Bangalore District Court
The State Of Karnataka vs No.4: Nagarjuna @ Arjuna on 13 March, 2023
KABC010047702019
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 13th day of March, 2023
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
S.C.No.230/2019
COMPLAINANT : The State of Karnataka,
By Thilaknagar Police Station,
Bangalore.
Vs.
ACCUSED No.4: Nagarjuna @ Arjuna
S/o Late Boralingaiah
R/at No.1/17, Chandrashekar,
Azad road, Gavipuram,
Bengaluru.
(A.4 by Sri.P.K.S.P., advocates)
Date of offence 19.06.2014
Date of report of offence 19.06.2014
Name of the complainant Ravikiran M.A, (Police Officer)
Date of commencement of 23.06.2022
recording of evidence
Date of closing of evidence 04.11.2022
Offences complained of 399, 402 of IPC
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Opinion of the Judge Accused are found not guilty
State represented by Learned Public Prosecutor
Accused defended by By Sri.P.K.S.P.
JUDGMENT
This case arise out of the charge sheet filed by the Police Inspector, Thilaknagar Police Station, Bengaluru, in Cr.No.200/2014 against the accused persons for the offences punishable under Sections 399 and 402 of IPC, before the learned 2nd Additional Chief Metropolitan Magistrate, Bengaluru.
2. After filing of the charge sheet, the learned Magistrate took cognizance for the offences punishable u/Sec.399 and 402 of IPC and registered criminal against accused No.1 to 6 in C.C.No.6103/2015.
3. As on the date of filing of the charge sheet, the accused No.1 and 2 were on regular bail. The accused No.3 to 5 were on anticipatory bail. The accused No.6 was shown as absconded in the charge sheet. As such, the Learned Magistrate issued NBW against accused No.6. Thereafter, the accused No.6 was also appeared before the court and he was enlarged on bail. As such, on appearance of the accused No.1 to 6 before the Learned Magistrate, the Learned Magistrate had complied the mandatory provision of Sec.207 of Cr.P.C., by furnishing the copy of charge sheet and other papers annexed with the charge sheet to the accused.
3S.C.No.230/2019
4. The Learned Magistrate vide order dated 09.12.2017 has committed the case against the accused No.1, 3 to 5 and 6 to the court of Hon'ble Principal City Civil & Sessions Judge, Bengaluru City court. The case against the accused No.2 and 4 was ordered to be split up before the trial court and CC.No.6103/2015 was registered against them. In CC.No.6103/2015 vide order dated 07.12.2018, case against accused No.2 was ordered to be split up and CC.No.1161/2019 came to be registered agaisnt accused No.2. Case against accused No.4 was committed.
5. After committal of the case, case is registered against accused No.4 as S.C.No.230/2019 and the case was made over to this court by Hon'ble Principal City Civil & Sessions Judge, Bengaluru City court. Thereafter, summons was issued to accused No.4. After service of summons, the accused No.4 has appeared before the court through his counsel and he was enlarged on bail.
6. The Accused No.4 was heard on the charge.
Since there are sufficient prima facie materials in the charge sheet to proceed with trial against the accused No.4 for the offences punishable u/Sec.399 and 402 of IPC, charge was framed for the said offence and read over and explained to the accused No.4 in the language known to him. The accused was pleaded not guilty and claimed to be tried. Then, the matter was posted for evidence of the prosecution. Trial of SC.No.613/2017 against accused No.5 and 6, 500/2019 against accused No.2 4 S.C.No.230/2019 and 283/2022 against accused No.1 which are connected to the same crime number and trial of this case is conducted together.
7. The prosecution in order to bring home the guilt of the accused No.4 has got examined 5 witnesses as P.W.1 to P.W.5. The prosecution has produced 6 documents on its behalf and got them marked as Ex.P.1 to P.6. The prosecution has produced 6 material object and got them marked as M.O.1 to M.O.6 and closed its side. Thereafter, the matter was posted for recording the statement of the accused No.4 u/s.313 of Cr.P.C.
8. All the incriminating evidence appearing against accused No.4 in the evidence of P.W.1 to 5 were read over and explained to the accused No.4 in the language known to him. The accused has denied all the incriminating evidence appearing against him. Accused has submitted that he has no defence evidence. Hence, the matter was posted for arguments.
9. Heard the arguments of Learned counsel for the accused No.4 and Learned Public Prosecutor. Perused the charge sheet, oral and documentary evidence adduced on behalf of the prosecution and other materials available on record.
10. Having done so, the following points are formulated for consideration:
1. Whether the prosecution has proved beyond reasonable doubt on 19.06.2014, at about 7.00 p.m. near BBMP Park, 19th Main Road, 38th Cross, Jayanagar 4th 'T' Block, the 5 S.C.No.230/2019 accused No.4 along with other accused were making preparations to commit dacoity by holding deadly weapons and thereby committed an offence punishable under Section 399 of I.P.C.?
2. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, accused No.4 along with other accused has assembled with an intention to commit dacoity and thereby committed an offence punishable under Section 402 of I.P.C.?
3. What order?
11. My findings on the above points are:-
Point No.1 - In The Negative.
Point No.2 - In The Negative.
Point No.3 - As per final order, for the following:
: REASONS :
12. Points No.1 & 2:- Both the points are interlinked with each other and require common discussion and hence, they are taken together for common consideration in order to avoid repetition of facts.
14. The Police Inspector of Thilaknagar police station had filed the charge sheet against accused No.1 to 6 alleging the offences punishable under Sections 399 & 402, I.P.C. It is alleged in the charge sheet that on 19.06.2014 at about 6.30 p.m., PSI of Thilaknagar police station had received information stating that 5 to 6 persons have assembled near BBMP Park, 6 S.C.No.230/2019 38th Cross, 19th Main Road, Jayanagar 4th 'T' Block, by holding deadly weapons and were making preparation for the purpose of committing dacoity. It is further alleged in the charge sheet that thereafter C.W.1 had called C.W.7 and 8 panchas, C.W.2 to 6- Police constables to the station and told them about the incident and took them to the said place at about 7.00 p.m. It is further alleged in the charge sheet that when they were watching near the said place they found accused No.1 to 6 holding deadly weapons in their hands like long, knife, clubs and chilly powder and they were planing to loot the public by threatening them with deadly weapons. As such, PSI of Thilaknagar police station has conducted the raid and apprehended the accused No.1 to 4 and two long, one club, one knife and chilly powder packet from accused No.1 to 4 by conducting spot mahazar in the presence of mahazar witnesses. It is further alleged in the charge sheet that the accused have committed the offences punishable u/Sec.399 and 402 of IPC.
15. In order to bring home the guilt of the accused as alleged in the charge sheet, prosecution had examined 5 witnesses as P.W.1 to 5. Among them P.W.1 is Investigating Officer. P.W.2 is the police constable. P.W.3 and 4 are the panch witnesses. P.W.5 is the Investigating Officer. Now let us examine the evidence of aforesaid witnesses.
16. P.W.1 and 2in their examination-in-chief have deposed that on 19.06.2014, when P.W.1 was discharging his duty in the police station, at about 6.30 p.m., he has received information stating that about 5 to 6 persons have assembled 7 S.C.No.230/2019 near BBMP Park situated on 19th Main Road, 38th Cross, Jayanagar 4th 'T' Block, by holding deadly weapons, by making preparation to commit dacoity of public. They have further deposed in their examination-in-chief that P.W.1 has called C.W.7 and 8, C.W.2 to 6 police constables and told them about the information which he had received and took them to the spot at about 7.00 p.m. They have further deposed in their examination-in-chief that when they were watching near the place, they have seen accused No.1 to 6 were holding long, clubs, knife in their hands and they were making preparation to commit the offence of dacoity of public. They have further deposed in their examination-in-chief that on confirmation about the said fact, they have conducted raid on the spot and they have caught hold accused No.1 to 4. They have further deposed in their examination-in-chief that accused No.1 and 2 were holding long in their hands, accused No.3 was holding one club and chilly power packet and accused No.4 was holding one knife and chilly power packet in their hands. P.W.1 has conducted mahazar in the said place in between 7.20 p.m. to 9.10 p.m. and seized those material objects. They have further deposed in their examination-in-chief that they have returned to the police station along with the accused and seized articles and P.W.1 has given his information regarding said incident to SHO of the police station. P.W.1 has identified his signature on the complaint and mahazar. P.W.1 and 2 in their examination-in- chief have identified two longs, one club and one knife and two chilly power packets as material objects seized at the time of 8 S.C.No.230/2019 raid from accused No.1 to 4. Hence, Those material objects were marked as M.O.1 to 6.
17. P.W.1 in his chief-examination has stated that on the basis of his information, he has registered Cr.No.200/14 against the accused and forwarded FIR to the court. P.W.1 in his chief-examination has further stated that he has recorded the statement of C.W.7 and 8 panchas and the statement of C.W.2 to 6. P.W.1 in his chief-examination has further stated that Ex.P.1 is the mahazar conducted by him and Ex.P.2 is the information given by him about the incident. P.W.2 in his examination-in-chief has deposed that he has given statement before Investigating Officer about the incident.
18. P.W.3 and 4 are the mahazar witnesses. P.W.3 and 4 in their examination-in-chief have not supported the prosecution case. P.W.3 and 4 have stated in their examination- in-chief that about 8 years back the police have took their signature on Ex.P.1 mahazar in the police station. P.W.3 and 4 have stated in their examination-in-chief that they have not seen the accused earlier and they have not seen M.O.1 to 6. P.W.3 and 4 have stated in their examination-in-chief that they have not given any statement before the police about the incident. Hence, P.W.3 and 4 were treated as hostile and they were cross-examined by Learned Public Prosecutor. But nothing has been elicited during the course of cross-examination to prove that P.W.1 was called them to act as panchas and took them to the place of incident. Further nothing has been elicited during the course of cross-examination of P.W.3 and 4 that they have 9 S.C.No.230/2019 accompanied P.W.1 to the place of alleged incident and they saw accused No.5 and 6 holding deadly weapons in their hands and they were making preparation to commit the offence of dacoity. Further nothing has been elicited during the course of cross-examination of P.W.3 and 4 to prove that P.W.1 has conducted raid in their presence and apprehended accused No.1 to 4 and conducted mahazar in their presence in between 7.20 p.m. to 9.10 p.m. in the said place and seized M.O.1 to 6. P.W.3 and 4 have stated in their examination-in-chief that they have not given any statement before the police as per Ex.P.5 and 6 about the incident. P.W.3 and 4 in their cross-examination by Learned Public Prosecutor have denied all the suggestions put to them on behalf of the prosecution.
19. P.W.5/ C.W.9 in his examination-in-chief has deposed that on 20.09.2014, he has received further investigation of the case from P.W.1. P.W.5 has further deposed in his examination-in-chief that on 25.09.2014, he has arrested the accused No.5 and recorded his voluntary statement. P.W.5 has further deposed in his examination-in-chief that since accused No.6 was absconded and since the investigation of the case was completed, he has filed the charge sheet against the accused.
20. From the evidence of prosecution witnesses as discussed above, it could be seen that only P.W.1 and 2 have supported the case of the prosecution. Among them P.W.1 is the PSI of complainant police who has conducted the raid and who 10 S.C.No.230/2019 has apprehended the accused and he is the first informant. P.W.1 has also partly investigated the case. P.W.2 is the police constable who was working under P.W.1. P.W.1 and 2 are the police officials and they are interested witnesses. The prosecution has examined two independent witnesses as P.W.3 and 4. As it is discussed earlier, P.W.3 and 4 have not supported the case of the prosecution. They have not stated anything about they witnessing the accused assembling near BBMP Park on Jayanagar 4th 'T' Block, by holding deadly weapons for committing dacoity and they have not deposed anything about the accused making preparation to commit dacoity. They have not deposed anything about seizure of M.O.1 to 6 from the possession of the accused by P.W.1 by conducting mahazar in their presence. Since the prosecution has alleged that the accused have committed the offences punishable u/Sec.399 and 402 of IPC, the prosecution has to prove beyond reasonable doubt that the accused were assembled in the alleged place of the incident for the purpose of committing dacoity and they were making preparation for committing the dacoity. The prosecution has to prove beyond reasonable doubt that actual steps were taken by accused for preparing dacoity and the assembly could only be with the purpose of committing dacoity.
21. The Hon'ble Supreme Court of India in Chaturi Yadav V/s State of Bihar (AIR 1979 SC 1412) has held that mere fact of presence of the accused at the place of alleged incident itself will not sufficient to prove the fact that the accused 11 S.C.No.230/2019 have assembled for the purpose of committing dacoity or for making preparation to accomplish that fact. Further Hon'ble Supreme Court of India in Sridhar Koeri V/s State of Bihar, 2001(43) ACC 5 has held that the mere fact that the accused were arrested on the spot and some articles including five arms were recovered from their possession would not be sufficient to prove the charge that they have assembled for making preparation for commission of dacoity. In State of U.P. V/s Penni, 2008 Crl.C.J.1028, the Hon'ble Supreme Court of India has held that dacoits were arrested without any resistance or struggle, the accused were held entitled for acquittal.
22. P.W.1 in his cross-examination has stated that he has mentioned the fact of receiving the information in the station house diary. P.W.1 in his cross-examination has further stated that he has not produced the station house diary. P.W.1 in his cross-examination has further stated that when he has received information, he has not informed to the beat police of Thilaknagar police station. P.W.1 in his cross-examination has further stated that Thilaknagar police station come within beat No.1. P.W.1 in his cross-examination has further stated that when they have gone to the place of the incident, no public of Thilaknagar have given any complaint to them stating that the accused have attempted to rob them. P.W.1 in his cross- examination has further stated that he has not mentioned the name of the person who wrote mahazar. P.W.1 in his cross- examination has further stated that he has not conduced the mahazar in the presence of local persons. P.W.2 in his cross-
12S.C.No.230/2019 examination has also stated that Thilaknagar police station is come with beat No.1. P.W.2 in his cross-examination has further stated that no public have given complaint about the accused attempted to rob them.
23. In this case also no allegations are made in the evidence of P.W.1 and 2 that the accused have tried to ran away from the place of the incident after seeing them and accused have resisted or try to escape from the place after conducting the raid. Nowhere in the evidence of P.W.1 and 2 or in the statement of P.W.1 and 2 it is stated that the accused have tried to run away from the place after seeing them or at the time of raid. If really the accused have assembled with intention to commit dacoity and if they were making preparation to commit dacoity of public, the accused might have tried to ran away on seeing the police at the spot. It is not the case of the prosecution or P.W.1 and 2 that they have not gone to the spot in police uniform. If really the accused have assembled for commission of offence of dacoity and if they were making preparation to commit dacoity, definitely on seeing the police vehicle and police personals, the accused would have try to runaway from the place.
24. Further P.W.1 and 2 in their evidence have not clearly stated on what basis they have came to know that the accused have assembled in the spot with intention of committing dacoity and on what basis they came to know that the accused were making preparation to commit dacoity. Mere possession of 13 S.C.No.230/2019 unauthorized weapons by the accused would not warrant any inference that the accused were planned, prepared and assembled to commit dacoity. Further mere assembly of accused without preparation is not enough to prove the commission of offence u/Sec.399 and 402 of IPC. Further as per the evidence of P.W.1, he had called the C.W.2 to 6 police constables to the police station and thereafter all have gone to the spot in government jeep. It is the duty of the PSI to enter the information which he received regarding commission of the offence in the station house diary. Further before going to raid, the concerned police have to enter the said fact in the station house diary. But the Investigating Officer has not produced any such station house diary. Further he has also not produced any documents to show that P.W.2 to 6 were on duty at the time of alleged raid. Further the alleged incident took place in public place that too near public park. If the accused really assembled in the said area by holding deadly weapons the public might have witnessed the said incident. Further in such public place police raid was conducted by the police, definitely public will assembled there. But Investigating Officer has not made any efforts to record the statement of independent witnesses to the alleged incident. Further no public of the said area have complained to the complainant police regarding accused or any other persons attempting to commit robbery on them on the said date. Further no complaint regarding certain persons assembling near the park in suspicious manner with deadly weapons is also given by any public to the police. Under these 14 S.C.No.230/2019 facts and circumstances, doubt arises about the evidence of P.W.1 and 2.
25. The prosecution has failed to adduce clear and convincing evidence to show that the accused were assembled at alleged date, place and time in order to commit the offence of dacoity and they were making preparation to commit the offence of dacoity. Further prosecution has also failed to prove beyond reasonable doubt that M.O.1 to 6 were seized from the possession of accused. Further the prosecution has also failed to prove the conduct of spot mahazar and seizure mahazar beyond reasonable doubt. P.W.1 and 2 are the police officials. There is no corroborative evidence of any independent witness to the evidence of P.W.1 and 2. Further it is to be noted here that P.W.1 is the first informant and he has also partly conducted the investigation of the case. Though P.W.1 has given his information about the incident, he himself has registered criminal case against the accused and he himself has recorded the statement of the panchas and statement of the witnesses. Further P.W.1 has recorded the voluntary statement of the accused and he has also took the accused to the police custody and conducted the investigation of the case. The first informant cannot act as Investigating Officer to investigate the matter. This fact is also creates doubt about the investigation of P.W.1. Major part of investigation is conducted by P.W.1 alone. P.W.5 has only arrested the accused No.5 and filed charge sheet. Under these facts and circumstances, I am of the opinion that only on the basis of interested and uncorroborated evidence of P.W.1 and 2 15 S.C.No.230/2019 and for the other facts and circumstances as discussed above, doubt arises about the case of the prosecution that the accused have committed the offences punishable u/Sec.399 and 402 of IPC. The prosecution has failed to prove the commission of the said offences by the accused No.4 beyond reasonable doubts. As such, I am of the opinion that benefit of doubt should go in favour of accused No.4 and accused No.4 is entitled for acquittal for the alleged offences. Accordingly, I answer Points No.1 and 2 in Negative.
26. Point No.3:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
ORDER Accused No.4 is acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 399 & 402 of I.P.C.
The bail bond of the accused No.4 and surety bond of surety of the accused No.4 are hereby stands cancelled.
Accused No.4 is set at liberty forthwith. It is noticed that no split up charge sheet is filed against accused No.3 inspite of order dated 28.09.2018. There is no reference in the order sheet about filing of split up charge sheet. Hence, issue notice to I.O. seeing clarification whether split up charge sheet is filed against accused No.3 or not. If it is found that no split up charge sheet is filed against accused No.3, then issue notice to I.O.
to file split up charge sheet immediately against accused No.3 16 S.C.No.230/2019 Since case against accused No.3 is yet to be tried, presence of M.O.1 to 6 is very much necessary. As such, no order as to disposal of M.O.1 to 6 is passed and those material objections are ordered to be kept intact till confirmation of the completion of the trial against accused No.3.
(Dictated to Stenographer, directly over computer corrected and then pronounced by me in open court on this the 13th day of March, 2023) Digitally signed by PRAMODA B PRAMODA B G GDate: 2023.03.13 17:37:44 +0000 Sri.B.G.Pramoda, B.A.L., LL.B., LII Addl. City Civil & Sessions Judge, Bangalore.
: ANNEXURE:
List of witnesses examined for the prosecution:
P.W.1 Ravikiran P.W.2 Andani Gowda P.W.3 Fayaz Pasha P.W.4 Raheem P.W.5 Sadiq Pasha
List of witnesses examined for the defence:
Nil List of documents exhibited for the prosecution:
Ex.P.1 Seizure mahazar
Ex.P.1(a) Signature of P.W.1
Ex.P.2 Report give by P.W.1
Ex.P.2(a) Signature of P.W.1
Ex.P.3 F.I.R.
Ex.P.3(a) Signature of P.W.1
Ex.P.4 P.F.
Ex.P.4(a) Signature of P.W.1
Ex.P.5 Statement of witness
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Ex.P.5(a) Signature of P.W.3
Ex.P.6 Statement of witness
Ex.P.6(a) Signature of P.W.4
List of documents exhibited on behalf of defence:
Nil List of M.O. marked for the prosecution :
M.O.1 & 2 Two Longs
M.O.3 One wooden club
M.O.4 One knife
M.O.5 & 6 Chilly Powder pockets
PRAMODA B Digitally signed by PRAMODA
BG
G Date: 2023.03.13 17:37:52
+0000
LI Addl.City Civil & Sessions Judge,
Bangalore City.
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