Bangalore District Court
State Of Karnataka By vs A1. Goutham S/O Venkatesh on 16 January, 2023
KABC010270872014
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-60)
Dated this the 16 th day of January 2023
PRESENT
Sri.Sadananda Nagappa Naik,B.A.L, L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
S.C.No.1468/2014
COMPLAINANT : State of Karnataka by
Ashoknagar Police Station,
Bangalore.
(By Learned Public Prosecutor)
Vs.
ACCUSED : A1. Goutham S/o Venkatesh,
Aged about 23 years,
R/o No.237, Ramanna
Garden, 'U' Mission
Road, near Poornima
Takies, Bangalore-27.
2. Raju @ Dhanaraju.V.
S/o. Venkatesh.M.
Aged about 21 years,
R/o.No.72, Santhrupthi
Nagar, 1st Main Road,
J.P Nagar, Bangalore-78.
2 SC No.1468/2014
3. Karthik S/o Sreenivas,
Aged about 21 years,
R/o No.20/A, 26th Main
Road, 2nd cross, Annaiah
Reddy Layout, J.P. Nagar,
6th Stage, Bangalore.
4. Vasudevan @ Vasu S/o
Y.Venkatagiri.
Aged about 23 years,
R/o Muniveerappa
building, Bank of Baroda
Colony, 24th Main Road,
2nd cross, J.P. Nagar, 7th
Stage, Bangalore.
(A.1 By Sri. K.E. Advocate)
(A.2 to 4 by Sri.D.G.S.Advocate)
1.Date of Commission of Offence : 20.07.2013
2. Date of Report of Offence : 20.07.2013 3. Status of the accused : Accused Nos.1 to 4 are on bail.
4. Name of the complainant : Sri. A.K.Girish, PSI High Grounds P.S., Bengaluru.
5. Date of Commencement of :
02.08.2016 evidence
6. Date of Closing of Evidence : 06.04.2021
7. Offences complained of : Sections 392 R/w. Sec.397 R/w. Sec.34 of IPC and Sec.25 and 27 of Indian Arms Act.
3 SC No.1468/2014 8. Opinion of the Judge : Accused Nos.1 to 4are not found guilty J UD GM E N T The Police Inspector of Ashok Nagar Police Station, Bengaluru, has filed the charge-sheet in C.C.No.53608/2014 against the accused Nos.1 to 4 for the offences punishable under Sections 397 R/w. Sec.34 of IPC and Sec.25 and 27 of Arms Act.
2. The case of the prosecution in brief is that, on 20.07.2013 at about 1.15 A.M accused Nos.1 to 4 came in the motor cycle near Richmond Park and stopped the Car bearing No.KA-51/MB-8686 of CW.1 and 2 and accused No.1 by showing the Revolver, robbed amount of Rs.9,000/- and two mobiles and Car key from him and thereafter, accused No.2 shown a knife to CW.2 and robbed I-Phone and Bank Credit cards and purse and caused hurt to CW.2 on his left thigh by stabbing with a knife like a dragger and thereafter, accused Nos.1 to 4 went away from that place in the motor cycle and thereby committed the alleged offences u/Sec.397 R/w. Sec.34 of IPC and u/Sec.25 and 27 of the Arms Act.
4 SC No.1468/20143. Accused Nos.1 to 4 were on bail during crime stage. The learned Magistrate committed the case to the Principal City Civil and Sessions Judge in C.C.No.53608/2014 and in turn, the said case is assigned to this court for disposal in accordance with law. After committal, the accused No.1 to 4 were summoned to appear before this court. Thereafter, charge was framed against accused Nos.1 to 4 and read over to them. They pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of accused Nos.1 to 4, the prosecution has examined 14 witnesses. CW.1, 13, 3, 4, 12, 15, 22, 25, 23, 24, 14, 11, 9 were examined as PWs.1 to 13 respectively and got marked the documents at Ex.P.1 to P.32 and Material Objects at MOs.1 to 14. The prosecution was not able to examine other witnesses inspite of sufficient opportunity. The accused Nos.1 to 4 have been examined under Section 313 of Cr.P.C. They have not adduced evidence in their defence nor produced any documents on their behalf.
5. Heard arguments of both sides and perused the records.
6. Having regard to the materials placed on record and the submissions made by both the parties, the only point that arises for my consideration is:
5 SC No.1468/2014"Whether the prosecution proves beyond all reasonable doubt that the accused Nos.1 to 4 on 20.05.2017, at about 1.15 am., came in the motorcycle near Richmond Park, Bengaluru and stopped the Car bearing No.KA-51/MB-8686 of CW.1 and 2 and accused No.1 robbed an amount of Rs.9,000/-, two mobile phones and Car key from CW.1 by showing a Revolver, accused No.2 robbed CW.2 by snatching his I-Phone, Bank Credit Cards and purse by showing a knife and also caused hurt to CW.2 by stabbing a knife on the left thigh of CW.2 and thereby accused Nos.1 to 4 have committed the offence punishable under Section 392 R/w. Sec.397 R/w. Sec.34 of IPC and Sec.25 and 27 of Arms Act?"
7. My finding to the above point is in the Negative, for the following:-
R E A SON S
8. In order to prove its case, the prosecution has examined 14 witnesses. CW.1, 13, 3, 4, 12, 15, 22, 25, 23, 24, 14, 11 and 9 are examined as PW.1 to 13 respectively. PW.1 is the eye-witness.
6 SC No.1468/20149. CW.1 and CW.2 are cited as eye-witnesses to the incident in this case. The prosecution was able to secure CW.1 before the court and he was examined as PW.1. PW.1 in is evidence has deposed that his friend CW.2 Haridasalu had started a Restaurant at Whitefield. On 19.7.2013, at about 9.00 PM., he had been to the restaurant of CW.2. After having lunch at Imperial Hotel, he was driving his Car bearing No.KA-51/MB-8686. CW.2 was sitting next to him. PW.1 was on the way to his house at Berlie Street. On 20.07.2013, at about 1.30 am., when he came near Renier Street, Richmond Park, 4 persons came in three bikes from their behind and after overtaking their Car, they have stopped their bikes infront of their Car. The persons who came in bike screamed by stating that whether they do not know how to drive the Car. While he was getting down from his Car, one person took a key from his Car and another person was holding a dragger at the neck of CW.2. The person who took Car key from him asked to give things from him. When he delayed to give things, he took a revolver and fired bullet from a pistol at steering. Thereafter, he snatched Rs.1,000/- cash and two mobiles from him. Similarly, took purse and one mobile from CW.2. The person who was holding the dragger at the neck of CW.2 stabbed left thigh of CW.2 with a dragger. When this incident was happening other two persons were sitting on the bike. At that time, bikes were in start mode. After the incident, two persons fled from the place in two 7 SC No.1468/2014 scooters. Witness also identified accused No.3 before the court and deposed that accused No.3 is the person who has stabbed CW.2 with a dragger. He has also further deposed that Cw.2 got bleeding injury on his thigh. Thereafter, he was taken to the Seeta Mateja Hospital. Thereafter, he was taken to Mallya Hospital for treatment. He has given written complaint in that regard to the police. He has also deposed that he has participated in spot panchanama. Further deposed that he has identified accused No.1 in Test Identification Parade held on 21.9.2013. He has further deposed that accused Nos.2 to 4 who are present before the court were also present along with accused No.1. This version of the statement is denied by the counsel for accused persons. However, nothing has been elicited from the mouth of CW.1 that accused Nos.1 to 4 were not at all present at the time of alleged incident and accused No.3 has not stabbed CW.2 with a dragger.
10. With respect to the place of incident, the prosecution has examined CW.3 Mohammed Khan as PW.3. PW.3 in his evidence has stated that Police Inspector had called him to a park behind the office of TV-
9. He has deposed that the said place is shown as the place where the police has been assaulted. He has denied the suggestion that he has not affixed his signature on Ex.P.2 at Police Station. Evidence of PW.3 is denied by the accused persons.
8 SC No.1468/201411. In this case, sustaining of injury by CW.2 is corroborated by CW.11 Dr. Sunil Kumar. The prosecution has examined him as PW.12, who has deposed in his evidence about Mr. Haridasalu coming to his hospital along with Girish A.K. for medical history of assault on 27.2.2013 at about 3.10 am., He has further deposed that he examined the patient and found cut incised wound in left thigh measuring 3 inches bone deep with bleeding and muscle tear, suggestive stab injury and discharged on 24.7.2013. He has issued wound certificate at Ex.P.21 and opined that the above said injury was grievous in nature. This witness was cross-examined by the advocate for accused No.1. He has admitted in his cross-examination that the injury shown in Ex.P.21 could be caused in accident if sharp edged weapon pierced in the thigh.
12. The prosecution has also examined CW.23 Jagadish N, P.I. Heboogodi P.S., as PW.9. PW.9 in his evidence has deposed that he received information from control room that injured in an assault has been admitted to Mallya Hospital and he went to Mallya Hospital at about 1.45 am., on 20.7.2013. He has further deposed that in the said hospital, Haridasalu was taking treatment for his injuries and P.I. Girish was present in the Hospital and he has given a written complaint as per Ex.P.1 in the Police Station. He has not received endorsement from the 9 SC No.1468/2014 hospital for having received the complaint in the hospital. The same has been denied by the accused persons.
13. The prosecution has also got examined CW.15 Maruti Timmapur as PW.6. PW.6 in his evidence has deposed that, Police Inspector Murali had deputed him for bringing clothes of CW.2 Haridasalu. Accordingly, he visited Mallya Hospital and handed over the pant to CW.24 Murali. In his cross-examination, he has deposed that CW.2 himself has given the said MO.3 pant. He has denied a suggestion that he has not visited the Police Station. The evidence of this witness is denied by the accused persons.
14. The prosecution has examined CW.8 Augustin as PW.4. PW.4 in his evidence has deposed that around 5 years back, he had visited Ashok Nagar Police Station along with his friend. The police have shown one blood- stained pant to him and packed the same. He has admitted his signature on Ex.P.4 mahazar. In his cross- examination by the counsel for accused Nos.1 to 4, he has admitted that his name has been mentioned as Rowdy Sheeter in Ashok Nagar Police Station. He has deposed that he is often called to the Police Station. He has admitted that there is also a criminal case against Santhosh in Ashok nagar Police Station. He does not know who has prepared Ex.P.4 mahazar. He has denied a suggestion that Ex.P.4 is not prepared in his presence.
10 SC No.1468/201415. The prosecution has also got examined CW.12 Shanaz Fathima as PW.5. PW.5 in her evidence has deposed that she is a Senior Scientific Officer at FSL, Bengaluru. She has examined blood-stained seat cutting and swab and jeans pant and dragger type knife and she has given her opinion that the presence of blood was detected in blood-stained seat cuttings, jeans pant and dragger type knife. Presence of blood was not detected in control swab. Blood-stained seat cuttings, jeans pant and dragger type knife were stained with human blood and was of AB blood group. She has denied a suggestion that without examining the articles she has issued a certificate at the instance of police.
16. The prosecution has examined CW.13 Chandrika G a Senior Scientific Officer, FSL, Bengaluru as PW.2. PW.2 in her evidence has deposed that she has received one jeans pant and a dragger in this case from biology section of their laboratory for examination. She has examined the cut mark on the jeans pant. The cut mark on the jeans pant was on the left thigh portion below the front pocket. The dragger is having sharp edge on both sides. She has opined that the cut mark found in article 8 jeans pant could be caused due to dragger at article No.9.
17. The prosecution has also examined one B.C.Raveendra, Retired Asst. Director, FSL, Bengaluru as 11 SC No.1468/2014 PW.14. PW.14 in his evidence has deposed that on 20.7.2013, he has examined a Hyundai Verna Car bearing No.KA-51/MV-8686 parked in the compound of FSL, Bengaluru, and collected control swab, swab found on the dashboard, one plastic piece found beneath the front side of car, a blood-stained seat cutting on the left side of the car and a seat cutting and sent for investigation. PW.14 further deposed that on 4.9.2013, he received sealed covers of control swab, smoke, plastic piece, blood-stained cutting of car sheet and control cutting from the Ashok Nagar P.S., and after examining them issued his report as per Ex.P.11. This witness was also examined by the learned advocate for the accused.
18. The prosecution has also got examined CW.22 Ravi K.B., PSI of Ashok Nagar P.S., as PW.7. PW.7 in his evidence has deposed that he is working as PSI at Ashoknagar P.S., CW.24 had directed him to get the CCTV footage. On 22.7.2013, he has visited Elanja Hotel, situated at Richmond Road and collected the CCTV footage from the Hotel Manager through CD. He has also collected CCTV Footage from the owner of the house. He has also collected CCTV footage from Nanjappa Circle Traffic Management through CD and handed over the three CDs to CW.24. PW.7 in his cross-examination has admitted that he has not conducted mahazar at the time of 12 SC No.1468/2014 obtaining the CD and he has not issued notice to the owners of the house and hotel for obtaining the CD.
19. The prosecution has also examined CW.24 H.S.Murali, as PW.10. PW.10 in his evidence has deposed that he has taken the further investigation from PW.9 Jagadish. He went to the spot on the very day and conducted panchanama as per Ex.P.2 in presence of panchas. He has drawn the sketch of scene of offence, as per Ex.P.13. He has further deposed a Car bearing No.KA- 51/MB-8686 was parked on the spot. There was blood- stain marks inside the Car. There was smoke mark on the dashboard of the Car. He has taken the Car into his custody and it was sent to FSL through his staff after conducting panchanama as per Ex.P.14. The FSL has sent 5 covers containing control swab, smoke, plastic piece, blood-stained cutting of car sheet and control cutting from car seat which are reported in PF No.104/2013. On the same day, he has secured the CCTV footages. On 22.7.2013, he has sent PC 3346 to Mallya Hospital to collect clothes of Haridasalu, seized them under panchanama Ex.P.4. On 29.7.2013, the squad appointed by DCP has produced accused No.1 Goutham, accused No.3 Karthik and accused No.4 Vasudevan before him at 9.45 pm., He has arrested persons and interrogated the accused and took them to police custody.
13 SC No.1468/201420. PW.10 further deposed that on 30-07-2013, the accused No.1/Gautham taken him and panch witness to the scene of offence and thereafter, took them near Flyover situated in K.H. Road, Bengaluru and shown the place where ATM card, purse etc., were thrown. He does not find any thrown material objects on that spot. Thereafter, the accused No.1 took them to Banashankari, Srinagara, 13 th cross and shown bike No.KA-03/EH-1685, which was parked near building of Ashwathappa. He has seized that bike. The accused No.1 entered in the building owned by Ashwathappa, where he was a tenant and produced a bag containing 1. small revolver, 2. revolver pouch, 3. eleven live cartridge, 4. knife, 5. cash of Rs.1000/-. Along with bag, he seized all these articles in presence of Panch witnesses which are marked at Ex.P.15 and 16. The accused No.1 accompanied by the accused No.3/Karthik and accused No.4/Vasudevan on the same day took them to Avalahalli and shown Nala situated in 1 st main, Vittal Nagara, by stating that the mobiles were thrown in the Nala, but did not find any mobile in Nala.
21. P.W.10 further deposed that at the instance of accused No.1, the accused No.4/Vasudevan took him and Panch witness to his house situated at 7 th stage, 2nd cross, J.P. Nagara, Bengaluru and shown Karishma bike bearing Reg.No.KA-01/Y-5862, parked near the house. He has seized that bike in presence of Panch witnesses at Ex.P.17 14 SC No.1468/2014 and videographed all the seizure referred above. The admissible discloser statement made by accused No.1/Gautham and accused No.4/Vasudevan are marked at Ex.P.18 and 19.
22. PW.10 has further deposed that on 27-07-2013, he has recorded the statement of Haridasalu. On 22-07- 2013, he has recorded the statement of Agustin and Santhosh and on 20-07-2013, he has recorded the statement of Mohammad Ismail and Sheik Mohammad. On 29-07-2013, he has received report from Balaraj which is marked at Ex.P.20. He has recorded the statements of Nilakanta, Nandish Kumar, Vittal Kumar, Test Identification Paradepa Nayaka and Jagadish on 29-07- 2013. On 30-07-2013, he has recorded the statements of Ramesh Chopra and Francis and has produced the accused No.1, 3 and 4 before the court on 02-08-2013. On 08-08-2013, he has received the wound certificate of Haridasalu, which is marked at Ex.P.21.
23. P.W.10 further deposed that on 05-08-2013, he has filed requisition before the court, seeking permission to conduct Test Identification Parade of accused No.1, 3 and 4 and with the permission of the Court, he has requested Tahasildar, Yelahanka to conduct Test Identification Parade. The Tahasildar informed on 18-09-2013 that he fixed Test Identification Parade on 29-09-2013. He sent 15 SC No.1468/2014 the notice of Girish and Haridasalu for service, marked at Ex.P.23.
24. P.W.10 further deposed that on 03-09-2013, he has sent all the seized articles to FSL, Madiwala, Bengaluru for examination with requisition, marked at Ex.P.24. He has deputed his sub-ordinates to trace the accused No.2, but he was absconding. Due to his transfer on 02-10-2013, further investigation was taken over by PW-8/Rangappa. This witness identified accused No.1, 3 and 4.
25. PW.10 in his cross-examination has admitted that the panchas shown in Ex.P.2 Mahazar are not from the inhabitants of the locality. He has not given written notice to panchas. He has not cited one Nagaraj as witness and has not recorded his statement. He has prepared Ex.P.13 through Nagaraj. He has not sent any requisition to any authorities for preparing Ex.P.13 sketch. He has not conducted any mahazar at the time of seizing Car bearing No.KA-51/MB-8686. The car was taken to FSL by towing the same. The same thing has not been disclosed in the panchanama. He has sent written requisition to FSL to come to the spot. The said requisition is not found in the file. He has further deposed that without opening the materials in PF No.103/2013, he has sent the same to FSL. He has not given written requisition to Ravi for bringing the CD. He has sent MO.6-8 CD to 16 SC No.1468/2014 Gujarat FSL. He has not obtained any report from Gujarat FSL. He has further deposed that there was no blood- stains found on the knife recovered by him.
26. The prosecution has examined CW.14 Balappa Handigundh as PW.11. PW.11 in his evidence has stated that he worked as Tahasildar in Bengaluru North Addl. Taluk. He has deposed that on 07-08-2013 Ashoka Nagara Police Inspector gave requisition to conduct test identification parade of the Accused No.1/Gautham, Accused No.3/Karthik and Accused No.4/Vasudevan who were housed in Parappana Agrahara Jail. He has fixed date for Test Identification Parade on 21-09-2013 at 03.00 pm., in Parappana Agrahara Jail and issued notice on 18-09- 2013 to A.K. Girish and Haridasalu S/o. Sainath for their appearance in Parappana Agrahara Jail. The notices were sent to Police Inspector of Ashoka Nagara Police Station for service. The P.I has has served notices to both witnesses and reported the same to him. On 21-09-2013, he went to Parappana Agrahara Jail and secured the presence of Accused No.1. The Accused No.3 and 4 were not in the jail. The witnesses/A.K. Girish and Haridasalu S/o. Sainath were present near the jail, he has conducted Test Identification Parade inside the jail on 21-09-2013 from 03.00 pm to 04.30 pm. He has secured 6 accused persons bearing UTP No.8503-Manu, 8507-Chakravarthi, 6861-Gautham, 1496-Saleem, 6162-Raju and 8502- Sudhakar for Test Identification Parade. By mixing the 17 SC No.1468/2014 Accused No.1/Gautham with other 5 Accused, he has shown the above said Accused to CW.1-A.K. Girish. The witness A.K. Girish identified the Accused No.1/Gautham in Test Identification Parade. He has prepared the report of identification and taken the signature of A.K. Girish. Later on he has questioned A.K. Girish about the incident and recorded his answers in the format which is marked at Ex.P.29. Thereafter, he has shown the 6 Accused bearing UTP No.8503-Manu, 8507-Chakravarthi, 6861-Gautham, 1496-Saleem, 6162-Raju and 8502-Sudhakar for Test Identification Parade to Haridasalu S/o. Sainath, by mixing the Accused No.1-Gautham with other 5 accused persons. The witness Haridasalu S/o. Sainath identified the Accused No.1-Gautham in Test Identification Parade. He has prepared the report of identification and taken the signature of Haridasalu S/o. Sainath, which is marked at Ex.P.30. Later on he has questioned Haridasalu S/o.Sainath about the incident and recorded his answers in the format which is marked at Ex.P.31, he has not signed on Ex.P.30. He has kept the report of Test Identification Parade in his office. He has been transferred in 2016. Thereafter, his successor in office sent the Test Identification Parade report to XI ACMM, Mayo Hall, Bengaluru.
27. PW.11 is cross-examined by the advocate for accused Nos.1 to 4, wherein he has deposed that he has 18 SC No.1468/2014 not received any order from court for conducting Test Identification Parade. He has not served the notices to the witnesses through his staff. The police under Ex.P.26 reported the service of notice on Haridasalu. But he does not know whether the signature of the Haridasalu has been taken on the notice. He has admitted that in Ex.P.25, there is endorsement that the notice was not personally served on Haridasalu and over phone information was delivered. He has admitted that there is overwriting in Ex.P.31 in respect of date and time against the signature of witness. Such over-writings are made by witness and he has not made any initials. While conducting Test Identification Parade, he has undertaken the work of mixing the Accused and he has not selected the other Accused in the jail for Test Identification Parade similar to the age, color and height of Accused No.1. Ex.P.29 and 31 are in his handwriting. Ex.P.28 and 30 are in the handwriting of his staff and endorsement about identification is written by him. Initially, he has conducted Test Identification Parade from A.K. Girish. In Ex.P.30, he has mentioned that witness/Haridasalu identified 5 th Accused/Raju shown to him. There was no hurdle for him to submit Test Identification Parade Report immediately. At the time of his transfer, he has handed over all the records relating to Test Identification Parade of this case to Manjuanth/Tahasildar.
19 SC No.1468/201428. The prosecution has also examined CW.25 T. Rangappa, Dy.S.P. CID Bengaluru, as PW.8. PW.8 in his evidence has deposed that he has worked as Police Inspector at Ashok Nagar, Police Station from October, 2013 to June, 2015. On 3.10.2013, he has taken the matter for further investigation from CW.24 H.S. Murali and verified the investigation conducted by him. He further deposes about receiving FSL Report on 6.12.2013, surrendering of accused No.2 in Police Station on 8.1.2014 by producing anticipatory bail order, obtaining permission from the Commissioner of Police to file final report for the offence under the Arms Act on 30.3.2014 and receiving the ballistic report on 13.11.2014. PW.8 was cross-examined by the advocate for the accused Nos.2 to 4 and advocate for accused No.1 has adopted the cross-examination conducted by the advocate for accused Nos.2 to 4. Nothing was elicited from the mouth of this witness to disbelieve his version. Further he has also denied that he is deposing falsely to help PW.1 who belongs to his Department.
29. The prosecution has also examined CW.9 Francis as PW.13, who is a panch witness. This witness has not supported the case of the prosecution except that he had been to TV 9 office along with one Ramesh Chopra and police marking the place of offence on the road. This witness has also stated about visiting a house and showing a gun and a bag there. But he has stated that he does not 20 SC No.1468/2014 know what was there in the said bag. Even during the cross-examination by the learned Public Prosecutor, nothing worth was elicited from the mouth of this witness. The evidence of this witness is not of any avail to the prosecution. PW.13 has also been cross-examined by the learned advocate for accused No.1 to 4. He has denied that he is deposing falsely in order to help the prosecution.
30. The learned Public Prosecutor for State has argued that CW.1 complainant and CW.2 Victim are the eye-witnesses to the incident. CW.2 in his complaint has clearly alleged that the accused persons have committed the offence. CW.1 complainant in his evidence has clearly deposed that accused persons are involved in the incident. The evidence of CW.1/PW.1 is corroborated by CW.11/PW.12 Dr. Sunil Kumar and Ex.P.21 wound Certificate. The material objects used in this case is also seized by the Investigating Officer. The panchas have supported the case. FSL officers have also deposed regarding examination of material objects. Merely because CW.2 injured is not examined, the same is not a ground for acquittal. CW.9/PW.13, all have supported the prosecution case. The prosecution has proved its case beyond reasonable doubt. Hence, prays to convict the accused persons.
21 SC No.1468/201431. Per contra, the learned counsel appearing for the accused persons has argued that the complaint was filed against unknown persons. The accused persons were not at all named in the complaint. Investigating Officer has filed a charge sheet stating that accused No.2 has stabbed CW.2. However, in the evidence of CW.2/PW.1, he has deposed that it is accused No.3 who has stabbed CW.2. Further, though the prosecution has relied on MO.6 to 8 CDs, the dragger which has been seized and properly packed as shown in the said video and the MO.2 dragger produced before the court are completely different. There is no recovery of material objects by the Investigating Officer. The accused persons are not at all involved in any alleged offences. They are completely innocent of the offences. CW.1 has not identified any accused persons. On this ground, prays for acquittal of the accused persons.
32. In the present case, prosecution has cited only CW.1 and 2 as eye-witnesses to the incident. The prosecution was able to examine only CW.1 before the Court. CW.2 was not secured before the court inspite of issuance of summons, warrant and proclamation. On perusal of the information given by CW.1 to the police on 20.07.2013, the said complaint shows that CW.1 has mentioned the subject as unknown persons threatened him for extortion. It is specifically alleged in the complaint that some 3 to 4 unknown persons came in a motor 22 SC No.1468/2014 scooter. One person out of 4 persons stabbed CW.2 with a dragger. However, on perusal of the evidence of PW.1 before the court, he has deposed that 4 persons came in 3 bikes. Therefore, PW.1 is not clear as to whether the accused persons came in one bike, two bike and three bikes. If the complainant states that accused persons came in Pulsor Bike in the complaint and in his evidence, he has stated that they came in three bikes. Though this fact is not of much relevance to the act committed, in order to consider veracity of the witness, the same is relevant.
33. Further, on meticulous perusal of the complaint, the CW.1 complainant has stated that one of the persons from 4 persons has stabbed CW.2. However, in his evidence before the court, he has stated that it is accused No.3 who has stabbed CW.2. However, in the charge sheet, as per investigation conducted by the Investigating Officer, it is alleged that accused No.2 has stabbed CW.2. Therefore, the Investigating Officer has not conducted proper investigation as to who has stabbed CW.2. If PW.1 states that accused No.3 has stabbed CW.2, charge sheet materials show that accused No.2 has stabbed CW.2.
34. Further, in the present case, the Test Identification Parade has also been conducted by CW.14. CW.14 deposed regarding conducting of test Identification Parade. As per Ex.P.28 Test Identification Parade report, 23 SC No.1468/2014 CW.1 has identified accused No.1 in this case. However, as per Ex.P.1 complaint, it is specifically stated that they could not come to know about the registration numbers of scooters as there was dark. Therefore, when CW.1/PW.1 was not able to identify the numbers of the vehicles at that time due to the dark, it cannot be said that CW.1 has identified accused No.1 in this case.
35. Further, the Test Identification Parade Report, CW.1 A.K.Girish has identified the person in Sl.No.3 i.e., Goutham S/o. Venkatesh in the Test identification Parade. Further, as per Ex.P.31 Test Identification Parade Report, CW.2 Haridasalu has identified one person who has stood in Sl.No.5 i.e., Raju S/o. Venkatesh. Raju S/o Venkatesh is not at all arrayed as accused in this case. If the CW.1 was able to identify accused No.1 as the person who has stabbed CW.2, CW.2 ought to have identified accused No.1 in the Test Identification Parade itself. Therefore, it creates doubt as to commission of offence by the accused No.1.
36. Further, though the Tahasildar has given a requisition to the Superintendent of Jail as per Ex.P.27 to conduct the Test Identification Parade of accused No.1, 3 and 4, Test Identification Parade of accused No.3 and 4 was not at all conducted.
37. In the present case, CW.2 is the Star Witness. When CW.2 himself has got injured, it is none other than CW.2 who can give better evidence before the court to state about the injury sustained by him. In spite of issuance of 24 SC No.1468/2014 summons and warrants and proclamation by this court, CW.2 was not secured before this court. If at all CW.2 had sustained injury by accused persons, there was no impediment for him to come and depose before the court. Therefore, it creates a doubt as to commission of offence by accused persons.
38. Further, with respect to MO.2 knife, used by the accused persons, the knife which is shown in the CD and knife which is produced as MO.2 are completely different. Though it is shown in the video that accused No.1 has taken police and panchas to the place and shown MO.1 pistol and MO.2 dragger and the said material objects are properly packed and sent to FSL for examination, the prosecution was unable to explain as to what has happened to MO.2 knife which is shown in the video. Therefore, the prosecution has failed to connect the MO.2 knife to alleged offence.
39. The other witnesses examined as PW.2 to 13 being not eye-witnesses in this case, though this court cannot make any reliance on the evidence of such witnesses. From the evidence of CW.1/PW.1, CW.11/PW.12, it is evident that CW.2 had sustained injury as the evidence of CW.11/PW.12 and Ex.P.21 wound certificate is corroborative to the evidence of PW.1. However, there is nothing on record to connect the 25 SC No.1468/2014 accused persons to the alleged offences. Therefore, it creates doubt as to commission of the offence by accused Nos.1 to 4. Therefore, accused Nos.1 to 4 are entitled for benefit of doubt. Hence, I answer the above point in the Negative and proceed to pass the following:-
OR D E R Acting under Section 235(1) of Cr.P.C., the accused Nos.1 to 4 are acquitted for the offences punishable under Sections 392 R/w. Sec.397 R/w. Sec.34 of IPC.
The bail bonds and surety bonds of accused Nos.1 to 4 shall stand cancelled.
The properties seized in this case at MO.1 Revolver and MO.2 dragger are ordered to be confiscated by State and MO.3 to 14, being worthless are ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment Writer directly on Computer, typed by her, corrected, signed and then pronounced by me in the open court on this the 16th day of January, 2023) (SADANANDA NAGAPPA NAIK) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.26 SC No.1468/2014
A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Girish A.K. P.W.2 Chandrika G P.W.3 Mohd. Khan P.W.4 Augustin P.W.5 Shanaz Fathima P.W.6 Maruthi Thimmapur P.W.7 Ravi K.B. P.W.8 T. Rangappa P.W.9 Jagadish N P.W.10 H.S.Murali P.W.11 Balappa Handigundh P.W.12 Dr. Sunil Kumar P.W.13 Francis P.W.14 B.C.Raveendra
LIST OF WITNESSES EXAMINED FOR DEFENCE: -
NIL LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint by PW.1 Ex.P.1(a) Signature of PW.1 27 SC No.1468/2014 Ex.P.1(b) Signature of PW.1 Ex.P.2 Mahazar Ex.P.2(a) Signature of PW.1 Ex.P.2(b) Signature of PW.3. Ex.P.2(c) Signature of PW.10 Ex.P.3 Report by PW.2 Ex.P.3(a) Signature of PW.2 Ex.P.4 Spot Mahazar. Ex.P.4(a) Signature of PW.4. Ex.P.4(b) Signature of PW.10 Ex.P.5 Certifcate of Examination. Ex.P.5(a) Signature of PW.5 Ex.P.6 Sample Seal Ex.P.7 Report Ex.P.8 (Not marked) *jumped. Ex.P.9 Report. Ex.P.9(a) Signature of P.W.7 Ex.P.10 Report Ex.P.11 FSL Report. Ex.P.12 FIR in Cr.No.379/2013. Ex.P.12(a) Signature of P.W.12. Ex.P.13 Mahazar Ex.P.13(a) Signature of PW.10 28 SC No.1468/2014 Ex.P.14 Mahazar Ex.P.14(a) Signature of PW.10 Ex.P.15 &16 Photographs of vehicle. Ex.P.17 Mahazar Ex.P.17(A) Signature of PW.10 Ex.P.18 Voluntary Statement of A.1. Ex.P.18(a) Signature of A.1. Ex.P.18(b) Signature of A.4. Ex.P.19 Voluntary Statement of A.4. Ex.P.19(a) Signature of A.1 Ex.P.19(b) Signature of A.4. Ex.P.20 Statement of G.Balaraj Ex.P.21 Wound Certificate of Haridasalu Ex.P.22 Requisition dated 5.8.13. Ex.P.23 Notice dated 27.9.2010 Ex.P.24 Requisition dated 3.9.2013
Ex.P.25-31 Test Identification Parade Reports.
Ex.P.32 Notice to pancha Ex.P.32(a) Signature of Francis (P.W.13) LIST OF DOCUMENTS MARKED FOR DEFENCE:-
NIL LIST OF MATERIAL OBJECTS MARKED:- 29 SC No.1468/2014
M.O.1 Revolver
M.O.2 Dragger
M.O.3 Blue Jeans Pant
M.O.4 Blood Stained seat cutting
M.O.5 Swab
M.O.6-8 CDs
M.O.9 Bag
M.O.10 Pouch
M.O.11 Cartridges
M.O.12 Cassette
M.O.13 VCD
M.O.14 Plastic piece
(SADANANDA NAGAPPA NAIK)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.