Bangalore District Court
State By Jp Nagara vs Fayaz Pasha on 5 November, 2022
KABC030125422021
IP
NAIK
Digitally signed
by I P NAIK
Date: 2022.11.05
IN THE COURT OF THE 30TH ADDL.CHIEF
15:36:55 +0530
METROPOLITAN MAGISTRATE, BENGALURU
Dated: This the 5th day of November, 2022
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 3815/2021
Date of Offence 22.11.2020
Complainant State by JP Nagara, Police
Station.
V/s.
Accused Fayaz Pasha
S/o.Late Abdul Khader,
Aged about 35 years,
R/at.3rd Cross,
Near Jameer Clinic,
Darga Mohalla Tower,
Kolar Town.
Offences U/s.380 of IPC.,
Plea Recorded on 02.12.2021 and
accused person Pleaded not
guilty.
2 C.C.No.3815/2021
313 Statement recorded On 07.10.2022
on:
Final Oder Accused is acquitted
Date of Order 05-11-2022
*****
JUDGMENT
The PSI of JP nagara, Police Station has filed charge sheet against accused persons for the offences punishable U/s.380 of IPC.,
2. The brief facts of the prosecution case are as follows:
It is alleged that, CW1-Adesh Prasad, and CW2-Athish Gaganrao are residing at House situated at 2 nd floor, Ikya No.17, 4th Main, shakambari nagar, JP Nagar 1st Phase, within the territorial limits of JP Nagar, Police Station. Further, it is alleged that, on 22.11.2020 at about 7.00pm accused tress passed into the said house by opening the window installed at the 1 st floor and has stolen mobile phones, two golden bangles, cash of Rs.11,000/-, debit card and cash of Rs.12,500/- kept in the purse with 3 C.C.No.3815/2021 dishonest intention, without the consent of CW1 and CW2. Hence, accused is charge sheeted.
3. CW1 Adesh Prasad lodged complaint before the CW9- PSI- Yogesh Khana Gowda, based on that, CW9 registered the case and forwarded the FIR to this court. Thereafter, he has rushed to the spot and conducted the SO mahazar in the presence of panchas. Further, CW9 deputed his staff for search and caught hold of the accused. On 7.12.2020 CW7 and other staff caught hold accused and produced before this court cW9 with report. After arrest accused is interrogated the accused voluntarily confessed that, he has stolen 3 mobiles phones from the house of CW1. Same are produced before the CW9. The said 3mobiles are seized by the CW9 by drawing mahazar and reported to this court under P.F.No.114/2020. On 8.12.2020, CW9 summoned the CW1 and CW2 for identification of the mobiles. Thereafter, IO recorded the statement of the witnesses. After completing other formalities, IO has filed charge sheet against the accused person. 4 C.C.No.3815/2021
4. During investigation accused is enlarged on regular bail. By considering charge sheet and other materials this court taken cognizance and ordered for register the case against the accused in register-III. In pursuance to the summons, accused appeared through his counsel, copy of the charge sheet and other materials supplied to accused.
5. Charge is framed, contents of charge have been read over and explained to the accused person in the language known to him, he pleaded not guilty and claimed to be tried, hence, the prosecution is called upon to prove its case.
6. In order to prove the guilt of the accused persons, prosecution has examined 5 witnesses as PW1 to PW5 and 6 documents are got marked as Ex.P.1 to P.6. In order to secure other remaining witnesses, this court issued Summons, NBW and Proclamation. But the concerned police failed to secure this witnesses. Finally this court opined that there is no meaning in reissuing of Summons, NBW and Proclamation. Accordingly, prayer 5 C.C.No.3815/2021 of learned Sr.APP is rejected and other remaining witnesses are dropped.
7. Thereafter, statement of the accused person recorded U/s.313 of Cr.P.C. Accused has denied the incriminating evidence in the prosecution evidence. Accused has not chosen to lead his side evidence and no documents are marked on their behalf.
8. Heard both the side and perused the material evidence on record.
9. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, CW1-Adesh Prasad, and CW2-Athish Gaganrao are residing at House situated at 2nd floor, Ikya No.17, 4th Main, shakambari nagar, JP Nagar 1st Phase, within the territorial limits of JP Nagar, Police Station. Further, it is alleged that, on 22.11.2020 at about 7.00pm accused tress passed into the said 6 C.C.No.3815/2021 house by opening the window installed at the 1st floor and has stolen mobile phones, two golden bangles, cash of Rs.11,000/-, debit card and cash of Rs.12,500/- kept in the purse with dishonest intention, without the consent of CW1 and CW2 and thereby committed an offence punishable under Section 380 of IPC, within my cognizance.?
2. What order.?
10. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : As per final order
......................... for the following.., REASONS
11. Point No.1:- In this case, PW1 Adesh Prasad stated that, his house is situated at Shakambari Nagar, on 22.11.2020 during mid night the articles kept on the bed like, 3 mobiles, one debit card, two olden bangles and Cash of Rs.11,000/- and cash of 7 C.C.No.3815/2021 Rs.12,500/- kept in the purse were stolen by some unknown persons. In this regard, he has lodged the complaint and thereafter, police have come to the spot and conducted SO mahazar.
12. PW2-Arun Balukumar deposed that, on 22.11.2020 at mid night 3 mobiles, cash of Rs.11,00/ two golden bangles, debit car and cash of Rs.12,500/- kept in the purse are stolen by unknown persons.
13. PW4-Ateesh Gagan Rao stated that police came to the spot and drawn mahazar in respect of the articles stolen from the house of PW1.
14. PW5-PSI_ Yogesh Khana Gowda categorically deposed that, on 22.11.2020 at about 12.00pm Pw1 lodged the first information statement, Ex.P.1 before him. Based on that, he has registered the case and forwarded the FIR Ex.P.5 to this court. On same day, he has rushed to the spot and conducted SO mahazar 8 C.C.No.3815/2021 Ex.P.2 Thereafter, he has deputed his staff for arrest and caught hold of the accused.
15. On 7.12.2020, staff of JP Nagar police have caught hold the accused and produced him before the PW5. Thereafter, he has interrogated the accused. During interrogation, accused stated that, he has stolen the mobiles from the house of PW1 and same are produced before the Pw5. The said mobiles are recovered by the Pw5 by drawing seizure mahazar Ex.P.4 in the presence of independent witnesses.
16. By considering the oral testimony of PW1 to PW5 it reveals that, there is no proper evidence against the accused to prove the guilt of the accused for the offence punishable U/s.380 of IPC. Admittedly, in all theft cases prosecution relied on the circumstantial evidence. Under such situation, the prosecution always requires to prove the golden principles laid down by the Honb'ble Apex Court in the decisions reported below:- 9 C.C.No.3815/2021
AIR 1984 SC 1622 Sharad Biradhi chand Sarda Vs. state of Maharashtra If the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and must be or should be proved' as was held by this court in Shivaji Saheb Rao Bodade Vs. State of Maharashtra (AIR 1972 SC 2622) where the following observaions were made:
"certainly it is a primary principle that the accused must be and not merrely may be gu8ilty before a court can convict and the mental distance between 'may b' and ' must be' is long and divided value conjectures from score conclusions.
2: the facts so established should be consistent only with hypothesis of the guilt of the accused, that it is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. the circumstances should be of a conclusive nature and tendency.
4. they should exclude very possible hypothesis except the one to be proved and
5. these must be a chain of evidence so complete as not to leave any reasonable round for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
17. By following the golden principles I have examined and annalysed the oral testimony of PW1 to PW5 and recitals of Ex.P.1 to P.6. During cross-examination PW1 stated that in his house 10 C.C.No.3815/2021 there are 3 persons residing and he has not furnished the details to the Police. Further stated that, other houses are situated in the different floors. Rest of the cross-examination of PW1 is denial by suggestions. The said suggestions ae categorically denied by the Pw1 in his cross-examination.
18. PW2 deposed in his cross-examination that, he is not aware about any other property stolen from different houses situate din their building. On 8.12.2020, he has not gone anywhere. Remaining part of the cross-examination is denied by the learned counsel for the accused by putting suggestions. The said suggestions are denied.
19. PW4 stated that, he has subscribed his signature in the house of PW1. Further, he stated that, he is not aware of recitals of Ex.P.2 But this itself is sufficient to prove the cross-examination of pw5 IO stated that, he has not issued notice to panchas. Further, he has explained that, at that time, had no time to issue notice. Therefore, he orally intimated to witnesses. By considering the oral 11 C.C.No.3815/2021 testimony of PW1, PW2, PW4, PW5 and recitals of Ex.P.1 & P.2 it clearly shows that, articles cited in the Ex.P.1 ie., 3 mobiles, DL, Debit card, cash of Rs.11,000/- and 2 golden bangles and cash of Rs.12,500/- kept in the purse are stolen by the unknown persons. In this case, PW1 lodged complaint. Thereafter, PW5 rushed to the spot and conducted the mahazar.
20. PW5 categorically stated that, on 8.12.2020, he has summoned the PW1 and PW2 for identification of the articles. PW1 and PW2 categorically stated that, they have went to the Police Station and identified their mobiles as seen from the Ex.P.3 photo and taken them to their interim custody as per the orders of this court. By considering all these aspects the prosecution successfully proved one things, ie., 3 mobiles as seen from the photo Ex.P.3 are stolen by unknown persons.
21. As per the illustrations A of Section 114 of the Indian Evidence Act and guidelines issued by the Supreme Court in Sharada Biradi Chand's case (supra) the prosecution proved the 12 C.C.No.3815/2021 fact of seizure of the articles from the custody of the accused soon after the theft.
22. In this case, I have carefully examined the oral testimony of the PW1 and PW2. PW1 and PW2 categorically stated that on 8.12.2020 police have summoned him for identification of the accused when they have went to the Police Station, police have shown the accused who has stolen the articles belonged to them.
23. PW5 during interrogation of the accused voluntarily confessed in respect of stolen of the mobiles phones from the house of PW1 and PW2. According section 25 and 26 of the Indian Evidence Act, whenever confession is recorded by the police, it is not at all admissible in the evidence.
24. The main basic documents Ex>P.4 for recovery of the mobiles from the custody of the accused. According to recitals of the has seized the mobilize in JP Nagar Police Station on 7.12.2020. In order to prove this fact, prosecution relied on the evidence of 13 C.C.No.3815/2021 PW3-Venkata Krishna Reddy who is independent witnesses and witness to seizure mahazar Ex.P.4. He deposed that, on 7.12.2020, police came to the APMC market situated at Kolar and seized the mobiles which hare seen from Ex.P.3 The learned Sr.APP has cross-examined these witnesses by treating hostile and specifically stated that the mobiles are seized by the IO in the Police Station. This suggestions is denied. Further, during cross-examination of PW3, the learned counsel for the accused specifically stated that you are identified the accused for the first time in the court, without denying this suggestions, PW3 categorically stated that he has sen the accused when he was escorted to Kolar. By considering the oral testimony of PW3 summarizing and annalyisng the recitals of Ex.P.4 it is quite contrary. It is not prosecution case that, police escorted the accused to APMC Market Kolar and seized the mobiles. By considering the oral testimony of PW3, it creates serious doubt in respect of recovery of mobiles by drawing mahazar Ex.P.4 in the Police Station. Further, Hon'ble Apex Court held in Subramani Vs. State of Karnataka in Cr.A.No.242/2022 dated 3.10.2022 their lordship held that, recovery must be proved by the prosecution by 14 C.C.No.3815/2021 examining independent witnesses. In this case also, prosecution has examined one independent witnesses ie. PW4, but his evidence is not reliable one. By considering all these aspects I am of the opinion that, prosecution utterly failed to prove the guilt of the accused person beyond reasonable doubt and also there is no complete chain of link. The said view is not proved by the prosecution independently. By considering all these aspects, I am of the opinion the prosecution, prosecution has utterly failed to prove the guilt of the accused persons. Accordingly, Point No.1 is answered in the Negative.
23. Point No.2: In view of the Negative findings on the above point No.1, I proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.380 of IPC., The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.15 C.C.No.3815/2021
The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(Dictated to the Stenographer through computer and after corrections made by me and then pronounced by me in the Open Court on this the 5 th day of November, 2022).
(I.P Naik.) 30 A.C.M.M., B'lore.
th ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Adesh Prasd
P.W.2 : Arun Balu Kumar
P.W.3 : Venkata Krishna Reddy
P.W.4 : Ateesh Gagan Rao
P.W.5 : Yogesh Khan Gowda
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : Complaint
Ex.P.2 : Mahazar
Ex.P.3 : Photo
Ex.P.4 : SO Mahazar
Ex.P.5 : FIR
Ex.P.6 : Report
16 C.C.No.3815/2021
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE NIL
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION NIL (I.P.Naik) 30th Addl.C.M.M., B'lore.
17 C.C.No.3815/2021Judgment pronounced in Open Court vide separate:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.380 of IPC., The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437 (a) of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(I.P.Naik) 30th Addl.C.M.M., B'lore.18 C.C.No.3815/2021