Bangalore District Court
State By vs A1 Syed Umer on 28 April, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 28 th day of April, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.1529 of 2017
COMPLAINANT : State by:
Jayanagara Police Station,
Bengaluru.
(By Public Prosecutor)
/Vs/
ACCUSED: A1 Syed Umer,
Aged about 19 years,
R/at House of Fairoz,
Near Khaziakhan APT,
18th Cross,
Bengaluru City.
(By Sri.K.Ilangbhavan, Advocate.)
2.Mohammed Haris Khan.
(ABATED)
DATE OF:
Occurrence of offence : 31.08.2016
Commencement of trial : 27.01.2021
Closing of trial : 16.03.2022
Name of the complainant : Smt.Nagarathna.B.S.
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Offence alleged : Under Sections 397
of IPC.
Opinion of the judge : Charges leveled
against accused are
not proved.
Sentence or order : Acquittal.
JUDGMENT
Kalasipalya police have filed the present charge sheet against the accused in Crime No.239/2016 for the offence punishable under Section 397 of IPC.
2. The brief facts of the prosecution case are that;
a) On 31.08.2016 at about 6:00 p.m., CW-1 Smt.Nagarathna B.S. was returning back to her house and reached near 11th Main, 3rd Block, Jayanagar, Bengaluru around 6:45 p.m., and crossing the road.
b) At that time, a two wheeler came from Thilak Nagar side towards 4th Block, Jayanagar and the riders on the said vehicle snatched the chain forcibly from her neck and escaped from the spot. Accordingly, the complaint was filed.
3. After investigation, the charge sheet was filed against A-1 and A-2.
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4. The jurisdictional Magistrate has taken the cognizance against A-1 and A-2 for the offence alleged.
5. A-1 and A-2 were on bail. Since the offence alleged is exclusively triable by the Sessions Court, the trial Court has committed the case against A-1 and A-2 directing them to appear before the Sessions Court when directed.
6. On committal, the case was made over to this Court for disposal in accordance with law.
7. In response to the service of summons by this Court, A-1 and A-2 appeared before the Court and were enlarged on committal bail. During the course of trial, A-2 was reported dead and the case against him was abated.
8. After hearing both the sides on framing charges, charges framed and plea of A-1 was recorded for the offence punishable under Section 397 read with Section 34 of IPC for which, he pleaded not guilty and claimed to be tried by this Court. Hence, the case was posted for trial.
9. In the course of trial, the prosecution in all got examined 10 witnesses i.e., CWs-1. 7, 9, 2, 12, 14, 11, 8, 15 and 16 as PWs-1 to 10 respectively. Got exhibited 13 4 SC.No.1529/2017 documents at Ex.P-1 to 13. Got marked 4 material objects at MOs-1 to 4.
a) The learned public prosecutor sought for issuance and re-issuance of process to CWs-3 to 6. Since the process to CWs-3 to 6 issued repeatedly, but went in vain, the prayer of the prosecution is rejected.
10. The statement of A-1 under Section 313 of Cr.P.C. was recorded wherein, he has denied all incriminating evidence against him, but has not let in any defence evidence.
11. Heard arguments of both the sides on merits of the case and perused the record.
12. Out of 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 reasonable doubt that A-1 along with A-2 against whom this case is abated, on 31.08.2016, at about 6:00 p.m., CW-1 Smt.Nagarathna B.S. was returning back to her house and reached near 11th Main, 3rd Block, Jayanagar, Bengaluru around 6:45 p.m., and crossing the road.
5 SC.No.1529/2017At that time, the accused came in a two wheeler from Thilak Nagar side towards 4th Block, Jayanagar and snatched the chain forcibly from her neck and escaped from the spot and thereby committed the offence punishable under Section 397 of IPC?
2. What Order?
13. The answer of this Court to the above points are;
1. Points No.1 : In Negative.
2. Point No.2 : As per the final order for the following reasons.
REASONS
14. POINT No.1:- Before proceeding to discuss on merits of the case, let this Court first to have a look at the provision for which the charge sheet was filed, charge was framed and plea was recorded i.e., Section 397 read with Section 34 of IPC which read;
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapons or causes grievous hurt to any person or attempt to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished not less than seven years".6 SC.No.1529/2017
15. So, let this Court to go through the provisions of Sections 390 and 391 of IPC which define 'robbery' and 'dacoity' respectively and they read;
"390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to 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.
16. So, the essential ingredients for robbery are; 7 SC.No.1529/2017
(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 person, or (2) to some other person.
(iii) By so putting such person in fear, the offender induced the person so put in fear then and there so deliver the thing extorted.
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"391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".
17. In this case, it is the allegation of the prosecution are that on the alleged date, time and place, A-1 along with A-2 came in a two wheeler from Thilak Nagar side towards 4th Block, Jayanagar and snatched the chain forcibly from the neck of CW-1 and escaped from the spot by causing injury to her. So, the allegations of the prosecution attract the ingredients of the offence alleged observed above.
18. As noted above, to prove its case, in the course of trial, the prosecution in all got examined 10 witnesses i.e. PW-1 to PW-10 (amongst to whom after commencement of the evidence of CW-10/PW-5, he was given up by the prosecution. Thus, there is no evidence on record of CW- 10/PW-5). Got exhibited 13 documents at Ex.P-1 to Ex.P-
13. Got marked 4 material objects at MOs-1 to 4. 9 SC.No.1529/2017
19. It is stated in the charge sheet that CW-1 Smt.Nagarahna D. is the complainant and victim of the case. She is examined as PW-1 and has deposed that;
a) On 31.08.2016, around 6:00 p.m., she was going back to her house from Jayanagar 4th Block. She came near 11th Main, 3rd Block, Jayanagar, Bengaluru around 6:45 p.m., and was crossing the road.
b) By that time, a two wheeler came from Thilak Nagar side towards 4th Block, Jayanagar. There were 2 riders who forcibly took her gold chain from her neck which was weighing around 25 grams and it was mangalya chain. Due to which, she sustained injuries over the right side of the neck.
c) By that time, it was raining. The worth of the said chain may be one lakh. On the same day, she lodged the complaint in that regard at Ex.P-1, wherein her signature is Ex.P-1(a).
20. The contents of Ex.P-1 are in support of the above noted oral evidence of PW-1 with regard to the alleged incident.
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21. It is also in the further chief evidence of CW-1 that on receipt of the complaint, on the next day, police called her to the station and took her to the spot. She showed the spot to the police, who conducted the mahazar at Ex.P-2 and took her signature at Ex.P-2(a) and by that time, Sri.Venkatesh (i.e., CW-2) was also present.
22. The recitals of the Ex.P-2 to the spot mahazar are in support of the above oral evidence of CW-2 in respect of the procedures of spot mahazar and presence of CW-2 in the spot. Of course, CW-1 did not say about the presence of the other pancha i.e., CW-3 who could not be not examined as observed above.
23. CW-1 has also deposed in her further chief evidence that;
a) After around 3 months, police called her to the station who had already seized the gold chain she lost and asked her to identify the chain. She identified it. The thieves were in the station and the accused before the Court is one amongst them and she identified him.
b) She got released the gold chain by executing the necessary indemnity bond at Ex.P-3, wherein her signature 11 SC.No.1529/2017 is Ex.P-3(a) and the printout of the photo she saw at Ex.P- 4 is the photo of the said chain.
c) She has brought the said gold chain and it is MO-
1.
d) She gave further statement before the police on the date when she identified MO-1 and the police showed her the thieves.
24. So, in her further chief evidence, CW-1 has deposed supporting the prosecution in respect of the identification of her gold chain alleged to be snatched and also A-1. But, it is in her cross examination for the accused that;
a) At the time of alleged incident, it was dark and she has admitted that since it was dark and there was raining, they could not identify the passers and the vehicles on the road.
b) She has also admitted that at the time of alleged incident, she did not see the persons who alleged to be snatched her chain and she did not say the features of the thieves in her complaint and it is supported by the complaint averments at Ex.P-1.
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25. In her further cross examination,
a) To a question that she does not know what is written in the mahazar, she has answered that whatever she sated in the complaint, they wrote.
b) She has admitted that the police written down mahazar in the station and took her signature. Sri.Venkatesh is the husband of her younger sister who was with her in the police station.
26. So, the above evidence of CW-2 in respect of place where the mahazar was written is contradictory to her own evidence in the chief and the document at Ex.P-2 and thereby to the case of the prosecution.
27. It is also in her further cross examination that the date on which the police called after 3 months is 02.11.2016 and the police showed her the accused before the Court in the station and she has denied that;
a) She saw the accused only on the date of her deposition in the open Court.
b) No one was showed her by the police as the accused/the thieves.
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c) To get her gold chain and to help the police, she gave the evidence as tutored by the police convenient to the case.
d) There is no nexus between the accused and the present case and she gave false evidence.
28. So, the sum and substance of the evidence of CW-1 noted above, clearly demonstrate that apart of the presence of another pancha i.e., CW-3 at the time of spot mahazar at Ex.P-2 and where the spot mahazar was written, CW-1 deposed supporting the prosecution.
29. It is stated in the charge sheet that CWs-2 and 3 are the panchas to the spot mahazar at Ex.P-2 amongst whom, CW-3 could not be examined. CW-2 is examined as PW-4 and he has deposed that;
a) He knows CW-1. She is the elder sister of his wife Smt.Hamsalakshmi.
b) His signature over Ex.P-2 is Ex.P-2(b). He put the said signature on 01.09.2016 in respect of the gold chain stanch of CW-1 on 11th Main Road, Jayanagar 3rd Block in front of Ora Jewels when the police conducted the spot mahazar.
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c) CW-1 showed to the said spot to the police. The PSI Sri.Manjunath (i.e., CW-15) conducted the mahazar in between 10:30 a.m. and 11:15 a.m. and the incident was taken on the previous night.
30. In his cross examination for the accused, he has denied that he signed Ex.P-2 in the station and not at the alleged spot; since CW-1 is his relative, to help her, he gave false evidence.
31. So, CW-2 deposed supporting the prosecution in respect of the spot mahazar at Ex.P-2, but as noted above, it is in the cross examination of CW-1 wherein she has admitted that the mahazar was written and she put her signature in the police station and by that time CW-2 was with her.
32. The next witness examined for the prosecution is CW-7 Sri.P.S.Sagar. It is in the charge sheet that CWs-6 and 7 are the witnesses to the seizure mahazar of the vehicle involved in the crime i.e., Ex.P-5. As noted above, CW-6 could not be examined and CW-7 is examined as PW-2 and he has deposed that;
15 SC.No.1529/2017
a) Ex.P-5(a) is his signature and he put the said signature around 3 years back, on the request of Jayanagar police as his friend Sri.Santhosh's vehicle parked in the no parking area.
b) Nothing has been seized in his presence and he did not give any statement before the IO.
33. As he turned hostile, he was subjected to cross examination by the prosecution, wherein the prosecution put forth its case by way of suggestions that;
a) On 01.11.2016, the police by conducting the mahazar in between 5:30 p.m. and 6:15 p.m., at Ex.P-5 seized Yamaha SZ-R two wheeler bearing registration No.KA-01 EU-4188 in the Jayanagar police station premises in their presence, on reading over the mahazar, he signed it.
b) With regard to the above procedures, he gave the statement before the IO as per the statement read over to him at Ex.P-6, despite of that to help the accused, he gave false evidence.
34. As CW-7 turned hostile, there is no cross examination to CW-7 on behalf of the accused. Thus, in 16 SC.No.1529/2017 view of no examination of CW-6 and CW-7 turning hostile to the prosecution, there is no evidence from the mouth of independent witnesses/panchas in support of seizure of the two wheeler involved in the crime vide Ex.P-10.
35. It stated in the charge sheet that CW-8 Sri.Balasingh @ Balaji Prasad is an eye witness to the incident and produced A-1 before Tilak Nagar police station. He is examined as PW-8 and has deposed that;
a) He knows A-1 present before the Court.
b) On 26.10.2016, around 7:30 p.m., he was talking with his friends Sri.Manjunatha and Sri.Raju near a bakery on 16th Main Road, Jayanagar 4th T Block.
c) There was a college opposite to bakery. The said road leads towards T Block Bus Stop.
d) By then, two rides were moving on a motor cycle towards bus stop. The accused before the Court (i.e., A-1) along with other person came on a motor cycle from the back side of the above motor cycle.
e) A-1 was a pillion rider and the another person was the rider, who dashed the front going motor cycle. 17 SC.No.1529/2017
f) A-1 who was the pillion rider assaulted with a knife on the hands of the pillion rider of the front going motor cycle.
g) So, they rushed to the spot and caught hold A-1, but the rider was escaped.
h) A-1 who is before the Court had a button knife and two mobiles with him.
i) They produced A-1 along with the above properties before Thilak Nagar police station and in the station, they came to know the name of A-1 is Syed Umar.
j) He identified the said properties i.e., the mobiles at MOs-2 and 4 and the knife at MO-3.
36. It is in his cross examination for the accused that;
a) He does not know the names of the riders of the motor cycle proceeded ahead and the registration number as well as the nature of the said motor cycle.
b) The above riders of the motor cycle did not accompany them to the police station.
c) There were around 10 people gathered, amongst them, they 4 caught hold the accused i.e., himself and 2 to 18 SC.No.1529/2017 3 others were went to the police station and he does not know their names. The local aids did not accompany them to the police station.
d) He was talking with his friends Sri.Manju and Sri.Raju and he said the said fact before the police.
e) To the question that did he give the complaint, he has answered that they enquired all of them and recorded. The station writer written down it. There were other police people present.
f) To a question that whether the police recorded the details of the properties produced, he has answered that they might have been written, he does not know exactly.
37. He has denied that;
a) No incident was taken place as he has stated and he was not present in the spot also.
b) The button knife at MO-3 belongs to him.
c) Though he does not know anything about the case, on the instance of the police, he gave false evidence.
d) He did not see A-1 present in the open Court and he saw him in the Court only for the first time when he gave evidence.
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e) The mobiles at MOs-2 and 4 were not seized from the accused.
38. So, if the entire evidence of CW-8 noted above is taken in a nut shall, of course CW-8 deposed supporting the prosecution in respect of the circumstances under which A-1 was caught hold and produced before Thilak Nagar police station with properties at MOs-1 to 3, but the points to be noted are that;
a) He could not say the names and addresses of the other persons accompanied him to the station.
b) Admittedly, the local aids did not accompany them to the station.
c) Admittedly, he did not say anything about his friends Sri.Manjunatha and Sri.Raju who were with him at the time of incident, whether accompanied him to the station or what they did.
d) Interestingly, they are not either cited or got examined for the prosecution who are the material witnesses in view of the evidence of CW-8 who supported the prosecution.
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e) Hence, it appears to the mind of a reasonably prudent man that the fact that CW-8 did not say anything in respect of his friends Sri.Manjunath and Sri.Raju and neither citing them as witnesses in the charge sheet nor getting them examined before the Court, prima facie a defect in the investigation which is fatal to the prosecution.
39. It is stated in the charge sheet that CW-9 Sri.Krishnareddy is the police officer who took the accused into his custody and produced before Jayanagar police station on jurisdiction point. He is examined as PW-3 and has deposed that;
a) He was working as ASI in Jayanagar police station since 2013 to 2017.
b) On 26.10.2016, he was on night duty as SHO. By that time, one Balasingh of JP Nagar (i.e., CW-8) with the public brought one Syed Umar of Vinayaka Nagar, JP Nagar, 5th Stage (i.e., A-1) and told that the said Syed Umar forcibly took his/Bala Singh's mobile.
c) Therefore, he subjected the above Syed Umar to the body search and found ASUS ZEN FONE-5 mobile, OPPO mobile phone and a button knife. Hence, he took all 21 SC.No.1529/2017 the above properties into his custody and on eqnuiry, he found that the place of incident falls with in the limits of Jayanaga police station.
d) Hence, he handed over the above Syed Umar and the above properties to Jayanagar police station and he identified the above Syed Umar and the above properties at MOs-1 to 3.
40. So, the above oral evidence of CW-9 is contradictory to the evidence of CW-8 in respect of the fact that to whom the mobile with A-1 belongs as it is neither the case of the prosecution nor the evidence of CW-8 that the above stated mobile belongs to him and thus, CW-9 gave a go bye to the case of the prosecution in that regard.
41. In his cross examination for the accused, CW-9 has denied that the accused present before the Court was not produced before him along with the above stated properties as he has stated that he did not see the accused before the Court and he gave false evidence.
42. Thus, the evidence of CW-9 in respect of production of A-1 before him along with the properties at MOs-1 to 3 is in support of the prosecution as he stood on 22 SC.No.1529/2017 his chief evidence and nothing has been elicited in his cross examination for the accused.
43. The next witness examined for the prosecution is CW-11 Sri.Thimmegowda, the then police constable to depose in respect of bringing the accused along with the properties from Thilak Nagar police station. He is examined as PW-7 and has deposed that;
a) He has been working as PC-10096 in Jayanagar police station since 2016.
b) On 26.10.2016, he was on night duty in Hoisala- 114 along with the then ASI, Sri Rangappa/CW-10. Around 9:00 p.m., they received a message from control room that somebody caught hold a mobile thief.
c) So, immediately, both of them rushed to the said spot ie., 16th Main Road, Jayanagar, 4th T Block near BES College, but found none.
d) They enquired the public at the spot who told that the said thief was already taken to Thilak Nagar police station.
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e) So, they went to Thilak Nagar police station. Sri.Krishnareddy/CW-9 the then ASI of Thilak Nagar police station was in the station.
f) Since, the incident took place with in their station limits, they brought the accused along with 2 mobiles and produced him with the mobiles before the then PI Sri.Rajesh K./CW-16.
g) The said accused is Syed Umar who is the accused before the Court and he identified the said accused and the properties at MOs-2 to 4.
h) He also stated that in the course of investigation, he gave statement before the IO.
44. In his cross examination for the accused, CW-11 has deposed that;
a) They received the information at 9:00 p.m. By then they were at Jayanagar 4th Block, 10th Main Road.
b) From the said spot, Thilak Nagar police station may around at a distance of 600 to 700 meters.
c) They reached Thilak Nagar police station at around 9:15 p.m. They were in the said station for around 5 24 SC.No.1529/2017 minutes. Their ASI/CW-10 met the ASI of Thilak Nagar police station.
d) He has denied that he saw the accused and the properties only on the date of his deposition in Court for the 1st time.
e) However, he has admitted that there are other mobiles as well with MO-2 which were seized in other cases.
f) He has denied that;
(i) They did not receive any information and they did not visit the spot as he has stated in his chief evidence.
(ii) They did not take any accused or properties into their custody from Thilak Nagar police station and produced the same before CW-16 in their station, despite of that, to help CW-1, he gave false evidence.
45. So, the evidence of CW-11 is also in support of the case of the prosecution in respect of CWs-10 and 11 bringing the accused along with the properties from Thilak Nagar police station and producing them before CW-16.
46. The next witness examined for the prosecution is CW-14 Dr.Aswathnarayana, the doctor treated the 25 SC.No.1529/2017 injured/CW-1. He is examined as PW-6 and has deposed that;
a) He has been working as Medical Officer in Government Hospital, Jayanagar, since 2014.
b) On 31.08.2016, at 9:35 p.m., when he was in charge of causality, HC-5659 by name Sri.Suresh of Jayanagar police station brought an injured by name Smt.Nagarathna, W/o Sri.Srinivasa Murthy, 49 years, No.1, 3rd Main, A Main Road, 5th Cross, Jayanagar 1st Block with a history of attempt to chain snatch on the same day, at 6:45 p.m., in 3rd Block, Jayanagar, 11th Main Road, in front of Ora Jewels.
c) On examination, he found a linear abrasion over the back of neck measuring 7 cms which is a simple injury and in that regard, he issued the wound certificate at Ex.P- 7, wherein his signature is Ex.P-7(a).
d) The injury mentioned in Ex.P-7 may be caused in an attempt of chain snatching.
47. In his cross examination for the accused, he has denied that;
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a) The injury mentioned in Ex.P-7 may be caused due to skid from the two wheeler.
b) CW-1 was not brought to their hospital and he did not treat her, despite of that, on the instance of police, he issued Ex.P-7 and to substantiate the same, he gave false evidence.
48. So, the evidence of CW-14 is also in support of the prosecution with regard to the nature of injuries caused to CW-1 and the contents of Ex.P-7. So for the history of injuries, of course, his evidence is hearsay evidence.
49. The other witness examined for the prosecution is CW-15 Sri.Manjunath N., the then PSI who did the initial investigation of the case. He is examined as PW-9 and has deposed that;
a) He was working as PSI in Jayanagar police station since 2016 to 2018.
b) On 31.08.2016, at 8:00 p.m., when he was in- charge of the SHO, Smt.Nagarathana/CW-1 came to the station and gave written statement at Ex.P-1, wherein his signature is Ex.P-1(b).
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c) It is stated in the complaint that;
(i) On the same day, around 6:30 p.m., while returning from Jayanagar Shopping Complex, in front of Ora jewels, SM Towers, Jayanagar 3rd Block, two riders who came on a two wheeler, forcibly snatched around 25 grams weight gold mangalya chain and escaped.
(ii) By that time, there was raining.
d) Accordingly, based on Ex.P-1, he registered the case in Crime No.239/2016 for the offence under Section 397 of IPC and prepared the FIR at Ex.P-8, wherein his signature is Ex.P-8(a).
e) He send the FIR at Ex.P-8 to the jurisdictional II ACMM, Bengaluru and the copies thereof to his higher officers.
50. The above noted evidence of CW-15 is supported by the oral evidence of CW-1, the documents at Ex.P-1 and
8.
51. It is also in the further chief evidence of CW-14 that;
a) On the next day, to conducted the spot mahazar, he secured CW-1 and the presence of 2 panchas by name 28 SC.No.1529/2017 Sri.Venkatesh and Sri.Shivaram i.e., CWs-2 and 3 respectively, briefed them and asked them to become panchas, who agreed to become panchas.
b) He left the station along with CWs-1 to 3 and reached the spot stated above and conducted the mahazar at Ex.P-2 in between 10:30 a.m. and 11:15 a.m., in the presence of CWs-2 and 3 as the spot was showed by CW-1, wherein his signature is Ex.P-2(c) and the signatures of CWs-1 and 2 are Ex.P-2(a) and 2(b) respectively. The signature of CW-3 is Ex.P-2(d).
c) He came back to the station and handed over the case file to CW-16 for further investigation.
52. The above noted evidence of CW-15 is supported by the oral evidence of CWs-1 and 2 as well as the document at Ex.P-2 apart from the contradiction in the evidence of CW-1 in respect of the place where the mahazar at Ex.P-2 was written and place where it was signed by Cws-1 and 2 as CW-1 admitted the suggestion that the mahazar at Ex.P-2 was written in the police station where she and CW-2 signed it. 29 SC.No.1529/2017
53. In his cross examination for the accused, CW-15 has deposed that;
a) Nobody accompanied CW-1 when she came to give the complaint. CW-1 brought the written complaint and he has admitted that in the FIR at Ex.P-8 in column No.12, there is no signature of the complainant.
b) He has denied that CWs-2 and 3 are the stock witnesses of their station. However, he has admitted that there is no seal affixed under his signature in the spot mahazar at Ex.P-2. At this stage, he has voluntarily stated that it is not mandatory.
c) He has admitted that he did not give written notice to CWs-2 and 3 to become panchas, but has denied that;
(i) To help CW-1, he gave false evidence.
(ii) Though, no incident took place, to help CW-1, he gave false evidence.
(iii) He did not visit the spot and the mahazar at Ex.P- 2 was prepared in the station.
54. So, as the evidence of CW-15 remained unshaken in his cross examination, his evidence is in support of the 30 SC.No.1529/2017 prosecution in respect of his part of investigation in the case.
55. The last witness examined for the prosecution is CW-16 Sri.Rajesh K. the IO. He is examined as PW-10 and has deposed that;
a) He was working as PI in Jayanagar police station since 07.05.2015 to 03.06.2017.
b) On 26.10.2016, around 8:00 p.m., he was in charge of the SHO. By that time, the then ASI Sri.Rangappa/CW-10 PC-10096 Sri.Thimmegowda/CW-11 who were working in Hoisala brought the accused by name Syed Umar who was handed over to Thilak Nagar police station by Sri.Balasingh/CW-8 and other public as the above accused tried to snatch the mobile of one Sri.Kiran and produced before him on ground that the incident was taken place within the limits of Jayanagar police station.
56. The above noted evidence of CW-16 is supported by the evidence of CWs-8, 9 and 11 apart from the contradiction that as per the evidence of CW-9, the mobile snatched/in the possession of A-1 belonged to CW-8, CW-8 did not say anything with regard to the fact that to whom 31 SC.No.1529/2017 the said mobile belonged, but CW-16 stated that the said mobile belongs to one Karthik.
57. It is also in the further chief of CW-16 that;
a) It was also learnt that the other accused Mohammed Haris Khan escaped from the spot in the above incident.
b) Along with the accused Syed Umar, a mobile and a button knife were also produced before him with the report of CW-10 at Ex.P-9, wherein his signature making the document as true copy is Ex.P-9(a).
58. The above evidence of CW-16 in respect of production of A-1 with the properties before him is also supported by the oral evidence of CWs-8, 9 and 11.
59. CW-16 in his further chief evidence has also stated that;
a) In respect of the above incident, the case was registered on the file of Jayanagar police station in the Crime No.294/2017.
b) In the above crime, when the above accused was subjected to arrest procedures and thereafter, while recording his voluntary statement, he revealed that along 32 SC.No.1529/2017 with the other co-accused, he robbed around 200 mobiles within the limits of various police station in Bengaluru City.
c) On the same day, he recorded the statement of Sri.Krishnareddy/CW-9, CWs-8, 10 and 11 in the above crime.
d) On 21.10.2017, he produced the above accused before the jurisdictional Magistrate and took him into the police custody.
e) On 01.11.2017, the then PC-9455 Sri.Shivakumar/CW-12, PC-8501 Sri.Thimmaraju/CW-13 who were deputed in search of the other accused Mohammed Haris Khan, brought the above accused and produced before him with the motor cycle along with the report of CW-12 at Ex.P-10, wherein his signature making the document as true copy is Ex.P-10(a).
f) On subjecting the above accused to the arrest procedure, he recorded his voluntary statement, wherein he revealed about the chain snatching of Smt.Nagarathna D.S./CW-1.
33 SC.No.1529/2017
60. Since, CWs-12 and 13 are not examined, there is no supportive evidence to the above evidence of CW-16 in respect of CWs-12 and 13 producing A-2 before him along with the report of CW-12 at Ex.P-10.
61. CW-16 has also deposed in his further chief evidence that;
a) He secured the presence of the presence of the panchas ie., Sri.Karthik/CW-6 and Sri.P.S.Sagar/CW-7 and in their presence, on the above accused producing the motor cycle ie., black and silver colour Yamaha SZR bearing registration No.KA-01 EU-4182, Engine No.54-B 3038243 and chassis No.ME 154-B 03782038175 by conducting the mahazar at Ex.P-5 in between 5:30 p.m. and 6:15 p.m., wherein his signature is Ex.P-5(b) and his signature making the document as true copy is Ex.P-5(c).
b) He mentioned the above bike to the PF.No.130/2016 at Ex.P-11, wherein his signature making true copy is Ex.P-11(a).
c) Thereafter, he recorded the statement of CWs-6 and 7 and CW-7 gave statement before him as per Ex.P-7. 34 SC.No.1529/2017
d) He has also recorded the statement of CWs-12 and
13. The investigation revealed that the above bike is involved in both this Crime and Crime No.294/2016.
62. As noted above, CW-6 could not be examined and CW-7 turned hostile to the prosecution and there is no supportive evidence to the above evidence of CW-16 in respect of seizure of the two wheeler alleged to be involved in the present crime vide Ex.P-11.
63. CW-16 in his further chief evidence, has also deposed that;
a) On the same day, he has also recorded the further voluntary statement of the accused Syed Umar, wherein he accepted his involvement in this Crime along with Mohammed Haris Khan.
b) Based on the voluntary statement of Mohammed Haris Khan dated 01.11.2016 that he kept the chain snatched from CW-1 and some of the mobiles robbed in his house, on the next day i.e., 02.11.2016, he secured the presence of panchas by name Sri.Noor/CW-4 and Sri.Sheharaz/CW-5 to the station and briefed them about the voluntary statement of the accused Mohammed Haris 35 SC.No.1529/2017 Khan and requested them to co-operate for seizure by becoming panchas and they agreed.
c) Accordingly, he left the station along with the panchas, his staffs with the necessary instruments to prepare the mahazar and went to the house of the accused Mohammed Haris Khan as led by him in the Government jeep.
d) His house was situated at No.599-D, 4 th Cross, near Aksha Masjid, Fayaza Bad, Ilyaz Nagar, Kumaraswamy Layout, Bengaluru.
e) The accused Mohammed Haris Khan entered into the above house and they followed him. He produced a gold chain weighing around 25 grams and 9 mobiles of different companies.
f) Accordingly, he seized the above properties by conducting the mahazar at Ex.P-12 in the presence of CWs-4 and 5 in between 1:00 p.m. and 2:00 p.m.
g) He got computerized the mahazar over the lap top they brought from the station with the assistance of Sri.Shivakuar/CW-12. In Ex.P-12, his signature is Ex.P- 36 SC.No.1529/2017 12(a); the signatures of CWs-4 and 5 are Ex.P-12(b) and 12(c).
h) At the time of Ex.P-12, while seizing the above properties, he put the gold chain into a separate cover and the remaining properties i.e., 09 mobiles into a paper cover, duly packed and sealed, affixed the label having the details of the properties by taking the signatures of panchas and he also signed the label.
i) He identified the gold chain in the photo at Ex.P-4 and has deposed that later the said gold chain was released to CW-1. He identified the mobiles at MOs-2 and 4 to 11, the knife at MO-3 as well.
j) He deposed that the labels over the covers in which MOs-2 and 4 to 11 were kept is MO-12, wherein his signature is MO-12(a).
k) On returning to the station, he mentioned the above properties to the PF.No.132/2016 at Ex.P-13, wherein his signature is Ex.P-13(a).
64. In view of non examination of CWs-4 and 5, there is no supportive evidence to the evidence of CW-16 in respect of the seizure of the mobiles at MOs-2 and 4 to 11 37 SC.No.1529/2017 as well as the gold chain at MO-1 appearing in the photo at Ex.P-4 from the mouth of any independent witnesses.
65. CW-16 has further deposed in his chief evidence that;
a) Thereafter, he produced the accused Mohammed Haris Khan before the jurisdictional Magistrate and took him to the police custody for further investigation.
b) On the same day, he secured the presence of CW- 1, shown her both the above accused and also the photo of the gold chain. CW-1 identified the gold chain and told that since there was raining at the time of incident, she did not observe the robbers and thus, she could not identify the accused persons and in that regard, he recorded her further statement.
66. But as noted above, CW-1 has stated in her evidence that she identified the A-1 who was showed to her in the police station and also her gold chain. She did not say that she identified her gold chain vide the photo at Ex.P-4. Thus, the said portion of evidence of CWs-1 and 16 is contradictory to each other.
38 SC.No.1529/2017
67. CW-16 has also deposed in his chief evidence that on 19.11.2016, as per the orders of the jurisdictional Magistrate, he released the gold chain in favour of CW-1 on getting executed the indemnity bond at Ex.P-3 and taking the photo of the gold chain at Ex.P-4. In Ex.P-3, his signature is Ex.P-3(b).
68. The above evidence of CW-16 in respect of the release of gold chain at MO-1 in favour of CW-1 on execution of indemnity bond at Ex.P-3 is supported by the oral evidence of CW-1, but the evidence in respect of the photo at Ex.P-4 is contradictory to his own evidence of CW- 9 as he has deposed that he shown the photo of the gold chain at Ex.P-4 to CW-1 for identification and at the same time, he has stated that on taking the photo at Ex.P-4, the gold chain at MO-1 was released in favour of CW-1.
69. It is also in the further chief evidence of CW-16 that on 27.01.2017, he received the wound certificate of CW-1 at Ex.P-7 and since, by then, the investigation was over and there were prima faice materials against both the accused for the offence under Section 397 of IPC, he prepared the charge sheet and submitted. 39 SC.No.1529/2017
70. The above evidence of CW-16 is supported by the oral evidence of CW-14 and the wound certificate at Ex.P-7 in respect of the injuries to CW-1 and their nature.
71. CW-16 has also identified A-1 before the Court and has deposed that the accused Mohammed Haris Khan reported dead, which is supported by the case record.
72. It is in the cross examination of CW-16 for the accused that;
a) He heard that A-1 was produced before Thilak Nagar police station around 8:30 p.m.
b) To the question that can he say who were the persons produced A-1 before Thilak Nagar police station specifically with their names and addresses, he has answered that it was CW-8 and the other public.
c) He has admitted that he cannot say the names and addresses of the other alleged public.
d) When A-1 was brought before him, it may around 9:30 p.m. and it was CWs-8, 10 and 11 produced him before him.
40 SC.No.1529/2017
e) He recorded the statement of CWs-10 and 11 on the same day and the statement of CW-8 on the next day I.e., on 27.11.2016.
f) He did not issue any notice to CW-8 to give statement. At this stage, he has voluntarily stated that but, he asked CW-8 to come on the next day.
g) He has denied that nobody produced A-1 before him and A-1 did not produce any button knife or the mobiles as he has stated. At this stage, he has voluntarily stated that the said properties were mentioned in PF in the Crime No.294/2016.
73. The above noted evidence of CW-16 is supported by the oral evidence of CWs-8, 9 and 11 as observed above and nothing has been elicited to disbelieve the oral evidence of CW-16 in that regard.
74. It is also in the cross examination of CW-16 that he enquired Sri.Kiran i.e., the complainant in Crime No.294/2016 in the course of investigation in the said case and Sri.Kiran is not cited as a witness in this case which is as noted above is fatal to the case of the prosecution. 41 SC.No.1529/2017
75. In his further cross examination, CW-16 has denied that;
a) Neither A-1 was produced by CW-8 and the public before Thilak Nagar police station and nor he was produced by CWs-8, 10 and 11 before him as he has stated.
b) CW-8 did not give any statement before him.
c) He did not record the statements of any witnesses as he has stated.
d) He did not seize any gold chain or mobiles on the voluntary statement of A-2 vide the seizure mahazar at Ex.P-12.
e) Ex.P-12 was prepared on his table in the office.
f) He did not issue written notice to the panchas ie., CWs-4 and 5.
76. In view of CW-16 standing on his chief evidence and denying the above suggestions, remained supporting the case of the prosecution with regard to the above portion of his part of investigation.
77. In his further cross examination, to the question that he had no impediment to show the gold chain to CW- 42 SC.No.1529/2017 1, CW-16 has answered that since, it was duly packed and sealed in a cover, he could not show the gold chain to her and has admitted that Ex.P-4 is the photo he claimed to be showed to CW-1 and he had no impediment to sign above the seal at Ex.P-4, which is as noted above, is not only contradictory to his own evidence of CW-16, but also fatal to the case of the prosecution.
78. So for the rest of the cross examination of CW-16, it is nothing but denial of his part of investigation which is in turn denied by him.
79. However, from the above discussions, in view of;
a) The contradictions in the evidence of CW-1 in respect of the place where the spot mahazar at Ex.P-2 was written and signed by CWs-1 and 2 as CW-1 admitted that it was written in the police station and they signed it in the police station.
b) The contradiction in the evidence of CWs-9 and 16 in respect of the mobile in the possession of A-1 belongs to whom as CW-9 stated that it belongs to CW-8, on the other hand, CW-16 stated that it belongs to one Karthik who is the complainant in the connected crime on the file of 43 SC.No.1529/2017 Thilak Nagar police station and CW-8 said nothing in that regard.
c) Non citing of Sri.Manjunath and Sri.Raju as well as Sri.Karthik as witnesses in the charge sheet and non examining them in support of the case which is fatal to the prosecution.
d) The admitted evidence of CW-16 that the gold chain shown to CW-1 for identification is not MO-1 and it is the photo at Ex.P-4 and his own contradictory evidence that the said photo at Ex.P-4 was taken at the time of release of the gold chain at MO-1 to CW-1.
e) The admitted fact that because of rain, CW-1 did not see the offenders, because of which, she did not identify them and the filing of the charge sheet against the accused is admittedly, based on their voluntary statements whereby the circumstance under which they were in particular A-1 was caught hold and produced before Thilak Nagar police station who in turn was produced before CW- 16 and thus, non examination of Sri.Manjunath, Sri.Raju and Sri.Karthik who are the material eye witnesses in respect of catching A-1, is fatal to the prosecution. 44 SC.No.1529/2017
f) Non examination of material witnesses i.e., CWs-3 to 6 the panchas to the spot and seizure mahazar in particular CWs-4 to 6 the panchas to the seizure mahazars, the other pancha/CW-7 completely turning hostile to the prosecution is also fatal to the prosecution.
80. Thus, the prosecution has failed to let in the evidence against A-1 for the offence alleged beyond all shadow of doubts. Accordingly, this point is answered in negative.
81. POINT No.2:- In view of the findings to above point and for the reasons discussed above, this Court proceeds to pass following order.
ORDER Acting Under Section 235(1) of Cr.P.C., A-1 is hereby acquitted for the offence punishable under Section 397 read with Section 34 of IPC.
The bail bond and the surety bond executed by and on behalf of A-1 shall be canceled after lapse of appeal period.
The order dated 10.11.2017, passed by the committal Court i.e., II ACMM., Bengaluru in C.C.No.22995/2017 releasing the gold chain at MO-1 in favor of CW-1 Smt.D.S.Nagarathna is hereby confirmed. The 45 SC.No.1529/2017 indemnity bond executed by CW-1 shall stand canceled after the appeal period.
Office is directed to confiscate MOs-2 to 11 to the State and to destroy MO-12 as it is worthless after the appeal period.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 28th day of April, 2022).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE
PROSECUTION:-
PW.1 Sri.D.S.Nagarathna
PW.2 Sri.Sagar
PW.3 Sri.Krishnareddy
PW.4 Sri.Venkatesh
PW.5 Sri.Shivakumar
PW.6 Dr. Sri.Ashwathnarayan
PW.7 Sri.Thimmegowda
PW.8 Sri.Balaji Singh
PW.9 Sri.Manjunath
PW.10 Sri.Rajesh
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:-
Ex.P-1 Complaint
Ex.P-1(a) Signature of PW1
Ex.P-1(b) Signature of PW9
Ex.P-2 Spot Mahazar
46 SC.No.1529/2017
Ex.P-2(a) Signature of PW1
Ex.P-2(b) Signature of PW4
Ex.P-2(c) Signature of PW9
Ex.P-2(d) Signature of CW3
Ex.P-3 Indemnity Bond of PW1
Ex.P-3(a) Signature of PW1
Ex.P-3(b) Signature of PW10
Ex.P-4 Colour photo of Gold Chain
Ex.P-5 Seizure Mahazar
Ex.P-5(a) Signature of PW2
Ex.P-5(b) Signature of PW10
Ex.P-5(c) Signature of PW10
Ex.P-6 Statement of PW2
Ex.P-7 Wound Certificate of PW1
Ex.P-7(a) Signature of PW6
Ex.P-8 FIR
Ex.P-8(a) Signature of PW9
Ex.P-9 Report of ASI Rangappa/CW-10.
Ex.P-9(a) Signature of PW10
Ex.P-10 Report of CW12
PC 9455/Sri.Shivakumar
Ex.P-10(a) Signature of PW10
Ex.P-11 PF Form No.130/2016
Ex.P-11(a) Signature of PW10
Ex.P-12 Seizure Mahazar
Ex.P-12(a) Signature of PW10
Ex.P-12(b) Signature of CW4
Ex.P-12(c) Signature of CW5
Ex.P-13 PF Form No.132/2016
Ex.P-13(a) Signature of PW10
47 SC.No.1529/2017
LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO-1 Gold Chain
MO-2 Mobile Phone
MO-3 Button Knife
MO-4 Mobile Phones
to 11
MO-12 Lable over cover in which MO2
and 4 to 11 are kept
MO-12(a) Signature of PW10
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.48 SC.No.1529/2017
The accused No.1 is The Judgment is pronounced in the virtual Court (vide separate Order).
ORDER LXVI Addl.CC & SJ, Bengaluru