Bangalore District Court
State By vs Rangoon S/O.Mitengal on 5 April, 2018
1 CC.No.22659/2011
IN THE COURT OF THE XLIII ADDL.C.M.M
MAYO HALL UNIT, BENGALURU
Dated: This the 5th day of April 2018
PRESENT: Sri. PRAKASH NAYAK,
B.A.(LAW)., LL.B.,
XLIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
CC.No.22659/2011
Complainant: State by, HAL Police Station
(By Sr.APP)
Accused: 1. Rangoon S/o.Mitengal
Aged about 55 years
R/at.Angadi Village, Agare Post,
Madehalli Hobli, Beluru Tq,
Hasan Dist.
2. Chandrashekar @ Babu
S/o. Manjunatha
Aged about 38 years
R/at.J.Mallenahalli Village,
Hunasegatta Post,
Thipaturu Tq, Tumakur Dist.
3. Mohan S/o.Chandrappa
Aged about 36 years
R/at.No.370-H, 9th Main Road,
Vijayanagar, Bengaluru
4. Charan S/o.B.Bhaskar
Aged about 35 years
R/at.No.1090, 2nd Main Road,
Gandhinagar, Thipaturu Tq,
Tumakur Dist.
(By Sri.D.G.S. Advocate)
2 CC.No.22659/2011
JUDGMENT
The PSI of HAL P.S filed the instant charge sheet against the accused No.1 to 4 for offence punishable u/s.120(B) and 420 of IPC. Since accused No.3 & 4 are absconding, case against them is split up.
2. The gist of the prosecution case is that on 05-12-2009 at about 3-30 p.m. near LRDE Layout Park, Marathahalli Outer Ring Road, Bengaluru which comes within the limits of HAL P.S., the accused No.1 and 2 along with absconding accused No.3 & 4 hatched criminal conspiracy in order to make wrongful gain for themselves and in order to cause wrongful loss to the public made use of PVC pipes and molded them in the form of ivory tusks by filling them with white cement and horns of dead cow and made an attempt to sell them as ivory to the public and thereby the accused have committed aforesaid offence. Concerned police registered Cr.No.596/2009.
3. The accused No.1 & 2 in response to the summons appeared before the Court through their counsel and they are on bail. As contemplated U/s.207 of Cr.P.C., the copy of charge sheet furnished to the accused. Subsequently, charge is framed and read over to the accused, who pleaded not guilty and claims to be tried.
4. The prosecution in order to prove its case has examined Pw.1 to Pw.3, Ex.P1 to Ex.P4 got exhibited. After closure of the prosecution evidence the accused is examined U/s.313 Cr.P.C 3 CC.No.22659/2011 wherein the accused has denied the incriminating evidence appears against him and he has not chosen to adduce any evidence.
5. Heard. The learned Sr.APP for prosecution and learned counsel for accused and perused the records.
6. The following points arise for consideration of the Court.
1. Whether the prosecution beyond reasonable doubt Proves that the accused committed offence punishable U/s. 120(B) and 420 of IPC?
2 What order?
7. My answer of the aforesaid points.
Point No.1 - In the Negative
Point No.2 - As per final order for the following
REASONS
8. Point No.1: In order to substantiate its case the prosecution has initially examined Cw.1 N.Purushtotham as Pw.1, who in his examination in chief has deposed that on 05-12-2009 while along with Cw.2 to 7 he was on patrolling duty at about 3 p.m. he received specific information that nearby LRDE Layout Park, Karthik Nagar 4 persons are trying to sell an ivory which was kept in a gunny bag and immediately he rushed to the said place with pancha witnesses and his staff and observed that 4 persons are trying to sell the object in a 4 CC.No.22659/2011 gunny bag and immediately along with his staff, he surrounded them and then 2 persons succeeded in running away and they caught hold accused No.1 and 2 and also they seized gunny bag which consists PVC pipes which is molded as ivory tusks. He further deposed that on enquiry he came to know the name of accused No.3 & 4 and then he seized said object in presence of pancha witnesses and prepared panchanama as per Ex.P1 and submitted requisition as per Ex.P2. In his cross-examination Pw.1 has stated that when he received information he was on patrolling duty at Doddanekkundi and he took 5 minutes to reach the said place of incident. He admitted that in Ex.P2 requisition he has not mentioned the registration number of the vehicle in which he proceeded to the place of incident. He admitted that the said place is public road. He denied that he has not conducted any raid as deposed by him and he has not arrested the accused No.1 and 2 and registered a false case against the accused. Further the prosecution has examined Cw.10 Mohanreddy as Pw.2, who in his examination in chief though identified his signature on Ex.P3 panchanama, denied its contents. In his cross- examination made by Lr.Sr.APP he denied that along with accused No.1 the police took him nearby house of accused No.1 and seized an object under Ex.P3 panchanama. He denied that he has given statement to police as per Ex.P4. Further the prosecution has examined Cw.13 Sudeendra as Pw.3, who in his examination in chief has supported the case of the prosecution by deposing that on 05- 12-2009 at 5-45 p.m. when he was in the police station he received 5 CC.No.22659/2011 Ex.P2 requisition from Cw.1 and registered FIR as per Ex.P5, recorded statement of Cw.2 to 9, as per confession statement given by accused No.1 proceeded to the house accused No.1 and seized articles under Ex.P3 panchanama. However Pw.3 not tendered himself for further examination in chief and hence his evidence was expunged. The materials on record also reveals that in spite of availing opportunities the prosecution has failed to secure Cw.2 to 9 and Cw.11 and 12. The ample opportunity granted to the prosecution is not availed by it.
9. The aforesaid materials on record clearly reveals that in this case the prosecution has miserably failed to prove guilt of the accused beyond reasonable doubt. Admittedly in a case of this nature the prosecution has to prove the occurrence of the incident, the nexus between the incident and the accused and due execution of seizure panchanama. Apart from this the prosecution has to prove identification of accused also. In this case the prosecution has alleged that the accused No.1 and 2 along with accused No.3 and 4 made criminal conspiracy to make wrongful gain for themselves and wrongful loss to the public by making an attempt to sell an ivory tusks which were actually molded PVC pipes. To substantiate this allegation the prosecution has to prove the existence of criminal conspiracy between each accused and also it has to prove dishonest intention of accused. Aforesaid oral evidence on record reveals that the prosecution has managed to secure only two official witnesses 6 CC.No.22659/2011 and their evidence is not corroborated by version of any other independent witnesses. The overall analysis of the said evidence on record reveals that the prosecution has miserably failed to prove the existence of mandatory ingredient which attracts the offence as alleged against the accused. Therefore, taking into consideration the aforesaid shortcomings in the case of the prosecution, the court opines that this is a fit case to give benefit of doubt to accused No.1 & 2.
10. The aforesaid oral and documentary evidence on record clearly reveal that the prosecution has not adduced any cogent evidence to prove the guilt of the accused beyond reasonable doubt. The evidence of Pw.1 to 3 is not sufficient to accept the case of the prosecution. There is no incriminating evidence against the accused persons which establishes the guilt of the accused persons. In view of the aforesaid materials on record, the Court is of the opinion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Further it is settled law that on assumptions and presumptions the case of the prosecution cannot be proved and accepted. Further it is settled law that when two views are possible the view which is favourable to the accused has to be accepted. In view of the aforesaid discussions and for the aforesaid reasons the Court proceed to answer Point No.1 in the Negative.
11. Point No.2 : For the aforesaid reasons, the Court proceed to pass the following 7 CC.No.22659/2011 ORDER Acting U/s.248(1) of Cr.P.C accused No.1 & 2 hereby acquitted for the offence punishable U/s. 120(B) and 420 of IPC.
The bail bond of the accused No.1 & 2 shall stand in force for a period of 6 months as contemplates u/s.437(A) of Cr.P.C.
Office to preserve the file till disposal of split up case registered against accused No.3 & 4.
(Dictated to the steno, transcribed by her, same was corrected by me and then pronounced in open Court on this the 5th day of April 2018) (Prakash Nayak) XLIII ACMM, BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED:
Pw.1 - N.Purushotham Pw.2 - Mohanreddy Pw.3 - Sudeendra LIST OF EXHIBITS MARKED: Ex.P.1 - Mahazar Ex.P.1(a) - Signature of Pw.1 Ex.P.2 - Requisition Ex.P.2(a) - Signature of Pw.1 Ex.P.3 - Spot Panchanama 8 CC.No.22659/2011 Ex.P.3(a) - Signature of Pw.3 Ex.P.3(b) - Signature of Pw.3 Ex.P.4 - Statement of Pw.2 LIST OF MATERIAL OBJECTS GOT MARKED: Nil (Prakash Nayak) XLIII ACMM, BENGALURU 9 CC.No.22659/2011 10 CC.No.22659/2011