Bangalore District Court
State By vs In: A1. Lakshmikantha on 25 February, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 25 th day of February, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com, L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.807/2013 c/w SC.No.633/2020
COMPLAINANT : State by:
Jnanabharathi Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED in: A1. Lakshmikantha
SC.No.807/2013 @ Vinay @ Gunda,
S/o Ramakrishnappa,
Aged about 29 years,
R/at No.32,
Near Yeshwanthapura Railway Station,
Muneshwaranagara, Bengaluru.
Native of Karagere Village,
Nagamangala Taluk, Mandya District.
(By Sri.M.Gangadhara Shetty, Advocate.)
ACCUSED in:
SC.633/2020 A2. Babu @ Choodi Babu,
S/o Ameer Jan,
Aged about 35 years,
R/at IT Layout,
Nagamangala Town,
Mandya District.
(By Sri.M.Gangadhara Shetty, Advocate.)
DATE OF:
2 S.C.No:807/2013 &
S.C.No.633/2021
Occurrence of offence : 16.07.2012
Commencement of trial : 09.09.2014
Closing of trial : 12.09.2019
Name of the complainant: Smt.Asha.
Offence alleged : Under Sections 392 and
413 of IPC.
Opinion of the judge : Charge leveled against the
accused are not proved.
Sentence or order : Acquittal.
COMMON JUDGMENT
Since both the cases arise out of same crime and
common evidence is recorded, they are taken up together
for judgment.
2. The Jnanabharathi police have filed the present
charge sheet against the accused in Crime No.284/2012
for the offences punishable under Sections 392 and 413 of
IPC.
3. The brief facts of the prosecution case are that;
a) On 16.12.2012 at about 2:40 p.m., when CW-1
Smt.Asha was returning to her house by walk, situated at
Health Layout near BDA Complex and reached near the
Jingle Play Home, 1st Main, 8th Cross, RHCS Layout,
3 S.C.No:807/2013 &
S.C.No.633/2021
within the jurisdiction of Jnanabharathi police station, A-1
who was standing at the said spot by parking his vehicle
black colour Bajaj Pulsar motorcycle bearing registration
No.KA-02 HA-5526, came from her behind and snatched
gold mangalya chain from her neck and escaped from the
spot in the said vehicle.
b) A-1 and A-2 have sold and pledged the stolen
golden ornaments which were stolen by them in different
police station limits to the jewelry shop, Muthoot Finance
and Mannapuram Finance in their name. Accordingly, the
complaint was filed.
4. A-1 and A-2 were produced under remand warrant
and were in the judicial custody. Since, the case was
exclusively triable by the Court of Sessions, the trial Court
committed the case to the Court of Principal City Civil and
Sessions Judge, Bengaluru by directing the concerned jail
authority to produce A-1 and A-2 before the Court of
Sessions whenever summoned.
5. On committal of the case, it was allotted to this
Court for disposal in accordance with law. Thereafter, A-1
and A-2 were enlarged on bail by this Court.
4 S.C.No:807/2013 &
S.C.No.633/2021
6. Heard before charge. Charges framed and plea of
A-1 and A-2 was recorded for the offences punishable
under Sections 392 and 413 of IPC for which, they pleaded
not guilty and claimed to be tried. Hence, the case was
posted for common trial.
7. During the course of trial, since A-2 remained
absent and the process issued against him and his surety
went in vain, vide order dated 24.02.2020, the case was
ordered to split up against him and accordingly, the case
was registered in SC.No.633/2021.
8. In support of its case, in the course of trial, the
prosecution in all got examined 15 witnesses i.e. CWs-3, 1,
5, 7, 8, 11, 10, 13, 6, 12, 17, 16, 19, 4 and 9 respectively
as PWs-1 to 15. Got exhibited 20 documents at Ex.P-1 to
20. Got marked 3 material objects at MOs-1 to 3 and
closed its side.
9. Before splitting up of case against A-2, all the
witnesses were examined and the case was stand posted to
record the statement of the accused under Section 313 of
Cr.P.C.
5 S.C.No:807/2013 &
S.C.No.633/2021
10. Accordingly, statement of A-1 in SC.807/2013
and A-2 in SC.No.633/2021 was recorded under Section
313 of Cr.P.C. wherein they have denied the evidence
against them, but have not led any defence evidence.
11. Heard arguments of both the sides on merits of
the case and perused the record.
12. Out of the above said facts and circumstances of
the case, the points that arose for the due consideration of
this Court are;
1. Whether the prosecution proves
beyond all the reasonable doubts that
A-1 in SC.No.807/2013 and A-2
against whom the case is split up and
registered in SC.No.633/2020 with a
common intention of committing
crime, on 16.07.2012 at about 2:40
p.m. when CW-1 Smt.Asha was
returning to her house by walk,
situated at Health Layout near BDA
Complex and reached near the Jingle
Play Home, 1st Main, 8th Cross, RHCS
Layout, within the jurisdiction of
Jnanabharathi police station, A-1 who
was standing at the said spot by
parking his vehicle black colour Bajaj
Pulsar motor cycle bearing registration
No.KA-02 HA-5526, came from her
behind and snatched the gold
mangalya chain from her neck and
thus, committed the offence
punishable under Section 392 of IPC?
6 S.C.No:807/2013 &
S.C.No.633/2021
2. Whether the prosecution further
proves beyond all the reasonable
doubts that A-1 in SC.No.807/2013
and A-2 against whom the case is split
up and registered in SC.No.633/2020
were found habitual dealers of stolen
properties and thus, committed the
offence punishable under Section 413
of IPC?
3. What Order?
13. The findings of this Court on the above points
are;
1. Points Nos.1 and 2: In Negative.
2. Point No.3: As per the final order for the
following reasons.
REASONS
14. POINTS Nos.1 AND 2:- As these points are
interconnected with each other and thus, require
commons discussions, to avoid repetitions and for the
sake of convenience, they are taken together for
consideration.
15. Before venturing to the discussion on merits
of the case, let this Court first to go through the
relevant provisions of law for which the charges are
framed against these accused i.e., Sections 392 and
7 S.C.No:807/2013 &
S.C.No.633/2021
413 read with Section 34 of IPC which are extracted
here below;
"392. Punishment for
Robbery.- Whoever commits robbery
shall be punished with rigorous
imprisonment for a term which may
extend to ten years, and shall also be
liable to fine; and, if the robbery be
committed on the highway between
sunset and sunrise, the imprisonment
may be extended to fourteen years.
16. So, let this Court to go through the provision
of Section 390 of IPC which deals with "robbery" and it
is extracted here below;
"390. Robbery.- In all robbery
there is either theft or extortion".
When theft is robbery. - Theft
is "robbery" if, in order to the
committing of the theft, or in
committing the theft, or in carrying
away or attempting to carry away
property obtained by the theft, the
offender, for the end, voluntarily
causes or attempt to cause to any
person death or hurt or wrongful
restraint, or fear or instant death or of
instant hurt, or of instant wrongful
restraint.
When extortion is robbery.-
Extortion is "robbery" if the offender,
at the time of committing the
extortion, is in the presence of the
8 S.C.No:807/2013 &
S.C.No.633/2021
person put in fear, and commits the
extortion by putting that person in fear
of instant death, or instant hurt, or of
instant wrongful restraint to that
person or to some other person, and,
by so putting in fear, induces the
person so put in fear then and there to
deliver up the thing extorted.
Explanation.- The offender is
said to be present if he is sufficiently
near to put the other person in fear or
instant death, or instant hurt, or
instant wrongful restraint.
17. So, the essential ingredients for robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily
causes or attempts to cause to any
person.-
(i) death, or
(ii) hurt, or
(iii) wrongful restrain, or
(iv) fear of instant death, instant
hurt, or instant wrongful restraint and
the above act(s) is/are done -
(1) in order to the commission of
the theft, or
(2) in committing the theft, or
(3) in carrying away or
attempting to carry away any property
obtained by the theft.
9 S.C.No:807/2013 &
S.C.No.633/2021
(b) Extortion is robbery when,
(i) At the time of committing
extortion the offender is in the
presence of the person put in fear.
(ii) The offender commits
extortion by putting that person in fear
of instant death, hurt, or wrongful
restraint -
(1) to that persons, or
(2) to some other person.
(iii) By so putting such person in
fear, the offender induced the person
so put in fear then and there so deliver
the thing extorted.
18. The other offence alleged is the offence under
Section 413 of IPC and it reads;
"413. Habitually dealing in
stolen property.- Whoever habitually
receives or deal in property which he
knows or has reason to believe to be
stolen property, shall be punished with
imprisonment for life, or with
imprisonment of either description for
a term which may extend to one year
and shall also be liable to fine".
19. The next offence alleged is the offence under
Section 34 of IPC which is extracted here below;
"34. Acts done by several
persons in furtherance of common
intention.- When a criminal act is
10 S.C.No:807/2013 &
S.C.No.633/2021
done by several persons in furtherance
of the common intention of all, each of
such persons is liable for that act
in the same manner as if it were
done by him alone".
20. Keeping in mind the ingredients of the offence
alleged observed above, let this Court to consider the
case of the prosecution and the evidence let in by it to
establish the offences alleged against the accused.
21. As noted above, it is the allegation of the
prosecution that A-1 and A-2 with a common intention
have robbed the gold mangalya chain of CW-1 from her
neck and they are the habitual dealers of the stolen
properties by selling and pledging such stolen
properties including the gold chain of CW-1 in many
financial institutions and thereby committed the
offences alleged.
22. To prove its case, as observed above, the
prosecution has got examined totally 15 witnesses; got
exhibited 24 documents and got marked 3 material
objects.
11 S.C.No:807/2013 &
S.C.No.633/2021
23. The prosecution case begins with the
complainant Smt.Asha Harikumar lodging the
complaint and ends with the then PI Sri.Balaraju CW-
19 on completion of investigation filing the charge
sheet against both the accused.
24. The case of the prosecution in chronological
order is that on receipt of the complaint at Ex.P-2 by
CW-16, they registered the case; prepared the FIR at
Ex.P-16; submitted the same to the jurisdictional
Magistrate; conducted the spot mahazar at Ex.P-1;
secured both the accused; recovered the properties
vide Ex.P-7; on the voluntary statements of both the
accused, recovered some other properties amongst
which the gold mangalya chain of this case is also one
vide Ex.P-9; got identified the mangalya chain from
CW-1; got conducted the identification parade through
the jurisdictional Executive Magistrate CW-18 vide
Ex.P-3 and 4; in compliance of the order of the
concerned Magistrate, released the mangalya chain to
12 S.C.No:807/2013 &
S.C.No.633/2021
CW-1 on getting executed the necessary indemnity
bond at Ex.P-5 and on completion of the investigation,
filed the charge sheet.
25. Let this Court to go through the evidence on
record in support of the prosecution case/allegations
noted above. It is in the complaint at Ex.P-2 that;
a) 16.07.2012, around 2:40 p.m., to go to home
from the school, the complainant alone was moving in
front of Jingal Bell School, 8th Cross, 1st Main Road,
Annapurneshwari Nagar.
b) By that time, a person was standing in front of
the said school by stationing the motor cycle.
c) While she was moving by walk, the said person,
all of a sudden snatched the mangalya chain from her
neck and went out over the motor cycle towards BDA
complex.
d) Since she was under shock, she could not
notice the number and model of the motor cycle.
13 S.C.No:807/2013 &
S.C.No.633/2021
e) The said person is a fat and tall person of the
age between 30 - 35 years.
f) Since he worn helmet, she could not see his
face properly. He worn pant and shirt.
g) Her mangalya chain was weighing around 60
grams and worth of around Rs.1,20,000/-.
h) She can identify the said person if she sees
him again and sought for action and to trace out her
mangalya chain.
26. There is an endorsement in Ex.P-1 by the
SHO received the complaint i.e., CW-16 the then PI
Sri.Lakshminarayana Prasad that it was received on
17.07.2012 at 4:00 p.m., and the case was registered
in Cr.No.284/2012 for the offence under Section 392
of IPC.
27. The FIR at Ex.P-16 is in support of the above
endorsement at Ex.P-2. There is an endorsement by
the jurisdictional Magistrate that the FIR was received
at 11:00 a.m. on 17.07.2012 and the date below the
14 S.C.No:807/2013 &
S.C.No.633/2021
signature of the concerned Magistrate is also the same
date. So, the FIR was received by the jurisdictional
Magistrate after around 19 hours.
28. After registering the case and preparing the
FIR, it was sent to the jurisdictional Magistrate and
thereafter on the same day, CW-16 visited the spot;
CW-1 showed the spot to him; he conducted the spot
mahazar at Ex.P-2 in the presence of the panchas
Sri.Rajesh CW-2 and Sri.M.K.Krishnappa CW-3 in
between 4:45 p.m. and 5:45 p.m.
29. CW-2 is not examined. CW-3 is examined as
PW-1 who has stated that the police have conducted
the mahazar in respect of the chain snatch case
pertains to one Smt.Asha at around 4:00 p.m.; he
identified the mahazar at Ex.P-1 and his signature at
Ex.P-1(a), but has stated that none showed the spot.
30. Hence, he was subjected to the cross
examination by the prosecution and he has admitted
the suggestion that CW-1 was present at the time of
15 S.C.No:807/2013 &
S.C.No.633/2021
mahazar and showed the spot. But, though stated that
CW-2 might have been present and signed the
mahazar, has categorically stated and he does not
know CW-2.
31. It is got admitted in the cross examination of
CW-16 that normally, when the complainant remains
in the spot and shows the spot, they take signature of
the complainant to the spot mahazar and in Ex.P-2,
there is no signature of CW-1.
32. However, CWs-1 and 16 in their chief
evidence has specifically stated CW-1 was present and
showed the spot; the same is admitted by CW-3 in his
cross examination as noted above and all of them have
specifically stated with regard to the fact that CW-16
conducted the spot mahazar procedures in the spot
and written down the spot mahazar at Ex.P-1.
33. It is also in the police papers that on
completion of the spot mahazar proceedings, CW-16
handed over the case file to CW-19 because of his
16 S.C.No:807/2013 &
S.C.No.633/2021
transfer and the further investigation of the case was
done on 10.12.2012 when, CWs-12 to 15 i.e., the then
ASI Sri.Shivanna, the then HC-4160 Sri.Shivabasappa,
the then PCs Sri.Chandrappa and Sri.Vijayakumar
respectively who were deputed in search of the
accused and properties, brought the accused along
with the properties and produced before CW-19 with
the report of CW-12 at Ex.P-14.
34. It is in Ex.P-14 that;
a) All the above patrolled within the limits of their
station i.e., Mallathalli, Papareddipalya; contacted
their informants and asked them to collect the
information with regard to the accused and the
properties.
b) When they were near Papareddypalya Circle
around 8:00 a.m., the informants called them over
phone and told that two persons moving around over a
Bajaj Pulsar motor cycle near the jewelry shops/pawn
brokers' shop suspiciously.
17 S.C.No:807/2013 &
S.C.No.633/2021
c) Hence, they rushed to the said spot and on the
informants showing the suspects at a distance, they
covered the suspects and enquired, but the suspects
did not give proper answers in respect of their
presence in the said spot and not furnished the
vehicular documents of the vehicle in their possession.
d) Accordingly, they checked the vehicle and
found two number plates of the same number and a
knife in the motor cycle tank cover.
e) They also found two layers gold mangalya
chain in the possession of one of the suspects when
the suspects were subject to the body search.
f) When enquired, the suspect in possession of
the said gold chain said that it belongs to him and his
name is Lakshmikantha @ Vinay @ Gunda S/o
Ramakrishna, 29 years, R/o No.32, Near
Yeshwanthapura Railway Station, Muneshwaranagar,
Yeshwanthapura, Bengaluru and another suspect is
Babu @ Chudibabu S/o Amir Jan, 35 years, R/o - no
18 S.C.No:807/2013 &
S.C.No.633/2021
number, TB Extension, Nagamangala Town, Mandya
District.
g) On suspicion that the suspects might have
robbed the said chain somewhere and came to sell the
same to jewelry shop, they brought the suspects with
the above properties and the motor cycle as well as
produced them before CW-19 at 9:00 a.m.
35. Amongst CWs-12 to 15, CW-12 and 13 are
examined as PWs-10 and 8 respectively. Further chief
of CW-13 was deferred for want of motor cycle for
identification and later, he remained absent and thus,
his chief evidence was not concluded. However, the
evidence of CW-12 and 19 are in corroboration with
each other with regard to the recitals at Ex.P-14;
production of both the accused and the properties
before CW-19.
36. It is the case of the prosecution that in
continuation of the investigation, CW-19 secured the
presence of the panchas i.e., Smt.Chennamma CW-4
19 S.C.No:807/2013 &
S.C.No.633/2021
and Sri.Krishnaiah CW-5; by conducting the mahazar
at Ex.P-7 in their presence in between 10:00 a.m. and
11:00 a.m., in the station, he seized the properties
from both the accused i.e., the motor cycle, the gold
mangalya chain, two number plates at MO-2 and a
cutter at MO-3 in possession of both the accused.
37. Both the panchas i.e., CWs-4 and 5 though
admitted their signatures at Ex.P-7, they completely
turned hostile with regard to the seizure procedures;
identification of the properties and the accused as well
as the recitals at Ex.P-7 and thus, there is no
supportive evidence to the oral testimony of CW-19 in
that regard and thereby to the case of the prosecution.
38. It is the case of the prosecution that in the
course of further investigation, CW-19 recorded the
voluntary statements of both the accused; produced
them before the jurisdictional Magistrate and took
them to the police custody and on 11.12.2012, he
deputed the then PSI CW-17 Sri.Imthiyaz Patel for
20 S.C.No:807/2013 &
S.C.No.633/2021
recovery of the properties on the voluntary statements
of the accused.
a) CW-17 visited Hassan and as led by both the
accused, in shop of CW-11 by conducting the mahazar
at Ex.P-9 in between 10:30 a.m. and 12:30 p.m., 9
gold ornaments were seized from the receiver of the
properties ie., Sri.Srikanth CW-11 in the presence of
panchas Sri.Pavan CW-8 who is the younger brother of
CW-11 and Sri.Nikhil CW-9 as well as the mediator
Sri.Manju CW-10 through whom the accused sold the
gold chains they snatched to CW-11.
39. All the above witnesses i.e., CWs-8 to 11 are
examined as PWs-5, 15, 7 and 6 respectively and they
turned hostile to the prosecution. Thus, there is no
supportive evidence to the evidence of IOs i.e., CWs-17
and 19 with regard to the seizure of 9 gold chains from
CW-11 in the presence of CWs-8 to 10 vide Ex.P-9 as
detailed therein.
21 S.C.No:807/2013 &
S.C.No.633/2021
40. It is also the case of the prosecution that on
12.12.2012, CW-19 secured CW-1; got identified the
motor cycle and the gold mangalya chain at MO-1
appearing in the photo at Ex.P-6 and recorded the
further statement of CW-1 in that regard. CW-1
identified the 5th item in the related PF at Ex.P-19 i.e.,
related to the mahazar at Ex.P-9.
41. The above prosecution case is supported by
the oral evidence of CWs-17 and 19 and the 5 th item
described in the mahazar at Ex.P-9 and the related PF
at Ex.P-19 is one layer gold chain having a kasu and
weighing around 45 grams.
42. But, as noted above, it is in the complaint at
Ex.P-2 that the chain snatched is a gold managalya
chain weighing around 60 grams and worth around
Rs.1,20,000/- and it is in the spot mahazar at Ex.P-1
that the complainant told in the spot that the chain
snatched is two layers 60 grams weight gold mangalya
chain.
22 S.C.No:807/2013 &
S.C.No.633/2021
43. Interestingly, though in her chief evidence
CW-1 has stated only the weight of the chain i.e., 60
grams, it is in her cross examination that;
a) At the time of lodging the complaint, she has
stated the design of the chain lost.
b) The chain lost was two layers gold chain
having 4 gold gundu, two rubies, one black bead and
two tali.
c) She did not get the two layers mangalya chain
she lost, but the police returned the equal weighing
chain.
d) She admitted that;
(i) MO-1 i.e., the chain appearing in Ex.P-6 is not
the mangalya chain she lost.
(ii) She has stated in the indemnity bond that she
received 45 grams weighing one layer gold chain.
(iii) She was aware that there is shortage of 15
grams of gold in MO-1 while she executed the
indemnity bod.
23 S.C.No:807/2013 &
S.C.No.633/2021
(iv) By that time, she has stated that MO-1 is not
the ornament belongs to her and the ornament she
lost is different.
e) She has also stated that on 12.12.2012, she
stated that the chain she lost was like MO-1.
44. So, from the evidence of CW-1 it is clear that
MO-1 appearing at Ex.P-6 i.e., the 5 th item described in
Ex.P-9 and 19 alleged to be seized vide Ex.P-9 is not
the gold mangalya chain alleged to be snatched from
the neck of CW-1.
45. It is the case of the prosecution that in the
course of further investigation, on 18.12.2012, CW-19
made requisition to the Court seeking directions to the
concerned Tahsildar to conduct the identification
parade and on 14.03.2013, he received the
identification parade reports at Ex.P-3 and 4.
46. Ex.P-3 is the questionnaires put to CW-1 in
the identification parade and Ex.P-4 is the proceedings
24 S.C.No:807/2013 &
S.C.No.633/2021
of the identification parade. Both Ex.P-3 and 4 are
dated 08.03.2013.
47. So, it is clear that, though the accused were
traced and were taken into custody on 10.12.2012;
though CW-1 was secured on 12.12.2012 for
identification of properties; the requisition was made
on 18.12.2012 seeking identification parade; the
identification parade was conducted on 08.03.2013
i.e., nearly after 3 months from the date of securing
the accused.
48. Ex.P-3 is the printed format and there are 7
questionnaires i.e., (1) Why the witness came there? (2)
Whether she was present at the time of
incident/crime? (3) How many persons involved in the
incident/crime? (4) Whether she witnessed the
incident/crime? (5) Can she identify the persons
standing in the row? (6) Identify him/them? (7) Give
the reason for identification and the relevant answers
for the case recorded in Ex.P-3 are that she saw the
25 S.C.No:807/2013 &
S.C.No.633/2021
accused while committing crime; the accused was a
single person and he was at Sl.No.8 in the row.
49. The proceedings at Ex.P-4 reflects that the
identification parade was conducted on 08.03.2013
(time is not mentioned) and CW-1 identified A-1
Lakshmikantha who was at Sl.No.8 in the row; the
names and UTP numbers of all the 10 persons taken
in the identification parade are noted down.
50. The Executive Magistrate who did the
identification parade i.e., Sri.N.R.Umesh Chandra is
cited as CW-18 in the charge sheet, but he is not
examined. On the other hand, with regard to the
identification of the accused, it is in the chief evidence
of CW-1 that she identified A-1 before the Court
specifically showing him and she has also stated that;
a) After around 5 - 6 months from the date of
incident, the police called her to the station.
b) From the station, they took her to Parappana
Agrahara Jail and showed the accused.
26 S.C.No:807/2013 &
S.C.No.633/2021
c) In the jail, they made stand many people and
asked her to identify the accused and she identified
the accused who is A-1 before the Court and she
identified her signatures in Ex.P-3 and 4 respectively
at Ex.P-3(a) and 4(a).
d) She also stated that after chain snatch till she
identified the accused in the jail, in between, she did
not identify the accused any where else.
51. By getting her partial hostile witness, the
prosecution cross examined her and got admitted that;
a) On 12.12.2012, Jnanabharathi police called
her to station.
b) By then, the accused present before the Court
were in the station.
c) To the suggestion that by then, she identified
the accused, she has answered that she said that A-1
may be the accused.
52. But, it is neither in the evidence of CW-19 nor
the case of the prosecution that on 12.12.2012, when
27 S.C.No:807/2013 &
S.C.No.633/2021
CW-1 was secured in the station, the accused were
showed to her for identification. It is the specific case
of the prosecution that on that date, only the
properties were tendered and got identified by CW-1
and her further statement was recorded in that regard.
53. Moreover, it is in the cross examination of
CW-1 for the accused that;
a) She saw the person over the bike at a distance
around 3 - 4 feet and she did not observe the model of
the bike, but it was black coloured.
b) Since, the said person worn full sleeves jerkin
and helmet, his face was covered and only the eyes
were appearing.
c) While lodging the complaint, she has stated
that only the eyes of the said person were appearing
and she did not say about the physical features of the
said person.
54. But, as noted above, in the complaint at Ex.P-
2, it is stated that the said person is a fat and tall
28 S.C.No:807/2013 &
S.C.No.633/2021
person of the age between 30 - 35 years which is
contradictory to the above noted oral evidence of CW-1.
55. It is also in her cross examination that;
a) When she had been to the police station,
during enquiry, she did not come to know about the
name, father's name and address of the person
snatched her ornament.
b) The police issued notice before 3 - 4 days
asking her to come to jail to identify the accused.
b) On her visit to the station, the police took her
to the jail. It was around 10:00 a.m. and by that time,
there were many people who lost their ornaments.
There were 3 - 4 police. They went to jail in police van
and when they reached the jail in was 12:00 in the
noon.
c) They were informed with the jail rules and the
manner in which they required to identify the accused.
It was 1:30 p.m., when she identified the accused.
29 S.C.No:807/2013 &
S.C.No.633/2021
d) They made around 8 - 10 persons of age
between 18 and 45 years to stand in a row and all of
them worn different clothe and of height between 5
and 5.75 feet.
e) On observing the height, skin colour and eyes,
she identified A-1 and she saw the hand, fingers,
forehead, nose and eye on the date of incident.
56. But, as noted above, in her cross examination
she has stated that only the eyes were appearing and
the full face was covered by the helmate and the said
evidence of CW-1 is also supported by the evidence in
the cross examination of her husband CW-5. So, above
noted reason/justification given by CW-1 in respect of
the facts on which she identified A-1 in the
identification parade.
57. It is the case of the prosecution that in the
course of further investigation of the case, on
22.12.2012, as per the Court orders, the gold
mangalya chain at MO-1 appearing in Ex.P-6 was
30 S.C.No:807/2013 &
S.C.No.633/2021
released to CW-1 on getting executed the indemnity
bond at Ex.P-5. The evidence of CWs-1 and 19 and
Ex.P-5 are in support of the above facts.
58. The other witnesses examined for the
prosecution are CW-4 Dr.Chinmayi.C the relative of
CW-1 and CW-5 Sri.Harikumar, the husband of CW-1
who are similar type of witnesses and deposed that on
the date of incident, CW-1 called them over phone and
intimated about the incident. Immediately, they
rushed to the spot and took CW-1 to the police station
to lodge the complaint.
59. So, from the above evidence let in by the
prosecution, the prosecution is of course successful to
establish,
a) The date, time and place of the alleged crime;
b) CW-1 lodging the complaint at Ex.P-2 in
respect of the alleged crime;
31 S.C.No:807/2013 &
S.C.No.633/2021
c) On receipt of complaint, the complainant police
registering the case, preparing the FIR, submitting the
FIR to the jurisdictional Magistrate;
d) In the course of investigation, the IO CW-16
conducting the spot mahazar at Ex.P-2; but has failed
to establish,
(i) The involvement of A-2 in the alleged crime;
(ii) The seizure of MO-1 vide Ex.P-9;
(iii) The fact that MO-1 is the gold mangalya
chain snatched by A-1 from the neck of CW-1;
(iv) The identification of motor cycle. For that
matter, even to produce the vehicle involved in the
commission of crime;
(v) To let in the corroborative evidence in respect
of securing the presence of the accused and seizure of
the properties from their possession vide Ex.P-7; and
(vi) To let in the evidence of CW-18 to prove the
identification parade which are material facts to be
32 S.C.No:807/2013 &
S.C.No.633/2021
proved by the prosecution in support of its allegations
against A-1 and A-2 for the offences alleged.
60. Hence, from the above observations, it is clear
that the prosecution has failed to establish its
allegations against both the accused beyond all
reasonable doubts for the offences alleged.
Accordingly, these points are answered in negative.
61. POINT No.6:- From the above observations, and
findings on points Nos.1 and 2, this Court proceed to pass
the following order.
ORDER
Acting under Section 235(1) of Cr.P.C., A-1 and A-2 hereby acquitted for the offences punishable under Sections 392 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 if any shall be canceled after lapse of appeal period.
The release of MO-1 in favour of CW-1 by getting executed indemnity bond at Ex.P-5 dated 22.12.2012 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
33 S.C.No:807/2013 &S.C.No.633/2021 So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 I.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-2 and 3, no order is passed as the disposal order in respect of the above properties are passed in SC.No.853/2013.
Office is directed to keep the original judgment in SC.No.807/2013 and the copy thereof in SC.No.633/2021.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 25th day of February, 2022).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE PROSECUTION :-
PW.1 Sri.Krishnappa
PW.2 Smt.Asha
PW.3 Sri.Harikumar
PW.4 Sri.Krishnaiah
PW.5 Sri.Pawan
PW.6 Sri.Srikanth
PW.7 Sri.Manju
PW.8 Sri.Shivabasappa
PW.9 Smt.Channamma
PW.10 Sri.Shivanna
PW.11 Sri.Imtiyaz Patel
PW.12 Sri.Lakshminarayana Prasad.H.
PW.13 Sri.B.Balaraju
PW.14 Smt.Chinmayi
PW.15 Sri.Nikhil
34 S.C.No:807/2013 &
S.C.No.633/2021
LIST OF WITNESS EXAMINED FOR DEFENCE:-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION :-
Ex.P-1 Mahazar Ex.P-1(a) Signature of PW-1 Ex.P-1(b) Signature of PW-12 Ex.P-2 Complaint Ex.P-2(a) Signature of PW-2 Ex.P-2(b) Signature of PW-12 Ex.P-3 Questionnaires of Identification Parade Ex.P-3(a) Signature of PW-2 Ex.P-4 Proceedings Identification Parade Ex.P-4(a) Signature of PW-2 Ex.P-5 Indemnity Bond Ex.P-5(a) Signature of PW-2 Ex.P-6 Copy of Photo of MO-1 Ex.P-7 Seizure Mahazar Ex.P-7(a) Signature of PW-4 Ex.P-7(b) Signature of PW-9 Ex.P-8 Portion of Statement of PW-4 Ex.P-9 Seizure Mahazar Ex.P-9(a) Signature of PW-5 Ex.P-9(b) Signature of PW-6 Ex.P-9(c) Signature of PW-7 Ex.P-9(d) Signature of PW-11 Ex.P-9(e) Signature of PW-13 Ex.P-9(f) Signature of PW-15 Ex.P-10 Portion of Statement of PW-15 Ex.P-11 Portion of Statement of PW-6 35 S.C.No:807/2013 & S.C.No.633/2021 Ex.P-12 Portion of Statement of PW-7 Ex.P-13 Portion of Statement of PW-9 Ex.P-14 Requisition of PW-10 Ex.P-14(a) Signature of PW-10 Ex.P-15 Remainder Ex.P-16 FIR Ex.P-16(a) Signature of PW-12 Ex.P-17 PF Form No.231/2012 Ex.P-18 Voluntary Statement of A-1 Ex.P-19 PF Form No.233/2012 Ex.P-19(a) Signature of PW-13 Ex.P-20 Portion of Statement of PW-15 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE :-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:-
MO-1 Gold Mangalya Chain
MO-2 Number Plates (2 in numbers)
MO-3 Cutter
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:-
- Nil -
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru. 36 S.C.No:807/2013 & S.C.No.633/2021 The accused No.2 and his counsel are present.
The Judgment is pronounced in the open Court (vide separate Order).
ORDER Acting under Section 235(1) of Cr.P.C., A-1 and A-2 hereby 37 S.C.No:807/2013 & S.C.No.633/2021 acquitted for the offences punishable under Sections 392 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 if any shall be canceled after lapse of appeal period.
The release of MO-1 in favour of CW-1 by getting executed indemnity bond at Ex.P- 5 dated 22.12.2012 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 I.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-2 and 3, no order is passed as the disposal order in respect of the above properties are passed in SC.No.853/2013.
Office is directed to keep the original judgment in SC.No.807/2013 and the copy thereof in SC.No.633/2021.
LXVI Addl.CC & SJ, Bengaluru.
38 S.C.No:807/2013 &S.C.No.633/2021