Bangalore District Court
Toufiq vs Kapileshwar Kumar Bishwas Alias ... on 23 April, 2025
KABC030959572021
IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE,
BENGALURU CITY
Dated: This the 23rd day of April 2025
PRESENT: SRI.RANGEGOWDA.C
B.A.L., LL.B.,
Chief Judicial Magistrate,
Bengaluru City.
C.C.No. 37086/2021
COMPLAINANT :: State by - Police Inspector,
Bommanahalli Police Station
(Represented by Sr.APP)
Vs.
ACCUSED : Kapileshwar Kumar Bishwas @ Kapilesh
s/o Sindyanand Bishwas, 33 years
r/at No.10, Mujam Alam's rent house
5th Main, Hongasandra, Beguru
Bengaluru
(Represented by Advocate E Fazil Pasha)
PARTICULARS U/S 355 OF THE Cr.P.C., 1973
2 CC.No.37086/2021
1. Sl. No. of the Case 37086/2021
2. The date of commission 08-11-2021 to 13-11-2021
of the offence
3. Name of the complainant Thoufiq
4. Name of the accused Kapileshwar Kumar Bishwas
5. The offence complained of U/sec.457 and 380 of IPC
or proved
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Accused is convicted
8. Date of such order 23-04-2025
JUDGMENT
1. This is the case registered on the basis of the charge sheet submitted by PSI of Bommanahalli police station against the accused alleging the offences punishable u/s. 457 and 380 of IPC.
2. Case of the prosecution in brief is as follows;
On 08-11-2021 at about 1.00 a.m, at Dreams Mobile shop, Beguru, Bommanahalli, the accused entered the above shop by breaking open the cement sheet of the roof and false ceiling and stolen 5 Vivo company mobiles, 1 Oppo company mobile, CCTV, 3 CC.No.37086/2021 DVR and CC TV Acer company Monitor.
3. On the basis of the FIR lodged by the informant CW-1, case was registered against the accused and after completion of investigation IO filed charge sheet against the accused for the above mentioned offences.
4. After perusal of the charge sheet since there are sufficient materials which constitute the offences alleged, cognizance of the above said offences taken against the accused. During the crime stage accused was arrested and produced before the court he was released on bail. But thereafter accused not complied the conditions of bail, since he remained in JC. After filing of the charge sheet bail conditions are complied and he was released on bail.
5. Copies of charge sheet supplied to counsel for the accused u/s 207 of Cr.P.C. Heard, the counsel for the accused on framing of charge. Since, on hearing the counsel for accused and on perusal of the materials on record there are sufficient 4 CC.No.37086/2021 grounds for presuming that the accused has committed the alleged offence, hence charge for the above offence framed and read over to accused. The accused pleaded not guilty and claimed to be tried.
6. The prosecution in order to prove the accusation levelled against the accused has examined 6 witnesses as Pw1 to 6 and 11 documents are marked as Ex.P1 to P11. The prosecution has given up CW2, 4, 6, 8 and 9.
7. The statement of the accused recorded u/s.313 of Cr.P.C. He denied the entire incriminating evidence available in the prosecution evidence. He did not chose to adduce defence evidence.
8. Heard the arguments of Sr.APP and the counsel for accused and perused the records.
9. The following points arise for determination:
1. Whether the prosecution proves beyond reasonable doubt that on 08-11-2021 at about 5 CC.No.37086/2021 1.00 a.m, at Dreams Mobile shop, Beguru, Bommanahalli, the accused has entered the mobile shop of the complainant by breaking open the cement sheet of the roof and false ceiling and thereby committed an offence punishable under Section 457 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that on the same date, time and place the accused has stolen 5 Vivo company mobiles, 1 Oppo company mobile, CCTV, DVR and CC TV Acer company Monitor and thereby committed an offence punishable under Section 380 of IPC?
3. What order?
10. The above points are answered as follows;
Point No.1 - Affirmative Point No.2 - Affirmative Point No.3 - As per final order for the following;
REASONS
11. Point No.1 and 2: These two points are taken together for 6 CC.No.37086/2021 consideration to avoid repetition of facts.
12. It is the case of the prosecution that on 08-11-2021 at about 1.00 a.m, at Dreams Mobile shop, Beguru, Bommanahalli, the accused entered the above shop by breaking open the cement sheet of the roof and false ceiling and stolen 5 Vivo company mobiles, 1 Oppo company mobile, CCTV, DVR and CC TV Acer company Monitor.
13. The CW1/PW1 who is complainant has deposed that from past 5 years he was running mobile shop at Bommanahalli. In December 2021 at about 9.30 to 10.00 a.m., he went to open his shop he found that roof sheet was broken, he went inside and found that 5 Vivo company mobiles, 1 Oppo company mobile, 1 Dell company monitor and one CC TVG set top box were stolen. He filed complaint as per Ex.P1, thereafter police came to spot and conducted mahazar as per Ex.P2. Next day police called him to police station and showed him the stolen properties and the accused person and after getting order from 7 CC.No.37086/2021 court he released his properties. In the cross examination by the learned counsel for the accused all the suggestions put to him are denied and nothing is elicited to discard his evidence.
14. The CW5/PW2 is the seizure mahazar witness as per the prosecution case who has deposed in his chief examination that he has signed the said mahazar in the police station and at that time police have seized 4 to 5 mobiles, one monitor, one CC TV from a person. He further identified the mobile phones appearing in Ex.P3 photograph he also identified the accused through VC. The counsel for the accused absent, hence cross examination of PW2 is taken as NIL. The accused has not made any attempts to recall the PW2 for cross examination.
15. The CW3/PW3 is the spot mahazar witness as per the prosecution case, who has deposed in his chief examination that on 13-11-2021 police have came to the shop of CW1 and prepared spot mahazar regarding the theft of mobile phones and he had put his signature on the mahazar at that time. The 8 CC.No.37086/2021 counsel for the accused absent, hence cross examination of PW3 is taken as NIL. Subsequently, the application filed by the counsel for the accused to recall PW3 is allowed and PW3 is recalled for cross examination. In the cross examination by the learned counsel for the accused PW3 has deposed that he don't know why the police have obtained his signature but he specifically deposed that he has read the contents of Ex.P2. All other suggestions put to PW3 are denied.
16. The CW7/PW4 is the Police Constable who has deposed in his chief examination that as per the directions of CW11 himself and CW6 and 8 have searched for accused of this case and after talking to his informers they went to the back side of Oxford College, Garvebavi Palya and saw the accused holding a black bag, on enquiry the accused stated that he has stolen the mobiles in the night of 08-07-2021 from the shop at Hongasandra Main Road. Thereafter, accused was produced before the SHO and CW8 has given a report and PW4 has given statement. PW4 has identified the mobile phones appearing in 9 CC.No.37086/2021 Ex.P3 and also identified the accused through VC. The counsel for the accused absent, hence cross examination of PW4 is taken as NIL. The accused has not made any attempts to recall the PW4 for cross examination.
17. The CW10/PW5 is the ASI who has deposed in his chief examination that after receiving first information as per Ex.P1 from CW1 he registered the FIR as per Ex.P5 and on the same day he went to the spot and prepared spot mahazar in the presence of CW2 and 3 mahazar witnesses on the spot shown by the CW1/complainant as per Ex.P2. Thereafter, he has transferred the file to CW11 for further investigation. The counsel for the accused absent, hence cross examination of PW5 is taken as NIL. Subsequently, the application filed by the counsel for the accused to recall PW5 is allowed and PW5 is recalled for cross examination. But, when the PW5 was present before the court on 30-07-2024 counsel for the accused absent and accused prays time, since there are no grounds made out, prayer of the accused is rejected and cross examination of PW5 10 CC.No.37086/2021 is again taken as NIL.
18. The CW11/PW6 is the PSI who has deposed in his chief examination that he deputed CW8 and 9 for apprehending the accused on 13-11-2021, he further deposed that CW8 has produced the accused and the stolen properties along with report as per Ex.P6 and on the same day he recorded the statements of CW6 and 7. He further deposed that he has recorded the voluntary statement of accused after completing arrest procedure and accused in his voluntary statement has admitted about stealing of the mobiles and other properties and produced 6 mobile phones and stated that CC TV monitor, DVR and I-Tel company mobile is kept in his house. PW6 further deposed that he has conducted mahazar before the panchas CW4 and 5 in the police station and seized the 6 mobile phones produced by the accused under mahazar as per Ex.P4.
19. The PW6 further deposed that on 15-11-2021 accused has produced one one DVR Hike Vision company, one monitor of 11 CC.No.37086/2021 Acer company and one mobile of I-Tel company in his house in the presence of CW4 and 5. The said properties are seized by preparing mahazar in the said house from 11.25 a.m., to 12.10 p.m., as per Ex.P7. He further deposed that he prepared another mahazar on the spot shown by the accused in the presence of CW4 and 5 as per Ex.P8.
20. He further deposed that he called the CW1 to the police station and recorded his further statement regarding identification of the case properties and accused and send the accused to the court with remand application. PW6 further deposed that he obtained 65B Certificate from CW9 and also secured details in respect of the accused using the stolen phone with the SIM. He also obtained CDR of the said mobile and handed over the properties to the interim custody of the CW1 as per the order of the court and filed charge sheet against the accused. The PW6 has identified the phones appearing in Ex.P3 photograph and also identified the accused before the court. 12 CC.No.37086/2021
21. The counsel for the accused absent, hence cross examination of PW6 is taken as NIL. Subsequently, the application filed by the counsel for the accused to recall PW6 is allowed and PW6 is recalled for cross examination. In the cross examination by the learned counsel for the accused all other suggestions put to PW6 are denied and nothing is elicited to discard his evidence.
22. On perusal of the above evidence of PW-1 to 6 it can be noticed that the PW-4 has consistently deposed regarding the apprehending the accused along with the stolen properties i.e., mobile phones, the PW6 also consistently deposed regarding production of accused before him by PW4 along with stolen mobiles. The counsel for the accused has not cross examined PW4 and in the cross examination of PW6 nothing is elicited to discard the evidence of PW6. Therefore, evidence of PW4 and 6 on the aspect of apprehending the accused by PW4 along with stolen mobiles and producing the accused before PW6 inspires the confidence of the Court, as in his cross-examination of PW6 13 CC.No.37086/2021 nothing is elicited to discard his evidence and PW4 is not at all cross examined by counsel for the accused.
23. The evidence of PW2 as to the seizure of mobile phones, monitor, CCTV as per Ex.P4 inspires the confidence of the court as the counsel for the accused has not cross examined PW2. Moreover, the evidence of PW2 is corroborated by the evidence of IO PW6 regarding the seizure of 6 mobile phones as per mahazar Ex.P4 and seizure of DVR, Monitor and I-Tel mobile as per Ex.P7. Since nothing is elicited in the cross examination of PW7 on this aspect this court has come to conclusion that the prosecution has proved the seizure of mobile phones, DVR and monitor as per Ex.P4 and P7 from the accused and at the instance of accused.
24. Regarding spot mahazar is concerned the PW1 has deposed regarding the preparation of spot mahazar as per Ex.P2 in his presence. In the cross examination by the learned counsel for the accused nothing is elicited to discard his evidence on 14 CC.No.37086/2021 this aspect. The PW3 the spot mahazar witness deposed regarding the preparation of spot mahazar Ex.P2 and also identified his signature. In the cross examination by the learned counsel for the accused though the PW3 has admitted that he don't know why police have taken his signature but in the very next sentence he admitted another suggestion put to him by learned counsel for the accused that he has read the contents of Ex.P2. The PW5 who is the ASI has deposed regarding preparation of spot mahazar in the presence of panchas. Learned counsel for the accused has not cross examined PW5. Therefore, the evidence of PW1 and 3 coupled with the evidence of PW5 ASI is sufficient to hold that the prosecution has proved the preparation of spot mahazar at the spot as per Ex.P2.
25. The Hon'ble High Court of Karnataka in the judgment reported in the ILR 2001 Page 4655 (DB) Lokesh V/s State of Karnataka., Hassan City Police has held as follows:
"(B) CRIMINAL TRIAL - PROOF OF DISCOVERY PANCHANAMAS - HELD - If 15 CC.No.37086/2021 the panchas are not available or unreliable, the panchanamas can be proved through the evidence of the Investigating Officer.'"
26. In this case the I.O., PW-5 and 6 in their evidence have consistently deposed regarding preparation of spot and seizure mahazars Ex.P2, 4 and 7 in the presence of mahazar witnesses and Seizure of mobiles, DVR, monitor. In view of the above evidence of PW-1, 2, 3, 5 and 6 this court has come to the conclusion that the prosecution has proved the preparation of spot mahazar Ex.P2 and seizure mahazars Ex.P4 and 7 and seizure of stolen mobiles, DVR and monitor from the possession of the accused beyond all reasonable doubt.
27. In view of the above evidence of PW-1 to 6 on record coupled with Ex.P1 to 10, this court has come to the conclusion that the prosecution through the evidence of PW-1 to 6 has proved beyond all reasonable doubt that the accused has entered the Dreams Mobile shop, Beguru, Bommanahalli of PW1, by breaking open the cement sheet of the roof and false 16 CC.No.37086/2021 ceiling and stolen 5 Vivo company mobiles, 1 Oppo company mobile, CCTV-DVR and CC TV Acer company Monitor. Hence, Point No.1 and 2 are answered in the Affirmative.
28. Point No.3: For the foregoing reasons and findings on point No.1 and 2 the following order is passed;
ORDER Exercising power U/sec 248(2) of Cr.P.C. the accused is hereby convicted for the offences punishable U/sec 457 and 380 of IPC.
Call later to hear on sentence.
(Dictated to the Stenographer directly on computer, typed by her, same was corrected by me and then pronounced in open court on this the 23rd day of April 2025). Digitally signed by
RANGEGOWDA RANGEGOWDA CHIDANANDA
CHIDANANDA Date: 2025.05.20
13:09:40 +0530
(RANGEGOWDA.C)
CHIEF JUDICIAL MAGISTRATE
BENGALURU CITY
17 CC.No.37086/2021
ORDER ON SENTENCE
Accused present.
2. Learned counsel for accused present. Ld.Sr.APP present.
3. Heard counsel for accused and Ld.Sr.APP on the sentence.
4. Counsel for the accused submits that accused is the sole bread earner of the family and there is nobody to look after his family and he has a child, wife and aged parents, he is in JC for 9 months 20 days. There is no other case against the accused. Hence, prays to take linency while imposing sentence.
5. Ld. Sr.APP submits that accused has committed theft of the mobiles, DVR and monitor in the shop of PW1 by trespassing by breaking open the cement sheet of the roof and false ceiling, therefore prays for imposing sentence as per law.
6. Considering that accused is in JC from 15-11-2021 to 08-03-2022 and 03-04-2023 to 30-09-2023 and also that the accused has committed theft of the mobiles, DVR and monitor 18 CC.No.37086/2021 in the shop of PW1 by trespassing by breaking open the cement sheet of the roof and false ceiling, during the night hours and also considering the submissions of learned counsel for the accused, this Court has come to the conclusion that including period of Judicial Custody already undergone by the accused, if accused is sentenced to undergo SI for two years each for both the offences that will meet the ends of justice. Hence the following :
ORDER Accused is sentenced to undergo S.I for two years and also liable to pay fine of ₹5,000/- for the offences punishable U/sec 457 of IPC.
In default of payment of fine accused shall undergo SI for 30 days.
Accused is sentenced to undergo S.I for two years and also liable to pay fine of ₹5,000/- for the offences punishable U/sec 380 of IPC.19 CC.No.37086/2021
In default of payment of fine accused shall undergo SI for 30 days.
All the above sentences shall run concurrently.
Accused is entitled to set-off of the period already undergone in Judicial Custody under Section 428 Cr.P.C.
Office to supply free copy of this Judgment and Order to the accused.
(RANGEGOWDA.C) CHIEF JUDICIAL MAGISTRATE BENGALURU CITY ANNEXURE LIST OF WITNESSES EXAMINED Prosecution Defence PW.1 Toufiq Nil PW.2 Imran Nil PW.3 Shivadas Nil PW.4 Suresh Kannur Nil PW.5 Somashekar Nil PW.6 Ananda H M Nil Exhibits Marked 20 CC.No.37086/2021 Ex.P1 Complaint Ex.P1(a) Signature of PW1 Ex.P1(b) Signature of PW5 Ex.P2 Mahazar Ex.P2(a) Signature of PW1 Ex.P2(b) Signature of PW3 Ex.P2(c) Signature of PW5 Ex.P3 Photograph Ex.P4 Seizure Mahazar Ex.P4(a) Signature of PW2 Ex.P4(b) Signature of PW6 Ex.P5 FIR Ex.P5(a) Signature of PW5 Ex.P6 Report Ex.P6(a) Signature of PW6 Ex.P7 Seizure Mahazar Ex.P7(a) Signature of PW6 Ex.P8 Spot mahazar Ex.P8(a) Signature of PW6 Ex.P9 65B certificate Ex.P9(a) Signature of PW6 Ex.P10 Sim details Ex.P10(a) Signature of PW6 Ex.P11 Mobile CDR - 4 pages Ex.P11(a) Signature of PW6 Material Objects got marked NIL (RANGEGOWDA.C) CHIEF JUDICIAL MAGISTRATE BENGALURU CITY 21 CC.No.37086/2021 23-04-2025 (Judgment pronounced in the open court vide separate order) ORDER Exercising power U/sec 248(2) of Cr.P.C. the accused is hereby convicted for the offences punishable U/sec 457 and 380 of IPC.
Call later to hear on sentence.
CJM, BENGALURU CITY ORDER ON SENTENCE Accused present.
2. Learned counsel for accused present. Ld.Sr.APP present.
3. Heard counsel for accused and Ld.Sr.APP on the sentence.
4. Counsel for the accused submits that accused is the sole bread earner of the family and there is nobody to look after his family and he has a child, wife and aged parents, he is in JC for 9 months 20 days. There is no other case against the accused. Hence, prays to take linency while imposing sentence.22 CC.No.37086/2021
5. Ld. Sr.APP submits that accused has committed theft of the mobiles, DVR and monitor in the shop of PW1 by trespassing by breaking open the cement sheet of the roof and false ceiling, therefore prays for imposing sentence as per law.
6. Considering that accused is in JC for more than one year i.e., from 15-11-2021 to 08-03-2022 and 03-04-2023 to 30-09-2023 and also that the accused has committed theft of the mobiles, DVR and monitor in the shop of PW1 by trespassing by breaking open the cement sheet of the roof and false ceiling, during the night hours and also considering the submissions of learned counsel for the accused, this Court has come to the conclusion that including period of Judicial Custody already undergone by the accused, if accused is sentenced to undergo SI for two years each for both the offences that will meet the ends of justice. Hence the following :
ORDER Accused is sentenced to undergo S.I for two years and also liable to pay fine of ₹5,000/- for the offences punishable U/sec 457 of IPC.
In default of payment of fine accused shall undergo SI for 30 days.23 CC.No.37086/2021
Accused is sentenced to undergo S.I for two years and also liable to pay fine of ₹5,000/- for the offences punishable U/sec 380 of IPC.
In default of payment of fine accused shall undergo SI for 30 days.
All the above sentences shall run concurrently. Accused is entitled to set-off of the period already undergone in Judicial Custody under Section 428 Cr.P.C.
Office to supply free copy of this Judgment and Order to the accused.
(RANGEGOWDA.C) CHIEF JUDICIAL MAGISTRATE BENGALURU CITY.
Counsel for the accused filed application u/s 389(3) of CrPC seeking suspension of sentence till the appeal period is over on the ground that accused is intended to file appeal against the judgment of conviction.
Sec.389(3) of CrPC provides for suspending the sentence if the convicted person is intend to prefer an appeal and he is on bail.24 CC.No.37086/2021
In this case the accused is on bail during trial, the sentence passed in this case is 2 years. Therefore, this court has come to the conclusion that the accused is entitled for suspension of sentence subject to conditions. Hence, the following order is passed.
ORDER The application field by the accused U/s 389 (3) of Cr.P.C. is hereby allowed.
The convicted accused is ordered to be released on bail subject to executing the P.B. of Rs.50,000/-, the cash security previous deposited by the accused is considered as cash security for suspension of sentence for a period of 30 days i.e. period of appeal from today, till then the sentence of imprisonment shall be deemed to be suspended, if the accused deposit the fine amount.
Counsel for the accused filed a memo undertaking to deposit fine amount of Rs.10,000/- on or before 25-04-2025. The said memo is accepted and office to receive the fine amount on or before 25-04- 2025 and obtain personal bond as per the above order.
If the accused fails to deposit the fine amount of 25 CC.No.37086/2021 Rs.10,000/- the order of suspension of sentence deemed to be canceled and office to issue NBW and conviction warrant.
Call on 25-04-2025.
CJM, Bengaluru City.