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Has Deposed In His Chief Examination ... vs Then Only The Said Part Of Confessional ... on 8 December, 2021

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                                                        C.C.No.30007/2019
  IN THE COURT OF THE XXXVII ADDL.CHIEF METROPOLITAN
             MAGISTRATE, BANGALORE CITY.

               Dated this the 8th day of December, 2021.

              Present: Sri B.MOHAN BABU, B.A., L.L.B.,
                        XXXVII Addl. C.M.M., Bangalore.

                     C.C. No.30007/2017

              JUDGMENT UNDER SEC.355 OF CR.P.C.,
1. Complainant:               State by JJR Nagar P.S.

                              V/S

2. Accused:                   Aayaz Pasha,
                              S/o Akram Pasha,
                              Aged 22 years,
                              R/at No.44, 1st Cross,
                              3rd Main, Padarayanapura,
                              BANGALORE.

3.Date of offence:            07­10­2017.

4. Offences complained of:    U/s.457, 380 of IPC.

5. Plea:                      Accused pleaded not guilty.

6. Final Order:               Accused is Acquitted.

7. Date of Order:             08­12­2021.

                              *****
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                                                     C.C.No.30007/2019
     The Police­Sub­Inspector, JJR Nagar Police Station, Bangalore

has filed this charge sheet against the accused      for the offence

punishable U/s.457, 380 of IPC.

     2. The brief facts of the prosecution case is as follows:

     That on 07­10­2017 during night hours within the limits of JJR

Nagar P.S., the accused gained illegal entry into the office by name

B.K.Enterprises, No.2/3, 1st Cross and has committed theft of

Rs.1,35,000/­, one DVD and hard disc which was kept in the cash box

and thereby the accused person has committed the aforesaid offence.

     3. The accused was enlarged on bail. On receipt of charge sheet,

my predecessor in the office has took the cognizance of the alleged

offences and furnished copy of the prosecution papers to the accused

persons. Charge for the offence P/U/S.457,  of IPC., was framed

by my predecessor in office, read over and explained to the accused.

The accused pleaded not guilty and claimed to be tried.

     4. The prosecution, in order to prove its case has examined six

witnesses as PW­1 to 6 and got marked eight documents at Ex.P1 to

P8. As there were no any incriminating evidence appeared against the
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accused, the statement of accused as required U/s. 313 of Cr.P.C. is

dispensed with and the matter was posted for arguments.

     5. I have heard the arguments of learned Sr.APP., for the

prosecution and learned counsel for the accused. Perused the

materials available on record.

     6. On perusal of the evidence of prosecution, the PW­6 is the

complainant has deposed in his chief examination that, about 4 years

back about Rs.1,05,000/­ cash        and hard disc were stolen and

somebody committed theft from his office B.K.Enterprises, hence, he

went to the police station. He identified complaint as per Ex.P6 and

spot Panchanama as per Ex.P1 and identified his signature therein as

per Ex.P6(a) and Ex.P1(c), but he pleaded his ignorance about the

contents of Ex.P1 and 2. The PW­1 further deposed that after two

days, police summoned to him to the police station, the police have

shown him the cash Rs.35,000/­ and DVD and he identified the photo

containing cash as per Ex.P7 and 8.      He further deposed that he

cannot identify the accused and not given any statement before the

police. At the request of learned Sr.APP., PW­6 was treated hostile and

permission was accorded to cross examine him. The learned Sr.APP
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cross examined him, but even in the cross examination, nothing

worthy is elicited in favour of prosecution.

      7. The PW­1 and 2 are the witness to spot Panchanama and

PW­3 to 5 are the witness to seizer Panchanama, they deposed that,

when they had been to police station police took their signature to a

document, but police did not done any Panchanama in their presence,

they identified the spot Panchanama and seizer Panchanama as per

Ex.P1, P2 and P5 and their signature therein as per Ex.P1(a), P1(b)

and P2(a), P2(b) and P5(a). At the request of learned Sr.APP., PW­1

to 4 were treated hostile and permission was accorded to cross

examine them. The learned Sr.APP cross examined these witnesses,

but even in the cross examination, nothing worthy is elicited in favour

of prosecution.

      7. It is well settled principle of law that in order to held a person

guilty for a offence punishable under section 380 of IPC., the chain

link must be unbroken. The IO who interrogated the accused persons

during his interrogation, the accused has admitted to the commission

of crime and based on her statement the IO recovered stolen articles.

The confessional statement itself hit by the provisions of Section 25 of
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                                                       C.C.No.30007/2019
Indian evidence Act.    If the stolen articles are recovered from the

accused, then only the said part of confessional statement in respect of

recovery of stolen articles is admissible in evidence. I have carefully

perused the records, the case of the prosecution is that, the accused

has committed theft of laptop from the office of complainant. The

police have trace out the accused and amount , and DVR and

recovered from the accused under seizer Panchanama as per Ex.P2

and 5 in the presence of PW­3 to 5.    Thereafter the PW­6 was called

to police station to identify his laptop. Accordingly that on 10­10­

2017, the PW­6 has appeared before the police, he identified his

amount and DVR, at that time, the police have showed the accused

person to the PW­6 and said that he is the person who committed the

theft of his property. The police have recorded the statement of PW­6

as per Ex.P9. But the PW­1 in his examination in­chief, has turned

hostile to the case of prosecution and he has not identified the

accused before the court. During the course of cross examination, she

denied the suggestion made to him. Even the PW­3 to 5 who are the

witness to seizer Panchanama, turned hostile to the case of

prosecution. The prosecution fails to prove the seizer Panchanama in
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accordance with law. The learned Sr.APP sought to issue process

against all the remaining witnesses, but after going through testimony

of PW­1, I do not find any incriminating evidence against the accused

with regard to allegations made against them. When the complainant

already turned hostile, no purpose would be served even if the

remaining witnesses are examined, as such the prayer was rejected.

Since there is no incriminating evidence against the accused, hence

the statement of accused U/s.313 of Cr.P.C., is also dispensed with.

      8. As said above the victim herself has not supported the

prosecution case so as to prove the allegations against the accused,

though the accused is charged with heinous offences punishable under

section 457 and  of I.P.C., for want of evidence the accused is

entitled for acquittal. For the foregoing discussion, I am of the opinion

that, the prosecution has failed to prove the allegations against the

accused person for the alleged offence beyond reasonable doubts.

Consequently, I proceed to pass the following:

                                ORDER

Acting Under Section 248(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/s.457 and 380 of IPC.

C.C.No.30007/2019 The bail bond of accused and surety shall stands cancelled.

(Dictated to the Stenographer directly on the computer, typed by her and print out taken by her is verified, corrected & then pronounced by me in the Open Court dated this the 8th December, 2021) ( B.MOHAN BABU) XXXVII ADDL.C.M.M., BANGALORE.

ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:

PW­1 : Mohammed Peerdosa PW­2 : Akram Pasha PW­3 : Abraza Khan PW­4 : Nawaza PW­5 : Shaik Imran PW­6 : Munner Khan LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:

Ex.P.1      :         Spot mahzar
Ex.P.1(a)(b):         Signature of PW­1
Ex.P.2      :         Seizure mahzar
Ex.P.2a,b :           Signature of the PW­3,4.
Ex.P.3     :          Statement of PW­3
Ex.P.4      :         Statement of PW 4
Ex.P.5      :         Seizure mahazar
Ex.P.5a     :         Signature of witnesses
Ex.P.6      :         Complaint
Ex.P.7      :         Photo
Ex.P.8      :         Photo.
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                                          C.C.No.30007/2019

LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:

NIL LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:

NIL LIST OF DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE .

NIL XXXVII ACMM., BANGALORE.

C.C.No.30007/2019 25-10-2021 Judgment pronounced in the Open court(vide separately) ORDER Acting Under Section 248(1) of Cr.P.C., accused is hereby acquitted for the offence punishable U/s.380 of IPC.

The bail bond of accused and surety shall stands cancelled.

XXXVII ACMM., BANGALORE. 10 C.C.No.30007/2019