JUDGMENT 1. Though this case is posted for Admission, with the consent of Sri M.R.Patil, learned HCGP appearing on behalf of appellant - State, Sri Nithin Gowda K.C., learned Amicus Curiae appearing for respondent No.1 and Sri Kethan Kumar, learned counsel for respondents No.2 and 3, the same is taken up for final hearing. 2. The State has preferred this appeal against the judgment and order of acquittal dtd. 20/3/2019 passed by the learned III Additional District and Sessions Judge, D.K. Mangaluru in SC No.34/2017 acquitting the respondents/accused for the offences punishable under Ss. 392, 397 read with 34 of IPC. 3. For the sake of convenience, parties are referred to as per their ranks before the trial Court. 4. Brief facts of the case are: On 25/9/2016 at about 6.15 a.m. when CW1 Smt. Gulabi was waiting at Sheenanna Katte Bus stand for some vehicle, the accused persons came in a motor cycle bearing No.KA.19.EH.3634 and accused No.1 came near her under he guise of asking about the distance to Durganagara and by the time CW1 replied to said query, accused No.1 all of a sudden snatched a chain in the neck of CW1 and when CW1 shouted by holding hand of accused No.1, he took out a dragon knife from his pant pocket and caused injury on the right hand of CW1 and then the accused persons fled the place on their motor cycle. 5. After investigation, the Investigating Officer has submitted the chargesheet against accused for commission of offence punishable under Sec. 397 of IPC. Thereafter, the case was committed to the Sessions Court. The trial Court has framed charges against accused Nos. 1 to 3 for the offence punishable under Ss. 392 and 397 read with Sec. 34 of IPC. Accused pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined 13 witnesses as PWs.1 to 13, got marked 13 documents as Exs.P1 to P13 and also marked two material objects as MOs.1 and 2. On closure of prosecution side evidence, the trial Court has recorded the statement of the accused under Sec. 313 of Cr.P.C. The accused have denied the evidence of the prosecution witnesses appearing against them as false. But they have not adduced any defence evidence on their behalf. 7. On closure of prosecution side evidence, the trial Court has recorded the statement of the accused under Sec. 313 of Cr.P.C. The accused have denied the evidence of the prosecution witnesses appearing against them as false. But they have not adduced any defence evidence on their behalf. 7. On hearing the arguments of both the parties, the trial Court acquitted the accused and passed the impugned order of acquittal. Being aggrieved by the impugned judgment of acquittal, the State has preferred this appeal. 8. Sri M.R. Patil, the learned High Court Government Pleader appearing for appellant-State has submitted his argument that the impugned judgment and order of acquittal passed by the trial Court is contrary to law and evidence placed on record and the same is liable to be set aside. The trial Court has not properly appreciated the evidence of PWs 1, 2, 5, 7 and 8. The respondents/accused have not stated anything while recording the statement under Sec. 313 of Cr.P.C. The evidence of the complainant is corroborated with the testimony of PWs.2, 5, 7 and 8. On all these grounds he sought to allow the appeal. 9. As against this, learned counsel appearing on behalf of respondents No. 2 and 3 and also the learned Amicus Curiae appearing for respondent No.1 have submitted their arguments that the trial Court has properly appreciated the evidence on record in accordance with law and facts. The prosecution has miserably failed to prove the guilt of the accused and there are no grounds to interfere with the impugned judgment of the trial Court. On all these grounds, they sought to dismiss the appeal. 10. Having heard the arguments of both the sides and on perusal of the impugned judgment and order and the entire material documents placed on record, the points that arise for my consideration are: "(1) Whether the State has made out a ground to interfere with the impugned judgment of acquittal? (2) What order?" 11. My answer to the aforesaid points are : Point No.1: In the negative; Point No.2: As per final order. 12. I have carefully examined the impugned judgment passed by the trial Court. Before reappreciation of the evidence on record, it is necessary here to mention as to the power of the Appellate Court regarding interference. (2) What order?" 11. My answer to the aforesaid points are : Point No.1: In the negative; Point No.2: As per final order. 12. I have carefully examined the impugned judgment passed by the trial Court. Before reappreciation of the evidence on record, it is necessary here to mention as to the power of the Appellate Court regarding interference. The Hon'ble Supreme Court, in the case of A. SHANKAR v. STATE OF KARNATAKA reported in (2011)6 SCC 279 , at paragraph 26 of the judgment, has held as follows: "26. It is settled legal proposition that in exceptional circumstances the appellate court, under compelling circumstances, should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse i.e. the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence." 13. In the case on hand, in paras 12 to 26, the trial Court has observed as under: "12. Point No.1: It is the specific case of the prosecution that on 25/9/2016 at about 6.15 a.m. when CW1 Smt. Gulabi was waiting at Sheenanna Katte Bus Stand for some vehicle, the accused persons came in a motor cycle bearing No. KA19EH3634 and Accused No.1 came near her under the guise of asking about the distance to Durganagara and by the time CW1 replied to said query, Accused No.1 all of a sudden snatched a chain in the neck of CW1 and when CW1 shouted by holding hand of Accused No.1, he took out a dragon knife from his pant pocket and caused injury on the right hand of CW1 and then the accused persons fled from the place in their motor cycle. 13. In order to prove their case, the prosecution has examined CW1 namely Smt. Gulabi as PW1. During her evidence PW1 has reiterated about the incident and having lodged a complaint with the jurisdictional police as per Ex.P1. 13. In order to prove their case, the prosecution has examined CW1 namely Smt. Gulabi as PW1. During her evidence PW1 has reiterated about the incident and having lodged a complaint with the jurisdictional police as per Ex.P1. She has further stated that on the same day the police visited the spot and drew spot mahazar as per Ex.P2. According to PW1 after about 6 days from the date of incident the police had summoned her to the police station, wherein she identified the accused persons as the persons involved in the incident. 14. The prosecution has cited CW2 namely Smt. Hemalatha and CW3 namely Sri Umesh as the eye witnesses to the incident. The prosecution has examined these persons as PW2 and PW5 respectively. PW2 in her evidence has stated that on the relevant date and time when she was cleaning her frontyard, she heard shouting and when she turned towards Durganagar Bus Stand she found two persons sitting on a motor cycle and one person snatching the chain from the neck of CW1 at the bus stand. She has stated that thereafter the person who snatched the chain sat on the motor cycle and all the three persons went towards Kuriyala. PW2 has also stated that after about 6 days from the date of incident, she had identified the persons involved in the incident at the police station. 15. PW5 in his evidence has stated that on 25/9/2016 he and Lingappa were proceeding in a motor cycle towards his hotel at Bandasale and when they were near Sheenanna Katte, three persons came in a motor cycle from his opposite direction, out of them one person shouted at them by showing a knife and at that point of time he had found CW1 sitting by the side of the road by holding her hand. He has stated that when he stopped his motor cycle near CW1 and enquired her, he came to know about the incident. He has stated that on 1/10/2016 the police had summoned him to the police station wherein he identified the three persons who were on the motor cycle, which had come from his opposite direction. 16. As per the prosecution papers only these persons had seen the offenders at the place of incident. Further, all of them i.e., PW1, PW2 and PW5 have claimed that they have identified the offenders at the police station. 16. As per the prosecution papers only these persons had seen the offenders at the place of incident. Further, all of them i.e., PW1, PW2 and PW5 have claimed that they have identified the offenders at the police station. As such it requires for this Court to appreciate their evidence so as to find out how far their testimony is reliable in this regard. 17. As already pointed out, PW5 has stated that he and one Lingappa were at the place of crime by the time the offenders went away from the place in a motor cycle. However on going through the depositions of PW1 and PW2 it becomes clear that none of them has made any statement during their evidence about presence of PW5 or Lingappa at the place of incident either at the time of incident or immediately thereafter. During her crossexamination PW1 has categorically stated that no other vehicle had come in the said road except that of the offenders, while she was at the place of incident. Further, though PW2 has stated that after about 1015 minutes one Sandesh, Nonayya and others had come to the place of incident, she has not whispered anything about presence of PW5 or Lingappa at the place of incident. During his evidence PW5 has claimed that Smt. Gulabi was alone at the place when he went near the bus stand in question. Whereas the evidence of PW2 give an impression that there was no person other than Smt. Gulabi at the place of incident when she went to the said place. Thereby the materials on record do not probabilise PW5 having reached the place of incident immediately after the incident and particularly when the offenders left the place in a motor cycle. As such this Court holds that the evidence of PW5 is not reliable. 18. According to PW2 Smt. Hemalatha her house was situated on the other side of the road where the bus stand in question situated. As per the version of PW2 she had seen the incident from the frontyard of her house and that to after hearing the shout. The statements of PW2 clearly indicate that the offenders had left the place within fraction of second, after snatching the chain from the neck of PW1. As per the version of PW2 she had seen the incident from the frontyard of her house and that to after hearing the shout. The statements of PW2 clearly indicate that the offenders had left the place within fraction of second, after snatching the chain from the neck of PW1. PW2 has categorically stated that the offenders had left the place in a motor cycle before she went near PW1, who was near the bus stand. Thereby a reasonable doubt arises as to PW2 having properly observed the offenders at the place of incident. At this stage it would be relevant to note that during her crossexamination PW2 has admitted that she has identified Accused No.1 and the knife marked at M.O.2 based on information furnished by the police at the police station. As such this Court opines that the statements of PW2 regarding identifying the accused as the persons committed the crime is not reliable. 19. Before going to appreciate the evidence of PW1, it would be proper to appreciate the evidence of PW11, PW7 and PW8 regarding apprehension of the S.C. 34/2017 accused persons and alleged recoveries made from them. PW11 Rakshith A.K. in his evidence has stated that on 1/10/2016 at about 9.00 a.m. he along with his staff was conducting the inspection of the vehicles at Benjanapadavu. He has stated that at that time three persons came in a motor cycle from the side of Kadegoli and that they had tried to escape from the place ignoring his instruction to stop the vehicle. He has further stated that he catched them by chasing them to certain distance and on enquiry he learnt that the said persons are involved in the case registered at Bantwal Rural Police Station i.e., the present case. He has also stated about he having recovered motor cycle bearing No. KA19EH3634, the chain stolen from the person of PW1 and the dragon knife used to cause injury to PW1 from them. 20. It is the case of the prosecution that the incident pertaining to this case had occurred on 25/9/2016 at 6.15 a.m. PW11 has stated that he apprehended the accused persons at Benjanapadavu on 1/10/2016 at about 9.00 a.m. That means the accused persons were apprehended after 6 days from the date of incident. 20. It is the case of the prosecution that the incident pertaining to this case had occurred on 25/9/2016 at 6.15 a.m. PW11 has stated that he apprehended the accused persons at Benjanapadavu on 1/10/2016 at about 9.00 a.m. That means the accused persons were apprehended after 6 days from the date of incident. It is the definite case of PW1 as well as PW11 that the chain in the neck of PW1 was a roldgold chain. If that is so it is highly improbable to think that the accused persons were carrying said chain with them for 6 days, so that PW11 could recover said chain from them on 1/10/2016. Thereby a reasonable doubt arises as to above claim of PW11. 21. PW7 Bhagyaraj and PW8 Suresh are the panchas to the alleged recovery made from the accused persons at Benjanapadavu. PW7 has stated that on 1/10/2016 at about 10.00 a.m. when he and PW8 had gone to Benjanapadavu Junction, Bantwal Police were at the place along with the accused persons. He has stated that at that place the police showed them a motor cycle parked by the side of the road, a knife and a chain saying that they have recovered those items from the accused persons. If we go by the version of PW7 then it is to be held that he has no personal knowledge as to how PW11 secured presence of the accused persons and who had produced the items in question before the police. 22. On the other hand, PW8 has stated that on 1/10/2016 at about 9.30 a.m. he and PW7 were going towards Benjanapadavu, wherein the police were S.C. 34/2017 inspecting the vehicles. He has stated that at that time three persons came in a motor cycle from the side of Kalpane and said persons had gone from the place in spite of instructions of the police to stop their vehicle. He has further stated that the police chased the said persons and brought them to the place wherein he was standing at about 10.00 a.m., enquired those persons and recovered the motor cycle, rope chain and dragon knife from them. As already stated the alleged possession of the chain in question by the accused persons on 1/10/2016 seems to be unnatural and not probable. Further, according to PW8 the police had chased the said persons to a distance about 100 meters. As already stated the alleged possession of the chain in question by the accused persons on 1/10/2016 seems to be unnatural and not probable. Further, according to PW8 the police had chased the said persons to a distance about 100 meters. Whereas PW11 has stated that he had caught hold of the accused persons at a distance of about 10 feet. Per contra, PW7 has not whispered anything about these aspects. As such this Court holds that alleged apprehension of the accused persons and alleged recovery of articles from them on 1/10/2016 at Benjanapadavu is not reliable and beyond reasonable doubt. 23. Now if we come to the deposition of PW1, no doubt she has deposed before the Court stating that Accused No.1 is the person who snatched the chain from her neck, Accused No.2 was riding the motor cycle and Accused No.3 was the pillion rider in the motor cycle. However the material question would be whether PW1 was in a position to properly observe the offenders at the place of incident and whether she was capable of recollecting their features so as to identify them. Admittedly PW1 is not much literate and she was doing coolie work. As per her version the alleged incident took place within a span of few minutes and the offenders were not known to her. As such this Court does not find reasonable ground to rely on her evidence so as to hold that the accused herein have committed alleged offence. 24. Learned Public Prosecutor has relied on decisions in Raju Manjhi Vs State of Bihar [2018 Cri. L.J.4342] and Chaya alias Soma alias Rajesh and others Vs State by Konanuru Police Station [2018 (2) Kar. L.J. 725 (DB)] and contended that the identification of the accused persons by the witnesses, particularly PW1 is sufficient to hold that the accused persons were involved in the alleged incident. There is no dispute regarding the proposition of law laid down in the above referred decisions. However, if we appreciate the evidence on record in the facts and circumstances of the case, it becomes clear that the evidence adduced by the prosecution regarding identification of the accused is not beyond reasonable doubt. As such it is held that the above decisions are not helpful for the prosecution in this case. 25. However, if we appreciate the evidence on record in the facts and circumstances of the case, it becomes clear that the evidence adduced by the prosecution regarding identification of the accused is not beyond reasonable doubt. As such it is held that the above decisions are not helpful for the prosecution in this case. 25. Learned Public Prosecutor has relied on decisions in Baiju Vs State of Madhya Pradesh [AIR 1978 Supreme Court 522] and Ganesh Lal Vs State of Rajasthan [2002 Supreme Court Cases (Cri) 247] and submitted that recovery of stolen article from the accused persons and failure to explain possession of those articles by the accused persons is sufficient to draw a presumption against the accused persons under Sec. 114(a) of the Evidence Act. As already pointed out, the materials on record create a reasonable doubt as to alleged recovery of the roldgold chain from the possession of the accused persons that to after a period of 6 days from the date of incident. As such it is held that the above referred decisions are not helpful to the prosecution in this case. 26. Learned Public Prosecutor has also relied on some more decisions relating to affect of delay in forwarding First Information Report to the magistrate, affect of lapse on the part of the Investigating Officer, etc. The materials on record indicate that there was delay in forwarding First Information Report to the magistrate and there were certain lapses on the part of the Investigating Officer. Even then there is no reason to suspect occurrence of alleged incident. However on careful consideration of materials placed on record it becomes clear that the prosecution has failed to prove involvement of the accused persons in the alleged incident beyond reasonable doubt. Hence, Point No.1 is answered in the Negative." 14. On re-examination, re-consideration and reappreciation of the evidence placed on record, I do not find any legal infirmities or illegalities in the impugned judgment of acquittal passed by the trial Court, which calls for interference by this Court. Hence, I answer point No.(1) in the negative. 15. For the aforesaid reasons and discussions, I proceed to pass the following order: ORDER 1. Appeal is dismissed. 2. Bail bond, if any, stands discharged. 3. Registry is directed to pay an amount of Rs.5, 000.00 to learned Amicus Curiae Sri K.C. Nithin Gowda, for respondent No.1.