Venkatesha @ Chandra @ Krishna vs State of Karnataka

V.G. Sabhahit, J.—These two appeals arise out of and are directed against the Judgment of conviction and sentence passed in Sessions Case No. 65/2004 on the file of the 34th Additional City Civil and Sessions Judge and (Special Court), Central Prison Premises, Bangalore, wherein accused Nos. 1 to 3 therein have been found guilty of having committed the offence punishable u/s 395., IPC read with 397 IPC along with the absconding accused and they have been sentenced to undergo rigorous imprisonment for life for having committed the offence punishable u/s 395 IPC. Criminal Appeal No. 1407/2006 is filed by accused No. 1 in S.C. No. 65/2004 and Criminal Appeal No. 1202/2006 is filed by accused Nos. 2 and 3 in Sessions Case No. 65/2004.

The essential facts of the case leading up to these appeals with reference to the rank of the parties before the trial Court are as follows:

2.1 The Appellants herein - accused Nos. 1 to 3 in Sessions Case No. 65/2004 stood charge that they along with the absconding accused - Krishnudu, Chikkahanuma and Venkatesh @ Ramesh on the intervening night of 10/11.02.2000 between 12:30 a.m. to 1.00 a.m., being armed with deadly weapons, gained illegal entry into the house of PW.1 - Rahul Gowda (CW.1) and by assaulting PW.1 - Rahul Gowda (CW.1), CW.2 - Cheluvaiah, PW.2 - R.B. Seenappa (CW.3), PW.3 - Lakshmidevamma (CW.4) and PW.4 - Komala (CW.5), PW.5- Ramaiah (CW.7), committed dacoity of valuables viz., one gold finger ring from the person of CW.2 - Cheluvaiah, golden mangalya chain from the person of PW.3 - Smt. Lakshmidevamma and PW.4 - Komala worth Rs. 40,000/- and thereby, committed the offence punishable u/s 395 read with Section 397 of IPC.

2.2 It is the case of the prosecution that PW.1 - Rahul Gowda was living along with his mother Smt. Lakshmidevamma (PW.3); his father - Cheluvaiah, who died during the pendency of the trial; his elder sister -Komala (PW.4); his uncle - R.B. Seenappa (PW.2) and his relative - Bhagya. During the night of 10.02.2000, they all slept in their house situate in Sirivar after finishing their regular work at about 11 p.m. During the intervening night of 10/11:02.2000 at about 12:45 hours, some 5 to 6 unknown persons were found breaking the door of the house of PW.1 by hitting it with a size stone and subsequently, they trespassed into the house. Lakshmidevamma (PW.3), the mother of PW.1, got up and she was assaulted by the said persons with a club and on hearing the cry of PW.3 - Lakshmidevamma, others woke up and Seenappa - PW.2 came out of the room, where he was sleeping and he was assaulted with a chopper on his head and he sustained bleeding injury. Thereafter, Cheiuvaiah, the father of PW1, intervened and he was also assaulted with a chopper and the said persons took away the gold finger ring from his person. PW.1 and his elder sister - Komala were also assaulted with a chopper. They also snatched mangaiya chains, which were in the neck of his mother - Smt. Lakshmidevamma (PW.3) and Komala (PW.4) of the value of Rs. 40,000/-. When the neighbours started gathering on hearing the cry, the accused persons made good their escape from the house and while going, they assaulted Ramaiah (PW.5), the neighbour of PW.1 on his head with a club. The complainant has further stated that the injured persons were taken to the Hospital and the dacoits, who had entered their house were aged between 20 to 30 year and their height ranged between 5.4" to 5.6" and they were wearing half pant and banian. The accused persons remained in the house for about 15 minutes. The said complaint was registered on 11.02.2010 at 6:30 a.m.

2.3 PW.17 - C.S. Sathyanarayana has stated in his evidence that during the intervening night of 10/11-02-2000, he went to the Hebbur police station at about 3 a.m. and at that time, four injured persons came to the police station along with PW.1, who narrated the incident. Since PW.3 - Lakshmidevamma, Pw.4 - Komala, Cheluvaiah and PW.2 - Seenappa were injured, they were referred to the hospital along with P.C. No. 131. Thereafter, he informed his superior about the same and went to Sirivara village along with his staff and visited Cheluvaiah''s house and returned to the police station. On 11.02.2000 at about 6:30 a.m., PW.1 came to the police station and lodged the complaint as per Ex.P1 and it was registered in Crime No. 20/2000 for the offence punishable u/s 395 IPC. He prepared the F.I.R. as per Ex.P15 and sent the same to the jurisdictional Court and sent copy of the same to his superiors. He visited the scene of offence at about 8:15 a.m. on 11,02.2000 and secured the panchas and prepared the panchanama of the scene of offence as per Ex.P2 and during the panchanama, he seized M.O. No. 1 - size stone from the spot and he also prepared the rough sketch as per Ex.P16. Thereafter, he went to the Government Hospital, Tumkur, and he was informed that the injured had been taking treatment in Sridevi Nursing Home and he went to the said Hospital and recorded the statement of Cheluvaiah (deceased), the father of the complainant-PW.1, Srinivas @ Seenappa (PW.2), son of Bettegowda, Lakshmidevamma (PW.3), wife of Cheluvaiah, PW.4 - Komala, wife of Krishnaraju. Thereafter, he returned to the Police station and recorded the statement of Ramaioh (PW.5), son of Chikkaramaiah and further investigation of the case was handed over to the Inspector or Police - PW. 15.

2.4 PW.15 - V. Sridhar was working as Inspector in Kyathasandra Police Station. During the intervening night of 10/11-02-2002, he received information from the Sub-Inspector - PW.17 about the incident and he also went to the spot at 3:45 a.m. and at that time, PW.17 and his staff had come there. He gave requisition to secure the presence of finger print expert and dock squad and deputed staff to trace the accused. The door of the house had been broken and the articles in the house were scattered and he was informed that two gold chains and one gold ring had been robbed by the dacoits and they were of the value of Rs. 40,000/-. He took over further Investigation from the Sub-Inspector of Police - PW.17. On 13.03.2001, he learnt that Chalapathl (PW.14) - Police Inspector, Vijayanagar Police Station had arresteed the accused and he sent head constable - Venkatappa, to Vijayanagar Police Station and secured the records and verified the investigation already conducted. Thereafter, he obtained a warrant to secure the presence of the accused and took accused Nos. 1 to 3 to his custody on 23.07.2001. Accused Nos. 1 to 3 gave voluntary statement before him. Accused No. 2 - Munikrishna volunteered to show the shop, where he had sold the gold ornaments robbed from the house of the complainant and his voluntary statement was recorded as per Ex.P6. Accused No. 1 - Venkatesha volunteered to show the shop, where him self and the other accused had sold the gold ornaments robbed from the house of the complainant (PW.1) and his voluntary statement was recorded as per Ex.P7. Accused No. 3 - Nallathimma volunteered to show the shop, where they had sold the gold ornaments robbed from the house of the complainant and his voluntary statement was recorded as per Ex.P8. He secured the panchas, Srinivas - PW.8 and K. Narasimha Shetty - PW.9 and the accused led him and the panchas to Doddapete in Tiptur and took them to ''Basaveshwara jewellery shop'' owned by PW.6 - Ravindra. PW.6 identified the accused Nos. 1 to 3. Accused Nos. 1 to 3 asked PW.6 to produce the ornaments i.e., one gold finger ring and one gold chain, which they had sold to him. PW.6 stated that he had melted the said ornaments and converted them into gold ingot weighing 40.910 gms and the same was produced at the instance of the accused as per M.O. No. 2(a) and seized under the panchanama as per Ex.P3. Thereafter, accused Nos. 1 to 3 led him and the panchas to ''Nagaraj Shetty Jewellery shop'' owned by the father of Shanthan - PW.11 and asked PW.11 to produce the gold ornaments, which the accused Nos. 1 to 3 had sold to him. PW.11 stated that one gold chain sold by accused Nos. 1 to 3 had been melted and converted in to two gold ingots weighing 41.70 gms and the same were seized under the mahazar - Ex.P4 as per M.O. No. 2. Thereafter, he entered the details of the seized articles in the P. F. Nos. 65 and 66 of 2001 and obtained permission of the Court to retain them. He recorded the further statements of Lakshmidevama (PW.3), Ramaiah (PW.5), Komala (PW.4), Seenappa (PW.2) and Rahul Gowda (PW.1), who identified accused Nos. 1 to 3, who were present in the police station as the persons, who committed dacoity in their house. He also recorded the statements of Ravindra (PW.6) and Shanthan (PW.11). He received the wound certificate of PW.5 - Ramaiah from PW.10 - Dr. Nagesh as per EX.P5 on 06.0.8.2001 and on the same day, he received the wound certificates in respect of Cheluvaiah, Seenappa (PW.2) and Komala (PW.4) from Sridevi Nursing Home, Tumkur, as per Exs.P9, P10 and P11. Despite all the best efforts made to trace the other three accused, they could not be traced and therefore, after completing the investigation, he filed charge sheet against accused Nos. 1 to 3 showing the other three accused as absconding for the offence punishable under Sections 395 read with Section 397 IPC.

2.5 The case was committed to the Sessions Court since the offence was triable by the Court of Sessions and numbered as S.C. No. 147/2001 on the file of the District and Sessions Court, Tumkur. Later, it was assigned to Fast Track Court III, Tumkur, for trial and after establishment of the Special Court by the order of this Court by the notification dated 22.01.2004, the case was transferred to the Special Court and numbered as S.C No. 65/2004. The Presiding Officer, (Special Court) - 34th Additional City Civil and Sessions Judge framed charge against accused Nos. 1 to 3 as they along with the absconding accused Krishnudu, Chikkahanuma and Venkatesh @ Ramesh committed the offence punishable u/s 395 read with Section 397 IPC.

2.6 Accused Nos. 1 to 3 pleaded not guilty and claimed to be tried and on behalf of the prosecution, PWs.1 to 17 were examined and Exs.p1 to 16 (a) and M.O. Nos. 1, 2 and 2(a) were got marked. The statement of the accused u/s 313 Cr.P.C, was recorded. The defence of the accused Nos. 1 to 3 is one of denial and they have stated that a false case has been foisted against them. The accused did not lead any defence evidence. The trial Court, having regard to the evidence of PWs.1 to 3 and recovery of gold ingots from the shop of PWs.6 and 11 on the basis of the voluntary statement given by accused Nos. 1 to 3, by its Judgment dated 31.03.2006, held that the prosecution has proved beyond reasonable doubt that the accused Nas.1 to 3 have committed the offence punishable u/s 395 read with Section 397 IPC and convicted them for having committed the said offence and sentenced them to undergo imprisonment for life for the offence punishable u/s 395 IPC. No order was passed regarding the seized properties - M.Os.1, 2 and 2(a), as they were required to be preserved till the completion of the trial against the other three absconding accused. Being aggrieved by the said Judgment of conviction and sentence, accused No. 1 has preferred criminal appeal No. 1407/2006 and accused Nos. 2 and 3 have preferred criminal appeal No. 1202/2006.

We have heard the learned Counsel appearing for the Appellants in both the appeals and the learned State Public Prosecutor for the Respondent - State and the reply arguments.

The learned Counsel appearing for the Appellants submitted that the evidence of PWs.1 to 3 though consistent and cogent, would only prove that there was dacoity in the house of PW.1, wherein he was staying with his father - Cheluvaiah, mother (PW.3) and sister (PW.4) and uncle (PW.2) and three persons trespassed in to their house and caused injury and looted the gold ornaments worn by PWs.3 and 4 and the gold ring of Cheluvaiah. However, the identity of the accused has not been proved. The evidence of PWs.1 to 3 would show that though they had seen the accused, they were not acquainted with the accused and they did not know the accused prior to the date of the incident. Only on 24.07.2001, accused Nos. 1 to 3 were shown to PWs.1 to 3 as the persons, who committed the dacoity. Admittedly, no test identification parade has been held and therefore, identification of the accused for the first. time in the Court is of no value. Recovery of the gold ingot said to have been sold by accused Nos. 1 to 3 is not proved in accordance with law. Therefore, the Judgment of conviction and sentence is liable to fee set aside and the Appellants are liable to be acquitted of the offence for which they are convicted by setting aside the impugned judgment of conviction arid sentence.

The learned State Public Prosecutor for Respondent - State submitted that the evidence of PWs.1 to 3 would clearly show that it was accused Nos. 1 to 3, who along with the absconding accused, committed the offence of causing injury and looting two gold chains and gold ring and recovery on the basis of the voluntary statement of accused Nos. 1 to 3 would clearly prove that the accused have committed the offence punishable u/s 395 IPC, for which they are adequately sentenced by the trial Court. Therefore, the impugned Judgment of conviction and sentence is justified and does not call for interference in this appeal.

We have given careful consideration to the contentions of the learned Counsel appearing for the parties and scrutinized the material on record. Having regard to the contentions urged, the points that arise for our determination in this appeal are:

Whether the finding of the learned Sessions Judge that the prosecution has proved beyond reasonable doubt that accused Nos. 1 to 3, the Appellants herein, along with the absconding accused committed the offence punishable u/s 395 read with Section 397 IPC, and the sentence imposed upon then; by the learned Sessions Judge for the offence u/s 395 IPC, is justified or calls for interference in these appeals?

What Order?

We answer the above points as follows:

Point No. 1: The finding of the learned Sessions Judge is not justified and the Appellants - accused Nos. 1 to 3 are entitled to be acquitted of the offence punishable u/s 395 read with Section 397 IPC.

Point No. 2: as per the final order for the following:

REASONS

The learned Counsel appearing for the Appellants has taken us through the evidence of PWs.1 to 17 and the contents of the documents - Exs.P1 to P16 (a) got marked by the prosecution.

PW.1 - Rahul Gowda is the complainant in this case and he is an eye-witness to the incident. PW.2 - R.B. Seenappa is the uncle of PW.1 and he is also an eye witness, who was injured in the incident. PW.3 -Lakshmidevamma is the mother of the complainant - PW.1 and she is also an eye witness, who was injured in the incident. PW.4 - Smt. Komala is the sister of the complainant - PW.1 and she is also an eye-witness, who was injured in the same incident. PW.5 - Ramaiah is the neighbour of PW.1 and he has been examined as a circumstantial witness as he went to the house of PW.1 immediately after hearing the cry and he saw accused Nos. 1 to 3 rushing out of the house of PW.1 and they assaulted him before going out of the said place PW.6 - Ravindra is the owner of Basaveshwara Jewellers shop at Doddapet, Tiptur, from whose shop, on the basis of the voluntary statement given by accused Nos. 1 to 3, the gold ingots were recovered. PW.7 - Mahadevaiah is a pancha for the spot rnahazar - Ex.P2 regarding seizure of size stone - MO. No. 1 from the spot. PW.8 - Srinivasa is a pancha for Exs.P3 and P4 regarding recovery made on the basis of the voluntary statement given by the accused. However, PW.8 has not supported the case of the prosecution and he was treated as hostile and permitted to be cross-examined by the learned Public Prosecutor and nothing has been elicited in his cross-examination to help the case of the prosecution. PW.9 -K. Narasimha Shetty is a pancha to Exs.P3 and P4. PW.10 - Dr. Nagesh has issued the wound certificate - Ex.P5. PW.11 - Shantan is the owner of the Nagaraj Shetty jewellery shop, from where the gold ingots were recovered on the basis of the voluntary statement given by the accused Nos. 1 to 3 as per Ex.P4. PW.12 - N. Chandraiah, P.S.I., has conducted part of the investigation. PW.13 - T.V. Raju is the, PSI, who accompanied the investigation officer at the time of recovery under Mahazars - Exs.P3 and P4. PW.14 - N. Chalapathy, PW.15 - V. Sridhar and PW.17 - C.S. Sathyanarayana are the Investigation officers, whose evidence has already been referred to while narrating the facts of the case. PW.16 - Dr. M.R. Hulinayaka is the medical officer, who examined the injured and issued the wound certificates as per Exs.P9 to P14.

It is clear on a perusal of the above said evidence adduced by the prosecution in the present case that the prosecution is relying upon the evidence of PWs.1 to 4, eye witnesses, who were the inmates of the house, wherein, the incident occurred and also recovery of the gold ingots made on the basis of the voluntary statement given by accused Nos. 1 to 3 from the shops of PWs.6 and 11, to bring home the guilt of the accused.

PW.1 - Rahul Gowda has deposed in his examination-in-chief in consonance with the averments made in the complaint - Ex.P1 and he has stated that during the night of 10.02.2000, himself, his father - Cheluvalah, his mother - Smt. Lakshmidevamma (PW.3), his uncle - Seenappa (PW.2), his sister - Komala (PW.4), his relative - Bhagya had slept in their house situate in Sirivaar at about 12:45 or 1:00 a.m. During the intervening night of 10/11.02.2000 at about 12:45 a.m. or 1:00 a.m., he woke up to the sound of breaking open the front door of their house. His mother, father and others also woke up. He came to the hail where his mother and father were sleeping. After breaking open the front door of their house, four persons entered their house. They put on the lights. One among the culprits assaulted his mother (PW.3) with club on her back. When his mother started crying, his father came forward. One among the culprits assaulted his father with macchu. The same culprit, who assaulted his father, also assaulted his uncle - Seenappa (PW.2) with, macehu on his head. The same culprit also assaulted his sister (PW.4) on her head with macehu. Another culprit robbed mangalya chains from the person of his mother and sister and gold finger ring from the person of his father. One of the culprits caught hold of him. When they started screaming, the neighbours started gathering. The accused persons made good their escape and while going, his neighbour - PW.5 came there and he was also assaulted by one of the culprits with a macehu on his head. The injured were shifted to the Hospital. On the next day morning at about 6 a.m., he lodged a complaint in the Hebbur Police Station as per Ex.P1. He has also spoken about the preparation of the spot mahazar -Ex.P2 and seizure of M.O. No. 1 - size stone from the spot PW.1 has further deposed that on 24.07.2001, Hehbur Police called, them to the Police Station for identification of the articles as also the culprits. Accordingly, himself, his father and his mother went to the Hebbur Police Station. Police showed them three small pieces of gold ingots and told that the receiver, who received the valuable properties robbed by the accused, melted the said articles into gold ingots. He has identified the said gold ingots as per M.O. No. 2, Police showed to them three accused persons in their police station. He has identified accused Nos. 1 to 3, who were present before the Court at the time of examination-in-chief on 03.01.2005 as the very accused who were shown to him in the Police Station. Accused No. 1 before the Court robbed the golden mangalya chains from the person of his mother and sister and gold finger ring from the person of his father. Accused No. 2 before the Court assaulted them with wooden club. Accused No. 3 assaulted his father, his uncle - Seenappa (PW.2) and his sister - Komala (PW.4) with macchu.

PW.2 - R.B. Seenappa is the uncle of PW.1. He is also an eye-witness to the incident. He has deposed in his examination-in-chief that during the intervening night of 10/11-02-2000 at about 12:30 a.m. or 1:00 a.m., while he was sleeping in the house of PW.1, he heard the sound of breaking open of the front door of their house. He woke up and came to the hall. By that time, about three or four culprits had come to the hall, One of them was holding wooden club, another was holding iron macchu. By the time he went to the hail, the culprits had assaulted his elder brother''s wife - Lakshmidevamma (PW.3). After he went to the hall, another culprit snatched the mangalya chain from the person of Lakshmidevamma. His elder brother - Cheluvaiah was telling the culprits not to assault the inmates of the house and that they can take whatever articles they found. One of the culprits assaulted his elde brother - Cheluvaiah on his head with macchu. Cheluvaiah fell down. When he (PW.2) came forward, the same culprit assaulted him also on his head with macchu. (The witness showed before the Court the assault mark on the middle of his head). He became unconscious. He regained consciousness after about 8 or 10 minutes. He came to know that the culprits had also assaulted Komala and snatched her mangalya chain. One of the culprits had caught hold of PW.1 - Rahul Gowda. On hearing the screaming sound of his family members, their neighbour - Ramaiah (PW.5) came running to their house, the culprits also assaulted Ramaiah (PW.5) and escaped from the scene. By the time neighbours collected and informed the incident to the police, the neighbours after giving first aid, shifted them to Tumkur Hospital, by borrowing an Ambassador Car from neighbouring D.S. Palya village. PW.2 has further deposed that on 24.07.2001, Hebbur Police called him to their Police station. In Hebbur Police Station, the Police shown to him the accused before the Court. Before the Police, he told that the accused shown to them were the very persons, who gained illegal entry to their house by breaking open the door of their house and assaulted them and robbed their valuables. Accused No. 3 before the Court assaulted him on his head with macchu. Accused No. 2 was holding wooden club. Accused No. 1 before the Court was snatching the valuables from the person of Lakshmidevamma (PW.3), Komala (PW.4) and Cheluvaiah. Police had enquired him.

Lakshmidevamma - PW.3, who is the mother of the complainant and wife of Cheluvaiah has deposed in her examination-in-chief that on the date of the incident, while they were sleeping in their house along with her husband - Cheluvaiah, her son - Rahul Gowda (PW.1), Komala (PW.4), her brother-in-law (PW.2) and her daughter - Bhagya during the night of 10.02.2000, she was sleeping in the hall of their house. After she woke up, she put on the lights. By that time, three or four culprits had entered their house. One of the culprits assaulted her with wooden club on her back just below the head and another culprit snatched her mangalya chain. Her husband - Cheluvaiah told the culprits not to assault them and take whatever, articles they found. Without heeding to the request of Cheluvaiah, one among the culprits assaulted her husband - Cheluvaiah on his head with macchu. The culprit, who snatched her mangalya chain also snatched gold finger ring of her husband - Cheluvaiah. By that time, her husband''s younger brother - Seenappa (PW.2) came to the hall. One of the culprits assaulted Seenappa (PW.2) on his head with macchu. The same culprit assaulted her daughter - Komala (PW.4) on her head with macchu. The culprit, who snatched her mangalya chain also snatched mangalya chain of her daughter - Komala (PW.4). One of the culprits had caught hold of her son - Rahul Gowda (PW.1) with his hands backwards. On hearing their screaming sound, neighbours gathered at their house. On seeing the neighbours coming to their house, the culprits escaped from their house. Their neighbours shifted them to Tumkur General Hospital in a Car. Later, they were shifted to Sridevi Nursing Home for further treatment. She has further deposed that one year after the incident, they were called to Hebbur Police Station. In Hebbur Police Station, she saw three culprits, who struck at their house and assaulted and robbed their articles. She can identify those culprits. Accused Nos. 1 to 3 before the Court were the very persons, who were shown to them by the Police. Police also shown to her two gold bar ingots and one round shape gold ingot. Police told her that the receiver, who received the articles robbed from their house has melted them into gold ingots. M.O. No. 2 - two gold bar ingots and one round shape gold ingot were the very properties shown to her by the Police. She has further deposed that accused No. 1 before the Court was the very person, who snatched her gold mangalya chain. Accused No. 2 before the Court assaulted her with wooden club. Accused No. 3 before the Court assaulted her husband - Cheluvaiah on his head with macchu. Accused No. 3 before the Court had also assaulted Seenappa and Komala. Police had enquired her.

PW.4 - Komala, daughter of PW.3 and Cheluvaiah has deposed in her examination-in-chief that on the date of the incident (10.02.2000), while she was sleeping in one of the rooms of her mother''s house with her two months'' old child, two hours after she went to bed, she woke up to the sound of breaking open of the front door of their house and it was about 12:45 a.m. or 1:00 a.m. After hearing the sound, she came to the hall from her room. By the time she came to the hall, her father and mother were bleeding. Some four or five culprits were assaulting her father and her mother. By the time she came to the hall, her uncle - Seenappa (PW.2) was also present in the hall. The culprits had also assaulted his uncle - Seenappa (PW.2). The culprits had assaulted Seenappa (PW.2), his father - Cheiuvaiah with macchu on their heads. One of the culprits had caught hold of her brother - Rahul Gowda, by holding his hands backwards. One of the culprits had assaulted her mother with wooden club. Another culprit snatched mangalya chain from the person of her mother - Lakshmidevamma (PW.3) When she came to the hall, one of the culprits, assaulted her on her head with macchu. She started bleeding. One of the culprits snatched her mangalya chain. On hearing her screaming sound, neighbours gathered at their house. The culprits assaulted their neighbour - Ramaiah (PW.5) and ran away from the scene. Ramaiah (PW.5) had also sustained head injury. Their neighbours shifted them to Tumkur General Hospital. Afterwards, they were shifted to Sridevi Nursing Home, Tumkur. She has further deposed that one year after the incident i.e., on 24.07.2001, Hebbur Police called them to their Police Station. Hebbur police showed to them three pieces of gold ingots. Hebbur police also showed to them three persons, who were in the Police lock-up. Accused Nos. 1 to 3 before the Court were the very persons whom he saw in the Hebbur Police Station. Accused No. 1 before the Court snatched her mangalya chain. Accused No. 2 before the Court was holding wooden club. Accused No. 3 before the Court assaulted her with macchu. She has identified two gold bar ingots and one small round shape ingot, which were marked as MO. No. 2 and 2(a), were the very articles shown to her in Hebbur Police Station. Police had told her that the receiver, who received their valuable articles had melted them into gold ingots. Police had recorded their statement.

The above said evidence of PWs.1 to 4 has to be considered in the light of the facts elicited in their cross-examination as also the other material on record to find out as to whether their evidence is truthful, cogent, consistent and reliable to bring home the guilt of accused Nos. 1 to 3.

It is elicited in the cross-examination of PW.1 Rahul Gowda that he woke up on hearing the sound of breaking open of the doors. Bolt hook was broken down and there was damage to the front door. One of the culprits caught hold of him by taking his hands backwards and bending his head downwards. His mother put on the lights soon after hearing the sound of breaking open of the doors. He was seeing the assault being committed by the accused on her father, mother, uncle and sister. The measurement of the hall of their house is about 12 feet � 15 feet. It is further elicited in the cross-examination of PW.1 that after the incident, she saw the accused before the Court in Hebbur Police Station on 24.07.2001. On that day, herself, her father, her uncle, her mother and her sister went to the Police Station. In Hebbur Police Station, she saw all the three accused before the Court in police lock up. He has denied the suggestion that in the police station, the police told him by showing the accused before the Court as those were the culprits, who struck at their house. He had not seen the accused before the Court prior to the incident. Police told him that they had brought three thieves and asked him to identify them. He identified them as the very persons, who struck at their house. He does not know whether the Police collected from the spot the bolt-hook. Police collected size stone from the spot in his presence. He did not make any attempt to catch the culprits as he was attending his injured relatives. He does not know. whether the people gathered at the spot attempted to catch the culprits. He was seeing the accused before the Court four years after the incident. He has told before the Police about the facial and physical features of the culprits. He has dented the suggestion that he has not stated in his complaint about the physical features of the accused. He has denied the suggestion that he has not stated in his complaint about the physical features of the accused. He has not stated the facial features of the culprits. He has denied the suggestion that he has not stated the physical and facial features of the culprits out of his memory. He has denied the suggestion that he was seeing accused Nos. 1 to 3 before the Court for the first time after five years after the incident in the Court He has denied the suggestion that he is deposing falsehood by attributing specific acts to the specific accused as told to him by the Police. He has denied the suggestion that he does not know anything about the case and he was suppressing the true facts. He has denied the suggestion that M.O. No. 2 - gold bar ingots and gold ingot of round shape did not comprise of the articles belonging to his mother and sister, which were melted.

Similarly, in the cross-examination of PW.2 - R.B. Seenappa also, it is elicited that he had not seen the accused before the Court prior to the incident. He has denied the suggestion that when he went to Hebbur Police Station, the Police by pointing the accused before the Court told him that those are the culprits who assaulted and robbed their articles. It is further elicited that by the time he came to the hall from his room, the culprits had assaulted his brother wife Lakshmidevamma (PW.3). After he came to hall, the culprits assaulted him and his brother - Cheluvaiah. After he came to the hall, the culprits assaulted him on his head and he became unconscious. The culprits assaulted him on his head twice with macchu and once with wooden club. He regained consciousness within 10 minutes. By that time, people had gathered at the house and the culprits escaped from the scene. He has not stated before the Police about the physical and facial features of the culprits who assaulted them. He has denied the suggestion that the accused before the Court are not the culprits, who struck at their house and assaulted and robbed their articles. He has denied the suggestion that the accused before the Court had not robbed any of their articles and that they had not assaulted them. He has denied the suggestion that he was attributing specific acts to the specific accused as told to him by the Police. He has denied the suggestion that he was deposing falsehood as tutored by the Police. He has denied the suggestion that he was suppressing true facts at the instance of the Police.

It is elicited in the cross-examination of PW.3 - Lakshmidevamma that about four or five culprits had entered their house on the night of 10.02.2000. She cannot say the exact number of the culprits. One of the culprits caught hold of her son� Rahul Gowda, who was sleeping on the floor in the hall The culprit had caught hold of Rahul Gowda so that he should not stand up. She has dented the suggestion that when they were called to the Police Station, the Police by pointing the accused had told them that those were the culprits, who assaulted and robbed their articles. She had not seen the accused before the Court prior to the date of the incident. She has not stated before the Police about the physical and facial features of the culprits, who assaulted them. She has denied the suggestion that the accused before the Court were not the culprits, who struck their house and assaulted them and robbed their articles. She has denied the suggestion that she was attributing specific acts to the specific accused as told to him by the Police. She has denied the suggestion that she was deposing falsehood as tutored by the Police. She has denied the suggestion that she was suppressing the true facts at the instance of the Police.

It is elicited in the cross-examination of PW.4 - Komala that she had not seen the accused before the Court prior to the date of the incident. She has denied the suggestion that when they were called to the Police Station, the Police fey pointing accused Nos. 1 to 3 told them that those were the culprits who assaulted and robbed their articles. She has not stated before the Police about the physical and facial features of the culprits, who assaulted her and her family members. She has denied the suggestion that the accused before the Court were not the culprits who struck their house and assaulted them and robbed their articles and that she is deposing falsely to help the Police.

PW.5 - Ramaiah has deposed in his examination-in-chief that about four years prior to the date of his deposition (witness examined on 04.01.2005) on one midnight when he was sleeping in his house, he woke up to the galata sound from the house of Rahul Gowda (PW.1). He went to Rahul Gowda''s house by jumping the gate of his house. By the time, about five or six strangers came from the house of PW.1 rushing outside. One of them assaulted him on his head with wooden club. After assaulting him, the said strangers jumped the compound wall ran away. Cheluvaiah, Seenappa (PW.2) Lakshmidevamma (PW.3) and Komala (PW.4) were bleeding. Blood was splattered in the hall. The neighbours, who gathered at the house of PW.1 by that time, shifted the injured to Tumkur General Hospital. He has further deposed that he also took treatment in Tumkur General Hospital. About one and half year after the incident, the Hebbur Police had called him to the Police Station. He saw accused Nos. l to 3 before the Court in the Hebbur Police Station. Accused No. 2 before the Court was the very person who assaulted him with wooden club on his head. Police had enquired him.

It is elicited in the cross-examination of PW.5 - Ramaiah that when he went to the Hebbur Police Station, he saw three of the culprits in Hebbur Police Station. He has denied the suggestion that as told to him by the Police, he was identifying accused No. 2 before the Court as the person who assaulted him with a club. He has denied the suggestion that he has not stated before the Police about the facial and physical features of the culprits. He has denied the suggestion that he had not seen any of the accused before the Court on the date of the incident. He has denied the suggestion that accused No. 2 before the Court had not assaulted him with club and that he has not identified any of the culprits in the Hebbur Police Station. He has denied the suggestion that he was deposing falsehood to help the Police.

It is clear on appreciation of the evidence of PWs.1 to 5 as referred to above that the evidence of these witnesses would clearly prove beyond reasonable doubt that during the intervening night of 10/11-02-2000, accused Nos. 1 to 3 - Appellants herein and the absconding accused broke open the front door of the house of PWs.1 to 3, wherein PW.1 his father - Cheluvaiah, his mother - Lakshmidevamma (PW.3), his sister. - Komala (PW.4) and others were sleeping and they caused injury to Cheluvaiah, the father of PW.1; Seenappa (PW.2), the brother of Cheluvaiah and uncle of PW.1; Lakshmidevamma (PW.3), the mother of PW.1 and Komala (PW.4), the sister of PW.1 and-snatched the-gold mangalya chains, which PWs.3 and 4 were wearing and gold finger ring, which Cheluvaiah was wearing and on hearing the cry of PWs.1 to 4, PW.5 came to the house of PW.1 and at that time, one of the culprits assaulted PW.5 also and he sustained injuries. The fact that there was dacoity in the house of the complainant (PW.1), who was staying with his parents and sister and that two gold mangalya chains were snatched from the person of PW.3 - Lakshmidevamma and PW.4 - Komala, sister of the complainant and one gold finger ring was snatched from the person of Cheluvaiah and the culprits made good their escape is also corroborated by the evidence of the medical officer - PW.16, who has issued the wound certificate in respect of the injured i.e., Cheluvaiah, R.B. Seenappa (PW.2) and Komala (PW.4),. However, the prosecution in order to bring home the guilt of the accused must further prove that it was accused Nos. 1 to 3 herein along with the other absconding accused, who committed dacoity in the house of the complainant - PW.1. Admittedly, in this case, no test identification parade has been held by the investigation officer. The facts elicited in the cross-examination of PWs.1 to 5 would clearly reveal that they did not know the accused prior to the date of the incident, which occurred during the night of 10/11-02-2000. The material on record would also show that after the date of the incident, PWs.1 to 5 saw accused Nos. 1 to 3 in Hebbur Police Station on 24.07.2001. Thereafter, they saw the accused only before the Court and they have been identified before the Court. Therefore, the Question as to whether the identification of accused Nos. 1 to 3 for the first time before the Court by PWs.1 to 5 without there being any test identification parade conducted, can be accepted, has to be considered,

It is now well settled that normally, identification of the accused for the first time before the Court without holding & test identification parade by the Taluka Executive Magistrate, would have no value and would not prove the identity of the accused. However, where the accused were known to the victim or the victim - had sufficient lime at the time of the incident to gain the - impression about the personality and the identity of the accused and was able to depose about the identification of the accused before the Court as the person who committed the offence, in exceptional cases, holding of the test identification parade can be dispensed with. The matter has been considered in detail in the Judgment of the Hon''ble Supreme Court in 2002 SCC 1698 (Dana Yadav alias Dahu and Ors. v. State of Bihar) wherein, the Hon''ble Supreme Court, after referring to its earlier judgements, has laid down as follows:

In view of the law analysed above, we conclude thus:

(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same.

(b). In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test Identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court.

(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but net substantive one, and the same can be used only to corroborate identification of accused by a witness in court.

(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.

(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by hit previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.

(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.

(g) Ordinarily, if an accused is not named in the first Information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above.

When the evidence of PWs.1 to 5 in this case is considered in the light of the principles laid down by the Hon''ble Supreme Court in Dhanav Yadav''s case as culled out above, it is clear that admittedly, in the present case, none of the witnesses - PWs.1 to 5 had seen the accused prior, to the a ate of the incident i.e., during the intervening night of 10/11-02-2000 and all of them have admitted in their cross-examination that they did not know the accused prior to the incident. In the complaint, the description of the accused is given as unknown persons aged between 20 to 30 years having height ranging between 5.4" to 5.6" and three of them were hefty in their stature and they were wearing half pant and baniyans and apart from making the said averments, no specific description about the physical features of the unknown persons has been given. Further, it is also clear from the material on record that the accused Nos. 1 to 3 were not arrested in this case. Accused Nos. 1 to 3 along With the other accused against whom, crime has beep registered in the Vijayanagar police station were arrested by PW.14 - P.S.I., Vijayanagara Police Station on 31.01.2001. PW.14 had already recorded the statements of accused Nos. 1 to 3 on 02.06.2001, PW.1.5 secured the presence of accused Nos. 1 to 3 in the present case on 24.07.2001 and for the first time accused Nos. 1 to 3 were shown by the Police to PWs.1 to 5. The evidence of PWs.1 to 5 shows that they were informed by the Police that accused Nos. 1 to 3 were the persons who committed the dacoity in their house and the witness said that they are the same persons who had trespassed into their house and committed dacoity. PWs.1 to 3 were examined on 03.01.2005 and PWs.4 and 5 were examinee on 04.01.2005 and according to them, they saw accused Nos. 1 to 3 in the police station on 24.07.2001 and thereafter, they have seen the accused for the first time in the Court at the time of their deposition. Further, the evidence of PWs.1 to 4 would clearly show that they have identified the accused Nos. 1 to 3 as the persons whom they had seen in the police station and only at the end of their examination-in-chief, they have stated that the accused in the present case are the persons, who committed dacoity in their house after causing injury to them and they have spoken to about the weapons held by accused Nos. 1 to 3 Therefore, it is clear that accused Nos. 1 to 3 have been identified by the witnesses for the first time in the police station before PW.15 on 24.07.2001 and thereafter, the accused have been identified by the witnesses - PWs.1 to 3 and PWs.4 to 5 only before the Court on 03.01.2005 and 04.01.2005 respectively and they have never seen the accused prior to the incident. Under the circumstances, we do not find any exceptional ground in this case to dispense with holding of test identification parade, the learned Sessions judge has proceeded on the basis that accused Nos. 1 to 3 were involved in a series of cases arid they had been arrested by PW.14 in connection with crime registered in Vijayanagara Police Station and as PWs.1 to 5 had seen the said accused in their house on the date of the incident, their identification before the Court is truthful and reliable and non-holding of the test identification parade is not fatal to the case of the prosecution in the present case. We are unable to agree with the said conclusion arrived at by the trial Court, Having regard to the above said evidence of PWs.1 to 5 in the present case and in view of the principles laid down by the Hon''ble Supreme Court in DANA YADAV''s case (supra) in para 38 at Clauses (f) and (g), we hold that this is not an exceptional case, wherein the evidence of PWs.1 to 5 regarding identification of accused Nos. 1 to 3 for the first time in Court, without the same being corroborated by the previous identification in the test identification parade, can form the basis of their conviction. Further, even assuming that the identification of accused Nos. 1 to 3 made by PWs.1 to 5 before the Court can be believed, the same cannot be made the sole basis for conviction of accused Nos. 1 to 3 as there is no corroborating material in respect of the said identification of the accused except the fact that they had seen the said persons in the police station on 24.07.2001.

The prosecution is relying upon the recovery of the ornaments on the basis of the voluntary statements given by the accused Nos. 1 to 3 from the shops of PWs.6 and 11 in the presence of the panchas. PWs.8 and 9. It is the case of the prosecution that accused Nos. 1 to 3 gave voluntary statements before PW.15 and pursuant to the voluntary statements of accused Nos. 1 to 3, led the investigation officer - PW.15 and the panchas - PWs.8 and 9 to the shop of PW.6 - Ravindra and gold ingot as per M.O. No. 2(a) was seized under the mahazar - EX.P3. Thereafter accused Nos. 1 to 3 led PW.15 and the panchas - PWs.8 and 9 to the shop of PW.11 - Shanthan and two gold ingots as per M.O. No. 2 were recovered under the mahazar - Ex.P4, PW.8 - Srinivas has not supported the case of the prosecution and he was treated as hostile and nothing has been elicited in his cross-examination to support the case of the prosecution.

PW.9 - K. Narasimha Shetty has deposed in his examination-in-chief that during 1991, Police had called him to pawn broker shop situate in the extension area and accused Nos. 1 to 3 were present at that time. When the police told the owner of the shop (PW.6) to produce gold ornaments, which accused Nos. 1 to 3 had sold to him, the owner of the shop produced one gold finger ring and one gold chain and the same were seized under the mahazar - Ex.P3 and he signed the same as per Ex.P3(c). Thereafter, accused Nos. 1 to 3 led them and the Police to another pawn broker shop, wherein, the owner of the said shop (PW.11) produced one gold chain - before the Police and the same was seized under the mahazar - Ex.P4 and he signed the same as per Ex.P4(b). However, he has deposed in his further examination-in-chief on 28.06.2005 that M.O. Nos. 2 and 2(a), gold ingots are the ingots produced by the owners of the jewellery shops and the owners of she shop told that the said ornaments had been melted into ingots and produced the same. It is elicited in the cross-examination of PW.9 that he is the owner of the hotel and the name of the hotel is mentioned in the panchanama. M.O. No. 2 was recovered from the jewellery shop at Chikpet and at that time, triey went to the said shop at 11:30 a.m. and the chits fixed to M.O. Nos. 2 and 2(a) does not bear his signature and there is no special identification mark on M.O. Nos. 2 and 2(a). On the said day, the owners of the jewellery shops produced small gold ornaments and later on, police talked to the owners and they produced M.O, Nos. 2 and 2(a). He has denied the suggestion that he is deposing faisely to help the police.

It is clear from the evidence of PW.9 that his evidence is not helpful to the prosecution as he himself is not dear as lo whether two gold chains and gold finger ring were recovered or gold ingots were recovered from the owners of the jewellery shops. It is clear from his evidence as stated in his examination-in-chief itself that it was at the instance of the Police that the owners of the jewellery shops produced the gold ingots and initially, they had produced some small ornaments and after police talked to them, they produced the gold ingots - M.O. Nos. 2 and 2(a) and wherefore, the evidence of PWs.8 and 9 is not helpful to the prosecution to corroborate the evidence of PW.15 regarding the recovery of M.O. Nos. 2 and 2(a) on the basis of the voluntary statements given by accused Nos. 1 to 3 under Exs.P3 and P4.

The owner of the jewellery shop - Ravindra has been examined as PW.6 and he has deposed in his evidence that on 24.07.2001, some police had come to his shop with some thieves. Accused Nos. 1 to 3 were - brought to his shop by the police. Accused Nos. 1 to 3 before the Court told before the Police that they had sold to him some jewellery about one and a half years prior to the date of his deposition (witness examined on 04.01.2005) and identified accused Nos. 1 to 3 before the Court and admitted the transaction. Accused Nos. 1 to 3 had sold to him one gold, mangalya chain with thali and one gold finger ring with stones studded therein and he had melted the same into gold ingots. At the instance of accused Nos. 1 to 3, he produced one gold ingot before the Police and the said gold ingot weighed 40 grams 910 mg. and the same was seized under mahazar - Ex.P3 as per M.O. No. 2(a). PWs.3 and 9 were the panchas for the said mahazar. He had paid Rs. 15,000/- to accused Nos. 1 to 3 for having produced the gold chain and one gold finger ring studded with stones. It is elicited in the cross-examination of PW.6 that he is running a jewellery shop and is not doing pawn brokering business. He cannot say the date, month or year in which accused Nos. 1 to 3 sold to him the articles as stated in his examination-in-chief and that was the only transaction, which he had with the accused. He had not seen the accused prior to the said transaction. He has not issued any receipt to accused Nos. 1 to 3 for having purchased the said articles. He has maintained the register regarding the purchase of the articles. He has not mentioned the name of the persons from whom he purchased the articles in that register and he has not produced the said register before the Police. Accused No. 1 - Venkatesha had sold the above said articles to him. He has not specifically stated the name of accused No. 1 - Venkatesh in his statement before the Police. He has volunteered that he has stated before the Police about all the accused having sold the above said articles. He has written in the register the weight of the articles sold by the customers. He has written in the register the weight of the articles sold by the accused as 40 gm and 910 mg. The gold sold by accused was of 90% purity i.e., 22 carat. The Police along with the accused had come in police Jeep. Police by showing accused Nos. 1 to 3 told that they had sold one mangalya chain and one gold finger ring and asked him to produce those articles. He told the Police that he had melted them into gold ingot-and produced one gold ingot before the Police. There is a specific identification mark on M.O. No. 2(a), namely, "SBJS" for having given it to the Police. "SBJS" means "Shri Basaveshwara Jewellers" i.e., name of his shop. He has denied the suggestion that M.O. No. 2(a) is not of 22 carat gold and that he is deposing falsely to help the police.

It is clear from the evidence of PW.6 from the facts elicited in his cross-examination that though he states that he produced the gold ingot as per M.O. No. 2(a), the same was produced at the instance of the Police and not at the instance of accused Nos. 1. to 3. It is further elicited in the cross-examination of PW.6 that he is not doing any pawn brokering business and the register regarding purchase of the said gold articles has not been produced and he has admitted that he has not entered the name of the persons from whom he purchased the articles in the register. Though PW.6 states that it was accused No. 1 - Venkatesha, who sold the articles to him, the same is net stated in his examination-in-chief and wherefore, the evidence of PW.6 is also not helpful to the prosecution regarding the recovery of M.O. No. 2(a). Further, there is no material collected by the prosecution to prove that the said gold Mangalya chain with the thali and gold finger ring were melted into ingots as per M.O. No. 2(a).

Similarly, PW.11 - Shanthan, who is another owner of the jewellery shop has deposed in his examination-in-chief that he is running a jewellery shop at Tiptur and the name of his shop is Bagepalli S. Nagaraja Shetty Jewellery shop Accused No. 1 - Venkatesh and accused No. 3 - Nallathimma and another person came to his shop and brought one gold mangalya chain and stated that they had to perform marriage in their house and wherefore, they requested him to purchase the same. The said gold chain weighed 41.70 gms and he purchased the same from accused Nos. 1 and 3 for Rs. 15,000/-. Then, he melted the said chain into two gold ingots. On 24.07.2001., when Police came with accused Nos. 1 to 3 to his shop, Police questioned him as to whether the said-accused had sold one mangalya chain to him. He identified accused Nos. 1 to 3 and produced the gold ingots as per M.O. Nos. 2 and 2(a) and the same were seized under mahazar - Ex.P4. In his further examination-in-chief he has deposed that the said mahazar - Ex.P4 was written between 3 p.m. to 3:30 p.m.

It is elicited in the cross-examination of PW.11 that he has studied up to P.U.C. He does not remember the date on which accused Nos. 1 to 3 had come to his shop to sell the gold chain. Three accused persons had come to his shop, but, he enquired and learnt only names of two accused persons. Only once, accused Nos. 1 to 3 had come to his shop to sell the sold chain. Every day, about 20 to 25 persons come to his shop in connection with sale and purchase of gold articles. It is further elicited that he cannot tell as to who is Venkatesh and who is Nagathimma among the accused, who were present before the Court. He cannot tell as to who among the accused present before the Court nanded over to him the mangalya chain. He has denied the suggestion that he is deposing falsely to help the police.

It is clear on appreciation of the evidence of PW.11 that though he supports the case of the prosecution in his examination-in-chief, the facts elicited In his cross-examination would show that he is unable to identify the accused persons who came and sold the gold chain in his shop and he is unable to say as to who among accused Nos. 1 to 3 handed over the gold mangalya chain to him. What is recovered from the shop of PW.11 is not the mangalya chain, but, two gold ingots as per M.O. No. 2. Even assuming that the evidence of PW.15, who is a Police Officer as also the evidence in support of the recovery is proved, it is clear from the material on record that the gold ingots as per M.O. Nos. 2 and 2(a) are the ingots which have been prepared by melting the gold ornaments, which were robbed by accused Nos. 1 to 3 from the house of PWs.1 to 4 and Cheluvaiah. It is clear from the facts elicited in the cross-examination of PW.15 that the witnesses - PWs.3 and 4 could not identify the ingots that were shown to them as per M.O. Nos. 2 and 2(c) as the said ingots were formed by melting the ornaments belonging to them. Even before the Court, what is stated by PWs.3 and 4 is that M.O. No. 2 and M.O. No. 2(a) are the ingots, which were shown to them by the Police in the Police Station and they were not able to say whether the said ingots were prepared by melting the mangalya chains belonging to PWs.3 and 4 and the gold finger ring belonging to Cheluvaiah. Therefore, there is no identification of the gold ornaments said to have been robbed by accused Nos. 1 to 3 from the house of PWs.1 to 4 and it cannot be said that the prosecution has proved that the gold ingots - M.O. Nos. 2 and 2(a) were prepared by melting the jewellery, which was robbed from the house of PWs.1 to 4 and Cheluvaiah. The fact of recovery of gold ornaments also does not find corroboration from the evidence of PWs.1 to 5. The learned Sessions Judge has erroneously held that the evidence of PW.15, who is a Police officer cannot be disbelieved only on the ground that he is a Police Officer, without looking to the above said material on record, which would clearly show that the prosecution has failed to prove the identity of the gold ornaments said to have been robbed by accused Nos. 1 to 3 from the house of PWs.1 to 4 and the fact that the said gold ornaments were melted and converted into gold ingots as per M.O. Nos. 2 and 2(a) and that recovery of gold ornaments has not been proved in accordance with law. We hold in view of the above said reasoning that the learned Sessions Judge was not at all justified in holding that the prosecution has proved the guilt of accused Nos. 1 to 3 beyond reasonable doubt for having committed the offence punishable u/s 395 IPC read with Section 397 IPC and convicting accused Nos. 1 to 3 for the said offence and consequently, sentencing them to undergo rigorous imprisonment for life for having committed the said offence. Accordingly, we answer the above points for determination and pass the following Order:

The appeals are allowed. The Judgment of conviction and sentence passed by the 34th Additional City Civil and Sessions Judge, Special Court, Central Prison Premises, Bangalore, in S.C. No. 65/2004 dated 31.03.2006 to set aside. Accused No. 1 - Venkatesha @ Chandra @ Krishna (Appellant No. 1 in Criminal Appeal No. 1407/2006), accused No. 2 - Munikrishna @ Krishna (Appellant No. 1 in Criminal Appeal No. 1202/2006) and accused No. 3 - Nallathimma (Appellant No. 2 in Criminal Appeal No. 1202/2006) are acquitted of the charge of having committed the offence punishable u/s 395 IPC read with Section 397 IPC. They shall be set at liberty forthwith unless they are required to be detained in any other case. The operative portion of the order, shall be communicated to the Superintendent of Jail, Central Prison, Bangalore, wherein accused Nos. 1 to 3 (Appellants herein) are in custody undergoing sentence.