Bangalore District Court
State By vs A1. Lakshmikantha on 25 February, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 25 th day of February, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.809/2013
COMPLAINANT : State by:
Jnanabharathi Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED : A1. Lakshmikantha
@ Vinay @ Gunda,
S/o Ramakrishnappa,
Aged about 19 years,
R/at No.32,
Near Yeshwanthapura Railway
Station,
Muneshwaranagara, Bengaluru.
(By Sri.M.Gangadhara Shetty,
Advocate.)
A2. Babu @ Choodi Babu,
(Split Up SC.No.632/2020)
DATE OF:
Occurrence of offence : 09.04.2012
Commencement of trial : 14.09.2021
2 S.C.No:809/2013
Closing of trial : 14.12.2021
Name of the complainant: Smt.Ashwini Kumari.
Offence alleged : Under Sections 392 and
413 of IPC.
Opinion of the judge : Charge leveled against the
accused are not proved.
Sentence or order : Acquittal.
JUDGMENT
Jnanabharathi police have filed the present charge sheet against the accused in Crime No.154/2012 for the offences punishable under Sections 392 and 413 of IPC.
2. The brief facts of the prosecution case are that;
a) On 09.04.2012 at about 5:30 p.m., when CW-1 Smt.Ashwini Kumari along with CW-4 Smt.Padma was returning from Anjaneya Temple and walking near the house No.40, 2nd Stage, 3rd A Cross, Nagarabhavi, within the jurisdiction of Jnanabharathi police station, A-1 and A- 2 came from their front side on a black colour Bajaj Pulsar motorcycle bearing registration No.KA-02 HA-5526; the pillion rider A-2 got down and pushed down CW-1 and snatched gold mangalya chain with one plain chain from her neck and escaped from the spot on the said vehicle. 3 S.C.No:809/2013
b) Both the accused have sold and pledged the golden ornaments they have stolen within the limits of different police stations to the jewelry shops, Muthoot Finance and Mannapuram Finance in their names. Accordingly, the complaint was filed.
3. A-1 and A-2 were produced under remand warrant and were in the judicial custody. Since, the case was exclusively triable by the Court of Sessions, the trial Court committed the case to the Court of Principal City Civil and Sessions Judge, Bengaluru by directing the concerned jail authority to produce A-1 and A-2 before the Court of Sessions whenever summoned.
4. On committal of the case, it was allotted to this Court for disposal in accordance with law. Thereafter, A-1 and A-2 were enlarged on bail by this Court.
5. Heard before charge. Charges framed and plea of A-1 and A-2 was recorded for the offences punishable under Sections 392, 411 and 413 read with Section 34 of IPC for which, they pleaded not guilty and claimed to be tried. Hence, the case was posted for common trial. 4 S.C.No:809/2013
6. During the course of trial, since A-2 remained absent and the process issued against him and his surety went in vain, vide order dated 24.02.2020, the case was ordered to be split up against him and registered in SC.No.632/2021.
7. In support of its case, in the course of trial, the prosecution in all got examined 16 witnesses i.e. CWs-5, 1, 6, 4, 10, 7, 9, 8, 18, 21, 12, 19, 14, 11, 13 and 20 respectively as PWs-1 to 16. Got exhibited 31 documents at Ex.P-1 to 31. Got marked 3 material object at MOs-1 to 3 and closed its side.
8. Statement of A-1 was recorded under Section 313 of Cr.P.C. wherein he has denied the evidence against them, but has not led any defence evidence. However, in the course of cross examination of CW-20, the then Executive Magistrate who did the identification parade, the covering letter he has sent with his report is got exhibited as Ex.D-1 by way of confrontation.
9. Heard arguments of both the sides on merits of the case and perused the record.
5 S.C.No:809/2013
10. Out of the above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
1. Whether the prosecution proves beyond all the reasonable doubts that A-1 along with A-2 against whom the case is split up and registered in SC.No.632/2021 with a common intention of committing crime, on 09.04.2012 at about 5:30 p.m., when CW-1 Smt.Ashwini Kumari along withher friend CW-4 Smt.Padma were returning from Anjaneya Temple and walking near the house No.40, 2 nd Stage, 3rd A Cross, Nagarabhavi, within the jurisdiction of Jnanabharathi police station, A-1 and A-2 came from their front side on a black colour Bajaj Pulsar motorcycle bearing registration No.KA-02 HA-5526; the pillion rider A- 2 got down and pushed down CW-1 and snatched gold mangalya chain with one plain chain from her neck and thus, both A-1 and A-2 have committed the offence punishable under Section 392 read with Section 34 of IPC?
2. Whether the prosecution further proves beyond all the reasonable doubts that A-1 along with A-2 against whom the case is split up and registered in SC.No.632/2021 were dishonestly received certain stolen properties i.e., gold chain belonging to CW-1 and others and sold/pledged them at various jewelry shops, Manapuram Finance, Muthoot Finance 6 S.C.No:809/2013 knowing or having reason to believe that those properties were stolen properties and thus, both A-1 and A-2 have committed the offence punishable under Section 411 read with Section 34 of IPC?
3. Whether the prosecution further proves beyond all the reasonable doubts that A-1 along with A-2 against whom the case is split up and registered in SC.No.631/2021 were found habitual receivers/dealers of stolen properties and thus, both A-1 and A-2 have committed the offence punishable under Section 413 read with Section 34 of IPC?
4. What Order?
11. The findings of this Court on the above points are;
1. Points Nos.1 to 3: In Negative.
2. Point No.4 : As per the final order for the following reasons.
REASONS
12. POINTS Nos.1 TO 3:- As these points are interconnected with each other and thus, require commons discussions, to avoid repetitions, they are taken together for consideration.
7 S.C.No:809/2013
13. Before venturing to the discussion on merits of the case, let this Court first to go through the relevant provisions of law for which the charges are framed against these accused i.e., Sections 392, 411 and 413 read with Section 34 of IPC which are extracted here below;
"392. Punishment for Robbery.- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
14. So, let this Court to go through the provision of Section 390 of IPC which deals with "robbery" and it is extracted here below;
"390. Robbery.- In all robbery there is either theft or extortion".
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for the end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear or instant death or of instant hurt, or of instant wrongful restraint.
8 S.C.No:809/2013When extortion is robbery.-
Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear or instant death, or instant hurt, or instant wrongful restraint.
15. So, the essential ingredients for robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily causes or attempts to cause to any person.-
(i) death, or
(ii) hurt, or
(iii) wrongful restrain, or
(iv) fear of instant death, instant hurt, or instant wrongful restraint and the above act(s) is/are done -
(1) in order to the commission of the theft, or (2) in committing the theft, or 9 S.C.No:809/2013 (3) in carrying away or attempting to carry away any property obtained by the theft.
(b) Extortion is robbery when,
(i) At the time of committing extortion the offender is in the presence of the person put in fear.
(ii) The offender commits extortion by putting that person in fear of instant death, hurt, or wrongful restraint -
(1) to that persons, or (2) to some other person.
(iii) By so putting such person in fear, the offender induced the person so put in fear then and there so deliver the thing extorted.
16. The other offence alleged is the offence under Section 411 of IPC and it reads;
"411. Dishonestly receiving stolen property. - Whoever dishonestly receives or retains any stolen property, knowing or having reasons to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both".
17. So, the essential ingredients to attract the above offence are;
10 S.C.No:809/2013
(a) A person dishonestly.-
(i) receives, or
(ii) retains, any stole property.
(b) He knows or has reasons to believe the same to be stolen property.
18. The one more offence alleged is the offence under Section 413 of IPC and it reads;
"413. Habitually dealing in stolen property.- Whoever habitually receives or deals in property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to one year and shall also be liable to fine".
19. The next offence alleged is the offence under Section 34 of IPC which is extracted here below;
"34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone".
20. Keeping in mind the ingredients of the offences alleged observed above, let this Court to consider the case 11 S.C.No:809/2013 of the prosecution and the evidence let in by it to establish the offences alleged against the accused.
21. As noted above, it is the allegation of the prosecution that A-1 and A-2 with a common intention have robbed the gold mangalya chain of CW-1 along with one more plain gold chain from her neck and they are the habitual dealers of the stolen properties by selling and pledging such stolen properties including the gold mangalya chain and other gold plain chain of CW-1 in many financial institutions and thereby committed the offences alleged.
22. To prove its case, as observed above, the prosecution has got examined totally 16 witnesses; got exhibited 31 documents and got marked 3 material objects.
23. The prosecution case begins with the complainant Smt.Ashwinikumari lodging the complaint and ends with CW-21 the then PI Sri.Balaraju on completion of investigation, filing the charge sheet against both the accused.
12 S.C.No:809/2013
24. The case of the prosecution in chronological order is that;
a) On receipt of the complaint at Ex.P-3, the complainant police registered the case; prepared the FIR at Ex.P15; submitted the same to the jurisdictional Magistrate;
b) Conducted the spot mahazar at Ex.P-7;
c) Secured both the accused; recovered the properties i.e., a gold mangalya chain (i.e., MO-1 in the connected case in SC.No.853/2013), a motor cycle appearing in Ex.P- 18 and 19, two number plates at MOs-1 and 2 as well as a cutter/knife at MO-3 vide Ex.P-1;
d) On the voluntary statements of both the accused at Ex.P-20 and 21, recovered properties vide seizure mahazars at Ex.P-10 and 25 amongst which, the plain gold chain of this case is also one (i.e., the gold chain at Sl.No.1 at Ex.P-10) and the gold mangalya chain of this case (i.e., the gold mangalya chain at Sl.No.1 in Ex.P-25);
e) Got identified the plain gold chain and gold mangalya chain from CW-1 i.e., the gold plain and gold 13 S.C.No:809/2013 mangalya chains appearing in the photo at Ex.P-4 and the motor cycle appearing at Ex.P-18 and 19;
f) Got conducted the identification parade through CW-20 the then jurisdictional Executive Magistrate vide Ex.P-6 and 31;
g) In compliance of the order of the concerned Magistrate, released the plain gold chain and gold mangalya chain to CW-1 on getting executed the necessary indemnity bond at Ex.P-5 and on completion of the investigation, filed the charge sheet.
25. Let this Court to go through the evidence on record in support of the prosecution case/allegations noted above. It is in the complaint at Ex.P-3 that;
a) On 09.04.2012, around 5:30 p.m., the complainant and her friend CW-4 Smt.Padma were moving by walk in front of House No.40, 3rd A Cross, near Hegde Park, Nagarabhavi.
b) By that time, two unknown persons were on a motor cycle at a distance by parking it.
c) The pillion rider all of as sudden came from their back side and and snatched a gold mangalya chain 14 S.C.No:809/2013 weighing around 40 grams along with a gold plain chain weighing around 10 grams and escaped therefrom by pushing her down and causing injuries to her.
d) In shock, she could not see the motor cycle number and her friend CW-4 also did not see the motor cycle number.
e) The said persons are of the age group between 20 - 25 years.
f) The rider worn green checks shirt and she could not see the dress of another person. She can identify them.
g) The worth of the chains snatched may around Rs.98,000/- and and accordingly, sought for action against the said persons.
26. There is an endorsement in Ex.P-3 by the then SHO received the complaint i.e., CW-18 the then PI Sri.Lakshminarayana Prasad that it was received on 09.04.2012 at 6:30 p.m. and the case was registered in Cr.No.154/2012 for the offence under Section 392 of IPC.
27. The FIR at Ex.P-15 on record is in support of the above endorsement at Ex.P-3.
15 S.C.No:809/2013
28. It is on prosecution papers that after registering the case and preparing the FIR, it was sent to the jurisdictional Magistrate and thereafter on the same day, CW-18 visited the spot; CW-1 showed the spot to him; he conducted the spot mahazar at Ex.P-7 in the presence of the panchas CW-2 Sri.Chethan and CW-3 Sri.B.S.Raju in between 7:00 p.m. and 8:00 p.m.
29. CW-3 is not examined and it is reported that CW- 2 is dead. Thus, there is no supportive evidence to the oral testimony of CW-18 in respect of the spot mahazar at Ex.P-
7.
30. It is also in the police papers that on completion of the spot mahazar proceedings, CW-18 recorded the statement of CW-4 the eye witness to the incident who was moving with CW-1 and her statement is on record at Ex.P- 9 of which the recitals are in support of the prosecution case.
31. But, CW-4 who is examined as PW-4 has deposed that while returning from music practice, CW-1 fell down and she rushed to lift her/CW-1 and she has specifically stated that she does not know both the accused present 16 S.C.No:809/2013 before the Court and she did not give statement before the police that she saw the person snatched the chains from the neck of CW-1 and she will identify them. Thus, she completely turned hostile to the prosecution.
32. It is also the case of the prosecution that the further investigation of the case was done on 10.12.2012 when, CWs-14 to 17 i.e., the then ASI Sri.Shivanna, the then HC-4160 Sri.Shivabasappa, the then PCs Sri.Chandrappa and Sri.Vijayakumar respectively who were deputed in search of the accused and properties, brought both the accused along with the properties and produced before CW-21 the IO who did the further investigation of the case on hand with the report of CW-14 at Ex.P-16.
33. It is in Ex.P-16 that;
a) All the above patrolled within the limits of their station i.e., Mallathalli, Papareddipalya; contacted their informants and asked them to collect the information with regard to the accused and the properties.
b) When they were near Papareddypalya Circle around 8:00 a.m., the informants called them over phone 17 S.C.No:809/2013 and told that two persons moving around over a Bajaj Pulsar motor cycle near the jewelry shops/pawn brokers' shops suspiciously.
c) Hence, they rushed to the said spot and on the informants showing the suspects at a distance, they covered the suspects and enquired, but the suspects did not give proper answers in respect of their presence in the said spot and not furnished the vehicular documents of the vehicle in their possession.
d) Accordingly, they checked the vehicle and found two number plates of the same number and a knife in the motor cycle tank cover.
e) They also found two layers gold mangalya chain in the possession of one of the suspects when the suspects were subject to the body search.
f) When enquired, the suspect in possession of the said gold chain, said that it belongs to him and his name is Lakshmikantha @ Vinay @ Gunda S/o Ramakrishna, 29 years, R/o No.32, Near Yeshwanthapura Railway Station, Muneshwaranagar, Yeshwanthapura, Bengaluru and another suspect is Babu @ Chudibabu S/o Amir Jan, 35 18 S.C.No:809/2013 years, R/o - (no number is mentioned), TB Extension, Nagamangala Town, Mandya District.
g) On suspicion that the suspects might have robbed the said chain somewhere and came to sell the same to jewelry shop, they brought the suspects with the above properties and the motor cycle as well as produced them before CW-21 at 9:00 a.m.
34. Amongst CWs-14 to 17, CW-14 is examined as PW-13. The evidence of CW-14 is in corroboration with the recitals at Ex.P-16 in respect of production of both the accused and the properties before CW-21 with his report at Ex.P-16 and it is supported by the oral evidence of CW-21.
35. It is also in the prosecution papers that in continuation of the investigation, CW-21 secured the presence of the panchas CW-5 Smt.Chennamma and CW-6 Sri.Krishnaiah; by conducting the mahazar at Ex.P-1 in their presence in between 10:00 a.m. and 11:00 a.m., in the station, he seized the properties from both the accused i.e., the motor cycle appearing in Ex.P-18 and 19, the gold mangalya chain (MO-1 in SC.No.853/2013), two number 19 S.C.No:809/2013 plates at MOs-1 and 2, a cutter/knife at MO-3 in the possession of both the accused.
36. Both the panchas i.e., CWs-5 and 6 who are respectively examined as PWs-1 and 3 though admitted their signatures at Ex.P-1, they completely turned hostile with regard to the seizure procedures; identification of the properties and the accused as well as the recitals at Ex.P-1 and thus, there is no supportive evidence to the oral testimony of CW-21 in that regard and thereby to the case of the prosecution.
37. It is the case of the prosecution that in the course of further investigation, CW-21 recorded the voluntary statements of both the accused at Ex.P-20 and 21 respectively; produced them before the jurisdictional Magistrate and took them to the police custody and on 11.12.2012, he deputed the then PSI CW-19 Sri.Imthiyaz Patel for recovery of the properties on the voluntary statements of the accused.
a) CW-19 visited Hassan and as led by both the accused, in the shop of CW-10 Sri.Srikantha by conducting the mahazar at Ex.P-10 in between 10:30 a.m. and 12:30 20 S.C.No:809/2013 p.m., 9 gold ornaments were seized from the receiver of the properties i.e., Sri.Srikanth CW10 in the presence of panchas CW-7 Sri.Pavan who is the younger brother of CW-10 and CW-8 Sri.Nikhil as well as the mediator CW-9 Sri.Manju through whom the accused sold the gold chains they snatched to CW-10 and item No.1 described at Ex.P- 10 is the plain gold chain of CW-1.
b) On 12.12.2012 as led by A-1 and A-2, CW-19 along with the police staffs visited Muthoot Finance at Goragunte Palya and seized 3 gold chains from CW-11 Sri.Jagannatha Reddy the then Manger-in-charge of the said Finance by conducting the seizure mahazar in the presence of panchas CW-12 Sri.Chandrashekhar and CW- 13 Sri.Raghavendra in between 2:00 p.m. and 3:30 p.m. vide Ex.P-25 and the item No.1 described at Ex.P-25 is the gold mangalya chain of CW-1.
38. All the witnesses to Ex.P-10 i.e., CWs-7 to 10 are examined as PWs-6, 8, 7 and 5 respectively and they completely turned hostile to the prosecution.
39. Similarly in respect of Ex.P-25, CWs-11 to 13 are respectively examined as PWs-14, 11 and 15. In his chief 21 S.C.No:809/2013 evidence, CW-11 though only has stated that in the year 2012, Yeshwanthaprua police came to their Finance and he gave 3 separate pockets of the gold ornaments which were pledged to raise god loan and he does not remember the details, in the course of cross examination by the prosecution, he has admitted that;
a) On 12.12.2012, Jnanabharathi police brought 2 accused persons to their Finance who pledged 3 gold chains and raised gold loan;
b) He produced the said 3 gold chains and the gold pledge receipts before the police which were seized by them; and
c) He has identified two gold pledge receipts on record at Ex.P-28 and 29 and also admitted that;
(i) They learnt that the said 3 gold chains were snatched/robbed chains and they handed over the same to the police; and
(ii) By then, CW-13 was also present in the Finance, but has stated that he does not remember as to, whether the chains appearing in the photo at Ex.P-4 are the chains out of the said 3 gold chains he handed over to the police. 22 S.C.No:809/2013
40. Though in his chief evidence itself, he has identified the seizure mahazar at Ex.P-25 and his signature at Ex.P-25(c), he has stated that he does not remember, whether he saw the accused present in the open Court prior to his deposition before the Court and he has denied that though he knows well the accused, to help them, he gave false evidence.
41. Thus, CW-11 though supported the prosecution in respect of seizure procedures, seizure of 3 gold chains/mangalya chains and 3 gold pledge receipts and identified two gold pledge receipts at Ex.P-28 and 29 as well as the presence of two accused at that time, he turned hostile with regard to identification of the gold chains and the accused persons. That apart interestingly, out of 3 gold pledge receipts seized vide Ex.P-25, only two at Ex.P-28 and 29 are on record.
42. On the other hand, the sum and substance of the evidence of CWs-12 and 13 is that the police came to their Finance; seized the gold ornaments pledged by one Lashmi Kantha and others; they do not know the accused present before the Court and do not remember whether the gold 23 S.C.No:809/2013 chains appearing in the photo at Ex.P-4 involve the gold chains seized in their Finance.
43. In addition, though CW-13 identified the gold pledge receipts, he has stated that he does not remember whether those receipts were seized by the police when they came to their Finance and seized the gold ornaments and there is nothing in the evidence of CW-12 with regard to the gold pledge receipts.
44. Thus, the evidence of CWs-11 to 13 though in support of the prosecution with regard to the seizure of the gold chains, gold pledge receipts and the presence of two accused persons with the police at the time of seizureand the identification of the gold pledge receipts at Ex.P-28 and 29, their evidence is not helpful to the prosecution with regard to the identification of the accused and the gold chains.
45. Therefore, in view of all CWs-7 to 10 completely turning hostile and CWs-11 to 13 turning hostile with regard to identification of the accused and the gold chains, there is no supportive evidence on record to the oral evidence of CW-21 in respect of the case of the prosecution 24 S.C.No:809/2013 about the seizer of the snatched gold chains vide Ex.P-10 and 25.
46. That apart, the IO who seized the properties vide Ex.P-10 and 25 i.e., CW-19 who is examined as PW-12, though deposed supporting Ex.P-10 and 25, in his cross examination, CW-19 has admitted in respect of Ex.P-10 that;
a) Apart from his chief evidence, no where in any of the police papers on record, there is mention that he secured CW-9 in Channarayapatna on A-1 showing CW-9;
b) There is no mention in any of the police papers with regard to mode of conveyance to Hassan i.e., hiring a private vehicle as stated in his chief evidence;
c) There is no mention in respect of the fact that CWs-14 to 17 accompanied him to Hassan apart from referring as "staffs" in Ex.P-10 and in respect of Ex.P-25 that there are only two gold pledge receipts on record out of the alleged three gold pledge receipts seized vide Ex.P-25.
47. Thus, in view of no supportive evidence from the mouth of any of the panchas to Ex.P-10 and P-25, the above discrepancies/contradictions in the evidence of CW- 25 S.C.No:809/2013 19 is also some what fatal to the case of the prosecution in respect of the seizure of the gold chains alleged to be snatched vide Ex.P-10 and 25.
48. It is also in the prosecution papers that on the same day i.e., 12.12.2012, CW-21 secured CW-1; got identified the motor cycle appearing at Ex.P-18 and 19 as well as the plain gold chain and gold mangalya chain i.e., appearing at Ex.P-4 and recorded the further statement of CW-1 in that regard.
49. The above prosecution case is supported by the oral evidence of CWs-1 and 21. But as noted above, as per Ex.P-3, the plain gold chain snatched was weighing around 10 grams and as per the seizer mahazar at Ex.P-10 and the related PF at Ex.P-23, the weight of the plain gold chain is 7 grams. On the other hand, the gold mangalya chain snatched was weighing around 40 grams as per Ex.P-3 and as per the seizure mahazar at Ex.P-25 and the related PF at Ex.P-23, it is weighing around 30.9 grams.
50. Of course, the weight stated in the complaint at Ex.P-3 is an approximate weight. But, admittedly, the said chains are not produced before the Court and no reason 26 S.C.No:809/2013 has been assigned for non production of the said chains. Hence, though the photo of the gold chains snatched at Ex.P-4 is on record, with regard to the weight of chains alleged to be snatched and seized, the above noted contradiction remained on record.
51. It is the case of the prosecution that in the course of further investigation, on 18.12.2012, CW-21 made requisition to the Court seeking directions to the concerned Tahsildar to conduct the identification parade vide Ex.P-24 and on 14.03.2013, he received the identification parade records at Ex.P-6 and 31.
52. It is in Ex.P-24 that the incident took place in the day time and CW-1 has stated that she has clearly observed the accused and she will identify him if she sees him again. Hence, requested for direction to the concerned Tahsildar to conduct identification parade for the identification of the accused who were in judicial custody in Central Prison, Parappana Aghrahara and also for the direction to the Jail Superintendent to allow to conduct the identification parade.
27 S.C.No:809/2013
53. As noted above, the questionnaire and the proceedings in respect of the identification parade are on record at Ex.P-6 and 31 respectively and they are both dated 08.03.2013.
54. So, it is clear that, though the accused were traced and were taken into custody on 10.12.2012; though CW-1 was secured on 12.12.2012 for identification of properties; the requisition was made on 18.12.2012 seeking identification parade; the identification parade was conducted on 08.03.2013 i.e., nearly after 3 months from the date of securing the accused and the same is admitted by both CWs-20 and 21 in their cross examination.
55. Ex.P-6 is the printed format and there are 7 questionnaires i.e., (1) Why the witness came there? (2) Whether she was present at the time of incident/crime? (3) How many persons involved in the incident/crime? (4) Whether she witnessed the incident/crime? (5) Can she identify the persons standing in the row? (6) Identify him/them? (7) Give the reason for identification and the relevant answers for the case recorded in Ex.P-6 are that she is the victim of the crime and she saw the accused at 28 S.C.No:809/2013 the time of incident; the accused were two persons and they were at Sl.Nos.6 and 10 in the row.
56. The proceedings at Ex.P-31 reflects that the identification parade was conducted on 08.03.2013 (time is not mentioned) and CW-1 identified A-1 Lakshmikantha who was at Sl.No.6 in the row; and A-2 Babu @ Chudi Babu at Sl.No.10; CW-1 identified A-1 correctly, but not A- 2: the names and UTP numbers of all the 10 persons taken in the identification parade are noted down.
57. The Executive Magistrate who did the identification parade i.e., Sri.N.R.Umesh Chandra is cited as CW-20 in the charge sheet and he is examined as PW-
16. In his chief evidence he has stated about the identification parade he did and identified Ex.P-6 and 31 as well as his signatures therein at Ex.P-6(b) and 31(b).
58. As per the evidence of CW-20 and Ex.P-6 and 31, number of persons participated in the identification parade is 10, but it is in the cross examination of CW-1 that it was
25.
59. There is nothing about the fact on which CW-1 identified A-1 and admittedly, there is no mention about 29 S.C.No:809/2013 the physical features and gait in the complaint and the same is admitted by CWs-1, 18 and 21. So far A-2, as per the case of prosecution itself, CW-1 did not identify the proper person i.e., A-2 and she identified some other person as A-2.
60. Hence, from the above evidence let in by the prosecution, the prosecution is of course successful to establish,
a) The date, time and place of the alleged crime;
b) CW-1 lodging the complaint at Ex.P-3 in respect of the alleged crime;
c) On receipt of complaint, the complainant police registering the case, preparing the FIR, submitting the FIR to the jurisdictional Magistrate; but has failed to establish,
(i) In the course of investigation, the IO CW-18 conducted the spot mahazar at Ex.P-7 as there is no supportive evidence to the oral evidence of CW-18 since CW-2 reported dead and CW-3 is not examined;
(ii) The identification of A-2;
(iii) The seizure of alleged gold chains snatched from the neck of CW-1 vide Ex.P-10 and P-25 as all the panchas 30 S.C.No:809/2013 to Ex.P-10 completely turned hostile and the panchas to Ex.P-25 turned hostile in respect of the identification of the gold chains and the accused persons;
(iv) To let in the corroborative evidence in respect of securing the presence of the accused and seizure of the properties from their possession vide Ex.P-1; and
(v) To let in the fact on which CW-1 identified A-1 when there is no mention with regard to the identification of both the accused in particular A-1 in the complaint at Ex.P-3 which are material facts to be proved by the prosecution in support of its allegations against A-1 and A- 2 for the offences alleged.
61. That apart, as noted above, CW-1 has stated that the pillion rider A-2 came from the backside and snatched her gold chains and the same is supported by the statement of CW-4 Smt.Padma at Ex.P-9. But, it is the case of the prosecution that both the accused came from the front and CW-4 completely turned hostile to the prosecution.
62. Hence, from the above observations, it is clear that the prosecution has failed to establish its allegations 31 S.C.No:809/2013 against A-1 beyond all reasonable doubts for the offences alleged. Accordingly, these points are answered in negative.
63. POINT No.4:- From the above observations, and findings on points Nos.1 to 3, this Court proceeds to pass the following order.
ORDER Acting under Section 235(1) of Cr.P.C., A-1 is hereby acquitted for the offences punishable under Sections 392, 411 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 if any shall be canceled after lapse of appeal period.
The release of gold mangalya chain and a gold plain chain i.e., Item No.1 in PF.No.238/2012 dated 12.12.2012 and Item No.1 in PF.No.232/2012 dated 11.11.2012 respectively appearing in Ex.P-4 in favour of CW-1 by getting executed indemnity bond at Ex.P-5 dated 16.01.2013 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 I.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-1 to 3, no order is passed as the 32 S.C.No:809/2013 disposal order in respect of the above properties are passed in the connected SC.No.853/2013.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 25th day of February, 2022).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE
PROSECUTION:-
PW.1 Smt.Chennamma
PW.2 Smt.Ashwini Kumari
PW.3 Sri.K.Krishnaiah
PW.4 Smt.Padma
PW.5 Sri.Srikanth
PW.6 Sri.Pawan
PW.7 Sri.Manju
PW.8 Sri.Nikhil
PW.9 Sri.H.Lakshminarayana Prasad
PW.10 Sri.Balaraju.B
PW.11 Sri.Chandrashekar
PW.12 Sri.Imtihaz Patel
PW.13 Sri.Shivanna
PW.14 Sri.Jagannath Reddy
PW.15 Sri.Raghavendra
PW.16 Sri.Umesh Chandra.N.R.
LIST OF WITNESS EXAMINED FOR DEFENCE:-
- None -33 S.C.No:809/2013
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:-
Ex.P-1 Seizure Mahazar dated 10.12.2012 Ex.P-1(a) Signature of PW1 Ex.P-1(b) Signature of PW3 Ex.P-1(c) Signature of PW10 Ex.P-2 Portion of Statement of PW1 Ex.P-3 Complaint Ex.P-3(a) Signature of PW2 Ex.P-3(b) Signature of PW9 Ex.P-4 Photo of the gold chains Ex.P-5 Indemnity Bond Ex.P-5(a) Signature of PW2 Ex.P-5(b) Signature of PW10 Ex.P-6 Questionnaire Ex.P-6(a) Signature of PW2 Ex.P-6(b) Signature of PW16 Ex.P-7 Spot Mahazar Ex,P-7(a) Signature of PW2 Ex.P-7(b) Signature of PW9 Ex.P-7(c) Signature of CW2 Ex.P-7(d) Signature of CW3 Ex.P-8 Portion of Statement of PW3 Ex.P-9 Portion of Statement of PW4 Ex.P-10 Seizure Mahazar dated 11.12.2012 Ex.P-10(a) Signature of PW5 Ex.P-10(b) Signature of PW6 Ex.P-10(c) Signature of PW7 Ex.P-10(d) Signature of PW8 Ex.P-10(e) Signature of PW12 Ex.P-11 Portion of Statement of PW5 34 S.C.No:809/2013 Ex.P-12 Portion of Statement of PW6 Ex.P-13 Portion of Statement of PW7 Ex.P-14 Portion of Statement of PW8 Ex.P-15 FIR Ex.P-15(a) Signature of PW9 Ex.P-16 Report of PW13 Ex.P-16(a) Signature of PW10 Ex.P-17 True Copy of PF No.231/2012 Ex.P-17(a) Signature of PW10 Ex.P-18 & Photos of Bajaj Pulsar Motor Cycle Ex.P-19 Ex.P-20 & Voluntary Statements of A1 and A2 P-21 Ex.P-22 True Copy of PF Form No.233/2012 Ex.P-22(a) Signature of PW10 Ex.P-23 PF Form No.238/2012 Ex.P-23(a) Signature of PW10 Ex.P-24 Requisition to conduct Identification Parade Ex.P-24(a) Signature of PW10 Ex.P-25 Seizure Mahazar dated 12.12.2012 Ex.P-25(a) Signature of PW11 Ex.P-25(b) Signature of PW14 Ex.P-25(c) Signature of PW15 Ex.P-25(d) Signature of PW10 Ex.P-26 Portion of Statement of PW11 Ex.P-27 Memo dated 11.12.2012. Ex.P-28 & Pledge Receipts of Muthoot Finance P-29 35 S.C.No:809/2013 Ex.P-30 Portion of Statement of PW15 Ex.P-31 Proceedings of Identification Parade Ex.P-31(a) Signature of PW16 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE :-
Ex.D-1 Covering letter of PW-16.
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:-
MO-1 & 2 Number Plates (2 in numbers) MO-3 Cutter/knife LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:-
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.36 S.C.No:809/2013
The accused No.1 and his counsel are present.
The Order is pronounced in the open Court (vide separate Judgment).
ORDER Acting under Section 235(1) of Cr.P.C., A-1 is hereby acquitted for the offences 37 S.C.No:809/2013 punishable under Sections 392, 411 and 413 read with Section 34 of IPC. The bail bonds and the surety bonds executed by and on behalf of A-1 if any shall be canceled after lapse of appeal period.
The release of gold mangalya chain and a gold plain chain i.e., Item No.1 in PF.No.238/2012 dated 12.12.2012 and Item No.1 in PF.No.232/2012 dated 11.11.2012 respectively appearing in Ex.P-4 in favour of CW-1 by getting executed indemnity bond at Ex.P-5 dated 16.01.2013 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 I.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-1 to 3, no order is passed as the disposal order in respect of the above properties are passed in the connected SC.No.853/2013.
LXVI Addl.CC & SJ, Bangalore.
38 S.C.No:809/2013