Bangalore District Court
State By Rajagopalanagara Police vs 4. Shiva on 3 September, 2021
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S.C.No.982/2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 3rd day of September, 2021
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.982/2019
COMPLAINANT:- State by Rajagopalanagara Police
Station, Bengaluru.
-Vs-
ACCUSED: 4. Shiva,
S/o Subramani,
Aged about 21 years,
R/at No.10, 7th Cross,
Coolie Nagar, Laggere,
Bengaluru.
Native Place: Kuppam village,
Chittor District,
Andhrapradesh State.
(Case against accused No.1 to 3 is
split up)
1. Date of commission of offence : 13.5.2019
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S.C.No.982/2019
2. Date of report of offence : 13.5.2019
3. Date of arrest of the Accused : 13.5.2019
4. Name of the complainant : Sri.Venkatesh T.
5. Date of recording evidence : 18.12.2020
6. Date of closing evidence : 28.12.2020
7. Offences complained of : U/Sec.399 & 402
of I.P.C.,
8. Opinion of the Judge : Offence against
Accused No.4,
not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. Sudheendra
Prasad Adv. for A.4
JUDGMENT
In the present case accused No.1 to 6 stands charged for punishable U/s.399 and 402 of I.P.C. in Cr.No.261/2019.
2. There is no undisputed facts in this case. 3
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3. Case of the prosecution in nutshell is as follows; On 13.5.2019 at 3.30 a.m., in the midnight Cw.1/T.Venkatesh police officer got credible information of unlawful assembly of more than 5 persons armed with deadly weapons, prepared for commission of robbery of passers at Park Road of G.K.W. lay out Main Road, within the jurisdiction of Rajgopalanagara police station, Bengaluru. On the basis of said credible information, cw.1 called two panchas and his staff, conducted raid, arrested accused No.1 to 4, seuzed weapons, objectical articles found in the possession of accused persons under the cover of Ex.P.4/seizure panchanama. On the basis of the report submitted by Cw.1/ Venkatesh police officer, the then Station House Officer of Rajgopalanagara police station registered F.I.R. in Cr.No. 261/2019 for offences punishable U/s.399 and 402 of I.P.C.
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4. Despite issuance of N.B.W., against accused No.1 to 3, presence of accused No.1 to 3 not traced out. Hence, case against accused No.1 to 3 is split up.
5. Charge being read over and explained to the accused No.4 as per Section 228 of Cr.P.C. He pleaded not guilty. In the personal examination U/s. 313 of Cr.P.C., accused No.4 denied all incriminating circumstances. He has not stated anything about registration of this case against him and others.
6. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused as per Section 234 of Cr.P.C.
7. Now, the points arising for determination are follows:
1. Whether prosecution proves beyond all reasonable doubt that, accused No.4 along with other accused on 3.5.2019 at about 3.30 a.m., 5 S.C.No.982/2019 near Park road, GKW Layout Main Road, Peenya 2nd Stage, Bengaluru within the jurisdiction of Rajagopalanagara police station, were prepared to commit dacoity i.e. to rob the passer on the road by holding deadly weapons and thereby committed an offence punishable under Sec.399 of the Indian Penal Code as alleged in the charge sheet?
2. Whether prosecution proves beyond all reasonable doubt that, on the same date, time and place accused No.4 along with other accused were assembled for the purpose of committing dacoity and thereby committed an offence punishable under Sec.402 of I.P.C., as alleged in the charge sheet?
3. What Order ?
8. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : In the Negative
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S.C.No.982/2019
Point No.3 : As per final order
for the following:
REASONS
9. POINTS NO.1 & 2:- These points are taken together for consideration to avoid repeated discussions.
10. Reasons for determination:- Cardinal principle of the criminal trial is that accused shall be presumed to be innocent till guilty is proved. As per Section 102 of Indian Evidence Act, burden of proof to prove ingredients of the charges framed against accused beyond all reasonable doubts is on the prosecution. To determine whether prosecution succeeded to discharge burden of proof casts U/s.102 of Indian Evidence Act, it is just and necessary to assess evidence adduced, documents produced on behalf of the prosecution.
11. Particulars of evidence adduced on behalf of prosecution is that Cw.2/ Sundaramurthy is examined as 7 S.C.No.982/2019 Pw.5. Cw.3/Velu is examined as Pw.6. Pw.5 and P.w6 are independent panchanama witnesses for Ex.P.4/seizure panchanama. In his evidence Pw.5 identified signature on Ex.P.4/seizure panchanama. Further identified his signature on Ex.P.5/ police notice. Pw.5 deposed that about a year ago, he was on his way towards G.K.W., layout from his factory on his two wheeler. G.K.W. police called him, took his signature on Ex.P.4. Police had not seized any articles in his presence. Poilce did not prepared any panchanama. He had not given any statement to the police. Identical evidence is adduced by Pw.6. Both Pw.5 and Pw.6 are treated as hostile witnesses by the prosecution side as per Section 154 of Indian Evidence Act.
12. In the cross-examination by Learned Public Prosecutor appearing for the State, no such admission is elicited to prove the contents of Ex.P.4/seizure mahazar for which Pw.5 and Pw.6 are signatories as mahazar witness. 8
S.C.No.982/2019 Further no such admission is elicited in the cross- examination by the Learned Public Prosecutor appearing for the State to show that Pw.5 and Pw.6 are won over by the accused side. It is pertinent to note that only independent piece of evidence available in this case is the evidence adduced by these two witnesses because all other witnesses are police officials. Further allegations of seizure of deadly weapons from the possession of the accused persons is not supported by any electronic evidence like videography or photography.
13. Cw.4/Siddappa police constable is examined as Pw.1. Cw.5/Paramesh head constable is examined as Pw.2. Cw.1/Venkatesh P.S.I. is examined as Pw.4. Pw.1, Pw.2 and Pw.4 are police officers, who participated in the raid to arrest accused and in seizing weapons said to be in the possession of the accused persons. In the examination-in- chief, Pw.1, Pw.2 and Pw.4 deposed with respect to 9 S.C.No.982/2019 information received by Pw.4/Venkatesh, P.S.I., conducting raid, arresting accused, seized Mo.1 to 4 under the cover of Ex.P.4/seizure panchanama in the presence of Pw.5 and Pw.6 mahazar witnesses. Pw.1, Pw.2 and Pw.4 stands unrebutted in the cross-examination.
14. Cw.9/ Ravikumar is the then Station House Officer at Rajgopalanagara police station, examined as Pw.3. In his evidence, Pw.3 deposed that on 13.5.2019 at 5.45 a.m., Cw.1, Cw.4 to Cw.9 produced 4 persons along with mahazar and seized articles. Cw.1 filed a report to register a case against them. On the basis of the report, he registered F.I.R. No.261/2019 for offences punishable U/s.399 and 402 of I.P.C. He arrested the accused, recorded their voluntary statements. He entered Mo.1 to 4 in station P.F.no.93/2019. He enquired and recorded statements of Cw.2 and Cw.3 and police staff, who participated in the raid. After completion 10 S.C.No.982/2019 of investigation, he submitted charge sheet against the accused. In the cross-examination, Pw.3 stands unrebutted.
15. Evidence adduced by complainant, police staff participated in the raid is relevant to prove the fact in issue and relevant facts leading to fact in issue. Pw.1, Pw.2 and Pw.4 deposed with respect to conducting raid arresting the accused, seizing Mo.1 to Mo.4 under the cover of Ex.P.4/ panchanama. Pw.1, Pw.2 and Pw.4 identified the accused as well as seized weapons Mo.1 to Mo.4 before the court. Their evidence is relevant U/s.5, 8, 9 of Indian Evidence Act. Registration of F.I.R. is relevant U/s.154 of Cr.P.C. Pw.3 Station House Officer identified F.I.R. registered by him.
16. Even though police witness and Station House Officer deposed in support of the case of the prosecution, Pw.5 and Pw.6 independent mahazar witnesses are not supported the case. In the case like preparation and 11 S.C.No.982/2019 attempt to commit robbery, fact of seizing weapons from the possession of the accused found in suspicious manner is utmost important.
17. Evidence adduced by Pw.1 to Pw.6 are not supported by any electronic evidence like photography and videography.
18. In the judgment passed in Crl.A.No.3767/2010 Gaddeppa V/s. State of Karnataka, Hon'ble High Court of Karnataka has held that to prove the offence of preparation for committing dacoity, nothing elicited as to for what purpose accused persons gathered there. Whether there was any attempt done by them in order to commit dacoity. Not shown that they had actually stopped any vehicle and any owner or the driver of the vehicle complained that they had made any attempt to commit dacoity. Mere recovery of some articles and also non-explanation of the accused as to 12 S.C.No.982/2019 why they had gathered in that particular place is not sufficient to fill up the gap on the side of the prosecution to prove that accused were actually gathered there for the purpose of committing dacoity. Except presence of the accused persons at the spot, recovery of some articles and voluntary statement of the accused, no other material to show that they were gathered there for the purpose of committing dacoity. Mere suspicion or imagination by the police officer bereft of any other material is not sufficient to draw a conclusive inference that, accused persons were gathered there for the purpose of committing dacoity. Prosecution failed to prove the guilt of accused.
19. Independent panchanama witnesses signed on Ex.P.4/ raid panchanama are not supported the case of the prosecution. There are discrepancies in the evidence adduced by Pw.1 to Pw.6. Further there is no supportive electronic evidence to substantiate alleged raid, seizure of 13 S.C.No.982/2019 contraband articles Mo.1 to Mo.4 from the possession of accused Persons.
20. In addition to the above, there are no complaints alleging attempt to commit robbery or dacoity made by the accused persons on the date of incident.
21. Identification of accused is important factor in the criminal trial. Even though official witnesses identified the accused persons before the court, hostile evidence adduced by independent mahazar witnesses, discrepancies in their evidence, absence of any corroborative complaint against accused persons by any of the victims, absence of any electronic evidence to substantiate the fact of seizure of contraband articles, deadly weapons from the possession of the accused as alleged by the prosecution, this court is of the opinion that, prosecution failed to prove the charges framed against accused beyond all reasonable doubts. 14
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22. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution failed to prove beyond all reasonable doubt that accused No.4 along with other accused were present on on 13.5.2019 at about 3.30 a.m., near Park road, GKW Layout Main Road, Peenya 2nd Stage, Bengaluru within the jurisdiction of Rajagopalanagar police station, assembled with preparation to commit dacoity i.e. to rob the passers on the road by holding deadly weapons and thereby committed offences punishable under Sec.399 and 402 of I.P.C. Accordingly, points No.1 and 2 are answered in the Negative.
23. POINT NO.3: In view of the above findings on points No.1 and 2, accused No.4 is entitled for acquittal. Hence, the following order is made;
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S.C.No.982/2019 ORDER Invoking provision U/s.235(1) of Cr.P.C., accused No.4 is hereby acquitted for the offences punishable U/s.399 and 402 of I.P.C.
His bail bond and surety bonds shall stands cancelled.
Accused No.4 is hereby directed to execute fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bond of accused No.4 for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
This entire file and material objects shall be preserved till conclusion of trial against split up accused.
Office is directed to issue release intimation to the jail authorities to release 16 S.C.No.982/2019 the accused No.4 if he is not required in any other case.
Jail authorities are hereby directed to release the accused No.4, if he is not required in any other, after obtaining fresh bail bond of accused No.4 for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer, script typed by her and corrected, signed and then pronounced by me in the open court on this 3rd day of September 2021.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
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S.C.No.982/2019 ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Siddappa Pw.2 Paramesh Pw.3 Ravikumar C. Pw.4 Venkatesh P. Pw.5 Sundaramurthy Pw.6 Velu II. For Defence:- - Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Complaint
Ex.P.1(a) Signature of Pw.3
Ex.P.1(b) Signature of Pw.4
Ex.P.2 F.I.R.
Ex.P.2(a) Signature of Pw.3
Ex.P.3 Property Form
Ex.P.3(a) Signature of Pw.3
Ex.P.4 Panchanama
Ex.P.4(a) Signature of Pw.4
Ex.P.4(b) Signature of Pw.5
Ex.P.4(c) Signature of Pw.6
Ex.P.5 Police notice
Ex.P.5(a) Signature of Pw.5
Ex.P.5(b) Signature of Pw.6
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Ex.P.6 Statement of Pw.5
Ex.P.7 Statement of Pw.6
IV. For Defence side:-
-Nil-
V. List of material objects marked:-
Mo.1 Knife
Mo.2 Wooden club
Mo.3 Iron rod
Mo.4 Chilli powder packet
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 19 S.C.No.982/2019 3.9.2021 Accused No.4 produced from J.C. through V.C. Sri.Sudheendra Prasad standing counsel is present.
Judgment pronounced in the open Court (Vide separate judgment) ORDER Invoking provision U/s.235(1) of Cr.P.C., accused No.4 is hereby acquitted for the offences punishable U/s.399 and 402 of I.P.C.
His bail bond and surety bonds shall stands cancelled.
Accused No.4 is hereby directed to execute fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bond of accused No.4 for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
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S.C.No.982/2019 This entire file and material objects shall be preserved till conclusion of trial against split up accused.
Office is directed to issue release intimation to the jail authorities to release the accused No.4 if he is not required in any other case.
Jail authorities are hereby directed to release the accused No.4, if he is not required in any other, after obtaining fresh bail bond of accused No.4 for Rs.1,00,000/-(one lakh) as per Section 437-A of Cr.P.C.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, CCH-65, BENGALURU CITY.