Bangalore District Court
State By; vs Ramesh Kutti @ Jogi on 3 February, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 3rd day of February 2017
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.1183/2016
COMPLAINANT : State by;
Cottonpet Police Station, Bangalore.
(By Learned Public Prosecutor)
- Vs -
ACCUSED 1. Ramesh Kutti @ Jogi
S/o Muniswamy,
Aged about 43 years,
Residing at No.544,
4th Floor, 17th Block,
Pantharapalya,
Ambedkar Nagara,
Nayandahalli, Bengaluru.
2. Manjunatha @ Romeo
S/o Nagendra,
Aged about 22 years,
Residing at No.305,
Pantharapalya,
Ambedkar Nagara,
Nayandahalli, Bengaluru.
3. Aravinda S/o Murthy,
Aged about 22 years,
Residing at No.830,
2 S.C.1183/2016
Pantharapalya,
Ambedkar Nagara,
Nayandahalli, Bengaluru.
4. Shivakumar S/o Kumara,
Aged about 22 years,
Pantharapalya,
Ambedkar Nagara,
Nayandahalli, Bengaluru.
5. Ananda @ Delhi @ Chand
S/o Vasu,
Aged about 43 years,
C/o Eshwara Temple,
Nagamma Nagara,
K.P.Agrahara, Bengaluru.
(Accused No.1 by Sri.CKN,
Accused No.2,3 by Sri.M.S,
Accused No.4 by Sri.ANC, Advocates
1. Date of commission of offence 01-07-2016
2. Date of report of occurrence 01-07-2016
3. Date of commencement of evidence 07-01-2017
4. Date of closing of evidence 13-01-2017
5. Name of the complainant Sri. Narayani
6. Offences complained of Sec.399, 402 I.P.C.
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
3 S.C.1183/2016
JUDGMENT
This case is committed by the 45th Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offences punishable under Sec.399, 402 of IPC are exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Cottonpet Police Station has filed charge-sheet against accused for the offences under Sec.399, 402 I.P.C. arising out of Police Station in Crime No.204/2016.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, CW.1 who is the Police Sub-Inspector of Cottonpet Police on 30-06-2016 during the night hours was on pattoling duty along with his officials i.e., CW.4 to 8 and on 01-07-2016 at 3.00 a.m. when CW.1 along with the officials was patrolling on goods shed road, received a credible information stating that abetting to Balekai Mandi compound, 4-5 persons assembled armed with deadly weapons and making preparation to commit dacoity of commuters. CW.1 informed the information received by him to 4 S.C.1183/2016 his officials. Thereafter, CW.1 and his officials came near Anjanappa Garden, there CW.1 called CW.2 and 3-Panchas and informed the information received by him to them also and requested them for co-operating as Panchas, thereafter CW.1, and his officials and Panchas came near the spot and watched the spot by standing some distance away from the spot, on the spot 5 persons assembled armed with deadly weapons by parking two wheelers and talking among themselves, CW.1 has confirmed the information received as correct, thereafter CW.1 and his officials have conducted raid in presence of Panchas and catch-hold 4 persons, one person ran away. CW.1 has enquired the said persons, they have stated their names and addresses, they were possessing deadly weapons, the said persons told the names of the persons ran away as Chanda. CW.1 has drawn Mahazar and seized the deadly weapons and two 2 wheeler in presence of Panchas and thereafter CW.1 and his officials brought the said persons along with the properties seized to the Police Station.
CW.1 has prepared Report and submitted Report before CW.9 and produced the said persons and properties before CW.9.5 S.C.1183/2016
3(a) CW.9 who is the Police Sub-Inspector of Cottonpet Police Station on 01-07-2016 at 5.45 a.m. in the Police Station, CW.1 came to the Police Station and filed Report and produced the said persons and properties before CW.9, CW.9 on the basis of the Report submitted by CW.1 has registered case in Crime No.204/2016 and submitted FIR to the court, CW.9 has arrested the said persons and recorded their voluntary statements, CW.9 has subjected the properties under P.F.109/2016, CW.9 has recorded the statements of CW.2 to 8. On 05-07-2016, CW.9 has directed his officials CW.5 to catch-hold accused No.5 and produce before him, on the same day CW.5 has catch-hold accused No.5 and produced before CW.9. CW.9 has arrested accused No.5 and recorded his voluntary statement and thereafter as the investigation is completed, CW.9 has filed the charge-sheet.
4. After filing the charge-sheet by the Investigating Officer, 45th Addl. City Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered the case in C.C.18549/2016. Thereafter, 45th Addl. City Metropolitan Magistrate Court, Bengaluru has secured the presence of 6 S.C.1183/2016 accused and furnished charge-sheet copies to accused as contemplated under Sec.207 of Cr.P.C. and committed the case against accused before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.1183/2016 and made over to this court for disposal according to law as the offences alleged against the accused under Sec.399, 402 of I.P.C. are exclusively triable by the Sessions Court.
5. After receipt of the papers this court has secured presence of accused and enlarged them on bail. Thereafter, heard the counsel for accused and learned Public Prosecutor for state on charge to be framed. Charge under section under Sec.228 of Cr.P.C. framed against the accused for the offences under Sec.399, 402 of I.P.C. and read-over to the accused in the open court, accused pleaded not guilty and claim to be tried. Thereafter, Prosecution has called upon to prove the guilt of the accused by examining the Prosecution witnesses.
6. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 5 witnesses as PW.1 to 5 and got marked 9 documents as per 7 S.C.1183/2016 Ex.P1 to 9 and marked the 5 material objects as MO.1 to 5 and closed its side. Accused are examined under Sec.313 Cr.P.C. to enable them to explain the incriminating circumstances appearing against them in the prosecution evidence. Accused denied the statement in toto and further stated that they have no defence evidence, they have nothing to say, thereafter the case is posted for arguments.
7. Sri.M.S., Advocate filed power for claimant one Smt.Selvi W/o Nagendra and filed application under Sec.451 and 457 Cr.P.C. praying this court for releasing the Bajaj Pulsar 220 bearing Reg.No.KA-02-HK-3508 which is seized and subjected under P.F.No.109/2017 in this case. It is the case of claimant that she is the R.C.Holder of the said seized vehicle and the vehicle is required for her day to day work. The vehicle is kept in the compound of the Police Station facing towards the sun and rain. If the vehicle is kept idle, it will damage due to dexy. She is ready to abide by the conditions in releasing the vehicle in her favour.
8 S.C.1183/2016
8. The learned Public Prosecutor has filed objections and contended that the vehicle may be released in favour of the claimant subject to conditions.
9. Heard the arguments advanced by the learned counsel for the accused, counsel for the claimant and learned Public Prosecutor for state in length.
10. The points that arise for my determination are:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 to 5 on 01-07-2016 at 3.00 a.m. within the limits of Cottonpet Police Station, at Tank Bund Road near Punjabi Gate beside Balekai Mandi compound, accused assembled armed with armed with deadly weapons and making preparation to commit dacoity and thereby accused have committed the offence under Sec.399 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that accused persons on the above said date, time and place, assembled armed with deadly weapons in order to commit 9 S.C.1183/2016 dacoity, and thereby committed the offence punishable under Sec.402 of IPC?
3. Whether the claim petition moved by the claimant Smt.Selvi W/o Nagendra under Sec.451 and 457 Cr.P.C. deserves to be allowed?
4. What order?
11. My findings on the above points are as follows:
Point No.1 & 2 : In the Negative;
Point No.3 : In the Affirmative;
Point No.4 : As per final order
For the following;
REASONS
12. POINT No.1 AND 2: The above points are
connected, hence they are taken up together for discussion together.
13. It is the case of the prosecution that the accused have committed the offences punishable under Sec.399, 402 of I.P.C. and in order to prove the guilt of the accused the prosecution in all examined 5 witnesses and they are;10 S.C.1183/2016
PW.1-Srinivasamurthy son of Lakshminarasimhaiah- Head Constable, PW.2-K.Venkateshappa son of Late.K.Kembaiah-Police Sub-Inspector, PW.3-Narayana son of Thimmaiah-complainant, PW.4-Shivakumar son of Masalamani- Pancha on spot cum Seizure Mahazar, PW.5- Subhash son of Pachappa-Pancha on spot cum Seizure Mahazar.
14. The prosecution in order to prove guilt of the accused in all got marked 9 documents and they are;
Ex.P1-Complaint, Ex.P2-FIR, Ex.P3-Spot cum Seizure Mahazar, Ex.P4-P.F.109/2016, Ex.P5-Report given by H.C. to CW.9, Ex.P6-Photo of Bike bearing No.KA-02-3508, Ex.P7- Photo of the Bike, Ex.P8-Portion of statement of PW.4, Ex.P9- Portion of statement of PW.5.
15. The prosecution in order to prove guilt of the accused in all got marked 5 Material Objects and they are;
MO.1 to 3- Three Clubs, MO.4-Iron Rod, MO.5-Chilly powder pocket.
16. Prosecution in order to prove the guilt of the accused beyond reasonable doubt examined PW.1 and PW.1 in 11 S.C.1183/2016 his evidence stated that during 2016, he was working as Head Constable at Cottonpet Police Station. On 01-07-2016 at 3.00 a.m. he, CW.4, 6 to 8 and CW.1 were on patrolling duty and when they were on patrolling duty, CW.1 has received credible information stating that within the limits of their Police Station near Balekai Mandi, 4-5 persons assembled armed with deadly weapons and making preparation to commit dacoity of the commuters. Thereafter, he and other officials and CW.1 came near the spot, there CW.1 given information to them thereafter they came near the spot and stopped some distance away from the spot and observed the spot, on the spot 4-5 persons assembled armed with deadly weapons and talking among themselves. CW.1 has confirmed the information as correct, thereafter they have conducted raid and catch-hold 4 persons, one person ran away, he has catch-hold one person and he told his name as Manjunatha, he was possessing one Club. CW.1 and 4 have catch-hold one person and he told his name as Ramesh Kutti, he was possessing one Knife. CW.6 has catch-hold one person and he told his name as Aravinda, he was possessing one Club. CW.7 has catch-hold one person, he 12 S.C.1183/2016 told his name as Shivakumar, he was possessing chilly powder pocket. The said persons told the name of the person ran away as Chand. Thereafter, CW.1 has drawn the Mahazar and seized the deadly weapons and two wheeler vehicles which were parked on the spot, thereafter they have brought the said persons and properties seized from them to the Police Station. CW.1 has prepared the Report and submitted before CW.3, CW.1 has produced the said persons and properties seized before CW.9 and identified the deadly weapons and MO.1 to 5. This witness has been cross-examined by the counsel for the accused and in the cross-examination it is the case of accused that they have not committed any offences as alleged against them, they have been brought from their respective houses and got implicated in this case.
17. Prosecution has examined PW.3 and PW.3 in his evidence stated that in the year 2016 he was working as Police Sub-Inspector at Cottonpet Police Station. On 30-06-2016 he along with his officials i.e., CW.4 to 8 were patrolling within the limits of his Police Station and on 01-07-2016 at 3 a.m. when they were patrolling at goods shed road, he received a credible 13 S.C.1183/2016 information stating that within the limits of his Police Station at Balekai Mandi compound, 4-5 persons assembled armed with deadly weapons and making preparation to commit dacoity. Thereafter, he informed the information received by him to his officials and he and his officials came near Anjanappa Garden, there he called CW.2 and 3-Panchas and given information to them, thereafter he, his officials and Panchas came near the spot and observed the spot, on the spot 5 persons assembled armed with deadly weapons by parking two 2 wheeler vehicles and talking among themselves and he confirmed the information as correct thereafter they have conducted raid and catch-hold the 4 persons, one person ran away. He has catch- hold one person and he told his name as Ramesh, he was possessing one Knife. Accused No.2 told his name as Manjunatha and he was possessing Club, another person told his name as Aravinda, he was possessing Club and the fourth person told his name as Shivakumar and he was possessing chilly powder pocket. Further this witness has stated that the said persons told that the they have assembled there for committing dacoity of the commuters, they told the names of 14 S.C.1183/2016 the persons ran away as Chand. Thereafter, he has drawn Mahazar in presence of Panchas from 4.10 to 5.10 a.m. and there they have seized the deadly weapons, two 2 wheeler vehicles, thereafter they have brought the accused persons and properties seized to the Police Station, he has prepared Report and submitted the Report before CW.9 and produced the said persons and properties seized before CW.9 and identified the properties seized as MO.1 to 5 and identified the motorcycle seized in Ex.P3-Photo. The counsel for the accused has suggested to this witness that the accused persons have been brought from their respective houses and got implicated in this case and this witness has denied the same.
18. Prosecution has examined PW.4 and PW.5 and they are the Panchas who alleged to have been accompanied the complainant for raid and they in their evidence stated that Police have not called them for conducting raid, Police have not conducted any raid in their presence, Police have not seized any articles in their presence. Prosecution treated this witness hostile, cross-examined him and nothing has been made out in 15 S.C.1183/2016 his cross-examination so as to help the prosecution to prove the conducting of raid and seizure of MO.1 to 5-articles.
19. Prosecution has examined PW.2 and PW.2 in his evidence stated that in the 2016 he was working as Police Sub-Inspector at Cottonpet Police Station. On 01-07-2016 at 5.45 a.m., when he was in the Police Station, CW.1 came to Police Station along with 4 accused persons and properties seized from them and produced before him and also submitted Report. On the basis of the Report he has registered case in Crime No.204/2016 and submitted FIR to the Court, he has subjected the properties produced by CW.1 before him under P.F.109/2016, he has arrested the accused No.1 to 4 and recorded their voluntary statements. He has recorded the statements of CW.2 to 8. On 05-07-2014 he has directed the CW.5 to catch-hold accused No.5 and produced before him and on the same day at 9.30 a.m., CW.5 has catch-hold accused No.5 and produced before him, he has arrested him and recorded his voluntary statement, thereafter as the investigation is completed he has filed the charge-sheet. 16 S.C.1183/2016
20. It is the specific case of the accused during the cross-examination of prosecution witnesses that they have not committed any offences as alleged against them, they have been brought from their respective houses for enquiry in other cases, when they have stated that they are not knowing anything they have been falsely implicated in this case. In the present case, prosecution has examined both the Panchas who alleged to have been accompanied the complainant for raid as PW.4 and 5, they have turned hostile. Complainant and CW.5 are examined in this case as PW.3 and PW.1, they have stated in their evidence as per the complaint lodged by the complainant. In the present case, accused have specifically disputed that they have been catch-hold on the spot and contended that they have been brought from their respective houses and falsely implicated in this case. So only the evidence of PW.1 and 3 will not prove the guilt of the accused beyond reasonable doubt. The learned counsel for the accused has relied upon the citation reported in AIR 1979 Supreme Court 1412 in Chaturi Yadav and others Vs. State of Bihar, wherein it has been held as follows;
17 S.C.1183/2016
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality. Decision of Patna High Court, Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises which was quite close to the market at 1 a.m. and that some of them were armed with guns, some had cartridges and others ran away - Held that the conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m. did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated. Decision of Patna High Court, Reversed."
21. From the principles laid down in the aforesaid rulings of our own Hon'ble Apex Court, it is clear that only on assembling the persons with deadly weapons itself will not prove that they have committed offence under Sec.399, 402 of IPC. The evidence of PW.1 to 5, Ex.P1 to 9 and MO.1 to 5 will not prove the guilt of the accused beyond reasonable doubt. Looking from any angle, prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. As per the 18 S.C.1183/2016 well settled principle of Criminal Law, benefit of doubt goes to the accused and in the present case giving benefit of doubt to the accused, I hold that prosecution has utterly failed to prove the guilt of the accused beyond reasonable doubt. Hence, for the above discussion, I answer point No.1 and 2 in the NEGATIVE.
22. POINT No.3: The claimant Smt.Selvi W/o Nagendra has moved application under Sec.451 and 457 Cr.P.C. for releasing the Bajaj Pulsar 220 bearing Reg.No.KA- 02-HK-3508 seized and subjected in this case in P.F.109/2017. It is the case of the claimant that she is the R.C.Holder of the said vehicle and claimant has also produced the true copies of R.C.Books and her I.D. Proof. The R.C.Book discloses that claimant Smt.Selvi W/o Nagendra is the R.C.Holder of Bajaj Pulsar 220 bearing Reg. No.KA-02-HK- 3508 which is seized and subjected under P.F.109/2017. The vehicle is not required for investigation as the investigation is completed and charge-sheet is filed, so claimant is entitled for custody of the vehicle as prayed. So the application moved by the claimant under Sec.451 and 457 Cr.P.C. deserves to be 19 S.C.1183/2016 allowed subject to conditions. Hence, I answered point No.3 in the AFFIRMATIVE.
23. POINT NO.4: In view of my findings point No.1 to 3 and reasons stated therein, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C.
accused No.1-Ramesh Kutti @ Jogi,
accused No.2-Manjunatha @ Romeo,
accused No.3-Aravinda, accused No.4-
Shivakumara and accused No.5-Ananda @ Delhi @ Chand are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused stands cancelled forthwith.
MO.1 to 3 and 5 are worthless, hence ordered to be destroyed after the appeal period is over.
MO.4 is confiscated to the state after the appeal period is over.
The claimant petition moved by the
claimant Smt.Selvi W/o Nagendra,
resident of Ambedkar Nagar,
Pantharapalya, Mysore Road, Bengaluru, under Sec.451 and 457 Cr.P.C. is allowed.20 S.C.1183/2016
The Bajaj Pulsar 220 bearing Reg.No.KA-
02-HK-3508 subjected under P.F.109/2017 is ordered to be released in favour of the claimant on the following condition:
a) The claimant has to produce the vehicle as and when directed by the court and Investigating Officer.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 3rd day of February 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Srinivasamurthy CW.5 07-01-2017 PW.2 K.Venkateshappa CW.9 07-01-2017 PW.3 Narayana CW.1 13-01-2017 PW.4 Shivakumar CW.2 13-01-2017 PW.5 Subhash CW.13 13-01-2017 Documents marked for the prosecution:
Ex.P1 Complaint CW.9 07-01-2017
21 S.C.1183/2016
Ex.P2 FIR CW.9 07-01-2017
Ex.P2(a) Signature of PW.2 CW.9 07-01-2017
Ex.P3 Mahazar CW.9 07-01-2017
Ex.P4 P.F.109/2016 CW.9 07-01-2017
Ex.P4(a) Signature of PW.2 CW.9 07-01-2017
Ex.P5 H.C.Report CW.9 07-01-2017
Ex.P6, 7 Photos CW.1 13-01-2017
Ex.P8 Statement of PW.4 CW.2 13-01-2017
Ex.P9 Statement of PW.5 CW.3 13-01-2017
Material objects marked for the prosecution:
MO.1 to 3 Wooden Clubs MO.4 One iron Knife MO.5 Chilly powder pocket
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.22 S.C.1183/2016
A5 produced from V.C. A1 and 2 present. A3 and 4 absent. Counsel for A3 and A4 filed application u/s 353 (6) Cr.P.C. Application allowed.
Judgment pronounced in the open court
(vide separate judgment)
ORDER
Acting under Sec.235(1) Cr.P.C.
accused No.1-Ramesh Kutti @ Jogi,
accused No.2-Manjunatha @ Romeo,
accused No.3-Aravinda, accused No.4-
Shivakumara and accused No.5-Ananda @ Delhi @ Chand are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused stands cancelled forthwith.
MO.1 to 3 and 5 are worthless, hence ordered to be destroyed after the appeal period is over.
MO.4 is confiscated to the state after the appeal period is over.
The claimant petition moved by the
claimant Smt.Selvi W/o Nagendra,
resident of Ambedkar Nagar,
Pantharapalya, Mysore Road, Bengaluru, 23 S.C.1183/2016 under Sec.451 and 457 Cr.P.C. is allowed. The Bajaj Pulsar 220 bearing Reg.No.KA-
02-HK-3508 subjected under P.F.109/2017 is ordered to be released in favour of the claimant on the following condition:
a) The claimant has to produce the vehicle as and when directed by the court and Investigating Officer.
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.