Bangalore District Court
Siphen Pasha vs Venugopala @ Venu on 20 September, 2025
KABC030096192016
Presented on : 10-02-2016
Registered on : 10-02-2016
Decided on : 20-09-2025
Duration : 9 years, 7 months, 10 days
IN THE COURT OF THE 30TH ADDL.CHIEF
JUDICIAL MAGISTRATE, BENGALURU
Dated: This the 20th day of September-2025
:Present: Sri.Thimmaiah.G B.A. LLB.
30th ACJM, Bengaluru.
C.C.No.3777/2016
Judgment U/s.355 of Cr.P.C.
Date of Offence 19.05.2010
Complainant State by K.S.Layout Police Station,
R/by. Learned Senior APP
V/s.
Accused A1. Venugopal @ Venu,
S/o. Sridhar,
Aged about 25 years,
R/at. No.606, 10th Cross,
14th Main, 2nd Stage, K.S.Layout,
Bengaluru City.
A2. Mubarak Pasha ( Split up)
Judgment 2 C.C.No.3777/2016
Offences U/s. 380, 454, 457 of IPC
Plea Recorded on: 21.06.2024 and
accused is Pleaded not guilty.
Examination U/sec., On 19.09.2025
313 of Cr.P.C recorded
on:
Final Oder Accused No.1 is Acquitted.
Date of Order 20.05.2025
Thimmaiah.G
30 ACJM, Bengaluru.
th
JUDGMENT
The PSI of K.S.Layout Police Station has filed charge sheet against accused persons for the offences punishable U/sec,.380, 454, 457 of IPC.
2. The brief facts of the prosecution case are as follows:-
It is alleged that, on 06.09.2010 at about 11.00 PM, within the jurisdiction of K.S.Layout Police Station, House No.210, 6th cross, JHBSS Layout, which is the house of Cw.1. The accused persons illegally broke the house door lock at night and stolen HP laptop from the house of Cw.1 and thereby Judgment 3 C.C.No.3777/2016 the accused persons have committed the above said alleged offence which is punishable U/sec,.380, 454, 457 of IPC.
3. During the pendency of the case, the case against accused No.2 is split up. After filing the charge sheet, cognizance taken for the offences punishable U/sec,.380, 454, 457 of IPC against the accused No.1 and accused No.1 was released on bail. Copy of the prosecution papers furnished to the accused No.1 as required U/Sec.207 of Cr.P.C. Heard before charge. Charge has been framed and read over to the accused No.1 language known to him wherein he has denied the same and claim to be tried.
4. In order to secure the Cw.1 to 6 witnesses this court repeatedly issued Summons, NBW and Proclamation, even though the sufficient time given to the concerned police, they have failed to secure these witnesses. Moreover, this case is 09 years old one. Hence, the said witnesses are dropped after given sufficient opportunities to prosecution. In this regard this court relied on the following Hon'ble High Court, full bench Judgment of the Madras High Court, passed in The State ( Tamil Nadu) V/s Veerappan and Others, on 24 March 1980, AIR 1980 MAD260-ILR 3 MAD 245 where in it held as below:
Judgment 4 C.C.No.3777/2016
2. Of the two questions which have been referred to this Full Bench, the first one, namely, whether under Section 255(1) Cr. P. C., a Magistrate can acquit the accused if the prosecution fails to apply for the issue of summons to any witness and does not produce the witness for several hearings and does not serve summons on the witnesses despite having been granted sufficient opportunity to serve the summons or to produce the witnesses, is the one that directly arises for determination in these appeals. The second question which arises for determination by us incidentally is whether a Magistrate can acquit the accused under Section 248(1) Cr. P. C., if the prosecution does not apply for the issue of summons to any of the witnesses and does not produce the witness for several hearings and does not serve the summons on the witnesses despite having been granted sufficient opportunities to serve the summons on the witnesses or to produce the witnesses.
3. In all these appeals, the learned Magistrate acquitted the accused under Section 255(1) Cr. P. C., on the ground that even though the cases had been posted for hearing on various dates and summons had been issued to the witnesses for all the hearings, the witnesses were not produced on any of the hearing dates and in spite of a notice issued that the case would be disposed of without examining the witnesses if they are not Judgment 5 C.C.No.3777/2016 produced the prosecution did not choose to let in any evidence and as such the Magistrate found that the prosecution had no evidence to let in.
15. In State of Madh. Pra. v. Kaluthawar, 1972 Cri LJ 1639, a Division Bench of the Madhya Pradesh High Court observed as follows: "It was the duty of the prosecution to make necessary arrangements for the production of its witnesses.... The Police must always remember that it has got a duty to the court and they cannot just send a challan and think that the rest will be done by the court. When nobody appeared in t he court to inform what the reason was for non-appearance of the witnesses, the court could legitimately come to the conclusion that the police was not very serious in prosecuting the offence which was a minor one. Under Section 245, the Magistrate can record an order of acquittal if there is no evidence to hold the accused guilty. If the prosecution did not take proper steps to produce the witnesses, or ask the court to give them time to do the same, or to issue fresh summons, the court was not bound to fix another date. The police has a duty towards the citizen. When the accused is brought before the court and the prosecuting department does not take any steps it will be an abuse of the process of the court to continue the trial. Bringing a person before the court accusing him of some offence is a serious matter and however petty the offence Judgment 6 C.C.No.3777/2016 may be, the prosecuting department, must do its duty towards the accused as well as the court. When once the accused is challaned there is no privilege given to the police to remain absent".
16. There are quite a number of decisions in which it had been held that an acquittal of the accused on the failure of the prosecution to produce the witnesses is not legal. (Vide State v. Kaliram Nandlal, ), the State of Mysore v. Ramu, 1973 Mad LJ (Crl.) 116: (1973 Cri LJ 1257) (Mys); State of Mysore v. Kalilulla Ahmed Sheriff. AIR 1971 Mys 60; Kanduri Misra v. Sabadev Kunda, (1962) 2 Cri LJ 295; State of Orissa v. Sibcharan Singh, ; State of Mysore v. Somala, 1972 Mad LJ (Cri) 476: (1972 Cri LJ 1478) (Mys); State of Mysore v. Shanta, 1972 Mad LJ (Cri) 589 (Mys); State v. Nagappa, 1973 Cri LJ 548 (Mad); Public Prosecutor v. Sambangi Mudaliar, ; State of Kerala v. Kunhiaraman, 1964 Mad LJ (Cri) 330 (Ker); State of Mysore v. Narasimha Gowda, AIR 1965 Mys 167; State of Gujarat v. Thakorbhai Sukhabhai, , State of U.P. v. Ramjani, All LJ 1126; Lakshmiamma Kochukuttiamma v. Raman Pillai, AIR 1952 Trav-Co 268; State v. Madhavan Nair, 1959 Mad LJ (Cri) 633 (Ker); Emperor v. Varadarajulu Naidu, AIR 1932 Mad 25 (2); State of Kerala v. Desan Mary, 1960 Mad LJ (Cri) 378 (Ker); Kesar Singh v. State of Jammu and Kashmir, 1963-1 Cri LJ 765: (AIR Judgment 7 C.C.No.3777/2016 1963 J & K 23); R. K. V. Motors and Timbers Ltd. v. Regional Transport Authority, Trivandrum, ; K. K. Subbier v. K. M. S. Lakshmana Iyer, 1942 Mad WN (Cri) 64: (AIR 1942 Mad 452 (1)); State of Tripura v. Niranjan Deb Barma, 1973 Cri LJ 108 (Tripura); Apren Joseph v. State of Kerala, 1972 Mad LJ (Cri) 10: (1972 Cri LJ 1162) (Ker). As against these decisions, there are the following decisions in which it has been held that acquittal on the ground of non-production of witnesses by the prosecution was proper.
23. On the question as to whether the Magistrate can acquit an accused at all under Section 251A (11), Cr. P. C., if the prosecution failed to produce their witnesses, a Division Bench of the Gujarat High Court observed in State of Gujarat v. Bava Bhadya (1962)'2 Cri LJ 537 (2), as follows: "Where a charge Is framed In a warrant case on police report, if owing to the failure of the prosecution to produce their witnesses and owing also to the failure of the prosecution to make full endeavour to serve the summonses according to the provisions contained in Sections 69, 70 and 71, Cr. P. C., 1890, there is no evidence before the Magistrate, the Magistrate can acquit the accused under Section 251A (11)."
" In State of Karnataka v. Subramania Setti 1980 Mad LJ 138: (1980 CA LJ NOC 129), a Judgment 8 C.C.No.3777/2016 Division Bench of the Karnataka High Court referring to the decisions in State of Mysore v. Narasimha Gowda (1964) 2 Mys LJ 241: (AIR 1965 Mys 167) and the State of Mysore v. Abdul Hameed Khan (1969) 1 Mys LJ 4: (1970 Cri LJ 112 (Mys)), observed that the real distinction between the two decisions is as to whether there was remissness and want of diligence on the part of the prosecuting agency in producing the witnesses before the Court and therefore the principle laid down in Abdul Hameed Khan's case applied to the facts of the case with which the Division Bench was concerned. We may riots here that in Abdul Hameed Khan's case, it was found on the facts that the prosecution was not at all diligent as the non-bailable warrants issued to the witnesses had neither been served nor returned to the court by the concerned police and it was therefore held that where the prosecution was not diligent in producing its witnesses and had failed to serve the bailable warrants on the witnesses and return the same the Magistrate would be justified in refusing to grant an adjournment and to proceed to acquit the accused on the material on record. We may note here that in State of Karnataka v. Subramania Setti 1980 MLJ 138 the Division Bench was dealing with a24. After carefully considering all the aforesaid decisions and the views expressed therein, we are of the view that if the prosecution had Judgment 9 C.C.No.3777/2016 made an application for the issue of summons to its witnesses either under Section 242(2) or 254(2) of the Criminal Procedural Code it is the duty of the court to issue summons to the prosecution witnesses and to secure the witnesses by exercising all the powers given to it under the Criminal Procedure Code, as already indicated by us and if still the presence of the witnesses could not be secured and the prosecution also either on account of pronounced negligence or recalcitrance does not produce the witnesses after the Court had given it sufficient time and opportunities to do so, then the Court, being left with no other alternative would be justified in acquitting the accused for want of evidence to prove the prosecution case, under Section 248, Cr. P. C., in the case of warrant cases instituted on a police report and under Section 255(1), Cr. P. C. in summons cases, and we answer the two questions referred to us in the above terms.
Hence, considering the present case on hand, the Cw.1 to 6 are dropped, since they are not secured long time. Further, the Cw.7 is given up as prayed by the Ld.Sr.APP. In order to prove the guilt of the accused No.1, the prosecution has examined 03 witnesses as PW.1 to PW.3 and got marked 09 documents as Ex.P1 to Ex.P.8.
Judgment 10 C.C.No.3777/2016
5. Thereafter examination of the accused No.1
U/sec,.313 of Cr.P.C. is recorded, the accused No.1 has denied the incriminating evidence in the prosecution case and not chosen to lead his side evidence. No documents are got marked on his behalf.
6. Heard both sides and perused the evidence available on record.
7. Upon hearing arguments advanced from both sides and on perusal of materials placed on record, following points arise for consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that, on 06.09.2010 at about 11.00 PM, within the jurisdiction of K.S.Layout Police Station, House No.210, 6th cross, JHBSS Layout, which is the house of Cw.1. The accused persons illegally broke the house door lock at night house of the Cw.1 and thereby committed an offence punishable U/sec.,454, 457 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on 06.09.2010 at about 11.00 PM, within the Judgment 11 C.C.No.3777/2016 jurisdiction of K.S.Layout Police Station, House No.210, 6th cross, JHBSS Layout, which is the house of Cw.1. The accused persons illegally broke the house door lock at night and stolen the HP laptop frm the house of Cw.1 and thereby committed an offence punishable U/sec.,380 of IPC?
3. What order?
8. My findings to the above points are:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per final order
for the following:
REASONS
9. POINTS NO.1 & 2: These points are inter connected to each other and have taken for discussion in common to avoid repetition of the facts and evidence. Further, I am of the opinion that, I need not repeat the entire case of the complaint here also, since I have already narrated the same at the inception of this judgment.
10. The Cw.8 Sri.Shivarudrappa, who is examined as Pw.1 and IO in this case, he has deposed in his evidence before the court that, On 07.09.2010 at 08:50 PM, while he Judgment 12 C.C.No.3777/2016 was in charge of the police station, he received the written complaint given by Cw-1 and registered a case under Police Crime No.413/2010 and submitted the report to the Honorable Court and the superior officers. Then I handed over the case to Chasa-9 for further investigation.
Further, the learned counsel for the accused No.1 cross examined the said witness, where in he stated that, in FIR not taken the signature of Pw.1 and further after receiving the complaint Ex.P1 not done any investigation and further denied the rest of the suggestions put by the learned counsel for the accused No.1.
11. The Cw.10 T.M.Darmendra, who is examined as Pw.2 and 2nd IO in this case, he has deposed in his evidence before the court that, On 10.01.2016, he received the case file from Cw.8 and continued the investigation. Later, since the investigation was already completed, he had submitted the final report to the Honorable Court as there was prima facie evidence against the accused.
Further, the learned counsel for the accused No.1 cross examined the said witness in length but, nothing worthwhile elicited from his mouth.
Judgment 13 C.C.No.3777/2016
11. The Cw.9 Jagadish, who is examined as Pw.3 and IO in this case, he has deposed in his evidence before the court that, On 07.09.2010, he had received the case file from Cw8 and continued the investigation. Later on the same day, he had conducted a panchanama in the presence of Cw-2 and 3 from 09-15 to 09-45 at the place shown by the Cw-1. Later, he had verbally ordered Cw-6 and 7 to find the accused. Later on the same day, he had recorded the statements of Cw-2 and 3, Later on 27.09.2010, Cw-6 and 7 produced the accused along with the laptop before him at 08-00 PM. Cw-6 gave a report and Cw-7 gave a statement. Later, he interrogated the accused, took appropriate legal action, took custody and obtained their voluntary statements. In their voluntary statements, they stated that the laptop they were carrying was stolen. Later on 28.09.2010, on the basis of the voluntary statements of the accused, the said accused No.1 was taken to his house and a panchanama was conducted between 10-30 am and 11-30 am. Later, he had suspended the laptop related to the said case and 4 laptops and 25 mobiles of different companies related to other cases. Later, he had included it in the P.F.No.161/2010. Since he had been transferred, the case file has been handed over to Cw-10 for further investigation, Judgment 14 C.C.No.3777/2016 Further, the learned counsel for the accused No.1 cross examined the said witness in length but, nothing worthwhile elicited from his mouth.
12. It is the paramount duty of the prosecution to establish the guilt of the accused No.1 beyond all reasonable doubt. Unless the guilt is established beyond all reasonable doubt, the accused No.1 can not be held guilty of the alleged offenses.
13. In this case, in order to secure the Cw.1 to 6 this court issued summons and proclamation. In spite of the sufficient time given to the police, the concerned police have failed to secure this witness. Moreover, this case is 09 years old one. Hence, the said witnesses are dropped after given sufficient opportunities to prosecution. Further, the Cw.7 is given up as prayed by the Ld.Sr.APP. Further the Investigating officer's ie., Pw.1 to 3 they have only deposed about their investigation and their evidence is not helpful to the prosecution to prove the guilt of the accused No.1. Moreover, the non examination of the materials witness is fatal to the prosecution case. As such the case against the accused No.1 is certainly would be entitled to benefit of the doubt. Regarding this relied on the following Judgment.
Judgment 15 C.C.No.3777/2016 On this point held in, (2016) 10 SCC 519 - AIR 2016 SC 4581 in para 56, Hon'ble Apex held thus hereunder:
''56. It is a trite proposition of law, that suspicion however grave, it cannot take the place of proof and that the prosecution in order to succeed on a criminal charge cannot afford to lodge its case in the realm of ''may be true''' but has to essentially elevate it to the grade of ''must be true''. In a criminal prosecution, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof and in a situation where a reasonable doubt is entertained in the backdrop of the evidence available, to prevent miscarriage of justice, benefit of doubt is to be extended to the accused. Such a doubt essentially has to be reasonable and not imaginary, fanciful, intangible or non-existent but as entertainable by an impartial, prudent and analytical mind, judged on the touchstone of reason and common sense. It is also a primary postulation in criminal jurisprudence that if two views are possible on the evidence available one pointing to the guilt of the accused and the other to his innocence, the one favourable to the accused ought to be adopted.''
14. Thus, the above Hon'ble Apex Court decision has opt to the present case on hand and in the present case only the Investigating officer's has been examined and the material witness has not been secured. It is a settled principal of law that, the sole testimony of the Investigating officers, in the absence of independent and material witnesses, is insufficient to prove the prosecution case and the accused No.1 is entitled to the benefit of the reasonable doubt. Moreover, non examination of material witness is fatal to the prosecution Judgment 16 C.C.No.3777/2016 case. Further the prosecution has not able to prove the alleged offence against the accused No.1 beyond all reasonable doubt. Therefore, I Answer to the Points No.1 in the Negative.
15. POINT NO.2: In view of the above findings on Point No.1, I proceed to pass the following:
: ORDER :
In the exercise of Powers Conferred U/Sec. 248(1) of Cr.P.C., the Accused No.1 is hereby Acquitted for the alleged offences punishable U/s. 380, 454, 457 of IPC.
The bail bond of Accused No.1 and surety extended for further 6 months in order to comply Sec.437A of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The property seized by the IO in P.F.No.160/2020, One HP Laptop, interim release is made absolute.
(Dictated to the Stenographer directly on computer and after corrections made by me and then pronounced by me in the Open Court on this the 20 th day of September-2025).
(Thimmaiah.G) 30 ACJM, Bengaluru.
th Judgment 17 C.C.No.3777/2016 ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Sri. Shivarudrappa
P.W.2 : Sri. T.M.Darmendra
P.W.3 : Sri. Jagadish
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.1(a) : Signature of Pw.1
Ex.P.2 : FIR
Ex.P.2(a) : Signature of Pw.1
Ex.P.3 : Spot Mahazar
Ex.P.3(a) : Signature of Pw.3
Ex.P.4 : Report of Cw.6 & 7
Ex.P.4(a) : Signature of Pw.3
Ex.P.5 & 6 : Self Statement of A1
Ex.P.5(a) : Signature of Pw.3
Ex.P.7 : Seizure Mahazar
Ex.P.8 : Statement of Cw.1
Judgment 18 C.C.No.3777/2016
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE:
-NIL-
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION Digitally signed by THIMMAIAH
-NIL- THIMMAIAH G G Date:
2025.09.23 15:59:41 +0530 (Thimmaiah G) 30 ACJM, Bengaluru.
th Judgment 19 C.C.No.3777/2016