Bangalore District Court
State By: Police Inspector vs 2.Chandrashekar @ Shekar 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,
Bangalore.
DATED THIS THE 28th DAY OF JULY, 2018
S C No.780/2016
COMPLAINANT: State by: Police Inspector,
Byatarayanapura P.S.,
Bangalore.
(Reptd. by Public Prosecutor)
/ Vs /
ACCUSED: 2.Chandrashekar @ Shekar
S/o Gangamahadevaiah,
Aged about 25 Years,
R/o C/o Nagarathnammas'
House, 13th Cross, KTJ Main
Road, Gajanana Nagar,
Sunkadakatte, Magadi Road,
Bangalore.
4.Umashankar @ Madhu
S/o Anantharamaiah,
Aged about 23 Years,
R/o Vasanthamma Building,
Ground Floor, 7th Cross,
Friends Circle, Near
2 S.C.No.780/2016
Rajarajeshwari Temple,
Laggere, Bangalore.
(A2 by Sri....., Adv
A4 by Sri TS., Adv., )
Date of 27.03.2016
Commencement of
offences
Date of report of 27.03.2016
offences
Name of complainant Sri Hemanthkumar.R
Police Inspector
Date of recording of 03.01.2018
evidence
Date of closing of 02.05.2018
evidence
Offence complained
U/s. 399 and 402 of IPC
off
Opinion of the judge Acquittal
****
JUDGMENT
This is a charge sheet filed by the Byataranapura police station, as against accused No.1 to 5, for the offences punishable u/Sec.399 and 402 of IPC. 3 S.C.No.780/2016
2. Brief facts of prosecution case are as follows:-
The complainant Sri Hemanthkumar is the police Inspector, Byatarayanapura Police station. He states that, on 27.03.2016 at about 7.00 pm, when he was discharging duty at Byatarayanapura Police station, he received credible information that within the jurisdiction of Byatarayanapura police station, at vacant place, situated near Nayandahalli Lorry Stand, Mysore Road, the accused No.1 to 5 had gathered by parking Tata Indica Car bearing registration No.KA-01-AE-106 and armed with deadly weapons and 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 4 S.C.No.780/2016 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 preparation 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 catch hold of four persons and one of them ran away. He further states that, the accused did not give proper answers for their assembling in the 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 gum tape, towel, three knifes and Indica Car 5 S.C.No.780/2016 bearing registration No.KA-01-AE-1106 from these accused persons and in the presence of two pancahs i.e. CW2 Gangadhar and CW3 Nazeem Pasha conducted the mahazar. Thereafter, he came to the police station along with accused and su motto registered the case against the accused and submitted FIR to the court. And on 3.4.2016 accused No.5 was arrested and produced before him along with report by CW.7.
3. Learned XLV ACMM, Bangalore, took cognizance of the offences punishable u/sec.399 and 402 of IPC. After committal, the case is numbered as S.C.No.780/2016 and then made over to this court, for disposal in accordance with law. After hearing, charges were framed and explained to A1 to A5 for the offences punishable u/Sec.399 and 402 of IPC. However, A1 to A5 pleaded not guilty of the charges leveled against 6 S.C.No.780/2016 them and they claimed to be tried. After recording evidence.
When the case was posted for 313 statement, the accused No.1 and 3 remained absconding. Hence, case against them is ordered to be split up and registered a separate case. Hence, this court passed an order to split up the case and registered a separate case. Accordingly, S.C.No.1431/2017 is registered.
When the matter was posted for arguments the accused No.5 remained absconding. Hence, case against him is ordered to be split up and registered a separate case. Hence, this court passed an order to split up the case and register a separate case.
4. The prosecution in support of its contention had totally cited seven witnesses i.e. CW1 to CW7. However, the prosecution was able to secure and 7 S.C.No.780/2016 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 CW7. 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 CW6.
5. The accused No.2 and 4 were 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 them. The accused have not chosen to lead any defense evidence on their behalf.
6. Heard argument from both sides.
8 S.C.No.780/2016
7. Now the points that arise for my consideration are:
1. Whether the prosecution proves beyond all reasonable doubt that, on 27.03.2016, at about 7.00 pm. within the limits of Byatarayanapura P.S at vacant place, situated near Nayandahalli Lorry Stand, Mysore Road, accused No.2 and 4 along with other accused persons had gathered by parking Tata Indica Car bearing registration No.KA-01-AE-106 and holding deadly weapons i.e knives, were making preparations to commit dacoity, and thereby committed an offence punishable u/Sec. 399 of IPC?
2. Secondly, whether the prosecution proves beyond all reasonable doubt that, on the said date, time and place, Accused No.2 and 4 along with other accused persons, had assembled there to commit dacoity and thereby committed an offence p/u/Sec. 402 of IPC?
3. What Order?
8. My answer to the above points are:
POINT NO.1 : In the Negative POINT NO.2 : In the Negative 9 S.C.No.780/2016 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 PW1. He states that, on 27.03.2016 at about 7.00 pm, when he was discharging duty at Byatarayanapura Police station, he received credible information that within the jurisdiction of Byatarayanapura police station, at vacant place, situated near Nayandahalli Lorry Stand, Mysore Road, the accused persons had gathered by parking Tata Indica Car bearing registration No.KA-01-AE-106 and armed with deadly weapons and they were making preparations to commit dacoity by snatching the 10 S.C.No.780/2016 valuables of the public passing by. 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 preparation 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 by robbing the valuables of the public passing by. After confirming this aspect, the complainant along with his staff surrounded the accused and they were able to catch hold of four 11 S.C.No.780/2016 persons and one of them ran away. He further states that, the accused did not give proper answers for their assembling in a 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 gum tape, towel and knives from these accused persons and in the presence of two panchas i.e. CW2 Gangandhar and CW.3 Nazeem Pasha conducted the mahazar Ex.P.1. Thereafter, he came to the police station along with accused and su motto registered the case against the accused and submitted FIR to the court. He identifies the complaint at Ex.P.2 and FIR at Ex.P.3. He further deposes that, he has subjected M.O.1 to M.O.5 to P.F and submitted requisition to the court. He further states that, later on he recorded the statements of CW2 Gangadhar and CW3 Nazeem Pasha. PW1 further states that, thereafter he has 12 S.C.No.780/2016 recorded the voluntary statements of accused persons. He identifies the accused before the court and after completion of investigation, he has submitted the charge sheet before the court.
11. PW1 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. knifes, gum tape and towel 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 of CW2 and CW3. He identifies the accused persons. PW1 has been cross examined by the learned advocate for accused. 13 S.C.No.780/2016
12. PW2 Venkataramanappa, HC-5352, Byatarayanapura police station, who is stated to have assisted PW1 Hemanthkumar, the IO, in nabbing the accused. His evidence corroborates the evidence of PW1.
13. The prosecution in order to prove its case, has totally cited 7 witnesses i.e. CW1 to CW7. 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 CW6.
14 It is the specific case of prosecution that complainant i.e. I.O had received credible information 14 S.C.No.780/2016 that the accused persons had assembled at the spot with an intention to commit dacoity. They had assembled with deadly weapons like knives etc., and they were making preparation to commit dacoity. PW1 has specifically stated that, upon receipt of credible information, he immediately summoned two independent panch witnesses i.e. CW2 Gangadhar and CW3 Nazeem Pasha. He requested them to act as panchas, upon which the pancahs 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. I.O was convinced that the accused had assembled at the spot and they were making preparation to commit dacoity. Accordingly, the complainant along with staff have surrounded the accused and they were able to apprehend Accused No.1 to 4. Meanwhile, A5 managed 15 S.C.No.780/2016 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 articles i.e., knives, gum tape and towel. He has conducted the mahazar as per Ex.P.1 in the presence of those two material/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 knives, gum tape and towel. In order to prove this offence, evidence of PW1 and PW2 has to be fully corroborated by the evidence of independent mahazar witnesses i.e. CW2 and CW3.
16 S.C.No.780/2016
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 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 PI attached to the Byatarayanapura police station. Evidence of PW1 is corroborated by the evidence of PW2, who has assisted PW.1 in raiding and nabbing of accused.
16. Before adverting to appreciation of evidence of aforesaid witnesses, it is necessary to state that under Section 399 IPC, preparation to commit dacoity is made punishable.
17. The entire prosecution case rests on the testimonies of PW.1 and 2, who were the members of the raiding party. According to the testimony of these 17 S.C.No.780/2016 witnesses, five persons had assembled at the place of occurrence and were found 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 under Sections 399 and 402 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 it was observed:- 18 S.C.No.780/2016
"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."
19 S.C.No.780/2016
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 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 two members of the raiding party, who have deposed on the lines of the prosecution, but has not said even a single word that accused persons were making preparation to commit dacoity. The witnesses are referring that after seeing 5 persons at vacant place, situated near Nayandahalli Lorry Stand, Mysore Road, PW1 gave the signal and when the complainant along with staff surrounded, the 20 S.C.No.780/2016 accused persons tried to run away in different directions. Out of them one person managed to run away but four were apprehended. The deadly weapons like M.O. 1 to 5 i.e. knives, gum tape and towel are shown to have been recovered 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 is for preparation of 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, situated near Nayandahalli Lorry Stand, Mysore Road, it cannot 21 S.C.No.780/2016 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 section applies to 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 four persons are shown to have been apprehended. One accused person has been arrested subsequently. According to the prosecution, aforesaid one person managed to run away from the spot. This is unbelievable. The raiding party was having around five police officials and some of them were having arms. In these circumstances, how, one accused managed to run away. There is nothing on record which could show that efforts were made to chase him or to apprehend him.
22 S.C.No.780/2016
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 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 four persons were apprehended. It has not been explained that how Accused No.5 Narayan was connected with the present case when he ran away from the spot and there was complete darkness. On what basis he was identified as the culprit, remained unexplained.
23 S.C.No.780/2016
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 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, record 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 7.00 pm, vacant place, situated near Nayandahalli Lorry Stand, Mysore Road. Moreover, record would 24 S.C.No.780/2016 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 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 persons by relying upon the versions of police officials who were members of the raiding party and the 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 persons by relying upon the testimonies of the police officials who were 25 S.C.No.780/2016 member of the raiding party. The testimony is of stereo type as discussed herein above, which should have been 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 26 S.C.No.780/2016 to prove the offences against the accused persons beyond shadow of doubt. Thus, I am left with no option but to acquit the accused persons. 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.2 and 4 are acquitted for the offences punishable U/s.399 and 402 of IPC.
The bail and surety bonds of
Accused No.2 and 4 shall 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 27 S.C.No.780/2016 split up case SC No.1431/2017, as registered against absconding accused No.1 and 3.
(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, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:
PW-1 Hemanthkumar PW-2 Venkataramanappa
LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Mahazar Ex.P.2 Complaint Ex.P.3 FIR Ex.P.4 Report.
LIST OF MATERIAL OBJECTS MARKED
MO-1 to 3 Knifes
MO-4 Gum Tape
MO-5 Towel.
28 S.C.No.780/2016
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(PATIL MOHANKUMAR BHEEMANAGOUDA) LXV Addl. City Civil & Sessions Judge, Bangalore. 29 S.C.No.780/2016