Bangalore District Court
State By Madiwala vs Girisha @ Giri @ Kunigal on 22 May, 2017
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY
Dated this the 22nd day of May 2017
PRESENT
*******
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
S.C.No.443/2015
COMPLAINANT: State by Madiwala
Police Station,
Bangalore.
(Represented by Learned Public
Prosecutor, Bangalore.
Vs.
ACCUSED: 1. Girisha @ Giri @ Kunigal
Giri @ Prashanth Raj @
Ashwath
S/o Veeranna Gowda,
Aged about 27 years,
R/at Hosur Village
Moduru Post, Kasaba Hobli,
Kunigal Taluk,
Tumkur District.
2. Govinda @ Govindaraju,
S/o Kempegowda,
Aged about 28 years,
R/at Chikkakallya Village,
2 SC.No.443/2015
Thippasandra Hobli,
Magadi Taluk,
Ramanagara District.
3. Srinivasa @ Vasu,
S/o Guligowda,
Aged about 27 years,
R/at No.19/B,
Pipeline, Weavers Colony,
Srinagar,
Bangalore.
4. Jagadeesha @ Jaggu,
S/o Srinivasa,
Aged about 25 years,
R/at Anupanahalli,
Hoodigere Hobli,
Tumkur Taluk & District.
5. Ramdas B. Shet,
S/o Late Beerappa,
Aged about 50 years,
R/at No.531, 13th A Cross,
Vaiyalikaval, Malleswaram,
Bangalore.
1. Date of Commission : 07.03.2014
of Offence
2. Date of Report : 07.03.2014
of Offence
3. Status of the accused : Accused Nos.1 to 4
are in J.C. and accused
No.5 is on bail
3 SC.No.443/2015
4. Name of the : Sri. Prashanth
complainant
5. Date of :
Commencement of 19.09.2016
evidence
6. Date of Closing of :
21.03.2017
Evidence
7. Offences complained of : Sections
397, 411 & 413 of I.P.C.
8. Opinion of the Judge : Accused not found guilty
JUDGMENT
This case is arising out of the charge sheet filed by the Police Inspector, Madiwala P.S., Bengaluru City against the accused Nos.1 to 5 for the offences punishable under Sections 397, 411 and 413 of IPC.
2. The facts in brief of the case of the prosecution is that on 07.03.2014 the first informant Prashanth had been to Aranya Restaurant near Silk Board Junction at about 9.25 P.M. along with his car. After parking his car he was 4 SC.No.443/2015 proceeding towards Restaurant and at that time three persons attacked on him and they came in two motor bikes. It has been contended that those persons snatched the golden chain of Prashanth and snatched two silver finger rings from Prashanath. At the time of snatching the ornaments those three persons shown dagger and even hit Prashanth with dagger and rod. This information was given by Prashanth to Madiwala P.S. on the very day at about 11.30 P.M. and Madiwala Police registered the case in Crime No.322/14 for the offence under Section 394 and launched the investigation. It is the case of the prosecution that on 16.04.2014 Byatarayanapura Police registered case in Crime No.171/2004 for the offence under Section 399, 402 and 353 of IPC against many accused including the accused Nos.1 to 4 herein. A team was formed by the Joint Commissioner of Police, Bengaluru City to arrest the accused in Crime No.171/14 headed by Sri K.P. Sathyanarayana who was the Police 5 SC.No.443/2015 Inspector of Byatarayanapura P.S. It is the contention of the prosecution that on 17.05.2014 Andhra Pradesh Police arrested the accused No.1/Kunigal Giri at Hindupura. On 18.05.2014 early in the morning Sri K.P. Sathyanarayana and his team conducted raid on the house of Krupakara Reddy at Hindupura where the accused Nos.1 to 4 were residing and able to arrest the accused Nos.2 to 4 of the present case. The police taking the accused Nos.2 to 4 from Hindupura to Bengaluru City and within the jurisdiction of Devanahalli P.S. the accused No.2/Govind tried to escape from the police and Sri Bale Gowda, Police Inspector fired on accused No.2 and to that effect a case in Crime No.46/2014 has been registered against the accused No.2 in Devanahalli Police Station under Section 353, 332, 224, 307 and 506 of IPC. It is the case of the prosecution that on 03.06.2014 the accused No.1 has given his voluntary statement, on 04.06.2014 the accused No.5 has given his voluntary statement, on 05.07.2014 6 SC.No.443/2015 the accused No.2 has given his voluntary statement and on 18.05.2014 the accused Nos.3 and 4 have given their voluntary statements and thereby disclosed the fact that the stolen property from Prashanth were sold to accused No.5 and the accused No.5 in turn sold the ornaments in Gurupriya jewellery works situated at Malleswaram. At the instance of accused No.1, the Police Inspector Sri K.P. Sathyanarayana recovered the golden chain of Prashanth from Pramod who was running Gurupriya jewellery Works. Thereafter, the Police Inspector released the golden chain in favour of Prashanth as per the direction given by the court and Prashanath identified the accused Nos.1 to 4. Then Byatarayanapura P.S. transferred the papers relating to arrest of accused Nos.1 to 5 and recovery of golden chain of Prashanth to Madiwala P.S. On the basis of such recovery the Investigating Officer has found that accused Nos.1 to 4 committed the robbery on Prashanth and thereby committed the offence under Section 397 of IPC 7 SC.No.443/2015 and accused No.5 has committed the offence under Sections 411 and 413 of IPC by receiving the stolen property from the accused Nos.1 to 4 knowingly that property was stolen. Accordingly the present charge sheet has been filed.
3. The Investigating Officer filed the charge sheet before the Learned III ACMM against accused Nos.1 to 5 which came to be registered in C.C.No.33696/2014. Since the offence under Sections 397 & 413 of IPC are triable by Court of Sessions, the learned magistrate has committed the case to the Court of Sessions for trial. The accused Nos.1 to 4 are in J.C. in other case and therefore, their presence has been secured by issuing body warrant. The accused No.5 was released on bail. The accused Nos.1 to 5 are represented through their counsel.
4. After hearing both sides charge has been framed against the accused Nos.1 to 4 for the offence 8 SC.No.443/2015 under Section 397 and the charge against the accused No.5 has been framed under Sections 411 and 413 of IPC. The accused No.1 to 5 have pleaded not guilty and claim to be tried.
5. In order to prove the guilt of the accused, the prosecution has examined eight witnesses as PW.s 1 to 8 and got marked documents at Ex.P.1 to P.13 and one Material Object at M.O.1 . P.W.6 - Sri K.P. Sathyanarayana given his part of evidence and did not submit for cross- examination. Therefore, his evidence has been discarded. The accused were examined under Section 313 of Cr.P.C. who have denied the incriminating evidence appearing against them. The accused have not adduced any evidence in their defence.
6. Heard the arguments of both sides and perused the records.
9 SC.No.443/2015
7. Having regard to the materials placed on record and the submissions made by both the parties, the following points arise for my determination:
1. Whether the prosecution proves beyond reasonable doubt that on 07.03.2014 at about 09.25 P.M. near Aranya Restaurant, Silk Board Junction, Bengaluru City, the accused Nos.1 to 4 committed robbery of golden chain which was weighing 13 Grams and three silver finger rings from the possession of CW.1-
Prashanth by showing deadly weapon like long and thereby committed the offence under Section 397 of I.P.C.?
2. Whether the prosecution proves beyond reasonable doubt that on the above said date after committing robbery the accused No.1 to 4 sold the above said golden chain to the accused No.5 and the accused No.5 dishonestly received the golden chain knowingly or having reason to believe the same to be stolen property and thereby the accused No.5 10 SC.No.443/2015 committed the offence under Section 411 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that the accused No.5 was habitually receiving or dealing with property from accused Nos.1 to 4 knowingly or having reason to believe the same to be stolen property and thereby the accused No.5 committed the offence under Section 413 of IPC?
4. What Order?
8. My findings to the above points are as under:-
POINT No.1 to 3 :- In the Negative
POINT No.4 :- As per final order
for the following,
REASONS
9. Point No.1:- The P.W.2 is the first informant. P.W.7 is the Investigating Officer who has registered the crime and P.W.8 is the Investigating Officer of Madiwala P.S. who has filed the charge sheet. The P.W.1 - Pramod 11 SC.No.443/2015 is the owner of Gurupriya Jewellery Works from whom the golden chain said to be recovered. P.W.3 is one of the panch witnesses to the Panchanama drawn in Crime No.171/14 of Byatarayanapura P.S. P.W.4 is the Police Inspector of Devanahalli P.S. who has registered the crime No.46/14 and P.W.5 Sri Bale Gowda was the member of the team who has filed the complaint against the accused No.2 herein which was registered in Devanahalli P.S. The P.W.6 Sri K.P. Sathyanarayana was the Police Inspector of Byatarayanapura P.S. who has recorded the voluntary statement of the accused and recovered the stolen property by showing the Panchanama in Gurupriya Jewellery Works. With these evidence the prosecution intending to prove the guilt of each of the accused leveled against them.
10. The P.W.2 in his evidence has stated that on 07.03.2014 at about 9.30 P.M. he went to Aranya Hotel 12 SC.No.443/2015 and when he was proceeding to Hotel after parking his car, three persons came on two bikes and asked the address of certain area. He has also stated that immediately one of them snatched the golden chain from his neck and when he protested another has given blow on his head with rod. He has also stated that those three persons asked to give the golden and silver finger rings worn by him and because of the threat he has handed over one silver ring to those three persons and the golden ring not came out and therefore, those three persons after assaulting him went away on the bike. He has also stated that he called the police over phone and the police immediately came to the spot and he was taken to Madiwala P.S. wherein he has filed first information produced at Ex.P.2. He has also stated that since the injuries sustained by him were simple in nature, he took treatment in a Clinic nearby his house. He states that on the next date of the incident, the police came to the spot 13 SC.No.443/2015 and drawn the Panchanama produced at Ex.P.3. He has spoken to the fact that three months after the incident Byatarayanapura Police informed him about the recovery of the golden chain, he went there, identified the chain and received the chain at M.O.1 to his interim custody as per the order of the court. However, this witness denied the identity of accused Nos.1 to 4. Even he has denied his additional statements dated 05.06.2014 and 06.07.2014 for having identified the accused Nos.1 to 4. The accused Nos.1 to 4 not cross-examined this witness and the accused No.5 in the cross-examination has asked about the bill of M.O.1 and the witness has stated that he is having bill.
11. The statement of P.W.2 about robbery of golden chain and silver rings on 07.03.2014 at about 9.30 P.M. by three persons who came on two bikes including the assault made on Prashanth has not been denied. Even 14 SC.No.443/2015 the defence has not denied the information given by the P.W.2 to the Police, Panchanama at Ex.P.3 drawn in the presence of P.W.2 and handing over of golden chain to the P.W.2. The statement of P.W.2 is supported with the first information at Ex.P.2 which was given on 07.03.2014 at about 11.30 P.M. This information was given without any delay. The Panchanama of the spot is at Ex.P.3 which has been spoken by P.W.2. Therefore, the allegation made in Ex.P.2 and the spot shown in Ex.P.3 including the drawing of Panchanama by the police which has been spoken by P.W.2 has not been challenged by the defence.
12. The P.W.7 has stated that he received the information at Ex.P.2 from Prashanth and registered it in Crime No.322/14 and he has identified the FIR at Ex.P.11. The evidence of P.W.7 is corroborated by P.W.2 in respect of filing of first information. This evidence of P.W.7 has not been shaken in the cross-examination. The P.W.8 was 15 SC.No.443/2015 the Police Inspector of Madiwala P.S. who has stated that on 08.03.2014 he taken the investigation and went to the spot and drawn the Panchanama at Ex.P.3 in the presence of panch witnesses and P.W.2. This part of evidence of P.W.8 is also not seriously disputed by the defence. Even this part of evidence is supported by P.W.2. The prosecution not examined panch witnesses to Ex.P.3. When the evidence of P.W.2 in respect of Panchanama at Ex.P.3 is unchallenged and when there is corroboration to the evidence of P.W.8 in respect of drawing of Panchanama at Ex.P.3, in my opinion no more evidence is required for the proof of Ex.P.3. Therefore, based on these evidence, I hold that the prosecution has proved the allegation of robbery shown in Ex.P.2 and the spot Panchanama at Ex.P.3.
13. P.W.3 has stated that on 16.04.2015 Byatarayanapura Police taken his signature on 16 SC.No.443/2015 Panchanama at Ex.P.7. The Panchanama was drawn in Crime No.171/14 of Byatarayanapura P.S. and under the Panchanama certain deadly weapons, golden ornaments and vehicles were recovered. All those Material Objects are not relating to the present case. Therefore, the Panchanama at Ex.P.7 and the evidence of P.W.3 has no bearing in the present matter. Apart from that the P.W.3 has not supported the case of the prosecution in respect of Ex.P.7 and even the prosecution not examined Sri K.P. Sathyanarayana fully for proof of this Panchanama. Hence, I hold that the prosecution not proved the Panchanama at Ex.P.7 in accordance with law.
14. P.W.5-Sri Bale Gowda has stated that he was one of the members of the team formed in Crime No.171/14 of Byatarayanapura P.S. to arrest the culprits and team was headed by K.P. Sathyanarayana. He has also stated about arrest of accused Nos.2 to 4 at 17 SC.No.443/2015 Hindupura and the attempt made by the accused No.2 to escape from the police. He has also stated about the firing on accused No.2, recovery of certain articles at Hindupura and filing of complaint by him before Devanahalli Police. The P.W.4 has spoken about the registration of the complaint filed by the P.W.4 against the accused No.2 when the accused No.2 attempted to escape from the police. This evidence of P.W.4 and 5 is relating to the case registered against the accused No.2 herein that he tried to escape from police. Therefore, their evidence is not bearing in the present matter. The evidence of P.W.5 relating to arrest of accused Nos.3 and 4 is relevant and such fact has not been disputed by the defence. Therefore, from the evidence of P.W.5 and other evidence on record, it is held that the accused Nos.2 to 4 were arrested on 18.05.2014 and they were in custody of Sri K.P. Sathyanarayana.
18 SC.No.443/2015
15 It is the case of the prosecution that on the basis of voluntary statement given by the accused Nos.1 and 5 on 03.06.2014 and 04.06.2014, Sri K.P. Sathyanarayana, Police Inspector went to Gurupriya Jewellery works, Malleswaram along with panch witnesses by name J.N.J. Rudraprasad and Pramod Kumar and recovered the golden chain of Prashanth. It is also the case of the prosecution that Sri K.P. Sathyanarayana shown the accused Nos.1 to 4 to Prashanath in Byatarayanapura P.S. and Prashanth has identified those accused. It is also the case of the prosecution that after transfer of papers relating to the present case from Byatarayanapura P.S., the P.W.8 has shown the accused Nos.1, 3 and 4 to Prashanath and Prashanth identified accused Nos.1, 3 and 4. Such allegation has been denied by the defence.
16. In order to prove the alleged voluntary statement and recovery Panchanama, the evidence of 19 SC.No.443/2015 panch witnesses and also Sri K.P. Sathyanarayana is very relevant. The prosecution not examined those material witnesses. The prosecution examined Prashanth/P.W.1 who has stated that his mother was running Gurupriya Jewellery Works at Malleswaram and he was also visiting the shop after his office hours. He has categorically denied the recovery of golden chain from his shop by Sri K.P. Sathyanarayana, Police Inspector under the Panchanama. Therefore, absolutely there is no evidence to prove the voluntary statement of accused and more particularly seizure of golden chain of Prashanth from the shop of P.W.1. Hence, I hold that the prosecution has failed to prove the seizure Panchanama and thereby failed to connect the robbery to accused Nos.1 to 4.
17. The P.W.8 has stated that he shown the accused Nos.1, 3 and 4 to the P.W.2/Prashanth and Prashanth identified those accused as they have 20 SC.No.443/2015 committed robbery. To support such statement, the prosecution has relied upon the statement of Prashanth at Ex.P.6. In Ex.P.6 it has been shown that the P.W.8 has called the Prashanth to the police station on 11.09.20.14 and shown the accused Nos.1, 3 and 4 and the Prashanth has identified those accused. This statement has been denied by Prashanth himself. Therefore, when the victim himself has denied the identification of accused Nos.1, 3 and 4, the evidence of P.W.8 is not sufficient to prove Ex.P.6.
18. In Ex.P.4 and P.5 it has been shown that Sri K.P. Sathyanarayana called Prashanth to the police station on 5.06.2014 and shown the accused Nos.1, 3 and 4 to Prashanth. In Ex.P.5 it has been shown that Sri K.P. Sathyanarayana called Prashanth to the police station on 06.07.2014 and shown the accused No.2. These two statements are denied by Prashanth. In order to prove 21 SC.No.443/2015 these statements, the prosecution not examined Sri K.P. Sathyanarayana, Police Inspector. Therefore, identification of accused Nos.1 to 4 by P.W.2 victim after the arrest of accused Nos.1 to 4 has not been established.
19. Even if it is presumed that Sri K.P. Sathyanarayana and P.W.8 called Prashanth to the police station and shown the accused Nos.1 to 4, such identification is hit by Section.54A of Cr.P.C. Under Section 54A of Cr.P.C. if the person arrested on a charge of committing an offence is to be shown to any other witness or person for the purpose of investigation, the Police is required to take the permission of the court and no such permission has been taken by P.W.6 and P.W.4. Therefore, even if the statements at Ex.P.4 to 6 is believed to be true to the extent of identification of the accused Nos.1 to 4 by the P.W.2, such identification is not sustainable under law for non-compliance of Section.54A of Cr.P.C.
22 SC.No.443/2015
20. The P.W.8 is the Investigating Officer who has filed the charge sheet. The P.W.2 has stated that the three persons attacked him and they were wearing helmet or the monkey cap. The incident took place in night and therefore, it was not possible for the P.W.2 to identify the culprits properly. The Investigating Officer - P.W.8 not taken any steps to conduct Test Identification Parade as required under Section 9 of Evidence Act after the arrest of accused Nos.1 to 5. Therefore, there is no evidence on record that the accused Nos.1 to 4 have committed the robbery as alleged in the complaint, which is fatal to the case of the prosecution.
21. The P.W.8 not seized any records from Gurupriya Jewellery Works relating to sale or purchase of golden ornaments shown in Ex.P.12 & 13, more particularly the sale or purchase of golden chain of Prashanth. There are many cases registered against the 23 SC.No.443/2015 present accused based on the recovery shown in Ex.P.7. When accused have denied their participation in the alleged crime, when the prosecution is connecting the accused to the robbery based on the recovery, the recovery has to be proved beyond all reasonable doubt. Looking to the various crimes registered against the accused and evidence of P.W.8, in my opinion in the absence of evidence of panch witnesses and the P.W.4, the evidence of P.W.8 is not sufficient to prove that golden chain of Prashanth has been recovered at the instance of accused No.1 or accused No.5. In other words there are no materials on record to show that the accused No.1 to 4 sold the golden chain of Prashanth to accused No.5- Ramdas and in turn the accused No.5 has sold the golden chain in Gurupriya Jewellery Works. Thus, I hold that the prosecution has failed to prove Panchanama and the involvement of the accused in the alleged robbery of 24 SC.No.443/2015 golden chain belonging to P.W.2 on 7.03.2014. Accordingly, I answer this point in the Negative.
22. POINT NO.2 & 3 : There is an allegation against the accused No.5 that he received the golden chain of Prashanth from the accused Nos.1 to 4 knowing that the golden chain was stolen property. Further there is an allegation that the accused No.5 was habitually receiving the stolen properties. In order to prove such allegation again the prosecution relied upon the evidence discussed above. It is concluded that there is no evidence on record to believe that accused Nos.1 to 4 have committed robbery on Prashanth and snatched the golden chain. It is also concluded that there is no evidence on record to prove that accused Nos.1 to 4 have sold the golden chain to accused No.5 and at the instance of accused No.5 the chain has been recovered. The P.W.8 has stated that the accused No.5 was receiving the stolen 25 SC.No.443/2015 properties. Such statement is not supported with any material. Therefore, absolutely no evidence is produced to prove the allegation made against the accused No.5. Thus, I hold that the accused No.5 is not guilty for the offence under Section 411 or under Section 413 of IPC. Accordingly, I answer these points in the Negative.
23. Point No.4- For the above said reasons, I proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused Nos.1 to 4 are acquitted for the offence punishable under Section 397, and accused No.5 is acquitted for the offence punishable under Sections 411 & 413 of IPC.
The accused Nos.1 to 4 are ordered to be set at liberty, if they 26 SC.No.443/2015 are not required in any other cases.
The Interim Custody of golden chain to the P.W.2 - Prashanth is hereby made absolute.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then nd pronounced by me in the open court on this the 22 day of May 2017).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE List of witness examined for prosecution:
PW 1 Pramod PW.2 Prashanth P.W.3 M.R. Chandrashekhar P.W.4 Manjunath B. P.W.5 Balegowda P.W.6 K.P. Sathyanarayana P.W.7 Muralidhar D. P.W.8 Prashanth M.
List of documents marked for prosecution:
Ex.P.1 Statement
Ex.P.2 Complaint
27 SC.No.443/2015
Ex.P.2(a) Signature of the complainant
Ex.P.3 Spot mahazar
Ex.P.3(a) Signature
Ex.P.4 to 6 Statements of Prashanth
Ex.P.7 Mahazar dated 16.04.2014
Ex.P.8 Complaint
Ex.P.9 First information report
Ex.P.10 Mahazar
Ex.P.11 FIR
Ex.P.11(a) Signature of P.W.7
Ex.P.12,13 Photographs
MATERIAL OBJECTS MARKED:-
M.O.1 - Golden chain
List of witnesses examined for defence: - NIL List of documents marked for defence:- NIL (B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
28 SC.No.443/201529 SC.No.443/2015 30 SC.No.443/2015