Bangalore District Court
State By Srirampura Police Station vs No: 5. Manja @ Margabandhu on 2 December, 2022
KABC010211552017
Presented on : 29-08-2017
Registered on : 29-08-2017
Decided on : 02-12-2022
Duration : 5 years, 3 months,
4 days
IN THE COURT OF THE LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE (CCH-65) AT BENGALURU.
Dated this 2 nd day of December, 2022
-: P R E S E N T :-
Smt. Kalpana M.S.,
B.Sc., LL.M.,PGD-CLCF.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
SESSIONS CASE NO.1068/2017
COMPLAINANT:- State by Srirampura Police Station,
Bengaluru.
-Vs-
ACCUSED NO: 5. Manja @ Margabandhu,
S/o.Narasimga,
Aged about 20 years,
R/at.No.108, 7th Main,
7th Cross, Ambedkar Nagar,
Srirampura,
Bengaluru city.
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TABULATION OF EVENTS
1. Occurence of the offence & time : 01.11.2013, 7.00 p.m.
2. Report of the offence & time : 01.11.2013, 8.40 p.m.
3. Date of arrest of the Accused : A.5 voluntarily appeared
on 24.06.2017
4. Date of release of accused : 24.06.2017
5. Name of the complainant : Sri Sridhar K.Poojar
6. Date of commencement of trial : 04.11.2022
7. Date of closure of trial : 26.09.2022
8. Offences complained of : Sec.399 & 402
of I.P.C.,
9. Opinion of the Judge : Accused No.5
not found guilty
10. State represented by : Learned
Public Prosecutor
11. Accused defended by : By Sri.Dilip Kumar H.B.,
Advocate
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S.C.No.1068/2017
JUDGMENT
The Police Sub-Inspector of Srirampura police station, Bengaluru has filed charge sheet against accused No.1 to 5 for offences punishable U/s.399 and 402 of the Indian Penal Code, in Cr.No.214/2013.
2. Case of the prosecution in brief is as under; The Police Inspector, Sridhar K. Poojar, of CCB., Organized Crimes Branch, received a credible information on 1.11.2013 at about 6.00 p.m., from the informer that, near Auto rickshaw parking place situated at 7th Main road, Sai Baba Nagar, Srirampura, Bengaluru, about 5 to 6 persons were assembled and making preparation by holding deadly weapons with an intention to commit dacoity on the spot and who are passing on the road. Accordingly, the complainant along with his officials and panchas visited to the spot and get 4 S.C.No.1068/2017 confirmed that, about 5 persons were assembled armed with deadly weapons and making preparations to commit dacoity and conducted raid and caught hold three persons and recovered iron chopper, wooden club, chilli powder packet from the possession by conducting the seizure panchanama. Two persons were ran away from the spot. Thereafter, complainant produced the accused persons and material objects before the police inspector, Srirampura police station with his report. On the basis of the complaint, case against accused No.1 to 5 was registered in Cr.No.214/2013 for the offences punishable U/s. 399 and 402 of I.P.C.
3. In the course of investigation, Investigating Officer recorded voluntary statements of accused and thereafter, accused No.1 to 4 were produced before Learned Magistrate, and remanded to Judicial Custody. 5
S.C.No.1068/2017 Investigating Officer has also recorded statements of other police officials, who accompanied complainant, while conducting raid. After completion of investigation, charge sheet is submitted for trial of offences punishable U/s.399 and 402 of I.P.C.
4. Cognizance for the offences shown in the charge sheet was taken against the accused persons by the Learned Magistrate. Thereafter, criminal case against accused N.1 to 4 was registered in C.C.No.2587/2014 on the file of Addl.Metropolitan Magistrate, Bengaluru. The case against accused No.5 was split up and separate case registered in C.C.No.27427/2014 on the file of VII- Addl.Chief Metropolitan Magistrate, Bengaluru. Since offences alleged against accused No.5 are exclusively triable by the court of Sessions, the case was committed to this court.
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5. After committal, the case is re-registered as S.C.No.1068/2017 and made over to this court. In pursuance of the summons, the accused No.5 appeared and obtained regular bail. Prosecution opened the case as required U/s.226 of Cr.P.C. Heard learned counsel for the accused. No grounds made out to discharge the accused . Hence, charge against accused No.5 was framed, read over and explained. He denied charges and claims trial.
6. To prove the ingredients of the offences leveled against the accused No.5, prosecution examined 4 witnesses as Pw.1 to Pw.4 out of 8 witnesses cited in the charge sheet and got exhibited 3 documents at Ex.P.1 to Ex.P.3 and got identified material objects from Mo.1 to
3. Learned Public Prosecutor given up Cw.5 and 6 and 7 S.C.No.1068/2017 Cw.2 and Cw.3 dropped and closed prosecution evidence.
7. After conclusion of prosecution evidence, statement of accused No.5 U/s.313 of Code of Criminal Procedure were recorded. Accused No.5 has denied all the incriminating material evidence appearing against him, but did not choose to lead defence evidence.
8. Heard arguments on both sides and perused the materials on record.
9. The points that arise for my determination are:
1. Whether prosecution proves beyond reasonable doubt that, on 01.11.2013 at 7.00 p.m., near vacant place of Auto rickshaw parking at 7 th Main road, Sai Baba Nagar, Srirampura, Bengaluru and within the limits of Srirampura police station, Bengaluru accused No.5 along with other accused No.1 to 4 was making preparation to commit dacoity by possessing deadly weapons like iron 8 S.C.No.1068/2017 sword, wooden club and thereby committed an offence punishable under Sec.399 of the Indian Penal Code?
2. Whether prosecution proves beyond any reasonable doubt that on the same date, time and place, accused No.5 along with other accused No.1 to 4 assembled for the purpose of committing dacoity and thereby committed an offence punishable under Sec.402 of I.P.C.?
3. What Order ?
10. On appreciation of evidence and materials on record, my findings on the aforesaid 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:
REASONS
11. POINTS NO.1 & 2:-These two issues are interrelated, hence they are taken together for common 9 S.C.No.1068/2017 discussion in order to avoid repetition of facts and evidence.
12. It is the case of the prosecution that, on 01.11.2013 at about 7.00 p.m., accused No.5 along with 4 other persons possessing deadly weapons assembled near vacant place of Auto rickshaw parking at 7 th Main road, Sai Baba Nagar, Srirampura, Bengaluru city and making preparation to commit dacoity. Investigating Officer received credible information and reached spot along with police personnel and panch witnesses and after confirmation of the information, conducted raid and apprehended accused accused No.1 to 3 and seized deadly weapons from their custody. Accused No.4 and 5 ran away from the spot of incident. S.C.No.1231/2014 filed against accused No.1 to 4 ended up in acquittal. Subsequently, present accused No.5 secured. 10
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13. In order to bring home the guilt of the accused No.5, prosecution examined Pw.1 to Pw.4 and got exhibited documents at Ex.P.1 to Ex.P.3 and got identified material objects from Mo.1 to Mo.3. All the examined witnesses are police officials.
14. Cw.1-Sridhar Poojari , Police Inspector of CCB Police was examined as Pw.2. This witness deposed that, on 1.11.2013, when he was in his office, he received an information about Rowdi Patti Raja @ Piteel Raja and other 4 persons were assembled near Auto rickshaw parking place situated at 7th Main road, Srirampura, Bengaluru by holding deadly weapons and were making preparation to commit dacoity. Accordingly, he visited to the spot along with his officials and panchas and get confirmed the received information and conducted raid 11 S.C.No.1068/2017 and caught hold 3 persons and two other persons ran away from the place. On enquiry, accused No.1 to 3 informed that, absconding accused are Manikana and Manja. He recovered Mo.1 to 3 from their possession by recording seizure panchanama as per Ex.P.2. Thereafter, he returned to Srirampura police station and produced seized articles and accused persons with his report as per Ex.P.3. He identified Ex.P.1-notice, Ex.P.2- panchanama and Ex.P.3-complaint.
15. During the course of cross-examination Pw.1 admits that, the place where the accused persons were found is a public place crowded with of public and vehicles. The version of Pw.1 that he recovered Mo.1 to Mo.3 from the possession of the accused persons No.1 to 3 is not supported by any independent witnesses as the 12 S.C.No.1068/2017 prosecution has not examined independent witnesses Cw.2 and Cw.3 in spite of sufficient opportunity given.
16. Cw.7- Krishnappa Poojari was examined as Pw.3, Cw.4- Ashok J., Naika was examined as Pw.4. They have deposed in consonance with the evidence of Pw.2 by deposing that, as per the directions of the P.I.- Pw.2-Sridhar Poojar, they have accompanied their officer to the place of incident, and after confirmation of the preparation of the accused persons to commit criminal offences like robbery and assault, they have caught hold them and seized the deadly weapons possessed by them and Pw.2 conducted Ex.P2-raid panchanama and lodged Ex.P.3-complaint. Pw.3 and 4 identified material objects at Mo.1 to Mo.3. 13
S.C.No.1068/2017
17. Cw.8- Janardhana B.L., was examined as Pw.1. This witness deposed that, on 01.11.2013, when he was on duty as Station House Officer of Srirampura police station, at about 8.40 p.m., Head constable, Renukaiah visited the station along with complaint issued by Police Inspector Sridhar K.Poojar, mahazar and seized weapons with 3 accused persons and requested to register the complaint. On verification of the complaint, registered F.I.R. No.214/2013 for the offences punishable U/s.399 and 402 of I.P.C. and sent F.I.R. to the court and copies to higher officers. This witness identified the complaint, mahazar and F.I.R. This witness identified the materials objects at Mo.1 to 3. Further recorded the statements of the witnesses and accused persons and produced the accused persons before the court along with remand application. Accused No.5 absconding 14 S.C.No.1068/2017 and after completion of the investigation, filed charge sheet against the accused persons.
18. Pw.1 was not cross-examined by the accused side. In the cross-examination of Pw.2 and Pw.3 denied the suggestions about non-receiving of information about the preparation by the accused persons, conducting of the Ex.P.2-raid panchanama and seizure of the deadly weapons from the possession of the accused persons. The cross-examination of these witnesses is denial. Both of them failed to state about the weapon held by accused No.5. It is admitted that, material objects are available in the market. It was suggested that, accused persons were falsely implicated in this case for statistical purpose.
17. In the backdrop of above discussed testimony of prosecution witnesses and documents, I have gone 15 S.C.No.1068/2017 through the versions of Pw.1 to Pw.4. Though Pw.1 to Pw.4 have stated that, on that day, accused assembled at the spot and were making preparation to commit dacoity by holding deadly weapons, but to corroborate their versions, there is no other supportive oral evidence of independent panch witness. As per case of prosecution, Cw.2 and Cw.3 are panch witnesses for raid panchanama marked at Ex.P.2. But to prove the contents of Ex.P.2, their corroborative and supportive oral evidence is not placed on record.
20. In the absence of testimony of independent private witnesses, the evidence of police officials Pw.1 to 4 remains for consideration of court. Their evidence is stereo type. No doubt, the evidence of official witness i.e., police officers shall not be disbelieved as a rule, however prudence insists corroboration and careful scrutiny. As 16 S.C.No.1068/2017 per prosecution case, Pw.2 has conducted raid around 6.30 p.m. near Autorickshaw parking place at 7 th main Road, Sai Baba Nagar, Srirampura, Bengaluru. Admittedly it is a thicky populated area. Such being the case, what prevented the Pw.2 to take statements and signatures of independent eye witnesses to the alleged raid and seizure of deadly weapons from the possession of the accused persons is not properly explained. This throws shadow on the prosecution case.
21. It is pertinent to note that, Pw.1 to 4 are most interested witnesses. Particularly considering the nature of the offences, and the fact that, F.I.R., has been registered by Pw.1, it appears that, Pw.1 just for the sake of statistical purpose, registered the case against accused persons. Uncorroborated testimony of police witnesses is unsafe to be believed.
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22. Even a step ahead, no hard cash is recovered from the possession of any of accused persons. Merely because some incriminating articles were seized from the possession of accused persons, is by itself is not conclusive proof of main ingredients of the offences punishable U/s.399 and 402 of I.P.C. Defence of accused is total denial of the prosecution case. Mere apprehension of accused No.5 is also not enough to record conviction.
23. To fortify this contention, it is relevant to refer the decision reported in 2006 Crl.L.J. 1775 in case of Ram Kishan Vs/.State of U.P., wherein it is held as under:
"Penal Code (45 of 1869), Ss.399, 402
- Preparation to commit dacoity - Arrest of accused persons along with arms and ammunition - No public witness summoned to witness incident 18 S.C.No.1068/2017
- Neither signature of accused were obtained - neither signatures of accused were obtained on seizure memo nor copy therefore was furnished to any of accused - Out of six dacoits, three were armed with country made pistols and were having ten live cartridges also - However, none of them had loaded their pistols
- Is also could not be believed that accused dacoits who had assembled at culvert were talking so loudly that their voice was heard by police party in odd hours of night - Police party did not recover a single penny from possession of any of accused - Non recovery of coins or currency notes from pockets of accused makes prosecution story doubtful - Accused held entitled to be acquitted."
If the principle laid down in the above dictum is applied to the case on hand, there is no hesitation in arrive at the conclusion that, prosecution failed to prove the main ingredients of the offences punishable U/s. 399 and 402 of I.P.C.
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24. Regarding recovery weapons from the accused the Hon'ble Supreme Court of India in Chathuri Yadhav and others V/s. State of Bihar decided in the year 1979, observed that, the mere fact that, the accused were found at 1.00 a.m., with some of them armed with guns did not prove that, they have assembled for the purpose of committing dacoity or for making preparation to accomplish that object.
25. Similar view is taken by the Delhi High Court in a case of Desuraj @ Dass V/s.State in 2000 and Punjab and Haryana High Court in Mahaveer V/s. State of Haryana decided in the year 2010 that, for mere assemblage and recovery of fire arms did not prove charge U/s.399 and 402 of I.P.C. Devision Bench of Honb'le Apex court in a case of Jasveer Singh Aka Jawari Aka Jabbarsingh V/s.State of Haryana 20 S.C.No.1068/2017 observed that "It is not natural that, 6 accused persons and four of whom were armed with deadly weapons, neither offered any resistance nor caused any injury to any of the police personnel before or after apprehension by the police. The ratio laid down the aforesaid decision is aptly applicable to the case on hand.
26. Further, it is profitable to refer the decisions of Hon'ble High Court of Karnataka on this point. In the judgment passed in Crl.A.No.3767/2010 in a case of Gaddeppa V/s. State of Karnataka, it is held that, to prove the offence of preparation for committing dacoity, nothing elicited as to for what purpose accused persons gathered there. Whether there was any attempt done by them in order to commit dacoity. Not shown that they had actually stopped any vehicle and any owner or the driver of the vehicle complained that, they had made any 21 S.C.No.1068/2017 attempt to commit dacoity. Mere recovery of some articles and also non-explanation of the accused as to why they had gathered in that particular place is not sufficient to fill up the gap on the side of the prosecution to prove that accused were actually gathered there for the purpose of committing dacoity. Except presence of the accused persons at the spot, recovery of some articles and voluntary statements of the accused, no other material to show that, they were gathered there for the purpose of committing dacoity. Mere suspicion or imagination by the police officer bereft of any other material is not sufficient to draw a conclusive inference that, accused persons were gathered there for the purpose of committing dacoity. Prosecution failed to prove the guilt of accused.
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27. In the judgment passed in Crl.Appeal No.2088/2017 C/w. Crl.Appeal No.2066 to 2068 of 2017 Hon'ble High Court of Karnataka has held that circumstances brought out in the evidence of prosecution witnesses completely demolish the case of the prosecution. Evidence adduced by the prosecution does not establish the ingredients of the offences punishable U/s.399 and 402 of I.P.C. There is no clear and convincing evidence to show that weapons produced before the court were seized from the possession of the accused.
28. In a decision reported in 2006 Crl.L.J. 1775 in case of Ram Kishan Vs/.State of U.P. wherein it is held as under:
"Penal Code (45 of 1869), Ss.399, 402 - reparation to commit dacoity - Arrest of accused persons along with arms and 23 S.C.No.1068/2017 ammunition - No public witness summoned to witness incident - Neither signature of accused were obtained - neither signatures of accused were obtained on seizure memo nor copy therefore was furnished to any of accused
- Out of six dacoits, three were armed with country made pistols and were having ten live cartridges also - However, none of them had loaded their pistols - Is also could not be believed that accused dacoits who had assembled at culvert were talking so loudly that their voice was heard by police party in odd hours of night - Police party did not recover a single penny from possession of any of accused - Non recovery of coins or currency notes from pockets of accused makes prosecution story doubtful - Accused held entitled to be acquitted."
Law laid down by the Hon'ble High Court of Karnataka and Hon'ble Supreme Court of India are aptly applicable to the facts and circumstances of the case on hand. In a case on hand, admittedly, complainant or other police officials assisted him to conduct the raid have not enquired any general public regarding attempt 24 S.C.No.1068/2017 of the accused persons to commit dacoity. So also, no such complaint is lodged against the accused persons by any of the victims. The complainant has not recovered any money from the possession of the accused persons nor provided the copies of the recovery panchanama to the accused persons nor obtained signatures of the accused persons on the spot panchanama at Ex.P.2. No independent witnesses are examined. No independent witnesses from the locality were summoned before conducting raid. In the light of the principles laid down in the aforesaid decisions, mere assemblage of accused persons with deadly weapons does not establish the ingredients of Section 399 and 402 of Indian Penal Code. More over, the recovery of deadly weapons Mo.1 to Mo.3 is not proved through supportive evidence of independent panch witnesses. Therefore, a benefit of 25 S.C.No.1068/2017 doubt is to be given to the accused persons. Therefore, I am of the view that, the prosecution has failed to prove the guilt of the accused person beyond all reasonable doubt.
29. To sum up, from the discussion in the forgoing paras, this court is of the opinion that, prosecution failed to prove beyond any reasonable doubt that, accused No.5 along with other accused persons was present on 01.11.2013 at 7.00 p.m., near vacant place of Auto rickshaw parking at 7 th Main road, Sai Baba Nagar, Srirampura, Bengaluru and within the limits of Srirampura police station, Bengaluru assembled with preparation to commit dacoity by holding deadly weapons and committed offences punishable under Sec.399 and 402 of I.P.C. There are no complaints alleging attempt to commit robbery or dacoity made by the accused No.5 and 26 S.C.No.1068/2017 other accused persons on the date of incident. Absence of any corroborative complaint against accused by any of the victims, absence of any electronic evidence to substantiate the fact of seizure of deadly weapons from the possession of the accused as alleged by the prosecution, this court is of the opinion that, the evidence on record is insufficient to bring home the guilt of the accused No.4. More over, this is split case from the main case in S.C.No.1231/2014. In the main case accused No.1 to 4 are already acquitted on 20.01.2015 by this court. Hence, benefit is extendable to accused No.5. Accordingly, points No.1 and 2 are answered in the Negative.
30. POINT NO.3: In view of the above findings on points No.1 and 2, accused No.5 is entitled for acquittal. Hence, this court proceed to pass the following; 27
S.C.No.1068/2017 ORDER Accused No.5 is acquitted U/s.235(1) of Code of Criminal Procedure of the offences punishable U/s.399, 402 of I.P.C.
His bail bond and surety bonds stands cancelled.
Bail bond and surety bonds executed by accused No.5 and his sureties U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Mo.1 and 2 are ordered to be confiscated to the State after expiry of appeal period.
Mo.3 being worthless, hence, the same is ordered to be destroyed, after expiry of appeal period.
Further, office is directed to send the certified copy of this judgment to the District 28 S.C.No.1068/2017 Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C.
(Dictated to the Judgment writer directly on computer, typed by her and corrected, signed and then pronounced by me in the open court on this 2 nd day of December 2022.) (KALPANA M.S.) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
A N N EXU RE List of witnesses examined on behalf of the Prosecution:-
Pw.1 Janardhana B.L.
Pw.2 Sridhara Poojari
Pw.3 Krishnappa
Pw.4 Ashok J.
II. For Defence:-
-Nil-
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III. List of exhibits marked on behalf of the Prosecution side:-
Ex.P.1 Notice Ex.P.2 Panchanama Ex.P.3 Report IV. For Defence side:- -Nil-
V. List of material objects marked:-
Mo.1 17 inches iron chopper
Mo.2 18 inches iron chopper
Mo.3 Wooden club.
(KALPANA M.S.)
LXIV ADDL.CITY CIVIL &
SESSIONS JUDGE, (CCH-65),
BENGALURU CITY.
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Judgment pronounced in the open
Court (Vide separate judgment)
ORDER
Accused No.5 is acquitted
U/s.235(1) of Code of Criminal
Procedure of the offences punishable U/s.399, 402 of I.P.C.
His bail bond and surety bonds stands cancelled.
Bail bond and surety bonds executed by accused No.5 and his sureties U/s.437-A of Cr.P.C., shall be in force for a period of six months from this day.
31 S.C.No.1068/2017 Mo.1 and 2 are ordered to be confiscated to the State after expiry of appeal period.
Mo.3 being worthless, hence, the same is ordered to be destroyed, after expiry of appeal period.
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.