Bangalore District Court
State By vs Kailash Chandra on 2 May, 2018
1 CC.No.52210/2015
IN THE COURT OF THE XLIII ADDL.C.M.M
MAYO HALL UNIT, BENGALURU
Dated: This the 2nd day of May 2018
PRESENT: Sri. PRAKASH NAYAK,
B.A.(LAW)., LL.B.,
XLIII Addl. Chief Metropolitan
Magistrate, Bengaluru.
CC.No.52210/2015
Complainant: State by, Commercial Street Police Station
(By Sr.APP)
Accused: 1. Kailash Chandra
S/o.Chokaram
Aged about 35 years
R/at.Selection Center Staff,
Military Office, Cubbon Road,
Bengaluru Permanent Add:
Chavarashri Village and Post,
Goodgor Ji Tana, Jumjuno Dist.,
Rajastana State
2. Nadeem Khan
S/o. Hameed Khan
Aged about 31 years
R/at.No.10/A, FFB, 1st Floor,
Ramalingam Temple Road,
Veeranna Garden,Frazer Town,
Bengaluru
(A-2 By Sri.S.N. Advocate)
2 CC.No.52210/2015
JUDGMENT
The PI of Commercial Street P.S filed the instant charge sheet against the accused No.1 and 2 for offence punishable u/s. 457 and 380 of IPC. Since accused No.1 was absconding, case against him is split up.
2. The gist of the prosecution case is that on 07-05-2010 in the night hours accused No.1 and 2 break opened door of office of Cw.1 situated at No.71/1, Plain Street, Shivajinagar which comes within the limits of Commercial Street P.S., and they further break opened the lock put to safe locker which kept in the office and stolen Rs.2,45,000/- and thereby the accused have committed aforesaid offence. Concerned police registered Cr.No.116/2010.
3. The accused No.2 in response to the summons appeared before the Court through his counsel and he is on bail. As contemplated U/s.207 of Cr.P.C., the copy of charge sheet furnished to the accused. Subsequently, charge is framed and read over to the accused No.2, who pleaded not guilty and claims to be tried.
4. The prosecution in order to prove its case has examined Pw.1 & Pw.2, Ex.P1 & Ex.P2 got exhibited. Since, there is no incriminating evidence against the accused No.2, statement of accused U/s.313 Cr.P.C is dispensed with.
3 CC.No.52210/20155. Heard. The learned Sr.APP for prosecution and learned counsel for accused and perused the records.
6. The following points arise for consideration of the Court.
1. Whether the prosecution beyond reasonable doubt Proves that the accused No.2 committed offence punishable U/s. 457 and 380 of IPC?
2. What order?
7. My answer of the aforesaid points.
Point No.1 - In the Negative
Point No.2 - As per final order for the following
REASONS
8. Point No.1: In order to substantiate its case the prosecution has initially examined Cw.1 Sunil Malu as Pw.1, who is the complainant, who in his examination in chief has deposed that in the year 2010 he came to know that cash of Rs.2,50,000/- kept in his office was stolen and some strangers have break opened the door of the office and committed theft and in this regard as per Ex.P1 he submitted FIS to the police and later in his presence police conducted Ex.P2 mahazar and subsequently he went to police stated and executed indemnity bond and took Rs.60,000/- cash to his interim custody. However the complainant has stated that when he went to police station the police have not shown him any suspects or accused. Pw.1 is not cross-examined by Lr.Counsel for accused. Further the prosecution has examined Cw.2 Dhanshyam as Pw.2, 4 CC.No.52210/2015 who in his examination in chief has deposed that in his presence police conducted Ex.P2 mahazar in connection with theft took place in the office of Cw.1 and he put signature to said mahazar as per Ex.P2(b). In his cross-examination Pw.2 denied that he put signature to mahazar in the police station. The materials on record reveals that in spite of availing sufficient opportunities the prosecution has failed to secure Cw.3 to Cw.10 and the ample opportunity granted to it is not availed by the prosecution. Admittedly the evidence on record reveals that there is no incriminating evidence against the accused No.2 and hence the statement of accused No.2 u/s.313 of Cr.P.C. is dispensed with.
9. On careful perusal of the available materials on record reveals that in this case the prosecution has succeeded in proving the occurrence of theft at the office of complainant. The said fact is evident and proved through the version of Cw.1 and 2. However the burden is still upon the prosecution to prove that there is nexus between said theft and the accused No.2 in the present case. Admittedly there is no incriminating evidence against the accused No.2 and the prosecution has not proved the identity of accused No.2, the prosecution not proved the nexus between the said incident and accused No.2 and also the prosecution has failed to prove due execution of seizure panchanama. Admittedly in a case of this nature the prosecution has to prove that the stolen articles are recovered from the possession of accused. In this case in spite of 5 CC.No.52210/2015 availing sufficient opportunities the prosecution has failed to secure concerned IO and the witnesses to seizure panchanama. The prosecution has failed to prove the nexus between the incident and the accused and the due execution of seizure panchanama. Therefore, the court opines that prosecution has failed to prove guilt of the accused beyond reasonable doubt.
10. Further when the prosecution alleges commission of offence punishable u/s.380 of IPC the prosecution has to establish that (1) the subject matter of theft is movable property (2) that was in possession of a person (3) the accused moved it dishonestly (4) he did so without the consent of the person in possession (5) he did so intending to take it out of his possession (6) he did so dishonestly (7) the property stolen was then kept in a building (8) the said building was at that time used as a he human dwelling or custody of said property. Further when the prosecution has alleged commission of offence punishable u/s.457 of IPC the prosecution is required to prove that (1) that the accused committed lurking house tress pass by night or house breaking by night (2) that the same was committed to commit theft or offence punishable with imprisonment. Admittedly the materials on record reveals that the prosecution has not established the existence of aforesaid mandatory ingredient which attracts the offence as alleged against the accused. Hence taking into consideration all these facts and the aforesaid pointed out short comings and discrepancies in the case of the prosecution, 6 CC.No.52210/2015 the court opines that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. The court opines that the prosecution has not produced and adduced convincing, acceptable, reasonable, sufficient and required evidence to substantiate the allegation leveled against the accused No.2. Hence taking into consideration all these facts, the court opines that the benefit of doubt shall be given to the accused, under the existing peculiar circumstances of the case on hand.
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11. The aforesaid oral and documentary evidence on record clearly reveal that the prosecution has not adduced any cogent evidence to prove the guilt of the accused beyond reasonable doubt. The evidence of Pw.1 & 2 is not sufficient to accept the case of the prosecution. There is no incriminating evidence against the accused persons which establishes the guilt of the accused persons. In view of the aforesaid materials on record, the Court is of the opinion that the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. Further it is settled law that on assumptions and presumptions the case of the prosecution cannot be proved and accepted. Further it is settled law that when two views are possible the view which is favourable to the accused has to be accepted. In view of the aforesaid discussions and for the aforesaid reasons the Court proceed to answer Point No.1 in the Negative.
7 CC.No.52210/201512. Point No.2 : For the aforesaid reasons, the Court proceed to pass the following ORDER Acting U/s.248(1) of Cr.P.C accused No.2 hereby acquitted for the offence punishable U/s. 457 and 380 of IPC.
The bail bond of the accused No.2 shall stand in force for a period of 6 months as contemplates u/s.437(A) of Cr.P.C.
Office to preserve the file till disposal of split up case registered against accused No.1.
(Dictated to the steno, transcribed by her, same was corrected by me and then pronounced in open Court on this the 2nd day of May 2018) (Prakash Nayak) XLIII ACMM, BENGALURU ANNEXURE LIST OF WITNESSES EXAMINED:
Pw.1 - Sunil Malu Pw.2 - Dhanshyam LIST OF EXHIBITS MARKED: Ex.P.1 - Compliant Ex.P.1(a) - Signature of Pw.1 Ex.P.2 - Mahazar 8 CC.No.52210/2015 Ex.P.2(a) - Signature of Pw.1 Ex.P.2(b) - Signature of Pw.2 LIST OF MATERIAL OBJECTS GOT MARKED: Nil (Prakash Nayak) XLIII ACMM, BENGALURU 9 CC.No.52210/2015 10 CC.No.52210/2015