Bangalore District Court
The State Of Karnataka vs Irfan on 1 March, 2018
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 1st day of March, 2018
PRESENT: Smt.S.Shobha, B.A., LL.M.,
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
S.C.No.1277/2012
COMPLAINANT : The State of Karnataka,
By Girinagar Police Station,
Bangalore.
Vs.
ACCUSED : 1. Irfan, S/o Anwar,
Aged 22 years,
R/at C/o Alibhai House,
Behind Mazjid, Gandhinagar,
Kaggalipura, Kanakapura Main
Road, Bangalore.
Native of No.108,
Slatter House, H.Street,
Shivajinagar, Bengaluru -56.
2. Anwar (Abated)
3. Smt.Naznuunisa, W/o Anwar,
Aged 43 years,
R/at C/o Alibhai House,
Behind Mazjid, Gandhinagar,
Kaggalipura, Kanakapura Main
Road, Bangalore.
Date of offence & Time 29.7.2011 9.30 p.m.
Date of report of offence 29.7.2011 10.15 p.m.
Date of arrest of the accused- The presence of A.1 to A.3 was
secured under body warrant
Name of the complainant Smt.Kumudini
Date of commencement of 7.8.2014
2 S.C.1277/2012
recording of evidence
Date of closing of evidence 30.11.2017
Offences complained of 392, 109, 413 r/w.S.34 of I.P.C.
Opinion of the Judge Accused are found not guilty
State represented by Learned Public Prosecutor
Accused defended by A.1 by Sri T.S..
A.3 by Sri C.B.A. Adv.,
: JUDGMENT :
The Police Inspector of Girinagar police station, Bengaluru City, has filed the charge sheet against the accused persons for the offences punishable under sections 392, 109 and 413 r/w.S.34 of I.P.C.
2. The case of the prosecution in brief against the accused persons is that, on 29.7.2011, at about 9.30 p.m. when CW.1 was proceeding on I 'D' Main, Girinagar, Bengaluru to purchase vegetables, at that time A.1 and A.2 came in a Yamaha motorbike and A.1 snatched away the mangalya chain from the neck of CW.1 weighing 65 grams and escaped with A.2 in the said vehicle. Accused No3 abetted accused Nos.1 and 2 to commit the offence. The accused persons after committing the offence sold the theft articles and by using the sale proceeds they lead their life luxuriously. During investigation the Investigating Officer arrested the accused persons, seized articles from the possession of the 3 S.C.1277/2012 accused persons and subjected them to P.F. Thereafter, the Investigating Officer has filed the charge sheet for the afore said offences after completion of investigation against accused Nos.1 to 3.
3. The Learned Magistrate took the cognizance and registered the case against the accused No.1 to 3, in C.C.No.17407/2012. Thereafter, the learned Magistrate committed the case to the Court of Session, as the offence alleged against the accused are exclusively triable by the Court of Session. The case of accused Nos.1 to 3 came to be registered as S.C.No.1277/2012.
4. After hearing both the sides, charges for the offence punishable under Sections 392, 109 and 413 r/w.S.34 of I.P.C. came to be framed against A.1 to A.3 and when the charges were read over and explained to the accused, they pleaded not guilty and claimed to be tried.
5. The prosecution to prove the guilt of the accused persons, has examined 10 witnesses as P.Ws.1 to 10, and got marked 11 documents at Exs.P.1 to Ex.P.11. The accused 4 S.C.1277/2012 have not got marked any defence exhibits during the course of examination of the prosecution witnesses.
6. After the closure of the prosecution evidence, the accused have examined under Sec.313, Cr.P.C. They have denied all the incriminating circumstances appearing against them in the evidence of the prosecution witnesses. Thereafter, the accused were called upon to enter on their defence and to lead any evidence that they may have in support thereof. The accused have submitted that they have no defence evidence to lead.
7. I have heard the arguments of the learned Public Prosecutor for the prosecution and the learned defence counsel for the accused and Perused the records.
7. Following points are formulated for consideration of this court:
1. Whether the prosecution has proved that on 29.7.2011, at about 9.30 p.m. when CW.1 was proceeding on I 'D' Main, Girinagar, Bengaluru to purchase vegetables, at that time A.1 and A.2 came in a Yamaha motorbike and A.1 snatched away the mangalya chain from the neck of CW.1 weighing 65 grams and they fled away in the said vehicle and thereby committed an offence punishable under Section 392 of I.P.C.?5 S.C.1277/2012
2. Whether the prosecution has further proved that accused No.3 abetted accused Nos.1 and 2 to rob the ornaments of the ladies, who were passing on the road, and thereby committed an offence punishable under Section 109 r/w.S.392 of I.P.C.?
3. Whether the prosecution has further proved that accused No.3 is the habitual receivers of robbed property, received from accused Nos.1 and 2 knowingly that it was stolen property and thereby committed an offence punishable under Section 413 of I.P.C.?
4. What order?
8. My findings on 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 Nos.1 to 3:- Since these points are interlinked with each other and require common discussion, they are taken together for common consideration. The case of the prosecution is as narrated in para 2 of this judgment. It is the prosecution case that accused 3, habituated with receiving stolen articles and that they have abated accused-1 and 2 to rob golden chain specifically the Mangalya of the women, who were moving on the public road are found along 6 S.C.1277/2012 in the house. Hence, the prosecution has invoked sec.392, 109 and 413 of I.P.C. for the conviction of accused 1 to 3. The criminal law relating to robbery, abatment and habitual dealing in stolen properties etc. are concerned, it casts burden that the prosecution has to prove the allegation against Accused 1 to 3, till then they are considered to be innocent. Accused 1 to 3 are also entitled for benefit of reasonable doubt, if the prosecution failed to prove the case and acquittal. So the prosecution has to prove beyond all reasonable doubt the guilt of the accused persons.
10. With regard the penal law prevailing regarding the said offences and the evidence and proof, it is relevant to consider the legal aspects. The prosecution has to prove the abatement of accused 3 to commit robbery by accused 1 and 2, for fixing criminal liability u/sec.109 of IPC. Section 413 of I.P.C. is pertaining to the punishment against the accused persons who are habitually dealing in stolen property. Therefore the prosecution has to establish the ingredients that receiving or dealing in stolen property by the accused persons and such receiving and dealing in property must be to the knowledge of such accused persons that, they are stolen properties. In 7 S.C.1277/2012 other words, they are professional dealers in stolen property. It refers to the customery conduct of accused, pursuing of tendency acquired from frequent repetition. Therefore receiving of stolen property and knowingly that they are stolen properties are two requirements to be proved by the prosecution, as it is the allegation against accused No.3 that they used to receive the stolen properties/valuables from accused No.1 and 2 knowingly that they were robbed properties and selling/pledging the same and about the alleged motive that they used the amount to purchase vehicles and a site etc. and that some portion of amount was given to accused Nos.1 and 2 and in turn accused Nos.1 and 2 were using it for their illegal means of enjoyment, as they abated the A.1 and A.2 to commit robbery. It is pertaining to the penal provisions i.e. Sections 413 and 109 of I.P.C. However, the evidence on record are to be considered in this regard in the discussion in the subsequent paragraphs.
11. With reference to Section 392 of I.P.C., it is specific allegation that the accused Nos.1 and 2 habituated with to commit robbery of the valuables of women who were moving on public road/public places/ being along in the house/road, 8 S.C.1277/2012 by snatching the golden chain specifically Mangalya, by using Yamaha Bike and the Car and their involvement in series of criminal cases and specifically in the present case the bike. Sec.392 of I.P.C. being penal provision, the prosecution has to prove the ingredients of robbery as contemplated u/s.390 of I.P.C. "Robbery and participation in robbery to be satisfied by independent evidence and corroborated by recovery of stolen articles and injuries on the victim if any". Therefore the prosecution has to prove the identification and recovery of stolen property.
12. It is also settled law that "where the Complainant/victim is the sole identification witness to prove the offence of accused. Identification process was to be conducted. So it is well settled that accused was identified to the witnesses by the police at the Police Station, it is fatal to the prosecution case. If identification and recovery are not proved, in such circumstances, it has to be held that there existed a benefit of reasonable doubt, about the involvement of the accused in the crime and he has to be acquitted". It is held in the reported decisions: (1) 1997 Crl. LJ 3137 (Bomb), (2) 1997 Crl. LJ 2886 (Cal), that, "if, the evidence of identification corroborated by evidence of recovery was perfectly the trustworthy, 9 S.C.1277/2012 the accused to be convicted and that if, it is not trustworthy the benefit of doubt to be extended to the accused".
13. "The recovery should be in pursuant to the confessional statement of the accused and the manner as it was stated in the mahazar and same shall be testified by leading cogent evidence of recovery panch witnesses to the Mahazar and there must be proof of nexus between the accused persons and the crime". "Identification of accused being essential for the prosecution and if the victim/eye witness does not state features of accused who was a stranger, it makes the identification of accused doubtful. The prosecution to prove that the recovery of incriminating articles was in pursuant to voluntary statement of accused. If this element is not established, it makes the prosecution case a doubtful. So also if there is material contradiction, omissions, inconsistency and improvements in the evidence of prosecution witnesses, then also it makes the prosecution case a doubtful". With these legal aspects, it is proceeded to consider the evidence placed by the prosecution, against the accused persons with reference to the alleged respective offences. 10 S.C.1277/2012
14. The learned defense counsels specifically pressed upon the recovery panch witnesses stating that it is very important for the prosecution to prove the recovery. But the said witnesses are the stock witnesses, and recovery is not proved and that alleged eye witnesses including the complainant have not supported the prosecution case with reference to identification of accused Nos.1 and 2 and that the prosecution has failed to prove the guilt of the accused persons beyond all reasonable doubt and they are entitled for acquittal.
15. In the reply the learned P.P. has argued that no doubt there are series of cases registered against the same accused persons. But the prosecution has proved that they are all participated in series cases and it is on record that user of vehicle is same and recovery of properties from the finance and possessor of stolen articles, was done in the series of cases. Hence, since many cases indicated the involvement of these accused and hence recovery of some robbed articles being under common recovery, so same witnesses are to the mahazar in almost all the cases and hence they are not stock witnesses. All the seizure mahazar witnesses supported the 11 S.C.1277/2012 prosecution case regarding recovery of material objects. The complainant has identified the material object. The complainant has secured the interim custody of the property and it is not in dispute. The evidence of Investigating Officer supported by the independent seizure mahazar witness. Hence, some of the witnesses though turned hostile to the prosecution case it will not fatal to the prosecution case and the court has to consider the case of the prosecution as its entirety and minor discrepancies can be ignored, which do not go into the root of the case and involvement of the accused persons being proved by the prosecution in the series of cases and they are habituated to commit the crime. Hence, they are not entitled for acquittal and prayed to convict the accused persons. With due consideration of legal aspects and arguments advanced by the learned P.P. and learned defense counsels, it is proceeded with for discussion in the present case.
16. P.W.2-Smt. Kumudini, who is the complainant has stated in her evidence that on 29.7.2011, at about 9.30 p.m. when she went outside to purchase the vegetables, at that time two persons drove the Pulsar bike in a speed manner 12 S.C.1277/2012 and when she turned back her neck chain was missing and after hearing her screams the neighbours came and she lodged the complaint as per Ex.P.2 and thereafter the police drawn the spot mahazar as per Ex.P.1. She has further stated that on 18.5.2012 she was called by the Subramanyapura P.S., where she identified the accused and vehicle Yamaha. She has stated that in the chief examination by mistake she has stated that the accused came in Pulsar bike, but it is a Yamaha, which she has seen in the police station. She has identified the accused in he Video Conference. She identified the chain in the photo as per Ex.P.3. She has further stated that she is able to identified the second accused before the court as she has not remembered due to her ill-health.
In the cross-examination she has stated that at the time of incident there was darkness. She has further stated she do not know the contents of Ex.P.1 as it was drawn after long back. She did not give any description of chain. The seized chain has no identification marks and it is available in other jewellery shop. When such being the case, it is amounting to improvement in the evidence. It is not admissible in evidence. There was no identification parade of accused Nos.1 and 2 13 S.C.1277/2012 with due process of law. Her evidence is not free from any doubt about identification of a Nos.1 and 2. So, her evidence proves only the robbery of her alleged chain.
17. P.W.3 Fazalur Rehman, who is the maternal uncle of A.2 has stated that about 2½ years back accused Nos.1 and 2 were came to him along with some jewels to sold the same as they have constructed the house, hence, they are in need of money and they have told the said ornaments belonging to them and he sold the same for a sum of Rs.3 lakhs in Kanaka Jewels, situated at Kerala and the amount was given to accused No.2. After 1½ month he was summoned by Girinagar police and showed 3 accused persons and he went along with the police to Kanaka Jewels and showed the chains which were sold by him and the police have seized the same along with the mahazar Ex.P.4 and he identified the photo of chain as Ex.P.3.
In the cross-examination he has stated that he is not having any receipt to show that he sold the jewels to Kanaka Jewels. He has further stated that he do not know the Kannada language and he do not know the contents of Ex.P.4 and he has put his signature on Ex.P.4 in the police station 14 S.C.1277/2012 and he do not know the contents of Ex.P.4. He has further stated that he cannot say on which date the accused persons have handed over the jewels to him and he is not having any receipt to show that he sold the jewels to Kanaka Jewels. He has further stated that he has not given any statement before the police.
So, it is notable point that, his conduct is that he did not ask accused Nos.1 and 2 about the source for securing of ornaments, nor he advised him to get the amount himself by pledging the alleged ornaments; nor he had any hurdle to advise him in that regard; and that he used to help the acquainted persons. He alone went to the said finance for pledging. He admits that the authorized persons of jewel shop would issue receipt for having received the ornaments for selling the same. He stated about recovery of receipt from him with reference the alleged pledging of ornaments. It seems that he is a stock witness and assigned in this case. Hence, his evidence is not free from any doubt with reference to the receiving of alleged material objects and had dealings regarding pledging of the same and recovery. 15 S.C.1277/2012
18. P.W.4 Francis has stated in his evidence that he has working in Kanaka Jewelers as a Salesman and about 3½ years back P.W.3 came to his shop to sold 3-4 jewels and he has purchased the same. The police came to his shop along with P.W.3 and accused No.1 and he has returned the said jewels as per the say of police and the police have seized the same as per Ex.P.5 (originally the said document was marked in S.C.No.1335/2012) and the police have took his signature on Ex.P.5. He identified the photo of chain as per Ex.P.3. He has further stated that he do not know persons before the court and he has not given any statement before the police. On treating him hostile witness he was subjected to cross- examination by the learned P.P. In the cross-examination he has denied the suggestions made to him as per Ex.P.6.
In the cross-examination by the learned defence counsel he has stated that accused No.1 has not come to his shop along with P.W.2 and accused No.1 has not sold the jewels to him P.W.3 and his wife have sold the jewels to him and he do not remember on which date P.W.3 and his wife came to his shop to sell the jewels. There are material contradictions in the evidence of P.W.4. These are fatal to the prosecution case.
16 S.C.1277/2012
19. P.W.6 Mallesh is the seizure mahazar witness. He has stated in his evidence that on 29.4.2012, he was called upon by the Subramanyapura police to the Police Station and he was taken to the house of one Mudabir Imran at Kaggalipura, Gandhinagar and they seized car and bike and identified the bike reveled in the photo. The police have seized the same under the mahazar Ex.P.7 and he put his signature. He has further stated that the accused Mudabir has produced the car and bike, which were parked near Alibhai's house and the police have seized the same.
In the cross-examination he has stated that he has signed the mahazar Ex.P.7 in the police station and he frequently visiting the police station. In the chief examination he has stated that the police have summoned him to the police station, but in the cross-examination he has stated that the police have not summoned him to the police station. He has further stated that the police have not issued any notice to him for his presence as Panch witness to the mahazar. Thus his evidence is not firm. The Mahazar discloses seizure of Car and bike and accused Mudabir was accompanied the police and came to the said spot and that he gave statement that the said vehicles were used in the 17 S.C.1277/2012 incident and that they were parked near the house of accused Mudabir. Thus his evidence is not worth to believe and corroborating the case of the prosecution regarding Ex.P.7. Even there is no identification of the alleged car, alleged to be used by the accused persons after committing the robbery, for dealing with robbed material objects, specifically that in pursuant to the voluntary statement of accused No.1 police agency and panch witnesses proceeded and those vehicles were discovered. Thus, Ex.P.7 is not proved.
20. P.W.1 Smt.Indiramma is the spot mahazar witness. She has stated in her evidence that about 4 years back from the date of her examination at about 9.30 p.m. P.W.2 has lodged the complaint about theft of her neck chain, hence, the police came to the spot and drawn the spot mahazar as per Ex.P.1. This witness was not cross-examined by the learned defence counsel.
21. P.W.5 Shivappa, P.W.7 Neelakantha, and P.W.9 Girish police Constables, have stated that on 6.5.2012 PSI Balaraj has received a credible information that accused Imran and Irfan were came near National Highway at Hindupur, hence, he entrusted themselves and PSI Siddaraju and P.C. 18 S.C.1277/2012 Mohammed Sadiq to apprehend the accused persons and accordingly they apprehended accused Nos.1 and 2 at the place of Hindupur NH 17 and they ascertained their names and addresses and they produced them before the PSI Balaraj and he recorded their statements. Then on 10.5.2017, accused Anwar. In the cross-examination they have stated that the P.I. has not given any written notice to arrest the accused persons. They cannot say as to which person have arrested which accused persons. They further stated the mahazar was not drawn after apprehension of the accused. Their evidence is not corroborated by other witnesses. Evidence of these official witness to be discarded as the Investigating Officer has not examined by the prosecution.
22. P.W.8 Smt.Kamalamma WPC has stated in her evidence that on 7.5.2012 herself and P.C.7307 were entrusted to apprehend accused Nazmunnisa by PSI Balaraj, hence, as per the information from the informants, they apprehend accused No.3 near Kaggalipura bus stand and they produced her before the PSI Balaraj along with the report Ex.P.10 and she identified accused No.3 before the court.
19 S.C.1277/2012
In the cross-examination she has stated that PSI Balaraj has not given any written notice to apprehend the said accused and he has not given any description of the accused person and the mahazar was not drawn after apprehension of the accused. Her evidence is not corroborated by the I.O.
23. P.W.10 N.R.Venkatesh PI has stated in his evidence that on 29.7.2011 at about 10.15 p.m. P.W.2 has lodged the complaint and on basis of the said complainte, he registered the case in Cr.No.177/2011 for the offence punishable under Section 392 of I.P.C. and submitted F.I.R. Ex.P.11 to the court and P.W.2 has shown the place of incident and he drawn the mahazar Ex.P.1 at the spot and he handed further investigation to CW.19. In the cross-examination he has denied the suggestions put to him. The prosecution inspite of several opportunities not able to execute the summons and the prosecution not been examined the I.O.
24. The material placed on record discloses that there is no corroborative and clinching evidence regarding discovery of bike and car and recovery of ornaments, as the prosecution has failed to prove the mahazar. The very victim has not 20 S.C.1277/2012 identified duly the accused Nos.1 and 2 as it is case of the prosecution that they both were involved in the said case. Because there was no reference regarding identification parade and it was duly conducted by Investigating Officer nor the victim has stated about features of the accused alleged to be the snatched the chain from her neck. Apart from this there are material contradictions in evidence of recovery panch witnesses and the possessor of alleged material objects. The recovery of mangalya chain is not duly proved. Therefore, it is fit case to give benefit of doubt to the accused persons, as the prosecution has failed to prove the recovery of robbed chain.
25. Therefore, it is clear from the evidence on record that the prosecution has failed to bring on record the credible evidence. Whatever evidence of prosecution witnesses, as discussed above, to prove the guilt of the accused persons, is not sufficient, as their evidence is without cogent and corroborative evidence of independent and material witnesses and Investigating Officer. Thus, the prosecution has failed to bring home the guilt of the accused persons beyond all reasonable doubt. So as to convict them under sections 392, 21 S.C.1277/2012 109 and 413 of I.P.C. Extending benefit of doubt, in their favour it is held that the accused are entitled for acquittal. Hence, Points No.1 to 3 are answered in the 'Negative'.
26. Point No.4:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
ORDER Accused No.1 and Accused No.3 are acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 392, 109 and 413 of I.P.C.
Case against A.2 is abated as he is reported to be dead.
(Dictated to the Judgment Writer, directly over computer, then corrected and pronounced by me in the open court on this the 1st day of March, 2018) (S.Shobha) LII Addl. City Civil & Sessions Judge, Bengaluru.
: ANNEXURE:
List of witnesses examined for the prosecution:
P.W.1 Smt.Indiramma
P.W.2 Smt.Kumdini
P.W.3 Fazlur Rehman
P.W.4 Francis
P.W.5 Shivappa
P.W.6 Mallesh
P.W.7 Neelakanta
P.W.8 Smt.Kamalamma
P.W.9 Girish
22 S.C.1277/2012
P.W.10 N.R.Venkatesh
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Spot mahazar
P.1(a) Signature of P.W.1
P.1(b) Signature of P.W.2
P.1(c) Signature of P.W.10
Ex.P.2 Complaint
P.2(a) Signature of P.W.2
Ex.P.3 Photograph of chian
Ex.P.4 Seizure mahazar
P.4(a) Portion in Ex.P.4
Ex.P.5 Seizure mahazar (marked in
S.C.1335/12)
P.5(a) Signature of P.W.4
Ex.P.6 Statement of P.W.4
P.6(a) Portion in Ex.P.4
Ex.P.7 Seizure mahazar (true copy)
Ex.P.8 Photograph of vehicle
Ex.P.9 Report of P.W.7
Ex.P.10 Report of P.W.8
Ex.P.11 F.I.R.
P.11(a) Signature of P.W.10
List of documents exhibited on behalf of defence: Nil List of M.O. marked for the prosecution: Nil LI Addl.City Civil & Sessions Judge, Bangalore City.