Bangalore District Court
State By Basavangudi P.S vs Byrajau @ Byra on 2 September, 2022
SC No.1498/2018
KABC010061782016
IN THE COURT OF THE LXI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY
Dated this the 02 nd day of September 2022
PRESENT
SRI.R.RAVI, B.Sc., LL.B.,
LXI Addl. C.C. & S.J., Bangalore.
S.C.No.1498/2018
COMPLAINANT: State by Basavangudi P.S.,
(By Learned Public Prosecutor)
V/s.
ACCUSED : 1. Byrajau @ Byra
S/o.Late Siddegowda
Aged about 27 years
R/a.Near Shanimahtma
Temple, Kanakanagara
Kumaraswamy layout
Bengaluru.
(Accused No.1)
2. Kempegwoda @ Kiran @
Kanta
S/o.Shidle Gowda
Aged about 23 years
R/a.Kuupareddy Lake Road
SC No.1498/2018
Kanakapura Main Road
Tataguni,
Bengaluru.
(Accused No.2)
3. Mahadevaswamy @ Sarakki
Mahesh
S/o.Kalamadegowda
Aged about 26 years
R/a.No.3, 35th Main Road
15th Cross
Near Ayyappaswamy
Temple, JP Nagar,
Bengalauru.
(Accused No.3)
4. Gangadhara @ Ganga
S/o.Siddappa
Aged about 24 years
R/a.No.10, 2nd Cross
Yalachenahalli
Kanakapura Main Road
Bengaluru.
(Accused No.4)
5. Uday.K
S/o.Kumaraswamy
Aged about 26 years
R/a.No.1510, 1st Main
th
Road, 6 Cross
Ganganapthipura
Bengaluru.
(Accused No.5)
6. Richord @ Richhi
SC No.1498/2018
S/o.Anthony
Aged about 27 years
R/a.Near Venkataramana
Temple, Yalachenahalli,
Bengaluru.
(Accused No.6)
(By Sri.B.S.M., Advocate)
1. Date of 04.05.2016
Commission :
of Offence
2. Date of Report :
of Offence 04.05.2016
3. Status of the :
Accused are on bail
accused
4. Name of the : Sri Shashidhara.S.D., PI
complainant
5. Date of : 03.06.2022
Commencement
of evidence
6. Date of Closing : 25.07.2022
of Evidence
7. Offences : Offences punishable
complained of under Sections 399 &
SC No.1498/2018
402 of IPC.
8. Opinion of the : Accused No.1 to 6 are
Judge acquitted for the
offences punishable
under section 399 & 402
of IPC.
J UD GM E N T
This is a charge sheet one filed by the Basavanagudi Police
Station against the accused No.1 to 6 for the offences
punishable under Sections under Sections 399 & 402 of IPC.
2. The brief facts of the prosecution case is that;
On 04.05.2016 at about 4.00 a.m., near R.V. Road
Lalabagh West Gate, Metro Station and H.B.Samaj Junction
within the jurisdiction of the respondent Police Station the above
accused No.1 to 6 formed themselves into an unlawful assembly
with the common object of committing dacoity of the general
public who passes there by holding deadly weapons like
Dragger, Sickle, Wooden Clubs, chilli powder packets. In this
regard FIR is registered against the accused persons for the
offences punishable u/Sec.399 & 402 of IPC.
SC No.1498/2018
3. On receipt of the charge sheet, the learned II ACMM,
Bengaluru took cognizance of the offences cited above and since
the alleged offences are exclusively triable by the Court of
Sessions, then the above case was committed to this Court and
after receipt of the records, the accused were secured and after
hearing the learned Public Prosecutor and so also the defence
counsel under Section 227 of Cr.P.C., the charges for the offences
under Section 399 & 402 of IPC is framed and since the above
accused did not plead guilty and claims to be tried then the
matter is posted for trial.
4. In order to prove the guilt of the accused persons, the
prosecution has got examined five witnesses as PW-1 to PW-5 and
got marked documents at Ex.P.1 to 6 and further got marked
material objects at MO-1 to 6 and after closer of the prosecution
side evidence, the statement of the accused under Section 313 of
Cr.P.C. is recorded and since the accused denied the
incriminating evidence appearing against them and did not chose
to lead any defence evidence then the matter was posted for
arguments.
SC No.1498/2018
5. And I have heard the arguments of both sides and
perused the entire materials placed on record and the points that
would arise for my consideration are as below;
1. Whether the prosecution proves
beyond reasonable doubt that
04.05.2016 at about 4.00 a.m.,
near R.V. Road Lalabagh West
Gate, Metro Station and H.B.Samaj
Junction within the jurisdiction of
the respondent Police Station the
above accused No.1 to 6 formed
themselves into an unlawful
assembly with the common object
of committing dacoity of the
general public who passes there
by holding deadly weapons like
Dragger, Sickle, Wooden Clubs,
chilli powder packets and thereby
committed the offences punishable
u/Sec.399, 402 of IPC & Section
25 of Arms Act?
2. What order?
6. My answer to the above points are as follows;
Point No.1 : In the Negative
Point No.2 : As per final order, for the following:-
R E A SON S
7. POINT NO.1:- In order to prove the facts of the above
point though the prosecution got examined five witnesses as
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PW-1 to PW-5 and got marked documents at Ex.P.1 to 6 and
further got marked six material objects at MO-1 to 6, the same
do not hold any water as there are lot of variations and
contradictions in the said oral and documentary evidence of the
prosecution that are placed on record. Now let me examine it.
8. First of all though the prosecution has got examined the
police official witness of CW-4 & complainant/CW-1 as PW-1 &
4 and though they have deposed in their examination-in-chief
evidence that 04.05.2016 at about 4.15 a.m, they had received
information from informant that near R.V. Road Lalabagh West
Gate, Metro Station and H.B.Samaj Junction, Bengaluru about
six persons formed an unlawful assembly with the common
object of committing dacoity of the general public who passes
there by holding deadly weapons like Dragger, Sickle, Wooden
Clubs, chilli powder packets & upon receiving the said
information they along with CW-5 to 10/staff & PW-2/CW-2,
PW-3/CW-3 panchas went to the spot and noticed that some
persons were hatching plan for committing dacoity and as such
they apprehended six accused persons along with seized
SC No.1498/2018
articles i.e., Dragger, Sickle, Wooden Clubs, chilli powder
packets through the panchanama at Ex.P.1 and submitted the
report as per Ex.P.4, the same are of no help to the case of the
prosecution to prove the guilt of the accused beyond all
reasonable doubt as the versions of the above witnesses with
regard to the alleged incident & conducting of the spot
panchanama of Ex.P.1 & seizer of alleged MOs-1 to 6 from the
custody of the above accused are not at all cogently
corroborated by the evidence of independent panch witness of
PW-2/CW-3, PW-3/CW-3.
9. And even otherwise since the said PW-1/CW-4 at page
No.2 of his cross-examination has clearly admitted that 'on the
alleged day neither he nor other police official witnesses have
conducted any search of their bodies & on that day lot of people
were coming near the alleged spot for walking, but they have
not at all called them for the alleged panchanama' and since the
said PW-4/CW-1 has also clearly admitted in his cross-
examination that 'on the alleged day lot of people were going for
walk & they have gone to the spot in a private Innova vehicle
SC No.1498/2018
and he cannot able to tell the number of the said vehicle & the
the number of the said vehicle is neither shown in the
panchanama nor in his report' & further admitted that 'the
material objects of MO's No.1 to 6 are available at any market'
then a shadow of doubt is created with regard to the veracity of
the alleged incident one alleged against the said accused
persons.
10. Secondly though the prosecution have examined the
two independent panch witnesses i.e., CW-2 & 3 as PW-2& 3,
their versions are also of no help to prove the guilt of the
accused beyond all reasonable doubt as in their evidence the
said panch witnesses i.e., PW-2 & 3 have turned completely
hostile by deposing that 'about six years ago the Basavanagudi
Police have called them to the police station and took their
signatures on the alleged panchanama of Ex.P.1 and on that
day the accused were not at all shown to them and even no
material objects are seized before them'.
SC No.1498/2018
11. And even though the learned Public Prosecutor has
thoroughly cross-examined the said panch witnesses of PW-2 &
3 with regard to the identifying of the accused & so also the
seizer of MO's-1 to 6 still nothing worthwhile has been elicited
to prove the guilt of the accused beyond all reasonable doubt.
12. And in fact in their cross-examination the above said
PW-2 & 3 have once again reiterated the above facts and further
deposed that they have also not at all given any statement with
regard to the alleged incident as per Ex.P.2 & Ex.P.3.
13. And lastly though the prosecution has examined the
I.O. of the present case i.e, CW-11 as PW-5, his version is also
of no help to the case of the prosecution to prove the guilt of the
accused beyond all reasonable doubt as his version with regard
to the alleged incident and seizer of the MO-1 to 6 from the
custody of the accused are not at all cogently corroborated by
the versions of two independent panch witnesses & other police
official witnesses.
SC No.1498/2018
14. And even otherwise since the version of the above
I.O. does not prove that the alleged act of accused No.1 was
amounting to the preparation of the alleged crime & also
does not prove that the said accused No.1 along with other
accused has conceived the design of committing dacoity &
since in a ruling of 2003 Crl.L.J. 1997, it has been clearly
held that 'To constitute an offence under section 399
and 402 of IPC, some act amounting to preparation
must be proved' & in another ruling of AIR 1993 SCW
2009, it was held that 'To constitute an offence under
sections 399 and 402 of IPC, the prosecution must
show that the accused have conceived design of
committing dacoity' then the version of the above witness
is also not at all helpful to the case of the prosecution to
prove the guilt of the accused beyond all reasonable doubt.
15. So in view of the discussion made above, I am of the
opinion that since the prosecution has failed to prove the guilt
SC No.1498/2018
of the accused beyond all reasonable doubt with cogent
corroborative evidence of complainant, panch, and other official
eye witnesses & since there are lot of variations and
contradictions in the oral version of PW-1 to 5 and since the
prosecution has failed to prove the seizer of the alleged MO's.1
to 6 from the custody of the said accused and since the I.O. of
the present case i.e,. PW-5 has clearly admitted in his cross-
examination that he has neither gone to the alleged crime spot
nor even recorded the statements of independent witnesses and
since in a ruling of 2006 Crl.L.J. 1775 it has been clearly held
that 'In a case under Section 399 & 402 of IPC When no
public persons were summoned to witness the incident and
when no signatures of the accused were obtained on seizer
memo & no copy their off were furnished to any of the
accused when the police did not recover the currency notes
from the accused then the same makes the prosecution
story as doubtful and the accused are entitled for acquittal '
then I am of the considered opinion that the prosecution has
once again failed to prove the guilt of the accused beyond all
reasonable doubt and accordingly, I have answered the above
SC No.1498/2018
Point No.1 in the negative.
16. POINT No.4:- In view of the above reasons, I proceed
to pass the following:-
O R DE R
Acting under Section 235(1) of the
Cr.P.C., the accused No.1 to 6 are hereby
acquitted of the offences punishable under
Section 399 & 402 of IPC.
The bail bonds and surety bonds of
accused No.1 to 6 are here by stands
cancelled.
M.O.1 to 6 are hereby ordered to be
destroyed as they are worthless after appeal
period is over.
(Dictated to the Stenographer directly on the computer, typed by her, corrected, signed and
then pronounced by me in the open court on this the 02 nd day of September, 2022).
(R.RAVI)
LXI Addl. C.C. & Sessions Judge,
BANGALORE CITY.
SC No.1498/2018
A NN E X U R E
LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W. 1 Kemparaju
P.W.2 Dilip Kumar
P.W.3 Chandra
P.W.4 Shashidar.S.D.
P.W.5 Rajashekaraiah
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Panchanama
Ex.P.1(a) Signature
Ex.P.1(b) Signature
Ex.P.2 Statement
Ex.P.2(a) Signature
Ex.P.3 Statement
Ex.P.3(a) Signature
Ex.P.4 Report
Ex.P.4(a) Signature
Ex.P.(b) Signature
Ex.P.5 FIR
Ex.P5(a) Signature
Ex.P.6 P.F. No.33/2016
Ex.P.6(a) Signature
LIST OF WITNESSES EXAMINED FOR DEFENCE: -
NIL
LIST OF DOCUMENTS MARKED FOR DEFENCE:-
NIL
MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :-
MO-1 Dagger
MO-2 Iron rod
SC No.1498/2018
MO-3 & 4 Two wooden clubs
MO-5 & 6 Two chilli Powder Packets
(R.RAVI)
LXI Addl. C.C. & Sessions Judge,
BANGALORE CITY.
SC No.1498/2018
02.09.2022
S-PP
A-1to 6-BSM
Judgment pronounced in the
open court (vide separate judgment)
with the following operative portion:
ORDER
Acting under Section 235(1) of the Cr.P.C., the accused No.1 to 6 are hereby acquitted of the offences punishable under Section 399 & 402 of IPC.
The bail bonds and surety bonds of accused No.1 to 6 are here by stands cancelled.
M.O.1 to 6 are hereby ordered to be destroyed as they are worthless after appeal period is over.
(R.RAVI) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
SC No.1498/2018
3. Whether the prosecution proves beyond reasonable doubt that on 02.08.2013 at about 7.00 p.m., accused being the driver of the bus bearing No.AP-21-V-2499 drove the same in rash and negligent manner on public road from Binni Mill Circle to Hunisemara Circle in Magadi Road so as to endanger human life and thereby committed the offence punishable under Section 279 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place accused drove the said bus in rash SC No.1498/2018 and negligent manner by consuming alcohol knowing fully well that it may cause death of any person on the road and on account of rash and negligent driving dashed the bus against TVS Scooty pep bearing No.KA-01-EL-1515 and as a result of which the pillion rider by name Nagaraj.B.M. fell down and sustained grievous injuries and succumbed to the injuries thereby committed the offence punishable under Section 304 of IPC?
5. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place accused drove the bus by consuming alcohol in contravention of provision of Motor Vehicle Act and thereby committed the offence punishable under Section 185 of Motor Vehicle Act?
6. What order?