Bangalore District Court
State By; vs Mariyappa on 8 January, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 8th day of January 2016
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No. 1506/2014
COMPLAINANT : State by;
Peenya Police Station, Bengaluru City.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : Mariyappa,
S/o Late Kariyappa,
Aged about 29 years,
Residing at No.27,
Ist Main, 2nd Cross,
Manjunatha Nagara,
Nagasandra Post,
Bengaluru City.
(By Sri.Lex nexus., Advocate)
1. Date of commission of offence 24-02-2014
2. Date of report of occurrence 26-02-2013
3. Date of arrest of A-1 27-02-2014
Date of release of A-1 19-03-2014
Period undergone in custody by 22 Days
4. Date of commencement of evidence 15-06-2015
5. Date of closing of evidence 30-12-2015
6. Name of the complainant Sri.Nataraju,
2 S.C.No.1506/2014
7. Offences complained of Sec. 436 of I.P.C.
8. Opinion of the Judge As per the final order
9. Order of sentence Offences not proved
JUDGMENT
This case is committed by the VII Addl.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.436 of IPC is exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Peenya Police Station has filed charge-sheet against accused alleging that the accused has committed the offence punishable under Sec.436 of IPC arising out of Peenya Police Station in Crime No.139/2014.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, CW.1, Nataraj was running Venkateshwara Provision Stores within the limits of Peenya Police Station, at Nagasandra, Manjunatha nagar 3rd cross, Ist Main No. 28 building, the accused was residing in the said area. The accused has taken goods from the shop belonging to CW-1 on credit basis and not paid the amount, 3 S.C.No.1506/2014 CW-1 asked the accused to repay the amount due to him. For that accused has picked up quarrel with CW-1 and told that he will see how the amount will be recovered and gave threat to CW-1. On 24/4/2014 in the night CW-1 closed his shop and locked it and went to his house. Thereafter the accused came near the shop of CW-1 with an intention to burn the shop of CW-1 and poured kerosene on both rolling shutters and set fire to it. Due to fire, fridge and other materials kept in the shop and showcase in the shop of CW-1 all are burnt and CW-1 has sustained loss to the tune of Rs. 80,000/- and thereby the accused has committed an offence punishable under Sec. 436 of I.P.C.
3(a) Thereafter, CW.9 who is the Police Sub-Inspector of Peenya Police Station on 26/12/2014 at 9 AM, when in the Police Station, the complainant came to the Police Station, submitted written complaint. CW-1 has registered the same in Cr. No. 139/2014 and submitted FIR to the Court. On the same day came to the spot, called CW's 2 and 3 panchas, drawn spot mahazar on the spot shown by CW-1. CW-9 has obtained photos of the shop. On the same day CW-9 has recorded the statements of CWs 2, 3, 7 and 8 and on 27/2/2014 the officials who went for caught hold of accused 4 S.C.No.1506/2014 have caught hold the accused and produced before CW-9, CW-9 arrested the accused and recorded his voluntary statement. Accused has stated in the voluntary statement that if he has taken to the place shown by him, he will produce Kerosene Can used for commission of offence as per Ex.P-11. Thereafter, CW-9 called CWs 4 and 5 panchas, informed the information to him, accused taken him and panchas near Manjuantha nagar lorry stand and produced the Kerosene Can. CW-9 has drawn mahazar and seized the said kerosene can. Thereafter CW-9 came to the Police Station and subjected the properties seized in P.F. No. 62/2014. Thereafter, CW-9 recorded the statement of CWs 4 and 5 and entrusted the accused to judicial custody on 27/11/2014. CW-9 has recorded statement of Police Constable No. 9411. Thereafter obtained copy of lease agreement and thereafter as the investigation is completed filed charge-sheet against the accused.
4. After filing the charge-sheet by the Investigating Officer, VII Addl. Chief Metropolitan Magistrate Court, Bengaluru taken cognizance and registered the case in C.C.8361/2014 thereafter VII Addl.Chief Metropolitan Magistrate Court, Bengaluru has secured presence of accused 5 S.C.No.1506/2014 and furnished charge-sheet copies to accused as contemplated under Sec. 207 of Cr.P.C. and thereafter the VII Addl.Chief Metropolitan Magistrate Court, Bengaluru has committed the case against accused before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.1506/2014 and made over to this court for disposal according to law, as the offences alleged against the accused under Sec. 436 of I.P.C. is exclusively triable by the Sessions Court.
5. After receipt of the records, this court has secured presence of accused. Thereafter, heard the counsel for accused and learned Public Prosecutor for State and counsel for accused on charge to be framed. Charge under Sec.240 of Cr.P.C. framed against the accused for the offences under Sec.436 of IPC and read-over to the accused in the open court and accused pleaded not guilty and claim to be tried. Thereafter 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 8 witnesses as PW.1 to 8 and got marked 12 documents as per Ex.P1 to 12 and marked 1 material objects as M.O.1, and 6 S.C.No.1506/2014 closed its side. Thereafter, accused are examined under Sec.313 Cr.P.C. to enable him to explain the incriminating circumstances appearing against him in the prosecution evidence. Accused denied the statement in toto and further stated that he has no defence evidence and he has nothing to say, 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 on 24-02-2014 in the night within the jurisdiction of Peenya Police Station, at Venkateshwara Provision Stores at Nagasandra, Manjunatha nagar 3rd cross, Ist Main No. 28 building, When Cw-1 closed his provision stores and locked it and went away to his house, accused came near the shop of CW-1 with an intention to burn the shop of PW-1 and poured kerosene on both rolling shutters and set fire to it, due to fire, fridge, other materials kept in the shop and showcase in the shop of CW-1 all are burnt and CW-1 has sustained loss to the tune of Rs. 80,000/- and thereby the accused has 7 S.C.No.1506/2014 committed an offence punishable under Sec. 436 of I.P.C.?
2. What order?
9. My findings on the above points are as follows:
Point No.1 : In the Negative;
Point No.2 : As per final order
For the following
REASONS
10. POINT No.1 : It is the case of the prosecution
that the accused has committed the offences punishable under Sec.436 of IPC and the prosecution in order to prove the guilt of the accused beyond all reasonable doubt, in all examined 8 witnesses and they are, PW.1-Panch of the Spot Mahazar, PW.2-Panch of the Spot Mahazar, PW.3 Owner of the shop, PW.4 -Panch of the Seizure Mahazar, PW.5- is another Panch witness for Seizure mahazar. PW-6 is an eye witness. PW-7 Police Sub-Inspector, the Investigating Officer. PW-8 is the complainant.
12. The prosecution in order to prove guilt of the accused in all got marked 12 documents and they are Ex. P1-Spot Mahazar. Ex.P2- Portion of statement of PW-1. Ex.P3 8 S.C.No.1506/2014 is the Seizure mahazar. Ex.P4-Portion of statement of PW.4. Ex.P5-Portion of statement of PW-5. Ex.P6- Portion of statement of PW-6. Ex.P7- Portion of statement of PW-7. Ex.P7-Complaint. Ex.P8-FIR, Ex.P-9 4 photos. Ex.P-10 report given to Investigating Officer. Ex.P-11 Portion of statement of PW-1. Ex.P-12 is P.F.62/2014. Prosecution got marked one Material Objects and they are M.O.1-Kerosene Can.
13. Perusal of complaint which is at Ex.P7 discloses that incident happened during night hours on 24-02-2014 and the complainant has lodged the complaint on 26-02-2014 at 9.00 p.m. i.e., complainant in the complaint has stated that he was not knowing who has set fire to his shop and thereafter he came to know from owner of the shop that the accused has committed the fire mischief and he has lodged the complaint. Earlier he was not knowing who has set fire to his shop. So, the complainant has not lodged the complaint immediately. So, looking to the facts and circumstances, the delay caused in lodging complaint is not abnormal one. Perusal of the FIR discloses that police have submitted the FIR to the Court on 27-7-2014 at 6.10 P.M. i.e., within 24 hours from the registration of the case. So, there is no abnormal delay on the part of the police in submitting the FIR to the Court. The 9 S.C.No.1506/2014 prosecution in order to prove the guilt of the accused, examined the complainant as PW-8 and PW-8 in his evidence has stated that since year 2011 till January 2015, he was running Venkateshwara Provision stores at Manjunath nagar and the shop belongs to CW-6, he has not seen the accused person. On 26-2-2014 in night at 10 P.M. he closed the shop and went away and at about 12 P.M, the persons who were residing nearby his shop called him and told him that fire mischief happened in the shop. He has know nothing about who has set-fire, he has not lodged complaint against accused. He has not seen the accused earlier. Prosecution treated this witness hostile and cross examined him, nothing has been madeout in the cross-examination so as to help the prosecution to prove the guilt of the accused. The prosecution examined PW-3. The PW-3 is the owner of the shop building in which the complainant was running Provision stores and he in his evidence stated that he has given his shop building on rental basis of CW-1. He has know nothing about how the fire mischief happened to the said shop, he has not witnessed the incident, he has not informed regarding the fire incident to CW-1. Prosecution treated this witness hostile and cross examined him, nothing has been madeout in the cross- 10 S.C.No.1506/2014 examination so as to help the prosecution to prove the guilt of the accused. The prosecution examined PW-6 and PW-6 is an eye witness and he in his evidence stated that he has not witnessed the incident, he has not knowing who has committed the fire mischief, he has not seen the accused person. Prosecution treated this witness hostile and cross examined him, nothing has been madeout in the cross- examination so as to help the prosecution to prove the guilt of the accused. The prosecution examined PWs 1 and 2 and they are the Spot mahazar panchs and they in their evidence stated that, they are residing at Manjunatha nagar, they know Venkateshwara provision stores 1 year earlier to their evidence. The fire mischief happened to Venkateshwara provision stores and they came to know regarding the same on the next day at 9 A.M. The police came to the spot on the next day and observed the spot, obtained the photos and drawn mahazar as per Ex.P1 and obtained their signatures. These witnesses have stated that they are not knowing what was written in the said Ex.P-1 and they are not knowing how the incident happened. Prosecution examined PWs 4 and 5, they are panchs of Seizure mahazar Ex.P-3 and they in their evidence stated that the police have not called them for 11 S.C.No.1506/2014 Seizure mahazar. The police have not seized any articles in their presence by drawing Seizure mahazar. Prosecution treated these witnesses hostile and cross examined them, nothing has been madeout in the cross-examination so as to help the prosecution to prove the drawing of Ex.P-3 the Seizure mahazar and seizure of M.O.1 Kerosene can. PW-7 is the Investigating Officer and he has stated regarding investigation done by him in his evidence. It is the specific case of the accused during cross-examination of the prosecution witnesses that he has not committed the offence alleged against him. He has been falsely implicated in this case only on suspicion.
14. In the present case the complainant examined the prosecution as PW-8, who has turned hostile to the case of prosecution. Both eye witnesses examined by the prosecution as PW-3 and PW-6 turned hostile. Both Seizure mahazar, panchs examined by the prosecution turned hostile. So only evidence of Investigating Officer will not corroborate the case of prosecution. The evidence of PWs-1 to 8 and Ex. P-1 to 12 and M.O.1 will not prove the guilt of the accused beyond reasonable doubt. As per the well settled principle of criminal 12 S.C.No.1506/2014 law, the benefit of doubt goes to the accused. In the present case, giving the benefit of doubt to the accused, I hold that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt. Hence, for the above discussion, I answer point No.1 in the NEGATIVE.
20. POINT No.3: In view of my findings point No.1 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused - Mariyappa. K. is acquitted for the offence punishable under Sec. 436 of IPC.
Bail bond of the accused stands cancelled forthwith. Material object No.1 Kerosene Can is ordered to be confiscated to the state, after appeal period is over.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 8th day of December 2015) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.13 S.C.No.1506/2014
ANNEXURE Witnesses examined for the prosecution:
PW.1 Vinodh CW.3 15-06-2015 PW.2 Jagadish CW.2 15-06-2015 PW.3 Chennarayappa CW.6 15-06-2015 PW.4 Gopal CW.4 15-09-2015 PW.5 Kumar CW.5 15-09-2015 PW.6 Umesh CW.7 15-09-2015 PW.7 E.S. Mahesh CW.9 08-12-2015 PW.8 Nataraja CW.1 30-12-2015
Documents marked for the prosecution:
Ex.P1 Spot Mahazar
Ex.P.1a. Signature of PW-1
Ex.P.1b. Signature of PW-2
Ex.P.1c. Signature of PW-7
Ex.P2 Statement of PW.3.
Ex.P3 Seizure mahazar
Ex.P.3a. Signature of PW-4
Ex.P.3b. Signature of PW-5
Ex.P.3c. Signature of PW-7
Ex.P4 Portion of statement of PW.4
Ex.P5 Portion of statement of PW.5
Ex.P6 Portion of statement of PW.6
Ex.P7 Complaint
Ex.P.7a. Signature of PW-7
Ex.P.7b. Signature of PW-8
14 S.C.No.1506/2014
Ex.P8 FIR
Ex.P.8a. Signature of PW-2
Ex.P9 4 photos
Ex.P10 Report of P.C. Umesh
Ex.P11 Statement of Accused
Ex.P12 P.F.No.62/2014
Ex.P.12a. Signature of PW-7
Material objects marked for the prosecution:
MO.1 Kerosene Can Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.15 S.C.No.1506/2014
Judgment pronounced in open court, operative portion of the judgment reads as under:
ORDER Acting under Sec.235(1) Cr.P.C. accused - Mariyappa. K. is acquitted for the offence punishable under Sec. 436 of IPC.
Bail bond of the accused stands cancelled forthwith. Material object No.1 Kerosene Can is ordered to be confiscated to the state, after appeal period is over.
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.