Bangalore District Court
The State Of Karnataka vs 3. Madhu.P @ Chicken on 1 February, 2020
IN THE COURT OF THE LX ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 61)
:Present :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Dated: This the 1st day of February, 2020
S.C. No.1106/2019
COMPLAINANT:- The State of Karnataka,
By Girinagar Police Station,
Bengaluru.
(By Public Prosecutor)
Vs
ACCUSED:-
3. Madhu.P @ Chicken, S/o Prakash,
Aged about 26 years, R/at No.42/A,
Near Udaya Souharda Bank Ltd., 4th
Main, 50 feet road,
Hanumanthanagara, Bengaluru.
Date of offence 10/02/2014
Date of report of offence 10/02/2014
Name of the complainant Sri. Sridhara K.Poojara
Date of commencement of 17/1/2020
recording of evidence
Date of closing of evidence 17/1/2020
Offences complained of Sec. 399 and 402 of IPC
Opinion of the Judge Accused No.3 found not
guilty
2 S.C.No.1106/2019
State represented by Learned Public Prosecutor
Accused defended by Sri. V.V Adv for Accused
No.3
JUDGMENT
This split up charge sheet is filed by Girinagar Police against accused No.3 for the offences punishable u/Sec.399 and 402 of IPC.
2. Brief facts of the prosecution case is that:
On 10.2.2014 at about 7.45pm while complainant Sri.Sridhara K.Poojara, PI was discharging of his duty at PS, received a credible information from an informant to the effect that 4-5 persons armed with deadly weapons are within the jurisdiction of Girinagar police station Opp.Yoga Training Center, Near Vivekanada Park, Arlumallige Partha Sarathi, Girinagara, Bengaluru, are making preparation to commit dacoity of cash and ornaments from the persons moving on the said road and kept a secret watch and after confirming the genuineness of the information, raided six to seven persons gathered near park by holding long choppers, chopper, knives, 3 S.C.No.1106/2019 wooden club and chilly powder packet and having assembled at the spot, were making all preparations for committing dacoity. Thereafter the PI became alert and intended to conduct raid. In that connection, he secured the presence of pancha witnesses and formed a raid team, which includes other police officials of Girinagar police station and then went near the said place and he observed 7 persons were holding weapons and after confirming their activities and information, himself and his staff surrounded them and apprehended all the seven accused persons and then complainant seized the said deadly weapons. On enquiry, accused revealed their names and addresses. Further it was found that they were assembled at that place to commit dacoity. Further by drawing the mahazar at spot, two longs, chopper, two knives, wooden club and chilly powder packet seized and on return to the police station along with A1 to A7 and seized articles, CW 1 submitted report regarding the incident by handing over the seized articles and accused 4 S.C.No.1106/2019 Nos.1 to 7. On receipt of the report, CW-11 registered the FIR against A1 to A7 for the offences punishable u/Sec.399 and 402 of IPC.
3. Subsequently, after completion of investigation, CW-11 filed the charge sheet against accused No.1 to 7 for the offences punishable u/Sec.399 and 402 of IPC. On receipt of the split up charge sheet as the accused No.3 was secured. Since the offences alleged against accused no.3 is exclusively triable by the court of Sessions, the learned LVI ACMM Bengaluru, as per order date.18/7/2019 committed the case against accused No.3 to the Hon'ble Principal City Civil and Sessions Judge Bengaluru. That on committal, the case was registered as S.C.1106/2019 and made over to this court for disposal in accordance with law. Thereafter, accused No.3 appeared through his counsels and he is on bail.
4. Thereafter, admitting of the case, accused No.3 was secured and on hearing the prosecution as well as 5 S.C.No.1106/2019 defense counsel u/Sec 227 of Cr.P.C, this court framed the charge against accused No.3 for the offences punishable u/Sec.399 and 402 of IPC, the contents of the charge for the above said offences read over and explained to accused no.3 in the language known to him and he denied the same and claimed to be tried.
5. In support of its case, prosecution have cited 11 witnesses, out of that prosecution examined only one witness as PW1 and got marked documents as per Ex.P.1 to 3 and alleged seized articles as M.O 1 to 7. Since, in despite of sufficient opportunity, the concerned police have not secured the presence of CW-2 and CW3 and prosecution has given up CW4 to CW11, in order to render speedy justice, the evidence of prosecution taken as closed on 17/1/2020. Thereafter, the statement of accused No.3 under Sec.313 of Cr.P.C. is recorded. The case of defence is total denial of prosecution case and the defence examined none and no documents are marked. 6 S.C.No.1106/2019
6. Heard the arguments of learned Public Prosecutor for State and learned counsel for accused No.3. Perused the records.
7. The only points that arise for my consideration are as under:-
1) Whether the prosecution proves beyond all reasonable doubts that on 10/2/2014 at about 7-45 p.m. 6-7 persons armed with deadly weapons are waiting Opp.Yoga Training Center, Near Vivekanada Park, Arlumallige Partha Sarathi, Bengaluru, within the jurisdiction of Girinagar police station, preparing to commit dacoity of cash and ornaments from the persons moving on the said road, were making all preparations for committing dacoity and thus committed offence u/Sec.399 of IPC?
2) Whether the prosecution proves beyond all reasonable doubts that on the above said date, time, place and circumstances, that the accused No.3 along with other accused persons, assembled by holding deadly weapons for the purpose of committing dacoity and thus committed offence u/S.402 of IPC?
3) What order?
8. My answer to the above points are as under:- 7 S.C.No.1106/2019
Point No.1:- In the Negative Point No.2:- In the Negative Point No.3:- As per final order for the following:-
REASONS
9. Point No.1 and 2:- I have carefully gone through the contents of the charge sheet, evidence of PW1 coupled with contents of Ex.P.1 to 3 and other materials placed on record.
10. PW: 1 - Sridhara. K.Poojara, PI Girinagar Police Station has spoken to the facts that on 10.2.2014 at about 7.45pm p.m. while he was discharging of his duty at PS, received a credible information from an informant to the effect that 4-5 persons armed with deadly weapons are within the jurisdiction of Girinagar police station Opp.Yoga Training Center, Near Vivekanada Park, Arlumallige Partha Sarathi, Girinagara, Bengaluru, are making preparation to commit dacoity of cash and ornaments from the persons moving on the said road and 8 S.C.No.1106/2019 kept a secret watch and after confirming the genuineness of the information, raided six to seven persons gathered near park by holding long choppers, chopper, knives, wooden club and chilly powder packet and having assembled at the spot, were making all preparations for committing dacoity. There after he became alert and intended to conduct raid. In that connection, he secured the presence of pancha witnesses and formed a raid team, which includes other police officials of Girinagar police station and then went near the said place and he observed 7 persons were holding weapons and after confirming their activities and information, himself and his staff surrounded them and apprehended all the seven accused persons and then complainant seized the said deadly weapons. On enquiry, accused revealed their names and addresses. Further it was found that they were assembled at that place to commit dacoity. Further by drawing the mahazar at spot, two longs, chopper, two knives, wooden club and chilly powder packet seized and 9 S.C.No.1106/2019 on return to the police station along with A1 to A7 and seized articles, CW 1 submitted report regarding the incident by handing over the seized articles and accused Nos.1 to 7
11. He further deposes that he recovered all those weapons in the presence of panchas by drawing mahazar as per Ex.P3. Thereafter, he returned to station along with accused and seized articles and filed complaint before SHO as per Ex.P.1. He identified the mahazar as per Ex.P.3. He identified the seized articles as per M.O.1 to 7. He identified the accused no.3. He denied all the suggestions of learned Counsel for accused.
12. As ratio laid down in the case of Agar V/s State of Rajasthan, reported in 2003 Crl.L.J. 1997, it is settled law that,' to constitute an offence under section 399 and 402 of IPC, some act amounting to preparation must be proved'. And in the case of Joseph V/s State of Kearala reported in AIR 1993 SCW 10 S.C.No.1106/2019 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'. Further 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''.
13. Admittedly, the alleged place of occurrence is a busy place, any of the passers by and the local persons would have complained about the gathering and activities of these accused and another, if really any offence had occurred over the said place. So, doubt arises as to the gathering of the accused no.3 and his making any preparations to commit dacoity over said place. As such, 11 S.C.No.1106/2019 the materials placed on record by the prosecution are not sufficient to believe the case of the prosecution.
14. Having regard to all these facts and circumstances of the case, I am of the considered view that the only evidence of PW-1 cannot be relied upon to believe the case of the prosecution and to hold the accused no.3 guilty of the offences alleged. Further, though learned Public Prosecutor has made all efforts to secure CW-2 and CW3, police failed to secure their presence and prosecution given up evidence of CW4 to CW11 as repeating the evidence of PW1. Hence non examination of CW2 and CW3, who are material witnesses, is fatal to the case of prosecution. Having regard to all these facts and circumstances, I am of the view that the prosecution has failed to bring home the guilt of these accused beyond all reasonable doubts. Hence, accused No.3 is entitled to get benefit of doubt. Accordingly, I answer point No.1 and 2 in the Negative. 12 S.C.No.1106/2019
15. Point No.3:- In view of my findings on point No.1 and 2, I proceed to pass the following;
ORDER
Accused No.3 is hereby acquitted
u/s.235(1) of Cr.P.C., for the offences
punishable under Sec.399 and 402 of IPC.
The bail bond of accused no.3 and that of their surety stands cancelled.
However, bail bonds and surety bonds executed by accused No.3 as required U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Charge sheet Papers and Seized M.O 1 to 7 be preserved till disposal of split up charge sheet pending against accused persons.
*** (Directly dictated to the stenographer on computer, revised by me and then pronounced by me in open court on this the 1st day of February 2020) (Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.
13 S.C.No.1106/2019ANNEXURES:
List of witnesses examined for the prosecution:
PW1 Sridhar K.Poojara List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Complaint
Ex.P.2 FIR
Ex.P.3 Mahazar
List of documents exhibited on behalf of
defence:
Nil
List of M.O. marked for the prosecution:
MO.1 Long
MO.2 Long
MO.3 Long chopper
MO.4 Knife
MO.5 Knife
MO.6 Wooden club
MO.7 Chilly powder packet
(Vidyadhar Shirahatti)
LX Addl.City Civil & Sessions Judge, Bengaluru.14 S.C.No.1106/2019
Judgment pronounced in the open court. Vide separately ORDER Accused No.3 is hereby acquitted u/Sec..235(1) of Cr.P.C., for the offences punishable under Sec.399 and 402 of IPC. The bail bond of accused no.3 and that of their surety stands cancelled.
However, bail bonds and surety bonds executed by accused No.3 as required U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day. Charge sheet Papers and Seized M.O 1 to 7 be preserved till disposal of split up charge sheet pending against accused persons.
(Vidyadhar Shirahatti) LX Addl.City Civil & Sessions Judge, Bengaluru.
15 S.C.No.1106/2019