Bangalore District Court
State By vs A1: Lakshmikantha @ Vinay on 15 June, 2017
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 15th DAY OF June 2017
PRESENT
SRI.A.VIJAYAN, B.A.(LAW),LL.M.,
LXVI Addl.City Civil & Sessions Judge (CCH-67)
S.C.798/2013
COMPLAINANT : State by:
Jnanabharathi Police Station,
Bangalore.
(By Public Prosecutor)
/Vs/
ACCUSED: A1: Lakshmikantha @ Vinay
@ Gunda,
S/o Ramakrishnappa,
Aged 29 years,
R/at No.32,
Near Yeshwanthapura Railway
Station, Muneshwara Nagara,
Bangalore.
A2: Babu @ Choodi Babu,
S/o Ameer Jhan, 30 years,
T.B.Layout, Nagamangala Town,
Mandya District.
(A1 &2 by Sri.MGS, Advocate)
DATE OF:
Occurrence of offence : 09/04/2012
Commencement of trial : 05.08.2014
Closing of trial : 23.05.2017
Name of the complainant : Smt.Usha.K.
Offence alleged : U/s 392 and 413 of IPC
Opinion of the judge: Charges leveled against
accused are not proved
Sentence or order : A1 and A2 Acquitted
2 S.C.798/2013
JUDGMENT
Jnanabharathi police filed charge sheet against the accused for the offence punishable under Sec. 392 and 413 of IPC.
2. Brief facts of the prosecution case is that:-
On 9.4.2012 at about 6 to 10 p.m. within the jurisdiction of Jnanabharathi police station, on 8th Main Road, 14th Block, Nagarabhavi 2nd Stage, when CW1 was walking with CW3, accused No.1 and 2 went on a black colour pulsar Motor cycle bearing Reg.No:KA-02 HA-5526 parked the vehicle and accused No.2 pillion rider came and snatched the golden chain from the neck of CW1 and they rode away in their vehicle. Hence, CW 1 lodged complaint with Jnanabharathi police. Based on the complaint police registered a case in Cr.No:3/2011 of their police station and after completion of investigation filed charge sheet against the accused for the offence punishable under Sec. 392 and 413 of IPC.
3. Meanwhile accused No.1 and 2 were remanded to JC. After committal of this case, accused No.1 and 2 are produced from Judicial custody before this court and they got enlarged on committal bail. Heard before charge, charge 3 S.C.798/2013 framed and plea of accused recorded. Accused pleaded not guilty, but claimed to be tried by this court. Hence, this case was posted for trial.
4. During the course of trial, the prosecution in all examined its witnesses as P.W.1 to P.W. 13 and got marked documents Ex.P.1 to P.23. Statement of accused under Sec.313 of Cr.P.C. is recorded. Accused denied all incriminating evidence. The accused neither produced nor adduced any evidence on his defence.
5. Heard arguments on both the sides and case was posted for judgment.
6. Out of above said facts and circumstances of the case, and material evidence on record, points that arise for my consideration are as under for the following reasons:-
1. Has the prosecution proves beyond all reasonable doubt that 9.4.2012 at about 6 to 10 p.m. within the jurisdiction of Jnanabharathi police station, on 14th Block, 8th Main , Nagarabhavi II Stage, when CW1 was walking with CW3 accused No.1 and 2 went on a black colour Bajaj pulsar Motor cycle bearing Reg.No:KA-02 HA-5526 parked the vehicle and the pillion rider A2 went near CW1 and snatched chain from her neck and they rode away and there by 4 S.C.798/2013 committed an offence punishable under Sec. 392 , and 413 of IPC ?
2. What Order?
7. My findings to the above points are as under for the following reasons:-
Point No.1 : In the Negative Point No.2 : As per final Order, for the following :
REASONS
8. POINT No.1: In this case, police have filed charge sheet against the accused for the offence punishable under Sec. 392 and 413 of IPC. It is burden on the prosecution to prove the guilt against the accused beyond all reasonable doubt with the material, supportive and corroborative evidence with cogent reasons. In this case there is no direct evidence to prove guilt against the accused, under such circumstances prosecution has to link chain of circumstances available against the accused persons to bring home the charge leveled against the accused persons. 5 S.C.798/2013
9. During the course of trial, the prosecution in all examined its witness P.W.1 to P.W. 13 and got marked documents at Ex.P.1 to P.23.
10. PW1 K.Usha Krishnamurthy the complainant in this case deposed that she is residing at Door No.258, 14th Block, 7th Main Road, Nagarabhavi. On 9.4.2012 at about 6.10 p.m. along with her friend when she was walking on the road, persons came in a bike behind her back and snatched her gold Mangalya sara weighing 90 gms. and she identified accused before the court who had snatched her mangalya sara for which she lodged before the police as per Ex.P.1 and she identified signature at Ex.P.1(a). Thereafter Jnanabharathi police informed her of tracing chain, accordingly, she had been to police station and identified the chain and took chain to her custody. At that time police have taken photo and she did not see anything except identification of her chain. She identified the chain Ex.P.2. At that time she did not sign any documents and she did not produce the chain before the court as she had lost the chain at Chennai when she attended a marriage. Thereafter that chain never traced and turned hostile.
6 S.C.798/2013
11. During cross examination by learned Public Prosecutor she admitted conducted spot mahazar on 9.4.2012 between 8 p.m. to 8.45 p.m. in the incident spot as per Ex.P.3 and she identified her signature at Ex.P.3(a). Further mechanically admitted that on 12.12.2012 she identified both her chain as well as accused in the police station. She cannot remember the description of motor cycle. She also created doubt whether she had given statement on that day. Hence, her statement marked as Ex.P.4. Prosecution got marked indemnity bond as per Ex.P.5 , she identified her signature at Ex.P.5(a). In her cross examination by learned defense counsel she deposed that she cannot remember whether motor cycle riders were wearing helmet or not and its color and she identified accused only in the police station. In her complaint she ahs stated that 'ondu ele mangalya sara', but not described about the black beeds. She has signed Ex.P.3 near her house, again says she has signed Ex.P.3 in the police station. Further she deposed that police did not traced mangalya sara weighing 90 gms. She cannot remember whether she had received gold chain worth 60 gms. Further deposed that she cannot say which accused snatched her gold 7 S.C.798/2013 chain. Again when cross examined by learned defense counsel on 10.2.2015 she had stated that she did not see accused except in the police station and she did not identify the accused anywhere except in the police station. Under these circumstances, the identification parade conducted by Executive Magistrate cannot be believed. Thereafter she failed to support Ex.P.6 and P.7 the identification parade report by learned executive Magistrate and she clearly admitted that she had signed Ex.P.6 and P.7 in the police station, and at any point of time she did not visited the prison.
12. P.W.2 R.J.Suresh deposed that there is his signature in spot mahazar at Ex.P.3 and P-3(b), same was drawn by police at 14th Block, Nagarabhavi with regard to theft of chain of complainant. At that stage learned Public Prosecutor turned him as hostile. During his cross examination he deposed that on 9.4.2012 there was theft of gold chain of Complainant, on that day between 8 p.m. to 8.45 p.m. police came there to conduct spot mahazar, at that time her wife Veena was also present. He also identified her wife's signature at Ex.P.3(c). Again when cross examined by 8 S.C.798/2013 learned defense counsel he deposed that he do not know whatever written in Ex.P.3. and denied several suggestions put by learned defense counsel.
13. P.W.3 Krishnaiah, Seizure mahazar witness deposed that police did not drawn any seizure mahazar and seized anything in his presence and he did not see any accused, police did not seize any material object from the custody of accused. But he identified his signature at Ex.P.8 in Ex.P.8(a) and turned hostile. But during his cross examination prosecution failed to elicit any gainful evidence.
14. P.W.4 Pavan, deposed that in the year 2012 in the moth of November police obtained signature to a document and he do not know accused and police did not seize any material object from accused. He identified his signature at Ex.P.10 and P10(a) and failed to recount for what purpose he had signed in Ex.P.10 and turned hostile absolutely. But during his cross examination prosecution failed to elicit any gainful evidence in its favour.
15. P.W.5. Nikil Bagil deposed identically as PW4. He identified his signature at Ex.P.10 and P.10(b) and turned 9 S.C.798/2013 hostile. . But during his cross examination prosecution failed to elicit any gainful evidence in its favour.
16. P.W.6 Manju identified his signature at Ex.P.10 and P.10(c) and absolutely denied that police did not seized anything from accused in his presence. . But during his cross examination prosecution failed to elicit any gainful evidence in its favour.
17. PW7 Srikanth , proprietor of Sripathi Silver Refinery deposed that they are having one gold and silver business center at Chikkabasti road, Hassan for the past 60 years. He do not know P.W.6. But he has seen accused No.1 and 2 through Video conference, but he do not know anything about them. And they did not came to his shop and sold any gold ornaments to him, at about 7 to 8 police personals came at about 1 ½ years back, form the date of his deposition came to his shop along with P.W.6 and obtained his signatures in the blank paper and seized 40 gms gold ingots and nothing else. At that time except PW6 nobody was present. He identified his signature at Ex.P.10 and P.10(b) and failed to recount for what purpose police have written in Ex.P.10. and turned 10 S.C.798/2013 hostile. . But during her cross examination prosecution failed to elicit any gainful evidence in its favour.
18. P.W.8 Shivanna deposed about arrest of the accused and seizure of black pulsar bike and such other articles as per Ex.P.4, P.5 and MO 1 to 3. In his cross examination he denied several suggestions put by learned defense counsel.
19. P.W.9 Intihza patel the then PSI of Jnanabarathi Police station deposed about seizure 9 mangalya sara in the presence of PW4 and 5 by drawing seizure mahazar as per Ex.P.10 in the Sripathi silver refinery shop. He had taken statements of P.W.4 to 7 as per Ex.P.11 to P.14. But in his cross examination he denied several suggestions put by learned defense counsel.
20. P.W.10 N.R.Umesh Chandra, Tahasildar , Executive Magistrate deposed about the identification parade conducted by him. Since complainant denied conducting the identification parade his evidence is not useful for prosecution.
21. P.W.11 Rajanna the then ASI of Jnanabharathi police deposed about the registration of complaint in crime number of their police station and filing of the FIR. He 11 S.C.798/2013 identified his signature in them. Further deposed about drawing of spot mahazar as per Ex.P.3 and he identified his signature at Ex.P.3(b). In his cross examination he denied several suggestions put by learned defense counsel.
22. P.W.12 Channamma identified her signature at Ex.P.8 in Ex.P.8(b) Further deposed that police did not seize any material objects in her presence and she denied her statement before police and turned hostile. Further during her cross examination prosecution failed to elicit any gainful evidence in its favour.
23. Further P.W.13 B.Balaraju who has conducted complete investigation in this case deposed about whatever investigation conducted by him. But in his cross examination he denied several suggestions put by learned defense counsel and further clearly admitted that complainant in her complaint has informed police that chain snatchers came in blue color bike but he admitted pulsar bike seized during the course of investigation is black in color and they did not seize blue color bike.
24. On analyzing the entire prosecution case it is clear that complainant though supported prosecution at initial case 12 S.C.798/2013 partially later turned hostile. But during her cross examination again she supported prosecution partially, when cross examined by leanred defense counsel, she clearly admitted that she did not identify the accused in the police station and she also denied about the identification parade conducted by prosecution. Under these circumstances, she demolished the core of prosecution of case. Prosecution case falls to the ground. Thereafter spot mahazar witnesses, seizure mahazar witnesses failed to support prosecution case and turned hostile. I.O. P.W.13 Balaraju clearly admitted that in the complaint , complainant has informed police that chain snatchers came in blue color bike but, they have seized black color bike for which there is no explanation form the side of prosecution, whey police did not seize blue color bike. Further in this case RC owner of bike Mr.Irfan not examined by prosecution to link bike with commission of offence by the accused. After all these during the course of arguments, learned Public Prosecutor argued that it is duty cast on the accused to disprove the case of the prosecution proving that at the time of commission of offence accused were not in the incident spot, such kind of argument is against the principle of 13 S.C.798/2013 criminal law, because under our adversary legal system accused is presumed to be innocent till guilt is proved and he need not prove anything during the course of trial , if he proves or disprove in his defense evidence, then he is liable to undergo any suffering on his own risk, but State through police and prosecution department has to establish and prove all allegations charged against the accused persons, if they failed to prove case of prosecution automatically ends in acquittal. On the above said facts and circumstance of the case prosecution miserably fail to prove guilt against the accused beyond all reasonable doubt. Therefore this court hold point No.1. in the Negative.
25. POINT No.2: In view of my finding to above point and for reasons discussed above, I proceed to pass following:-
ORDER Acting U/Sec 235(1) of Cr.P.C accused No.1 and 2 are hereby acquitted for the offence punishable U/Sec 392, 413 of IPC Accused No.1 and 2 are set at liberty. 14 S.C.798/2013 Further in this case accused No.1 and 2 are hereby directed to execute his personal bond for Rs.50,000/- along with one surety as required under Sec.437(A) of Cr.P.C.
(Typed to my online dictation by judgment writer, typed by her and then corrected and pronounced by me in the open court on this the 15th day of June 2017) (A.VIJAYAN), LXVI Addl., City Civil & Sessions Judge, Bangalore.
-:ANNEXURE:-
WITNESSES EXAMINED BY THE PROSECUTION:-
PW1 K.Usha PW2 R.J.Suresh PW3 Krishnaiah PW4 Pavan PW5 Nikhil Bagal PW6 Manju PW7 Srikanth PW8 B.V.Shivanna PW9 Imtihaz Patel PW10 N.R.Umesh Chandra PW11 H.N.Rajanna PW12 Chennamma PW13 B.Balaraju 15 S.C.798/2013 WITNESS EXAMINED FOR DEFENCE :- Nil DOCUMENTS MARKED FOR PROSECUTION:-
Ex.P1 Statement of PW1
Ex.P1(a) Signature
Ex.P2 Photograph
Ex.P3 Mahazar
Ex.P3(a)to(d) Signature
Ex.P4 Statement
Ex.P.5 Mahazar
Ex.P.5(a) Signature
Ex.P.6&7 ID pared report
Ex.P.6(a)&7(a) Signature of PW1
Ex.P.8 Mahazar
Ex.P.8(a) Signature of PW3
Ex.P.9 Statement
Ex.P10(a)to(d) Signatures
Ex.P.11 Portion of Statement of PW4
Ex.P.12 Portion of Statement of PW5
Ex.P.13 Portion of statement of PW6
Ex.P.14 Portion of statement of PW7
Ex.P.15 Submission
Ex.P.16 Memorandum
Ex.P.17 Report
Ex.P.18
Ex.P.19 Statement
Ex.P.20 Property statement
Ex.P.21 Voluntary statement
Ex.P.22 Voluntary statement
Ex.P.22(a) signature
Ex.P.23 Property statement
DOCUMENT MARKED FOR DEFENCE:-
Nil
16 S.C.798/2013
MATERIAL OBJECTS MARKED FOR PROSECUTION:
-Nil -
(A. VIJAYAN) LXVI Addl.City Civil & Sessions Judge, Bangalore.17 S.C.798/2013
Pronounced vide separate judgment with following operative portion:
ORDER Acting U/Sec 235(1) of Cr.P.C accused No.1 and 2 are hereby acquitted for the offence punishable U/Sec 392, 413 of IPC Accused No.1 and 2 are set at liberty.
Further in this case accused No.1 and 2 are hereby directed to execute his personal bond for Rs.50,000/- along with one surety as required under Sec.437(A) of Cr.P.C.
LXVI Addl.City Civil & Sessions Judge, Bangalore.