Bangalore District Court
State Of Karnataka vs Raju S/O Murthy on 6 October, 2018
IN THE COURT OF LXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-63).
Dated : This the 06th day of October, 2018
:Present:
Sri PARAMESHWARA PRASANNA B., B.A., LL.B.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru City.
SESSIONS CASE NO.388/2017
Complainant :- State of Karnataka
By Rajagopal Nagar Police Station,
Bengaluru.
[Rep. by : Public Prosecutor]
.V/S.
Accused :- 1. Raju S/o Murthy,
Aged about 20 years,
R/at 2nd Cross,
Near New Carmel School,
Om Shakthi Temple Road,
Adjacent to Ganesha Temple,
Hegganahalli, Bengaluru.
2. Narasimharaju @ Rajahuli,
S/o Venkataramaiah,
Aged about 19 years,
R/at 5th Cross, 4th Main Road,
Near New Carmel School,
Sanjeevini Nagar,
Old Cracker Godwon Road,
Hegganahalli, Bengaluru.
[By : Sri M.T.V., Advocate]
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S.C.No.388/2017
1. Date of commission of : 03.07.2014
offence
2. Date of report of offence : 03.07.2014
3. Date of arrest of the : A.1 & A.2 were
accused arrested on
03.07.2014
4. Name of the complainant : Sri B.P. Girish,
PSI, Rajagopal Nagar
Police Station.
5. Date of commencement : 24.10.2017
of trial
6. Date of closing of : 03.10.2018
evidence
7. Offences complained of : U/Ss.399 & 402 of IPC.
8. Opinion of the Judge : A.1 & 2 are acquitted
U/S.235(1) of Cr.P.C.
(PARAMESHWARA PRASANNA B.),
LXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This case arise out of charge sheet submitted by Rajagopal Nagar Police Station, Bengaluru, against accused Nos.1 and 2 in Crime No.361/2014 for the alleged offences punishable under Sections 399 and 402 of IPC.
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2. The case of the prosecution in brief, as culled out in the charge sheet is that:-
On 03.07.2014 night at about 9.00 pm., when CW.1- Sri B.P. Girish, PSI of Rajagopal Nagar Police Station along with his staff CW.10 - Sri Maregowda was proceeding in a motorcycle in Hegganahalli Main Road, Bengaluru on patrolling duty an informant met CW.1 and informed him that some persons being equipped with deadly weapons were making preparation for committing some crime or dacoity in the ground in front of Lakshmi Bar, Andhrahalli Main Road, Bengaluru. Immediately, CW.1 secured his staff - CW.5 to 9 and he sent CW.10 to near by the spot for confirming about the information, CW.10 went nearby the spot and returned back by conforming the information and thereafter CW.1 secured panchas - CW.2 to 4 and night at about 9.30 p.m., CW.1, his staff and panchas went to the spot and CW.1 and his staff surrounded the gathering and nabbed accused Nos.1 to 6 and on enquiry, the accused Nos.1 to 6 revealed their names and addresses and they confessed 4 S.C.No.388/2017 that they were hatching conspiracy for committing dacoity. Thereafter, by drawing mahazar at the spot from 9.30 p.m., to 10.45 p.m., one iron rod, four wooden clubs and one chilly powder packet were recovered from accused Nos.1 to 6 in the presence of panchas and on return to the Police Station along with accused Nos.1 to 6 and seized articles, CW.1 by handing over the accused Nos.1 to 6 and seized articles, submitted report regarding the incident along with mahazar to SHO - CW.11 and on receipt of the report, FIR came to be registered in Crime No.361/2014 against the accused Nos.1 to 6 for the alleged offences punishable under Sections 399 and 402 of IPC. Subsequently, on completion of investigation, CW.11 filed the charge sheet against accused Nos.1 to 6 for the offences punishable under Sections 399 and 402 of IPC before the learned VII ACMM, Bengaluru.
3. On receipt of charge sheet, the learned VII ACMM, Bengaluru, took cognizance of the offences against accused Nos.1 to 6 and case was originally registered against accused Nos.1 to 6 in 5 S.C.No.388/2017 C.C.No.28104/2014. Subsequently, since accused Nos.1, 2, and 6 kept absent and could not be secured despite of issuance of NBW, the case against accused Nos.1, 2 and 6 came to be split-up and on filing of the split-up charge sheet by the SHO of concerned Police Station, the case against accused Nos.1, 2 and 6 came to be registered in C.C.No.30796/2014. Subsequently, the accused Nos.1 and 2 were secured and since accused No.6 could not be secured, the case against him came to be split-up as per the order dated 04.03.2017. Since the offences alleged against the accused Nos.1 and 2 are exclusively triable by the Court of Sessions, the learned VII ACMM, Bengaluru, as per the order dated 04.03.2017 committed the case against accused Nos.1 and 2 to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, case was registered against accused Nos.1 and 2 in S.C.No.388/2017 and the same was made over to this Court for disposal in accordance with law.
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4. That after admitting of the case, on hearing the prosecution as well as the learned counsel for accused Nos.1 and 2 under Section 227 of Cr.P.C., this Court framed the charge against accused Nos.1 and 2 for the offences punishable under Sections 399 and 402 of IPC. When the charge was read over and explained to accused Nos.1 and 2, they pleaded not guilty and claims to be tried and as such, the case was posted for trail.
5. That in order to prove its case, out of 11 witnesses cited in the charge sheet, the prosecution got examined only two witnesses i.e., CW.5 and 10 as PW.1 and PW.2 and got marked the documents as Ex.P1 and 1(a) and the alleged seized articles as MOs.1 to 6. In this case, the Police officials CW.5 to 10 are alleged to have assisted CW.1 during the alleged raid and recovery and out of the said witnesses, as CW.5 and 10 have been examined as PW.1 and 2, similar type of witnesses i.e., Cw.6 and 8 were dropped. Since despite of taking repeated coercive steps, the concerned Police have not secured CW.1 to 4 and 11, in order to render speedy 7 S.C.No.388/2017 justice, the prayer made on behalf of prosecution for reissuing further coercive steps against the aforesaid witnesses was rejected and the prosecution evidence was taken as closed on 03.10.2018. Thereafter, the matter was posted for recoding of the statement of accused Nos.1 and 2 under Section 313 of Cr.P.C. The accused Nos.1 and 2 when examined under Section 313 of Cr.P.C., denied the incriminating circumstances appearing in the evidence against them, but they have not led any defence evidence on their behalf.
6. Heard arguments of both the sides.
7. Under the facts and circumstances of the case, the following points arise for consideration of this Court :-
(1) Firstly : Whether the prosecution proves beyond all reasonable doubt that on 03.07.2014 night at about 9.30 pm., in the ground, near Lakshmi Bar, Andhrahalli Main Road, Bengaluru, the accused Nos.1 and 2 along with other accused made preparation for committing dacoity and thereby the accused Nos.1 and 2 have committed an offence punishable under Section 399 of IPC?8
S.C.No.388/2017 (2) Secondly : Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, the accused Nos.1 and 2 along with other accused were one of six persons, who had assembled for the purpose of committing dacoity and thereby the accused Nos.1 and 2 have committed an offence punishable under Section 402 of IPC?
(3) What Order?
8. My findings on the above points are as follows :-
Point Nos.1 & 2 : In the negative;
Point No.3 : As per final order,
for the following :-
REASONS
9. Point Nos.1 & 2 :- Since these points are
interconnected with each other, they are taken together for discussion to avoid repetition.
10. The case of the prosecution in brief is that on 03.07.2014 night at about 9.30 p.m., when accused Nos.1 to 6 being equipped with deadly weapons making preparation for committing dacoity in the ground, near Lakshmi Bar, Andhrahalli Main Road, Bengaluru, CW.1 on credible information about the same, along with his staff 9 S.C.No.388/2017 CW.5 to 10 and panchas CW.2 to 4 conducted raid and CW.1 and his staff surrounded the gathering and nagged accused Nos.1 to 6 and on enquiry, the accused No.1 to 6 revealed their names and addresses and they also revealed that they were making preparation for committing dacoity and thereafter, by drawing mahazar at the spot from 9.30 p.m., to 10.45 p.m., one iron rod, four wooden clubs and one chilly powder packet were recovered from accused Nos.1 to 6 in the presence of panchas and on return to the Police Station along with accused Nos.1 to 6 and seized articles, CW.1 by handing over the accused Nos.1 to 6 and seized articles, submitted report regarding the incident along with mahazar to SHO - CW.11 and on receipt of the report, FIR came to be registered in Crime No.361/2014 against the accused Nos.1 to 6 for the alleged offences punishable under Sections 399 and 402 of IPC.
11. That in order to prove the case of the prosecution, out of 11 witnesses cited in the charge sheet, the prosecution got examined only two witness 10 S.C.No.388/2017 i.e., CW.5 and CW.10 as PW.1 and PW.2 and got marked the documents as Ex.P1 and 1(a) and the alleged seized articles as MOs.1 to 6.
12. At the outset, it is very pertinent to note that in this case, the crucial and material witnesses to the prosecution i.e., CW.1 who alleged to have received credible information and conducted the alleged raid and panchas CW.2 to 4 who are alleged independent witnesses to the alleged raid and recovery and CW.11 who is the I.O., are not examined by the prosecution despite of sufficient of opportunity. Hence, adverse inference is drawn against the prosecution under Section 114 of Indian Evidence Act for non-examination of the aforesaid crucial and material witnesses. In this case, the crucial and material documents i.e., report regarding the incident and FIR, are not got marked by the prosecution. Since, CW.2 to 4 who are the alleged pancha witnesses to Ex.P1 - mahazar, have not been examined by the prosecution, drawing of Ex.P1 - mahazar and alleged 11 S.C.No.388/2017 recovery of Mos.1 to 6, itself has not been proved by the prosecution.
13. PW.1 and PW.2 alleged to have assisted CW.1 during the alleged raid and recovry. PW.1 during cross-examination stated that he cannot say as to which of the accused was holding which of the weapon among MOs.1 to 6 and he also stated that the public have not given any complaint to the effect that the accused were making preparation for committing dacoity. Even the signature of PW.1 is not found in Ex.P1 - mahazar to show that he was present at the alleged spot.
14. PW.2 in his evidence stated that on direction of CW.1 he went near spot and got confirmed that accused were making preparation for committing dacoity. PW.2 during the cross-examination stated that he has not overheard the conversation of the accused. Hence, he confirming that the accused had design of committing dacoity cannot be believed.
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15. Even though, PW.1 and 2 deposed before the Court that they assisted CW.1 during the allege raid and recovery and they were present during drawing of Ex.P1 - mahazar at the spot, as their evidence is not corroborated by the independent pancha witnesses, their evidence does not inspire confidence of this Court.
16. In the case of Agar v/s State of Rajasthan, reported in 2003 Criminal Law Journal 1997, it was held that "to constitute an offence under Section 399 of IPC some act amounting to preparation for committing dacoity must be proved". But in the present case, on looking into evidence of PW.1 and PW.2, the prosecution has not proved any act amounting to preparation for committing dacoity. Further, in the case of Joseph vs. State of Kerala, reported in 1993 SCW 2900, it was held that 'the prosecution must show that there were persons who had conceived design of committing dacoity to attract Sections 399 and 402 of IPC.' 13 S.C.No.388/2017 The Hon'ble Apex Court in the case of Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, it was held that:
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality- Decision of Patna High Court- Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises, which was quite close to the market at 1. a.m., and that some of them were armed with guns, some had cartridges and others ran away - held that, conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m., did not by itself prove that they had assembled making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated Decision of Patna High Court, Reversed."
17. The Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
"Criminal Procedure Code, 1973 - Section 374(2) - Appeal against Judgment of conviction and order of sentence - Re-appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery - The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, 14 S.C.No.388/2017 The credibility of the investigation is doubtful as PW.3 having registered the crime, has himself investigated the case."
Further held that, "In view of the material contradictions in the evidence of PWs.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt."
18. Thus it is clear from the above precedents that to sustain conviction under Sections 399 and 402 of IPC, the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that the persons assembled conceived any such designs for commission of dacoity and in fact, they intended to achieve the object for which they had assembled. But in this case, there is no reliable and credible evidence to 15 S.C.No.388/2017 show that accused Nos.1 and 2 along with other accused were making preparation to commit dacoity. In view of the facts and circumstances of the case and the precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused Nos.1 and 2 beyond all reasonable doubt and as such, accused Nos.1 and 2 are entitled for acquittal on benefit of doubt. Hence, point Nos.1 and 2 are answered in the negative.
19. Point No.3 :- In view of the reasons discussed above, I proceed to pass the following:-
ORDER Acting under Section 235 (1) of Cr.P.C, accused Nos.1 and 2 are acquitted in respect of the offences punishable under Sections 399 and 402 of the Indian Penal Code.
The articles marked as MOs.1 to 6 shall be preserved for the trial of split-up accused Nos.3 to 6.16
S.C.No.388/2017 The earlier personal bond and surety bond of the accused Nos.1 and 2 shall be continued for a period of six months from today as a compliance of Section 437(A) of Cr.P.C. (Dictated to the Judgment Writer, transcribed and computerized by him, transcript thereof corrected and then pronounced by me in the open Court this the 06 th day of October, 2018.) (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
ANN EXURE List of witnesses examined on behalf of prosecution :-
PW.1 : Sri Siddappa, PW.2 : Sri Maregowda N.
List of exhibits marked on behalf of prosecution :-
Ex.P1 : Mahazar dated 03.07.2014, Ex.P1(a) : Signature of PW.2.
List of material objects marked on behalf of prosecution :-
MO.1 : Long,
MOs.2 to 5 : Wooden Clubs (4 in numbers),
MO.6 : One chilly powder packet.
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List of witnesses examined on behalf of defence :-
NIL List of exhibits marked on behalf of defence :-
NIL List of material objects marked on behalf of defence :-
NIL (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
*HRN/-