Bangalore District Court
State vs 2. Subhash S/O Mogan @ Mohan on 19 August, 2022
IN THE COURT OF V ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
AT: BANGALORE
Dated this the 19th day of August, 2022
PRESENT
Sri. RAJESH N. HOSAMANE B.Sc.ML.
V ACMM BENGALURU
CC. No.17850/2015
Complainant : State
Rep. PSI Basaveshwaranagar
Police Station, Bangalore.
(by Sr.A.P.P)
Vs
Accused : 2. Subhash S/o Mogan @ Mohan,
aged about 20 years
(Split up)
3. Sunil Kumar @ Sunil S/o Late.
Sagayaraj
Aged about 22 years,
R/at No.115, 3 rd Cross,
Janatha Colony, Haleguddahalli,
Bengaluru.
(By KNP Advocate)
1. Date of offence 12.12.2014
2. Arrest of the accused Not arrested
3. Name of the complainant Kumari Kavya Shree
4. Date of closing of 06.07.2022
evidence
5. Offences complained of Sec. 392 R/w. Sec. 34 of IPC
6. Opinion of the Judge Accused No.3 found not guilty
7. Complainant by The Learned Sr.APP.
8. Accused defence by Advocate Sri KNP
JUDGMENT
Police Inspector of Basaveshwaranagar police station has filed charge sheet against accused No. 1 to 3 for the offence punishable under section Sec.392 R/W Sec. 34 of IPC.
2. The brief facts of the prosecution case is as under:
That on 12.12.2014 at about 9.50 p.m.. when the complainant is walking down within the limits of Basaveshwaranagar Police Station, 3 rd Block, 3rd Stage, 2nd 'C' Cross Road, the accused persons came in twowheeler and robed the gold neck chain of the complainant and thereby committed an offence punishable U/Sec.392 R/W Sec. 34 of IPC.
3. The complainant has lodged complaint. On the basis of said complaint the police have registered the case in Cr.No.561/2014 and forwarded FIR to this court. Thereafter, the police conducted investigation and filed charge sheet against the accused persons for the above said offence. Accused o.1 is juvenile boy and hence charge sheet in respect of accused No.1 is submitted before Juvenile Justice Board.
4. On the basis of materials on record cognizance of the offence U/Sec.392 R/W Sec. 34 of IPC is taken and issued summons to the accused persons. Accused No.2 and 3 appeared through their counsel. Towards compliance U/Sec.207 of Cr.P.C. copy of charge sheet is supplied to the accused No.2 and 3. Charge is framed, read over and explained to the accused No.2 and 3 in the language known to them. The accused No.2 and 3 pleaded not guilty and claimed to be tried.
5. The prosecution in order to bring home the guilt of the accused No. 2 and 3 has examined PW.1 to PW.5 and got marked the documents as Ex.P1 to Ex.P4 and closed their side. In spite of issuance of summons and warrant the presence of accused No. 2 could not be secured and therefore case against accused No. 2 is splitup and IO is directed to file splitup charge sheet against accused No.2. Statement of accused No.3 U/Sec.313 of Cr.P.C. is recorded. The accused No.3 denied the incriminating evidence that appeared against him.
6. Based on the above facts and circumstances on record, the following points arisen for the consideration of the court:
1) Whether the prosecution proves beyond all reasonable doubt that on 12.12.2014 at about 9.50 p.m.. when the complainant is walking down within the limits of Basaveshwaranagar Police Station, 3rd Block, 3rd Stage, 2nd 'C' Cross Road, the accused persons came in twowheeler and robed the gold neck chain of the complainant and thereby committed an offence punishable U/Sec.392 R/W Sec. 34 of IPC?
2) What order?
7. Heard the arguments of both sides and perused the materials available on record.
8. My findings to the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
9. Point No.1 : It is the case of the prosecution that on 12.12.2014 at about 9.50 p.m.. when the complainant is walking down within the limits of Basaveshwaranagar Police Station, 3rd Block, 3rd Stage, 2nd 'C' Cross Road, the accused persons came in twowheeler and robed the gold neck chain of the complainant and thereby committed an offence punishable U/Sec.392 R/W Sec. 34 of IPC The prosecution in order to prove guilt against the accused No. 2 and 3 totally examined 5 witnesses out of 14 charge sheet witnesses and got marked 4 documents as per Ex.P1 to Ex.P4.
10. CW.1/PW.3 complainant by name Kum. Kavyashree deposed in her evidence on 12.12.2014 at about 9.45 p.m. she and CW.2 walking down the road near Bus Stand, the accused persons came their behind on Motor Cycle, they pretended as asking for some address and snatched her golden neck chain and flee away from the spot. Hence, she has lodged complaint. Police conducted spot mahazar in her presence. She further deposed that, after 23 months, police called her to police station and shown her the chain, but they have not shown any accused persons. She received her golden chain to her interim custody.
11. CW.3/PW.1 by name Rakesh S/o Hanumanthaiah and CW.4/PW.2 by name Madhusudhan deposed in their evidence that on 13.12.2014, police came to the spot at about 12.10 to 1.00 p.m. and they have carried out spot mahazar as per Ex.P.1 and they have signed the same.
12. CW.6/PW.4 by name Ramachandra S/o Radhakrishna, who is seizer pancha witness has not supported the case of prosecution. In his evidence, he deposed that, when he went to Basaveshwaranagar P.S. for his personal work, the police have taken his signature to Ex.P.3. He has not signed any panchanama. He do not know the contents of Ex.P.3. Police have not seized any vehicle or any golden ornaments in his presence from the possession of accused.
13. CW.8/PW.5 Manappa S/o Poorappa, who is police constable, working in Basaveshwaranagar P.S. has deposed that, he and CW.8 and 9 have been deputed to trace the absconding accused persons in respect of this case. On 09.06.2015, they are patrolling in Ring Road, Tirumala Palace, one person came on his Honda Deo Motor Cycle bearing No.KA05HH386, on suspicion they caught hold of him. The said person stated his name as Praveen of Valmiki Nagar. He has not produced any document with respect to motor cycle. Hence, they produced the said person before CW.10.
14. In this case, prosecution has not examined CW.2, 5 to 7, 9, 11 to 14 who are important and material witnesses to prove the guilt of the accused persons. CW.1 is the person who has lodged the complaint and set the law into motion has not supported the case of prosecution. She deposed that police have not shown any accused persons to her in the police station. Another important witness CW.6/PW.4 who is seizer panchanama witness turned hostile. The prosecution has failed to prove seizer panchanama i.e., Ex.P.3. Another seizer panchanama witness CW.5 by name Arun is not examined by the prosecution. CW.7 Rakesh who purchased the stolen property from the accused persons has also not been examined by the prosecution. CW. 2, 5 to 7, 9, 11 to 14 have not appeared before the court even after issuance of summons, warrant and proclamation. Therefore the said witnesses are dropped.
15. Later Lr. Sr. APP filed application U/Sec. 311 of Cr.P.C., for recalling CW.2, 5 to 7, 9, 11 to 14, since they are material witnesses. The Court has issued summons, warrant and proclamation to CW. 2, 5 to 7, 9, 11 to 14 repeatedly on many hearing dates. But the said witnesses remained absent. Hence CW. 2, 5 to 7 and 9 are dropped on 24.09.2021 and CW.11 to 14 are dropped on 06.07.2022. The prosecution has failed to secure the presence of CW.2, 5 to 7, 9, 11 to 14. The court dropped the above said witnesses only after giving sufficient opportunity to the prosecution to secure the presence of witnesses. This case is of the year 2015. The prosecution has failed to secure the presence of CW. 2, 5 to 7, 9, 11 to 14 before the court. But at the fag end of the case, the prosecution has filed the application. Said application is dismissed by holding that the application filed by prosecution is devoid of merits. Hence application filed U/Sec. 311 of Cr.P.C., is hereby dismissed.
16. As discussed above the complainant and seizure mahazar witness not supported the case of prosecution. Other material witnesses have not been examined by the prosecution. The prosecution has failed to secure the above said witnesses inspite of giving ample opportunity. In these kind of cases, it is very important to identify the accused persons by the complainant or the eye witnesses. The evidence of complainant discloses that, the police have not shown accused persons to the complainant in police station, when she went there to receive her golden chain. The prosecution has failed to prove that the motor cycle and golden chain are recovered from the possession of accused persons. Except spot mahazar witness no independent witness supported the case including complainant.
17. There is no iota of material on record in order to come to the conclusion that accused persons have committed the offence. The prosecution has failed to prove seizure mahazar. Though PW.5, who is official witness has supported the case of prosecution, but there is no corroboratory evidence in support of evidence of PW.5. The prosecution has to prove its case beyond reasonable doubt, but prosecution has miserably failed to prove with clear and cogent evidence that, accused persons have committed the offence punishable U/Sec.392 of IPC and therefore, I answer Point No.1 in the Negative.
18. Point No.2: In the light of finding given on Point No.1, I find that accused No.3 is not guilty and in the result I proceed to pass the following:
ORDER Acting under section 248(1) of Cr.P.C., Accused No.3 is hereby acquitted for the offence punishable under Section 392 R/W Sec. 34 of IPC.
The bail bond executed by accused No.3 shall remain in force for another 6 months from today as per Sec.437(A) of Cr.P.C.
Office is directed to keep the entire file along with split up CC registered against Accused No.2.
(Dictated to the stenographer, transcribed by her and corrected by me, then pronounced in the open court, on this 19th day of August, 2022) (Rajesh.N Hosamane) V ACMM, Bangalore ANNEXURE
1. Witnesses examined by the prosecution.
P.W.1 Rakesh
P.W.2 Madhu Sudan
P.W.3 Kavyashree
P.W.4 Ramachandra
P.W.5 Manappa
2. List of the documents exhibited for the prosecution Ex.P.1 Mahazar Ex.P.1(a) Signature of CW.3 Ex.P.2 Complaint Ex.P.2(a) Signature of CW.1 Ex.P.3 Seizer Panchanama Ex.P.3(a) Signature of CW.6 Ex.P.4 Statement of CW.6
3. List of the witnesses examined for defence.
NIL
4. List of the Documents exhibited for defence.
NIL
5. List of the MO.s marked in the evidence.
NIL
Dt: 19.08.2022 (Rajesh.N Hosamane)
Bengaluru. V ACMM, Bangalore