Bangalore District Court
State By Kamakshipalya Police Station vs Giri @ Kunigal Giri @ Moduru Giri on 10 July, 2017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 10th day of July, 2017
-: P R E S E N T :-
Sri. MADHUSUDHAN B.,
B.Com, LL.B (Spl.).,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.846/2016
COMPLAINANT:- State by Kamakshipalya Police Station,
Bengaluru.
-Vs-
ACCUSED: 1. Giri @ Kunigal Giri @ Moduru Giri,
@ Prashanthraju @ Ashwath,
S/o. Veerannagowda,
Aged about 27 years,
R/o. Hosuru village, & post,
Kasaba Hobli,
Kunigal Taluk,
Tumakuru district.
(Accused No.1)
2. Govinda @ Govindaraju,
S/o. Kempegowda,
Aged about 27 yars,
Chikkakalle village,
Thippasandra Hobli,
Magadi taluk,
Ramanagara Disrict.
(Accused No.2)
2 S.C.No.846/2016
3. Srinivasa @ Vasu,
Gooligowda,
Aged about 27 years,
R/o.No.504/2,
Jalageramma Nilaya,
7th Cross Road,
Jyothi Bakery Road,
Peenya 2nd Stage, Vishwaneedam post,
Maruthinagara,
Bengaluru-91.
(Accused No.3)
4. Jagadheesha @ Jagga,
S/o.Srinivasa,
Aged about 25 years,
R/at. Anupanahalli,
Aregujjanahalli post,
Hudugere Hobli,
Tumakuru taluk & Dist.
(Accused No.4)
5. Trilok Jadhav,
(Accused No.5 died during pendency
of trial, hence case against accused
No.5 abetted)
1. Date of commission of offence : 9.3.2014
2. Date of report of offence : 29.3.2014
3. Date of arrest of the Accused : A.1 on 3.6.2014 in
Cr.No.171/2014 of
Byatarayanapura Police Station
A.2 on 5.7.2014 in Cr.No.171/2014
of Byatarayanapura police station.
A.3 on 18.5.2014 in Cr.No.171/2014
of Byatarayanapura police station.
A.4 on 18.5.2014 in Cr.No.171/2014
3 S.C.No.846/2016
of Byatarayanapura police station.
Thereafter taken in J.C., in this
case by issuing body warrants.
4. Name of the complainant : M.K.Swamy
5. Date of recording evidence : 18.2.2017
6. Date of closing evidence : 10.4.2017
7. Offences complained of : U/Sec.392 and 413 of IPC.
8. Opinion of the Judge : Accused No.1 to 4 are
Acquitted U/s. 235(1)
of Cr.P.C.
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. K.N.Ambarish, Advocate.
JUDGMENT
Police Inspector of Kamakshipalya police station, Bengaluru submitted charge sheet against accused No.1 to 5, for trial of offences punishable U/s.392 and 413 of I.P.C., in Cr.No.165/2014 of Kamakshipalya Police Station.
2. Brief facts of prosecution case may be stated as under; On 9.3.2014, informant by name M.K.Swamy intended to have drinks. Therefore, on that day, at about 9.00 p.m., he went to G.D.Bar and Restaurant situated at Industrial Town, Rajajinagar, 4 S.C.No.846/2016 Bengaluru and parked his car just in front of said restaurant. When he was alighting from the car, three unknown persons came on Motor Bike, wearing helmets, and attacked informant. They put informant in fear of death by showing deadly weapons, like long. Due to fear, informant become helpless. Meanwhile, all three persons snatched golden neck chain, bracelet and two diamond rings, worth about more than Rs.2 lakhs. On that day, informant did not lodged any report, due to fear. However, on 29.3.2014, he lodged a report with Kamakshipalya police station, who on the basis of such report registered a case in Cr.No.165/2014 for the offences punishable U/s. 392 of I.P.C., against 3 ( three) unknown persons.
3. Investigating Officer started investigation, during which he came to know that, accused, who are involved in Cr.No.171/2014 of Byatarayanapura police station and in Cr.No.46/2014 of Devanahalli police station are the persons, who attacked this informant on that day and robbed ornaments from his possession. Thus, he filed necessary requisition before Magistrate concern for committing accused No.1 to 4 into police custody. Learned Magistrate issued body warrants and committed accused No.1 to 4 5 S.C.No.846/2016 into police custody. Investigating Officer recorded voluntary statements of accused and seizure robbed ornaments, recorded statements of witnesses. During investigation, it is revealed that, accused No.5-Trilok Jadhav, is habitually dealing with stolen properties, along with accused No.1 to 4. On the basis of voluntary statements of accused, Investigating Officer seized ornaments from the possession of Cw.6/Raghu, who is purchaser of robbed ornaments from accused. Investigating Officer has conducted mahazar in the presence of Cw.4/Abhilash and Cw.5/ Amruthraj. Thereafter, accused were committed to J.C. Seizure of properties has been reported to the Learned Magistrate by submitting P.F. Informant filed necessary application for release of seized ornaments in his favour as interim custody. Such application was allowed by Learned Magistrate by imposing conditions. After completion of investigation, charge sheet is laid against accused No.1 to 5 by inclusion of penal provision of Section 413 of I.P.C. Accused No.5 obtained bail during crime stage. Accused No.1 to 4 are in J.C.
4. Learned Magistrate took cognizance of the offences, thus, passed orders for registration of one criminal case against 6 S.C.No.846/2016 accused No.1 to 5 in C.C.No.24441/2014. Thereafter Learned Magistrate passed orders for committal of this case to the court of Sessions, since offences alleged against accused are triable exclusively by the court of Sessions. After committal, this case is registered as S.C.No.846/2016. After hearing charges against accused No.1 to 5 framed, which they denied, hence, they claims to be tried.
5. In order to bring home the guilt of accused, prosecution in altogether cited 11 witnesses, among them 5 witnesses are examined as Pw.1 to Pw.5 and got exhibited 8 documents marked at Ex.P.1 to P.8. Inspite of granting sufficient opportunities, prosecution has not examined other witnesses. Therefore, side of the prosecution is taken as closed.
6. On completion of the evidence of prosecution side, this court examined accused No.1 to 5 as required U/s. 313 of Cr.P.C., and recorded their statements by giving an opportunity for explaining incriminating circumstances appearing in the evidence of the prosecution. Defence of accused is one of total denial of 7 S.C.No.846/2016 prosecution case. However no any defence evidence led in by accused.
7. After recording statement of accused U/s.313 of Cr.P.C., accused No.5 reported to be dead, since he met with road traffic accident. Therefore, case against accused No.5 already stands abetted.
8. I have heard arguments.
9. Following points have arisen for my consideration:
1. Whether prosecution proves beyond reasonable doubt that, accused No.1 to 5 committed offence punishable U/s. 392 of I.P.C.?
2. Whether prosecution proves beyond reasonable doubt that, accused No.1 to 5 committed offence punishable U/s. 413 of I.P.C.?
3. To what Order ?
10. My findings on the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : As per final order
for the following:
8 S.C.No.846/2016
REASONS
11. POINTS NO.1 & 2:- I have taken these points together to avoid repeated discussions.
12. In order to prove the guilt of accused, prosecution examined as many as 5 witnesses, among them Pw.1 is informant, Pw.2 and Pw.4 are panch witnesses for spot mahazar marked at Ex.P.2. Pw.3 is P.S.I., who registered case in Cr.No.165/2014 on the report of Pw.1/informant and conducted investigation, in part. Remaining major portion of investigation is conducted by Pw.5.
13. In order to prove the guilt of accused, prosecution is expected to prove the recovery of robbed articles from the possession of Cw.6, and its identity by the informant. In addition to this, prosecution is expected to prove that, these accused No.1 to 4 have robbed ornaments from the possession of informant by putting him in fear of death or grievous injury. If these material aspects are proved with cogent and reliable evidence, then charges leveled against accused are sustainable. Therefore, to prove the guilt of accused, most material witness is Pw.1. But on going through the evidence of Pw.1, I do not find any substance in his version, so as to 9 S.C.No.846/2016 connect these accused to the incident which occurred on 09-03- 2014, as alleged by prosecution. In a trial of this nature of offences, prosecution expected to prove the identity of robbed articles. Though on going through the material placed in this case, it appears that, interim custody of ornaments, seized were ordered to be released in favour of Pw.1/informant as interim custody, with conditions. But on perusal of version of Pw.1, it is abundant clear that, already he has sold ornaments. As a matter of fact, he is not expected to sell those valuable ornaments in view of condition of release order. Thus, it is very much clear so called robbed ornaments neither produced before this court nor detailed description of those ornaments are stated by Pw.1 in his evidence. Further, Pw.1 never identified these accused are the persons, who robbed ornaments from his possession, on that day. Therefore, version of Pw.1 is of no useful for prosecution to prove the guilt of accused.
14. Ofcourse, I have also gone through the version of Pw.2, who claims to be the panch witness for spot mahazar. But Pw.2 has also not supported the case of prosecution. Therefore, Pw.2 has 10 S.C.No.846/2016 been declared as hostile witness and Learned Public Prosecutor permitted to cross-examine him. But even during course of cross- examination, nothing has been elicited form his mouth to indicate that, he has identified these accused in the police station, during course of investigation.
15. Pw.4 is another panch witness for spot panchanama. But his evidence is formal one.
16. I have also gone through the version of Pw.5. Though Pw.5 has stated something against accused, but his version has not been supported by main witness/Pw.1. In order to prove contents of seizer mahazar marked at Ex.P.8, evidence of Cw.4 to 6 is most material. But it is unfortunate that, in spite of granting sufficient opportunities, prosecution has not examined Cw.4, and Cw.5, who are panch witnesses for seizure mahazar marked at Ex.P.8. As per the case of prosecution, Cw.6/Raghu is the purchaser of stolen properties. It is specific case of the prosecution that, ornaments were seized from Cw.6/Raghu. But prosecution has not examined this witness as well. Under these circumstances, it is risky to place reliance on the testimony of Pw.5, who is police officer. when evidence of Pw.1 does not discloses that, accused No.1 to 4 are the 11 S.C.No.846/2016 persons, who robbed ornaments from his possession, and further more, identity of seized articles were also not been established by prosecution through the mouth of Pw.1. Under these circumstances, it is unsafe to place reliance on uncorroborated testimony of Pw.5.
17. As per the case of prosecution, most material witnesses are Cw.4 to Cw.6. But prosecution has not examined these witnesses, despite granting sufficient opportunities. In the absence of corroborative evidence, it must necessarily held that, prosecution has failed to prove the contents of Ex.P.8/seizure mahazar. In view of my above discussions and in the result, it is very much clear that, there is no ay corroborative, convincing and acceptable evidence on record to hold that, accused are the guilty of the offences as alleged in the charge sheet.
18. In view of my above discussions, and in the result, I have unhesitatingly come to the conclusion that, prosecution failed to substantiate the charges leveled against accused. Accordingly, I answer these points No.1 and 2 in negative.
12 S.C.No.846/2016
19. POINT NO.3: In view of my findings on above points No.1 and 2, accused No.1 to 4 are entitled for acquittal. Being of that opinion, I proceed to pass the following:
ORDER Accused No.1 to 4 are acquitted U/s. 235(1) of Cr.P.C of the offences punishable U/s.392 and 413 of I.P.C.
Case against accused No.5 stands abetted.
Accused No.1 to 4 are set at liberty.
Office is directed to issue intimation, directing jail authorities to release accused No.1 to 4 forthwith, if they are not required in any other case.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 10th day of July, 2017.) (MADHUSUDHAN B.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.13 S.C.No.846/2016
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 M.K.Swamy Pw.2 G.Ramadass Pw.3 D.B.Boraiah Pw.4 G.krishnamurthy Pw.5 S.Waseemulla II. For Defence:- - Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of Pw.1
Ex.P.2 Spot Panchanama
Ex.P.2(a) Signature of Pw.1
Ex.P.2(b) Signature of Pw.2
Ex.P.3 Indemnity Bond
Ex.P.3(a) Signature Pw.1
Ex.P.4 F.I.R.,
Ex.P.4(a) Signature of Pw.3
Ex.P.5 Statement of accused No.3
Ex.P.6 Statement of accused No.4
Ex.P.7 Statement of accused No.5
Ex.P.8 Amanath panchanama
Ex.P.8(a) Signature of Pw.5
14 S.C.No.846/2016
For Defence side:-
-Nil-
IV. List of material objects marked:-
-Nil-
(MADHUSUDHAN B.)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY