Bangalore District Court
State By Rajajinagar Police Station vs No.1 As Per Ex.P.3 on 5 August, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 5th day of August 2015
Present : Sri. J.V.Vijayananda, B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C..
1.CC No 19161/2011
2.Date of Offence 18-11-2010
3.Complainant State by Rajajinagar Police Station
4.Accused 1. Santhosh @ Santhosh, s/o.
Ravana Sidhaiah, aged 23 years,
No.26/7, 9th Cross, 2ndMain,
Chennigappa Layout,
Vrushabhavathi Nagar,
Kamakshipalya, Bangalore.
2. Sunil Kumar @ Sunil @ Marati
S/o. Yogesh, aged 21 years,
No.44, 1st Main, Marenahalli,
Vijaya Nagar, Bangalore.
(Split up and registered in
C.C 9620/2012)
5. Offences complained U/s.392 of IPC
of
6.Plea Accused No.1 pleaded not guilty.
7.Final Order Accused No.1 convicted
2 C.C.No.19161/2011
8.Date of Order 5-8-2015
REASONS
The Sub Inspector of Police, Rajajinagar Police Station,
Bangalore has filed this charge sheet against accused Nos.1
and 2 for the offence punishable under section 392 of IPC. It
appears, during the course of trial, accused No.2 by name
Sunil Kumar remained absent before the court and as such
vide order dated 15-11-2011 this case against accused No.2
was split up and registered separate case in C.C.9620/2012
which is pending before this court for consideration.
2. The brief facts of the prosecution case are that, on
18-11-2010 at 8-30 p.m., at 56th cross, 3rd block, Rajajinagar,
within the limits of Rajajinagar police station when C.W.1 Smt
Uma Nagabushan was passing on the road to purchase the
vegetables, this accused No.1 and another came in fearo
motorbike and robbed gold neck chain weighing 53grams from
her neck and thereby committed aforesaid offence.
3. The accused No.1 is in judicial custody. On receipt of
charge sheet, this court took cognizance of the offence and
furnished the copies of the prosecution papers to the accused
No.1. After hearing on charges, my learned predecessor in
3 C.C.No.19161/2011
office has framed the charge for the offence punishable U/s
392 of IPC and questioned the accused No.1 regarding the
charge made against him, he denied the charge and claimed to
be tried.
4. The prosecution in order to prove its case got
examined six witnesses as P.Ws.1 to 6 and got marked nine
documents as per Exs.P1 to P.9. C.Ws.3 to 6 and 8 did not
turn up before this court, hence in the interest of speedy
justice to the accused No.1, by rejecting the prayer of learned
Sr.APP., this court dropped the examination of said witnesses.
5. Thereafter, this court examined the accused No.1 as
required U/s 313 of Cr.P.C., the accused No.1 denied the
incriminating evidence appeared against him and submitted
that he has no defence evidence.
6. I have heard the arguments on both sides.
7. The prosecution to prove the guilt against accused
No.1 has examined six witnesses. P.W.1 Uma Nagabhushan is
the complainant cum owner of recovered articles and victim to
the alleged incident. P.W.2 S. Dilkush is the receiver of
recovered article and seizure mahazar witness. P.W.3
Venkatesh.K is the head constable who arrested this accused
4 C.C.No.19161/2011
as per direction of P.W.6. P.W.4 Rajshekar is the Investigating
Officer who conducted partial investigation. P.W.5
K.Narayanagowda and P.W.6 N.H. Ramachandraiah are other
Investigating Officers. As stated above, in spite of giving
sufficient opportunities the prosecution has not examined
independent spot and seizure mahazar witnesses.
8. I have carefully perused the evidence on record. The
testimony of P.W.1 Uma Nagabushan indicating that on
18-11-2010 at 8-30 p.m., she had been to shop to bring
vegetables. Since, the link of her gold neck chain removed,
she kept the same in her purse and went to purchase the
vegetables. When she returned to the home she found missing
of her purse along with chain. Accordingly, she lodged the
complaint to the police as per Ex.P.1. After lodging of the
complaint, the police visited the spot and verified.
9. The testimony of P.W.1 further indicating that on
11-11-2010 the Kamakshipalya police informed her regarding
tracing of her gold neck chain and accordingly, she visited the
said police station, identified the same and stated before said
police that when she had been to shop to bring vegetables,
somebody robbed her identified chain. Her testimony further
indicating that at that time, the said police showed her two
persons in the police station and informed that the said two
5 C.C.No.19161/2011
persons had stolen her gold neck chain. However, she further
stated that now she cannot identify said two persons before
the court and even she cannot identify the accused No.1
produced through videoconference. Since, P.W.1 has not
supported the case of the prosecution in the matter of
identification of accused No.1, the learned Sr.APP., treated this
witness as hostile and further cross examined her. In the
cross examination of learned Sr.APP, P.W.1 has denied the
suggestion that after lodging of the complaint, the police
visited the spot and prepared the mahazar as per Ex.P.2. She
further denied the suggestion that she identified the accused
No.1 in the police station. She further denied the suggestion
about her further statement regarding identification of
accused No.1 as per Ex.P.3.
10. It is pertinent to note here that P.W.1 in her chief
evidence has stated that since the link of her gold neck chain
removed, she kept the same in her hand purse and went to
purchase the vegetables. When she returned to her house, she
found missing of her hand purse along with gold neck chain.
However, in the further chief evidence she stated that after
receipt of information of tracing of her gold neck chain from
Kamakshipalya police station, she visited the said police
station, identified her robbed chain and stated before police
that when she had been to bring vegetables, some body on the
6 C.C.No.19161/2011
way to the vegetable shop robbed her neck chain. It appears
her further statement before investigating officer corroborates
the said testimony of robbery of gold neck chain. It is
pertinent to note here that the testimony of P.W.1 not tested
by way of cross-examination. It appears, from the averments
in the complaint at Ex.P.1 coupled with chief evidence of
P.W.1, no doubt it is goes to show that when the complainant
went to purchase vegetables by holding her hand purse along
with chain, some body has stolen the same. However, her
further say indicating that when she was on the way to
vegetable shop somebody has robbed her gold neck chain.
Therefore, there are two versions about nature of loss of gold
neck chain by P.W.1. However, P.W.1 has given explanation
about her second say that due to fear of her husband, she
falsely stated that her chain missed at the time of purchasing
the vegetables. The said explanation of P.W.1 not tested in the
cross-examination. Since the second version of P.W.1 not
tested by way of cross-examination and it is supports with
explanation, I have no reason to disbelieve the same.
Therefore, I am of the considered opinion that when P.W.1 on
the way to the vegetable shop somebody robbed her gold neck
chain.
11. The testimony of P.W.4 Rajshekar the investigating
officer indicating that on 18-11-2010 at 9-15 p.m., when he
7 C.C.No.19161/2011
was on station house officer duty, received the complaint from
P.W.1 and registered the case. On the next day, he visited the
spot and prepared the mahazar between 3-00 to 4-00 p.m., in
a place showed by the complainant. Even the above said
testimony of P.W.4 not tested by way of cross-examination.
12. Therefore, from the testimony of P.W.1 and 4 it is
very much clear that on 18-11-2010 at 8-30 p.m., when P.W.1
was on the way to shop to purchase vegetables, somebody
robbed her gold neck chain and accordingly she lodged the
complaint to P.W.4 the police sub inspector of Rajajinagar
police station. Intern P.W.4 has received the complaint,
registered the case, and on the next day he visited the spot
and prepared the mahazar in the presence of mahazar
witnesses. It appears, in spite of giving sufficient
opportunities the prosecution has not examined the
independent spot mahazar witnesses. In my opinion, I have no
reason to disbelieve the testimony of P.Ws.1 and 4 in the
matter of preparing of spot mahazar even though the
prosecution not examined independent spot mahazar
witnesses.
13. In a case like this, the prosecution has to prove the
offence by way of circumstantial evidence i.e., by way of
proving the seizure mahazar beyond all reasonable doubt. In
8 C.C.No.19161/2011
the instant case, the prosecution to prove seizure mahazar has
examined the receiver of stolen ornament cum the seizure
mahazar witness as P.W.2 and the Investigating Officer who
conducted seizer. It appears, in spite of giving sufficient
opportunities the prosecution has not examined the
independent seizure mahazar witnesses.
14. Now let us consider whether the prosecution has
established the seizure mahazar of M.O-1 beyond all
reasonable doubt. As discussed above, the testimony of P.W.6
the investigation officer who recovered M.O-1 indicating that
he enquired the accused persons regarding commission of the
offence and they confessed about the same and have given
information that they sold the stolen ornament in
Dhanalakshmi Bankers of Rajajinagar west of cord road.
Accordingly, as per the voluntary statement of accused
persons, he visited said Dhanalakshmi Bankers along with
accused persons and seized the robbed gold chain of P.W.1
pertaining to this case by preparing seizure mahazar. It is to
be noted here that, the testimony of P.W.6 not tested by way of
cross-examination.
15. P.W.2 S.Dilkush the receiver of robbed M.O-1
corroborated the testimony of P.W.6. The testimony P.W.2
indicating that he is the owner of jewel shop situated at 1st
9 C.C.No.19161/2011
block, west of cord road, Rajajinagar. The police along with
two persons by name Sunil and Santhosh visited his shop.
Out of said two persons, one Sunil the accused No.2 herein
has pledged golden ornament in his shop. He came to know
that the said ornament pledged by said Sunil is theft article.
Accordingly, he handed over it to the police intern it was
seized by the police by preparing the seizure mahazar. Ex.P.6
is the carbon copy of receipt for having pledged golden
ornament in the name of Sunil the accused No.2 herein.
P.W.2 has identified the said receipt as belonged to his shop.
Even the said testimony of P.W.2 not tested by way of cross-
examination.
16. Therefore, from the testimony of P.Ws.2 to 6 it is very
much clear that the Investigating Officer P.W.1 herein during
the course of investigation has enquired the present accused
and another regarding commission of the offence. At that
time, they confessed before him that they committed robbery
of gold neck chain of P.W.1 and pledged the same with
P.Shantilal Jain the pawnbroker i.e., P.W.2 herein.
Accordingly, as per the information given by present accused
No.1 and another, P.W.6 the investigation officer visited the
said shop and recovered M.O.1 the gold chain from P.W.2.
Even P.W.2 the receiver corroborated the say of P.W.6 the
investigation officer and stated that when the police visited his
10 C.C.No.19161/2011
shop along with accused Nos.1 and 2, he handed over M.O-1.
Therefore, the prosecution has successfully proved the seizure
mahazar of M.O-1 beyond all reasonable doubt.
17. P.W.3 Venkatesh.K Head Constable has deposed in
respect of arrest of accused No.1 as per the direction of P.W.6
the investigation officer. Even the testimony of P.W.3 also not
tested by way of cross-examination.
18. It appears P.W.6 the Investigating Officer during the
course of investigation has recorded the voluntary statement
of this accused No.1 and another. In view of section 25 and
26 of Evidence Act, confession statement of accused recorded
during the course of custody of police is not to be proved
against to him. However, as per section 27 of Evidence Act,
when any fact is deposed to as discovered in consequence of
information received from a person accused of any offence, in
the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly
to this fact thereby discovered, may be proved. Accordingly, in
view of section 27 of Evidence Act, the confession of accused
No.1 that leads to recovery can be proved against him.
11 C.C.No.19161/2011
19. As per Exs.P.7 and Ex.P.8 the portion of voluntary
statement, accused Nos.1 and 2 have stated before P.W.6 the
Investigating Officer as "£ÀªÀÄä eÉÆvÉ §AzÀgÉ QvÀÄÛPÉÆArgÀĪÀ a£ÀßzÀ MqÀªÉUÀ¼À£ÀÄß Vj«
EnÖgÀĪÀ eÁUÀªÀ£ÀÄß vÉÆÃj¸ÀÄvÉÛêÉ". As per said confession statement of
accused No.1, P.W.6 the Investigating Officer has recovered
M.O-1. Therefore, recovery of M.O-1 is based upon information
given accused No.1 and another. In my opinion, Exs.P.7 and
Ex.P.8 the portion of confession statement of accused Nos.1
and 2 is admissible in evidence because it leads to recovery of
M.O-1. It appears, accused No.1 to rebut the said confession
statement has not placed any evidence before the court.
20. The testimony of P.W.4 further indicating that after
receipt of case papers from P.W.6 the police inspector of
Kalasipalya Police Station and after completion of
investigation, he filed charge sheet against accused. In my
opinion, the above said testimony of P.W.4 is only formal one
and need not required detailed consideration.
21. Upon careful scrutiny of the evidence on record, it is
very much clear that the accused Nos.1 and 2 together robbed
M.O-1 from P.W.1. Immediately, P.W.1 lodged the complaint to
P.W.4. Intern, P.W.4 who received the complaint, registered
the case, visited the spot and prepared the mahazar. In the
mean time, P.W.6 the police inspector of Kamakshipalya police
12 C.C.No.19161/2011
arrested this accused No.1 and another in connection with the
case of his police station and enquired. During the course of
enquiry, this accused No.1 along with accused No.2 confessed
in respect of robber of M.O-1 from P.W. 1. At that time since
accused No.2 was in judicial custody, in some other case, he
took him to his custody as per the court order and enquired.
Since accused Nos.1 and 2 have confessed regarding
commission of the offence and disclosed information about
M.O-1, P.W. 6 has recovered the same from P.W.2 the receiver
of the same. In my opinion, there is clear link of each
circumstance, which leads to conclude that the prosecution
has successfully proved the guilt against accused No.1 beyond
all reasonable doubt. Moreover, no rebuttal evidence placed
by accused No.1 to disbelieve the case of the prosecution.
Therefore, having regard to the facts and circumstances of the
case and the evidence available on record, I am of the
considered opinion that the prosecution has successfully
proved the guilt against accused No.1 for the offence under
section 392 of IPC beyond all reasonable doubt. Accordingly,
this court found guilt of accused No.1 for the offence under
section 392 of IPC. In the result, I proceed to pass the
following;
ORDER
This court found guilt of accused No.1 for the offence under section 392 of IPC.
13 C.C.No.19161/2011Hence, call on to here regarding sentence.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 5th day of August 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
Order on sentence I have heard the accused No.1 and his standing counsel. The accused No.1 has submitted that he is in judicial custody from for more than two years. Therefore, the period is which he is in judicial custody, may be treated as imprisonment period and he may be set at liberty. In support of his submission, his learned counsel has submitted that the accused No.1 has realized his mistake. He will not commit similar type of offence in future. Therefore, a chance be given to him to rectify his mistake and the period in which he is in judicial custody may be treated as imprisonment period, and he may be set at liberty.
On the other hand, the learned Sr.APP., has submitted that the accused No.1 is the habitual offender. Earlier in two cases, this accused convicted by concerned court. If the period in which he is in judicial custody treated as imprisonment period and released, certainly he will repeat in 14 C.C.No.19161/2011 similar type of offence. Therefore, maximum punishment may be awarded against the accused.
I have heard and perused the entire file. The order sheet indicating that, on 6-7-2011 this accused No.1 produced before the court under body warrant. Until 13-9-2011, he was in judicial custody and thereafter he was released on bail. Subsequently, he remained absent before the court. Since he has involved in some other case, again, body warrant issued and accordingly on 11-2-2013 he was produced before this court under body warrant. Until this date, he is judicial custody and in all he is in judicial custody for two years four months. In my opinion, the accused No.1 is entitle to set off the period in which he is already in judicial custody.
I have carefully perused the entire papers. The prosecution papers indicating that earlier upon the similar case registered by Kamakshipalya Police Station, the concerned court convicted this accused and sentenced to suffer one and half year. Thereafter, he completed the said sentence and again involved in Sanjaynagar and Mahalakshmi layout Police Station cases. In Sanjaynagar Police Station case he was convicted and sentenced to suffer six months imprisonment. Therefore, no doubt it is true that this accused No.1 is the convicted prisoner. The worth of the property 15 C.C.No.19161/2011 recovered from this accused is about one-lakh fifty thousand rupees. This accused No.1 is the habitual offender. Therefore, in order to prevent him from repeating the similar type of offence, it is just and necessary to pass suitable sentence. In the result, I proceed to pass the following:
ORDER Acting under section 248(2) of Cr.P.C accused No.1 has been convicted for the offence under section 392 of IPC and consequently, he shall suffer rigorous imprisonment for two years, six months and fine of Rs.1,000/-. In default of fine, he shall sentence to suffer simple imprisonment for one month.
As stated above, the accused No.1 is in judicial custody for two years four months and as such, he is entitle to set off the said period. Accordingly, the accused has already suffered sentence period of two years four months. Therefore, he has to suffer remaining period of rigorous imprisonment of one month and to pay fine of Rs.1,000/-. In default of fine, he shall undergo simple imprisonment for one month.
Office to issue, conviction warrant to jail authority. (Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 5th day of August 2015) (J.V.Vijayananda) IX Addl., Chief Metropolitan Magistrate, Bangalore.16 C.C.No.19161/2011
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Umanagabhushan P.W.2, S. Dilkush P.W.3, Venkatesh.K P.W.4, Rajashekar P.W.5, K.Narayanagowda P.W.6, N.H.Ramachandraiah
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 Complaint Ex.P.1(a) Signature of P.W.1 Ex.P.2 Mahazar Ex.P.2(a) Signature of P.W.1 Ex.P.2(b) Signature of P.W.1 Ex.P.3 Statement Ex.P.4 Mahazar Ex.P.6 Bill copy Ex.P.7 Report Ex.P.8 FIR Ex.P.8 (a) Signature Ex.P.9 Statement of accused
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 gold chain, LIST OF WITNESSES EXAMINED, DOCUMENTS &
MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.17 C.C.No.19161/2011
Judgement pronounced in the open court vide separate sheet.
ORDER This court found guilt of accused No.1 for the offence under section 392 of IPC.
Hence, call on to here regarding sentence.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 5th day of August 2015) (J.V.Vijayananda) IX Addl.Chief Metropolitan Magistrate, Bangalore.
Order on sentence I have heard the accused No.1 and his standing counsel. The accused No.1 has submitted that he is in judicial custody from for more than two years. Therefore, the period is which he is in judicial custody, may be treated as imprisonment period and he may be set at liberty. In support of his submission, his learned counsel has submitted that the accused No.1 has realized his mistake. He will not commit similar type of offence in future. Therefore, a chance be given to him to rectify his mistake and the period in which he is in judicial custody may be treated as imprisonment period, and he may be set at liberty.
On the other hand, the learned Sr.APP., has submitted that the accused No.1 is the habitual offender. Earlier in two cases, this accused convicted by concerned court. If the period in which he is in judicial custody treated as imprisonment period and released, certainly he will repeat in similar type of offence. Therefore, maximum punishment may be awarded against the accused.
18 C.C.No.19161/2011I have heard and perused the entire file. The order sheet indicating that, on 6-7-2011 this accused No.1 produced before the court under body warrant. Until 13-9-2011, he was in judicial custody and thereafter he was released on bail. Subsequently, he remained absent before the court. Since he has involved in some other case, again, body warrant issued and accordingly on 11-2-2013 he was produced before this court under body warrant. Until this date, he is judicial custody and in all he is in judicial custody for two years four months. In my opinion, the accused No.1 is entitle to set off the period in which he is already in judicial custody.
I have carefully perused the entire papers. The prosecution papers indicating that earlier upon the similar case registered by Kamakshipalya Police Station, the concerned court convicted this accused and sentenced to suffer one and half year. Thereafter, he completed the said sentence and again involved in Sanjaynagar and Mahalakshmi layout Police Station cases. In Sanjaynagar Police Station case he was convicted and sentenced to suffer six months imprisonment. Therefore, no doubt it is true that this accused No.1 is the convicted prisoner. The worth of the property recovered from this accused is about one-lakh fifty thousand rupees. This accused No.1 is the habitual offender. Therefore, in order to prevent him from repeating the similar type of offence, it is just and necessary to pass suitable sentence. In the result, I proceed to pass the following:
ORDER Acting under section 248(2) of Cr.P.C accused No.1 has been convicted for the offence under section 392 of IPC and consequently, he shall suffer rigorous imprisonment for two years, six months and fine of 19 C.C.No.19161/2011 Rs.1,000/-. In default of fine, he shall sentence to suffer simple imprisonment for one month.
As stated above, the accused No.1 is in judicial custody for two years four months and as such, he is entitle to set off the said period. Accordingly, the accused has already suffered sentence period of two years four months. Therefore, he has to suffer remaining period of rigorous imprisonment of one month and to pay fine of Rs.1,000/-. In default of fine, he shall undergo simple imprisonment for one month.
Office to issue, conviction warrant to jail authority.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 5th day of August 2015) (J.V.Vijayananda) IX Addl., Chief Metropolitan Magistrate, Bangalore.