Bangalore District Court
State By vs 3. Venkatesha @ N.T on 14 December, 2018
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE BENGALURU CITY
PRESENT
SRI.SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 14th day of December, 2018
S.C.No.823/2018
COMPLAINANT:- State by
Police Sub-Inspector,
Kengeri Police Station,
Bengaluru.
(Rep. by Public Prosecutor)
V/s.
ACCUSED:- 3. Venkatesha @ N.T.,
s/o Nagaraju,
Aged about 27 years
R/at No.29,
Mini Gandhi Nagara,
Kengeri,
Bengaluru City.
(By Sri. MHG, Advocate)
Date of Commencement 09.11.2017
of offences
Date of report of 17.01.2018
offences
2 S.C.No.823/2018
Name of complainant Sri Dayanand G. Gunasi
Sub Inspector of Police
Date of recording of 15.11.2017
evidence
Date of closing of 01.02.2018
evidence
Offence complained off
U/s. 399 and 402 of IPC
Opinion of the judge Acquittal
****
JUDGMENT
This is a split up charge sheet submitted by the Police Sub- Inspector, Kengeri P.S., as against accused No.3 for the offence punishable under Sections 399 and 402 of IPC.
2. Brief facts of the prosecution case are as follows:-
The complainant Sri Dayanand G Gunasi, the police sub-
Inspector, CCB, OCW Squad, NT Pet, Mysore Road, Bangalore, states that, on 26.11.2015 at about 5.20 p.m. he received credible information that, within the jurisdiction of Kengeri police station, in front of National Public School, Service Road towards Dubasipalya, the rowdy sheeter - Raghavendra and four-five 3 S.C.No.823/2018 persons had gathered and armed with deadly weapons, they were making preparations to commit dacoity. The complainant states that, he immediately summoned the two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking amongst themselves that, they would commit dacoity. After confirming this aspect, the complainant along with his staff surrounded the accused and they caught hold them. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparations to commit dacoity.
The complainant further states that, he seized the vehicle and deadly weapons i.e., two iron choppers, iron long chopper and 4 S.C.No.823/2018 Chilly powder packet from these accused persons and in the presence of two panchas i.e. CW.2 Ravi Kumar and CW.3 M.S. Siddalingaiah conducted the mahazar. Thereafter, he came to the police station along with accused and seized articles, and lodged the complaint before CW.8 K.V. Narayanagowda.
3. Learned III ACMM, Bangalore, took cognizance of the offences punishable u/sec.399 and 402 of IPC, and committed the case. After committal, the case is numbered as S.C.No.500/2017 and then made over to this court, for disposal in accordance with law. After hearing, charges were framed and explained to Accused No.3 to 5 for the offences punishable u/Sec.399 and 402 of IPC. However, Accused No.3 to 5 pleaded not guilty of the charges leveled against them, and they claimed to be tried. Thereafter, accused No.3 remained absent continuously. Hence, case against accused No.3 was ordered to be split up and the present case came to be registered.
4. The prosecution in support of its contention had totally cited 9 witnesses i.e. CW1 to CW9. However, the prosecution was able to secure and examine only three witnesses i.e. PW.1 to PW.3 and documents at Ex.P.1 to Ex.P.3 and M.O.1 to M.O.4 5 S.C.No.823/2018 were marked. The prosecution was able to secure and examine only CW.1, CW.8 and CW9. Even though, sufficient opportunity was given, prosecution was unable to secure CW.2 and CW.3. Hence, prayer of learned PP was rejected and CW.2 and CW.3 were dropped. Learned PP has given up CW4 to CW7.
5. The accused was examined under Section 313 Cr.P.C., The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against him. The accused has not chosen to lead any defense evidence on his behalf.
6. Heard argument from both sides.
7. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that, on 26.11.2015 at about 5.20 p.m. within the jurisdiction of Kengeri police station, in front of National Public School, Service Road towards Dubasipalya, the accused No.3 along with other accused had gathered and armed with deadly weapons i.e., two iron choppers, iron rod and chilly powder packet, were making preparations to commit dacoity, and thereby committed an offence punishable u/Sec. 399 of IPC?6 S.C.No.823/2018
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place, accused No.3 along with other accused persons, have assembled at the said spot to commit dacoity and thereby committed an offence p/u/Sec. 402 of IPC?
3. What Order?
8. My answer to the above points are:
Point No.1 :- In the Negative Point No.2 :- In the Negative Point No.3 :- As per the final order for the following:-
REASONS
9. Points No.1 and 2:- Since these points are interconnected with each other, for the sake of convenience and to avoid repetition of facts and evidence, I would like to take these points together for common consideration.
10. The complainant has been examined as PW.3. He states that, on 26.11.2015 at about 5.20 p.m. he received credible information that within the jurisdiction of Kengeri police station, in front of National Public School, Service Road towards Dubasipalya, the rowdy sheeter - Raghavendra and four-five persons have gathered and armed with deadly weapons, they were making preparations to commit dacoity. The complainant 7 S.C.No.823/2018 states that, he immediately summoned the two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking amongst themselves that, they would commit dacoity. After confirming this aspect, the complainant along with his staff surrounded the accused and they caught hold them. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparations to commit dacoity. The complainant further states that, he seized vehicle and deadly weapons i.e., two iron choppers, iron long and Chilly powder packet from these accused persons and in the presence of two panchas i.e. CW.2 Ravi Kumar and CW.3 M.S. Siddalingaiah 8 S.C.No.823/2018 conducted the mahazar. Thereafter, he came to the police station along with accused and seized articles, and lodged the complaint before CW.8 K.V. Narayanagowda.
11. PW.3 has elaborately deposed of having arrested the accused persons and of having seized the deadly weapons from the possession of accused persons. He has further deposed that, in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.3. He also identifies the deadly weapons seized i.e. two choppers/swords, iron long and chilly powder packet, and accordingly, they were marked as M.O.1 to M.O.4. He states that, he has conducted panchanama as per Ex.P3 in the presence of CW2 and CW3. He identifies the accused persons. PW.3 has been cross examined by the leaned advocate for accused. Further on careful perusal of cross examination, I am of the opinion that, nothing material has been elicited, so as to discredit his testimony.
12. PW.1 K. V. Narayanagowda, the then Assistant Sub- Inspector of Police, Kengeri P.S., Bangalore. He states that, on 26.11.2015, while he was discharging duty as SHO in the police 9 S.C.No.823/2018 station, PW.3 appeared before him and lodged a complaint as per Ex.P.1 and also produced M.O.1 to M.O.4 along with accused persons. Accordingly he has registered the case and submitted FIR to the court. He further states that, later on he recorded the statements of CW2 Ravikumar.H and CW3 M. S. Siddalingaih. PW.1 further states that, thereafter he has recorded the statements of official witnesses i.e., CW.4 to CW.7. He further states that, he handed over further investigation to PW.2 K. Venkatesh. PW.2 K. Venkatesh, the then PSI of Kengeri PS, is the I.O, who has conducted the part of investigation. He states that, on 26.11.2015, he took up further investigation from PW.1. PW.2 further states that, thereafter he has arrested the accused persons, and recorded the voluntary statements of accused persons. After completing the investigation, he has filed the charge sheet. He identifies the accused before the court.
13. The prosecution in order to prove its case, has totally cited 9 witnesses i.e. CW1 to CW9. However, the prosecution was able to summon and examine only three witnesses i.e. PW.1 to PW.3. Even though, sufficient opportunity was given and coercive steps were taken, the prosecution was unable secure 10 S.C.No.823/2018 the material/independent witnesses i.e., mahazar witnesses CW2 and CW3. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The learned PP has given up CW4 to CW7.
14. It is the specific case of prosecution that the complainant had received credible information that, the accused persons had assembled at the said spot with an intention to commit dacoity. They had assembled with deadly weapons like two choppers, iron long and chilly powder packet and they were making preparation to commit dacoity. PW1 has specifically stated that, upon receipt of credible information, he immediately summoned two independent pancha witnesses i.e. CW2 Ravikumar.H and CW.3 M.S. Siddalingaih. He requested them to act as panchas, upon which the panchas have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that, they stopped their vehicle at some distance from the spot and observed the accused persons. He was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with staff have surrounded 11 S.C.No.823/2018 the accused and they apprehended accused No.1 to 5 from the spot. The complainant has further stated that, from the possession of the accused, he has recovered the vehicle and deadly weapons, used for committing dacoity. He states that, in the presence of two independent panchas i.e., CW2 and CW3, he has seized the articles i.e. iron long and swords/choppers He has conducted the mahazar as per Ex.P.3 in the presence of those two material and independent mahazar witnesses. The burden is very heavy upon the prosecution to prove the mahazar as per Ex.P.3, to prove that these Material Objects were seized from the accused persons who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized two iron choppers, iron long and chilly powder packet. In order to prove these aspects, evidence of PW.1 to PW.3 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
15. It is pertinent to note that, even though sufficient opportunity was given and coercive steps were taken to secure CW2 and CW3, the prosecution was unable to secure them. 12 S.C.No.823/2018 Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The only evidence on record is that of the complainant i.e. PW.3, who was PSI attached to the CCB, OCW Squad, NT Pet, Bangalore. Evidence of PW3 is corroborated by the evidence of PW.1 and 2, who have conducted the investigation.
Before adverting to appreciation of evidence of aforesaid witnesses, it is necessary to state that under Section 399 of IPC, preparation to commit dacoity is made punishable.
16. The entire prosecution case rests on the testimony of PW.3 Dayananda G. Gunasi, who was the member of the raiding party. According to the testimony of this witness, five persons had assembled at the place of occurrence and were found in possession deadly weapons. That being so, this Court has to determine as to whether the accused herein can be convicted for the offence punishable under Sections 399 and 402 of IPC and whether the ingredients of the said sections have been proved by the prosecution or not. However before this Court can do so, it will be necessary to refer to the case law on the subject. 13 S.C.No.823/2018
17. I would like to rely upon the decision of the Hon'ble Supreme Court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502
18. This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein the Hon'ble Supreme Court has observed:-
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."
It has been further held that, "The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the 14 S.C.No.823/2018 appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of five appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved.
Nothing is brought on the by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity".
19. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 and 402 IPC. As discussed herein above, prosecution has examined one member of the raiding party, who has deposed on the lines of the case of prosecution but has not said even a single word that accused persons were making preparation to commit dacoity. The witness states that after seeing about the rowdy 15 S.C.No.823/2018 sheeter - Raghavendra along with four to five persons in front of National Public School, Service Road towards Dubasipalya, PW.3 gave the signal and when the complainant along with staff surrounded, the accused persons tried to run away in different directions, they apprehended. The deadly weapons like M.O.1 to 4 i.e. two choppers/swords, iron long and chilly powder packet are shown to have been recovered from the accused persons. This is the only case of prosecution, which in my opinion is not sufficient to convict the accused person for the offences as indicated.
20. The prosecution was under obligation to establish that, the assembling of the accused persons was for making preparations to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found at vacant place, it cannot be held that they had assembled there for preparation to commit dacoity.
16 S.C.No.823/2018
21. It is true that so far as the offence u/s 402 IPC is concerned, it may be mentioned that this section applies for mere assembling without proof of other preparation. The offence u/s 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case it is not in dispute that, at the spot five persons are shown to have been apprehended.
22. Another important aspect to be noted is that, the prosecution has failed to prove that, there was any overt act on the part of any of the accused persons which may lead to the inference that, they had any intention to commit dacoity or they were planning to commit dacoity over there. It is a matter of common knowledge that, any person who is shown to have in possession of deadly weapons would definitely resist his apprehension by police officials, under the fear of being booked in criminal case. In this background, the story as set up by the prosecution does not appeal reasoning and is liable to be rejected.
23. Moreover, records would indicate that, presence of public witness could have been secured by the complainant who 17 S.C.No.823/2018 was heading the raiding party. The incident is shown to have taken place at about 5.20 pm. Moreover, record would indicate that said place is a public place. This shows that, with a little effort, public witnesses could have been made to join the investigation. However, the prosecution has not secured any public witnesses from the said locality/spot of incident. Even the mahazar witnesses, have been secured from different places.
24. In the present case prosecution tried to bring home guilt of the accused person by relying upon the versions of police official who was member of the raiding party and the I.O who has conducted investigation. A bare perusal of their version clearly reflects the same to be of stereo type. Hence, I am of the opinion that, it will be highly unsafe to rely upon their version.
25. In the present case, prosecution tried to bring home the guilt of the accused person by relying upon the testimony of the police official who was member of the raiding party and the I.O. Their testimony is of stereo type as discussed herein above, which should have been supported by some independent witness, which is failing in the present case. The manner in which stereo type deposition has been given without any corroboration 18 S.C.No.823/2018 or support from any other independent witness is sufficient to disbelieve their version, even in respect of alleged recovery of deadly weapons from the possession of accused persons. The entire proceedings carried out by the raiding party are under the cloud and it would not be safe to place reliance upon the quality of the evidence as adduced by the prosecution. Therefore, the recovery of deadly weapons pursuant to the said proceedings or incident has also become doubtful. There is no independent corroboration to said recovery also.
26. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has miserably failed to prove the offences against the accused persons beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons. Accordingly, I answer point No.1 and 2 in the 'Negative'.
27. Point No.3:- For the above reasons, I proceed to pass the following:-
ORDER Acting under Section 235(1) of Cr.P.C., accused No.3 is acquitted for the offences punishable under Sections 399 and 402 of IPC.19 S.C.No.823/2018
The bail bond and surety bonds of accused No.3 stand cancelled.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.4 in connection with the split up case registered against absconding accused.
(Directly dictated to the stenographer on computer, corrected and then pronounced by me in the Open Court on this the 14th day of December, 2018) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined on behalf of prosecution:-
PW-1 K.V. Narayana Gowda PW-2 K. Venkatesh PW-3 Dayanand G. Gunasi.
List of documents marked on behalf of prosecution:-
Ex.P.1 Complaint
Ex.P.2 FIR
Ex.P.3 Mahazar
List of material objects marked:-
MO-1 and 2 Two Iron Choppers
MO-3 Iron long
MO-4 Chilly powder packet.
20 S.C.No.823/2018
List of witnesses examined on behalf of defense:-
-Nil-
List of documents marked on behalf of defense:-
-Nil-
(SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.