Bangalore District Court
State By Indiranagar Police Station vs Manikanta @ Mani on 11 April, 2018
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 11th day of April, 2018
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.962/2011
COMPLAINANT:- State by Indiranagar Police Station,
Bengaluru.
-Vs-
ACCUSED: 1. Manikanta @ Mani,
S/o. Narayanaswamy,
Aged about 23 years,
R/at. No.21/1,
Ramatemple Backside,
Coxtown, Jeevanahalli,
Bengaluru.
(Accused No.3)
2. Praveen,
S/o. Narayan,
Aged about 23 years,
R/at.No.1, Krishnappa Lane,
Coxtown, Jeevanahalli,
Bengaluru.
(Accused No.4)
1. Date of commission of offence : 10.4.2011
2 S.C.No.962/2011
2. Date of report of offence : 10.4.2011
3. Date of arrest of the Accused : A.3 & A.4 on 10.4.2011
4. Name of the complainant : B.B.Ashok Kumar
5. Date of recording evidence : 19.1.2017
6. Date of closing evidence : 17.11.2017
7. Offences complained of : U/Sec. 395 of IPC.
8. Opinion of the Judge : Accused No.3 & 4 are
Acquitted U/s. 235(1)
of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. A.Sagayanathan, Advocate
JUDGMENT
Police Inspector of Indiranagara police station, Bengaluru submitted charge sheet against accused for trial of offence punishable U/s.395 of I.P.C., in Cr.No.467/2010 of Indiranagara Police Station.
2. Brief facts of prosecution case may be stated as under; Informant by name Adarsha was serving as Cashier in Wine Shop under the name and styled as M/s. Cambridge Wine Shop situated 3 S.C.No.962/2011 at Cabridge Road, Indiranagara, Bengaluru city. On 1.11.2010 at about 9.15 p.m., when informant was engaged in counting cash amount, at that time, three unknown persons gained entry in the wine shop and committed theft of amount in cash of Rs.21,000/-, which was kept in cash box. On the same day, at about 10.10 p.m., informant went to police station, where he lodged report, on the basis of which, Indira Nagara police have registered a case in Cr.No.467/2010 for the offence punishable U/s.379 of I.P.C.
3. Police concerned started investigation and were in search of thief. Meanwhile, on 9.4.2011 during night hours, B.B. Ashok Kumar, A.C.P., Pulikeshinagara was performing his night patrolling duty and on 10.4.2011 at about 12.30 a.m., he received one credible information about assembling of few persons at Dickenson Road, near Military Quarters Compound for making preparation for commission of dacoity with possessing deadly weapons. Therefore, he secured the police officials of Commercial Street Police station, Indiranagara police station and other officials and conveyed information, which he received. He intended to conduct raid. In the process, he secured the 4 S.C.No.962/2011 presence of panch witnesses and formed a raid team. At about 1.50 a.m., raid was conducted, during which, police officials apprehended accused No.1 to 5. On interrogating accused, B.B.Ashok KUmar, A.C.P., Pulikeshinagar, noticed that, accused were possessed knife, long, revolver, dragger and also made search on their persons. He noticed that, accused in order to commit offence, used bikes. Thus, he seized all weapons, motor bikes and amount by preparing mahazar. Thereafter, he took accused No.1 to 5 to the Commercial Street police station and lodged a report along with seizure mahazar. On the basis of such seizure mahazar and report, Commercial Street police have registered a case in Cr.No.64/2011 for the offences punishable U/s.399 and 402 of I.P.C.
4. Commercial Street police have started investigation, during which, they have recorded voluntary statements of accused No.1 to 5. During course of their voluntary statements, accused No.1 to 5 confessed about commission of theft, dacoity at different places. On the basis of voluntary statements, Commercial Street police have informed about commissioner of dacoity in M/s.Cambridge Wine Shop, 5 S.C.No.962/2011 Indiranagara, who obtained copies of voluntary statements of accused and conducted further investigation, during which, they have recorded statements of other witnesses. Properties seized in Cr.No.64/2011 of Commercial Street police station pertaining to this case handed over to Indiranagara police. After completion of investigation, charge sheet is laid for the offence punishable U/s.395 of I.P.C.
5. Learned Magistrate took cognizance of the offence and passed orders for registration of one criminal case against accused in C.C.No.22727/2011 on the file of X-Addl.Chief Metropolitan Magistrate, Bengaluru. Meanwhile, accused obtained bail. On 4.7.2011 Learned Magistrate passed orders for committal of this case to the court of Sessions, since offences alleged against accused are triable exclusively by the court of Sessions. After committal, this case is re-registered as S.C.No.962/2011. After hearing charges against accused framed, which they denied, hence, claims to be tried.
6. Though accused No.1 to 5 were on bail, but on subsequent dates of hearings, accused No.1, 2 and 5 did not appear. 6 S.C.No.962/2011 Despite issuance of N.B.W., same are returned un-executed. Whereabouts of accused No.1, 2 and 5 were not traced out. Because of non-appearance of accused No.1, 2 and 5 further trial against accused No.3 and 4 protracted. Therefore, on 25.7.2014, 20.1.2016 and 29.8.2017, case against accused No.1, 2 and 5 are split up, respectively.
7. In order to bring home the guilt of accused, prosecution in altogether cited 32 witnesses, among them 10 witnesses are examined as Pw.1 to Pw.10. During the course of trial prosecution got exhibited 14 documents marked at Ex.P.1 to P.14. Prosecution has given up evidence of Cw.17 to Cw.22 and Cw.24 to Cw.26. Despite issuance of repeated witness warrants to other witnesses, same are returned un- executed. Therefore, prosecution has not examined remaining witnesses. Side of prosecution is taken as closed.
8. On completion of the evidence of prosecution side, this court examined accused No.3 and 4 as required U/s. 313 of Cr.P.C., and recorded their statements by giving an opportunity for explaining incriminating circumstances appearing in the evidence of the 7 S.C.No.962/2011 prosecution. Defence of accused is one of total denial of prosecution case. However no any defence evidence led in by accused.
9. I have heard arguments.
10. The following points that have arisen for my consideration:
1. Whether prosecution proves beyond reasonable doubt that, accused No.3 and 4 along with absconding accused No.1, 2 and 5 committed offence punishable U/s.395 of I.P.C., as alleged in the charge sheet ?
2. To what Order ?
11. My findings on the above points are as under:
Point No.1 : In Negative
Point No.2 : As per final order
for the following:
REASONS
12. POINT NO.1:- Among the witnesses examined by prosecution, Pw.1/A.Nanda Kumar is landlord of house, which is let out to accused No.1 from where Commercial Street Police have seized theft articles, which pertains to different cases of Bengaluru city. 8 S.C.No.962/2011
13. Pw.2/Harish Chandra Prasad is owner of the Motor Bike bearing Reg.No.KA-03-H.C.No.9643, which according to the prosecution used by accused for commission of offences.
14. Pw.3/Sampangiram, Pw.4/N.Shankar and Pw.8/K.Vinod are panch witnesses for seizure mahazars, copy of which are marked at Ex.P.1 to Ex.P.3.
15. Pw.5/S.R.Manjunath is P.S.I. of Commercial Street Police station, who registered case in Cr.No.64/2011 on the basis of report and seizure mahazar submitted by B.B.Ashok Kumar, A.C.P. Pulikeshinagara, Bengaluru.
16. Pw.6/Chikka Hanumanthaiah is the then A.S.I. of Indiranagar police station, who registered a case in Cr.No.467/2010 on the basis of written report submitted by Cw.1/informant-Adarsh T.K. Pw.7/Ashwathaiah is Head Constable of Commercial Street police station, who took part in conducting raid.
17. Pw.9/B.B.Ashok Kumar is the then A.C.P., Pulikeshinagar, who conducted raid and submitted report with seizure 9 S.C.No.962/2011 mahazar on the basis of which Commercial Street police have registered a case in Cr.No.64/2011.
18. Pw.10/Bhadrinath is Police Inspector of Commercial Street police station, who conducted investigation in Cr.No.64/2011.
19. I have also gone through the evidence on record. In order to prove the ingredient of offence punishable U/s.395 of I.P.C., evidence of informant/Cw.1 is most material. But despite granting sufficient opportunities, prosecution has not examined Cw.1. In a trial of this nature of offence, identity of accused is very vital aspect, which has not been proved by prosecution beyond reasonable doubt. Entire case of prosecution is based on so-called voluntary statements of accused. Recovery of theft articles and identity of accused by Cw.1/informant can be established by conducting Test Identification Parade. In F.I.R., neither name nor detail identity of accused has not been indicated. All original seizure mahazar are in Cr.No.64/2011 of Commercial Street police station. Though prosecution tried to prove the contents of seizure mahazar marked at Ex.P.1 to 3, but Pw.3, Pw.4 10 S.C.No.962/2011 and Pw.8, who are panch witnesses for such seizure mahazars have not supported the prosecution version.
20. Remaining witnesses are police officers, except Pw.1 and Pw.2. Evidence of Pw.5, Pw.6, Pw.9 and Pw.10 have not been corroborated by any other independent witnesses. Even on strict scrutiny of evidence on record, I am of the opinion that, there is no conclusive proof that, accused gave their voluntary statements either before B.B.Ashok Kumar, the then A.C.P., or before Pw.10, who conducted major portion of investigation in Cr.No.64/2011 of Commercial Street police station. There is no any conclusive proof that, these accused No.3 and 4 committed either robbery or dacoity in the wine shop, in which Cw.1 was serving as Cashier. When contents of seizure mahazars are not supported by evidence of panch witnesses, then it is risky to place reliance on the testimony of Pw.9 and Pw.10, who are most interested witnesses in this case.
21.Cumulative effect of entire material on record would clearly infers that, prosecution neither proved the identity of accused nor seizure or recovery of theft amount from the possession of accused. 11 S.C.No.962/2011 Under these circumstances, I have come to the conclusion that, prosecution failed to substantiate the charges leveled against accused No.3 and 4. Accordingly, I answer point No.1 in negative.
22. POINT NO.2: In view of my findings on the above point No.1, accused No.3 and 4 are entitled for acquittal. Being of that opinion, I proceed to pass the following:
ORDER Accused No.3 and 4 are acquitted U/s. 235(1) of Cr.P.C of the offence punishable U/s.395 of I.P.C.
Their bail bonds and surety bonds shall stands cancelled.
However, bail bonds executed by accused No.3 and 4 as required U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Further office is directed to register split case against Accused No.1, 2 and 5.12 S.C.No.962/2011
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 11th day of April 2018.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 A.Nanda Kumar
Pw.2 Harish Chandra Prasad
Pw.3 Sampangiram
Pw.4 N.Shankar
Pw.5 S.R.Manjunath
Pw.6 Chikka Hanumanthaiah
Pw.7 Ashwathaiah
Pw.8 K.Vinod
Pw.9 B.B.Ashok Kumar
Pw.10 Badhrinath
II. For Defence:-
- Nil-
13 S.C.No.962/2011
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Seizure mahazar Ex.P.1(a) Signature of Pw.3 Ex.P.1(b) Signature of Pw.8 Ex.P.2 Seizure mahazar Ex.P.2(a) Signature of Pw.3 Ex.P.3 Mahazar Ex.P.3(a) Signature of Pw.4 Ex.P.4 F.I.R., Ex.P.4(a) Signature of Pw.5 Ex.P.5 Report Ex.P.5(a) Signature of Pw.5 Ex.P.5(b) Signature of Pw.9 Ex.P.6 PF.No.42/2011 Ex.P.7 F.I.R., Ex.P.7(a) Signature of Pw.6 Ex.P.8 Complaint Ex.P.8(a) Signature of Pw.6
Ex.P.9 to Ex.P.12 Voluntary Statements of accused Ex.P.13 Seizure mahazar Ex.P.13(a) Signature of Pw.10 Ex.P.14 Seizure mahazar Ex.P.14(a) Signature of Pw.10 Original mahazars and voluntary statements of accused are in Cr.No.64/2011 of Commercial Street police station.
For Defence side:-
-Nil- 14 S.C.No.962/2011
IV. List of material objects marked:-
-Nil-
(MADHUSUDHAN B.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY