Bangalore District Court
State By; vs Vinay S/O Srinivasa on 23 March, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 23rd day of March, 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.700/2015
COMPLAINANT : State by;
Kumaraswamy Layout Police Station,
Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : 1. Vinay S/o Srinivasa,
Aged about 22 years,
Residing at No.3448,
68th Cross, Near 15E Bus Stop,
Kumaraswamy Layout,
Bengaluru.
2. Shivakumar S/o Manjunatha,
Aged about 23 years,m
Residing at No.16,
14th Main, 6th Cross,
Kumaraswamy Layout,
Bengaluru.
3. Suresha S/o Erabomma,
Aged about 22 years,
Residing at No.134,
21st Cross, Kadirenahalli Cross,
Kadirenahalli, Bengaluru.
2 S.C.700/2015
4. Dhananjaya S/o Late.Muniraju,
Aged about 19 years,
Residing at No.227,
Murali Krishna School Road,
Gowdanapalya, Bengaluru.
5. Baba .........Split-up
6. Mubaraq @ Kalumachi .........Split-up
(Accused No.1 & 3 by Sri.SVK / HPM,
Accused No.2 & 4 by Sri.K.S., Advocates)
1. Date of commission of offence 09-07-2014
2. Date of report of occurrence 09-07-2014
3. Date of arrest of A-1 10-07-2014
Date of release of A-1 16-09-2015
Period undergone in custody 1 Year, 2 Months, 6
Days
4. Date of arrest of A-2 10-07-2014
Date of release of A-2 25-08-2014
Period undergone in custody 1 Month, 15 Days
5. Date of arrest of A-3 10-07-2014
Date of release of A-3 24-07-2014
Period undergone in custody 14 Days
6. Date of arrest of A-4 10-07-2014
Date of release of A-4 04-09-2014
Period undergone in custody 1 Month, 25 Days
7. Date of commencement of evidence 10-03-2016
8. Date of closing of evidence 10-03-2016
9. Name of the complainant Sri.Nagesh.V, P.S.I.
3 S.C.700/2015
10. Offences complained of Sec.399 and 402 I.P.C.
11. Opinion of the Judge As per the final order
12. Order of sentence Offences not proved
JUDGMENT
This case is committed by the V Addl.Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offences punishable under Sec.399 and 402 of IPC are exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Kumaraswamy Layout Police Station has filed charge-sheet against accused for the offences punishable under Sec.399 and 402 of IPC arising out of Kumaraswamy Layout Police Station in Crime No.249/2014.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, CW.1 who is the PSI, Kumaraswamy Layout Police Station, on 09-07-2014 at 8.30 a.m., when patrolling within the jurisdiction of his police station, received credible information stating that near Jaraganahalli Lorry Stand, 6 persons assembled by parking two bikes and holding deadly weapons in their hands and 4 S.C.700/2015 making preparation to commit dacoity of the commuters.
CW.1 immediately called to the Police Station on phone and told the SHO to send crime officials CW.4 to 8 near the Yelachenahalli playground. CW.4 to 8 came near Yelachenahalli playground, CW.1 told CW.8 to call two Panchas, CW.8 has called CW.2 and 3-Panchas, CW.1 has told CW.4 to 8 and Panchas. Thereafter, CW.1 along with CW.2 to 8 came near the spot and stopped some distance away from the spot and observed the spot, on the spot 6 persons assembled armed with deadly weapons by parking two bikes. CW.1 has confirmed the information as correct. Thereafter, CW.1 and his officials have conducted raid and catch-hold the persons, two persons ran away. CW.1 enquired the said persons, they have told their names, they told the names of the persons ran away as Mubaraq and Baba. The said persons were possessing Club, Knife, Long and Chilly powder pocket. CW.1 has drawn the Mahazar and seized the deadly weapons thereafter CW.1 and his officials brought the said persons along with the properties seized to the Police Station. CW.1 5 S.C.700/2015 has prepared Report and given to CW.9 and produced the properties and persons before CW.9.
3(a) CW.9 who is the ASI of Kumaraswamy Layout Police Station on 09-07-2014 at 11.15 when in the Police Station, CW.1 and his officials produced accused No.1 to 4 and properties seized from them before CW.9, CW.1 has submitted Report, CW.9 on the basis of Report submitted by CW.1 has registered case in Crime No.249/2014 and submitted FIR to the court, CW.9 has arrested the said persons, CW.9 has subjected the properties under P.F.131/2014 thereafter CW.9 has handed-over further investigation to CW.10. CW.10 who is the Police Inspector of Kumaraswamy Police Station, taken further investigation from CW.9 and recorded voluntary statements of accused, CW.10 has recorded the statements of CW.2 to 8 and thereafter as the investigation is completed filed the charge-sheet against the accused.
4. After filing the charge-sheet by the Investigating Officer, V Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered case in C.C.No.8709/2015. Thereafter, V Addl.Chief Metropolitan 6 S.C.700/2015 Magistrate Court, Bengaluru, has secured presence of accused No.1 to 4. Even though V Addl.Chief Metropolitan Magistrate Court, Bengaluru has issued NBWs to secure presence of accused No.5 and 6 on several occasions the same returned unexecuted. So, V Addl.Chief Metropolitan Magistrate Court, Bengaluru has splitted the case against accused No.5, 6 and directed the I.O. to file a separate charge sheet against them. Thereafter, V Addl.Chief Metropolitan Magistrate Court, Bengaluru, has furnished charge sheet copies to accused No.1 to 4 as contemplated under Sec.207 of Cr.P.C. and committed the case against the accused No.1 to 4 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.700/2015 and made over to this court for disposal according to law, as the offences alleged are triable by the Sessions Court.
5. After receipt of the papers, this court has secured presence of accused No.1 to 4. Thereafter, this court has heard the learned Public Prosecutor for State and counsel for accused on charge to be framed. Charge under Sec.228 of Cr.P.C. framed against the accused for the offences under Sec.399, 7 S.C.700/2015 402 of IPC and read-over to the accused in the open court, accused pleaded not guilty and claim to be tried. Thereafter Prosecution is called upon to prove the guilt of the accused by examining the Prosecution witnesses. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 4 witnesses as PW.1 to 4 and got marked 4 documents as per Ex.P1 to 4 and marked 4 material objects as MO.1 to 4 and closed its side. Thereafter accused are examined under Sec.313 Cr.P.C. to enable them to explain the incriminating circumstances appearing against them in the prosecution evidence. Accused denied the statement in toto and further stated that they have no defence evidence and they have nothing to say, thereafter the case is posted for arguments.
6. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor for state in length.
7. The points that arise for my determination are:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 to 4 along 8 S.C.700/2015 with splitted accused No.5 and 6, on 09-07-
2014 at 8-30 p.m. within the jurisdiction of Kumaraswamy Layout Police Station, on Kanakapura main road near Jaraganahalli Lorry stand in the open space assembled armed with deadly weapons and making preparation to commit dacoity and thereby committed the offence punishable under Sec.399 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that accused No.1 to 4 along with splitted accused No.5 and 6 on the above said date, time and place assembled with armed with deadly weapons in order to commit dacoity and thereby committed the offence punishable under Sec.402 of IPC?
3. What order?
8. My findings on the above points are as follows:
Point No.1 : In the Negative;
Point No.2 : In the Negative;
Point No.3 : As per final order
For the following
9 S.C.700/2015
REASONS
9. POINT No.1 AND 2: The above points are
connected, hence they are taken up together for discussion together.
10. It is the case of the prosecution that the accused have committed the offences punishable under Sec.399 and 402 of IPC and in order to prove the guilt of the accused the prosecution in all examined four witnesses and they are; PW.1- Nagesh son of Venkataiah-complainant, PW.2-T.V. Shivarudraiah son of T.V.Veerappa-ASI, PW.3-L.Nagaraju son of Lakkanna-Police Constable, PW.4-Mahesh son of Shivamarigowda-Police Constable.
11. The prosecution in order to prove guilt of the accused in all got marked four documents and they are; Ex.P1- Spot cum Seizure mahazar, Ex.P2-Complaint, Ex.P3-FIR and Ex.P4- P.F.No.131/2014.
12. Prosecution got marked four Material Objects and they are; MO.1-One club, MO.2-One Knife, MO.3-Long, MO.4- chilly powder pocket.
10 S.C.700/2015
13. Prosecution in order to prove the guilt of the accused examined PW.1. PW.1 in his evidence stated that, in the year 2014 he was working as Police Sub-Inspector at K.S.Layout Police Station. On 09-07-2014 when he was patrolling within the limits of his Police Station at about 8.30 p.m., he received credible information stating that, 6 persons assembled armed with deadly weapons by parking two Bikes near Jaraganahalli Lorry Stand and making prepearation to commit dacoity and thereafter he called the SHO of his Police Station on phone and informed him to send CW.4 to 8-officials near Yelachenahalli playground. Thereafter, CW.4 to 8 came to Yelachenahalli playground, he informed the information received by him to them thereafter he sent CW.8 for calling two Panchas, CW.8 has called CW.2 and another Pancha, he informed the Panchas the information received by him. Thereafter, he, his officials and Panchas came near the spot and stopped some distance away from the spot and watched the spot, on the spot 6 persons were assembled by parking two bikes holding deadly weapons and he confirmed that information received is correct, they have conducted raid and 11 S.C.700/2015 catch-hold 4 persons, 2 persons ran away. One person who catch-hold by them told his name as Naveen and he was possessing Knife, second person catch-hold by them was possessing Club, third person catch-hold by them told his name as Suresha and he was possessing chilly powder pocket, the fourth person told his name as Dhananjaya and he was possessing Long. The said persons told the names of the persons ran away as Mubaraq and Baba. Thereafter he has drawn Mahazar and seized the deadly weapons in presence of Panchas thereafter they have brought the said persons and properties seized to the Police Station, he prepared Report and submitted the Report before CW.9, he has produced the said persons and properties before CW.9. Further this witness has identified the properties seized by him as MO.1 to 4. This witness has been cross-examined by the counsel for the accused and in the cross-examination, the counsel for the accused has suggested to this witness that the accused has been brought from the respective house and implicated them in this case and this witness has denied the same. 12 S.C.700/2015
14. Prosecution has examined PW.3. PW.3 in his evidence stated that, in the year 2014 he was working as Police Constable at K.S.Layout Police Station. On 09-07-2014 at 8.30 p.m., when he was in the Police Station, CW.1 called to the Police Station and told SHO to send squad of officials CW.4 to 7 to Yelachenahalli playground and accordingly they went there, CW.1 called two Panchas there and told them the information received by him. Thereafter, they came near the spot along with the Panchas and CW.1, stopped 100 meters away from the spot, on the spot 6 persons assembled armed with deadly weapons by parking two wheeler vehicles, they have confirmed the information as correct thereafter they have conducted raid and catch-hold 4 persons. One person catch- hold by them told his name as Vinay, second person told his name as Shivakumar and he was possessing one Club, third person told his name as Suresh and he was possessing chilly powder pocket, fourth person told his name as Dhananjaya and he was possessing one Long. The said persons told the names of the persons ran away as Baba and Mubaraq and CW.1 has drawn Mahazar and seized the deadly weapons and 13 S.C.700/2015 two wheeler vehicles thereafter they have brought the said persons along with the properties to the Police Station and identified the properties as MO.1 to 4. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that he cannot say which official catch-hold which accused on that day, he cannot say on the spot which accused was uttering which words.
15. Prosecution examined PW.4. PW.4 in his evidence stated that in the year 2014 he was working as Police Constable in K.S.Layout Police Station. On 09-07-2014 at about 8.30 p.m., when he was in the Police Station, CW.1 called to the Police Station and told the SHO to send CW.4 to 6 near Yelachenahalli playground and accordingly they went there. There CW.1 has called two Panchas, CW.1 has told the information received by him to them thereafter they went near the spot and stopped some distance away from the spot and watched the spot and on the spot 6 persons assembled armed with deadly weapons by parking two motorcycles and they confirmed the information as correct thereafter they have 14 S.C.700/2015 conducted raid and catch-hold 4 persons 2 persons ran away. Out of the persons catch-hold, one person told his name as Vinay, second person told his name as Shivakumar and he was possessing one Club, third person told his name as Suresh and he was possessing chilly powder pocket and the fourth person told his name as Dhananjaya and he was possessing one Long. The said persons told the names of the persons ran away as Baba and Mubaraq. Thereafter, CW.1 has drawn the Mahazar, seized the deadly weapons and motorcycles in presence of Panchas thereafter they have brought the said persons along with the properties seized to the Police Station and identified the deadly weapons seized as MO.1 to 4. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has admitted that he cannot say which official has catch-hold which accused on that day, he cannot say which accused was uttering which words on the spot.
16. Prosecution examined PW.2. PW.2 in his evidence stated that in the year 2014 he was working as ASI at K.S.Layout Police Station. On 09-07-2014 at about 11.15 15 S.C.700/2015 p.m., when he was SHO of his Police Station, CW.1 and his officials brought 4 persons and properties seized from them and two motor cycles and produced before him, CW.1 has submitted the Report and on the basis of the Report he has registered case in Crime No.249/2014 and submitted FIR to the court. He has subjected the properties under P.F., thereafter he has handed-over the further investigation to CW.10.
17. It is the specific case of the accused during the cross-examination of prosecution witnesses that, they have not committed any offences as alleged against them, they have been brought from their respective houses earlier to the alleged incident and they have been implicated in this case only in order to harass them. In the present case, prosecution has not examined the Panchas who alleged to have accompanied the complainant for raid. Further PW.3 and 4 who are the Police Constables accompanied the complainant for raid in their cross-examination admitted that, they cannot say which official has catch-hold which person on that day. Further they have admitted that they cannot say which 16 S.C.700/2015 accused was uttering which words on the spot on that day. It is the specific case of the accused that, they have been brought from their respective houses earlier to the alleged incident and they have been implicated in this case. So, only evidence of PW.1 to 4, Ex.P1 to 4 and MO.1 to 4 will not prove the guilt of the accused beyond reasonable doubt. The learned counsel for the accused has relied upon the citation reported in AIR 1979 Supreme Court 1412 in Chaturi Yadav and others Vs. State of Bihar, wherein it has been held as follows;
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality. Decision of Patna High Court, Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises which was quite close to the market at 1 a.m. and that some of them were armed with guns, some had cartridges and others ran away - Held that the conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m. did not by itself prove that they had assembled for the purpose of committing dacoity or for making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated. Decision of Patna High Court, Reversed."17 S.C.700/2015
18. From the principles laid down in the aforesaid rulings of our own Hon'ble Apex Court, it is clear that only on assembling the persons with deadly weapons itself will not prove that they have committed offence under Sec.399, 402 of IPC. Looking from any angle, the evidence of PW.1 to 4, Ex.P1 to 4 and MO.1 to 4 will not prove the guilt of the accused beyond reasonable doubt. As per the well settled principle of law, the benefit of doubt goes to the accused. In the present case accused are entitled for the benefit of doubt. Hence, I hold that prosecution failed to prove the guilt of the accused beyond reasonable doubt. Hence, for the above discussion, I answer point No.1 and 2 in the NEGATIVE.
19. POINT No.3: In view of my findings point No.1 and 2 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.1- Vinay, accused No.2-Shivakumar, accused No.3- Suresha and accused No.4-Dhananjaya are acquitted for the offences punishable under Sec.399 and 402 of IPC.18 S.C.700/2015
Bail bonds of the accused stands cancelled forthwith.
Case against accused No.5 and 6 split-up, so no order as to dispose off the properties.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 23rd day of March, 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 V.Nagesh CW.1 10-03-2016
PW.2 T.V.Shivarudraiah CW.9 10-03-2016
PW.3 L.Nagaraju CW.8 10-03-2016
PW.4 Mahesh CW.7 10-03-2016
Documents marked for the prosecution:
Ex.P1 Spot cum Seizure Mahazar PW.1 10-03-2016
Ex.P1(a) Signature of PW.1 PW.1 10-03-2016
Ex.P2 Complaint PW.1 10-03-2016
Ex.P2(a) Signature of PW.1 PW.1 10-03-2016
Ex.P2(b) Signature of PW.2 PW.2 10-03-2016
Ex.P3 FIR PW.2 10-03-2016
Ex.P3(a) Signature of PW.2 PW.2 10-03-2016
Ex.P4 P.F.131/2014 PW.2 10-03-2016
19 S.C.700/2015
Material objects marked for the prosecution:
MO.1 One club MO.2 Knife MO.3 Long MO.4 Chilly powder pocket
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.