for conviction of the accused persons. In this

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background, the evidence of the Investigating Officer in this

case play a dominant role.

21. Let me first go through the evidence of the

Investigating Officer – PW-7 and refer his evidence with other

materials on record to find out whether his evidence is

totally whisper the acceptance.

22. PW-7 – Vishwanath has stated in his evidence

that the complainant has lodged a complaint on 15.10.2012

at 12.00 Noon and he registered a case in Crime No.

231/2012 under Section 384 of I.P.C. and went to the spot

and conducted the spot mahazar as per Ex.P5. But the

witnesses for panchanama in fact have totally turned hostile

to the prosecution. Nobody has supported. It is further

deposed that on the same day they went to a place called

Kasinakandi at about 3.10 p.m. where they found a lorry

bearing Registration No. KA-36/7411 parked and the said

lorry was recovered under Ex.P4. This was also not

supported by any of the witnesses including the

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complainant, who never stated about the recovery of this

lorry. So, this clearly go to show that this lorry was not

recovered at the instance of accused No.1 even before

arresting of accused this particular lorry was recovered. It is

further stated that on 18.10.2012 on receiving credible

information that two persons were searching for two lorries

for the purpose of shifting some materials. On receiving the

said information, this witness went near Hirebaganala

Village and arrested the accused Nos.1 and 2 and recorded

their voluntary statements and on the basis of their

voluntary statements, he secured the presence of two panch

witnesses – Prabhu and Jeevan Kumar and recovered one

mobile phone and also seized document – Ex.P3 pertaining

to the lorry and iron ore at the instance of accused No.2,

here also witnesses turned hostile. Here itself, it is worth to

refer the evidence of PW-1 – Mr. Channaiah with reference to

mobile phone. The complainant has not at all produced any

material to show that this mobile phone belongs to him. The

Investigating Officer also not made any effort to secure any

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documents from the complainant to show that he is the

owner of the said mobile phone.

23. It is further deposed by this Investigating Officer

that the accused Nos.1 and 2 took this witness and panch

witnesses and on the basis of their statements he has also

recovered two loads of sponge iron which was dumped near

Kasanakandi Village near a hillock. But very peculiarly

these particular sponge iron has not been marked before the

Court nor any sample has been produced before the Court.

Further, the evidence of PW-9 Mr. Vikas, which shows that

he has taken the delivery of sponge iron to his custody by

the order of the Court. The important aspect to be noted

here is that according to the Investigating Officer, this

sponge iron was seized near the Kasanakandi Village hillock.

The panch witnesses so far as this aspect is concerned,

totally turned hostile. On the other hand, some doubt is

created with regard to the seizure of the iron from the

evidence of PW-9, who has stated in his examination-in-chief

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itself that when he took the lorry which was parked near the

Police Station, at that time the sponge iron was also there in

the lorry. How this sponge iron came into this lorry is

nowhere explained by the Investigating Officer. Therefore,

the evidence of the Investigating Officer so far as this

recovery is concerned and how this sponge iron again came

back to the lorry is a doubtful circumstance, not been

explained by any body.

24. Apart from the above, it is the bounden duty of

the Investigating Officer to conduct the identification period

of the accused persons. If the accused persons are totally

unknown and strangers to the witnesses to the prosecution,

in this particular case PW-1 who is the complainant who

saw the accused persons i.e. particularly accused Nos.1 and

2 and other accused and in the complaint in Ex.P1 he has

categorically stated that if the accused persons are shown to

him he can identify them and they were all aged between 25

to 26 years and one person was 40 to 45 years and another

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person 18 to 19 years old. When such being the case, the

non-conducting of the identification period is also a serious

lapse and fault on the part of the Investigating Officer. Not

only that he has not got the test identification period

conducted but in the examination-in-chief itself he states at

paragraph 13 that after arrest of the accused Nos.1 and 2 he

secured the presence of the complainant CW-1 – Channaiah

and showed the accused persons to the said witness. This is

totally an unknown procedure under criminal jurisprudence.

Section 54-A of the Criminal Procedure Code defines, the

procedure to be followed by the Investigating Officer for the

purpose of conducting identification period, which reads

thus :

“54A. Identification of person arrested.—

Where a person is arrested on a charge of

committing an offence and his identification by

any other person or persons is considered

necessary for the purpose of investigation of such

offence, the Court, having jurisdiction, may on the

request of the officer in charge of a police station,

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direct the person so arrested to subject himself to

identification by any person or persons in such

manner as the Court may deem fit”.

In this particular case, the above said provision has not been

followed by the Investigating Officer for the purpose of

getting the accused persons identified by the important

witness. Apart from this, the Karnataka Police Manual also

at Chapter XXXIII para 1362 cast certain responsibility on

the Investigating Officer, which reads as follows :

“1362. The following are the salient points to be

borne in mind by Police Officers arranging

identification parades.—

(1) Warn the accused person that he will be put up

for a parade and he could keep himself veiled;

(2) Secure the services of a Magistrate for holding

an identification parade; if this is not possible,

secure two or more respectable and

independent persons of the locality to hold the

parade; do not select persons already known

to the identifying witnesses to stand along

with the suspects in the parade; arrange for

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the identification parade immediately an

accused is arrested. There should be no delay.

(3) When one accused is arrested in a case in

which more than one accused is required to be

identified, do not postpone the parade of the

arrested accused, till the others are secured.

As each accused is arrested, go on arranging

for the parade.

(4) Other persons participating in the parade

should be of the same build, age, dress and

appearance as the suspects;

(5) Maintain a minimum proportion of 1:5 and a

maximum proportion of 1:10; distribute the

accused among others. They should not be

made to stand together;

(6) Keep the accused out of the view of the

witnesses and take precautions to prevent

their being seen by others from the time of their

arrest, if they are to be put up for identification

parade subsequently;

(7) Shuffle the persons in the parade after

identification by each witness and make a

record of having done so in the proceedings;

(8) In respect of each accused, a separate

identification parade should be held;

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(9) When several accused persons are required to

be identified, the innocent persons, mixed up

with one accused at one parade, should not be

mixed up with another accused at a second

parade. They should be changed, with every

change of an accused person”.

25. In view of the above said guidelines, the

Investigating Officer must conduct the test identification

period of the accused persons who are strangers to the

witnesses to the prosecution. Why this particular aspect

has not been done, why the complainant was secured to the

Police Station and show the accused persons to the

complainant is not explained by the Investigating Officer.

This particular act or attitude of the Investigating Officer

shows that for the purpose of his convenience he can

conveniently overcome the statutory principles and he can

conveniently throw the legal principles to the wind. When

such a lapse is there on the part of the Investigating Officer,

how the evidence of such Officer could be believed, so far as

the other aspect with regard to the recovery of the

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incriminating articles at the instance of accused Nos.1 and 2

if the said evidence of the Investigating Officer is not

corroborated.

26. In the cross-examination of the Investigating

Officer, it is suggested that he never gone to any place nor

conducted any mahazar as stated by him in the

examination-in-chief and all the mahazars were drawn in

the Police Station. In fact, this suggestion is corroborated by

the evidence of the other prosecution witnesses. In the

course of cross-examination, it is also suggested that the

accused persons are the regular drivers and they have been

driving their lorry in National Highway No.63 and 13. In

fact, this particular suggestion has been admitted by this

witnesses and as well as PW-8 – Venkatappa Naika, who laid

the charge sheet against the accused persons after the

investigation. Therefore, it goes without saying that these

accused Nos.1 and 2 were very well known to PW-7 and PW-

8 even much earlier to the incident. Therefore, when CW-1

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has turned hostile and that other mahazar witnesses have

totally turned hostile to the prosecution. In the event where

the Police could not able to trace the real accused persons,

as accused Nos.1 and 2 have been known to the Police,

chances of false implication also cannot be ruled out. Under

the above said circumstances and in view of the Rulings of

the Apex Court as narrated above, in my opinion, though the

corroboration to the evidence of Investigating Officer is not

an absolute or imperative requirement, but depending upon

the facts and circumstances of the case, the Court has to

insist the corroboration to the evidence of the Investigating

Officer. When it is shown on the basis of the evidence that

the Investigating Officer can under certain circumstance

avoid the statutory principles and also conveniently build up

the case according to his interest in the case. It is not safe

to solely base his evidence to convict the accused.

27. Looking to the above said evidence, in this

particular case the non-conducting of Test Identification

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Period and also the accused being shown to the complainant

in the Police Station none of the witnesses supported the

case, shows that the Investigating Officer has avoided the

statutory principles and he has violated the natural way of

conducting the investigation. Therefore, in my opinion, the

evidence of such Investigating Officer cannot be made sole

basis for recording the Judgment of Conviction. Therefore,

the Trial Court has committed a serious error in

appreciating the evidence on record. As such, the judgment

of Trial Court requires to be interfered with. Hence, with

these observations, I answered the point formulated by me

in the Affirmative and proceed to pass the following Order :

The Judgment of conviction and sentence passed by

the Trial Court in S.C. No. 9/2013 on the file of the District

and Sessions Judge, Koppal is hereby set aside.

Consequently, accused Nos.1 and 2 are acquitted of the

charges levelled against them under Section 392 of I.P.C.

The accused are said to be in the Jail and they shall be set

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at liberty forthwith, if they are not required in any other

case.

If any fine amount is deposited by them, the same is

ordered to be refunded. The order of the trial Court so far it

relates to disposal of properties, stands undisturbed.

Office is hereby directed to intimate the trial Court

forthwith so as to enable the trial Court to send release

order to the concerned Jail Authorities for release of the

accused persons without any delay.

In view of the disposal of the appeal, I.A. 1/2014 does

not survive for consideration.

SD/-

JUDGE

hnm/Rbv