Bangalore District Court
State By vs Akshay Kumar. M on 7 March, 2020
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS JUDGE;
BANGALORE CITY [CCH.NO 66]
PRESENT
SHRI. SUBHASH SANKAD
B.A.,LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 7th day of March, 2020
S.C.No.1277/2019
COMPLAINANT: State by,
Police Sub-Inspector,
Channammanakere Achchukattu
Police Station,
Bengaluru.
(Rep. by Public Prosecutor)
V/s.
ACCUSED: AKSHAY KUMAR. M
@ AKSHAY @ ACHHU,
s/o late Mallikarjuna,
Aged about 24 years,
R/at No.71, Gandhinagara,
Kanakapura Main Road,
Bengaluru.
[Accused No.1]
(By Sri. KSN., Advocate)
Date of Commencement of
offences 19.10.2016
Date of report of offences
19.10.2016
Name of complainant Sri. Kumaraswamy S.P.,
Sub Inspector of Police
2 S.C.No.1277/2019
Date of recording of
evidence 12.06.2018
Date of closing of evidence
13.07.2018
Offence complained of U/s. 399 and 402 of IPC
Opinion of the judge Acquittal
JUDGMENT
This is a split up charge sheet filed by the Police Inspector, Channammanakere Achchukattu police station, as against accused No.1 for the offence punishable under Sections 399 and 402 of IPC.
2. Brief facts of prosecution case are as follows:-
The complainant- Sri. Kumaraswamy S.P., the police sub- Inspector, Channammanakere Achchukattu Police station states that, on 19.10.2016 at about 6.45pm, when he was in police station, he received credible information that within the jurisdiction of Channammanakere Achchukattu police station, Banashankari 3rd Stage, Anjaneya Nagar, near Banashankari Steel, 5 to 6 persons had gathered armed with deadly weapons, and they were making preparations to commit dacoity by snatching cash, mobile phone and gold ornaments of the public passing by. The 3 S.C.No.1277/2019 complainant states that, he immediately summoned the two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparation to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking among themselves that, they would commit dacoity by robbing of their cash, gold and mobile phones of general public. After confirming this, the complainant along with his staff surrounded the accused and they were able to catch hold of 3 persons and other three ran away. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity of general public. The complainant further states that, he seized three iron choppers, four mobiles from these accused persons and in the presence of two pancahs 4 S.C.No.1277/2019 i.e. CW2 Babu and CW3 Puneeth conducted the mahazar. Thereafter, he came to the police station along with accused and lodged the complaint before CW17 Sadashivaiah, PSI.
3. After investigation CW17 filed charge sheet before the Learned II ACMM, Bengaluru. The Learned II ACMM Bengaluru took cognizance of the offences punishable under section 399 and 402 of IPC. After committal, the case is numbered as S.C.No.782/2017 and then made over to this court, for disposal in accordance with law. The charge sheet was filed against accused Nos. 1 to 4. Since accused No.1 was absconding, my predecessor has ordered to be split up the case in respect of accused No.1 and register separate case. Accordingly, a case was registered against accused No.1 in SC.No.1277/2019, the said case was disposed off, the charge was framed for the offence punishable under Sections 399 and 402 of IPC. The charge was read over and explained to accused No.1. However, accused No.1 pleaded not guilty of the charges leveled against him and claimed to be tried. That the case against accused no. 1 was ordered to be split up in Sc No. 782/2017 when the case was posted for examination of accused U/S 313 Cr.P.C. and the 5 S.C.No.1277/2019 present charge sheet is submitted against accused no. 1 herein. And the case is numbered as SC No. 1277/2019. Since the recording of evidence was already completed before the case against the accused no.1 was ordered to be split up, the original case was ordered to be put up with this case and the same evidence has been considered in present case.
4. The prosecution in support of its contention had totally cited 17 witnesses i.e. CW1 to CW17. However, the prosecution was able to secure and examine only four witnesses i.e. PW1 to PW4. PW1 is the complainant Kumaraswamy, PSI and PW2 Babu is Pancha witness, PW3 Puneeth is another Pancha witness and PW4 is Investigation Officer and got marked the documents at Ex.P1 to 18 and M.O.1 to 8 were identified. Ex.P1 is the Panchanama, Ex.P2 is the complaint, and Ex.P3 & P4 are statements of PW2 & PW3 respectively, Ex.P5 is the FIR, Ex.P6 is the seizure of Mahazar Pulsar Bike, Ex.P7 & P8 are the Photos, Ex.P9 to 11 are the voluntary statements of accused Nos.1 to 3, Ex.P12 is the seizure Mahazar of Tata Indica bearing No.KA-03/AC-9848, Ex.P13 & 14 are the photos, Ex.P15 is the seizure mahazar of Honda Activa bearing No.KA-05/JJ-881, 6 S.C.No.1277/2019 Ex.P16 & 17 are the photos and Ex.P18 is voluntary statement of accused No.4. The prosecution was able to secure and examine only CW1, 2, 3 and CW17. Even though, sufficient opportunity was given, prosecution was unable to secure CWs 4 to 16. Learned PP has given up CW4 to CW16.
5. The accused No.1 was examined as required under Section 313 Cr.P.C. The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against him and he has not chosen to lead any defense evidence on his behalf.
6. Having heard both the sides, the following points arise for my consideration.-
1. Whether the prosecution proves beyond all reasonable doubt that, on 19.10.2016, at about 6.45pm. within the limits of Channammanakere Achchukattu P.S Banashankari 3rd Stage, Anjaneya Nagar, near Banashankari Steel, accused No.2 and 3 along with other accused persons holding deadly weapons i.e, three iron longs, four mobiles, were making preparations to commit dacoity of general public and to rob the valuables from them, and thereby committed an offence punishable u/Sec. 399 of IPC?
7 S.C.No.1277/2019
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place, accused No.2 and 3 along with other accused persons, had assembled there to commit dacoity by robbing the valuables from general public and thereby committed an offence punishable under section 402 of IPC?
3. What Order?
7. My answer to the above points are.-
Point No.1:- In the Negative Point No.2:- In the Negative Point No.3:- As per the final order for the following REASONS
8. Points No.1 & 2:- Since these points are interconnected with each other, for the sake of convenience, I would like to take these points together for common consideration.
9. The complainant Sri.Kumaraswamy S.P., the police sub-Inspector, Channammanakere Achchukattu Police station states that, on 19.10.2016 at about 6.45pm, when he was in police station, CW1 received credible information that within the jurisdiction of Channammanakere Achchukattu police station, Banashankari 3rd Stage, Anjaneya Nagar, near Banashankari Steel, 5 to 6 persons had gathered armed with deadly weapons 8 S.C.No.1277/2019 and they were making preparations to commit dacoity by snatching cash, mobile phone and gold ornaments of the public passing by. The complainant states that, he immediately summoned the two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparation to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking among themselves that, they would commit dacoity by robbing of their cash, gold and mobile phones of general public. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of 3 persons and other three ran away. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity of 9 S.C.No.1277/2019 general public. The complainant further states that, he seized four iron choppers, four mobiles, from these accused persons and in the presence of two pancahs i.e. CW2 Babu and CW3 Puneeth conducted the mahazar. Thereafter, he came to the police station along with accused and lodged the complaint before CW17 Sadashivaiah, PSI.
10. PW1 has elaborately deposed of having arrested the accused persons and for having seized the deadly weapons from the possession of accused persons. He further deposed that, in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.1. He also identifies the deadly weapons seized i.e. three Iron Chopper and four mobiles and accordingly, they were marked as M.O.1 to M.O.7. He states that, he has conducted panchanama as per Ex.P.1 in the presence of CW2 and CW3. He identifies the accused person. PW1 has been cross examined by the leaned advocate for accused. Further on careful perusal of cross examination, PW1 in his cross examination denies the suggestion that, since he knows PW2 Babu and PW3 Puneeth he asks these persons to act as Panchas in all the cases, the said PW2 and 3 10 S.C.No.1277/2019 have acted as Panchas earlier in 2 to 3 cases. Further PW1 has stated in his cross examination that he has not recorded the conversation of the accused person, he was not able to tell the act of each accused. He is not able to tell the colour of cloth which the accused No. 4 was wearing. He denied the suggestion that since he was not there in the spot he is unable to tell the colour of the cloth which the accused No. 4 was wearing. He denied the suggestion that the public were more in number and since the panchanama was not drawn in the spot he had not taken the signature of the public. Further he has denied the suggestion that he has not recovered the MOs from the accused persons and CW2 and 3 are the permanent Panchas of his station. PW1 further denies that he has registered the false case only to show the statistics of his station and falsely deposing before this court.
11. During the examination in chief of PW2 and 3, PW2 and 3 started deposing against the case of the prosecution. Hence Learned Public Prosecutor sought permission of the Court to cross examine PW2 and 3. This Court granted permission to cross examine PW2 and 3. Though the Learned Public 11 S.C.No.1277/2019 Prosecutor cross examined PW2 and 3 in length, nothing favourable to the case of the prosecution could be elicited from the mouth of PW2 and 3.
12. PW4 Sadashivaiah the then PSI of Channammanakere Achchukattu Police Station stated that on 31.5.2017 while he was discharging duty as SHO in the police station, PW1 appeared before him and lodged a complaint as per Ex.P.2 before him and also produced M.O.1 to M.O.7 along with three accused persons. Accordingly he registered the case under section 300 and 402 of IPC and lodged FIR to the court. He further states that, later on he recorded the statements of CW2 Babu and CW3 Puneeth. PW2 further states that, thereafter he has recorded the voluntary statements of accused persons and he has further states that, at the instance of the accused persons he has seized one Iron Chopper which was hidden at the back side of the Venkateshwara temple at Anjaneya Nagar same were marked as MO8. PW4 has further stated that accused shown him black and blue coloured Bajaj Pulsar two wheeler vehicle bearing NO.KA 03 7342 which was used for the commission of the offence. Further he has stated that at the instance of the 12 S.C.No.1277/2019 accused No.1 he has seized the Tata Indica Car bearing Registration No.KA 03 AC 4898 which was kept behind Venkateshwara Temple at Anjaneya Nagar. After seizure of the motor vehicle he conducted panchanama in the presence of CW6 and CW7 and took photograph of the said vehicle. PW4 identifies the panchanama at Ex.P12 and two photographs at Ex.P13 and
14. Thereafter came to the station and recorded the statement of CW10 Ganesh and CW6 Prashanth D and CW7 Srinivasa. After receiving the Court order he has released the vehicle.
13. PW4 has further deposed that at the instance of the accused No.4 Girish the PW4 has seized one iron chopper and ash coloured Honda Activa bearing No.KA05 JJ 5881 in presence of CW8 and CW9 and he identified the chopper at MO8 and photographs at Ex.P16 and 17. Further PW4 has deposed that after completion of the investigation he has submitted the charge sheet against the accused persons. PW4 has been cross examined by the Learned counsel for the accused No.2 and 3. He has denied the suggestion that he has registered the false case against the accused No.2 and 3, though accused No.2 and 3 are not involved in any of the alleged offences. He also denied 13 S.C.No.1277/2019 the suggestion that the accused No.2 and 3 have not given any voluntary statement and he has not recovered any weapons of the accused No.2 and 3, witness further denied that he has not recorded the statements of the witnesses and he has created all the MOs for the purpose of this case, he has registered the present case only for the statistical purpose.
14. The prosecution in order to prove its case, has totally cited 17 witnesses i.e. CW1 to CW17. However, the prosecution was able to summon and examine only four witnesses i.e. PW1 to PW4. The learned PP has given up CW4 to CW16.
15. It is the specific case of prosecution that complainant i.e. I.O had received credible information that the accused persons had assembled at the spot with an intention to commit dacoity, they had assembled with deadly weapons like four iron choppers. PW1 has specifically stated that, upon receipt of credible information, he immediately summoned two independent pancha witnesses i.e. CW2 Babu and CW3 Puneeth. He requested them to act as panchas, upon which the pancahs have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that, they stopped 14 S.C.No.1277/2019 their vehicle at some distance from the spot and observed the accused persons. I.O was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with staff have surrounded the accused and they were able to apprehend A1 to A3. Meanwhile, A4 to A6 managed to escape from the spot. The complainant has further stated that, from the possession of the accused, he has recovered the deadly weapons and four mobiles of different companies used for committing dacoity. He states that, in the presence of 2 independent panchas i.e., CW2 and CW3, he has seized the articles i.e., three iron choppers and four mobiles. He has conducted the mahazar as per Ex.P.1 in the presence of those two material and independent mahazar witnesses. The burden is upon the prosecution to prove the mahazar as per Ex.P.1, to prove that these Material objects were seized from the accused persons who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized three iron choppers and four mobiles. In order to prove this offence, 15 S.C.No.1277/2019 evidence of PW1 to PW4 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
16. It is pertinent to note that, PW2 and PW3 in their chief examination deposed against the case of the prosecution, with permission of this court the Learned Public Prosecutor has cross examined PW2 and 3 in length. Nothing could be elicited from the mouth of the PW2 and 3. The only evidence on record is that of the complainant i.e. PW1, who was PSI attached to the Channammanakere Achchukattu police station and the witness of PW4. Evidence of PW1 is corroborated by the evidence of PW4, who has conducted the investigation. Before adverting to appreciation of evidence of aforesaid witnesses, it is necessary to state that under Section 399 IPC, preparation to commit dacoity is made punishable.
17. The entire prosecution case rests on the testimonies of PW1 Sri.Kumaraswamy who was the member of the raiding party. According to the testimony of this witness, 5 to 6 persons had assembled at the place of occurrence and were found in possession of deadly weapons. That being so, this Court has to determine as to whether the accused persons can be convicted 16 S.C.No.1277/2019 for the offences under Sections 399 and 402 IPC and whether the ingredients of the said sections have been proved by the prosecution or not. However before this Court can do so, it is necessary to refer to the case law on the subject.
18. I would like to rely upon the decision of the Hon'ble supreme court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502
19. This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein it was observed:-
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no 17 S.C.No.1277/2019 evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."
The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of Nine appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity.
18 S.C.No.1277/2019
20. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 and 402 IPC. As discussed herein above, prosecution has examined one member of the raiding party, who have deposed on the lines of the case of prosecution but none of the aforesaid witness has said even a single word that accused persons were making preparation to commit dacoity. The witness is referring that after seeing 6 persons near Banashankari Steel, Anjaneya Nagar, Banashankari 3rd Stage, Channammanakere Achchkattu, Bengaluru. PW1 gave the signal and when the complainant along with staff surrounded, the accused persons tried to run away in different directions. Out of them three persons managed to run away but four were apprehended. The deadly weapons like M.O.1 to 3 and 8 i.e. four iron choppers, shown to have been recovered from the accused persons. This is the only case of prosecution, which in my opinion is not sufficient to convict the accused person for the offences as indicated.
21. The prosecution was under obligation to establish that the assembling of the accused persons is for preparation of dacoity. In other words, the prosecution must show that there 19 S.C.No.1277/2019 were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found at vacant place, near Banashankari Steel, Anjaneya Nagar, Banashankari 3rd Stage, Channammanakere Achchkattu, Bengaluru it cannot be held that they had assembled there for preparation to commit dacoity.
22. It is true that so far as the offence u/s 402 IPC is concerned, it may be mentioned that this section can be applied to mere assembling without proof of other preparation. The offence u/s 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case it is not in dispute that, at the spot only five persons are shown to have been apprehended. Three accused person have been arrested subsequently. According to the prosecution, three persons managed to run away from the spot. This is unbelievable. The raiding party was having around 5 police officials and some of them were having arms. In these circumstances, how, one of the accused managed to run away. 20 S.C.No.1277/2019 There is nothing on record which could show that efforts were made to chase him or to apprehend him.
23. Further, during the evidence of prosecution witnesses i.e. members of raiding party, it has come on record that there was complete darkness. That being so, how the members of raiding party could locate the position of the accused persons, when admittedly members of raiding party were positioned in different directions from each other and there was complete darkness. This all has created a doubt about the presence of five or more persons at the spot which is mandatory to bring the case within the ambit of section 402 IPC, as admittedly on the spot three persons were apprehended. It has not been explained that how the accused No.1 is connected to the incident, on what basis accused No.1 was identified as the culprit, remained unexplained.
24. Another important aspect to be noted is that, the prosecution has failed to prove that, there was any overt act on the part of the accused No.1 which may lead to the inference that, he had no any intention to commit dacoity or he was planning to commit dacoity over there along with other accused. It is a matter of common knowledge that, any person who is shown to have in 21 S.C.No.1277/2019 possession of deadly weapons would definitely resist his apprehension by police officials under the fear of being booked in criminal case. In this background, the story as set up by the prosecution does not appeal reasoning and is liable to be rejected.
25. Moreover, record would indicate that, presence of public witness could have been secured by the complainant who was heading the raiding party. The incident is shown to have taken place at near Banashankari Steel, Anjaneya Nagar, Banashankari 3rd Stage, Channammanakere Achchkattu, Bengaluru. Moreover, record would indicate that said place is a public place. This shows that with a little effort, public witnesses could have been made to join the investigation. However, the prosecution has not secured any public witnesses from the said locality/spot of incident. Even the mahazar witnesses, have been secured from different places.
26. In the present case prosecution tried to bring home guilt of the accused persons by relying upon the versions of police officials who were member of the raiding party and the I.O who has conducted investigation. A bare perusal of their version 22 S.C.No.1277/2019 clearly reflects the same to be of stereo type. Hence, I am of the opinion that, it will be highly unsafe to rely upon their version.
27. In the present case, prosecution tried to bring home the guilt of the accused persons by relying upon the testimonies of the police officials who were member of the raiding party two pancha witnesses PW2 and 3 who have not supported the prosecution case. The testimony of PW1 and 4 is of stereo type as discussed herein above, which should have been supported by some independent witness, which is failing in the present case. The manner in which stereo type deposition has been given without any corroboration or support from any other independent witness is sufficient to disbelieve their version even in respect of alleged recovery of deadly weapons from the possession of accused persons. The entire proceedings carried out by the raiding party are under the cloud and it would not be safe to place reliance upon the quality of the evidence as adduced by the prosecution, therefore, the recovery of deadly weapons pursuant to the said proceedings or incident has also become doubtful. There is no independent corroboration to said recovery also. 23 S.C.No.1277/2019
28. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has miserably failed to prove the offences against the accused No.1 beyond reasonable doubt. Thus, I am left with no option but to acquit the accused No.1. Accordingly, I answer points No.1 and 2 in the 'Negative'.
29. Point No.3:- For the above reasons, I proceed to pass the following:-
ORDER Acting under Sec.235(1) of Cr.P.C., accused No.1 is acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
The bail bonds and surety bonds of accused No.1 shall stands cancelled.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.8 in connection with the absconding accused. (Directly dictated to the stenographer online computer, corrected and then pronounced by me in the Open Court on this 7th day of March, 2020).
(SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
24 S.C.No.1277/2019 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:- PW1 Sri. Kumaraswamy, PSI PW2 Sri. Babu PW3 Sri.Puneeth PW4 Investigation Officer LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION:- Ex.P1 Panchanama Ex.P2 Complaint Ex.P3 & 4 Statements of PW2 & PW3 respectively Ex.P5 FIR Ex.P6 Seizure of Mahazar (Pulsar Bike) Ex.P7 & 8 Photos Ex.P9 to 11 Voluntory statements of accused Nos.1 to 3 Ex.P12 Seizure Mahazar of Tata Indica bearing No.KA 03 AC 9848 Ex.P13 & 14 Photos Ex.P15 Seizure mahazar of Honda Activa KA 05 JJ 5881 Ex.P16 & 17 Photos Ex.P18 Voluntory statement of accused No.2 and 3 25 S.C.No.1277/2019 LIST OF MATERIAL OBJECTS MARKED:- MO-1 to 3 Iron choppers MO-4 to 7 4 Mobiles of different companies MO-8 Iron chopper
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.