Bangalore District Court
State By Rajagopalanagar Police ... vs No: 1. Rajesh @ Kench on 16 February, 2022
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S.C.No.1273/2017
KABC010257282017
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 16th day of February, 2022
-: 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.1273/2017
COMPLAINANT:- State by Rajagopalanagar Police Station,
Bengaluru.
-Vs-
ACCUSED NO: 1. Rajesh @ Kench,
S/o. Jayaram,
Aged about 22 years,
R/at. No.133, 5th Cross,
Behind Raghavendra School,
Basappana Katte,
Peenya 2nd Stage,
Bengaluru city.
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S.C.No.1273/2017
2. Arun Kumar @ Keeli,
S/o. Lakshman,
Aged about 22 years,
R/at 7th Cross,
Near Bilwapatre Tree,
Byraveshwara Nagara
Laggere,Bengaluru city.
1. Date of commission of offence : 28.12.2016
2. Date of report of offence : 29.12.2016
3. Date of arrest of the Accused : Produced under body
warrant
4. Name of the complainant : Raghunath
5. Date of recording evidence : 15.9.2021
6. Date of closing evidence : 29.11.2021
7. Offences complained of : U/Sec.397
of I.P.C.,
8. Opinion of the Judge : Offence against
Accused No.1 & 2
not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. M.Ramesh, Sri.
M/s. K.N.Channappa &
Associates, Adv. for accused
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S.C.No.1273/2017
JUDGMENT
In the present case accused No.1 and 2 stands charged for offence punishable U/s.397 of I.P.C. in Cr.No.1134/2016 of Rajgopalanagara station.
2. There are no undisputed facts in this case.
3. Case of the prosecution in nutshell is that on 28.12.2016 night at 10.30 p.m., when Cw.1/Raghunath and Cw.2/Manjunath were walking on the road near Tharma Tech Factory situated at 9th Main Road, Duggalamma Extension, within the jurisdiction of Rajgopalanagara police station, Bengaluru accused No.1 and 2 came on a motor cycle wrongfully restrained Cw.1 and Cw.2 and demanded mobile phone. When Cw.1 refused to hand over mobile phone of Cw.2, they assaulted on his head with iron rod and assaulted on Cw.2 by hands and snatched eye ball mobile phone valued Rs.2,000/-(two thousand). On the basis of the complaint lodged by the complainant, this case for offence punishable U/s.397 of I.P.C., came to be registered.
4. Charge being read over and explained to the accused No.1 and 2 as per Section 228 of Cr.P.C. They pleaded not guilty and claimed to be tried.
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5. During personal examination U/s. 313 of Cr.P.C., accused No.1 and 2 have denied all incriminating circumstances.
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 on 28.12.2016 night at 10.30 p.m., when Cw.1/Raghunath and Cw.2/Manjunath were walking on the road near Tharma Tech Factory situated at 9th Main Road, Duggalamma Extension, accused No.1 and 2 assaulted Cw.1 and Cw.2 by hands and with iron rod and snatched eye ball mobile phone valued Rs.2,000/-
(two thousand) thereby committed offence punishable U/s.397 of I.P.C. , as alleged in the charge sheet?
2. What Order ?
8. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
9. POINT NO.1 :-Reasons for determination:- Cardinal principle of the criminal trial is that the accused shall be presumed to 5 S.C.No.1273/2017 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 the accused beyond any reasonable doubts is on the prosecution. To determine whether the 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.
10. Cw.10/Siddappa A.S.I. is examined as Pw.1. Pw.1 was deputed to trace the accused persons. In his evidence Pw.1 has deposed that on 23.3.2017 he was deputed along with Lingaraju , Prakash Nayaka, Jayashankar, Usha to trace the accused of this case. Accordingly by collecting information from informers, they caught hold accused persons and produced them before the Investigation Officer. Pw.1 has identified accused No.2 produced before the court and accused No.1 produced through VC. Pw.1 identified stolen mobile phone on Ex.P.2/photograph. Pw.1 stands unrebutted in the cross-examination.
11. Cw.4/Lingesh witness for spot mahazar is examined as Pw.2. In his evidence, Pw.2 deposed that he did not sign any document. Police did not prepare any mahazar in his presence. He do not know anything about the case. Pw.2 treated as hostile witness by the prosecution side. Learned Public Prosecutor 6 S.C.No.1273/2017 appearing for the State has sought permission to question Pw.2 by treating him as hostile witness as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions are elicited to show that Pw.2 has deposed false. No such admissions are elicited to prove the fact that Pw.2 was won over by the accused persons.
12. Cw.1/Raghunatha complainant is examined as Pw.3. In his evidence Pw.3 has deposed in accordance with the averments made in his complaint at Ex.P.3. Pw.3 further deposed that he was admitted to Srinivas Nursing Home for treatment. After 3 months of the incident, Rajgopalanagara police called him to the police station and had shown photographs to identify the accused persons. Persons shown at photograph were not the persons who had snatched his mobile phone. Pw.3 denied the that mobile phone shown at Ex.P.3 photograph was not his mobile phone. Pw.3 specifically deposed that accused No.2 present before the court was not the person who had snatched his mobile phone. Accused No.1 shown through VC was not the person who assaulted on him. Pw.3 was treated as hostile witness by the prosecution side. Learned Public Prosecutor appearing for the State sought permission to question Pw.3 by treating him as hostile witness as per Section 154 of Indian Evidence Act. Even in the cross-examination, no such admissions are elicited to show that Pw.3 has deposed false. No 7 S.C.No.1273/2017 such admissions are elicited to prove the fact that Pw.3 is won over by the accused persons.
13. Learned advocate for accused submitted that ingredients required to prove offence punishable U/s.397 of I.P.C. and material available on record is not sufficient to prove the guilt of the accused and hence prayed to acquit the accused.
14. Learned Public Prosecutor appearing for the State has submitted that evidence adduced by witnesses examined by the prosecution side established case against the accused and hence prayed to convict the accused.
15. Under the light of the arguments submitted by both side, this court shall evaluate the evidence, materials available on record to assess whether prosecution side succeeded to prove beyond all reasonable doubt, the ingredients of Sec.397 of I.P.C. committed by the accused.
16. Even though police witness Pw.1 deposed in respect of securing presence of accused No.1 to 4, his evidence is not supported by the Pw.3 complainant and injured in this case. Pw.2 is one of the panch witness who totally turned hostile to the case of the prosecution. Other witnesses are not produced before the court for examination. Evidence adduced by the complainant/injured Pw.3/Cw.1 is an important piece of evidence. Pw.3 refused to 8 S.C.No.1273/2017 identify accused No.1 and 2 and refused to identify the mobile phone shown at Ex.P.2/ photograph. Self harming statement and evidence adduced by Pw.3 is relevant U/s.21 of Indian Evidence Act. Evidence adduced by Pw.3 proved fatal to the case of the prosecution. Doubt arisen due to hostile evidence adduced by the complainant Cw.1/ Pw.3 should be considered as reasonable doubt on case of the prosecution.
17. As discussed above and for the reasons stated above, this court is of the opinion that, prosecution failed to prove beyond any reasonable doubts that on 28.12.2016 night at 10.30 p.m., when Cw.1/Raghunath and Cw.2/Manjunath were walking on the road near Tharma Tech Factory situated at 9th Main Road, Duggalamma Extension, within the jurisdiction of Rajgopalanagara police station, Bengaluru accused No.1 and 2 came on a motor cycle wrongfully restrained Cw.1 and Cw.2 and demanded mobile phone. When Cw.1 refused to give mobile phone of Cw.2, they assaulted on his head with iron rod and assaulted on Cw.2 by hands and snatched eye ball mobile phone valued Rs.2,000/-(two thousand) thereby accused No.1 and 2 have committed offence punishable U/s.397 of I.P.C. Accordingly, point No.1 is answered in the Negative.
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18. POINT NO.2: In view of the above findings on point No.1 accused No.1 and 2 are entitled for acquittal. Hence, the following order is made;
ORDER Invoking provisions U/s.235(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted for the offence punishable U/s.397 of I.P.C.
Accused No.1 and 2 are hereby directed to execute fresh bail bonds for Rs.1,00,000/- (one lakh) each as required U/s.437-A of Cr.P.C., and the same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bonds of accused No.1 and 2 for Rs.1,00,000/-(one lakh) each as per Section 437-A of Cr.P.C.
Office is hereby directed to issue release intimation to the jail authorities to release the accused No.1, if he is not required in any other case after obtaining fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C.
10S.C.No.1273/2017 Jail authorities are hereby directed to release the accused No.1, if he is not required in any other case after obtaining fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.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 16 th day of February 2022.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
Pw.1 Siddappa
Pw.2 Lingesh
Pw.3 Ragunath
II. For Defence:-
-Nil-
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S.C.No.1273/2017
III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Report
Ex.P.2 Photograph
Ex.P.3 Complaint
Ex.P.3(a) Signature of Pw.3
Ex.P.4 Further statement of Pw.3
IV. For Defence side:-
-Nil-
V. List of material objects marked:-
-Nil-
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY 12 S.C.No.1273/2017 16.02.2022 Accused No.1 produced from J.C. through V.C. Accused No.2 is present .
Judgment pronounced in the open Court (Vide separate judgment) ORDER Invoking provisions U/s.235(1) of Cr.P.C., accused No.1 and 2 are hereby acquitted for the offence punishable U/s.397 of I.P.C.
Accused No.1 and 2 are hereby directed to execute fresh bail bonds for Rs.1,00,000/- (one lakh) each as required U/s.437-A of Cr.P.C., and the same shall be in force for a period of six months from this day.
Office is directed to take fresh bail bonds of accused No.1 and 2 for Rs.1,00,000/-(one lakh) each as per Section 437-A of Cr.P.C.
Office is hereby directed to issue release intimation to the jail authorities to release the 13 S.C.No.1273/2017 accused No.1, if he is not required in any other case after obtaining fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.437-A of Cr.P.C.
Jail authorities are hereby directed to release the accused No.1, if he is not required in any other case after obtaining fresh bail bond for Rs.1,00,000/- (one lakh) as required U/s.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.