JUDGMENT : Mohan M. Shantanagoudar, J. 1. The judgment and order of acquittal dated 2-8-2011 passed by XXX11 Additional Sessions Court, Bangalore in SC No. 657 of 2008 is appealed against by the State. By the impugned judgment, the Trial Court has acquitted accused 2,3 and 4 of the offence punishable under Section 395 of Indian Penal Code. 2. Case of the prosecution in brief is that when P.Ws. 2 and 3 (husband and wife respectively) were coming back to their house from their in-laws' house on 1.6.2016 in their car bearing Regn. No. MP.09-HB-5122, the said car was waylaid by 5 to 6 persons at 11.45 p.m. near Nalla Road, Austin Town, Bangalore; all such 5 to 6 persons have covered their faces; they were armed with weapons like choppers; they threatened P.Ws. 2 and 3 with dire consequences in case if they do not hand over the valuables; accordingly, they gave their valuables such as gold rings, necklace, gold chain, mangalasutra, etc. (M.Os. 1 to 6) to the accused; thereafter all the accused fled away from the scene. First information came to be lodged as per Ex.P. 3 by P.W. 2 at 00.15 hours, i.e., during midnight intervening between 1st and 2nd June, 2006, Wore Viveknagar Police Station, Bangalore which came to be registered in Crime No. 192 of 2006 for the offences punishable under Sections 341 and 384 read with Section 149 of IPC. During the course of investigation, further statement of the complainant is recorded on 31-7-2006, i.e., about two months after lodging of the complaint. 3. Though in the complaint at Ex.P.3, the complainant had mentioned that all the accused had covered their faces with kerchiefs, in his further statement recorded after about two months from the date of lodging of the complaint, he has improved his case stating that accused namely, Jayakumar, Avinash and Santhosh (respondents herein) had covered their faces to the extent of half and not fully. The complaint came to be registered by the Sub-Inspector of Police-P.W. 7. The investigation is completed and charge-sheet came to be filed by P.W. 10, the Inspector of Police. 4. In order to prove its case, the prosecution in all has examined 19 witnesses and got marked 27 Exhibits and 14 Material Objects. On behalf of the defence, no witness is examined. The investigation is completed and charge-sheet came to be filed by P.W. 10, the Inspector of Police. 4. In order to prove its case, the prosecution in all has examined 19 witnesses and got marked 27 Exhibits and 14 Material Objects. On behalf of the defence, no witness is examined. As mentioned supra, the Trial Court acquitted the accused of the offence with which they were charged. 5. It is relevant to note that totally six persons were named in the charge-sheet as accused. Among them, presence of four accused was secured by the (police during the course of investigation. Out of the said four persons, accused No. 5 was sent for trial before the Juvenile Justice Board as he was a juvenile offender at the time of incident in question. Since accused No. 6 has absconded, he was shown as absconding accused in the charge-sheet. Charge came to be framed as against accused No. 1 and his presence was secured by police. But, he has also absconded after releasing him on bail. Hence, trial came to be held only against accused Nos. 2,3 and 4 who are respondents herein. B The case against accused No. 1 is split up. 6. As aforementioned, PW 2 has lodged the complaint as per Ex. P3. The said complaint came to be lodged during midnight intervening between 1st and 2nd June of 2006. In the complaint it is clearly mentioned by PW2 that face of all the accused were covered with kerchiefs. The incident has taken place at 11.45 p.m. on the main road. However, further statement of the complainant (P.W. 2) is recorded only on 31-7-2006, i.e., after about two months from the date of lodging of the complaint. It seems, during the said period, i.e., in and around 31-7-2006, the respondents were arrested in a different crime, i.e., Crime No. 248/2006 registered for the offence punishable under Sections 399 and 402 of IPC. The respondents herein were shown as accused in the said crime. During the course of interrogation of the accused in the said crime, it seems, the police had gathered the information that they were also accused in the present crime. Hence, PWs.2 and 3 who are the eye-witnesses to the incident in question, were summoned in the Police Station, wherein they identified accused Nos. 2, 3 and 4 (respondents herein). During the course of interrogation of the accused in the said crime, it seems, the police had gathered the information that they were also accused in the present crime. Hence, PWs.2 and 3 who are the eye-witnesses to the incident in question, were summoned in the Police Station, wherein they identified accused Nos. 2, 3 and 4 (respondents herein). Based on such identification of the accused before the Police Station, the prosecution contends that there is no dispute with regard to identity of the accused. 7. We have already mentioned in the aforementioned paragraph that the complaint at Ex. P. 3 clearly discloses that the accused had covered their faces fully. There was no mention in the complaint that they had covered their faces to the extent of half. There was no progress in the investigation fora period of two months. However, on 31-7-2006, further statement of PW.2-complainant is recorded wherein, the prosecution has improved its case that accused Nos. 2, 3 and 4 (respondents herein) had covered their fact's to the extent of half. If really some of the accused had covered their faces partially, the complainant being an Army Officer (Colonel, working in Indian Army) would not have ignored to mention the same in the complaint so lodged immediately after the incident. The incident has taken place on 1-6-2006 at 11.45 p.m. and the complaint came to be lodged by P.W. 2 within about half an hour thereafter i.e., 00.15 hours on 2-6-2006. There was no chance for the complainant to make any improvement as the complaint came to be lodged immediately. The complainant has fairly stated in the complaint at Ex. P. 3 that the accused had covered their faces. Except mentioning that the accused were dark in complexion, no other identification is mentioned in Ex. P. 3. However, in further statement recorded on 31-7-2006, the complainant has stated the overt acts of each of the accused and the description of the weapons possessed and used by each of them. If such details were really known to the complainant, the same could have been mentioned by him at least within a reasonable period, i.e., one or two days after lodging of the complaint at Ex. P. 3. Hence, in our considered opinion the factual aspects which are found in further statement of PW. If such details were really known to the complainant, the same could have been mentioned by him at least within a reasonable period, i.e., one or two days after lodging of the complaint at Ex. P. 3. Hence, in our considered opinion the factual aspects which are found in further statement of PW. 2 recorded on 31-7-2006 are only after thought and the same are made to suit the case of the prosecution. 8. The prosecution has mainly relied upon the versions of P.Ws. 2 and 3 (victims). They are the eye-witnesses to the incident in question. Prosecution has also relied upon the materials collected during the course of investigation which are recovered as M.Os. Nos. 1 to 6 at the instance of the accused. PWs. 18, 19, 8, 9 and 1 are the mahazar witnesses for recovery mahazars at Exs. P19 and P1 under which M.Os. Nos. 5 and 4 are recovered at the instance of accused Nos. 2 and 3. 9. P.Ws. 2 and 3 have proceeded to depose before the Court as per the version found in the further statement of PW 2. Both these witnesses have deposed that respondents-accused had covered their faces to the extent of half and that therefore they could see their faces and identify them. Such version of PWs. 2 and 3 before the Court is a clear improvement which is not found in the complaint. In this view of the matter, the Trial Court in our considered opinion is justified in concluding that the identity of the accused is in serious doubt and that PWs. 2 and 3 would not have identified the accused inasmuch as the accused had covered their faces fully. Even on reconsidering the material on record, we do not find any good ground to come to the conclusion that the identity of the accused is not established by the prosecution before the Court. 10. There was no hurdle for the prosecution to conduct the test identification parade. If really accused were involved in the present crime and if the prosecution wanted to show before the Court that it is fair, then the Investigating Officer would have definitely made arrangements to conduct test identification parade as required under law. 10. There was no hurdle for the prosecution to conduct the test identification parade. If really accused were involved in the present crime and if the prosecution wanted to show before the Court that it is fair, then the Investigating Officer would have definitely made arrangements to conduct test identification parade as required under law. According to the case of the prosecution, the presence of the accused (respondents herein) is secured only after about two months of the incident in question, inasmuch as they were arrested in a different crime. After the gap of two months, PWs. 2 and 3 have identified the accused (respondents herein) in the Police Station. Even on that day itself, the Investigating Officer could have made arrangements to hold the test identification parade. Absolutely no reason much less valid reason is forthcoming as to why the test identification parade was not conducted. Having regard to the totality of the facts and circumstances, in our considered opinion, the prosecution has not come out with true story and has not acted fairly. 11. Insofar as recovery of robbed articles is concerned, the prosecution has relied upon two mahazars at Exs.P 19 and P1. According to the prosecution, no recovery is made from accused No. 4. Thus, it is clear that no recovery is made from respondent No. 3 herein. However, as per the prosecution, the recoveries are made from accused 2 and 3 only. The gold ring (M.O.No. 5) is recovered at the instance of accused No. 5 and the gold chain (M.O. No. 4) is recovered at the instance of accused No. 4 under two different mahazars. In order to prove recovery at the instance of accused No. 2, the prosecution has relied upon the evidence of P.Ws. 18 and 19, who are the witnesses for panchanama at Ex. P. 19. Among them, PW 18 has turned hostile to the case of the prosecution. However, P.W. 19 has supported the case of the prosecution. 12. The evidence of PW 19 discloses that he is a friend of accused No. 2; in the year 2006, accused 2 had given him gold ring (M.O. No. 5) and asked to sell the same to the third parties; accordingly PW.19 sold M.O. No. 5 and handed over the sale proceeds to accused No. 2. In other words, P.W. 19 has acted as a middleman for selling the stolen property. In other words, P.W. 19 has acted as a middleman for selling the stolen property. It is further deposed by P.W. 19 that the sold the gold ring (M.O. No. 5) in favour of PW 18 for Rs. 6,000/- and handed over the said amount to accused No. 2. On 29-7-2006, accused 2 led the ' police and P.W. 19 to the shop of P.W. 18 and asked him to produce the said gold ring. P.W. 18 in turn produced the said gold ring before the police which is seized under Ex.P19. Absolutely no document is forthcoming to support the case of the prosecution. PW.19 is an owner of sweet mart. He is neither a pawn broker nor a jewellery shop owner. Even believing the version of PW.19, it cannot be said that the prosecution has made out a case as against accused No. 2, inasmuch the prosecution has not proved its case beyond reasonable doubt for the reasons mentioned supra. It is also relevant to note the version of PW. 18 in this context. He has deposed that he had purchased the gold ring from PW. 19 for Rs. 6,000/- and after six months, the police brought accused No. 2 and PW. 19 to his shop; the police told PW. 18 that he has purchased stolen ring (M.O. No. 5) and as such he has to produce the said ring before the police; hence, he produced the said gold ring, which came to be seized by the police. The evidence of PW.18 reveals that accused No. 2 did not lead police and panchas, but it was the police who led panchas to the shop of PW.18. In other words, accused No. 2 has not volunteered to show the place where he had sold the gold ornament (M.O. No. 5). Hence, PW. 18 was treated as hostile to the case of the prosecution. Even in the cross-examination, PW. 18 reiterates that it was the police who had led accused No. 2 and panchas to the shop, but not accused No. 2. Thus, the versions of PWs.18 and 19 are contradictory to each other. Therefore, we are unable to rely upon the evidence of PWs.18 and 19 with regard to recovery of M.O. No. 5. 13. The next recovery is in respect of gold chain (M.O. No. 4) under panchanama at Ex.P1 at the instance of accused No. 3. PWs. Thus, the versions of PWs.18 and 19 are contradictory to each other. Therefore, we are unable to rely upon the evidence of PWs.18 and 19 with regard to recovery of M.O. No. 5. 13. The next recovery is in respect of gold chain (M.O. No. 4) under panchanama at Ex.P1 at the instance of accused No. 3. PWs. 1, 8 and 9 are the witnesses for recovery panchanama at Ex.P1. Among them, P.W. 1 has turned hostile to the case of the prosecution. P.W. 8 is having a pawn broker shop at Bangalore. In the examination-in-chief, P.W. 8 has deposed that accused 3 brought one gold chain with dollar which was weighing about 24 gms. and sold the same in his shop for Rs. 14,500/-. After one month, the said gold chain (M.O. No. 4) came to be seized by the police at the instance of accused No. 3 under the mahazar at Ex. P. 1. However, in his entire evidence, the property seized is not identified by PW.8. Thus, we are at a loss to understand as to whether M.O. No.4, which is allegedly recovered by police from the shop of PW.8 is true or not. Since the property itself is not identified by PW. 8, the Trial Court is justified in not relying upon the evidence of PW.8. Even in the evidence of another witness for Ex.P1 (PW.9), he has also not identified M.O. No. 4 which is allegedly recovered as per Ex.P1. Hence, evidence of these witnesses suffers from grave error, inasmuch as both these witnesses have not identified the property recovered by the police. Though certain recoveries are made at the instance of accused No. 1, we are not discussing such evidence inasmuch as the same is unnecessary for disposal of this case as accused No. 1 is not one of the respondents in this matter. 14. Having regard to the aforementioned material on record, we are of the clear opinion that the prosecution has failed to prove the identity of any of the accused and has also failed to prove the recovery of gold ornaments (MO. Nos. 4 and 5) which were allegedly recovered by the police at the instance of accused Nos.2 and 3. Even on reconsidering the entire material on record, we do not find any ground to interfere with the order of acquittal passed by the Trial Court. Nos. 4 and 5) which were allegedly recovered by the police at the instance of accused Nos.2 and 3. Even on reconsidering the entire material on record, we do not find any ground to interfere with the order of acquittal passed by the Trial Court. Though the reasons assigned by the Trial Court are unsatisfactory, the conclusion reached by it is just and proper. Hence, in our opinion, the view taken by the Trial Court is one of plausible views under the facts and circumstances of the case. Hence, no interference is called for. Accordingly, the appeal fails and the same stands dismissed. We place on record the valuable assistance rendered by Sri Somashekar Angadi, learned Amicus Curiae. Hence, registry is directed to pay a sum of Rs. 10,000/- (Rupees ten thousand only) to Sri Somashekhar Angadi, learned Amicus Curiae as an honourarium.