1. This appeal is by accused Nos. 2 and 3 in Sessions Case No. 328 / 2006 on the file of the learned Presiding Officer, Fast Track Court - V, Bangalore City (hereinafter referred to as the 'trial Court' for short).

2. The appellants have challenged in this appeal the impugned judgment and order of conviction and sentence dated 16-2-2008 passed in the said case convicting both these appellants - accused for the offence under S.398 read with S.511 IPC and sentencing each of them to undergo R.I. for a period of three years and six months.

3. At the outset, the learned High Court Government Pleader submitted that accused No. 2 (appellant No. 1) had been in judicial custody from 24-7-2006 and accused No. 3 (appellant No. 2) had been in judicial custody from 31-1-2006 and thus, as on this date, both these appellants - accused have been set at liberty on their completion of the total period of imprisonment for three years and six months and as such, the present appeal deserves to be dismissed as haying become infructuous.

4. As against this, Sri. A. N. Radha Krishna, learned counsel for the accused - appellants strongly contended that though these appellants had filed their application seeking suspension of sentence and bail in this appeal, the same could not be disposed of and the appeal came to be ordered to be listed for final hearing and therefore, his arguments be heard on merits. He further submitted that these appellants had been falsely implicated by the Police concerned and therefore, if the impugned Judgment and Order of conviction and sentence remains on record, the future of the appellants would be adversely affected and therefore this appeal be disposed of on merits. Accepting these submissions of the learned counsel for the appellants - accused, the arguments of both the sides are heard on merits of the appeal. I have perused the impugned judgment and order of conviction and sentence and also the entire material found in the original records obtained from the trial Court.

5. As alleged in Ext. P2, the report submitted by PW 3 Ramakrishnaiah, then P.S.I of Koramangala P.S., the case of the prosecution is as under :
(a) On 5-1-2006 at about 11 p.m. while PW 3 P.S.I, was on beat duty along with CWs 3 to 6 on Club Road at Koramangala, he found four persons holding knives and clubs and on seeing them, the said persons tried to ran away from the said place. However, the said P.S.I, and his staff apprehended all the said four persons and interrogated them.
(b) They disclosed their names as Madhavan (A1), Arun (A2), Gunda (A3) and Nanda (A4). They disclosed before the complainant PSI that when they tried to rob some persons on the said road by threatening them showing knives, they raised cry and then, on seeing the police, they (accused tried to run away from the said place but they came to be apprehended by the Police. Then the said P.S.I. and his staff brought all the said four accused to Koramangala Police Station and registered a case in Crime No. 6/2006 of the said P.S. against all the accused Nos. 1 to 4 for the offence under S.398 read with S.511 IPC.

6. On appreciation of the oral evidence of PWs 1 to 6, documents at Exts. P1 to P3 and MO Nos. 1 and 2 knives, the trial Court, by its impugned judgment and Order, convicted all the accused Nos. 1 to 4 for the offence under S.398 read with S.511 IPC. Of the said four accused, only accused Nos. 2 and 3 have preferred the present appeal. It appears that the other - two accused have not chosen to file their appeal.

7. On careful reading of the averments in Ext. P2 report submitted by PW 3 P.S.I., it could be seen that the accused are said to have disclosed before the said PSI and his staff that they attempted to rob the persons moving on the said road by showing knives and clubs, PW 3 P.S.I. has stated in his cross - examination that, at the time when himself and his staff apprehended accused Nos. 1 to 4, no others were found on the said road.

8. PWs 4 and 5 are projected as t