Bangalore District Court
State By vs In: A1. Lakshmikantha on 25 February, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 25 th day of February, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.811/2013 c/w SC.No.417/2020
COMPLAINANT : State by:
Jnanabharathi Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED in: A1. Lakshmikantha
SC.No.811/2013 @ Vinay @ Gunda,
S/o Ramakrishnappa,
Aged about 29 years,
R/at No.32,
Near Yeshwanthapura Railway
Station,
Muneshwaranagara, Bengaluru.
(By Sri.M.Gangadhara Shetty,
Advocate.)
ACCUSED in:
SC.417/2020 A2. Babu @ Choodi Babu,
S/o Ameer Jan,
Aged about 30 years,
R/at TB Layout,
Nagamangala Town,
Mandya District.
(By Sri.M.Gangadhara Shetty,
Advocate.)
DATE OF:
2 S.C.No:811/2013 &
S.C.No.417/2020
Occurrence of offence : 19.11.2012
Commencement of trial : 05.08.2014
Closing of trial : 27.11.2020
Name of the complainant: Smt.Nagashree.
Offence alleged : Under Sections 392 and
413 of IPC.
Opinion of the judge : Charge leveled against the
accused are not proved.
Sentence or order : Acquittal.
COMMON JUDGMENT
Since both the cases arise out of same crime and
common evidence is recorded, they are taken up together
for judgment.
2. Jnanabharathi police have filed the present charge
sheet against the accused in Crime No.443/2012 for the
offences punishable under Sections 392 and 413 of IPC.
3. The brief facts of the prosecution case are that;
a) On 19.11.2012 at about 12:30 p.m., when CW-1
Smt.Nagashree was returning from Hanumanthanagar
from her parents' house and reached near Site No.339
within the jurisdiction of Jnanabharathi police station, A-1
3 S.C.No:811/2013 &
S.C.No.417/2020
and A-2 came from her back side on a black colour Bajaj
Pulsar motorcycle bearing registration No.KA-02 HA-5526
and snatched half cut gold mangalya chain with one plain
chain from her neck and escaped from the spot on the
said vehicle.
b) Both the accused have sold and pledged the
golden ornaments they have stolen within the limits of
different police stations to the jewelry shops, Muthoot
Finance and Mannapuram Finance in their names.
Accordingly, the complaint was filed.
4. A-1 and A-2 were produced under remand warrant
and were in the judicial custody. Since, the case was
exclusively triable by the Court of Sessions, the trial Court
committed the case to the Court of Principal City Civil and
Sessions Judge, Bengaluru by directing the concerned jail
authority to produce A-1 and A-2 before the Court of
Sessions whenever summoned.
5. On committal of the case, it was allotted to this
Court for disposal in accordance with law. Thereafter, A-1
and A-2 were enlarged on bail by this Court.
4 S.C.No:811/2013 &
S.C.No.417/2020
6. Heard before charge. Charges framed and plea of
A-1 and A-2 was recorded for the offences punishable
under Sections 392, 411 and 413 read with Section 34 of
IPC for which, they pleaded not guilty and claimed to be
tried. Hence, the case was posted for common trial.
7. During the course of trial, since A-2 remained
absent and the process issued against him and his surety
went in vain, vide order dated 21.02.2020, the case was
ordered to be split up against him and registered in
SC.No.417/2020.
8. In support of its case, in the course of trial, the
prosecution in all got examined 13 witnesses i.e. CWs-1, 4,
5, 6, 9, 2, 8,10, 11, 13, 18, 7 and 20 respectively as PWs-1
to 13. Got exhibited 25 documents at Ex.P-1 to 25. Got
marked 5 material objects at MOs-1 to 5 and closed its
side.
9. After splitting up of case against A-2, CW-20
Sri.Balaraj the then PI and the IO of the case alone was
cross examined and the evidence of all the other witnesses
including the the chief evidence of CW-20 was recorded
before splitting up the case against A-2. Hence, after
5 S.C.No:811/2013 &
S.C.No.417/2020
securing the presence of A-2, the split up case against him
in SC.No.417/2020 was ordered to be clubbed with
SC.No.811/2013 vide order dated 14.09.2021. The counsel
for A-2 adopted the cross examination conducted on behalf
of A-1 to CW-20.
10. Statement of A-1 in SC.No.811/2013 and A-2 in
SC.No.417/2020 was recorded under Section 313 of
Cr.P.C. wherein they have denied the evidence against
them, but have not led any defence evidence.
11. Heard arguments of both the sides on merits of
the case and perused the record.
12. Out of the above said facts and circumstances of
the case, the points that arose for the due consideration of
this Court are;
1. Whether the prosecution proves
beyond all the reasonable doubts that
A-1 in SC.No.811/2013 and A-2
against whom the case is split up and
registered in SC.No.417/2020 with a
common intention of committing
crime, on 19.11.2012 at about 12:30
p.m., when CW-1 Smt.Nagashree was
returning from Hanumanthanagar
from her parents' house and reached
near Site No.339 within the
jurisdiction of Jnanabharathi police
station, A-1 and A-2 came from her
6 S.C.No:811/2013 &
S.C.No.417/2020
back side on a black colour Bajaj
Pulsar motorcycle bearing registration
No.KA-02 HA-5526 and snatched half
cut gold mangalya chain with one
plain chain and thus, both A-1 and A-
2 have committed the offence
punishable under Section 392 read
with Section 34 of IPC?
2. Whether the prosecution further
proves beyond all the reasonable
doubts that A-1 in SC.No.811/2013
and A-2 against whom the case is split
up and registered in SC.No.417/2020
were dishonestly received/retained
certain stolen properties i.e., plain gold
chain and half cut gold mangalya
chain belonging to CW-1 and others
and sold/pledged them at various
jewelry shops, Manapuram Finance,
Muthoot Finance knowing or having
reason to believe that those properties
were stolen properties and thus, both
A-1 and A-2 have committed the
offence punishable under Section 411
read with Section 34 of IPC?
3. Whether the prosecution further
proves beyond all the reasonable
doubts that A-1 in SC.No.811/2013
and A-2 against whom the case is split
up and registered in SC.No.417/2020
were found habitual receivers/dealers
of stolen properties and thus,
committed the offence punishable
under Section 413 read with Section
34 of IPC?
4. What Order?
7 S.C.No:811/2013 &
S.C.No.417/2020
13. The findings of this Court on the above points
are;
1. Points Nos.1 to 3 : In Negative.
2. Point No.4 : As per the final order for the
following reasons.
REASONS
14. POINTS Nos.1 TO 3:- As these points are
interconnected with each other and thus, require commons
discussions, to avoid repetitions and for the sake of
convenience, they are taken together for consideration.
15. Before venturing to the discussion on merits of
the case, let this Court first to go through the relevant
provisions of law for which the charges are framed against
these accused i.e., Sections 392, 411 and 413 read with
Section 34 of IPC which are extracted here below;
"392. Punishment for
Robbery.- Whoever commits robbery
shall be punished with rigorous
imprisonment for a term which may
extend to ten years, and shall also be
liable to fine; and, if the robbery be
committed on the highway between
sunset and sunrise, the imprisonment
may be extended to fourteen years.
8 S.C.No:811/2013 &
S.C.No.417/2020
16. So, let this Court to go through the provision of
Section 390 of IPC which deals with "robbery" and it is
extracted here below;
"390. Robbery.- In all robbery
there is either theft or extortion".
When theft is robbery. - Theft
is "robbery" if, in order to the
committing of the theft, or in
committing the theft, or in carrying
away or attempting to carry away
property obtained by the theft, the
offender, for the end, voluntarily
causes or attempt to cause to any
person death or hurt or wrongful
restraint, or fear or instant death or of
instant hurt, or of instant wrongful
restraint.
When extortion is robbery.-
Extortion is "robbery" if the offender,
at the time of committing the
extortion, is in the presence of the
person put in fear, and commits the
extortion by putting that person in fear
of instant death, or instant hurt, or of
instant wrongful restraint to that
person or to some other person, and,
by so putting in fear, induces the
person so put in fear then and there to
deliver up the thing extorted.
Explanation.- The offender is
said to be present if he is sufficiently
near to put the other person in fear or
instant death, or instant hurt, or
instant wrongful restraint.
9 S.C.No:811/2013 &
S.C.No.417/2020
17. So, the essential ingredients for robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily
causes or attempts to cause to any
person.-
(i) death, or
(ii) hurt, or
(iii) wrongful restrain, or
(iv) fear of instant death, instant
hurt, or instant wrongful restraint and
the above act(s) is/are done -
(1) in order to the commission of
the theft, or
(2) in committing the theft, or
(3) in carrying away or
attempting to carry away any property
obtained by the theft.
(b) Extortion is robbery when,
(i) At the time of committing
extortion the offender is in the
presence of the person put in fear.
(ii) The offender commits
extortion by putting that person in fear
of instant death, hurt, or wrongful
restraint -
(1) to that persons, or
(2) to some other person.
(iii) By so putting such person in
fear, the offender induced the person
10 S.C.No:811/2013 &
S.C.No.417/2020
so put in fear then and there so deliver
the thing extorted.
18. The other offence alleged is the offence under
Section 411 of IPC and it reads;
"411. Dishonestly receiving
stolen property. - Whoever
dishonestly receives or retains any
stolen property, knowing or having
reasons to believe the same to be
stolen property, shall be punished
with imprisonment of either
description for a term which may
extend to three years, or with fine, or
with both".
19. So, the essential ingredients to attract the above
offence are;
(a) A person dishonestly.-
(i) receives, or
(ii) retains, any stole property.
(b) He knows or has reasons to
believe the same to be stolen property.
20. The one more offence alleged is the offence under
Section 413 of IPC and it reads;
"413. Habitually dealing in
stolen property.- Whoever habitually
receives or deals in property which he
knows or has reason to believe to be
stolen property, shall be punished with
imprisonment for life, or with
imprisonment of either description for
11 S.C.No:811/2013 &
S.C.No.417/2020
a term which may extend to one year
and shall also be liable to fine".
21. The next offence alleged is the offence under
Section 34 of IPC which is extracted here below;
"34. Acts done by several
persons in furtherance of common
intention.- When a criminal act is
done by several persons in furtherance
of the common intention of all, each of
such persons is liable for that act
in the same manner as if it were
done by him alone".
22. Keeping in mind the ingredients of the offences
alleged observed above, let this Court to consider the case
of the prosecution and the evidence let in by it to establish
the offences alleged against the accused.
23. As noted above, it is the allegation of the
prosecution that A-1 and A-2 with a common intention
have robbed the half cut gold mangalya chain of CW-1
along with one more plain gold chain from her neck and
they are the habitual dealers of the stolen properties by
selling and pledging such stolen properties including the
half cut gold mangalya chain and other gold plain chain of
CW-1 in many financial institutions and thereby
committed the offences alleged.
12 S.C.No:811/2013 &
S.C.No.417/2020
24. To prove its case, as observed above, the
prosecution has got examined totally 13 witnesses; got
exhibited 25 documents and got marked 5 material objects.
25. The prosecution case begins with the
complainant Smt.Nagashree lodging the complaint and
ends with CW-20 the then PI Sri.Balaraju on completion of
investigation, filing the charge sheet against both the
accused.
26. The case of the prosecution in chronological order
is that;
a) On receipt of the complaint at Ex.P-1, they
registered the case; prepared the FIR; submitted the same
to the jurisdictional Magistrate;
b) Conducted the spot mahazar at Ex.P-2;
c) Secured both the accused; recovered the properties
i.e., a gold mangalya chain, a motor cycle appearing in
Ex.P-21 and 22, two number plates at MOs-3 and 4 and a
cutter/knife at MO-5 vide Ex.P-5;
d) On the voluntary statements of both the accused,
recovered properties vide Ex.P-8 and 14 amongst which,
the plain gold chain of this case is also one (i.e., the gold
13 S.C.No:811/2013 &
S.C.No.417/2020
chain at Sl.No.7 at Ex.P-8) and the half cut gold mangalya
chain of this case (i.e., the gold mangalya chain at Sl.No.3
in Ex.P-14);
e) Got identified the plain gold chain and half cut gold
mangalya chain from CW-1 i.e., the gold plain and half cut
gold mangalya chains appearing in the photo at Ex.P-3 and
the motor cycle appearing at Ex.P-21 and 22;
f) Got conducted the identification parade through
CW-19 the then jurisdictional Executive Magistrate vide
Ex.P-25 (the annexture i.e., questionnaire at Ex.P-11 and
the proceedings at Ex.P-12);
g) In compliance of the order of the concerned
Magistrate, released the plain gold chain and gold
mangalya chain to CW-1 on getting executed the necessary
indemnity bond at Ex.P-4 and on completion of the
investigation, filed the charge sheet.
27. Let this Court to go through the evidence on
record in support of the prosecution case/allegations noted
above. It is in the complaint at Ex.P-1 that;
a) On 19.11.2012, around 12:30 p.m., the
complainant alone was returning to her home in front of
14 S.C.No:811/2013 &
S.C.No.417/2020
site No.339 on 4th and 5th Cross, 4th Main, D Group
Employees' Extension, Nagarabhavi.
b) By that time, a motor cycle rider came from the
back side and all of a sudden, tried to snatch gold chains
from her neck.
c) Since, she hold both the chains, half gold
mangalya chain cut and remained in her hand.
d) The said motor cycle rider snatched the remaining
half cut gold mangalya chain and another plain gold chain
from her neck and escaped from the spot.
e) The said motor cycle rider was of normally built,
worn checks shirt and blue colour jeans pant.
f) Since, the complainant was under shock, she could
not identify the motor cycle and its registration number.
However, as she saw the said rider, she can identify him.
g) The half cut mangalya chain snatched may
weighing around 8 grams and the plain gold chain may
weighing around 20 grams and the total worth of both the
chains may around Rs.70,000/- and accordingly, sought
for action against the said rider.
15 S.C.No:811/2013 &
S.C.No.417/2020
28. There is an endorsement in Ex.P-1 by the then
SHO received the complaint i.e., CW-17 the then ASI
Sri.Bhyralingaiah that it was received on 19.11.2012 at
1:15 p.m., and the case was registered in Cr.No.443/2012
for the offence under Section 392 of IPC.
29. The FIR on record is in support of the above
endorsement at Ex.P-2, but since CW-17 is not examined,
the FIR is not exhibited.
30. It is on prosecution papers that after registering
the case and preparing the FIR, it was sent to the
jurisdictional Magistrate and thereafter on the same day,
CW-20 who received the case file for further investigation,
visited the spot; CW-1 showed the spot to him; he
conducted the spot mahazar at Ex.P-2 in the presence of
the panchas CW-2 Sri.Raghavendra and CW-3 Sri.Girish
Kumar in between 2:00 p.m. and 3:00 p.m.
31. CW-3 is not examined. CW-2 is examined as PW-
6 and he is none other than the husband of CW-1. He has
stated that the police have conducted the mahazar in
respect of the chain snatch case pertains to his wife at D
16 S.C.No:811/2013 &
S.C.No.417/2020
Group Employees' Extension, Nagarabhavi; he identified
the spot mahazar at Ex.P-2 and his signature at Ex.P-2(b).
32. The only fact elicited in his cross examination for
the accused is that he came to know about the incident at
1:00 p.m. and there is no further cross examination to CW-
3 on behalf of the accused. Hence, it can be safely
concluded that the fact of conducting the spot mahazar at
Ex.P-2 is not disputed by the other side.
33. It is also in the police papers that on completion
of the spot mahazar proceedings, the further investigation
of the case was done on 10.12.2012 when, CWs-13 to 16
i.e., the then ASI Sri.Shivanna, the then HC-4160
Sri.Shivabasappa, the then PCs Sri.Chandrappa and
Sri.Vijayakumar respectively who were deputed in search
of the accused and properties, brought the accused along
with the properties and produced before CW-20 with the
report of CW-13 at Ex.P-17.
34. It is in Ex.P-17 that;
a) All the above patrolled within the limits of their
station i.e., Mallathalli, Papareddipalya; contacted their
17 S.C.No:811/2013 &
S.C.No.417/2020
informants and asked them to collect the information with
regard to the accused and the properties.
b) When they were near Papareddypalya Circle
around 8:00 a.m., the informants called them over phone
and told that two persons moving around over a Bajaj
Pulsar motor cycle near the jewelry shops/pawn brokers'
shops suspiciously.
c) Hence, they rushed to the said spot and on the
informants showing the suspects at a distance, they
covered the suspects and enquired, but the suspects did
not give proper answers in respect of their presence in the
said spot and not furnished the vehicular documents of the
vehicle in their possession.
d) Accordingly, they checked the vehicle and found
two number plates of the same number and a knife in the
motor cycle tank cover.
e) They also found two layers gold mangalya chain in
the possession of one of the suspects when the suspects
were subject to the body search.
f) When enquired, the suspect in possession of the
said gold chain said that it belongs to him and his name is
18 S.C.No:811/2013 &
S.C.No.417/2020
Lakshmikantha @ Vinay @ Gunda S/o Ramakrishna, 29
years, R/o No.32, Near Yeshwanthapura Railway Station,
Muneshwaranagar, Yeshwanthapura, Bengaluru and
another suspect is Babu @ Chudibabu S/o Amir Jan, 35
years, R/o - (no number), TB Extension, Nagamangala
Town, Mandya District.
g) On suspicion that the suspects might have robbed
the said chain somewhere and came to sell the same to
jewelry shop, they brought the suspects with the above
properties and the motor cycle as well as produced them
before CW-20 at 9:00 a.m.
35. Amongst CWs-13 to 16, CW-13 is examined as
PW-10. The evidence of CW-13 is in corroboration with the
recitals at Ex.P-17 in respect of production of both the
accused and the properties before CW-20 with his report at
Ex.P-17 and it is supported by the oral evidence of CW-20.
36. It is also in the prosecution papers that in
continuation of the investigation, CW-20 secured the
presence of the panchas CW-4 Smt.Chennamma and CW-5
Sri.Krishnaiah; by conducting the mahazar at Ex.P-5 in
their presence in between 10:00 a.m. and 11:00 a.m., in
19 S.C.No:811/2013 &
S.C.No.417/2020
the station, he seized the properties from both the accused
i.e., the motor cycle appearing at Ex.P-21 and 22, the gold
mangalya chain (i.e., MO-1 in the connected case i.e.,
SC.No.853/2013), two number plates at MOs-3 and 4, a
cutter/knife at MO-5 in the possession of both the
accused.
37. Both the panchas i.e., CWs-4 and 5 who are
respectively examined as PWs-2 and 3 though admitted
their signatures at Ex.P-5, they completely turned hostile
with regard to the seizure procedures; identification of the
properties and the accused as well as the recitals at Ex.P-5
and thus, there is no supportive evidence to the oral
testimony of CW-20 in that regard and thereby to the case
of the prosecution.
38. It is the case of the prosecution that in the course
of further investigation, CW-20 recorded the voluntary
statements of both the accused; produced them before the
jurisdictional Magistrate and took them to the police
custody and on 11.12.2012, he deputed the then PSI CW-
18 Sri.Imthiyaz Patel for recovery of the properties on the
voluntary statements of the accused.
20 S.C.No:811/2013 &
S.C.No.417/2020
a) CW-18 visited Hassan and as led by both the
accused, in the shop of CW-9 Sri.Srikantha by conducting
the mahazar at Ex.P-8 in between 10:30 a.m. and 12:30
p.m., 9 gold ornaments were seized from the receiver of the
properties ie., Sri.Srikanth CW-9 in the presence of
panchas CW-6 Sri.Pavan who is the younger brother of
CW-9 and CW-7 Sri.Nikhil as well as the mediator CW-8
Sri.Manju through whom the accused sold the gold chains
they snatched to CW-9 and item No.7 described at Ex.P-8
is the gold mangalya chain of CW-1.
b) On 12.12.2012 as led by A-1 and A-2, CW-18
along with the police staffs visited Muthoot Finance at
Goragunte Palya and seized 3 gold chains along with the
related 3 receipts (i.e, the receipts in proof of pledging the
said 3 gold chains) from CW-10 Sri.Jagannatha Reddy the
then Manger-in-charge of the said Finance by conducting
the seizure mahazar in the presence of panchas CW-11
Sri.Chandrashekhar and CW-12 Sri.Raghavendra in
between 2:00 p.m. and 3:30 p.m. vide Ex.P-14 and the
item No.3 described at Ex.P-14 is the plain gold chain of
CW-1.
21 S.C.No:811/2013 &
S.C.No.417/2020
39. All the witnesses to Ex.P-8 i.e., CWs-6 to 9 are
examined as PWs-4, 12, 7 and 5 respectively and they
completely turned hostile to the prosecution.
40. Similarly in respect of Ex.P-14, though CW-12 is
not examined, CWs-10 and 11 are respectively examined
as PWs-8 and 9, but though CW-10 identified his signature
in the seizer mahazar at Ex.P-14, deposed that the police
seized the gold ornaments in their Finance, he has stated
that they seized 3 separate small bags having gold
ornaments from their Finance, but he cannot identify those
gold ornaments.
41. CW-11 also though identified his signature at
Ex.P-14 and stated that the police took his signature to
Ex.P-14 in their Finance and it is written in Ex.P-14 that
the stolen properties were seized, he has not stated
anything in respect of the identification of either the
accused or the properties and thus, both CWs-10 and 11
also turned hostile to the prosecution.
42. Therefore, in view of all CWs-6 to 11 turning
hostile to the prosecution, there is no supportive evidence
on record to the oral evidence of CW-20 in respect of the
22 S.C.No:811/2013 &
S.C.No.417/2020
case of the prosecution about the seizer of MOs-1 and 2
vide Ex.P-8 and 14. That apart, the IO who seized the
properties vide Ex.P-8 and 14 i.e., CW-18 is also not
subjected to the cross examination as he was bound over
for further chief and remained absent subsequently.
43. It is also in the prosecution papers that on the
same day i.e., 12.12.2012, CW-20 secured CW-1; got
identified the motor cycle appearing at Ex.P-21 and 22 as
well as the plain gold chain and half cut gold mangalya
chain i.e., MOs-1 and 2 appearing at Ex.P-3 and recorded
the further statement of CW-1 in that regard.
44. The above prosecution case is supported by the
oral evidence of CWs-1 and 20. But as noted above, as per
Ex.P-1, the plain gold chain snatched was weighing around
20 grams and as per the seizer mahazar at Ex.P-14 and the
related PF at Ex.P-23 as well as the indemnity bond at
Ex.P-4, the weight of the plain gold chain is 15 grams.
45. Even for the sake of arguments the above
difference in the weight is accepted as the weight stated in
the complaint at Ex.P-1 is an approximate weight, then
also, in her cross examination, CW-1 has stated that the
23 S.C.No:811/2013 &
S.C.No.417/2020
said plain chain appearing in the photo at Ex.P-3 which is
identified as Ex.P-3(a) is the mangalya chain which is
contradictory not only to the case of the prosecution but
her own evidence in the chief and the complaint at Ex.P-1.
46. It is the case of the prosecution that in the course
of further investigation, on 18.12.2012, CW-20 made
requisition to the Court seeking directions to the concerned
Tahsildar to conduct the identification parade vide Ex.P-24
and on 14.03.2013, he received the identification parade
report at Ex.P-25.
47. It is in Ex.P-24 that the incident took place in the
day time and the CW-1 has stated that she has clearly
observed the accused and she will identify him if she sees
him again. Hence, requested for direction to the concerned
Tahsildar to conduct identification parade for the
identification of the accused who were in judicial custody
in Central Prison, Parappana Aghrahara and also for the
direction to the Jail Superintendent to allow to conduct the
identification parade.
48. Ex.P-25 though exhibited as the identification
parade report, it is the covering letter of the concerned
24 S.C.No:811/2013 &
S.C.No.417/2020
Tahsildar wherein it is stated that he has submitted the
questionnaire and the proceedings in respect of the
identification parade he did. The said questionnaire and
the proceedings in respect of the identification parade are
on record at Ex.P-11 and 12 respectively and they are
dated 08.03.2013.
49. So, it is clear that, though the accused were
traced and were taken into custody on 10.12.2012; though
CW-1 was secured on 12.12.2012 for identification of
properties; the requisition was made on 18.12.2012
seeking identification parade; the identification parade was
conducted on 08.03.2013 i.e., nearly after 3 months from
the date of securing the accused.
50. Ex.P-11 is the printed format and there are 7
questionnaires i.e., (1) Why the witness came there? (2)
Whether she was present at the time of incident/crime? (3)
How many persons involved in the incident/crime? (4)
Whether she witnessed the incident/crime? (5) Can she
identify the persons standing in the row? (6) Identify
him/them? (7) Give the reason for identification and the
relevant answers for the case recorded in Ex.P-11 are that
25 S.C.No:811/2013 &
S.C.No.417/2020
she is the victim of the crime; the accused was a single
person and he was at Sl.No.3 in the row.
51. The proceedings at Ex.P-12 reflects that the
identification parade was conducted on 08.03.2013 (time is
not mentioned) and CW-1 identified A-1 Lakshmikantha
who was at Sl.No.3 in the row; the names and UTP
numbers of all the 10 persons taken in the identification
parade are noted down.
52. The Executive Magistrate who did the
identification parade i.e., Sri.N.R.Umesh Chandra is cited
as CW-19 in the charge sheet, but he is not examined. On
the other hand, with regard to the identification of the
accused, it is in the chief evidence of CW-1 that she
identified A-1 before the Court specifically showing him
and she has also stated that;
a) After around 5 - 6 months from the date of
incident, the police called her to Parappana Agrahara
Central Prison.
b) Accordingly, she went there. The police made
stand many people and asked her to identify the accused
and she identified the accused who is A-1 before the Court
26 S.C.No:811/2013 &
S.C.No.417/2020
and she identified her signatures in Ex.P-11 and 12
respectively at Ex.P-11(a) and 12(a).
53. But, it is in her cross examination that she
identified A-1 in Jnanabharathi Police Station even before
the identification parade and thereafter, the police asked
her to come to Central Prison which is contrary to the case
of the prosecution as it is the case of the prosecution that
CW-1 was secured in the station only for the purpose of
identification of the properties and she was secured to
identify the accused only during the identification parade
conducted at the Central Prison, Parappana Agrahara,
Bengaluru.
54. That apart, it is also in her cross examination
that on the date of incident, A-1 has worn half helmet and
his face as well as physical features were appearing based
on which she identified A-1. But as noted above, in Ex.P-1
she has only stated that the suspect was normally built
person, worn checks shirt and blue jeans pant. So prima
facie it appears to the mind of a reasonably prudent man
that the above evidence in respect of the fact based on
27 S.C.No:811/2013 &
S.C.No.417/2020
which CW-1 claimed to identify the accused is an
improvement in her evidence.
55. So for the motorcycle involved in the commission
of offence, as per the prosecution case, it is black colour
Bajaj Pulsar motorcycle but it is the evidence of CW-1 that
it was blue colour Bajaj Pulsar motorcycle. Hence, from the
above evidence let in by the prosecution, the prosecution is
of course successful to establish,
a) The date, time and place of the alleged crime;
b) CW-1 lodging the complaint at Ex.P-1 in respect of
the alleged crime;
c) On receipt of complaint, the complainant police
registering the case, preparing the FIR, submitting the FIR
to the jurisdictional Magistrate;
d) In the course of investigation, the IO CW-20
conducting the spot mahazar at Ex.P-2; but has failed to
establish,
(i) The involvement of A-2 in the alleged crime as
nothing on record in respect of the involvement of A-2 in
the alleged crime and his identification;
28 S.C.No:811/2013 &
S.C.No.417/2020
(ii) The seizure of MOs-1 and 2 vide Ex.P-8 and 14 as
apart from the IO CW-20 none other else deposed
supporting the case of the prosecution in respect of Ex.P-8
and 14;
(iii) The identification of motor cycle;
(iv) To let in the corroborative evidence in respect of
securing the presence of the accused and seizure of the
properties from their possession vide Ex.P-5 as apart from
the evidence of CW-13 and 20 the then ASI and the PI/IO,
nobody deposed supporting the prosecution in respect of
Ex.P-5; and
(v) To let in the evidence of CW-19 to prove the
identification parade and the contradiction in the evidence
of CW-1 observed above with regard to the facts on which
she claimed to be identified A-1 and the place where 1 st she
identified A-1 as it is in her cross examination that she
identified A-1 in the police station when she identified the
properties which is contradictory to the case of the
prosecution as observed above which are material facts to
be proved by the prosecution in support of its allegations
against A-1 and A-2 for the offences alleged.
29 S.C.No:811/2013 &
S.C.No.417/2020
56. Hence, from the above observations, it is clear
that the prosecution has failed to establish its allegations
against both the accused beyond all reasonable doubts for
the offences alleged. Accordingly, these points are
answered in negative.
57. POINT No.6:- From the above observations, and
findings on points Nos.1 and 2, this Court proceed to pass
the following order.
ORDER
Acting under Section 235(1) of Cr.P.C., A-1 and A-2 hereby acquitted for the offences punishable under Sections 392, 411 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 if any shall be canceled after lapse of appeal period.
The release of MOs-1 and 2 in favour of CW-1 by getting executed indemnity bond at Ex.P-4 dated 19.01.2013 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 i.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-3 to 5, no order is passed as the disposal order in respect of the above 30 S.C.No:811/2013 & S.C.No.417/2020 properties are passed in the connected case i.e., SC.No.853/2013.
Office is directed to keep the original judgment in SC.No.811/2013 and the copy thereof in SC.No.417/2020.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 25th day of February, 2022).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE PROSECUTION:-
PW.1 Smt.Nagashree
PW.2 Smt.Chennamma
PW.3 Sri.K.Krishnaiah
PW.4 Sri.Pavan
PW.5 Sri.Srikanth
PW.6 Sri.Raghavendra.H.
PW.7 Sri.Manju
PW.8 Sri.Jagannathareddy.A
PW.9 Sri.Chandrashekar.B.J.
PW.10 Sri.Shivanna
PW.11 Sri.Imtihaz Patel
PW.12 Sri.Nikhil
PW.13 Sri.Balaraju
LIST OF WITNESS EXAMINED FOR DEFENCE:-
- None -31 S.C.No:811/2013 &
S.C.No.417/2020 LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:-
Ex.P-1 Complaint Ex.P-1(a) Signature of PW1 Ex.P-2 Spot Mahazar Ex.P-2(a) Signature of PW1 Ex.P-2(b) Signature of PW6 Ex.P-2(c) Signature of PW13 Ex.P-3 Photo Ex.P-3(a) Chain in photo at Ex.P-3 Ex.P-4 Indemnity Bond Ex.P-4(a) Signature of PW1 Ex.P-4(b) Signature of PW13 Ex.P-5 True Copy of Seizure Mahazar dated 10.12.2012 Ex.P-5(a) Signature of PW2 Ex.P-5(b) Signature of PW3 Ex.P-5(c) Signature of PW13 Ex.P-6 Portion of Statement of PW2 Ex.P-7 Portion of Statement of PW3 Ex.P-8 True Copy of Seizure Mahazar dated 11.12.2012 Ex.P-8(a) Signature of PW4 Ex.P-8(b) Signature of PW5 Ex.P-8(c) Signature of PW7 Ex.P-8(d) Signature of PW11 Ex.P-8(e) Signature of PW13 Ex.P-8(f) Signature of PW12 Ex.P-9 Portion of Statement of PW4 Ex.P-10 Portion of Statement of PW5 32 S.C.No:811/2013 & S.C.No.417/2020 Ex.P-11 True Copy of Questionnaire of Identification Parade Ex.P-11(a) Signature of PW1 Ex.P-12 True Copy of Proceedings of Identification Parade Ex.P-12(a) Signature of PW1 Ex.P-13 Portion of Statement of PW7 Ex.P-14 True Copy of Seizure Mahazar dated 12.12.2012 Ex.P-14(a) Signature of PW8 Ex.P-14(b) Signature of PW9 Ex.P-14(c) Signature of PW11 Ex.P-14(d) Signature of PW13 Ex.P-15 Portion of Statement of PW8 Ex.P-16 Portion of Statement of PW9 Ex.P-17 Report of PW10 Ex.P-17(a) Signature of PW10 Ex.P-17(b) Signature of PW13 Ex.P-18 Written order of PW13 to PW11 to conduct Seizure Mahazars Ex.P-19 PF Form No.233/2012 Ex.P-19(a) Signature of PW13 Ex.P-20 PF Form No.231/2012 Ex.P-20(a) Signature of PW13 Ex.P-21 & Two Photos of Bajaj Pulsar Motor Cycle P-22 Ex.P-23 PF Form No.238/2012 Ex.P-23(a) Signature of PW13 33 S.C.No:811/2013 & S.C.No.417/2020 Ex.P-24 Requisition of PW13 seeking direction to the concerned Executive Magistrate to conduct Identification Parade Ex.P-24(a) Signature of PW13 Ex.P-25 Covering letter of the concerned Executive Magistrate in respect of Identification Parade Ex.P-25(a) Signature of PW13 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE :-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:-
MO-1 Half Gold Mangalya Chain
MO-2 Gold Mangalya/plain Chain
MO-3&4 Number Plates (2 in numbers)
MO-5 Cutter/Knife
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:-
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.34 S.C.No:811/2013 &
S.C.No.417/2020 The accused No.1 and his counsel are present.
Perused the record and it is found that in the chief evidence of CW-1, her snatched gold chains were marked as MOs-1 and 2. But, in the chief evidence of CW-13, two number plates and one cutter are marked as MOs-2 and 3.
Therefore, to avoid unnecessary ambiguity, two number plates and one cutter/knife are renumbered as MOs-3 to 5 respectively and accordingly, office is directed to correct the serial numbers of the material objects.
The Order is pronounced in the open Court (vide separate Order).35 S.C.No:811/2013 &
S.C.No.417/2020 ORDER Acting under Section 235(1) of Cr.P.C., A-1 and A-2 hereby acquitted for the offences punishable under Sections 392, 411 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 if any shall be canceled after lapse of appeal period.
The release of MOs-1 and 2 in favour of CW-1 by getting executed indemnity bond at Ex.P-4 dated 19.01.2013 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 i.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-3 to 5, no order is passed as the disposal order in respect of the above properties are passed in the connected case i.e., SC.No.853/2013.
Office is directed to keep the original judgment in SC.No.811/2013 and the copy thereof in SC.No.417/2020.
LXVI Addl.CC & SJ, Bangalore.
36 S.C.No:811/2013 &S.C.No.417/2020 The accused No.2 and his counsel are present.
Perused the record and it is found that during the course of trial in the original SC.No.811/2013, since this accused remained continuously 37 S.C.No:811/2013 & S.C.No.417/2020 absent, the case against him ordered to be split up vide order dated 21.02.2020 passed in the said case and accordingly, this case is registered.
Thereafter, on securing the presence of this accused, vide order dated 14.09.2021, this case is clubbed with the above original SC.No.811/2013.
The record in the above original SC reveals that after splitting up this case, the only witness examined is CW-20 i.e., the investigating officer of the case who did the material investigation of the case on hand and filed the charge sheet i.e., he was subjected to cross examination and his chief evidence was concluded before splitting up the case against this accused.
But, due to oversight, no opportunity was given to this accused to cross examine CW- 20 and his statement under Section 313 of Cr.P.C. is not recorded and the case was posted for judgment with the connected cases.
Therefore, enquired the accused No.2 and his counsel. The counsel for the accused No.2 submitted that he adopts the cross examination conducted to CW-20 on behalf 38 S.C.No:811/2013 & S.C.No.417/2020 of the accused No.1 for the accused No.2 as well.
Accordingly, statement of the accused No.2 is recorded under Section 313 of Cr.P.C. in which he denied the prosecution evidence against him and submitted that he has no defence evidence to lead. Hence, kept by.
Again called at 4:30 p.m. The accused No.2 and his counsel are present.
The Order is pronounced in the open Court (vide separate Order).
ORDER
Acting under Section
235(1) of Cr.P.C., A-1 and A-2 hereby acquitted for the offences punishable under Sections 392, 411 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 if any shall be canceled after lapse of appeal period.
The release of MOs-1 and 2 in favour of CW-1 by getting executed indemnity bond at Ex.P-4 dated 19.01.2013 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
39 S.C.No:811/2013 &S.C.No.417/2020 So for the rest of the properties i.e., the Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 i.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) and MOs-3 to 5, no order is passed as the disposal order in respect of the above properties are passed in the connected case i.e., SC.No.853/2013.
Office is directed to keep the original judgment in SC.No.811/2013 and the copy thereof in SC.No.417/2020.
LXVI Addl.CC & SJ, Bangalore.