Bangalore District Court
State By Yelahanka New Town vs Saleem on 18 April, 2023
IP
KABC030812132019
NAIK
Digitally signed
by I P NAIK
Date: 2023.04.18
IN THE COURT OF THE 30TH ADDL.CHIEF15:23:49 +0530
METROPOLITAN MAGISTRATE, BENGALURU
Dated: This the 18th day of April, 2023
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 26462/2019
Date of Offence 25.05.2016
Complainant State by Yelahanka New Town, Police
Station
V/s.
Accused 1- Saleem,
2- Mohammed Shafi,
(Case against A1 & 2 split up)
3-Shambulal,
S/o.Kaluram,
Aged about 50 years,
R/at.No.123, Chamundinagar
Main Road, R.T.Nagar Post,
Bengaluru City,
Karnataka.
2 C.C.No.26462/2019
Offences U/s.454, 380 , 411 of IPC.
Plea Recorded on 10.10.2022 and accused
No.3 has abjured guilty.
313 Statement recorded on: On 06.04.2023
Final Oder Accused is Acquitted
Date of Order 18-04-2023.
*****
JUDGMENT
The PI of Yelahanka New Town, Police Station has filed charge sheet against accused persons for the offences punishable U/s.454, 380 , 411 of IPC.
2. The brief facts of the prosecution case are as follows:
House property bg.No.35, belongs to CW1 situated at 4 th B cross, 1st Main Road, Yelahanka New Town, within the territorial limits of Yelahanka New Town Police Station. On 25.06.2018, in furtherance of the common intention, accused No.1 & 2 tress passed into the house of CW1 and stolen 377 gms of golden ornaments, and handed over the said articles to accused No.3.
Hence, accused are charge sheeted.3 C.C.No.26462/2019
3. In this regard, CW10 PSI, based on that he has registered the case in Cr.No.154/2016 and forwarded FIR to this court. Thereafter, he is rushed to the spot and conducted SO mahazar. The Chikkajala Police have arrested the accused No.1 & 2 under body warrant in Cr.No.79/2019. During interrogation, accused No.1 voluntarily confessed that they have stolen golden ornaments from the house of CW1, same are sold and pledged in Ram Jewellers, Sultan Palya.
4. Based on that, he has summoned the accused No.3. Accused No.3 refused to produced the golden ornaments. Immediately, he has arrested and produced him before this court. Thereafter, he has taken to Police Custody for the period of 3 days. During interrogation, he has admitted that he has received the stolen articles from the accused No.1 & 2. The said golden ornaments are melted and the said melted gold are sold to the Balaji Refinery Shop situated at Nagarthpet. Based on this 4 C.C.No.26462/2019 statement, accused No.3 is escorted to Balaji Refinery Shop on 23.06.2019 and seized 120 gms of melted gold in the presence of witnesses by drawing mahazar and the same is reported under P.F.No.44/2019 on 24.06.2018 IO has summoned the CW1 for identification of the golden ornaments and also to show the accused persons. He had identified the golden ornaments and the same are handedover to the CW1. After collecting documents from the PW5, IO submitted charge sheet against the accused No.1. to 3.
5. During course of investigation, accused No.1 & 2 secured under body warrant. Thereafter, accused were not enlarged on regular bail. In order to secure accused No.1 & 2 repeatedly issued Summons, NBW and Proclamation. Inspite of that, accused are not traced out. Hence, against accused No.1 & 2 ordered to be split up.
6. The Charge is read over and explained to the accused No.3 in the language known to him, he pleaded not guilty and 5 C.C.No.26462/2019 claimed to be tried, hence, the prosecution is called upon to prove its case.
7. In order to prove the guilt of the accused person, prosecution has examined 6 witnesses as PW1 to PW3 and 8 documents are got marked as Ex.P.1 to P.8. In order to secure other remaining witnesses, this court repeatedly issued Summons, NBW and Proclamation. But the concerned police failed to secure these witnesses. Finally this court opined that, there is no meaning in reissuing of Summons, NBW and Proclamation. Accordingly, prayer of learned Sr.APP is rejected and other remaining witnesses are dropped.
8. Thereafter statement of accused recorded U/s.313 of Cr.P.C, the accused person denied the incriminating evidence, he has not chosen to lead defence and no documents produced on his behalf.
6 C.C.No.26462/2019
9. Heard both the side and perused the material evidence on record.
10. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, on 25..06.2018, in furtherance of the common intention, accused No.1 & 2 tress passed into the house of CW1 situated at property bg.No.35, belongs to CW1 situated at 4 th B cross, 1st Main Road, Yelahanka New Town, within the territorial limits of Yelahanka New Town Police Station and thereby committed an offence punishable under Section 454 of IPC., within my cognizance.?
2. Further, you accused person on the aforesaid date, time, place and under aforesaid circumstances, accused persons have stolen 377 gms of golden ornaments, and handed over the said articles to accused No.3 and thereby committed an 7 C.C.No.26462/2019 offence punishable under Section 380 of IPC and within my cognizance.?
3. Further, you accused person on the aforesaid date, time, place and under aforesaid circumstances, accused No.1 & 2 have handedover the said golden articles to the accused No.3 and thereby committed an offence punishable under Section 411 of IPC and within my cognizance.?
4. What order.?
11. By considering the oral and documentary evidence and hearing of the parties, my answer to the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : IN THE NEGATIVE
Point No.4 : As per final order
......................... for the following.., REASONS 8 C.C.No.26462/2019
12. Point No.1 to 3 :- In this case, PW1 stated that, on 26.05.2016, went to Ooty along with police and seized and at that time, he found that, house hold articles were scattered and found that, 400gms of golden ornaments are stolen. In this regard, he has lodged the complaint. Thereafter, police came to the spot and conducted mahazar.
13. After 6 to 7 months, police summoned him for identification of the ornaments. He went to the Police Station and identified the ornaments as Ex.P.3. this witnesses is failed to identify the accused.
14. PW3 stated that, he has stated he has not supported the prosecution case. The learned Sr.APP has cross-examined this witnesses. Nothing is elicited from the mouth of this witnesses. He has also not supported the prosecution case and he has turned fully hostile to the prosecution case.
9 C.C.No.26462/2019
15. PW4 to Pw6 are investigating officer, they have deposed regarding registration of the case, release of the articles based on the voluntary statement of the accused No.1 and have submitted charge sheet against the accused persons.
16. By considering the entire evidence it is totally unchallenged one. By considering the oral testimony of PW1, it reveals that, Ex.P.3, the golden articles are stolen by some unknown persons. The most important fact is that the stolen articles are recovered from the hands of the accused persons. But the prosecution has failed to prove this fact. In order to secure PW3 and PW6 who are independent witnesses prosecution has failed. Mere say of the IO itself is not substantive evidence, it requires corroboration from the independent witnesses. By considering the oral testimony of PW1 who has recovered the articles based on the statement of the accused No.1 Therefore, at this stage, this court has relied on the Judgment of Hon'ble Apex Court reported below:- 10 C.C.No.26462/2019
AIR 1984 SC 1622 Sharad Biradhi chand Sarda Vs. state of Maharashtra If the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and must be or should be proved' as was held by this court in Shivaji Saheb Rao Bodade Vs. State of Maharashtra (AIR 1972 SC 2622) where the following observaions were made:
"certainly it is a primary principle that the accused must be and not merrely may be gu8ilty before a court can convict and the mental distance between 'may b' and ' must be' is long and divided value conjectures from score conclusions.
2: the facts so established should be consistent only with hypothesis of the guilt of the accused, that it is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. the circumstances should be of a conclusive nature and tendency.
4. they should exclude very possible hypothesis except the one to be proved and
5. these must be a chain of evidence so complete as not to leave any reasonable round for the conclusion consistent with the innocence 11 C.C.No.26462/2019 of the accused and must show that in all human probability the act must have been done by the accused.
17. By following the said principles laid down by their lordship I have examined the prosecution case. In this case, the prosecution not proved the recovery of the stolen articles from the custody of the accused persons. According to prosecution case, the stolen articles are received from the accused No.1 & 2 and same are placed into the hands of the accused No.3 and he has old it in favour of PW1. But the said witnesses has not supported the prosecution case. Though the learned Sr.APP has cross-examined him nothing worth is elicited from the mouth of PW2. In circumstantial evidence, prosecution must prove each circumstances independently without breaking the chain link. By considering the oral testimony of the PW1 it reveals that, the properties are stolen by some unknown persons. But prosecution has to prove that the said articles recovered from the custody of the accused by circumstantial evidence. But the prosecution has utterly failed to prove the recovery of the stolen articles from the custody of the accused. Therefore, this dis link in the circumstantial evidence 12 C.C.No.26462/2019 creates doubt in the prosecution case. Hence, it is held that, prosecution utterly failed to prove the guilt of the accused persons beyond reasonable doubt. Accordingly, Point No.1 to 3 is answered in the Negative.
18. Point No.4: In view of the Negative findings on the above point No.1 to 3, I proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused No.3 is acquitted of the alleged offences2 punishable U/s.454, 380, 411 of IPC.
The bail bond of accused person and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused person beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
Office is directed to keep the entire records in the split up case registered against the accused No.1 & 2.
(Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 18 th day of April, 2023).
(I.P Naik.) 30 A.C.M.M., B'lore.
th 13 C.C.No.26462/2019 ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Praveen Kumar
P.W. 2 : Balaji Pawar
P.W.3 : Rathan Lal
P.W.4 : Ashok Kumar
P.w.5 : Muttu Raj.D
P.W.6 : Anil Kumar
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.2 : Mahazar
Ex.P.3 : Photo
Ex.P.4 : Statement of witnesses
Ex.P.5 : Mahazar
Ex.P.6 : SO Mahazar
Ex.P.7 : Statement of witnesses
Ex.P.8 : FIR
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL 14 C.C.No.26462/2019
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (I.P.Naik) 30th Addl.C.M.M., B'lore.
15 C.C.No.26462/2019Judgment pronounced in Open Court vide separate:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused No.3 is acquitted of the alleged offences2 punishable U/s.454, 380, 411 of IPC.
The bail bond of accused person and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused person beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
Office is directed to keep the entire records in the split up case registered against the accused No.1 & 2.
(I.P.Naik) 30 th Addl.C.M.M., B'lore.16 C.C.No.26462/2019