Bangalore District Court
State By: Madivala Police Station vs Shankar S/O Narayanappa on 9 November, 2015
1 C.C.14342/2012
IN THE COURT OF III ADDL., CHIEF METROPOLITAN
MAGISTRATE
BENGALURU CITY
Dated this Monday the 9th day of November 2015
Present: Sri.Mohan Prabhu, B.Com., M.A, LL.B.,
III Addl., CMM.,
Bengaluru.
C.C.No.14342/2012
Complainant : State by: Madivala Police Station
V/s
Accused : Shankar S/o Narayanappa, 23 yrs,
R/at:No:4, 5th Cross, Bhovi Colony,
Tavarekere Main Road, Bengaluru
Nagar.
(By Sri.MKR Adv., Bengaluru)
---
::JUDGEMENT::
Case No. : C.C.No.14342/2012 Date of offence : 25/11/2011 Complainant : Venkatkrishnan 2 C.C.14342/2012 Accused : Named above Offence : U/ss.380 of IPC Charge : Accused pleaded not guilty Final order : Accused is acquitted Date of order : 9/11/2015 The brief statement of the Reasons for the decision : As follows --- ::REASONS::
The PSI of Madivala Police Station has filed the chargesheet against the accused for the offence punishable U/s.380 of IPC.
2. The case of the prosecution briefly stated as follows:
That on 25/11/2011 at about 8-15 a.m. within the jurisdiction of Madivala Police Station at V.P.Road, 6th Cross, in the House No.11/313 belongs to Cw.1 and Cw.2 some culprits entered into the house and committed the theft of 2 3 C.C.14342/2012 Lenevo Laptops and one Samsung Mobile Phone and one MP3 Player, Data Card and a Purse.
3. Based on the complaint lodged by Cw.1, Madivala Police Station Police registered the case in Crime No.1144/2011 for the offence punishable U/s.380 of IPC and dispatched FIR to the Court. The Investigating Officer visited the spot and conducted the spot mahazar. The I.O. recorded the statements of the witnesses. It is further case of the prosecution is that the accused was arrested by the Madivala Police in Crime No.64/2012 on 6/2/2012 and produced before Cw.14. On the basis of voluntary statement given by the accused, accused led the Investigating Officer to the house of Cw.5 wherein Investigating Officer seized one Lenevo Laptop by conducting the seizer panchanama in the presence of Pancha Cw.6. The accused led the Investigating Officer to the house of Cw.11 wherein Investigating Officer seized one Lenevo Laptop in the presence of panchas Cw.8 and Cw.9 by conducting the panchanama. The I.O. after 4 C.C.14342/2012 completion of investigation has filed chargesheet against the accused for the offence punishable U/s.380 of IPC.
4. In this case accused appeared before this Court on 4/7/2012 and by engaging counsel released on bail. Chargesheet copies furnished to the accused and thereby the provision u/s.207 of Cr.P.C., is complied with. After hearing on both sides charge came to be framed for the offence punishable u/s.380 of IPC for which the accused pleaded not guilty and claimed for trial.
5. During the course of trial on the side of the prosecution 4 witnesses are examined as Pw.1 to Pw.4 and documents Ex.p1 to p5 are marked. Inspite of sufficient opportunity given to the prosecution, prosecution could not examined Cw.1 to Cw.4 and Cw.6, Cw.8 and Cw.9. After closure of the evidence on the side of the prosecution statement of the accused u/s.313 of Cr.P.C., is recorded. Accused denied the incriminating evidence. No defence evidence is led.
5 C.C.14342/2012
6. Heard the arguments.
7. The following points arise for my consideration:
1.Whether the prosecution proves beyond all reasonable doubt that on 25/11/2011 at about 8-15 a.m. the accused committed the theft of 2 Lenevo Laptops and a Samsung Mobile Phone and a MP3 Player Data Card and one Purse in the house of Cw.1 and Cwe.2 and thereby the accused committed the offence punishable U/s.380 of IPC?
2. What Order?
8. My findings on the above point:
Point No.1: In the negative Point No.2: As per final order ::REASONS::
9. Point No.1: Pw.1 and Pw.2 are the purchasers of the properties and the seizer mahazar witnesses. Pw.3 is the Police Constable. Pw.4 is the Investigating Officer who conducted the investigation and filed the chargesheet.
10. Pw.1 John Paul deposed that on 8/2/2012 the Madivala Police visited his Travel Office situated at Sarakki along with one person by name Shankar in connection with 6 C.C.14342/2012 the theft case. He states that the said Shankar had sold 5 Laptops and 2 Mobile phones to him. He states that on that day he returned all those Laptops and Mobile Phones then Investigating Officer obtained this signature on Ex.p1.
11. During the course of cross examination by the learned counsel for the accused Pw.1 deposed that he do not remember exact date on which the said Shankar sold those Laptops and Mobile Phones. He states that he do not know exact models of those Laptops and Mobile Phones. He states that one Fakruddin of Madivala Police Station visited to his Office. He is admitted the fact that he signed the said mahazar at the Police Station. He states that along with him one Pradeep Kumar and Harish also signed the Mahazar.
12. In this case the copy of Seizer mahazar is marked as Ex.p1. According to the case of the prosecution this Mahazar Ex.p1 conducted on 8/2/2012 in the house of Cw.5 (Pw.1) John Paul which is situated at Banneghatta Road, Mico 7 C.C.14342/2012 Layout behind Appolo, Venkatadri Layout. But quite contrary to this document Ex.p1, Pw.1 deposed that the Police visited his Travel Office situated at Sarakki and conducted the Mahazar in that place. There is no corroboration to the oral evidence of Pw.1 and document Ex.p1. More than that in his cross examination Pw.1 deposed that he has signed the said mahazar at Police Station. Hence the oral evidence of Pw.1 is not believable.
13. Pw.2 Harish Kumar deposed that in the month of February 2012 he purchased 4 Laptops from this accused. He states that on 9/2/2012 the Madivala Police visited his house along with accused and the Police informed him that the accused had stolen this Laptops and sold to him. He states that as requested by the Police he handed over those Laptops to the Police. He states that after recovery of said Laptops the Investigating Officer obtained his signatures on Ex.p2. During the course of cross examination by the learned counsel for the accused Pw.2 Harish Kumar deposed 8 C.C.14342/2012 that he do not remember the exact date on which the accused sold the said Laptops. He states that he do not know the name of the Police Official who visited his house. He states that out of 4 Laptops, 2 were of Sony Company, one of Dell Company and another one of Lenevo Company. He states that he do not remember the exact time of the mahazar and he do not remember the exact place where the mahazar was drawn. In Ex.p2 Seizer Mahazar it is mentioned that the Investigating Officer has seized 2 Dell Laptops, one Sony Company Laptop and one Lenevo Company Laptop and 2 Nokia Mobile Phones. But quite contrary to this Pw.2 deposed that out of 4 Laptops two were Sony Company, one was Dell Company and another one of Lenevo Company. Pw.2 Harish Kumar has not deposed anything regarding seizer of 2 Mobile Phones and production of the same before the Investigating Officer. The oral evidence of Pw.2 Harish Kumar is quite contrary to the document Ex.p2 Mahazar. His oral evidence is not supported by any independent witness. In this case the prosecution is 9 C.C.14342/2012 not examined seizer mahazar witness Cw.6. The oral version of Pw.2 Harish Kumar is not corroborating with the evidence of Pw.4 Investigating Officer. Hence the oral evidence of Pw.2 creates doubt about his version. Hence the oral evidence of Pw.2 is not believable. More than that Pw.1 during his cross examination deposed that on 8/2/2012 when he was signed on the mahazar along with him one Pradeep Kumar and Harish were also signed the said mahazar. But quite contrary to this Pw.2 Harish Kumar deposed that he was signed the seizer mahazar on 9/2/2012. There is no corroboration in the oral evidence of Pw.1 and Pw.2 with regarding to the date.
14. Pw.3 is the Police Constable of Madivala Police Station deposed that on 6/2/2012 Cw.14 deputed him and Cw.10 and Cw.12 in order to search the accused persons as well as the stolen properties pertaining to the old crimes. He states that at about 8-15 p.m. when they were just near Maruthi Nagar Main Road, they found this accused as shown by their 10 C.C.14342/2012 informants. He states that they have apprehended the accused and found a black colour bag in possession of this accused in which they found 2 Laptops and one Samsung Mobile Phone. He states that thereafter they brought this accused to the Police Station and produced him before Cw.14. During the course of cross examination of by the learned counsel for the accused he dined the suggestion that they falsely implicated the accused in respect of untraced crimes pending in their Police Station. The oral evidence of Pw.3 is not supported by any independent witnesses. If at all Pw.3 was arrested the accused near Maruthi Nagar Main Road he would have conducted the Mahzar in the presence of independent witnesses. If at all he was seized the 2 Laptop and one Samsung Mobile Phone he would have seized the same in the presence of independent panchas. But no such mahazar was drawn by Pw.3 in the alleged place of arrest of the accused. Hence the oral evidence of Pw.3 is creates doubt about his version.
11 C.C.14342/2012
15. Pw.4 the Investigating Officer deposed that he took up the further investigation on 7/2/2012. He states that on 6/2/2012 at about 9 p.m. Cw.10 to Cw.12 produced the accused and also produced the Rexene Bag containing 2 dell Laptops and one Samsung Mobile Phone. He states that he was arrested the accused and seized the Laptops and Mobile Phone in the presence of Panchas by name Biju and Shiny by conducting the panchanama. He states that he has recorded the voluntary statement of the accused. He states that he has produced the accused before the Court on 7/2/2012 and taken him to the Police custody. He states that he recorded the voluntary statement of the accused on 8/2/2012. He states that the accused has led them to Bhannerghatta Road Venkatadri Layout and shown the house of John Paul. He states that John Paul by admitting he has received 5 Laptops and 2 mobile phone produced the same. He states that he was seized these properties in the presence of panchas by name Basha and Imran by conducting the Seizer panchanama as per Ex.p1. He states 12 C.C.14342/2012 that on 9/2/2012 accused led him to the house of Harish situated at Koramanagala. He states that Harish produced 2 Dell Laptops and one Sony Laptop, one Lenevo Laptop, one Nokia Mobile Phones which was received by him from the accused. He states that he has seized these articles in the presence of panchas by name Harish and Pradeep by conducting the seizer panchanama. In this case even though Pw.4 partly chief examined by the prosecution, Pw.4 was is not tendered himself for cross examination. Despite of sufficient opportunity given to the prosecution the prosecution could not secured Pw.4 in order to record further chief examination and tender him for cross examination. Since Pw.4 is not tendered himself for cross examination his oral evidence is not acceptable.
16. In this case despite of sufficient opportunity given to the prosecution the prosecution not examined Cw.1 to Cw.4, Cw.6, Cw.8, Cw.9 and Cw.13. Non examination of Cw.1 to Cw.4, Cw.6, Cw.8, Cw.9 and Cw.13 is fatal to the case of the 13 C.C.14342/2012 prosecution. The oral evidence of Pw.1 and Pw.2 is not corroborating with each other. Their oral evidence is quite contrary to the documents Ex.p1 and Ex.p2 seizer mahazar. The prosecution has not examined independent seizer mahazar witnesses Cw.6, Cw.8 and Cw.9. The non examination of Cw.6, Cw.8 and Cw.9 the seizer mahazar witnesses is fatal to the case of the prosecution. The uncorroborated oral evidence of Pw.1 and Pw.2 is not sufficient to hold that the 2 Lenevo Laptops was seized by the Investigating Officer at the instance of the accused. There is no complete chain of events in order to link the accused and to show that accused has committed the theft of 2 Lenevo Laptops, one Samsung Mobile Phone and one Mp3 Player, Data Card in the house of Cw.1 and Cw.2 and sold the same to Pw.1 and Pw.2 and the Investigating Officer has seized the same at the instance of the accused. In this case inspite of sufficient opportunity given to the prosecution the prosecution could not examined Cw.1 to Cw.4, Cw.6, Cw.8 and Cw.9. Non examination of these 14 C.C.14342/2012 witnesses is fatal to the case of the prosecution. Hence, I am of the view that the prosecution has failed to prove the case against the accused for the offence punishable u/s.380 of IPC beyond all reasonable doubt. The prosecution is failed to bring home the guilt of the accused beyond all reasonable doubt. Hence, I answered Point No.1 in the Negative.
17. Point No.2: In the result, I proceed to pass the following:
::ORDER::
U/s.248(1) of the Cr.P.C., accused is hereby acquitted of the offence punishable U/s.380 of IPC.
His Bail bond and surety bond stand cancelled after completion of appeal period.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in open Court, this the 9/11/2015).
(Mohan Prabhu), III Addl., Chief Metropolitan Magistrate, Bengaluru City.15 C.C.14342/2012
::ANNEXURE::
1. List of witnesses examined for the prosecution:
Pw.1: John Paul Pw.2: Harish Kumar Pw.3: Raghavendra P. Pw.4: Zavoor Ali Baig
2. List of Documents marked on the side of the prosecution:
Ex.p1:2: Seizer Mahazar Ex.p3: Copy of PF.No:32/2012 Ex.p4: Copy of Pf.No:33/2012 Ex.p5: Voluntary Statement
3. Material objects marked: Nil
4. Defence: Nil
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III ACMM., Bengaluru.
16 C.C.14342/201217 C.C.14342/2012 18 C.C.14342/2012