JUDGMENT : M.G. UMA, J. The appellants-accused Nos.1 to 3 in Crl.A.No.1254/2012, the appellant-accused No.5 in Crl.A.No.1168/2013, the appellant-accused No.7 in Crl.A.No.1182/2012, in S.C.No.239/2010 and the appellant - accused No.8 in Crl.A.No.1162/2012 in S.C.No.66/2012 (split-up case), on the file of the Fast Track Court-II at Tumakuru, are impugning the judgment of conviction and order of sentence dated 31.08.2012, convicting them for the offences punishable under Sections 363 and 395 r/w Section 149 of IPC and sentencing them to undergo rigorous imprisonment for a period of 7 years with fine of Rs.10,000/- for the offence punishable under Section 363 of IPC and to undergo rigorous imprisonment for a period of 10 years with fine of Rs.10,000/- for the offence punishable under Section 395 of IPC, with default sentences. 2. Brief facts of the case of the prosecution are that, accused No.1 to 9 forming themselves into an unlawful assembly, with the common object of committing the offence, waylaid the Scorpio car on 03.11.2009 at 09.30 p.m. in which, the informant was proceeding. The accused have also boarded the Scorpio car, tied the limbs of PW-12 and kidnapped him. Thereby, they have committed the offence punishable under Section 363 r/w Section 149 of IPC. It is the further contention of the prosecution that the accused, who have kidnapped PW- 12, robbed cash of Rs.51,000/-, two mobile phones which were with him, intimidated him with dire consequences and made him to inform his family members to hand over the cheque book and passbook. After getting the signatures of PW-12 on the cheque leaves, they have withdrawn an amount of Rs.10,00,000/- from Vijaya Bank, Nagamangala branch. Thereby, the accused have committed the offence punishable under Section 395 of IPC. 3. On the basis of the first information-Ex.P7 lodged by the informant - PW-12, the FIR as per Ex.P34 came to be registered. It is the contention of the prosecution that, the Investigating Officer in Crime No.122/2009 of V.V.Puram Police Station, Mysore had apprehended accused Nos.1, 2, 4, 5 and 6 and during investigation, he came to know that the very same accused have committed the offences in the present case registered in Crime No.165/2009 of Amruthuru Police Station, Tumakuru. The incriminating materials that were seized in Crime No.122/2009 of V.V.Puram Police Station, Mysore which were pertaining to this case were handed over to the Investigating Officer in the present case. The incriminating materials that were seized in Crime No.122/2009 of V.V.Puram Police Station, Mysore which were pertaining to this case were handed over to the Investigating Officer in the present case. The Investigating Officer secured the presence of the accused under body warrant, completed the investigation and filed the charge sheet for the above said offences. 4. The learned Magistrate took cognizance of the offence. The learned Sessions Judge on committal, summoned the accused. The accused have appeared before the Trial Court, and pleaded not guilty for the offence and claimed to be tried. Prosecution examined PWs-1 to 26, got marked Ex.P1 to 44, identified MOs.1 to 10 in support of its contention. The accused have denied all the incriminating materials available on record in their statement recorded under Section 313 of Cr.PC, but have not led any evidence in support of their defence. 5. The Trial Court after taking the consideration are these materials on record, came to the conclusion that the prosecution was successful in proving the guilt of accused Nos.1 to 5, 7 and 8 for the offences punishable under Sections 363 , 395 r/w Section 149 of IPC and sentenced them as stated above. Being aggrieved by the same, accused No.1 to 5, 7 and 8 have preferred these appeals. However, during the pendency of Crl.A.No.1168 of 2013, appellant- accused No.4 died and the appeal preferred by him was dismissed as abated vide order dated 13.02.2025. 6. Thus, accused Nos.1 to 3, 5, 7 and 8 are before this Court, impugning the judgment of conviction and order of sentence passed by the Trial Court. It is stated that accused Nos.6 and 9 were absconding. Therefore, a split up charge sheet came to be filed against them. 7. Heard Sri. Nithin Gowda K.C, learned counsel for Sri. P.Prasanna Kumar, learned counsel for the appellants - accused Nos.1 to 3 in Crl.A.No.1254/2012, Sri. Chethan.B, learned counsel for the appellant-accused Nos.5 and 7 in Crl.A.No.1168/2013 and Crl.A.No.1182/2012 respectively, Mis. Tejaswini V, learned counsel for Sri. S Shankarappa, learned counsel for the appellant-accused No.8 in Crl.A.No.1162/2012 and Sri. Harish Ganapathy, learned High Court Government Pleader for the respondent. Perused the materials including the Trial Court records. 8. Chethan.B, learned counsel for the appellant-accused Nos.5 and 7 in Crl.A.No.1168/2013 and Crl.A.No.1182/2012 respectively, Mis. Tejaswini V, learned counsel for Sri. S Shankarappa, learned counsel for the appellant-accused No.8 in Crl.A.No.1162/2012 and Sri. Harish Ganapathy, learned High Court Government Pleader for the respondent. Perused the materials including the Trial Court records. 8. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: “Whether the appellants - accused Nos.1 to 3, 5, 7 and 8 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the above point is in the 'Affirmative' for the following: REASONS 9. It is the contention of the prosecution that the accused have waylaid the Scorpio car in which, the informant PW-12 was proceeding on 03.11.2009 and after getting into the car, they have tied the limbs of the informant, kidnapped him, robbed the cash, mobile phones, etc. They have also made the informant to talk to his family members, insisting to hand over passbook and cheque book to one of the accused, and after securing the cheque book and passbook, they made the informant to sign on the cheque leaves. By utilizing one of the cheque leaf, cash of Rs.10,00,000/- was drawn from Vijaya Bank, Pandavapura Branch. Thereby, they have committed the offence as stated above. 10. It is the further contention of the prosecution that the informant was found inside the car with his limbs tied. After noticing him, the information has reached to the police who were on beat duty, from Mandya Rural Police Station, they came to the spot and released the informant. Later, he was directed to approach the jurisdictional police station, i.e., Amruthuru police station, Tumakuru and accordingly, the informant lodged the first information on the very same day against 5 unknown accused persons. 11. To prove its contention, the prosecution has examined PW-1 - the Bank Manager of Vijaya Bank, Nagamangala Branch. As per the case made out by the prosecution, accused No.4 came to Vijaya Bank, Nagamangala branch with the cheque leaf signed by PW-12, where he was having an account. 11. To prove its contention, the prosecution has examined PW-1 - the Bank Manager of Vijaya Bank, Nagamangala Branch. As per the case made out by the prosecution, accused No.4 came to Vijaya Bank, Nagamangala branch with the cheque leaf signed by PW-12, where he was having an account. PW-1 being the manager of the bank found that the branch had no sufficient cash to honour the cheque of Rs.10,00,000/-, he made internal arrangement to get the required cash from Pandavapura Branch, Mandya and handed over the cash to one Vikas, who was later identified as accused No.4. Witness stated that he had obtained the signature of the said Vikas on the cheque-Ex.P1 presented by him. Witness further stated that, on the very same day at 05.45p.m. Mandya Rural Police visited the branch, and informed that the account holder Gangappa was kidnapped and asked not to honour the cheque. But by that time, the cash of Rs.10,00,000/- was already handed over to Vikas. Witness stated that, about a month thereafter, the police came to the bank, enquired him and took his statement etc., Witness stated that the bank was not having CCTV cameras to identify the person who had taken the cash. 12. PW-2 is the Assistant Manager of Vijaya Bank, Nagamangala branch, who had also seen the person named as Vikas, and had taken the cash of the Rs.10,00,000/-. Witness has stated that since sufficient cash was not available in the branch, as per the instruction given by PW-1, he proceeded to Vijaya Bank, Pandavapura branch in the car which was driven by accused No.5, and the cash was obtained from there. He also deposed on par with PW-1. 13. PW-3 is also a bank official working as an Attender in Vijaya Bank, Nagamangala branch. He states that as per the instructions given by PW-1, he along with PW-2 and accused Nos.4 and 5 went to Vijaya Bank, Pandavapura branch to get cash of Rs.10,00,000/-. 14. PW-4 is the cashier of Vijaya Bank of Nagamangala branch, who spoke about presentation of the cheque belonging to the informant, and the shortage of cash to honour the cheque. He also stated that, as per the instructions by PW-1, they arranged to honour the cheque by getting the cash from Pandavapura branch. 15. 14. PW-4 is the cashier of Vijaya Bank of Nagamangala branch, who spoke about presentation of the cheque belonging to the informant, and the shortage of cash to honour the cheque. He also stated that, as per the instructions by PW-1, they arranged to honour the cheque by getting the cash from Pandavapura branch. 15. PW-5 is the son of the complainant and the mahazar witness to Ex.P2-the spot mahazar drawn near the dam from where the informant was kidnapped. PW-6 is the other mahazar witness to Ex.P2. But during cross examination he stated that he signed Ex.P2 in the police station. 16. PWs-7 and 8 are the mahazar witnesses to Ex.P3 and P4. Ex.P3 is the seizure mahazar, where-under MOs 1 and 2 were seized at the instance of PW-1, and Ex.P4 is the spot mahazar drawn at the place where the informant was dropped after he was kidnapped and robbed. Both these witnesses have not supported the case of prosecution and they were treated hostile. 17. PW-9 is the mahazar witness to Ex.P5 - the seizure mahazar, whereunder, the Indica car bearing registration No.KA-04-MN-45 was recovered at the instance of accused No.3 along with the copy of the insurance policy for the car and the cheque belonging to PW-12. This witness has also not supported the case of the prosecution and he was treated hostile. 18. PW-10 is the mahazar witness to Ex.P6, the seizure mahazar which was drawn in Crime No.122/2009 of V.V.Puram Police Station, alleging that the cheque book, RC, driving license relating to PW-12 were seized at the instance of accused No.5 along with an Alto car. This witness has not fully supported the case of the prosecution. Even though, an Alto car was seized under Ex.P6. He states that, there was an Indica car bearing registration No.KA-04-MN-45 seized in his presence. He states that the cars were parked by the side of the road, but fails to identify any of the accused. 19. PW-11 is the police constable attached to Mandya Rural Police Station, who deposed that, he received credible information regarding PW-12 who was found with his limbs tied in the car. Accordingly, he went and released him, took him to Mandya Rural Police Station and then to Amruthuru Police Station. 19. PW-11 is the police constable attached to Mandya Rural Police Station, who deposed that, he received credible information regarding PW-12 who was found with his limbs tied in the car. Accordingly, he went and released him, took him to Mandya Rural Police Station and then to Amruthuru Police Station. Even though, this witness names accused No.1 as the person who committed the offence, it is pertinent to note that the FIR was against unknown persons and there is no reason as to why accused No.1 is not named in the first information. 20. PW-12 is the material witness to the case of prosecution. He is the victim and the informant. Witness stated regarding the incident that the accused have waylaid his car, tied his limbs, robbed cash of Rs.51,000/- and the watch. He also stated that the accused made him to talk to his family members asking for cheque book and pass book. As per the instructions of the accused, he informed PW-13, who was in his house, that his grandson is coming to collect the cheque book and pass book. Witness has stated that the accused have made him to sign on the cheque leaves and by making use of the cheque leaf, they managed to withdraw the amount from his bank account. Witness stated that he had seen the accused before the Court in the police station and it was the police who informed him that it was those accused, who committed the offence. Witness stated that, all the accused were wearing masks at the time of commission of the offence and that is why he could not identify them. 21. PW-13 is the inmate of the house of the informant PW-12, who stated that the informant had talked to her over phone asking for cheque book and passbook, and also the cash which was kept in the house. Accordingly, she handed over cash of Rs.1,49,000/- along with cheque book and pass book on 03.11.2009 at 05.30 p.m. But, she could not identify the accused before the Court who had come to her house. 22. PW-14 is also the inmate of the house of the informant PW-12, who deposed that a person by name Vivek had come to the house, said to be on the instructions by PW-12 and took cheque book, pass book and cash of Rs.1,49,000/-. 22. PW-14 is also the inmate of the house of the informant PW-12, who deposed that a person by name Vivek had come to the house, said to be on the instructions by PW-12 and took cheque book, pass book and cash of Rs.1,49,000/-. Even this witness could not identify the accused before the Court who had come to the house and collected the documents and the cash. Witness stated that it was the police who showed the accused in the police station and informed that, it was they who committed the offence. 23. PW-15 is one of the mahazar witnesses to Ex.P2. i.e. the spot mahazar drawn at the place from where the informant was kidnapped. Even though he supported the case of the prosecution regarding drawing of Ex.P2, during cross examination, he pleaded his ignorance about the contents of the documents and stated that he had only affixed his signature over the same. 24. PW-16 is the spot mahazar witness to Ex.14 drawn at the place shown by accused No.1 in Crime No.122/2009 of V.V.Puram police station said to be the place from where they had kidnapped the informant. The witness has not supported the case of the prosecution. 25. PW-17 is the mahazar witness to Ex.P15, where under one of the cheque leaves belonging to PW-12 was said to have been seized at the instance of PW-7 in Crime No.122/2009 of V.V.Puram police station. This witness has also not supported the case of the prosecution. 26. PWs-18, 19 and 20 are the police officials, who are said to have taken accused No.2, 5 and 7 respectively to custody. 27. PW-21 is the Sub-Inspector of police who apprehended accused Nos. 1 to 6. The witness also states about Ex.P14, the spot mahazar drawn near Markonahally dam, shown by accused No.1 and also states that cash of Rs.60,000/- was found with accused No.1. However, he states that he had not drawn any mahazar in that regard. 28. PW-22 is also the police official, who speaks about apprehension of accused No.1 to 6. PW-23 refers to taking into custody of accused No.6. 29. PW-24 is the Investigating Officer in Crime No.122/2009 of V.V.Puram Police Station. He speaks about the investigation undertaken by him in the said crime number and also states apprehension of the accused, recording of their voluntary statements, drawing of the mahazar as per Exs.P30 and 31. 30. PW-23 refers to taking into custody of accused No.6. 29. PW-24 is the Investigating Officer in Crime No.122/2009 of V.V.Puram Police Station. He speaks about the investigation undertaken by him in the said crime number and also states apprehension of the accused, recording of their voluntary statements, drawing of the mahazar as per Exs.P30 and 31. 30. PW-25 is the police officer, who registered the FIR and also has drawn Ex.P5-the seizure mahazar, seizing the Indica car at the instance of accused No.3. 31. PW-26 is the Investigating Officer in the present case, who speaks about the investigation undertaken by him. During cross examination, he categorically admits that no test identification parade was conducted through the Tahsildar for the purpose of identifying the accused. 32. It is the contention of the prosecution that PW-12 was kidnapped by the accused while he was proceeding in his Scorpio car, and they made him to call the inmates of his house to hand over the cheque book, pass book etc., and to sign on the cheque leaves. It is the further contention of the prosecution that, by making use of one cheque leaves and the signature of PW-12, accused Nos.4 and 5 gone to Vijaya Bank, Nagamangala branch for encashing the cheques. When there were no sufficient funds in the bank to honour the cheque, the accused were taken by the bank officials- PWs-2 and 3 to Pandavapura branch, to withdraw Rs.10,00,000/- and handed over the same to accused No.4. 33. PW-12 being the victim said to have seen all the accused at the time of commission of the offence. PWs.1 to 4 being the bank officials have seen the accused who have visited the bank with the cheque leaves signed by PW-12. PWs-13 and 14 being the inmates of the house of PW-12 have seen accused No.4 when he had came to get the cheque book and pass book as per the instructions by PW-12. 34. Admittedly, FIR came to be registered against unknown persons. It is not in dispute that, none of the accused were familiar to PW-12 or to any other witnesses who have seen them. The accused were apprehended in Crime No.122/2009 of V.V.Puram police station by PW-24 who was the Investigating Officer in the said case. During investigation, he came to know that the accused were involved in the present case as well. The accused were apprehended in Crime No.122/2009 of V.V.Puram police station by PW-24 who was the Investigating Officer in the said case. During investigation, he came to know that the accused were involved in the present case as well. Therefore, he handed over the mahazers which were drawn by him in Crime No.122/2009. None of the witnesses to the mahazers drawn in Crime No.122/2009 were examined before the Trial Court. Even though, the presence of the accused were taken in the present case by getting the body warrant issued by the jurisdictional Magistrate, he has not thought it fit to hold the test identification parade for the purpose of identifying the accused by the witnesses, who have seen them while committing the offence. When it is the specific contention of the prosecution that the accused were strangers and they were not known to the informant or any other witnesses, and when the FIR was registered against unknown persons, it is the bounden duty of the Investigating Officer to conduct test identification parade to enable the witnesses to identify them, and to have confirmation that the investigation is going on a right direction, which probabilizes the contention taken by the prosecution to some extent. 35. In the present case, the material witnesses have never identified any of the accused. Even if they refer to some of the accused, they specifically stated that it was the police who have stated that it was they who have committed the offence. PW-12 has gone to the extent of deposing before the Trial Court that all the accused were wearing masks and therefore, he could not identify them. These circumstances are fatal to the case of the prosecution as there is nothing to connect the accused to the offence in question. Even if the glaring inconsistencies in seizing of the incriminating materials at the instance of accused are to be ignored, and the evidence given by the witnesses regarding material particulars are taken into consideration, there is absolutely nothing to connect the accused to the offence in question by identifying them at least by the informant - PW-12 and other witnesses who have seen the accused while committing the offence. Under such circumstances, I am of the opinion that, it was a futile attempt on the part of the prosecution to lead voluminous evidence before the Trial Court. Under such circumstances, I am of the opinion that, it was a futile attempt on the part of the prosecution to lead voluminous evidence before the Trial Court. By no stretch of imagination it could be held that the prosecution was successful in proving the guilt of the accused beyond reasonable doubt. Only on suspicion, however strong it may be, the accused cannot be convicted by holding proof of the guilt beyond reasonable doubt. Under such circumstances, the accused are entitled for the benefit of doubt and they are to be acquitted. 36. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The Trial Court, ignoring the fact that no test identification parade was held, and none of the witnesses have identified the accused specifically to speak about their overt act, proceeded to convict the accused, without any basis. Therefore, I am of the opinion that, the impugned judgment of conviction and order of sentence passed by the Trial Court is liable to be interfered with. 37. Before parting with the matter, I have to place on record the able assistance given by the young advocate Sri. Nithin Gowda K.C, who argued the appeals for the appellants. 38. Accordingly, I answer the above point in the affirmative and proceed to pass the following: ORDER (i) The Criminal Appeals are allowed. (ii) The Judgment of conviction and order of Sentence dated 31.08.2012 passed in S.C.No.239/2010 (S.C.No.66/2012-split up case), on the file of Fast Track Court- II at Tumakuru, is hereby set aside. (iii) Consequently, accused No.1 to 3, 5, 7 and 8, who are the appellants herein, are acquitted for the offences punishable under Sections 363 and 395 r/w Section 149 of IPC. (iv) Bail bonds of the accused and that of their sureties, shall stand cancelled. Fine amount, if any, deposited by accused No.1 to 3, 5, 7 and 8, is ordered to be refunded to them on due identification after appeal period is over. Registry to send back the TCR along with copy of this judgment for information and for needful action.