Bangalore District Court
State Of Karnataka vs Prashanth @ Gunda on 16 October, 2018
IN THE COURT OF LXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-63).
Dated : This the 16th day of October, 2018
:Present:
Sri PARAMESHWARA PRASANNA B., B.A., LL.B.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru City.
SESSIONS CASE NO.797/2017
Complainant :- State of Karnataka
By Subramanyapura Police Station,
Bengaluru.
[Rep. by : Public Prosecutor]
.V/S.
Accused :- 1. Prashanth @ Gunda,
S/o Suresh,
Aged about 21 years,
R/at No.21, 1st Main,
1st Cross, Tyagarajanagar,
Bengaluru.
4. Santhosh @ Kotta, (Split-up)
5. Shashikumar @ Shashi,
S/o Singrappa,
Aged about 32 years,
R/at No.518, 10th Cross,
Adjacent to Bright Way School,
Godanapalya, Bengaluru.
[By : Sri B.A.S., Advocate]
1. Date of commission of : 22.01.2016
offence
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2. Date of report of offence : 22.01.2016
3. Date of arrest of the : A.1 & A.5 were
accused arrested on
22.01.2016
4. Name of the complainant : Sri Manjunatha S.,
PSI, Subramanyapura
Police Station.
5. Date of commencement : 06.06.2018
of trial
6. Date of closing of : 11.10.2018
prosecution evidence
7. Offences complained of : U/Ss.399 & 402 of IPC.
8. Opinion of the Judge : A.1 & 5 are acquitted
U/S.235(1) of Cr.P.C.
(PARAMESHWARA PRASANNA B.),
LXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This case arise out of charge sheet submitted by Subramanyapura Police Station, Bengaluru, against accused Nos.1 to 5 in Crime No.55/2016 for the alleged offences punishable under Sections 399 and 402 of IPC.
2. The case of the prosecution in brief, as culled out from the charge sheet is that:-
3
S.C.No.797/2017 On 22.01.2016 night at about 7.00 p.m., when CW.1- Sri S. Manjunatha, PSI of Subramanyapura Police Station, Bengaluru was on patrolling duty within the limits of his Police Station, he received a credible information from an informant that in a vacant site, near Underpass , Shakthi Resort Road, P.P. Layout, Banashankari 5 th Stage, Bengaluru, 5 to 6 persons being equipped with deadly weapons were making preparation to rob/loot lonely passersby. Immediately, CW.1 secured his staff - CW.4 to CW.8 and panchas - CW.2 and 3 near Rottimane Daba, Kengeri, Bengaluru and informed them about the credible information received by him. Thereafter, CW.1 along with his staff and panchas in motorcycles went near the spot at 7.15 p.m., and they got stopped their motorcycles at a considerable distance from the spot by the side of the compound wall of the said vacant site and on secrete observation, they noticed 5 persons at the spot being equipped with deadly weapons and for conformation about the information, CW.1 sent his staff - CW.5 and panchas CW.2 and 3 near to the spot and on confirming 4 S.C.No.797/2017 the information from CW.2, 3 and 5 that the said miscreants were discussing with each other to rob the lonely passersby, CW.1 and his staffs surrounded the gathering and nabbed accused Nos.1 to 5 and on enquiry, the accused Nos.1 to 5 revealed their identity and addresses. Thereafter, by drawing mahazar at the spot from 7.40 p.m., to 9.00 p.m., CW.1 seized one knife one iron rod, two wooden clubs and one chilly powder sachet and thereafter, CW.1 by securing Hoysala vehicle to the spot returned to the Police Station along with accused Nos.1 to 5 and seized articles and submitted the report regarding the incident to SHO- CW.9 and on receipt of the report, FIR came to be registered in Crime No.55/2016 against the accused Nos.1 to 5 for the alleged offences punishable under Sections 399 and 402 of IPC. According to the prosecution, on receipt of report, CW.9 arrested accused Nos.1 to 5 and subjected the seized articles to P.F.No.17/2016 and he recorded statement of witnesses and after completion of investigation, CW.9 filed the charge sheet against 5 S.C.No.797/2017 accused Nos.1 to 5 for the offences punishable under Sections 399 and 402 of IPC before the learned II ACMM, Bengaluru.
3. On receipt of charge sheet, the learned II ACMM, Bengaluru, took cognizance of the offences against accused Nos.1 to 5 and case was originally registered against accused Nos.1 to 5 in C.C.No.1683/2017. Subsequently, since accused Nos.2 and 3 kept absent and could not be secured despite of issuance of NBW, the case against accused Nos.2 and 3 came to be split-up by the learned II ACMM, Bengaluru as per the order dated 24.04.2017. Since the offences alleged against the accused Nos.1, 4 and 5 are exclusively triable by the Court of Sessions, the learned II ACMM, Bengaluru, as per the order dated 24.04.2017 committed the case against accused Nos.1, 4 and 5 to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, case was registered against accused Nos.1, 4 and 5 in 6 S.C.No.797/2017 S.C.No.797/2017 and the same was made over to this Court for disposal in accordance with law.
4. That after admitting of the case, the accused Nos.1 and 5 were secured and as the accused No.4 could not be secured despite of issuance of NBW, the case against accused No.4 came to be split-up as per the order of this Court dated 24.04.2018. Thereafter, on hearing the prosecution as well as the learned counsel for accused Nos.1 and 5 under Section 227 of Cr.P.C., this Court framed the charge against accused Nos.1 and 5 for the offences punishable under Sections 399 and 402 of IPC. When the charge was read over and explained to accused Nos.1 and 5, they pleaded not guilty and claims to be tried and as such, the case was posted for trail.
5. That in order to prove its case, out of nine witnesses cited in the charge sheet, the prosecution got examined only one witnesses i.e., CW.1 as PW.1 and got marked the documents as Ex.P1 and 2(a) and the alleged seized articles as MOs.1 to 5. In this case, CW.5 to 8 7 S.C.No.797/2017 were given up by the prosecution and since CW.2 and 3 were not secured despite of issuance of proclamation, CW.2 and 3 were dropped. Since the concerned Police have not secured CW.4 and 9 despite of taking of repeated coercive steps, in order to render speedy justice, the prayer made on behalf of prosecution for reissuing further coercive steps against CW.4 and CW.9 was rejected and the prosecution evidence was taken as closed. Thereafter, the matter was posted for recoding of the statement of accused Nos.1 and 5 under Section 313 of Cr.P.C. The accused Nos.1 and 5 when examined under Section 313 of Cr.P.C., denied the incriminating circumstances appearing in the evidence against them, but they have not led any defence evidence on their behalf.
6. Heard arguments of both the sides.
7. Under the facts and circumstances of the case, the following points arise for consideration of this Court :-
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S.C.No.797/2017 (1) Firstly : Whether the prosecution proves beyond all reasonable doubt that 22.01.2016 night at about 7.15 p.m., in the vacant site, near Underpass, Shakthi Resort Road, P.P. Layout, Banashankari 5 th Stage, Bengaluru, the accused Nos.1 and 5 along with split-up accused Nos.2 to 4 being equipped with deadly weapons made preparation for committing dacoity and thereby the accused Nos.1 and 5 have committed an offence punishable under Section 399 of IPC?
(2) Secondly : Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, the accused Nos.1 and 5 along with split-up accused Nos.2 to 4 were one of five persons, who had assembled for the purpose of committing dacoity and thereby the accused Nos.1 and 5 have committed an offence punishable under Section 402 of IPC?
(3) What Order?
8. My findings on the above points are as follows :-
Point Nos.1 & 2 : In the negative;
Point No.3 : As per final order,
for the following :-
REASONS
9. Point Nos.1 & 2 :- Since these points are
interconnected with each other, they are taken together for discussion to avoid repetition.
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10. The case of the prosecution in brief is that on 22.01.2016 night at about 7.15 p.m., when accused Nos.1 to 5 being equipped with deadly weapons making preparation for committing dacoity in vacant site, near Underpass, Sakthi Resort Road, P.P. Layout, Banashankari 5th Stage, Bengaluru, CW.1- on credible information about the same, along with his staff CW.4 to 8 and panchas CW.2 and 3 conducted raid and surrounded the gathering and nabbed accused Nos.1 to 5 and on enquiry, the accused Nos.1 to 5 revealed their identity and addresses. Thereafter, by drawing mahazar at the spot from 7.40 p.m., to 9.00 p.m., CW.1 seized one knife one iron rod, two wooden clubs and one chilly powder sachet and thereafter, CW.1 by securing Hoysala vehicle to the spot returned to the Police Station along with accused Nos.1 to 5 and seized articles and submitted the report regarding the incident to SHO- CW.9 and on receipt of the report, FIR came to be registered in Crime No.55/2016 against the accused Nos.1 to 5 for the alleged offences punishable under Sections 399 and 402 of IPC. 10
S.C.No.797/2017
11. That in order to prove the case of the prosecution, out of nine witnesses cited in the charge sheet, the prosecution got examined only one witness i.e., CW.1 as PW.1 and got marked the documents as Ex.P1 and 2(a) and the alleged seized articles as MOs.1 to
5.
12. PW.1 - S. Manjunatha in his evidence reiterated his version sated in Ex.P2 report and deposed that he with the assistance of his staff and panchas conducted raid and nabbed accused Nos.1 to 5 who alleged to have making preparation for committing dacoity. He stated that after nabbing of accused Nos.1 to 5 on personal search of accused Nos.1 to 5 he recovered one iron rod, two wooden clubs and one chilly powder sachet marked as Mos.1 to 5 by drawing Ex.P1 mahazar at the spot and on return to the Police Station along with accused Nos.1 to 5 and seized articles, he got registered FIR against the accused Nos.1 to 5. During the cross- examination, he stated stated he has not sent his staff for confirming of the information immediately after receipt of 11 S.C.No.797/2017 credible information regarding the incident. He stated that he has not issued notice to panchas prior to the alleged raid. According to PW1, prior to raid he sent CW.5 and panchas - CW.2 and 3 near to the spot for confirming the information and according to him the aforesaid panchas and CW.5 by overhearing the conversation of the accused got confirmed the information, but the witness who alleged to have overheard the conversation of accused, has not been examined.
13. It is very pertinent to note that in this case, the crucial and material witnesses to the prosecution i.e., CW.2 and CW.3 who are the alleged independent witnesses to the alleged raid and recovery and CW.9 who is the I.O., are not examined by the prosecution despite of sufficient of opportunity. Hence, adverse inference is drawn against the prosecution under Section 114 of Indian Evidence Act for non-examination of the aforesaid crucial and material witnesses. In this case, since CW.9 has not been examined, the material document of the 12 S.C.No.797/2017 prosecution i.e., FIR, itself has not been got marked by the prosecution. Since, CW.2 and CW.3 who are the alleged independent pancha witnesses to Ex.P1 - mahazar, have not been examined by the prosecution, the drawing of Ex.P1 - mahazar and alleged recovery of Mos.1 to 5, itself has not been proved by the prosecution. Even though, PW.1 deposed before the Court regarding the alleged raid and recovery, as his evidence is not corroborated by the independent pancha witnesses, his evidence does not inspire confidence of this Court.
14. In the case of Agar v/s State of Rajasthan, reported in 2003 Criminal Law Journal 1997, it was held that "to constitute an offence under Section 399 of IPC some act amounting to preparation for committing dacoity must be proved". But in the present case, on looking into evidence of PW.1, the prosecution has not proved any act amounting to preparation for committing dacoity. Further, in the case of Joseph vs. State of Kerala, reported in 1993 SCW 2900, it was held that 'the prosecution 13 S.C.No.797/2017 must show that there were persons who had conceived design of committing dacoity to attract Sections 399 and 402 of IPC.' The Hon'ble Apex Court in the case of Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, it was held that:
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality- Decision of Patna High Court- Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises, which was quite close to the market at 1. a.m., and that some of them were armed with guns, some had cartridges and others ran away - held that, conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m., did not by itself prove that they had assembled making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated Decision of Patna High Court, Reversed."
15. The Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
"Criminal Procedure Code, 1973 - Section 374(2) - Appeal against Judgment of conviction 14 S.C.No.797/2017 and order of sentence - Re-appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery - The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, The credibility of the investigation is doubtful as PW.3 having registered the crime, has himself investigated the case."
Further held that, "In view of the material contradictions in the evidence of PWs.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt."
16. Thus it is clear from the above precedents that to sustain conviction under Sections 399 and 402 of IPC, the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that the 15 S.C.No.797/2017 persons assembled conceived any such designs for commission of dacoity and in fact, they intended to achieve the object for which they had assembled. But in this case, there is no reliable and credible evidence to show that accused Nos.1 and 5 along with other accused were making preparation to commit dacoity. In view of the facts and circumstances of the case and the precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused Nos.1 and 5 beyond all reasonable doubt and as such, accused Nos.1 and 5 are entitled for acquittal on benefit of doubt. Hence, point Nos.1 and 2 are answered in the negative.
17. Point No.3 :- In view of the reasons discussed above, I proceed to pass the following:-
ORDER Acting under Section 235 (1) of Cr.P.C, accused Nos.1 and 5 are acquitted in respect of the offences punishable under Sections 399 and 402 of the Indian Penal Code.16
S.C.No.797/2017 The articles marked as MOs.1 to 5 shall be preserved for the trial of split-up accused Nos.2 to 4.
The earlier personal bond and surety bond of the accused Nos.1 and 5 shall be continued for a period of six months from today as a compliance of Section 437(A) of Cr.P.C. (Dictated to the Judgment Writer, transcribed and computerized by him, transcript thereof corrected and then pronounced by me in the open Court this the 16 th day of October, 2018.) (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
ANN EXURE List of witnesses examined on behalf of prosecution :-
PW.1 : Sri S. Manjunatha.
List of exhibits marked on behalf of prosecution :-
Ex.P1 : Mahazar,
Ex.P1(a) : Signature of PW.1,
Ex.P2 : Report,
Ex.P2(a) : Signature of PW.1.
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List of material objects marked on behalf of prosecution :-
MO.1 : Knife, MO.2 : Iron Rod,
Mos.3 & 4 : Wooden Clubs (2 in numbers), MO.5 : One chilly powder packet.
List of witnesses examined on behalf of defence :-
NIL List of exhibits marked on behalf of defence :-
NIL List of material objects marked on behalf of defence :-
NIL (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
*HRN/-