Bangalore District Court
State Of Karnataka vs 4. Basavaraju on 2 November, 2018
IN THE COURT OF LXII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY (CCH-63).
Dated : This the 02nd day of November, 2018
:Present:
Sri PARAMESHWARA PRASANNA B., B.A., LL.B.,
LXII Addl. City Civil & Sessions Judge,
Bengaluru City.
SESSIONS CASE NO.1106/2011
Complainant :- State of Karnataka
By Jnanabharathi Police Station,
Bengaluru.
[Rep. by : Public Prosecutor]
.V/S.
Accused :- 4. Basavaraju
S/o Kalliramaiah,
Aged about 24 years,
R/at C/o House of Puttaswamy,
Nagadevanahalli,
Bengaluru.
Permanent address :
Doddayyanakatte Palya,
Hebbur Hobli,
Tumkur Taluk and District.
[By : Sri K.R.R., Advocate]
1. Date of commission of : 20.10.2008
offence
2. Date of report of offence : 20.10.2008
3. Date of arrest of the : A.4 arrested on
accused
2
S.C.No.1106/2011
4. Name of the complainant : Dr. K. Ajith
5. Date of commencement : 05.05.2018
of trial
6. Date of closing of : 06.10.2018
prosecution evidence
7. Offences complained of : U/Sec.395 of IPC.
8. Opinion of the Judge : A.4 is acquitted
U/S.235(1) of Cr.P.C.
(PARAMESHWARA PRASANNA B.),
LXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
This case arise out of split up charge sheet submitted by Jnanabharathi Police Station, Bengaluru, against accused No.4 in Crime No.241/2008 for the alleged offences punishable under Sections 395 of IPC.
2. The case of the prosecution in brief, as culled out from the charge sheet is that:-
On 20.10.2008 night at about 10.45 p.m., at Nagarabhavi Second Stage, new Ring Road, near Ravi Gym, Bengaluru, when the complainant - CW.1 - Dr.K. 3 S.C.No.1106/2011 Ajith was proceeding in his Car bearing Reg.No.KA-04-ME- 2122, the accused Nos.1 to 7 who came in a Tata Indica Car bearing Reg.No.KA-42-3388 belonging to accused No.1 intercepted the Car of CW.1 and the accused Nos. 1 to 7 by threatening CW.1 with knife robed one golden neck chain weighing 30 gms, worth Rs.80,000/-, one Motorola mobile phone, one HP pavilion laptop, bank credit and debit cards and cash of Rs.500/- from CW.1 and thereby the accused Nos.1 to 7 have committed the aforesaid offence. That after completion of investigation, Jnanabharathi Police have submitted the charge sheet against accused Nos.1 to 7 for the offences punishable under Section 395 of IPC before the learned III ACMM, Bengaluru.
3. On receipt of charge sheet, the learned III ACMM, Bengaluru, took cognizance of the offences against accused Nos.1 to 7 and case was registered against accused Nos.1 to 7 in C.C.No.289/2009. Since the offence alleged against the accused Nos.1 to 7 is 4 S.C.No.1106/2011 exclusively triable by the Court of Sessions, the learned III ACMM, Bengaluru, as per the order dated 12.03.2009 committed the case against accused Nos.1 to 7 to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, originally the case was registered against accused Nos.1 to 7 in S.C.No.355/2009 and the same was made over to this Court for disposal in accordance with law.
4. That after admitting of the case, the accused No.4 kept absent and could not be secured despite of issuance of NBW, the case against accused No.4 came to be split-up as per the order dated 01.07.2011 passed by this Court in S.C.No.355/2009 and subsequently, on filing of the split-up charge sheet, the case against the accused No.4 has been registered in S.C.No.1106/2011. Thereafter, the accused No.4 was secured and on hearing the prosecution as well as the learned counsel for accused No.4 under Section 227 of Cr.P.C, this Court framed the charge against accused No.4 for the offence 5 S.C.No.1106/2011 punishable under Section 395 of IPC. When the charge was read over and explained to accused No.4, he pleaded not guilty and claims to be tried and as such, the case was posted for trail.
5. That in order to prove its case, out of 17 witnesses cited in the charge sheet, the prosecution got examined only three witnesses as PW.1 to PW.3 and got marked the documents as Ex.P1 to 4. In this case, CW.13 and CW.15 were given up by the prosecution. Since despite of taking coercive steps, CW.2, 4, 5, 6, 7 and 17 have not been secured by the concerned Police, in order to render speedy justice, the prayer made on behalf of prosecution for reissuing further coercive steps against aforesaid witnesses was rejected and the prosecution evidence was taken as closed. Thereafter, the matter was posted for recoding of the statement of accused No.4 under Section 313 of Cr.P.C. The accused No.4 when examined under Section 313 of Cr.P.C., denied the incriminating circumstances appearing in the evidence 6 S.C.No.1106/2011 against them, but he has not led any defence evidence on his behalf.
6. Heard arguments of both the sides.
7. Under the facts and circumstances of the case, the following points arise for consideration of this Court :-
(1) Whether the prosecution proves beyond all reasonable doubt that on 20.10.2008 night at about 10.45 p.m., at Nagarabhavi Second Stage, new Ring Road, near Ravi Gym, when CW.1- Dr.K. Ajith was proceeding in his Car bearing Re.No.KA-40-ME-2122, the accused No.4 along with accused Nos.1 to 3 and 5 to 7 who came in a Tata Indica Car bearing Reg.No.KA-42-3388 waylaid/intercepted CW.1 and they by threatening CW.1 with knife robbed one golden neck chain weighing 30 grams, worth Rs.80,000/- one Motorola mobile phone, one HP pavilion laptop, bank debit and credit card and cash of Rs.500/- from CW.1 and thereby the accused No.4 has committed an offence punishable under Section 395 of IPC?
(2) What Order?
8. My findings on the above points are as follows :-
7
S.C.No.1106/2011 Point No.1 : In the negative;
Point No.2 : As per final order,
for the following :-
REASONS
9. Point No.1 :- That in order to prove the
case of the prosecution, out of 17 witnesses cited in the charge sheet, the prosecution got examined only three witness as PW.1 to PW.3 and got marked the documents as Ex.P.1 to 4.
10. PW.1 - Dharmalingam, the alleged independent witness to Ex.P.1 spot mahazar dated 21.10.2008 has turned hostile and he stated that about 10 years back, Jnanabharathi Police have obtained his signature on Ex.P1 in the Police Station and he does not know the contents of Ex.P1. During the cross-examination by the learned Public Prosecutor, he denied drawing of Ex.P1- spot mahazar at the spot by the Police on showing the spot by CW.1 from 12.45 p.m., to 1.45 p.m., on 21.10.2008.8
S.C.No.1106/2011
11. PW.2 - Dr.K. Ajith, who is the complainant, in his evidence deposed that in the year 2008 he was owning a Car bearing Reg.No.KA-04-ME-2122. He stated that on 20.10.2008 nigh at about 10.15 pm., when he was proceeding in his aforesaid Car from Jnanabharathi towards Nagarabhavi Circle, near Ravi Gym, new Ring Road, 4 to 5 persons who came in Indica Car got stopped his Car and they by brandishing a knife near his neck robbed his golden chain, mobile phone, purse and HP company laptop. He stated that the said dacoits had covered their face with kerchiefs and after robing the aforesaid articles, they assaulted him by hand and by throwing his Car key they sped away in their Car. He stated that thereafter, he went to his house and on the next day he filed Police complaint before Jnanabharathi Police Station regarding the incident as per Ex.P2. He stated that on the date of lodging of the complaint, the Police have drawn spot mahazar as per Ex.P1. He stated that 2 to 3 days after lodging of the complaint, the Police have summoned him to the Police Station and shown him 9 S.C.No.1106/2011 the golden chain, one laptop and mobile belonging to him and the Police have also shown 4 to 5 persons and asked him to identify whether they have committed the dacoity on him. He stated that since the dacoits have covered their face during dacoity, he could not identify the persons shown to him in the Police Station. He stated that he has not seen the accused No.4 earlier and the accused No.4 has not committed the dacoity. He stated that the golden chain marked as MO.2, laptop marked as MO.3 and mobile phone marked as MO.3 in original case i.e., S.C.No.355/2009 belongs to him and he by filing application got them released to his interim custody. During the cross-examination by the learned Public Prosecutor, he denied to have given further statements to the Police as per Ex.P3 and P4. He categorically denied that the accused No.4 along with other accused has committed dacoity.
12. PW.3 - Gangadhara, who was the Police Constable of Jnanabharathi Police Station during the relevant period deposed that on 23.10.2008 CW.17 - 10
S.C.No.1106/2011 Police Inspector, deputed him and other staffs - CW.13, 14, 15 and 16 for tracing out the accused and the stolen articles in this case. Accordingly, he and other staffs were searched for the accused of this case within their jurisdiction and their informant informed them over phone that the accused of this case were present at Mariayappana Palya Main road in a Car. Accordingly, they went there and saw 6-7 male persons and one female standing near the said Car and they surrounded them and when they surrounded them, one person excaped from the spot and they nabbed six male persons and a lady and on enquiry, they revealed their names and addresses and the lady told that her name is Madhulatha and thereafter, they brought them to the Police Station and produced them before CW.17 and in this regrd, CW.16 has give report. He identified accused No.4 and deposed that the accused No.4 was nabbed by him and other staffs on the said date. He further deposed that on 09.11.2008 the Police Inspector-CW.17 appointed him and other staffs CW.13, 14, 15 and 16 for tracing out the 11 S.C.No.1106/2011 accused No.7. He stated that on the said date, he and other staffs nabbed accused No.7 in Kurubarahalli bus Stand and got him produced before CW.17.
13. On considering above evidence led by prosecution, except PW.3, the remaining witnesses examined by the prosecution have not supported the case of the prosecution. From the perusal of the record, it is noticed that as per the judgment dated 09.12.2011 passed by this Court i.e., the then FTC-VIII in S.C.No.355/2009, the co-accused Nos.1 to 3 and 5 to 7 have been acquitted. The complainant-PW.2 himself has categorically denied the presence of accused No.4 during the alleged dacoity. Since PW.2 himself denied the involvement of accused No.4 in the alleged dacoity the evidence of PW.3 is of no consequence. No evidence placed by the prosecution to connect accused No.4 with the alleged recovery mahazar dated 23.10.2008, the Police have seized the golden chain, laptop and empty purse from the house of accused No.1 on the basis of the 12 S.C.No.1106/2011 voluntary statement, but the independent pancha witness to the said recovery mahazar has not been examined by the prosecution and as such, the alleged recovery has not been proved. Nothing was recovered from accused No.4.
14. It is settled law that in criminal case, the prosecution has to prove its case beyond all reasonable doubt on the basis of the acceptable evidence. The Hon'ble Supreme Court in Anil Shamrao Sute and another Vs. State of Mysore, reported in 2013 Criminal Law Journal 2223 (SC) held that "Section 3 of Indian Evidence Act - Appreciation of evidence - Proof of - Suspicion however strong cannot taken the place of proof - Clear and unimpeachable evidence is necessary to convict a person."
15. In the instant case, there is no reliable and credible evidence to show that the accused No.4 has committed the alleged offence. The essential ingredients of Section 395 of IPC are not made out against the 13 S.C.No.1106/2011 accused No.4 and hence, this Court is of the considered opinion that the prosecution has not proved the case against accused No.4 beyond all reasonable doubt and as such, accused No.4 is entitled for acquittal on benefit of doubt. Hence, point No.1 is answered in the negative.
16. It is noticed that as per the judgment dated 09.12.2011 passed by this Court in S.C.No.355/2009, the order dated 05.12.2011 passed regarding release of Mos.1 to 4 & 6 in S.C.No.355/2009 made in favour of PW.7 - Dr.K. Ajith was made absolute.
17. Point No.2 :- In view of the reasons discussed above, I proceed to pass the following:-
ORDER Acting under Section 235 (1) of Cr.P.C, accused No.4 is acquitted in respect of the offences punishable under Section 395 of the Indian Penal Code.
The earlier personal bond and surety bond of the accused No.4 shall be continued for a 14 S.C.No.1106/2011 period of six months from today as a compliance of Section 437(A) of Cr.P.C. (Dictated to the Judgment Writer, transcribed and computerized by him, transcript thereof corrected and then pronounced by me in the open Court this the 02 nd day of November, 2018.) (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.
ANN EXURE List of witnesses examined on behalf of prosecution :-
PW.1 : Sri Dharmalingam, PW.2 : Dr.K. Ajith, PW.3 : Sri Gangadhara.
List of exhibits marked on behalf of prosecution :-
Ex.P1 : Spot mahazar dated 21.10.2008, in original case i.e., S.C.No.355/2009, Ex.P1(a) : Signature of PW.1, Ex.P1(b) : Signature of PW.2, Ex.P2 : Complaint in original case i.e., S.C.No.355/2009, Ex.P2(a) : Signature of PW.2. Ex.P3 & P4 : Further statemtns of PW.2.15
S.C.No.1106/2011 List of material objects marked on behalf of prosecution :-
NIL List of witnesses examined on behalf of defence :-
NIL List of exhibits marked on behalf of defence :-
NIL List of material objects marked on behalf of defence :-
NIL (PARAMESHWARA PRASANNA B.), LXII Addl. City Civil & Sessions Judge, Bengaluru City.