Bangalore District Court
State By Cottonpet Police Station vs No: 2. Girish on 7 February, 2023
KABC010053922018
Presented on : 22-02-2018
Registered on : 22-02-2018
Decided on : 07-02-2023
Duration : 4 years, 11 months,
13 days
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 7 th day of February, 2023
-: P R E S E N T :-
Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
SESSIONS CASE NO.291/2018
COMPLAINANT:- State by Cottonpet Police Station,
Bengaluru.
-Vs-
ACCUSED NO: 2. Girish,
S/o Kodandarama,
Aged about 23 years,
No.46, 2nd cross, 1st Main,
Beli Math Road, Bhakshi, Cottonpet,
Bengaluru.
2
S.C.No.291/2018
(Case against A.1, 3, 4 and 5 Split-up)
TABULATION OF EVENTS
1. Occurence of the offence & time: 14.10.2017, 3.45 a.m.
2. Report of the offence & time: 14.10.2017, 06.30 a.m.
3. Date of arrest of the Accused : A.2 on 14.10.2017
4. Date of release of accused : On 28.10.2017
5. Name of the complainant : Sri. Nijalingappa
6. Date of commencement of trial : 30.01.2020
7. Date of closure of trial : 21.03.2022
8. Offences complained of : Sec.399 & 402
of I.P.C.,
9. Opinion of the Judge : Accused No.2
not found guilty
10. State represented by : Learned
Public Prosecutor
11. Accused defended by : Sri.A.Thejaraju, Advocate
3
S.C.No.291/2018
JUDGMENT
The Police Sub-Inspector of Cottonpet police station, Bengaluru has filed charge sheet against accused No.1 to 5 for offences punishable U/s.399 and 402 of the Indian Penal Code, in Cr.No.223/2017.
2. Case of the prosecution in brief is as under;
On 14.10.2017 at about 3.30 a.m., Cw.2- Nijalingappa PSI Cottonpet police station received credible information regarding unlawful assembly of the persons armed with deadly weapons with preparation to commit robbery/dacoity near Veterinary Hospital compound within the jurisdiction of Cottonpet police station, Bengaluru. Immediately, he secured two independent panch witnesses and intimated them regarding an unlawful activities of the persons and along with police officials, Cw.4 to Cw.8 went near the place 4 S.C.No.291/2018 and after confirming the credibility of the information, conducted raid and apprehended the 4 persons, other one person accompanying them ran away from the spot. Cw.1-conducted the mahazar at the spot in the presence of panchs Cw.3- Muniyappa and Cw.4-Srinivas and seized the weapons and lodged the complaint and produced the accused persons along with seized weapons before the Investigating Officer. On the basis of the complaint, case against accused No.1 to 5 was registered in Cr.No.223/2017 for the offences punishable U/s. 399 and 402 of I.P.C.
3. In the course of investigation, Investigating Officer recorded voluntary statements of accused persons and thereafter, accused No.1 to 5 were produced before Learned Magistrate, and remanded to Judicial Custody. Investigating Officer has also recorded statements of 5 S.C.No.291/2018 other police officials, who accompanied complainant, while conducting raid. After completion of investigation, charge sheet is submitted for trial of offences punishable U/s.399 and 402 of I.P.C. against accused No.1 to 5.
4. Cognizance for the offences shown in the charge sheet was taken against the accused persons by the Learned Magistrate. Thereafter, criminal case against accused persons was registered in C.C.No.27721/2017 on the file of XLV-Addl.Metropolitan Magistrate, Bengaluru. Since offences alleged against accused No.1 to 5 are exclusively triable by the court of Sessions, this case was committed to this court.
5. After committal, the case is registered as S.C.No.291/2018. In pursuance of the summons, the accused persons appeared and obtained regular bail. Prosecution opened the case as required U/s.226 of 6 S.C.No.291/2018 Cr.P.C. Heard learned counsel for the accused persons. No grounds made out to discharge the accused persons. Hence, charge against accused No.1 to 5 was framed, read over and explained. They denied charges and claims trial.
6. During the course of trial, despite issuance of N.B.W., accused No.1, 3, 4, 5 were not traced out. Hence, case against accused No.1, 3, 4, 5 was split up and separate cases ordered to be registered.
7. To prove the ingredients of the offences leveled against the accused No.2, prosecution examined 6 witnesses as Pw.1 to Pw.6 out of 9 witnesses cited in the charge sheet and got exhibited 6 documents at Ex.P.1 to Ex.P.6 and got identified material objects from Mo.1 to
5. Prosecution failed to secure the witnesses. Hence, 7 S.C.No.291/2018 Cw.6, 7, 9 are dropped and prosecution side evidence is closed.
8. After conclusion of prosecution evidence, statements of accused No.2 U/s.313 of Code of Criminal Procedure were recorded. Accused No.2 has denied all the incriminating material evidence appearing against him, but did not choose to lead defence evidence.
9. Heard arguments on both sides and perused the materials on record.
10. The points that arise for my determination are:
1. Whether prosecution proves beyond reasonable doubt that, on 14.10.2017 at 3.30 a.m., near Veterinary Hospital compound, Cottonpet, Bengaluru city within the jurisdiction of Cottonpet police station, Bengaluru accused No.2 along with other accused persons was making 8 S.C.No.291/2018 preparation to commit dacoity by possessing deadly weapons like iron knives, wooden clubs and chilli powder packet and thereby committed an offence punishable under Sec.399 of the Indian Penal Code?
2. Whether prosecution proves beyond any reasonable doubt that on the same date, time and place, accused No.2 along with other accused persons assembled for the purpose of committing dacoity and thereby committed an offence punishable under Sec.402 of Indian Penal Code?
3. What Order ?
11. It is answered for the aforesaid points are as under:-
Point No.1: In the Negative Point No.2: In the Negative Point No.3: As per final order for the following:9
S.C.No.291/2018 REASONS
12. POINTS NO.1 & 2:-These two points are interrelated, hence they are taken together for common discussion in order to avoid repetition of facts and evidence.
It is the case of the prosecution that, accused No.2 along with other accused persons with possession of deadly weapons, were assembled near Veterinary Hospital compound, Cottenpet, Bengaluru city and making preparation to commit dacoity. Investigating Officer received credible information and reached spot along with police personnel and panch witnesses and after confirmation of the information, conducted raid and apprehended accused No.1 to 4 and seized deadly 10 S.C.No.291/2018 weapons from their custody. One person ran away from the spot of incident.
13. In order to bring home the guilt of the accused person, prosecution placed oral testimony of witnesses and documentary evidence along with material objects. Among the witnesses examined by prosecution, Pw.1 is the complainant police officer, Pw.3 and Pw.4 are the police officials, who assisted the complainant to conduct raid. Pw.2 and Pw.5 are panch witnesses and Pw.6 is the Investigating officer.
14. Cw.2-Nijalingappa P.S.I. of Cottonpet police station, Bengaluru is examined as Pw.1. This witness deposed that, on 13.10.2017, when he was on night patrolling duty along with staff A.S.I. Ramesh, HC- Srinivas, Seena, police constable -Bhootharaya, the 11 S.C.No.291/2018 informant given credible information of assembly of 5 members near Veterinary Hospital Compound at 1.30 a.m., and there is suspicion that, they might have making preparation to commit the criminal offences. At about 3.30 a.m., this witness secured the Cw.3- Muniyappa and Cw.4-Srinivas and intimated about the credible information and requested to co-operate for conducting raid panchnama. Thereafter, along with the police personnels reached the spot at 4.00 a.m., and surrounded the accused persons and arrested 4 persons and one person ran away from the spot. On enquiry, they revealed their names and name of the absconded accused is Kumaresh. On due search, they have recovered one two iron knives, two chilli powder packets, and wooden clubs. They have conducted the Ex.P.1-raid panchnama and filed Ex.P.2-report/complaint. This 12 S.C.No.291/2018 witness identified the accused No.2 and 3 present before the court and accused No.1 appeared through V.C. and materials objects present before the court.
15. In the course of cross-examination, it has been elicited that, they have received the information at 1.30 a.m., but reached the spot at 3.30 a.m. and Ex.P.1-raid panchnama and Ex.P.2-Report/complaint do not reflect the reason for the delay. The veterinary hospital is situated in Mysore road and next to said hospital, there exists CCB Office and police are in duty there. The material objects like Mo.1 to 4 are available in the market. It was suggested that, Ex.P.1-raid panchnama is got up document to produce in this case, by obtaining signature of the panchs at the police station. It was also suggested that, the accused persons were secured from different places and enquired them for 2- 3 days in order 13 S.C.No.291/2018 to extract information in respect of other criminal cases and filed this false case.
16. Police officials Cw.8-Muniraju A.S.I. was examined as Pw.3, Cw.5-Ramesh A.S.I. examined as Pw.4. They have deposed in consonance with the evidence of Pw.1 by deposing that, as per the directions of the P.S.I.-Pw.1-Nijalingappa, they have accompanied their officer to the place of incident, and after confirmation of the preparation of the accused persons to commit criminal offences like robbery and assault, they have caught hold them and seized the deadly weapons possessed by them and Pw.1 conducted Ex.P1-raid panchnama and lodged Ex.P.2-Report/complaint. The cross-examination is total denial. Both these witnesses admitted that, the objects similar to Mo.1 to 5 are available in the open market.
14
S.C.No.291/2018
17. The independent panch witnesses Cw.4- Srinivas and Cw.3-Muniyappa were examined as Pw.2 and Pw.5 respectively. Pw.2 has not admitted conducting of Ex.P.1-raid panchnama in his presence and also denied signature present therein. Whereas, Pw.5 identified his signatures in Ex.P.1- raid panchnama and asserts that, he has affixed the signature as per Ex.P.1(c) as directed by Cottonpet police and not aware of the contents of the said document. The prosecution has treated these two witnesses as hostile and subjected them to the cross-examination by narrating the incident. These two witnesses unequivocally denied the conducting of Ex.P.1-raid panchnama in their presence and expressed their ignorance of arrest and seizure of materials objects at Mo.1 to Mo.5 in their presence. They 15 S.C.No.291/2018 have also denied having given statement to the police as per Ex.P.3 and Ex.P.4 respectively.
18. Cw.1-Murthy, P.S.I. was examined as Pw.6. This witness is investigating officer and asserts in his evidence that, on 14.10.2017 at 6.30 a.m., he received Ex.P.2-report of the Pw.1 along with accused persons, material objects and Ex.P.1-raid panchnama. In pursuance of the complaint, he registered Cr.No.223/2017 U/s.399 and 402 of I.P.C. and lodged Ex.P.5-F.I.R. Included the material objects in Ex.P.6- Property Form Memo and reported the court. This witness further states that, he conducted the arrest procedure. Thereafter, he has recorded the voluntary statements of the accused persons and produced them before the competent court also recorded the statements of panch witnesses, police officials, who have assisted 16 S.C.No.291/2018 Pw.1 for raid. After conclusion of the investigation, being of the opinion that, there exists prima facie materials against the accused persons, filed charge sheet. Cross- examination of this witness is total denial. It has been elicited that, he has not visited the spot before filing of charge sheet.
19. Relying on the evidence placed on record, Learned Public Prosecutor vehemently argued that, the prosecution has proved the guilt of the accused No.2 punishable U/s.399 and 402 of I.P.C., beyond all reasonable doubt through the evidence of official witnesses. There is no rule to disbelieve the testimony of the police officials. The accused person has committed the heinous offences punishable under the Penal Code. It is a fit case for conviction with maximum punishment. 17
S.C.No.291/2018
20. On the other hand, learned counsel for the accused person vehemently argued that, all the witnesses examined before the court are the police officials and interested witnesses. The independent witnesses to the raid panchnama have not supported the prosecution case. The evidence of the police officials suffers from inconsistencies and discrepancy in respect of date of offence, time of receivable of information by Pw.1 and presence of Pw.3- Muniraju at the spot. It is highly improbable to believe that, the accused No.2 along with other accused persons has committed the alleged offences at the place of incident, in the absence of any complaint by victims or passersby. This creates doubt about the prosecution case that, it is filed for statistical purpose. The learned counsel submit that, the benefit of 18 S.C.No.291/2018 doubt may kindly be extended to the accused No.2 and acquit them for the alleged offences.
21. In the light of the rival submissions, I have gone through the versions of the prosecution witnesses. Though Pw.1, Pw.3, Pw.4 and Pw.6 have stated that, on that day, accused assembled at the spot and were making preparation to commit dacoity by holding deadly weapons, but to corroborate their versions, no other oral evidence of independent panch witnesses is placed on record. As per case of prosecution, Cw.3 and Cw.4 are panch witnesses for seizure mahazar marked at Ex.P.1. But to prove the contents of Ex.P.1 also, the supportive oral evidence is availabel on record.
22. In the absence of testimony of independent private witnesses, the evidence of police officials Pw.1, 19 S.C.No.291/2018 Pw.3, Pw.4 and Pw.6 remains for consideration of court. Their evidence is stereo type. No doubt, the evidence of official witness i.e., police officers shall not be disbelieved as a rule, however prudence insists corroboration and careful scrutiny. As per prosecution case, Pw.1 has conducted raid around 3.30 a.m. at Veterinary Hospital Compound, Bengaluru. Admittedly, CCB office is situated next to Veterinary hospital and there is police security to that office. Such being the case, what prevented the Pw.1 to take statements and signatures of CCB police officials and independent eye witnesses to the alleged raid and seizure of deadly weapons from the possession of the accused No.2, is not properly explained. Further, Pw.1 and Pw.3 state that, date of incident is 13.10.2017, whereas Pw.4 says that, date of incident is 14.10.2017. So also, Pw.1 states that, at 1.30 a.m., he received the 20 S.C.No.291/2018 information of the alleged unlawful acts of the accused persons. Whereas, Pw.3 and Pw.4 says that, their P.S.I., received information from the informants at 3.30 a.m. Further, Pw.1 has not stated about the presence of Pw.3- Muniraju, Head Constable at the time of conducting of the raid. Above all, during the course of investigation, Investigating Officer has not chosen to visit the spot. He has not mentioned the time and details of seizure of material objects in the Ex.P.6-Property Form. These discrepancies throws shadow on the prosecution case. It is pertinent to note that, Pw.1, Pw.3, Pw.4 and Pw.6 are most interested witnesses. Particularly considering the nature of the offences and the fact that, complaint has been registered by Pw.1, it appears that, just for the sake of statistical purpose, registered one case against 21 S.C.No.291/2018 accused persons. Uncorroborated testimony of police witnesses is unsafe to believe.
23. Even a step ahead, no hard cash is recovered from the possession of any of accused person. Merely because some incriminating articles were seized from the possession of accused person, by itself is not conclusive proof of main ingredients of the offences punishable U/s.399 and 402 of I.P.C. Defence of accused is total denial of the prosecution case. Mere apprehension of accused No.2 is also not enough to record conviction.
24 To fortify this conclusion, it is relevant to refer the decision reported in 2006 Crl.L.J. 1775 in case of Ram Kishan Vs/.State of U.P., wherein it is held as under:
22
S.C.No.291/2018 "Penal Code (45 of 1869), Ss.399, 402 - Preparation to commit dacoity - Arrest of accused persons along with arms and ammunition - No public witness summoned to witness incident - Neither signature of accused were obtained - neither signatures of accused were obtained on seizure memo nor copy therefore was furnished to any of accused - Out of six dacoits, three were armed with country made pistols and were having ten live cartridges also - However, none of them had loaded their pistols - Is also could not be believed that accused dacoits who had assembled at culvert were talking so loudly that their voice was heard by police party in odd hours of night - Police party did not recover a single penny from possession of any of accused - Non recovery of coins or currency notes from pockets of accused makes prosecution story doubtful
- Accused held entitled to be acquitted."
If the principle laid down in the above decision is applied to the case on hand, it is difficult to believe that, police officials over heard the plan of the accused persons from considerable distance. Complainant has not summoned local public witness to act as 23 S.C.No.291/2018 panchayathdars. Signatures of accused No.2 and others were not obtained to the seizure or raid panchnama.
Hence, this court has no hesitation to arrive at conclusion that, prosecution failed to prove the main ingredients of the offences punishable U/s. 399 and 402 of I.P.C.
25. The Hon'ble Supreme Court of India in a case of Suleman V/s.State Delhi through Secretary wherein the offences U/s.399 and 402 of I.P.C., is involved, pleased to observe that, it was doubtful that, accused would be speaking so loud about dacoity plan that, the police personnel standing out side the room could hear it.
26. In a similar case, Hon'ble Punjab and Haryana court, in the case of Bagga @ Bangu 24 S.C.No.291/2018 V/s.State of Haryana in the year 2011, observed that, it is improbable that, after secrete information was received till police party reached at the spot, the accused were continuing to repeat their plan. It is also very improbable that, at the very neck of the movement when the police party reached at the spot, the accused started their conversation. The same view was expressed expressed by the Hon'ble High Courts in Piru and others V/s.State of Haryana in the year 2015.
27. Regarding recovery weapons from the accused the Hon'ble Supreme Court of India in Chathuri Yadhav and others V/s. State of Bihar way back in the year 1979, observed that, the mere fact that, the accused were found at 1.00 a.m., with some of them armed with guns did not prove that, they have assembled 25 S.C.No.291/2018 for the purpose of committing dacoity or for making preparation to accomplish that object.
28. Similar view is taken by the Delhi High Court in a case of Desuraj @ Dass V/s.State in 2000 and Punjab and Haryana High Court in Mahaveer V/s. State of Haryana in the year 2010 for mere assemblage and recovery of fire arms did not prove charge U/s.399 and 402 of I.P.C. Devision Bench of Honb'le Apex court in a case of Jasveer Singh Aka Jawari Aka Jabbarsingh V/s.State of Haryana observed that "It is not natural that, 6 accused persons and four of whom were armed with deadly weapons, neither offered any resistance nor caused any injury to any of the police personnel before or after apprehension by the police. The ratio laid down the aforesaid decision is aptly applicable to the case on hand. 26
S.C.No.291/2018
29. Further, it is profitable to refer the decisions of Hon'ble High Court of Karnataka on this point. In the judgment passed in Crl.A.No.3767/2010 in a case of Gaddeppa V/s. State of Karnataka, it is held that, to prove the offence of preparation for committing dacoity, nothing elicited as to for what purpose accused persons gathered there. Whether there was any attempt done by them in order to commit dacoity. Not shown that they had actually stopped any vehicle and any owner or the driver of the vehicle complained that, they had made any attempt to commit dacoity. Mere recovery of some articles and also non-explanation of the accused as to why they had gathered in that particular place is not sufficient to fill up the gap on the side of the prosecution to prove that accused were actually gathered there for the purpose of committing dacoity. Except presence of the accused 27 S.C.No.291/2018 person at the spot, recovery of some articles and voluntary statements of the accused, no other material to show that, they were gathered there for the purpose of committing dacoity. Mere suspicion or imagination by the police officer bereft of any other material is not sufficient to draw a conclusive inference that, accused No.2 along with other accused persons gathered there for the purpose of committing dacoity. Prosecution failed to prove the guilt of accused.
30. In the judgment passed in Crl.Appeal No.2088/2017 C/w. Crl.Appeal No.2066 to 2068 of 2017 Hon'ble High Court of Karnataka has held that circumstances brought out in the evidence of prosecution witnesses completely demolish the case of the prosecution. Evidence adduced by the prosecution does not establish the ingredients of the offences punishable 28 S.C.No.291/2018 U/s.399 and 402 of I.P.C. There is no clear and convincing evidence to show that weapons produced before the court were seized from the possession of the accused.
31. Law laid down by the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India is aptly applicable to the facts and circumstances of the case on hand. Admittedly, complainant or other police officials assisted her to conduct the raid have not enquired any general public regarding attempt of the accused persons to commit dacoity. So also, no such complaint is lodged against the accused persons. In the light of the principles laid down in the aforesaid decisions, mere assemblage of accused persons with deadly weapons does not establish the ingredients of Section 399 and 402 of Indian Penal Code. More over, the recovery of deadly 29 S.C.No.291/2018 weapons Mo.1 to Mo.5 is not proved through supportive evidence of independent panch witnesses.
32. To sum up, from the discussion in the forgoing paras, this court is of the opinion that, prosecution failed to prove beyond any reasonable doubt that, Pw.1- Nijalingappa has received the credible information of the assemblage of accused No.2 along with other accused persons by possessing deadly weapons and making preparation to commit robbery of valuable things and the money from the general public. On the basis of the credible information received, Pw.1 along with police personnels conducted raid and apprehended accused No.1 to 4 and seized deadly weapons under the Ex.P.1- raid panchanama conducted in the presence of panch witnesses Cw.3-Muniyappa and Cw.4-Srinivas. There are no complaints alleging attempt to commit robbery or 30 S.C.No.291/2018 dacoity made by the accused person on the date of incident. Absence of any corroborative complaint against accused person by any of the victims, absence of any electronic evidence to substantiate the fact of seizure of deadly weapons from the possession of the accused person as alleged by the prosecution, this court is of the opinion that, the evidence on record is insufficient to bring home the guilt of the accused No.2 punishable U/s.399 and 402 of Indian Penal Code. Hence, points No.1 and 2 under consideration are answered in the Negative.
33. POINT NO.3: In view of the above findings on points No.1 and 2, accused No.2 is entitled for acquittal. Hence, this court proceed to pass the following; 31
S.C.No.291/2018 ORDER Accused No.2 is acquitted U/s.235(1) of Code of Criminal Procedure for the offences punishable U/s.399, 402 of I.P.C.
His bail bonds and surety bonds stand cancelled.
Bail bonds and surety bonds executed by accused No.2 and his sureties U/s.437- A of Cr.P.C., shall be in force for a period of six months from this day.
Mo.1 to 5 are ordered to be preserved till conclusion of split-up case pending against accused 1, 3, 4 and 5.
32
S.C.No.291/2018 Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 7th day of February 2023.) (KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
33
S.C.No.291/2018 A N N EXU RE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Nijalingappa Pw.2 Srinivasa Pw.3 Muniraju Pw.4 Ramesh Pw.5 Muniyappa Pw.6 Murthy II. For Defence:- -Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Panchnama
Ex.P.1(a) Signature of Pw.1
Ex.P.1(b) Signature of Pw.2
Ex.P.1(c) Signature of Pw.5
Ex.P.2 Report
Ex.P.2(a) Signature of Pw.1
Ex.P.3 Portion of Statement of Pw.2
Ex.P.4 Portion of Statement of Pw.5
Ex.P.5 FIR
Ex.P.5(a) Signature of Pw.6
Ex.P.6 Property Form No.123/2017
Ex.P.6(a) Signature of Pw.6
34
S.C.No.291/2018
IV. For Defence side:-
-Nil-
V. List of material objects marked:-
Mo.1 & 2 Two Iron knives
Mo.3 Chilli powder packet
Mo.4 & 5 Two Wooden clubs
Mo.1(a) to 5(a) Signatures of Pw.1
Mo.1(b) to 5(b) Signatures of Pw.5
(KALPANA M.S.)
LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE, (CCH-65),
BENGALURU CITY.
35
S.C.No.291/2018
Judgment pronounced in the open
Court (Vide separate judgment)
ORDER
Accused No.2 is acquitted
U/s.235(1) of Code of Criminal
Procedure for the offences
punishable U/s.399, 402 of I.P.C.
His bail bonds and surety
bonds stand cancelled.
Bail bonds and surety bonds
executed by accused No.2 and his
sureties U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
36
S.C.No.291/2018
Case papers and Mo.1 to 5 are
ordered to be preserved till
conclusion of split-up case pending against accused 1,3,4 and 5.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.