Bangalore District Court
State Of Karnataka vs 4. Balaji @ Balu on 25 July, 2018
IN THE COURT OF THE LXII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY [CCH.63]
th
Dated: This the 25 day of July, 2018.
Present: Sri.PARAMESHWARA PRASANNA.B., B.A., L.L.B.,
LXII Additional City Civil & Sessions Judge,
Bengaluru City.
Sessions Case No.533/2016
Complainant: State of Karnataka
By Chamarajpete Police Station,
Bengaluru, Represented by Public
Prosecutor, Bengaluru.
Vs.
Accused: 4. Balaji @ Balu,
s/o.K.Babu, 19 years, r/o.No.132,
3rd Cross, Anandpura Mysore Road,
Bengaluru.
5. Bhaskar @ Bande Bhaskar,
s/o.Manohar, 30 years, r/o.No.52,
Bandegudisalu, Valmikinagar,
Mysore Road, Bengaluru.
A4-by Sri.P.V.K., Advocate.
A5-by Sri.H.R.M., Advocate.
(Case against Accused Nos.1 to 3 has
been split up as per Order of this Court
dated:21-7-2018)
Date of commission of offence 08-3-2015
Date of report of offence 08-03-2015
Arrest of the Accused Accused No.4-obtained
Anticipatory Bail vide
Order dated 8-4-2015
passed by the Learned
2 S.C.No.533/2016
61st Additional City
Civil & Sessions Judge,
Bengaluru, in Crl.Misc.
No.2073/2015
Accused No.5 obtained
Anticipatory Bail vide
Order dated
20-4-2015 passed by
the Learned 1st
Additional City Civil &
Sessions Judge,
Bengaluru, in
Crl.Misc.No.2147/2015
Name of the complainant Mr.Puttamadaiah,
P.S.I. of Chamarajpet
Police Station
Date of commencement of 09-10-2017
trial
Date of closing of prosecution 14-06-2018
evidence
Offences complained of Under Sections 399
and 402 of I.P.C.
Opinion of the Judge Accused Nos.4 and 5
are acquitted under
Section 235(1) of
Cr.P.C.
JUDGMENT
The present case arises out of the charge sheet submitted the Chamarajpet Police Station in Crime No.53/2015 against Accused Nos.1 to 6 for the alleged offences punishable under Sections 399 and 402 of I.P.C.
3 S.C.No.533/20162. The case of the prosecution in brief is that, on 8-3-2015 night at 10.15 p.m. when C.W.1- Mr.Puttamadaiah, P.S.I., Chamarajpet Police Station was on patrolling duty in Mysuru Road, he received credible information from an informant that near a compound, near Rajiv Gandhi Stadium, Dobhi Ghat, Mysuru Road, Brindavan Nagar, Bengaluru, 5 to 6 persons being equipped with longs, knife and wooden clubs, hatching conspiracy to loot the pedestrians. Immediately he secured his staff C.W.4 to 9 and C.W.2 to 3 panchas near Vittala Temple, in Vittala Nagara and informed them about said credible information and thereafter, C.W.1, along with C.W.2 to 9 went nearby the said spot and on secrete observation they noticed 6 persons at the spot being equipped with longs knife and clubs who were discussing with each other to loot cash and valuables from pedestrians by assaulting them with deadly weapons and on confirmation of information, C.W.1 and his staff when surrounded the said gathering, the 3 persons escaped from the spot by throwing away clubs. C.W.5 nabbed Accused No.5, C.W.4 nabbed accused No.2, C.W.8 nabbed accused No.3 and on enquiry, Accused Nos.1 to 3 revealed their names and address and they also revealed the names and address of accused Nos.4 to 6 who escaped from the spot and thereafter by drawing the mahazar at the 4 S.C.No.533/2016 spot from 10.30 p.m. to 11.30 p.m. one knife, two long, two wooden clubs were seized in the presence of the panchaas and thereafter C.W.1 took accused Nos.1 to 3 along with seized articles to the police station and produced them before C.W.10 along with report and mahazar and C.W.10 on the basis of the said report registered the FIR against accused Nos.1 to 6 in Crime No.53/2015 for the offences punishable under Sections 399 and 402 of I.P.C.
3. That, subsequently since the absconding accused Nos.4 to 6 were not secured after completion of investigation, C.W.10 filed the charge sheet against accused Nos.1 to 6, which was registered in C.C.No.10232/2016 before the Learned 24th A.C.M.M. Thereafter, accused Nos.4 and 5 were secured and as the accused No.6 was not secured despite of issuing of NBW case against accused No.6 came to be split up by the Learned 24th A.C.M.M. as per the order dated 30-12-2015. Since the offences are exclusively triable by the Court of Sessions, Learned 24th A.C.M.M., as per the Order dated 30-12-2015 committed the case against accused Nos.1 to 5 to the Hon'ble Principal, City Civil and Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru, the case was registered 5 S.C.No.533/2016 in S.C.No.533/2016 and the same was made over to this Court for disposal in accordance with law.
4. Thereafter, on hearing the prosecution as well as the learned defence counsel under Section 227 of Cr.P.C. this Court framed the charge against accused Nos.1 to 5 for the offences punishable under Sections 399 and 402 of I.P.C. When the charge was read over and explained to accused Nos.1 to 5, they pleaded not guilty and claims to be tried.
5. That out of 10 witnesses cited in the charge sheet, the prosecution in order to prove their case got examined only one witness, i.e. C.W.10 as P.W.1 and got marked the documents as Exs.P1 to P3(b) and the alleged seized articles as M.O.1 to M.O.6. C.W.4 to 9 were given up by the learned Public Prosecutor and since despite of sufficient opportunity, the concerned police have not secured C.W.1 to 3 in order to render speedy justice, the prayer of the learned P.P. for issuing further process against C.W.1 to 3 was rejected and the prosecution evidence was taken as closed on 7-11-2017 and the matter was posted for recording of the statement of accused Nos.1 to 5 under Section 313 of Cr.P.C. Subsequently since accused Nos.1 to 3 remained absent and could not be secured despite of taking coercive steps, the case against accused Nos.1 6 S.C.No.533/2016 to 3 came to be split up as per the order of this Court dated 21-7-2018 and thereafter statement of accused Nos.4 and 5 were recorded under Section 313 of Cr.P.C. The accused Nos.4 and 5 when examined under Section 313 of Cr.P.C. have denied the incriminating circumstances appearing in evidence against them. Accused No.4 and 5 have not led any defence evidence on their behalf.
6. Heard argument of both sides
7. Under the facts and circumstances of the case, the following Points arise for consideration of this Court:
1. Whether the Prosecution proves beyond all reasonable doubt that on 8-3-2015 night at about 10.15 p.m. accused Nos.4 and 5 along with split up accused Nos.1 to 3 and 6 being equipped with longs, knife and wooden clubs, assembled near a compound near Rajiv Gandhi Stadium, Dhobi Ghat Main Road, Brindavan Nagar, Bengaluru, within the limits of Chamarajpet Police Station and the accused Nos.4 and 5 along with other accused were making preparation for committing dacoity and thereby accused Nos. 4 and 5 have committed the offences punishable under Sections 399 and 402 of I.P.C.?
2. What Order?7 S.C.No.533/2016
8. Findings of the Court on the above Points are as follows:
Point No.1 - In the Negative, Point No.2 - As per Final Order, for the following:
REASONS
9. Point No.1: The case of the Prosecution in brief as culled out from the charge sheet is that, on 8-3-2015 at 10.15 p.m. accused Nos.1 to 6 being armed with deadly weapons making preparation for committed dacoity of the passersby, near a compound near Rajiv Gandhi Stadium, Dobhi Ghat, Mysuru Road, Brindavan Nagar and C.W.1 on credible information of the same, along with his staff C.W.4 to 9 and panchas C.W.2 and 3 when conducted the raid accused Nos.4 to 5 escaped from the spot, C.W.1 and his staff nabbed accused Nos.1 to 3 and seized two longs, one knife and 3 wooden clubs in the presence of panchas CW 2 and 3 by drawing the mahazar and on return to the police station along accused Nos.1 to 3 and seized articles C.W.1 gave the report regarding the incident to C.W.10 by handing accused Nos.1 to 3 and seized articles and on the basis of the said report, C.W.10 got registered the FIR against accused Nos.1 to 6 for the offences punishable under Sections 399 and 402 of IPC.
8 S.C.No.533/20169. That in order to prove the case of the prosecution, out of 10 witnesses stated in the charge sheet prosecution got examined only one witness i.e., C.W.10 as P.W.1 and got marked the documents as Exs.P1 to P3(a) and the alleged seized articles as M.O.1 to M.O.6.
10. In this case the crucial and material witnesses for the prosecution, namely CW1 who alleged to have conducted raid and lodged F.I.R. and C.W.2 and 3 alleged independent witnesses to the raid and recovery mahazar have not been examined by the prosecution despite of sufficient opportunity. Hence, the adverse inference is drawn against the prosecution under Section 114 of the Indian Evidence A ct for non- examining the aforesaid material witnesses.
11. PW1/CW10 in his evidence stated that on 8-3-2015 night at 11.15 p.m. when he was in-charge of police station, CW1 submitted report regarding the incident of this case and produced accused Nos.1 to 3 along with seized articles with mahazar and on the basis of the report of CW1 he registered FIR in Crime No.53/2015 for the offences punishable under Sections 399 and 402 of IPC and he arrested accused Nos.1 to 3 and obtained their voluntary statement and he has also recorded the statement of other witnesses. He further 9 S.C.No.533/2016 stated that since escaped accused Nos.4 to 6 were not traced out after completion of investigation he filed the charge sheet against accused Nos.1 to 6.
12. According to the charge sheet only accused Nos.1 to 3 were alleged to have produced by CW1 before PW1, but P.W.1 wrongly identified accused No.5 before the Court and stated that along with accused Nos.1 and 3 accused No.5 was produced before him by CW1, hence, evidence of PW1 does not inspire the confidence and the evidence of PW1 is not helpful to the prosecution to connect the guilt of accused Nos.4 and 5 as the complainant CW1 and the independent witnesses CW2 and 3 have not been examined by the prosecution to prove the alleged raid and recovery. There is no evidence to show that accused Nos.4 and 5 were present a the spot during alleged raid and they escaped from the spot.
13. As CW2 and 3 the alleged independent witnesses to the raid and recovery mahazar have not been examined by the prosecution, the alleged raid and recovery itself has not been proved by the prosecution.
14. As laid down in the case of Agar v/s State of Rajasthan, reported in 2003 Crl.L.J 1997, it is settled law that, 'to constitute an offence under Section 399 10 S.C.No.533/2016 and 402 of IPC, some act amounting to preparation must be proved". And in the case of Joseph Vs. State of Kearala reported in AIR 1993 SCW 2009, it was held that "to constitute an offence under Sections 399 and 402 of IPC, the prosecution must show that the accused have conceived design of committing dacoity. Further the Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042, held that:
"Criminal Procedure Code, 1973 - Section 374(2)- Appeal against Judgment of conviction and order of sentence - Re-appreciation of evidence on record- Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery - The person who registered the First Information Report, himself has investigated the crime- Legality of investigation- HELD, the credibility of the investigation is doubtful as Pw.3 having registered the crime, has himself investigated the case".
15. In view of the aforesaid precedents it is clear that in order to sustain conviction under Sections 399 and 402 of IPC, the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some 11 S.C.No.533/2016 conduct to prove the factum of proof by the assembly and that the persons assembled conceived any such design for committed dacoity and in fact they intended to achieve object for which they had assembled. But in this case, there is no reliable and credible evidence to show that the accused Nos.4 and 5 were making preparation to commit dacoity. Admittedly no incriminating articles were recovered at the instance of accused Nos.4 and 5. In view of these facts and circumstances, I am of the opinion that the prosecution has not proved the case against accused Nos.4 and 5 beyond all reasonable doubt and as such accused No.4 and 5 are entitled for acquittal on the ground of benefit of doubt. Hence, I have answered point No.1 in the Negative.
16. Point No.2: - In view of the reasons discussed in Point No.1, I proceed to pass the following:-
ORDER Acting under Section 235 (1) of Cr.P.C, Accused Nos. 4 and 5 are acquitted in respect of the offences punishable under Sections 399 and 402 of the Indian Penal Code.
The earlier bail bond and the surety bond of Accused Nos. 4 and 5 are hereby cancelled.12 S.C.No.533/2016
The articles marked as MOs.1 to 6 shall be preserved for trial of the remaining Accused Nos.1 to 3 and 6.
The office is hereby directed to take personal bond for Rs.50,000/- from Accused Nos. 4 and 5 along with their surety for the likesum as required under Section 437(A) of Cr.P.C.
(Dictated to the Judgment Writer, transcribed and computerized printout taken thereof is corrected, signed and then pronounced by me in Open Court on this the 25th day of July, 2018).
(Parameshwara Prasanna. B.) LXII Addl. City Civil & Sessions Judge, Bengaluru City.13 S.C.No.533/2016
ANNEXURE I. List of witnesses examined on behalf of :
(a) Prosecution side:-
P.W.1 N.Chandranna
(b) Defence Side: NIL
II. List of exhibits marked on behalf of :
(a) Prosecution side:-
Ex.P1 Report
Ex.P1(a) Signature of P.W.1
Ex.P2 Mahazar
Ex.P3 P.F.
Exs.P3(a) and P3(b) Signatures of P.W.1 in P.F.
(b) Defence Side: NIL III. List of material objects:
M.O.1 Kiife M.O.2 Long M.O.3 -Long M.Os.4 to 6 - Wooden clubs (Parameshwara Prasanna. B.) LXII Addl. City Civil & Sessions Judge, Bengaluru City.14 S.C.No.533/2016
25-7-2018 Judgment pronounced in Open Court (vide separate Judgment).
Acting under Section 235 (1) of Cr.P.C, Accused Nos. 4 and 5 are acquitted in respect of the offences punishable under Sections 399 and 402 of the Indian Penal Code.
The earlier bail bond and the surety bond of Accused Nos. 4 and 5 are hereby cancelled.
The articles marked as MOs.1 to 6 shall be preserved for trial of the remaining Accused Nos.1 to 3 and 6.
The office is hereby directed to take personal bond for Rs.50,000/- from Accused Nos. 4 and 5 along with their surety for the likesum as required under Section 437(A) of Cr.P.C.
LXII A.C.C. & S.J, Bengaluru City.15 S.C.No.533/2016 16 S.C.No.533/2016