Bangalore District Court
State By Cubbon Park P.S vs No.1 To 3 Are on 5 January, 2021
IN THE COURT OF THE VIII ADDL. C.M.M., BENGALURU.
Dated this the 5th Day of January 2021
Present: Sri.Jayaprakash D.R, B.A.LL.M.
VIII ADDL.C.M.M., BENGALURU.
C.C. NO.28426/2017
JUDGMENT U/S 355 OF THE Cr.P.C. 1973.
1. Sl. No. of the Case 28426/2017
2. The date of commission 18112016 to 19112016
of the offence
3. Name of the complainant State by Cubbon Park P.S.
4. Name of the accused 1. Deva s/o late Ramesh
aged about 45 years,
r/at No.393, Anekere Beedi
Mandya Town.
2. Shivaraj s/o Ramesh
aged about 21 years
r/at behind Triveni Talkies
2nd Cross, Gulbarga Town
Gulbarga.
3. Manja @ Vandre s/o
Rangegowda, aged about 45
years, r/at near Mandya
Sugar Factory Slum, near
Anekere Kalikamba Temple,
Mandya Town.
2 C.C.No.28426/2017
4. Shekhar s/o late
Channamakan, aged 45 years,
r/at C/o Kandaswamy's rent
house, House No.6, Amith
Khan Garden, J.C.Road, 2nd
Cross, Kalasipalya, Bangalore.
(SPLIT UP)
5. The offence complained of U/s. 379, 411, 427 of IPC and
or proved 2(a) of Prevention of
Destruction and Loss of
Property Act
6. Plea of the accused and Pleaded not guilty
his/her examination
7. Final Order Acting U/sec.248(1) Cr.P.C.
accused No.1 to 3 are
acquitted
8. Date of such order 05012021
For the following:
JUDGMENT
The Police SubInspector of Cubbonpark PS has filed the charge sheet against the accused No.1 to 4 for an offences Punishable U/s. 379, 411, 427 of IPC and 2(a) of Prevention of Destruction and Loss of Property Act.
2. The case of the prosecution in brief is as under: 3 C.C.No.28426/2017
The accused No.1 to 3 have stolen the batteries worth Rs.7,000/ to Rs.8,000/ from the traffic signal situated at LRDE Junction, Rajbhavan Road at night hours on 1811 2016 and accused No.4 has dishonestly received the said batteries which is a public property, knowing the same to be stolen property. The accused No.1 to 4 in furtherance of common intention have committed mischief by causing loss to the tune of Rs.7,000/ to Rs.8,000/ to the government.
Hence, it is contended that the accused have committed offences punishable U/s. 379, 411, 427 of IPC and 2(a) of Prevention of Destruction and Loss of Property Act.
3. The accused No.1 to 3 have secured under body warrant and accused No.4 appeared before this Court and was enlarged on bail. On 08012019 the bail application filed by accused No.1 to 3 was allowed. However, the accused No.1 to 3 have not deposited cash security, hence, accused No.1 to 3 are still in judicial custody in some other case and they are secured in this case under body warrant. 4 C.C.No.28426/2017 Accused No.4 remained absent during the course of trial. Hence, his bail bond was canceled and cash security of accused No.4 is forfeited to the state. As accused No.4 was not secured in spite of issuance of repeated warrants case against the accused No.4 is split up and a separate split up case is registered against the accused No.4 in C.C.16471/2020.
4. The provision of Section 207 of Cr.P.C. was complied by furnishing charge sheet and its enclosures to the accused No.1 to 3. The charge was read over and explained to the accused No.1 to 3. Accused No.1 to 3 pleaded not guilty and claimed to be tried.
5. The prosecution has examined 8 witnesses and got marked 13 documents in its favour and closed its side. In spite of repeated issuance of process to CW2 to 7 the prosecution has failed to secure their presence. Hence, they were dropped from examination. The provision u/s 313 of Cr.P.C. was complied by recording the statement of accused 5 C.C.No.28426/2017 No.1 to 3. The accused No.1 to 3 have denied the incriminating evidence against them and submitted that they have got no defence evidence.
6. Heard arguments of both sides.
7. From the material available on record, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that on 18112016 at night hours, at Rajabhavana Road, LRDE Junction Signal within the jurisdiction Cubbon Park PS, the accused 1 to 3 have stolen the Exide power Company 12 volt, 75 AH 1 Battery and 12 Volt 42 AH1 Battery worth Rs.7,000 - Rs.8,000/ and thereby committed the offence punishable U/sec. 379 r/w 34 of IPC and 2(a) of Prevention of destruction and loss of property Act?
2.Whether the prosecution proves beyond all reasonable doubt that accused No.1 to 3 6 C.C.No.28426/2017 had common intention with accused No.4 who is said to have dishonestly received the above said batteries belonging to public property knowing the same to be stolen property, and thereby committed the offence punishable U/sec. 411 r/w 34 of IPC and 2(a) of Prevention of destruction and loss of property Act?
3.Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused 1 to 3 in furtherance of common intention with accused No.4 have committed mischief by causing loss and to the tune of Rs.7,000/ to Rs.8,000/ to the government and thereby committed the offence punishable U/sec.427 r/w 34 of IPC and 2(a) of Prevention of destruction and loss of property Act?
4. What order?7 C.C.No.28426/2017
8. Upon appreciation of evidence and hearing arguments my findings on the above points are as under:
Point No.1 to 3 : In the Negative.
Point No.4 : As per final order,
for the following:
REAS ONS
9. Point No.1 to 3: For the sake convenience and avoid repetition of facts, I have taken up point No.1 to 3 for common discussion.
10. It is the case of the prosecution that accused No.1 to 3 have stolen the batteries worth Rs.7,000/ to Rs.8,000/ from the traffic signal situated at LRDE Junction, Rajbhavan Road at night hours on 18112016 and accused No.4 has dishonestly received the said batteries which is a public property, knowing the same to be stolen property. The accused No.1 to 4 in furtherance of common intention have committed mischief by causing loss to the tune of Rs.7,000/ to Rs.8,000/ to the government. Hence, it is 8 C.C.No.28426/2017 contended that the accused have committed offence punishable U/s. 379, 411, 427 of IPC and 2(a) of Prevention of Destruction and Loss of Property Act.
11. In order to prove allegations against the accused prosecution has examined in all 8 witnesses at PW1 to 8 and got marked 13 documents at Ex.P1 to P13 in its favour.
12. PW1 is the ASI who has lodged first information at Ex.P1 about theft of batteries from the signal light box situated at LRDE Junction at Rajbhavan road. PW1 has given evidence inconsonance with the prosecution case. Nothing crucial has been elicited from the mouth of PW1 with respect to theft of batteries. However, PW1 in his chief examination identifies photo at Ex.P4 which contains 2 batteries. It is crucial to note in Ex.P1 first information it is stated that the batteries stolen were of the brand Exide Power Company of 100 AH. In Ex.P1 it is not mentioned how many batteries were stolen. Even in chief examination PW1 has stated that the batteries seized and handed over to them 9 C.C.No.28426/2017 was Exide Company batteries. However, in chief examination PW1 has stated that said batteries were of 65 AH power. In this background evidence of PW5 and 8 assumes importance. PW5 and 8 are the Police Head Constables who have apprehended accused No.1 and seized 2 batteries from accused No.1. It is crucial to note that both PW5 and 8 in their chief examination states that they have seized two batteries of Amron Company from accused No.1. PW5 and 8 identifies very same batteries found in Ex.P4 as batteries seized from accused No.1. PW1 identifies batteries found in Ex.P4 as batteries belonging to their police station and same are of Exide Company. Whereas PW5 and 8 identifies batteries found in Ex.P4 as batteries of Amron Company. This contradiction rises doubt with respect to prosecution case with respect to the very property alleged to be stolen.
13. Further, according to prosecution under Ex.P11 several batteries mentioned in Ex.P11 were seized from the house of 10 C.C.No.28426/2017 accused No.4 who is shown as receiver of stolen goods. CW4 and 5 are the panch witnesses to Ex.P11 and they are not secured and examined by prosecution to prove Ex.P11. Even though CW13 who is the Investigating Officer in whose presence Ex.P11 is said to be drawn is examined as PW2, his evidence is discarded as he did not subject himself for cross examination. Therefore, seizure panchanama at Ex.P11 is not proved in accordance with law.
14. According to prosecution case the rod which was used to commit theft was recovered at the instance of accused No.1 to 3 near flyover of Sultan Road of Chamarajpet under seizure panchanama at Ex.P12. However, CW6 and 7 who are the panch witnesses to Ex.P12 are not secured and examined by prosecution and evidence of PW2 is discarded. Therefore,even Ex.P12 seizure panchamana is not proved in accordance with law.
15. Ex.P2 is the spot mahazar of the place of theft. However, CW2 and 3 who are the panch witnesses to Ex.P2 11 C.C.No.28426/2017 are also not secured and examined by prosecution. Of course, PW1 has given evidence with respect to Ex.P2 and nothing crucial has been elicited from the mouth of PW1 with respect to Ex.P2. Hence, Ex.P2 spot mahazar is proved by the prosecution. However, as the prosecution has failed to prove seizure panchanamas at Ex.P11 and 12, proving of Ex.P2 spot mahazar is of little consequence.
16. According to averments of Ex.P1 theft has taken place after 10.00 p.m., on 18112016. However, PW5 and 8 who are the police officials in their evidence states that they have apprehended accused No.1 on 11072016 itself. This contradiction in the evidence of prosecution witnesses and its documents also rises doubt with respect to prosecution case.
17. In view of the above discussions prosecution has failed to prove beyond all reasonable doubts that the accused No.1 to 3 have committed the offences alleged against them. Accordingly, I hold point No.1 to 3 in the Negative. 12 C.C.No.28426/2017
18. Point No.4: In view of my findings of point No.1 to 3, I proceed to pass the following:
ORDER Acting under Section 248 (1) of Cr.P.C., accused No.1 to 3 are hereby acquitted of the offences punishable U/s. 379, 411, 427 of IPC and 2(a) of Prevention of Destruction and Loss of Property Act.
MO1 being worthless shall be destroyed after the appeal period is over.
Office to issue release intimation to Jail Authorities to release accused No.1 to 3 if they are not required in any other case.
(Dictated to the stenographer transcribed and computerized by her, verified and corrected by me, then the judgment pronounced by me in the open court, on this 5 th day of January 2021.) (Jayaprakash D.R.) VIII Addl. CMM, Bangalore.13 C.C.No.28426/2017
ANNEXURE
1. Witnesses examined for the prosecution :
P.W.1 : Ravindra P.W.2 : T.D.Raju - DISCARDED P.W.3 : Suresh P.W.4 : Ravi P.W.5 : Naveen P.W.6 : Raghunath P.W.7 : Thippeswamy P.W.8 : Somashekar
2. Documents marked on behalf of the prosecution:
Ex.P.1 : Complaint Ex.P.1(a) : Signature of P.W.1 Ex.P2 : Mahazar Ex.P2(a) : Signature of PW1 Ex.P3 : Indemnity Bond Ex.P4 : Photo Ex.P5 : Report Ex.P6 : FIR Ex.P6(a) : Signature of witness Ex.P7 : Seizure Mahzar Ex.P7(a) : Signature of witness
Ex.P8 to 10 : Voluntary Statement of accused Ex.P11 : Seizure Mahazar - Batteries Ex.P11(a) : Signature of witness Ex.P12 : Seizure mahazar - Rod Ex.P12(a) : Signature of witness Ex.P13 : Report Ex.P13(a) : Signature of PW6 14 C.C.No.28426/2017
3. Witnesses examined for the defence:
NIL
4. Documents marked on behalf of the defence:
NIL VIII Addl. C. M. M. Bangalore.15 C.C.No.28426/2017
Judgment pronounced in the open court (vide separate order) ORDER Acting under Section 248 (1) of Cr.P.C., accused No.1 to 3 are hereby acquitted of the offences punishable U/s. 379, 411, 427 of IPC and 2(a) of Prevention of Destruction and Loss of Property Act.
MO1 being worthless shall be destroyed after the appeal period is over.
Office to issue release intimation to Jail Authorities to release accused No.1 to 3 if they are not required in any other case.
VIII Addl. C. M. M. Bangalore.