Bangalore District Court
State By: Police Inspector vs Arun Kumar @ Arun S/O on 2 April, 2018
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.A.VIJAYAN., B.A. (LAW), LLM,
LXVI Addl. City Civil & Sessions Judge,
Bengaluru.
I/c LXV Addl. City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 2nd DAY OF April, 2018
S C No. 1039/2017
COMPLAINANT: State by: Police Inspector,
Kengeri Police Station,
Bengaluru.
(Reptd. by Public Prosecutor)
/ Vs /
ACCUSED: 1. Arun Kumar @ Arun S/o
H.T.Rajanna, Aged about 28
years, R/at No.1058, 3rd
Cross, NGOS Colony,
Kamalanagara, Bengaluru.
Date of Commencement of 05.05.2017
offences
Date of report of offences 05.05.2017
Name of complainant Sri.Y.Giriraj,
Inspector of Police
Date of recording of 24.01.2018
evidence
2 S.C.No.1039/2017
Date of closing of evidence 31.1.2018
Offence complained of U/s. 399 and 402 of IPC
Opinion of the judge Acquittal
****
JUDGMENT
This is a charge sheet filed by the Kengeri police station, as against accused, for the offences punishable u/Sec.399 and 402 of IPC.
2. Brief facts of prosecution case are as follows:-
The complainant Sri.Giriraj J.Y is the police Inspector, Kengeri Police station. He states that, on 5.5.2017 at about 7.15pm, when he was discharing duty at Kengeri Police station, he received credible information that within the jurisdiction of Kengeri police station, near Bale thota junction, Sridhar Gudda, Kodipalya, 6 - 7 persons had gathered armed with deadly weapons and they were making preparations to commit dacoity by snatching cash, mobile phone and gold ornaments of the public passing by. The complainant states that, he immediately summoned the two independent witnesses and requested them 3 S.C.No.1039/2017 to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparation to commit dacoity.
The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking among themselves that, they would commit dacoity by robbing of their cash, gold and mobile phones of general public. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of 3 persons and four of them ran away. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity of general public. The complainant further states that, he seized five wooden clubs, 4 S.C.No.1039/2017 from these accused persons and in the presence of two pancahs i.e. CW2 Nandish and CW3 Mahesh conducted the mahazar. Thereafter, he came to the police station along with accused and lodged the complaint before CW11 Mallikarjuna, PSI.
3. Learned LVI ACMM, Bangalore, took cognizance of the offences punishable u/sec.399 and 402 of IPC. After committal, the case is numbered as S.C.No.1039/2017 and then made over to this court, for disposal in accordance with law. After hearing, charges were framed and explained to A1 for the offences punishable u/Sec.399 and 402 of IPC. However, A1 pleaded not guilty of the charges leveled against him and he claimed to be tried. .
4. The prosecution in support of its contention had totally cited 9 witnesses i.e. CW1 to CW11. However, the prosecution was able to secure and examine only two witnesses i.e. PW1 and PW2 and documents at Ex.P.1 to Ex.P.3 and M.O.1 to M.O.5 were marked. The prosecution was 5 S.C.No.1039/2017 able to secure and examine only CW1 and CW11. Even though, sufficient opportunity was given, prosecution was unable to secure CW2 and CW3. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. Learned PP has given up CW4 to CW10.
5. The accused was examined u/Sec. 313 Cr.P.C. The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against them. The accused not chosen to lead any defense evidence on their behalf.
6. Heard argument from both sides.
7. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that, on 5.5.2017, at about 7.15pm. within the limits of Kengeri P.S towards Bale thota junction, Sridhar Gudda, Kodipalya, Al along with other accused persons holding deadly weapons i.e, five wooden clubs, were making preparations to commit dacoity of general public and to rob the valuables from them, and thereby 6 S.C.No.1039/2017 committed an offence punishable u/Sec. 399 of IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place, A1 along with other accused persons, had assembled there to commit dacoity by robbing the valuables from general public and thereby committed an offence p/u/Sec. 402 of IPC?
3. What Order?
8. My answer to the above points are:
POINT NO.1 : In the Negative POINT NO.2 : In the Negative POINT NO.3 : As per the final order for the following:
REASONS
9. POINT NOs.1 AND 2 : Since these points are interconnected with each other, for the sake of convenience, I would like to take these points together for common consideration.
10. The complainant has been examined as PW1. He states that, He states that, on 5.5.2017 at about 7.15pm, when he was discharing duty at Kengeri Police station, he received 7 S.C.No.1039/2017 credible information that within the jurisdiction of Kengeri police station, near Bale thota junction, Sridhar Gudda, Kodipalya, 6 - 7 persons had gathered armed with deadly weapons and they were making preparations to commit dacoity by snatching cash, mobile phone and gold ornaments of the public passing by. The complainant states that, he immediately summoned the two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparation to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking among themselves that, they would commit dacoity by robbing of their cash, gold and mobile phones of general public. After confirming this aspect, the complainant along with his staff 8 S.C.No.1039/2017 surrounded the accused and they were able to catch hold of 3 persons and four of them ran away. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity of general public. The complainant further states that, he seized five wooden clubs, from these accused persons and in the presence of two pancahs i.e. CW2 Nandish and CW3 Mahesh conducted the mahazar. Thereafter, he came to the police station along with accused and lodged the complaint before CW11 Mallikarjuna, PSI.
11. PW1 has elaborately deposed of having arrested the accused persons and for having seized the deadly weapons from the possession of accused persons. He further deposed that, in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.1. He also identifies the deadly weapons seized i.e. 9 S.C.No.1039/2017 five wooden clubs and accordingly, they were marked as M.O.1 to M.O.5. He states that, he has conducted panchanama as per Ex.P.1 in the presence of CW2 and CW3. He identifies the accused person. PW1 has been cross examined by the leaned advocate for accused. Further on careful perusal of cross examination, PW1 in his cross examination denies the suggestion that, though he has not at all received any information, he deposes falsely before the court. PW1 admits the suggestion that, he has not caused any notice to the panch witnesses. PW1 also denies the suggestion that, he has cooked up a false complaint as per Ex.P.2 and planted M.O.1 to M.O.5 for the purpose of this case. PW1 denies the suggestion that even though accused have not at all committed the alleged offences, he lodged false complaint against them. PW1 denies the suggestion that accused were not at all present at the scene of offence at the material point of time and he took custody of accused, from their respective house and then registered false case against them.
10 S.C.No.1039/2017
12. PW2 Mallikarjuna, the then PI of Kengeri PS, is the I.O, who has conducted the investigation. He states that, on 5.5.2017, while he was discharging duty as SHO in the police station, PW1 appeared before him and lodged a complaint at Ex.P.2 before and also produced M.O.1 to M.O.5 along with accused persons. Accordingly he registered the case and lodged FIR to the court. He further states that, later on he recorded the statements of CW2 Nandish and CW3 Mahesha. PW2 further states that, thereafter he has recorded the voluntary statements of accused persons. He further states that, he recorded the statements of official witnesses CW4 to CW10. After completing the investigation, he has filed the charge sheet. He identifies the accused before the court.
13. The prosecution in order to prove its case, has totally cited 11 witnesses i.e. CW1 to CW11. However, the prosecution was able to summon and examine only two witnesses i.e. PW1 and PW2. Even though, sufficient opportunity was given and coercive steps were taken, the 11 S.C.No.1039/2017 prosecution was unable secure the material witnesses i.e mahazar witnesses CW2 and CW3. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The learned PP has given up CW4 to CW10.
14 It is the specific case of prosecution that complainant i.e. I.O had received credible information that the accused persons had assembled at the spot with an intention to commit dacoity, they had assembled with deadly weapons like five wooden clubs and they were making preparation to commit dacoity. PW1 has specifically stated that, upon receipt of credible information, he immediately summoned two independent panch witnesses i.e. CW2 Nandish and CW3 Mahesh. He requested them to act as panchas, upon which the pancahs have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that, they stopped their vehicle at some distance from the spot and observed the accused persons. I.O was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the 12 S.C.No.1039/2017 complainant along with staff have surrounded the accused and they were able to apprehend A1 to A3. Meanwhile, A4 to A7 managed to escape from the spot. The complainant has further stated that, from the possession of the accused, he has recovered the deadly weapons, used for committing dacoity. He states that, in the presence of 2 independent panchas i.e., CW2 and CW3, he has seized the articles i.e., five wooden clubs. He has conducted the mahazar as per Ex.P.1 in the presence of those two material and independent mahazar witnesses. The burden is very heavy upon the prosecution to prove the mahazar as per Ex.P.1, to prove that these Material objects were seized from the accused persons who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized five wooden clubs. In order to prove this offence, evidence of PW1 and PW2 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
13 S.C.No.1039/2017
15. It is pertinent to note that, even though sufficient opportunity was given and coercive steps were taken to secure CW2 and CW3, the prosecution was unable to secure them. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The only evidence on record is that of the complainant i.e. PW1, who was PI attached to the Kengeri police station. Evidence of PW1 is corroborated by the evidence of PW2, who has conducted the investigation. Before adverting to appreciation of evidence of aforesaid witnesses, it is necessary to state that under Section 399 IPC, preparation to commit dacoity is made punishable.
16. The entire prosecution case rests on the testimonies of PW1 Sri.G.Y.Giriraj who was the member of the raiding party. According to the testimony of this witness, seven persons had assembled at the place of occurrence and were found in possession deadly weapons. That being so, this Court has to determine as to whether the accused persons can be convicted for the offences under Sections 399 and 402 IPC and whether the ingredients of the said sections have been proved 14 S.C.No.1039/2017 by the prosecution or not. However before this Court can do so, it will be necessary to refer to the case law on the subject.
17. I would like to rely upon the decision of the Hon'ble supreme court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502 18 This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein it was observed:-
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."15 S.C.No.1039/2017
19. The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of seven appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
20. It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity.
21. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 16 S.C.No.1039/2017 and 402 IPC. As discussed herein above, prosecution has examined one member of the raiding party, who have deposed on the lines of the case of prosecution but none of the aforesaid witness has said even a single word that accused persons were making preparation to commit dacoity. The witness is referring that after seeing 5 persons at Bale Thota junction Sridhar gudda, Kodihalli, PW1 gave the signal and when the complainant along with staff surrounded, the accused persons tried to run away in different directions. Out of them four persons managed to run away but four were apprehended. The deadly weapons like M.O. 1 to 5 i.e. five wooden clubs is shown to have been recovered from the accused persons. This is the only case of prosecution, which in my opinion is not sufficient to convict the accused person for the offences as indicated.
22. The prosecution was under obligation to establish that the assembling of the accused persons is for preparation of dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the 17 S.C.No.1039/2017 dacoity and they were preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found at vacant place, Bale Thota Junction, Sridhar Gudda, Kodihalli, Bengaluru it cannot be held that they had assembled there for preparation to commit dacoity.
23. It is true that so far as the offence u/s 402 IPC is concerned, it may be mentioned that this section can be applied to mere assembling without proof of other preparation. The offence u/s 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case it is not in dispute that, at the spot only three persons are shown to have been apprehended. Four accused person has been arrested subsequently. According to the prosecution, aforesaid four persons managed to run away from the spot. This is unbelievable. The raiding party was having around 10 police officials and some of them were having arms. In these circumstances, how, four of the accused 18 S.C.No.1039/2017 managed to run away. There is nothing on record which could show that efforts were made to chase him or to apprehend him.
24. Further, during the evidence of prosecution witnesses i.e. members of raiding party, it has come on record that there was complete darkness. That being so, how the members of raiding party could locate the position of the accused persons, when admittedly members of raiding party were positioned in different directions from each other and there was complete darkness. This all has created a doubt about the presence of five or more persons at the spot which is mandatory to bring the case within the ambit of section 402 IPC, as admittedly on the spot three persons were apprehended. It has not been explained that how four accused persons namely Hanumesh, Aruna, Kirana and Madhu was connected with the present case when they ran away from the spot and there was a complete darkness. On what basis they were identified as the culprits, remained unexplained. 19 S.C.No.1039/2017
25. Another important aspect to be noted is that, the prosecution has failed to prove that, there was any overt act on the part of any of the accused persons which may lead to the inference that, they had any intention to commit dacoity or they were planning to commit dacoity over there. It is a matter of common knowledge that, any person who is shown to have in possession of deadly weapons would definitely resist his apprehension by police officials under the fear of being booked in criminal case. In this background, the story as set up by the prosecution does not appeal reasoning and is liable to be rejected.
26. Moreover, record would indicate that, presence of public witness could have been secured by the complainant who was heading the raiding party. The incident is shown to have taken place at about 7.15pm, Bale thota junction, Sridhar Gudda, Bengaluru. Moreover, record would indicate that said place is a public place. This shows that with a little effort , public witnesses could have been made to join the investigation. However, the prosecution has not secured any 20 S.C.No.1039/2017 public witnesses from the said locality/spot of incident. Even the mahazar witnesses, have been secured from different places.
27. In the present case prosecution tried to bring home guilt of the accused persons by relying upon the versions of police officials who were member of the raiding party and the I.O who has conducted investigation. A bare perusal of their version clearly reflects the same to be of stereo type. Hence, I am of the opinion that, it will be highly unsafe to rely upon their version.
28. In the present case, prosecution tried to bring home the guilt of the accused persons by relying upon the testimonies of the police officials who were member of the raiding party. His testimony is of stereo type as discussed herein above, which should have been supported by some independent witness, which is failing in the present case. The manner in which stereo type deposition has been given without any corroboration or support from any other independent witness is sufficient to disbelieve their version even in respect of alleged recovery of 21 S.C.No.1039/2017 deadly weapons from the possession of accused persons. The entire proceedings carried out by the raiding party are under the cloud and it would not be safe to place reliance upon the quality of the evidence as adduced by the prosecution, therefore, the recovery of deadly weapons pursuant to the said proceedings or incident has also become doubtful. There is no independent corroboration to said recovery also.
29. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has miserably failed to prove the offences against the accused persons beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons. Accordingly, I answer point No.1 and 2 in the 'Negative'.
30. POINT NO.3 : For the above reasons, I proceed to pass the following :
22 S.C.No.1039/2017
ORDER Acting under Sec.235(1) of Cr.P.C., Accused No.1 is acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
The bail bonds and surety bonds of Accused No.1 shall continue further six months.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.5 in connection with the split up case registered against absconding accused.
*** (Directly dictated to the stenographer on computer, corrected and then pronounced by me in the Open Court on this 2nd day of April, 2018) (A.VIJAYAN) I/C LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW-1 Sri.G.Y.Giriraj
PW-2 Sri.M.Mallikarjuna
23 S.C.No.1039/2017
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P.1 Mahazar
Ex.P.2 Complaint
Ex.P.3 FIR
LIST OF MATERIAL OBJECTS MARKED
MO-1 Wooden Club
MO-2 Wooden Club
MO-3 Wooden club
MO-4 Wooden club
MO-5 Wooden club
LIST OF WITNESS EXAMINED, DOCUMENTS
AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(A.VIJAYAN)
I/C LXV Addl. City Civil & Sessions Judge, Bengaluru.
24 S.C.No.1039/2017 Dt:2.4.2018 State : PP A1 : Sri. K.P.T For judgment Judgment pronounced in open court, vide separately, ORDER Acting under Sec.235(1) of Cr.P.C.,
Accused No.1 is acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
The bail bonds and surety bonds of Accused No.1 shall continue further six months.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.5 in connection with the split up case registered against absconding accused.
(A.VIJAYAN) I/C LXV Addl. City Civil & Sessions Judge, Bengaluru.25 S.C.No.1039/2017