Bangalore District Court
State By Amruthahalli Police vs Murugesh S/O Late Devendra on 17 December, 2016
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Present:- Sri Rudolph Pereira B.Com., L L.M.
Chief Metropolitan Magistrate, Bengaluru
Dated this the 17th day of December 2016
C.C. NO.23648/2012
Complainant : State by Amruthahalli Police,
Bengaluru
-V/s-
Accused : Murugesh S/o Late Devendra,
26 yrs, Residing in the house of
Aralappa as Tenant, Near Cycle
Shop, Mariyannanapalya,
Bengaluru City.
Date of offence : 27-11-2011
Offence : U/S 392 of IPC
Plea of the accused : Accused Person Pleaded
not guilty
Final order : Accused Person Acquitted
Date of Order : 17-12-2016
2 CC No.23648/2012
J U D G M E N T U/S 355 of Cr.P.C.
The P.I. of Amruthahalli P.S., Bengaluru has filed this
charge sheet against accused person for the offence
punishable under Section 392 of IPC.
2. The case of prosecution in brief is that-
On 27-11-2011 at about 6.50 p.m., when CW1 Sarala
was proceeding by walk near her house situated at No.56,
Vivekananda Layout, Bengaluru, the accused person had
robbed her gold mangalya chain weighing about 40 grams.
Thereby the accused person had committed the aforesaid
offence.
3. The accused person is in judicial custody under body
warrant. After furnishing the copies of charge sheet, charge
was framed by my then learned predecessor. Accused person
pleaded not guilty and claimed to be tried.
4. To prove its case, the prosecution has examined in all
seven witnesses as per P.W.1 to P.W.7, got marked the
3 CC No.23648/2012
documents at Exhibits P.1 to P.10 and material object as per
MO1. Thereafter, the accused person is examined under
Section 313 of Cr.P.C. He denied the incriminating evidence
and submitted that he has no defence evidence.
5. Heard the arguments advanced by the learned Sr.APP
and the learned counsel for accused person.
6. Herein, the complainant Sarala appeared before the
court as PW1. She has deposed that during November 2012
one day at about 6.30 p.m., after dropping her brother's wife
to the 18th cross bus stop of Amruthahalli, she was returning
to her house at 6.45 p.m. At that time, a person who had worn
Jarkin came from her backside had robbed her gold mangalya
weighing 40 grams and ran away from the spot. She has
identified the complaint as per Ex.P1 and spot mahazar as per
Ex.P2. She has further deposed that after one year, the
Amruthahalli Police has called her to police station and
4 CC No.23648/2012
showed three accused persons as well as her stolen property
i.e., MO1 and its photograph as per Ex.P3.
7. It is to be noted here that as PW1 has failed to
identify the accused person, she was treated as hostile
witness by the prosecution. However, nothing substantial has
been brought out in her cross-examination and she has denied
of giving her further statement as per Ex.P4 inrespect of
identification of accused person. Further during the cross-
examination of learned defence counsel, PW1 has stated that
she cannot identify the accused person and that through the
police, she came to know that accused person was involved
in the alleged incident. It is also worthy to be noted here that
as per the case of prosecution, the alleged incident has taken
place during November 2011, but the evidence of PW1
discloses that the alleged incident has taken place during
November 2012. Hence, the evidence of PW1 is of not much
help to the prosecution.
5 CC No.23648/2012
8. The alleged spot mahazar witness namely
Venkataswamy Reddy appeared before this court as PW2.
He has deposed that during November 2012, the police
visited the spot inrespect of robbery of the chain of PW1 and
conducted Ex.P2 mahazar and took his signature. But he has
not specifically stated the date & time of conducting Ex.P2
mahazar and names of other signatories to the said document.
9. The prosecution has examined two police officials
namely P.Munireddy and Panduranga as PW6 and PW7
respectively. PW6 has deposed about the arrest of accused
and production before S.H.O. through a report and PW7 has
deposed about his role played in the investigation of this
case.
10. In theft/robbery cases, what is required to be proved
by prosecution is that the nexus between stolen/robbed article
and accused. In this regard, the prosecution relies on the
evidence of PW3 Bhavar Singh - the receiver of robbed
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property. PW3 has stated that the accused pledged the gold
chain in his Pawn Shop. That thereafter, the police came
along with accused and recovered the gold chain through
Ex.P5 mahazar and identified Ex.P3 the photograph of it. But
during cross-examination, the PW3 has stated that he does
not know to read Kannada Language properly, he has
forgotten as who were the general public present at the time
of mahazar and that the police have not seized the license and
pawn receipt.
11. The alleged witnesses of Ex.P5 seizure mahazar
namely Vishwanath and Arif entered into the witness box as
PW4 and 5 respectively. But unfortunately PW4 has not
supported the case of prosecution. Though the learned
Sr.APP has treated this witness as hostile and cross-examined
him, nothing substantial has been brought out in his cross-
examination inrespect of Ex.P5 and he has denied of giving
statement before the police as per Ex.P6. The PW5 during his
7 CC No.23648/2012
chief examination has identified the Ex.P5 and his signature.
But during cross-examination, he has deposed that he is
acquainted with PW3 since 5-6 years, he did not read the
contents of Ex.P5, he cannot read Kannada Language
properly and at the request of PW3 he has signed the Ex.P5.
Further, he has stated that the mahazar was completed before
he reached the spot. The above statements of PW5 make me
to doubt his presence in the shop of PW3 as recited in Ex.P5.
12. Of course, the evidence of PW1 & 2 indicates that
the robbery in question was occurred. Whether the alleged
robbery has been committed by accused person is to be
established by prosecution. Though there are no strong
reasons to dis-believe the testimony of PW3 and 5, having
considered their above discussed cross-examination evidence
and non-support by PW4, it is not fair to trust the matter and
to raise presumption against accused person, especially when
the whole case of prosecution is depending on circumstantial
8 CC No.23648/2012
evidence of the recovery of property. In this view of fact, the
whole case of prosecution has been rendered weak and hence
this court doesn't deem it proper to base conviction on the
evidence available on record. Therefore, I am of the view that
the evidence of PW1, PW2, PW6 and PW7 is not helpful to
the prosecution.
13. On the whole, this court is of the considered opinion
that the evidence of witnesses examined on behalf of
prosecution is not sufficient to say that the circumstantial
evidence is so strong, as to convict the accused person.
Hence, viewing from any angle, there is no sufficient,
positive and material evidence to bring home the guilt of
accused person. In the result, I proceed to pass the following-
ORDER
The accused person found not guilty. Hence acting under Section 248(1) of 9 CC No.23648/2012 Cr.P.C., he is acquitted of the offence punishable under Section 392 of IPC. The body warrant issued against accused person is recalled. The jail authorities are directed to release the accused person forthwith, if he is not required in any other case.
The interim custody of MO1 already granted in favour of PW1 is hereby made absolute.
(Dictated to the Stenographer directly on computer, print revised, corrected and then pronounced by me in open court on this the 17-12-2016) (Rudolph Pereira), CHIEF METROPOLITAN MAGISTRATE, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
P.W.1 : Sarala
10 CC No.23648/2012
P.W.2 : Venkataswamy Reddy
P.W.3 : Bhavar Singh
P.W.4 : Vishwanath
P.W.5 : Arif
P.W.6 : P.Munireddy
P.W.7 : Panduranga
List of Documents marked on behalf of the prosecution:-
Ex.P.1 : Complaint
Ex.P.2 : Spot Mahazar
Ex.P.3 : Photograph
Ex.P.4 : Relevant Portion in the
Further Statement of PW1 Ex.P.5 : Seizure Mahazar Ex.P.6 : Statement of PW4 Ex.P.7, 9 : Reports (Copy) Ex.P.8 : F.I.R.
Ex.P.10 : Statement of Accused (Copy) List of Material objects produced:-
MO1 : Gold Mangalya Chain List of Witnesses examined & documents marked on behalf of the defence:
NIL Chief Metropolitan Magistrate, Bengaluru.11 CC No.23648/2012
17-12-2016 Judgment pronounced vide separate sheets.
ORDER The accused person found not guilty. Hence acting under Section 248(1) of Cr.P.C., he is acquitted of the offence punishable under Section 392 of IPC. The body warrant issued against accused person is recalled. The jail authorities are directed to release the accused person forthwith, if he is not required in any other case.
The interim custody of MO1 already granted in favour of PW1 is hereby made absolute.
Chief Metropolitan Magistrate, Bengaluru.12 CC No.23648/2012