Bangalore District Court
Krishna vs Rajesh on 20 November, 2024
KABC030437282018
Presented on : 14-06-2018
Registered on : 14-06-2018
Decided on : 20-11-2024
Duration : 6 years, 5 months, 6 days
IN THE COURT OF THE 30TH ADDL.CHIEF
JUDICIAL MAGISTRATE, BENGALURU
Dated: This the 20th day of November-2024
:Present: Sri.Thimmaiah.G B.A. LLB.
30th ACJM, Bengaluru.
C.C.No.16118/2018
Judgment U/s.355 of Cr.P.C.
Date of Offence 04.04.2018
Complainant State by Konanakunte Police
Station,
R/by. Learned Senior APP
V/s.
Accused Rajesh
S/o. Ramaswamy,
Aged about 33 years,
R/at. C/o. Chandrappa house,
Near Maramma Temple,
Arehalli Bus stop and village,
Anekal Road, Attibele,
Anekal Taluk, Bengaluru
Rural District.
Judgment 2 C.C.No.16118/2018
Permanent Add: No.3,
Jogi Colony, Madivala.
Offences U/s. 380, 457, 511 of IPC.
Plea Recorded on03.03.2021 and
accused Pleaded not guilty.
Examination U/sec., On 28.10.2024
313 of Cr.P.C recorded
on:
Final Oder Accused is Acquitted.
Date of Order 20.11.2024
Thimmaiah.G
30 ACJM, Bengaluru.
th
JUDGMENT
The PSI of Konanakunte Police Station has filed charge sheet against accused for the offences punishable U/s. 380, 457, 511 of IPC.
2. The brief facts of the prosecution case are as follows:-
It is alleged that, between 04.04.2018 at about 11.30 PM to 05.04.2018 within the jurisdiction of Konanakunte police station, House No.816, 7th Main, 1st Cross, Soudhamini Layout, New Bank Colony, Konanakunte, Bengaluru, the accused attempt has been made to commit an offence of steal jewelry by breaking the iron rod of the Cw.1 house when the accused was Judgment 3 C.C.No.16118/2018 trying cut the window rod with the excel blade, at that time the Cw.1, 3 and 4 caught hold the accused and handed over to the police and thereby the accused has committed the above said alleged offences which are punishable U/s. 380, 457, 511 of IPC.
3. After filing the charge sheet, cognizance taken for the offences punishable U/s. 380, 457, 511 of IPC against the accused. The accused was released on bail. Copy of the prosecution papers furnished to the accused as required U/Sec.207 of Cr.P.C. Heard before charge. Charge has been framed and read over to the in kannada language, wherein he has denied the same and claim to be tried.
4. In order to prove the guilt of the accused the prosecution has examined 05 witnesses as PW.1 to PW.5 and got marked Ex.P1 to Ex.P3. In the present case, in order to secure the Cw.5 to 8 this court issued summons, NBW and proclamation. In spite of that, the concerned police have failed to secure these witness. Hence, the Cw. 5 to 8 are dropped from the case.
5. Thereafter statement of the accused U/S.313 of Cr.P.C. is recorded, the accused has denied the incriminating evidence in the prosecution case and not chosen to lead his side evidence. No documents are got marked on his behalf.
Judgment 4 C.C.No.16118/2018
6. Heard both sides and perused the evidence available on record.
7. Upon hearing arguments advanced from both sides and on perusal of materials placed on record, following points arise for consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt between 04.04.2018 at about 11.30 PM to 05.04.2018 within the jurisdiction of Konanakunte police station, House No.816, 7 Main, 1 Cross, Soudhamini th st Layout, New Bank Colony, Konanakunte, Bengaluru, the accused with an intention to do the robbery in the Cw.1 house and tried to illegally trespassed the Cw.1 house and thereby committed an offence punishable U/sec., 457 of IPC?
2.Whether the prosecution proves beyond all reasonable doubt that, the accused in furtherance of common intention was trying to steal the gold and silver items in Cw.1 house and thereby committed an offence punishable U/sec., 380 of IPC?
3.Whether the prosecution proves beyond all reasonable doubt that, the accused attempt has been made to commit an offence of steal jewelry by breaking the iron rod of the Cw.1 house and thereby committed an offence punishable U/sec., 511 of IPC?
Judgment 5 C.C.No.16118/2018
4. What order.?
8. My findings to the above points are:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 : As per final order
for the following:
REASONS
9. POINTS NO.1 TO 3: These points are inter
connected to each other and have taken for discussion in common to avoid repetition of the facts and evidence. Further, I am of the opinion that, I need not repeat the entire case of the complaint here also, since I have already narrated the same at the inception of this judgment.
10. Pw.1 Sri. Krishna, who is the complaint in this case, he has deposed in his evidence before the court that, on 04.04.2018, he went to a wedding and when he came home at around 01.30 in the night, the lock of the door of his house was broken, he went inside and saw the accused was lying under the bed, with the help of Cw.3 and 4 all of them caught hold of the accused and handed over the said accused to the police, and the next day police have come and conducted the spot mahazar.
Judgment 6 C.C.No.16118/2018 Further, the learned counsel for the accused cross examined the said witness, where he stated that, when police asked him to come to the police then only he went to the police station, until police asked him to write the complaint he was not knowing anything about the said incident, he put his signature on Ex.P1 which was typed in the police station and further he do not know read and right kannada properly, the police showed him the Mo.1 to 3 to him and not shown the same to anyone else and the police have not taken his signature on chit to stick on the said Mo.1 to 3, when the incident took place he, his brother and his brother wife were in the marriage hall, the police showed him the accused in the police station and he did not seen the accused before this, further nothing was stolen from his brother house, he do not know apart from him who else put their signature on Ex.P1 and further denied the rest of the suggestions of the learned counsel for the accused.
Further, the Sr. APP has treated this witness as partly hostile to the prosecution case. Hence, his evidence is not helpful to the prosecution case to prove the guilt of the accused beyond all reasonable doubt with regard to Ex.P1.
11. The Pw.2. Venkatesh who is the mahazar witness to the case, he has deposed in his evidence before the court that, on 04.04.2018, he went to his daughter's wedding and when he came home at around 01.30 in the night, the lock of the Judgment 7 C.C.No.16118/2018 door of his house was broken, we all went inside and saw the accused lying under the bed and all of them caught hold of the accused and handed over to the police and the Cw.1 had given complaint to the police regarding the same.
Further the learned counsel for the accused cross examined the said witness, where in he stated that, his mother and brother has not told him any matter regarding the incident, when police asked him to come to station then only he went to the police station and he do not know what the police have written in the document, when he came first time to the court, the police showed him the accused until then he did not seen the accused, further their was window rod was broken but nothing was stolen at the house of Cw.1 and further denied the rest of the suggestions of the learned counsel for the accused.
Further, the Sr. APP has treated this witness as partly hostile to the prosecution case. Hence, his evidence is not helpful to the prosecution case to prove the guilt of the accused beyond all reasonable doubt with regard to Ex.P2.
12. The Pw.3 Manjunath who is the eye witness to the case, he has deposed in his evidence before the court that, on 04.04.2018, he went to the wedding of Cw.2 daughter, when he came home at around 01.30 in the night, the door of their house was broken, we all went inside and saw the accused lying under the bed all of them caught hold of the accused and Judgment 8 C.C.No.16118/2018 handed over to the police and the Cw.1 had given complaint to the police regarding the same.
Further the learned counsel for the accused cross examined the said witness, where in he stated that, the police had not taken any statement from him, further he was not present at the time of incident, he saw the accused for first time when he came to court. Further, this witness as turned hostile to the prosecution case. Hence, his evidence is also not helpful to the prosecution case to prove the guilt of the accused person beyond all reasonable doubt.
13. Pw.4 Sri.Basavaraju, who is the incident witness to the case, he deposed in his evidence before the court that, On 05.04.2018 there was a wedding reception for Cw-2's daughter. The day before that was my daughter's wedding. Between 04.04.2018 and 05.04.2018, between 1.30 am and 2.00 am, a person entered the house by breaking the window frame near the house of Cw-2. Hearing the noise, 7-8 people gathered there. Then the man ran away. Clothes were strewn inside the house of Cw-2. The man who ran away went under the car about 100 meters away. We chased him and caught him. We ourselves took him to the police station and identify the accused before the court.
Further the learned counsel for the accused cross examined the said witness, where in he stated that, when the police came on the night of the incident taken the Mo.1 to 3 Judgment 9 C.C.No.16118/2018 with them but not written the document and in the court he had saw the Mo.1 to 3 for first time and denied the rest of the suggestions put by the learned counsel for the accused.
14.The PW.5 Sri. C.V.Krishnegowda, who is the IO witness to the case, he has deposed in his evidence before the court that, on 05.04.2018 at around 1.30 pm when he was in charge of the police station and received the written complaint of Cw-1 who came to the police station, registered the case and submitted the FIR to the court. On the same day, he visited the place where the incident took place and between 2.30 pm to 3.30 pm, he conducted the mahazar in the said incident place shown by the Cw.1. Further, at the time of seizure mahazar he seized two Iron Rods and Exo Blade. Later on the same day he recorded the statements of Cw-2 to 8. After the accused was summoned by Cw-7 and 8 and brought before him, he took action against him and obtained his voluntary statement. Later, he produced the accused before the court. After completing the investigation, he filed a charge sheet against the accused and submitted before the court.
Further the learned counsel for the accused cross examined the said witness, where in he stated that, he did not give the notice to the panchas to participate in the seizure mahazar, in the Ex.P2 he has not mentioned the names of Cw.1, 7 and 8, he has seized the Mo.1 to 3 in the presence of panchas but not sealed in front of them, he did not take the Judgment 10 C.C.No.16118/2018 photos of the broken window at the incident place and further denied the rest of the suggestions put by the learned counsel for the accused.
15. In the present case, it is important to note that, the prosecution have not placed any believable and cogent evidence in order to prove the alleged commission of the offences (Ex.P1) by the accused person. Further, the Pw.2 and 3 who are the mahazar witnesses to the case, they are also not supported to the prosecution case to prove the guilt of the accused with regard to the spot and seizure mahazar. Further, the Pw.4 is the hearsay witness in this case. Accordingly, U/sec., 60 of Indian Evidence Act, his evidence can not considered as direct evidence. Therefore, the evidence of Pw.4 is not helpful to the prosecution case to prove the guilt of the accused since his evidence is hearsay witness. Further, the IO has not followed the procedure at the time of the investigation. As such, lacuna of the investigation. The prosecution has failed to prove the guilt of by the accused person behind all reasonable doubt.
16. Under such circumstances, it is difficult to believe the version PW.1 to 4 to in proving the guilt of the accused, without any corroborative and material evidence.
17. It is the paramount duty of the prosecution to establish the guilt of the accused beyond all reasonable doubt.
Judgment 11 C.C.No.16118/2018 Unless the guilt is established beyond all reasonable doubt, the accused can not be held guilty of the alleged offenses.
18. In the present case, in order to secure the Cw.5 to 8 this court issued summons, NBW and proclamation. In spite of that, the concerned police have failed to secure these witness. Hence, the Cw. 5 to 8 are dropped from the case. As such the accused has certainly would be entitled to benefit of the doubt. Regarding this relied on the following Judgment.
On this point held in, (2016) 10 SCC 519 - AIR 2016 SC 4581 in para 56, Hon'ble Apex held thus hereunder:
''56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of ''may be true''' but has to essentially elevate it to the grade of ''must be true''. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touchstone Judgment 12 C.C.No.16118/2018 of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.''
19. Thus, the above Hon'ble Apex Court decision has opt to the present case on hand and it is important to note that the material witness and eye/seizure mahazar witnesses have not proved the alleged commission of the offences by the accused with corroborative evidence. As such the accused has certainly would be entitled to benefit of the doubt at the initial stage itself, since corroborative evidence of the witnesses have not been proved by the prosecution case. Hence, the accused is entitled to the benefit of the reasonable doubt. By considering all these aspects the prosecution utterly failed to prove the guilt of the accused beyond all reasonable doubt.
Therefore, I answer to the Point No.1 to 3 in the Negative.
20. POINT NO.4: In view of the above findings on Point No.1 to 3, I proceed to pass the following.
: ORDER :
The Powers confirmed upon me U/s.248(1) of Cr.P.C. Accused is Acquitted of the alleged offences punishable U/sec., 380,457, 511 of IPC.
Judgment 13 C.C.No.16118/2018 The bail bond of Accused and surety extended for further 6 months in order to comply Sec.437A of Cr.P.C.
Thereafter, this bail bond automatically stands cancelled.
The MO.1 to 3 seized by the IO in PF.No.95/2018 are being worthless, is hereby ordered to be destroy after the appeal period over, in accordance with law.
(Dictated to the Stenographer directly on computer and after corrections made by me and then pronounced by me in the Open Court on this the 20th day of November-2024).
(Thimmaiah G) 30 ACJM, Bengaluru.
th ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Sri. Krishna
P.W.2 : Sri. Venkatesh
P.W.3 : Sri. Manjunath
P.W.4 : Sri. Basavaraju
P.W.5 : Sri. Krishnegowda
Judgment 14 C.C.No.16118/2018
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P1 : Complaint
Ex.P1(a) : Signature of Pw.1
Ex.P2 : Spot Mahazar
Ex.P3 : FIR
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE:
-NIL-
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION:
Mo.1 & 2 : Two Iron rod Mo.3 : One Axes Blade Digitally signed by THIMMAIAH THIMMAIAH G G Date: 2024.11.30 13:00:04 +0530 (Thimmaiah.G) 30th ACJM, Bengaluru. Judgment 15 C.C.No.16118/2018