Bangalore District Court
State By Yelahanka vs 3. Veerakyathaiah S/O Shivanna on 5 January, 2015
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
DATED THIS THE 05th DAY OF JANUARY 2015
PRESENT:
Sri Bannikatti Hanumanthappa.R.,
B.A., L L.B. (Spl.)
C.C. NO. 44465/2010
Complainant : State by Yelahanka
Police, Bengaluru City
-V/s-
Accused : 3. Veerakyathaiah s/o Shivanna,
25 yrs, R/at Singanapalya,
Pathaganahalli Post, Kolala Hobli,
Koratagere Taluk, Tumkur District.
Date of offence : 11-05-2009
Offence : U/S 392 I.P.C.
Plea of the accused : Pleaded not guilty
Final order : Accused No-3 Acquitted
Date of Order : 05-01-2015
2 CC No.44465/2010
J U D G M E N T U/S 355 of Cr.P.C.
The Police Inspector of Yelahanka Police Station,
Bengaluru City has filed this split up charge sheet
against accused No-3, for the alleged offence punishable
U/S 392 of I.P.C.
2. The case of prosecution, in brief is that -
On 11-05-2009 at about 9.45 pm, CW1 Tarique
Equbal was standing at Hunasamaranahalli Bus Stop,
Yelahanka P.S. Limits, Bengaluru, to go to his house. At
that time, the accused persons came in a Tata Sumo
vehicle and made CW1 to sit in the said vehicle by
threatening. After going certain distance, the accused by
showing knife & putting fear to complainant had robbed
cash of Rs.1,400/-, one Motorola L-7i mobile and one
watch from CW1. Thereby, the accused committed an
offence punishable under Section 392 of I.P.C.
3 CC No.44465/2010
3. Accused No-3 is on bail. After furnishing charge-sheet
copies, my learned predecessor on the basis of
materials placed before the Court, has framed charge
against accused No-3 for the alleged offence, and read
over & explained in the language known to him.
Accused No-3 pleaded not guilty and claimed to be
tried. It is pertinent to note that, the learned counsel
for accused No-3 has filed memo dated 25-06-2013 to
adopt the evidence recorded in CC No.2552/11 (one of
the split case from original case). It is to be noted here
that, on the said memo, the learned Sr. APP has
endorsed that- I pray time for my objection to adopt
evidence. However thereafter on 04-09-2013, my
learned predecessor has passed orders to the effect
that the evidence already recorded in original CC
No.5135/2010 are herewith adopted to this case, and
posted the case for recording the statement of accused
No-3 as required under Section 313 Cr.P.C. Thereafter
4 CC No.44465/2010
the statement of accused No-3, as required U/S 313 of
Cr.P.C. was recorded, wherein he has denied the
prosecution case in toto and opted not to adduce any
defence evidence.
4. It is pertinent to note that, in the original case, the
prosecution has examined in all five witnesses as per
PW1 to 5, produced documents as per Ex.P1 to 7 and
material object as per MO1. When the evidence of
original case is adopted to this case, then
automatically the documents and material object
produced therein are also adopted to this case.
5. Heard arguments.
6. The point that arises for my consideration is-
Whether the prosecution proves beyond all
reasonable doubt that accused No-3 has
committed an offence punishable under
5 CC No.44465/2010
Section 392 of I.P.C., as per the charges
leveled against him?
7. My answer to the above point is in the NEGATIVE for
the following.
REASONS
8. Presently, accused No-3 is facing trial in this case,
since in the original case i.e., CC No.5135/2010, trial
was conducted against accused No-1 & 4 and the
same has ended in acquittal. Further, another split up
case registered against accused No-2 viz., CC
No.2552/2011 has also ended in acquittal. Section
392 of IPC pertains to the punishment for those who
commits robbery, which is defined under Section 390
of IPC. Undoubtedly, robbery is a special and
aggravated form of theft or extortion. If one uses the
force or put the victim in fear of instant death or hurt
including wrongful restraint etc., attracts the
provisions of Section 392 IPC.
6 CC No.44465/2010
9. No doubt, the allegations of prosecution covers the
ingredients of definition robbery. But the important
aspect to be looked into is, whether the involvement of
present accused in the said robbery is proved or not.
If there are concrete and sufficient evidence to show
that the present accused has involved in the said
crime, then only he can be found guilty and hold up
for the alleged offence.
10. With this background, a look into the facts as made
out by the complainant under Ex.P1 complaint
discloses that the complainant was pulled into a White
Tata Sumo vehicle, when he was standing at
Hunasamaranahalli Bus Stop on 11-5-2009 at about
21:45 hours, and thereafter the complainant was
threatened by the inmates of vehicle with dire
consequences and took out Rs.1,400/- including the
watch, mobile, election identity card etc., that were
found with the complainant by putting fear, by
7 CC No.44465/2010
showing knife and ran away in the dark at Satnoor
Area. One of the persons sitting in the said vehicle was
named as Rizwan by the complainant in his complaint,
wherein he has lodged it on 12-5-2009 at about 1.30
am, before Yelahanka Police. A case was registered on
the basis of this complaint and charge sheet has been
filed against the accused persons.
11. The complainant has given his evidence as PW1 and
has fully corroborated the complaint averments.
According to him, accused No-1 was shown to him on
20-12-2009 at Yelahanka P.S. and also the other three
accused persons, apart from his mobile MO1. This
witness has been subjected to cross-examination in
length by the learned counsel for defence. In the
cross-examination, he claims that he had identified
accused No-1 and other accused persons on seeing the
photo itself. Now the question is as to whether the
claim of complainant that he can identify the present
8 CC No.44465/2010
accused before the court can be trusted and believed.
Throughout he claims that the accused were calling a
person by name Rizwan, when the complainant was
forcibly pulled into the vehicle. But, nowhere the said
Rizwan is shown as one of the accused persons in the
charge sheet. Therefore, the possibility of having seen
accused No-3 and properly & correctly identifying
before the court appears to be very doubtful.
12. Apart from this, it is most important to note here
that there is no supporting evidence to point out that
it was the present accused who also has involved in
the crime. This is for the reason that the so called
recovery of mobile at the instance or from the
possession of any of the accused has not been proved
before the court. The relevant witnesses have not
stepped into the box to give their evidence regarding
this important aspect, except the I.O. such as PW5,
who has stated that he has recovered the mobile from
9 CC No.44465/2010
the house of one of the accused, on the basis of
voluntary statement in the presence of panchas under
mahazar Ex.P7. None of the panch witnesses have
appeared before the court to speak regarding the story
of prosecution, in respect of recovery of the said mobile
at the instance of accused. Enough opportunity was
given to the prosecution to secure the relevant and
important witnesses involved in this case. This failure
on the part of prosecution makes the case a weak one.
Therefore, the sole testimony of complainant doesn't
inspire as to trust and to hold the present accused
guilty of the serious allegations made against him.
This is one aspect of the case.
13. Coming to the evidence of PW2 Arunkumar - the
P.C. of Yelahanka P.S., this court can note that he has
apprehended the three accused persons on 15-12-
2009 under suspicious circumstances along with
chilly powder and a knife etc., who allegedly were
10 CC No.44465/2010
found when they were attempting to commit robbery.
In fact the evidence of this witness doesn't throw any
light over the story of prosecution.
14. PW3 B.G.Srinivas is the PSI of Yelahanka P.S., who
received the complaint and submitted FIR as per Ex.P1
& 5 respectively and also prepared a mahazar at the
place of occurrence as per Ex.P2. PW4 Sultan Sahib is
only a spot mahazar witness. Thus the evidence of
these two witnesses is not so important, so far the
alleged offence against the present accused is
concerned.
15. When the evidence placed before court by
prosecution is scrutinized carefully, it can be inferred
that none of the witnesses so examined have spoken
anything against this accused No-3, against whom the
case was split up. No one has stated with regard to
accused No-3 being present while committing the act
11 CC No.44465/2010
of robbery. PW1 has only stated that the inmates of
vehicle robbed him and ran away. He has repeatedly
taken the name of one Rizwan, who was mainly
responsible for the act of robbery. But out of accused
No-1 to 4, no one is charge sheeted in the name of said
Rizwan. Further PW1 has admitted in his cross-
examination that he had identified the other accused
(accused No-2 to 4) through photographs. But nothing
is whispered in his evidence about this accused No-3
being present at the place of incident or committing
the act of robbery by putting him under fear. The
police officials have only spoken about the
apprehending of accused, registration of crime, and
recovery of deadly weapons, incriminating articles
etc.,. The IO - PW5 Kenchegowda - then PI has spoken
about the arrest of three accused persons produced
before him by his staff, seizure of chilly powder, knife
from their possession and also seizure of alleged
12 CC No.44465/2010
mobile belonging to complainant on the information
given by accused etc., and thereafter filing charge
sheet.
16. Here in this case, PW1 - the complainant being best
witness for prosecution has not spoken anything about
this accused. Randomly he has spoken about the
accused being four in numbers and no records are
produced to show that this accused No-3 was also
shown to him and got identified by complainant. So in
the absence of convincing evidence against this
accused against whom the case was split up, court
feels that it is not safe to base conviction as against
this accused, solely on the uncorroborated testimony
of complainant alone. Further, to prove the offence of
robbery as alleged against accused, what is required to
be proved by prosecution is that the nexus between
robbed article and accused. It is pertinent to note that,
in theft/robbery cases, in order to prove the guilt of
13 CC No.44465/2010
accused, the recovery of stolen/robbed article plays an
important role. The prosecution is required to prove
that the accused made a confessional statement and
part of the statement led to discovery of fact that the
stolen/robbed article was seized. But, unfortunately,
the concerned have failed to secure the presence of
related panchas pertaining to Ex.P7 - recovery
mahazar, inspite of giving sufficient opportunity. So
their non-examination will make this court to believe
that the contents of said seizure mahazar have not
been proved beyond all reasonable doubt. In the
considered opinion of court, the evidence available on
record are not safe to base conviction to the present
accused and that too, solely on the uncorroborated
testimony of complainant alone. Hence for all the
above reasons, I answer the Point raised for my
consideration in the Negative and proceed to pass the
following:
14 CC No.44465/2010
ORDER
Acting under Section 248(1) of Cr.P.C., accused No-3 is acquitted of an offence punishable under Section 392 of I.P.C.
The bail bond and surety bond of accused No-3 shall stand cancelled and set at liberty.
The interim custody of MO1 - mobile already granted in favour of complainant - PW1 is hereby made absolute.
(Dictated to the Stenographer on computer. The computerized print out of judgment taken by him is revised, corrected and then pronounced by me on this day i.e., 05-01-2015).
(Bannikatti Hanumanthappa.R.), CHIEF METROPOLITAN MAGISTRATE, BENGALURU.
15 CC No.44465/2010ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Tarique Equbal
PW2 : Arunkumar
PW3 : B.G.Srinivas
PW4 : Sultan Sahib
PW5 : E.Kenchegowda
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Complaint
Ex.P2 : Spot Mahazar
Ex.P3 : Photo
Ex.P4 : Report of CW8
Ex.P5 : FIR
Ex.P6 : Relevant Portion in the
Voluntary Statement of Accused No-1 Ex.P7 : Recovery Mahazar List of Material objects produced:-
MO1 : One Motorola Mobile List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU. 16 CC No.44465/2010 05-01-2015 Judgment pronounced vide separate sheets.
ORDER Acting under Section 248(1) of Cr.P.C., accused No-3 is acquitted of an offence punishable under Section 392 of I.P.C.
The bail bond and surety bond of accused No-3 shall stand cancelled and set at liberty.
The interim custody of MO1 - mobile already granted in favour of complainant - PW1 is hereby made absolute.
Chief Metropolitan Magistrate, Bengaluru.
17 CC No.44465/201018 CC No.44465/2010