Bangalore District Court
State Of Karnataka By vs A.1 S.M.Somesha on 16 November, 2017
IN THE COURT OF LXII ADDL.CITY CIVIL&
SESSIONS JUDGE, (CCH-63), BANGALORE CITY.
Dated this the 16th day of November, 2017.
Present
Sri.Parameshwara Prasanna.B, B.A.,LL.B.,
LXII Addl.City Civil & Sessions Judge,
Bengaluru
Sessions Case No.485/2015
COMPLAINANT:- State of Karnataka by
Upparpet Police Station,
Bengaluru.
(Rep by learned Public Prosecutor)
:VS:
ACCUSED A.1 S.M.Somesha
S/o Muniyallappa
Aged about 42 years,
R/at No.53/1, Muniyappa Garden,
Sarakki Main Road, Near
Anjaneya Temple, JP Nagar, 1st
Stage, Bangalore
A.3. Ramesh
S/o Hanumantharayappa,
Aged about 30 years,
No.251, Katarayanagar, 1st Main,
5th Cross, Bagalgunte,
Bangalore-73
(By Sri.K.R.Umesh -Advocate for
A1&3)
1. Date of Commission of offence : 23.12.2014
2. Date of report of offence : 23.12.2014
3. Arrest of the accused 1 & 3 : 23.12.2014
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4. Name of the complainant : Sri Sharanappa I Hadli ,
PSI of Upparapet P.S,
5. Date of commencement of trial : 31.7.2017
6. Date of closing of evidence : 08.11.2017
7. Offences complained of : U/s.399 and 402 of IPC
8. Opinion of the Judge : A.1 & 3 are acquitted
U/s.235(1) of Cr.P.C
(Parameshwara Prasanna.B)
LXII Addl.City Civil & Sessions Judge,
Bengaluru.
JUDGMENT
The present case arise out of charge sheet submitted by Upparapet Police Station, Bengaluru against accused No.1 to 5 for the offences punishable under Sections 399 and 402 of I.P.C.
2. The case of the prosecution in brief is that:-
That on intervening night of 22/23.12.2014 at 23.45 pm when CW1 Mr.Sharanappa I Hadli was on patrolling duty near K.S.R.T.C Bus stop, Majestic he received credible information that within limit of his police station near a park at BMTC 7th Depot five persons being equipped with deadly weapons making preparation for committing offence of dacoity. Immediately he 3 SC.No.485/2015 secured panchas CW2 & 3 and his staff CW4 to 8 and he along with his staff at 12.15 pm left KSRTC bus stop and went near BMTC 7th Depo and on reaching near by the spot on secret observations they noticed five persons being equipped with deadly weapons discussing with each other to rob the lonely passers by and on confirmation of information night at 1-00 pm when CW1 along with his staff surrounded gathering A5 by leaving knife at spot fled away and escaped despite of his chase by CW7. CW5 and CW8 nabbed A1 and CW4 nabbed A2, CW5 nabbed A3 CW6 nabbed A4 and on enquiry the A1 to 4 revealed their name and address and they have also revealed the name and address of A5 who escaped from spot and later CW1 by drawing mahazar at the spot from 1.15pm to 12.00pm seized 3 knifes, 1 chilly powder packet and one iron rod and on return to the police station along with the accused No.1 to 4 and the seized articles, CW1 by handing over accused No.1 to 4 and seized articles along with mahazar submitted the report regarding the incident to CW9 and on receipt of information CW9 got registered FIR against the accused 1 to 5 for the offences punishable under section 399 and 402 of IPC.4 SC.No.485/2015
3.That subsequently since accused No.5 could not be secured after completion of investigation CW9 filed charge sheet against the accused 1 to 4 for the offences punishable under section 399 and 407 of IPC by showing accused No.5 as absconding and CW9 filed separate charge sheet against accused No.5 That on receipt of the charge sheet, the learned 9th ACMM, Bangaluru taken cognizance of the offences and the case has been registered against accused No.1 to 4 in C.C.No.4387/2015. Since the offences alleged against accused No.1 to 4 are exclusively triable by the Court of Session, the learned 9th ACMM, Bengaluru as per the order dated 31.3.2015 passed in C.C.No.4387/2015 committed the case against accused No.1 to 4 to the Hon'ble Prl. City Civil & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Prl. City Civil & Sessions Judge, Bengaluru, the case was registered in S.C.No.485/2015 and the same was made over to this Court for disposal in accordance with law.
4. That after admitting of the case, since accused No.2 & 4 were not secured, despite of issuing of NBW case against them came to be spilt up as per order of this court dated 14.6.2017. Thereafter on hearing prosecution as well as learned counsel for 5 SC.No.485/2015 accused No.1 & 3 charge framed against accused No.1 & 3 for the offences punishable under section 399 and 402 of IPC. When the charge was read over and explained to the accused in Kannada language knowing to them accused No.1 & 3 pleaded not guilty and claims to be tried.
5. That during the trial, in order to prove the case of the prosecution, out of 9 witnesses cited in the charge sheet, the prosecution got examined two witnesses i.e., C.W.1 & C.W.9 as P.W.1 & P.W.2 respectively and got marked the documents as Exs.P.1 to Ex.P.4(b) and the alleged seized articles as M.Os.1 to
5. Since the prosecution has given up CW4 to 8 they were dropped. Since, CW2 & 3 were not secured by the concerned police despite of issuing of witness warrant. The prayer of learned Public Prosecutor for reissuing further process against CW2 & 3 was rejected and prosecution evidence was taken as closed. Thereafter the statement of accused No.1 & 3 were recorded under Section 313 of Cr.P.C. Accused No.1 & 3 when examined u/s 313 of Cr.P.C, denied the incriminating circumstances appearing in evidence against them. Accused No.1 & 3 have not led any defence evidence on their behalf.
6. Heard argument of both the sides.
6 SC.No.485/2015
7. Under the facts and circumstances of the case, the following points arise for consideration of this Court: -
1) Whether the prosecution proves beyond all reasonable doubt that on intervening night of 22/23.12.2014 at 1.00 pm when A1 & 3 along with spilt up accused No.2 & 4 and absconding accused No.5 being equipped with deadly weapons and chilly powder packet assembled in park near 7th Depot BMTC, Majestic, Bengaluru and accused No.1 & 3 along with other accused were making preparation for committing dacoity and thereby accused No.1 & 3 committed offences punishable u/s 399 and 402 IPC?
2) What Order?
8. My findings on the above points are as under: -
Point No.1 - In the negative;
Point No.2 - As per final order for the following:-
REASONS
9. Point No.1:- The case of the prosecution in brief is that on Intervening night of 22/23.12.2014 at about 1.00 pm when accused No.1 to 5 being equipped with deadly weapon and chilly powder packet making preparation for committing dacoity near a park at 7th Depo, BMTC, Majestic, Bengaluru on credible information about the same when CW1 along with his staff and panchas surrounded them accused No.5 by leaving the knife escaped from the spot despite of his chase by CW7 and CW1 7 SC.No.485/2015 and his staff nabbed A1 to 4 and later CW1 by drawing mahazar at spot from 1.15pm to 12.00pm seized 3 knifes, 1 chilly powder packet and one iron rod and on return to the police station along with the accused No.1 to 4 and the seized articles, CW1 by handing over accused No.1 to 4 and seized articles along with mahazar submitted the report regarding the incident to CW9 and on receipt of information CW9 got registered FIR against the accused 1 to 5 for the offences punishable under section 399 and 402 of IPC.
10. That during the trial in order to prove the case of the prosecution, out of 9 witnesses cited in the charge sheet, the prosecution got examined two witnesses i.e., C.W.1 & C.W.9 as P.W.1 & P.W.2 respectively and got marked the documents as Exs.P.1 to Ex.P.4(b) and the alleged seized articles as M.Os.1 to M.O.5. Since the prosecution has given up C.W.4 to C.W.8, they were dropped.
11. In the instant case, the material and crucial witnesses to the prosecution namely C.W.2 & 3 who are alleged independent witnesses to raid and recovery mahazar have not been examined by the prosecution despite of sufficient opportunity. Hence, adverse inference is drawn against 8 SC.No.485/2015 prosecution under Section 114 of Indian Evidence Act for not examining those material witnesses.
12. I have critically examined evidence of P.W.1 & P.W.2 and noticed the various material discrepancies in the case of the prosecution. The CW1 who alleged to have conducted raid along with his staff in the presence of panchas got examined himself as PW1 and he deposed that 1 knife, 3 iron rods and chilly power packet were recovered at the spot. But as per Ex.P.1 report and Ex.P.2 mahazar, 3 knifes, 1 chilly powder packet and one iron rod said to have recovered at the spot whereas PW9 who filed the charge sheet in the instant case deposed that 4 iron rods, one knife and chilly powder packet were handed over to him by PW1 while submitting Ex.P.1 report. Hence there is material contradiction in the case of the prosecution regarding the articles alleged to have seized at the spot.
13.PW1 in his evidence has not explained as to how he analyzed that accused were conceived the design of committing dacoity. The evidence of PW1 does not disclose any resistance by accused during alleged raid. It is not natural that five persons armed with deadly weapons neither offered any resistance nor 9 SC.No.485/2015 caused any injury to any of the police personnel during the alleged raid.
14. As laid down in Agar v/s State of Rajasthan, reported in 2003 Criminal Law Journal 1997 it is settled law that, "to constitute an offence under section 399 of IPC some act amounting to preparation must be proved". But in the present case as looking into evidence of Pws.1 and 2, the prosecution has not proved any act amounting to preparation for committing dacoity. Further as laid down in Joseph /vs/ State of Kerala reported in 1993 SCW 2900, the prosecution must show that there were persons who had conceived design of committing dacoity. But in the present case there is no cogent and material evidence to believe the case of the prosecution that the accused have designed the committing of dacoity.
15. In the instant case, since C.W.2 & C.W.3, who are alleged witnesses to the raid and recovery, have not examined the alleged raid and recovery itself is not proved by the prosecution. In view of the various discrepancies in the case of the prosecution referred above and due to non-corroboration of evidence of P.W.1 & P.W.2 by the independent witnesses to the 10 SC.No.485/2015 raid and recovery, the evidence of P.W.1 & P.W.2 does not inspire confidence.
16. At this juncture, I feel it necessary to quote following Judgments reported by the Hon'ble Apex Court and Hon'ble High Court of Karnataka pertaining to offence punishable under Sections 399 and 402 of IPC:-
In Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, the Hon'ble Apex Court has held that:
"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, 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 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. That the Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
11 SC.No.485/2015
Criminal Procedure Code, 1973 - Section 374(2) - Appeal against Judgment of conviction and order of sentence - Re- appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery -
The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, The credibility of the investigation is doubtful as Pw.3 having registered the crime, has himself investigated the case.
Further held, In view of the material contradictions in the evidence of Pws.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt.
18. Thus it is clear from the above precedents that to sustain conviction under Sections 399 and 402 of I.P.C., the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that the persons assembled conceived any such designs for commission of dacoity and in fact 12 SC.No.485/2015 they intended to achieve the object for which they had assembled. But in this case, there is no reliable and credible evidence to show that accused No.1 & 3 were making preparation to commit dacoity. In view of the fact and circumstances of the case and precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused No.1 & 3 beyond all reasonable doubt and as such accused No.1 & 3 is entitled for benefit of doubt. Hence, point No.1 is answered in the Negative.
19. POINT NO.2: - In view of the reasons discussed as above the following:-
ORDER Acting u/s 235 (1) of Cr.P.C, A.1- S.M.Somesh, A.3-Ramesha are acquitted in respect of the offences punishable under Sections 399 and 402 of Indian Penal Code.
The bail bond and surety bond of accused No.1 & 3 are hereby cancelled.
The articles marked as M.Os.1 to 5 shall be preserved for trial of split up accused No.2 & 4 and absconding accused No.5.13 SC.No.485/2015
The office is hereby directed to take personal bond for Rs.50,000/- from accused No.1 & 3 along with a surety for the likesum as required under section 437-A of Cr.P.C (Dictated to the stenographer, transcribed and computerised by him, corrected and then pronounced by me in the open court this the 16th day of November, 2017).
(Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge Bengaluru.
ANNEXURE List of witnesses examined on behalf of the prosecution:-
PW.1 Sharanppa I Hadli Pw.2 G.P.Ramesh
List of witnesses examined for defence:
-NIL-
List of exhibits marked on behalf of the prosecution:-
Ex.P.1 Statement of C.W.1
Ex.P.1(a) Signature of C.W.1
Ex.P.1(b) Signature of CW9 in complaint
Ex.P.2 Mahazar
Ex.P.2(a) Signature of C.W.1
Ex.P.3 FIR
Ex.P.3(a) Signature of C.W.9
Ex.P.4 PF No.222/2014
Ex.P.4(a) Signature in PF
Ex.P.4(b) Signature in PF
14 SC.No.485/2015
List of exhibits marked for defence:-
-NIL-
List of material objects in the case:-
M.O.1 Rod
M.O.2 Rod
M.O.3 Rod
M.O.4 Knife
M.O.5 Rod
(Parameshwara Prasanna.B)
LXII Addl.City Civil & Sessions Judge Bengaluru.
15 SC.No.485/2015 16.11.2017 Judgment pronounced in open court (vide separate judgment) ORDER Acting u/s 235 (1) of Cr.P.C, A.1-
S.M.Somesh, A.3-Ramesha are acquitted in respect of the offences punishable under Sections 399 and 402 of Indian Penal Code.
The bail bond and surety bond of accused No.1 & 3 are hereby cancelled.
The articles marked as M.Os.1 to 5 shall be preserved for trial of split up accused No.2 & 4 and absconding accused No.5.
The office is hereby directed to take personal bond for Rs.50,000/- from accused No.1 & 3 along with a surety for the likesum as required under section 437-A of Cr.P.C 16 SC.No.485/2015 (Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge, Bengaluru.
17 SC.No.485/2015