Bangalore District Court
The State By vs Swamy @ Kumar S/O Manjappa on 13 September, 2022
KABC030827132018
IN THE COURT OF VII ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE, BENGALURU.
Dated this the 13th day of September, 2022.
Present : Sri.Umesha H.K. B.A, LL.B.
VII Addl.C.M.M., Bengaluru.
C.C.No.30402/2018
Complainant : The State by
Amruthahalli Police Station.
(By Assistant Public Prosecutor)
V/s
Accused : Swamy @ Kumar S/o Manjappa,
31 years, R/at Hunseghatta Village,
Amruthapu HObli, Tarikere Taluk,
Neralekere Post,
Chikkamagalur District.
(By Sri.B.Govindraja, Advocate)
Date of occurrence of offence : 12.09.2018
Date of report of offence : 14.05.2018
Name of the Complainant : Sri.Suresh G
CC No. 30402 /2018
2
Date of commencement of : 07.01.2020.
recording evidence
Date of closing of evidence : 22.12.2021
Offences complained of : U/s 457, 380 IPC.
Opinion of the Judge : Accused
found not guilty.
JUDGMENT
CW12 P.S.I. of Amruthahalli Police Station has filed charge sheet against the accused for the offences punishable U/s 457, 380 IPC.
2. Brief case of the prosecution is as under :
It is alleged in the chargesheet in the midnight 10.05.2018 in between 23.30 hours to 14.05.2018 4.10 hours in the midnight within the jurisdiction of Amruthahalli Police Station, Hebbala, Kempapura Cauvery Layout, 1st Main Road, at house No.30, accused broken the lock which was put to grill and door and illegally tresspassed by lurking house tresspass and stolen the CC No. 30402 /2018 3 golden ornaments and silver articles totally worth of Rs.1,50,000/ and thereby accused committed the alleged offences U/s 457, 380 I.P.C.
3. Upon the written information given by the Complainant Crime was registered in Crime No.88/2018, dated 14.05.2018 and thereafter Investigating Officer inconnection with the Crime arrested the accused and produced before the Court on 20.08.2018, accused was released on bail on 21.08.2018. Thereafter, investigation was taken up. After the completion of the investigation, the chargesheet was submitted against the accused for the aforementioned offences.
4. This Court by perusing the chargesheet materials acting U/s 190 (1) (b) of Cr.P.C, has taken cognizance for the offences U/s 457, 380 of I.P.C and registered the case as CC and issued summons to the accused.
CC No. 30402 /2018 4
5. In pursuance of the summons accused has appeared and he is on Court bail. The prosecution papers supplied to accused as required U/s 207 of Cr.P.C. After hearing, the charge was framed on 27.06.2019 against the accused for the offences punishable U/s 457, 380 of IPC to which he pleaded not guilty and claims to be tried.
6. The prosecution has examined P.W.1 to 6 out of 12 witnesses, CW2, 3, 6, 8 and 9 were given up. The prosecution in support of his oral evidence has got marked Ex.P1 to Ex.P9 on its behalf. On the closure, accused has been examined under Sec. 313 Cr.P.C. for the incriminating circumstances appeared against him and he submits no oral or documentary evidence on his behalf.
7. Heard the arguments on both the sides. Perused the documents placed on record.
CC No. 30402 /2018 5
8. The points that arise for consideration are :
1. Whether the prosecution has proved beyond all reasonable doubt that accused has committed the offences U/s 457, 380 of I.P.C ?
2. What order ?
9. The above points are answered as under :
Point No.1: In the Negative. Point No.2: As per final order for the following :
REASONS
10. Point No.1 : It is the case of Prosecution that during the midnight by lurking the house tresspassed by break open the lock and stolen gold and silver articles from the house of CW1 and thereby accused committed the offences as alleged.
11. The Ld.Sr.APP for the State has vehmently argued PW1 who is the Complainant and PW2 who is the seizure mahazar witness and PW3 who is the I.O and PW 4 who is also seizure mahazar witness. PW5 who is the CC No. 30402 /2018 6 Partial Investigation Officer and PW6 who is the police official have completely supported the case of Prosecution and stated before the Court the manner in which the accused has committed the offences. So, the oral evidence coupled with documentary evidence placed by prosecution are sufficient to convict the accused and the prosecution has proved the seizure of golden articles. So, the prosecution has proved the guilt of accused beyond all reasonable doubt and prays to convict the accused by imposing maximum sentence.
12. On the other hand the Ld.counsel for the accused has vehemently argued that the PW1 to 6 have supported the case of Prosecution their evidence is not enough to convict the accused because there are so many contradictions and omissions are available in their evidence. The prosecution has not proved the seizure of alleged articles the prosecution only based on the voluntary statement of accused fixed the accused in this CC No. 30402 /2018 7 crime and he has not at all committed any such offence as alleged by the prosecution. The evidence placed by prosecution creates doubt with regard to involvement of accused in the present case. Hence by giving benefit of doubt he prays to acquit the accused.
13. That in a case of this nature there will be no Eyewitness and Prosecution is required to prove its case through circumstantial witnesses and evidence to connect the accused in the Crime. In this case Prosecution is mainly relying upon the voluntary statement of accused alleged to have been given by him. In order to connect the accused person with the above offence, Prosecution is required to prove the recoveries alleged to have been made on the basis of alleged confession and from the accused and the prosecution is required to prove alleged seizure mahazar.
CC No. 30402 /2018 8
14. In the light of above principles, let me discuss whether the prosecution is able to prove the guilt of the accused. The prosecution is mainly relying upon the evidence. PW1 who is the Complainant. PW1 has deposed before the Court in the year 2015 in the month of May they went to Andhrapradesh after two days they returned to Bengaluru at about 4.00 a.m when he reached his house he came to know the door was opened and the golden ornaments which were kept in the locker were stolen and thereafter he lodged the Complaint as per Ex.P 1 and police have inspected the spot and he signed Ex.P2 in his house. He further deposed after one and half months, police have summoned him to Police Station and shown the accused and the golden articles and thereafter he taken the said items for his interim custody and he identified the said articles in Ex.P3 and 4 photographs. He identified the accused before the Court.
CC No. 30402 /2018 9
15. He was thorougly crossexamined by Ld.counsel for accused. During the crossexamination he has stated he has not informed about theft of articles to his neighbourers and he has not written specifically in his complaint which are the articles were stolen. He further stated since police have shown accused in the police station he identified him and he came to know about accused and he further deposed he has not mentioned the design of articles in his complaint etc.
16. PW2 who is seizure mahazar witness has turned hostile to the prosecution. Except admitting the signature in Ex.P5 he has not stated anything about the seizure of alleged iron rod. Even during the course of cross examination by Ld.Sr.APP he has not supported the case.
17. PW4 who is also seizure mahazar witness has supported the case of prosecution and stated in the month of August, 2018 police summoned him as Panch witness and panchanama was drawn in the morning between 10 to CC No. 30402 /2018 10 11.00 a.m. as per Ex.P6 and he signed the same and he further deposed in the house of CW6. Police have seized the Mangalaya chain and other articles. During the cross examination he admitted police have not given any notice to him.
18. PW3, 5 and 6 are the police officials. PW6 has deposed before the Court on 19.08.2018, CW12 has appointed him along with Cw9 to trace out the accused and the material objects in this Crime. At about 7.00 p.m. he received information from informant about moving of a person by holding iron rod and moving suspiciously near Coffee Board Lyt gate. He further deposed they arrested him and on enquiry they came to know the name of accused as Swamy @ Kumar and by confirming his involvement in this case they brought him to the police station and produced him before CW12. He identified the accused and he further identified the accused before the Court, he was thoroughly crossexamined by the CC No. 30402 /2018 11 Ld.counsel for accused and during the course of cross examination he has denied the material suggestions of Ld.counsel for accused.
19. PW3 and 5 are the Investigation Officers. PW5 deposed that on 14.05.2015 when he was discharging duty as S.H.O at about 7.30 a.m. CW1 lodged the written complaint and after receiving the same he registered the Crime and forwarded FIR to the Court and to his higher officers. On the same day he handed over further investigation to CW12 i.e., PW3.
20. PW3 deposed before the Court that on 14.05.2018 he taken up the further investigation in this case by receiving case papers, file from CW11 and on the same day he visited the spot and drawn the mahazar as per Ex.P2 and 3. He further deposed on the same day he recorded further statement of Complainant on 19.08.2018. CW9 and 10 have produced the accused along with report before him, thereafter he recorded the voluntary statement CC No. 30402 /2018 12 of accused. In the voluntary statement accused revealed that he will show iron rod which is used for Crime and based on said voluntary statement he drawn mahazar in the presence of CW4 and 5 and seized iron road. He further deposed he recorded statement of CW4 and 5. He further deposed on the basis of voluntary statement of accused on 20.08.2018 in Crime No.88/2018 he seized the articles in the presence of CW7 and 8 from the house of CW6 and prepared list and submitted to the Court. He further deposed on the same day Complainant has identified the articles and given statement, thereafter by taking the Indemnity bond released the said articles in favour of accused. He further deposed on 12.09.2018 by completing the investigation he has filed chargesheet.
21. PW3, 5 and 6 have thoroughly crossexamined by Ld.counsel for accused. During the crossexamination PW3 admitted he has not collected the bills and he has not summoned the CW1 Complainant when accused was CC No. 30402 /2018 13 produced by CW9 and 10 before him. Further, PW5 has admitted there is no specific mention regarding articles which were stolen in Ex.P1 and further admitted the total amount of said articles is also not mentioned in Ex.P1 Complaint.
22. As per the version of I.O, he has not summoned the Complainant for identification of accused. But CW 1/PW1 stated on summoning he went to police station and identified the accused. Admittedly, PW2 who is the Seizure mahazar witness has completely turned hostile and prosecution failed to prove the seizure of alleged iron rod on the basis of alleged voluntary statement of accused. Though PW4 supported the case of prosecution regarding recovery of articles from the house of CW6. His evidence is not trustworthy and not believable one. Because he has admitted police have not issued notice. Even otherwise he has not stated who were present on that day whether accused has shown the house of CW6 etc., In the absence CC No. 30402 /2018 14 of such details and evidence it creates doubt regarding the presence of PW4 at the time of alleged recovery on the basis of alleged confession statement of accused. Admittedly, other seizure mahazar witness CW8 is not examined and CW6 from whom the articles were seized is also not examined.
23. On perusal of entire evidence, admittedly Prosecution failed to prove the alleged recoveries. The only piece of circumstantial evidence connecting the accused person with the present Crime is his disclosure statement recorded in the police custody by Investigation Officer. The said disclosure since being recorded in police custody by I.O., it is hit by Sec.25 and 26 of Indian Evidence Act. Whereby no reliance can be placed upon them. So, as to presume the guilt of the accused. Admittedly, Prosecution has not examined any other witness to prove alleged recovery and even alleged voluntary statement is also not marked except the evidence of I.O to prove the CC No. 30402 /2018 15 seizure mahazar and alleged recovery. There is nothing on record to believe the version of prosecution. Prosecution has miserably failed to prove the contents of alleged voluntary statement and alleged seizure mahazar. So, in the absence of such material evidence the said alleged recovery cannot be accepted. Therefore, based on the evidence available on record this Court is of the opinion that the prosecution, has failed to prove the guilt of the accused beyond all reasonable doubt. Thus by extending the benefit of doubt in favour of accused. I answer the above point in the Negative.
24. Point No.2 : As discussed above the prosecution has failed to bring home the guilt of the accused for the offences punishable U/s 457, 380 of IPC. As the accused denied the entire case of prosecution, the burden is on the prosecution to prove its case. But on perusal of oral and documentary evidence, the prosecution has failed CC No. 30402 /2018 16 to prove its case. Hence this Court proceed to pass the following :
ORDER Acting under section 248(1) of Cr.P.C.
the accused is hereby acquitted for the
offences punishable U/s 457, 380 of
IPC.
Bail bonds and surety shall stand
cancelled.
The Interim custody of Gold ornaments to the Complainant is hereby made absolute, under PF.No.70/2018 Dated :
20.08.2018.
The Iron rod is ordered to be destroyed as it is worthless property after the appeal period is over.
(Dictated to the Stenographer, transcript computerized by him, revised corrected and then pronounced by me in the open Court on this 13 th day of September, 2022.) (UMESHA H.K) VII Addl.C.M.M., Bengaluru.
CC No. 30402 /2018 17 ANNEXURES List of witnesses examined for the Complainant :
PW.1 : Suresh.
PW.2 : Shatrugansingh, PW.3 : Ravi.A. PW.4 : Venkateshmurthy.
PW.5 : Chandregowda.
PW.6 : Karbasappa.
List of documents marked for the complainant :
Ex.P.1 : Complaint, Ex.P.2 : Spot Mahazar, Ex.P.3 & 4 : Photos, Ex.P.5 : Seizure mahazar Ex.P.6 : Mahazar, Ex.P.7 : Indemnity bond, Ex.P.8 : F.I.R, Ex.P.9 : Statement of PW6. List of witnesses examined for the Accused : Nil. List of documents exhibited for the Accused : Nil.
List of Material Object marked for prosecution : Nil.
VII Addl.C.M.M.,Bengaluru. CC No. 30402 /2018 18