Bangalore District Court
State By: Police Inspector vs 2 Santhosh Xavier @ Santhosh @ on 15 November, 2017
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.PATIL MOHANKUMAR BHEEMANAGOUDA
B.Com.,LL.B.,(Spl)
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 15th DAY OF November, 2017
S C No. 834/2015
COMPLAINANT: State by: Police Inspector,
Ashok Nagara Police Station,
Bengaluru.
(Reptd. by Public Prosecutor)
/ Vs /
ACCUSED: 2 Santhosh Xavier @ Santhosh @
Masana S/o late Francis, Aged
about 21 years, R/at Shivu's
rented house, 2nd Main road, 5th
cross, Vinayaka Nagara, Adugodi,
Bengaluru.
(A2 by Sri. T.S., Adv)
Date of 18.02.2015
Commencement of
offences
Date of report of 18.02.2015
offences
Name of complainant Sri. Hajaresh A Killedar,
Police Sub-Inspector
Date of recording of 17.03.2017
evidence
2 S.C.No.834/2015
Date of closing of 10.10.2017
evidence
Offence complained U/s. 399 and 402 of IPC
of
Opinion of the judge Acquittal
****
JUDGMENT
This is a charge sheet filed by the Ashok Nagar police station, as against accused, for the offences punishable u/Sec.399 and 402 of IPC.
2. Brief facts of prosecution case are as follows:-
The complainant Hajaresh A Killedar is the police inspector, working in Ashok Nagara PS. He states that on 18.2.2015 at about 7.00PM, when he was patrolling, on credible information, within the jurisdiction of Ashok Nagar police station, Hosur road, nearby Christian cemetery, about 5 - 6 persons had gathered behind the tree and they were making preparation to commit dacoity by snatching cash, mobile phone and gold ornaments of the general public passing on the said road. The complainant states that, he immediately summoned the constables i.e. CW10 3 S.C.No.834/2015 to CW14 and so also he summoned two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas left the police station and went towards the Hosuru road junction. They stopped the vehicle at some distance from the cemetery and by observing the assailants from a distance, they got themselves satisfied that the assailants were making preparation to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that these assailants were holding deadly weapons in their hands and they were hiding behind the tree in the Christian cemetery on Hosuru Road and they were taking among themselves that, they would commit dacoity by robbing passers by of their cash, gold and mobile phones. After confirming this aspect, the complainant along with his staff surrounded the accused, they were able to catch hold of 4 persons. However, two accused persons managed to escape from the scene of offence. He further states that the accused did not give proper answers for 4 S.C.No.834/2015 their assembling in a said isolated place. The complainant states that, he arrested accused No.1 Stephan Raj and upon search of the accused, he recovered one long.
Similarly, Prakash HC 4393 and PC 2304 CW13 Mallikarjuna have caught hold accused No.2 Santhosh Xavier and recovered one knife,. HC 5669 i.e.CW11 Gavigowda and PC-2327 Mahesh caught hold of accused No.3 Igneshiyas Immanuel and upon search, he recovered wooden club from him. Similarly, PC8588 i.e. CW12 Gangadhar caught hold of A4 Amal raj and upon search, they recovered one wooden club. Upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity. The complainant further states that, he seized the deadly weapons, from the these accused persons and in the presence of two panchas i.e. CW2 Mani and CW3 Periyaswamy and conducted the mahazar. Thereafter, he came to the police station along with accused and lodged the complaint.
3. Learned XI ACMM, Bangalore, took cognizance of the offences p/u/Sec.399 and 402 of IPC. A3, A5 and A6 5 S.C.No.834/2015 remained absconding since long and there were no chances of securing the accused in reasonable time. Hence, case against A3, A5 and A6 are ordered to be split up and registered a separate case and proceeded against A1, A2 and A4. After committal, the case is numbered as S.C.No.834/2015 and then made over to this court, for disposal in accordance with law. However, A4 remained absconding since long and there were no chances of securing the accused in reasonable time. Hence, case against A4 is ordered to be split up and registered a separate case. After hearing, charges were framed and explained to A1 and A2 for the offences p/u/Sec.399 and 402 of IPC. However, A1 and A2 pleaded not guilty of the charges leveled against them and they claimed to be tried. However, A1 remained absconding since long and there were no chances of securing the accused in reasonable time. Hence, case against A1 is ordered to be split up and registered a separate case
4. The prosecution in support of its contention had totally cited 15 witnesses i.e. CW1 to CW15. However, the 6 S.C.No.834/2015 prosecution was able to secure and examine 4 witnesses i.e. PW1 to PW4 and documents at Ex.P.1 to Ex.P.5 and M.O.1 to M.O.4 were marked. The prosecution was able to secure and examine only CW1, CW2, CW11 and CW15. CW4 to CW10, CW12 to CW14, were given up by the prosecution. Even though, sufficient opportunity was given, prosecution was unable to secure CW3. Hence, prayer of learned PP was rejected and CW3 were dropped and prosecution side was closed.
5. Thereafter 313 statement was recorded. The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against them. The accused not chosen to lead any defense evidence on their behalf.
6. Heard argument from both sides.
7. Now the points that arise for my consideration are:
7 S.C.No.834/2015
1. Whether the prosecution proves beyond all reasonable doubt that on 18.2.2015, at about 7.00 PM. within the limits of Ashok Nagar P.S behind the tree in the Christian cemetery on Hosuru Road, A2 along with absconding accused No.1, 3 to 6, holding deadly weapons like knife, long chopper and two wooden clubs, were making preparations to commit dacoity of passers by and to rob the valuables from them, and thereby committed an offence punishable u/Sec. 399 of IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place, A2 along with absconding accused No.1, 3 to 6 had assembled there to commit dacoity by robbing the valuables of passers by and thereby committed an offence p/u/Sec. 402 of IPC?
3. What Order?
8. 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
9. POINT NOs.1 AND 2: Since these points are interconnected with each other, for the sake of 8 S.C.No.834/2015 convenience, I would like to take these points together for common consideration.
10. The complainant has been examined as PW3. He states that, He states that on 18.2.2015 at about 7.00PM, when he was patrolling, received credible information that, within the jurisdiction of Ashok Nagar police station, Hosur road, nearby Christian cemetery, about 5 - 6 persons had gathered behind the tree and they were making preparations to commit dacoity by snatching cash, mobile phone and gold ornaments of the general public passing on the said road. The complainant states that, he immediately summoned the constables i.e. CW10 to CW14 and so also he summoned two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas left the police station and went towards the Hosuru road junction. They stopped the vehicle at some distance from the cemetery and by observing the assailants from a distance, they got themselves satisfied 9 S.C.No.834/2015 that the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that these assailants were holding deadly weapons in their hands and they were hiding behind the tree in the Christian cemetery on Hosuru Road and they were talking amongst themselves that, they would commit dacoity by robbing passers by of their cash, gold and mobile phones. After confirming this aspect, the complainant along with his staff surrounded the accused and after chasing the accused, they were able to catch hold of 4 persons. However, two accused persons managed to escape from the scene of offence. He further states that the accused did not give proper answers for their assembling in a said isolated place. The complainant states that, he arrested accused No.1 Stephan Raj and upon search of the accused, he recovered one long. Similarly, Prakash HC 4393 and PC 2304 CW13 Mallikarjuna have caught hold accused No.2 Santhosh Xavier and recovered one knife,. HC 5669 i.e.CW11 Gavigowda and PC-2327 Mahesh caught hold of accused 10 S.C.No.834/2015 No.3 Igneshiyas Immanuel and upon search, he recovered wooden club from him. Similarly, PC8588 i.e. CW12 Gangadhar caught hold of A4 Amal raj and upon search, they recovered one wooden club. Upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity. The complainant further states that, he seized the deadly weapons, from the these accused persons and in the presence of two pancahs i.e. CW2 Mani and CW3 Periyaswamy and conducted the mahazar. Thereafter, he came to the police station along with accused and lodged the complaint.
11. PW3 has elaborately deposed of having arrested the accused persons and for having seized the deadly weapons from the accused persons. He further deposed that in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.1. He also identifies the deadly weapons seized i.e. long chopper, knife and two wooden clubs and accordingly, they were marked as M.O.1 to 11 S.C.No.834/2015 M.O.4. He states that he has conducted panchanama as per Ex.P.1 in the presence of CW2 and CW3. He identifies the accused persons. PW3 has been cross examined by the leaned advocate for accused. Further on careful perusal of cross examination, PW3 in his cross examination denies the suggestion that, though he has not at all received any information, he deposes falsely before the court. PW3 denies the suggestion that, nearby the scene of offence, general public and vehicles frequently move. PW3 also denies the suggestion that, he has cooked up a false complaint as per Ex.P.3 in his office and planted M.O.1 to M.O.4 for the purpose of this case. He further admits the suggestion that, similar kind of M.O.1 to 4 are generally available at shops.. PW3 denies the suggestion that even though A2 has not at all committed the alleged offences, he lodged false complaint against them. PW3 denies the suggestion that A2 was not at all present at the scene of offence at the material point of time and he took custody of A2, from his house and then registered false case against him.
12 S.C.No.834/2015
12. PW2 Gavi Gowda, Head constable working in Ashok Nagar PS. He is one of the staff members, who had accompanied PW3 and arrested the accused persons. The evidence of this witness corroborates the evidence of I.O. He identifies the accused and material objects.
13. PW4 Rangappa. PI, Ashok Nagar PS, is the I.O, who has conducted the investigation. He states that on 18.2.2015 when he was SHO, PW3 Hajaresh A Killedar came to the police station along with accused, seized weapons and other articles and panchanama and lodged a complaint against the accused persons. He has registered the case in Cr.No.126/2015 and submitted FIR to the court. He identifies the complaint at Ex.P.3, FIR at Ex.P.4. He further deposes that, he received M.O.1 to M.O.4 from the complainant and subjected them to P.F.No.45/2015 and submitted requisition to the court. He further states that, later on he recorded the statements of PW1 Mani and CW3 Periyaswamy. PW4 further states that, thereafter he has recorded the voluntary statements of accused persons. He 13 S.C.No.834/2015 identifies the accused who was produced from central jail, through Video conference.
14. PW1 Mani is one of the independent mahazar witness to the seizure of mahazar at Ex.P.1. However, this witness totally turned hostile to the prosecution case. He states that, about 1 ½ years back, while he was at his shop, the Ashok Nagar have took his signature at Ex.P.1. He identifies his signature at Ex.P.1(a). He categorically states that, he was not taken to any spot near the Christian cemetery, no deadly weapons were seized and no mahazar at Ex.P.1 was conducted in his presence. The learned PP treated the witness as hostile and cross examined. However, nothing material was elicited so as to support the case of prosecution.
15. It is specific case of prosecution that complainant i.e. I.O had received credible information that the accused persons had assembled at the spot with an intention to commit dacoity, they had assembled with deadly weapons knife, long chopper, wooden clubs and they 14 S.C.No.834/2015 were making preparation to commit dacoity. PW3 has specifically stated that, upon receipt of credible information, he immediately summoned two independent panch witnesses i.e. PW1 Mani and CW3 Periyaswamy. He requested them to act as panchas, upon which the pancahs have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that, they stopped their vehicle at some distance from the spot and observed the accused persons. I.O was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with staff have surrounded the accused and they were able to apprehend accused persons i.e. A1 to A4. PW3 further stated that, from the possession of the accused, he has recovered the deadly weapons, used for committing dacoity. He states that in the presence of two independent panchas i.e., PW1 Mani and CW3 Periyaswamy, he has seized the articles i.e. knife, long chopper and two wooden clubs. He has conducted the mahazar as per Ex.P.1 in the presence of those two 15 S.C.No.834/2015 material and independent mahazar witnesses. The burden is very heavy upon the prosecution to prove the mahazar as per Ex.P.1, to prove that these Material objects were seized from the accused persons, who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized knife, long chopper and two, wooden clubs. In order to prove this, evidence of PW2 to PW4 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. PW1 Mani and CW3 Periyaswamy.
16. It is pertinent to note that, PW3 has stated that M.O.1 to M.O.4 were seized from the alleged possession of Accused No.1 to 4 and lodged complaint at Ex.P.3 and drawn Ex.P.1 at the alleged scene of offence. It is pertinent to note that PW3 deposes that on 18.2.2015 Accused No.1 to 4 by holding M.O.1 to M.O.4, were making preparation to commit dacoity at the scene of offence and then himself and his staff, have arrested Accused No.1 to 4 16 S.C.No.834/2015 and at that juncture, he recovered M.O.1 to M.O.4 from Accused No.1 to 4 under Ex.P.1. However, at the same time, the very evidence of PW3 is not corroborated by the evidence of PW1 Mani and CW3 Periyaswamy who being the direct and independent witness to the alleged incident. Evidence of PW1 discloses with material contradictions, since he disputes his previous statement at Ex.P.2, said to have been given by him before I.O. More so, PW1 deposes that Ex.P.1 has not been drawn at the alleged scene of offence. He also deposes that M.O.1 to M.O.4 were not at all seized in his presence under Ex.P.1. Added to this, PW1 has not identified accused during the course of his evidence. The prosecution was unable to secure and examine another independent mahazar witness CW3.
17. The only evidence on record is that of PW2 and PW3 who are the official witnesses and the I.O. PW4. No doubt, PW3 has deposed of having got credible information about the commission of offence by the accused. He has deposed of having secured the panchas, gone to the spot 17 S.C.No.834/2015 and found that, the accused had assembled and they were making preparation to commit dacoity. However, the evidence of these official and interested witnesses is not at all corroborated by the evidence of independent mahazar witnesses i.e. PW1 Mani and CW3 Periyaswamy. PW1 has totally turned hostile. I am of the opinion that, it is not safe to rely only on the evidence of these interested and official witnesses. The prosecution was unable to secure another independent mahazar witness CW3. Under the circumstances, I am the opinion that it is not safe to rely upon of evidence of PW2 to PW4 alone. Though it is specific case of prosecution that mahazar as per Ex.P.1 was conducted and M.O.1 to M.O.4 were recovered in the presence of CW2 and CW3, one of the independent mahazar witness CW2/PW1 has turned hostile and the prosecution was unable to secure CW3.
18. In my view, assuming that, the evidence of PW2 to PW4 supports the case of the prosecution, basing on their sole testimony, that too without there being any 18 S.C.No.834/2015 independent corroborative evidence, it is not at all safe to connect the guilt of Accused. Upon careful scrutiny of evidence of PW2 to PW4, it gives rise to lot of suspicion in the mind of the Court that Accused have committed the alleged offences. Hence, under such circumstances, certainly, benefit of doubt has to go in favour of Accused, since prosecution has failed to bring home the guilt of Accused, beyond all reasonable doubt, by placing convincing and cogent evidence of independent witnesses. Prosecution has failed to place any iota of convincing and cogent evidence to hold that A2 along with other accused persons, by forming unlawful assembly, holding M.O.1 to M.O.4 deadly weapons, were making preparations to commit dacoity of by-passers at the scene of offence. Hence, for the above reasons, I answer point No.1 & 2 in the "Negative.
19. POINT NO.3 : For the above reasons, I proceed to pass the following :
19 S.C.No.834/2015
ORDER Acting under Sec.235(1) of Cr.P.C., Accused Nos.2 is acquitted for the offences punishable u/Sec.399 and 402 of IPC. A2 shall be set at liberty forthwith, if he is not required in any other cases.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.4 in connection with the split up case registered against A1, A3 to A6.
*** (Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 15th day of November, 2017) (PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW-1 Mani PW-2 Gavi Gowda PW-3 Hajaresh Killedar PW-4 Rangappa.T 20 S.C.No.834/2015 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Spot mahazar Ex.P.2 Voluntary statement of PW1 Ex.P.3 Complaint Ex.P.4 FIR Ex.P.5 Voluntary statement of A2 LIST OF MATERIAL OBJECTS MARKED MO-1 Long chopper MO-2 knife MO-3 Wooden club MO-4 Wooden club LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
21 S.C.No.834/2015
Dt:15.11.2017
State : PP
A2 : Sri.T.S
For judgment
Judgment pronounced in open court, vide
separately,
ORDER
Acting under Sec.235(1) of Cr.P.C., Accused Nos.2 is acquitted for the offences punishable u/Sec., 399 and 402 of IPC.
A2 shall be set at liberty forthwith, if he is not required in any other cases.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.4 in connection with the split up case registered against A1, A3 to A6.
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
22 S.C.No.834/2015