Bangalore District Court
State By vs Afroz Khan @ Afroz on 21 December, 2021
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED: This the 21 st day of December, 2021
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.471/2018
COMPLAINANT: State by:
DJ Halli Police Station,
Bengaluru.
(By Public Prosecutor)
/Vs/
ACCUSED: 1.Afroz Khan @ Afroz,
S/o Ghouse Khan,
Aged about 24 years,
I Cross, KGF Building,
Near Urdu School, D.J.Halli,
Bengaluru - 45.
2.Shabbir,
S/o Late Pyaru,
Aged about 24 years,
Near Madeena Masjid,
Madeena Mohalla,
Modi Road, D.J. Halli,
Bengaluru - 45.
3.Sharukh Khan @ Sharukh,
S/o Aslam Pasha,
Aged about 22 years,
Madeena Masjid,
Harira's rented house,
Modi Road, D.J.Halli,
2
S.C. No. 471/2018
Bengaluru - 45.
(By Sri.SM, Advocate.)
4.Shaheed @ Chennai Shaheed,
Aged about 24 years,
Modi Road, D.J.Halli,
Bengaluru - 45.
(ABATED)
5.Mohammed Toufiq,
S/o Mohammed Sameeulla,
Aged about 18 years,
No.318, Madeena Mohalla,
D.J.Halli, Bengaluru.
(By Sri.SM, Advocate.)
DATE OF:
Occurrence of offence : 16.10.2017
Commencement of trial : 16.10.2021
Closing of trial : 27.11.2021
Name of the complainant : Sri.Munikirshna- PI
Offence alleged : Under Sections 399
and 402
Opinion of the judge : Charges leveled against
accused are not proved
Sentence or order : Acquitted
JUDGMENT
Devarajeevanahalli police (for short, "DJ Halli police") have filed the present charge sheet against the accused in 3 S.C. No. 471/2018 Crime No.319/2017 for the offences punishable under Sections 399 and 402 of IPC.
2. The brief facts of the prosecution case are that;
a) On 16.10.2017 at about 4:20 a.m., all the accused assembled together by holding deadly weapons near the BDA Park, Shampura LR Bande, within the jurisdiction of DJ Halli police station and were conspiring and preparing to commit dacoity of the lone passers on the said place.
b) Based on credible information, CW-1/ Sri.Munikrishna, the then Police Inspector, DJ Halli police station along with panchas CW-2/Sri.Vikram and CW- 3/Sri.Mani and staffs CWs-4 to 8 i.e., Sri.Kodanda/HC 6749, Sri.Ranganath/HC 8261, Sri.Yogananda/HC 8611, Sri.Nayaz Pasha/HC 8133 and Sri.Umran Khan/PC 8042 respectively raided the spot; caught hold 3 accused; seized deadly weapons which were in the possession of the accused.
c) CW-1 returned to the police station along with accused persons, properties and mahazar and produced before the then ASI Sri.Govindaiah/CW-9 who registered 4 S.C. No. 471/2018 the case against the accused in Cr.No.319/2017 for the offences punishable under Sections 399 and 402 of IPC.
d) After, investigation, the charge sheet was filed against A-1 to A-5 for the offences alleged.
3. The trial Court took cognizance for the offences alleged against A-1 to A-5 and since the alleged offences were triable by the Court of Sessions, the case was committed directing A-1 to A-3 who were on bail to appear before the Court of Sessions on receipt of summons and directing the Central Prison, Bengaluru to produce A-4 and A-5 who were in custody, whenever called.
4. After committal of the case, it was allotted to this Court for disposal in accordance with law. A-1 to 3 appeared before the Court and were enlarged on committal bail. A-4 and A-5 were produced from the Central Prison, Bengaluru and were enlarged on bail.
5. During the course of trial since A-4 was dead, case against him was abated.
6. Heard before charge. Charges framed and plea of A-1 to A-3 and A-5 was recorded for the offences punishable under Sections 399 and 402 of IPC. In 5 S.C. No. 471/2018 response to which, they pleaded not guilty and claimed to be tried by this Court. Hence, the case was posted for trial.
7. During the course of trial, the prosecution in all examined 5 witnesses i.e., CWs-1, 4, 9, 2 and 3 respectively as PWs-1 to 5. Got exhibited 7 documents at Ex.P-1 to 7. Got marked 3 material objects at MOs-1 to 3 and closed its side.
8. Statement under Section 313 of Cr.P.C. of A-1 to A- 3 and A-5 was recorded wherein they have denied all incriminating evidence adduced and produced by the prosecution against them and they neither produced nor adduced any evidence on their defence.
9. Heard arguments of both the sides on merits of the case and perused the record.
10. Out of the above said facts and circumstances of the case and the material evidence on record, the points that arose for the due consideration of this Court are;
1. Whether the prosecution proves beyond all the reasonable doubts that On 16.10.2017 at about 4:20 a.m., A-1 to A-3 and A-5 along with A-4 against whom the case is abated, assembled together by holding deadly weapons near the BDA Park, Shampura LR 6 S.C. No. 471/2018 Bande, within the jurisdiction of DJ Halli police station and were conspiring to commit dacoity of the lone passers and thereby they have committed the offence punishable under Section 402 read with Section 34 of IPC?
2. Whether the prosecution further proves beyond all the reasonable doubts that on the above said date, time and place, A-1 to A-3 and A-5 along with A-4 against whom the case is abated, with a common intention were conspiring and preparing themselves to commit dacoity of public and thereby they have committed the offence punishable under Section 399 read with Section 34 of IPC?
3. What Order?
11. The answer of this Court to the above points are;
1. Points Nos.1 and 2 : In Negative.
2. Point No.3 : As per the final order for the following reasons.
REASONS
12. POINTS Nos.1 AND 2:- As these points require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration.
13. Before venturing to discuss on the evidence let in by the prosecution, let this Court first to go through the relevant provisions of law to know the ingredients that 7 S.C. No. 471/2018 attract the offences alleged i.e., Sections 399 and 402 of IPC which are extracted here below;
"399. Making preparation to commit dacoity.- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
402. Assembling for purpose of committing dacoity.- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
14. To know the definition of dacoity, now let this Court to go through the provision of Section 391 of IPC which reads;
"391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".8
S.C. No. 471/2018
15. So, let this Court now to have a look at the provision of Section 390 of IPC which define robbery and reads;
"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 away or attempting to carry away property obtained by the theft, the offender, for the end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear or instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear or instant death, or instant hurt, or instant wrongful restraint.9
S.C. No. 471/2018
16. So, the ESSENTIAL INGREDIENTS to constitute robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily causes or attempts to cause to any person.-
(i) death, or
(ii) hurt, or
iii) wrongful restrain, or
(iv) fear of instant death, instant hurt, or instant wrongful restraint and the above act(s) is/are done -
(1) in order to the commission of the theft, or (2) in committing the theft, or (3) in carrying away or attempting to carry away any property obtained by the theft.
(b) Extortion is robbery when,
(i) At the time of committing extortion the offender is in the presence of the person put in fear.
(ii) The offender commits extortion by putting that person in fear of instant death, hurt, or wrongful restraint - (1) to that persons, or (2) to some other person.
(iii) By so putting such person in fear, the offender induced the person so put 10 S.C. No. 471/2018 in fear then and there so deliver the thing extorted.
17. In the present case on hand, as noted above, it is the allegations of the prosecution that on the alleged date, time and place, the accused by holding deadly weapons were preparing themselves and conspiring to commit dacoity of the lone passers and thereby they have committed the offences alleged. So, the above prosecution allegations attract the ingredients of the offences alleged.
18. To prove its case as noted above, the prosecution got examined CWs-1, 4, 9, 2 and 3 and it is stated in the charge sheet that CW-1 is the then PI of DJ Halli police station who received the information; made raid; caught hold the accused; seized the properties by conducting the mahazar; produced the accused along with properties seized by him, the mahazar and report before the SHO i.e., the then ASI Sri.Govindaiah/CW-9. He is examined as PW- 1 and has deposed that;
a) He was working as PI in DJ Halli police station since September-2016 to February-2019 and on 16.10.2017, around 4:00 a.m., when he was on rounds 11 S.C. No. 471/2018 with his staffs i.e., Sri.Kodanda/CW-4, Sri.Ranganatha/CW-5, Sri.Yogananda/CW-6, Sri.Nayaz Pasha/CW-7 and Sri.Imran Khan Suhail/CW-8, he received a phone call wherein he was intimated by his informants that around 4 to 5 persons near BDA Park, LR Bande, on the road, having weapons, preparing themselves to commit docoity of the passers.
b) Immediately, he secured the presence of panchas by name Sri.Vikram/CW-2 and Sri.Mani/CW-3 by calling them over mobile and secured them at Kaval Bhairasandra. They came around 4:15 a.m. He briefed them the information. They agreed to become panchas to the raid.
c) So, went to the spot and stopped his vehicle at a distance around 100 meters near a garage, asked CW-5 to go to the spot and get the information confirmed and to give signal by switching on the mobile torch.
d) Around 4:20 a.m., i.e., after 5 minutes, CW-5 gave signal by switching on the mobile torch. Immediately, he rushed to the spot with the panchas and the remaining staffs and covered the suspects, but on seeing them, 2 12 S.C. No. 471/2018 suspects were escaped from the spot over a dio bike and they could catch 3 persons.
e) He enquired them in respect of their presence in the spot. They told that they were in the spot to commit docoity.
f) The eqnuiry revealed that the suspect caught hold by CW-8 is Afroz Khan @ Afroz, resident of KGF Building, DJ Halli and when he was subjected to body search, they found a knife of around 1 feet length in the waist and he seized it.
g) It was also learnt that the person caught hold by CW-7 is Shabeer, resident of Madina Mohilla, DJ Halli, when he was subjected to the body search, they found one feet length knife in his waist and he seized it.
h) The enquiry also revealed that the person caught hold by CW-4 is Sharuk Khan @ Sharukh, resident of Madina Moholla, DJ Halli and he was holding wooden club of 2 feet length and he seized it.
i) He conducted the mahazar in that regard, in the presence of CWs-2 and 3 in between 4:30 a.m. to 5:30 a.m. By then, he put the above properties into a cotton cover, 13 S.C. No. 471/2018 duly packed, sealed and affixed the labels having his signatures and the signatures of CWs-2 and 3 over the above properties.
j) By that time, he also seized a vehicle i.e., two wheeler Hero Honda Glammer red and black colour bearing registration No.KA-03 HF-7396 which was in the spot and when enquired the accused Sharuk Khan @ Sharukh, he told that he brought the said motor cycle.
k) In the enquiry, it was learnt that the persons ran out of the scene are Shahid @ Chennai Shahid, resident of DJ Halli and Mohammed Toufiq, resident of DJ Halli.
l) He got written the mahazar at Ex.P-1 in the spot by CW-5 in the street light and obtained the signatures of the panchas, CW-5 and he also signed the mahazar; his signature is Ex.P-1(a), the signatures of CWs-2, 3 and 5 are respectively Ex.P-1(b) to 1(d).
m) Thereafter, he had been to the police station with all the above accused persons; the properties; the mahazar and produced all of them before the then ASI Sri.Govindaiah/CW-9 along with his written complaint at 14 S.C. No. 471/2018 Ex.P-2 for further investigation and his signature over the complaint at Ex.P-2 is Ex.P-2(a).
n) He can identify the above accused persons if he sees them again and he has identified the accused persons before the Court specifically with their names. He has deposed that he learnt that the accused Saheed @ Chennai Saheed is dead.
o) He can identify the above properties if he sees them again and he identified the properties i.e., an iron handled one feet knife in the hands of A-1 at MO-1; an iron handled one feet knife in the hands of A-2 at MO-2 and one wooden club in the hands of A-3 at MO-3.
p) He has also identified his signatures on the lables affixed to the cotton covers in which MOs-1 to 3 kept as MOs-1(a) to 3(a); his signatures as MOs-1(b) to 3(b); the signatures of CW-2 as MOs-1(c) to 3(c) and the signatures of CW-3 as MOs-1(d) to 3(d).
q) He has deposed that the motor cycle appearing in the photo at Ex.P-3 is the said motor cycle.
r) On 23.11.2017, he received the case file from CW-9 for further investigation and gone through the case file. As 15 S.C. No. 471/2018 he found the investigation was in order and it was already completed and there were prima facie materials against the accused, he prepared the charge sheet by showing A-4 and A-5 as absconding accused and submitted the charge sheet.
19. It is in the cross examination of CW-1 for the accused that;
a) When he reached the station around 6:00 a.m. to 6:15 a.m., by then CW-9 was the SHO. Before raid, he did not mention about proceeding to the raid in the station house dairy. At this stage, he has volunteered that but after return, he mentioned it.
b) He issued written notice to CWs-2 and 3. The accused persons were standing by the side of garbage tank near the BDA Park Junction. He cannot say the registration number of the dio vehicle on which the other suspects alleged to be escaped.
c) To the question that the properties like MOs-1 to 3 are easily available in the open market, he has answered that but, MOs-1 to 3 were seized from the possession of the accused persons.
16
S.C. No. 471/2018
d) To the next question that whether there is any specific mark to identify the properties, he has answered that the iron knives have had sharp edges with iron handle.
e) He cannot say to which type of tree, the wooden club at MO-3 belongs to.
f) He has denied that,
(i) The accused persons were brought and kept in the station before registering the case and when the parents of the accused enquired, they registered a false case.
(ii) No mahazar was conducted in the spot and the mahazar at Ex.P-1 was conveniently prepared in the station.
g) To the question that he had no impediment to mention the names of panchas in his complaint at Ex.P-2, he has answered that it is not written.
h) He has denied that,
(i) For the purpose of statistics, this false case is registered and the accused are falsely implicated.
(ii) No two wheeler was in the spot, none of the accused persons were caught hold at the spot and no 17 S.C. No. 471/2018 properties much less MOs-1 to 3 and the motor cycle appearing at Ex.P-3 were seized from their possession and
(iii) Whatever the evidence he gave in that regard are all false.
i) He has also deposed that the garage near the spot was a car garage and he does not know its name.
j) He has denied that;
(i) Though there is no nexus between the accused persons and the alleged crime, he filed false charge sheet and to substantiate the same, he gave false evidence.
(ii) He did not investigate about the registered owner of the two wheeler appearing at Ex.P-3.
20. So, CW-1 has deposed supporting the case of the prosecution with regard to the raid; catching hold A-1 to A- 3; seizure of MOs-1 to 3 from the possession of A-1 to A-3 and the Hero Honda bike at the spot by conducting the mahazar at Ex.P-1; production of A-1 to A-3 with MOs-1 to 3 along with the mahazar at Ex.P-1 along with his report at Ex.P-2 before CW-9 and nothing has been elicited in his cross examination to disbelieve his oral evidence. 18
S.C. No. 471/2018
21. It is stated in the charge sheet that CWs-2 and 3 are the panchas to the spot and seizure mahazar at Ex.P-1 and were present at the time of the raid. They are respectively examined as PWs-4 and 5. The evidence of both of them is similar and they have deposed that;
a) They do not know A-1 and A-3 present in the open Court on the date of their deposition and also the other accused.
b) His/CW-2's house situated abutting to DJ Halli police station and CW-3's house on the back side of DJ Halli police station. The police called them to the station and took their signature to a document i.e., Ex.P-1, wherein their signatures is Ex.P-1(b) and 1(c) respectively and they identified them.
c) The police did not take them to Public Road, near BDA Park, LR Bande, Shampura, Bengaluru and made any raid.
d) The signatures at MO-1(c) to 3(c) and MO-1(d) to 3(d) are respectively their signatures and they put the said signatures in DJ Halli police station. 19
S.C. No. 471/2018
e) They did not see the motor cycle appearing in the photo at Ex.P-3 and the properties at MOs-1 to 3 and they were not seized in their presence.
f) They did not give any statement in respect of the alleged raid, seizure of MOs-1 to 3 from A-1 and A-3 present before the Court on the date of their deposition along with the other accused.
22. So, the prosecution cross examined them by getting as hostile and put forth its case that;
a) On 16.10.2017, around 4:15 am, the DJ Halli police called them to the station and CW-1 briefed them the information that 4 to 5 persons by parking a two wheeler on the public road near BDA Park, LR Bande, Shampura, having deadly weapons and conspiring to commit docoity and requested them to become panchas to the raid and accordingly, they accepted.
b) Thereafter, CW-1 took them along with his staffs to the above spot in the Government Bolero vehicle No.KA-05 G-1554 and getting confirmed the information in the light of mobile torch by the then HC-8261 Sri.Ranganath, made the raid and caught hold 3 persons ie., Afroz Khan, 20 S.C. No. 471/2018 Shabbir and Sharuk Khan, the other 2 persons escaped from the spot.
c) Afroz Khan was in possession of a knife i.e., MO-1, the accused Shabbir was in possession of one more knife i.e., MO-2 and Sharuk Khan was in possession of a wooden club i.e., MO-3 and there was Hero Honda Glammer vehicle bearing No.KA-03 HF-7396 that is the vehicle appearing in the photo at Ex.P-3.
d) The enquiry revealed that the persons ran out of the spot are Sahid and Mohammed Toufiq.
e) CW-1 by conducting the mahazar at Ex.P-1 in between 4:30 a.m. and 5:30 a.m. with the light of street lights and seized the above properties i.e., MOs-1 to 3; put them in the clothe covers, duly packed and sealed, affixed the chits bearing their signatures.
f) After reading over the contents at Ex.P-1, both of them signed it, saying the above facts, they also gave the statements before the IO as per the statements at Ex.P-6 and 7 respectively, despite of that in order to help the accused persons, they gave false evidence. 21
S.C. No. 471/2018
23. So, the contradiction in the evidence of CW-1 and in the suggestions put forth on behalf of the prosecution to CWs-2 and 3 is, CW-1 has deposed that he secured the presence of CWs-2 and 3 at Kaval Bairasandra by making a phone call, on the other hand, the suggestion put forth to CWs-2 and 3 on behalf of the prosecution is that CW-1 called them to the police station and briefed the information.
24. However, as noted above, CWs-2 and 3 denied all the above suggestions of the prosecution and there is no cross examination to them on behalf of the accused. So, though CWs-2 and 3 admitted their signatures over Ex.P-1 and MO-1(a) to 3(a), their evidence is not at all help for the prosecution to prove the raid; the arrest; the seizure; the identification of both the accused and the properties.
25. The next witness examined for the prosecution is CW-4 the then HC who assisted CW-1 in the raid. He is examined as PW-2 and has deposed that;
a) He was working as HC-6749 in DJ Halli police station since 2016 to 2019 and on 16.10.2017, around 4:00 a.m., when he was on rounds with the then PI 22 S.C. No. 471/2018 Sri.Munikrishna/CW-1 along with other staffs near Kaval Bairasandra, CW-1 received information that around 4 to 5 persons near Shampura, LR Bande, BDA Park Road, preparing themselves to commit docoity of the passers.
b) Immediately, CW-1 secured the presence of panchas at Kaval Bairasandra at 4:20 a.m. CW-1 briefed them the information. They agreed to become panchas to the raid.
c) So, went to the spot and stopped the vehicle at a distance around 100 meters, CW-1 sent CW-5 to go to the spot and get the information confirmed and to give signal by switching on the mobile torch.
d) CW-5 gave signal by switching on the mobile torch. Immediately, CW-1 along with them covered the suspects, but 2 suspects were escaped from the spot over a dio bike to whom CWs-5 and 6 chased but, they could not succeed. They could catch 3 persons.
e) The eqnuiry revealed that the suspect caught hold by CWs-1 and 8 is Afroz, CW-7 caught hold Shabbir and he caught hold Sharukh.
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S.C. No. 471/2018
f) When the above suspects were subjected to body search, there were a knife each with Afroz and Shabbir and a wooden club with Sharuk. There was a Hero Honda Glammer motor cycle also in the spot and its registration number is KA-03 HF-7396.
g) CW-1 conducted the mahazar and seized the above properties. They brought the accused persons and properties in a private vehicle to the station. CW-1 produced the accused persons and the properties before ASI, Sri.Govindaiah/CW-9.
h) He can identify the above accused persons if he sees them again and he has identified the accused specifically with their names.
i) He has deposed that he can identify the above properties if he sees them again. The properties at MOs-1 to 3 are the said properties and he identified them.
j) The two wheeler appearing in the photo at Ex.P-3 is the above two wheeler and in the course of investigation, he gave statement before CW-9.
26. In his cross examination for the accused he has denied that;
24
S.C. No. 471/2018
a) On that day, he came to the station at around 10:00 p.m. for night rounds.
b) He does not know the mode of information, but CW-1 told that he received the information.
c) They were on night rounds in the Department jeep bearing No.KA-02 G-1554.
d) He cannot say the registration number of Dio two wheeler, on which, the two suspects were escaped.
e) He has denied that neither himself nor CW-1 visited the spot, caught hold the accused persons with properties.
f) He does not know the names, ages and the addresses of the panchas.
g) To the question that the properties like MOs-1 to 3 are easily available in the open market, he has answered that the said properties were seized from the possession of the accused persons.
h) The wooden club at MO-3 may be of bamboos.
i) He has denied that,
(i) All the properties and the papers are prepared conveniently in the station.
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S.C. No. 471/2018
(ii) The accused were brought to the station a week before and a false case is registered against them.
j) He does not know the type of dresses worn by the accused. They worn pants and shirts, but he does not know the colour.
k) He has denied that though there is no nexus between the accused persons and the present crime, he came and gave false evidence.
27. So, CW-4 also deposed supporting the oral evidence of CW-1 and thereby the case of the prosecution. But, with regard to the place where the panchas were secured the same contradiction observed in the evidence of CW-1 and the suggestions put forth on behalf of prosecution too CWs-2 and 3 also finds place in the evidence of CW-4. However, nothing has been elicited in the cross examination of CW-4 as well, on behalf of the accused to discard the oral evidence of CW-4.
28. The last witness examined for the prosecution is CW-9 the then ASI who registered the case and did the initial investigation, he is examined as PW-3 and has deposed that;
26
S.C. No. 471/2018
a) He was working as ASI in DJ Halli police station since 2016 to 2019 and on 15.10.2017, he was on night duty and in-charge of SHO. By then around 6:30 a.m., on 16.10.2017, CW-1 along with the staffs i.e., Sri.Kodanda/CW-4, Sri.Ranganatha/CW-5 Sri.Yogananda/CW-6 and Imran Khan Suhail/CW-8 came to the station.
b) CW-1 produced before him A-1 to A-3 Afroz, Shabbir and Sharukh respectively with two knives and a wooden club as well as two wheeler i.e., Hero Honda Glammer, red black colour bearing registration No.KA-03 HF-7396.
c) CW-1 also produced the mahazar at Ex.P-1 along with his report at Ex.P-2.
d) The properties at MOs-1 to 3 are the said properties and the motor cycle appearing in the photo at Ex.P-3 is the said motor cycle.
e) Based on the report of CW-1 at Ex.P-2, he registered the case in Crime No.319/2017 for the offences under Sections 399 and 402 of IPC and prepared the FIR at 27 S.C. No. 471/2018 Ex.P-4, wherein his signature is Ex.P-4(a) and in Ex.P-2, his signature is Ex.P-2(b).
f) He sent the FIR at Ex.P-4 to the jurisdictional Magistrate and copies thereof to his higher officers.
g) He mentioned the properties to PF.No.117/2017 at Ex.P-5, wherein his signature is Ex.P-5(a) and he submitted the said PF before the jurisdictional Magistrate and obtained the permission to retain the properties.
h) He subjected A-1 to A-3 to arrest procedures, recorded their voluntary statements, on compliance of the mandates of arrest procedures, he produced A-1 to A-3 before jurisdictional Magistrate under remand warrant.
i) Thereafter, he recorded the further statements of the panchas and the staffs accompanied CW-1 to the raid i.e., CWs-2 to 8.
j) Since, he had been on leave from 20.11.2017, he handed over the case file to CW-1 for further investigation.
29. In his cross examination for the accused he has denied that;
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S.C. No. 471/2018
a) CW-1 did not produce either the complaint or the mahazar or the properties or the accused persons before him.
b) The accused persons did not give any voluntary statements before him and CWs-2 and 3 did not give statement before him.
c) None of the staff gave any statement before him.
d) Though there is no nexus between the accused persons and the present crime, he gave false evidence.
e) He has also deposed that he cannot say who is the registered owner of the two wheeler appearing in the photo at Ex.P-3.
30. So, CW-9 also deposed supporting the prosecution with regard to the initial investigation he has done and nothing has been elicited in his cross examination also on behalf of the accused to dis believe his oral evidence.
31. However, it is pertinent to note that there is no evidence on record with regard to securing the presence of A-4 and A-5 and the only witnesses deposed supporting the prosecution are CWs-1 and 4 amongst whom CW-1 is 29 S.C. No. 471/2018 the complainant, the IO who did the matierial investigation of the case on hand and he is none other than the then PI of the complainant police station and the higher officer of CW-4.
32. For the dismay of the prosecution, both CWs-2 and 3 the panchas to the raid who are the material witnesses turned completely hostile to the prosecution and thus there is no corroborative piece of evidence from the mouth of an independent witness in support of the prosecution. Therefore, the prosecution has failed to bring home the guilt of A-1 to A-3 and A-5 beyond all shadow of doubts for the offences alleged. Accordingly, these points are answered in negative.
33. POINT No.3:- In view of the findings to above points and for reasons discussed above, this Court proceeds to pass following order.
ORDER Acting Under Section 235(1) of Cr.P.C., A-1 to A-3 and A-5 are hereby acquitted for the offences punishable under Sections 402 and 399 read with Section 34 of IPC.
The bail bonds and the surety bonds if any executed by and on behalf of A-1 to A-3 30 S.C. No. 471/2018 and A-5 shall be canceled after lapse of appeal period.
MOs-1 to 3 being worthless are ordered to be destroyed after the appeal period.
The order of release of Hero Honda Glammer red colour motor cycle bearing registration No.KA-03 HF-9396 passed by the trial Court is confirmed.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 21st day of December, 2021).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE PROSECUTION:-
PW.1 Muni Krishna
PW.2 Kodanda
PW.3 Govindaiah
PW.4 Vikram
PW.5 Mani.
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION :-
Ex.P-1 Spot and Seizure Mahazar
Ex.P-1(a) Signature of PW-1
Ex.P-1(b) Signature of PW-4
Ex.P-1(c) Signature of PW-5
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S.C. No. 471/2018
Ex.P-1(d) Signature of CW-5
Ex.P-2 Complaint
Ex.P-2(a) Signature of PW-1
Ex.P-2(b) Signature of PW-3
Ex.P-3 Photo of motor cycle
Ex.P-4 FIR
Ex.P-4(a) Signature of PW-3
Ex.P-5 PF.No.117/2017
Ex.P-5(a) Signature of PW-3
Ex.P-6 Portion of statement of PW-4
Ex.P-7 Portion of statement of PW-5
LIST OF DOCUMENTS EXHIBITED FOR DEFENCE :-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO-1 : One feet knife with iron handle
MO-1(a) : Chit over cotton cover wherein MO-1 is kept
MO-1(b) : Signature of PW-1 over MO-1(a)
MO-1(c) : Signature of PW-4
MO-1(d) : Signature of PW-5
MO-2 : One feet knife with iron handle
MO-2(a) : Chit over cotton cover wherein MO-2 is kept
MO-2(b) : Signature of PW-1 over MO-2(a)
MO-2(c) : Signature of PW-4
MO-2(d) : Signature of PW-5
MO-3 : Wooden club
MO-3(a) : Chit over cotton cover wherein MO-3 is kept
MO-3(b) : Signature of PW-1 over MO-3(a)
MO-3(c) : Signature of PW-4
MO-3(d) : Signature of PW-5
32
S.C. No. 471/2018
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru. 33 S.C. No. 471/2018 The accused Nos.1 to 3 and 5 and their respective counsels are present.
The Judgment is
pronounced in the open
Court (vide separate Order).
ORDER
Acting Under Section
235(1) of Cr.P.C., A-1 to A-3
and A-5 are hereby acquitted
for the offences punishable
under Sections 402 and 399
read with Section 34 of IPC.
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S.C. No. 471/2018
The bail bonds and the
surety bonds if any executed by
and on behalf of A-1 to A-3 and
A-5 shall be canceled after
lapse of appeal period.
MOs-1 to 3 being
worthless are ordered to be
destroyed after the appeal
period.
The order of release of
Hero Honda Glammer red
colour motor cycle bearing
registration No.KA-03 HF-9396
passed by the trial Court is
confirmed.
LXVI Addl.CC & SJ,
Bengaluru