Bangalore District Court
The State Of Karnataka vs No.2 : Goutham on 24 June, 2016
IN THE COURT OF THE LI ADDL. CITYF CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 24th day of June 2016
PRESENT:
Sri G.D.Mahavarkar, M.A., LL.B (Spl),
M.L. (Lab & Indstrl Rlns & Adm. Laws),
LL.M (Business Laws), M.Phil-in-Law
(Juridical Science)
LI Addl. City Civil & Sessions Judge, Bengaluru City.
S.C.No. 47/2016
Complainant : The State of Karnataka,
Represented by it's
The Sub-Inspector of Police,
Mahalakshmi Layout Police Station,
Bengaluru.
(By Public Prosecutor)
Vs.
Accused No.2 : Goutham,
(Produced under S/o. Venkatesh,
Body-warrant) Aged 19 years,
R/a. No.6, 10th Cross, 60 Feet Road,
J.C.Nagar, Kurubarahalli,
Bengaluru - 560 086.
(By Sri D.S. Byregowda,
Advocate, for A.2)
1 Date of commission of offence 01.02.2013
2 Date of report of offence 01.02.2013
3 Date of arrest of the accused --
4 Date of release of accused on bail A.2 is produced under
Body-warrant. (in
judicial custody in some
other case)
5 Date of commencement of 10.02.2016
evidence
6 Date of closing of evidence 05.04.2016
2 SC No.47/2016
7 Name of the complainant G.K. Shankar Nayak,
PSI.
8 Offences complained of Sections 399 & 402 IPC
9 Date of pronouncement of 24.06.2016
judgment
10 Opinion of the Judge Guilt of the accused not
proved
11 Order of Sentence As per final-order
JUDGMENT
This is a split-up charge-sheet filed by the Sub-Inspector of Police, Mahalakshmi Layout Police Station, Bengaluru City, leveling the charges against the above said accused person/s for the commission of the offences punishable U/Secs.399 & 402 of I.P.C. in the committal VII ACMM Court, Bengaluru City, in it's CC No.14464/2013 in connection with the Mahalakshmi Layout P.S. Cr.No.32/2013.
2. The epitomized facts of the allegations that are leveled against the above said accused person/s in the charge-sheet run thus:
On 01.02.2013 in between 7.15 p.m. to 7.40 p.m. in the evening, at J.C.Nagar, 2nd Cross, in open-site besides Sathyanarayana Kalyana Mantap Compound, within the limits of Mahalakshmi Layout police station, Bengaluru City, the accused No.2, along-with other accused No's.1 & 3 to 5 possessing the deadly-weapons like long, wooden-club, cricket-bat and cricket-
stump and etc., had unlawfully assembled and were hatching a 3 SC No.47/2016 plan to commit dacoity of the persons in the said area and thereby, the accused person/s committed the offences punishable U/Secs.399 & 402 of I.P.C.
3. After filing the charge-sheet, cognizance of the offences punishable U/Secs.399, 402 of I.P.C. was taken by VII ACMM Court, Bengaluru City.
The accused No.2 being in judicial custody in some other case, he was secured under body-warrant by the VII ACMM Court, Bengaluru City and thereafter by this court, accordingly.
Copies of the charge-sheet and other documents referred to U/Sec.173 of Cr.P.C. were supplied to the accused person by the VII ACMM Court, Bengaluru City, in contemplation with the provisions U/Sec.207 of Cr.P.C. and thereafter committed the case to this court in contemplation with the provisions U/Sec.209 of Cr.P.C.
After hearing both sides, charges for the offences punishable U/Secs.399 & 402 of I.P.C. were framed, and the same were read- over, and explained to the accused person in the vernacular best- known to him.
The accused person has denied the same and pleaded not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused person, the prosecution has adduced the evidence of the witnesses, in all as 4 SC No.47/2016 PWs.1 & 2, and placed it's reliance on the documents marked at Exs.P.1, P.1(a), P.2, P.2(a), P.2(b), P.3, P.3(a), P.3(b), P.4, P.4(a), P.4(b), P.5, P.5(a), P.5(b), P.6, P.6(a), P.6(b) and the material objects marked on behalf of the prosecution are at MO No's.1 to 4.
5. After the prosecution's evidence was closed, since the incriminating circumstances were arising-out of the evidence of the prosecution witnesses, the statements of the accused person under the provisions U/Sec.313 of Cr.P.C., were recorded.
6. I have heard the arguments advanced by both the learned Public Prosecutor for the State as-well-as the learned counsel for the accused person.
7. Now, the points that arise for my consideration are:
(1) Whether the prosecution proves beyond the shadow of all the reasonable doubts that, on 01.02.2013 in between 7.15 p.m. to 7.40 p.m. in the evening, at J.C.Nagar, 2nd Cross, in open-site besides Sathyanarayana Kalyana Mantap Compound, within the limits of Mahalakshmi Layout police station, Bengaluru City, the accused No.2 along-with other accused No's.1 & 3 to 5 possessing the deadly-
weapons, got prepared themselves to commit dacoity of the valuable goods of the persons in the said area and thereby, the accused persons committed the offence punishable U/Sec.399 of I.P.C.?
(2) Whether the prosecution further proves beyond the shadow of all the reasonable doubts that, on the above said date, time and place, the accused persons 5 SC No.47/2016 unlawfully assembled and hatched a plan for the purpose of committing the dacoity, and thereby, the accused persons committed the offence punishable U/Sec.402 of I.P.C.?
(3) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. In the Negative.
Point No.3 .. As per the final-order,
for the following:
REASONS
9. Point No's.1 & 2:- To avoid reiteration of material available in hand and to appreciate the evidence in better position, I hereby take-up Point No's.1 & 2 together admixingly for discussion.
10. It is the specific tale of the prosecution that, on 01.02.2013 in between 7.15 p.m. to 7.40 p.m. in the evening, at J.C.Nagar, 2nd Cross, in open-site besides Sathyanarayana Kalyana Mantap Compound, within the limits of Mahalakshmi Layout police station, Bengaluru City, the accused No.2, along- with other accused No's.1 & 3 to 5 possessing the deadly-weapons like long, wooden-club, cricket-bat and cricket-stump and etc., had unlawfully assembled and were hatching a plan to commit dacoity of the persons in the said area and thereby, the accused committed the offences punishable U/Secs.399 & 402 of I.P.C. 6 SC No.47/2016
11. At the very outset, the absolute burden of proving the alleged imputations against the accused person is casted-upon the prosecution alone in pursuance with the provisions under the Indian Evidence Act, 1872.
12. To substantiate it's case, the prosecution has got examined in all the witnesses as PWs.1 & 2, in which CW.1 is examined as P.W.1 who is the PSI having raided and also the complainant and CW.10 is examined as P.W.2 who is the complete investigating officer and thereby, the prosecution has placed it's reliance on the documentations marked at Exs.P.1 to P.3, in which Ex.P.1 is the mahazar, Ex.P.1(a) is the signature of the P.W.1, Ex.P.2 is the report of the P.W.1, Ex.P.2(a) is the signature of the P.W.1, Ex.P.2(b) is the signature of the P.W.2, Ex.P.3 is the voluntary-statement of the accused No.1, Ex.P.3(a) is the signature of the P.W.2, Ex.P.3(b) is the signature of the accused No.1, Ex.P.4 is the voluntary-statement of the accused No.2, Ex.P.4(a) is the signature of the P.W.2, Ex.P.4(b) is the signature of the accused No.2, Ex.P.5 is the voluntary-statement of the accused No.3, Ex.P.5(a) is the signature of the P.W.2, Ex.P.5(b) is the signature of the accused No.3, Ex.P.6 is the voluntary-statement of the accused No.4, Ex.P.6(a) is the signature of the P.W.2 and Ex.P.6(b) is the signature of the accused No.4 and the material objects marked on behalf of the prosecution are at MO No's.1 to 4, in which MO No.1 7 SC No.47/2016 is the iron-long, MO No.2 is the wooden-club, MO No.3 is the cricket-bat and MO No.4 is the wooden-wicket-stump.
13. On meticulous perusal of the entire depositions of the PWs.1 & 2, it is crystal clear that, the P.W.1 being the complainant as-well-as the PSI having raided, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 01.02.2013, at about 7.00 p.m. in the evening, while he was on patrolling duty near Nandini Theatre, he having received the credible information that, about 5-6 suspicious persons holding the deadly-weapons had unlawfully assembled near the open-space, besides Sathyanarayana Kalyana Mantap, on 60 Feet Road, J.C.Nagar, Bengaluru, with an intention to commit dacoity and were preparing for the same, he immediately secured his police-staff i.e., CWs.5 to 7 & 9 and altogether along-with the CW.4 went near the spot in a private-vehicle and watched for 15 minutes from a distance and got confirmed that the said persons gathered there-at were preparing and hatching for committing dacoity and thereafter, they raided-upon the said persons at 7.30 p.m. in the evening and caught the accused persons, out of whom one accused No.5 by name Kariya @ Auto Kariya ran-away there-from though the CWs.5 & 8 chased him; but, himself (P.W.1) and CW.6 caught- hold the accused No.1/Bharath @ Bhatta who was possessing a long, CW.7 caught the accused by name Shanthakumar who was 8 SC No.47/2016 possessing a wooden-club, CW.9 caught the accused by name Lokesh who was possessing a cricket-bat and CW.4 caught the accused No.4 by name Prashanth who was possessing a cricket- stump and thereafter, he seized the deadly-weapons, such as, iron- long, wooden-club, cricket-bat and a stump as per MO No's.1 to 4 from the accused persons in presence of the panchas under a seizure mahazar in the KEB electric-pole lamp-light from 7.45 p.m., to 9.15 p.m. in the evening, as per Ex.P.1, on which his signature is as per Ex.P.1(a) and thereafter returning to the police station along-with the said accused persons inclusive of accused No.2/Goutham S/o Venkatesh to whom he has identified in the open-court, lodged a complaint/report as per Ex.P.2, on which his signature is as per Ex.P.2(a).
14. But, in the cross-examination, the P.W.1 has stated that, he has not mentioned in the SHD immediately on receipt of the credible information. Apart from the same, he has stated that, he had phoned the panchas and secured without giving the written- notices. It is further stated by the P.W.1 in his cross-examination that, he does-not remember the registration number of Qualis vehicle, in which they had been to the spot for the purpose of raid. Even, he has depicted his incapability of saying the colors of the apparels worn by the accused persons. It is also admitted by the P.W.1 that, in the said alleged Ex.P.1/seizure mahazar, the 9 SC No.47/2016 measurements of MO No's.1 to 4 are not being mentioned and the other materials similar to MO No's.1 to 4 are available in the market. All these particular versions of the P.W.1 in his cross- examination are emanating in the fashion of vibrating his own- versions in the chief-examination without the firm-stand, creating the suspicious circumstances.
15. Further, the P.W.2 being the complete investigating officer, has endeavored to depose in favour of the prosecution in his chief-examination to the effect that, on 01.02.2013, at about 9.45 p.m. while he was on duty as SHO, the CW.1 along-with 4 accused persons i.e., accused No.1/Bharath, accused No.2/Goutham, accused No.3/Lokesh and accused No.4/Prashanth with one mahazar and the seized properties as per MO No's.1 to 4 came and handed-over to him along-with a complaint/report as per Ex.P.2, on which his signature is as per Ex.P.2(b), basing on which he registered the Cr.No.32/2013 for the offences punishable U/Secs.399 & 402 of IPC, and thereafter, sent the original First Information Report with the original-complaint to the concerned court and the copies of the same to his higher- authorities for information and thereafter by following the legal rules and procedure, he arrested the accused No's.1 to 4 and thereafter, he converted the said seized properties as per MO No's.1 to 4 into PF No.12/2013 and then, on the same-day, he has 10 SC No.47/2016 recorded the statements of the CWs.2 to 9 and on the very next- day, he recorded the self-voluntary statements of the accused No's.1 to 4 as per Exs.P.3 to P.6, respectively, on which his signatures are as per Exs.P.3(a) to P.6(a) and the signatures of the accused No's.1 to 4 are as per Exs.P.3(b) to P.6(b) and thereafter, on completion of the investigation, he has submitted the charge- sheet against the accused No's.1 to 4 on 01.04.2013, ad he has identified the said accused as-well-as the MO No's.1 to 4 in the open-court.
16. During the time of trial, the learned Public Prosecutor has voluntarily given-up the CWs.4 to 9. Despite, having issued sufficient process to the CWs.2 & 3 who are stated to be as the panchas having accompanied the CWs.1 & 4 to 9 for the raid purpose, they having not turned-up before this court, this court was inclined to reject the prayer of the learned Public Prosecutor and dropped the said CWs.2 & 3 and closed the prosecution's side.
17. On meticulous consideration of the entire depositions of the PWs.1 & 2, at the very outset, the very deposition of the P.W.1 is not emanating with the firmness for the reasons stated herein before supra, more-particularly, with respect to his versions in the cross-examination. Apart from the same, the very deposition of the P.W.1 has not been substantiated either through the independent- witnesses or through the CWs.2 & 3 who are stated to be the raid- 11 SC No.47/2016 mahazar panchas. Having not examined the said CWs.2 & 3 is absolutely fatal the prosecution's case because the seizure of MO No's.1 to 4 and nabbing of accused No's.1 to 4 itself has absolutely remained under darkness without any clarification from the prosecution's side. No doubt it is a settled law that the mahazar can be established through the investigating officer. The said alleged mahazar as per Ex.P.1 is stated to have been drawn by the P.W.1 himself. But, his deposition itself being emanating in a very vibrative manner without the firm-stand in view of his worthless versions in his cross-examination creating the suspicious circumstances, his deposition could not tantamount to be as a sufficient evidence to consider the seizure of MO No's.1 to 4 and nabbing of accused No's.1 to 4 and also drawing of Ex.P.1/seizure mahazar, through the P.W.1. Therefore, in overall, the prosecution has utterly failed to establish the seizure mahazar/Ex.P.1 and also MO No's.1 to 4. Merely basing on the very deposition of the P.W.2 who is the complete investigating officer, this court cannot arrive- at a conclusion to target the accused for the conviction in the lack of substantial chunk of material in favour of the prosecution.
18. Therefore, under all these circumstances, I am of the clear opinion that, the entire case of the prosecution is prevailing with the major discrepancies, discrepanting the entire case of the prosecution, creating the fatal doubts in the mind of this court, 12 SC No.47/2016 without any alimentation. Therefore, the benefit of such doubts will have to be given to the accused person by virtue of a well- settled principle of criminal jurisprudence. Under all these circumstances, even it is highly impossible and improbable to ameliorate regarding the alleged imputations against the accused No.2. Therefore, in view of all these reasons, I am of the clear opinion that, the prosecution has utterly failed to establish and prove the Point No's.1 & 2 beyond the shadow of all the reasonable doubts. Hence, I am inclined to answer Point No's.1 & 2 in the 'Negative'.
19. Point No.3:- For the reasons discussed at much-length while answering the Point No's.1 & 2 in the Negative, herein before supra, I am inclined to proceed to pass the following:
ORDER The prosecution has utterly failed to prove the guilt against the Accused No.2, and therefore, the Accused No.2 is found not guilty for having committed the offences U/Secs.399 & 402 of I.P.C.
In exercise of the powers conferred-upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the Accused No.2 by name, Goutham, S/o. Venkatesh, aged 19 years, residing at No.6, 10th Cross, 60 Feet Road, J.C.Nagar, Kurubarahalli, Bengaluru - 560 086, and set him to liberty forthwith in this case.
The Accused No.2 by name, Goutham, S/o. Venkatesh, aged 19 years, residing at No.6, 10th Cross, 60 13 SC No.47/2016 Feet Road, J.C.Nagar, Kurubarahalli, Bengaluru - 560 086, shall be released, in this case alone, if he is not required in any other cases.
The seized properties marked at MO No's.1 to 4, namely, one iron-long, one wooden-club, one cricket-bat and wooden-wicket-stump are hereby ordered to be preserved, maintained and retained by the concerned, wherever they are in the same position, till the disposal of the other cases pending against the co-accused persons of this accused No.2, and in case if no any other cases are pending against any other co-accused persons, then the said MO No.1 is hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the appeal period and MO No's.2 to 4 being worthless, are hereby ordered to be destroyed after the efflux of the appeal period.
(Dictated to the Judgment Writer, transcribed and typed by him and after corrections, printout taken and then pronounced and signed by me in the open Court, on this the 24th day of June, 2016) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution side:
P.W.1 G.K. Shankar Nayak P.W.2 G.M. Shivaram
List of documents exhibited for the prosecution side:
Ex.P.1 Mahazar.
Ex.P.1(a) Signature of the P.W.1.
14 SC No.47/2016
Ex.P.2 Report of the P.W.1.
Ex.P.2(a) Signature of the P.W.1.
Ex.P.2(b) Signature of the P.W.2.
Ex.P.3 Voluntary-statement of the accused No.1.
Ex.P.3(a) Signature of the P.W.2.
Ex.P.3(b) Signature of the accused No.1.
Ex.P.4 Voluntary-statement of the accused No.2.
Ex.P.4(a) Signature of the P.W.2.
Ex.P.4(b) Signature of the accused No.2.
Ex.P.5 Voluntary-statement of the accused No.3.
Ex.P.5(a) Signature of the P.W.2.
Ex.P.5(b) Signature of the accused No.3.
Ex.P.6 Voluntary-statement of the accused No.4.
Ex.P.6(a) Signature of the P.W.2.
Ex.P.6(b) Signature of the accused No.4.
List of material objects marked for the prosecution side:
MO No.1 Iron-long. MO No.2 Wooden-club. MO No.3 Cricket-bat. MO No.4 Wooden-wicket-stump.
List of witnesses examined for the defence side:
- NIL -
List of documents exhibited for the defence side:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.15 SC No.47/2016
(Judgment pronounced in the open- court. Operative-portion of the same is extracted as under) ORDER The prosecution has utterly failed to prove the guilt against the Accused No.2, and therefore, the Accused No.2 is found not guilty for having committed the offences U/Secs.399 & 402 of I.P.C. In exercise of the powers conferred-
upon me U/Sec.232 r/w Sec.235(1) of Cr.P.C., I hereby acquit the Accused No.2 by name, Goutham, S/o. Venkatesh, aged 19 years, residing at No.6, 10th Cross, 60 Feet Road, J.C.Nagar, Kurubarahalli, Bengaluru - 560 086, and set him to liberty forthwith in this case.
The Accused No.2 by name, Goutham, S/o. Venkatesh, aged 19 years, residing at No.6, 10th Cross, 60 Feet Road, J.C.Nagar, Kurubarahalli, Bengaluru - 560 086, shall be released, in this case alone, if he is not required in any other cases.
The seized properties marked at MO No's.1 to 4, namely, one iron-long, one wooden-club, one cricket-bat and wooden-wicket-stump are hereby ordered to be preserved, maintained and retained by the concerned, wherever they are in the same position, till the disposal of the other cases pending against the co- accused persons of this accused No.2, and in case if no any other cases are pending against any other co-accused persons, then the said MO No.1 is hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the appeal period and MO No's.2 to 4 being worthless, are hereby ordered to be destroyed after the efflux of the appeal period.
LI Addl. City Civil & Sessions Judge, Bengaluru City.16 SC No.47/2016