Bangalore District Court
State By Banashankari Police vs No: 1. Naveen Shetty @ Naveen on 5 August, 2020
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IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 5th day of August, 2020
-: 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.2063/2018
COMPLAINANT:- State by Banashankari Police
Station,
Bengaluru.
-Vs-
ACCUSED NO: 1. Naveen Shetty @ Naveen,
S/o. Subramani,
Aged about 19 years,
R/at.No.7, 5th Cross, H.M.Road,
Lingarajapuram,
Bengaluru city.
2. Balukumar @ Balu,
S/o. Late Uday Kumar,
Aged about 19 years,
R/at.5th Cross, Kanakadasa Layout,
Lingarajapuram,
Bengaluru City.
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S.C.No.2063/2018
1. Date of commission of offence : 1.5.2018
2. Date of report of offence : 1.5.2018
3. Date of arrest of the Accused :
4. Name of the complainant : Smt. Nanjamma
5. Date of recording evidence : 15.6.2019
6. Date of closing evidence : 31.1.2020
7. Offences complained of : U/Sec. 397 of IPC.
8. Opinion of the Judge : Offence U/s.392
R/w.Sec. 34 of I.P.C.
against Accused
No.1 and 2 proved.
9. State represented by : Public Prosecutor
10. Accused defended by :Sri. Balaji R. Adv. for A.1.
Sri. M.Srinivasa Gowda
Adv. for A.2.
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S.C.No.2063/2018
JUDGMENT
Police Inspector, Banashankari police station filed charge sheet against accused No.1 and 2 for offence punishable U/Sec. 397 of I.P.C., in Cr.No.184/2018.
2. Brief facts of the prosecution case is as under; 2.1) In the charge sheet it is alleged that, on 5.1.2018 evening at 5.50 p.m., Cw.1/Smt. Nanjamma was on her way at 28th Cross, 28th Main of Banashankari, Bengaluru within the jurisdiction of Banashankari police station. Accused No.1 and 2 came on a scooter in which accused No.2 was the rider and accused No.1 was the pillion rider. Accused No.1 went behind the Cw.1, threatened her by showing knife, snatched 70 grams gold neck chain worn by Cw.1 and fled away on the two wheeler driven by accused No.2 thereby accused No.1 and 2 have committed offence punishable U/s.397 of I.P.C.
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S.C.No.2063/2018 2.2) On the basis of the complaint lodged by the complainant, Investigating Officer proceeded to the spot, conducted spot panchanama, prepared sketch of the place of occurrence recorded statements of the panch witnesses and witnesses having acquainted with the facts of the case.
2.3) Accused No.1 and 2 got arrested in Cr.No.231/2018 registered in Jayanagara police station. Under body warrant, Investigation Officer had taken accused No.1 and 2 into police custody, interrogated and recorded their voluntary statements.
2.4) Investigating officer summoned complainant and her husband, to identify the accused persons, two wheeler and their gold chain. Investigation Officer recorded statement, further statement of complainant. After completing the investigation, Investigating Officer submitted charge sheet against the accused persons. 5
S.C.No.2063/2018
3. Cognizance for the offence shown in the charge sheet was taken against the accused persons by the Learned Magistrate. Thereafter, criminal case against accused persons was registered in C.C.No.30143/2018 on the file of III- Addl.Metropolitan Magistrate, Bengaluru. Accused were in judicial custody. Since offence alleged against accused is triable exclusively by the court of Sessions, this case is committed to this court. After committal, this case is re- registered as S.C.No.2063/2018.
4. After hearing, on 21.2.2019, charge against accused No.1 and 2 framed, which they denied and claimed to be tried.
5. To prove the ingredients of the offence leveled against the accused, prosecution examined 9 witnesses as Pw.1 to Pw.9, got exhibited 21 documents at Ex.P.1 to Ex.P.21.
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S.C.No.2063/2018
6. On completion of the evidence of prosecution side, all incriminating circumstances, 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 denied all incriminating circumstances, evidence found in the prosecution side evidence. Accused have not produced any documents, materials on their behalf. Further , no defence evidence led by the accused side.
7. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused.
8. Now, points arising for determination are :
1 Whether prosecution proves beyond reasonable doubt that, on 5.1.2018 evening at 5.50 p.m., Cw.1/Smt. Nanjamma was on her way at 28th Cross, 28th Main of Banashankari, Bengaluru within the jurisdiction of Banashankari police station. Accused No.1 and 2 came on a scooter. Accused No.2 was the 7 S.C.No.2063/2018 rider and accused No.1 was the pillion rider in the said school. Accused No.1 went behind Cw.1 threatened her by showing knife snatched 70 grams gold neck chain worn by Cw.1 and fled away on their two wheeler thereby accused No.1 and 2 have committed offence punishable U/s.397 of I.P.C. as alleged in the charge sheet?
2 What Order ?
9. It is answered for the aforesaid points are as under:-
Point No.1 : Partly in the Affirmative
Point No.2 : As per final order
for the following:
REASONS
10. POINT NO.1:- Charge leveled against the
accused persons in this case is robbery or dacoity with attempt to cause death or grievous hurt. To know whether prosecution succeeded to bring home the guilt of the accused 8 S.C.No.2063/2018 persons, we have to go through the evidence adduced by witnesses examined on behalf of prosecution.
10.1) Pw.1/Cw.1/Smt. Nanjamma is the complainant and victim in this case. In her evidence Pw.1 deposed that, she is residing at Banashankari 2 nd Stage since last 40 years. On 1.5.2018 evening at 5.30, she went out from her home for evening walk. When she was going on a curve near her house, two men came behind her back on a two wheeler. They pushed her by which she fell down on the ground, sustained injuries on her hands and legs. When she was crying, neighbours came, provided water. At that time she was wearing 70 grams gold neck chain. Those two persons snatched her said gold neck chain. She came to know about chain snatching, after 3 minutes of their fleeing on two wheeler. She lodged complaint of the said incident to the police station. She identified complaint along with her signature at Ex.P.1. Pw.1 further identified spot 9 S.C.No.2063/2018 panchanamaat Ex.P.2 and signature on the said spot panchanama.
10.2) After two months, Jayanagar police called her to the police station, shown her snatched gold neck chain. She identified the said chain and had taken the same to her interim custody. She identified her gold neck chain shown on photos/Ex.P.3 and Ex.P.4. At that time police had shown her two persons and one two wheeler vehicle. She had given further statements to the police. She identified two wheeler vehicle shown in photograph/Ex.P.5. Pw.1 identified accused No.1 and 2 produced before the court from judcial custody through video conference.
10.3) In the cross-examination Pw.1 admitted that, Ex.P.1 is written by herself. Pw.1 further admitted that, description and colour of the persons was not visible due to wearing helmet. Pw.1 further admitted that, as she went unconscious when pushed on ground, she was unable to see 10 S.C.No.2063/2018 the vehicle in which those persons came. Pw.1 admitted that she cannot recollect whether the fact of sustaining injury and taking treatment in the hospital was mentioned in Ex.P.1. Further Pw.1 admitted that she cannot recollect whether name of the hospital in which she had taken treatment was mentioned in Ex.P.1/complaint. Pw.1 further admitted that, she had not given document to the police about taking treatment. Further Pw.1 admitted that in Ex.P.1/complaint, fact that those persons threatened her by showing knife, was not mentioned.
10.4) Pw.1 further admitted in the cross-examination that she cannot say the date, month of the day when she went to Jayanagar police station. She had not given statement to the police. Pw.1 further admitted that, she cannot say the time of the day, when police came to the spot. Pw.1 further admitted that, she cannot say the names of 5 -6 police men came to the spot. Pw.1 admitted that, she signed on Ex.P.1 and Ex.P.2 in the police station. 11
S.C.No.2063/2018 10.5) Pw.1 denied the suggestion that as there was no display of shanka, chakra, chukka kaddi and 3 thali in the chain shown in Ex.P.3 and 4/photographs, chain shown on Ex.P.3 and Ex.P.4 is not her chain. Pw.1 clarified by giving explanation that chain shown on Ex.P.3 and 4/photographs is her chain but does not contain the aforesaid contents. She denied the suggestion that, design of the chain shown in Ex.P.3 and Ex.P.4/photographs is different from her chain. Pw.1 denied the suggestion that accused No.1 and 2 produced through video conference are not the persons who snatched her chain. Further Pw.1 denied the suggestion that she is seeing the accused No.1 and 2 before the court for the first time. Further Pw.1 denied the suggestion that, she had not seen them in the police station. Pw.1 denied the suggestion that as stated by the police, she is deposing that the accused No.1 and 2 produced through video conference are the persons who had snatched her chain. 12
S.C.No.2063/2018 10.6) To test the veracity, age, status, character of the witness to be taken into consideration. In this case, Pw.1 is a senior citizen lady, aged about 73 years. Pw.1 explained the incident, identified her snatched gold chain, identified the persons who snatched her gold neck chain. Evidence adduced by Pw.1, a senior citizen lady about the incident of chain snatching by identifying the accused persons produced before the court through video conference was tested by the cross-examination made by advocate for accused. To verify whether evidence adduced by Pw.1 is true it is just and necessary to consider the admissions elicited in the cross- examination of Pw.1. In the cross-examination it is elicited that as she fell on the ground when accused dashed her, she lost her consciousness. Further it is elicited that she was unable to say whether she narrated in her complaint about the fact of threatening her by showing knife, taking treatment in the hospital. However no such admissions elicited in the cross-examination to show that Pw.1 had not seen the accused persons produced before the court of whom she 13 S.C.No.2063/2018 identified as her chain snatchers. In the cross-examination, Pw.1 stand firm about the aspect of identification of the accused persons. Next aspect to test the veracity of the evidence adduced by Pw.1 is whether Pw.1 is tuited by the police. No such admissions elicited in the cross-examination of Pw.1 to establish the aforesaid suggestion that Pw.1 deposed false incident of chain snatching against these accused persons. It is pertinent to note that, accused No.1 and 2 are totally strangers to Pw.1. No admissions elicited in the cross-examination of Pw.1 to show that, there was any ill-will in between Pw.1 and accused No.1 and 2 to lodge a false complaint of chain snatching against these accused No.1 and 2. Further there is no rival claim by the side of the accused persons or by any third person on gold neck chain seized in this case. No admissions elicited in the cross- examination of Pw.1 to show that, police registered a false case against accused No.1 and 2 by taking assistance of Pw.1. Absolutely there is no admissions in the cross- examination of Pw.1 to show that accused No.1 and 2 are 14 S.C.No.2063/2018 falsely implicated in this case. Hence evidence adduced by Pw.1 is reliable and trustworthy.
10.7) Contents of Ex.P.1/complaint compared with the deposition of Pw.1. Even though there are minor discrepancies and omissions, there are no such discrepancies or omissions found in the entire evidence adduced by Pw.1 to disbelieve the version of Pw.1.
11. Pw.2/Cw.2/Lakshminarayana is the husband of complainant/victim Cw.1. In his evidence Pw.2 deposed that Cw.1 is his wife. On 1.5.2018 evening at 5.30 p.m., two persons came on scooter, snatched gold neck chain including its contents weighing about 70 grams worn by Cw.1 when she was walking. Cw.1 fell down on the floor at the time of snatching her chain. She shouted. There was abrasion on her hand and back. He had given treatment to Cw.1. A complaint was lodged in the police station in this regard. Police came to the spot and taken signature on 15 S.C.No.2063/2018 Ex.P.2. Pw.2 identified chain of Cw.1, shown on Ex.P.3 and 4/photographs.
11.1) In the cross-examination Pw.2 admitted that, after 2 minutes of hearing the shouting of Cw.1, he went to the spot. He had not seen persons who snatched chain. He went to police station twice at the time of preparation of Ex.P.2 to Ex.P.4. Pw.2 further admitted that, contents written in Ex.P.2 was not shown to him. Not much people gathered at that time. Further Pw.2 admitted that contents of gold neck chain is not displaying on photographs/Ex.P.3 and Ex.P.4. Further Pw.2 admitted that, chain shown on Ex.P.3 and Ex.P.4/ photos are not the chain of his wife.
11.2) Pw.2 denied the suggestion that, he had not given wound certificate of Pw.1 to the police. Further Pw.2 denied the suggestion that, police had taken his signature on Ex.P.2 in the police station. Pw.2 denied the suggestion that, Ex.P.2/panchanama was not prepared in his presence. Pw.2 16 S.C.No.2063/2018 denied the suggestion that, he did not go to the spot of incident. Further Pw.2 denied the suggestion that as Cw.1 is his wife, in order to help her, he is deposing false.
11.3) Pw.2 is relative to Cw.1/complainant. Being husband, it is quite natural to depose in favour of his wife. Hence, it is just and necessary to test carefully, the evidence adduced by Pw.2. Over all evidence adduced by Pw.2 is corroborating with the evidence adduced by Pw.1 on the point of happening of incident of chain snatching. Even though in the cross-examination, it is elicited that, chain shown in Ex.P.3 and Ex.P.4 is not the chain of his wife, the said admission is a stray admission without having any continuing admissions. In the examination-in-chief as well as in other part of the cross-examination, Pw.2 specifically stated about the incident of chain snatching and explained description of the chain of his wife Cw.1. No such admissions elicited in the cross-examination of Pw.2 to show that he is deposing false as stated by the police. No such admissions 17 S.C.No.2063/2018 elicited in the cross-examination of Pw.2 to show that he is falsely deposing against the accused persons to help his wife. No such admissions elicited in the cross-examination of Pw.2 to show that he has got any ill-will against accused No.1 and
2. 11.4) It is admitted by Pw.2 himself that he was not present at the time of happening of the incident of chain snatching of Cw.1. Pw.2 admitted that he had not seen persons who snatched neck chain of his wife. Hence question of identification of accused persons before the court by Pw.2 does not arise.
12. Pw.3/Cw.3/Deepak Kumar is the grand-son of Cw.1. In his evidence Pw.3 deposed that Cw.1 is his grand-mother and Cw.2 is his grand-father. On 1.5.2018 evening at 5.30 two persons came on scooter, snatched gold neck chain worn by Cw.1 weighing 70 grams, when Cw.1 was walking. At the time of chain snatching Cw.1 fell down on the ground, 18 S.C.No.2063/2018 sustained injury on her right fore arm. At that time he was in his house. Receiving information, he went to the spot, took Cw.1 to hospital at Devagiri for treatment. Police came to the spot, enquired him and taken his signature. He identified his signature on Ex.P.2. Pw.3 identified chain of Cw.1 shown on Ex.P.3 and Ex.P.4/photographs.
12.1) In the cross-examination Pw.3 admitted that, at the time of incident, he was working in Northern Trust. Working hour on the day of incident was 2.30 a.m. upto 11.30 in the night. Pw.3 admitted that he had not given any document to the police to show that on the date of incident he applied for leave. Pw.3 further admitted that, he cannot say the time when he had taken Cw.1 for treatment to the hospital. Pw.3 further admitted that about 30 minutes Cw.1 was in the hospital. Pw.3 further admitted that, Devagiri hospital is 10 minutes away from their house. Pw.3 further admitted that they came back to home at 6.40 in the 19 S.C.No.2063/2018 evening. Pw.3 admitted that, he know to read Kannada language.
12.2) Pw.3 denied the suggestion that on the date of incident, he was on duty. Pw.3 denied suggestion that he signed Ex.P.2 in the police station. Pw.3 denied suggestion that, police did not come to the spot. Pw.3 denied the suggestion that, he do not know what is written in Ex.P.2. Pw.3 denied the suggestion that, on the date of incident he went to duty. Pw.3 denied the suggestion that, chain shown on Ex.P.3 and Ex.P.4/photographs is not the chain of his grand-mother Cw.1. Pw.3 denied suggestion that, even though he signed Ex.P.2 in the police station, he is deposing false because Cw.2 is his relative.
12.3) Pw.3 is also relative to Cw.1. Being grand-son, it is quite natural to depose in support of the complaint lodged by Cw.1, grand-mother. Hence it is just and necessary to careful scrutiny of evidence adduced by Pw.3 by considering 20 S.C.No.2063/2018 the admissions elicited in the cross-examination of Pw.3. It is admitted by Pw.3 that he is not the eyewitness to the incident. He came to the spot after hearing the incident. Hence evidentiary value of the deposition of Pw.3 is only to the extent of corroboration to the evidence adduced by Pw.1. To that extent, there is no such admission elicited in the cross-examination by the advocate for the accused No.1 and 2 that Pw.3 is deposing false as stated by the police to help Pw.1. No such admissions elicited in the cross- examination of Pw.3 to show that on the date of incident he was not at all present. No such admissions elicited in the cross-examination of Pw.3 to show that he was deposing false against accused persons as stated by the police.
13. Pw.4/Cw.8/Kemparaju and Pw.5/Cw.10/Srinivas are the police Head Constables. In their evidence Pw.4 and Pw.5 deposed that in between 2014-2019 they were working as police head constables in the office of Assistant Commissioner of Police, Jayanagara attached to Crime 21 S.C.No.2063/2018 Branch. On 24.6.2018 A.C.P. Srinivas appointed them along with Cw.9/Chandrashekar and others to search, produce accused relating to this case. Photographs, CC camara recordings footages relating to chain snatching incident were shown to them. Assistant Commissioner of Police formed a team to trace accused involved in chain snatching headed by Umamaheshwar, Police Inspector of Jayanagara police station.
13.1) Accordingly they contacted informers for collection of information. They got information about two persons attempting to commit chain snatching by wearing green colour jackets and helmets by moving on two wheeler without number plate. When they were on patrolling duty in the jurisdiction of Banashankari police station of Jayanagara Sub-Division, at 3.30 in the afternoon, PC.No.4755 of Jayanagara police station informed that he saw persons having similarity for photographs and descriptions given by the informers. At 3.50 p.m., they saw two persons standing 22 S.C.No.2063/2018 with aviator vehicle beside signal, near Abhaya Ganapathi Temple. They and other staff covered them, caught them and enquired about their name and address. One of them disclosed their names as Balukumar and Naveen. As their appearance looks similar to that of the picture shown at the time of display of CC camara recordings, it was confirmed that those persons are related to Cr.No.231/2018 of Jayanagara police station. Thereafter along with two wheeler, they brought them to Jayanagara police station produced before Cw.11 Nagesh along with report. Pw.4 identified report at Ex.P.6. They identified accused No.1 and 2 present before the court. They identified two wheeler shown on Ex.P.5 photograph.
13.2) In the cross-examination Pw.4 and Ex.P.5 admitted that, persons seen on video are wearing helmets. To search the accused persons, they had not taken photographs along with them. Due to wearing helmet, face of the accused was not clearly visible. No panchanama was prepared at the time 23 S.C.No.2063/2018 of taking accused persons into their custody. Body search of the accused was not made by them. Registration number of the said vehicle was not mentioned in Ex.P.6. Registration number was not displayed in front and back portion of the said vehicle.
13.3) Pw.4 and Pw.5 denied the suggestion that, vehicle shown on Ex.P.5/photograph was not the vehicle used by the accused persons. Further Pw.4 and Pw.5 denied the suggestion that the said vehicle is different vehicle. Pw.4 and Pw.5 denied the suggestion that they were not deputed to search accused persons as stated in their examination-in- chief. Further Pw.4 and Pw.5 denied the suggestion that they had not taken accused persons into custody. Further Pw.4 and Pw.5 denied the suggestion that they had not produced the accused along with Report. Further Pw.4 and Pw.5 denied the suggestion that as directed by the higher officers, they are deposing false. Pw.4 and Pw.5 denied the suggestion that, to clear old cases, they are deposing false. 24
S.C.No.2063/2018 13.4) Pw.4 and Pw.5 made it clear that even though number is displaying on Ex.P.5/photograph, the said number plate was not on the vehicle when it was taken into custody.
13.5) Pw.4 and Pw.5 police Head Constables deposed with respect to taking accused No.1 and 2 into their possession and producing them before the Investigating officer. It is quite natural that police officers deputed to search and produce accused persons has to depose in support of the case. Hence, it is just and necessary to scrutinize the evidence adduced by Pw.4 and Pw.5 on the light of admissions elicited in the cross-examination. Even though it is suggested in the cross-examination that he was not deputed to duty to search accused persons judicial notice can be taken that police head constables on duty attached to crime branch generally deputed to trace the accused persons. Hence, denial on behalf of the accused that they were not deputed to trace accused persons cannot be accepted. Fact to be taken into consideration is the 25 S.C.No.2063/2018 question of arrest of the accused persons by Pw.4 and Pw.5 and staff along with two wheeler as explained in the Report at Ex.P.6. Ex.P.6 is report dated 24.6.2018 submitted by Kemparaju HC.5599. In the said Report an elaborate explanation about how they caught accused No.1 and 2 and produced before the investigation officer is explained. Averments made in Ex.P.6 is corroborating with the deposition adduced by Pw.4 and Pw.5 before the court. No such admissions elicited in the cross-examination of Pw.4 and Pw.5 to accept the suggestion made by the advocate for the accused that as directed by higher officer Pw.4 and Pw.5 deposing false.
13.6) So far as identification of accused is concerned, in the cross-examination, it is elicited that, photographs of the accused was not with them at the time of search. Police officers are having a records of old cases. Further police officers are experts in detection of crime. Further it is deposed by Pw.4 and Pw.5 that they contacted informers, 26 S.C.No.2063/2018 obtained information about chain snatchers. Hence evidence adduced by Pw.4 and Pw.5 cannot be doubted with respect to arrest of the accused No.1 and 2.
14. Pw.6/Cw.11/Nagesh V. is then P.S.I. of Jayanagara police station. In his evidence Pw.6 deposed that, he was serving as P.S.I. in Jayanagara police station from 22.2.2018 up to 26.9.2018. On 18.6.2018 evening at 5.00 p.m., when he was Station House Officer, Smt. Parnaj Mirja came to police station along with a written complaint. He received the same, registered in Cr.No.231/2018 for offence punishable U/s.397 of I.P.C., sent F.I.R. to the court and copies to the higher officers. He identified Ex.P.7/complaint and Ex.P.8/F.I.R.
14.1) On 26.4.2018 evening at 4.30 p.m., Cw.8 HC.5599 produced two persons by name Balukumar and Naveen Shetty along with Ex.P.6/Report. He enquired those two persons. At the time of enquiry he came to know about involvement of those two persons in this case. Hence he 27 S.C.No.2063/2018 arrested them. Summoning Cw.4 and 6 panch witnesses, he prepared panchanama and seized white colour aviator two wheeler without registration number and one number plate written as KA-05-KA-5571, two helmets, two green colour jackets, two pairs of shoes under the cover of said panchanama. He entered those items in station P.F.No.77/2018, reported the same to the court. He identified Ex.P.9/Mahazar, Ex.P.10/P.F. 14.2) He enquired Cw.4, 6, 9, 10 and recorded their statements. Interrogating accused persons, he recorded voluntary statements given by them. In the said voluntary statement, accused No.1 had given information that he would show places of chain snatching, place where they have committed of theft of aviator vehicle. Further accused No.1 had given information that he would produce gold chain kept in his house. Pw.6 identified portion of the voluntary statement given by the accused as per Ex.P.11. Accused No.2 Balukumar had also given voluntary statement during the 28 S.C.No.2063/2018 course of custodial interrogation. In the said voluntary statement, accused No.2 also informed that he would show the places of chain snatching. Further accused No.2 had given information to show the persons to whom they sold gold chains. Admissible portions of the voluntary statement of the accused identified by Pw.6 was marked at Ex.P.12.
14.3) On 25.6.2018, accused No.1 and 2 produced before the court and had taken to police custody. On 3.7.2018, accused took him along with panch witnesses to show the place of incident. They took them to 28th Main road of Banashankari 2nd Stage, and had shown the place of incident. He prepared spot panchanama as per Ex.P.13. On the same day, in the presence of Cw.5 and 7 panch witnesses, accused No.1 took them to his house No.7, 5 th Cross of Lingarajapura situated at Hennur Main Road. He went inside the house, produced one gold chain of tyre type which was kept inside beeru (almirah). By preparing panchanama in the presence of panch witnesses, pw.6 seized 29 S.C.No.2063/2018 the said gold chain under the cover of panchanama, entered the same in station P.F.No.82/2018, reported the same to the court. Pw.6 identified Ex.P.14/panchanama, Ex.P.15/P.F. Pw.6 identified gold chain shown in Ex.P.3 and Ex.P.4/photographs.
14.4) He enquired Cw.5 and 7 and recorded their statements. On 5.7.2018, he summoned complainant Nanjamma to the police station, shown accused No.1 and 2 and gold chain seized by them. Said Nanjamma identified accused No.1 and 2 and her gold chain seized in this case. He recorded her statement. On 11.7.2018 by taking indemnity from Nanjamma, he handed over gold chain into her interim custody. On 12.7.2018, he submitted requisition seeking permission to transfer the case file to Banashankari police station. On 28.7.2018 he transferred the case file to Banashankari police station. Pw.6 identified transfer requisition at Ex.P.16. Acknowledgment issued by Banashankari police station at Ex.P.17. Pw.6 identified 30 S.C.No.2063/2018 accused No.1 and 2 produced before the court through video conference.
14.5) In the cross-examination Pw.6 admitted that, in Ex.P.7/complaint, description of the persons committed robbery is not mentioned. Pw.6 admitted that, there are residential houses near the place of incident. Pw.6 admitted that, statements of inhabitants of the said house was not recorded. Pw.6 admitted that, he had not enquired whether there is any CC. camera on the place of incident. Pw.6 admitted that, he had no problem to do such enquiry. Pw.6 further admitted that he had not visited the place and prepared panchanama on the place where accused No.1 and 2 said to be arrested. Pw.6 admitted that, he had not conducted any enquiry about body search of accused No.1 and 2. Pw.6 admitted that, he conducted investigation to trace the owner of the seized aviator vehicle. Pw.6 admitted that, he had not mentioned name of the owner of the said vehicle as witness in the charge sheet. Pw.6 admitted that, 31 S.C.No.2063/2018 he had not produced copy of the notice issued to the panch witnesses. Pw.6 admitted that, panch witnesses Prasad, Magesh in this case are also witnesses in Banashankarai Police Station Cr.No.93/2018, 209/2018, Channammanakere Acchukattu police station Cr.No.198/2018. Pw.6 had given explanation that all the aforesaid 3 crimes are detected during the course of investigation of Cr.No.231/2018 of Jayanagara police station.
14.6) Pw.6 denied the suggestion that, he had not enquired any witnesses and recorded their statements. Pw.6 denied the suggestion that, witness Prasad and Mugesh are permanent panch witnesses in his police station. Pw.6 denied the suggestion that those witnesses are acted as panch witnesses in 22 cases. Pw.6 denied the suggestion that, he had not recorded voluntary statements of the accused persons. Pw.6 denied the suggestion that by receiving information from the voluntary statement of accused No.1, no gold chain was recovered from his house and seized under 32 S.C.No.2063/2018 the cover of Ex.P.11/panchanama. Pw.6 denied the suggestion that, he created voluntary statements at Ex.P.11 and Ex.P.12. Pw.6 denied the suggestion that, no panchanama was written on the place of incident as per Ex.P.13. Pw.6 denied the suggestion that, he created Ex.P.14 and Ex.P.15 and produced the same. Pw.6 further denied the suggestion that, as chain shown on Ex.P.3 and Ex.P.4/photographs does not contain any affixures said chain does not belongs to the complainant. Pw.6 denied the suggestion that, in order to implicate these accused persons in this case, as stated by him, complainant Nanjamma had given statement by identifying the accused persons. Pw.6 denied the suggestion that as stated by his higher officers, he is deposing false. Pw.6 denied the suggestion that, for statistical purpose and to depose of old cases, he is deposing false evidence against accused persons.
14.7) Pw.6 is the Investigating Officer. Gist of the evidence adduced by Pw.6 is with respect to custodial 33 S.C.No.2063/2018 interrogation of the accused, seizure of stolen property on the basis of information received from the accused persons. A legal point to be taken into consideration on this juncture is whether information received from the accused persons during custodial interrogation leading recovery is admissible? It is settled position of law that such portion of the information leading to recovery of the stolen property is admissible U/s.27 of Indian Evidence Act. Now the point to be taken into consideration is whether Pw.6 deposed truth about seizure of stolen property i.e., gold neck chain of Cw.1 Nanjamma on the basis of information given by accused No.1 and 2. In the case of theft, robbery and dacoity, recovery has got very important role. In this case, according to Pw.6 he seized gold neck chain of Cw.1 under the cover of Ex.P.13/panchanama. Information recorded by Pw.6 in Ex.P.11 and Ex.P.12 voluntary statements of accused No.1 and 2 and contents of Ex.P.13/ panchanama is corroborating each other. Gold neck chain said to be seized under Ex.P.13/panchanama is identified by complainant Cw.1. 34
S.C.No.2063/2018 Denying the entire procedure of seizure of stolen neck chain of Cw.1 on the basis of information given by accused No.1 and 2 under Ex.P.13 panchanama, advocate for accused suggested that, to help Cw.1, Pw.6 created Ex.P.11, Ex.P.12 and Ex.P.13. However, it is pertinent to note that no such admissions elicited in the cross-examination of Pw.6 to show that he had any enimity against accused No.1 and 2 to falsely implicate them in this case by creating Ex.P.11 and Ex.P.13. Further no such admissions elicited in the cross- examination of Pw.6 to show that he had any reason to assist Cw.1 complainant by falsely implicating these accused in this case.
14.8) Evidence adduced by Pw.6 is corroborating with the evidence adduced by Pw.1 on the point of lodging complaint in the police station is concerned. There is no unexplained inordinate delay in lodging complaint and time of happening of incident. There is no unexplained inordinate delay in registration of F.I.R. and sending the same to 35 S.C.No.2063/2018 jurisdiction magistrate. Arrest of the accused No.1 and 2 is also not unnatural because of the routine duty of the special police team established to search and arrest the accused persons involved in particular type of offence like chain snatching. Identification of stolen gold chain by Pw.1 to 3 is also corroborating with the evidence adduced by Investigation Officer. Statements recorded by the Investigation Officer is also corroborating with the evidence adduced by Pw.1 to 3. There are no major contradictions, omissions in the statements recorded by the Investigation Officer and evidence adduced by Pw.1 to 3.
15. Pw.7/Cw.12.Arjun C.R. is the then P.S.I. of Bagalagunte Police Station. In his evidence, Pw.7 deposed that, he served as P.S.I. in Bagalagunte police station up to April 2017. On 1.5.2018 he was Station House Officer in Banashankari police station. At 6.45 evening Cw.1/Nanjamma came to the police station along with written complaint. Receiving the same, he registered complaint in 36 S.C.No.2063/2018 Cr.No.184/2018 for offence punishable U/s.397 of I.P.C. , send F.I.R. to the court and copies to higher officers. P.w7 identified Ex.P.1/complaint and Ex.P.7/ F.I.R. On the same day, he handed over the case file to Cw.13 for further investigation.
15.1) In the cross-examination Pw.7 admitted that, Ex.P.7/ F.I.R. was registered against unknown persons. Pw.7 denied the suggestion that in order to implicate accused persons in this case, a false F.I.R. was registered by him.
15.2) Evidence adduced by Pw.7 is a formal evidence. Being S.H.O. Pw.7 promptly received first information by way of complaint lodged by Pw.1, registered the same in the register and sent F.I.R. to the court. Suggestion that, the said F.I.R. was registered to falsely implicate these accused persons in this case cannot be accepted. Further considering time of registration of F.I.R. and time taken to dispatch to the jurisdictional courts, there 37 S.C.No.2063/2018 is no such inordinate delay in submitting F.I.R. to the jurisdictional court.
16. Pw.8/Cw.4/ Prasad is the panch witness for spot panchanama/Ex.P.13. Pw.8 admitted his signature at Ex.P.13. Pw.8 deposed that about 2 years ago when he went to Jayanagar police station, his signature on Ex.P.13 was taken. He do know the contents mentioned in Ex.P.13. Police had not prepared any panchanama in his presence. No materials were seized.
16.1) Pw.8 identified his signature on Ex.P.9/seizure panchanama. About 2 years ago when he went to Jayanagara police station, police had taken his signature on Ex.P.9 also. At that time, police seized chain. He cannot recollect whether he had given statement to the police.
16.2) As Pw.8 deposed against to the interest of prosecution case, Learned Public Prosecutor appearing for 38 S.C.No.2063/2018 the State prayed the court to permit him to treat the witness as hostile and sought permission to cross-examine Pw.8. In the cross-examination also Pw.8 not stated anything with respect to Ex.P.13/spot panchanama. So far as Ex.P.9/seizure panchanama is concerned Pw.8 stated that, he cannot recollect whether he signed Ex.P.9 on 24.6.2018 at the time of seizure of aviator two wheeler having without number plate, a separate number plate No.KA-05-KA-5571, 2 helmets, 2 jackets, 2 pair shoes. Pw. 8 denied his statement as per Ex.P.18.
16.3) In the cross-examination by advocate for accused, Pw.8 stated that, he cannot recollect whether he is deposing false that police seized chain in his presence.
16.4) Only supportive portion in the evidence adduced by hostile witness Pw.8 is with respect to seizure of chain. Pw.8 had not stated anything with respect to contents of Ex.P.13/Spot panchanama as well as Ex.P.9/seizure 39 S.C.No.2063/2018 panchanama. Hence, evidence adduced by Pw.8 is not at all helpful to the case of the prosecution.
17. Pw.9/Cw.13/Puttaswamy is the then Police Inspector of C.K.Achukattu police station. In his evidence, Pw.9 deposed that, he served as Police Inspector in Banashankari police station from June 2017 to 2019. On 1.5.2017 he received case file from P.S.I. Arjun/Cw.15. He conducted further investigation of the case. On the same day, he proceeded to the place shown by the complainant. In the presence of Cw.2/Lakshminarayana and Cw.3/Deepak, he prepared spot panchanama as per Ex.P.2. At the same time, he prepared a rough sketch of the spot of the incident as per Ex.P.19. He deputed staff to trace the accused persons. He received information from Jayanagara police station about seizure of stolen properties relating to this Cr.No.184/2018 by Banashankari police from accused No.1 and 2 during course of investigation of Jayanagara police station Cr.No.231/2018. 40
S.C.No.2063/2018 He got information that complainant of this court went to Jayanagara police station and identified her stolen chain.
17.1) On 10.8.2018 he submitted requisition to the court to issue body warrant to produce accused Naveen Shetty and Balukumar in this case. As per order of body warrant issued by the court on 29.8.2018, he produced accused Naveen Shetty and Balukumar before the court of III- Addl.Chief Metropolitan Magistrate, Bengaluru and taken them into police custody for investigation. He interrogated accused persons on 29.8.2018, recorded their voluntary statements. In the voluntary statement accused No.1 had given information to show the place where they snatched gold chain worn by a lady on her neck as per Ex.P.20. Similarly accused No.2 also had given voluntary statement on 29.8.2018 as per Ex.P.21. On the basis of information received from the accused during custodial interrogation, he visited the spot, conducted spot inspection. He sent accused 41 S.C.No.2063/2018 to the court along with remand application. He can identify the accused persons, who are in judicial custody.
17.2) On 28.7.2018, he collected records relating to this case from Jayanagara police station. Pw.9 identified F.I.R. registered in Cr.No.231/2018 marked at Ex.P.8, PF.No.77/2018 marked at Ex.P.10, seizure pancahnama relating to P.F.No.82/2018 marked at Ex.P.14. Photo of two wheeler said to be used by the accused for chain snatching marked at Ex.P.5. Seizure panchanama relating to P.F.No.77/2018 marked at Ex.P.9, statements of witnesses including police staff, report submitted about tracing accused marked at Ex.P.6. Further Pw.9 identified further statement of the complainant, indemnity bond, photos of the chain marked at Ex.P.3 and 4 admissible portion of voluntary statement of accused marked at Ex.P.11 and Ex.P.12, further voluntary statements marked at Ex.P.20, Ex.P.21, permission accorded by the court to transfer the case marked at Ex.P.16. 42
S.C.No.2063/2018 17.3) After completion of the investigation, on 30.8.2018, he submitted charge sheet against the accused persons.
17.4) In the cross-examination Pw.9 admitted that, he had given written notice to panch witnesses, but those notices are not annexed with the charge sheet. Pw.9 admitted that, signatures of panch witnesses are not displaying in Ex.P.19/Rought Sketch. Pw.9 further admitted that, Report relating to seizure of knife is not annexed with the charge sheet. Further Pw.9 admitted that, he had not traced the owner of two wheeler bearing Reg.No.KA-05-KA-5571 because Jayanagara police investigated. Pw.9 further admitted that he had not prepared panchanama on the place shown by the accused persons because there was nothing to seize. Pw.9 further admitted that, he had not made any arrangement to conduct test identification parade of the accused, because already Jayanagara police had shown the accused to 43 S.C.No.2063/2018 complainant and recorded her statement on the point of identification of accused persons by the complainant.
17.5) Pw.9 denied the suggestion that, Ex.P.19 and Ex.P.2 spot panchanamas are prepared in the police station. Further Pw.9 denied the suggestion that, he had not deputed any staff for tracing the accused. Further Pw.9 denied the suggestion that, accused had not given any voluntary statement in his presence. Pw.9 denied suggestion that, accused persons never took him to any place. Pw.9 denied suggestion that, without conducting any investigation, only for the statistical purpose, he submitted false charge sheet against the accused persons. Further Pw.9 denied suggestion that, he merely signed the charge sheet preapred by his staff and submitted to the court.
18. Ex.P.1 is complaint, Ex.P.2 is spot mahazar, Ex.P.3 to Ex.P.5 are photos , Ex.P.6 is Report, Ex.P.7 is F.I.R. Ex.P.8 is F.I.R. Ex.P.9 is copy of mahazar, Ex.P.10 is property 44 S.C.No.2063/2018 form, Ex.P.11 and Ex.P.12 are portion of voluntary statements of accused No.1 and 2, Ex.P.13 and Ex.P.14 are mahazars, Ex.P.15 is property form, Ex.P.16 is Transfer Requisition, Ex.P.17 is acknowledgement, Ex.P.18 is portion of statement of Pw.8, Ex.P.19 is sketch, Ex.P.20 and Ex.P.21 are portion of voluntary statements of accused No.1 and 2.
19. Before appreciating the evidence led on behalf of prosecution, it is better to identify the factors to be proved by the prosecution to prove the ingredients of the charges framed against the accused persons. Charges framed agaisnt accused is for offence punishable U/s.397 of I.P.C. Ingredients required to be proved to prove the offence punishable U/s.397 of I.P.C. is as follows;
Essential Ingredients
(a) Robbery or dacoity is committed.
(b) At the time of committing robbery or dacoity the offender-
(i) uses any deadly weapon, or
(ii) causes grievous hurt to any person, or 45 S.C.No.2063/2018
(iii) attempts to cause death or grievous hurt to any person.
19.1) To prove offence punishable U/s.397 of I.P.C., commission of robbery or dacoity as described in Section 392 of I.P.C. has to be proved. Further prosecution has to prove that, the accused used deadly weapon or caused grievious hurt or attempted to cause death or greivious hurt. Further prosecution has to prove that he did so at the time of committing robbery or dacoity. Basic requirement to be proved against the accused is that accused involved in the commission of robbery.
19.2) Definition of robbery is described in Section 390 of I.P.C. Section 390 of I.P.C. states as under;
390. Robbery.--In all robbery there is either theft or extortion. When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying 46 S.C.No.2063/2018 away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
19.3) First para of Section 390 of I.P.C. deals with the case when theft is robbery. To prove the offence of commission of theft as robbery,ingredient required to be proved is that offender voluntarily causes or attempt to cause any person death or hurt, or wrongful restraint or fear of instant death, instant hurt or instant wrongful restraint. Further it is to be proved that, act mentioned above was done in order to commission of theft or in committing the theft, or in carrying away or attempting to carry away any property obtained by the theft. Robbery is only an aggravated form of theft. Aggravation is in use of violence, hurt or wrongful restraint in the course of theft. Hence, it is just and necessary to apply the evidence adduced by prosecution witnesses to test whether evidence adduced by prosecution 47 S.C.No.2063/2018 able to prove the required ingredients of the offence of theft and robbery.
20. In the case of theft or robbery, happening of the incident, identification of the stolen property, identification of the accused and procedure of recovery of the stolen articles are basic facts to be proved by the prosecution. To consider whether those facts are proved, it is just and necessary to evaluate the evidence adduced by Pw.1. Pw.1/Smt. Nanjamma who is victim and complainant. In her evidence, she has clearly explained how the incident of chain snatching was taken place on the date of incident. Pw.1 identified her complaint. Pw.1 identified her gold neck chain snatched during the incident. Pw.1 identified accused No.1 and 2 produced before the court through video conferencing.
20.1) On the point of identification of accused persons Pw.1 admitted that, as those persons wear helmets, description and colour of those persons was not visible. 48
S.C.No.2063/2018 Further, as she went unconscious, she unable to know that on which vehicle those chain snatchers came. However, Pw.1 answered that only two persons were shown to her in the police station. Further Pw.1 denied the suggestion that, she was seeing accused No.1 and 2 in the court through video conferencing for the first time. Pw.1 specifically answered that, she had seen them in the police station also. Pw.1 denied the suggestion that, she is deposing false against accused No.1 and 2 as stated by police that accused No.1 and 2 are the persons who snatched her gold neck chain.
20.2) Despite cross-examination, evidence adduced by Pw.1 remained unshaken. There is no such admissions in the cross-examination to discredit the evidentiary value of the evidence adduce by Pw.1. Further no such admissions elicited in the cross-examination of Pw.1 to show that, Pw.1 had any ill-will against accused No.1 and 2 to lodge false complaint of chain snatching against them. Further no such admissions elicited in the cross-examination of Pw.1 to show that, Pw.1 49 S.C.No.2063/2018 had any compelling reasons to support false case by deposing evidence against accused No.1 and 2. Further there is no explanation forthcoming in the statements of accused No.1 and 2 recorded U/s.313 of Cr.P.C. with respect to identification of the stolen gold neck chain by the Pw.1.
20.3) Compared the evidence adduced by Pw.1 with the ingredients of the complaint marked at Ex.P.1. Apart from the minor discrepancies ingredients written on Ex.P.1/complaint corroborates with the evidence adduced by Pw.1.
20.4) Pw.2/Laxminarayana is also explained the incident identified his signature on spot panchanama, identified snatched chain of Cw.1 shown at Ex.P.3 and 4/photographs. In the cross-examination it is elicited that, he had not seen the chain snatchers. In the examination-in- chief itself Pw.2 deposed that, he came to the spot after hearing the shouting of Cw.1. Hence question of identification of the accused persons by this witness does not 50 S.C.No.2063/2018 arise. This witness identified chain worn by his wife Cw.1. Presence of the Pw.2 on the spot is not unnatural, because the incident had taken place nearby the side of their residential house. Pw.2 satisfactorily explained his presence on the spot at the time of preparation of Ex.P.2/spot panchanama. Even though there are minor discrepancies with respect to identification of chain shown at Ex.P.3 and Ex.P.4 by Pw.2 stolen chain was identified by Pw.1 who worn the said chain at the time of chain snatching. Pw.2 being husband deposed his role played in this case.
21. Pw.3/Deepak Kumar also deposed supporting the incident as well as drawing spot panchanama. Pw.3 also identified chain of Cw.1. Pw.3 also not eyewitnesses to the incident. It is stated in the examination-in-chief by this Pw.3 that, he was in home when the incident had taken place. In the cross-examination even though it is attempted to elicit admissions that he was unable to read and write Kannada and he was not at all present on the spot at the time of 51 S.C.No.2063/2018 preparation of Ex.P.2/panchanama, no fruitful admissions elicited to establish the aforesaid facts.
21.1) With the help of evidence adduced by Pw.1 to Pw.3, happening incident of chain snatching of Cw.1 by accused No.1 and 2 is proved.
21.2) So far as recovery of the stolen articles from the possession of accused No.1 and 2 is concerned, it is just and necessary to rely upon the evidence adduced by Cw.4 to Cw.9. Pw.4 and 5 are police Head Constables who arrested accused No.1 and 2 produced before Investigating Officer along with two wheeler along with Ex.P.6/Report. In the cross- examination even though Pw.4 and 5 admitted that they had not taken photograph of accused and no panchanama was prepared at the time of taking the accused into custody, such admissions are not sufficient to arrive for the conclusion that no arrest of the accused No.1 and 2 was made as stated by Pw.1. Pw.4 and Pw.5 are trained police 52 S.C.No.2063/2018 head constables deputed to trace the accused persons. Pw.4 and Pw.5 specifically stated that at the time of deputing them to trace the accused persons, A.C.P. Srinivas shown them photographs of the accused involved in old cases, footages, recordings of CC camera. Those informations are sufficient to experienced police officers to trace the accused persons.
22. Both Pw.4 and Pw.5 identified accused persons and two wheeler seized from accused No.1 and 2.
22.1) Pw.6/Nagesh P.S.I.deposed by identifying the complaint lodged by Pw.1 and F.I.R. on the basis of said complaint lodged by Cw.1/Nanjamma. Pw.6 further deposed on 24.6.2018 Pw.4 and Pw.5 produced accused Naveen Shetty and Balukumar along with Ex.P.6/Report, evidence adduced by Pw.6 is corroborating with the evidence adduced by Pw.4 and Pw.5 on the fact of arrest of accused No.1 and 2. Pw.6 deposed that when enquired those two persons, he came to know their involvement in this incident. Pw.6 53 S.C.No.2063/2018 deposed that at the time of search of accused persons, he seized number plate No.KA-05-KA-5571, 2 helmets, 2 green jackets. He identified Ex.P.9/mahazar, Ex.P.10/Property Form and sent to the jurisdictional court as per provision under Cr.P.C. Pw.6 further deposed that, during custodial interrogation accused No.1 and 2 had given information about commission of chain snatching. Further accused No.1 had given information with respect to concealing of stolen gold chain in his house. Accused No.2 had given information with respect to selling stolen gold chains.
22.2) Section 27 of Indian Evidence Act permits to prove the fact as discovered in consequence of information received from a person in custody of police officer so much of such information whether it amounts to confession or not, as related distinctly to the fact thereby discovered. Essential requirement of Section 27 of Indian Evidence Act is that evidence is sought to be given must be relevant to the issue. Here in this case, prosecution intend to lead evidence 54 S.C.No.2063/2018 to prove the recovery of stolen gold neck chain of Cw.1 which is relevant fact. Fact discovered in this case is that accused No.1 and 2 had knowledge of place of incident of chain snatching of Cw.1. Further, fact discovered in this case is that stolen gold neck chain was kept in the house of accused No.1, which was exclusively in the knowledge of accused No.1. Fact discovered in this case is that the place and person who received stolen gold neck chain of Cw.1. Aforesaid discovered facts are in consequence of some information received from the accused persons and not by the accused own act. Accused No.1 and 2 are persons giving the information who are accused of chain snatching of Cw.1. Accused No.1 and 2 were in custody of police officer i.e., Pw.6. Pw.6 deposed about discovery of fact in consequences of information received from accused No.1 and 2 in custody. Hence, information relates distinctly, strictly to the fact discovered is permitted to be proved by the prosecution. 55
S.C.No.2063/2018 22.3) It is settled position of law that, fact of recovery may be proved with the help of evidence adduced by police officials. In the case of Munish Mubar V/s.State of Haryana reported in 2013 Crl.L.J. 56 (SC), it is held that, there was no independent witnesses for recoveries and panch witnesses only police personnels, it may not affect the merits of the case. In this case stolen gold neck chain of Pw.1 shown in Ex.P.3 and Ex.P.4 was recovered from the concealed place i.e., from the house of accused No.1 situated at Hennur Main Road. According to Pw.6, accused No.1 took him along with staff to his house No.7, situated at 5 th Cross, Lingarajapura, Hennur Main Road, went inside the house produced chain, kept inside the beeru (almirah) of his house. Pw.6 identified the property form submitted to the court, explaining seizure of the property at Ex.P.15 without any inordinate delay. Further Pw.6 called Cw.1/ complainant Nanjamma to the police station got her gold neck chain identified. After taking indemnity bond, he handed over the same to the interim custody of the complainant.
56
S.C.No.2063/2018 22.4) On the point of recovery, in the cross- examination, suggestions are made that no voluntary statement of the accused No.1 as per Ex.P.11 was recorded. The said suggestion is denied by Pw.6. Further suggestion that Ex.P.11 and Ex.P.12 voluntary statements of accused No.1 and 2 are created is also denied by Pw.6. Further suggestion that Ex.P.14 and Ex.P.15 are created is also denied. Mere suggestion cannot be taken the place of evidence. Further suggestion that chain shown in Ex.P.3 and Ex.P.4 are not the chain of the complainant is only a suggestion. There is no rival claimant for gold neck chain identified by the complainant on Ex.P.3 and Ex.P.4/photographs. Except mere suggestion, no explanation is forthcoming on the side of the accused about seizure of gold neck chain of Cw.1 from the possession of accused No.1 on the basis of information given by accused No.1 and 2. Except mere suggestion that false case is filed, a false charge sheet is filed, no explanation is forthcoming in the cross- examination of Pw.1 to show any reason to depose false by a 57 S.C.No.2063/2018 police officer against these accused No.1 and 2. In this way fact of recovery of stolen gold neck chain of Cw.1 from the possession of accused No.1 and 2 on the basis of information received from them is proved.
23. Pw.9/Puttaswamy Investigating officer also deposed in corroboration with the evidence adduced by other police officers. Pw.9 deposed about taking custody of accused No.1 and 2 by obtaining body warrant from the court and recording statements of accused No.1 and 2 as per Ex.P.20 and Ex.P.21. Pw.9 further deposed with respect to securing records from Jayanagara police station relating to Cr.No.231/2018. It is pertinent to note that, investigation relating to serial chain snatching cases are conducting in Cr.No.231/2018 of Jayanagara police station, for the reason that these accused persons are arrested in the said crime number. During the course of custodial interrogation, accused No.1 and 2 disclosed commission of serial chain snatching cases including the present case. No admissions 58 S.C.No.2063/2018 elicited in the cross-examination of Pw.9 to show that, he had any ill-will against accused No.1 and 2 to file false charge sheet.
23.1) Defence set up by the accused side in the cross- examination of prosecution witnesses is concerned, suggestion put to Pw.1 that, to help the police they are deposing false. To substantiate aforesaid suggestion, no such material evidence is forthcoming to the extent of probabilities that, Pw.1 to Pw.3 had any personal interest in helping the police by giving false evidence. No such probable suggestion or material evidence is forthcoming to show that, there is any personal interest, enimity or vengeance that Pw.1 to Pw.3 had against accused No.1 and 2, to give false evidence that too on the allegation of very serious offence like snatching of gold neck chain worn by a senior citizen lady. No probable material evidence is forthcoming to show that, police officers who registered case against accused persons, recorded voluntary statements of the accused persons, filed charge 59 S.C.No.2063/2018 sheet against accused persons had any ill-will, vengeance or grudge against accused persons.
24. Advocate for accused submitted arguments that, there is doubt in identifying the accused persons by Pw.1, police officers and Investigation Officers. There are discrepancies in the evidence adduced by Pw.1 to Pw.3. It is settled position of law that, human memory is short. Minor discrepancies bound to occur in all criminal trials. Pw.1 identified persons produced before the court through Video Conference that they are the same persons who committed chain snatching. No reasonable cause is forthcoming to disbelieve the version of identification made by Pw.1. There is no reason to disbelieve the evidence adduced by the police staff and Investigation Officer on the point of arrest, recovery of stolen gold chain of Pw.1 on the basis of information received from the accused persons.
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25. All incriminating circumstances appearing in the evidence adduced by prosecution side was explained to the accused No.1 and 2 U/s.313 of Cr.P.C. All incriminating circumstances appeared in the evidence adduced by prosecution side against accused person were denied by both accused persons as false. Both accused persons had not given any explanation for registration of case like chain snatching against them. Both accused persons had not choose to examine any witnesses on their behalf. Both accused persons had not chose to produce any material to substantiate their defence.
26. In this case, denial of the case of the prosecution as false, is the only defence set up by the accused. U/s.101 of Indian Evidence Act 1872, whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that, burden of proof lies on 61 S.C.No.2063/2018 that person. In this case prosecution substantially proves the very story it alleges against accused persons. Prosecution proved the allegation made against accused persons in the charge framed against them relating to commission of offence of robbery, beyond all reasonable doubt.
27. So far as using deadly weapons or causing grievious hurt to any person or attempt to cause death or grievous hurt to any person is concerned, evidence and material is not available in the prosecution side evidence. No such deadly weapon is recovered by the Investigation Officer during the course of investigation. No wound certificate is produced by the investigating agency. Argument submitted on behalf of prosecution is that forcible snatching gold chain worn on neck itself is an attempt to cause grievious hurt on the victim is difficult to accept in the absence of any material evidence to corroborate such argument. It is difficult to accept the version of the prosecution that an offence punishable U/s.397 of I.P.C. had taken place. Prosecution 62 S.C.No.2063/2018 proved the case beyond reasonable doubt that, accused persons have committed an offence punishable U/s. 392 R/w.Sec.34 of I.P.C.
28. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution proved beyond all reasonable doubt that, on 5.1.2018 evening at 5.50 p.m., accused No.1 and 2 came on a scooter. Accused No.1 snatched 70 grams gold neck chain worn by Cw.1 and fled away on their two wheeler thereby accused No.1 and 2 have committed offence punishable U/s.392 R/w.Sec.34 of I.P.C. Hence point No.1 is answered partly in the affirmative.
29. POINT NO.2 In view of the above findings on point No.1, following order is made;
63
S.C.No.2063/2018 ORDER Invoking provisions U/s.235(2) of Cr.P.C., accused No.1 and 2 are found guilty for the offence punishable U/Sec.392 R/w.Sec.34 of I.P.C.
Further Judgment on imposing sentence is deferred.
Call on for hearing on sentence.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 5th day of August 2020.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
64
S.C.No.2063/2018 Further Order on imposing sentence Heard regarding sentence.
Accused No.1 submitted that, he had no relation with the alleged incident. His father is expired. There is nobody to look after his mother.
Accused No.2 submitted that, he had no relation with the alleged incident. He has only mother. There is nobody to look after his mother. He is prosecuting college education. In the event imposing sentence of imprisonment, his future may be ruined. For the said reasons, accused No.1 and 2 prayed to show leniency.
Advocate for accused No.1 and 2 submitted that accused No.1 and 2 are in J.C. for more than 2 years. Mother of accused No.1 is suffering from ill-health, due to old age. For the said reasons, advocate for the accused No.1 and 2 prayed to impose minimum sentence by considering mitigating circumstances of accused No.1 and 2. 65
S.C.No.2063/2018 Learned Public Prosecutor appearing for the State submitted that, maximum sentence of imprisonment and fine may be imposed for the offence proved against accused No.1 and 2.
Punishment for robbery U/s.392 of I.P.C. prescribed is rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine. If the robbery be committed on the highway between sunset or sunrise, imprisonment may extended to 14 years. Way of offence committed by the accused persons is not extra ordinary or cruel. No evidence is available to show that, victim sustained any injury on her neck. Accused No.1 and 2 are young aged persons. No records are available to show that, accused No.1 and 2 are previously convicted for similar type of offences. Accused persons submitted that, they are having age old mother. They are the only bread winners for their family members. Considering the mitigating circumstances submitted by the accused persons, this court is of the 66 S.C.No.2063/2018 opinion that, leniency may be shown while imposing sentence on accused No.1 and 2.
No doubt that, the offence of chain snatching of senior lady, committed by the accused No.1 and 2 is of serious nature. Offence of chain snatching in public creates panic among public. Chain snatching shakes the confidence of the public on law implementing authority. Impact of this type of offence on public is more. Deterrent theory of punishment is suitable to prevent accused persons from continuing with such type of offences. Further, imposing rigorous imprisonment with fine is suitable to prevent other offenders from commission of similar type of offences. Hence, sentencing to undergo rigorous imprisonment for 3 years and to pay fine of Rs.10,000/- each, in default of payment of fine amount, shall undergo S.I. for 6 months would serve the purpose of conviction.
Considering the fact that accused No.1 and 2 already in judicial custody, this court is of the opinion that period of 67 S.C.No.2063/2018 judicial custody of accused No.1 and 2 shall be set off, invoking the provisions U/s.428 of Cr.P.C. Hence, following order is made;
ORDER Invoking provision U/Sec.235(2) of Cr.P.C., accused No.1 and 2 are convicted for the offence punishable U/Sec.392 R/w.Sec. 34 of I.P.C.
Accused No.1 and 2 are sentenced to undergo rigorous imprisonment for three years and sentenced to pay fine of Rs.10,000/- (ten thousand) each. In default of payment of fine, they shall undergo S.I. six months for the offence punishable U/s.392 R/w. 34 of I.P.C.
Period of judicial custody of accused No.1 and 2 shall be set off, invoking the provisions U/s.428 of Cr.P.C.
Office is directed to furnish the certified copy of entire judgment to the accused No.1 and 2 forthwith, free of cost.
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S.C.No.2063/2018
Bail bonds and their surety bonds shall
stands cancelled.
Office is directed to issue conviction warrant accordingly.
Cw.1 got her stolen gold neck chain into her custody. Hence, awarding compensation as per Section 357 of Cr.P.C. does not arise.
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 5th day of August 2020.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
69
S.C.No.2063/2018 ANNEXURE I List of witnesses examined on behalf of the Prosecution:-
Pw.1 Nanjamma Pw.2 Lakshminarayana Pw.3 Deepak Kumar Pw.4 Kemparaju Pw.5 Srinivas Pw.6 Nagesh Pw.7 Arjun Pw.8 Prasad Pw.9 Puttaswamy II. For Defence:- -Nil
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Complaint Ex.P.1(a) Signature of Pw.1 Ex.P.1(b) Signature of Pw.7 Ex.P.2 Spot mahazar Ex.P.2(a) Signature of Pw.1 Ex.P.2(b) Signature of Pw.2 Ex.P.2(c) Signature of Pw.3 70 S.C.No.2063/2018 Ex.P.2(d) Signature of Pw.9 Ex.P.3 & 4 Photos Ex.P.5 Photo Ex.P.6 Report Ex.P.6(a) Signature of Pw.4 Ex.P.6(b) Signature of Pw.6 Ex.P.7 F.I.R.No.184/2018 Ex.P.7(a) Signature of Pw.7 Ex.P.8 F.I.R. No.231/2018 Ex.P.8(a) Signature of Pw.6 Ex.P.9 Copy of Mahazar Ex.P.9(a) Signature of Pw.6 Ex.P.9(b) Signature of Pw.8 Ex.P.10 Property Form Ex.P.10(b) Signature of Pw.6 Ex.P.11 Portion of voluntary statement of accused No.1 Ex.P.12 Portion of voluntary statement of accused No.2 Ex.P.13 Mahazar Ex.P.13(a) Signature of Pw.6 Ex.P.13(b) Signature of Pw.8 Ex.P.14 Mahazar Ex.P.14(a) Signature of Pw.6 Ex.P.15 Property Form Ex.P.15(a) Signature of Pw.6 Ex.P.16 Transfer Requisition Ex.P.16(a) Signature of Pw.6 Ex.P.17 Acknowledgement Ex.P.17(a) Signature of Pw.6 Ex.P.18 Portion of statement of Pw.8 Ex.P.19 Sketch Ex.P.19(a) Signature of Pw.9 Ex.P.20 Portion of voluntary statement of accused No.1 Ex.P.21 Portion of voluntary statement of accused No.2. For Defence side:- -Nil- 71 S.C.No.2063/2018 IV List of material objects marked:- -Nil- (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY. 72 S.C.No.2063/2018 5.8.2020
Accused No.1 and 2 produced through V.C. Judgment pronounced in the open court (vide separate judgment) ORDER Invoking provisions U/s.235(2) of Cr.P.C., accused No.1 and 2 are found guilty for the offence punishable U/Sec.392 R/w.Sec.34 of I.P.C.
Further Judgment on imposing sentence is deferred.
Call on for hearing on sentence.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
73
S.C.No.2063/2018 Further Order on imposing sentence Heard regarding sentence.
Accused No.1 submitted that, he had no relation with the alleged incident. His father is expired. There is nobody to look after his mother.
Accused No.2 submitted that, he had no relation with the alleged incident. He has only mother. There is nobody to look after his mother. He is prosecuting college education. In the event imposing sentence of imprisonment, his future may be ruined. For the said reasons, accused No.1 and 2 prayed to show leniency.
Advocate for accused No.1 and 2 submitted that accused No.1 and 2 are in J.C. for more than 2 years. Mother of accused No.1 is suffering from ill-health, due to old age. For the said reasons, advocate for the accused No.1 and 2 74 S.C.No.2063/2018 prayed to impose minimum sentence by considering mitigating circumstances of accused No.1 and 2.
Learned Public Prosecutor appearing for the State submitted that, maximum sentence of imprisonment and fine may be imposed for the offence proved against accused No.1 and 2.
Punishment for robbery U/s.392 of I.P.C. prescribed is rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine. If the robbery be committed on the highway between sunset or sunrise, imprisonment may extended to 14 years. Way of offence committed by the accused persons is not extra ordinary or cruel. No evidence is available to show that, victim sustained any injury on her neck. Accused No.1 and 2 are young aged persons. No records are available to show that, accused No.1 and 2 are previously convicted for similar type of offences. Accused persons submitted that, they are having age old mother. They are the only bread winners for their family 75 S.C.No.2063/2018 members. Considering the mitigating circumstances submitted by the accused persons, this court is of the opinion that, leniency may be shown while imposing sentence on accused No.1 and 2.
No doubt that, the offence of chain snatching of senior lady, committed by the accused No.1 and 2 is of serious nature. Offence of chain snatching in public creates panic among public. Chain snatching shakes the confidence of the public on law implementing authority. Impact of this type of offence on public is more. Deterrent theory of punishment is suitable to prevent accused persons from continuing with such type of offences. Further, imposing rigorous imprisonment with fine is suitable to prevent other offenders from commission of similar type of offences. Hence, sentencing to undergo rigorous imprisonment for 3 years and to pay fine of Rs.10,000/- each, in default of payment of fine amount, shall undergo S.I. for 6 months would serve the purpose of conviction.
76
S.C.No.2063/2018 Considering the fact that accused No.1 and 2 already in judicial custody, this court is of the opinion that period of judicial custody of accused No.1 and 2 shall be set off, invoking the provisions U/s.428 of Cr.P.C. Hence, following order is made;
ORDER Invoking provision U/Sec.235(2) of Cr.P.C., accused No.1 and 2 are convicted for the offence punishable U/Sec.392 R/w.Sec. 34 of I.P.C.
Accused No.1 and 2 are sentenced to undergo rigorous imprisonment for three years and sentenced to pay fine of Rs.10,000/- (ten thousand) each. In default of payment of fine, they shall undergo S.I. six months for the offence punishable U/s.392 R/w. 34 of I.P.C.
77
S.C.No.2063/2018 Period of judicial custody of accused No.1 and 2 shall be set off, invoking the provisions U/s.428 of Cr.P.C.
Office is directed to furnish the certified copy of entire judgment to the accused No.1 and 2 forthwith, free of cost.
Bail bonds and their surety bonds shall stands cancelled.
Office is directed to issue conviction warrant accordingly.
Cw.1 got her stolen gold neck chain into her custody. Hence, awarding compensation as per Section 357 of Cr.P.C. does not arise.
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. 78
S.C.No.2063/2018 Call for report from Probation Officer regarding application U/s.4 of the Probation of Offenders Act 1958 on accused No.1 and 2.
Call on 10.8.2020.
(RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.