1. The Judgment and Order of conviction passed by the Prl. Sessions Judge/ I/c 1st Addl. Sessions Judge, Bangalore Rural District, Bangalore in S.C. No.135/2009 is called in question in this appeal by the convicted accused.

All the five accused were tried and convicted for the offences punishable under Sections 396 and 201 of IPC.

Accused No.3 is also convicted for the offence punishable under Section 397 of IPC.

2. Case of the prosecution in brief is that the lorry bearing Regn.No.TN-23-D-8727 was driven by PW.21 - complainant on the night of 27 11.2008; The said lorry was loaded with Iron rods belonging to Sunvik Steel Factory, Tumkur, of which PW.12 was having the possessory right; The lorry in question was owned by PW.23; The deceased Ronald Khaf was the security guard and he was proceeding alongwith the lorry for providing security to the iron rods that were being transported; On the riight intervening between 26.11.2008 and 27.11.2008, the driver had parked the lorry near the fly over of Dobaspet, on NH.4 leading from Poona to Bangalore within the limits of Dabaspet Police Station; On the early morning of 27.11.2008 while deceased and PW.21 were asleep at about 3 a.m. Accused No.1 -Premakumar alongwith other accused entered into the cabin of the lorry forcibly from both doors of the cabin and immediately threw chilli powder on the face of the complainant; Ai1 the accused were covering their faces with a view to shield their identity. After throwing chilii powder, the accused assaulted on the head of the complainant with wheel spanner, consequently complainant fainted and then he was thrown out of the lorry. Thereafter the lorry was taken to certain discance and the security guard was also murdered. After murdering the security guard Ronald Khaf, the lorry with the goods were robbed by the accused.

The complainant regained consciousness on the early hours of 27.11.2008; he came to Dabospet Hospital with the help of local people and got himself admitted to the hospital at about 7 a.m.; his statement was recorded in the Dabospet Hospital at about 7 a.m. to 7.30 a.m. on 27.11.2008 and based on the same, the Crime No.202/2008 came to be registered for the offences under Sections 397 and 363 of IPC. The Police after investigation laid the charge sheet against all the accused for the offences under Sections 396, 397 and 201 of IPC.

3. In order to prove its case, the prosecution in all examined 26 witnesses and got marked 41 Exhibits and 27 Material Objects. On behalf of the defence, no witness is examined. The trial Court on evaluation of the material on record convicted all the accused for the offences with which they were charged and sentenced them accordingly.

4. Sri K.M. Nataraj, learned, senior advocate appearing on behalf of the convicted accused/appellants submits that except the evidence of PW.21 -complainant and the evidence of the doctor who conducted the PM examination and the evidence of the Police Officer, the evidence of all other witnesses is of no use to the case of the prosecution inasmuch as all the witnesses have turned hostile; the identity of the accused is in serious doubt inasmuch as the complainant/injured had not seen the assailants at an earlier point of time; The accused were not known to him prior to the incident in question; The persons who entered the lorry were covering their faces in full; Immediately after entering the lorry, they threw chilli powder on the face of the complainant and assaulted him with wheel spanner, consequent upon which the complainant fainted; Thus according to him, there was no occasion for the complainant to know, identify and remember the faces of the assailants at the time of the incident. He further draws the attention of the Court to the fact that though Accused Nos.3 to 5 were arrested on 28.11.2008; Accused No.2 was arrested on 29.11.2008 and Accused No.1 was arrested on 2.12.2008, the Test Identification parade in respect of Accused Nos.2 to 5 was cond