Bangalore District Court
W/O Harish vs By Siddapura Police on 31 August, 2021
0 Crl.A.No.1320/2018
1 Crl.A.No.1320/2018
IN THE COURT OF THE LII ADDL. CITY CIVIL &
SESSIONS JUDGE, BANGALORE (CCH-53)
Dated this the 31st day of August, 2021
PRESENT
Sri.B.G.Pramoda, B.A.L., LL.B.,
LII Addl. City Civil & Sessions Judge,
Bangalore.
Crl.A.No.1320/2018
Accused/ Smt.Naveetha
Appellant : W/o Harish,
Aged about 35 years,
R/at No.35, 5th Block,7th 'B' Main,
4th Cross, Koramangala,
Bengaluru-560034.
(By Sri.Dharanesh C.N., Advocate)
-V/S-
Complainant/ The State of Karnataka
Respondent: By Siddapura Police
Bengaluru.
(By learned Public Prosecutor)
JUDGMENT
The appellant has filed the present appeal u/Sec.374(3) of Cr.P.C. praying to set aside the judgment of conviction dated 20.06.2018, passed by learned II ACMM, Bangalore in C.C.No.13852/2015 and prayed to acquit the 2 Crl.A.No.1320/2018 appellant for the offences punishable u/Sec.420 and 380 of IPC.
2. Appellant of this appeal was the accused before the trial court. The Respondent of present appeal was the complainant before the trial court. The rank of the parties to this appeal will be hereinafter referred to with the same rank as assigned to them before the trial court for the sake of convenience.
3. Brief facts of the case before trial court which leads to file this appeal in brief are as follows:-
PSI of Siddapura police station had filed charge sheet against the accused/appellant before the learned II ACMM, Bengaluru alleging the offences punishable u/Sec.420 and 380 of IPC, after conducting the investigation of Cr.No.47/2015 registered by them on the basis of the information given by one Anthony Chirayath. It is alleged in the charge sheet that on 24.02.2015 at about 5.22 p.m., the accused came to the Josco Jewellers shop for purchase of golden bangles. The accused came to Counter No.4 wherein C.W.4/Joseph was on duty and requested him to show different verities of golden bangles. When C.W.4 has 3 Crl.A.No.1320/2018 shown different verities of bangles to her by putting them in tray, the accused had diverted the attention of C.W.4 and committed the theft of two bangles from the tray and kept two duplicate bangles in the said place which she was brought at that time. Hence, it is alleged in the charge sheet that the accused had committed the offences of cheating and theft.
4. After filing of the charge sheet, the learned II ACMM, Bengaluru has took the cognizance for the offences punishable u/Sec.420 and 380 of IPC against the accused and registered criminal case in C.C.No.13852/2015. After appearance of accused before the Court in pursuant to summons, the Learned Magistrate has framed charge against the accused for the aforesaid offences and posted the matter for trial.
5. The Prosecution in order to bring home guilt of the accused examined 4 witnesses before trial court as P.W.1 to P.W.4. Prosecution has also produced 6 documents and got them marked as Ex.P.1 to P.6. Thereafter, trial court had recorded the statement of the accused u/Sec.313 of Cr.P.C. Accused was not chosen to lead any defence 4 Crl.A.No.1320/2018 evidence. Hence, the Learned Magistrate posted the matter for arguments.
6. The learned trial judge after completion of the trial of the case had heard the arguments of both the side. The learned trial judge after perusing the charge sheet and oral and documentary evidence adduced on behalf of prosecution, was pleased to pass judgment on 20.06.2018 by convicting the accused for the offences punishable u/Sec.420 and 380 of IPC. The learned trial judge was pleased to sentence the accused to undergo simple imprisonment for the period of two years for the offence punishable u/Sec.420 of IPC and pleased to impose fine of Rs.5,000/- and in default of payment of fine amount directed the accused to undergo simple imprisonment for the period of six months. The learned trial judge also sentenced the accused to undergo simple imprisonment for the period of two years for the commission of offence punishable u/Sec.380 of IPC and to pay fine of Rs.5,000/- and in default of payment of fine amount directed the accused to undergo imprisonment for the period of six months.
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7. The accused being aggrieved by the said judgment of conviction has preferred the present appeal.
8. Grounds of appeal in nutshell as urged in the appeal memorandum are as follows:
(a) The judgment of conviction passed by the Learned Magistrate is improper and it is one sided.
(b) The Learned Magistrate has not considered the materials placed on record by the Appellant and he has not considered the valid and tenable defense put forth by the Appellant.
(c) The learned trial judge has not considered the fact that the prosecution has not examined any independent witness to substantiate its case an to prove the guilt of the Appellant beyond reasonable doubt.
(d) The learned trial judge has not considered the fact that entire case is based on the statements of favorable witnesses without any corroboration of independent witnesses.
(e) The learned trial court has also not considered the fact that prosecution has not provided the material 6 Crl.A.No.1320/2018 evidence like CCTV Footage and other material evidence to prove the guilt of the accused.
(f) The Learned Magistrate has not considered the fact that the Appellant was falsely implicated by the complainant police by colluding with the persons who are enimicaly deposed against the Appellant in the locality and for statistical purpose.
(g) The Learned Magistrate has failed to properly weigh the evidence adduced on behalf of prosecution. The Learned Magistrate has not considered the lapses and lacunas in the case of the prosecution. The learned trial judge is erred in convicting the accused.
On these among other grounds, the appellant has prayed to set aside the impugned order of trial court and prayed to convict the accused.
9. After filing of the appeal, notice was issued to respondent. After appearance of the respondent, the trial court record was called for. After securing the lower court record the matter was posted for arguments.
10. Heard the arguments of the Learned counsel for the Appellant and Learned Public Prosecutor. Perused the 7 Crl.A.No.1320/2018 grounds urged in appeal memorandum, lower court record and other materials on record.
11. Having done so, the following points will arise for my consideration:
Point No.1 Whether the appellant proves that the trial court is erred in convicting the accused for the offences punishable u/Sec.420 and 380 of IPC?
Point No.2 Whether the appellant proves that the interference of this court is required with the impugned judgment of the trial court?
Point No.3 Whether the appeal filed by the appellant is deserves to be allowed?
Point No.4 What order?
12. My answer to the aforesaid points are as follows:
Point No.1 : In the Negative
Points No.2 & 3: In the Affirmative
Point No.4 : As per final order
for the following:
R EAS O N S
13. Point No.1 to 3:- These three points are
interrelated to each other and as such, they are taken together for discussion to avoid repetition of facts.
14. It is the case of the prosecution before the trial court that, on 24.02.2015 at about 5.22 p.m., in Josco Jewellers shop of Jayanagar, accused has diverted the 8 Crl.A.No.1320/2018 attention of the salesman and stolen two golden bangles from the said Jewellers shop and replaced the same with duplicate bangles and thereby committed the offences of cheating punishable u/Sec.420 of IPC and committed the offence of theft in the said Jewellers shop. In order to prove that the accused has committed the aforesaid offences, the prosecution has examined 4 witnesses before the trial court as P.W.1 to P.W.4. Among them P.W.1 is the Manager of Josco Jewellers shop, P.W.2 is the salesman of Josco Jewellers shop, P.W.3 is the Police Constable who brought the accused to the police station and produced before Investigating Officer. P.W.4 is the Investigating Officer.
Now let us examined the evidence of the aforesaid witnesses.
15. P.W.1 in examination in chief has deposed that on 24.02.2015, at about 5.00 p.m. the accused came to his jewellery shop and asked the salesman to show golden bangles. He has further deposed in his chief-examination that she has diverted the attention of the salesman and committed the theft of two golden bangles and replaced them with duplicate bangles. P.W.1 has further deposed in 9 Crl.A.No.1320/2018 his examination-in-chief that on the same day when they have inspected the stock, they came to know about the duplicate bangles. P.W.1 has further deposed in his examination-in-chief that thereafter they have seen the CCTV footages of their shop and came to know about the commission of theft of two golden bangles by the accused. P.W.1 has further deposed in his examination-in-chief that on 26.02.2015 he has given information to the Siddapura police about the incident. He has further deposed in his examination-in-chief that police thereafter have conducted spot mahazar in the place of the incident and also conducted seizure mahazar in his presence and also seized bangles from the accused. He has further deposed in his examination-in-chief that he has taken the interim custody of those golden bangles from the police.
16. P.W.2, is the salesman of Josco Jewellers shop. His evidence in his examination-in-chief corroborated the evidence of P.W.1 about alleged incident. He has also deposed that accused came to their shop on 24.02.2015 at about 5.00 p.m., she has diverted his attention and committed theft of two golden bangles and replaced the 10 Crl.A.No.1320/2018 same with duplicate bangles. P.W.2 has further deposed in his examination-in-chief that said fact came to their knowledge on the same day at the time of stock verification and seeing the CCTV footages. He has further deposed in his examination-in-chief that he has identified the accused in the police station.
17. P.W.3 in his examination-in-chief has deposed that as per the direction of Investigating Officer, he had gone to the jewellery shop of the C.W.1 and enquired the Manager. He has further deposed that the Manager has shown the accused stating that he felt suspicious about the accused. P.W.3 has further deposed in his examination-in- chief that he has enquired the accused and brought her to the police station and produced her before Investigating Officer.
18. P.W.4, the Investigating Officer, in his examination-in-chief has deposed about receiving the information from P.W.1 on 26.02.2015 at about 11.30 a.m. and deposed about registering the case against the accused in Cr.No.47/2015. P.W.4 has further deposed in his examination-in-chief about conducting of spot mahazar in 11 Crl.A.No.1320/2018 the place shown by P.W.1. He has also deposed about P.W.3 producing the accused before him and he conducting mahazar as per Ex.P.3 and deposed about seizure of four golden bangles and two duplicate bangles from the accused. He has also deposed about recording the statement of witnesses and filing the charge sheet against the accused.
19. On the basis of evidence of aforesaid four witnesses, the learned Magistrate has convicted the accused for the offences punishable u/Sec.420 and 380 of IPC. The learned Magistrate in his impugned judgment has observed that P.W.1 and 2 are the eyewitnesses to the alleged incident and they have seen the accused committing the alleged offences and as such, their evidence can be believed. The learned Magistrate in his impugned judgment has also observed that only on the ground that the Investigating Officer has not produce the CCTV footages before the court, the evidence of P.W.1 and 2 and the case of the prosecution cannot be disbelieved. The learned Magistrate has also observed in his judgment that defect in the investigation also cannot be considered as ground to disbelieve the case of the prosecution and to give benefit of 12 Crl.A.No.1320/2018 accused. Hence, the learned Magistrate convicted the accused for the alleged offences.
20. The learned counsel for the Appellant argued that the learned Magistrate erred in believing evidence of P.W.1 and 2. The learned counsel for the Appellant has further argued that P.W.1 and 2 cannot be considered as eyewitnesses to the incident. It is further argued by the learned counsel for the Appellant that there is inordinate delay of two days in lodging the complaint and same is not explained by the prosecution. It is further argued by the learned counsel for the Appellant that the Investigating Officer has failed to produce the CCTV footages and photos are also not produced. It is further argued by the learned counsel for the Appellant that complaint is filed by P.W.1 after the accused was arrested and after recovery of the golden bangles. It is further argued by the learned counsel for the Appellant that prosecution has failed to prove the seizure of golden bangles from the possession of accused. Hence, the learned counsel for accused argued that the learned Magistrate is erred in holding that the prosecution has proved the guilt of the accused beyond reasonable 13 Crl.A.No.1320/2018 doubt and prayed to acquit benefit of doubt to the accused and prayed to acquit the accused by setting aside the judgment passed by learned Magistrate.
21. As it is rightly pointed out by the learned counsel for the accused, there is inordinate delay of two days in lodging the complaint. According to P.W.1, the alleged incident took place on 24.02.2015 at about 5.00 p.m. In Ex.P.1, it is mentioned that the incident took place on 24.02.2015 at about 5.22 p.m. Whereas the information was given to the police about alleged incident on 26.02.2015 at about 11.30 a.m. As it is stated earlier, P.W.1 in his examination-in-chief has deposed that on the date of the incident, in the night they came to know about the theft of two golden bangles from their shop at the time of stock verification. They have seen the CCTV footages and confirmed about the theft of two bangles by a lady. Even though P.W.1 has got knowledge about the theft of two golden bangles by a lady from their shop on 24.02.2015 itself during night, he has not made any efforts to inform the same to the police station immediately on the next day of incident. P.W.1 in his examination-in-chief or in 14 Crl.A.No.1320/2018 Ex.P.1/complaint has not given any explanation for inordinate delay of two days in informing about the incident to the police. The inordinate delay in informing to the police about the alleged incident is fatal to the case of the prosecution. It creates doubt about the say of P.W.1 and 2 about occurrence of the alleged incident on the day and time and place as stated by P.W.1 and 2 in their evidence and as stated in Ex.P.1 complaint.
22. P.W.1 in his cross-examination has clearly stated that at the time of giving information to the police he has handed over the CCTV footages and he has also handed over photos to the police. P.W.1 in his cross-examination has also deposed that there were 36 CCTV Cameras in their Jewellery shop. P.W.4 in his examination-in-chief has also deposed that P.W.1 at the time of giving information has also produced CCTV footages containing incident of commission of theft of two golden bangles in his shop. But the Investigating Officer has not produced the CCTV footages or photos or DVR, in order to prove the allegations made against the accused that she had committed the theft of two golden bangles in the Josco Jewellers shop belonging 15 Crl.A.No.1320/2018 to P.W.1 and replaced the original golden bangles with duplicate bangles. It is the specific case of the prosecution that on 24.02.2015 at about 5.00 p.m., the accused had gone to the Josco Jewellers shop in which P.W.1 and 2 were working and accused committed the alleged offences in the said shop after she had gone inside the Josco Jewellers shop. Even in order to prove that accused had gone to jewellery shop on 24.02.2015, the Investigating Officer has not produced the CCTV footages showing the accused entering into the said jewellery shop and accused asking the salesman to show the golden bangles and accused committing theft of two golden bangles and keeping the duplicate bangles brought by her in the place of original bangles. The Investigating Officer has not given any reasons for not producing the CD containing the CCTV footages of Josco Jewellers shop. Non-production of CCTV footages by the Investigating Officer is also fatal to the case of the prosecution.
23. P.W.1 and 2, though they were working in Josco Jewellers shop as salesman and manager, they have not personally witnessed the accused committing the alleged 16 Crl.A.No.1320/2018 offences of theft of two bangles from their jewellery shop and replacing the same with duplicates. As such, the learned Magistrate is erred in observing in Para No.29 of his judgment that P.W.1 and 2 have personally witnessed the accused committing the alleged offences in their jewellery shop and as such, their evidence cannot be disbelieved. If really P.W.1 and 2 have seen the accused committing the alleged offences they would have tried to caught hold the accused at the time of committing the offence. But they have not made such efforts. They have clearly deposed in their examination-in-chief that they came to know about the alleged offence after stock verification and after seeing the CCTV footages. As such, learned Magistrate is erred in holding that P.W.1 and 2 are the eyewitnesses and as such, their evidence cannot be disbelieved and no corroboration is required for their evidence. Since P.W.1 and 2 are not eyewitnesses to the alleged incident, CCTV footages will play vital role in identification of accused and production of CCTV footages is very much important to prove the fact that the accused had came to the Josco Jewellers shop on the alleged date, place and time and accused has committed the 17 Crl.A.No.1320/2018 alleged offence. As such, I am of the opinion that the learned trial judge is erred in believing the evidence of P.W.1 and 2 in the absence of non-production of CCTV footages of Josco Jewellers shop. The learned trial judge is erred in holding that non-production of CCTV footages is not fatal to the case of the prosecution in view of evidence of P.W.1 and 2. When there are no direct evidence who have seen the the accused committing the alleged offences, the CCTV footages is very much essential to prove the fact that the accused had gone to the jewellery shop of the complainant and to prove the fact that she had committed the theft of two golden bangles from the said shop.
24. P.W.3, police constable in his evidence has stated that as per the direction of PSI, he had gone to the jewellery shop of C.W.1 on 26.02.2015 at about 5.15 p.m. and enquired the accused who was present in the said shop on suspicion as shown by the manager. But as per the prosecution case and as per the statement of P.W.3, he had gone to Joyalukkas jewellery shop on 26.02.2015 and not to the jewellery shop of C.W.1 as stated by him in the chief- examination. As per the prosecution case, P.W.3 had met 18 Crl.A.No.1320/2018 the manager of Josco Jewellery shop namely Raghunandan in Joyalukkas jewellery shop and accused was in Joyalukkas Jewellery shop when he had gone to the said shop. Further according to the prosecution Raghunandan had shown the accused to P.W.3 in the said jewellery shop and from there he has brought the accused to the police station and produced her before Investigating Officer. But the evidence of P.W.3 in the chief-examination is contrary to the case of the prosecution and it is not in accordance with the report of P.W.3 produced at Ex.P.5.
25. In this case, the prosecution has not examined the manager of Josco Jewellery shop, who is cited as C.W.5 in the charge sheet. The evidence of C.W.5 is very much essential to prove the fact that the accused had gone to Joyalukkas Jewellery shop on 26.02.2015 and she was seen by C.W.5. According to the prosecution C.W.5 Raghunandan had gone to Joyalukkas Jewellery shop on 26.02.2015 to give the details of the accused along with her photo, in order to give caution to them about the accused. Further according to the prosecution he had identified the accused in Joyalukkas Jewellery shop and intimated the 19 Crl.A.No.1320/2018 same to PSI of Siddapura police station through telephone about the presence of accused in Joyalukkas Jewellery shop. As such, the PSI has sent his police staff to the said jewellery shop. But in order to prove the fact that C.W.5 had gone to Joyalukkas Jewellery shop and he had seen the accused in the said jwellery shop and thereafter he had intimated about the presence of accused to PSI and to prove the fact that P.W.3 came to the said shop and he had shown the accused to him. Further Investigating Officer has also not obtained the CCTV footages of Joyalukkas Jewellery shop in order to prove the fact that accused was there in the said shop on 26.02.2015 at about 5.15 p.m. and to prove the fact that on the said date C.W.5 had gone to the said shop and he had seen to the accused in the said jewellery shop. Further production of CCTV footages of Joyalukkas Jewellery shop is also very much necessary to prove the fact that P.W.3 had gone to the said shop on 26.02.2015 and C.W.5 had shown the accused to him and he had enquired the accused and thereafter, brought the accused from the said jewellery shop to the police station. Further the prosecution has not examined any workers of 20 Crl.A.No.1320/2018 Joyalukkas Jewellery shop to prove the fact that the accused was there in the shop on 26.02.2015 and he was identified by C.W.5 and thereafter P.W.3 had came to the said shop and took the accused from the said shop to police station. There is no corroboration to the evidence of P.W.3 about the presence of accused in Joyalukkas Jewellery shop on 26.02.2015 at about 5.30 p.m. and C.W.5 had shown the accused to him in the said shop. As such, doubt arises about the evidence of P.W.3 about the presence of accused in Joyalukkas Jewellery shop on 26.02.2015 and he bringing the accused from the said jewellery shop to the police station.
26. In Ex.P.1 complaint, the details of the two golden bangles alleged to have been stolen are not stated. It is only stated that on stock verification they found the shortage of 17 grams. The design of golden bangles which were found missing and the weight of the said golden bangles are not specifically mentioned in the Ex.P.1. P.W.4 in his examination-in-chief has deposed that after the accused was produced before him by P.W.3 he had conducted mahazar in the presence of C.W.1 and 5 in between 6.15 to 21 Crl.A.No.1320/2018 7.15 p.m. and seized four golden bangles and two duplicate bangles which are alleged to have been produced by the accused. The prosecution has not examined C.W.5 one of the seizure mahazar witness, in order to prove the seizure of golden bangles from the accused. Only seizure mahazar examined on behalf of the prosecution is P.W.1. P.W.1 none other than the complainant. C.W.5 is also the manager of Josco Jewellers shop. According to the prosecution he is the person who has shown accused to the police. The Investigating Officer has not conducted the seizure mahazar in the presence of any independent witnesses. The Investigating Officer has not assigned any valid reason for not conducting the seizure mahazar in the presence of the independent witnesses. As such, doubt also arises about the case of the prosecution about the seizure of four golden bangles and two duplicate bangles from the possession of the accused. In the seizure mahazar produced at Ex.P.3 mahazar, the design and weight of each bangles are not specifically mentioned. Further the Investigating Officer has also not get the appraiser report at the time of seizure of golden bangles about the weight and design of each 22 Crl.A.No.1320/2018 golden bangles alleged to have been seized by him. His report is also not obtained by the Investigating Officer. In P.F.No.13/2015, there is correction in the date. The two duplicate bangles are also not seized by the Investigating Officer by conducting mahazar in the presence of independent mahazar witnesses. Further no mahazar was also conducted by the Investigating Officer where the accused was found. As it is stated earlier, CCTV footages of Joyalukkas Jewellery shop are also not collected by the Investigating Officer and they are not produced before the court. The prosecution has failed to the prove the seizure of the golden bangles from the accused beyond reasonable doubts. Further there are no sufficient corroborative evidence to show that the golden bangles alleged to have been seized by the investigating officer from the accused are the golden bangles which were stolen from the Josco Jewellers shop by the accused.
27. As it is discussed above, P.W.1 and 2 are not the eyewitnesses to the incident who have seen the accused committing the alleged offences. Further there is inordinate delay of two days in lodging the complaint. Further 23 Crl.A.No.1320/2018 Investigating Officer has not conducted the seizure mahazar in the presence of any independent witnesses. The prosecution has failed to prove the seizure mahazar beyond reasonable doubt. Further the Investigating Officer has failed to produce the CCTV footages and Josco Jewellery shop and Joyalukkas Jewellery shop in order to prove that the accused had gone to the said shops and committed the theft of two golden bangles at Josco Jewellers shop and she was identified by C.W.5 in the Joyalukkas Jewellers shop. Further prosecution has not examined C.W.5 in order to prove the seizure mahazar and to prove the fact that he had shown the accused to P.W.3. All the aforesaid facts and circumstances creates the doubt about the case of the prosecution about the commission of the alleged offences by the accused. Hence, I am of the opinion that Learned Magistrate is erred in holding that the prosecution has proved the commission of alleged offences by the accused beyond reasonable doubts.
28. The prosecution has alleged that the accused has committed the offence punishable u/Sec.380 of IPC by committing theft of two golden bangles in Josco Jewellers 24 Crl.A.No.1320/2018 shop. The prosecution has failed to prove beyond reasonable doubt that accused had gone to the said jewellery shop and committed the theft of two golden bangles from the said shop. Further the prosecution has alleged that the accused has committed the offence punishable u/Sec.420 of IPC. As discussed earlier, the prosecution has also failed to prove beyond reasonable doubt that accused had gone to Josco Jewellers shop having two duplicate bangles with her. The prosecution has failed to prove that she had replaced those duplicate bangles with that of original golden bangles and committed the theft of two golden bangles and thereby committed the offence of cheating. The prosecution has failed to prove beyond reasonable doubt that in what manner the accused has committed the offence of cheating. Under these fact and circumstances, I am of the opinion that on the basis of evidence of P.W.1 to P.W.4, the accused cannot be convicted for the alleged offences. Their evidence is not sufficient to prove beyond reasonable doubt that accused had committed the alleged offences. Hence, I am of the opinion that benefit of doubt should go in favour of the accused. As 25 Crl.A.No.1320/2018 such, the learned trial judge is erred in holding that accused has committed the offences punishable u/Sec.420 and 380 of IPC and he is erred in convicting the accused for the aforesaid offences. The Appellant has proved that the learned trial judge is erred in convicting the accused in the aforesaid two offences. As such, the interferance of this court is required with the impugned judgment of conviction passed by the learned trial court. The appeal filed by the Appellant is deserves to be allowed. The impugned judgment passed by the trial court is required to be set aside. Accused/Appellant is entitled to be acquitted with respect to the alleged offences. Accordingly, I answer Point No.1 in Negative and Points No.2 and 3 in Affirmative.
29. Point No.4:- In view of my findings on point No.1 to 3, I proceed to pass the following:
ORD ER The appeal filed by appellant u/Sec.374(3) of Cr.P.C. is hereby allowed.
The judgment passed by the learned II ACMM, Bengaluru, dated 20.06.2018 in CC.No.13852/2015 is hereby set aside.
The accused/Appellant is acquitted for the offences punishable under Sections 420 and 380 of IPC.26 Crl.A.No.1320/2018
The bail bond and surety bond of accused/ Appellant shall stands cancelled.
Send copy of this judgment to the lower court along with records.
(Dictated to the Stenographer, typed by her, corrected and then pronounced by me in the open court on this the 31 st day of August, 2021).
(B.G.Pramoda) LII Addl. City Civil & Sessions Judge, Bangalore.27 Crl.A.No.1320/2018
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