Bangalore District Court
The State Of Karnataka vs A2. Syamual @ Syam S/O Wilson on 29 October, 2015
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
:Present :
Sri Kotrayya M. Hiremath, B.Sc., LL.B.(Spl).
LV Addl. City Civil & Sessions Judge,
Bangalore.
: S.C.No.499/2014 :
DATED: THIS THE 29Th DAY OF OCTOBER 2015
Complainant : The State of Karnataka,
Through the Police Sub-Inspector,
Banasawadi Police Station,
Bangalore.
(By: The Public Prosecutor)
--V/S--
Accused : A2. Syamual @ Syam s/o Wilson,
Age: 20 years, r/at No.174,
12th Cross, Janakirama Layout,
Bangalore.
A5. Raja @ Rajesh s/o Nataraj,
Age: 22 years, r/at No.501,
4th Block, near Don Bosco Church,
Janakirama Layout, Bangalore.
(By Smt. Jayashree, Advocate for A2,
Sri. K.H. Anjinappa, Advocate for A5)
JUDGMENT
1. Date of commission of 25-1-2013
Offence
2. Date of report of 25-1-2013
Occurrence
3. Date of commencement of 17-1-2015
evidence
4. Date of closing of 14-10-2015
Evidence
2 S.C. No. 499/2014
5. Name of the complainant Sri G. Gurulingappa, PSI,
Banasawadi police station,
Bengaluru
6. Offence complained of u/secs. 399 & 402 of IPC
7. Date of arrest A2 - On 25-1-2013
A5 - On 25-1-2013
8. Date of release A2 - he is still in J.C
A5 - On 3-1-2015
9. Opinion of the Judge Offences not proved
10. Duration: (from date of 2 year, 9 months and 4 days
commission of offence)
11. Order of sentence Accused Nos. 2 and 5 are
acquitted
In this case the Police Inspector of Banasawadi Police station, Bangalore, has filed the charge sheet against accused Nos.1 to 6 alleging that they have committed the offence of "making preparation to commit dacoity" and "assembling for purpose of committing dacoity" punishable u/secs. 399 & 402 of IPC.
2. The brief facts of the case of prosecution as per charge sheet are as under:-
2(a) The incident took place on 25-1-2013 at about 11-35 night, in the 1st Block at H.R.B.R Layout, within the limits of Banasawadi Police Station at Bangalore. The complainant-PSI received a credible information about the incident. Immediately the complainant and his staff along with panchas went to the 3 S.C. No. 499/2014 said spot, they noticed the presence of accused persons armed with deadly weapons like iron rod, clubs and chilly power packets ...etc., and they got it confirmed that the accused have the intention to commit dacoity in the above mentioned place. They raided the spot, surrounded the accused and were able to catch hold of accused Nos.1 to 5. Then, in presence of pancha witnesses, the complainant-PSI seized the above mentioned weapons from accused Nos.1 to 5. The remaining accused No.6 ran-away and escaped. The CW1-complainant lodged the complaint. Then after completion of investigation the present charge sheet is filed only against A1 to 5 for the offence u/secs. 399 and 402 of IPC in which the accused No. 6 is shown as absconding. It is also submitted that a separate charge sheet will be filed against A6 after their arrest.
3. On receipt of charge sheet, the learned XI ACMM, Bangalore City has taken cognizance of the offence against accused Nos.1 to 5 as per the charge sheet, split up the case against accused No. 1 and after complying with sec. 207 of Cr.P.C. he has committed the case u/sec. 209 of Cr.P.C. against the accused Nos. 2 to 5 for trial.
4. After committal of the case, the A3 and A4 did not appear before this court. the case against A3 and A4 is split- 4 S.C. No. 499/2014 up by this court and this case is continued only against A2 and A5. This is a sessions trial case. Both the parties are, therefore, heard by this court u/sec. 227 of Cr.P.C before framing the charge. It was found that there are sufficient grounds for presuming that the accused have committed the alleged offense. Therefore, the charge has been framed u/sec. 228 of Cr.P.C for the offences punishable u/secs. 399 & 402 of IPC against accused Nos.2 and 5. It was read over and explained to the accused persons. They have pleaded not guilty and have claimed to be tried. Accordingly the case is tried by this court.
4(a). The prosecution, in order to prove its case, has adduced the oral evidence of two witnesses as PWs. 1 and 2.
4(b). The statement of accused Nos.2 and 5 u/sec. 313 of Cr.P.C is recorded. The accused have denied the truth of all the incriminating evidence produced against them. At the same time they have not chosen to lead any defence evidence on their side. Therefore, there is no recording of defence side oral evidence u/sec. 233 of Cr.P.C.
5. I have heard the arguments of both sides.
6. Now the following points will arise for my consideration and determination:
5 S.C. No. 499/2014
1. Whether the prosecution proves beyond all reasonable doubts that, on 25-1-2013 at about 11-35 night, in the 1st Block at H.R.B.R Layout, within the limits of Banasawadi Police Station at Bangalore the accused Nos. 2 and 5 along with other accused persons made preparation to commit dacoity by possessing deadly weapons like iron rod, clubs and chilly power packets ...etc., and thereby committed an offence punishable u/sec. 399 of IPC ?
2. Whether the prosecution proves beyond all reasonable doubts that on the aforesaid date, time and place, the accused Nos. 2 and 5 along with other accused persons were one of the five or more persons who had assembled for the purpose of committing dacoity and thereby committed an offence punishable u/sec. 402 of IPC?
3) What order?
7. My answers to the above 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 :
REASONS
Point Nos.1 & 2:-
8. There are totally eleven witnesses named in the charge sheet as CWs 1 to 11. Among them the prosecution has examined the CWs. 5 and 9 as PWs. 1 and 2 respectively. Therefore, the prosecution is now depending upon the oral evidence of PWs. 1 and 2 to prove its case.
6 S.C. No. 499/2014
9. As already noticed above, the case of prosecution is that on 25-1-2013 at about 11-35 night, the complainant- PSI received a credible information about the incident of this case, immediately the complainant and his staff along with panchas went to the said spot situated in the 1st Block at H.R.B.R Layout, within the limits of Banasawadi Police Station at Bangalore, they noticed the presence of accused persons armed with deadly weapons like iron rod, clubs and chilly power packets ...etc., they raided the spot, surrounded the accused and caught hold of accused Nos.1 to 5. Then, in presence of pancha witnesses, the complainant-PSI seized the above mentioned weapons from accused Nos.1 to 5.
10. The CW5 Chaluvaraj, police constable, who is examined as PW1, has stated that on 25-1-2013 he was on patrolling duty with CW1 PSI at Kammanahalli main road, the CW1 received credible information about the incident of this case, the PW1 himself, the CW1 along with other police staff and panch witnesses went near Sri Yellammadevi temple in 1st block at HRBR Layout, about 5 to 6 accused persons, armed with deadly weapons, were present at the spot, the PW2 himself and CW1 and other police together raided the spot, caught hold of 5 accused persons, one person ran-away and 7 S.C. No. 499/2014 escaped and the weapons were seized from 5 accused persons under a seizure mahazar. This PW1 has also stated that they brought the accused persons along with the weapons seized to the police station at 1:40 night. He has identified two accused persons who were present before the court and has stated that he can identify the weapons also. But the prosecution has not produced any of the weapons or the material objects said to have been seized at the spot. Also during the cross- examination by the other side advocate, this PW1 has admitted that he does not know about the panch witnesses and that he does not know whether any notices were given to the panch witnesses to act as panchas.
11. The CW9 Laxmipathi, head constable, who is examined as PW2, has stated that on 25-1-2013 at about 11:35 night he was on duty with CW10 in a Hoysala police vehicle near Sathya hospital, the CW10 received a phone call from CW1 PSI stating that they should come near Om Shakthi temple at 80 feet road, both of them went to the said place, the CW1 secured two panch witnesses, later all of them together went near the Sub-Registrar's office, they noticed the presence of 5-6 accused persons armed with deadly weapons like club, rod etc and they raided the spot and caught hold of 5 8 S.C. No. 499/2014 accused persons. This PW2 has stated that he tried to catch hold of one person viz., Salman and that he ran-away and escaped. He has further stated that the CW1 conducted a mahazar and seized the weapons from 5 accused persons and that at 1:30 night they brought all the accused persons with their weapons to the police station. This PW2 has identified two accused persons, who were present before the court. He has stated that he can identify the weapons seized from accused persons. But as already noticed above, the prosecution has not produced any of the weapons or the material objects said to have been seized at the spot. It is important to note that the oral evidence of this PW2 is incomplete. His examination in chief itself is not complete. He has not faced the cross-examination by the other side advocate. Sufficient time and opportunity was given to the prosecution to secure the presence of this PW2 for further examination. Inspite of it this PW2 has not come forward to complete his oral evidence. Therefore, the incomplete evidence of this PW2 cannot be treated as the oral evidence at all.
12. The prosecution has failed to examine the CW1 complainant, the CWs 2 and 3 panch witnesses and the CW11 police inspector. Sufficient time and opportunity was given to 9 S.C. No. 499/2014 the prosecution to secure their presence. Inspite of it, these CWs 1, 2, 3 and 11 have not come to the court for giving their evidence. The prosecution has therefore failed to prove the seizure mahazar said to have been conducted at the spot in presence of CWs 2 and 3 panch witnesses. Therefore, the prosecution has failed to prove the seizure of weapons from accused Nos. 1 to 5. The case of prosecution is that the CW1 police officer and other police went to the spot, raided the spot, caught-hold of accused Nos. 1 to 5 and seized weapons from accused persons in presence of the CWs 2 and 3 panch witnesses. These CWs 2 and 3 are the only independent eye- witnesses to the incident. As already noticed above, the prosecution has failed to examine these CWs 2 and 3 independent panch witnesses. The above mentioned PWs 1 and 2 both are the police officials. The evidence of these PWs 1 and 2 is not supported by any of the independent witnesses. Under these circumstances, this court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubts against the accused persons. The benefit of doubt goes to the accused persons. Therefore, the accused Nos. 2 and 5 are entitled for acquittal. Hence, the point Nos. 1 and 2 are answered in the negative.
10 S.C. No. 499/2014Point No.3:
13. In view of the findings already given on point Nos. 1 and 2 above, I proceed to pass the following:
ORDER The accused Nos. 2 and 5 are acquitted u/sec. 235(1) of Cr.P.C for the alleged commission of offence punishable u/secs. 399 & 402 of IPC and they are set at liberty.
2) The bail bond executed by accused No. 5 and his surety bond stand cancelled.
3) The A2 Syamual @ Syam is in J.C. The jail authority is directed to release A2 forthwith if he is not required to be detained for any other case. Issue intimation to the jail authority accordingly.
4) The properties reported in P.F. No. 25/2013 and mentioned in Col. No. 5 of the charge sheet shall be retained till disposal of the case against A1, A3 and A4.
[Directly, dictated to the Judgment writer on computer, corrected and then pronounced by me in open court, dated this 29th day of October 2015.] (Kotrayya M. Hiremath) LV Addl. City Civil & Sessions Judge Bangalore.
11 S.C. No. 499/2014ANNEXURES List of Witnesses examined on behalf of Prosecution:
PW1 Chaluvaraju PW2 B.R. Laxmipathi
List of documents marked on behalf of the prosecution:
- NIL-
List of Material Objects Marked on behalf of the prosecution:
- NIL-
List of Witnesses Examined and documents marked on behalf of the defense:
-NIL-
(Kotrayya M. Hiremath) LV Addl. City Civil & Sessions Judge, Bangalore.12 S.C. No. 499/2014