The absence of a Test Identification Parade, along with inadequacies in prosecution evidence, poses a reasonable doubt on the conviction under Section 395 IPC.

ORAL JUDGMENT

Appellants/accused 1, 2, 4 and 5 have preferred these appeals against the judgment of conviction and order on sentence passed by the Principal District and Sessions Judge, Tumkur in S.C.No.261/2012 dated 22.04.2013 (for short "the trial Court").

2. Parties are referred to as per their rank before the trial Court.

3. Brief facts leading to these appeals are that the Circle Inspector of Police, Kyatasandra Police Station, Tumkur submitted charge sheet against the accused for the offence punishable under Section 395 of Indian Penal Code (for short ' IPC '). The prosecution alleges that on 29.01.2011 at 00.15 hours, near the bus stop of Chikkahalli, within the limits of Kyatasandra Police Station, Tumkur, accused Nos.1, 2, 4 and 5 along with juvenile accused No.3 and absconding accused No.6, committed dacoity of mobile phone and cash of Rs.13,000/- belonging to CW.1-Noorulla, threatening him with a knife while he was alighting from a lorry, thereby committing offence punishable under of the . After charge sheet was filed, the case was registered as C.C.No.519/2011, and the case was committed to the Court of Sessions, which came to be registered as SC.No.261/2012. Accused were enlarged on bail.

4. On hearing the charges, the Trial Court framed charges for the alleged offences. The same were read over and explained to the accused in the language known to them. Having understood the same, accused pleaded not guilty and claimed to be tried.

5. To prove the guilt of the accused, the prosecution examined seven witnesses as PWs.1 to 7, marked eleven documents as Exs.P1 to P11 and marked six material objects as MOs.1 to

6. On closure of prosecution side evidence, statements under Section 313 of Cr.P.C. was recorded. The accused have totally denied the evidence of prosecution witnesses. However, they did not choose to lead any defence evidence on their behalf.

6. After hearing arguments from both sides, the Trial Court convicted accused 1, 2, 4 and 5 for the offence punishable under Section 395 of Indian Penal Code and sentenced them to undergo rigorous imprisonment for five years and to pay fine of Rs.2,000/- each. Aggrieved by the judgment of conviction and order of sentence, accused No.4 has preferred appeal in Crl.A.No.538/2013, accused No.5 in Crl.A.No.627/2013, accused No.2 in Crl.A.No.982/2013, and accused No. 1 in Crl.A.No.658/2014.

7. The learned counsel for the accused in Crl.A.No.538/2013 submits that the judgment of conviction and sentence passed by the Trial Court is contrary to law, facts, circumstances and the probabilities of the case. The prosecution has miserably failed to establish the involvement of the accused in the commission of the offence. The Trial Court failed to appreciate the evidence in proper perspective and there was an inordinate delay of nine hours in filing the complaint, for which the complainant provided no proper explanation. The appellant’s name does not appear in the First Information Report.

8. The learned counsel for the accused in Crl.A.No.538/2013 submits that learned Sessions Judge erred in not considering all witnesses, except the official witnesses, who turned hostile and have not supported the case of prosecution. Relying upon the evidence on record, the Sessions Judge erroneously concluded to convict the accused. Although the assailants were total strangers to the witnesses and the alleged incident occurred during the dark hour with insufficient light to see their faces, the Investigating Officer failed to conduct a Test Identification Parade to ascertain the witnesses' identification capacity. Not conducting parade is fatal to the prosecution case. Therefore, conviction cannot be based on the eviden