Bangalore District Court
State By K.P.Agrahara Police Station vs No.6 : Thimma @ Thimmappa on 20 April, 2015
IN THE COURT OF LXIII ADDL., CITY CIVIL &
SESSIONS JUDGE, BANGALORE CITY.
(CCH-64)
DATED THIS THE 20th DAY OF APRIL 2015.
PRESENT
SRI.JOSHI VENKATESH, B.A.LL.B,(Spl),
LXIII Addl., City Civil & Sessions Judge,
Bangalore.
Sessions Case No.443 of 2014.
COMPLAINANT : State by K.P.Agrahara Police Station,
Bangalore.
( By Public Prosecutor )
/Vs/
ACCUSED No.6 : Thimma @ Thimmappa,
S/o Late Thimmaiah,
Aged 30 years,
R/at Bheemanahalli Village,
Nagamangala Taluk, Mandya District.
(By Sri.CKN, Advocate)
1. Date of commission of offence : 20.05.2011
2. Date of report of offence : 20.05.2011
3. Arrest of Accused No.6 : 20.05.2011
4. Name of the complainant: Sri. K.B.Swamikumar, P.I.
5. Date of commencement of
Recording the evidence : 03.02.2015
6. Date of closing of evidence : 16.04.2015
7. Offences complained of : U/Sec.399 & 402 of IPC
8. Opinion of the Judge : Accused No.6 found not
guilty
****
2 SC.443 of 2014
JUDGMENT
1. Police Inspector of K.P.Agrahara police station Bangalore, filed charge sheet against accused No.6 and others alleging that they have committed the offences pun.U/Ss.399 & 402 of I P C.
2. Brief facts of the prosecution case are that, on 20.5.2011 at about 8.30 p.m. CW.1 and his staff were on patrolling duty at 6th cross main road, within the limits of K.P.Agrahara police station in their official vehicle. At 8.40 p.m. CW.1 received credible information stating that in the open space near at 8th Cross compound, Chinnathambi Circle Agrahara Magadi road Bangalore, accused persons were assembled with deadly weapons and making preparation to commit the offence of dacoity on Ganesh, Naga and Krishna who committed murder of Diamond Babu and Munna. Immediately CW.1 secured panchas and his staff members and proceeded to the spot of information and watched the accused persons from little distance. CW.1 confirmed 3 SC.443 of 2014 that accused persons preparing for committing the offence of dacoity. Then immediately raided on them and apprehended the A.1 to 8 at 9 p.m. and A-9 ran away from the spot. On enquiry, A- no.1 to 8 they stated their names and produced the deadly weapons. Same were recovered under recovery panchaname in presence of panchas. Then CW.1 returned to the police station along with seized materials and apprehended accused persons 1 to 8 and registered case against accused persons 1 to 9 for the offences U/Sec.399 & 402 of IPC and 25 of the Arms Act under Cr.No.112/2011, forwarded the FIR to the court and higher officials. CW.1 recorded the statements of witnesses and voluntary statements of the accused persons. Then sent accused persons to court under remand application. Then handed over the investigation to CW.25 who further investigated the matter and after completion of the investigation, filed charge against A-6 and other accused persons for the offence punishable U/Sec.399 & 402 of IPC.
4 SC.443 of 2014
3. After receipt of charge sheet, 5th ACMM, Bangalore registered case against the accused No.1 to 9 for the alleged offences. Accused No.1 to 3 and 7 to 9 were released on bail. A.4 was in JC. Since A.5 & 6 fails to appear before the court, case against them is split up. Split-up case against accused No.5 and 6 is registered. Accused No.6 was secured before the court through body warrant. He released on bail. Accused No.5 fails to appear before the Court. Hence case against accused No.5 is again split-up and case against accused No.6 is proceeded with.
4. After furnishing the copy of split up charge sheet to accused no.6, 5th A.C.M.M., Bangalore, committed the case to the Court of Sessions, for trial as the offences alleged against accused No.6 is exclusively triable by the court of Sessions.
5. After receipt of the case papers from V A.C.M.M., Bangalore, Hon'ble Prl.Sessions Judge, Bangalore registered the case against accused No.6 as SC.No.443/2014 and the same is made over to this 5 SC.443 of 2014 court for disposal in accordance with law. After receipt of the case, this court issued summons to A-6. A-6 appeared before the court and released on bail.
6. After hearing A-6 and the prosecution, Charge framed, read over and explained to the A-6 in the language known to him. After knowing the same, A-6 not pleaded guilty and claims to be tried.
7. In order to prove the case, prosecution examined in all PWs.1 and 2 and got exhibited Ex.P.1 to P.5 documents. M.Os.1 to 16 are marked. In this case original SC.821/2012 file is called for. Prosecution given up the evidence of Cws.4 to 16, 17 to 23 and
25. NBW issued to Cws.2 and 3 returned unexecuted without proper reasons. It is made known that other Accused No.1 to 4, 7 to 9 in SC.821/2012 are acquitted after full pledged trial. Hence there is no meaning in reissuing NBW to Cws.2 and 3. Hence prayer of the prosecution to reissue NBW to Cws.2 and 3 is rejected and prosecution evidence is closed.
6 SC.443 of 2014
8. After closure of the prosecution evidence, 313 Cr.P.C., statement of A-6 was recorded. Accused No.6 denied the incriminating evidence appearing against him in the prosecution case and submits no defence evidence.
9. Heard the arguments and perused the records.
10. The points those arise for consideration are:
Point No.1: Whether the prosecution proves beyond all reasonable doubt that on 20.5.2011 at 8.30 p.m. accused No.6 along with other accused persons assembled themselves with deadly weapons in their hands near Chinnathambi circle, 8th Cross, Magadi road, K.P.Agrahara, Bangalore, watching the persons and preparing to commit an offence of dacoity and thereby committed an offence pun. U/Sec.399 of IPC ?
Point No.2: Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place of offence accused No.6 along with other accused persons assembled for the purpose of committing offence of dacoity and thereby committed the offence pun.
U/Sec.402 of IPC?
< Point No.2: What Order ?
11. My findings on the above points are as under:
Point Nos.1 & 2 : In the negative,
Point No.3 : As per final order for the
following:
7 SC.443 of 2014
REASONS
12. Point Nos.1 & 2: I would like to discuss both
points in a single discussion in order to avoid repetition of the facts. After hearing the arguments, perused the records before the court. It is specific case of the prosecution that on 20.5.2011 at about 8.30 p.m., A.6 and other accused persons unlawfully assembled in the open space near 8th Cross, Chinnathambi circle, Magadi road, K.P.Agrahara, Bangalore and they were preparing to commit the offence of dacoity with deadly weapons in their hands. there. CW.1 along with his staff and panchas raided and A.1 to 8 were apprehended on the spot. A.9 ran away from the spot. Recovered MOs.1 to 16 under seizure panchaname. Prosecution recovered Kinfe and mobile from accused no.6.
13. Prosecution has to prove its case beyond all reasonable doubt against the A-6. Whenever doubt arises in the mind of the court about the case of the prosecution, then A-6 is very well entitled for claiming the said benefit of doubt in his favour.
8 SC.443 of 2014
14. CW.1 is complainant as well as the Investigating Officer of this case. He stated before the Court that, when he was on patrolling duty along with his staff on 20.05.2011, at 8.30 p.m. he received credible information regarding assembling of accused No.6 and other accused persons at Chinnathambi Circle, 8th Cross, Magadi Road, with deadly weapons in their hands and preparing to commit an offence of dacoity and on Babu, Naga and Ganesh who murdered Munna and Babu. Immediately he secured panchas and staff and went to the spot of information at 9.00 p.m. After confirmation of the information raided on the accused persons, arrested accused No.1 to 8. On enquiry of accused persons MO 1 to 16 marked in this case is seized from them. Knife and mobile is seized from accused no.6. Then returned to the police station and registered case against accused persons. Then conducted further investigation by recording voluntary statements of accused no.6 and other accused persons and also statements of witnesses. Forwarded 9 SC.443 of 2014 accused no.6 and other accused persons to the Court. Then handed over the investigation to Cw.25 who further investigated the matter and filed charge sheet against the accused persons. Suggestions made by accused No.6 is denied in the cross examination.
15. PW.2 is the staff of PW.1 who accompanied in raid on accused persons. He also stated the same fact as stated by PW.1 and stated regarding arrest of accused No.6 and other accused persons on the spot and recovery of Mos.1 to 16. Ex.P.4 and P.5 photos are identified by PW.1 and PW.2. PW.1 and PW.2 also identified Mos.1 to 16. PW.2 specifically stated that from the accused persons deadly weapons and mobile phones are recovered. This witness also denied the suggestions made by the counsel for accused No.6 in the cross examination. Evidence of PW.1 is not free from doubt to connect the guilt of the accused persons. Because the very panchas in presence of whom prosecution ascertaing that IO recovered knife and mobile phone from accused No.6 and other 10 SC.443 of 2014 material objects from other accused persons are not examined before the Court. It is reported that panchas are not residing in the given address. Panchas are not only panchas for Ex.P.1 panchanama, but they are also independent witnesses to the recovery of material objections from accused No.6. When independent witnesses are not examined and panchas are not examined, the evidence of PW.1 and PW.2 cannot be taken into consideration to connect the guilt of the accused persons. At the time of arguments it is brought to the notice of the Court and also from the records available before the Court, it is clear that in SC.821/2012 accused No.1 to 4, 7 to 9 are acquitted from the charges leveled against them after full fledged trial by considered judgment. Similar allegations are made against accused No.6 of this case. In that case also prosecution failed to prove its case as alleged against persons. In the present case also prosecution evidence is not sufficient to connect the guilt of accused No.6.
11 SC.443 of 2014
16. Further, as law laid down in Agar -vs- State of Rajasthan, reported in 2003 Crl.L.J., 1997, it is a settled law to constitute an offence U/Sec.399, some act amounting to preparation must be proved. But, in the present case, as looking into the evidence of PWs.1 and 2 the prosecution has not proved any act amounting to preparation for committing dacoity by the accused no.6 and other accused persons. Further, as law laid down in Joseph -vs- State of Kerala, AIR 1993, SCW, 2900, the essential theme is that the prosecution must show that there were persons who had conceived the design of committing dacoity. But in the present case, as looking into the evidence of PWs.1 and 2 there is no cogent and material evidence to believe the case of the prosecution that these accused No.6 and other accused persons have conceived the design for committing dacoity. If really the accused No.6 were designing for committing dacoity, there should be corroborative evidence from 12 SC.443 of 2014 the witnesses. But, looking into their testimonies, there is no such evidence.
17. So also, as law laid down in Chamariya Jadhav -vs- State of Bihar, reported in AIR 1979 SC.1412, it is held that mere presence did not by itself prove that they had assembled for the purpose of committing dacoity or making preparation to accomplish that object. So also, in the present case. As looking into the evidence of PWs.1 and 2 even assuming that the accused No.6 assembled in the open space near 8th Cross, Chinnathambi circle, Magadi road, that itself is not sufficient to believe that accused no.6 and other accused persons assembled for committing dacoity. On the other hand, there is no cogent evidence to believe that the accused no.6 assembled for making preparation to commit dacoity. Therefore, the prosecution has miserably failed to prove the alleged guilt against the accused persons beyond all reasonable doubt that on 20.05.2011 accused persons armed with deadly weapons were assembled in the 13 SC.443 of 2014 above said place, and were making preparation for committing dacoity, and also they were assembled for the purpose of committing dacoity on that day.
18. Looking from any angle this Court is of the opinion that, in view of the non-examination of independent witnesses and also in view of the doubt in the mind of the Court about the prosecution case this Court comes to the conclusion that prosecution has utterly failed to prove its case as against accused No.6 beyond all reasonable doubt. Hence by awarding benefit of doubt in favour of the accused No.6 point Nos.1 & 2 are answered in the negative.
19. Point No.3: In view of the discussion made above and the findings given on point Nos.1 & 2, I am going to pass the following:
ORDER
1. Acting U/sec.235 (1) Cr.P.C, accused No.6 is acquitted for the offences punishable U/Sec.399 & 402 of IPC.
2. Bail-bonds of accused No.6 and that of his surety stands cancelled.
14 SC.443 of 2014
3. Material objects i.e., MOs.1 to 16 are ordered to be preserved till the disposal of case against accused No.5.
4. Office is directed to obtain bond of accused No.6 as required U/sec.437 (A) of Cr.P.C.
*** (Dictated to the Stenographer, the transcript revised and then pronounced by th me in open court on this the 20 day of April 2015).
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore City.
ANNEXURE.
1. List of witnesses examined for the prosecution:
PW.1: Swamikumar, S/o Basappa, 57 yrs, PW.2: Hanumantharayappa, S/o Ganganna, 32 yrs,
2. List of witnesses examined for the accused:
- NIL-
3. List of documents marked for the prosecution:
Ex.P.1 : Panchanama,
Ex.P.1(a) : Signature of PW.1
Ex.P.2 : Complaint
Ex.P.2 : Signature of PW.1
Ex.P.3 : F.I.R.
15 SC.443 of 2014
Ex.P.3(a) : Signature of PW.1
Ex.P.4 &
P.5 : Photos.
4. List of documents marked for the Accused
- NIL -
5. Material object marked in this case:
MOs.1 to 3: Longs,
MOs.4 & 5: Small Longs,
MO.6 & 7 : Knives,
MO.8: Dragger,
MOs.9 to 16: Mobile phones of different companies.
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore City.
16 SC.443 of 2014 20.04.2015:
State by: P.P, Accused No.6: Bail, For judgment.
Case called out. Accused present before the Court. Judgment passed and pronounced in open court. Accused No.6 is acquitted from the offences leveled against him vide separate Judgment. Operative portion of the judgment is as under:
ORDER
1. Acting U/sec.235 (1) Cr.P.C, accused No.6 is acquitted for the offences punishable U/Sec.399 & 402 of IPC.
2. Bail-bonds of accused No.6 and that of his surety stands cancelled.
17 SC.443 of 2014
3. Material objects i.e., MOs.1 to 16 are ordered to be preserved till the disposal of case against accused No.5.
4. Office is directed to obtain bond of accused No.6 as required U/sec.437 (A) of Cr.P.C.
LXIII A.C.C. & S. Judge, Bengaluru