Bangalore District Court
State By Jayanagara P.S vs Are Not Admissible In Evidence. Though ... on 3 January, 2023
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C.C.No.9628/2012
IN THE COURT OF THE XXXVII ADDL.CHIEF METROPOLITAN
MAGISTRATE, BANGALORE CITY.
Dated this the 3rd day of January, 2023
Present: Sri B.MOHAN BABU, B.A., L.L.B.,
XXXVII Addl. C.M.M., Bangalore.
C.C. No.9628/2012
(mother C.C.No.2999/2008)
JUDGMENT UNDER SEC.355 OF CR.P.C.,
1. Complainant: State by Jayanagara P.S.
V/S
2. Accused: A1 Ganesh (splitup)
A2 Manjunatha @ Manju,
@ Motte S/o Ramaiah,
Age 19 years,
R/at No.120, 2nd Cross Road,
16th Main Road, Near Guddath School,
Balaji nagar, Tavarekere.
A4 Ravichandra. N.,
@ Ravi, S/o V.Nagaraju,
Age 20 years,
No.7, 5th Cross Road, Bovi colony,
Tavarekere Main Road,
Bangalore.
3.Date of offence: Prior to 18082007.
4. Offences complained of: U/s.392 of IPC.
5. Plea: Accused No.2 and 4 pleaded not guilty.
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6. Final Order: Accused No.2 and 4 are Acquitted.
7. Date of Order: 03022023.
*****
The PoliceInspector, Jayanagar Police Station, Bangalore has
filed this split up charge sheet against the accused No.2 and 4 for the
offence punishable U/s. 392 of IPC. This case is arising out of
C.C.No.2999/2008. During the time of trial, the accused No.1
remained absent. Hence, case against accused No.1 is split up. Case
against A3 is disposed off. Now case proceeded against A2 and A4
only.
2. The brief facts of the prosecution case is as follows:
That prior to 18082007 at about 11.30 a.m.., within the limits
of Jayanagar P.S. CW1 was moving at Jayanagar 4 th block, behind
Masjid Road, at that time, the accused No.1 to 4 followed CW1 at
knife point threatened CW1 and robbed the gold chain weighing 7
gms., from the neck of CW1 and Nokia Mobile Phone and fled away
from the spot thereby the accused persons have committed the
aforesaid offences.
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3. The accused No.2 and 4 were enlarged on bail. On receipt of
charge sheet, my predecessor in the office has took the cognizance of
the alleged offences and furnished copy of the prosecution papers to
the accused persons. During trial, accused No.1 remained absent and
case against him was split up. Charge for the offence P/U/S.392 of
IPC., was framed, read over and explained to the accused No.2 and 4.
The accused No.2 and 4 pleaded not guilty and claimed to be tried.
4. The prosecution, in order to prove its case has examined
three witnesses as PW1 to PW3 and got marked three documents at
Ex.P1 to P5. The statement of accused No.2 and 4 as required U/s.
313 of Cr.P.C. is recorded. In which, accused No.2 and 4 denied all
the incriminating circumstances appeared against them. The accused
No.2 and 4 submits no defence evidence and the matter was posted
for arguments.
5. I have heard the arguments of learned Sr.APP., for the
prosecution and learned counsel for the accused. Perused the
materials available on record.
6. In order to prove guilty of the accused, the prosecution has
examined PW1 Bhavarlal who deposed in his evidence that about 5
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years back police have brought two accused persons to his shop by
name Prakash Bankers and they have asked him to produced the
stolen articles. He identified the accused persons and produced three
gold chains before police and police have seized the gold chains under
seizure mahazar as per Ex.P1 and he identified signature therein as
per Ex.P1(a).
7. The PW2 Jogendra Singh has identified his signature in the
Ex.P1, he deposed that, he put his signature to the said document
about 7 years back when the police have brought the accused near
Prakash Bankers, but he do not know why the police have came there
and he do not know what things the police have sized and police
have not taken any statement of him.
8. The PW3 Vinay Sagar has deposed in his evidence that on
17082007 at 11 a.m., he came out to go to college and when he was
behind the college, four persons came and told as to he teasing college
girls and took him to road, at knife point threatened him and
committed robbery of gold chain and mobile phone, hence, he lodged
complaint with Hulimav P.S. as per Ex.P4 and he identified his
signature therein as per ExP4(a). He further deposes that the police
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have drawn mahazar as per Ex.P5 and he identified his signature
therein as per Ex.P5(a). He further deposed that one Murthy also
signed on it and they identified the gold chain and knife in the police
station along with accused. Gold chain is marked as MO1.
9. It is well settled principle of law that in order to held a
person guilty for a offence punishable under section 392 of IPC., the
chain link must be unbroken. The IO who interrogated the accused
persons during his interrogation, the accused No.1 to 4 have admitted
to the commission of crime and based on their statement the IO
recovered stolen articles. However, the confessional statement itself
hit by the provisions of Section 25 of Indian evidence Act. If the
stolen articles are recovered from the accused, then only the said part
of confessional statement in respect of recovery of stolen articles is
admissible in evidence. I have carefully perused the records, the case
of the prosecution is that, the accused No.1 to 4 have robbed the gold
chain weighing 7 gms., and a mobile phone from the CW1. As per
the information given by the accused No.1 to 4, the said gold chain
was recovered from the accused under the seizer Panchanama in the
presence of CW3 to 6 and. Out of them, CW5 and 6 are examined as
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PW1 and 2. Out of them the PW2 turned completely hostile, the
PW1 has supported the case of prosecution and deposed about seizer
Panchanama, but the stolen properties are not produced before the
court for identification and the PW1 has not tender for cross
examination. Hence the oral evidence of PW1 is not believable in the
eye of law. The prosecution failed to prove the seizer Panchanama in
accordance with law. Therefore, the confessional statements of the
accused are not admissible in evidence. Though the PW3 the victim,
has supported the case of prosecution, the seizure Panchanama is not
proved in accordance with law. Therefore the evidence of PW1 will
not come to the aid of prosecution to prove the guilty of the accused
persons. In criminal case guilt of the accused shall be proved beyond
reasonable doubt and in this instant case the prosecution has failed to
prove the recovery of stolen articles beyond reasonable doubt. The
available evidence on record are not sufficient to prove the guilty of
the accused for the offence punishable U/s.392 of I.P.C. Therefore, the
prosecution fails to prove the guilty of the accused No.2 and 4 beyond
reasonable doubt. Therefore, the accused No.2 and 4 are entitled for
the benefit of doubt. Accordingly, I proceed to pass the following:
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ORDER
Acting Under Section 248(1) of Cr.P.C., accused No.2 and 4 are hereby acquitted for the offence punishable U/s.392 of IPC.
The bail bond of accused and surety shall stands cancelled.
Office is hereby directed to preserve the records and property if any, as case against A1 is split up. (Dictated to the Stenographer directly on the computer, typed by her and print out taken by her is verified, corrected & then pronounced by me in the Open Court dated this the 03012023) ( B.MOHAN BABU) XXXVII ADDL.C.M.M., BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
PW1 : Bhavarlal PW2 : Jogendra Singh PW3 : Vinay Sagar
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 : Seizure mahzar
Ex.P.1(a)(b): Signature of PW1
Ex.P.2 : Spot Panchaname
Ex.P.2a : Signature of the witness
Ex.P.3 : Statement of witness
Ex.P.3a : Signature of the witness.
Ex.P.4 : Complaint
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Ex.P.4a : Signature
Ex.P.5 : Mahazar.
Ex.P.5a : Signature
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION:
MO1 : Gold chain.
LIST OF WITNESSES EXAMINED ON BEHALF OF THE DEFENCE:
NIL LIST OF DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE .
NIL XXXVII ACMM., BANGALORE.9
C.C.No.9628/2012 3012023 Judgment.
Judgment pronounced in the Open court (vide separately).
ORDER 10 C.C.No.9628/2012 Acting Under Section 248(1) of Cr.P.C., accused No.2 and 4 are hereby acquitted for the offence punishable U/s.392 of IPC. The bail bond of accused and surety shall stands cancelled.
Office is hereby directed to preserve the records and property if any, as case against A1 is split up.
XXXVII ACMM.,B'lore.