Bangalore District Court
State By vs Rajesh Kumar @ Rajesh @ Raji on 7 October, 2022
KABC010075722017
IN THE COURT OF LXVII ADDL CITY CIVIL AND
SESSIONS JUDGE; BENGALURU CITY (CCH.No.68)
PRESENT
SRI.KASHIM CHURIKHAN.
B.A., LL.M.
LXVII ADDL CITY CIVIL & SESSIONS JUDGE,
BENGALURU.
Dated this the 7th day of October 2022.
S.C.No.390/2017
COMPLAINANT: State by
Magadi Road Police,
Bengaluru.
.Vs.
ACCUSED : 1. Rajesh Kumar @ Rajesh @ Raji,
S/o.Mahesh Kumar.
2. Kiran @ Liver,
S/o.Late Vaikuntaiah.
.....(Split-up)
3. Louis J. @ Kariya,
S/o.John Boase,
24 years,
R/at.No.1011,
1st Block, 1st Floor,
Janapriya Apartments,
Sunkadakatte Main Road,
Bengaluru.
S.C.No.390/2017
2
4. G.Raju,
S/o.Gopala.
(The case against accused Nos.1
and 4 was ended in acquittal in
S.C.No.1351/2013 vide judgment,
dated:7.06.2018)
JUDGMENT
This is split-up charge sheet filed by the Police Inspector of Magadi Road Police Station, Bengaluru against the accused No.3 for the offence punishable under Section 397 of IPC.
2. The brief facts of prosecution case are as under:
On 3.08.2013 at about 9-20 p.m., while C.W.1- Smt.D.V.Sujatha was in Sri Vishnu Medical Stores, situated at No.367, 65th Cross, Rajajinagar 5th Block, within the limits of Magadi Road Police Station, Bengaluru, the accused came in an autorickshaw bearing No.KA-02-B-1548, the accused No.1 holding chopper and entered the medical stores and accused Nos.2 and 3 have closed the shutter from the outside and the accused No.1 on the point of chopper, extracted and robbed four gold bangles, two rows mangalya chain and five rings in all worth Rs.2,20,000/- and mobile phone and cash of Rs.4,600/- and fled away from the spot.
3. The learned Magistrate after complying with the provisions under Section 207 Cr.P.C., has committed the case against the accused No.3 under Section 209 of S.C.No.390/2017 3 Cr.P.C., to the Court of Prl. City Civil & Sessions Judge, Bangalore. Thereafter, the case is made over to this court for trial in accordance with law.
4. The records in mother case bearing S.C.No.1351/2013 are received.
5. On securing the presence of accused No.3, my learned predecessor has framed the charge against him for the offence punishable under Section 397 of IPC. The accused No.3 has pleaded not guilty and claims to be tried. The prosecution in proof of its case examined P.Ws.1 to 4 and got marked the documents Exs.P.1 to 11 and M.Os.1 to 5. Thereafter, the statement of accused No.3 under Section 313 of Cr.P.C., was recorded. The accused No.3 has denied the incriminating evidence stated against him and has not chosen to adduce defense evidence.
6. Heard.
7. The points raised for determination are as under:
1. Whether the prosecution proves beyond reasonable doubt that on 3.08.2013 at about 9-20 p.m., while C.W.1 was in her medical stores at No.367, 65th Cross, Rajajinagar 5th Block, within the limits of Magadi Road Police Station, Bengaluru, the accused No.3 along with other accused came in an autorickshaw bearing No.KA-02-B-1548 and the accused No.1 holding chopper, has entered the medical shop and accused Nos.2 and 3 closed the shutter from S.C.No.390/2017 4 outside and the accused No.1 on the point of chopper, has robbed four gold bangles, two rows mangalya chain and five rings, in all worth of Rs.2,20,000/-
and mobile phone and cash of Rs.4,600/- and thereby, committed an offence punishable under Section 397 of IPC ?
2. What Order ?
8. My findings on the above points are as under :
POINT No.1 - Negative, POINT No.2 - As per final order, for the following :
REASONS
9. POINT No.1 : In order to prove its case, the prosecution has examined the first informant Smt.Sujatha as P.W.1. She has deposed before the court that she is running a medical shop under the name and style 'Vishnu Medical and General Stores' at Rajajinagar, Bengaluru. The business timing is from 10- 00 a.m., to 2-000 p.m., and in the evening 5.30 p.m., to 9-00 p.m. She has further deposed that on 3.08.2013 at about 9-20 p.m., while she was in the shop, somebody entered the shop and threatened her with knife and demanded to remove the valuable jewels and money. The said person has taken mangalya chain, four gold bangles and rings. They have also taken cash from the counter. She came outside and her son arrived to the spot. The Inspector of Magadi Road Police Station, Bengaluru, who was returning after duty, saw S.C.No.390/2017 5 the mob in front of the medical store and came to the spot and enquired. She has lodged the report to the police. The police came to the spot and drawn the mahazar as per Ex.P.2. The accused were identified in the Police Station. She has identified the jewels depicted in the photograph. The photograph of the jewels is marked at M.O.1 and the knife is also marked as M.O.2. It is also deposed that the police have recorded her further statement regarding identification of the accused.
During the cross examination by the learned counsel for accused No.3, she has stated that she does not remember on the day of incident whether the accused No.3 was present and came inside the shop. She has further stated that she is not able to say that as the accused No.3 has not come inside the shop. She has admitted that the accused No.3 has not snatched her ornaments, valuables, cash, mobile or other goods. She does not remember the contents of Exs.P.1 and 2. She does not remember where she put signature on Ex.P.2- Mahazar. She has stated that the police have not conducted Test Identification Parade. She has not mentioned the names of culprits in Ex.P.1.
10. It is mentioned here that from the evidence of P.W.1, it reveals that the Test Identification Parade as per Section 9 of Indian Evidence Act has not been done so as to specifically identified the accused. The Taluk S.C.No.390/2017 6 Executive Magistrate conducting the Test Identification Parade is not forthcoming as per the procedure.
11. P.W.2-Sri.Sridhar Poojar, Police Inspector has stated that on the report to the police, he has registered the case. The report to the police is marked at Ex.P.1 and sent FIR to the court. The FIR is marked at Ex.P.6 in original S.C.No.1351/2013. He visited the spot and conducted the mahazar as per Ex.P.2, marked in original S.C. He has recorded further statement of P.W.1, marked at Ex.P.4 in the original S.C. His staff have produced the accused No.4 before him with report Ex.P.7 marked in original S.C. He has seized the knife, autorickshaw, two gold bangles under mahazar. He has submitted P.F., marked at Ex.P.8 in original S.C. C.W.16 has produced the accused Nos.1 to 3 before him with report Ex.P.9 marked in original S.C. He has conducted the formalities of arrest and produced before the court, took police custody and on the statement of accused, seized the weapons under mahazar Ex.P.10 marked in original S.C. He has identified M.Os.2 to 5 marked in original S.C. He has submitted P.F., as per Ex.P.11. He has completed the investigation and laid the charge sheet.
During the cross examination by the learned counsel for accused No.3, he has stated that there is n o mentioned about the bangles, mangalya and mobile in S.C.No.390/2017 7 Ex.P.1. He has denied that he has not seized any of the articles under mahazar in the presence of panchas.
12. P.W.3-Sri.Mahaveer, Mahazar witness has deposed that the police sought for help and he has witnessed the mahazar and attested the mahazar on 3.08.2013. He saw the materials scattered in the shop.
In the cross examination, the timings of the medical shop and other aspects were elicited. It is also admitted that there are neighbouring shops and movement of people. Therefore, the presence of customers and neighbouring people and they intermeddling and intervening to help the P.W.1 or witnessing the circumstances immediately after the incident is not forthcoming so as to corroborate the testimony of P.W.1. In the absence of such authenticated testimony of independent witnesses as contemplated under Section 100(4) of Cr.P.C., it is difficult to hold the guilt of the accused beyond reasonable doubt.
13. P.W.4-Sri.Vinod Raj, Police Inspector has stated that on 6.08.2013, the Investigating Officer had deputed him and C.W.12 and 14 to trace out the auto used in the commission of offence. They have traced the autorickshaw with accused No.4 and produced before the Investigating Officer with report Ex.P.7. On 8.08.2013, he and C.Ws.9 to 15 have apprehended the S.C.No.390/2017 8 accused Nos.1 to 3 and produced them before the Investigating Officer with report Ex.P.9.
During the cross examination by the learned counsel for accused No.3, they have not at all apprehended the accused and produced them before the Investigating Officer.
14. On perusal of the materials placed on record, it reveals that P.W.1 could not able to say that whether the present accused No.3 was involved in the commission of alleged offence or not. She has specifically stated that the accused No.3 has not snatched any of the articles from her or her shop. Therefore, her evidence is not helpful to the prosecution to prove its case against the accused No.3 that the accused No.3 had involved in the commission of alleged offence.
15. P.W.3 is panch witness. In his evidence, nothing has to be brought before the court regarding the involvement of the accused No.3 in the commission of alleged offence.
16. P.Ws.2 and 4 are police witnesses. Their evidence is formal in nature regarding discharging their official duties.
Without cogent and corroborative evidence of independent witnesses, the evidence of P.Ws.1 to 4 is S.C.No.390/2017 9 not sufficient to hold the accused No.3 guilty for the alleged offence. The prosecution utterly fails to prove the guilt of the accused No.3 beyond all reasonable doubt. Hence, I answer the Point No.1 in the Negative.
17. POINT No.2 : In view of my finding on Point No.1 as above, I proceed to pass the following :
ORDER Acting under Section 235(1) of Cr.P.C., accused No.3 is acquitted for the alleged offence punishable under Section 397 of IPC.
The bail bond and surety bond of the accused No.3 stand cancelled.
M.Os.1 to 5 shall be retained till disposal of the case registered against the split-up accused No.2. (Dictated to the Judgment-writer on computer, corrected, signed and then pronounced by me in the open court on this the 7th day of October 2022) (KASHIM CHURIKHAN) LXVII ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.
ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION :
P.W.1 Sujatha
P.W.2 Sridhar Poojar
P.W.3 Mahaveer
P.W.4 Vinod Raj
S.C.No.390/2017
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2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION IN MOTHER CASE :
Ex.P.1 Report of P.W.1
Ex.P.1(a) Signature of P.W.1
Ex.P.1(b) Signature of P.W.2
Ex.P.2 Mahazar
Ex.P.2(a) Signature of P.W.1
Ex.P.2(b) Signature of P.W.3
Ex.P.2(c) Signature of P.W.2
Ex.P.3 Photographs of Jewels
Ex.P.4 Further Statement of P.W.1
Ex.P.4(a) Signature
Ex.P.4(b) Signature of P.W.2
Ex.P.5 Seizure Mahazar
Ex.P.5(a) Signature
Ex.P.5(b) Signature of P.W.2
Ex.P.6 F.I.R.
Ex.P.6(a) Signature of P.W.2
Ex.P.7 Report of C.W.16
Ex.P.7(a) Signature of P.W.2
Ex.P.7(b) Signature of C.W.16/P.W.4
Ex.P.8 Property Form
Ex.P.8(a) Signature of P.W.2
Ex.P.9 Report of C.W.16/P.W.4
Ex.P.9(a) Signature of P.W.2
Ex.P.9(b) Signature of C.W.16/P.W.4
Ex.P.10 Mahazar
Ex.P.10(a) Signature of P.W.2
Ex.P.11 Property Form
Ex.P.11(a) Signature of P.W.2
3. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION :
M.O.1 Photo
M.O.2 Knife
M.O.3 Chopper
M.O.4 Small Chopper
M.O.5 Jewelry Empty Box
S.C.No.390/2017
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4. LIST OF WITNESSES EXAMINED & DOCUMENTS EXHIBITED FOR ACCUSED :
- NIL -
(KASHIM CHURIKHAN) LXVII ADDL CITY CIVIL & SESSIONS JUDGE, BENGALURU.