Bangalore District Court
State By Jnanabharathi Police vs Has Examined Five Witnesses. P.W.1 ... on 26 March, 2016
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 26th day of March 2016
Present : Shri J.V.Vijayananda B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT UNDER SEC.355 OF Cr.P.C.
1.C.C.No. 20751/2010
2.Date of Offence 13-05-2008
3.Complainant State by Jnanabharathi Police
Station
4.Accused Arogya Raj @ Basha @ Das
S/o Charls @ Jafar,
aged 26 years, No.103, 6th Cross,
5th Main, Narayanarao Colony,
Okalipura, Srirampura,
Bengaluru 560 021
5. Offences complained Under Sections 392 of IPC.
of
6.Plea Accused pleaded not guilty.
7.Final Order Accused is acquitted
8.Date of Order 26-3-2016
REASONS
The Inspector of Police, Jnanabharathi police station,
Bangalore has filed this charge sheet against accused for the
offence punishable under section 392 of IPC.
2. The brief facts of the prosecution case are that, on
28-10-2009 at 7-00 p.m. in Annanpurneshwari Nagar, 5th
main, Bengaluru city within the limits of Jnanabharathi police
2 C.C.No.20751/2010
station the accused by putting fear has robbed gold neck
chain of C.W.1 Smt.Lakshmamma weighing 20gms., worth
Rs.20,000/- and thereby committed the aforesaid offence.
3. The accused is on bail. On receipt of charge sheet, this
court took cognizance of the offence and furnished the copies
of the prosecution papers to the accused. After hearing on
charges, this court has framed the charge for the offence
punishable u/s.392 of IPC and questioned. The accused
pleaded not guilty and claimed to try.
4. The prosecution to prove guilt against accused has
examined five witnesses as P.Ws.1 to 5 and got marked nine
documents as per Exs.P1 to P9. Since C.Ws.3, 5 to 7 did not
turn up before this court, by rejecting the prayer of Sr.APP,
this court dropped the examination of said witnesses.
5. Thereafter, this court examined the accused as
required U/s.313 of Cr.P.C., the accused denied the
incriminating evidence appeared against him and submitted
that he has no defence evidence.
6. I have heard the arguments on both counsels and
perused the evidence on record.
7. As stated above, the prosecution to prove guilt against
accused has examined five witnesses. P.W.1 Lakshmamma is
the complainant and victim to the alleged incident. P.W.2
Krishnamurthy is the spot mahazar witness. P.W.3 Mannaram
is the receiver of stolen robbed chain. P.W.4 H.Siddappa and
P.W.5 B.T.Chidanandaswamy are the investigating officers. In
3 C.C.No.20751/2010
spite of giving sufficient opportunities, the prosecution has not
examined another spot and seizure mahazar witnesses and
police official who assisted in conducting the investigation.
8. I have carefully perused the evidence on record. The
testimony of P.W.1 indicating that about six years back, she
and her grand daughter were coming on walk from BDA
complex towards her house, at that time, one person came,
snatched her gold mangalya chain and ran away, but she has
not properly witnessed the face of said person. She further
stated that when the said person attempted to snatch her
chain, half portion remained in her neck and the said person
took remaining half portion. In this regard, she lodged
complaint to the police. After lodging of the complaint, the
police visited the spot and prepared the mahazar as per Ex.P2.
9. P.W.2 Krishnamurthy the spot mahazar witness
corroborated the testimony of P.W.1 in the matter of preparing
spot mahazar. The testimony of P.W.2 indicating that on 28-
10-2009 the police visited the place where the accused
snatched his wife's neck chain and prepared the spot mahazar
as per Ex.P2. P.W.2 though subjected to cross-examination
but nothing-doubtful version elicited from him to disbelieve
his testimony.
10. P.W.5 B.T.Chidananadaswamy the investigating
officer further corroborated the testimony of P.W.1. His
testimony indicating that on 28-10-2009 at 8-45 p.m. P.W.1
visited police station and lodged complaint regarding robbery
of her gold neck chain. Accordingly, he registered the case.
4 C.C.No.20751/2010
On the same day, he visited the spot along with complainant
and prepared the mahazar in the presence of witnesses. P.W.5
though subjected to cross-examination but nothing worth
elicited from him to disbelieve his testimony. From the
testimony of P.Ws.1, 2 and 5 it is very much clear that on
28-10-2009 at 7-00 p.m., when P.W.1 along with her grand
daughter walking towards her house on Annapurneshwari
Nagar, some person robbed her gold neck chain. Thereafter,
she lodged complaint to P.W.5, in tern P.W.5 registered the
case, visited the spot and prepared the mahazar.
11. P.W.4 H.Siddappa the investigating officer has
deposed that on 9-11-2009 at 6-30 p.m. when he was in CCB
Office, C.W.6 P.Manjunatha the police constable and C.W.7
Shamiulla the A.S.I produced one person before him along
with report. He enquired the said person and came to know
his name as Arogyaraj @ Chals @ Phasha. He enquired the
said person regarding commission of offence and during the
said enquiry the said person confessed regarding snatching of
three chains in different places. Accordingly, he arrested the
said person in connection with Cr.No.202/2008 of Hennur
police station and recorded his voluntary statement. The said
person has confessed in his voluntary statement in respect of
snatching of chain in Hennur, Jnanabharathi and Rajajinagar
police station jurisdiction and further confessed that he sold
the said chains to one Mangaram the gold smith of
Okalipuram. The accused further confessed that if he takes
he would show the place of shop and the person to whom he
sold the said chains. Accordingly, on 10-11-2011, he visited
5 C.C.No.20751/2010
the places along with accused where the accused snatched
chains and thereafter visited Mangaram Pawn Broker shop.
The accused identified one person by name Mangaram and
said that he sold the said three chains to him. In tern, the
said Mangaram accepted and produced three gold chains and
he seized the same by preparing the seizer mahazar as per
Ex.P4. Thereafter, he called the complainant to the CCB Office,
identified the recovered gold neck chain, the accused from her
and recorded her further statement. Thereafter, on 16-3-2010
with the permission of 1st ACMM court, he transferred the case
papers and recovered chain to the Jnanabharathi police
station based on the place of offence.
12. In a case like this, the offence has to be, proved in a
circumstantial evidence as well as direct evidence i.e., by way
of proving the seizer mahazar of recovered chain and by way of
identification of accused by the complainant beyond all
reasonable doubt. Now let us consider whether the
prosecution has established the involvement of accused by
way of circumstantial evidence. Ex.P4 is the seizer mahazar.
As per Ex.P4 the investigating officer i.e., the inspector of CCB
based on the information of accused visited Mangaram
Enterprises Jewels Shop, situated at No.32, 5th main road,
Okalipuram, Srirampuram along with accused. The accused
identified one person in the said shop and the said person by
name Mangaram has stated that on three occasions he visited
the said shop and sold three robbed chains robbed at
Kamakshipalya, Jnanabharathi, shankarpura police stations.
In tern, the said Mangaram has identified the accused and
6 C.C.No.20751/2010
agreed for having purchased the chains and handed over the
same to the inspector of CCB. In tern, the said inspector
seized the same by preparing the seizer mahazar in the
presence of owner of the said shop as well as C.W.5. It
appears the prosecution to prove seizer mahazar has
examined receiver of robbed neck chain but in spite of giving
sufficient opportunities, it has not examined the independent
seizer mahazar witnesses.
13. The testimony of P.W.3 Mangaram the receiver of
robbed chain indicating that in the year 2009 the
Jnanabharathi police inspector brought the accused near his
shop and the said police demanded him to hand over three
chains sold by accused. He agreed and handed over the same.
In tern, the said inspector P.W.4 herein has seized the same
by preparing the seizer mahazar. P.W.4 though deposed
regarding seizure mahazar, he has not explained the seizer as
per Ex.P.4. In my opinion, P.W.4 being the investigating officer
always interest in out come of his investigation as well as
success of prosecution. Since P.W.4 not explained the seizer
as per Ex.P.4, it is not safe to place reliance on his sole
testimony. In my opinion, in order to believe the testimony of
P.W.4 corroboration by other witnesses and other
circumstances is necessary. As stated above, in spite of giving
sufficient opportunities the prosecution has not examined the
independent seizure mahazar witnesses.
14. Ex.P.1 is the complaint. As per Ex.P.1 as well as the
testimony of P.W.1, the chain worn by P.W.1 cut into two
7 C.C.No.20751/2010
pieces when it was snatched. One piece was remained with
P.W.1 and another piece including thali, lakshim coin four
studs taken over by the person who robbed it. In Ex.P.1 no
reference regarding seizer of one-piece chain including thali,
lakshmi coins and four studs. Ex.P.5 is the photograph. The
recovered chain as depicting in Ex.P.5 is not half portion
including thali, lakshim coin and four studs. On the other
hand, the chain as depicting in Ex.P.5 is one clear chain and
no sign regarding dismantle. Therefore, there is clear doubt
regarding recovery of actual robbed chain belonged to P.W.1.
15. P.W.3 the receiver of stolen article has not explained
for having purchased one piece of chain with thali, lakhsmi
coin and four studs. His say is that he purchased three
chains from accused and he handed over the same to the
police. No doubt from the testimony of P.W.3, the
investigating Officer P.W.4 herein, has recovered three chains
but the prosecution has not established that the chain in
which P.W.4 recovered is the chain actually robbed from
P.W.1. It is no need to say that due to fear of registering the
case by the police there is every possibility of handing over the
chains by the pawnbrokers, in my opinion, such situation
taken place in the present case on hand. In my opinion, the
very seizer of chain is doubt full because the evidence on
record in not disclosing that the chain actually robbed from
P.W.1 recovered by P.W.4. Therefore, I am of the considered
opinion that the prosecution has failed to prove the seizer
mahazar of robbed chain beyond all reasonable doubt.
8 C.C.No.20751/2010
Consequently, it has failed to prove its case by way of
circumstantial evidence.
16. P.W.1 the victim has not identified the accused as the
person who robbed her neck chain. Therefore, the prosecution
has failed to prove its case by way of direct evidence i.e., by
way of identification of accused by the complainant.
17. Though P.Ws.1, 2 and 5 have supported the case of
the prosecution, their evidence is not directly helping the
prosecution to connect the accused for the offence alleged
against him. Therefore, having regard to the facts and
circumstance of the case and the evidence available on record
I am of the considered opinion that the prosecution has failed
to prove guilt against accused beyond all reasonable doubt.
Accordingly, the accused is entitled for benefit of doubt. In the
result, I proceed to pass the following:
ORDER
This court did not found guilt of accused for the offence under section 392 of IPC.
Consequently, acting under section 248(1) of Cr.P.C., the accused has been acquitted for the above referred offence.
His bail bond and surety bond stands cancelled.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 26th day of March 2016) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
9 C.C.No.20751/2010ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Lakshmamma; P.W.2, Krishnamurthy; P.W.3, Mannaram; P.W.4, H.Sidhappa; P.W.5, B.T.Chidanandaswamy;
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P1, Complaint;
Ex.P1,(a), Signature;
Ex.P.1(b), Signature;
Ex.P.2, Mahazar; Ex.P.2(a), Signature Ex.P2(b), Signature;
Ex.P.2(c), Signature;
Ex.P3, Statement; Ex.P.4, Mahazar copy; Ex.P.5, Photo; Ex.P.6, Report; Ex.P.7, Statement; Ex.P.8, Transfer letter;
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1, Gold Chain; LIST OF WITNESSES EXAMINED, DOCUMENTS AND
MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.