Accused cannot be convicted solely based on suspicion without sufficient evidence, including proper identification, leading to their acquittal under Sections 363 and 395 of IPC.

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 After getting the signatures of PW-12 on the cheque leaves, they have withdrawn an amount of Rs.10,00,000/- from Vijaya Bank, Nagamangala branch.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 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 senten