Bangalore District Court
State By Amruthahalli vs 2. Murugesh S/O Late Devendra on 17 December, 2016
IN THE COURT OF THE CHIEF METROPOLITAN
MAGISTRATE, BENGALURU CITY
Dated this the 17th day of December 2016
PRESENT:
Sri Rudolph Pereira, B.Com., L L.M.,
CMM, Bengaluru
C.C. No.28089/2015
Complainant : State by Amruthahalli
Police, Bengaluru City
-V/s-
Accused : 2. Murugesh S/o Late Devendra,
26 yrs, Residing in the house of
Aralappa as Tenant, Near Cycle Shop,
Mariyannanapalya, Bengaluru.
Date of offence : 16-03-2012
Offence : Section 454 and 380 IPC
Plea of the : Accused No-2
Accused pleaded not guilty
Final order : Accused No-2 Acquitted
Date of Judgment : 17-12-2016
2 CC No.28089/2015
J U D G M E N T U/S 355 of Cr.P.C.
The Police Sub-Inspector of Amruthahalli P.S.,
Bengaluru City has filed split up charge sheet against accused
No-2 for the offences punishable U/S 454 and 380 of IPC.
This is a split up case from original CC No.25209/2012.
2. The brief facts of the case of prosecution are that-
On 16-03-2012 during afternoon hours, the accused
persons with an intention to commit theft have committed
lurking house-trespass into the house of CW1 Armugam
situated at Amruthanagar 'C' Sector, Sahakaranagar Post,
Bengaluru, by breaking open the door and committed theft of
various ornaments weighing 29 grams kept in the almirah of
the hall and thereby committed the aforesaid offences.
3. Accused No-2 is in J.C. under body warrant. In
original CC No.25209/2012, after furnishing charge-sheet
copies, my the then learned predecessor on the basis of
materials placed before the Court has framed charges against
accused persons for the alleged offences and read over &
3 CC No.28089/2015
explained in the language known to them. The accused
persons pleaded not guilty and claimed to be tried.
4. The prosecution in order to prove its case has
examined in all seven witnesses as PW1 to 7, produced
documents as per Ex.P1 to 9 and material objects as per MO1
to 6. Thereafter the statement of accused persons as required
U/S 313 of Cr.P.C. was recorded, wherein they have denied
the prosecution case in toto and opted not to adduce any
defence evidence.
5. It is to be noted here that when the original case was
at the stage of hearing arguments, accused No-2 remained
absent and hence the said case against accused No-2 was split
up and the present case came to be registered against him.
6. Since the stage of framing charges, evidence of
prosecution witnesses and the statement of accused No-2 was
already recorded in original CC No.25209/2012, with the
consent of both parties without repeating the above
4 CC No.28089/2015
formalities, I have heard the arguments of learned Sr. APP
and learned advocate for accused No-2.
7. The prosecution has examined the complainant
Armugam as PW1. He has stated that one year prior to his
giving evidence, his house situated at Amruthahalli was
locked during afternoon hours and when he came back in the
evening, it was found that the lock of his house was broken
and the gold ornaments, silver articles kept in the house were
stolen. He has identified the complaint as per Ex.P1 and spot
mahazar as per Ex.P2. He has further deposed that on 20-09-
2011, the Amruthahalli Police called him to police station
and showed the accused persons as well as his stolen
property. PW1 has identified the stolen properties as MO1 to
6 and its photograph as per Ex.P3. However, from the cross-
examination evidence of PW1, it is clear that through the
police, he came to know that accused persons were involved
in the alleged incident of theft in his house.
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8. The alleged spot mahazar witness namely
R.Sundaram appeared before this court as PW2 and deposed
that on 16-03-2012, the police visited the house of PW1 for
the reason that theft was occurred in their house and
conducted Ex.P2 mahazar. But he has not specifically stated
the time of conducting Ex.P2 mahazar and names of other
signatories to the said document.
9. The prosecution has examined four police officials
namely P.Munireddy, Panduranga, J.Ramesh Katkar and
K.Veeranna as PW3 and PW5 to PW7 respectively. PW3 has
deposed about the arrest of accused and PW5 to PW7 have
deposed about their role played in the investigation of this
case.
10. In theft cases, what is required to be proved by
prosecution is that the nexus between stolen article and
accused. In this regard, the prosecution relies on the evidence
of PW4 Beraram - the receiver of stolen property. PW4 has
stated that he is running a Pawn Shop under the name and
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style of Mohan Bankers at Govindapura. That nine months
prior to his giving evidence, accused had sold the ornaments
at MO1 to 6 to his shop. That after three months, the police
came along with accused and recovered MO1 to 6 through
Ex.P5 mahazar and took his signature. But during cross-
examination, the PW4 has stated that he does not know to
read and write Kannada Language, he cannot say the weight
of gold chain and that the police have not seized the pawn
receipt.
11. Of course, the evidence of PW1 and 2 makes it clear
relating to the theft that has occurred in the house of PW1.
Whether the alleged theft has been committed by accused
No-2 along with others is to be established by prosecution. It
is to be noted here that, the evidence of CW5 Subramani and
CW6 Sunil Kumar - the recovery panchas is not made
available to court. Though there are no strong reasons to dis-
believe the testimony of PW4, in my considered opinion,
unless the panch witnesses are examined before the court, it
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is not fair to trust the matter and to raise presumption against
accused No-2, especially when the whole case of prosecution
is depending on circumstantial evidence of the recovery of
property. In this view of fact, the whole case of prosecution
has been rendered weak and hence this court doesn't deem it
proper to base conviction solely on the evidence available on
record, which has failed to receive corroborative force by
leading the evidence of recovery panchas. Therefore, I am of
the view that the evidence of PW1 to PW3 and PW5 to PW7
is not helpful to the prosecution.
12. On the whole, this court is of the considered opinion
that the evidence of witnesses examined on behalf of
prosecution are not sufficient to say that the circumstantial
evidence is so strong, as to convict accused No-2. Apart from
the above, the original CC No-25209/2012 has already ended
in acquittal of accused No-1 and 3. Hence, viewing from any
angle, there is no sufficient, positive and material evidence to
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bring home the guilt of accused No-2. In the result, I proceed
to pass the following-
ORDER
The accused No-2 is found not guilty. Hence acting under Section 248(1) of Cr.P.C., he is acquitted of the offences punishable under Section 454 and 380 of IPC.
The body warrant issued against accused No-2 is recalled. The jail authorities are directed to release accused No-2 forthwith, if he is not required in any other case.
The interim custody of MO1 to 6 already granted in favour of PW1 is hereby made absolute.
(Dictated to the Stenographer on Computer. The computerized print out taken by him is revised, corrected and then pronounced by me in the open court on this day i.e., 17-12-2016) (Rudolph Pereira), Chief Metropolitan Magistrate, BENGALURU.
9 CC No.28089/2015ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Armugam
PW2 : R.Sundaram
PW3 : P.Munireddy
PW4 : Beraram
PW5 : Panduranga
PW6 : J.Ramesh Katkar
PW7 : K.Veeranna
List of Documents marked on behalf of the prosecution:-
Ex.P1 : Complaint
Ex.P2 : Spot Mahazar
Ex.P3 : Photograph
Ex.P4 : Report of PW3 (Copy)
Ex.P5 : Recovery Mahazar
Ex.P6 to 8 : Relevant Portions in the
Voluntary Statements of Accused (Copies) Ex.P9 : F.I.R.
List of Material objects produced:-
MO1 : Four Pairs Gold Ear Rings MO2 : Gold Ring MO3 : Six Gold Gundus MO4 : Two Gold Coins MO5 : Silver Taita MO6 : One Pair Silver Ankle Chain List of Witnesses examined & documents marked on behalf of the defence:
NIL C.M.M., BENGALURU.10 CC No.28089/2015
17-12-2016 (Judgment pronounced vide separate sheets) ORDER The accused No-2 is found not guilty. Hence acting under Section 248(1) of Cr.P.C., he is acquitted of the offences punishable under Section 454 and 380 of IPC.
The body warrant issued against accused No-2 is recalled. The jail authorities are directed to release accused No-2 forthwith, if he is not required in any other case.
The interim custody of MO1 to 6 already granted in favour of PW1 is hereby made absolute.
Chief Metropolitan Magistrate, Bengaluru.