Bangalore District Court
State Of Karnataka By; vs Chandan Kumar @ Janti on 15 February, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 15th 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.979/2016
COMPLAINANT : State of Karnataka by;
Chennammakere Achukattu Police Station,
Bangalore.
(By Learned Public Prosecutor)
- Vs -
ACCUSED 1. Chandan Kumar @ Janti,
S/o.Lingachar
Aged 27 years
No.132, C/o.Nagarathnamma,
11th Cross, Next to Manasa Hoodka
Layout, Mysore
2. C.R.Vino (Split Up)
3. Manjunatha.C.
S/o.Late Cheluvegowda
26 years
No.132, C/o.Nagarathnamma,
11th Cross, Next to Manasa Hoodka
Layout, Mysore
4. C.N.Prasanna (Split - up)
5. Umesh (Split - up)
(A1&3:By Sri. H.Rajanna, Advocate)
2 SC.No.979/2016
1. Date of commission of offence 23.3.2014
2. Date of report of occurrence 23.3.2014
3. Date of commencement of evidence 7.11.2016
4. Date of closing of evidence 02.12.2016
5. Name of the complainant S.P.Kumaraswamy, PSI
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
JUDGMENT
This case is committed by the II 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 Chennammakere Achukattu Police Station has filed charge-sheet against accused alleging that the accused has committed the offence punishable under Sec.399, 402 I.P.C. arising out of Chennammakere Achukattu Police Station in Crime No.83/2014.
3 SC.No.979/2016
3. The brief facts of the prosecution case is as under:
(a) It is the case of the Prosecution that, CW.1 who is the Police Sub-Inspector of Chennammakere Achukattu Police on 23.03.2014 at about 09.00 p.m. when he was in the Police Station , he received credible information stating that near Ittumandu KEB Park I st Cross, 4 to 5 persons assembled armed with deadly weapons by parking two cars and one bike and making preparation to commit dacoity of the commuters. Thereafter CW.-1 called CW.4 to CW.10 officials and CW.-2 and 3 panchas and informed the information received by him to them. Thereafter, CW.1 along with his officials and panchas left police station at about 9.30 p.m., and came near the spot and stopped at some distance away from the spot and watched the spot, on the spot four - five persons assembled armed with deadly weapons by parking two cars and one bike. Thereafter, CW.1 sent CW.3 and one of his official to the spot for confirming the information.
CW.-3 and one of the official went to the spot and confirmed the information as correct, thereafter CW.-1 and his officials have conducted raid in the presence of panchas and catch hold four persons, one person ran away. CW.-1 has enquired the said person, the said person told their names and address. Further they have told that they had assembled there for committing dacoity of the 4 SC.No.979/2016 commuters and the said person told the name of the person who ran away as Umesh and thereafter CW.-1 has drawn mahazar and seized deadly weapons, cars, bike, mobiles in the presence of panchas thereafter CW.-1 has brought the said persons along with property seized to the police station, prepared the report and submitted report before CW.-12, produced said persons and property before CW.-12.
(b) CW.-12 who is the police inspector of Chennammakere Achukattu Police Station on 23.3.2014 at 11.45 p.m., was in the police Station, CW.-1 along with his officials came to the police station along with four accused persons and properties seized from them. CW.-1 has submitted report and produced the said persons and property before CW.-12. CW-12 on the basis of the report registered the case in Cr. No.83/2014 and submitted FIR to the Court on 24.3.2014. CW.-14 has arrested A-1 to A-4 and enquired them, they have given voluntary statement. CW.-12 has recorded the same. CW.- 12 has recorded statements of CW.-2 to 10.CW-12 has subjected properties produced before him under P.F. Thereafter CW.-12 has made efforts to catch hold Accused No.5 and as accused No.5 was absconding filed charge sheet.
4. After filing the charge sheet by the investigating officer 2nd A.C.M.M. Court, has taken cognizance, registered the case in C.C. 5 SC.No.979/2016 No.11486/2014, thereafter 2nd A.C.M.M. Court has secured the presence of Accused No.1 and 3. Even though NBWs came to be issued against accused No.2, 4 and 5, on several occasions the same returned unexecuted, so 2nd A.C.M.M. Court has split - up the case against accused No.2, 4 and 5 and directed the investigating officer to file separate charge-sheet. Thereafter 2nd A.C.M.M. Court has furnished charge-sheet copy to accused No.1 and 3 as contemplated under Section 207 Cr.P.C. Thereafter 2nd ACCM Court has committed the case against accused No.1 and 3 to the Hon'ble Prl. City Civil and Sessions Court, Bangalore and the same was numbered as SC No. 979/2016 and made over to this court for disposal according to law as the offences alleged against the accused No.1 and 3 are under Section 399, 402 of I.P.C. are exclusively triable by the Sessions Court.
5. After receipt of the records this court has secured presence of accused No.1 and 3 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 No.1 and 3 for the offences under Sec.399, 402 of I.P.C. and read-over to the accused in the open court and accused pleaded not guilty and claim to be tried. Thereafter, 6 SC.No.979/2016 Prosecution is 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 4 witnesses as PW.1 to 4 and got marked 8 documents as per Ex.P1 to 8 and marked the 11 material objects as MO.1 to 11 and closed its side. Thereafter, 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 accused have no defence evidence. Thereafter the case is posted for arguments.
7. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor for state in length.
8. The points that arise for my determination are:
1) Whether the prosecution proves beyond reasonable doubt that accused No.1 and 3 along with split-up accused No.2, 4 and 5 on 23.3.2014 at about 10.00 p.m., within the limits of Chennamana Kere Achukattu Police Station at Ittamadu KEB Park which is near 1st cross, assembled armed with deadly weapons and making preparation to 7 SC.No.979/2016 commit dacoity and thereby accused have committed the offence under Sec.399 of IPC?
2) Whether the prosecution proves beyond reasonable doubt that accused No.1 and 3 along with split-up accused No.2, 4 and 5 on the above said date, time and place, assembled armed with deadly weapons in order to commit dacoity, and thereby committed the offence punishable under Sec.402 of IPC?
3) What order?
9. My findings on the above points are as follows:
Point No.1 & 2 : In the Negative;
Point No.3 : As per final order, for the following;
REASONS
10. POINT No.1 AND 2: The above points are connected, hence they are taken up together for discussion together.
11. 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 4 witnesses and they are;
8 SC.No.979/2016
PW.1 ASI, R.Combaiah, PW.2- Police Sub-Inspector, S.P.Kumaraswamy, PW.3 - Subramani, Pancha of spot cum seizer mahazar, PW.4 - Sri Narasimhamurthy - pancha of spot cum seizer mahazar.
12. The prosecution in order to prove guilt of the accused in all got marked 8 documents and they are;
Ex.P1- photo of bike, Ex.P2- photo of scorpio Car, Ex.P3- Photo of Getz car, Ex.P4 - spot cum seizer Mahazar, Ex.P5 - complaint, Ex.P6 -notice given to the panchas, Ex.P7 - portion of statement of PW.-3, Ex.P8 - portion of statement of PW.-4.
13. The prosecution in order to prove guilt of the accused in all got marked 11 Material Objects and they are;
MO.1 and 2 - Samsung Mobile phone, MO.3 and 4 - Nokio Mobile Phone, MO.5 - Samsung Mobile Phone, MO.6 - Nokio Mobile phone, MO.7 - Long, MO.8- Long, MO.9 - Dagger, MO.10 and 11 - Club.
14. Prosecution in order to prove the guilt of the accused examined PW.1 and PW.1 stated in his evidence that in the year 2011 he was working as ASI in Chennamana Kere Achu Kattu police station, 9 SC.No.979/2016 on 23.3.2011 at 9.00 p.m., when he was in the police station CW.-1 called him and CW.-5 to 10 and told that he has received credible information stating that at Ittamdu KEB park road, 1st cross, 4 - 5 persons assembled armed with deadly weapons by parking two car and one bike and making preparation to commit dacoity of the commuters. CW.-1 has also called two panchas and given information to them also, thereafter they,CW.-1 and panchas came near the spot and stopped at some distance away from the spot and watched the spot, on the spot 4
- 5 persons assembled armed with deadly weapons by parking two car and one bike. There CW.-1 has sent CW.-3 and 10 to the spot and after confirming the information they went to the spot and returned back and told that information received is correct, thereafter they have conducted raid and catch hold four persons and one person ran away. CW-1 enquired the said four persons and they have told their names, one person told his name as Vinod. He was possessing one Nokio mobile phone. Another person told his name as Chandan Kumar, he was possession Samsung Mobile Phone, another person told his name as Manjunatha, he was possession one Samsung Mobile Phone, another person told his name as Prasanna, he was possessing one Nokio mobile phone. CW.-9 and 10 have chased the person who ran away and the said person escaped, so they returned. The persons catch hold told the name of the person who ran away as Umesh. Thereafter CW.-1 has 10 SC.No.979/2016 searched Scorpio car bearing No.KA-03-Md-8949 and in the said car two longs were there. CW.-1 has also searched another Getz Car bearing No.KA-03-MJ-5733 and in the said car two clubs and one dagger were there, one bike bearing no.KA 53 R 6678 was also there. CW.-1 has drawn mahazar and seized the said deadly weapons, cars, bike, mobile phones in the presence of panchas. Thereafter they have brought the said persons along with the properties seized to the Police Station and identified the properties seized as MO.-1 to 11 and also identified the two cars and one bike under Ex.P.1 to Ex.P.3 photos. This witness has been cross-examined by the counsel for the accused and this witnesses had admitted that abating to the spot, residential houses are there and spot is abating to the public road this witness has admitted that CW.-1 has not called the persons who are residing there at the time of mahazar.
15. Prosecution examined PW.-2. PW.-2 in his evidence stated that in the year 2014 he was working as Police Sub-Inspector of Channamanakere Achukattu P.S. On 23.3.2014 at 9.00 p.m., when he was in the police station he received credible information stating that at Ittamadu KEB park road, 1st cross in the open space four - five persons assembled armed with deadly weapons by parking two car and one bike and making preparation to commit daocity. Thereafter he 11 SC.No.979/2016 called CW.-4 to 10 officials, CW.-2 and 3 panchas and informed the information received by him to them, thereafter he and his officials, panchas came near the spot and stopped at some distance. On the spot two cars and one bike was parked and four - five persons were assembled with deadly weapons. CW.-1 sent CW.-3 and 10 to the spot to confirm the information, they went to the spot and returned back and confirmed the information as correct. Thereafter CW.-1 and his officials have conducted raid in the presence of panchas and catch hold four persons, one person ran away. CW-1 has enquired the said persons, they told their names as Chandan Kumar, Manjunatha and Prasanna. They told the person who ran away as Umesh. CW.-1 has searched the said persons and seized six mobile phones from them, CW.-1 has searched Scorpio car and in the said car two longs were there. CW.-1 has searched Getz Car and in the said car one dagger and two clubs were there. CW.-1 had drawn mahazar and seized deadly weapons and two cars and bike in the presence of panchas. Thereafter CW.-1 had brought the said persons along with the properties seized to the police station, prepared report and submitted the report before CW.-12 and produced the said persons and properties seized before CW.-12 and identified the properties seized as MO.-1 to 11 and identified bike and cars under Ex.P.1 to Ex.P3 photos. This witness has been cross-examined by the counsel for the accused and counsel for 12 SC.No.979/2016 the accused suggested to this witness that the accused persons have been brought from their residential houses earlier to the incident for enquiry in other cases and when they stated that they are not knowing anything they have been falsely implicated in this case and this witness has denied the same.
16. Prosecution has examined PW.3 and 4 and they are the panchas to the spot cum seizer panchanama and they in their evidence have stated that the complainant has not called them for drawing mahazar, they have not accompanied complainant for raid, the police have not conducted raid in their presence and not caught hold any person in their presence, not seized any articles in their presence. The prosecution treated these witnesses as hostile and cross-examined them and nothing has been made out in their cross-examination so as to prove the guilt of the accused.
17. It is the specific case of 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 and when they have stated that they do not know anything, they have been falsely implicated in this case. In this case both the panchas who alleged to 13 SC.No.979/2016 have been accompanied by police for raid have been examined as PW.- 3 and 4 and they turned hostile. PW.-1 in his cross-examination has admitted that near the spot, residential houses are their and spot is abutting to the public road. The CW.-1 has not called independent persons who are available on the spot at the time of drawing mahazar and not explained why he has not done so.
18. 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;
"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."
19. From the principles laid down in the aforesaid rulings of our own Hon'ble Apex Court, it is clear that only on assembling the 14 SC.No.979/2016 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 4, Ex.P1 to 8 and MO.1 to 11 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 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.
20. POINT No.3: In view of my findings point No.1, 2 and reasons stated therein, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.1- Chandan Kumar and accused No.3- Manjunatha.C are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bond of the accused persons stands cancelled forthwith.15 SC.No.979/2016
As case against Accused No.2, 4 and 5 are split-up, no order as to disposal of properties.
(Dictated to the Stenographer,, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 15th day of February 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Kambaiah CW.4 07-11-2016
PW.2 S.P.Kumaraswamy CW.1 15-11-2016
PW.3 Subramani CW.2 02-12-2016
PW.4 Narasimha CW.3 02-12-2016
Documents marked for the prosecution:
Ex.P1 Photo PW.1 07-11-2016
Ex.P2 Photo PW.1 07-11-2016
Ex.P3 Photo PW.1 07-11-2016
Ex.P4 Mahazar PW.1 07-11-2016
Ex.P4(a) Signature of PW.-1 PW.1 07-11-2016
Ex.P5 Complaint PW.2 15-01-2016
Ex.PP5(a) Signature of PW.-2 PW.2 15-01-2016
Ex.P6 Police notice PW.2 15-01-2016
Ex.P6(a) Signature of PW.-2 PW.2 15-01-2016
Ex.P7 Statement of PW.-2 PW.3 02-12-2016
16 SC.No.979/2016
Material objects marked for the prosecution:
MO.1 Samsung Mobile Phone MO.2 Samsung Mobile Phone MO.3 Nokia Mobile Phone MO.4 Nokia Mobile Phone MO.5 Samsung Mobile Phone MO.6 Nokia Mobile Phone MO.7 Iron Long MO.8 Iron Long MO.9 Dagger MO.10 Club MO.11 Club
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
17 SC.No.979/2016 Judgment pronounced in the open court (vide separate judgment) ORDER Acting under Sec.235(1) Cr.P.C. accused No.1- Chandan Kumar and accused No.3- Manjunatha.C are acquitted for the offences punishable under Sec.399, 402 I.P.C. Bail bond of the accused persons stands cancelled forthwith. As case against Accused No.2, 4 and 5 are split-up, no order as to disposal of properties.
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.