Bangalore District Court
State By vs A.1: Yogeshkumar on 30 November, 2021
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY
(CCH-67)
DATED: This the 30 th day of November, 2021
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.565 of 2014 c/w SC.No.1092/2015
COMPLAINANT : State by:
Kengeri Police Station,
Bengaluru.
(By Public Prosecutor)
/Vs/
ACCUSED A.1: Yogeshkumar, B. @ Kencha.
in : S/o Babuchandar,
in SC.565/2014
Aged about 28 years,
R/at No.33, Kattriguppe,
Ittamadagu,
Behind Shankari Apartment,
Bengaluru.
(By Sri.SPN, Advocate.)
A.2 Srirangaiah @ Rangappa.
(Split up vide order dated
21.03.2016)
ACCUSED in
A.3 Purushotham,
SC.No.1092/2015
Aged about 33 years,
S/o Doddananjaiah,
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R/at Gaviyanapalya,
Kengeri Hobli,
Bengaluru South Taluk.
(By Sri.BR, Advocate.)
DATE OF:
Occurrence of offence : 31.07.2013
Commencement of trial : 11.06.2019
Closing of trial : 29.10.2021
Name of the complainant : Sri.G.S.Abhilash.
Offence alleged : Under Sections 341,
365 and 395 read with
Section 34 of IPC
Opinion of the Judge : Charges leveled
against accused are
not proved.
Sentence or order : Acquittal
COMMON JUDGMENT
The Kengeri police have filed the present charge
sheet against the accused in Crime No.565/2014 for the
offences punishable under Sections 341, 365 and 395
read with Section 34 of IPC.
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2. The brief facts of the prosecution case are that;
a) On 31.07.2013, at about 05:15 p.m., CW-1/
Sri.G.S.Abhilash was riding his two wheeler bearing
registration No.KA-41 X-3372 near under construction
building of KHB Quarters in two way road, Shirke bus
stand, Kengeri Upanagara within the jurisdiction of
Kengeri police station.
b) At that time, A-1 to 4 came in a Chevrolet car
belonging to A-4 from opposite direction, restrained CW-
1 and said that they are police and their officer is in car
and forcibly took him in the said car under the guise of
enquiry regarding a case.
c) They kidnapped him in the said car and took him
near the Sai Baba temple, Byrohalli and forcibly
snatched the gold chain weighing 10 grams from the
neck of CW-1 and left him near the RV College, Mysuru
road at about 9:00 p.m. Accordingly, the complaint was
filed.
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3. After investigation, the charge sheet was filed
against all the accused.
4. The jurisdictional Magistrate has taken the
cognizance against all the accused for the offences
alleged.
5. Since the offences are exclusively triable by the
Sessions Court and despite of sufficient opportunity by
issuing NBW against A-3 and A-4, the presence of A-3
and A-4 was not secured before the trial Court. Hence,
the case against A-3 and A-4 was split up as per order
dated 28.03.2014 and the case was committed against
A-1 and A-2 directing A-2 to appear before the Court of
Sessions and the concerned jail authority to produce
A-1 before the Sessions Court whenever directed.
6. On committal, the case against A-1 and A-2
was registered in SC.No.565/2014 and case was made
over to this Court for disposal in accordance with law.
7. In response to the service of summons by this
Court, A-1 was produced before the Court and was
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enlarged on bail. A-2 failed to appear before the Court
in spite of issuance of NBW and thus, case against A-2
was split up vide order dated 21.03.2016.
8. After filing split up charge sheet, A-3 was
secured and vide order dated 27.08.2015, case was
split up against A-4 and the trial Court has committed
the case against A-3 directing A-3 to appear before the
Court of Sessions whenever directed.
9. On committal, the case was registered against
A-3 in SC.No.1092/2015 and was allotted to this
Court for disposal in accordance with law.
10. After hearing both the sides, charges framed
and plea of A-1 and A-3 was recorded in the respective
cases for the offences punishable under Sections 341,
365 and 395 of IPC for which they pleaded not guilty
and claimed to be tried by this Court. Hence, posted
for common trial vide order dated 11.06.2019 passed
in SC.No.1092/2015.
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11. In the course of trial, the prosecution in all
got examined 8 witnesses i.e., CWs-1, 5, 6, 15, 14, 12,
16 and 17 respectively as PWs-1 to 8. Got exhibited 12
documents at Ex.P-1 to 12. No material objects were
marked.
12. The learned public prosecutor sought to
reissue process to CWs-2 to 4. Since sufficient process
had already been issued giving sufficient time and
every time, the process returned unserved as address
of the said witnesses not available, the prayer of the
prosecution was rejected.
13. The statement of A-1 and A-3 under Section
313 of Cr.P.C. was recorded, wherein they have denied
all the incriminating evidence against them and did
not lead any defence evidence.
14. Heard the learned PP for the prosecution and
the learned respective counsels for both the accused
on merits and perused the record.
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15. Out of above said facts and circumstances of
the case, the points that arose for the due
consideration of this Court in both the cases are;
1. Whether the prosecution
proves beyond all the reasonable
doubts that on 31.07.2013 at about
5:50 p.m., when CW-1/
Sri.G.S.Abhilash was riding his two
wheeler bearing registration No.KA-
41 X-3372 near KHB Quarters,
Double Road, Shirke Bus Stand,
Kengeri Satellite Town within the
limits of Kengeri police station, A-1
and A-3 along with A-2 and A-4
against whom the case is split up
with a common intention, came in
Chevrolet car belonging to A-4 from
opposite direction and restrained
CW-1 from moving further and
thereby committed the offence
punishable under Section 341 read
with Section 34 of IPC?
2. Whether the prosecution
further proves beyond all the
reasonable doubts that on the
above said date, time and place, all
the accused in continuation of their
common intention, forced CW-1 and
took him to their car under the
guise of enquiry of a case with an
officer who is in the car and
abducted CW-1 and thereby
committed the offence punishable
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under Section 362 read with
Section 34 of IPC?
3. Whether the prosecution
further proves beyond all the
reasonable doubts that on the
above said date, time and place, all
the accused in continuation of their
common intention, took CW-1 near
Byrohalli Saibaba temple and
robbed gold chain weighing 10 gms
from CW-1 and left him near RV
College, Mysuru Road at about 9:00
p.m. and thereby committed the
offence punishable under Section
395 read with Section 34 of IPC?
4. What Order?
16. The answer of this Court to the above points
in both the cases are;
1. Points Nos.1 to 3 : In Negative.
2. Point No.4 : As per the final order for
the following reasons.
REASONS
17. POINTS Nos.1 to 3:- As these points require
common discussions, to avoid repetitions and for the
sake of convenience, they are taken together for
consideration.
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18. In this case, the complainant police have filed
charge sheet against A-1 to A-4 for the offences
punishable under Sections 341, 365 and 395 read
with Section 34 of IPC. So, it is the burden on the
prosecution to prove the guilt against A-1 in
SC.No.565/2014 and A-3 in SC.No.1092/2015 beyond
all the reasonable doubts with the material, supportive
and corroborative evidence.
19. Before proceeding for discussions, let this
Court first to go through the relevant provisions for
which, the present charge sheet has been filed to see
the ingredients that attract of the offences alleged,
which are extracted here below;
"341. Punishment for
wrongful restraint.- Whoever
wrongfully restrains any person
shall be punished with simple
imprisonment for a term which may
extend to one month, or with fine
which may extend to five hundred
rupees or with both".
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20. So, let this Court to go through the provision
of Section 339 of IPC which defines wrongful restraint
and it reads;
"339. Wrongful restraint.-
Whoever voluntarily obstructs any
person so as to prevent that person
from proceeding in any direction in
which that person has a right to
proceed, is said wrongfully to
restraint that person.
Exception.- The obstruction of
a private way over land or water
which a person in good faith
believes himself to have a lawful
right to obstruct, is not an offence
within the meaning of this Section".
21. So, the essential ingredients for wrongful
restraint are;
(a) A person causes
obstruction to any person.
(b) Such obstruction is caused
voluntarily.
(c) The obstruction prevents
the person obstructed from
proceeding in any direction in which
he has a right to proceed.
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22. In the present case on hand, it is the
allegation of the prosecution that on the alleged date,
time and place, when CW-1 was moving on two
wheeler, A-1 to A-4 with a common intention, came in
Chevrolet car belonging to A-4 from opposite direction
and restrained CW-1 from moving further. Since there
is no allegation with regard to anything forcing the
accused to restrain CW-1, it is to be presumed that the
said action was the voluntary action of all the accused
and thus, the allegation attract the ingredients of
Section 399 of IPC which is punishable under Section
341 of IPC.
23. The next offence alleged is the offence under
Section 365 of IPC which is extracted here below;
"365. Kidnapping or
abducting with intent secretly
and wrongfully to confine
person.- Whoever kidnap or
abducts any person with intent to
cause that person to be secretly and
wrongfully confined shall be
punished with imprisonment of
either description for a term which
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may extend to seven years, and
shall also be liable to fine.
24. So, let this Court to go through the provisions
of Sections 359, 362 and 340 which defines kidnap,
abduction and wrongful confinement and they read;
359. Kidnapping.-
Kidnapping is of two kinds,
kidnapping from India and
kidnapping form lawful
guardianship".
25. The plain reading of the above provision
clearly shows that there is no mention of meaning or
definition of the kidnap in Section 359 of IPC which
deals with kidnapping. Hence, this Court has to see
the dictionary meaning of "kidnap" and the Cambridge
english dictionary says that kidnap means to take
away a person illegally by force.
26. The next provisions are Section 362 and 340
of IPC which deals with abduction and wrongful
confinement and they read;
"362. Abduction.- Whoever
by force compels, or by any
deceitful means induces, any
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person to go from any place, is said
to abduct that person.
340. Wrongful confinement.-
Whoever wrongfully restrain any
person in such a manner as to
prevent that person from
proceeding beyond certain
circumscribing limits, is said
"wrongfully to confine" that person".
27. In the present case on hand, it is the
prosecution allegation that on the alleged date, time
and place, all the accused in continuation of their
common intention, forced CW-1 and took him to their
car under the guise of enquiry of a case by saying that
the officer is in the car and abducted CW-1. So, the
allegations attract the ingredient of the offence under
Section 362 of IPC.
28. The next offence is Section 395 of IPC which
reads;
"395. Punishment for
dacoity.- Whoever commits dacoity
shall be punished with
imprisonment for life, or with
rigorous imprisonment for a term
which may extend to ten years, and
shall also be liable to fine".
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29. Hence, let this Court to go through the
provision of Section 391 of IPC which is extracted here
below;
"391. Dacoity.- When five or
more persons conjointly commit or
attempt to commit a robbery, or
where the whole number of persons
conjointly committing or attempting
to commit a robbery, and persons
present and aiding such
commission or attempt, amount to
five or more, every person so
committing, attempting or aiding is
said to commit "dacoity".
30. So, let this Court to go through the provision
deals with "robbery" i.e., Section 390 of IPC which
reads;
"390. Robbery.- In all robbery
there is either theft or extortion.
When theft is robbery. -
Theft is "robbery" if, in order to the
committing of the theft, or in
committing the theft, or in carrying
away or attempting to carry away
property obtained by the theft, the
offender, for the end, voluntarily
causes or attempt to cause to any
person death or hurt or wrongful
restraint, or fear or instant death or
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of instant hurt, or of instant
wrongful restraint.
When extortion is robbery.-
Extortion is "robbery" if the
offender, at the time of committing
the extortion, is in the presence of
the person put in fear, and commits
the extortion by putting that person
in fear of instant death, or instant
hurt, or of instant wrongful
restraint to that person or to some
other person, and, by so putting in
fear, induces the person so put in
fear then and there to deliver up the
thing extorted.
Explanation.- The offender is
said to be present if he is
sufficiently near to put the other
person in fear or instant death, or
instant hurt, or instant wrongful
restraint.
31. So, the essential ingredients for robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily
causes or attempts to cause to any
person.-
(i) death, or
(ii) hurt, or
(iii) wrongful restrain, or
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(iv) fear of instant death,
instant hurt, or instant wrongful
restraint and the above act(s) is/are
done -
(1) in order to the commission
of the theft, or
(2) in committing the theft, or
(3) in carrying away or
attempting to carry away any
property obtained by the theft.
(b) Extortion is robbery when,
(i) At the time of committing
extortion the offender is in the
presence of the person put in fear.
(ii) The offender commits
extortion by putting that person in
fear of instant death, hurt, or
wrongful restraint -
(1) to that person, or
(2) to some other person.
(iii) By so putting such person
in fear, the offender induced the
person so put in fear then and there
so deliver the thing extorted.
32. In this case, it is the allegation of the
prosecution that on the alleged date, time and place,
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all the accused in continuation of their common
intention, took CW-1 near Byrohalli Saibaba temple
and robbed gold chain weighing 10 gms from CW-1
and left him near RV College, Mysuru Road at about
9:00 p.m. So, the allegations attract the offence under
Section 395 of IPC.
33. As noted above, to prove the offences alleged
against A-1 and A-3, the prosecution in all got
examined 8 witnesses i.e. PWs-1 to 8. Got exhibited 12
documents at Ex.P-1 to P-12.
34. It is in the charge sheet that CW-1
Sri.G.S.Abhilash is the complainant, victim, identified
the accused and the property. He is examined as PW-1
and has deposed that;
a) He does not know A-1 and A-3 and he did not
see them before who were present in the open Court on
the date of his deposition.
b) Around 5 - 6 years back, between 5:15 p.m.,
and 5:30 p.m., he was returning to his home over his
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bike. When he came near Shirke down, KHB Flat, a car
came from the backside, came in front of his bike and
made him stop his vehicle.
c) Some unknown people, who came from the car,
asked him to board their car by stating that they are
police people and took him in the car to somewhere
else.
d) The people who took him in the car were 5 - 6
thieves and they forcibly hold his head and did not
allow him to move. They beaten him like anything and
around 9:00 - 9:30 p.m., they left him near RV College,
Mysuru Road.
e) He was very much in shock. They told him that
they left the bike near Dubasipalya bus stand and
threatened him that not to inform anybody.
f) He took the bike and went to the home.
Nobody was in the house. His wife and his brother-in-
law were already had been to the police station.
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g) Since he was not in a condition to ride the
bike, with the help of his friend Harish, who rode the
bike, he had been to the Kengeri Police Station,
wherein the police enquired him and took his
complaint at Ex.P-1.
h) The accused persons present before the Court
are not the thieves, who took him forcibly in the car.
He did not lodge complaint against them and did not
identify them before the police.
35. So, CW-1 though deposed supporting the
prosecution with regard to the incident, but turned
hostile with regard to the identification of the accused
and not stated about the extortion of his gold chain.
36. Hence, the prosecution cross examined him,
wherein he has admitted that on 31.07.2013, around
5:15 p.m., when he was moving on his Hero Honda
motor cycle in front of Shirke apartment, four
unknown people came in a Chevrolet car and took him
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forcibly into the car and robbed the gold chain in his
neck.
37. But has denied that;
a) The accused present before the Court (i.e., A-1
and A-3) are two amongst the four who kidnapped him
and robbed the gold chain.
b) On 07.11.2013, identifying them/the accused
in Byatarayanapura police station from whom, the
police have seized the golden chain robbed by them
and also identifying his gold chain, he gave further
statement before the police as per Ex.P-2.
38. He has also deposed that he sold the gold
chain, since he was badly in financial crisis. There is
no cross examination to CW-1 on behalf of both the
accused. Thus, from the above evidence of CW-1, the
prosecution is successful in establishing the
prosecution allegation with regard to the incident but
has failed to let in the evidence with regard to the
involvement of the accused in the crime.
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39. CW-5 Sri.Sampathraj is one of the panchas to
the seizure mahazar at Ex.P-3. He is examined as PW-
2 and has deposed that;
a) In the year 2013, one day, the police came to
Ramdev Bankers and Jewelers owned by Sri Ramdev
situated at Kadirenahalli Cross on the allegation that
some thieves pledged the gold ornaments in the said
shop, which were the stolen properties.
b) The police seized the stolen gold ornaments
pledged with the said bankers.
c) By that time, on the request of police, he
signed Ex.P-3, wherein his signature is at Ex.P-3(a).
d) He does not know the nature of the gold
ornaments seized. He cannot identify even if he sees
those gold ornaments.
40. Hence, the prosecution cross examined him
treating as hostile witness, wherein CW-5 has
admitted that Sri.Hanuman/CW-6 was the owner of
the above Bankers. At this stage, he has voluntarily
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deposed that he was also present at the time of seizing
the gold ornaments.
41. But, has deposed that he does not know that
A-1 and A-3 present before the Court on the date of
his deposition were brought by the police near the said
Bankers and it was A-1 and A-3 who pledged the
stolen gold ornaments with the above Bankers.
42. He has denied that CW-6 admitted in his
presence that A-1 and A-3 were the persons who
pledged the gold ornaments with him.
43. He has deposed that he does not know that
the said seized gold ornaments are a gold ring and a
gold chain.
44. Hence, the prosecution cross examined him
and suggested its case by way of suggestion and saying
the facts in respect of the alleged incident he/CW-5
gave statement before the IO as per Ex.P-4. But, the
said suggestions were denied by CW-5.
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45. In his cross examination for both the
accused, CW-5 has deposed that;
a) He does not know to read and write Kannada
language.
b) He has admitted that he does not know what is
written in Ex.P-3 and he did not give statement before
the police.
46. So, from the evidence of CW-5, the
prosecution of course let in the evidence with regard to
seizure of gold ornaments under Ex.P-3 from CW-6,
but has failed to let in the evidence with regard to the
presence of A-1 and A-3 at the time of the seizure
mahazar at Ex.P-3.
47. The next witness examined is CW-6
Sri.Hanuman who has produced the properties. He is
examined as PW-3 and has deposed that;
a) He is the owner of Ramdev Bankers and
Jewelries situated at Kadirenahalli Cross and he is
running the said shop since 25 years. At this stage, he
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has voluntarily stated that the business is being run
since the date of his father.
b) They do the business of pawn broker on gold
ornaments. Around 4 - 5 years back, the
Byatarayanapura police came to his shop on the
allegation that some thieves pledged the gold
ornaments in his shop and seized a gold ring and a
gold chain from his shop by showing the Bills.
c) By that time, the police did not bring any
thieves to his shop. He does not remember whether the
police have brought with them A-1 and A-3 present
before the Court on the date of his deposition.
d) Then, on the request of police, he signed Ex.P-
3, in respect of the police seizing the gold ring and gold
chain from his shop, wherein his signature is Ex.P-
3(b).
48. Hence, the prosecution cross examined him
by treating him as hostile witness, wherein CW-6 has
stated to a question that the police brought A-1 who
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told that he had pledged the gold ring and gold
chain/the stolen gold ornaments in his shop and
agreeing the same, he had produced those ornaments,
he has answered that he has forgotten whether the
police have brought A-1 with them or not.
49. He has denied that he knew very well the
police were brought A-1 and on his/A-1's say only,
they have produced the gold ring and gold chain before
the police, which were seized by the police by
conducting mahazar at Ex.P-3 and he gave statement
before the police in that regard as per Ex.P-5.
50. It is in the cross examination of CW-6 on
behalf of A-1 and A-3 that he does not know to read
and write Kannada language and he has admitted that
he does not know what is written in Ex.P-3 and he saw
A-1 and A-3 first time before the Court.
51. So, from the evidence of CW-6 also, the
prosecution is successful in letting in the evidence in
respect of seizure of gold ornaments from him/CW-6
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under Ex.P-3 but, failed to let in the evidence in
respect of its allegations that on the say of A-1 only,
CW-6 admitted the pledging of the gold ornaments
from A-1 and produced the same as well as the
identification of A-1 and A-3.
52. The next witness examined is CW-12
Sri.Mayanna the then HC 3408 who is examined as
PW-6 has deposed that;
a) He was working as HC-3408 in
Byatarayanapura police station since 2009 to 2014. By
then, on 02.11.2013, around 11:30 p.m., the then PI
Sri.Sathyanarayana/CW-14 took him, HC-5352/CW-
13, PC-3703/CW-7, PC-9063/CW-8 and PC-
9612/CW-10 and PC-10987/CW-11 with him to the
night rounds.
b) When they were on rounds, around 2:30 am,
they were in the Government jeep No.KA-02 G-1010
came near Pantarapalya, CW-14 received information
that somebody in the eucalyptus grove near ITI Layout,
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having deadly weapons like macchu, long, clubs,
knives preparing themselves to commit docoity and
they are having auto rickshaw, a scooter and a motor
cycle.
c) Immediately, CW-14 took them in the jeep to
the said spot and stationed the same at a distance and
after getting confirmed information, on the
instructions of CW-14, they all covered the said
persons and succeeded to catch 5 persons, the other 6
persons escaped from the spot by leaving the weapons
at the spot itself.
d) The enquiry revealed that the persons they
caught hold are Narasimhamurthy, Rangaiah,
Hanumantha Raju, Yogesh and Sabbir who were in
possession of macchu, long, club.
e) CW-14 seized the weapons in their possession
and also the weapons in the spot which were left by
the escaped accused persons ie., Purushotham, Girish,
Kumara, Seena, Mahesha and Bora.
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f) In that regard, CW-14 conducted the mahazar
in the presence of panchas in between 3:00 a.m. and
4:00 a.m. On the instructions of CW-14, he wrote the
mahazar at Ex.P-3, wherein his signature is Ex.P-3(c).
g) Around 4:15 a.m., CW-14 produced the
accused persons along with the properties with his
report before the SHO and in the course of
investigation, he gave statement before the IO. He can
identify the above accused persons and the properties
if he sees them again and it is submitted by the
counsel for both the accused that he has no objection
with regard to the identification of both the accused by
CW-12.
53. In his cross examination for both the
accused, CW-12 has deposed that;
a) From Pantharapalya, where the information
was received, they directly went to the spot. The
distance between Pantharapalya and the place of
incident may around 1 KM.
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b) He has denied that the alleged spot situates in
a completely dark area.
c) He has deposed that they stationed their jeep
at a distance around 500 to 1000 feet.
d) To the question that from a distance around
500 to 1000 feet, one can not hear, he has answered
that they did not hear anything.
e) He has denied that;
(i) Since there was dark, one can not see
anybody. At this stage, he has voluntarily stated that
there were street lights.
(ii) Though no such incident was taken place, on
the instance of their higher officers, he gave false
evidence.
(iii) No mahazar was conducted in the spot and it
was prepared conveniently in the station.
(iv) No property was seized in the spot and
panchas were not signed the mahazar in the spot.
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54. So, CW-12 deposed supporting the
prosecution with regard to the alleged raid, taking the
accused persons into custody, seizure of the properties
from their possession.
55. The only fact elicited in his cross examination
which can be taken as a corroborative piece of
evidence in favour of the accused is that "they did not
hear anything" from the spot where they stationed the
vehicle and alleged to be observed the accused
persons.
56. But, the evidence of CW-12 is pertaining to
the Crime No.438/2013 of Byataranayapura police
station from where the case is transferred to Kengeri
police station wherein the present case is registered
only with regard to the present crime i.e., wrongfully
restraining CW-1 kidnapping him and robbing the gold
chain of CW-1. Therefore, the above fact elicited from
the mouth of CW-12 is not fatal to the prosecution.
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57. The next witness examined is CW-14
Sri.K.P.Sathyanarayana the then PI who is examined
as PW-5 has deposed that;
a) He was working as PI in Byataranayapura
police station since 2013 to 2014 and on 01.11.2013,
he was on night patrolling and by then, around 2:30
a.m., when he was near Pantarapalya, he received the
information that in Eucalyptus Grove, ITI Layout, near
Nayandanahalli, around 11 persons preparing
themselves to commit dacoity of lone passers.
b) So, he secured the presence of the panchas at
Pantharapalya where he was on patrolling.
Immediately on receiving the information, he went to
the spot at 2:45 a.m.
c) On getting confirmed the information, he
raided. There were 11 persons, who were conspiring to
commit docoity. They were successful in catching 5
persons and 6 persons ran out of the spot.
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& 1092/2015
d) The enquiry revealed that the persons they
caught hold are Narasimhamurthy, Hanumantha Raju,
Rangaiah, Yogesh Kumar and Shabbir. The persons
ran out are Purshothama, Girisha, Mahesha, Kumar,
Seena and Bora.
e) On conducting the mahazar in the presence of
panchas, he seized 3 macchu, 3 longs, 4 clubs, one
iron rod, an auto rickshaw and 2 two wheelers and
came back to the station with mahazar, the above
properties and the above accused persons.
f) On return to the station, he handed over the
above properties, the accused persons, the mahazar
along with his report to the then SHO/PSI
Sri Krishnamurthy/CW-15.
g) Ex.P-17 is the true copy of the FIR registered in
the above case in Crime No.438/2013. He can identify
the accused persons stated above if he sees them
again.
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& 1092/2015
58. In his cross examination, he has admitted
that he has to mention his movements in the station
diary and has deposed that;
a) He was in Pantharapalya when he received the
information at 2:45 a.m.
b) The distance between Pantharapalya and the
Byatarayanapura police station may around 1½ K.M.
and it is 5 minutes journey by vehicle.
c) He directly went to the spot from
Pantharapalya.
d) He secured the presence of the panchas to
Pantharapalya. He did not issue written notice.
e) He has denied that he did not make any raid
and caught hold the accused persons, conducted the
mahazar, seized the properties, despite of that he gave
false evidence to substantiate the case registered for
the purpose of statistics.
59. So, CW-14 has also deposed supporting the
prosecution and nothing has been elicited in his cross
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& 1092/2015
examination for both the accused to discard his oral
evidence.
60. The other witness examined for the
prosecution is CW-15 Sri.S.Krishnamuthy the then PSI
who has subjected the accused persons to the arrest
procedures and transferred the case file. He is
examined as PW-4 and has deposed that;
a) He was working as PSI in Byatarayanapura
police station from January 2013 to July 2016.
b) By then, on 02.11.2013, the then P.I., Sri
Sathyanarayana/CW-14 produced 5 accused persons
along with his report and accordingly, he registered the
case in Crime No.438/2013.
c) CW-14 also produced the mahazar and the
properties seized therein from the accused persons.
d) During the investigation of the said case, on
the voluntary statement of A-1 and A-2 by name
Yogesh and Rangaiah (who are A-1 and A-2 in this
case as well), on 06.11.2013, he went to Ramdev
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& 1092/2015
Bankers and Jewelers, Sunil Raj Building,
Subramanyapura Main Road, Banashankari 2nd Stage,
along with the A-1 Yogesh and secured the presence of
panchas by names Sri.Sampathraj and Sri.Mahendra
Chouhan.
e) In the presence of the above panchas, he had
seized a gold ring and a gold chain pledged by the
accused persons with the owner by name Hanuman
Ram by conducting the mahazar at Ex.P-3 from 12:00
noon to 1:00 p.m., wherein his signature is Ex.P-3(c).
f) The signatures of Sampathraj and Hanuman
Ram are Ex.P-3(a) and (b) and he identifies them. He
identify the signature of Mahendra Chouhan at Ex.P-
3(d).
g) He can identify the properties/gold ornaments
seized under Ex.P-3, if he sees them again.
h) Thereafter, on return to the station, he
mentioned the above properties into PF.No.186/2013
dated 06.11.2013 at Ex.P-6.
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i) Thereafter, he had recorded the statements of
the panchas and the owner of the bankers.
Sampathraj and Hanuman Ram gave statements
before him as per Ex.P-4 and 5, respectively.
j) On 07.11.2013, he had recorded the statement
of the complainant Sri.G.S.Abhilash at Ex.P-2 in
respect of identification of the properties and the
accused persons.
k) On the same day, he had produced the
accused persons before the jurisdictional Magistrate
under remand warrant.
l) On 03.12.2013, he had transferred the
properties and the relevant papers to the Kengeri
police station with the permission of the Court.
61. In his cross examination for both the
accused, he has denied that;
a) CW-14 had not produced any report and it was
created for the sake of present case.
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& 1092/2015
b) The accused persons did not give any
voluntary statements before him.
c) A-1 Yogesh was not taken before Ramdev
Bankers and Jewelers, no properties were seized as he
has stated in his chief evidence.
d) No mahazar was prepared in the spot and it
was prepared in the station convenient to the case.
However, he has admitted that he did not give notice to
the panchas.
e) The contents of the mahazar were not read over
to the panchas and their signatures were taken in the
station.
f) The complainant did not give any statement
with regard to identification of properties and the
accused persons.
g) Though he did nothing in this case, on the
instance of PI/CW-14, he gave false evidence even
there is no nexus between the accused persons and
the present case.
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& 1092/2015
62. So, CW-15 also deposed supporting the
prosecution and nothing has been elicited in his cross
examination as well on behalf of both the accused to
disbelieve the oral testimony of CW-15.
63. The next witness examined for the
prosecution is CW-16 Sri.NC.Mallikarjuna, the then
PSI who did the initial investigation of the case on
hand. He is examined as PW-7 and has deposed that;
a) He was working as PSI in Kengeri Police
Station since 2011 to September-2013.
b) On 01.08.2013, around 6:15 p.m., he was in
charge of the police station. By then, CW-1
Sri.G.S.Abhilash came to the station and gave a
written complaint at Ex.P-1, wherein his signature is
Ex.P-1(a).
c) It is alleged in Ex.P-1 that on 31.07.2013,
around 5:15 p.m., when he was moving on his two
wheeler bearing No.KA-41 X-3372 in front of Shirke
Apartment, a white colour Tavera white board vehicle
39
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& 1092/2015
came from the opposite direction and pretend
themselves as police officers and under the guise of
enquiry, called him and forcibly took him in the said 4
wheeler and out of the said 4 unknown persons, one
brought his motor cycle following the said car.
d) It is also alleged in Ex.P-1 that the unknown
persons robbed gold chain in his neck weighing
around 10 grams, there were rods and clubs in the car.
They left him near RV college around 9:00 p.m., and
told him that his two wheeler is in front of the RV
college.
e) Accordingly, on receipt of Ex.P-1, he registered
the case in Crime No.249/2013 for the offences under
Sections 384 and 363 of IPC and prepared the FIR at
Ex.P-8, wherein his signature is Ex.P-8(a).
f) He sent the said FIR at Ex.P-8 to the
jurisdictional Magistrate and the copies there of to his
higher officers.
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& 1092/2015
g) To conduct the spot mahazar, he secured the
presence of panchas by names Sri.Annadani/CW-2
and Sri.Siddaraju/CW-3 and briefed them the facts
and asked them to become panchas, who agreed to
become panchas.
h) So, he left the station with CWs-1 to 3 and
reached the spot ie., Shirke Apartment, Kengeri
Upanagara. CW-1 shown the spot to him and
accordingly, he conducted the spot mahazar in the
presence of CWs-2 and 3 in between 6:30 p.m. and
7:15 p.m as per Ex.P-9, wherein his signature is
Ex.P.9(a); the signatures of CWs-2 and 3 are Ex.P-9(b)
and 9(c).
i) On 02.08.2013, he recorded the further
statement of CW-1, wherein CW-1 has stated that the
car in which, he was kidnapped was Chevrolet car, but
as he was in shock, while giving the complaint, he had
stated that it was Tavera Car and the persons involved
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& 1092/2015
in the commission of offence are 5, but in the
complaint, it was stated as 4.
j) Thereafter, he handed over the case file to the
then PSI Sri.Ranganatha for further investigation.
64. It is in his cross examination for both the
accused that;
a) CW-1 gave the written complaint, which was
brought by him.
b) The complaint was given after the incident.
c) He has admitted that there is no reason stated
in the complaint about the delay. At this stage, he
voluntarily stated that but, it is stated that after
discussing with the family members, the complaint
was lodged.
d) He has admitted that he has not stated any
reason in the FIR for the delay if any for lodging the
complaint.
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& 1092/2015
e) He has denied that whatever stated in the
complaint are all false and it was got written by him
convenient to the case.
f) He has admitted that he did not issue any
written notice to panchas.
g) He has denied that;
(i) The panchas do not know the recitals of the
mahazar.
(ii) All the papers were prepared in the station by
him convenient to the case.
(iii) Though there is no nexus between the
accused and the present crime, to harass them, he
gave false evidence.
(iv) CW-1 did not give any further statement
before him.
65. So, CW-16 has deposed supporting the case
of the prosecution and except with regard to the no
reason mentioned in the complaint specifically in
respect of the delay nothing has been elicited delay in
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& 1092/2015
lodging the complaint. Nothing has been elicited to
disbeliev his oral testimony in respect of his part of
investigation.
66. The last witness is CW-17 Sri.L.R.Masaguppi,
the then PI who did the later part of the investigation
and filed the charge sheet. He is examined as PW-8
and has deposed that;
a) He was working as PSI in Kengeri police station
since 12.10.2013 to 10.08.2015.
b) On 12.10.2013, he received the case file from
the then PSI Sri.Ranganatha and verified the case file
as well as found the investigation till then in order.
c) On 13.11.2013, the accused Yogesh Kumar
and Srirangaiah were reported to be in JC in Crime
No.438/2013 of Byatarayanapura police station.
Therefore, he moved for body warrant.
d) On 07.12.2012, he has mentioned the property
ie., 10 grams gold chain seized by Byatarayanapura
police and handed over to them which was received by
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& 1092/2015
the then PSI Sri.Ranganatha along with the necessary
documents to PF.No.145/2013 at Ex.P-10 and took the
permission of the learned Magistrate to retain the
property in his custody. His signature in Ex.P-10 is
Ex.P-10(a).
e) As per the order of the Court, he handed over
the above property to CW-1 Sri G.S.Abhilash by getting
executed the necessary indemnity body at Ex.P-11.
f) The photo at Ex.P-12 was taken by the time of
releasing the gold chain and the said gold chain is
appearing in Ex.P-12.
g) By that time, investigation was over and there
were prima facie materials against the accused
persons for the offences alleged. Hence, he prepared
the charge sheet and submitted.
67. In his cross examination for both the
accused, he has denied that if he really received the
case papers from the PSI Sri.Ranganatha, he would
have cited his/the said PSI Sri.Ranganatha's name in
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& 1092/2015
the charge sheet and the non mention of his name as
witness in the charge sheet itself reveals that he has
not received any case papers from him.
a) He has admitted that he has not seen A-1 and
he took the body warrant based on the information
furnished by the Byatarayanapura police.
b) He has denied that;
(i) In collusion with Byatarayanapura police to
harass the accused, they have got falsely implicated
them in this case.
(ii) There is no nexus between the accused
persons and the present crime and he gave false
evidence against them.
68. So, CW-17 also deposed supporting the
prosecution in respect of his part of investigation and
nothing has been elicited in his cross examination as
well to discard his oral evidence in respect of his part
of investigation.
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& 1092/2015
69. Thus, the sum and substance of th evidence
on record observed above, is taken into consideration,
the prosecution is successful in establishing its
allegation in respect of the alleged incident.
70. But, for its dismay in view of Cws-1, 5 and 6
turning completely hostile to it in respect of the
identification of the accused persons in particular A-1
and A-3 so for as these cases, it has failed to establish
the nexus between A-1 and A-3 with the present crime
and thereby, it has failed to bring home the guilt of A-1
and A-3 for the offences alleged. Accordingly, these
points are answered in negative.
71. POINT No.4:- In view of the finding to points
Nos.1 to 3 in negative, this Court proceeds to pass
following order.
ORDER
Acting under Section 235(1) of Cr.P.C., A-1 and A-3 are hereby acquitted for the offences punishable under Sections 341, 365 and 395 read with Section 34 of IPC.
47S.C.No: 565/2014 & 1092/2015 The bail bonds and the surety bonds executed by and on behalf of A-1 and A-3 shall be canceled after lapse of appeal period.
Office is directed to keep the original of the judgment in SC.No.565/2014 and the copy thereof in SC.No.1092/2015.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 30th day of November, 2021).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE PROSECUTION:-
PW.1 Sri.Abhilash.G.S. PW.2 Sri.Sampath Raj PW.3 Sri.Hanuman. PW.4 Sri.Krishnamurthy. PW.5 Sri.Satyanarayana.
PW.6 Sri.Mayanna.
PW.7 Sri.N.C.Mallikarjuna.
PW.8 Sri.Lakkanna Ramappa Masaguppi.
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -48
S.C.No: 565/2014 & 1092/2015 LIST OF DOCUMENTS EXHIBITED FOR THE PROSECUTION:-
Ex.P-1 Complaint.
Ex.P-1(a) Signature of CW-1.
Ex.P-1(b) Signature of CW-16.
Ex.P-2 Portion of Further Statement of
CW-1
Ex.P-3 Seizure Mahazar drawn in
Cr.No.438/2013 of
Byatarayanapura police station.
Ex.P-3(a) Signature of CW-5 Ex.P-3(b) Signature of CW-6 Ex.P-3(c) Signature of CW-15 Ex.P-3(d) Signature of Mahendra Chowhan.
Ex.P-4 Statement of CW-5 Ex.P-5 Statement of CW-6 Ex.P-6 P.F.No.186/2013 Ex.P-7 FIR in Cr.No.438/2013 of Byatarayanapura police station Ex.P-8 FIR Ex.P-8(a) Signature of CW-16 Ex.P-9 Spot Mahazar. Ex.P-9(a) Signature of CW-16 Ex.P-9(b) Signature of CW-2 Ex.P-9(c) Signature of CW-3 Ex.P-10 PF No.145/2013 Ex.P-10(a) Signature of CW-17 Ex.P-11 Indemnity Bond executed by CW-1 49 S.C.No: 565/2014 & 1092/2015 Ex.P-12 Photo taken at the time of releasing the gold chain.
LIST OF DOCUMENTS EXHIBITED FOR THE DEFENCE:-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru. 50 S.C.No: 565/2014 & 1092/2015 Accused No.1 is present.
The Judgment is pronounced in the open Court (vide separate Judgment).
ORDER Acting under Section 235(1) of Cr.P.C., A-1 and A-3 are hereby acquitted for the offences punishable under Sections 341, 365 and 395 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-3 shall 51 S.C.No: 565/2014 & 1092/2015 be canceled after lapse of appeal period.
Office is directed to keep the original of the judgment in SC.No.565/2014 and the copy thereof in SC.No.1092/2015.
LXVI Addl.CC & SJ, Bengaluru.