Bangalore District Court
State Of Karnataka vs Velu S/O Dhanpal on 17 May, 2018
IN THE COURT OF LXIX ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-70)
Present: Sri T.P.Ramalinge Gowda, B.Sc.,LL.M.,MBA.
LXIX Additional City Civil and
Sessions Judge,
Bengaluru.
Dated this the 17th day of May, 2018
SESSIONS CASE No.865/2016
Complainant : State of Karnataka
By Rajajinagar P.S.
(By Learned Public Prosecutor )
-V/S-
Accused : Velu s/o Dhanpal,
26 years, No.5:5,
8th cross, Saraswthipura,
Nandini layout, Bengaluru.
1 Date of commission of offence 3.1.2016
2 Date of report of occurrence 3.1.2016
3 Date of commencement of evidence 18.11.2016
4 Date of closing of evidence 24.8.2017
5 Name of the complainant Bhagya
6 Offence complained of Sec. 447, 435, 436
of IPC
2 SC No.865/2016
7 Opinion of the Judge Charge not proved.
: JUDGMENT :
This Charge Sheet is filed by the PI of Rajajinagar Police against the accused for the offence punishable U/Sec. 447, 435, 436 of Indian Penal Code.
2. The case of the prosecution in brief is as follows:-
CW.1 and 2 are in acquaintance with the accused and the accused demanded money from CW. 2 to close the case pending against CW.2 and then he asked to give the two wheeler of CW.2, but CW. 2 abused him and refused to give his vehicle as such the accused being enraged made plan to burn the vehicle of CW.2, in this background on 3.1.2016 at about 1.30 am at No. 155/Y 3rd Block, 15th main road, Rajajinagar the accused saw that the vehicle of CW. 2 was not parked and then he found the Honda Dio of CW. 1 and hence he put fire to Honda Dio bearing No. KA-02-HZ 8081 of CW.1 by pouring petrol on the vehicle, as a result the above said Honda Dio and Active Honda No. KA- 02-HP 4632 belongs to CW. 8 and Yahama Pager No. KA-02- HP-5848 of CW. 7 were burnt and damaged. The accused totally caused loss to the tune of Rs. 90,000/-, Rs, 10,000/- and Rs. 30,000/-. Accordingly CW.1 lodged complaint against the accused for the above said offences. After investigation the I.O. has filed the charge sheet against the accused.3 SC No.865/2016
3. The committal court after taking cognizance of the charge-sheet registered C.C. No.12631/2016 and committed the case for trial under Sec. 209 of Code of Criminal Procedure, after having complied with the provisions of Sec. 207 and 208 of Code of Criminal Procedure. In pursuant to the committal order, on committal of the case, present case has been registered and assigned to this Court for disposal in accordance with law. At the time of committal, Accused was on bail. He represented through his advocate. After securing his presence this Court framed the charge against the accused for the offence punishable U/Secs. 447, 435, 436 of Indian Penal Code. Contents of the charge were read over and explained to the accused. The accused pleaded not guilty and claims to be tried.
4. The prosecution examined 9 witnesses and got marked 11 documents exhibited as Ex.P1 to P.11. After completion of evidence on prosecution side, the statement of the accused u/sec. 313 of Cr.P.C. is recorded. The accused denied the incriminating evidence adduced against him. Though initially he has chosen to lead defense evidence, later his counsel submitted that the accused has no defense evidence. Hence the defense evidence is taken as nil.
5. Heard the arguments and perused the records.
6. In the light of above materials and allegations of prosecution, following points are arises for my consideration:-
4 SC No.865/20161. Whether the prosecution proves beyond all reasonable doubt that on 3.1.2016 at about 1.00 a.m at No.155/Y, 3rd Block, 15th main road, Rajajinagar, the accused committed illegal trespass and thereby committed an offence punishable u/sec. 447 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused put fire to Honda Dio No. KA-
02-HZ 8081 of CW.1, Honda Active No KA-02-HP 4632 of CW.8 and Yamaha Pager No. KA-02-HP 5848 of CW.7 and caused loss to the tune of Rs.
90,000/-, 10,000/- and Rs. 30,000/- and thereby committed an offence punishable u/sec. 435 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused put fire to three vehicles, as a result the front portion of the house of CW.1 also engulfed in the fire, thereby committed an offence punishable u/sec. 436 of IPC?
4. What order?
7. This court upon appreciation of available materials, with reference to prevailing legal aspects, give findings to the above points as follows:-
Point No.1 to 3 : In the negative
Point No.4 : As per final order, for the following:-
: REASONS :
8. POINT NO.1 TO 3:- These 3 points are taken up together for common discussion in order to avoid repetition as 5 SC No.865/2016 they are inter-linked. As per the criminal jurisprudence of our nation the prosecution has to bring home the guilt of the accused beyond all reasonable doubt with production of cogent and satisfactory evidence. PW. 1 is the complainant, PW. 2 is the son of complainant, PW.3 and 7 are the panchas for spot mahazar, PW.4 is the witness who rushed to the spot by hearing the screaming voice of PW.1, PW. 5 is the tenant of PW. 1 and owner of Active Honda bearing No. KA02 HP 4632, PW. 6 is the person who identified the accused by seeing the footages of CCTV and also before the police. PW. 8 is the PC who downloads CCTV footage into pen-drive. PW. 9 is the IO.
9. PW. 1 Bhagya has deposed that she know the accused who is the friend of her son and who used to visit their house, and she further deposed tht on 3.1.2016 at about 1.30 a.m in the midnight when she got up noticed fire in front of her house and when she screamed their neighbors came and all of them saw that the vehicles were burning and she saw that her Honda Dio, one Active Honda and one Yamaha bike were burnt, as such she lodged complaint-Ex.P.1, she signed the complaint and the mahazar-Ex.P.2, the police drawn mahazar and seized the vehicles, ash and transferred the CCTV footage to CD, the neighbors also put their signature. She came to know that the accused committed the said offence, on 5.1.2016 the police called them to the PS and shown the accused and she identified the accused and received the documents of her vehicle, . She identified the photos of the vehicle, ash and the CD-Ex.P.4. The 6 SC No.865/2016 learned PP after obtaining the permission of the court has displayed the C.D and after watching the CD the witness identified the vehicles and the accused before the court and further deposed that the accused poured petrol, put fire and fled away from the spot and he wore black color sweater at that time, she further deposed that the person appearing in the CD and the accused before the court is the same person, she identified the sweater-MO.2 before the court. In the cross-examination she admitted that once her son PW.2 and Matthi Manja were arrested in connection to a case of snatching gold chain from one Giridhar and Matthi Manja committed the crime, but her son had not committed any offence, then he obtained bail and released, she deposed that she do not know Giridhar and accused are friends, she deposed that she do not know her son and Matti Manja have requested the accused here to compromise the matter with Giridhar. Se further deposed that she herself noticed the fire and she denied that the vehicles are 15 years old vehicles and she deposed that on the next day the police transferred the CCTV footage to CD, she denied that she had lodged complaint against unknown person, but she deposed that she ledged complaint against the accused, she deposed that the police obtained her signature on 4.1.2016.
10. PW. 2 the son of PW. 1 has deposed that he know the accused who came in contact through his friend and the accused used to visit their house and on 1.1.2016 the accused asked to give his vehicle for riding his Yamaha R.One bike which was 7 SC No.865/2016 gifted by his mother on the occasion of his birthday, he refused to give the bike to the accused and as such being enraged on 3.1.2016 in the midnight he saw that the Honda Dio of his mother, and other two bikes were burning, as such they put water and extinguished the fire and the windows and the wall of their house was also burnt, they watched the CCTV footage and found that the accused put fire to the vehicles, as such they lodged complaint, the police seized the CCTV footage, vehicles and the ashes, he identified the vehicles by seeing the photos. He further deposed that the accused was demanding money from him and when he refused to give the money he put the fire to the vehicles. The learned PP treated the witness partly hostile and in the cross-examination he deposed that his bike worth Rs. 14,00,000/- and he admitted that he refused to give the bike and abused the accused in filthy language and after that the accused stopped talking with him and as such he came to put fire to his vehicle, but his vehicle was not there and hence he put fire to other vehicles. In the cross-examination by the defense he admitted that there is a criminal case against him and the accused gave assurance to him compromise the matter with Giridhar.
11. PW. 3 Avinash and PW. 7 the spot mahazar witnesses have deposed that they put their signature as per Ex.P.2(b) and(c) to the mahazar Ex.P.2 on 4.1.2016 in front of house of the complainant where the police drawn mahazar regarding the burnt vehicles, the police also seized the CCTV footages in a CD and 8 SC No.865/2016 ash, the CD is marked as Ex.P.4, Ex.P.4(a) is his signature, PW. 3 identified his signature marked as MO.1(a), he identified the vehicles by seeing the photos Ex.P.3. In the cross-examination by the defence PW. 3 admitted that his signature is not found on Ex.P.4 and he deposed that when he gone near the spot the photos Ex.P.3 were with the police. Whereas PW. 7 turned hostile, not supported the case of the prosecution.
12. PW. 4 Balaji has deposed that he know PW.1, he saw that the vehicles were burnt in front of house of PW.1, but he do not know how they burnt, he saw the accused for the first time before the court, he had not gave any statement before the police, he do not know who put fire to the vehicles, and he cannot say which type of vehicles were burnt. Learned PP treated the witness as hostile and in the cross-examination he denied having given statement before the police to the effect that on 3.1.2016 he heard the screaming voice of PW.1 and as such he came out side and saw that vehicles were burning and he put water and extinguished the fire and he watched the CCTV and found that friend of Adarsh put fire. His statement is marked as Ex.P.5.
13. PW. 5 Narayan Raju the tenant of PW.1 has deposed that on 3.1.2016 he had parked his Active Honda No. KA-02-HP 4632 and at about 1.30 in the midnight he heard some sound and then found that his bike and other two bikes were burning, immediately they put water and extinguished the fire, then the 9 SC No.865/2016 Fire Engines also came and extinguished the fire, he sustained loss of Rs. 27,000/-, he identified his vehicle by seeing Ex.P.3, in this regard he gave statement to the police, He further deposed that he do not know who put fire to the bikes, he came to know that friend of PW. 2 put fire to the vehicle, but he do not know personally who put fire. In the cross-examination he deposed that on the next day he gave statement before the police and he admitted that he has not stated before the police that people were talking that friend of PW. 2 put fire to the bikes.
14. PW. 6 who identified the accused before the police turned hostile, he deposed that the police have not shown any person to him and he had not gave any statement as per Ex.p.6.
15. PW. 8 the Police Constable of complainant PS has deposed that on 4.1.2016 as per the direction of PW. 9 he transferred the CCTV footage to the pen drive and then to CD and handed over the CD to PW. 9, he identified the vehicles by seeing Ex.P.3, He further deposed that the accused before the court is the person who put fire to the vehicles. In the cross- examination he deposed that the pen drive is his personal pen drive and he transferred the footages to the CD, he had not signed on Ex.P.4 C.D., he admitted that he had not submitted any Certificate regarding transfer of footages through pen drive to CD. He denied other suggestions.
10 SC No.865/201617. PW. 9 the IO has deposed that on 4.1.2016 he received the complaint-Ex.P.1 from PW. 1 and registered the case and send the FIR-Ex.P.8 to the court and on the next day in the afternoon visited the spot and drawn the panchana in the presence of panchas PW. 3 and 4 and the complainant gave one CD containing CCTV footage, then he seized the bikes, ash and CD and then recorded further statement of complainant . the ash is marked as MO1, the CD is marked as Ex.P.4, He further deposed that he recorded the statement of PW.4, 5, CW. 7 and after arresting the accused, recorded his statement as per Ex.P.9. He further deposed that on 5.1.2016 between 1.45 and 2.15 pm the accused took them to his house at Nandini layout and produced sweater- MO. 2and as such he seized the same in the presence of panchas and drawn the mahazar as per Ex.P.10 and on the same day he produced the accused before the court and on 24.5.2016 after completion of investigation filed the charge sheet against the accused. He further deposed that he recorded the further statement of the accused after conducting the TIP, then received the documents relating to burnt vehicles, which are marked as Ex.P.11. He identified the accused and the photos-Ex.P.3. In the cross-examination he admitted that the name of the accused is not mentioned in the complaint and at the time of lodging the complaint, the complainant has saw the CCTV footages. He denied that the bikes were burnt due to electric short circuit, he had not received the CD at the time of drawing mahazar. He further admitted that Ex.P.11 documents are belongs to one bike only and the documents pertaining to 11 SC No.865/2016 another 2 bikes are not obtained by him. He further admitted that he had not made inquiry with bike owners. He further deposed that he had not drawn the mahazar regarding transferring the CCTV footage to the pen drive.
18. On perusal of the above evidence PW.1 and 2 who are the mother and son, PW. 3 is the witness for the transfer of CCTV footages into CD, PW. 5 the another victim whose vehicle was also burnt and PW. 8 and 9 who are the police officials have supported the case of the prosecution. Whereas, PW. 4, 6 and 7 who are the independent witnesses have turned hostile and even in their cross-examination nothing is elicited in favour of the prosecution. On perusal of the entire evidence, it reveals that as per the evidence of PW. 1 she has lodged the complaint against the accused, but on perusal of Ex.P.1 complaint, it was lodged against unknown person. Further on perusal of Ex.P.1 and also the admissions of PW.1 elicited during the course of cross-examination, made it clear that PW. 1 is acquainted with the accused as he was the friend of her son- PW.2 and before lodging the complaint she has watched the CCTV footages, but she has not mentioned the name of the accused in the complaint. Even the evidence of PW. 2 also corroborates the evidence and admissions of PW.1 and he too admitted that before lodging the complaint they have watched the CCTV footages, but he also not disclosed the name of the accused in the complaint given by her mother or at the time of drawing the mahazar or at the time of giving his statement to the 12 SC No.865/2016 IO. No plausible explanation is forthcoming from PW. 1 and 2 about non disclosing the name of the accused in the complaint eventhough they were well acquainted with the accused. This attitude of PW. 1 and 2 is created serious doubt in the mind of court.
19. In order to prove the case of the prosecution, prosecution wants to rely upon the CCTV footages to establish the presence of the accused at the spot and commission of offence by him. But the prosecution has not at all produced the certificate as required under Section 65 (b) of Indian Evidence Act in order to admit the Electronic evidence. Not only that the I.O has not send the CD to the FSL in order to get opinion about the genuinity of CCTV footages. On perusal of the cross- examination of PW. 8 and 9, it discloses that the IO has recorded the statement of PW. 8 the P.C. who assisted him while transferring the CCTV footage to CD at the time of investigation, on 29.11.2016. Whereas the charge sheet is filed on 14.1.2016 and CCTV footages were recovered and got transferred on 4.1.2016. It shows that the statement of PW. 8 is recorded after filing the charge sheet as an after thought to fill up the loophole. To the specific question put to PW. 9 the I.O. that what necessitates to record the statement of PW.8 on 29.11.2016 i.e. after filing the charge sheet? The IO has not answered before the court and he has not at all offered any plausible explanation. That itself shows that he has not followed the procedure as prescribed under law. Further the recovery of CCTV footages 13 SC No.865/2016 from the CCTV recorder is not properly proved by the prosecution. The independent witness examined as PW. 3 in this regard though supports the case of the prosecution in his chief examination, in his cross-examination he admitted the suggestions put by the defence counsel that he could not able to identify the CD properly and he has signed at the request of the police without knowing the contents of the documents. Further on perusal of the CD containing the video footages and the photos produced before the court, that shows the presence of the accused at the spot and commission of the offence, but in the absence of the certificate under Section 65(B) of the Indian Evidence Act, the CD is not admissible as a legal evidence. Added to this as stated above prosecution has not properly explained why the name of the accused is not mentioned in the complaint, eventhough the complainant and her son are acquainted with the accused. Further it is elicited during the cross-examination of PW. 1 that before transferring the CCTV footages to the CD initially it was transferred to the pen drive by the police, but the said pen drive is not produced before the court and the contents of CD were not certified by the FSL about the genuinity and non tempering or morphing of CD. Under the circumstances a serious doubt is arised about the commission of the offence by the accused. Further PW. 4 who is said to be the eye witness to the incident as per the prosecution, is turned hostile and PW. 5 the another victim has also not stated anything against the accused, Pw. 3 and 7 who are the independent witnesses have also turned hostile. So it can be said that the 14 SC No.865/2016 prosecution failed to bring home the alleged guilt of the accused by producing cogent and satisfactory evidence. In the absence of cogent and convincing evidence from the prosecution side, the accused cannot be convicted. The basic principles of criminal justice system are that, accused should be treated innocent until the guilt is proved beyond all reasonable doubts and benefit of doubts, if any, should be extended to the accused. In the light of these principles, this Court safely hold that, the prosecution has failed to establish the charges leveled against the accused. Hence, benefit of doubt is extended to the accused as he deserve for it. Therefore, available evidence and the materials are not cogent and satisfactory and sufficient to hold accused guilty for the offences punishable U/Sec. 447, 435, 436 of Indian Penal Code. Thus the prosecution failed to prove point no.1 and 2 beyond all reasonable doubt as required under law. Hence point no.1 and 2 are answered in the negative.
20. POINT NO.3:- In the light of findings on above point accused is to be acquitted for the offences U/Sec. 447, 435, 436 of Indian Penal Code. Accordingly, this court proceeds to pass the following:-
ORDER In exercise of power vested with this court U/Sec.235(1) of Criminal Procedure Code, it is ordered that accused is acquitted for the offences punishable U/Sec. 447, 435, 436 of Indian Penal Code.
Accused is set at free for the said offences.15 SC No.865/2016
The Bail bonds and surety bonds stands
cancelled.
MOs are ordered to be destroyed after the
appeal period is over.
(Dictated to the Judgment writer on computer, corrected, signed and then pronounced by me in the open court on this the 17th day of May, 2018.) Digitally signed by T P RAMALINGE GOWDA T P RAMALINGE DN: cn=T P RAMALINGE GOWDA,ou=GOVERNMENT OF GOWDA KARNATAKA,o=HIGH COURT OF KARNATAKA,st=Karnataka,c=IN Date: 2018.06.09 04:32:02 IST (T.P.Ramalinge Gowda) LXIX Addl.C.C. & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW. 1 Bhagya
PW.2 Adarsha
PW.3 Avinash
PW.4 Balaji
PW.5 N.Narayan Raju
PW. 6 Velu
PW.7 Nazim
PW.8 Sunil
PW.9 M.V.Ramaiah
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 complaint
Ex.P.2 spot mahazar
Ex.P.3 photos
Ex.P.4 CD
16 SC No.865/2016
Ex.P.5to7 statements
Ex.P.8 FIR
Ex.P.9 sworn statement
Ex.P.10 mahazar
Ex.P.11 vehicle documents
LIST OF MATERIAL OBJECTS MARKED FOR
PROSECUTION:
MO.1 Ash
MO.2 sweater
Ex.P.4 CD
LIST OF WITNESSES EXAMINED DOCUMENTS
EXHIBITED AND MOS MARKED FOR ACCUSED: NIL Digitally signed by T P RAMALINGE GOWDA T P RAMALINGE DN: cn=T P RAMALINGE GOWDA,ou=GOVERNMENT OF GOWDA KARNATAKA,o=HIGH COURT OF KARNATAKA,st=Karnataka,c=IN Date: 2018.06.09 04:32:13 IST (T.P.Ramalinge Gowda) LXIX Addl.C.C. & Sessions Judge, Bengaluru.