Bangalore District Court
The State Of Karnataka vs Mudabir on 2 April, 2018
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 2nd day of April, 2018
PRESENT: Smt.S.Shobha, B.A., LL.M.,
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
S.C.No.1007/2012
COMPLAINANT : The State of Karnataka,
By Subramanyapura Police Station,
Bangalore.
Vs.
ACCUSED : 1. Mudabir, S/o Nazimkhan,
Aged 22 years, R/at No.402,
3rd main, I Cross, Kogilu Layout,
Yelahanka, Bengaluru.
2. Imran @ Mady, S/o Anwar,
Aged 24 years,
R/at C/o Alibhai House,
Behind Mazjid, Gandhinagar,
Kaggalipura, Kanakapura Main
Road, Bangalore.
3. Irfan, S/o Anwar, Aged 22 years,
R/at C/o Alibhai House,
Behind Mazjid, Gandhinagar,
Kaggalipura, Kanakapura Main
Road, Bangalore.
4. Anwar (Abated)
5. Naznuunisa, W/o Anwar,
Aged 43 years,
R/at C/o Alibhai House,
Behind Mazjid, Gandhinagar,
Kaggalipura, Kanakapura Main
Road, Bangalore.
2 S.C.1007/2012
Date of offence & Time 23.1.2012, 4.30 p.m.
Date of report of offence 23.1.2012, 5.45 p.m.
Date of arrest of the accused- The presence of A.1 to A.5 was
secured under body warrant
Name of the complainant Chikkaraju
Date of commencement of 17.1.2013
recording of evidence
Date of closing of evidence 26.11.2016
Offences complained of 392, 109, 413 of I.P.C.
Opinion of the Judge Accused are found not guilty
State represented by Learned Public Prosecutor
Accused defended by A.1 by Sri M.M.C. Adv.,
A.2 & A.3 by Sri T.S.. Adv.,
A.5 by Sri C.B.A. Adv.,
: JUDGMENT :
The Police Inspector of Subramanyapura police station, Bengaluru City, has filed the charge sheet against the accused persons for the offences punishable under sections 392, 109 and 413 of I.P.C.
2. The case of the prosecution in brief against the accused persons is that, on 23.1.2012 at about 4.30 p.m. accused Nos.1 and 2 came in a Yamaha bike and entered the house of CW.1 situated at No.49, 4th Cross, Srinivasa Colony, Arehalli, Bengaluru and committed theft of gold chain worth of Rs.40,000/-, which was kept on the table. Accused Nos.4 and 5 abetted accused Nos.1 and 2 to commit the offence. The accused persons after committing the offence sold the 3 S.C.1007/2012 theft articles and by using the sale proceeds they lead their life luxuriously. During investigation the Investigating Officer arrested the accused persons, seized articles from the possession of the accused persons and subjected them to P.F. Thereafter, the Investigating Officer has filed the charge sheet for the aforesaid offences after completion of investigation against accused Nos.1 to 5.
3. The Learned Magistrate took the cognizance and registered the case against the accused No.1 to 5 in C.C.No. 15964/2012. Thereafter, the Learned Magistrate committed the case against accused Nos.1 to 5 to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru City. Thereafter, the case has been registered in S.C.No.1007/2012 and made over to this court for disposal in accordance with law.
4. After hearing the Learned Public Prosecutor and defence counsel and the accused, this court opined that there are grounds for framing charges and accordingly the charges are framed and same are read over to the accused with explanation. The accused did not plead guilty and claimed to be tried.
4 S.C.1007/2012
5. The prosecution to prove the guilt of the accused persons, has examined 9 witnesses as P.Ws.1 to 7, and got marked documents at Exs.P.1 to Ex.P.11. After closure of the side of the prosecution evidence, the statements of the accused under section 313 of Cr.P.C., have been recorded. The accused have denied the incriminating evidence put to them at that stage. The accused do not choose to adduce any defence evidence. During pendency of the case, A.4 was reported to be dead.
6. I have heard the arguments of the learned Public Prosecutor for the prosecution and the learned defence counsel has not put forth his arguments. Hence, the case was posted for judgment. Perused the records.
7. Following points are formulated for consideration of this court:
1. Whether the prosecution has proved that on 23.1.2012 at about 4.30 p.m. accused Nos.1 and 2 came in a Yamaha bike and entered the house of CW.1 situated at No.49, 4th Cross, Srinivasa Colony, Arehalli, Bengaluru and committed theft of gold chain worth of Rs.40,000/-, which was kept on the table and fled away in the said vehicle and thereby committed an offence punishable under Section 392 of I.P.C.?5 S.C.1007/2012
2. Whether the prosecution has further proved that accused Nos.3 to 5 abetted accused Nos.1 and 2 to rob the ornaments of the ladies, who were passing on the road, and thereby committed an offence punishable under Section 109 r/w.S.392 of I.P.C.?
3. Whether the prosecution has further proved that accused Nos.4 and 5 are the habitual receivers of robbed property, have received from accused Nos.1 and 2 knowingly that it was stolen property and thereby committed an offence punishable under Section 413 of I.P.C.?
4. What order?
8. My findings on the above points are:-
POINT NO.1 - In the Negative.
POINT NO.2 - In the Negative.
POINT NO.3 - In the Negative.
POINT NO.4 - As per final order,
for the following:
: REASONS :
9. Points Nos.1 to 3:- Since these points are interlinked with each other and require common discussion, they are taken together for common consideration. The case of the prosecution is as narrated in para 2 of this judgment. It is the prosecution case that accused 4 and 5, habituated with receiving stolen articles and that they along with accused 3 have abated accused-1 and 2 to rob golden chain specifically the Mangalya of the women who were moving on the public 6 S.C.1007/2012 road are found along in the house. Hence, the prosecution has invoked sec.392, 109 and 413 of I.P.C. for the conviction of accused 1 to 5. The criminal law relating to robbery, abatment and habitual dealing in stolen properties etc. are concerned, it casts burden that the prosecution has to prove the allegation against Accused 1 to 5, till then they are considered to be innocent. Accused 1 to 5 are also entitle for benefit of reasonable doubt, if the prosecution failed to prove the case and aquittal. So the prosecution has to prove beyond all reasonable doubt the guilt of the accused persons.
10. With regard the penal law prevailing regarding the said offences and the evidence and proof, it is relevant to consider the legal aspects. The prosecution has to prove the abatement of accused 3 to 5 to commit robbery by accused 1 and 2, for fixing criminal liability u/sec.109 of IPC. Section 413 of I.P.C. is pertaining to the punishment against the accused persons who are habitually dealing in stolen property. Therefore the prosecution has to establish the ingredients that receiving or dealing in stolen property by the accused persons and such receiving and dealing in property must be to the knowledge of such accused persons that, they are stolen properties. In 7 S.C.1007/2012 other words, they are professional dealers in stolen property. It refers to the customery conduct of accused, pursuing of tendency acquired from frequent repetition. Therefore receiving of stolen property and knowingly that they are stolen properties are two requirements to be proved by the prosecution, as it is the allegation against the accused-4 and 5 that they use to receive the stolen properties/valuables from accused No.1 and 2 knowingly that they were robbed properties and selling/pledging the same and about the alleged motive that they used the amount to purchase vehicles and a site etc. and that some portion of amount was given to accused Nos.1 and 2 and in turn accused Nos.1 and 2 were using it for their illegal means of enjoyment, as they abated the A.1 and A.2 to commit robbery. It is pertaining to the penal provisions i.e. Sections 413 and 109 of I.P.C. However, the evidence on record are to be considered in this regard in the discussion in the subsequent paragraphs.
11. With reference to Section 392 of I.P.C., it is specific allegation that the accused Nos.1 and 2 habituated with to commit robbery of the valuables of women who were moving on public road/public places/ being along in the house/road, 8 S.C.1007/2012 by snatching the golden chain specifically Mangalya, by using Yamaha Bike and the Car and their involvement in series of criminal cases and specifially in the present case the bike. Sec.392 of I.P.C. being penal provision, the prosecution has to prove the ingredients of robbery as contemplated u/s.390 of I.P.C. "Robbery and participation in robbery to be satisfied by independent evidence and corroborated by recovery of stolen articles and injuries on the victim if any". Therefore the prosecution has to prove the identification and recovery of stolen property.
12. It is also settled law that "where the Complainant/victim is the sole identification witness to prove the offence of accused. Identification process was to be conducted. So it is well settled that accused was identified to the witnesses by the police at the Police Station, it is fatal to the prosecution case. If identification and recovery are not proved, in such circumstances, it has to be held that there existed a benefit of reasonable doubt, about the involvement of the accused in the crime and he has to be acquitted". It is held in the reported decisions: (1) 1997 Crl. LJ 3137 (Bomb), (2) 1997 Crl. LJ 2886 (Cal), that, "if, the evidence of identification corroborated by evidence of recovery was perfectly the trustworthy, 9 S.C.1007/2012 the accused to be convicted and that if, it is not trustworthy the benefit of doubt to be extended to the accused".
13. "The recovery should be in pursuant to the confessional statement of the accused and the manner as it was stated in the mahazar and same shall be testified by leading cogent evidence of recovery panch witnesses to the Mahazar and there must be proof of nexus between the accused persons and the crime". "Identification of accused being essential for the prosecution and if the victim/eye witness does not state features of accused who was a stranger, it makes the identification of accused doubtful. The prosecution to prove that the recovery of incriminating articles was in pursuant to voluntary statement of accused. If this element is not established, it makes the prosecution case a doubtful. So also if there is material contradiction, omissions, inconsistency and improvements in the evidence of prosecution witnesses, then also it makes the prosecution case a doubtful". With these legal aspects, it is proceeded to consider the evidence placed by the prosecution, against the accused persons with reference to the alleged respective offences. 10 S.C.1007/2012 13a). The learned defense counsels specifically pressed upon the recovery panch witnesses stating that it is very important for the prosecution to prove the recovery. But the said witnesses are the stock witnesses, and recovery is not proved and that alleged eye witnesses including the complainant have not supported the prosecution case with reference to identification of accused Nos.1 and 2 and that the prosecution has failed to prove the guilt of the accused persons beyond all reasonable doubt and they are entitled for acquittal.
14. In the reply the learned P.P. has argued that no doubt there are series of cases registered against the same accused persons. But the prosecution has proved that they are all participated in series cases and it is on record that user of vehicle is same and recovery of properties from the finance and possessor of stolen articles, was done in the series of cases. Hence, since many cases indicated the involvement of these accused and hence recovery of some robbed articles being under common recovery, so same witnesses are to the mahazar in almost all the cases and hence they are not stock witnesses. All the seizure mahazar witnesses supported the 11 S.C.1007/2012 prosecution case regarding recovery of material objects. The complainant has identified the material object. The complainant has secured the interim custody of the property and it is not in dispute. The evidence of Investigating Officer supported by the independent seizure mahazar witness. Hence, some of the witnesses though turned hostile to the prosecution case it will not fatal to the prosecution case and the court has to consider the case of the prosecution as its entirety and minor discrepancies can be ignored, which do not go into the root of the case and involvement of the accused persons being proved by the prosecution in the series of cases and they are habituated to commit the crime. Hence, they are not entitled for acquittal and prayed to convict the accused persons. With due consideration of legal aspects and arguments advanced by the learned P.P. and learned defense counsels, it is proceeded with for discussion in the present case.
15. P.W.1 Chikkaraju, who is the complainant has stated in his evidence that on 23.1.2012, at about 4.30 p.m. he kept his gold chain on the table and went inside to wash his face, and later he found that his chain was missing and he lodged 12 S.C.1007/2012 the complaint as per Ex.P.1. He has further stated that on the next day at about 10.00 a.m. the police came to the spot and conducted spot mahazar as per Ex.P.2. He has further stated that on 18.5.2012 the police called him to the police station, where they showed gold chain and he identified the chain MO.1 in the Police Station and he took the interim custody of the said chain through court. He further stated that the police have shown robbers in the Police Station and he identified them as accused Nos.1 and 2.
In the cross-examination he has stated that there were no shops nearby his house and at the time of incident no known persons came to his house. He has further stated that the police station is situated at the distance of 2-3 kms away from his house. According to the prosecution he is not an eyewitness and he has not seen the accused persons at the time of incident. His evidence contradictory and not corroborate as proof of identity of accused Nos.1 and 2. As complaint is against unknown persons; No identification parade of accused was conducted. So his evidence does not come to the aid of the prosecution about identification of accused Nos.1 and 2 to support that they were committed offence as alleged. Thus, his evidence is not worth to believe 13 S.C.1007/2012 the involvement of accused Nos.1 and 2. His evidence is not free from any doubt.
16. P.W.2 Nanjundaraj Urs is the spot mahazar witness. He has stated in his evidence that during January 2012 in between 10.00 a.m. and 11.00 a.m. the police came to the house of P.W.1, where they have prepared the mahazar as per Ex.P.2. He denied the suggestions put to him. His evidence needs no much discussion which is only spot mahazar.
17. P.W.4 Mallesh is the seizure mahazar witness. He has stated in his evidence that on 29.4.2012, he was called upon by the Subramanyapura police to the Police Station, where accused No.1 was present and Cw.7 was also present and accused No.1 took them to his house, situated behind the Mazjid, Gandhinagar, where he found one Santro car, and Yamaha vehicle and the police have seized the same under the mahazar Ex.P.4. He identified the vehicles in the photo as per Ex.P.5.
In the cross-examination he has stated that he did not say about the boundaries of the place of mahazar. However, he said that the police have drawn the mahazar in between 14 S.C.1007/2012 4.15 p.m. and 5.30 p.m. Thus his evidence is not firm. The Mahazar discloses seizure of Car and bike and accused No.1 was accompanied the police and came to the said spot and that he gave statement that the said vehicles were used in the incident and that they were parked near the house of accused No.2. Thus his evidence is not worth to believe and corroborating the case of the prosecution regarding Ex.P.4 Even there is no identification of the alleged car, alleged to be used by the accused persons after committing the robbery, for dealing with robbed material objects, specifically that in pursuant to the voluntary statement of accused No.1 police agency and panch witnesses proceeded and those vehicles were discovered. Thus, Ex.P.4 is not proved.
18. P.W.5 Kum.Vani, who is the Manager in Mutoot Finance has stated that on 17.5.2012 the police along with Accused Imran and one Yousuf Ali came to her Finance and asked about the receipt with regard to pledging of ornaments by Yousuf and they further told that the said chain was a theft chain and she had returned the same after verifying the records and the police have seized the same under the 15 S.C.1007/2012 mahazar Ex.P.6. She has identified the ornament in the photos Ex.P.7.
In the cross-examination she has stated that the ornaments seized by the police on the date of mahazar was not there before the court and the accused Imran has not pledged the ornaments. She being responsible person, how could it can be believed such a person would do the service so negligently; presumption could be that the officer would perform duty as per norms. The Investigating Officer has not collected material documents pertaining to the pledged ornaments, though I.O. being competent person, to collect them from her or with her assistance from the officials of said finance. It is lacking. It is brought on record that P.W.5 without due verification they took ornaments on pledge and issued receipt. It lead to disbelieve the case of the prosecution. There is material contradictions in the evidence of P.W.5. Thus, whole episode regarding recovery is not with process of law and unbelievable. The evidence of these witnesses is not corroborative, leading to point out the accused persons. It creates doubt about the process of recovery of alleged ornaments inclusive of mangalya of this case, in the manner as reveled under Ex.P6 and versions of 16 S.C.1007/2012 P.W.5 are not free from any reasonable doubt and her evidence does not come to the aid of prosecution to convict accused persons considering it as a link to the chain of circumstances specifically the recovery of the alleged material objects involved in this case, as reveled under Ex.P.6.
19. P.W.3-Mohammed Yousuff has stated that he knows the accused before the court and about one year back the accused gave one gold chain to him and he has pledged the said gold chain before Mutoot Finance for a sum of Rs.39,000/- and he gave the said amount to the accused. He has further stated that after one month the police came and told that the said chain was a theft chain and asked about the said chain and then took him to Mutoot Finance and the police told to the Vani, who is the Manager of Mutoot Finance that the said chain was a theft chain and asked to return the said chain and she produced the same before the police and the police have seized the same under the mahazar Ex.P.3.
In the cross-examination he has stated he do not know writing and reading of Kannada. It is an admitted fact that he gave evidence for prosecution in series of criminal cases 17 S.C.1007/2012 registered against the accused No.1 to 5. So his evidence has been duly considered given in other cases, which reveals inconsistent evidence. He is the person who does not help any person, who asks him to get the advance money by pledging the ornaments. His conduct is that he did not ask the accused No.1 about the source for securing of ornaments, nor he advised them to get the amount by pledging the alleged ornaments; nor he had any hurdle to advise them in that regard; and that he used to help the acquainted persons. He alone went to the said finance for pledging. He admits in some cases that the authorized persons of finance institution would issue receipt for having received the ornaments for pledging the same and after giving the receipt to the finance authority, then only they would return the pledged ornaments and he stated about recovery of receipt from him with reference the alleged pledging of ornaments. In some cases he says she did not receive any documents for having pledged ornaments. He doesn't know what was the rate of interest per annum and when the police came to his house in the matter of pledged robbed articles. He did not lodge the complaint to the police, after coming to known that the said material object was of robbed article. His evidence is also not free from any doubt 18 S.C.1007/2012 with reference to the receiving of alleged material objects and had dealings regarding pledging of the same and recovery, as because how the chain seen in Ex.P.3 was pledged with said finance. The prosecution case itself made unbelievable about recovery and it cannot be believed that the chain seen in Ex.P.3 was the robbed article and it was recovered pursuant to confessional statement of accused No.1. Apart from this no evidence of finance authorities on record.
20. P.W.7 Balaraj-PSI, has stated that on 23.1.2012 P.W.1 came and lodged the complaint, on the basis of the said complaint he registered the case in Cr.No.28/2013 and submitted F.I.R. to the court and on the next day he visited the spot and prepared the spot mahazar as per Ex.P.2. He has further stated that on 6.5.2012 himself and other staff were directed to trace out the accused, by the P.I., and that on the credible information himself and other staff went to Hindupur Cross, Andhra Pradesh, where Imran and Irfan were present and they apprehended them, and brought them to the Police Station and arrest process was followed, and produced before the jurisdictional Magistrate, and in turn they were taken to judicial custody. He has further stated 19 S.C.1007/2012 that on 10.5.2012 his staff produced accused No.4 before him and on 10.5.2012 they produced accused No.5 and he arrested them and produced them before the learned Magistrate on respective dates. They were taken to judicial custody. He recorded the voluntary statements of accused persons and pursuant to their voluntary statements he seized the gold ornaments and subjected the same to P.F. and recorded the statements of the witnesses and after completion of investigation has filed the charge sheet against the accused persons. The voluntary statements of accused are not admissible in evidence to believe it as credible evidence.
21. P.W.6 Manjunath PSI has stated that on 23.4.2012 he took the police custody of accused No.1 in Cr.No.127/2012 and recorded his voluntary statement and on 29.4.2012 pursuant to his voluntary statement, he seized the vehicles under the mahazar and subjected the same to P.F. and handed over the further investigation to C.W.19. There we find material discrepancies and contradictions, which creates doubt about recovery of material objects. It is highlighted the material discrepancies and contradictions, with the evidence of other independent witnesses. His evidence is not 20 S.C.1007/2012 corroborated with the material independent witnesses specifically about recovery of vehicles used for committing of offences as discussed above. Thus, the evidence of these official witnesses, not corroborated by other material witnesses, cannot be relied upon as cogent and clinching evidence to convict the accused Nos.1 to 5 for the alleged offences.
22. The material placed on record discloses that there is no corroborative and clinching evidence regarding recovery of bike and car and recovery of ornaments, as the prosecution has failed to prove the mahazar. The very victim has not identified duly the accused Nos.1 and 2 as it is case of the prosecution that she died. Because there was no reference regarding identification parade and it was duly conducted by Investigating Officer nor the victim has stated about features of the accused alleged to be the committed theft of the chain kept on the table. There is no corroborative evidence supporting version of the IO. Apart from this there are material contradictions arisen in evidence of recovery panch witness and the evidence of official witnesses. The recovery of gold chain is not duly proved. Therefore, it is fit case to give 21 S.C.1007/2012 benefit of doubt to the accused persons, as the prosecution has failed to prove the recovery of robbed chain. Apart from these defence the counsel brought on record through the material witnesses that the accused persons were implicated illegally in the cases, as because they lodged a complaint before the Human Rights Commission alleging that the accused Nos.1 to 3 were taken to illegal custody and detained by the police.
23. Therefore, it is clear from the evidence on record that the prosecution has failed to bring on record the credible evidence. Though the materials are brought on record through the investigating officer, and apprehending of the accused persons, the evidence led by the witnesses have not supported the case, linking the chain of facts leading to the accused without reasonable doubt. Whatever evidence of prosecution witnesses, as discussed above, to prove the guilt of the accused persons, is not sufficient, as their evidence is without cogent and corroborative evidence of independent and material witnesses. Thus, prosecution has failed to bring home the guilt of the accused persons beyond all reasonable doubt. So as to convict them under sections 392, 109 and 22 S.C.1007/2012 413 of I.P.C. Extending benefit of doubt, in their favour it is held that the accused are entitled for acquittal. Hence, Points No.1 & 2 are answered in the 'Negative'.
24. Point No.4:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
ORDER Accused Nos.1 to 3 and Accused No.5 are acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 392, 109 and 413 of I.P.C.
Case against A.4 is abated as he is reported to be dead.
The interim order regarding M.O.No.1 is made absolute.
(Dictated to the Judgment Writer, directly over computer, then corrected and pronounced by me in the open court on this the 2nd day of April, 2018) (S.Shobha) LII Addl. City Civil & Sessions Judge, Bengaluru.
: ANNEXURE:
List of witnesses examined for the prosecution:
P.W.1 Chickraju
P.W.2 Nanjundraraj Urs
P.W.3 Mohd. Yousuff
23 S.C.1007/2012
P.W.4 Mallesh
P.W.5 Kum.Vani
P.W.6 Manjunath S
P.W.7 Balaraj
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Complaint P.1(a) Signature of P.W.1 Ex.P.2 Spot mahazar P.2(a) Signature of P.W.1 P.2(b) Signature of P.W.2 Ex.P.3 Xerox copy of mahazar Ex.P.4 Mahazar Ex.P.5 Photo of motorbike Ex.P.6 Seizure mahazar P.6(a) Signature of P.W.5 Ex.P.7 Photo of chain Ex.P.8 Voluntary statement of accused P.8(a) Signature of accused Ex.P.9 F.I.R. P.9(a) Signature of P.W.7 Ex.P.11 P.F.No.104/2012 P.11a) Signature of P.W.7
List of documents exhibited on behalf of defence: Nil List of M.O. marked for the prosecution:
M.O.1 Gold Chain
LII Addl.City Civil & Sessions Judge,
Bangalore City.
24 S.C.1007/2012