: 1judgmenthck.kar.nic.in/judgments/bitstream/123456789/...2008/05/14  · Chitradurga as per Ex.P1, based on which, case in Crime No.164/2003 came to be registered initially for the

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 14th DAY OF AUGUST 2012

BEFORE

THE HON’BLE MR. JUSTICE K.N.KESHAVANARAYANA

CRIMINAL APPEAL NO.2347/2005 (C)

BETWEEN:

IMRAN @ KARADI IMRANS/O KHARADI RASHIDAGED ABOUT 25 YEARSRESIDING AT CHELUGUDDATHIPPAREDDY EXTENSION,CHITRADURGA. … APPELLANT

(BY SRI B.M.SIDDAPPA, ADV.)

AND

THE STATE OF KARNATAKA,BY STATE PUBLIC PROSECUTOR,HIGH COURTS BUILDING,BANGALORE. … RESPONDENT

(BY SRI K.RAJESH RAI, HCGP)

THIS CRIMINAL APPEAL IS FILED UNDERSECTION 374 CR.P.C. BY THE ADVOCATE FOR TE

APPELLANT AGAINST THE JUDGMENT DATED11.8.2005 PASSED BY THE ADDL. S.J.,FTC,CHITRADURGA IN S.C.NO.10/2005, CONVICTINGTHE APPELLANT-ACCUSED NO.1 FOR THE OFFENCEP/U/S 326 IPC AND SENTENCING HIM TO UNDERGOR.I. FOR 2 ½ YEARS (2 YEARS SIX MONTHS) AND TO

PAY FINE OF RS.1,000/- AND IN DEFAULT UNDERGO3 MONTHS R.I.

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THIS CRIMINAL APPEAL COMING FOR HEARINGON THIS DAY, THE COURT DELIVERED THEFOLLOWING:-

JUDGMENT

This appeal by convicted accused No.1 in

S.C.No.10/2005 on the file of the Additional Sessions

Judge and Fast Track Court, Chitradurga is directed

against the judgement of conviction and order of

sentence dated 11.8.2005 passed in the said case

convicting him for the offence punishable under Section

326 of IPC and sentencing him to undergo rigorous

imprisonment for 2½ years and also to pay fine of

Rs.1,000/- for the said offence.

2. The case of the prosecution in brief is as

under:-

PW1 Shivamma had been engaged with the

deceased Jayadeva. On 26.10.2003, deceased Jayadeva

requested PW1 to meet him at some place in

Chitradurga and accordingly PW1 met him. Both of

them went to Chitradurga Fort and while they were

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sitting behind Ekanatheshwari Temple, at about 12.00

noon on that day, one unknown person backed by two

others, came there and demanded said Jayadeva to pay

money. However, said Jayadeva questioned the

unknown person as to why he should pay money to

him. By that time, the said unknown person took out

knife and stabbed on his stomach and went away. PW1

who was by the side of said Jayadeva screamed for help

and with the help of persons who came there shifted

Jayadeva to the District Hospital, Chitradurga where he

underwent surgery and later shifted to Basaveshwara

Hospital. PW1 lodged report about the incident before

the Station House Officer, Kote Police Station,

Chitradurga as per Ex.P1, based on which, case in

Crime No.164/2003 came to be registered initially for

the offence punishable under Section 307 of IPC against

three unknown persons and FIR was submitted to the

jurisdictional magistrate as per Ex.P12. The injured

Jayadeva succumbed to the injuries on 30.10.2003. On

receipt of the death memo, the I.O. filed a report to the

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jurisdictional court seeking to alter the offence to

Section 302 IPC. During the investigation, the I.O. held

inquest over the dead body and later dead body was

subjected to post mortem examination. The doctor who

conducted post mortem examination submitted report

as per Ex.P9 opining that death was due to shock and

hemorrhage as a result of injury to the vital organ

namely lung.

3. The appellant and another were

apprehended by Kote Police in connection with case in

Crime No.31/04 on 15.2.2004. During the

interrogation of the appellant in the said case, he said to

have disclosed his complicity in the incident of assault

on the deceased Jayadeva in the fort on 26.10.2003.

Pursuant to the said voluntary statement, the knife said

to have been used for the commission of the offence was

recovered at his instance. In the said case, the appellant

was remanded to the judicial custody. Thereafter, a

request was sent to the Taluka Executive Magistrate to

conduct Test Identification (T.I. for short) parade. An

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application was also filed before the learned magistrate

on 9.3.2003 seeking direction to the Taluka Executive

Magistrate to conduct T.I. parade, which came to be

allowed. Pursuant to the said direction, the Taluka

Executive Magistrate held T.I. parade in the sub-jail on

27.3.2004 in which PW1 participated and identified the

appellant as the assailant who stabbed deceased

Jayadeva. She also said to have identified another

person arraigned as accused No.2. In respect of T.I.

parade Taluka Executive Magistrate submitted his

report as per Ex.P10. During the investigation, the I.O.

recorded statement of witnesses and after completing

investigation laid charge sheet against this appellant

and two others for the offence punishable under Section

302 r/w. 34 of IPC. Before the committal court, the

presence of accused No.3 could not be secured.

Therefore, the case against him was ordered to be split

up and case against accused Nos.1 and 2 was

committed to the Sessions Court. The appellant and

accused No.2 appeared before the Sessions Judge and

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pleaded not guilty for the charge levelled against them

and claimed to be tried. To prove the guilt of the

accused for the charge, prosecution examined PWs.1 to

21 and relied on documentary evidence marked as

Exs.P1 to P16 and also material objects MO’s 1 and 2.

During their examination under Section 313 of Cr.P.C.

the accused persons denied all the incriminating

circumstances appearing against them in the evidence

of the prosecution witnesses. The accused did not

choose to lead any defence evidence. The defence of the

accused was one of total denial and that of false

implications. After hearing both sides and on

assessment of oral as well as documentary evidence, the

learned Sessions Judge by the judgement under appeal

held that the prosecution has proved the incident of

assault on deceased Jayadeva with a knife on

26.10.2003 inside the fort of Chitradurga causing him

severe injuries which led to his death. The learned

Sessions Judge further held that evidence on record

established the complicity of appellant accused No.1 for

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the injuries found on the deceased. However, the

learned Sessions Judge was of the view that the

evidence on record does not establish that the act

committed by the appellant would amount to murder

punishable under Section 302 of IPC. Therefore, having

regard to the nature of the injury inflicted on the

deceased as also the weapon used, the learned Sessions

Judge held that the act of assault committed by the

appellant would fall under the offence punishable under

Section 326 of IPC. In that view of the matter, learned

Sessions Judge found the appellant guilty of the offence

punishable under Section 326 of IPC and convicted him

for the same. After hearing the counsel for the accused,

the learned Sessions Judge passed the order regarding

sentence as noticed supra. Learned Sessions Judge

however found no material to establish the complicity of

accused No.2 with the commission of the offence.

Therefore, accused No.2 was acquitted for the charge

levelled against him. Being aggrieved by the said

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judgement of conviction and order of sentence appellant

No.1 is before this Court with this appeal.

4. I have heard the learned counsel for the

appellant as well as the learned Government Pleader for

the respondent-State.

5. Learned counsel for the appellant contended

that judgement under appeal suffers from perversity

and illegality in as much as the learned Sessions Judge

has failed to notice that the complicity of the appellant

for the acts alleged has not been satisfactorily

established, therefore, the judgment is liable to be set-

aside. He further contended that though the evidence

on record establishes that deceased Jayadeva received

some injuries inside the fort on 26.10.2003, to which he

later died, there is no acceptable evidence to establish

the complicity of the appellant for the said act, as such

the learned Sessions Judge is not justified in holding

the appellant guilty for the offence punishable under

Section 326 of IPC. He further contended that the

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identification of the appellant as assailant in the T.I.

parade said to have been conducted is of no value in the

eye of law having regard to the several legal infirmities

with regard to the conduct of T.I. parade. The legal

infirmities pointed out by the learned counsel in this

regard are;

(1) Though the appellant was arrested on

15.2.2004, the alleged T.I. parade has been

conducted nearly about six weeks after his

arrest, as such there is undue delay in

conducting T.I. parade.

(2) From the evidence of PW1 itself it is clear that

immediately after the arrest of the appellant

he was shown to her in the police station, as

such, the identification of the appellant in the

T.I. parade said to have been conducted

subsequently has lost its evidentiary value if

any.

(3) The T.I. parade conducted nearly six months

after the occurrence of the incident, has lost

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its credibility having regard to the fact that

even according to PW1 incident occurred

within a minute or two, during which period,

PW1 had hardly any time to have a clear view

of the assailant and to create the image of the

assailant in her mind and the image if any

created in the mind of PW.1 would have

vanished within a short period thereafter.

Therefore, the conduct of T.I. parade after

lapse of about six months of the occurrence

has rendered, the result of the T.I. parade,

unreliable.

6. Learned counsel further contended that if

the circumstances of identification of the appellant in

T.I. parade is eschewed from consideration, the

identification of the appellant as the assailant before the

Court by PW.1 does not get any corroboration as such,

the dock identification before the court nearly about 2

years after the incident cannot be the sole basis to hold

the appellant guilty of the offence for which he has been

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convicted. Therefore, the learned counsel sought for

setting-aside the judgement under appeal and for

acquittal of the appellant.

7. On the other hand, learned Government

Pleader sought to justify the judgement under appeal

contending that the judgement under appeal does not

suffer from any perversity or illegality as the learned

Sessions Judge on proper appreciation of oral and

documentary evidence has recorded findings which are

sound and reasonable regard had being to the evidence

on record, therefore, the judgement under appeal does

not warrant interference by this Court. He further

contended that there is absolutely no evidence on record

to indicate that PW1 had an opportunity to see the

accused-appellant before the conduct of T.I. parade,

therefore, T.I. parade conducted within a reasonable

time after his arrest, cannot be discarded on the ground

of delay. He contended that the appellant who was

arrested in connection with some other case was found

to be involved in this case pursuant to the voluntary

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statement and thereafter I.O. sought direction from the

jurisdictional Court to the Taluka Executive Magistrate

to conduct T.I. parade, therefore, having regard to the

facts and circumstances of the case, there has been no

delay in conducting the T.I. parade. He further

contended that the evidence of PW.1 and PW.13 the

Taluk Executive Magistrate clearly establishes that T.I.

parade was conducted on 23.7.2004, in which the

appellant was identified by PW.1 as the assailant who

inflicted the injury to the deceased. He further

contended that having regard to the totality of the

evidence on record, the learned sessions judge is

justified in finding the appellant guilty of offence

punishable under Section 326 of IPC, as such, the

judgement does not call for interference by this Court.

Therefore, he sought for dismissal of the appeal.

8. In the facts and circumstances of the case

and in the light of the submissions made on both sides,

the points that arise for my consideration are;-

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(a) Whether the judgment under appeal

suffers from any perversity or illegality

warranting interference by this Court?”

(b) Whether the learned Sessions Judge is

justified in convicting the appellant for the

offence punishable under Section 326 of

IPC? If so, whether the sentence ordered

by the court below is just and proper?

9. I have bestowed my anxious considerations

to the submissions made on both sides. I have perused

the records secured from the Trial Court.

10. As noticed supra, in respect of the incident

of assault on deceased Jayadeva, criminal law was set

on motion by PW1 in the form of lodging report at 3.30

p.m. on 26.10.2003 as per the Ex.P1. As could be seen

from FIR Ex.P12 the same was received by the

jurisdictional magistrate at 12.00 noon on 27.10.2003.

The incident of assault said to have occurred at about

12.00 noon inside the fort at Chitradurga and

immediately after the incident, the injured was bought

to the hospital with the help of the people who gathered

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there and while PW1 was in the hospital attending to

the injured, PSI, Kote Police Station, Chitradurga, on

intimation received from the hospital, came to the

hospital and received the complaint from PW1.

Therefore, I find no delay either in lodging the FIR or

FIR reaching the jurisdictional magistrate.

11. Even according to the complainant the

assailant was unknown and stranger to her as well as to

the injured. According to the medical evidence, when

the injured was brought to the hospital, he was restless

and was not in a position to speak and ultimately died

on 30.10.2003. There is some indication in the evidence

of the witnesses that in the meanwhile the injured was

in a position to speak, nevertheless, his statement was

not recorded. Having regard to the fact that assailant

was unknown to PW1 and also to the injured, in my

opinion, non-recording of statement of the injured has

not in any way rendered the case of the prosecution

suspicious. As per the contents of at Ex.P1, the

complainant was the only eyewitness to the incident. In

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Ex.P1 certain description about the assailant had been

furnished. Nevertheless, since the assailant was a

stranger and had not been named in the complaint,

initially the case came to be registered against unknown

persons. According to the prosecution, the complicity of

this appellant for commission of the offence in this case

was revealed only after the arrest of the appellant on

15.2.2004 in connection with some other case by Kote

police. Till 15.2.2004, the identity of the assailant was

not known to the I.O. PW1 who is the sole eyewitness to

the incident, in her evidence has reiterated the contents

of the Ex.P1 with regard to the incident of assault on

Jayadeva. The evidence of PW1 would clearly establish

that while she and deceased Jayadeva were talking

behind Ekanatheshwari Temple, an unknown person

came and demanded Jayadeva to pay money and since

money demanded was not paid, the assailant stabbed

Jayadeva with a knife on the stomach. The medical

evidence on record clearly establish that the injured was

brought to the hospital at about 12.45 p.m. on

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26.10.2003 and at that time he was found having stab

injury and immediately he was subjected to surgery and

later he was shifted to the Basaveshwara hospital where

he succumbed to the said injuries. Therefore, the

evidence on record clearly establish that Jayadeva

sustained grievous injury on his stomach and later he

succumbed to the said injury. As noticed supra, learned

Sessions Judge was of the view that the prosecution has

not established that the acts alleged attracts the offence

punishable under Section 302 of IPC. Therefore, the

accused were acquitted for the charge under Section

302 R/w 34 IPC. The next question would be whether

the complicity of the appellant, as held by the learned

Sessions Judge, is established. As noticed supra, the

assailant who inflicted injuries to the deceased was a

stranger. Therefore, the identity of the assailant was

said to have been established only during the T.I.

parade held on 27.3.2004. It is fairly well-settled that

the T.I. Parade is not substantive evidence, but it is only

a corroborative piece of evidence. The substantive

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evidence is the evidence before the Court. However, the

evidence with regard to the dock identification of the

accused before the Court requires to be corroborated by

earlier identification if the assailant is stranger and

unknown to the witness. If there is no proper

identification prior to the dock identification before the

Court, it is well settled that such evidence is a weak

piece of evidence and such evidence cannot be the sole

basis to hold the accused guilty of the offence alleged.

12. In the case of Siddanki Ram Reddy V. State

of Andra Pradesh reported in (2010) 7 SCC 697, the Apex

Court has held that the substantive evidence should be

sufficiently corroborated by a T.I. parade held soon after

the occurrence and any delay in holding T.I. parade may

be held to be fatal to the case of prosecution.

13. In the case of Sukhbir Singh V. State of

Panjab reported in (2011) 11 SCC 436, the Apex Court

has held that though there is no inflexible rule that

identification made for the first time in the Court has to

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be always ruled out of consideration, but the broad

principle is that in the absence of no other evidence

against accused, identification in Court made after the

event is clearly not acceptable.

14. In the case of Daya Singh V. State of

Hariyana reported in AIR 2001 SC 1188, which has been

reiterated in Siddanki Ram Reddy V. State of Andhra

Pradesh referred to supra, the Apex Court has held that

the purpose of test identification is to have corroboration

to the evidence of the eye witnesses in the form of earlier

identification and that the substantive evidence of a

witness is the evidence in the Court and if that evidence

is found to be reliable then the absence of corroboration

by test identification would in any way immaterial.

15. In the case of Subash and Shiv Shankar Vs.

State of U.P., reported in 1987 (3) SCC 331, the Apex

Court having regarding the fact that the T.I. parade has

been held three weeks after the arrest of the accused

persons has observed that the T.I. parade has been held

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three weeks after his arrest and no explanation has been

offered for the delay in holding the T.I. parade, therefore,

there is room for doubt as to whether the delay in

holding the T.I. parade was in order to enable the

identifying witness to see him in the police lock-up or in

the jail premises and make a note of his features. In the

said decision the Apex Court has also considered the fact

that a sufficiently long interval of time had elapsed

between the date of occurrence when the witness had

seen the assailant for a few minutes and the date of T.I.

parade. After referring to the decisions of the Apex Court

in the case of Muthuswami V. State of Madras reported

in AIR 1954 Cri. L.J. 236 and in the case of Mohd. Abdul

Hafeez V. State of A.P. reported in AIR 1983 SC 367, the

Apex Court held that where an identification parade was

held about 2½ months after the occurrence it would not

be safe to place reliance on such identification of the

accused by the eye-witness and where the witnesses had

not given any description of the accused in the first

information report, their identification at the Sessions

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trial cannot be safely accepted by the Court for awarding

conviction to the accused.

16. In the case of State of Andhra Pradesh Vs.

Dr.M.V.Ramana Reddy, reported in AIR 1991 SC 1938, it

has been held by the Apex Court that where there is

unexplained delay in holding the T.I. parade, the

evidence of the prosecution regarding the identity of an

accused cannot be held absolutely unreliable and in

such a case, the accused is entitled to the benefit of

doubt.

17. In Rajesh Govind Jagesha Vs. State of

Maharashtra reported in 2000 Crl.L.J. 380, the Apex

Court has held that in cases where a person is alleged to

have committed the offence and is not previously known

to the witnesses, it is obligatory on the part of the

investigating agency to hold T.I. parade for the purpose

of enabling the witnesses to identify the person alleged to

have committed the offence. It is further observed that

the test identification is considered as a safe rule of

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prudence for corroboration and though the holding of

the identification proceedings may not be substantive

evidence, yet such proceedings are used for the

corroboration purposes in order to believe or not the

involvement of the persons brought before the Court for

the commission of the crime and holding of identification

parade being a rule of prudence is required to be

followed strictly in accordance with the settled position

of law and expeditiously and delay, if any, has to be

explained satisfactorily by the prosecution.

18. Thus, from the above decisions, the

principles that emerge are;

(1) though holding of identification parade is not a

substantive evidence, in cases where the

assailant/s is/are strangers and unknown to

the witnesses, their substantive evidence before

the Court regarding identification requires to be

corroborated by an earlier identification and this

is a rule of prudence,

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(2) Such T.I. parade should be held at the earliest

without there being any delay and if there is any

delay in conducting such T.I. parade, it has to

be satisfactorily explained by the prosecution

and

(3) the witnesses should not have been given an

opportunity to see the accused after their arrest

and the identification parade conducted should

inspire the confidence of the Court.

19. In the light of the above principles and having

regard to the evidence placed on record in this case, I am

of the opinion that the T.I. parade said to have been

conducted in this case has lost its evidentiary value for

more than one reason as such, the substantive evidence

of PW.1 before the Court with regard to the identity of

the appellant as assailant has not been corroborated.

Therefore, the sole testimony of PW.1 before the Court

cannot be the basis to record conviction against the

appellant for the offence punishable under Section 326

of IPC.

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20. As noticed supra, even according to PW.1 the

assailant responsible for the injury suffered by the

deceased Jayadeva was stranger and unknown to her.

Therefore, the conduct of T.I. parade was obligatory on

the part of the investigating agency. The incident said to

have occurred on 26.10.2003. Even according to the

investigating officer, the appellant was arrested on

15.2.2004 in connection with some other case registered

in the same police station and during interrogation, the

appellant said to have disclosed the complicity of the

other accused persons in the commission of the offence

involved in this case. Even according to the prosecution,

the T.I. parade was conducted on 27.3.2004 i.e., nearly

about six weeks after the arrest of the accused and

about five months after the occurrence. According to

PW.19-Mahanthareddy, the Investigating Officer, he

sought for permission from the Court on 24.2.2004 to

conduct test identification parade. However, from the

evidence of PW.21 – B.S.Ravishankar Naik, on 22.3.2004

he sent a requisition to Taluka Executive Magistrate to

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conduct T.I. parade. PW.13–K.Gurumurthy, Taluka

Executive Magistrate in his evidence has stated that on

9.3.2004 and on 11.3.2004 the Additional Civil Judge,

JMFC had directed him to conduct T.I. parade and

accordingly, he conducted T.I. on 27.3.2003. However,

in the report submitted as per Ex.P.10, the Taluka

Executive Magistrate said to have conducted the T.I.

parade pursuant to the request made by the Circle

Inspector through his letter dated 24.2.2004.

21. As could be seen from the records of the

Committal Court, an application seeking direction to the

Taluka Executive Magistrate to conduct T.I. parade was

filed before the Jurisdictional Magistrate on 9.3.2004

and on the same day, the learned Magistrate passed an

order directing the Taluka Executive Magistrate to

conduct the T.I. parade after intimating the date of the

identification parade to the investigating officer. Thus,

there is no consistency with regard to the date on which

the Taluka Executive Magistrate was requested or

directed to conduct the T.I. parade. There is also no

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consistency as to pursuant to which the direction or

request the T.I. parade was conducted. At any rate, there

is no explanation as to why for about six weeks after the

arrest of the appellant the T.I. parade was not

conducted. From the narration made by PW.1 in the

complaint, the incident of assault occurred in a duration

of about one minute. Though in the cross-examination,

PW.1 has stated that she had seen the assailants earlier

to the date of the incident, her statement in the

complaint - Ex.P.1 clearly indicate that the assailant was

stranger and unknown to her. Within that short period

in which the incident occurred, it is highly difficult to

believe that PW.1 had opportunity to see the face of the

assailants and create his image in her mind. Assuming

that PW.1 was able to see the assailants clearly and

create his image in her mind, it is highly difficult to

believe that she would have retained the said image for

nearly six months so as to identify the assailant in the

T.I. parade conducted later.

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22. In the cross-examination of PW.1, she has

stated that after the arrest of the accused, they were

shown to her in the police station and there she had

identified one of the accused. Answers elicited in this

regard reads as under:-

DgÉÆæ ¹PÀÌ ªÉÄÃ É eÉÊ®°è vÉÆÃj¹zÀgÀÄ. ¥ÉÇð¸ï¸ÉÖñÀ£ï£À°è £À£ÀUÉ 2 À® PÀgɹzÀÝgÀÄ. C°è 4-5 d£ÀgÀ£ÀÄßvÉÆÃj¹zÀÝgÀÄ. ¥ÉÇð¸ï ÉÖñÀ£ïUÉ £À£ÀUÉ PÀgɹzÁUÀ EªÀgÉãÁ£ÉÆÃr¢ÝÃgÁ, JAzÀÄ PÉýzÁUÀ CzÀgÀ°è PÉÆÃnð£À ªÀÄÄAzÉEzÀÝ M§â DgÉÆæAiÀÄ£ÀÄß vÉÆÃj¹zÉÝ.

23. Above answer elicited from PW.1 indicates

that after the arrest of the appellant on 15.2.2004, PW.1

had an opportunity to see him in the police lock-up.

24. Perusal of the Committal records further

indicates that immediately after the arrest of the

appellant in connection with Crime No.31/2004

registered for the offences punishable under Sections

380 and 457 of IPC, the police had published the

photograph of all the arrested accused persons and also

the information that those arrested persons are also

involved in the murder of Jayadeva on 26.10.2003.

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Thus, PW.1, who is the sole eye-witness had all the

opportunity to see the appellant immediately after his

arrest while he was in the police custody. Above two

circumstances, in my opinion, has affected the

evidentiary value of the T.I. parade. No doubt, evidence

of PW.13 read with the oral evidence of PW.1 indicates

that the T.I. parade was conducted in the jail at

Chitradurga on 27.3.2004 wherein PW.1 identified the

appellant as assailant. However, having regard to the

fact that PW.1 - the sole eye witness had an opportunity

to see the appellant while he was in the police custody

and since the T.I. parade has been conducted after about

five months from the date of the occurrence and about

six weeks after the arrest of the appellant, the test

identification parade has lost its evidentiary value, as

such, no significance can be attached to the same. In

view of the above, the result of T.I. parade cannot have

any corroborative effect to the evidence of PW.1. Thus,

the evidence of PW.1 before the Court regarding dock

identification of the appellant as assailant has remained

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un-corroborative. Having regard to the facts and

circumstances of the case, the uncorroborated sole

testimony of PW.1 with regard to the complicity of the

appellant for the commission of the offence cannot be

the sole basis to hold him guilty. The learned Sessions

Judge, in my opinion, has totally failed to take into

consideration all these factors before holding that the

identity of the appellant as assailant is established.

25. Learned Sessions Judge has not properly

considered the various circumstances brought out on

record which has rendered the conduct of the T.I. parade

doubtful and its evidentiary value having been lost on

account of PW.1 having seen the appellant before

conduct of T.I. parade. Therefore, findings recorded by

the trial Court regarding the complicity of the appellant

in the commission of the offence are perverse and illegal.

The judgment under appeal suffers from legal infirmity

on account of non-consideration of the various

circumstances brought out on record regarding the

evidentiary value of the T.I. parade. Having regard to the

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facts and circumstances of the case, I am of the

considered opinion that the prosecution has failed to

establish the complicity of the appellant for the

commission of the offence and therefore, the learned

Sessions Judge is not justified in convicting the

appellant for the offence punishable under Section 326

of IPC.

26. In view of the above discussions, I am of the

opinion that the appellant is entitled to the benefit of

doubt and thereby for an order of acquittal.

27. In view of the above, the appeal is allowed.

(i) The judgment of conviction and order

of sentence dated 11.8.2005 passed by the

Additional Sessions Judge and Fast Track

Court, Chitradurga, in S.C.No.10/2005

convicting the appellant for the offence

punishable under Section 326 of IPC is hereby

set aside;

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(ii) The appellant is acquitted of the said

charge. The bail bond and surety bond executed

by the appellant are ordered to be discharged

(iii) The fine amount, if any, paid by the

accused is ordered to be refunded to him.

Sd/-

JUDGE

KLY/SA *