Bangalore District Court
The State Of Karnataka vs A2) Harish @ Thure S/O. Ganesh on 30 April, 2016
IN THE COURT OF LV ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE (CCH-56)
:Present :
Sri Kotrayya M. Hiremath, B.Sc., LL.B.(Spl).
LV Addl. City Civil & Sessions Judge,
Bangalore.
: S.C.No.955/2015 :
DATED: THIS THE 30TH DAY OF APRIL 2016.
Complainant : The State of Karnataka,
Through the Police Sub-Inspector,
Magadi Road Police Station,
Bangalore.
(By: The Public Prosecutor)
-V/s-
Accused : A2) Harish @ Thure s/o. Ganesh,
Age : 22 years,R/at No. 126,
2nd Cross, Sathyashiva Kalyana Mantapa,
Preethinagar, Laggere, Bangalore.
(By Smt. Jayashree, Advocate)
JUDGMENT
1. Date of commission of 06-03-2013
Offence
2. Date of report of 06-03-2013
Occurrence
3. Date of commencement 03-11-2015
of evidence
4. Date of closing of 27-04-2016
Evidence
5. Name of the Sri Thimmaiah, PSI,
complainant Magadi Road Police Station,
Bangalore.
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6. Offence complained of u/secs. 399 & 402 of IPC
7. Date of arrest A2 - On 06-03-2013
8. Date of release In J.C
9. Opinion of the Judge Offence not proved
10. Duration: (from date of 03 years, 01 month and 24 days
commission of offence)
11. Order of sentence Accused No. 2 is acquitted
In this case the Sub-Inspector of Police of Magadi Road Police station, Bangalore, has filed the charge sheet against six accused persons alleging that they have committed the offence of "making preparation to commit dacoity" and "assembling for purpose of committing dacoity" p/u/secs. 399 & 402 of IPC. But the present case is only against the accused No.2.
2. The brief facts of the case of prosecution as per charge sheet are as under:-
2(a) The incident took place on 06-03-2013 at about 9-00 pm in the open space by the side of Samudaya Bhavan in M.G. Railway Colony, within the limits of Magadi Road Police Station at Bangalore. On that day the complainant-PSI received a credible information about the incident. Immediately, the complainant and his police staff along with panchas went to the
-3- S.C. No. 955/2015 said spot, they noticed the presence of accused persons armed with deadly weapons and they got it confirmed that the accused had the intention to commit dacoity in the above mentioned place. They raided the spot, surrounded the accused and were able to catch hold of three of them. Then, in presence of CWs.2 and 3 pancha witnesses, the complainant-PSI seized the weapons and other articles from accused Nos.1 to 3. The remaining accused Nos. 4 to 6 ran-away and escaped. The CW1- complainant lodged the complaint. Then after completion of investigation the charge sheet is filed against all the accused Nos. 1 to 6 for the offence u/secs. 399 and 402 of IPC and the accused Nos.4 and 5 were shown as absconding. But the committal court has split-up the case against A1 and A3 to 6 and has committed the case against A2 only for trial.
3. The A2 was in J.C. when the case was committed to this court. The standing counsel is appointed for A2. This is a sessions trial case. Both the parties are, therefore, heard by this court u/sec. 227 of Cr.P.C before framing the charge. It was found that there are sufficient grounds for presuming that the accused No.2 has committed the alleged offence. Therefore, the charge has been framed u/sec. 228 of Cr.P.C for the offence
-4- S.C. No. 955/2015 p/u/secs. 399 & 402 of IPC against accused No.2. It was read over and explained to him and he has pleaded not guilty and has claimed to be tried. Accordingly the case is tried by this court.
3(a) The prosecution, in order to prove its case, has adduced the oral evidence of CWs. 9 and 5 as PWs 1 and 2 respectively. It has produced the documents such as complaint, Mahazar and FIR etc., and got them marked as Exs.P.1 to 3 and has produced four material objects such as wooden club, long, knife and chilli powder pocket and got them marked as M.Os.1 to 4.
3(b). The statement of this accused No.2 u/sec.313 of Cr.P.C is recorded. He has denied the truth of all the incriminating evidence produced against him. At the same time he has not chosen to lead any defence evidence on his side. Therefore, there is no recording of defence side oral evidence u/sec. 233 of Cr.P.C.
4. I have heard the arguments of both sides.
5. Now the following points will arise for my consideration and determination:
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1) Whether the prosecution proves beyond all reasonable doubts that on 06-03-2013 at about 9-00 pm in the open space by the side of Samudaya Bhavan in M.G. Railway Colony, within the limits of Magadi Road Police Station at Bangalore, the accused No.2 along with other accused persons did make preparation to commit dacoity by possessing deadly weapons like club, long, knife...,etc. and thereby committed an offence p/u/sec. 399 of IPC ?
2) Whether the prosecution further proves beyond all reasonable doubts that on the aforesaid date, time and place, the accused No.2 was one among the five or more persons who had assembled for the purpose of committing dacoity and thereby committed an offence p/u/sec. 402 of IPC?
3) What order?
6. My answers to the above points are as under:
Point No.1 : In the Negative,
Point No.2 : In the Negative,
Point No.3 : As per final order
for the following :
REASONS
Point Nos.1 & 2:-
7. There are totally nine witnesses named in the charge sheet as CWs.1 to 9. Among them the prosecution has examined the CWs. 9 and 5 as PWs. 1 and 2. Therefore, the prosecution is now depending only upon the oral evidence of PWs. 1 and 2, the
-6- S.C. No. 955/2015 documentary evidence Exs.P1 to 3 and the material objects M.Os 1 to 4 to prove its case.
8. As already noticed above, the case of prosecution is that the incident took place on 06-03-2013 at about 9-00 pm in the open space by the side of Samudaya Bhavan in M.G. Railway Colony, within the limits of Magadi Road Police Station at Bangalore. It is said that on that day the complainant and his police staff along with panchas went to the said spot, they noticed the presence of accused persons armed with deadly weapons, they got it confirmed that the accused had the intention to commit dacoity in the said place, they raided the spot, surrounded the accused and were able to catch hold of three of them and that in presence of CWs.2 and 3 pancha witnesses the complainant-PSI seized the weapons from accused Nos.1 to 3.
9. The CW5 Somashekhar, the head constable, is examined as PW2. He has stated that on 6-3-2013, at about 9-00 p.m, himself, CWs.1, 4, 6 and 7 and panchas went to the place of incident near M.G. Railway colony, that six accused persons, armed with deadly weapons, were present in the said
-7- S.C. No. 955/2015 place and that they raided the spot and caught hold of three of them. He has further stated that they seized the weapons and cash amounts which were in possession of those three accused persons in presence of panch witnesses. The PW2 has identified the weapons and other articles as M.Os.1 to 4 and he has also identified the A2 Harish of this case. His chief examination itself is incomplete. Thereafter, inspite of issuance of summons and warrants, he did not come to complete his oral evidence. Therefore, the oral evidence of this PW2 has no evidentiary value in the eyes of law.
10. The CW9 Sri Chidanand, the PSI, is examined as PW1. He is the investigating officer of this case. He has stated that on 6-3-2013 at about 11-20 p.m. (night), when he was present in the P.S., the CW1 police officer came and submitted his report/complaint along with three accused persons and the M.Os. He has further stated that on the basis of said report he registered this case as Cri.No.56/2013, recorded the voluntary statements of accused and witness statements of other witnesses and that on 8-2-2013 he secured the presence of A6 through his office staff. He has further stated that the Ex.P1 is the complaint/report, the Ex.P2 is Mahazar and Ex.P3 is FIR. He
-8- S.C. No. 955/2015 has identified the A2 of this case and also the weapons as M.Os.1 to 4. The oral evidence of this PW1 is also incomplete. This PW1 has not faced the cross-examination by the other side advocate. Thereafter, inspite of issuance of summons and warrants, he did not come to the court. The PW1 was not available for the cross-examination by the other side. Therefore, the oral evidence of this PW1 also has no evidentiary value in the eyes of law.
11. The witness summons and warrants were sent to CWs. 1 to 3 and 6 to 8 several times. Inspite of it they did not come forward to give their oral evidence. The prosecution is therefore unable to adduce the oral evidence of other material witnesses. Because of these reasons this court is of the opinion that the prosecution has failed to prove its case against accused No. 2. The accused No.2 is therefore entitled for acquittal. Hence the point Nos.1 and 2 are answered in the negative. Point No.3:
12. In view of the findings already given on point Nos. 1 and 2 above, I proceed to pass the following:
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ORDER
In exercise of the power conferred u/sec. 235(1) of Cr.P.C., the accused No.2 Harish @ Thure is acquitted of the offence p/u/secs. 399 & 402 of IPC and he is set at liberty.
2) The material objects MOs. 1 to 4 shall be retained till disposal of the case against other accused Nos.1 and 3 to 6.
3) The accused No.2 is in J.C. The Jail authority is directed to release the accused No.2 forthwith, if he is not required to be detained for any other case. Issue intimation to the jail authority accordingly. [Directly, dictated to the judgment writer on computer, corrected and then pronounced by me in open court, dated this 30th day of April 2016.] (Kotrayya M. Hiremath) LV Addl. City Civil & Sessions Judge, Bangalore.
ANNEXURES List of Witnesses examined on behalf of Prosecution:
PW1 B. Chidananda PW2 Somashekar
List of documents marked on behalf of the prosecution:
Ex.P1 complaint
Ex.P1(a) signature of PW.1
Ex.P2 mahazar
Ex.P2(a) signature of PW.1
Ex.P3 F.I.R
Ex.P3(a) signature of PW.1
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List of Material Objects Marked on behalf of the prosecution:
M.O.1 wooden club M.O.2 Long M.O.3 Knife M.O.4 Chilly powder
List of Witnesses Examined and documents marked on behalf of the defense:
-Nil-
(Kotrayya M. Hiremath) LV Addl. City Civil & Sessions Judge, Bangalore.
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