JUDGMENT : J.M.KHAZI, J. In this appeal filed under Section 374 (2) of the Code of Criminal Procedure, appellant who is accused No.3 has challenged his conviction and sentence for the offence punishable under Section 395 of I.P.C. 2. For the sake of convenience, parties are referred to by their ranks before the trial Court. 3. A charge sheet came to be filed against accused Nos.1 to 5 for the offences punishable under Sections 395 , 397 IPC r/w Sections 3, 25 and 27 (1B) (A) of Indian Arms Act 1959, alleging that on 14.07.2010, accused Nos.1 to 5 booked Toyota Innova car bearing No.KA–51/777 ('Innova for short) on hire basis from Sri Krishna Tours and Travels, situated in Sangam Complex, Bengaluru belonging to CW-9 Eeregowda in order to go to Ramadurga by representing that they are required to seize a vehicle. Complainant Venkatesh was the driver of the said vehicle. They left Bengaluru and on 15.07.2010 at 11.30 a.m, while they were proceeding on Katakol-Totagatti road, they stopped the vehicle and after consuming beer, they gave threat to the complainant at gun point, drag him out of the vehicle, tied his legs and hand and robbed him of his ATM card, Nokia mobile handset, cash of Rs.3,450/- and sped away in the Innova car No.KA–51/777. While fleeing, they also fired on the ground with the gun for which they were not holding any license or permit and thereby all the accused persons committed the offences punishable under Sections 395 , 397 IPC r/w Sections 3, 25 and 27(1B) (A) of Indian Arms Act, 1959. 4. During the investigation, on the basis of MOB Card, the investigating officer came to know that accused Nos.1, 2 and 4 who are habitual offenders are involved. He secured the cell number of accused No.4 Manjunath and on the basis of tower location, he came to know that the accused persons were moving towards Alnawar. The Dy.SP formed a special squad for apprehending the accused persons. They followed the stolen Innova and confronted them. However, accused Nos.1 to 3 and 5 manage to runaway after firing at the police. Accused No.4 who was sitting in the car also fired at the police and therefore the police fired at the him. A bullet hit accused No.4 Manjunath and he died. Later, accused Nos.2 and 3 were apprehended. Accused Nos.1 and 5 manage to remain absconding. However, accused Nos.1 to 3 and 5 manage to runaway after firing at the police. Accused No.4 who was sitting in the car also fired at the police and therefore the police fired at the him. A bullet hit accused No.4 Manjunath and he died. Later, accused Nos.2 and 3 were apprehended. Accused Nos.1 and 5 manage to remain absconding. The investigating officer has seized the Innova car and also other incriminating articles, including the gun. After concluding the investigation charge sheet is filed against accused Nos.2 and 3, showing accused Nos.1 and 5 as absconding. During the pendency of the case, accused No.2 also died. Trial was conducted against accused No.3. 5. The trial Court framed charge against accused No.3 for the offences punishable under sections 395 and 397 IPC . He pleaded not guilty and claimed trial. 6. In order to prove the allegations against accused No.3, the prosecution has relied upon evidences of PWs-1 to 21, Exs.P1 to 52 and MOs 1 to 10. 7. During the course of his statement under Section 313 IPC , accused No.3 has denied the incriminating evidence led by the prosecution. 8. Accused No.3 has not led any defence evidence. 9. Vide the impugned judgment and order the trial court convicted accused No.3 for the offence punishable under Section 395 IPC . 10. Aggrieved by the same, accused No.3 has filed this appeal, contending that the order of conviction and sentence passed by the trial Court is opposed to law, facts and probability of the case. Based on the evidence, the trial Court ought to have held that prosecution has failed to prove the allegations. Accused No.3 had no motive, knowledge, or intention to commit the alleged offence. The trial Court has failed to appreciate the fact that there are lot of improvements in the evidence of PW-1. The investigating officer has not conducted test identification parade and identity of accused is not established. PW-10 is not an eye witness to the incident as stated by PW-1 that he came to the spot after hearing the noise. He is a planted witness. There is also delay in filing the complaint which is not explained. Prosecution has also not proved recovery. In order to overcome fake encounter, a false case is foisted against the accused persons. The ingredients of Section 395 IPC are not attracted. He is a planted witness. There is also delay in filing the complaint which is not explained. Prosecution has also not proved recovery. In order to overcome fake encounter, a false case is foisted against the accused persons. The ingredients of Section 395 IPC are not attracted. Viewed from any angle, the impugned judgment and order is not sustainable and pray to allow the appeal and acquit accused No.3. 11. On the other hand, learned High Court Government Pleader supported the impugned judgment and order. He would submit that the accused persons were seen by PWs-6 and 7 when they booked the Innova on rent and boarded the same. PW-1 was the driver who was with the accused person throughout their journey till they robbed him of his cash, ATM card, and cell phone and also sped away in the Innova. They were also seen by PW-11 when they purchased the beer from the wine shop. The accused persons were also seen at the scene of encounter. All of these witnesses have deposed and identified the accused persons including the appellant/accused No.3. The evidence of PW-10 clearly established the fact that he is an eye witness to the incident, though PW-1 came to be aware of his presence only when he came to his rescue. The evidence placed on record including recovery of the incriminating articles establish the allegations against accused No.3 beyond reasonable doubt and rightly the trial court convicted him. The findings given by the trial Court is consistent with the evidence placed on record and as such there is no perversity calling for interference by this Court and pray to dismiss the appeal. 12. Heard arguments of both sides and perused the record. 13. Thus, it is the definite case of the prosecution that the accused persons took the Innova Car on rent to go to Ramadurga and represented that they are going for seizing a vehicle. The evidence of PW-6 Eeregowda reveal that he is working in the travels belonging to PW-8 Suresh Gowda by name Sri Krishna Tours and Travels. PW-9 Umesh is the brother of PW-8 Suresh Gowda. Umesh is also running a travels by name Umesh Tours and Travels. Both businesses were managed by PW-8 Suresh Gowda. The evidence of PW-6 Eeregowda reveal that he is working in the travels belonging to PW-8 Suresh Gowda by name Sri Krishna Tours and Travels. PW-9 Umesh is the brother of PW-8 Suresh Gowda. Umesh is also running a travels by name Umesh Tours and Travels. Both businesses were managed by PW-8 Suresh Gowda. PW-6 has deposed that on 14.07.2010 PW-7 Kantharaj of Sangeeta travels came along with accused No.4 and informed that he wanted to rent an Innova car and since in Sangeeta travels, the said vehicle was not available, he introduced accused No.4 and directed to send an Innova car after taking ID proof and advance. He also disclosed that he has already taken Rs.2,000/- as advance. PW-7 Kantharaj has also given evidence to this effect. 14. PW-6 Eregowda has deposed that at 10.45 p.m, 4 persons came to the travels, including accused No.4 and gave the ID of accused No.4. They stated that the are engaging the vehicle to go to Saundatti as they are engaged in seizing of vehicles. He engaged PW-1 Venkatesh to drive the car and directed him to receive Rs.5,000/- from the customers to pay for diesel. The evidence of PW-8 Suresh Gowda and PW-9 Umesh, who are the owners of the travels also corroborate the testimony of PWs-6 and 7. Though they were not present when the accused person engaged the vehicle, as the owners they came to know about the same subsequently. 15. PW-1 Venkatesh is the driver of the Innova. Accused persons robbed him of his cell phone, ATM card, cash of Rs.3,400/- and also relieved him of the Innova. He has deposed that on 14.07.2010 at 12-00 in the midnight he along with accused Nos.1 to 5 started from Bengaluru and reached Dharwad through Pune Road. Later, at the request of the accused persons, he went to Saundatti and proceeded further and stopped the vehicle at Munavalli. At Munavalli, the five accused persons bought breakfast from a hotel and at their request, he proceeded to Katakol. At 10.00 a.m of 15.07.2010, they reached Katakol bus stand. From a bar situated near the bus stand, the accused persons purchased beer bottles. They represented that the lorry which they are supposed to seize is coming in the evening. Until then they would visit Godchi Siddeshwara Temple. Accordingly, from Katakol they proceeded towards Chandaragi. At 10.00 a.m of 15.07.2010, they reached Katakol bus stand. From a bar situated near the bus stand, the accused persons purchased beer bottles. They represented that the lorry which they are supposed to seize is coming in the evening. Until then they would visit Godchi Siddeshwara Temple. Accordingly, from Katakol they proceeded towards Chandaragi. After proceeding about 3 kms, the accused persons directed him to stop the vehicle. Accordingly, he stopped the vehicle by the side of the road and all the five accused persons went along with the breakfast and beer bottles and sitting beneath a tree they consumed the same. PW-1 has deposed that during all this, he was sleeping inside the car. After eating breakfast and consuming the beer, the accused persons came to him and dragged him out of the car by showing a pistol. They tied his hands and legs with a rope and placed him near the tree. They relieved him of his cell phone, ATM card, cash of Rs.3,450/- and sped away in the Innova. He has also deposed that while leaving, accused No.1 Nitish brandished the pistol and shot a fire towards floor. 16. The evidence of PW-1 reveal that after the accused persons left the place, PW-10 Mahadev Avakanavar who is a shepherd came to him. On his request PW-10, untied the thread with which his hands and legs were tied and released him. From PW-10, he came to know that the police station is at Katakol. He searched for Innova at Ghataprabha, Gokak and Yaragatti, but did not find it. Therefore, he filed complaint on 15.07.2010 at around 6.00- 6.30 p.m. 17. The evidence of PW-10 corroborate the testimony of PW-1. He has clearly deposed that he is having a herd of 50 sheeps. On the date of incident, he was grazing the sheep in the adjoining fallow land. Around 11.30 a.m He saw a white car coming from Katakol side and stopped by the side of the fallow land. Five accused persons got down from the car and consumed beer sitting below the tree. Afterwards, they dragged the driver from inside the car, tied his hands and legs with a rope and sped away in his car. He was watching all this standing by the side of a bush. After they left, he went to the spot and untied the hands and legs of the person. Afterwards, they dragged the driver from inside the car, tied his hands and legs with a rope and sped away in his car. He was watching all this standing by the side of a bush. After they left, he went to the spot and untied the hands and legs of the person. From him, he came to know that the persons have relieved him of his cell phone and cash. He has also deposed that at the police station, he was shown three of the accused persons and he identified them. Before the Court he has identified accused No.3 as one of the person who was present at the spot when the incident took place and he saw and indentified him at the police station. 18. Though during his cross examination, PW-10 has stated that he was grazing the sheep inside a Halla, which was about his chest deep, his evidence clearly reveal that though his sheeps were raizing inside the Halla, he was standing by the side of the road and when the car came and stopped in the fallow land, he was observing and when the complainant was being tied and relieved of his valuable, he was watching them standing behind a bush. As rightly held by the trial Court, PW-10 has stated that the scene of occurrence is within a distance of half a kilometre from the ditch in which he was grazing the sheep. His evidence does not mean that they he was standing at a distance of half a kilometre from the scene of occurrence. 19. As rightly held by the trial Court, by making suggestions that PW-10 saw the vehicle coming and it was of white colour and he could not make out the its registration number, the accused persons are admitting his presence. Though PW-1 has admitted that PW-10 came to the spot after hearing the sound, the evidence of PW-10 clearly establish that all along he was present near the scene of occurrence and saw the accused persons tying the hands and legs of the PW-1 and relieving him of his valuables and car. PW-1 might not aware of the fact that PW-10 was watching them and he came to know about his presence only when he came to his rescue. However, it doesn't mean that PW-10 is not a witness to the incident. 20. PW-1 might not aware of the fact that PW-10 was watching them and he came to know about his presence only when he came to his rescue. However, it doesn't mean that PW-10 is not a witness to the incident. 20. PW-11, Satish Laxman Iddli is the Manager of Santosh Wine shop situated near the bus stand. His evidence reveal that on the date of incident accused No.3 and others visited his wine shop and purchased knockout beer, as the tin beer requested by them was not available. They had come in Innova car and it was parked by the side of the wine shop. In the evening, he came to know that the persons who were travelling in the said car have robbed and taken away the car. In this regard, he has identified the photograph of two of the accused persons. After 4-5 days, he saw the Innova at the police station and identified it. He has also identified the car at the Court premises and also accused No.3 in the Court. He has identified MO-3 as one of the beer bottles purchased from his shop. 21. As done in such cases of robbery, theft, etc, to rule out the possibility of such offence being committed by known habitual offenders, the investigation officer has pressed into service the help of fingerprint expert. PW-20 Shivanagouda Hiregouda is the CPI, Fingerprint Division, Belgaum. He has lifted chance fingerprints on the beer bottle and noted them as Q1 and Q2. After the arrest of accused No.2 Mahesh and accused No.3 Srinivasa, he has compared the chance fingerprints with that of the said accused persons and found that Q1 matches with accused No.2 Mahesh and Q2 matches with accused No.3 Srinivas. 22. After registering of the case, the investigating officer in order to ascertain whether any known accused persons are involved, has shown some MOB files and complainant has identified accused No.1 Nitish, accused No.2 Mahesh and accused No.4 Manjunath from the files as some of the accused persons involved. Based on said information and also on the basis of tower location of the cell phone of accused No.4 Venkatesh, the Dy.S.P has formed a team of police officers to apprehend the accused persons. PW-17, Panchakshari Salimath, PW-21 Prakash Babunayadu were 2 members of the said team. PW-1 Venkatesh also accompanied them as his presence was required to identify the accused persons. PW-17, Panchakshari Salimath, PW-21 Prakash Babunayadu were 2 members of the said team. PW-1 Venkatesh also accompanied them as his presence was required to identify the accused persons. PW-14 Manjunath Doddamani is the driver of Tavera car bearing registration No.KA-24-5673 in which they traveled pursuing the suspects. 23. Their evidence establish the fact that the team of police along with complainant went in two vehicles and followed the Innova. On coming to know that they are being chased by the police, the accused persons tried to escape. After they entered the end of a village road, except accuse No.4, the rest of the accused persons runaway by firing at the police. Accused No.4, who was sitting inside the car and was not able to escape, tried to fire at the police and in return a shot was fired at him by PW-21 Prakash Babunayadu. It killed accused No.4 Venkatesh. The rest of the person managed to escape. In this regard, a complaint is filed Cr.No.75/2010. 24. Accused Nos.1 and 5 remained absconding. Therefore, charge sheet came to be filed against accused Nos.1 to 3 and 5 showing accused Nos.1 and 5 as absconding and accused No.4 as dead. Later, accused No.2 Mahesh is reported to have died. 25. PW-16 Dr. Raosaheb Bhanti has treated the complainant for the injury sustained by him while he was manhandled and tied by the accused persons. His evidence reveal that on 15.07.2010 at 6.30 p.m, he examined PW-1 Venkatesh and found scratch injuries on his hands and if a person is tied with rope similar to MO-6 and 7, such injuries are possible. Though he has admitted that such injury are possible, if a person comes in contact with thorns, he has denied that to help the police he has given a false certificate. 26. PW-18 Basanagouda Ganabasappanavar, ASI has registered the case based on the complaint given by PW- 1 Venkatesh. His evidence prove that after registering the case, he sent the complainant to hospital for treatment and thereafter he has handed over further investigation to PW- 21, Prakash Babunayadu. The evidence of PWs-18 and 21 prove the investigation. Despite the defence cross-examining the prosecution witnesses at length, nothing worthy is elicited to discredit prosecution case. Having regard to the fact that the accused persons engaged the Innova, they were seen by PWs-6 and 7. The evidence of PWs-18 and 21 prove the investigation. Despite the defence cross-examining the prosecution witnesses at length, nothing worthy is elicited to discredit prosecution case. Having regard to the fact that the accused persons engaged the Innova, they were seen by PWs-6 and 7. Throughout the period, when accused Nos.1 to 5 travelled with PW-1 Venkatesh, he had the opportunity to see them till they relieved him of his valuables and took away the car. He has also identified them when the accused persons were chased by the police Officers and at the place of encounter. Thus the identity of all the persons including the appellant is established by the prosecution. 27. On detailed appreciation of oral and documentary evidence placed on record, the trial Court has rightly held that the allegations against accused No.3 is proved for the offence punishable and Section 395 of IPC and convicted and sentenced him. This Court finds no perversity in the conclusions arrived at and findings given by the trial Court calling for interference by this Court. 28. The acquittal of accused No.1 Nitish Jagannath Dhapale is based on the evidence come on record during his trial. It appears after the conviction of accused No.3, the concerned police were able to apprehend accused No.1. He has managed to get some of the witnesses turn hostile. Therefore, his acquittal cannot be a ground for accused No.3 to seek an acquittal. The same has no bearing on the present case. 29. In the result, the appeal fails and accordingly, the following: ORDER (i) Appeal filed by the appellant/accused No.3 under Section 374 (2) of Cr.P.C is dismissed. (ii) The impugned judgment and order dated 19.11.2013 in S.C.No.22/2011 on the file of II Addl. District and Sessions Judge, Belagavi is confirmed. (iii) The Registry is directed to send back to trial Court records along with copy of this judgment forthwith. (v) The trial Court shall secure the presence of accused No.3 and send him to jail to undergo the remaining sentence. Appreciation is placed on record for the valuable assistance rendered by the learned Amicus Curiae representing the respondent/accused. The fees of learned Amicus Curiae is fixed at Rs.10,000/-. The High Court Legal Services Committee is directed to pay the same.