Bangalore District Court
State By: Police Inspector vs 3.Sampath Rao @ Ahokee on 26 June, 2018
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT
SRI.PATIL MOHANKUMAR BHEEMANAGOUDA
B.Com.,LL.B.,(Spl)
LXV ADDL CITY CIVIL & SESSIONS JUDGE,
BANGALORE
DATED THIS THE 26TH DAY OF JUNE, 2018
S C No. 497/2016
COMPLAINANT: State by: Police Inspector,
Nandini Layout Police Station,
Bengaluru.
(Reptd. by Public Prosecutor)
/ Vs /
ACCUSED: 3.Sampath Rao @ Ahokee
S/o Mallikarjuna,
Aged about 20 years,
R/o Kalyanamantapa Residential
Quarters,
Basaveshwaranagar, Banglaore.
Date of Commencement 22.01.2012
of offences
Date of report of 22.01.2012
offences
Sri. N.B.Sakri,
Name of complainant Police Inspector
Date of recording of 15.04.2015
2 S.C.No.497/2017
evidence
Date of closing of 09.02.2016
evidence
Offence complained off U/s. 399 and 402 of IPC
Opinion of the judge Acquittal
****
JUDGMENT
This is a split up charge sheet filed by the Banashakari P.S., as against accused No.3 for the offences punishable u/sec.399 and 402 of IPC.
2. Brief facts of prosecution case are as follows:-
The complainant/CW.1 N.B.Sakri, PI, CCB, N.T. Pet, Bangalore, states that on 22.1.2012, at about 6.30 p.m., when he was discharging duty at his office, received credible information that near Gurukulam Kidzee Play Home, situated at 6th Cross, that lies within the limits of Nandini Layout Police Station, Bangalore about seven to eight assailants had gathered holding with deadly weapons, are making preparation to commit murder of 3 S.C.No.497/2017 one Pavan.K, Karthik @ Lodde, Manja @ Kothi Manja and to rob valuables from them. The complainant further states that, he immediately summoned CW.2 Babu and CW.3 D.Viji, the independent panchas and requested them to act as Panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff i.e., CW.4 to CW.11, the police personnel attached to CCB rushed near the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking amongst themselves that, they would commit dacoity. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of seven persons and three of them ran away. He further states that, the 4 S.C.No.497/2017 accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparations to commit dacoity. The complainant further states that, he seized two long choppers, 5 cell phones, wooden club and chilly powder packet and then CW.1 by drawing mahazar, has seized those deadly weapons from these accused persons and in the presence of two panchas i.e., CW2 Babu and CW3 D.Viji and conducted the mahazar. Thereafter, he came to the police station along with accused and seized articles and lodged complaint before CW.12 Hemanth Kumar.
3. Learned VII ACMM, Bangalore, took cognizance of the offences punishable U/s.399 and 402 of IPC. After committal, the case is numbered as SC No.665/2012 and then made over to this court, for disposal in accordance with law. During the pendency of case accused No.2 and 3 remained absconding. Hence, this court passed an 5 S.C.No.497/2017 order to split up the case and register separate case against them. Accordingly S.C.No.192/2016 has been registered against Accused No.2 and Accused No.3. Again, during the pendency of case, A3 remained absent and hence, this court passed an order to split up the case as against A3 and to register a separate case against him. Accordingly SC No.497/17 has been registered against accused No.3. After hearing, charges framed and explained to Accused No.3 for the offences punishable U/s.399 and 402 of IPC. However, Accused No.3 pleaded not guilty of the charges leveled against him and he claimed to be tried. Hence the case has been posted for trial.
4.The prosecution in support of its contention had totally cited 13 witnesses i.e., CW.1 to CW.13. However, the prosecution was able to secure and examine only two witnesses, i.e., PW.1 and 2 and documents at Ex.P.1 and P2, got identified M.O.1 to 9 were marked. The prosecution was able to secure and examine only CW.1 6 S.C.No.497/2017 and 13. Even though sufficient opportunity was given, prosecution was unable to secure CW.2 and CW.3. Hence, prayer of learned PP was rejected and CW.2 and 3 were dropped. Learned PP has given up CW.4 to 11.
5.The accused was examined U/s.313 Cr.P.C., The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against him. The accused has not chosen to lead any defense evidence on his behalf.
6.Heard argument from both sides.
7. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that on 22.01.2012 at about 6.30 p.m. within the limits of Nandini Layout P.S near Gurukulam Kidzee Play home situated at 6th Cross, accused No.3 along with other accused persons by holding deadly weapons i.e., 7 S.C.No.497/2017 long choppers, wooden club and chilly powder packet, were making preparation to commit dacoity and thereby committed an offence punishable U/s.399 of IPC?
2. Secondly, whether the prosecution beyond all reasonable doubt proves that on the said date, time and place, Accused No.3 along with other accused persons, had assembled at the said spot to commit dacoity and thereby committed an offence punishable U/s.402 of IPC?
3. What Order?
8. My answer to the above points are:
POINT NO.1 : In the Negative POINT NO.2 : In the Negative POINT NO.3 : As per the final order for the following:
REASONS
9. POINT NOs.1 and 2: Since these points are interconnected with each other, for the sake of convenience and to avoid repetition of facts and 8 S.C.No.497/2017 evidence, I would like to take these points together for common consideration.
10. The complainant N.B. Sakri, the then PI, CCB, OCW Squad, Bangalore, has been examined as PW1, he states that on 22.1.2012, at about 6.30 p.m., when he was discharging duty at his office, received credible information that near Gurukulam Kidzee Play Home, situated at 6th Cross, that lies within the limits of Nandini Layout Police Station, Bangalore about seven to eight assailants had gathered holding with deadly weapons, are making preparation to commit murder of one Pavan.K, Karthik @ Lodde, Manja @ Kothi Manja and to rob valuables from them. The complainant further states that, he immediately summoned CW.2 Babu and CW.3 D.Viji, the independent panchas and requested them to act as Panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff i.e., CW.4 to CW.11, the police personnel attached to CCB rushed near the scene of offence. They 9 S.C.No.497/2017 stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that, the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that, these assailants were holding deadly weapons in their hands and they were talking amongst themselves that, they would commit dacoity. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of seven persons and three of them ran away. He further states that, the accused did not give proper answers for their assembling in the said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparations to commit dacoity. The complainant further states that, he seized two long choppers, 5 cell phones, wooden club and chilly powder packet and then CW.1 by drawing mahazar, has seized those deadly weapons from these accused persons and in the presence 10 S.C.No.497/2017 of two panchas i.e., CW2 Babu and CW3 D.Viji and conducted the mahazar. Thereafter, he came to the police station along with accused and seized articles and lodged complaint before CW.12 Hemanth Kumar.
11. PW.1 has elaborately deposed of having arrested the accused persons and of having seized the deadly weapons from the possession of accused persons. He has further deposed that, in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.1. He also identifies the deadly weapons seized i.e. two long choppers, 5 cell phones, wooden club and chilly powder packet and accordingly, they were marked as M.O.1 to M.O.9. He states that, he has conducted panchanama as per Ex.P1 in the presence of CW.2 and CW.3. He identifies the accused person. PW.1 has been cross examined by the leaned advocate for accused. Further on careful perusal of cross examination, I am of the 11 S.C.No.497/2017 opinion that, nothing material has been elicited, so as to discredit his testimony.
12. PW.2 B. N. Krishnamurthy, the then PI of Nandini Layout, is the I.O, who has conducted part of the investigation. He states that, he took up further investigation from CW.12 Hemanthkumar, and after verification of the case records, he submitted charge sheet. He has also deposed about the investigation done by CW12 Hemanthkumar.
13. The prosecution in order to prove its case, has totally cited 13 witnesses i.e. CW1 to CW.13. However, the prosecution was able to summon and examine only two witnesses i.e. PW1 and PW2. Even though, sufficient opportunity was given and coercive steps were taken, the prosecution was unable secure the material/independent witnesses i.e., mahazar witnesses CW2 and CW3. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The learned PP has given up CW4 to CW12.
12 S.C.No.497/2017
14. It is the specific case of prosecution that the complainant had received credible information that, the accused persons had assembled at the said spot with an intention to commit dacoity. They had assembled with deadly weapons like two long choppers, 5 cell phones, wooden club and chilly powder packet and they were making preparation to commit dacoity. PW.1 has specifically stated that, upon receipt of credible information, he immediately summoned two independent pancha witnesses i.e. CW.2 Babu and CW.3 D. Viji. He requested them to act as panchas, upon which the panchas have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that, they stopped their vehicle at some distance from the spot and observed the accused persons. He was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with staff have surrounded the accused and they were 13 S.C.No.497/2017 able to apprehend accused No.1 to 7. Meanwhile, accused No.8 to 10 managed to escape from the spot. The complainant has further stated that, from the possession of the accused, he has recovered the deadly weapons, used for committing dacoity. He states that, in the presence of 2 independent panchas i.e., CW2 and CW3, he has seized the articles i.e. two long choppers, 5 cell phones, wooden club and chilly powder packet. He has conducted the mahazar as per Ex.P.1 in the presence of those two material and independent mahazar witnesses. The burden is very heavy upon the prosecution to prove the mahazar as per Ex.P.1, to prove that these Material Objects were seized from the accused persons who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized two long choppers, 5 cell phones, wooden club and chilly powder packet. In order to prove these aspects, evidence of PW1 and PW2 has to be fully 14 S.C.No.497/2017 corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
15. It is pertinent to note that, even though sufficient opportunity was given and coercive steps were taken to secure CW2 and CW3, the prosecution was unable to secure them. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The only evidence on record is that of the complainant i.e. PW.1, who was PI attached to the CCB, OCW Squad, Bangalore. Evidence of PW.1 is corroborated by the evidence of PW.2, who has conducted the investigation.
Before adverting to appreciation of evidence of aforesaid witnesses, it is necessary to state that under Section 399 of IPC, preparation to commit dacoity is made punishable.
16. The entire prosecution case rests on the testimony of PW1 Sri N.B. Sakri, who was the member of the raiding party. According to the testimony of this 15 S.C.No.497/2017 witness, seven to eight persons had assembled at the place of occurrence and were found in possession deadly weapons. That being so, this Court has to determine as to whether the accused persons can be convicted for the offences punishable under Sections 399 and 402 of IPC and whether the ingredients of the said sections have been proved by the prosecution or not. However before this Court can do so, it will be necessary to refer to the case law on the subject.
17. I would like to rely upon the decision of the Hon'ble supreme court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502
18. This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein the Hon'ble Supreme Court has observed:-
16 S.C.No.497/2017
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."
It has been further held that, "The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of five appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
17 S.C.No.497/2017
It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity".
19. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 and 402 IPC. As discussed herein above, prosecution has examined one member of the raiding party, who has deposed on the lines of the case of prosecution but has not said even a single word that accused persons were making preparation to commit dacoity. The witness states that after seeing about five to six persons near Gurukulam Kidzee Play Home, situated at 6th Cross, that lies within the limits of Nandini Layout Police Station, Bangalore, PW.1 gave the signal and when the complainant along with staff surrounded, 18 S.C.No.497/2017 the accused persons tried to run away in different directions. Out of them three persons managed to run away but seven were apprehended. The deadly weapons like M.O.1 to 9 i.e. Gurukulam Kidzee Play Home, situated at 6th Cross, that lies within the limits of Nandini Layout Police Station are shown to have been recovered from the accused persons. This is the only case of prosecution, which in my opinion is not sufficient to convict the accused person for the offences as indicated.
20. The prosecution was under obligation to establish that, the assembling of the accused persons was for making preparations to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found at vacant place, it cannot be held that they had assembled there for preparation to commit dacoity.
19 S.C.No.497/2017
21. It is true that so far as the offence u/s 402 IPC is concerned, it may be mentioned that this section applies for mere assembling without proof of other preparation. The offence u/s 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case it is not in dispute that, at the spot only seven to eight persons are shown to have been apprehended. According to the prosecution, three persons managed to run away from the spot. This is unbelievable. The raiding party was having around six police officials and some of them were having arms. In these circumstances, how, three accused managed to run away is not explained. There is nothing on record which could show that efforts were made to chase them or to apprehend them.
22. Further, during the evidence of prosecution witnesses i.e. members of raiding party, it has come on record that there was complete darkness. That being so, how the members of raiding party could locate the 20 S.C.No.497/2017 position of the accused persons, when admittedly members of raiding party were positioned in different directions from each other and there was complete darkness. This all has created a doubt about the presence of five or more persons at the spot, which is mandatory to bring the case within the ambit of section 402 IPC, as admittedly on the spot three persons were apprehended. It has not been explained as to how three accused persons namely Manikanta, Lokee and Preetham were connected with the present case, when they ran away from the spot and there was complete darkness. On what basis they were identified as the culprits, remained unexplained.
23. Another important aspect to be noted is that, the prosecution has failed to prove that, there was any overt act on the part of any of the accused persons which may lead to the inference that, they had any intention to commit dacoity or they were planning to commit dacoity over there. It is a matter of common knowledge that, any 21 S.C.No.497/2017 person who is shown to have in possession of deadly weapons would definitely resist his apprehension by police officials, under the fear of being booked in criminal case. In this background, the story as set up by the prosecution does not appeal reasoning and is liable to be rejected.
24. Moreover, records would indicate that, presence of public witness could have been secured by the complainant who was heading the raiding party. The incident is shown to have taken place at about 6.30 p.m. Moreover, record would indicate that said place is a public place. This shows that, with a little effort, public witnesses could have been made to join the investigation. However, the prosecution has not secured any public witnesses from the said locality/spot of incident. Even the mahazar witnesses, have been secured from different places.
25. In the present case prosecution tried to bring home guilt of the accused person by relying upon the 22 S.C.No.497/2017 versions of police official who was member of the raiding party and the I.O who has conducted investigation. A bare perusal of their version clearly reflects the same to be of stereo type. Hence, I am of the opinion that, it will be highly unsafe to rely upon their version.
26. In the present case, prosecution tried to bring home the guilt of the accused person by relying upon the testimony of the police official who was member of the raiding party and the I.O. Their testimony is of stereo type as discussed herein above, which should have been supported by some independent witness, which is failing in the present case. The manner in which stereo type deposition has been given without any corroboration or support from any other independent witness is sufficient to disbelieve their version, even in respect of alleged recovery of deadly weapons from the possession of accused persons. The entire proceedings carried out by the raiding party are under the cloud and it would not be safe to place reliance upon the quality of the evidence as 23 S.C.No.497/2017 adduced by the prosecution. Therefore, the recovery of deadly weapons pursuant to the said proceedings or incident has also become doubtful. There is no independent corroboration to said recovery also.
27. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has miserably failed to prove the offences against the accused person beyond shadow of doubt. Thus, I am left with no option but to acquit the accused person. Accordingly, I answer point No.1 and 2 in the 'Negative'.
28. POINT NO.3 : For the above reasons, I proceed to pass the following :
ORDER Acting under Sec.235(1) of Cr.P.C., Accused No.3 is acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
Accused No.3 is set at liberty forthwith, if he is not required in any other cases.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.9 in connection with the split up 24 S.C.No.497/2017 case registered against absconding accused.
(Directly dictated to the stenographer on computer, corrected and then pronounced by me in the Open Court on this the 26th day of June, 2018) (PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW-1 N.B. Sakri
PW-2 B. N. Krishnamurthy.
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P.1 Mahazar
Ex.P.2 Complaint
LIST OF MATERIAL OBJECTS MARKED
MOs-1 and 2 Long choppers
MO-3 Wooden Club
MO-4 Chilly Powder
MOs-5 to 10. 5 Cell phones.
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE:
-NIL-
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
25 S.C.No.497/2017
Dt:26.6.2018
State by : PP
A3 : Sri.PRB
For judgment
Judgment pronounced in open court,
vide separately,
ORDER
Acting under Sec.235(1) of Cr.P.C.,
Accused No.3 is acquitted for the
offences punishable u/Sec. 399 and 402 of IPC.
Accused No.3 is set at liberty forthwith, if he is not required in any other cases.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.9 in connection with the split up case registered against absconding accused.
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bangalore.