Bangalore District Court
Gowtham Chand vs Sharebhardhur on 27 June, 2025
KABC030335682011 Digitally signed
DEEPA by DEEPA
VEERASWAMY
VEERASWAMY
Presented on : 09-11-2011
Registered on : 09-11-2011
Decided on : 27-06-2025
Duration : 13 years, 7 months, 18 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 27th Day of June, 2025
C. C. No.33526/2011
(Crime No.128/2011)
State by J.C. Nagar Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
1. Sri. Sher Bahadur-Split up
Aged about 36 years,
S/o Sri Mangal Bahadur,
2. Sri Ramesh Bahadur-Split up
Aged about 33 years,
S/o Sri Kishan Bahadur,
KABC030335682011 CC No.33526/2011
3. Sri Ram Bahadur -Split up
Aged about 34 years,
S/o Sri Prem Bahadur,
4. Sri Mothi Edi -Split up
Aged about 35 years,
S/o Late Sri Rajmal Edi,
Accused No.1 to Accused No. 4 are
R/o Kotadeval Panchayath,
Ward No.8, Jinnad Village,
Bajang Jilla, Sethi Joon,
(Anchal) Nepal.
5. Sri Mamu @ Gulam Khadar,
Aged about 42 years,
S/o Sri Late Husain Saab,
R/at No.5A/3, Near Yarab Darga,
Tenganikotte, Krishnagiri taluk,
Tamilnadu State.
6. Sri Sadiqulla Khan-Split up
Aged about 26 years,
S/o Sri Nazeem Ulla Khan,
R/at No.63, 7th Cross,
Mangammanapalya road,
Bommanahalli, Bengaluru.
2
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7. Sri Imtiyaz,
Aged about 28 years,
S/o Sri Iliyaz,
R/at Beside Mecca Masjid,
4th Cross, Mecca Masjid Road,
Mangammanapalya,
Bengaluru.
8. Sri Babu @ Babu-Split up
Aged about 24 years,
S/o Sri Syed Jaffer,
R/at No.85, 2nd Cross,
Gulgarga Jopadi,
Beside BTM Kere,
Bommanahalli, Bengaluru.
9. Sri Mujamil Pasha @ Lambu,
Aged about 23 years,
S/o Sri Safiulla,
R/at Rental house of Khalid,
Beside Jaleel Masjid, Behind Koli Angadi,
In front of Solapriya Apartment,
Managammanapalya,
Bengaluru.
10. Sri Sunil Thapa-Split up
Aged about 34 years,
S/o Sri Tilak Thapa,
R/at Aqua Packaging
3
KABC030335682011 CC No.33526/2011
Drinking Water Factory,
Kanakapura Road,
Kaggalipura,
Bengaluru City. ... Accused
(Rep by Sri Vidyasagar S.S Adv for Accused No.5)
(Rep by Sri B.R.Murali Krishna, Adv for Accused No.7
& 9)
1. Date of commission of 22-08-2011
offence
2. Date of FIR 22-08-2011
3. Date of Charge sheet 08-11-2011
4. Date of framing charge 22-02-2019
5. Name of Complainant Sri Goutham Chand
6. Offences complained of Under Section 457, 380
of IPC
7. Date of commencement 09-11-2020
of Evidence
8. Charge Pleaded not guilty
9. Date of Judgment is 27-06-2025
reserved
4
KABC030335682011 CC No.33526/2011
10. Date of Judgment 27-06-2025
11. Final order Accused No.5, 7 and 9
are acquitted
12. Date of Sentence -
JUDGMENT
The Police Sub-Inspector of Sanjay Nagar Police Station submitted charge sheet against accused No.1 to 10 for the offences punishable under Section 457, 380 of Indian Penal Code.
2. Prosecution Case: On 21-08-2011 in between 11 p.m. to 5 a.m. the accused persons in order to commit theft, drilled a hole in the wall of Shop No.3/2, P.G. Road, within the limits of J.C. Nagara PS, trespassed into the shop and cut open the safe locker with the help of gas cutter and stolen about 3 kg 150 grams of gold jewelry from the safe locker and silver articles inside the shop belongs to CW1 namely Sri Goutham Chand.
3. First Information Report: Upon the receipt of first information from CW1, Sri Srinivasa Reddy, ASI of J.C. Nagar Police Station registered Crime No.128/2011 against the accused for the offences punishable under Section 457, 380 of IPC, prepared 5 KABC030335682011 CC No.33526/2011 FIR and sent the same to the Court and drawn spot mahazar on 22-08-2011 from 11.30 a.m. to 12.30 p.m. in the presence of CW2 namely Sri B.Manohar and CW3 namely Sri Indar Chand as per Ex.P2.
4. Investigation: After receipt of case papers, CW37 / PW14 Sri M.Nagaraj, PI of J.C.Nagara PS has continued the investigation, recorded the statement of witnesses and seized the properties under seizure mahazars Ex.P6, Ex.P7, Ex.P15 and Ex.P16 and subjected them to Property Form Nos.79/2011, 80/2011, 81/2011 and 82/2011 and submitted the charge sheet against the accused for the alleged offence.
5. On receipt of charge sheet, this Court took cognizance of the offences alleged against the accused persons.
6. At the pre-summoning stage, the accused No.9 was enlarged on bail by the order dated 18-10- 2011 and accused No.5 and 7 were enlarged on bail by the order dated: 25-11-2011 at the summoning stage.
7. In view of continuous absence of accused No.1 to 4, 6, 8 and 10 the case against them was ordered to be split up by the order dated 14/09/2015, 12/01/2017, 29/07/2010.
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8. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused No.5, 7 and 9.
9. Charge: After hearing learned Senior APP and counsel for accused No.5, 7 and 9, charge for the offence punishable U/Sec.457, 380 of Indian Penal Code has been framed, read over and explained to the accused in the language known to them, who, in turn, pleaded not guilty and claimed to be tried.
10. Prosecution Evidence: The prosecution in order to establish its case cited 37 witnesses and examined 14 witnesses and exhibited 18 documents and closed their side. The presence of CW3 was not secured and hence given up by the order dated 16/12/2020. The presence of CW9, 11 and 14 were not secured for examination and hence given up by the order dated 10/04/2023. The examination of CW21, 23, 24, 29, 30 were given up on account of examination of CW22 by the order dated 13/09/2023. The examination of CW33 was given up by the order dated 15/07/2024 on the submission of Learned APP. On account of examination of CW34, the examination of CW35, 36, CW25 to CW28, 31 is given up by the order dated 06/06/2025. The examination of CW12 was dropped out and the 7 KABC030335682011 CC No.33526/2011 evidence of PW2 for cross examination was discarded by the order dated 19/06/2025 as failed to secure the presence for longer time.
11. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused No.5, 7 and 9 was examined as per section 313 of Cr.P.C, wherein they denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
12. Heard the arguments. Perused materials on the record.
13. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 21-08-2011 in between 11 p.m. to 5 a.m. the accused No.5, 7 and 9 along with split up accused No.1 to 4, 6, 8 and 10 in order to commit theft, drilled a hole in the wall of Shop No.3/2, P.G. Road, within the limits of J.C. Nagara PS, trespassed into the shop belongs to CW1 namely 8 KABC030335682011 CC No.33526/2011 Sri Goutham Chand, thereby resulted in commission of an offence punishable u/Sec.457 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on the above said date and time, after drilling the shop, accused No.5, 7 and 9 along with split up accused No.1 to 4, 6, 8 and 10 trespassed inside the shop and cut open the safe locker with the help of gas cutter and stolen about 3 kg 150 grams of gold jewelry from the safe locker and silver articles inside the shop belongs to CW1 thereby resulted in commission of an offence punishable u/Sec.380 of IPC?
3. What order?
9KABC030335682011 CC No.33526/2011
14. The court's findings on the above points are as under:
Point No.1& 2 : In the Negative Point No.3 : As per final order REASONS
15. Point No.1 & 2: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for consideration in paragraph 13 of this judgment, the prosecution has examined the witnesses which are as follows i CW1 namely Sri Goutham Chand, being informant examined as PW1 deposed that, he has been running a pawnshop and gold shop business for the past 40 years, in the year 2011, some thieves broke through the wall of his Chandan Jewelry shop and stolen about 3 kg of gold, hence he filed complaint before police as per Ex.P1, the police conducted spot mahazar as per Ex.P2. He does not know who committed theft. After one and half month, the police called him and showed about 1 KG of stolen gold and he had identified it and taken it into 10 KABC030335682011 CC No.33526/2011 his possession. He identified the photo of the gold ornaments as per Ex.P3.
ii. CW2 Sri B.Manohar, spot mahazar witness examined as PW2 deposed that on 2-8-2011 police conducted Ex.P2 spot mahazar in his presence and his affixed his signature as Ex.P2(b) and the thieves had broken into Chandan Jewellery shop and committed the theft, gold boxes were scattered at the shop and safe locker was cut open with gas cutter.
iii. CW4 Sri Mahesh.L., spot mahazar witness examined as PW3 identified his signature on Ex.P4 as Ex.P4(a) and deposed that, about 5-6 years ago, he affixed his signature on the said document near Benson Town, Bore Bunk Road. It was written in the said document that the machu (ಮಚ್ಚು) and lang were seized that they are in the police jeep. He does not know from whom they were seized. In this regard, the learned Senior APP cross examined this witness by treating him as partially hostile witness and he denied that the machu (ಮಚ್ಚು) and lang were seized in this case from the accused as per Ex.P4 mahazar.
iv. CW6/PW4 Smt Sumati Kumar deposed that she does not know the accused Sadiq Ulla and was not having received any stolen property from him and he has not given any statement to police. In this regard, the learned Sr.APP cross examined this 11 KABC030335682011 CC No.33526/2011 witness by treating him as hostile witness but no favorable answer has been elicited from him to support the prosecution case. His denial of statement given before the police is marked as per Ex.P5.
v. CW7/PW5 Sri Mahesh Chandra and CW8/PW7 Sri Lokesh, mahazar witnesses identified their signature on seizure mahazar as per Ex.P6 and Ex.P7 as Ex.P6(a), (b) and 7(a),(b) respectively and pleaded ignorance about the contents of Ex.P6 and Ex.P7 and deposed that they have affixed their signatures on the said documents at the police station and no gold ornaments were seized in their presence, they have not given any statement to the police. In this regard, the learned Sr.APP cross examined these witnesses by treating them as hostile witnesses but no favorable answers have been elicited from them to support the prosecution case. Their denial statements given before the police are marked as per Ex.P8 and Ex.P9.
vi. CW5/PW6 Sri Pruthvish identified his signature on spot mahazar (Ex.P4) as Ex.P4(b) and pleaded ignorance about the contents of the same. In this regard, the learned Sr.APP cross examined this witness by treating him as hostile witness but no favorable answer has been elicited from him to support the prosecution case.
12KABC030335682011 CC No.33526/2011 vii. CW10/PW8 Sri Jameel, seizure mahazar witness has not identified his signature on Ex.P10 (seizure mahazar) and pleaded ignorance about the contents of the Ex.P10 and deposed that the police have not conducted mahazar in his presence and have not given any statement. In this regard, the learned Sr.APP cross examined this witness by treating him as hostile witness but no favorable answer has been elicited from him to support the prosecution case. His denial of statement given before the police is marked as per Ex.P11.
viii. CW13 / PW9 Sri Jagadish, seizure mahazar witness identified his signature on Ex.P12 seizure mahazar and pleaded ignorance about the contents of the Ex.P12 and deposed that the police have not conducted mahazar in his presence and had not given statement. In this regard, the learned Sr.APP cross examined this witness by treating him as hostile witness but no favorable answer has been elicited from him to support the prosecution case. His denial of statement given before the police is marked as per Ex.P13.
ix. CW15 / PW10 Sri Srikanth, seizure mahazar witness identified his signature on Ex.P14 seizure mahazar as Ex.P14(a) and deposed that he affixed his signature 10 years ago at the request of police. The police have not seized any property through mahazar 13 KABC030335682011 CC No.33526/2011 conducted in his presence. In this regard, the learned Sr.APP cross examined this witness by treating him as hostile witness but no favorable answer has been elicited from him to support the prosecution case.
x. CW22 by name Sri Manjuanth, the then PC of RMC Yard Police Station examined as PW11 deposed that he along with CW24, 29, 30, 34, 36 were deputed to trace out the accused and the property in J C Nagar Police Station cases. Accordingly, on 08- 09-2011, on receipt of credible information that 8 persons were standing in 2 cars parked on Bore Bunk Road with lang, knives and chili powder and went to the spot with panchas and caught them and produced them before CW33.
xi. CW32 by name Sri Somanna, the then HC of J. C. Nagara PS examined as PW12 deposed that on 08-09-2011, CW36, CW34, PSI Amul Kale and his staff were at J. C. Nagar Police Station at 8:40 pm when they received information that some unknown persons were waiting by parking two cars near the bridge over the railway tracks on Benson Town Bore Bunk Road with the intention of committing robbery. They along with panchas namely CW4 and CW5 went to spot and CW4 informed that there were eight persons in Maruti Zen car and Opel Crusoe car, holding long and knife and other items in their 14 KABC030335682011 CC No.33526/2011 hands. Later, when they went to catch them two persons ran away under the railway tracks and he and CW28 apprehended accused No.7 and the other five accused were caught by PSI and other personnel. The accused No.7 was carrying long iron knife and Lenova phone. The PSI conducted mahazar as per Ex.P4 and seized the properties from accused persons and produced before the police station under the report.
xii. CW34 by name Sri Hanamntharaj.M., the then PSI of RMC Yard PS examined as PW13 and deposed the same version of PW12.
xiii. CW37 by name Sri M.Nagaraj, the then PI of J. C. Nagara PS examined as PW14 and deposed that after receipt of case papers from ASI, Sri Srinivas Reddy continued the investigation, recorded the statements of witnesses. Further, on 18-09-2011 he along with staff went to B K Bankers' Shop at Channapatna and conducted seizure mahazar as per Ex.P6 from 12-30 pm to 1-30 pm in the presence of CW7 and CW8, seized item No.1 to 11, subjected the them to PF No.79/2011. On the same day, item No.1 to 24 were seized as per Ex.P7 (seizure mahazar) from the house of accused at Nagavani form at Kaggalipur from 12-30 pm to 1-30 pm in the presence of CW7 and CW8 and subjected the same to PF No.80/2011. Item No.1 to 5 were seized from the house of accused 15 KABC030335682011 CC No.33526/2011 No.6 Sri Sadiq Ullah Khan at 2-30 pm to 3.30 p.m. in presence of CW9 and CW10 through Ex. P. 15 (seizure mahazar) and subjected the same to PF No.81/2011. From the house of accused No.7 Sri Imtiyaz at Mangappana Palya, Item No. 1 to 6 seized through Ex.P16 (seizure mahazar) from 4pm to 5 pm, in the presence of CW11 and CW12 and subjected the same to PF No. 82/2011, item No.1 and 2 seized from the garage of accused No.9 Sri Mujamil Pasha through seizure mahazar (Ex. P 12) from 5.15 to 6.15 pm in presence of CW13 and CW14 and subjected to PF No. 83/2011. The accused namely Sri Ghulam Kadar (a) Mamu at Degni Kote, Krishnagiri District, Tamil Nadu from 8.15 to 9.30 pm, seized items 1 to 17 through Ex.P14 in the presence of CW15 and 16 and subjected to P F No.84/2011, on 20-09-2011, item No.1 to 5 were seized through Ex. P 17 (seizure mahazar) from the house of accused No.8 Sri Syed Paroj Babu (a) Babu's situated at Rupena Agrahara, Gulbarga Jopadi Colony, BTM Kere, Bommanahalli in the presence of CW17 and 18 from 6-15 pm to 7-15 pm and subjected to PF No.85/2011. On 19-09-2011, CW28 and CW31 produced the accused No.8 before them along with the report as per Ex.P18, recorded the voluntary statements of accused No. 5 to 7, 9 and 10 and further statement of CW1 regarding the identification of seized gold ornaments and the statements of the witnesses, handed over the Opel car used in the crime to the owner as per the court order and silver ornaments to CW1 and submitted the final report against the accused.
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16. Let us first discuss the relevant provisions of law for the purpose of the present case. The essential ingredients to prove an offence under Section 457 of IPC prescribes punishment for lurking house trespass or house breaking by night in order to commit offence punishable with imprisonment. The essential ingredients to constitute the offence of house breaking at night are:-
1. The accused should have entered into the property which is in possession of another.
2. There should be an intention to commit an offence on part of the accused.
3. Such property should be any building / tent/ vessel used for human dwelling on place for worship or for custody of property.
4. Entry into the house should have been effected by the accused in any one of the six ways as defined under Section 454 IPC wherein a person is said to have committed house breaking if he affects his entrance into the house or any part thereof or affect 17 KABC030335682011 CC No.33526/2011 his exist in any of the six ways described in the said section. The six ways given in the said Section are as follows:-
1. If he enters or quits through a passage by himself or by any abettor to commit house trespass
2. If he enters or quits through any passage not intended by any person other than himself or the abettor for human entrance; or through any passage to which he had obtained by scaling or climbing over any wall or building.
3. If he enters or quits through any passage which he or any abettor has opened which passage is not intended by the occupier of the house to be opened.
4. If he enters or quits by opening any lock to commit house trespass.
5. If he effects his entrance by using criminal force or committing assault or any by threatening a person with assault.18
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6. If he enters or quits by any passage which he knows to have been fastened against such entrance or departure and he had unfastened the same.
17. Section 380 of IPC prescribes punishment for theft in a dwelling house. The offence theft is defined under Section 378 IPC and the essential ingredients to constitute an offence under Section 380 IPC are as follows:-
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
18. The incident occurred in the Chandan jewels belongs to the PW1 by drilling a hole in the wall of 19 KABC030335682011 CC No.33526/2011 Shop No.3/2, P.G. Road, within the limits of J.C. Nagara PS. There is no eye witnesses to the alleged entry of accused persons into the shop however as per Ex. P. 2 drawn by Sri Srinivas Reddy ASI of J. C. Nagar Police Station that the shop was bounded on the East by scrap godown by dumping the wastage, West by Raghavendra Oil Store, North by residential houses and South by PG Road and opposite Manjushree jewelers and there are residential houses on the northern side of shop.
19. Before assessing the evidence on record, Proof beyond reasonable doubt does not mean providing infallible or absolute proof. It is hardly possible. According to Section 3 of the Indian Evidence Act the term 'proved' takes the meaning that the Court after considering the matters before it believes in existence of a fact or considers the existence of a fact so probable that a prudent man under the circumstances of the particular case acts upon the supposition that it (fact) exists. The term 'prove' indicates the degree of certainty to treat a fact as proved. The prosecution is supposed to produce such kind of materials on which the court can reasonably act to reach the supposition that a fact exists. The Hon'ble Supreme Court of India in the case of State of Uttara Pradesh Vs Krishna Gopal and another reported in [(1988) 4 SCC 302] has held that proof beyond reasonable doubt though of a higher standard, however cannot be of absolute standard.20
KABC030335682011 CC No.33526/2011 The observation of the Hon'ble Supreme Court is extracted below:
25. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to `proof' is an exercise particular to each case. Referring to the interdependence of evidence and the confirmation of one piece of evidence by another a learned author says:
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defend ant did the prohibited act with the specified state of mind are generally dependent. A juror may feel doubt whether to credit an alleged 21 KABC030335682011 CC No.33526/2011 confession, and doubt whether to inter guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it is must be free from an over- emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused person arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. The above proposition was reiterated in a later judgment of the Supreme Court in the case of KRISHNAN AND ANOTHER V. STATE REP. BY INSPECTOR OF POLICE reported in AIR 2003 SC 2978.
20. In a case based on circumstantial evidence, it is now a established principle that all the links in the chain of circumstances must be established. But 22 KABC030335682011 CC No.33526/2011 many are under the impression that every circumstance must be proved beyond reasonable doubt. This is not the requirement. Circumstantial evidence means a fact on which an inference is to be founded. Evidence which proves or tends to prove the factum probandum indirectly by means of certain inferences or deductions to be drawn from its existence and their connection with factum probentia is circumstantial evidence. [Commentary on law of evidence by Woodroffe & Amir Ali]. If the decision is based on inferences considering the evidence provided in connection with a fact constituting a circumstance, it is enough to provide primary evidence in regard to that fact. This position is made clear by the Hon'ble Supreme Court of India in the case of M. G. Agarwal Vs State of Maharastra reported in AIR 1963 SC 200 wherein it was held:
There is another point of law which must be considered before dealing with the evidence in this case. The prosecution case against accused No.1 rests on circumstantial evidence. The main charge of conspiracy under section 120B is sought to be established by the alleged conduct of the conspirators and so far as accused No.1 is concerned, that rests on circumstantial evidence alone. It is a well established rule 23 KABC030335682011 CC No.33526/2011 in criminal jurisprudence that circumstantial evidence can be reasonably made the basis of an accused person's conviction if it is of such a character that it is wholly inconsistent with the innocence of the accused and is consistent only with his guilt.
If the circumstances proved in the case are consistent either with the innocence of the accused or with his guilt, then the accused is entitled to the benefit of doubt. There is no doubt or dispute about this position. But in applying this principle, it is necessary to distinguish between facts which may be called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts the Court has to judge the evidence in the ordinary way, and in the appreciation of evidence in respect of the proof of these basic or primary facts there is no scope for the application of the doctrine of benefit of doubt. The Court considers the evidence and decides whether that evidence proves a particular fact or not. When it is held that a certain fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not, and in dealing with this aspect of the problem, the doctrine of benefit of doubt would apply and an inference of guilt can be drawn only if the proved fact is wholly inconsistent with the innocence of the accused and is consistent only with 24 KABC030335682011 CC No.33526/2011 his guilt. It is in the light of this legal position that the evidence in the present case has to be appreciated.
21. It is only at the end the cumulative effect of the entire evidence brought on record in regard to all the circumstances must indicate that there is no scope for doubting the prosecution case for any reason. In other words analysis of the entire evidence on all the circumstances must take to a conclusion that the proof brought on record by the prosecution is free from doubt.
22. It is the case of prosecution that the CW1 lodged a complaint on 22/08/2011 which is extracted adverbatim as under
yesterday I had closed my jewellery shop at 7 pm. As usual today mooring at 10.00 am, I opened my showroom and found that in my safe room some culprit had broken the wall and broke my safe locker with gas cutter. He has taken all the gold ornaments. There is a scrap godown next to my shop and I suspect one Sri Sher Bhahadur and his friends because we have found all empty 25 KABC030335682011 CC No.33526/2011 jewellery boxes in his room in godown that person regularly stays in godown. The value of ornament has to be calculated after I can check my remaining stock and we will inform you.
and I had given written complaint at morning to JC Nagar Police station regarding theft in my show room. In that I had not declared exact details of jewels. Police team had visited my showroom and have done all the survey and after all formalities we were able to calculate the weight of jewels lost. The total approximate weight of jewels theft will be around 3.150 grams. The value of above quantity will be around 65 (sixty five) lakhs.
Except lodging the complaint, the PW1 did not produce any bills or stock books that these jewels released by him belongs to the PW1.
23. Added to which, PW1 on interim release of gold and silver articles has alienated/sold the jewels 26 KABC030335682011 CC No.33526/2011 without any order from the Hon'ble Court and the same is admitted by the PW1 by the order dated 09/12/2024.
24. It appears from the record that the theft in the shop of the PW1 namely Chandan Jewels was taken place by drilling the holes in the wall and if such was so, then definitely, there would a sound. On hearing the sound, the neighbours on the northern side could have heard about the same.
25. It is seen from complaint and mahazar that PW1/informant suspected that one Sher Bhadhur could have stolen these jewels but nothing found on record that IO has investigated with the said suspect.
26. It appears from the record, except giving the description about the spot for having drawn the spot mahazar on 22/08/2011 from 11.30 am to 12.30 am, IO did not make any attempt to secure the finger prints from the alleged spot with the help of finger prints experts.
27. The best witnesses would be immediate neighbors to speak about the theft in the shop of the PW1 as no photographs or video graphs were taken at the time of drawing the mahazar to corroborate that the assailants entered the shop by drilling a hole in the wall. None of neighbors were enquired and made 27 KABC030335682011 CC No.33526/2011 as a witness as to the alleged theft in the shop of PW1.
28. The identity of accused in a criminal trial is of paramount importance and no person can be inducted for criminal liability, unless his identity is established beyond any shadow of doubt. In the instant case, PW1 deposed in her chief-in- examination that ಯಾರು ಕಳ್ಳತನ ಮಾಡಿರುತ್ತಾರೆಂದು ನನಗೆ ಗೊತ್ತಿಲ್ಲ.
Thus, the accused was not identified by the PW1 as the police did not show the accused to PW1 and hence the identity of accused was not proved by the prosecution.
29. It ought to be seen that the other independent witnesses to the seizure witnesses as per Ex.P12, 14, 16 did not support the prosecution case.
30. As per the evidence of PW14, he drawn the mahazar at different places not less 10 places on 18/09/2011 and recovered the gold and silver articles however Station House Diary was not placed to corroborate that he was out on 18/09/2011 for drawing the seizure mahazar. It is highly improbable to believe the version of prosecution that they visited 28 KABC030335682011 CC No.33526/2011 the 10 places on the same day for drawing the mahazar at different timings.
31. For deciding this case, the relevant seizure mahazar alleged to have seized from place of the accused No.5, 7 and 9 was taken into consideration as the PW14 deposed that I. the Garage of accused No.5 namely Sri Gulam Khadar Khan @ Mamu, IO/PW14 seized the item No.1 to 17 through Ex.P14 seizure mahazar in the presence of CW15 namely Sri Srikanth s/o Papanna, aged about 28 years, R/at No.26, 3rd Cross, Annayappa Block, J.C.Nagara, Bengaluru and CW16 namely Sri James b/o Flomin Raja, aged about 40 years, R/at No.26, 4th Cross, Muddamma Garden, Benson town Post, J.C. Nagar, Bengaluru-560046 and subjected under PF No.84/2011, dated: 18-09-2011
1. ಒಂದು ಚಿನ್ನದ ಹಾರ ಕುಂದನ್ ಸ್ಟೋನ್ ನಿಂದ ಕೂಡಿದ ತೂ.ಸು.39.790 ಗ್ರಾಂ
2. ಒಂದು ಕರಿಮಣಿ ಮತ್ತು ಕಲ್ಲುಗಳಿಂದ ಕೂಡಿದ ಚಿನ್ನದ ಲಚ್ಚಿ ತೂ.ಸು.29.760 ಗ್ರಾಂ 29 KABC030335682011 CC No.33526/2011
3. ಮೂವತ್ತೊಂದು ಚಿನ್ನದ ಉಂಗುರಗಳು ತೂ.ಸು.49.070 ಗ್ರಾಂ
4. ಎರಡು ಕಲ್ಲಿನಿಂದ ಕೂಡಿದ ಡಾಲರ್ ಇರುವ ಚಿನ್ನದ ಚೈನುಗಳು ತೂ.ಸು.20.270 ಗ್ರಾಂ
5. ಎರಡು ಚಿನ್ನದ ಚೈನುಗಳು ತೂ.ಸು.8.450 ಗ್ರಾಂ
6. ಎರಡು ಜೊತೆ ಮತ್ತು ನಾಲ್ಕು ಒಂಟಿ ಕಲ್ಲಿನಿಂದ ಕೂಡಿದ ಚಿನ್ನದ ಬಾಲಿಗಳು ತೂ.ಸು.14.600 ಗ್ರಾಂ
7. ಮೂರು ಜೊತೆ ಚಿನ್ನದ ವಾಲೆಗಳು ತೂ.ಸು.8.100 ಗ್ರಾಂ
8. ನಲವತ್ತಾರು ಕಿವಿಯ ವಾಲೆಗಳು ಕಲ್ಲು ಮತ್ತು ಸಾದಾನಿಂದ ಕೂಡಿರುತ್ತದೆ ತೂ.ಸು.64.580 ಗ್ರಾಂ
9. ಆರು ಒಂಟಿ ಹ್ಯಾಂಗಿಗ್ಸ್ ತೂ.ಸು.19.970 ಗ್ರಾಂ
10. ಹನ್ನೊಂದು ಒಂಟಿ ಚಿನ್ನದ ಜುಮುಕಿಗಳು ಕಲ್ಲಿನಿಂದ ಮತ್ತು ಸಾದಾದಿಂದ ಕೂಡಿರುತ್ತದೆ ತೂ.ಸು.14.350 ಗ್ರಾಂ
11. ಏಳು ಚಿನ್ನದ ಲಕ್ಷ್ಮಿಯ ಕಾಸುಗಳು ತೂ.ಸು.8.770 ಗ್ರಾಂ
12. ಒಂದು ಚಿನ್ನದ ತಾಳಿ ತೂ.ಸು.1.200 ಗ್ರಾಂ
13. ಒಂಭತ್ತು ಚಿನ್ನದ ಡಾಲರುಗಳು ಕಲ್ಲಿನಿಂದ ಮತ್ತು ಸಾದಾದಿಂದ ಆಗಿರುತ್ತದೆ.
ತೂ.ಸು.9.360 ಗ್ರಾಂ 30 KABC030335682011 CC No.33526/2011
14. ಚಿನ್ನದ ಗುಂಡುಗಳು ತೂ.ಸು.12.530 ಗ್ರಾಂ
15. ಒಂದು ಜೊತೆ ಮತ್ತು ಎರಡು ಒಂಟಿ ಚಿನ್ನದ ಮಾಟಿಗಳು ತೂ.ಸು.3.780 ಗ್ರಾಂ
16. ನಾಲ್ಕು ಕಲ್ಲುಗಳಿಂದ ಕೂಡಿದ ಚಿನ್ನದ ಗುಂಡುಗಳು ಮತ್ತು ಒಂದು ಜೊತೆ ವಾಶರ್ ಪ್ಲೇಟ್ ಹಾಗೂ ಎರಡು ಕಲ್ಲುಗಳಿಂದ ಕೂಡಿದ ಚೈನ್ ಪೀಸ್ ಮತ್ತು ಎಂದು ಕೊಳ.
ತೂ.ಸು.5.440 ಗ್ರಾಂ
17. ಚಿನ್ನದ ಮೂಗುಬೊಟ್ಟುಗಳು ಒಟ್ಟು ತೂಕ ಸು.7.980 ಗ್ರಾಂ ii. From the house of accused No.7 namely Imtiyaz situated at Mangappanapalya, Bengaluru, IO/PW14 seized the item No.1 to 6 through Ex.P16 seizure mahazar in the presence of CW11 namely Sri Gajendra s/o Palluswamy, aged about 37 years, R/at MRS Palya, Bande, J.C. Nagara, Bengaluru and CW12 namely Sri Goutham s/o Narayana Rao, aged about 25 years, R/at No.234, 2nd Cross, Sharadamma Layout, Nandidurga Road, Bengaluru-64 subjected under PF No.82/2011, dated 18- 09-2011 31 KABC030335682011 CC No.33526/2011
1. ಒಂದು ಚಿನ್ನದ ಡಿಜೈನಿನ ಚೈನ್ ತಂಡು - 11.950 ಗ್ರಾಂ,
2. ಒಂದು ಚಿನ್ನದ ಸರ ತೂಕ ಸುಮಾರು 8.380 ಗ್ರಾಂ
3. ಒಂದು ಚಿನ್ನದ ಗೋಡಿ ಡಿಜೈನ್ ಚೈನು, ತೂ.ಸು.8.200 ಗ್ರಾಂ
4. ಒಂದು ಚಿನ್ನದ ಸರಪಳಿ ಡಿಜೈನ್ ಚೈನು, ತೂ.ಸು.8.120 ಗ್ರಾಂ
5. ಒಂದು ಚಿನ್ನದ ಬಟನ್ ಡಿಜೈನಿನ ಚೈನು, ತೂ.ಸು.10 ಗ್ರಾಂ
6. ಒಂದು ಗ್ಯಾಸ್ ನಿಂದ ಕಟ್ ಮಾಡುವ ಗನ್ (ಗ್ಯಾಸ್ ಕಟರ್) iii. From the Garage of accused No.9 namely Sri Mujamil Pasha, IO/ PW14 seized the item No.1 and 2 through Ex.P12 seizure mahazar in the presence of CW13 namely Sri Jagadish s/o Manjegowda, aged about 26 years, R/at 4th Cross, Muddamma Garden, Benson Town, Bengaluru-46 and CW14 namely Sri Madesh s/o Durgappa, aged about 24 years, R/at Munavar's Garage, Pottery Road, Wahab Garden, Benglauru 32 KABC030335682011 CC No.33526/2011 and subjected under PF No.83/2011, dtd: 18-09-2011
1. ಒಂದು ದೊಡ್ಡ ಆಕ್ಸಿಜನ್ ಗ್ಯಾಸ್ ಸಿಲೆಂಡರ್
2. ಒಂದು ಚಿಕ್ಕ ಆಟೋ ಗ್ಯಾಸ್ ಸಿಲಿಂಡರ್ however PW1 has identified the jewels which are said to have recovered from Sri Mamu @ Sri. Gulam Khadar (Accused No.5) , Sri Sadiq UllaKhan S/o. Nazim Ullakhan and Sri Imtiaz S/o Iliyaz and Sunil Tapa S/o Tilak Tapa (accused No.7) on 21/09/2011 which are mentioned in PF No.82/2011 (out of 6 items, 5 items), PF No.84/2011 (entire 17 items) and on 10/10/2011 which are as under
1) ಒಂದು ಬೆಳ್ಳಿಯ ತಟ್ಟೆ ತೂಕ ಸುಮಾರು 48.300 ಗ್ರಾಂ
2) ಎರಡು ಬೆಳ್ಳಿಯ ಕಾಮಾಕ್ಷಿ ದೀಪಗಳು ತೂಕ ಸುಮಾರು 68.40 ಗ್ರಾಂ
3) ಒಂದು ಜೊತೆ ಬೆಳ್ಳಿಯ ಲಾಂಗ್ ದೀಪ ತೂಕ ಸುಮಾರು 96.880 ಗ್ರಾಂ
4) ಮೂರು ಬೆಳ್ಳಿಯ ಕುಂಕುಮದ ಬಟ್ಟಲುಗಳು ತೂಕ ಸುಮಾರು111.310 ಗ್ರಾಂ
5) ಒಂದು ಬೆಳ್ಳಿಯ ಚಂಬು ತೂಕ ಸುಮಾರು 106.620 ಗ್ರಾಂ
6) ಆರು ಬೆಳ್ಳಿಯ ಲೋಟಗಳು ತೂಕ ಸುಮಾರು 207.910 ಗ್ರಾಂ 33 KABC030335682011 CC No.33526/2011
7) ಮೂರು ಜೊತೆ ಬೆಳ್ಳಿಯ ದೀಪಗಳು ತೂಕ ಸುಮಾರು 161.460 ಗ್ರಾಂ
8) ಒಂದು ಜೊತೆ ಬೆಳ್ಳಿಯ ಮಂಗಳಾರತಿ ದೀಪ ತೂಕ ಸುಮಾರು 67.400 ಗ್ರಾಂ
9) ಇಪ್ಪತ್ತೊಂದು ಬೆಳ್ಳಿಯ ಹಳೆಯ ಕಾಲು ಚೈನುಗಳು ತೂಕ ಸುಮಾರು 551.670 ಗ್ರಾಂ
10) ಐದು ಬೆಳ್ಳಿಯ ಹಳೆಯ ಖಡಗಗಳು ತೂಕ ಸುಮಾರು 5.890 ಗ್ರಾಂ
11) ಹಳೆಯ ಬೆಳ್ಳಿಯ ಕಾಲುಂಗುರಗಳು ತೂಕ ಸುಮಾರು 14.170 ಗ್ರಾಂ
12) ನಲವತ್ತೊಂದು ಜೊತೆ ಮತ್ತು ಒಂದು ಜಂಟಿ ಬೆಳ್ಳಿಯ ಕಾಲು ಚೈನುಗಳು ತೂಕ ಸುಮಾರು 2.275 ಕೆ ಜಿ. ಗ್ರಾಂ and Rs.1 lakhs money and other properties mentioned in PF No. 79-85/2011 and received the same by furnishing the indemnity bond.
32. It ought to be seen that at the time of seizure, neither of signature of accused No.5, 7 and 9 were obtained and seizure witnesses were not from local inhabitants.
33. It is relevant to mention S.100 of CRPC which reads as under
Persons in charge of closed place to allow search 34 KABC030335682011 CC No.33526/2011
1. Whenever any place liable to search of inspection under this Chapter is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein.
2. If ingress into such place cannot be so obtained, the officer or other person executing the warrant may proceed in the manner provided by Sub-Section (2) of section 47.
3. Where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency.
4. Before making a search under this Chapter, the officer or other 35 KABC030335682011 CC No.33526/2011 person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.
5. The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specially summoned by it.
6. The occupant of the place searched, or some person in his behalf, shall, in every instance, be permitted to attend during the 36 KABC030335682011 CC No.33526/2011 search, and a copy of the list prepared under this section, signed by the said witnesses, shall be delivered to such occupant or person.
7. When any person is searched under Sub-Section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.
8. Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under section 187 of the Indian Penal Code (45 of 1860).
However the PW14/IO did not make any attempt to call the local inhabitants for the search and for drawing seizure mahazar for the alleged theft in the crime No. 135/2011. It has been held in the case of Pradeep Narayana Vs State of Maharastra reported in AIR 1995 Supreme Court 1930 wherein it was held that failure of police to join witness from locality during search creates doubt about fairness of 37 KABC030335682011 CC No.33526/2011 the investigation, benefit of which has to go to the accused.
34. In this regard, PW14/IO deposed in the cross examination which reads as under
ನ್ಯಾಯಾಲಯದ ಪ್ರಶ್ನೆ: ನಾನು ಜಪ್ತಿ ಪಂಚನಾಮೆ ಮಾಡುವ ಸಮಯದಲ್ಲಿ ಅಲ್ಲಿರುವ ಸ್ಥಳೀಯರು ಸಹಕರಿಸದೇ ಇರುವಾಗ ಅವರ ವಿರುದ್ಧವಾಗಿ ಯಾವುದೇ ದೂರನ್ನು ವ್ಯಾಪ್ತಿಯಲ್ಲಿ ಬರುವ ಪೊ. ಠಾಣೆಗೆ ನೀಡಿರುವುದಿಲ್ಲ. ನಾನು ತನಿಖೆಗೆ ಹೋಗಿರುವಾಗ ಅವರಿಗೆ ಯಾವುದೇ ಮಾಹಿತಿ ನೀಡಿ ಸ್ಥಳೀಯ ಪೊಲೀಸ್ ಠಾಣೆಯ ಸಹಾಯವನ್ನು ಪಡೆದಿರುವುದಿಲ್ಲ.
Thus, it is clear that if local inhabitant refused to be witnesses to seizure mahazar for having taken place on 18/09/2011, PW14 could have taken any action against the local inhabitants for refusal in joining the seizure as per Section 187 of Indian Penal Code but that was not done so.
35. The Prosecution has not placed any document to show that seizure mahazar in respect of accused No.9 namely Sri Muzhamil Pasha @ Lambu S/o. Shafiulla was drawn at HRSV Auto Garage Center, 8th Cross, Munireddy Layout, ITI Colony, Bommanahalli, Bangalore-560 068 as per Ex.P12; the seizure mahazar in respect of accused No.5 namely Sri Gulam Khader @ Maamu S/o. Late Hussein was 38 KABC030335682011 CC No.33526/2011 drawn at No.71/5-A, 3 Habeeb Hussain, Next to Manjil Yarab Darga, Deganikote, Krishnagiri District, Tamilnadu as per Ex.P14 HRSV Auto Garage Center, 8th Cross, Munireddy Layout, ITI Colony, Bommanahalli, Banglaore-560 068 as per Ex.P16 and the seizure in respect of accused No.7 namely Sri Imtiyaz S/o. Iliyaz was drawn at Abdul Basheer rented house, next to Mecca Madina, 4 th Cross, Near Ali Bakery, Mangamma Palya, Bangalore as per Ex.P16 belongs to the accused No.9, 5 and 7. Without any documentary evidence as to the place mentioned in Ex.P12, 14 and 16 belongs to the accused No.9, 5 and 7, how this court could give any evidentiary value to the same.
36. Added to which, no statement of neighbors around the alleged seizure place was recorded that the accused No.5, 7 and 9 were staying as on the date of seizure or any persons related to the accused No.5, 7 and 9 were staying.
37. PW14/IO deposed in the cross examination that he did not investigate in Crime No.135/2011 and added to which, the PW14/IO has filed the PF mentioned in Crime No.135/2011 and not related to this case and IO did not tender any explanation, as to which, these properties were not subjected to this case except placing the Property form related in Crime No.135/2011.
39KABC030335682011 CC No.33526/2011 38. The voluntary statement of accused No.5, 7 and 9 cannot give any evidentiary value as it was recorded on 26/09/2011 whereas seizure mahazar as per Ex.P12, 14 and 16 were taken place on 18/09/2011 i.e., statement was recorded after the recovery. There is no recovery from the accused No.5, 7 and 9 based upon the voluntary statement of accused No. 5, 7 and 9.
39. From the overall testimony of the witnesses, it is clear that the IO has not joined any local inhabitants at the time of spot mahazar or seizure mahazar whilst completing the formalities despite availability of persons. Hence, the very recovery of the from place which are alleged to be belongs to the accused No. 5, 7 and 9 is doubtful.
40. From the above discussions, it is clear that the identity of this accused No. 5, 7 and 9 involved in this commission of offence has not been established. Though the PW1 deposed about the incident but no proper evidence collected as to the incident from other witnesses and the documentary evidence as to the seizure place mentioned in the Ex.P12, 14 and 16 belongs to the accused No.9, 5 and 7 and more so local inhabitants were not made as witnesses to the Ex.P12, 14 and 16 though there were available. Thus, the prosecution failed to establish the 40 KABC030335682011 CC No.33526/2011 ingredients of the offences punishable under section 457, 380 of IPC and accordingly, the benefit of doubt has to be accorded in favour of the accused No.5, 7 and 9 thereby this court answer the above point No.1 and 2 in the negative.
41. Point No.3:- For the foregoing discussion and the findings to the above point No.1 and 2, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.5, 7 and 9 are found not guilty and acquitted from the offences punishable under Sec.457, 380 of Indian Penal Code.
(ii) Accused No.5, 7 and 9 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) Office to keep this file against split up accused No.1 to 4, 6, 8 and 10.41
KABC030335682011 CC No.33526/2011
(v) Ordered accordingly.
(Dictated to the stenographer on computer directly, typed by steno, verified and corrected by me in laptop, then the judgment pronounced by me in the open court, on this the 27 th day of June, 2025) Digitally DEEPA signed by VEERASWAMY DEEPA VEERASWAMY (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for Prosecution :
PW1: Sri Goutham Chand Informant PW2: Sri B.Manohar Spot mahazar witness PW3: Sri Mahesh.L Seizure mahazar witness PW4: Sri Sumati Kumar PW5: Sri Mahesh Chandra Seizure mahazar witness PW6: Sri Pruthvish Spot mahazar witness 42 KABC030335682011 CC No.33526/2011 PW7: Sri Lokesh Seizure mahazar witness PW8: Sri Jameel Seizure mahazar witness PW9: Sri Jagadish Seizure mahazar witness PW10: Sri Srikanth Seizure Mahazar PW11: Sri Manjuanth PC of RMC Yard PS PW12: Sri Somanna HC of J.C.Nagar PS PW13: Sri Hanamntharaj.M PSI of RMC Yard PS PW14: Sri M.Nagaraj IO Documents marked on behalf of Prosecution:
Ex.P1: Complaint PW1
Ex.P2: Spot Mahazar PW1
Ex.P3: Photo PW1
Ex.P4: Seizure Mahazar PW3
Ex.P5: Statement PW4
Ex.P6: Seizure Mahazar PW5
Ex.P7: Seizure Mahazar PW5
Ex.P8: Statement PW5
Ex.P9: Statement PW7
43
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Ex.P10: Seizure Mahazar PW8
Ex.P11: Statement PW8
Ex.P12: Seizure Mahazar PW9
Ex.P13: Statement PW9
Ex.P14: Seizure Mahazar PW10
Ex.P15: Seizure Mahazar PW14
Ex.P16: Seizure Mahazar PW14
Ex.P17: Seizure Mahazar PW14
Ex.P18: Report PW14
Material Objects marked on behalf of the prosecution: NIL Witnesses examined for the defence: NIL Documents marked on behalf of the defence: NIL VIII Addl. Chief Judicial Magistrate, Bengaluru City.44
KABC030335682011 CC No.33526/2011 27-06-2025 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused No.5, 7 and 9 are found not guilty and acquitted from the offences punishable under Sec.457, 380 of Indian Penal Code.
(ii) Accused No.5, 7 and 9 are set at liberty.
(iii) In view of Section 437-A of Cr.P.C their bail bonds shall be in force for 6 (six) months.
(iv) Office to keep this file against split up accused No.1 to 4, 6, 8 and 10.
(v) Ordered accordingly.
VIII ACJM, Bengaluru City.
45