Bangalore District Court
State By Madiwala Police Station vs No. 1. Thippesh on 20 September, 2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 20th day of September, 2019
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.950/2015
COMPLAINANT:- State by Madiwala Police Station,
Bengaluru.
-Vs-
ACCUSED No. 1. Thippesh,
S/o. Chandranaik,
Aged about 21 years,
R/o. No.272, 2nd Floor,
1st Cross, 1st Main,
Garebavipalya,
Hongasandra,
Bengaluru.
2. Jagadish @ Water,
Aged about 20 years,
S/o. Basavaraju,
R/o.No.127, 6th Cross,
Muneshwara Layout,
Koodlu Main Road,
Bengaluru.
2 S.C.No.950/2015
1. Date of commission of offence : 2.6.2014
2. Date of report of offence : 2.5.2014
3. Date of arrest of the Accused : 6.7.2014
4. Name of the complainant : Sri. Ajay Kushwanth
5. Date of recording evidence : 14.7.2016
6. Date of closing evidence : 11.7.2019
7. Offences complained of : U/Sec.397 of IPC.
8. Opinion of the Judge : Offence against
Accused No.1 & 2
is not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. Venkatesha Naika,
Sri.Niranjan, Advocates
JUDGMENT
The Police Inspector of Madiwala police station, Bengaluru have filed charge sheet against the accused No.1 to 3 for the offence punishable U/s.397 of I.P.C., in Cr.No.717/2014.
2. Brief facts of the prosecution case is as under; 3 S.C.No.950/2015 On 2.6.2014 at about 1.00 a.m, when Cw.1/ Ajay Kumar was proceeding near B.T.M.Layout, 2nd Stage, 34th Main, Someshwara Colony, Bengaluru city and within the limits of Madivala Police Station, Bengaluru, accused No.1 and 2 along with absconding accused No.3/Ganesh came there on scooter bearing Reg.No.KA-05-HZ-468 with an intention of committing robbery and attacked Cw.1/Ajay Kumar, and accused No.1/Thippesh snatched one mobile phone of sony company from the possession of Cw.1, while absconding accused No.3/Ganesh with an intention of causing death or causing grievous hurt, assaulted him with knife on his right hand due to which Cw.1 sustained severe injuries on his right hand, at that time, absconding accused No.3 snatched amount of Rs.800/-, one purse containing Debit Card, Adhar Card, and voters I.D.Card thereby accused No.1 to 3 committed offence of robbery with attempt to cause death or grievous hurt punishable U/s. 397 of I.P.C.
4 S.C.No.950/2015
3. Investigating Officer proceeded to the spot and conducted spot panchanama, arrested accused, seized materials, enquired and recorded the statements of the witnesses, as per Section 161 of Cr.P.C. submitted charge sheet to the jurisdictional magistrate.
4. Cognizance for the offences shown in the charge sheet was taken against the accused No.1 to 3 by the Learned Magistrate. Thereafter, criminal case against accused was registered in C.C.No.34219/2014 on the file of Addl.Metropolitan Magistrate, Bengaluru. Despite issuance of N.B.W., accused No.3 not traced. Hence, case against accused No.3 is split up. Since offences alleged against accused No.1 and 2 are triable exclusively by the court of Sessions, this case is committed to the court of Sessions. After committal, this case is re-registered as S.C.No.950/2015.
5. After hearing, on 3.12.2015 charge against accused No.1 and 2 framed, which they denied and claims to be tried.
5 S.C.No.950/2015
6. To prove the ingredients of the offences leveled against the accused No.1 and 2, prosecution examined 6 witnesses as Pw.1 to Pw.6 and got exhibited 11 documents at Ex.P.1 to Ex.P.11.
7. On completion of the evidence of prosecution side, all incriminating evidence, available in the evidence of the prosecution were explained to the accused as required U/s.313 of Cr.P.C., and recorded their statements. Accused have not produced any documents, materials on their behalf. Further no defence evidence led by the accused side.
8. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused.
9. Now, the points arising for determination are as follows:
6 S.C.No.950/2015
1. Whether prosecution proves beyond reasonable doubt that, on 2.6.2014 at about 1.00 a.m, when Cw.1/ Ajay Kumar was proceeding near B.T.M.Layout, 2nd Stage, 34th Main, Someshwara Colony, Bengaluru city and within the limits of Madivala Police Station, Bengaluru, accused No.1 and 2 along with absconding accused No.3/Ganesh came there on scooter bearing Reg.No.KA-05-HZ- 468 with an intention of committing robbery and attacked Cw.1/Ajay Kumar, and accused No.1/Thippesh snatched one mobile phone of sony company from the possession of Cw.1, while absconding accused No.3/Ganesh with an intention of causing death or causing grievous hurt, assaulted him with knife on his right hand due to which Cw.1 sustained severe injuries on his right hand, at that time, absconding accused No.3 snatched amount of Rs.800/-, one purse containing Debit Card, Adhar Card, and voters I.D.Card thereby accused No.1 to 3 committed offence of robbery with attempt to cause death or grievous hurt punishable U/s. 397 of I.P.C. as alleged in the charge sheet?7 S.C.No.950/2015
2. What Order ?
10. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
11. POINT NO.1:- In order to prove the ingredients of the charges framed against accused for the offence punishable U/s.397 of I.P.C., prosecution examined 6 witnesses. Pw.1/Cw.9-Dr.Betto Albel is the medical officer, who treated the injured. In his evidence, Pw.1 deposed that, on 2.6.2014 at 2.00 a.m. when he was on duty, Cw.2/Praveen Kumar came to his hospital being injured under the history of assault. On examination, he found 3 x 1 cm cut wound on his left forearm. On x-ray investigation, no fracture found on his bone. Pw.1 identified Ex.P.1/Wound Certificate issued by him. In his opinion injury explained in Ex.P.1 may caused when a person assaulted another by 8 S.C.No.950/2015 using knife. He opined that, injury explained in Ex.P.1 is simple injury.
12. In the cross-examination Pw.1 admitted that, he has not mentioned description of weapon which caused injury explained in Ex.P.1. He admitted that, injury explained in Ex.P.1 may occur due to so many reasons. He denied the suggestion that, no such injury occurred to Pw.1 as explained in Ex.P.1.
13. Pw.2/Cw.10-Ramalingegowda is the Police Head constable. In his evidence, Pw.2 deposed that, on 6.7.2014 Station House Officer deputed him to trace the accused of this case. He, Cw.11 and Cw.12 enquired one Silpa Bai, arrested accused from Garvebavipalya produced before Pw.4/Prashanth Police Inspector along with report.
14. In the cross-examination, Pw.2 admitted that, Cw.14, Station House Officer had not provided mobile number, address of the accused. He admitted that, he was 9 S.C.No.950/2015 not aware about disbursing the mobile numbers in the name of the accused. He denied the suggestion that, he, Cw.11 and Cw.12 arrested the accused as stated in his examination-in-chief.
15. Pw.6/Cw.11-Fakruddhin is the Police Head constable. In his evidence, Pw.6 deposed that, on 6.7.2014 Station House Officer deputed him to trace the accused of this case. He, Cw.10 and Cw.12 enquired one Silpa Bai arrested accused from Garvebavipalya produced before Pw.4/Prashanth Police Inspector alogn with report.
16. In the cross-examination, Pw.6 admitted that, Cw.14, Station House Officer had not provided mobile number, address of the accused. He admitted that, he was not aware about disbursing the mobile numbers in the name of the accused. He denied the suggestion that, he, Cw.10 and Cw.12 arrested the accused as stated in his examination-in-chief.
10 S.C.No.950/2015
17. Pw.3/Cw.14-Prashanth M.M. is the then Station House officer. In his evidence Pw.3 deposed that, he received records of this case on 3.6.2014 from Cw.13. He proceeded to the spot, conducted spot panchanam as per Ex.P.2. He deputed staff for tracing the accused. On the same day, at 9.00 p.m., Cw.2 produced accused No.1 and 2 in his presence. He interrogated accused No.1 and 2, recorded their voluntary statements as per Ex.P.3 and 4. In the voluntary statements, accused informed that they are going to produce their mobile phones and two wheeler used for commission of the offence. On 7.7.2014 accused No.1 and 2 took him along with panchas to the spot of incident. Accused No.1 produced two mobile phones from his house. Pw.3 seized the same under the cover of Ex.P.5/Panchanama. Accused No.2 produced two wheeler. Pw.3 seized the same in the presence of panch witnesses under the cover of Ex.P.6/panchanama. After returning to the police station, he subjected seized articles in the station property form. On 7.7.2014 he summoned Cw.1 to 11 S.C.No.950/2015 identify mobiles and two wheeler. Cw.1 identified the accused, and seized mobile phones and two wheeler. He recorded statement of Cw.1. he sent accused No1. And 2 along with remand application to the court. He enquried and recorded statements of Cw.4 to 8. He handed over the seized mobile phones to the interim custody of the Cw.1 after obtaining indemnity bond, after collecting the photographs of the same as per Ex.P.7. He handed over two wheeler to the interim custody of Cw.4 after collecting the photographs as per Ex.P.8. He collected the wound certificate of the injured Cw.1 as per Ex.P.1. Prima facie case is proved against the accused persons during the course of investigation. Hence, he submitted charge sheet against the accused.
18. In cross-examination, Pw.3 denied the suggestion that, no voluntary statement given by the accused persons. He denied the suggestion that, no recoveries made on the basis of the information given in the voluntary statement given by the accused persons. He 12 S.C.No.950/2015 admitted that, he had not collected any documents to show that, mobile sim cards stands in the name of the accused persons. He admitted that, he is not produced the CD relating to the photographs. He denied the suggestion that, he filed false charge sheet against the accused, even though the offence is not proved against the accused.
19. Pw.4/Cw.6-K.Nagaraj is one of the mahazar witness. In his evidence Pw.4 not supported to the contents of mahazar to which he signed as panch witness. In the cross-examination after treating Pw.4 as hostile, no admissions elicited to prove the contents of Ex.P.9/Seizure panchanama.
20. Pw.5/Cw.13-Ravi G.K. is the then P.S.I. of Madiwala police station. In his evidence Pw.5 deposed that on 1.6.2014 when he was on patrolling duty, he received a message from St.John Hospital about admission of Cw.1 for treatment due to assault. He visited St.John Hospital on 2.6.2014 at 1.00 'o' clock in the midnight, consulted the 13 S.C.No.950/2015 duty doctor, recorded statement of the injured, in the presence of the doctor. He took signature of the duty doctor to the statement of the injured. He obtained opinion of the doctor to confirm that, the complainant is fit to give statement. He identified complaint as per Ex.P.10. On the basis of the statement, a F.I.R./Ex.P.11 was registered. He handed over the investigation to Cw.3.
21. In the cross-examination he denied the suggestion that, no complaint as per Ex.P.10 was given by the Cw.1. He admitted that, there is no mention name of any accused in Ex.P.10/complaint. He admitted that, he had not seen any of the accused present before the court.
22. Despite sufficient opportunities, neither complainant nor seizure panch witnesses produced by the concerned police before the court for examination. In the case U/s.397 of I.P.C., proving the fact of recovery of robbed articles is utmost important. At the same time, fact of robbery shall be proved by examination of the complainant, 14 S.C.No.950/2015 injured, victim which is an important to link the incident complained and to prove the case of the prosecution. In the absence of the evidence of complainant and seizure panch witnesses it is difficult to hold that, prosecution proved ingredients of offence punishable U/s.397 of I.P.C.
23. Evidence adduced by the prosecution is helpful to prove that, Cw.1 treated by medical officer for injuries. Police officers traced and arrested accused No.1 and 2. Investigation Officers conducted investigation and filed charge sheet. When there is no evidence on the part of the injured person to corroborate the evidence of the medical officer and Investigation Officers, it is not possible to hold that, prosecution proved beyond reasonable doubt that accused persons committed offence punishable U/s. 397 of I.P.C.
24. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution unable to prove that, on 2.6.2014 at about 1.00 a.m, when Cw.1/ 15 S.C.No.950/2015 Ajay Kumar was proceeding near B.T.M.Layout, 2 nd Stage, 34th Main, Someshwara Colony, Bengaluru city and within the limits of Madivala Police Station, Bengaluru, accused No.1 and 2 along with absconding accused No.3/Ganesh came there on scooter bearing Reg.No.KA-05-HZ-468 with an intention of committing robbery and attacked Cw.1/Ajay Kumar, and accused No.1/Thippesh snatched one mobile phone of sony company from the possession of Cw.1, while absconding accused No.3/Ganesh with an intention of causing death or causing grievous hurt, assaulted him with knife on his right hand due to which Cw.1 sustained severe injuries on his right hand, at that time, absconding accused No.3 snatched amount of Rs.800/-, one purse containing Debit Card, Adhar Card, and voters I.D.Card thereby accused No.1 to 3 committed offence of robbery with attempt to cause death or grievous hurt punishable U/s. 397 of I.P.C. Accordingly, point No.1 is answered in the Negative.
16 S.C.No.950/2015
25. POINT NO.2: In view of the above findings on point No.1, accused No.1 and 2 are entitled for acquittal. Hence, the following order is made;
ORDER Invoking provisions U/s.235(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted for the offence punishable U/s.397 of I.P.C.
Their bail bonds and surety bonds shall stands cancelled.
Accused No.1 and 2 are hereby directed to execute fresh bail bonds of Rs.1,00,000/- each as required U/s.437-A of Cr.P.C., and same shall be inforce for a period of six months from this day.
Material objects and this entire file shall be preserved till conclusion of trial against split up accused.
17 S.C.No.950/2015
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 20th day of September 2019.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Dr.Betti Albel
Pw.2 Ramalingegowda
Pw.3 M.M.Prashanth
Pw.4 K.Nagaraj
Pw.5 G.K.Ravi
Pw.6 Fakruddhin
II. For Defence:-
- Nil-
18 S.C.No.950/2015
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Wound Certificate Ex.P.1(a) Signature of Pw.1 Ex.P.2 Panchanama Ex.P.3 Statement of accused No.1 Ex.P.4 Statement of accused No.2 Ex.P.5 Amanath Panchanama Ex.P.5(a) Signature of Pw.3 Ex.P.6 Panchanama Ex.P.6(a) Signature of Pw.3 Ex.P.7 Mobile Photo Ex.P.8 Scooter Photo Ex.P.9 Statement of Pw.4 Ex.P.10 Complaint
Ex.P.10(a)to(c) Signatures of Pw.5 and doctor Ex.P.11 F.I.R.
Ex.P.11(a) Signature of Pw.5.
For Defence side:-
-Nil-
IV. List of material objects marked:-
-Nil-
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 19 S.C.No.950/2015 20 S.C.No.950/2015 21 S.C.No.950/2015 22 S.C.No.950/2015 20.9.2019 Accused No.1 and 2 are present.
Judgment pronounced in the open Court (Vide separate judgment) ORDER Invoking provisions U/s.235(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted for the offence punishable U/s.397 of I.P.C.
23 S.C.No.950/2015Their bail bonds and surety bonds shall stands cancelled.
Accused No.1 and 2 are hereby directed to execute fresh bail bonds of Rs.1,00,000/- each as required U/s.437-A of Cr.P.C., and same shall be inforce for a period of six months from this day.
Material objects and this entire file shall be preserved till conclusion of trial against split up accused.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.
24 S.C.No.950/201525 S.C.No.950/2015