Judgment :- 1. This appeal is filed by the accused challenging the judgment dated 17.01.2004 passed by the First Additional Sessions Judge, D.K., Mangalore in S.C.No.76/1999 convicting the appellants for the offence punishable under Section 397 of IPC and sentencing them to undergo R.I. for a period of 7 years for the said offence. 2. The case of the prosecution is that on 18.07.1998 at about 13.30 hours in an isolated suburb place in Krishna Nagar to Kulaigudde, accused Nos.1 and 2 committed robbery of gold jewels and cash of Rs.12,800/- belonging to Ravindra Acharya and at the time of said dacoity, accused used the weapons namely a piece of stone pillar in order to cause grievous hurt to him and also attempted to cause his death thereby, they are alleged to have committed offence under Section 397 r/w. 34 IPC. 3. In order to prove the case, prosecution has examined in all 17 witnesses and got marked Exs.P.1 to P.13 and produced MOs.1-10. 4. The defence of the accused was one of total denial. They have got marked Exs.D.1 and D.2 in their defence. However, after hearing the prosecution and the defence the learned Sessions Judge convicted the accused and sentenced them as herein before mentioned. The convicted accused have filed this appeal. 5. Heard Sri S. Vishwajith Shetty and Sri M. Seetharam Shetty, learned Counsels for the appellants and Sri Vijaya Kumar Majage, learned HCGP for the respondent State. 6. Learned counsels for the appellants submit that an artificial case is filed against the accused and that the complainant was knowing the names of the accused as on the date of the offence, however, in the wound certificate the complainant has not mentioned the name of the assailants, though he was well aware of the same. It is the further case of the complainant that the accused No.1 had asked for a loan of Rs.50,000/- from the complainant for the purpose of celebrating the marriage of his relative and that if not the cash loan, accused No.1 Aziz has further asked for lending 15 sovrein of gold for conducting the marriage of his relative. On the other hand it indicates that the brother of accused No. 1 has sent the money for the said marriage purpose and accused No.1 has given a sum of Rs.50,000/-to PW.1 for the purpose of making jewels for the said marriage. On the other hand it indicates that the brother of accused No. 1 has sent the money for the said marriage purpose and accused No.1 has given a sum of Rs.50,000/-to PW.1 for the purpose of making jewels for the said marriage. He further submits that the prosecution case is that the incident has happened near the factory as mentioned in the wound certificate Ex.P.8 whereas, the incident has happened on the road and not near the factory. It is further submitted by him that the charge framed against the accused is that they had caused injuries by means of a stone piece and the said stone piece produced before the Court is having a length of 5 feet and breath of 17 inch. It is further elicited in the evidence of the witnesses that the stone pillar cannot be lifted single handedly while deposing in the Court and therefore, the question of lifting the stone and putting it on the person of PW.1 does not arise and if at all the said stone was put on the body of PW.1, he would have succumbed to the injuries there itself. Hence, the prosecution has produced a totally different stone before the Court. He further submits that the case of the complainant is that the accused have snatched 6 rings from the fingers of the complainant so also all the gold chain and 2 bracelets in all weighing 15 Pawens of gold, if at all the rings were forcibly snatched at the time of the incident, there would have been some marks on the fingers of the complainant. But the evidence of the doctor is silent in so far as the injuries on the fingers of PW.1. So far as the recovery is concerned, he submits that both PWs.7 and 8 who are the witnesses for the recovery mahazar Ex.P.6, have turned hostile and the recovery is also not proved in this case. Ex.P.7 recovery mahazar is drawn in Bangalore in the house of one Radha Krishna near the Woodland Hotel, Bangalore and said Radha Krishna is not examined by the prosecution to prove that the articles have been recovered by the police in accordance with law. Ex.P.7 recovery mahazar is drawn in Bangalore in the house of one Radha Krishna near the Woodland Hotel, Bangalore and said Radha Krishna is not examined by the prosecution to prove that the articles have been recovered by the police in accordance with law. He submits that the voluntary statement alleged to have been made by accused No.1 is not produced to show that the accused himself has committed the robbery of the articles and because of its non-production, the recovery, loses its value. The corroborative evidence of PW.3 Shobha regarding the injured complainant sustaining injuries and his arrival to the house of the father of PW.3 is also suspicious. It is the father of the PW.3 byname Raja Poojary who is the person to whom the complainant is alleged to have stated regarding the assault on him by the accused. So far as the said PW.3 is concerned, her version is hearsay evidence and same cannot be relied on. The learned counsel for the appellants further submit that PW.1 himself was involved in a murder case and that there was another case before the Magistrate Court at Mangalore in which he was charged for throwing stones on the police jeep and he therefore, submits that the version of PW.1 cannot be believed since, there is no independent corroboration and the conviction recorded against the accused is liable to be set aside and prays that the appeal may be allowed. 7. Learned HCGP submits that the evidence of PW.1 is corroborated with the evidence of PW.3 Shobha and further corroborated with the evidence of PWs.2 and 4 who are brother and mother of PW.1. They have arrived at the scene of occurrence immediately after the incident and that it was informed to them that the accused have assaulted PW.1. He further submits that the police have recovered the robbed jewels from the person of PW.1 and Exs.P5 to P.7 clearly establishes that the jewels were seized from the house of A1 and from the house of Radha Krishna respectively and that the accused have won over PWs.6 and 7. The recovery has been made at the instance of the accused. The voluntary statement of A2 is recorded and produced before the Court which amply proves that the recovery is made at the instance of A2 as found in the voluntary statement. The recovery has been made at the instance of the accused. The voluntary statement of A2 is recorded and produced before the Court which amply proves that the recovery is made at the instance of A2 as found in the voluntary statement. He further submits that the character of the complainant is not relevant in the criminal case and therefore, no inference can be drawn from the fact that the complainant was involved in some other cases, unless, it is proved that he has been convicted for the said offence by a competent Court. Under the circumstances, he submits that the prosecution has proved beyond reasonable doubt that accused have robbed the gold jewels MOs.2 to 8 from the person of PW.1 and while so robbing they have also attempted to commit murder or such grievous hurt as is likely to cause the death in order to attract Section 397 IPC and submits that Ex.P.8 clearly indicates that PW.1 has suffered injuries in consequence of the assault committed on 18.07.1998. Hence, he prays that the order of conviction may be confirmed and appeal may be dismissed. 8. The prosecution in this case commenced with recording of the statement from Ravindra Acharya by the Suratkal Police, at the Padmavathi Hospital. It is stated in the said statement, that he is carrying on the business of gold jewelry works. He has stated that he is not only preparing the gold ornaments but he is also doing the business of sale of gold ornaments since 5½ years prior to the complaint. He has stated that A1 is the resident near the shop of the complainant and he is the friend of A1 and was moving along with him always and knows the entire business and the affairs of the complainant. A1 has informed him that his aunt’s daughter is getting married on 9th of the next month and therefore, he had asked for a loan of Rs.50,000/-, one week prior to the date of the incident. When he refused to give the amount, the accused had asked loan for 15 Pewans of gold but the said request was also rejected by him, since on the previous occasion the accused has not returned the money taken by him. When he refused to give the amount, the accused had asked loan for 15 Pewans of gold but the said request was also rejected by him, since on the previous occasion the accused has not returned the money taken by him. On 18.07.1998 at about 10.30 a.m., A1 phoned him saying that he is phoning from Bykampadi and he has to purchase some ready made jewels, hence, he requested him to come there. Himself and his brother Satish went to their area to Bykampadi and accused was not found near Deepak Petrol Pump therefore, they came back. Again at 1 p.m., A1 phoned up and told him that he could not wait earlier and asked him to come again near the Deepak Petrol Pump and asked him to come alone. He went alone in his Maruthi Van and at that time A1 was found along with A2 Imtiaz and both of them got into the car and told him that in the house of his brother in law near the tile factory at Kana there was cash so saying again they went in the vehicle towards kulai hill and reached Khana and thereafter, they went near Mangala Hallow Block Road. He was driving on the road, when the car reached an isolated placed, the accused told them that the house of his brother-in-law is passed and therefore, asked to reverse the car. A1 was sitting in the left side of his seat. He stopped the car and slowly reversed it and when he reversed the car, A1 suddenly took a knife from his waist and asked him as to why he cannot give cash or gold and stabbed to his stomach and complainant raised his hand and the assault feel on his left palm and he got suspicious and stopped the car and got down from the car. When he was about to run away the accused held him and pushed him to the drain. Both of them assaulted him saying that they should not leave him today. Imtiaz kept his neck tightly pressed. A1 took a stone piece and assaulted on the right ear by force. When he was about to run away the accused held him and pushed him to the drain. Both of them assaulted him saying that they should not leave him today. Imtiaz kept his neck tightly pressed. A1 took a stone piece and assaulted on the right ear by force. He became unconscious and at that time, Aziz A1 snatched three gold chains from his neck and two bracelets from his right hand, Imtiaz snatched 6 rings from his right hand and also searched his pant and shirt and took cash of Rs.12,800/- found in his pocket. Saying that the complainant would not get up they ran away from the scene of occurrence. The complainant has further stated in the complaint that thereafter, slowly he recuperated himself and went to the house of one Shobha which was nearby and informed them. He also gave the telephone number of his house and asked her to phone up to their house. Shobha went and phoned up and after sometime, his mother and brother Satish and neighbour by name Prakash came there and informed the incident to them. They removed him to Padmavathi Hospital and doctor got him admitted as inpatient and he was treated for the injury caused on his left palm by means of a knife and the injury caused on his right ear by stone. He has stated that the time of incident is about 1.30 p.m., since he had not given cash or gold for the marriage, the accused Aziz and Imtiaz have robbed the chain namely rope chain of Karnataka Map design, double square chain, Navarathna chain, one Navarathna ring, one Diamond ring, one Havala ring, one Pavithra Ring, one elephant ring and one plain ring and 2 bracelets approximately weighing 14 Pawens and same would be worth about Rs.42,000/-. He has further stated that he has identified the gold articles and hence, prayed for action against the accused. The Suratkal Police recorded the statement in the hospital, registered the same in crime No.95/1999 for offence under Section 394 IPC and commenced investigation. After recording the statements of witnesses drawing panchanama of the scene of occurrence, recovery of the gold articles and subsequently, on completion of the investigation, charge sheet came to be filed for the offence under Sections 397 r/w. 34 IPC. 9. During the trial, Ravindra Acharya is examined as PW.1. After recording the statements of witnesses drawing panchanama of the scene of occurrence, recovery of the gold articles and subsequently, on completion of the investigation, charge sheet came to be filed for the offence under Sections 397 r/w. 34 IPC. 9. During the trial, Ravindra Acharya is examined as PW.1. He has narrated the incident as narrated in the complaint given by him. He has also stated that on the date of incident accused had snatched the gold ornaments as stated in his complaint and that he has sustained injuries in consequence of assault by both the accused while robbing his gold chains, rings and bracelets and also cash of Rs.12,800/-. He has further stated that immediately after the incident, accused ran away and thereafter, he has gone to the house of one Raja Poojary and narrated the incident to Raja Poojary. The daughter of Raja Poojary informed the incident to his family members and whereafter, his brother and mother came to the house of Raja Poojary and from there, he was shifted to Padmavathi Hospital. He has identified the complaint given by him to the police, which was recorded in the hospital as per Ex.P.1. He has also identified the clothes worn by him. MO.1 is the shirt worn by him at the time of offence. He has also identified the gold articles as MOs.2 to 8 recovered by the police and produced in the Court. He has identified the knife used by A1 and also the stone used for assaulting him as per MOs.9 and 10. In the cross-examination, he has stated that he has maintained records for having received the orders for preparation of gold and further, that in the process of getting down from the Maruthi Van, the accused have assaulted him and his one leg was on the road and another leg was inside the vehicle, at the moment when accused caught hold of him. The drainage is 15 feet away from the place where he was pushed. When he fell down in the drainage he did know the manner in which the accused caught hold of him but has stated that they have caught hold his neck and he has already stated their names in the Padmavathi Hospital at Surathakal and both the accused are well known to him. When he fell down in the drainage he did know the manner in which the accused caught hold of him but has stated that they have caught hold his neck and he has already stated their names in the Padmavathi Hospital at Surathakal and both the accused are well known to him. It is suggested to him that he had not mentioned the names of the accused as assailants, when the doctor was questioning him at the Padmavathi Hospital, therefore, he has created a false story against the accused. It is admitted by him that there is a case pending against him in connection with the murder of one Rahuth and also another case before JMFC II Court, where it is alleged that he and his brother and others have pelted stones on the police who were on patrolling duty. It is further suggested to him that a false case as against the accused is concocted, as the accused have neither robbed nor assaulted him as alleged by him. PW.2 Satish Acharya is the brother of PW.1. He has stated that on receipt of telephone from Shobha, himself and his mother reached the house of Raja Poojary and found PW.1 injured in to his right palm and also another injury on his right ear and both the injuries were bleeding and they have removed him to Padmavathi Hospital, Surathkal. However, he has not witnessed the incident. PW.3 has stated that PW.1 had come to their house about 6 years ago for taking a puppy and therefore, she knows him. She has stated that on the date of the incident. PW.1 had come with bleeding injuries on his hand and asked for water for drinking, after she gave water to him, PW.1 asked her to ring up to his mother and accordingly, she went to a STD booth at Kana and telephoned to the house of the complainant. Thereafter, house people of PW.1 came and took PW.1 from their house. In the cross-examination, it is elicited that on the way to Hollow Block Factory, there are many houses situated in Kana Thokor and number of persons are working in the said factory also. Many vehicles are regularly plying on the Kana Thokoor road. PW.4 Indira is the mother of PW.1. She has stated regarding PW.1 going to the house of PW.3-Shobha with bleeding injuries. Many vehicles are regularly plying on the Kana Thokoor road. PW.4 Indira is the mother of PW.1. She has stated regarding PW.1 going to the house of PW.3-Shobha with bleeding injuries. She has stated that when she noticed her son PW.1, three chains and six finger rings and two bracelets were missing from the person of PW.1. PW.1 informed him that accused had robbed the said jewels from him. In the cross-examination, it is elicited that her husband is doing business at Krishnapura and that on the receipt of telephone they secured Autorickshaw to go to the house of PW.3. When they reached Padmavathi Hospital, the history of the injuries caused to PW.1 has been explained by PW.1 and PW.2 went to Surathkal Police Station to give a complaint. PW.5 Prakash is running a tailor shop in Krishnapura and at the request of PW.4 he has accompanied PW.4 to Kana in an Autorickshaw and the Auto went searching for PW.1 and at that time, PW.2 and others came in Maruthi Van and thereafter, they traced PW.1 in the Court yard of the house of PW.3. Thereafter, he was shifted to the hospital. PW.6 Jayasheela K. Kanchan is the witness for the recovery and gold articles and he has turned hostile to the case of the prosecution. However, he has signed Ex.P.5 which is a seizure mahazar and Ex.P.5 (a) is his signature. He has further signed Ex.P.6 which is the mahazar regarding the seizure of bracelet and gold finger rings but however, he has denied his presence at the time of seizure of the articles. PW.7 Bhaskar Shetty is another witness for seizure mahazar-Exs.P.5 and P.6 who has also denied the knowledge of recovery at the instance of the accused and has turned hostile to the case of the prosecution. PW.8 is the gold smith who is working in the Shop of PW.1 and is a relative. He has also stated regarding the incident though not an eyewitness to the same. PW.9 Jagadish Achar is the gold smith who was asked by the police to weigh the gold ornaments belonging to PW.1. Accordingly, he has weighed as per the mahazar Ex.P.3. PW.10 Sadananth has turned hostile to the case of the prosecution. PW.11 Dr. He has also stated regarding the incident though not an eyewitness to the same. PW.9 Jagadish Achar is the gold smith who was asked by the police to weigh the gold ornaments belonging to PW.1. Accordingly, he has weighed as per the mahazar Ex.P.3. PW.10 Sadananth has turned hostile to the case of the prosecution. PW.11 Dr. Suresh Mankar is the senior surgeon at Wenlock District Hospital, who has stated that at about 3 p.m., on 18.07.1998, he has examined PW.1 in Padmavathi Hospital, Surathkal and has stated that PW.1 has sustained 4 injuries and has issued Ex.P.8 wound certificate. In the cross-examination, it is elicited that the names of the assailants are not shown in the said Ex.P.8, nor the patient has told him the names of the assailants. It is further elicited that the place of the incident is shown as factory in Ex.P.8 and the age of the injury is also not mentioned in the said certificate. PW.12 is the head constable who has accompanied the Inspector of Police while the Inspector has seized the gold bracelets and gold rings at the instance of accused Aziz as per Ex.P.6. In the cross-examination, it is stated by him that they write the minutes books regarding the duties performed during the day and obtain the signatures of the Station House Officer and that no minute book is produced nor the CPI has seized the said book. It is suggested that he is deposing falsely. PW.13 is the head constable who has registered the case in crime No.95/98 for the offence under Section 397 r/w. 34 IPC and Ex.P.9 is FIR. PW.14 is the Inspector of Police who has conducted the part of investigation in this case, by visiting the scene of occurrence and drawing a rough sketch of the scene of occurrence as per Ex.P.10 and further recording the statement of witnesses including PW.3 Shobha, PW.2 Satish Acharya, PW.4 Indira and PW.5 Prakash and handed over the investigation to his successor in the office. PW.15 is the PSI of Surathkal Police Station. He has recorded the statement of injured PW.1 as per Ex.P.1 on 18.07.1998 at about 4 p.m. He has apprehended the accused and produced them before the CPI and he has taken A1 Aziz to Ejipura in Bangalore and in the house of one Radha Krishna a gold chain was produced by A1 and drawn panchanama Ex.P.7. He has recorded the statement of injured PW.1 as per Ex.P.1 on 18.07.1998 at about 4 p.m. He has apprehended the accused and produced them before the CPI and he has taken A1 Aziz to Ejipura in Bangalore and in the house of one Radha Krishna a gold chain was produced by A1 and drawn panchanama Ex.P.7. The said chain was recovered and produced before the Investigating Officer. PW.16 was the circle Inspector of Police during the relevant period who has recorded the voluntary statements of the A1 and A2. On the basis of the said voluntary statement, he has recovered the gold articles and later produced before the magistrate and after obtaining the custody of A1, he has recovered further articles through A1 from Bangalore. After completion of the investigation, he has filed the charge sheet in this case. PW.17 Dr. Hamsaraja Alva, has stated that on 22.07.1998 he has examined PW.1 at the Vijaya Clinic who was shifted from the Padmavathi Hospital, Surathkal. He has conducted haemo dialysis in Vijaya Clinic on PW.1 since, the patient had suffered chronic ----- failure. 10. It is from the evidence of these witnesses, that the learned Sessions Judge has found the accused guilty and convicted them and sentenced them as aforesaid. 11. On a careful re-consideration of the entire materials on record, it is seen that at the very outset the complainant has not disclosed the names of the assailants to the doctor when he was first taken before PW.11 at the Padmavathi hospital, Surathkal. It is the case of the complainant that the accused were well known to him and were moving along with him and the accused were knowing all the affairs of the complainant, even prior to the date of the incident. If that is so, when accused had attempted to put a size stone on his body which was 5 feet in length and was very heavy, the complainant should have apprehended that the accused wanted to kill him. Over and above, the accused have snatched gold weighing 15 soveriens and therefore, it at all the accused had snatched the gold articles from him, the complainant would have disclosed the names of the assailants to the doctors at Padmavathi Hospital. Over and above, the accused have snatched gold weighing 15 soveriens and therefore, it at all the accused had snatched the gold articles from him, the complainant would have disclosed the names of the assailants to the doctors at Padmavathi Hospital. It is not the case of PW.11 or any other witnesses that PW.1 either lost his conscience or was so ill as not to be able to talk. Under the circumstances, the very involvement of the accused in the offence becomes doubtful. On a careful scrutiny of the wound certificate, it is seen that the incident has taken place near the factory and it is not known as to which factory the complainant refers and further statement has been recorded, nor the investigation is directed to find out at which factory the incident has happened. The prosecution case is that the incident has happened on the road. It is further seen that the complainant has not given the time at which the incident has happened on 18.07.1998 while disclosing the history to the doctor at Padmavathi Hospital, Surathkal. The complainant has been examined by the doctor 3 p.m. on 18.07.1998 and nowhere in Ex.P.8 there is no mention about the loss of conscience of the complainant. Under the circumstances, the non-disclosure of the names of the assailants to the doctor PW.11 raises doubt regarding the involvement of the accused in the offence. It is further seen that the witness is for recovery of the alleged gold articles which were alleged to have been robbed have turned hostile to the case of the prosecution. Therefore, it cannot be said that the gold jewels stolen or robbed from the person of PW.1 were seized at the instance of A1 or A2. It is further seen that the version of PW.3 regarding the injured coming to their house is doubtful because the father of PW.3 who saw the complainant has stated regarding the assault by the accused. If at all such an information was given to the father of PW.3 the version of PW.3 that complainant informed her regarding the incident becomes hearsay evidence. In so far as the probability of the happening of the incident itself is concerned, it is the case of PW.1 that the accused “have lifted” a piece of stone and have assaulted him near his right ear. In so far as the probability of the happening of the incident itself is concerned, it is the case of PW.1 that the accused “have lifted” a piece of stone and have assaulted him near his right ear. MO.10 is the stone pillar which was produced before the Court the said stone is 5 feet in length and 17” breath. The defence has demonstrated in the Court that it is impossible for a single person to lift the said stone. It is further seen that if such a big stone is put on PW.1, the injuries that would have been sustained by PW.1 would have been much more grievous than what was mentioned in Ex.P.8, wound certificate, Ex.P.8 states that PW.1 has sustained 2 lacerated would and one abrasion and one incised wound and one more abrasion. Having regard to the nature of the stone and its weight, it cannot be believed that injuries caused on PW.1 could have been the only injuries caused if MO.10 is lifted and put on his head. He would have few contusions if not fractures. Under the circumstances, the narration of the incident by the complainant PW.1 cannot be believed in the light of the injuries mentioned in Ex.P.8. On a totality of the entire evidence on record, it can be gathered that the incident has not been truthfully narrated by the complainant himself and therefore, I am of the opinion that serious doubt arises regarding the manner in which the incident is alleged to have been happened and under the circumstances, and in view of the doubtful evidence adduced by the prosecution, the entire story of the prosecution cannot be believed as a whole truth. In view of what is stated above I am of the opinion that the accused are entitled for an order of acquittal holding that the prosecution has not proved the case against the accused beyond reasonable doubt. In the result, the appeal is entitled to succeeded. Accordingly, this appeal is allowed. The order of conviction is hereby set aside and the accused are acquitted of the offences leveled against them. Bail bonds executed by the accused if any, is hereby discharged. Fine amount if deposited shall be refunded to them.