Bangalore District Court
State By vs Veeramani on 28 November, 2019
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE BENGALURU CITY (CCH-66)
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 28th day of November, 2019
S.C.No.1028/2018
COMPLAINANT:- STATE BY
Police Inspector,
Subramanyapura Police Station,
Bengaluru.
(Rep. by Public Prosecutor)
V/s.
ACCUSED:- 1. VEERAMANI,
s/o Muniswamy,
Aged about 30 years,
R/at No.33,
Near Sunnadagudu Compound,
Chikkagowdanapalya,
Uttarahalli,
Bengaluru City.
[Accused No.1]
2. CHANDRASHEKAR,
s/o Kodanda Reddy,
Aged about 31 years,
R/at No.52,
Near Sunnadagudu Compound,
Chikkagowdanapalya,
Uttarahalli,
Bengaluru City.
[Accused No.2]
2 SC.No.1028/2018
3. MURUGAN,
s/o Pandu,
Aged about 28 years,
R/at No.45,
Near Sunnadagudu Compound,
Chikkagowdanapalya,
Uttarahalli,
Bengaluru City.
[Accused No.3]
(A1 to 3 by Sri. KMK, Advocate)
Date of Commencement of 04.06.2017
offences
Date of report of offences 04.06.2017
Name of complainant Sri. Krishnamurthy. G,
ASI
Date of recording of 12.06.2019
evidence
Date of closing of evidence 06.11.2019
Offence complained of U/s.399, 402 IPC
Opinion of the judge Acquittal
****
JUDGMENT
This is a charge sheet submitted by the Police Sub- Inspector, Subramanyapura police station against accused No.1 to 3 herein for the offences punishable under Sections 399, 402 IPC.
3 SC.No.1028/2018
2. The facts of the case of the prosecution can succinctly be narrated as follows:-
That on 04.06.2017 evening at about 05.00 hours while PW1 was in patrolling duty at Subramanyapura along with his staff at that time he received information that the accused No.1 to
3 along with other accused persons had assembled at open site near Gubbala Main Road at Bhuvaneshwari Nagar and they had armed deadly weapons such as iron rods, knife and wooden clubs and were making preparation to commit dacoity from the persons in that place. After receipt of this information, PW1-Sri. Krishnamurthy, ASI, Subramanyapura police station went to the place along with his staff, and after going to the said place he stopped his vehicle at some distance, after confirming that the accused persons were talking among themselves, and those persons are armed with deadly weapons are making preparation to commit dacoity saying that by showing deadly weapons to the peoples rob money and gold ornaments from the persons in that place. Immediately, PW1 along with his staff surrounded the accused persons and apprehended 5 accused persons and drawn the panchanama as per Ex.P2 and recovered two iron rods, two wooden clubs and one knife and brought the accused 4 SC.No.1028/2018 persons and seized items before PW2 and submitted a report as per Ex.P1 and crime No.269/2017 came to be registered for the offence punishable under Sections 399, 402 IPC.
3. After completion of the investigation, charge sheet came to be submitted before the committal court against the accused No.1 to 3. The committal court took cognizance of the offences and committed the case. After committal, the case has been made over to this court for disposal in accordance with law. The accused No.1 to 3 are on bail. After perusal of the materials available on record and after hearing the advocate for accused and the Public Prosecutor the charges were framed for the offence punishable under Sections 399, 402 IPC. The accused No.1 to 3 denied the charges levelled against them and they claimed to be tried. After securing the case properties, case was posted for trial.
4. In support of its case, the prosecution has totally cited 10 witnesses, out of which only 2 witnesses are examined as PWs.1 and 2, and got marked the documents at Exs.P1 and 2 and material objects were marked as M.Os.1 to 5. Inspite of issuance of summons other witnesses were not secured hence 5 SC.No.1028/2018 the prosecution has given up the other witnesses. After completion of the prosecution evidence, the accused No.1 to 3 were examined as required under Section 313 Cr.P.C. The accused denied the incriminating evidence appearing against them. However, they have not chosen to adduce any defense evidence on their behalf.
5. I have heard the arguments of both the sides.
6. Now the points that arise for my consideration in both cases are;
1. Whether the prosecution proves beyond all reasonable doubt that on 04.06.2017 evening at about 5.00 hours while PW1 was in patrolling duty within the limits of Subramanyapura police station, the accused No.1 to 3 along with other accused had assembled at open site near Gubbalala Main Road, at Bhuvaneshwari Nagar, armed with deadly weapons like iron rods, wooden clubs and knife, were making preparation to commit dacoity to the peoples who passed in that place and to rob the money and gold ornaments from them, and thereby committed an offence punishable under Section 399 IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused No.1 to 3 along with other accused assembled there in order to commit dacoity by robbing the gold ornaments to the peoples and thereby 6 SC.No.1028/2018 committed an offence punishable under Section 402 IPC?
3. What Order?
7. My answer to the above points are:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per the final order
for the Following
REASONS
8. Points No.1 & 2:- The points No.1 and 2 are interconnected with each other, hence for the sake of convenience, I would like to take down these points together for discussion and answer.
9. It is the case of the prosecution that on 04.06.2017 evening at about 05.00 hours the accused No.1 to 3 along with other accused persons had assembled at open site near Gubbala Main Road at Bhuvaneshwari Nagar and they had armed deadly weapons such as iron rods, knife and wooden clubs and were making preparation to commit dacoity from the persons in that place. The informants informed about this to PW1, after receipt of this information, PW1-Sri. Krishnamurthy, ASI, Subramanyapura police station went to the place along with his 7 SC.No.1028/2018 staff, and after going to the said place he stopped his vehicle at some distance, after confirming that the accused persons were talking among themselves, those persons are armed with deadly weapons and are making preparation to commit dacoity saying that by showing deadly weapons to the peoples rob money and gold ornaments from the persons who walks in that place. Immediately, PW1 along with his staff surrounded and apprehended 5 accused persons and drawn the panchanama as per Ex.P2 and recovered two iron rods, two wooden clubs and one knife and brought the accused persons and seized items before PW2 and submitted a report as per Ex.P1 and crime No.269/2017 came to be registered for the offence punishable under Sections 399, 402 IPC.
10. After completion of the investigation, charge sheet was submitted before the committal court against accused No.1 to 3. The committal court took cognizance of the offences and committed the offence and committed the case. After committal, the case has been made over to this court for disposal in accordance with law.
8 SC.No.1028/2018
11. In order to connect the guilt of accused No.1 to 3 to the charges leveled against them, the prosecution in all has cited 10 witnesses as CWs.1 to 10, out of 2 witnesses the prosecution could secure and examined only two witnesses as PW1 and PW2. PW1- Krishnamurthy, ASI, PW2 - Vajramuni. K, PSI are the complaint witnesses and got marked the documents at EXs.P1 and 2 and MOs.1 to 5 are identified, and rest of the prosecution witnesses are given up by the prosecution.
12. Apart from this oral evidence the prosecution has marked documents at Exs.P1 and 2. Ex.P1 is the complaint and Ex.P2 is the panchanama. Apart from these documents M.O.1 to 5 are identified. MO.1 and 2 are the iron rods, MO.3 and 5 are the wooden clubs and MO.4 is the knife. These are all the witnesses and the documents and material objects to prove the case of the prosecution.
13. After completion of the prosecution evidence, the accused No.1 to 3 were examined as required under Section 313 Cr.P.C. All the incriminating evidence appearing against the accused was read over and explained to them. The accused No.1 to 3 denied the incriminating statement and they have not 9 SC.No.1028/2018 chosen to adduce any defense evidence on their behalf. Hence the case was posted for argument. Heard the argument of both the sides.
14. I have carefully gone through the entire charge sheet materials. Keeping in view, the rival contention of both the sides, I proceed to answer the points for consideration. In this regard, I will now consider what the witnesses have stated before the court.
15. CW1 - Krishnamurthy, ASI was examined as PW1. In his evidence he has deposed that on 04.06.2017 evening at about 05.00 hours while PW1 was in patrolling duty at Subramanyapura along with his staff at that time he received information that the accused No.1 to 3 along with other accused persons had assembled at open site near Gubbala Main Road at Bhuvaneshwari Nagar and they had armed with deadly weapons such as iron rods, knife and wooden clubs and were making preparation to commit dacoity from the persons who passed in that place. After receipt of this information, PW1-Sri. Krishnamurthy, ASI, Subramanyapura police station went to the place along with his staff, and after going to the said place he 10 SC.No.1028/2018 stopped his vehicle at some distance, and after confirming that the accused persons were talking among themselves, and those persons were armed with deadly weapons are making preparation to commit dacoity saying that by showing deadly weapons to the peoples rob money and gold ornaments from the persons who passed in that place. Immediately, PW1 along with his staff surrounded and apprehended the accused persons and drawn the panchanama as per Ex.P2 and recovered two iron rods, two wooden clubs and one knife and arrested the accused persons and brought the accused persons and seized items before PW2 and submitted a report as per Ex.P1 and crime No.269/2017 came to be registered for the offence punishable under Sections 399, 402 IPC. This witness has identified the material objects seized under Ex.P2 and same are marked as MO.1 to 5.
16. This witness was subjected to cross-examination by the defense counsel. During the cross-examination he has admitted that there is no difficulty for him to mention the address of the pancha witnesses. However, he has denied the suggestion that he has not gone to the place and the accused persons were 11 SC.No.1028/2018 not there in the place and the accused No.1 to 3 were wrongly involved in the present case.
17. CW2 - Vajramuni. K, PSI was examined as PW2. In his evidence he has deposed that on 04.06.2017 while he was in the station PW1 came to the station at about 8.30 hours and submitted Ex.P1-report along with 5 accused persons and seized items. After receipt of the report, he registered crime No.269/2017 for the offence punishable under Sections 399, 402 IPC and subjected the seized items in station P.F. No.104/2017 and produced the same before the court, and after arresting the accused persons he recorded the voluntary statement of the accused persons and produced the accused persons before the Magistrate with the remand application. After completion of the investigation, he submitted the charge sheet before the court. This witness has identified the accused persons, and during the course of cross-examination this witness denied the suggestion that he has not conducted any investigation and he has not recorded any statement and he has filed false charge sheet against the accused persons and he has falsely deposed before the court.
12 SC.No.1028/2018
18. This is the oral evidence led by the prosecution in order to prove the quilt of the accused persons. Apart from oral evidence the prosecution has exhibited the document as Exs.P1 and 2. Ex.P1 is the complaint and Ex.P2 is the panchanama and MO.1 to 5.
19. I have carefully gone through evidence of PWs.1 and 2, PWs.1 and 2 are the police officials. The entire case of the prosecution rests on the testimonies of PWs.1 and 2. According to testimony of these two witnesses, 5 persons were assembled at the place of occurrence and they were found in possession of deadly weapons. This being so now this Court has to determine as to whether the accused No.1 to 3 have committed the offences under Sections 399 and 402 IPC. In other words the ingredients of said sections have been proved by the prosecution or not. However before this Court can do so, it is necessary to refer to the case law on the subject.
20. I would like to rely upon the decision of the Hon'ble Supreme Court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502 13 SC.No.1028/2018
21. This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein it was observed:-
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."
The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of Nine 14 SC.No.1028/2018 appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity.
22. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 and 402 IPC. As I have discussed herein above, prosecution has not examined all the material witnesses placed, one member of the raiding party. The prosecution was under obligation to establish that the assembling of the accused persons is for making preparation to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity, and they were 15 SC.No.1028/2018 preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found in vacant place situated at Subramanyapura, Gubbbalala Main Road, Bhuvaneshwari nagar, Bengaluru, it cannot be held that they had assembled there for preparation to commit dacoity.
23. It is true that so far as the offence under Section 402 IPC is concerned, it may be mentioned that this section can be applied to mere assembling without proof of other preparation. The offence under Section 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case, it is not in dispute that, at the spot only five persons are shown to have been apprehended.
24. It is significant to mention here that, the prosecution has examined only 2 witnesses who are official witnesses and no member of raiding party has been examined. Non-examination of any of the independent witness and member of the raiding party is fatal to the case of the prosecution.
25. Another important aspect to be noted is that, it is the testimonies of PWs.1 and 2 which support the case of the prosecution. As it is discussed earlier, no independent witnesses 16 SC.No.1028/2018 are there to support the case of the prosecution. The testimonies of PWs.1 and 2 are not supported by any independent of the witnesses. However, the prosecution has failed to secure any of the charge sheet witnesses. Hence, in the present case, the prosecution tried to bring home guilt of the accused persons by relying upon the versions of police officials PWs.1 and 2. A bare perusal of their version clearly reflects the same to be of stereo type. Hence, in my view, it will be highly unsafe to rely upon their version.
26. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has failed to bring home the guilt of accused No.1 to 3 beyond all reasonable doubt, by placing convincing and cogent evidence. Therefore, benefit of doubt shall go in favour of accused No.1 to 3. For the foregoing reasons, I answer the above points No.1 and 2 in the 'Negative'.
27. Point No.3:- In view of answering point No.1 in the negative, I proceed to pass the following :
ORDER Accused No.1 to 3 are found not guilty of the offence punishable under Sections 399, 402 IPC. 17 SC.No.1028/2018 Acting under Section 235(1) Cr.P.C., the accused No.1 to 3 are hereby acquitted.
Bail bonds of accused No.1 to 3 and their surety bonds stand cancelled.
Note:- Office is hereby directed to preserve entire case file along with MO.1 to MO.5 in connection with the split up case registered against absconding accused.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 28th day of November, 2019) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:-
PW1 : Krishnamurthy
PW2 : Vajramuni. K
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:-
Ex.P1 Complaint
Ex.P2 Panchanama
18 SC.No.1028/2018
LIST OF MATERIAL OBJECTS MARKED:-
MO.1 & 2 Iron rods,
MO.3 Wooden club
MO.4 Knife
MO.5 Wooden club
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE:-
Nil (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.