Bangalore District Court
State By Hanumanthanagar Police ... vs 2. K.Manjunatha @ Kalla Manja on 10 February, 2015
IN THE COURT OF FAST TRACK COURT -X AT BANGALORE CITY
DATED THIS THE 21st DAY OF JULY 2014
-: P R E S E N T :-
Sri. PATIL MOHAMMADGOUSE MOHIDDIN
B.Com, LL.B (Spl.).,
PRESIDING OFFICER,
FTC-X, BANGALORE CITY.
SESSIONS CASE NO.950/2011
COMPLAINANT:- State by Hanumanthanagar Police Station,
Bangalore.
-Vs-
ACCUSED: 2. K.Manjunatha @ Kalla Manja,
S/o. Krishnareddy,
Aged 24 years, R/at. No.91,
2nd Cross, Nehru Road,
Hosaguddadahalli,
Mysore Road, Bangalore.
3. Ananda S/o. Chandrappa,
Aged about 23 years,
R/at.No.60, 3rd Main,
2nd Cross, Kasturaba Nagar,
Mysore Road, Bangalore- 57.
4. Rainal Sanley @ Sun,
S/o. P.A.Balu,
Aged about 23 years,
R/at.No.25, 'B' Street,
1st Main, New Guddadahalli,
Mysore Road, Bangalore.
5. Prakash S/o. Nagu Rao,
Aged about 22 years,
2 S.C.950/2011
R/at. 3rd Cross, Vinayaknagar,
Haloguddadahalli,
Mysore Road, Bangalore.
7. Vaishaka @ Vaiky,
S/o. Chamaraja,
Aged about 22 years,
R/at No.101, 'E' Street,
Hosaguddadahalli,
Mysore Road, Bangalore.
1. Date of commission of offence : 10.7.2010
2. Date of report of offence : 10.7.2010
3. Date of arrest of the Accused :
4. Name of the complainant : Sri. Bharath
5. Date of recording evidence : 23.7.2012
6. Date of closing evidence : 21.6.2014
7. Offences complained of : U/Sec. 365, 395 of IPC.
8. Opinion of the Judge : The accused are
Acquitted U/s. 235(1)
of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri.V.G. Ravindra for A.2 & A.5
Sri. N.Udaya Kumar for A.3, A.4, A.7
3 S.C.950/2011
JUDGMENT
This is charge sheet filed by the Police Sub-Inspector Hanumanthnagar police station against the accused persons alleging that, the accused persons have committed the offences punishable U/s. 365 and 395 of I.P.C.
2. The brief facts of the prosecution case are that, on 10.7.2010 the complainant Bharath received a miscall. When he redialed to the said number, the same was of accused No.1 Sunil Kumar and Sunil Kumar asked him to see him on Kagees bakery. Accordingly, the complainant went near Kagees bakery where Sunil Kumar was waiting. Thereafter, Sunil Kumar and complainant Bharath taken a tea at Kagees bakery. Sunil Kumar by saying that, his friend may come late and asked the Bharath to took ahead his car. When the complainant Bharath opened the door of his car, suddenly one person came and dragged him by putting knife on his chest and dragged to the back seat of the car. Thereafter, two other persons seated both the sides of the complainant and the accused persons started complainant's car and took towards BWSSB where the other two persons alighted with Sunil Kumar by saying that, they have some work with Sunil Kumar. While accused persons taking the complainant Bharath they were assaulting and threatening and forcing him 4 S.C.950/2011 to pay money. When he refused to pay the money by saying that, he does not possess money, the accused persons abused him and assaulted and the accused persons acted as kidnapping the Sunil Kumar, in fact they kidnapped the complainant. While proceeding in the car, the accused persons snatched the golden chain from his neck and Rs.3,200/- and also removed the DVD player, Sound stereo and they left him at a dark place. Therefore, the complainant came to his house and thereafter, the complainant and his mother went to Hanumanthnagar police station and lodged the complaint that, the accused No.1 along with his followers kidnapped the complainant and robbed his golden chain weighing 30 grams and cash of Rs.3,200/- and also removed the DVD player and music system from his car and thereby committed the offences punishable U/s. 365 and 395 of I.P.C.
3. After the investigation, the Investigating Officer has filed charge sheet before I A.C.M.M., Bangalore for the offences punishable U/s. 365 and 395 of I.P.C., against the accused persons. The learned magistrate took cognizance of the alleged offences against the accused and registered a criminal case in C.C.No.27603/2010. All the prosecution papers were furnished to the accused as required U/s.207 of Cr.P.C. Since the alleged offences are exclusively triable by the court of sessions, the 5 S.C.950/2011 learned Magistrate has committed the case to the court of Sessions for trial U/s. 209 of Cr.P.C.
4. After receipt of the records from the committal court, the Hon'ble Prl.City Civil and Sessions Judge has registered a session case in S.C.No.950/2011 against the accused persons for the offences punishable U/s. 365 and 395 of I.P.C. After hearing the prosecution and defence, charge has been framed against the accused for the offences punishable U/s. 365 and 395 of I.P.C. The accused pleaded not guilty and claimed to be tried by this court.
5. In order to prove its case, prosecution in total examined 11 witnesses as Pw.1 to Pw.11 and got marked 16 documents at Ex.P.1 to Ex.P.16 and MO.1 to MO.4.
6. On completion of the evidence of the prosecution side, the accused statements as required U/s. 313 of Cr.P.C., are recorded by giving an opportunity to the accused to explaining incriminating circumstances appearing in the evidence of the prosecution. The accused have denied the evidence of the prosecution.
7. No evidence is adduced on behalf of accused.
8. I have heard the arguments of the prosecution side and defence side.
6 S.C.950/2011
9. The following points that have arisen for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, the accused No.2 to 5 and 7 along with absconding accused No.1 and 6 on 10.7.2010 at about 6.30 p.m., have kidnapped the complainant Sri. Bharath S/o. Late. Ramakrishna from Water Board, Junction, 9th Main, BSK 1st Stage, Bangalore with an intention to causing the complainant to be secretly and with an intention to rob him in a car and wrongfully confined him and thereby committed an offence punishable U/s. 365 of I.P.C.?
2. Whether the prosecution proves beyond all reasonable doubt that the accused No.2 to 5 and 7 along with absconding accused No.1 and 6 with an intention to rob the complainant Sri.Bharath S/o. Late. Late Ramakrishna and threatened him at knife point and robbed gold chain weighing 30 grams, car stereo, a sum of Rs.3,200/- in cash, a purse and a mobile and committed dacoity and thereby committed an offence punishable U/s.402 of I.P.C.?
3. To what Order ?
10. My findings on the above points are as under:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per final order
for the following:
REASONS
11. POINT NO.1 & No.2 :- As these two points are interlinked in order to possibility of repetition of evidence and facts, I took these points together for discussion.
7 S.C.950/2011
12. The learned Public Prosecutor argued and submits that, Pw.1/complainant and Pw.7, the mother of the complainant have categorically deposed before the court about the commission of the offences by the accused persons i.e. accused persons kidnapped the complainant Bharath in his own car and took him from Water Board Junction and robbed his mobile phone, 30 grams weighing golden chain, car stereo and a sum of Rs.3,200/- in cash and thereby committed the offences punishable U/s. 365 and 395 of I.P.C. The Investigating Officer has recorded the statement of the accused No.1 who has given voluntary statement before the Investigating Officer that, along with present accused persons he has robbed the money, mobile phone, golden chain and stereo of the car of the complainant from the complainant. Thereafter, same were recovered by the Investigating Officer in presence of the panchas. The present accused persons already have given their voluntary statements before the Investigating Officer about the alleged offences in the alleged manner. Therefore the prosecution has proved beyond all reasonable doubt about the commission of the offences by the accused persons and recovery of the articles at Mo.1 to Mo.4 from the possession of the accused persons. Hence, the prosecution has proved the guilt of the accused persons beyond all reasonable doubt and prays to convict 8 S.C.950/2011 and sentence the accused persons.
13. The learned advocate for accused persons argued and submits that, the present accused persons no where concerned to the accused Sunil Kumar. The complainant himself in his cross-examination admits that, he knows only accused No.1 and he did not knows the present accused persons on the date of alleged offences. Therefore, the conduct of test identification parade of accused persons is quiet essential. Investigating Officer has not conducted test identification parade, the said fact is also admitted by the Investigating Officer as well as Pw.1/complainant. Hence, the same is fatal to the case of the prosecution. The accused persons have not given any voluntary statements before the Investigating Officer. The police have obtained the signatures of the present accused persons forcibly by writing the voluntary statements. No recovery is proved. Mere there is allegation that, the accused No.1 along with present accused persons kidnapped and robbed Mo.1 to Mo.4 from the complainant Bharath. No cogent evidence is produced. Only say of the Pw.1 that, the accused No.1 along with other accused persons kidnapped him and thereafter robbed his amount of Rs.3,200/-, mobile phone, golden chain and stereo from his car is not sufficient to prove the guilt of the accused The version of P.W.1, 7 and 10 is not supported by any evidence. Pw.7 is 9 S.C.950/2011 mother of the complainant who is hear say witness. Her evidence is not reliable one. The police have falsely implicated the accused persons just in order to register the case. The seized articles are doubtful. Hence, the accused persons are entitled for acquittal.
14. The learned advocate for the accused persons placed reliance on a decision reported in 2007 Crl.L.J. 1783 in case of State of Rajasthan V/s. Netrapal and others wherein it is held as under;
(A) Evidence Act (1 of 1872), Ss. 9, 27 - Penal Code (45 of 1860), S. 395 - Identification of accused - Case of dacoity - Night of offence was dark night - Evidence as to presence of electricity at complainant]s house inconsistent - Presence of electric blub not shown in site plan - Evidence of witnesses that they identified accused - Not reliable - Test identification parade and recovery of articles on disclosure - Doubtful in view of statement of witnesses showing that date of arrest was postponed - Accused liable to be acquitted by giving benefit of doubt.
Further, the learned advocate for the accused persons placed reliance on a decision reported in 2008 Crl.L.J.(NOC) 524 (ORI) in case of State of Orissa V/s. Harachand Khilei and others wherein it is held as under;
Penal Code (45 of 1860), S. 395 - Dacoity - Accused persons allegedly committed dacoity at house of informant - prosecution witness could not point out physical features, dresses of accused - Recovery of looted articles at instance of accused could not be relied on in absence of any details as to when and where such 10 S.C.950/2011 recovery was made and in absence of any evidence as to confession of commission of offence by accused - Seizure of incriminating materials from accused persons not corroborated by any independent witness -
Evidence as regards test identification parade was not reliable as its contents were contrary to FIR and statement of accused under S.161 - Even otherwise T.I. parade being not a substantive piece of evidence conviction cannot lie basing on such evidence -
Acquittal of accused proper.
Further, the learned advocate for the accused persons placed reliance on a decision reported in 2012 Crl.L.J. (NOC) 77 (CHH) in case of Vinod Kumar and others V/s. State of M.P., wherein it is held as under;
Penal Code (45 1860), Ss. 395, 397 - Dacoity - Proof - Allegation that complainant and his friends were obstructed, surrounded and later looted by accused persons - After recording of FIR, three eye-witnesses were sent for medical examination and two of them were made witnesses of all other police documents like memorandum statements and seizure memos - Even T.I. parades for identification of accused persons was not followed by dock identification - There being doubt on fairness of investigation conducted by IO and his sole testimony - Conviction of accused persons under Ss. 396 and 397 was liable to be set aside.
Further, the learned advocate for the accused persons placed reliance on a decision reported in 2011 Crl.L.J.4006 in case of Thangapandian Alias Sankaranarayanan V/s. State represented by Inspector of police wherein it is held as under;
11 S.C.950/2011
Penal Code (45 of 1860), Ss. 395, 450 - Dacoity - Proof
- Allegations that accused persons entered house of complainant in false pretext of conducting income tax raids and looted jewels and cash - No test identification parade conducted and identification of appellant made by witnesses for first time in Court after lapse of 7 years - Alleged confessional statement of appellant about pledging of jewels in shop of witness - There is no evidence that jewels so pledged and redeemed were stolen jewels connected with crime in question - Disclosure of statement of appellant does not fall within ambit of S.27 of Evidence Act and therefore, is not admissible in evidence - Conviction of accused persons, set aside.
Further, the learned advocate for the accused persons placed reliance on a decision reported in 2003 Crl.L.J.1008 in case of Bhuneshwar Singh and another V/s. State of Bihar wherein it is held as under;
Penal Code (45 of 1860), S.395 - Dacoity - Accused 15 to 20 in number armed with weapons alleged to have committed dacoity - Witnesses examined supported factum of dacoity as alleged in FIR - Witness who claimed to have identified accused later declared hostile
- Investigating officer was not examined - Other witness who claimed to have identified accused stated in cross-examination that the learnt names of dacoit from male members who had not disclosed name of dacoits before him - Practically there was no identification against all accused - Their Participation in dacoity not proved - Accused entitled to benefit of doubt.
Further, the learned advocate for the accused persons placed reliance on a decision reported in 2003 Crl.L.J. 1113 in case of Ram Sagar and another V/s. State, wherein it is held as under; 12 S.C.950/2011
Penal Code (45 of 1860), S.395 - Dacoity - conviction for - Sustainability - Appellant "R" named in FIR - No evidence to show that he was a hazardous character who could have gone to commit dacoity at house of known person with open fact - Possibility of bad blood between prosecution witnesses and appellant not relued out - Only evidence against other appellant 'B' is of having been identified by two witnesses - Identification held after 2 ½ months from his arrest - Identification parade held after such a lapse of time creates doubt - Not possible for witnesses to remember his local image and profile- Conviction of both the appellants, not sustainable.
Further, the learned advocate for the accused persons placed reliance on a decision reported in 2004 Crl.L.J. 2162 in case of Bommidi Malli Kharjuna Alias Malka and others V/s. State of A.P. wherein it is held as under;
Penal Code (45 of 1860), S. 395 - Dacoity - Conduct of test identification parade - Services of jail constable utilized to secure non-suspects and Magistrate has admitted same in his evidence - Amounts to violation of Rule 34(iii)(c) of Criminal Rules, 1990 by Magistrate - T.I. Parade conducted after more than five months from date of offence - Descriptive particulars of accused not mentioned in FIR lodged by eye witness/victim -
Recovery of stolen articles based on confessional statement, not proved by prosecution - Confessional statement taken totally against S.27 of Evidence Act - Accused were strangers and it was impossible to identify them after above 9 years - No identification of properties conducted - There was only suspicion in case which has not culminated into proof. - Accused entitled to benefit of doubt.
13 S.C.950/2011Further, the learned advocate for the accused persons placed reliance on a decision reported in 2008 Crl.L.J. 3128 in case of Manoj Kumar and others V/s. State of Haryana wherein it is held as under;
(D) Evidence Act (1 of 1872), S. 114 - Penal Code (45 of 1860), S. 395 - Dacoity - Recoveries made soon after dacoity at instance of accused - Invoking statutory illustration (a) appended to S.114 to prove commission of crime by accused - Recoveries of articles looted made one month after dacoity and not soon after dacoity - No identification parade was held - Even alleged recoveries at instance of accused were doubtful
- Not sufficient for conviction of accused - Conviction of accused liable to be set aside.
I do adhere with the principles laid down in the supra cited decisions. The principles laid down in the supra cited decisions are followed.
15. In order to prove its case, the prosecution examined Pw.1 to Pw.11 and got produced Ex.P.1 to Ex.P.16.
16. The complainant Pw.1 Bharath in his evidence has stated that, about 8 months back to the present incident absconding accused No.1 Sunil Kumar by phone informed him that he is involved in murder case and asked him to send money and then he told him that, if he called for money he will complained to the police. Thereafter, one week earlier to the date on 9.7.2009 accused Kumar phoned to him and requested to forgive for back happens and asked to see him. On 9.7.2009 at evening 14 S.C.950/2011 6.30 hours he received miscall. When he redialed to the said phone the same was of A-1 and A-1 asked him to come at Kagees Bakery. At Kagees bakery himself and A-1 taken tea near the said bakery. Then A-1 asked him by saying that, his friend may come late, to park the Lancer Car bearing No.KA-03-ML-499 ahead. When he tried to on the tape accused No.2 opened the back door of the car and put knife on his waste and asked to sit in the car. When he tried to escape accused No.2 Manjunath assaulted on his face and pushed him on the back seat. Meanwhile accused No.4 and accused No.7 were seated in the back seat. Thereafter accused No.3 who was seated at front seat dragged and pushed A-1 Kumar to the back seat then accused No.2 started the car and accused persons started to abuse, assault him. Accused No.2 assaulted him by parking the car. When car proceeding at BWSSB., accused persons stopped the car and accused No.5 Prakash, accused No.7 Vijaykumar alighted there with Kumar by saying they need Kumar. They just acted if they were kidnapping Kumar. In fact accused persons kidnapped him. Later proceeding in the car the accused persons threatened him to pay Rs.3,00,000/-. Thereafter when he refused accused persons snatched mobile phone, golden chain, Rs.3,200/- from him and also got removed L.C.D. Screen and DVD player from his car. The accused persons assaulted 15 S.C.950/2011 him in the car up to 8.45 p.m. and stopped his car at night 8.45 hours at dark place and left him. Thereafter, he went to his house and informed the matter to his mother. With the help of Byatarayanapura police station lodge the complaint as per Ex.P.1 before Hanumanthnagar police station. The police have recorded panchanama near Kagees bakery between 2.00 to 2.45 hours as per Ex.P.2 panchanama. On 24.7.2009 Omprakash P.S.I. of High Grounds police station got identified his chain and A-1 Kumar. Thereafter on 10.3.2010 police inspector Shammanna of Hanumanthanagar police station got identified accused No.2 in the police station. The police have returned his CLD Screen and DVD player recovered from accused persons and he identified the M.O.1 golden chain, LCD Screen at Mo.2, DVD Player at MO.3, knife at MO.4.
17. Pw.7/Sunitha, mother of the complainant Pw.1 in her evidence has stated that, on 9.7.2009 when her son returned to home was afraid. On enquiry her son Pw.1 disclosed that, Kumar along with four persons had kidnapped him, and Kumar and his friends have robbed his golden chain, cash of Rs.3,200/-, mobile phone, DVD Player. Thereafter they left him on West of Chord Road. Therefore, her son lodged the complaint at Hanumanthnagara police station about the incident and herself has written the complaint at Ex.P.1 stating that, the same is in her hand writing. 16 S.C.950/2011 Thereafter, the police returned the said articles to her son by saying that they have traced out the accused persons.
18. Pw.8/Omprakash P.S.I., in his evidence has stated that, on 23.7.2009 when he was on patrolling duty at 12.30 night A-1 Kumar was found suspicious manner. Thereafter, he brought him to police station and registered a case in Cr.No.179/2009 for the offences punishable U/s. 41(D) and 302 of Cr.P.C., and R/w.Section 379 of I.P.C. The accused Kumar has given statement before him that, all the accused persons have snatched golden chain from one Bharath. Thereafter accused No.1 Kumar has given his voluntary statement before him that, he will produced the golden chain snatched from Bharath. Thereafter, he seized the same by recording seizure panchanama in his presence of the panchas. He got identified the golden chain at Mo.1 through complainant.
19. Pw.10/Shamanna Dy.S.P., Forest Department, in his evidence has stated that, on 24.7.2009 he came to know that, the accused Sunil Kumar had produced one chain connecting to this crime before police inspector High Ground police station. On 26.7.2009 accused No.1 Sunil Kumar disclosed that A-2 Manja @ Kalla Manja, Anand, Dynalson @ Son, Prakash, Vijay Vaishaka had kidnapped Bharath and robbed golden chain, 17 S.C.950/2011 Rs.3,200/- L.C.D. Player and chain is recovered by the Highground Police station, L.C.D., and Music System is with Kalla Manja and mobile phone and knife are with Rynal Son and he identified his voluntary statement at Ex.P.13. On the same day accused No.1 has given statement before him that, the robbed amount of Rs.3,200/- have got divided equally among himself and accused persons and he has spent all amount fallen to his share. Thereafter, he got identified accused No.1 to 5 from complainant Bharath. On 10.3.2010 accused No.2 has given voluntary statement as per Ex.P.15 and took them to his house situated at Mysore road, Hosaguddadahalli, 2nd Cross, House No.91 and produced LCD Screen set and he seized the same in presence of the panchas as per Ex.P.3/panchanama. Further, Pw.10 in his evidence has stated that, thereafter he got identified accused No.2 to 7 from complainant and thereafter he recorded the statements of Balaji and Anand.
20. During the course of cross-examination Pw.1 has specifically stated that, he did not know the accused persons except he had acquaint with the accused No.1. Accused No.1 and accused No.5 are arrested on 27.7.2009. Accused No.1 has been arrested on 23.7.2009 and other accused persons were arrested on 28.10.2009 i.e. present accused persons were arrested after 15 days to one month to the date of alleged 18 S.C.950/2011 incident. Therefore, under these circumstances, the conduct of test identification parade of the accused persons was quiet essential. Pw.10, Investigating Officer in his evidence has also stated that, he has not conducted any test identification parade of the accused persons as required by law except got identified the accused No.1 and other accused persons through complainant Bharath. When Bharath was not known the accused persons on the alleged date of incident and the identification of those persons after more than one month in the police station is not possible. Under such circumstances, the test identification parade have been conducted. The non-conducting of the test identification parade of the accused persons by the Investigating Officer is fatal to the case of the prosecution. The recovery pancha Pw.3 in his evidence has specifically stated that, the Investigating Officer has not conducted any panchanama in respect of seizure of any articles in his presence by seizing any articles from the accused persons nor the accused persons produced any articles in their presence. Therefore, the prosecution has failed to prove the recovery of articles at Mo.1 to Mo.4 from the possession of the accused persons. The recovery panch of Mo.1 chain in his evidence has stated that, accused No.1 has produced golden chain before the police in his presence by saying that himself and other four accused persons have 19 S.C.950/2011 robbed the same form the complainant Bharath. Further, Pw.11 in his evidence has stated that, accused No.1 has not given names of the present accused persons by saying that along with them he has robbed seized articles from Bharath. Therefore, the prosecution has failed to link the present accused persons with absconding accused No.1/Sunil Kumar in commission of the alleged offences.
21. Pw.10 in his evidence has specifically stated that, he has not conducted any panchanama with regards to removal of LCD and Music system from the car of the complainant. Pw.7 in her evidence has stated that, there is no receipt with regards to the purchase of the LCD and Music system. Under these circumstances, it was quite essential to record the panchanama in respect of removal of LCD and Music system from the car of the complainant to ascertain whether LCD and Music system were fixed to the car or not. Non-conducting of the panchanama of the car with regard to the LCD and Music system is fatal to the case of the prosecution.
22. It is defence put forth by the accused persons that, they were brought to police station earlier to the date of incident. Thereafter, a complaint before the senior officer of the police station was filed and for 20 S.C.950/2011 that reason the Investigating Officer has falsely implicated them in this case. Pw.5, Pw.6 and Pw.9 in their evidence have specifically stated that, there is no documentary evidence about their fixed for duty to arrest the accused persons. The prosecution has not produced any independent witnesses to show that, the accused persons have been arrested by the Pw.5, Pw.6 and Pw.9 as they alleged. Therefore, in the absence, of any independent witnesses the possibilities of securing of the accused persons from their residence or some other places earlier to the date of incident by the police cannot be ruled out. The version of the Pw.1 that, he identified the accused persons at police station cannot be believed as he himself has stated earlier to the incident he was not acquaint or not known the accused persons except the accused No.1 Sunil Kumar. The accused persons have not been got identified by the Investigating Officer with complainant Bharath in presence of any independent witnesses. Therefore, the version of Pw.1 complainant that, he identified the accused persons in the police station and articles at Mo.1 to Mo.4 cannot be believed.
23. During the course of cross-examination Pw.1 admits that, when the golden chain robbed from him was containing pendent. Further, he admits that, when he collected the same from police the pendent was not present. Pw.11 also stated that, there was no pendent when the same 21 S.C.950/2011 was seized. No particular documents are produced to show that, Mo.1 chain was belongs to the complainant Bharath. Therefore, it cannot be said that, the Mo.1 was the same chain which was robbed from the complainant. Therefore, all these aspects creates doubt on the story of the prosecution.
24. From the version of the Pw.7, the mother of the complainant an opinion cannot be formed that, the Mo.1 to Mo.4 are robbed by the accused No.2 to 5 and 7 from the complainant Bharath/Pw.1 by kidnapping him. Pw.7 is hear say witness. Pw.2/Ravikiran is spot panch and Pw.3/ Balaji is spot panch have turned hostile and not supported the case of the prosecution. Pw.3 is recovery panch as per Ex.P.3 and Ex.P.4 recovery panchanama has turned hostile and not supported the case of the prosecution. Therefore, the prosecution has failed to prove the place of incident and recovery of Mo.1 to Mo.4 from the possession of the accused persons. The version of Pw.4/Govindaraju, HC.3786, Hanumanthnagara police station does not come to the help of the prosecution to bring home the guilt of the accused persons, as the version of Pw.4 that, he arrested the accused No.5 from his place is not supported by any independent witnesses. The prosecution has not examined any 22 S.C.950/2011 independent witnesses to show that, the accused No.5 has been arrested by Pw.4 from his house.
25. Pw.5/Genesh, PC.No.11052, Hanumanthnagara police station, Bangalore and Pw.6/Shekhar, PSI, Forest Traffic Force, Bangalore in their evidence have stated that, themselves and Cw.17, Cw.11 to Cw.14 have arrested all the accused persons namely K.Manjunath, Ananda, Rynal Standaly, Vyshak and Vijaykumar. The same is not supported by any independent witnesses as the prosecution has not examined any independent witnesses with regards to the arrest of the accused persons particularly when Pw.5 and P.W.6 have specifically stated that, no written order was made to fix him along with others for arrest of the accused persons, nor the prosecution has produced any documents to show that, the Pw.5 and Pw.6 were fixed for arrest of the accused persons. The version of Pw.8/ Omprakash, P.S.I. does not come to the help of the prosecution to bring home the guilt of the accused persons except showing that, he found absconding accused No.1 in a doubtful manner at about 12.30 night near J.D.S. Office, Race Course Road and produced one mobile phone with sim and thereafter got registered a case against him. In his Cr.No.179/2009 for the offences punishable U/s. 41(D) and 302 of Cr.P.C., R/w. Section 379 of I.P.C., as the independent witness Pw.11 has 23 S.C.950/2011 specifically stated that, accused No.1 has not given any names of the accused persons by saying that, he has robbed golden chain and other articles from the complainant Bharath. Therefore, the version of Pw.8 is not helpful to the prosecution to bring home the guilt of the accused persons or connect the accused persons with the accused No.1 in commission of the alleged offences. The version of Pw.10 that, on 10.7.2009 he visited to the spot and recorded the spot panchanama in presence of the panchas between 1.40 to 2.40 p.m., as per Ex.P.2 is not supported by the spot panchas as spot pachas Pw.2 and Pw.3 have turned hostile. The version of the Pw.10 that, the accused No.2 Manjunatha took him to his house at Mysore road, Hosaguddadahalli and produced LCD. Music System, and seized the same in presence of panchas is not supported by the panchas as the panchas Pw.3 has turned hostile and not supported the case of the prosecution. Further, the version of the Pw.10 that, the accused No.4 took him to his house situated Guddadahalli, Mysore Road and produced one knife and he seized the same by recording seizure panchanama as per Ex.P.4 is not supported the independent witnesses, as the independent witnesses have turned hostile and not supported the case of the prosecution.
24 S.C.950/2011
26. Therefore, all these aspects create doubt on the case of the prosecution to connect the accused persons in the alleged offences in the alleged manner. Therefore, I have no hesitation whatsoever to come to the conclusion that, the prosecution has failed to prove the guilt of the accused persons beyond all reasonable doubt. Accordingly, I answer these points No.1 and 2 in the Negative.
27. POINT NO.3: In view of my findings on the above points, I proceed to pass the following:
ORDER In view of power conferred U/s. 235(1) of Cr.P.C., the accused No.2 to 5 and 7 are acquitted from the offences punishable U/s.365 and 395 of I.P.C.
Their bail bonds and surety bonds shall stand cancelled.
Office is hereby directed to preserve the entire file as the case is split up against the accused No.1 and 6.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this the 21st day of July, 2014.) (PATIL MOHAMMADGOUSE MOHIDDIN) PRESIDING OFFICER, F.T.C -X, BANGALORE CITY.25 S.C.950/2011
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
PW-1 Bharath
PW-2 Ravikiran
PW-3 Balaji
PW-4 Govindaraju
PW-5 Ganesha
PW-6 Shekhar
PW-7 Sunitha
PW-8 Om Prakash
PW-9 Dasappa
PW-10 Shamanna
PW-11 Sunil Kumar
II. For Defence:-
- Nil-
III. List of exhibits marked on behalf of the
Prosecution side:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of Pw.1
Ex.P.1(b) Signature of Pw.9
Ex.P.2 Panahanama
Ex.P.2(a) Signature of Pw.1
Ex.P.2(b) Signature of Pw.2
Ex.P.2(c) Signature of Pw.3
Ex.P.2(d) Signature of Pw.10
Ex.P.3 Panchanama
Ex.P.3(a) Signature of Pw.3
Ex.P.3(b) Signature of Pw.10
Ex.P.4 Panchanama
Ex.P.4(a) Signature of Pw.3
Ex.P.4(b) Signature of Pw.10
Ex.P.5 Signature of P.W.24
Ex.P.6 Seizure mahazar
Ex.P.6(a) Signature of P.W.24
Ex.P.7 P.F. Memo No.11-2010
26 S.C.950/2011
Ex.P.7(a) Signature of P.W.24
Ex.P.8 F.I.R.
Ex.P.8(a) Signature of P.W.24
Ex.P.9 Requisition
Ex.P.9(a) Signature of P.W.25
Ex.P.10 Statement of P.W.26
Ex.P.10(a) Statement of P.W.27
Ex.P.10(b) Signature of Pw.11
Ex.P.11 Statement of P.W.28
Ex.P.11(a) Statement of P.W.29
Ex.P.12 Statement of P.W.30
Ex.P.12(a) Statement of P.W.31
Ex.P.13 Death Report
Ex.P.13(a) F.S.L.Report
Ex.P.13(b) Signature of P.W.32
Ex.P.14
Ex.P.14(a) Signature of Pw.10
Ex.P.14(b) Signature of accused
Ex.P.15 Sworn statement
Ex.P.15(a) Signature of Pw.10
Ex.P.15(b) Signature of accused
Ex.P.16 Sworn statement
Ex.P.16(a) Signature of Pw.10
Ex.P.16(b) Signature of accused
IV. For Defence side:-
-Nil-
V. List of material objects marked:-
MO.1 Golden Chain
MO.2 L.C.D.Screen
MO.3 DVD Player
MO.4 Knife
(PATIL MOHAMMADGOUSE MOHIDDIN)
PRESIDING OFFICER,
F.T.C -X, BANGALORE CITY.
27 S.C.950/2011
Judgment pronounced in the open Court. The operative portion of the judgment is extracted below:-
ORDER In view of power conferred U/s. 235(1) of Cr.P.C., the accused No.2 to 5 and 7 are acquitted from the offences punishable U/s.365 and 395 of I.P.C.
Their bail bonds and surety bonds shall stand cancelled.
Office is hereby directed to preserve the entire file as the case is split up against the accused No.1 and 6.
PRESIDING OFFICER, FTC-X. BANGALORE.28 S.C.950/2011 29 S.C.950/2011