Bangalore District Court
State By: Police Inspector vs 3.Umesha @ Umi on 28 July, 2018
IN THE COURT OF LXV ADDL CITY CIVIL AND
SESSIONS JUDGE; BANGALORE CITY
CCH.NO 66
PRESENT:
SRI.PATIL MOHANKUMAR BHEEMANAGOUDA
B.Com.,LL.B.,(Spl)
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
DATED THIS THE 28TH DAY OF JULY, 2018
S C No. 982/2016
COMPLAINANT: State by: Police Inspector,
Girinagara Police Station,
Bengaluru.
(Reptd. by Public Prosecutor)
/ Vs /
ACCUSED: 3.Umesha @ Umi
S/o Nagaraja, 37 Years
R/a No.33, 5th Main,
Raghavednra Layout,
Hosakerehalli, Bangalore.
(A3 by Sri......., Adv)
Date of 31.05.2013
Commencement of
offences
2 S.C.No.982/2016
Date of report of 31.05.2013
offences
Name of complainant Sri.K.Subramani, PSI
Date of recording of 7.7.2018
evidence
Date of closing of 13.7.2018
evidence
Offence complained
U/s. 399 and 402 of IPC
of
Opinion of the judge Acquittal
****
JUDGMENT
This is a split up charge sheet filed by the Girinagara police, as against accused, for the offences punishable u/sec.399 and 402 of IPC.
2. Brief facts of prosecution case are as follows:-
The complainant Sri.K.Subramani, is the Police Sub-Inspector, Girinagara P.S. He states that, on 31.05.2013 at about 9.15 p.m. when he was 3 S.C.No.982/2016 discharging his patrolling duty within the limits of Girinagara P.S. he received credible information that within the jurisdiction of Girinagar police station at playground, behind Manjunatha Temple, Bank colony, about five persons had gathered and armed with deadly weapons, they were making preparations to commit dacoity. The complainant states that, he immediately summoned the two independent witnesses and requested them to act as panchas.
Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance, they got themselves satisfied that the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that these assailants 4 S.C.No.982/2016 were holding deadly weapons in their hands and they were talking among themselves that, they would commit dacoity. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to caught hold of two persons and three of them ran away. He further states that, the accused did not give proper answers for their assembling in a said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity. The complainant further states that, he seized deadly weapons, knife, one long chopper, two wooden clubs and cricket stump from these accused persons and in the presence of two panchas i.e. CW2 Rajesh and CW3 Santhosh and conducted the mahazar. Thereafter, he came to the police station along with accused, and su-motto registered the case against 5 S.C.No.982/2016 the accused for the offences punishable U/s.399 and 402 of IPC, and he has submitted FIR to the court. Thereafter, he has conducted investigation and after completion of investigation, he has filed charge sheet against the accused for the offences punishable U/s.399 and 402 of IPC.
3. Learned XXIV ACMM, Bangalore, took cognizance of the offences punishable u/sec.399 and 402 of IPC and committed the case. After committal, the split up case is numbered as S.C.No.982/2016 and then made over to this court, for disposal in accordance with law. After hearing, charges were framed and explained to Accused No.3 for the offences punishable U/s.399 and 402 of IPC. However, Accused No.3 pleaded not guilty of the charges leveled against him, and he claimed to be tried.
6 S.C.No.982/2016
4. The prosecution in support of its contention had totally cited 8 witnesses i.e. CW1 to CW8. However, the prosecution was able to secure and examine only two witnesses i.e. PW1 and PW2 and documents at Ex.P.1 to Ex.P.4 and M.O.1 to M.O.5 were marked. The prosecution was able to secure and examine only CW1 and CW8. Even though, sufficient opportunity was given, prosecution was unable to secure CW2 and CW3. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. Learned PP has given up CW4 to CW7.
5. The accused was examined U/s.313 Cr.P.C., The incriminating evidence appearing against the accused was read over and explained to the accused. However, the accused totally denied the incriminating evidence appearing against him. The accused has not chosen to lead any defense evidence on his behalf.
7 S.C.No.982/2016
6. Heard argument from both sides.
7. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that on 31.05.2013 at about 9.15PM within the limits of Girinagara Police Station, at playground, behind Manjunatha temple, Bank colony, accused No.3 along with other accused persons, by holding deadly weapons i.e., long chopper, wooden clubs, knife and cricket stump, were making preparations to commit dacoity, thereby committed an offence punishable U/s.399 of IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused No.3 along with other accused persons, had assembled at the said spot to commit dacoity and thereby committed an offence punishable U/s.402 of IPC?
3. What Order?
8. My answer to the above points are:
POINT NO.1 : In the Negative 8 S.C.No.982/2016 POINT NO.2 : In the Negative POINT NO.3 : As per the final order for the following:
REASONS
9. POINT NOs.1 AND 2 : Since these points are interconnected with each other, for the sake of convenience, I would like to take these points together for common consideration.
10. The complainant has been examined as PW.1. He states that, on 31.05.2013 at about 9.15 p.m. when he was discharging his patrolling duty within the limits of Girinagara P.S. he received credible information that within the jurisdiction of Girinagar police station at playground, behind Manjunatha Temple, Bank colony, about five persons had gathered and armed with deadly weapons, they were making preparations to commit dacoity by snatching the valuables of the public passing by. The 9 S.C.No.982/2016 complainant states that, he immediately summoned the two independent witnesses and requested them to act as panchas. Both independent panchas agreed to act as panchas and accordingly, the complainant along with his staff and panchas went towards the scene of offence. They stopped the vehicle at some distance from the spot and by observing the assailants from a distance; they got themselves satisfied that the assailants were making preparations to commit dacoity. The complainant states that, by observing the assailants from a little distance they found that these assailants were holding deadly weapons in their hands and they were talking among themselves that, they would commit dacoity. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to caught hold of two persons and three of them ran away. He further states that, the accused 10 S.C.No.982/2016 did not give proper answers for their assembling in a said isolated place. The complainant states that, upon enquiry, these arrested accused persons, revealed that they were making preparation to commit dacoity. The complainant further states that, he seized deadly weapons, knife, one long chopper, two wooden clubs and cricket stump from these accused persons and in the presence of two panchas i.e. CW2 Rajesh and CW3 Santhosh and conducted the mahazar. Thereafter, he came to the police station along with accused, and su-motto registered the case against the accused for the offences punishable U/s.399 and 402 of IPC, and he has submitted FIR to the court. He further states that, he recorded the statement of CW2 to CW8 and voluntary statement of accused persons. He further states that, on 14.6.2013 he deputed his staff CW.5 Mallikarjuna and CW.7 Suresh to trace and 11 S.C.No.982/2016 apprehend Accused No.3 and 5. However, they were not able to trace and apprehend Accused No.3 and 5 and hence, they submitted report. Thereafter, he has conducted investigation and after completion of investigation, he has filed charge sheet against the accused for the offences punishable U/s.399 and 402 of IPC.
11. PW.1 has elaborately deposed of having arrested the accused persons and for having seized the deadly weapons from the possession of accused persons. He further deposed that in the presence of two independent witnesses, he has seized all the above referred articles and conducted mahazar as per Ex.P.1. He also identifies the deadly weapons seized i.e. knife, one long chopper, two wooden clubs and cricket stump and accordingly, they were marked as M.O.1 to M.O.5. He states that, he has conducted panchanama as per Ex.P.1 in the presence 12 S.C.No.982/2016 of CW2 and CW3. He further states that, he has su- motto registered the case against the accused persons and submitted the FIR to the court. He identifies the accused person. PW.1 has been cross examined by the learned advocate for accused. Further on careful perusal of cross examination, I am of the opinion that nothing material has been elicited, so as to discredit his testimony.
12. PW.2 L.R.Ramu, the then ASI of Girinagara police station, has stated of having assisted the complainant/PW.1 in nabbing the accused and he deposes in par with the evidence of PW.1. He has deposed about the entire incident and how the accused were arrested. He has corroborated the evidence of PW1.
13. The prosecution in order to prove its case, has totally cited 8 witnesses i.e. CW1 to CW8. 13 S.C.No.982/2016 However, the prosecution was able to summon and examine only two witnesses i.e. PW1 and PW2. Even though, sufficient opportunity was given and coercive steps were taken, the prosecution was unable to secure the material/independent witnesses i.e., mahazar witnesses CW2 and CW3. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The learned PP has given up CW4 to CW7.
14. It is the specific case of prosecution that the complainant had received credible information that, the accused persons had assembled at the said spot with an intention to commit dacoity. They had assembled with deadly weapons like knife, one long chopper, two wooden clubs and cricket stump and they were making preparation to commit dacoity. PW.1 has specifically stated that, upon receipt of credible information, she immediately summoned 14 S.C.No.982/2016 two independent pancha witnesses i.e. CW2 Rajesh and CW3 Santhosh. He requested them to act as panchas, upon which the panchas have agreed. Accordingly I.O/complainant has proceeded to the spot along with panchas and his staff. He states that, they stopped their vehicle at some distance from the spot and observed the accused persons. He was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with his staff have surrounded the accused and they were able to apprehend Accused No.1 and 2. Meanwhile, Accused No.3 to 5 managed to escape from the spot. The complainant has further stated that, from the possession of the accused, he has recovered the deadly weapons, used for committing dacoity. He states that, in the presence of 2 independent panchas i.e., CW2 and CW3, he has seized the 15 S.C.No.982/2016 articles i.e., knife, one long chopper, two wooden clubs and cricket stump. He has conducted the mahazar as per Ex.P.1 in the presence of those two material and independent mahazar witnesses. The burden is very heavy upon the prosecution to prove the mahazar as per Ex.P.1, to prove that these Material Objects were seized from the accused persons who had assembled and were making preparation to commit dacoity. It is the specific case of prosecution that, from the possession of the accused persons, they seized knife, one long chopper, two wooden clubs and cricket stump. In order to prove these aspects, evidence of PW1 and PW2 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
15. It is pertinent to note that, even though sufficient opportunity was given and coercive steps were taken to secure CW2 and CW3, the prosecution 16 S.C.No.982/2016 was unable to secure them. Hence, prayer of learned PP was rejected and CW2 and CW3 were dropped. The only evidence on record is that of the complainant i.e. PW1, who was PSI attached to Girinagara Police station. The evidence of PW.1 is corroborated by the evidence of PW.1, who has assisted the complainant/PW.1 in nabbing the accused.
16.Before adverting to appreciation of evidence of aforesaid witnesses, it is necessary to state that under Section 399 of IPC, preparation to commit dacoity is made punishable.
17. The entire prosecution case rests on the testimony of PW.1 K Subramani, who was the member of the raiding party. According to the testimony of this witness, five persons had assembled at the place of occurrence and were found 17 S.C.No.982/2016 in possession of deadly weapons. That being so, this Court has to determine as to whether the accused persons can be convicted for the offences punishable under Sections 399 and 402 of IPC and whether the ingredients of the said sections have been proved by the prosecution or not. However before this Court can do so, it will be necessary to refer to the case law on the subject.
18. I would like to rely upon the decision of the Hon'ble supreme court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502
19. This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein the Hon'ble Supreme Court has observed:- 18 S.C.No.982/2016
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."
It has been further held that, "The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of five appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the by the prosecution that the accused were making 19 S.C.No.982/2016 preparation or had gathered for the purpose of committing dacoity".
20. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 and 402 IPC. As discussed herein above, prosecution has examined the members of the raiding party, who have deposed on the lines of the case of prosecution but have not said even a single word that accused persons were making preparation to commit dacoity. The witnesses state that after seeing about five persons, PW.1 gave the signal and when the complainant along with staff surrounded, the accused persons tried to run away in different directions. Out of them three persons managed to run away but two were apprehended. The deadly weapons like M.O. 1 to 5 i.e., knife, one long chopper, two wooden clubs and cricket stump are shown to have been recovered 20 S.C.No.982/2016 from the accused persons. This is the only case of prosecution, which in my opinion is not sufficient to convict the accused person for the offences as indicated.
21. The prosecution was under obligation to establish that, the assembling of the accused persons was for making preparations to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found at vacant place, it cannot be held that they had assembled there for preparation to commit dacoity.
22. It is true that so far as the offence u/s 402 IPC is concerned, it may be mentioned that this 21 S.C.No.982/2016 section applies for mere assembling without proof of other preparation. The offence u/s 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case it is not in dispute that, at the spot only two persons are shown to have been apprehended. According to the prosecution, three persons managed to run away from the spot. This is unbelievable. The raiding party was having around six police officials and some of them were having arms. In these circumstances, how, three accused managed to run away is not explained. There is nothing on record which could show that efforts were made to chase them or to apprehend them.
23. Further, during the evidence of prosecution witnesses i.e. members of raiding party, it has come on record that there was complete darkness. That 22 S.C.No.982/2016 being so, how the members of raiding party could locate the position of the accused persons, when admittedly members of raiding party were positioned in different directions from each other and there was complete darkness. This all has created a doubt about the presence of five or more persons at the spot, which is mandatory to bring the case within the ambit of section 402 IPC, as admittedly on the spot two persons were apprehended. It has not been explained as to how three accused persons namely Umesh, Rajendra and Balaji were connected with the present case, when they ran away from the spot and there was complete darkness. On what basis they were identified as the culprits, remained unexplained.
24. Another important aspect to be noted is that, the prosecution has failed to prove that, there was any overt act on the part of any of the accused 23 S.C.No.982/2016 persons which may lead to the inference that, they had any intention to commit dacoity or they were planning to commit dacoity over there. It is a matter of common knowledge that, any person who is shown to have in possession of deadly weapons would definitely resist his apprehension by police officials, under the fear of being booked in criminal case. In this background, the story as set up by the prosecution does not appeal reasoning and is liable to be rejected.
25. Moreover, records would indicate that, presence of public witness could have been secured by the complainant who was heading the raiding party. The incident is shown to have taken place at about 9.15 pm. Moreover, record would indicate that said place is a public place. This shows that, with a little effort, public witnesses could have been made to join the investigation. However, the prosecution 24 S.C.No.982/2016 has not secured any public witnesses from the said locality/spot of incident. Even the mahazar witnesses, have been secured from different places.
26. In the present case prosecution tried to bring home guilt of the accused person by relying upon the versions of police official who were members of the raiding party and the complainant/I.O., who has conducted investigation. A bare perusal of their version clearly reflects the same to be of stereo type. Hence, I am of the opinion that, it will be highly unsafe to rely upon their version.
27. In the present case, prosecution tried to bring home the guilt of the accused person by relying upon the testimony of the police officials who were members of the raiding party and the complainant/I.O., Their testimony is of stereo type as discussed herein above, which should have been 25 S.C.No.982/2016 supported by some independent witness, which is failing in the present case. The manner in which stereo type deposition has been given without any corroboration or support from any other independent witness is sufficient to disbelieve their version, even in respect of alleged recovery of deadly weapons from the possession of accused persons. The entire proceedings carried out by the raiding party are under the cloud and it would not be safe to place reliance upon the quality of the evidence as adduced by the prosecution. Therefore, the recovery of deadly weapons pursuant to the said proceedings or incident has also become doubtful. There is no independent corroboration to said recovery also.
28. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has miserably failed to prove the offences against the accused person beyond shadow of doubt. Thus, I am left with 26 S.C.No.982/2016 no option but to acquit the accused person. Accordingly, I answer point No.1 and 2 in the 'Negative'.
29. POINT NO.3 : For the above reasons, I proceed to pass the following :
ORDER Acting U/s.235(1) of Cr.P.C., Accused No.3 is acquitted for the offences punishable u/Sec. 399 and 402 of IPC.
The bail and surety bonds of accused stand cancelled.
Note:- Office is hereby directed to preserve entire case file along with M.O.1 to M.O.5 in connection with the split up case registered against absconding accused.
(Directly dictated to the stenographer on computer, corrected and then pronounced by me in the Open Court on this 28th day of July, 2018) (PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.
27 S.C.No.982/2016ANNEXURE
1.LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW-1 K.Subramani. PW-2 Sri.N.R.Ramu
2.LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION:
Ex.P.1 Seizure mahazar Ex.P.2 Complaint Ex.P.3 FIR Ex.P.4 Report.
3.LIST OF MATERIAL OBJECTS MARKED:
MO-1 Knife MO-2 Wooden club MO-3 Long chopper MO-4 Wooden club MO-5 Cricket Wicket
4.LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bengaluru.