Bangalore District Court
State Of Karnataka By vs A.1 Ramakrishna on 13 January, 2017
IN THE COURT OF LXII ADDL.CITY CIVIL&
SESSIONS JUDGE, (CCH-63), BANGALORE CITY.
Dated this the 13th day of January, 2017
Present : Sri.Parameshwara Prasanna.B,
B.A.,LL.B.,
LXII Addl.City Civil & Sessions Judge,
Bengaluru
Sessions Case No.831/2015
COMPLAINANT:- State of Karnataka by
Ashoknagar Police Station,
Bengaluru.
(Rep by Public Prosecutor)
V/s.
ACCUSED A.1 Ramakrishna
S/o.Siddaiah,
24 years
No.363, Mathada Beedi,
Banaduru Village,
Bidadi Hobli,
Ramanagara Taluk and District.
A.2 Tousif
S/o.Mohammed Shafi
23 years
Near Ayyappa Temple,
10th Cross, Anepalya,
Bangalore.
2 SC. No.831 /2015
A.3 Pavan
S/o.Ananda
18 years,
Near Methodist School,
10th Cross,
Anepalya,
Bangalore.
A.4 Syed Irfan
S/o.Syed Ahmed
20 years
Anepalya, 1st Cross, Near Friends
Tailor Shop, Anepalya, Bangalore.
(By Sri.B.A. & P.K. for A.1 to 4, Adv.)
A.5 Nikson Shouri @ Nikson
S/o.Arul, 19 years,
No.175, 2nd Main, 6th Cross,
Vinayaka Nagara, Bangalore. (SPLIT-
UP)
1.Date of Commission of offence : 27.02.2015
2. Date of report of offence : 27.02.2015
3. Arrest of the accused : A.1 to 4 arrested
on 27.02.2015
4. Name of the complainant : Sri.Hazaresh A Killedar
5. Date of commencement
of trial : 24.02.2016
6. Date of closing of evidence : 06.08.2016
3 SC. No.831 /2015
7. Offences complained of : U/s.399 and 402
r/w Sec 120(b) of IPC
8. Opinion of the Judge : A.1 to 4 are acquitted
U/s.235(1) Cr.P.C
(Parameshwara Prasanna.B)
LXII Addl. City Civil &
Sessions Judge, B'lore.
JUDGMENT
This case arise out of charge sheet submitted by Ashoknagar police station in Crime No.170/2015 against the accused Nos.1 to 5 for the offences punishable under section 399 and 402 of Indian Penal Code.
2. The case of the prosecution in brief is that, On 27.2.2015 at about 7.15 p.m., when CW-1 was on patrolling duty within the limits of Ashoknagar Police Station he received credible information that near 4 SC. No.831 /2015 Cemetery compound, Hosur road five persons being equipped with deadly weapons were making preparations for committing dacoity. Immediately, CW-1 secured his staff CW-4 to 8 and panchas CW-2 and 3 and went near Johnson market and intimated them about the said secret information and thereafter at about 9.15 p.m., CW-1 along with CW-2 to 8 came near Christian Cemetery compound wall near Hosur road and their at a distance of 100 meters they saw assembly of five persons equipped with club and hockey stick and on confirming that they were making preparation for committing dacoity CW-1 along with his staff went to spot and conducted raid. During raid accused No.5 escaped from the spot and CW-1 and his staff captured accused No.1 to 4 and they seized one knife, one club, one hockey stick and chilly power packet from accused by drawing mahazar in the presence of CW-2 and 3 and on return to police station along with accused No.1 to 4 and seized articles CW-1 got registered First Information Report against accused No.1 to 5 for the offence 5 SC. No.831 /2015 punishable under Section 399 and 402 of Indian Penal Code.
3. After completion of investigation, charge sheet has been filed against accused Nos.1 to 5 before learned 11th A.C.M.M., Bangalore which was subsequently registered as C.C. No.51928/2015. Since the accused No.5 could not be secured the case against accused No.5 was split up as per the order of the learned 11th A.C.M.M., Bangalore dated 30.5.2015. Since the alleged offences are exclusively triable by the court of Sessions, the learned 11th A.C.M.M., as per order dated 30.5.2015 committed the case against accused No.1 to 4 to the Hon'ble Prl. City Civil and Sessions Judge, Bangalore. That on committal of the case the Hon'ble Prl. City Civil and Sessions Judge, case was registered in S.C. No.831/2015 and the same was made over to this court for disposal in accordance with law. Thereafter, on hearing the prosecution as well as learned defence counsel under Section 227 of Cr.P.C., 6 SC. No.831 /2015 this Court framed charge against accused No.1 to 4 for the offences punishable under Section 399 and 402 of I.P.C. When the charge was read over and explained to the accused No.1 to 4, accused No.1 to 4 pleaded not guilty and claims to be tried.
4. That during the trial, inorder to prove the case of the prosecution out of nine witnesses cited in the charge sheet, prosecution got examined Cws.4, 5 and 3 as Pws.1 to 3 respectively and got marked documents at Ex.P.1 and 2 and Material objects at M.os.1 to 4. Since despite of sufficient opportunity, the concerned police have not secured the remaining witnesses to up hold speedy trial the prayer of the learned public prosecutor for issuing further process to the remaining witnesses was rejected and the prosecution evidence was taken as closed. Thereafter, the statement of accused No.1 to 4 were recorded under Section 313 of Cr.P.C. Accused No.1 to 4 denied the incriminating circumstances appearing in evidence 7 SC. No.831 /2015 against them. Accused No.1 to 4 have not lead any defence evidence on their behalf.
5. Heard argument of both the sides.
6. Under the facts and circumstances of the case, the following points arise for consideration of this Court: -
-: POINTS :-
1) Whether the prosecution proves beyond all reasonable doubt that, on 27.2.2015, night at about 9.15 p.m., accused No.1 to 4 along with split-up accused No.5 being equipped with club, knife, hockey stick and chilly power packet formed themselves into an unlawful assembly near Christian Cemetery compound on Hosur Road and they were making preparation for committing dacoity and thereby committed the offence punishable under Section 399 and 402 of I.P.C.?
2) What Order?
7. The findings of the court on the above points are as under : -
Point No.1 - In the negative 8 SC. No.831 /2015 Point No.2 - As per final order for the following:-
REASONS
8. POINT No.1 : -
The case of the prosecution in brief is that, on 27.2.2015 at about 9.15 p.m., near Christian Cemetery compound wall near Hosur road within the limits of Ashoknagar police station when accused No.1 to 5 being equipped with club, knife, hockey stick and chilly power packet were making preparation to rob money and valuables form the persons walking on the said road, on credible information about the same, CW-1 along with his staff CW-4 to 9 conducted raid in the presence of CW-2 and 3 and at the time of raid accused No.5 escaped from the spot and they apprehended the accused no.1 to 4 and seized the incriminating articles and on return to police station along with accused No.1 to 4, CW-1 got registered F.I.R. against 9 SC. No.831 /2015 accused No.1 to 4 for the offence punishable under Section 399 and 402 of IPC.
9. That out of nine witnesses cited in the charge sheet, the prosecution has got examined only three witnesses i.e., CW-4, 5 and 3 as PWs. 1 to 3 respectively.
10. It is very pertinent to note that in this case the curtail and material witness for the prosecution namely CW-1 who alleged to have conducted raid apprehended the accused No.1 to 4, seized the incriminating article and alleged to have submitted the report/complaint to CW-9 has not been examined. Even the complaint/report alleged to have submitted by CW-1 to CW-9 has not been marked as exhibit on behalf of the prosecution. The CW-2 one of the witness to Ex.P.1 recovery mahazar has not been examined. PW-3 one of the alleged witness to Ex.P.1 mahazar completely turned hostile. He categorically denied the alleged preparation by the accused No.1 to 5 for committing 10 SC. No.831 /2015 dacoity and he also denied the seizer of MOs. 1 to 4 by CW-1 and his staff in his presence by drawing Ex.P.1 mahazar. According to PW-1 and 2, Ex.P.1 mahazar was drawn in their presence. But in it is very pertinent to note that their signatures are not found in Ex.P.1 mahazar and signature of CW-2 to 9 are not found in the chit affixed to MOs.1 to 4. I have cautiously examined the evidence of PW-1 and 2. There are material contradictions and inconsistency in their evidence.
10. It is settled law that for sustaining conviction under Section 399 and 402 of IPC, the evidence of prosecution should be of an unimpeachable character. The report/complaint itself is not got marked by the prosecution and as the CW-1 who lodged the report has not been examined the lodging of report/complaint itself not established by the prosecution and since PW-3 one of the witness to the raid and recovery mahazar turned hostile and as CW-2 another independent witness to the 11 SC. No.831 /2015 alleged recovery has not been examined the allege recovery itself has not been proved by the prosecution. Since the evidence of PW-1 and 2 are not corroborated by independent witnesses their evidence does not inspire confidence.
11. At this juncture, it is relevant to quote two precedents mentioned here below in respect of sections 399 and 402 of IPC.
In Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, the Hon'ble Apex Court has held that:
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality. Decision of Patna High Court, Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises, which was quite close to the market at 1. a.m., and that some of them were armed with guns, some had cartridges and others ran away - held that, conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m., did not by itself prove that they had assembled making preparations to 12 SC. No.831 /2015 accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated Decision of Patna High Court, Reversed".
12. That the Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
Criminal Procedure Code, 1973 - Section 374(2) - Appeal against Judgment of conviction and order of sentence - Re- appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery - The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, The credibility of the investigation is doubtful as Pw.3 having registered the crime, has himself investigated the case.
Further held, In view of the material contradictions in the evidence of Pws.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt.13 SC. No.831 /2015
13. Thus it is clear from the above precedents that to sustain conviction under section 399, 402 of I.P.C, the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that persons assembled conceived any such designs for commission of dacoity and in fact they intended to achieve the object for which they had assembled. But in this case, there is no reliable and credible evidence to show that accused No.11 and other accused were making preparation to commit dacoity. In view of the fact and circumstances of the case and precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused No.1 to 4 beyond all reasonable doubt and as such accused No.1 to 4 are 14 SC. No.831 /2015 entitled for benefit of doubt. Hence, point No.1 is answered in the Negative.
14. POINT NO.2: - In view of the reasons discussed as above the following:-
ORDER Acting u/s 235 (1) of Cr.P.C, accused No.1 -Ramakrishna, accused No.2
- Tousif, accused No.3 - Pavan and accused No.4 - Syed Irfan are hereby acquitted in respect of the Offences punishable under sections 399, 402 of Indian Penal Code.
The bail bond and surety bond of accused No.1 to 4 are hereby cancelled.
The articles i.e., M.Os.1 to 4 shall be preserved for trial of split-up accused No.5.15 SC. No.831 /2015
The office is hereby directed to take personal bond for Rs.50,000/- each and a surety for the like sum from accused No.1 to 4 as required under Section 437 A of Cr.P.C.
(Dictated to the Stenographer, transcribed and computerized by her, corrected and then pronounced by me in the open court this the 13th day of January, 2017) (Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge, B'lore.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution side:-
PW.1 D.Prakash
PW.2 H.J.Gavigowda
PW.3 Ibrahim Shariff
16 SC. No.831 /2015
II. For Defence Side:
-NIL-
III. List of exhibits marked on behalf of the Prosecution Side:-
Ex.P.1 Mahazar
Ex.P.1(a) Signature of Pw.3
Ex.P.2 Witness statement
IV. For Defence Side:-
-NIL-
V. List of material objects:
M.O.1 One club
M.O.2 One hockey stick
M.O.3 One knife
M.O.4 One chilly powder sachet
(Parameshwara Prasanna.B)
LXII Addl. City Civil &
Sessions Judge, B'lore.
17 SC. No.831 /2015