Bangalore District Court
Sardar Pasha vs Mohammed Shareef Alias Ansar on 9 September, 2024
KABC030393112017
Presented on : 08-06-2017
Registered on : 08-06-2017
Decided on : 09-09-2024
Duration : 7 years, 3 months, 1 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 09th Day of September, 2024
C. C. No.15722/2017
State by J.C. Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri Mohammed Shariff @ Ansar,
Aged about 47 years,
S/o Late Sri. Mohammed Noorulla Khan,
R/at No.274, Kempapura,
Dasarahalli, Behind IBM,
Amruthahalli Police Station Limits,
Bengaluru. ... Accused
(Represented by Sri Brijesh Rajput Advocate)
KABC030393112017 CC No.15722/2017
1. Date of commission of In between 29-03-2017
offence to 01-04-2017
2. Name of Complainant Sri Sardar Pasha
3. Offences complained of Under Section 454, 380
IPC
4. Charge Pleaded not guilty
5. Final Order Accused is not found
guilty
6. Date of order 09-09-2024
JUDGMENT
The Police Inspector of J.C. Nagara Police Station submitted charge sheet against accused for the offences punishable under Section 454, 380 of Indian Penal Code.
2. Prosecution Case: In between 29-03-2017 to 01-04-2017 during the day time, the accused has trespassed into the house of CW1 Sri Sardar Pasha situated at No.12/1, Kempaiah Block, 3 rd Cross, within the limits of J.C.Nagara Police Station by breaking open the door lock of house and committed theft of gold ornaments, silver articles and cash totally worth about ₹1,60,000/- kept in the almirah of house.
2KABC030393112017 CC No.15722/2017
3. First Information Report: Upon the receipt of first information from CW1, CW9/PW5, HC of J. C. Nagara Police Station registered a Crime No.63/2017 against the accused for the offences punishable under Section 380, 454 R/w Sec.34 of IPC, prepared FIR and sent the same to the Court and to his superior officers and handed over the case papers to CW10.
4. Investigation: During the course of investigation, on the receipt of case papers from PW5, CW10/PW6 conducted the spot mahazar as per Ex.P1 and seizure mahazar as per Ex.P2, recorded the statements and submitted the charge sheet against the accused for the offences punishable under Section 454, 380 of IPC.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
6. The accused was enlarged on bail by the order dated 12/04/2017.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offences 3 KABC030393112017 CC No.15722/2017 punishable U/Sec.454, 380 of Indian Penal Code has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 10 witnesses, examined 6 witnesses and exhibited 5 documents and closed their side. CW1 was dropped out by order dated 07-07-2022 as he reported to be dead. The examination of CW6 and CW8 were given up by the order dated 11-09-2023 and the examination of CW5 was given up by the order dated 05-12-2023 despite execution of process for securing the witness.
10. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 statement of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
4KABC030393112017 CC No.15722/2017
1. Whether the prosecution proved beyond all reasonable doubt that in between 29-03- 2017 to 01-04-2017 during the day time, the accused has trespassed into the house of CW1 Sri Sardar Pasha situated at No.12/1, Kempaiah Block, 3rd Cross, within the limits of J. C. Nagara Police Station by breaking open the door lock of house thereby resulted in commission of an offence punishable u/Sec. 454 of IPC?
2. Whether the prosecution proved beyond all reasonable doubt that on above said date, place and time the accused has trespassed into the house of CW1 and committed theft of gold ornaments, silver articles and cash totally worth about ₹1,60,000/- kept in the almirah of house thereby resulted in commission of an offence punishable u/Sec.380 of IPC?
3. What order?
5KABC030393112017 CC No.15722/2017
13. 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
14. Point No.1 and 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 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW1/PW1 Sri Sheik Khaseem and CW3/PW2 Sri Iqbal Pasha, pancha witnesses deposed in their evidence that on 04-04-2017 at CW1's house situated at Kempaiah Block, JC Nagara, the police officials conducted spot mahazar as per Ex.P1 regarding theft and obtained their signatures as per Ex.P1(a) and 1(b) respectively.
ii. CW4/PW3, Sri Abrahar, seizure mahazar witness identified his signature on Ex.P2 seizure mahazar as per Ex.P2(a) and deposed that he signed the said document at Hotel Shobha Residency, when police seized the item No.1 to 19 properties from the 6 KABC030393112017 CC No.15722/2017 room where accused was stayed. Further he identified the jewelry and cash shown in Ex.P3 photo.
iii. CW7 Sri Mehaboob Saab, the then PC/HC of J.C.Nagar PS examined as PW4 deposed that he along with CW 6 and CW8 apprehended the accused and produced him before SHO with report.
iv. CW9/PW5 Sri Ravikumar the then PC and HC of J.C.Nagara PS, deposed that the after receipt of complaint from CW1 as per Ex.P3, registered the FIR as per Ex.P4 and handed over the case papers to CW10.
v. CW10 Sri Girish Nayak, the then PI of J.C.Nagara Police Station examined as PW6 deposed that on receipt of case papers from PW5, he conducted spot mahazar as per Ex.P1 and seized the properties through Ex.P2 (seizure mahazar), recorded the statements of requisite witnesses and submitted charge sheet against accused for the alleged offences.
15. 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 454 of Indian Penal Code are:-
1. The accused had committed lurking house trespass or house breaking.7
KABC030393112017 CC No.15722/2017
2. In order to commit any offence punishable with imprisonment.
3. There should be an intention to commit theft.
16. The offence of House Breaking has been defined under Section 445 of IPC which reads as follows;
A person is said to have committed house breaking if he affects his entrance into the house or any part thereof or affect 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.8
KABC030393112017 CC No.15722/2017
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 threating a person with assault.
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.9
KABC030393112017 CC No.15722/2017
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. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution has to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. The accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
19. It is the case of prosecution that the CW1 lodged a complaint on 04/04/2017 which is extracted ad verbatim as under 10
KABC030393112017 CC No.15722/2017 ಹೀಗಿರುವಲ್ಲಿ ಈ ದಿನಾಂಕ ೨೯.೦೩. ೨೦೧೭ ರಂದು ಬೆಳಗ್ಗೆ ಸುಮಾರು ೯. ೦೦ ಗಂಟೆಯಲ್ಲಿ ನಮ್ಮ ಮನೆಗೆ ಬೇಗ ಹಾಕಿಕೊಂಡು ಕುಟುಂಬದ ಸಮೇತೆ ನಮ್ಮ ಊರಿಗೆ ಹೋಗಿದ್ದೆ, ಈ ದಿನ ದಿನಾಂಕ ೦೪.
೦೪. ೨೦೧೭ ರಂದು ಬೆಳೆಗೆ ೧೦.೩೦ ಗಂಟೆಗೆ ಊರಿನಿಂದ ವಾಪಸ್ಸು ಬಂದು ನೋಡಿದಾಗ ನಮ್ಮ ಮನೆಯ ಬಾಗಳಿಗೆ ಹಾಕಿದ್ದ ಬೀಗ ಮುರಿದಿರುವುದು ಕಂಡು ಬಂದು ಮನೆಯೊಳಗೆ ಹೋಗಿ ನೋಡಲಾಗಿ ಮನೆಯೊಳಗಿನ ರೂಮ್ನಲ್ಲಿ ಇದ್ದ ಬೀರು ತೆರೆದಿರುವುದು ಕಂಡುಬಂತು. ತಕ್ಷಣ ಪರಿಶೀಲಿಸಿ ನೋಡಿದಾಗ ಬೀರುವಿನ ಒಳಗೆ ಇಟ್ಟಿದ್ದ ಸುಮಾರು ೭೦ ಗ್ರಾಮ್ಸ್ ತೂಕದ ಚಿನ್ನದ ವಡವೆಗಳಾದ ೧) ಎರಡು ಚಿನ್ನದ ನೆಕ್ಲೆಸ್ ೨) ಒಂದು ಚಿನ್ನದ ನೆತ್ತಿ ಚೂಡಿ ೩) ಎರಡು ಚಿನ್ನದ ಲೇಡೀಸ್ ಬೆರಳುಉಂಗರಗಳು ೪) ಒಂದು ಒಂಟಿ ಚಿನ್ನದ ಕಿವಿಯ ಟಾಪ್ಸ್ ೫) ಒಂದು ಚಿನ್ನದ ಮೂಕತಿ ೬) ಒಂದು ಚಿನ್ನದ ಕಾಯಿನ್ಸ್ ೭) ಒಂದು ಬೆಳ್ಳಿಯ ಕಾಯಿನ್ಸ್ ಮತ್ತು ನಗದು ಹಣ ೧೮,೦೦೦/-
ರೂ ಗಳು ಇವುಗಳ ಒಟ್ಟು ಬೆಲೆ ಅಂದಾಜು ೧,೬೦,೦೦೦/- ರೂ ಆಗಿರುತ್ತೇವೆ. ಇವುಗಳು ಇಲ್ಲದಿರುವುದು ಕಂಡುಬಂತು ನಾವು ಮನೆಯಲ್ಲಿಲ್ಲದ ಸಮಯದಲ್ಲಿ ಯಾರೋ ಕಳ್ಳರು ಬಾಗಲ ಬೀಗ ಮುರಿದು ಮನೆಯೊಳಗೆ ಪ್ರವೇಶ ಮಾಡಿ ಮೇಲ್ಕಂಡ ಚಿನ್ನದ ಒಡವೆಗಳನ್ನು ಮತ್ತು ನಗದು ಹಣವನ್ನು ಕಳ್ಳತನ ಮಾಡಿಕೊಂಡು ಹೋಗಿರುತ್ತೆರೆ.
Based upon this complaint, a crime came to be registered in crime No. 63/2017 for the offences punishable under section 454, 457, 380 of IPC against unknown person as per Ex.P4 and thereafter 11 KABC030393112017 CC No.15722/2017 the spot mahazar was drawn at No.12/18, 3rd Cross, Kempaiah Block, within the limits of J.C. Nagar Police Station, Bangalore from 2.30 pm till 3.30pm in the presence of CW2 namely Sri Iquabl S/o Ameer Jhan and CW3 namely Sri Shaik Khannum S/o Shaik Pasha as per Ex.P1.
20. Thereafter, PI of JC Nagara Police station deputed R. Nagaraj HC 674, HC 8903 and PC 7425 in this case for the offences punishable under section 454, 457, 380 of IPC for tracing the accused and provided some guidance to trace the accused based upon the compliant of CW1 namely Sri Sardar Pasha. Based upon which, they were patrolling at Marappa Garden, Chinnappa Garden, Krishnamma Garden and around 5.50 am, one person was coming from opposite direction by dragging his leg and on suspect of committing the theft, he was produced before the SHO of JC Nagara Police station at 6.15 am however what time, IO/PW6 had deputed them for tracing the accused was not explained/mentioned in his report. It ought to be seen that the voluntary statement of accused was recorded on 05/04/2017 and obtained his thumb impression. Based upon his voluntary statement, CW10/PW6/IO proceeded to the Shobha Residency Room No.105, 1st cross, Cotton Pet, Bangalore as per Ex.P2 in the presence of CW4 Abrahar S/o Apaabatt and CW5 Sri Mohammed Husain between 1.30 pm till 2.30 pm and seized the following properties 12 KABC030393112017 CC No.15722/2017
೧. ಒಂದು ಚಿನ್ನದ ನೆಕ್ಲೆಸ್ ತೂ ೧೮. ೮೩೦ ml grm
೨. ಒಂದು ಚಿನ್ನದ ಲಚ್ಚಾ ತೂ ೧೬. ೬೫೦ grm
೩. ಒಂದು ಚಿನ್ನದ ಡಿಸೈನ್ ಚೈನ್ ತೂ ೧೩. ೬೨೦ grm
೪. ಒಂದು ಜೊತೆ ಚಿನ್ನದ ಬಳೆಗಳು ತೂ ೧೨. ೩೪೦ grm
೫. ಒಂದು ಚಿನ್ನದ ಡಾಲರ್ಸ್ವುಳ್ಳ ಚೈನ್ ತೂ ೭. ೫೬೦ grm
೬. ಒಂದು ಜೊತೆ ಚಿನಚಿನ್ನದ ವಾಲೆ ೪೧೩. ೬೨೦ grm
೭. ಒಂದು ಜೊತೆ ಚಿನ್ನದ ಕಿವಯಹ್ಯಾಂಗಿಂಗ್ಸ್ ೪-೨೭೦ grm
೮. ಒಂದು ಚಿನ್ನದ ಬೆರಳು ಉಂಗರ ತೂ ೧. ೭೧೦ grm
೯. ಒಂದು ಛೋಟೆ ಚಿನ್ನದ ಕಿವಿಹ್ಯಾಂಗಿಂಗ್ಸ್ ೩.೯೨೦ grm
೧೦. ಎರಡು ಚಿನ್ನದ ನೆಕ್ಲೆಸ್ ೩೭. ೨೦ grm
೧೧. ಒಂದು ಚಿನ್ನದ ನೆಟ್ಟಿಚೂಡಿ ೧೪. ೯೦೦ grm
೧೨. ಎರಡು ಚಿನ್ನದ ಲೇಪಿಸ್ ಬೆರಳುಉಂಗರ ೩.೬೦೦ grms
೧೩. ಒಂದು ಒಂಪಿ ಚಿನ್ನದ ಕಿವಿಯ ತಾಪ್ಸ್ ೩. ೧೦೦ grams
೧೪. ಒಂದು ಚಿನ್ನದ ಮೂಕಿತಿ ೦-೫೦೦ ml grm
೧೫. ಒಂದು ಚಿನ್ನದ ಕಾಯಿನ್ ೮-೩೦೦ grm
೧೬. ಒಂದು ಬೆಳ್ಳಿ ಮೂಕಿತಿ ೦-೫೦೦ ml grm
೧೭. ನಗದು ಹಣ ೧೮೦೦೦ (೨೦೦೦ x ೧, ೫೦೦x ೨೫, ೧೦೦ x ೨೬, ೫೦ x ೧೬, ೨೦x ೩, ೧೦ x ೪ ಒಟ್ಟು ೧೮,೦೦೦ ರೂಪಯಿಗಳು)
೧೮. ಒಂದು ಲೆನೋವಾ ಕಂಪನಿ ಹೆಸರಿನ ಲ್ಯಾಪ್ಟಾಪ್
೧೯. ನಗದು ಹಣ ಹತ್ತು ಸಾವಿರ (೧೦,೦೦೦) ೨೦೦೦ x ೫ ರೂಪಾಯಿಗಳು However, this court could not understand how the PW6 could have identified the jewels, cash and lenova were involved with Crime No. 58/2017 under section 454, 457, 380 IPC registered in JC Nagara Police Station, Crime No. 63/2017 under section 454, 457, 380 IPC registered in JC Nagara Police Station, Crime No. 18/2017 under section 380 IPC 13 KABC030393112017 CC No.15722/2017 registered in JC Nagara Police Station and Crime No. 55/2017 under section 454, 380 IPC registered in Hebbal Police Station as the victims/informants were not available at the time of seizure for identification of their properties which raises the doubt about the seizure.
21. Added to which, the PW6/IO has not seized any bill from Shobha Residency, Cottonpet, Bangalore that the accused was staying in the said Shobha Residency on 05/04/2017.
22. There is no eye witness who had seen the accused has opened the door of the house for committing the alleged theft. There are no photographs of the spot panchaname namely house of the CW1 and seizure mahazar at Shobha Residency taken by the CW10/PW6/IO.
23. It appears from the evidence of PW6/IO that ಸ್ಥಳದಲ್ಲಿ ಆರೋಪಿಗೆ ಸಂಬಂಧಪಟ್ಟಂತೆ ಬೆರಳು ಮುದ್ರೆಯನ್ನು ಪಡೆದುಕೊಂಡುರುವುದಿಲ್ಲ ಕಾರಣ ಬೆರಳು ಮುದ್ರೆ ಸಿಕ್ಕಿರುವುದಿಲ್ಲ.
Such being the case, how the PW6 could connect the accused to the seizure without production of any document of stay of accused in the Shobha Residency.
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24. Now the question before the court is whether the accused was found in possession of stolen jewels as on 05/04/2017. It appears from the evidence of PW6/IO that ನನ್ನ ತನಿಖಾ ಕಾಲದಲ್ಲಿ ಚಾಸಾ ೧ ರವರಿಂದ ಮಾಲುಗಳಿಗೆ ಸಂಬಂದಬಟ್ಟಂತೆ ಬಿಲ್ಲನ್ನು ಪಡೆದಿರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ.
Thus, it emerges IO has not seized the original bill of jewels belongs to the CW1 then how he could have come to a conclusion that the jewels belongs to the PW1 without any receipts.
25. It appears from the evidence of PW6 that ಸ್ಥಳ ಪಂಚನಾಮೆಗೆ ಘಟನಾ ಸ್ಥಳದಲ್ಲಿ ಅಕ್ಕ್ಕಪಕ್ಕದ ನಿವಾಸಿಗಳನ್ನು ಪಂಚಾರಗಿ ಕರೆದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಕಳ್ಳತನವಾದ ಬಗ್ಗೆ ಅಕ್ಕಪಕ್ಕದ ಮನೆಯವರನ್ನು ವಿಚಾರಣೆ ಮಾಡಿದ್ದು ಅದರ ಬಗ್ಗೆ ಸಿಡಿಯಲ್ಲಿ ಉಲ್ಲೇಖಿಸಿದ್ದು ಅವರು ಯಾವುದೇ ಮಾಹಿತಿ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ.
The best witnesses would be immediate neighbours to speak about the theft however the PW6 did not make any attempt to call the local inhabitants for the spot mahazar for the alleged theft taken place on 04/04/2017. 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 15 KABC030393112017 CC No.15722/2017 during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
26. It ought to be seen that PW6 seized the stolen Item No.1 to 19 as per Ex.P2 but neither of the manager or employee of Shobha Residency were made as a witness to corroborate that the alleged seizure is from Shobha Residency when no bill of stay of accused was produced.
27. 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 jewels from the accused as per Ex.P2 and Ex.P3 is doubtful.
28. In view of the above discussion, the court of the view that prosecution failed to prove that the accused had committed theft by breaking open the house of CW1 Sri Sardar Pasha situated at No.12/1, Kempaiah Block, 3rd Cross, within the limits of J. C. Nagara Police Station and committed theft of gold jewellery articles and cash from therein thereby the charges against the accused has not been proved. Thus, this court answers the above point No.1 and 2 in the negative.
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29. 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 is found not guilty and acquitted from the offences punishable under Sec.454, 380 of IPC.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) After expiry of appeal period, the interim custody of properties granted in favour of petitioners is made absolute.
(v) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 9th day of September, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
17KABC030393112017 CC No.15722/2017 ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Sheik Khaseem PW2 : Sri Iqbal Pasha PW3 : Sri Abrahar PW4 : Sri Mehaboob Saab PW5 : Sri Ravikumar PW6 : Sri Girish Nayak
Documents marked on behalf of the prosecution:
Ex.P1 : Spot Mahazar Ex.P2 : Seizure Mahazar Ex.P3 : Complaint/photo Ex.P4 : F.I.R.
Ex.P5 : Report 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.18
KABC030393112017 CC No.15722/2017 Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.454, 380 of IPC.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) After expiry of appeal period, the interim custody of properties granted in favour of petitioners is made absolute.
(v) Ordered accordingly.
VIII ACJM, Bengaluru City.
19