Bangalore District Court
State By vs A1. Mani on 3 March, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 3 rd day of March, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.961 of 2018
COMPLAINANT: State by:
Chandralayout Police Station,
Bengaluru.
(By Public Prosecutor)
/Vs/
ACCUSED: A1. Mani,
S/o Late Vijiyan,
Aged about 21 years,
R/at No.46, 9th Cross,
Byraveshwara Nagara,
Shanthkumar School,
Bengaluru.
(By Sri.Yeshwanth, M., Advocate.)
A2. Ramesh.N.
S/o Narasimha,
Aged about 24 years,
R/at No.107, 2nd Cross,
2nd Main Road, Jyothinagar,
Chandralayout, Bengaluru.
(By Sri.Yeshwanth, M., Advocate.)
A3. Murthy.
(Split up in CC.No.8516/2018)
2 S.C.No.961/2018
A4. Manjunatha,
S/o Narayanappa,
Aged about 23 years,
R/at No.13, 2nd Cross,
3rd Main Road,
Kalyana Nagara,
Nagarabhavi Road, Bengaluru.
(By Sri.Yeshwanth, M., Advocate.)
A5. Suman Sagar.
(Split up in CC.No.8516/2018)
DATE OF:
Occurrence of offence : 02.03.2016
Commencement of trial : 02.11.2019
Closing of trial : 06.11.2021
Name of the complainant : Sri.C.S.Anand PI.
Offence alleged : Under Sections 399
and 402 of IPC
Opinion of the judge : Charges leveled
against accused are not
proved.
Sentence or order : Acquitted.
JUDGMENT
The Chandralayout police have filed the present charge sheet against A-1 to A-5 in Crime No.91/2016 for the offences punishable under Sections 399 and 402 of IPC.
3 S.C.No.961/2018
2. The brief facts of the prosecution case are as they follow;
a) That on 02.03.2016 at about 11:00 p.m., A1 to A-5 by holding deadly weapons like machete, knife, wooden clubs and chilly powder packet were assembled at Railway parallel road, near Nayandahalli gate within the jurisdiction of Chandralayout police station and were conspiring to commit dacoity of the persons who pass by the said road by getting down from train.
b) Based on credible information, CW-1/ Sri.C.S.Anand, the then Police Inspector, Chandra Layout police station along with panchas by name Sri.Nagaraj and Sri.Harish and the staffs i.e., CW-2/Sri.Ramachandraiah- ASI, CW-3/Sri.Kalegowda-ASI, CW-4/Sri.Ravikumar-HC 5332, CW-5/Sri.Hanumegowda Patel-HC 6290 and CW- 6/Sri.Ranjan Pannari-PC 9150 raided the spot and caught hold A-1 to A-5, seized deadly weapons which were in their possession.
c) CW-1 returned to the police station along with the properties and mahazar and produced the same before the SHO, the then PSI/CW-13 Sri.Ravikumar C. who registered 4 S.C.No.961/2018 the case against A-1 to A-5 in Cr.No.91/2016 for the offences punishable under Sections 399 and 402 of IPC; conducted arrest procedures and after recording their voluntary statements, produced them before the jurisdictional Magistrate.
3. As per the order of the Court dated 25.02.2017 in CC.No.9873/2016, the case against A-3 and A-5 was split up and split up charge sheet was filed and the split up case was registered in CC.No.8516/2018.
4. A-1, A-2 and A-4 were on bail. Since the alleged offences are triable by the Court of Sessions, the case against A-1, A-2 and A-4 was committed directing them to appear before this Court on receipt of summons.
5. After committal of the case, it was allotted to this Court and A-1, A-2 and A-4 appeared before this Court and were enlarged on committal bail.
6. Heard before charge. Charges framed and plea of A-1, A-2 and A-4 was recorded for the offences punishable under Sections 399 and 402 of IPC. In response to which, they pleaded not guilty and claimed to be tried by this Court. Hence, the case was posted for trial. 5 S.C.No.961/2018
7. During the course of trial, the prosecution in all got examined 6 witnesses i.e., CWs-10, 2, 1, 5, 7 and 13 respectively as PWs-1 to 6. Got exhibited 5 documents at Ex.P-1 to 5. Got marked 4 material objects as MOs-1 to 4 and closed its side.
8. Statement of A-1, A-2 and A-4 was recorded under Section 313 of Cr.P.C., wherein they have denied all incriminating evidence adduced and produced by the prosecution against them and they neither produced nor adduced any evidence on their defence.
9. Heard arguments of both the sides on merits of the case and perused the record.
10. Out of above said facts and circumstances of the case and the material evidence on record, the points that arose for the due consideration of this Court are;
1. Whether the prosecution proves beyond all reasonable doubts that A-1, A-2 and A-4 along with A-3 and A-5 against whom the case is split up, on 02.03.2016 at about 11:00 p.m., by holding deadly weapons like machete, knife, wooden clubs and chilly powder packet were assembled at Railway parallel road, near Nayandahalli gate within the jurisdiction of Chandralayout police station and were 6 S.C.No.961/2018 conspiring to commit dacoity and thereby they have committed the offence punishable under Section 402 read with Section 34 of IPC?
2. Whether the prosecution further proves beyond all the reasonable doubts that on the above said date, time and place, A-1, A-2 and A-4 along with A-3 and A-5 against whom the case is split up, with a common intention were assembled together and preparing themselves to commit dacoity of the persons who pass by the said road by getting down from train and thereby they have committed the offence punishable under Section 399 read with Section 34 of IPC?
3. What Order?
11. The answer of this Court to the above points are;
1. Points Nos.1 & 2 : In Negative.
2. Point No.3 : As per the final order for the following reasons.
REASONS
12. POINTS Nos.1 AND 2:- As these points require common discussions, to avoid repetitions and for the sake of convenience, they are taken together for consideration.
13. The complainant police have filed charge sheet against A-1 to A-5 for the offences punishable under Sections 399 and 402 of IPC. So, it is burden on the 7 S.C.No.961/2018 prosecution to prove the guilt against A-1 to A-5 and so far this case, against A-1, A-2 and A-4 beyond all reasonable doubt with the material, supportive and corroborative evidence with cogent reasons.
14. Before venturing to discuss on the evidence let in by the prosecution, let this Court first to go through the relevant provisions of law to know the ingredients that attract the offences alleged i.e., Sections 399 and 402 of IPC which are extracted here below;
"399. Making preparation to commit dacoity.- Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.
402. Assembling for purpose of committing dacoity.- Whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
15. To know the definition of dacoity, now let this Court to go through the provision of Section 391 of IPC which reads;
8 S.C.No.961/2018
"391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".
16. So, let this Court now to have a look at the provision of Section 390 of IPC which defines robbery and reads;
"390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for the end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear or instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of 9 S.C.No.961/2018 instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear or instant death, or instant hurt, or instant wrongful restraint.
17. So, the ESSENTIAL INGREDIENTS to constitute robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily causes or attempts to cause to any person.-
(i) death, or
(ii) hurt, or
iii) wrongful restrain, or
(iv) fear of instant death, instant hurt, or instant wrongful restraint and the above act(s) is/are done -
(1) in order to the commission of the theft, or (2) in committing the theft, or (3) in carrying away or attempting to carry away any property obtained by the theft.
(b) Extortion is robbery when, 10 S.C.No.961/2018
(i) At the time of committing extortion the offender is in the presence of the person put in fear.
(ii) The offender commits extortion by putting that person in fear of instant death, hurt, or wrongful restraint - (1) to that persons, or (2) to some other person.
(iii) By so putting such person in fear, the offender induced the person so put in fear then and there so deliver the thing extorted.
18. In the present case on hand, as noted above, it is the allegations of the prosecution that on the alleged date, time and place, the accused by holding deadly weapons like machete, clubs and chilli powder packet were conspiring to commit dacoity and with a common intention were assembled together and preparing themselves to commit dacoity of the lone passers who pass by the railway parallel road near Nayandahalli railway gate by getting down from the train and thereby they have committed the offences alleged. Thus, the above allegations of the prosecution prima facie attract the ingredients of the offences alleged.
11 S.C.No.961/2018
19. As noted above, to prove its case, the prosecution got examined CWs-10, 2, 1, 5, 7 and 13 respectively as PWs-1 to 6.
20. It is in the charge sheet that CW-1/the complainant Sri.C.S.Anand is the then Police Inspector and also done the material investigation of the case on hand. He is examined as PW-3 and has deposed that;
a) He was working as Police Inspector in Chandra Layout police station since 08.05.2015 to 01.08.2016 and on 02.03.2016, around 10:00 p.m., he was in the station. By that time, he received the phone message from the informant that around 5 to 6 persons near Nayandanahalli Railway Gate, having weapons in their possession, conspiring to commit docoity.
b) So, he secured the presence of panchas by name Sri.Nagaraj and Sri.Harish as well as Hoysala ASI, Sri.Ramachandrappa and HC Sri.Ravikumar i.e., CWs-3 and 5 respectively as well as their ASI Sri.Kalegowda/CW- 4, HC Sri.Hanumagowda Patil/CW-6, PC-9150 Sri.Ranjan Pannari/CW-7 and PC-4776 Sri.Santhesha Godi and intimated them about the information. 12 S.C.No.961/2018
c) Around 10:15 p.m., he left the station in the Government jeep with the above panchas and staffs; reached the spot around 10:30 p.m., stopped the vehicle at a distance; got confirmed the information.
d) He made his staffs to cover the spot, where the suspects were and went near the said persons along with the panchas and heard their talk that "ಲಲಲ ಮಲರರ ಈ ಕಡ ಬರರವ ಜನರನರ ನ ಆಯಧಗಳಳದ ಹಲಡದರ, ಹದರಸ, ಕಲಲ ಮಡ ಆದರಲ ಸರ, ನ ದಲಲಚಕಲಳಡರ ಹಲಲಗ ಮಜ ಮಡಲಲಣ".
ಅವರ ಬಳ ಇರರವ ಒಡವಗಳನರ
e) Therefore, he gave signal to his staffs, to cover the said persons; made the raid and successful in catching all the 5 persons.
f) The enquiry revealed that the person caught hold by him and CW-7 is Mani S/o Vijayan, 21 years, door No.46, 9th Cross, Back side Santha Kumar School, Basaveshwara Nagar, Benglauru and there was a macchu in his possession.
g) The person caught hold by CW-4 is Ramesh S/o Narasimha, 24 years, No.107, 2nd Cross, 2nd Main, Jyothi Nagar, Chandra Layout, Benglauru who had a knife with him.
13 S.C.No.961/2018
h) The person caught hold by CW-5 is Murthy S/o Krishna, 30 years, No.74, 2 nd Main, Back side Vijaya Bank, Kalyana Nagar, Nagara Bavi Road, Bengaluru who had a club with him.
i) The person caught hold by CW-6 is Manjunatha S/o Narayanappa, 23 years, No.13, 2 nd cross, 3rd Main, Kalyana Nagara, Nagara Bavi Road, Bengaluru who had a club with him.
j) The person caught hold by CW-7 is Suman Sagar, S/o Chandrashekar, 28 years, No.106, 9th G Main Road near Government School, Bhairaveshwari Nagar, Nagara Bavi Bengaluru who had chilly powder packet.
k) Therefore, he seized the above properties by conducting the mahazar in the presence of panchas in between 11:00 p.m. to 12:30 a.m., put the above properties in a white cotton bag, duly packed and sealed, affixed the chit having signatures of his and the panchas.
l) He took the signatures of panchas to the mahazar at Ex.P-2, wherein the signature of CW-10 is Ex.P-2(a). The signatures of CWs-2 and 3 are respectively Ex.P-2(b) and 2(c).
14 S.C.No.961/2018
m) He returned to the station with the above accused persons, panchas, staffs, the properties and the mahazar; prepared his report at Ex.P-3 and handed over all the above to CW-10. His signature over Ex.P-3 is Ex.P-3(a).
n) He can identify the above properties if he sees them again. The properties at MO-1 to 4 are the said properties ie., a macchu, a button knife, 2 wooden clubs and a chilly powder packet respectively.
o) The chits over MO-1 to 4 are MO-1(a) to 4(a). His signatures over MO-1(a) to 4(a) are MO-1(b) to 4(b). The signatures of CW-2 are MO-1(c) to 4(c). The signatures of CW-4 are MO-1(d) to 4(d).
p) He can identify the above accused persons if he sees them again. The accused present before the Court on the date of his deposition are the two accused amongst the accused persons they caught hold on the date of incident.
21. It is in his cross examination for the accused that;
a) He received the information at 10:15 p.m. and reached the spot at 10:50 p.m. CW-5 was in Hoysala-56 15 S.C.No.961/2018 and the other staffs were in the station and he secured them for raid.
b) The distance between Chandra Layout police station and the alleged spot may around 1½ to 2 KMs.
c) He was at a distance around 10 feet, when he got confirmed the information. The accused Murthy was talking with the other accused and saying to rob the passers.
d) There were 5 staffs with him at the time of raid.
e) He can say who caught hold whom/the accused.
f) He and Sri.Shanthosh Godhi caught hold the accused Mani.
g) Sri.Kalegowda caught hold the accused Ramesh.
h) Sri.Hanume Gowda caught hold the accused Manjunatha.
i) Sri.Ranjan Pannari caught hold the accused Suman Sagar.
j) Sri.Ravi Kumar caught hold the accused Murthy.
k) He has denied that;
16 S.C.No.961/2018
(i) He did no raid as he has stated in his chief evidence and the present case is a false case registered for the purpose of statistics;
(ii) All the papers and properties are conveniently prepared and implicated and to substantiate the false case, he gave false evidence;
(iii) Though he did no raid, he created the complaint;
(iv) He gave false evidence to substantiate the false case though no properties were seized from the accused.
22. So, CW-1 deposed supporting the case of the prosecution in his chief evidence and stood on the same evidence in his cross examination as well, apart from the evidence that elicited in his cross examination that the accused Murthy was talking with other accused and saying to rob the passers.
23. But in his chief evidence, CW-1 as noted above, has stated that the persons/accused assembled in the spot were talking by referring the name of "Murthy", which is contradictory to his above noted evidence in his cross examination as the accused Murthy himself cannot refer his name and say to commit the alleged crime and it 17 S.C.No.961/2018 should be some other person who referred the name of "Murthy".
24. Thus, the above evidence of CW-1 in his cross examination that accused Murthy was talking with other accused and saying to rob the passers is a contradiction to his chief evidence that he heard the accused talking that "ಲಲಲ ಮಲರರ ಈ ಕಡ ಬರರವ ಜನರನರ ನ ಆಯಧಗಳಳದ ಹಲಡದರ, ಹದರಸ, ಕಲಲ ಮಡ ಆದರಲ ಸರ, ಅವರ ಬಳ ಇರರವ ಒಡವಗಳನರ ನ ದಲಲಚಕಲಳಡರ ಹಲಲಗ ಮಜ ಮಡಲಲಣ".
25. Apart from the above contradiction, there is nothing in the cross examination of CW-1 to disbelieve his chief evidence in support of the case of the prosecution.
26. It is stated in the charge sheet that CW-2 Sri.Ramachandraiah is the then ASI who assisted CW-1 in the raid. He is examined as PW-2 and has deposed that;
a) He has been working as ASI in Chandra Layout police station since April-2015 and on 02.03.2016, he and HC Sri.Ravikumar/CW-4 were deputed to Hoysala-55 for patrolling.
b) Accordingly, they were on patrol. By that time, around 10:00 p.m., the then PI Sri.C.S.Anand/CW-1 called 18 S.C.No.961/2018 them to come near Nayandalli Railway gate as he has received information that around 5 to 6 persons assembling, preparing themselves to commit docoity of the railway passengers and they had deadly weapons.
c) Immediately, they rushed to the above spot. By that time, the crime staffs ASI Sri.Kalegowda, HC Sri.Hanumegowda Patila, PC Sri.Ranjan Pannari, PC- Sri.Shanthesh Gondi also came to the above spot.
d) The Police Inspector/CW-1 also brought the two panchas.
e) There were 4 to 5 persons assembled on parallel road near Nayanadahalli Railway gate.
f) They stopped vehicle at a little distance and observed the talks between the above persons who were talking to rob the passengers from the train. They also possessed knife, club and etc.
g) Thereafter, they covered the above persons, who tried to escape. But, they succeeded to catch all the persons.
h) He caught hold Murthy with the help of Ravi Kumar.
19 S.C.No.961/2018
i) CW-1 seized the knife, club and chilly powder from the possession of the above persons who were caught hold by other officials.
j) The properties were put in a cotton covers and duly sealed. He can identify the properties and the accused persons if he sees them again.
k) He identified the said properties i.e., one macchu, one button knife, two wooden clubs and one chilly power pocket respectively at MOs-1 to 4.
l) He has also specifically identified the accused persons present in the open Court on the date of his deposition ie., the accused Manjunatha and Mani, but has identified the accused Ramesha as Santhosha.
m) He has also deposed that;
(i) Thereafter, CW-1 brought the accused persons and the properties to the station and produced before CW-10.
(ii) He gave statement in the course of investigation before the IO.
27. It is in his cross examination for the accused that;
a) The direction was oral direction. 20 S.C.No.961/2018
b) The accused Murthy possessed clubs.
c) The accused Manjunath had knife.
d) The accused Mani had Machu.
e) He does not remember in whose possession the chilly powder pocket was.
f) He does not know if it is suggested that the above facts are not stated in his statement.
g) They stationed the vehicle at a distance at 200 to 300 feet and he cannot say who was saying what specifically.
28. So, the chief evidence of CW-2 is contradictory to the evidence of CW-1 in respect of the place where they assembled as it is his evidence that he and CW-4 who were on Hoysala patrolling, on the directions of CW-1 directly rushed to the spot; by then the other police officials also came to be spot and CW-1 brought the panchas.
29. On the other hand it is the chief evidence of CW-1 that he secured the panchas and all the staff briefed them the information and left the station at 10;15 kp.m. which indicates that he secured the presence of all the staffs and 21 S.C.No.961/2018 the panchas accompanied him to the raid to the station and briefed them the information in the station only.
30. Apart from the above contradiction, CW-2 also deposed supporting the prosecution in his chief evidence and stood on the said evidence even in his cross examination. But, he was bound over for the further cross examination on the request of the accused, but, later his presence could not be secured because of his health condition as it is reported that he is bed ridden and unable to move as well as to speak.
31. The next witness examined is CW-4 Sri.Ravikumar the then HC-5332 who also assisted CW-1 in the raid. He is examined as PW-4 and has deposed that;
a) He was working as HC-5332 in Chandra layout police station since 2013 to 2019 and on 02.03.2016, he was the driver of Hoysala-55 and on beat.
b) By that time, around 10:00 p.m., they received information from their then Police Inspector Sri.C.S.Anand/CW-1 that he received information that near Nayandana Halli Railway gate, around 5 to 6 persons, having deadly weapons, conspiring to commit docoity and 22 S.C.No.961/2018 called them to the station and accordingly, immediately, they went to the station.
c) In the station, he, the then ASI Sri.Ramcharaiah/CW-3, ASI Sri.Kalegowda/CW-4, HC Sri.Hanumagowda/CW-6, PC Sri.Ranja Pannari/CW-7, PC, Sri.Shantesh Gondi/CW-8 joined together and left the station at 10:15 p.m., went in their Hoysala-55 to the above spot and reached it at 10:30 p.m.
d) They stopped their vehicle at a distance and watched. They found around 5 to 6 persons in a group conspiring to commit docoity. So, in the leader ship of CW- 1, they covered the above persons and caught hold them.
e) The enquiry revealed that the person caught hold by him and CW-3 was Murthy S/o Krishna, 30 years who had a wooden club in his possession. The other staffs and officers caught hold the other 4 persons.
f) He can identify the above accused persons if he sees them again. The 3 accused persons he seen in the open Court on the date of his deposition are the 3 persons amongst the above said 5 persons.
23 S.C.No.961/2018
g) In the course of investigation, he gave statement before the IO.
32. In his cross examination for the accused he has denied that;
a) They did not make any raid and caught hold any persons much less the accused persons.
b) He saw the accused persons only 1 st time in the open Court.
c) Convenient to the case, on the instance of his higher officers, he gave false evidence.
33. So, CW-4 deposed supporting the oral testimony of CW-1 and thereby the case of the prosecution and his evidence is contradictory to the evidence of CW-2 in respect of the place where they assembled i.e., as noted above, CW-2 has stated that they directly went to the spot, on the other hand CW-4 has deposed that they went to the police station and left the station with CW-1, pancahs and the other staffs.
34. The next witness examined is CW-7 the then PC 4776 Sri.Shantesh Godi who is examined as PW-5 has deposed that;
24 S.C.No.961/2018
a) He was working as PC-4776 in Chandra Layout police station since 2009 to July 2016 and on 02.03.2016, at 10:00 p.m., he was on rounds.
b) By then, the then Police Inspector Sri.C.S.Anand/CW-1 called him to the police station and intimated him and the other officers and staffs i.e., Sri.Kalegowda ASI, Sri.Hanumegowda Patela, Sri.Ranjan Pannari and Hoysala 55 ASI, Sri.Ramchandraiah and Sri.Ravi Kumar that he has received the information from the informants that 5 to 6 persons having deadly weapons in a group conspiring to commit docoity near Nayandanahalli Railway Gate.
c) For the raid, he secured the presence of 2 panchas by name Sri.Arvinda and Sri.Harish.
d) Along with the said panchas and the staffs and officers stated above, CW-1 left the station in a government jeep at around 10:15 p.m. and reached near the above spot at 10:30 p.m.
e) Hiding their presence, they observed the spot and found 5 persons on railway parallel road in a group having the weapons.
25 S.C.No.961/2018
f) Amongst the above 5 persons, someone told that "ಲಲಲ ಮಲರರ ಈ ಕಡ ರರಲರ ಇಳದರ ಬರರವ ದರಹಲಲಕರನರ ನ ತಡದರ ನ ತಡದರ ಸರಲಗ ಮಡಲಲಣ".
ಅವರರನರ
g) So, they all covered them and caught hold all the 5 persons, who tried to escape from the spot on seeing them.
h) The enquiry revealed that he and CW-1 caught hold the accused by name Mani who had a macchu in his hands.
i) The ASI Sri.Kalegowda caught hold the accused by name Ramesha who had a knife in his hands.
j) The Hoysala staffs Sri.Ravi Kumar and Sri.Ramchandraiah caught hold the accused by name Murthy who had a wooden club in his hands.
k) Sri.Hanumanagowda Patil caught hold the accused by name Manjunatha who had a wooden club in his hands.
l) Sri.Ranjan Pannari caught hold the accused by name Sumanth Sagar who had a chilly powder packet in his hands.
m) CW-1 conducted the mahazar in the presence of the panchas and seized the above properties by putting them in a cotton cover, duly packed and sealed with "PSS" 26 S.C.No.961/2018 English letters, affixed the labels having signatures of CW- 1 and panchas.
n) They came back with the above accused and the properties to the station around 1:30 a.m. and CW-1 handed over the accused, the properties with his report to the then PSI Sri.C.Ravikumar.
o) In the course of investigation, he gave statement before the IO.
p) He can identify the above properties if he sees them again, which are the properties shown to him at MO- 1 to 4.
q) The accused present before the Court on the date of his deposition are Ramesh, Manjunatha and Mani to whom he identified specifically with their names.
35. It is in his cross examination for the accused that;
a) No written order was given by CW-1 and it was oral order.
b) The distance between their station and the alleged spot may around 1½ KM.
c) He has denied that;
27 S.C.No.961/2018
(i) There were no 5 accused persons in the spot.
(ii) He did not visit the spot and caught hold any accused persons as he has stated.
(iii) No incident taken place as he has stated, despite of that, on the instance of his higher officers, he gave false evidence.
36. So, CW-7 deposed supporting the oral evidence of CW-1 including the alleged fact of their hearing the accused talking that "ಲಲಲ ಮಲರರ ಈ ಕಡ ರರಲರ ಇಳದರ ಬರರವ ದರಹಲಲಕರನರ ನ ತಡದರ ಸರಲಗ ಮಡಲಲಣ". But, he ನ ತಡದರ ಅವರರನರ gave evidence by making note on his hand which is noted in his deposition.
37. The other witness examined for the prosecution is CW-10 Sri.Surakatti P.Y., the then police constable, who submitted the FIR before the jurisdictional Magistrate. He is examined as PW-1 and has deposed that;
a) He was working as PC-4734 in Chandra Layout police station.
b) Around three years back and on 03.03.2016, around 11:00 a.m., he had submitted the FIR at Ex.P-1 28 S.C.No.961/2018 before the then VIII ACMM, Bengaluru on the directions of the then PSI Sri.Ravikumar/CW-13.
38. In his cross examination for the accused he has admitted that Ex.P-1 reveals the time of receipt of FIR is 4:00 p.m.
39. So, prima facie, there is delay in submission of FIR before the jurisdictional Magistrate as in his chief evidence, CW-10 has deposed that he received the FIR at 11:00 a.m. but as per the endorsement, the FIR was submitted at 4:00 p.m.
40. The last witness examined is CW- 13/Sri.C.Ravikumar, the then PSI who concluded the investigation and filed the charge sheet. He is examined as PW-6 and has deposed that;
a) He was working as PSI in Chandra Layout Police Station in Law and Order from 01.09.2014 to 16.09.2019 and on 03.03.2016, around 1:40 a.m., he was in charge of SHO.
b) By that time, the then Police Inspector Sri.C.S.Anand came to the station along with CWs-2 to 7 29 S.C.No.961/2018 and presented a written complaint at Ex.P-3, wherein his signature is Ex.P-3(b).
c) It is stated in Ex.P-3 that;
(i) CW-1 along with CWs-2 to 7 was on night beat, he received credible information around 10:00 p.m. that around 5 to 6 persons having deadly weapons in their hands, to conspiring to commit docoity near Nayandanalli Railway Gate.
(ii) Accordingly, he secured the panchas and with the assistance of CWs-2 to 7, made the raid in the presence of the panchas, found around 5 to 6 persons in the spot, succeeded in catching 5 persons.
(iii) By conducting the mahazar, seized the weapons in the hands of said persons in the presence of panchas and produced them along with mahazar and the complaint before him.
d) Based on Ex.P-3, he registered the case in Cr.No.91/2016 for the offences under Sections 399 and 402 of IPC, prepared the FIR at Ex.P-1, wherein his signature is Ex.P-1(a).
30 S.C.No.961/2018
e) He sent the FIR at Ex.P-1 to the jurisdictional Magistrate and the copies thereof to his higher officers.
f) The mahazar at Ex.P-2 is the mahazar produced by CW-1 along with his complaint at Ex.P-3 and his signature over Ex.P-2 is Ex.P-2(a).
g) The properties produced by CW-1 before him i.e., the properties seized under Ex.P-2 are one iron chopper, one button knife, 2 clubs and a chilly powder packet and he mentioned the said properties to the PF.No.34/2016 at Ex.P-4, wherein his signature is Ex.P-4(a).
h) He can identify the said properties if he sees them again. The said properties are the properties at MO-1 to 4 and he identifies them.
i) CW-1 produced 5 accused persons before him along with his complaint at Ex.P-3. The said accused persons are A-1 Mani, A-2 Ramesh, A-3 Murthy, A- 4 Manjunatha and A-5 Suman Sagar.
j) He subjected the above accused persons to the arrest procedures and recorded their voluntary statements, wherein they have admitted their involvement in the commission of offence.
31 S.C.No.961/2018
k) He can identify the above accused if he sees them again. The accused persons present before the Court on the date of his deposition are Mani, Ramesh @ Juice Ramesha and Manjunatha and he identified the above accused specifically with their names.
l) He has also deposed that thereafter, on the same day, he recorded the statements of CWs-2 to 10.
m) Thereafter, he visited the spot and got prepared the rough sketch at Ex.P-5 by his writer, wherein his signature is Ex.P-5(a).
n) Later, on the same day, he produced the above accused persons before the jurisdictional Magistrate under the remand warrant.
o) By then, since the investigation was over and there were prima facie materials against the accused persons for the offences alleged, he prepared the charge sheet and submitted and it is in his cross examination for the accused that;
a) Before the raid, CW-1 did not give any intimation to him about the information he has received. 32 S.C.No.961/2018
b) It is not mandatory to mention in the station house dairy about the information before proceeding for investigation.
c) There was no mention in the station house dairy by CW-1 about the information he has received before he proceeds for investigation.
d) There is no mention in either the complaint or in the mahazar in respect of subjecting the persons alleged to be participated in the raid to the body search before making the alleged raid.
e) He has admitted that there is slum board houses and other residential houses and factories on either sides of the road leads to Nayandanahalli.
f) He did not record the statements of the local persons when he visited the spot.
g) He has denied that;
(i) No incident was taken place as he has stated in his chief evidence and they are created for the purpose of this case which was registered for the statistic purpose.
(ii) There is no nexus between the accused persons and the present alleged crime.
33 S.C.No.961/2018
h) Though he has admitted that the material objects like MO-1 to 4 are available in the open market, he has denied that for the purpose of this case, MO-1 to 4 are created.
i) He has denied that;
(i) Though the accused persons did not give any voluntary statements, they were created convenient to the case.
(ii) Convenient to the case, he created the statements of CWs-2 to 10.
(iii) He saw the accused persons 1 st time in the open Court.
(iv) There is no nexus between the accused persons and the present crime, but he filed the false charge sheet and to substantiate the same, he gave false evidence.
41. So, the evidence of CW-13 is in support of the prosecution in respect of the investigation he has conducted and nothing has been elicited in his cross examination to disbelieve his oral evidence, but, it is elicited that there is non compliance of the mandatory requirement of mentioning the information in the station 34 S.C.No.961/2018 house diary in the absence of nay such urgency and non subjecting of the police officials to the body search before the alleged raid.
42. Therefore, even all the police officials examined for the prosecution, i.e., CWs-1, 2, 4 and 7 deposed supporting the prosecution in respect of the alleged raid and CW-13 in respect of the investigation, in view of,
a) The contradiction in the evidence of CW-1 noted above with regard to the hearing of the alleged talk;
b) Though CW-4 also deposed supporting CW-1 in respect of the alleged talk, but, he gave evidence by making note on his hands;
c) The contradiction in the evidence of CW-2 against the evidence of CWs-1 and 4 in respect of the place they assembled before proceeding to raid observed above;
d) The non compliance of mandatory requirement of mentioning the information in the station diary unless the urgency to proceed for raid which is not stated in the case on hand and non subjecting the police officials and the panchas to the body search before the making the alleged raid; and 35 S.C.No.961/2018
e) Non examination of the panchas and thus, no supportive evidence to the evidence of police officers in respect of the alleged incident by the mouth of the independent witness, the prosecution has failed to prove its case beyond all shadow of doubts against A-1, A-2 and A-4 for the offences alleged. Accordingly, these points are answered in negative.
43. POINT No.3:- In view of the finding of this Court to above points and for the reasons discussed above, this Court proceeds to pass the following order.
ORDER Acting Under Section 235(1) of Cr.P.C., A- 1, A-2 and A-4 are hereby acquitted for the offences punishable under Sections 402 and 399 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1, A-2 and A-4 shall be canceled after lapse of appeal period.
MO-1 to 4 are ordered to be preserved till the disposal of the case split up against A- 3 and A-5 in CC.No.8516/2018 on the file of 36 S.C.No.961/2018 the trial Court i.e., VIII ACMM., Bengaluru City.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 3rd day of March, 2022).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE PROSECUTION:-
PW.1 Parasappa Sorakatti
PW.2 Ramachandraiah
PW.3 C.S.Anand
PW.4 C.N.Ravikumar
PW.5 Shanthesh Godhi
PW.6 Ravikumar.C.
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION :-
Ex.P-1 FIR
Ex.P-1(a) Signature of PW-6
Ex.P-2 Mahazar
Ex.P-2(a) Signature of PW-3
Ex.P-2(b) Signature of CW-2
Ex.P-2(c) Signature of CW-3
Ex.P-3 Report
Ex.P-3(a) Signature of PW-3
Ex.P-3(b) Signature of PW-6
37 S.C.No.961/2018
Ex.P-4 PF.No.34/2016
Ex.P-4(a) Signature of PW-6
Ex.P-5 Rough Sketch
Ex.P-5(a) Signature of PW-6
LIST OF DOCUMENTS EXHIBITED FOR DEFENCE :-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO-1 : Machu
MO-1(a) : Chit over the cover
in which MO.1 is kept
MO-1(b) : Signature of PW-3
MO-1(c) : Signature of CW-2
MO-1(d) : Signature of CW-4
MO-2 : Button knife
MO-2(a) : Chit over the cover
in which MO.2 is kept
MO-2(b) : Signature of PW-3
MO-2(c) : Signature CW-2
MO-2(d) : Signature of CW-4
MO-3 : Two wooden clubs
MO-3(a) : Chit over the cover
in which MO.3 is kept
MO-3(b) : Signature of PW-3
MO-3(c) : Signature of CW-2
MO-3(d) : Signature of CW-4
MO-4 : One chilly powder packet.
MO-4(a) : Chit over the cover
in which MO.4 is kept
MO-4(b) : Signature of PW-3
MO-4(c) : Signature of CW-2
MO-4(d) : Signature of CW-4
38 S.C.No.961/2018
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.39 S.C.No.961/2018
The accused Nos.1, 2 and 4 and their counsels are present. Kept by for judgment.
Again called at 4:50 p.m. The accused Nos.1, 2 and 4 and their counsels are present.
The Judgment is pronounced in the open Court (vide separate Order).
ORDER Acting Under Section 235(1) of Cr.P.C., A-1, A-2 and A-4 are hereby acquitted for the offences punishable under Sections 402 and 399 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1, A-2 and A-4 shall be canceled after lapse of appeal period.
MO-1 to 4 are ordered to be preserved till the disposal of the case split up against A-3 and A-5 in CC.No.8516/2018 on the file of the trial Court i.e., VIII ACMM., Bengaluru City.
LXVI Addl.CC & SJ, Bengaluru