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2020 DIGILAW 1781 (KAR)

Raju v. State of Karnataka

2020-09-09

H.B.PRABHAKARA SASTRY

body2020
ORDER : H.B. Prabhakara Sastry, J. 1. The revision petitioners in Crl. R.P. No. 839 of 2013 and Crl. R.P. No. 723 of 2009 are accused Nos. 1 and 2 respectively who were convicted by the Court of Additional Civil Judge and J.M.F.C. at Anekal (henceforth for brevity referred to as the 'Trial Court') in C.C. No. 558 of 2004 for the offence punishable under Section 457 and 380 of the Indian Penal Code (henceforth for brevity referred to as the 'IPC') and were sentenced accordingly. Aggrieved by the same, both the accused preferred an appeal in the Court of the Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru (henceforth for brevity referred to as the 'Appellate Court') in Crl. A. No. 76 of 2006 and Crl. A. No. 70 of 2006 respectively which appeals also came to be dismissed while confirming the impugned judgment of the Trial Court vide its judgment dated 07.08.2009. Aggrieved by the same, the accused have preferred these two revision petitions. 2. Respondent-State is being represented by the learned High Court Government Pleader. The Trial Court and Appellate Court's records were called for and the same were placed before this Court. 3. Heard the arguments from both sides. Perused the materials placed before this Court. 4. The point that arise for my consideration is: "Whether the judgment of conviction passed by the Trial Court and confirmed by the Appellate Court holding the accused guilty of the offence punishable under Sections 457 and 380 of the IPC suffers from any illegality or incorrectness warranting interference at the hands of this Court"? 5. Summary of the case of the prosecution in brief is that, on the date 09.05.2004 at about 10.30 p.m., accused Nos. 1 and 2 (petitioners herein) committed lurking house trespass of ticket counter room of K.S.T.D.C. in Bannerghatta National Park, Bengaluru and committed theft of Rs.6,90,840/- kept in cash chest and thereby have committed an offence under Sections 457 and 380 of IPC. 6. The accused were charged for the alleged offence since they pleaded 'not guilty'. The prosecution in order to prove the guilt against them examined nine witnesses from PWs-1 to 9 and got marked documents from Exs. P1 to P9(b) and material objections at M.O. Nos. 1 to 16. From the accused side, neither any witness was examined nor any documents were marked as exhibits. The prosecution in order to prove the guilt against them examined nine witnesses from PWs-1 to 9 and got marked documents from Exs. P1 to P9(b) and material objections at M.O. Nos. 1 to 16. From the accused side, neither any witness was examined nor any documents were marked as exhibits. Both the Trial Court as well the Appellate Court appreciating the materials placed before them held that the prosecution could able to prove beyond the reasonable doubt the alleged guilt against the accused. 7. Learned counsel appearing for the petitioner (accused No. 1) in Crl. R.P. No. 839/2013 in his arguments submitted that he would not dispute the alleged incident of the lurking house trespass and theft of cash amount from the K.S.T.D.C. ticket centre at Bannerghatta National Park, Bengaluru on the alleged night of 09.05.2004. However, he strongly disputes the alleged involvement of the accused No. 1 in the said incident. He submitted that the case of the prosecution is shrouded with serious doubt including non-proving of the finger print said to have been extracted in this appeal and also the Trial Court ignoring the fact of the alleged cash chest at M.O. No. 7 being very heavy could not have been lifted and carried away by the accused who are alleged to be two in number. He also submitted that owner of the land from which place, the cash is alleged to have been recovered has not been examined, as such, the alleged recovery is highly doubtful. 8. Learned Senior Counsel appearing for the petitioner (accused No. 2) in Crl. R.P. No. 723 of 2009 in his argument canvassed only one point that the alleged recovery made at the instance of the accused is not proved by the prosecution in the manner as required to be proved. He submitted that in the absence of proving the alleged recovery of any incriminating material though said to be at the instance of the accused would not be treated as a proven recovery of incriminating material, in the eye of law. As such, when the entire case of the prosecution is solely based upon the alleged recovery and in the absence of the said recovery having proved beyond reasonable doubt, the prosecution case fails. However, the said aspect was not properly appreciated by both the Trial Court as well the Appellate Court. As such, when the entire case of the prosecution is solely based upon the alleged recovery and in the absence of the said recovery having proved beyond reasonable doubt, the prosecution case fails. However, the said aspect was not properly appreciated by both the Trial Court as well the Appellate Court. In his support, learned Senior Counsel relied upon few reported judgments of the Hon'ble Apex Court which would be referred to at the appropriate place in this judgment hereafterwards. However, learned Senior Counsel also submitted that he too would not dispute the occurrence of the alleged incident in the form of lurking house trespass and theft of same cash amount from the complainant's office which is the K.S.T.D.C. ticket counter at Bannerghatta National Park, Bengaluru on the night of 09.05.2004 at about 10.30 p.m. 9. Learned High Court Government Pleader in his arguments submitted that when the incident has not been disputed, the material articles, more particularly, the cash at M.O. Nos. 1, 2, 3 and 4 and hammer at M.O. No. 6 and cash which is at M.O. No. 7 coupled with the evidence of PWs-4 and 5 would establish beyond reasonable doubt that it was the accused/petitioners who have committed the alleged offence. As such, both the Trial Court as well as the Court of Appeal have rightly held them as guilty of offence. Therefore, the interference by this Court is not warranted. 10. It is not in dispute that on 09.05.2004 at about 10.30 p.m., in the K.S.T.D.C. ticket counter of Bannerghatta National Park, an offence of lurking house trespass by criminally entering the premises and taking away the cash chest with the money therein and committing the theft of the cash of an amount of Rs. 6,90,840/- said to have been kept in the said cash chest and thus, committing the alleged an offence is not in dispute. However, the only question of dispute is that the accused have committed the alleged offence. 11. The evidence of PW-2, the complainant who is also the accounts officer of K.S.T.D.C., Bannerghatta National Park coupled with the evidence of PW-3, the panchas to the scene of the offence, Ex. P2 and the evidence of PW-1 K.M. Ramesh, the first Investigating Officer who received the complaint as per Ex. P1 and drew the scene of offence panchanama as per Ex. P2 and the evidence of PW-1 K.M. Ramesh, the first Investigating Officer who received the complaint as per Ex. P1 and drew the scene of offence panchanama as per Ex. P2 have not been seriously disputed with respect of the occurrence of the incident of lurking house trespass and theft. However, the evidence of said PW-2 with respect to the alleged recovery and the evidence of PW-4, PW-5, PW-6 and PW-7 who are the material witnesses and who have spoken about the alleged recovery of the cash amount of a sum of Rs. 30,000/- plus Rs. 5,88,140/- has been seriously disputed from the accused side. 12. PW-2 has stated that subsequent to the lodging of the complaint as per Ex. P1 on 10.05.2004, the police summoned him to the police station and apart from showing accused in the station also shown him a sum of Rs. 6,48,140/-, one Bajaj scooter, one Car and a set of duplicate keys stating that it was those two accused who have committed the theft of the said cash amount. However, admittedly, the said witness nowhere has stated that he has identified the said cash as the amount stolen by the accused. As to his personal knowledge, he is surely a hear-say witness who was told by the police that the alleged act was committed by the accused. This witness does not even say as to on what basis he has identified the said cash amount as the one which was kept in the cash chest on the night of the alleged incident. As such, his evidence would not enure to the benefit of the prosecution in proving the alleged guilt against the accused. 13. The evidence of PW-4 B. Nagaraj, Clerk at the said K.S.T.D.C. office and PW-5 J. Godwin, the Manager of the said K.S.T.D.C. office, at a cursory glance would go to show that in their presence, the complainant/police are said to have recovered a sum of Rs. 30,000/- cash and a iron hammer at the instance of the accused and in that connection, are shown to have drawn a recovery panchanama as per Ex. P3. Both these witnesses have stated in their examination-in-chief that the recovery of the said articles in the form of cash of Rs.30,000/- and a hammer was made in their presence. 30,000/- cash and a iron hammer at the instance of the accused and in that connection, are shown to have drawn a recovery panchanama as per Ex. P3. Both these witnesses have stated in their examination-in-chief that the recovery of the said articles in the form of cash of Rs.30,000/- and a hammer was made in their presence. Similarly, PW-6 M.J. Chandra, an employee in the very same K.S.T.D.C. office and PW-7 Yogendrappa, another employee in the very same K.S.T.D.C. office would also prima-facie go to show that both the witnesses have deposed that the police have recovered a plastic pot with a plastic cover inside containing a cash of Rs. 5,88,140/- and also the accused revealing that a cash chest has been sunk by them inside the well in the land of one Sri. Narayanappa. Both these witnesses have also identified the sample note at M.O. No. 1, plastic pot at M.O. No. 10, plastic bag at M.O. No. 11 and other incriminating articles like plastic wire and a crow bar at M.O. No. 12 and M.O. No. 13. It is these recovery, more particularly, the alleged cash at the alleged instance of the accused, which has been seriously disputed by the petitioners in these petitions. 14. Learned counsel for the petitioner in Crl.R.P. No. 839 of 2013 submitted in his arguments that when it is the case of the prosecution that the alleged recovery of the currency and the currency chest were made in the land belonging to one Sri. Narayanappa, the owner of the said land was necessarily had to be examined as a prosecution witness since the prosecution has failed to do it, the recovery becomes doubtful. Learned Senior Counsel appearing for the revision petition in Crl. R.P. No. 723 of 2009 in his arguments attacked the very process of alleged recovery and submitted that the alleged recovery has not been proved in accordance with law. According to the learned counsel, the Investigating Officer before whom the accused are alleged to have given their voluntary statement has not been examined, as such, the alleged disclosure statement is not proved. When the said statement itself is not proved, the alleged subsequent recovery loses its validity in the eye of law. In his support, he relies upon few cases of the Hon'ble Privy Council and Hon'ble Apex Court. When the said statement itself is not proved, the alleged subsequent recovery loses its validity in the eye of law. In his support, he relies upon few cases of the Hon'ble Privy Council and Hon'ble Apex Court. He also submitted that the alleged identification of the currency note by the prosecution witnesses also loses it sanctity in the absence of any basis for identifying the said note as the one belonging to the complainant's establishment. 15. In the instant case, the alleged recovery of the cash and currency chest are said to have been made in installments. The first recovery is said to have been made in the evening at 5 o' clock on 12.05.2004 in the garden land of one Sri. Narayanappa from a well. A plastic pot with a plastic cover having currency notes inside was said to have been sub-merged. It is the evidence of PW-6 and PW-7 that it was in their presence, the police took out a plastic pot from the said well inside which a plastic cover was noticed. When the said cover was removed, it was found out that cash amount of Rs. 5,88,140/- with different denomination currency notes were found. A mahazar as per Ex. P5 was drawn by the police for seizure of those articles for which both the witnesses have subscribed their signature. The witnesses have also identified a note at M.O. No. 1 as a sample note out of the recovered amount of Rs. 5,88,140/-. 16. Both these witnesses have also stated that subsequently on 13.05.2004 at about 7 o' clock in the morning, the police once again took them to the garden land of the very same Sri. Narayanappa and as told by accused No. 1 that cash chest has been put inside the well situated in that garden land, the police inspected the well but noticing the water level in the well was too high, they did not took out the currency chest from inside the well. However, a panchanama as per Ex. P6 was drawn in their signatures. 17. PW-4 has stated that on 13.05.2004, the police took him and CW-7 (PW-5) to the lands of Narayanappa of Gottagere village where accused No. 2 from near the fence of a dilapidated house took out a bag which when opened was found to be containing three packets of Rs. P6 was drawn in their signatures. 17. PW-4 has stated that on 13.05.2004, the police took him and CW-7 (PW-5) to the lands of Narayanappa of Gottagere village where accused No. 2 from near the fence of a dilapidated house took out a bag which when opened was found to be containing three packets of Rs. 100 currency notes totaling to a sum of Rs. 30,000/-. Accused No. 2 also took out an iron hammer placed near the fence and produced it before the police. The police drew the panchanama as per Ex. P3 in their presence and seized those articles. PW-5 also repeated the very same evidence as given by PW-4. However, with a change that when PW-4 has stated that it was accused No. 2 who took out the incriminating materials and produced before them but PW-5 made that accused as accused No. 1 but not accused No. 2. Both these witnesses have identified a sample note at M.O. No. 4 and an iron rod at M.O. No. 6. 18. It is the above evidence of prosecution witnesses with respect to the recovery that has to be analyzed carefully. Section 27 of the Evidence Act reads as under: "27. How much of information received from accused may be proved - provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved". A reading of the said Section go to show that in order to attract this Section, following essentials are required: i) There must be a discovery of a relevant fact which is based upon the deposition/information by an accused. ii) Such discovery of fact must be upon information received from a person accused of an offence. iii) The said discovery must be deposed to. iv) While giving such information relating to fact, the informer (generally the accused) must be in police custody. Finally, it is only much of the information as relates distinctly to the fact thereby discovered only is admissible. 19. iii) The said discovery must be deposed to. iv) While giving such information relating to fact, the informer (generally the accused) must be in police custody. Finally, it is only much of the information as relates distinctly to the fact thereby discovered only is admissible. 19. In that connection, the law as laid down by the Hon'ble Apex Court and Privy Council regarding the recovery in some of other judgments which have been relied upon by the learned Senior Counsel for the petitioner in Crl. R.P. No. 723 of 2009 in his arguments deserves to be looked into. 20. In Pulukiri Kottaya and others Vs. Emperor (Sir John Beaumont) reported in A.I.R. 1947 Privy Council 67 with respect to Section 27 of the Evidence Act and proving the recovery thereunder, the Hon'ble Privy Council was pleased to observe in para 10 of its judgment that: "the condition necessary to bring the section into operation is that discovery of a fact in consequence of information are received from a person accused of any offence in the custody of a police officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved". 21. In Mohmmed Inayatullah Vs. The State of Maharashtra reported in (1976) 1 SCC 828 at para 12 of its judgment, the Hon'ble Apex Court was pleased to observe the scope and object of the Section 27 of the Evidence Act as below: "the first condition necessary for bringing this section into operation is the discovery of a fact albeit a relevant fact, in consequence of the information received from a person accused of an offence. The second is that the discovery of such fact must be deposed to. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded". 22. In Bahadul Vs. The third is that at the time of the receipt of the information the accused must be in police custody. The last but the most important condition is that only "so much of the information" as relates distinctly to the fact thereby discovered is admissible. The rest of the information has to be excluded". 22. In Bahadul Vs. State of Orissa reported in A.I.R. 1979 SC 1262 wherein it was found that the accused had taken out the weapon from beneath his cot and handed over the same to the police without any statement and also noticing that the said place was accessible to all, the Hon'ble Apex Court was pleased to observe at para 4 of its judgment that: "As there is nothing to show that the appellant had made any statement under Section 27 of the Evidence Act relating to the recovery of this weapon hence the factum of recovery thereof cannot be admissible. Moreover, what the accused had done was merely to take out the axe from beneath his cot. There is nothing to show that the accused had concealed it at a place which was known to him alone and no one else other than the accused had knowledge of it". The Hon'ble Apex Court held that in these circumstances, the mere production of the tangia would not be sufficient to convict the appellant. 23. In Bhimappa Jinnappa Naganur Vs. State of Karnataka reported in A.I.R. 1993 SC 1469 in a case of alleged murder where it was also alleged of a recovery of a weapon, the Hon'ble Apex Court observed that the accused at whose instance, the recovery is said to have been made has only said to have been stated "come with me" and thereafter, he proceeded towards a place near a stream and took out the axe from inside a naala (stream). Observing that there was absence of any disclosure statement. It was held that the recovery of axe itself has become meaningless. 24. In the instant case, as observed above, it is PW-4 and PW-5 who have spoken about the alleged recovery of cash of Rs. 30,000/- at the instance of the accused on 13.05.2004. According to PW-5, the said recovery was made at the instance of accused No. 1. It was held that the recovery of axe itself has become meaningless. 24. In the instant case, as observed above, it is PW-4 and PW-5 who have spoken about the alleged recovery of cash of Rs. 30,000/- at the instance of the accused on 13.05.2004. According to PW-5, the said recovery was made at the instance of accused No. 1. Whereas, PW-4 ahs stated that it was accused No. 2 who took out a bag kept on the side of a fence near dilapidated house in the land of Narayanappa, Gottagere Village. Thus, according to these two witnesses, the accused at whose instance, the alleged recovery was said to have been made are two different accused. This is a major discrepancy in the case of the prosecution. PW-5 nowhere in his evidence has stated that on 13.05.2004, in the afternoon, who took him to the garden land of Narayanappa along with PW-4 B. Nagaraj. He has not stated whether it was the police or the accused or both. He has also not stated whether any of the accused accompanied them or lead them to the said garden land of Narayanappa. Moreover, PW-5 has not stated as to who took out the cover alleged to have been containing a cash of Rs. 30,000/-. On the other hand, what this witness has stated is that as per the statement of accused No. 1, a cover was handed over. He does not say specifically that it was either of the accused who took out the cover from the alleged place. 25. On the contrary, PW-4 has given a different version of the alleged recovery. He has stated that on the said day of 13.05.2004, the police had summoned him and CW-7 to the police station. From there, accused No. 2 was taken near the land of Narayanappa, Gottagere Village by police. From under a fence near a dilapidated house which was there accused No. 2 took out a bag which had contained currency notes worth Rs. 30,000/-. The said evidence of PW-4 nowhere shows that from the police station either the police or the accused took this witness along with CW-7 to the land of Narayanappa, otherwise, the witness should have clearly and specifically stated that either the police or the accused took these two witnesses also with them to the said place. 30,000/-. The said evidence of PW-4 nowhere shows that from the police station either the police or the accused took this witness along with CW-7 to the land of Narayanappa, otherwise, the witness should have clearly and specifically stated that either the police or the accused took these two witnesses also with them to the said place. Whereas, as observed above, the witness has only stated that the police took accused No. 2 to the said place of Narayanappa. Therefore, about PW-4 and PW-5 either following the police or the accused to the lands of Narayanappa has nowhere been stated by the witness. More importantly, according to PW-4, it is accused No. 2 who took out the cover containing the cash. On the contrary, as observed above, according to PW-5, it was upon the statement of accused No. 1, a cover containing cash amount was taken out upon the statement of accused No. 1. Therefore, there is great contradiction between the evidence of PW-4 and PW-5 about the alleged recovery of the cash amount of Rs. 30,000/- on 13.05.2004. This major discrepancy has not been observed either by the Trial Court or by the appellate court. 26. Regarding the recovery of the cash chest also, the evidence lead by the prosecution is not without any discrepancies. PW-6 and PW-7 though have stated that on 12.05.2004 at about 5 o' clock, police took them to the garden land of Narayanappa but neither of them have stated that whether either of the accused were accompanied them at that time or they were lead to the said place by either of the accused. On the other hand, their further statement in the evidence would only go to show that when they went to the garden land of Narayanappa and proceeded towards a well near dilapidated house as given by accused No. 1, police from near the well took out a plastic cover and a pot and produced them before this witness. The said statement made in Kannada language by the witness nowhere mention that even near to the place of the well where the plastic bag and pot were said to have been produced neither of the accused had taken them. On the other hand, it was the police who took those two incriminating articles, i.e., a plastic bag and a plastic pot said to be containing a huge amount of Rs. On the other hand, it was the police who took those two incriminating articles, i.e., a plastic bag and a plastic pot said to be containing a huge amount of Rs. 5,88,140/- and produced those articles before these witnesses. Therefore, even according to these two witnesses, it was not either of the accused who physically and actually lead them to the alleged place where the incriminating articles and cash were said to have been kept but it was the police who took the witnesses to the said place. Further, it was not either of the accused who took out the incriminating articles from a particular spot and produced them before the police in the presence of panchas but it was the police themselves who took out the incriminating articles, which was in the form of plastic bag plastic pot with huge amount of cash in them. Therefore, the very recovery alleged to have been made at the instance of the accused becomes more suspicious. The Trial Court as well the court of appeal did not notice the said aspect also. 27. More importantly, as contended by the learned Senior Counsel for accused No. 2, the disclosure statement alleged to have been made by the accused has not at all been proved by the prosecution. It is for the reason that it was CW-18, the main investigating officer who is alleged to have recorded the voluntary statement of the accused. Admittedly, the said witness was not at all examined by the prosecution. The only investigating officer who was examined by the prosecution was PW-1 who admittedly had a limited role of investigation in the beginning in the form of registering the complaint and proceeding to the spot of the offence and drawing a scene of offence panchanama as per Ex. P2. The rest of the major and substantial portion of investigation including the alleged recording of voluntary statement of the accused and alleged recovery was made by CW-18 but for the reasons best known to the prosecution, he was not examined. It was not the case of the prosecution that CW-18 was not available for examining him as a witness. Further, the prosecution also did not elicit from PW-1 the details of the investigation conducted by CW-18 in the matter. It was not the case of the prosecution that CW-18 was not available for examining him as a witness. Further, the prosecution also did not elicit from PW-1 the details of the investigation conducted by CW-18 in the matter. There is no whisper in the evidence of any of the witnesses about the accused giving any voluntary statement during the course of the investigation muchless about marking the relevant portion of voluntary statement during the evidence. Thus, as held by the Hon'ble Privy Council in Pulukuri Kotayya's case (supra) and in Mohmed Inayatulla's case (supra) and also in Bhimappa Jinnappa Naganur's case (supra), the prosecution not even attempted to bring on record through deposition of the relevant witness of the alleged fact of discovery of a fact at the instance of the accused. This aspect has not been considered by the Trail Court as well the appellate court. Both the Courts failed to notice that in order to attract Section 27 of the Evidence Act apart from there being discovery of fact, it is also required to prove that the discovery of such fact must be deposed too. In the instant case, the absence of any such deposition by any of the prosecution witnesses muchless the investigating officer prevents the Court from pressing into service Section 27 of the Evidence Act. 28. Lastly, though PWs-4, 5, 6 and 7 have stated in their evidence that a particular sum of money was recovered in their presence, admittedly, they are not the witnesses who can say as to whom the said money belongs to or whether it was the same currency which was the subject matter of the alleged theft. The said identification of the currency alleged to have been recovered could have been primarily done by PW-2, the complainant who incidentally is also the accounts officer of K.S.T.D.C. where the theft has taken place. No doubt, the said witness has stated that he has got released the recovered amount from the Court after leaving sample note in the custody of the Court. He has identified those sample currencies which are Rs. 1000 X 1, Rs. 500 X 1, Rs. 100 X 1, Rs. 50 X 1, Rs. 20 X 1, Rs. 10 X 1 and Rs. 5 coin X 1. He has identified those sample currencies which are Rs. 1000 X 1, Rs. 500 X 1, Rs. 100 X 1, Rs. 50 X 1, Rs. 20 X 1, Rs. 10 X 1 and Rs. 5 coin X 1. However, there is nothing on record to show that how this witness has identified the said amount was the very same amount stolen from their currency chest on the night of 09.05.2004. Even according to the said witness, it was the police who apart from showing the accused to him also produced before him a cash of Rs. 6,90,840/- stating that, that was the amount stolen by the accused by committing theft from the office premises of the complainant on 09.05.2004. The witness believed the same and proceeded to identify the sample currency in the Court as the one belonging to him. Since the said circumstance is similar to that of the circumstance regarding the identification of the currency in the case of Arjun Marik and others Vs. State of Bihar reported in 1994 Supp (2) SCC 372, the observation made by the Lordship in para 27 of the judgment in the case holding that it was beyond comprehension as to how the currency notes could be identified by those witnesses, requires to be applied in the case on hand also. As such, on the said ground also, the prosecution's case becomes further weak and doubtful. 29. The Trial Court as well the Court of appeal did not appreciate any of these important and material aspects while appreciating the evidence of material prosecution witnesses with respect to alleged recovery said to have been made in this case. The judgment of the conviction passed and confirmed by them respectively is solely based upon the alleged recovery said to have been made in the case. However, as observed above, merely because PWs-4, 5, 6 and 7 are said to have stated that the recovery was made in their presence. Both the Courts were carried away by the said statement without analyzing them as to they fulfilling requirement of Section 27 of the Evidence Act. It is there, both the Courts have committed an error, which made them to come to an erroneous conclusion holding that the prosecution has proved the alleged guilt against the accused beyond reasonable doubt. Both the Courts were carried away by the said statement without analyzing them as to they fulfilling requirement of Section 27 of the Evidence Act. It is there, both the Courts have committed an error, which made them to come to an erroneous conclusion holding that the prosecution has proved the alleged guilt against the accused beyond reasonable doubt. Since the above analysis demonstrates that there were several serious latches in the case of the prosecution in proving the alleged recovery of the incriminating materials particularly at the instance of the accused, the alleged act of recovery cannot be held as proved. Therefore, the judgment of conviction pronounced by the Trial Court and confirmed by the Trial Court deserves to be set aside for which interference is warranted at the hands of this Court. 30. Accordingly, I proceed to pass the following order: ORDER The Criminal Revision Petition No. 839/2013 and Criminal Revision Petition No. 723/2009 are allowed. The judgment of conviction and order on sentence passed by the learned Addl. Civil Judge (Jr. Dn.) & JMFC, Anekal, in C.C. No. 558/2004, dated 15.6.2006, for the offences punishable under Sections 457 and 380 of IPC and further confirmed by the learned Presiding Officer, Fast Track Court-III, Bengaluru Rural District, Bengaluru, in Criminal Appeal Nos. 70 & 76 of 2006, by the judgment dated 7.8.2009, are set aside. The petitioners - Raju, son of Venkatappa, residing at Lakshmipura Grama, Anekal Taluk, Bengaluru District and M. Manjunath, son of Munivenkatappa, residing at Byrappanahalli Village, Anekal Taluk, who are accused in the said C.C. No. 558/2004, are acquitted of the offences punishable under Sections 457 and 380 of IPC. The bail bonds executed by them stands cancelled. Registry to transmit a copy of this judgment along with trial Court and Session Judge's Court records to the concerned Courts without delay.