A conviction based on the testimony of a sole eyewitness cannot be sustained if the evidence suffers from material contradictions, omissions, and improvements, and when the associated Test Identification Parade is conducted with unexplained delays and procedural lapses, failing to inspire the confidence of the court.

THESE CRIMINAL APPEALS ARE COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ

and

HON'BLE MR. JUSTICE VENKATESH NAIK T

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE MOHAMMAD NAWAZ)

The judgment and order passed in Sessions Case No.268 of 2014 by the Court of II Additional District and Sessions, Shivamogga, convicting and sentencing the appellants/accused Nos.1 to 4 for the offences punishable under Sections 302 and 397 read with Section 34 of the Indian Penal Code, 1860 (for short, 'IPC') is assailed in these appeals.

2. Criminal Appeal No.880 of 2018 is preferred by accused Nos.1 and 2, Criminal Appeal No.1188 of 2018 is preferred by accused No.3, and Criminal Appeal No.1098 of 2018 is preferred by accused No.4.

3. We have heard the learned counsel appearing for the appellants/accused Nos.1 to 4, the learned State Public Prosecutor for the respondent/State and perused the evidence on record.

4. It is the case of prosecution that on 27.08.2009 at about 8.20 a.m., when the first informant, Malappa (PW3), and Sharana Basava (deceased) were proceeding on a motorcycle, bearing Registration No.KA-15 K-4356, on Yaraganalu Forest Road within the jurisdiction of Tunganagar Police Station, Shivamogga, accused Nos.1 to 4, who had conspired to commit robbery and waiting for the victims, armed with longs and clubs, assaulted Sharana Basava, who was riding the motorcycle, with a club on his face, due to which, he sustained grievous injuries and lost control of the motorcycle and hit a tree and sustained head injuries and succumbed to the injuries at the spot. Further, the accused robbed a bag containing a sum of Rs.1,16,655/- and four Nokia mobile sets from the complainant and thereby, committed the charged offences.

5. The first informant, Malappa (PW3), was working as a Field Assistant Trainee and deceased Sharana Basava was working as a Manager in one SKS Micro Finance Private Limited, Shivamogga. On 27.08.2009 at about 6.45 a.m., they collected a sum of Rs.1,16,655/- and four Nokia mobile sets from PW8-Sabanna (CW11), Branch Manager of SKS Micro Finance Private Limited, in order to distribute the same to the members and thereafter, they were proceeding on the motorcycle, bearing Registration No.KA-15 K-4356, towards Kadekal Village through Lakkinakoppa Circle. It is the case of prosecution that accused Nos.1 to 4, who had conspired to commit robbery, were waiting near the forest road of Yaraganalu to rob the money. Accused No.3 passed on the information about the arrival of the victims, accused Nos.1, 2 and 4, who were armed with longs and clubs, waylaid the motorcycle and accused No.1 tried to assault the deceased who was riding the motorcycle, and when the deceased took the motorcycle to the left side of the road, accused No.2 assaulted on his face with a club, due to which, he lost control and hit a tree and sustained severe head injuries and died at the spot. Further, accused No.4 assaulted the first informant (PW3) with a club on the chest and caused injuries to him and then, robbed the bag containing a cash of Rs.1,16,655/- and four Nokia mobile sets. Immediately, after the incident, PW3 ran towards Kadekal Village and informed the matter to the villagers, whom he met, and from the coin booth, he informed the matter to his Office. PW34-Sub-Inspector of Police, who got the information about the incident, came to the spot and recorded the statement of PW3 as per Ex.P8 at the spot, on the basis of which, an F.I.R. was registered against two unknown persons.

6. PW34 handed over the investigation to PW27-Circle Inspector of Police, who conducted the spot mahazar-Ex.P6 and from the spot, seized a motorcycle, one club, two helmets, two chappal, one jerkin, one gutka packet, one beedi packet, sample mud and bloodstained mud. The dead body was shifted to the hospital, wherein inquest mahazar-Ex.P1 was conducted. Post-mortem examination was conducted by PW33.

7. PW28-Invest