Bangalore District Court
The State Of Karnataka vs No.1 : Nagaraj @ Naga on 30 August, 2017
IN THE COURT OF THE LI ADDL. CITY CIVIL &
SESSIONS JUDGE AT BENGALURU CITY. (CCH 52)
Dated this the 30th day of August 2017
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. 1408/2012 (Main case)
Connected
S.C.No. 528/2016 (Clubbed case)
S.C.No. 1408/2012
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Byatarayanapura Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Accused No.1 : Nagaraj @ Naga,
S/o. Narasimhaiah,
Aged 19 years,
R/a. No.58, 5th Cross,
New Byyappanahalli, NGEF,
Bengaluru.
Accused No.2 : Dinesha @ Ganesha @ Dio Dinesha,
(under judicial-custody) S/o. Arjun,
Aged 20 years,
R/a. No.266, 1st Main,
Canara Bank Road,
Subramanyanagar,
Rajajinagar 2nd Stage,
Bengaluru.
Accused No.3 : Vikram @ Kollegala,
(under judicial-custody) S/o. Govindaraju,
Aged 20 years,
R/a. No.46, 12th Cross, 2nd Main,
G.M. Palya, Near BEML,
2 SC No.1408/2012
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SC No.528/2016
Bengaluru.
Accused No.8 : Ashoka @ Kariya,
(under judicial-custody) S/o. Late Muniraj,
Aged 20 years,
R/a. Opp. Koli Narasimhaiah's House,
Kanakadasa Nagar,
Priyadarshini Layout, Moodalapalya,
Bengaluru.
(By Sri S.R. Desai, Advocate for A-2)
(By M/s Harish & Prasad Associates,
Advocates for A-3)
(By Sri Dilraj Rohit Sequeira, Advocate
for A-1 & A-8)
S.C.No. 528/2016
Complainant : The State of Karnataka,
Represented by it's
The Police Inspector,
Byatarayanapura Police Station,
Bengaluru City.
(By Public Prosecutor)
Vs.
Accused No.5 : Dhanaraj @ Kuruda @ Dhanu,
(under Judicial-Custody) S/o. Late Parashurama,
Aged 22 years,
R/a. No.41, 1st Cross, 1st Main,
Hoysalanagar, Nagarabhavi,
Bengaluru.
(By Sri T.V.Nanjareddy, Advocate
for A-5)
1 Date of commission of offence 28.01.2012
2 Date of report of offence 01.02.2012
3 Date of arrest of the accused 07.05.2012
4 Date of release of accused on bail 12.02.2016 = A-1
A-2, A-3, A-8 & A-5, respectively,
are under judicial-custody.
5 Date of commencement of 24.04.2014
evidence
3 SC No.1408/2012
Connected
SC No.528/2016
6 Date of closing of evidence 27.02.2015
7 Name of the complainant Smt. Shanthala
8 Offences complained of Section 395 IPC
9 Date of pronouncement of 30.08.2017
judgment
10 Opinion of the Judge Guilt of the accused-
persons not proved.
11 Order of Sentence As per final-order
COMMON-JUDGMENT
This is an original charge-sheet at SC No.1408/2012, filed
by the Police Inspector, Byatarayanapura police-station, Bengaluru
City, leveling the charges against the above said accused-persons
for the commission of the offence punishable U/Sec.395 of IPC in
the committal III ACMM Court, Bengaluru City, in it's CC
No.18611/2012 in connection with the Byatarayanapura P.S.
Cr.No.43/2012.
2. This is a split-up charge-sheet at SC No.528/2016, having
been later-on split-up from the SC No.1408/2012 against the
accused No.5 alone in view of he having remained absent, filed by
the Police Inspector, Byatarayanapura police-station, Bengaluru
City, leveling the charges against the accused No.5 for the
commission of the offence punishable U/Sec.395 of IPC.
3. This SC No.528/2016 against the accused No.5 having
been split-up from the original SC No.1408/2012 for the same and
similar-offence, this SC No.528/2016 has been clubbed-with
original SC No.1408/2012 as per the order-sheet dated 14.08.2017
4 SC No.1408/2012
Connected
SC No.528/2016
of SC No.528/2016 for the purpose of common-evidence and for
disposal on merits by way of common-judgment.
4. The epitomized-facts of the allegations that are leveled
against the above said accused-persons in the charge-sheet/s run
thus:
On 28.01.2012 at about 11.45 p.m. in the night, on
Hosakerehalli Road in front of M.P. Super Bazaar at
Ganapathinagar, within the limits of Byatarayanapura police-
station, the accused No.1/Nagaraj @ Naga S/o Narasimhaiah,
accused No.2/Dinesha @ Ganesha @ Dio Dinesha S/o Arjun,
accused No.3/Vikram @ Kollegala S/o Govindaraju, accused No.5/
Dhanaraj @ Kuruda @ Dhanu S/o Late Parashurama, accused
No.8/Ashoka @ Kariya S/o Late Muniraj, and accused No.9/Ananda
@ Nari, along-with the juvenile-offenders by name, Manu @
Manohar, Santhosh @ Sanna, Ravikumar @ Gunda and the accused
No.10/Smt. Vanitha came in a Tata Sumo vehicle bearing No.KA-04-
AB-0721 from the backside of Bajaj Boxer Motorcycle bearing
No.KA-04-ED-4010 and dashed to it, due to which the
rider/CW.2/Bheemji S/o Gangadharaiah and his wife pillion-
rider/CW.1/Smt. Shanthala fell-down, during which time, all the
said accused-persons with the juvenile-offenders conjointly with an
intention to commit dacoity of the said CW.1/Smt. Shanthala and
CW.2/Bheemji, took-away the golden-chain and necklace from the
5 SC No.1408/2012
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neck of the CW.1/Smt. Shanthala, worth of Rs.1,40,000/- and
committed the offence of dacoity punishable under Section 395 of
IPC.
3. After filing the charge-sheet, cognizance of the offence
punishable U/Sec.395 of IPC was taken by III ACMM Court,
Bengaluru City.
In response to the process issued against the accused
No's.1 to 3, 8 & 5, respectively, they have put-in their appearance
before the committal-court, through their respective learned
counsels.
On moving for bail, the accused No.1 has been released on
bail, as per the order dated 12.02.2016 in Crl. Petition
No.825/2016 of the Hon'ble High Court of Karnataka, Bengaluru.
On moving for bail, the accused No.2 has been released on
bail, as per the vide-order dated 25.02.2016 in SC No.1408/2012
by this Court.
On moving for bail, the accused No.5 has been released on
bail, as per the vide-order dated 20.08.2014 in SC No.1408/2012
by this court.
Later-on, the accused No.5 having remained absconding,
this court was ordered to register the separate-case against him by
splitting-up the charge-sheet, as per the vide-order dated
6 SC No.1408/2012
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02.03.2016 in SC No.1408/2012, wherefore, he is in judicial-
custody since 23.02.2017 in the split-up SC No.528/2016.
The accused No's.3 & 8 are in judicial-custody since
beginning, in view of they having arrested by the concerned police
and produced before the Committal III ACMM Court, Bengaluru
City.
Copies of the charge-sheet and other-documents referred
to U/Sec.173 of Cr.P.C. were supplied to the accused-persons by
the III 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, charge/s for the offence
punishable U/Sec.395 of IPC were framed, and the same was/were
read-over, and explained to the accused-persons in the vernacular
best-known to them.
The accused-persons have denied the same and pleaded
not guilty and further claimed to be tried.
4. In order to prove the guilt against the accused-persons,
the prosecution has adduced the evidence of the witnesses, in all
as PWs.1 to 9, and placed it's reliance-on the documents marked
at Exs.P.1 to P.15, P.1(a), P.1(b), P.1(c), P.1(d), P.2(a), P.2(b), P.2(c),
P.4(a), P.6(a), P.6(b), P.7(a), P.7(b), P.8(a), P.9(a), P.11(a), P.11(b),
7 SC No.1408/2012
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P.12(a), P.12(b), P.13(a), P.13(b), P.15(a) & P.15(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, as the
incriminating circumstances were arising-out of the evidence of the
prosecution-witnesses, the statements of the accused-persons
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 respective learned
counsels for the accused-persons.
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
28.01.2012 at about 11.45 p.m. in the night, on
Hosakerehalli Road in front of M.P. Super Bazaar at
Ganapathinagar, within the limits of Byatarayanapura
police-station, the accused No.1/Nagaraj @ Naga S/o
Narasimhaiah, accused No.2/Dinesha @ Ganesha @
Dio Dinesha S/o Arjun, accused No.3/Vikram @
Kollegala S/o Govindaraju, accused No.5/Dhanaraj @
Kuruda @ Dhanu S/o Late Parashurama, accused
No.8/Ashoka @ Kariya S/o Late Muniraj, and accused
No.9/Ananda @ Nari, along-with the juvenile-offenders
by name, Manu @ Manohar, Santhosh @ Sanna,
Ravikumar @ Gunda and the accused No.10/Smt.
Vanitha came in a Tata Sumo vehicle bearing No.KA-
04-AB-0721 from the backside of Bajaj Boxer
8 SC No.1408/2012
Connected
SC No.528/2016
Motorcycle bearing No.KA-04-ED-4010 and dashed to
it, due to which the rider/CW.2/Bheemji S/o
Gangadharaiah and his wife pillion-rider/CW.1/Smt.
Shanthala fell-down, during which time, all the said
accused-persons with the juvenile-offenders conjointly
with an intention to commit dacoity of the said
CW.1/Smt. Shanthala and CW.2/Bheemji, took-away
the golden-chain and necklace from the neck of the
CW.1/Smt. Shanthala, worth of Rs.1,40,000/-, and
thereby, the accused-persons committed the offence
punishable U/Sec.395 of IPC?
(2) What order?
8. My findings on the above said points are as under:
Point No.1 .. In the Negative.
Point No.2 .. As per the final-order,
for the following:
REASONS
9. Point No.1:- It is the specific-tale of the prosecution that,
on 28.01.2012 at about 11.45 p.m. in the night, on Hosakerehalli
Road in front of M.P. Super Bazaar at Ganapathinagar, within the
limits of Byatarayanapura police-station, the accused
No.1/Nagaraj @ Naga S/o Narasimhaiah, accused No.2/Dinesha @
Ganesha @ Dio Dinesha S/o Arjun, accused No.3/Vikram @
Kollegala S/o Govindaraju, accused No.5/Dhanaraj @ Kuruda @
Dhanu S/o Late Parashurama, accused No.8/Ashoka @ Kariya
S/o Late Muniraj, and accused No.9/Ananda @ Nari, along-with
9 SC No.1408/2012
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SC No.528/2016
the juvenile-offenders by name, Manu @ Manohar, Santhosh @
Sanna, Ravikumar @ Gunda and the accused No.10/Smt. Vanitha
came in a Tata Sumo vehicle bearing No.KA-04-AB-0721 from the
backside of Bajaj Boxer Motorcycle bearing No.KA-04-ED-4010 and
dashed to it, due to which the rider/CW.2/Bheemji S/o
Gangadharaiah and his wife pillion-rider/CW.1/Smt. Shanthala
fell-down, during which time, all the said accused-persons with the
juvenile-offenders conjointly with an intention to commit dacoity of
the said CW.1/Smt. Shanthala and CW.2/Bheemji, took-away the
golden-chain and necklace from the neck of the CW.1/Smt.
Shanthala, worth of Rs.1,40,000/- and thereby, the accused-
persons committed the offence punishable U/Sec.395 of IPC.
10. At the very-outset, the absolute burden of proving the
alleged imputations against the accused-persons is casted-upon
the prosecution alone in pursuance with the provisions under the
Indian Evidence Act, 1872.
11. To substantiate it's case, the prosecution has got
examined in all the witnesses as PWs.1 to 9, in which CW.1 is
examined as PW.6/Smt. Shanthala, who is the complainant as-
well-as the victim and the pillion-rider of the said motorcycle; CW.2
is examined as PW.8/Bheemji, who is the rider of the said
motorcycle, husband of the complainant, eyewitness as-well-as the
victim; CW.5 is examined as PW.4/Narayana Lal, who is the owner
10 SC No.1408/2012
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of Pawnbroker-shop as-well-as the circumstantial-witness with
whom the necklace was pledged by the accused No.10/Smt.
Vanitha; CW.6 is examined as PW.1/Venkatachalappa, who is the
seizure of Tata Sumo vehicle as-well-as the weapons-mahazar-
witness; CW.11 is examined as PW.3/Ramesh, who is the police-
constable having nabbed and produced the accused No.1 with 2
minor-juvenile-offenders, before the Police-Inspector as-well-as the
circumstantial-witness; CW.15 is examined as PW.5/L. Srinivasa
Rao, who is the ASI having accompanied the Police-Inspector for
tracing of accused No's.1, 3 & 5 and seizing of Tata Sumo vehicle
with the weapons as-well-as the circumstantial-witness; CW.16 is
examined as PW.2/Thimmaiah, who is the then PSI having
brought the accused No.2 under police-custody as-well-as the
circumstantial-witness; CW.17 is examined as PW.9/Kendaiah,
who is also the then PSI/SHO having registered the case on
lodging the complaint and CW.19 is examined as PW.7/Sridhar
Pujar, who is the investigating-officer in Cr.No.30/2012, and
thereby, the prosecution has placed it's reliance-on the
documentations marked at Exs.P.1 to P.15, in which Ex.P.1 is the
copy of mahazar, Ex.P.1(a) is the original-mahazar, Ex.P.1(b) is the
signature of the PW.7, Exs.P.1(c) & P.1(d) are the signatures of the
panch-witnesses (Ex.P.1 is kept in main-case at SC No.549/2012
before FTC - V), Ex.P.2 is the seizure-mahazar, Ex.P.2(a) is the
11 SC No.1408/2012
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signature of the PW.1, Ex.P.2(b) is the signature of the PW.4,
Ex.P.2(c) is the signature of the PW.7, Ex.P.3 is the report of the
PW.3, Ex.P.4 is the pawn-receipt, Ex.P.4(a) is the signature of the
PW.7, Ex.P.5 is the photo of the chain, Ex.P.6 is the complaint,
Ex.P.6(a) is the signature of the PW.6, Ex.P.6(b) is the signature of
the PW.9, Ex.P.7 is the spot-mahazar, Ex.P.7(a) is the signature of
the PW.6, Ex.P.7(b) is the signature of the PW.8, Ex.P.8 is the test-
identification-parade of the accused-persons, Ex.P.8(a) is the
signature of the PW.6, Ex.P.9 is the First Information Report,
Ex.P.9(a) is the signature of the PW.9, Ex.P.10 is the photo of Tata
Sumo vehicle (kept in main-case at SC No.1406/2012 before FTC -
V), Ex.P.11 is the relevant-portion of the voluntary-portion of the
voluntary-statement of the accused No.1, Ex.P.11(a) is the
signature of the accused No.1, Ex.P.11(b) is the signature of the
PW.7 (Ex.P.11 is kept in main-case at SC No.549/2012), Ex.P.12 is
the relevant-portion of the voluntary-statement of the accused
No.5, Ex.P.12(a) is the signature of the accused No.5, Ex.P.12(b) is
the signature of the PW.7, Ex.P.13 is the relevant-portion of the
voluntary-statement of the accused No.2, Ex.P.13(a) is the
signature of the accused No.2, Ex.P.13(b) is the signature of the
PW.7 (Ex.P.13 is kept in main-case at SC No.549/2012 before FTC
- V), Ex.P.14 is the copy of the voluntary-statement of the accused
No.3, Ex.P.15 is the relevant-portion of the voluntary-statement of
12 SC No.1408/2012
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the accused No.8, Ex.P.15(a) is the signature of the accused No.8
and Ex.P.15(b) is the signature of the PW.7, and the material-
objects marked on behalf of the prosecution are at MO No's.1 to 4,
in which MO No's.1 & 2 are the iron-longs, MO No.3 is the iron-
chopper (macchu) and MO No.4 is the golden-mangalasuthra-
chain.
12. On meticulous-perusal of the entire-depositions of the
PWs.1 to 9, it is crystal clear that, PW.6 being the
complainant/victim/pillion-rider of the said motorcycle, has
endeavored to depose in favour of the prosecution in her chief-
examination to the effect that, on 28.01.2012, while herself and
her husband/CW.2 were returning-back on a motorcycle after
attending a function at Srinivasa Kalyana Mantap of
Padmanabhanagar at about 11 - 11.30 p.m. in the night, near
Hosakerehalli Road, a Tata Sumo vehicle came there-from
backside, near open-space situated at Ganapathinagar, and
dashed to their motorcycle twice - thrice, due to which their
vehicle and her husband fell-down and she fell-into a gutter. At
that time, a person from the said Tata Sumo vehicle came with a
chopper and stood near her and her husband to assault them,
during which time her husband tried to protect by making his
hand ahead, during which time another-person from the same
white Tata Sumo vehicle came and snatched 3 golden-chains from
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her neck, in which one was the golden-mangalsuthra weighing 35
grams and all the 3 chains weighing 70 - 75 grams. The said 2
persons who had come to them from the said white Tata Sumo
were aged in between 20 - 25 years and after snatching-away the
golden-chain from her neck, they went-away in the said Tata
Sumo. Since she had sustained the injuries during the said
incident after taking the treatment in the hospital, she has lodged
a written-complaint before the police thereafter on 01.02.2012 as
per Ex.P.6, on which her signature is as per Ex.P.6(a). Even, she
has stated that she is capable of identifying the said 2 persons who
snatched the 3 golden-chains from her neck, by showing the
chopper/longs and accordingly, she has identified the accused
No.3/Vikram and accused No.5/Dhanraj, as the said persons. It is
further stated by the PW.6 that, about 8 - 10 days after the said
incident, the Magadi Road police called her and CW.2 to the police-
station and got identified her golden-mangalasuthra which has
been taken to her custody later-on and identified the same as MO
No.4. Thereafter, they were secured to Parappana Agrahara Jail
and got identified the accused No's.3 & 5 there-at. She has shown
the spot of incident on the same day on which she has lodged the
complaint before the police and accordingly, the police have drawn
the spot-mahazar as per Ex.P.7 and her signature thereon, is as
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per Ex.P.7(a); but she does-not remember the spot where she has
signed on Ex.P.7.
13. In view of no proper-response by the instant PW.6 in the
witness-box in favour of the prosecution, the learned Public
Prosecutor having treated her hostile-partly, she has clearly
admitted in her cross-examination by the learned Public
Prosecutor to the effect that, one of the persons from the said Tata
Sumo came to her and criminally-intimidated her to handover the
golden-chain from her neck and similarly, another-person also
threatened her and the said 2 persons also threatened her
husband. She has stated that when she was removing and
handing-over the said 3 golden-chains from her neck, namely,
mangalasuthra, simple-chain and one-necklace, the said persons
snatched-away the same, when the learned Public Prosecutor
suggested her that she has handed-over the said 3 golden-chains
to the said 2 persons. Further, the PW.6 has admitted that the
said golden-ornaments were worth of Rs.1,40,000/- and she has
lodged the complaint belatedly after getting confidence, since she
had no confidence immediately after the said incident. Thereafter,
she has admitted that she has deposed by forgetting the spot-
mahazar conducted by the police. Further, she has stated that she
has identified the identification-parade of the accused-persons-
report as per Ex.P.8, on which her signature is as per Ex.P.8(a)
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and she has denied the suggestion that she has signed on
Ex.P.4/spot-panchanama as per Ex.P.7(a) on the spot itself.
14. Further, the PW.8 being the husband of the
complainant/eyewitness as-well-as the victim, has also endeavored
to depose in favour of the prosecution in his chief-examination to
the effect that, on 28.01.2012 while himself and his wife were
returning-back on the motorcycle on Hosakerehalli Road after
attending the marriage-reception-function at Srinivasa Kalyana
Mantap, Kanakapura Road, at about 11 - 11.30 p.m. in the night,
a white Tata Sumo came from their backside near Ganapathinagar
and dashed to their two-wheeler-vehicle twice, due to which the
said two-wheeler-vehicle and himself fell-down, whereas, his
wife/PW.6 fell-into a gutter, during which time the said Tata Sumo
went ahead and stopped, from which a dark-complexed-height-
person and another-short-person alighted and threatened him and
his wife, holding the chopper and longs, stating that if they raise
hue and cry, then the consequencies would not be favourable,
during which time he sustained the injury to his hand. Further,
he has stated that when one of the said persons forced his
wife/PW.6 to handover the golden-chain to him and she was about
to handover the same, the said person snatched-away the golden-
chains from her neck and the said golden-chains were comprising
of the mangalasuthra, simple-chain and necklace. Other-persons
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also being inside the said Tata Sumo which was still on the on-
position and after snatching-away the golden-chains, they went-
away in the said Tata Sumo vehicle and therefore, himself and his
wife being under threat went-away to their house. On 01.02.2012,
his wife/PW.6 went to the police-station and lodged a complaint
and on the same-day he has shown the spot of incident to the
police, where-at the police have drawn the spot-panchanama as
per Ex.P.7 and he has signed on the spot itself as per Ex.P.7(a).
After about 10 days from the date of incident, himself and his wife
had been to the police-station and identified the golden-
mangalasuthra of his wife and the remaining 2 chains could not be
traced-out and therefore, the said mangalasuthra has been taken
to his custody, which is as per MO No.4 and the said MO No.4 is
appearing in Ex.P.5/photograph and thereafter, they went to
Parappana Agrahara Jail, where-at he has identified the accused-
persons and even, he has identified the said accused No.3/Vikram
and accused No.5/Dhanraj in the open-court, during the evidence.
15. Though the learned Public Prosecutor having treated him
hostile-partly and cross-examined, the PW.8 has disclosed his non-
remembrance with respect to the fact that he was called by the
police near the spot of incident on 02.02.2012.
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16. Now, it is pertinent to note that, it would be appropriate
to evaluate and appreciate the evidence of both the PWs.6 & 8
together comparatively.
17. In view of the same, it is pertinent to note that, the PW.6
has stated in her chief-examination itself that the incident has
taken place on 28.01.2012 in the night after 11 - 11.30 p.m.
Similarly, the PW.8 being her husband, has also clearly stated in
his chief-examination. Accordingly, the recital in Ex.P.6 which is
stated to be the original-complaint lodged by the PW.6 before the
police, is synchronizing with their versions in their respective chief-
examinations. But, unfortunately in the spot-panchanama, it has
been narrated that the instant PWs.6 & 8 both together stated
before the police in presence of the panchas that on 01.02.2012 at
about 11.45 p.m. in the night, the said incident had taken place in
the spot. The very-versions of the PWs.6 & 8 though synchronizing
with the recitals in Ex.P.6, which is absolutely emanating in-
contravention with the very-recitals in Ex.P.7 with respect to the
date of alleged incident, certainly goes to the very-root of the case
of the prosecution with respect to the occurrence of the alleged
incident and also with respect to the genuinity of Ex.P.6/complaint
and Ex.P.7/spot-mahazar.
18. Apart from the same, the PW.6 has stated in her chief-
examination itself that the complaint has been lodged on
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01.02.2012 after taking the treatment in the hospital. But, in the
cross-examination by the learned Public Prosecutor, she has stated
that she could not lodge the complaint due to the threat and after
getting the confidence, she has lodged the complaint. These 2
versions of the PW.2 are absolutely emanating without any
synchronization, but they are absolutely despairing with each-
other.
19. It is further stated by the PW.6 in her chief-examination
that she has identified the accused No's.3 & 5 in Bengaluru Jail
and she has signed on the accused-persons-identification-parade-
report as per Ex.P.8(a). But, unfortunately, she has stated fatally
in her cross-examination by the learned counsel for the accused
that at the time of incident, it was a dark-night. When it was a
dark-night, there is no any explanation or clarity made before this
court as to how she was able to see the said accused-persons on
the spot and then identify them in Parappana Agrahara Jail. This
particular aspect has absolutely remained under suspicious-
circumstances without any clarification.
20. Further, the PW.6 has stated in her chief-examination
itself that, she does-not remember as to where and in which
place/spot she has signed on the said Ex.P.7/spot-mahazar. It is
significant to note that, when she has stated that she has shown
the spot of incident and the mahazar has been drawn, I fail to
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understand as to how she does-not remember as to where she has
put her signature on Ex.P.7. This particular aspect has also
remained under suspicious-circumstances. Apart from the same,
she has further stated in the cross-examination by the learned
Public Prosecutor that, she does-not remember that she was called
by the police to the spot of incident on 02.02.2012 and herself with
her husband/PW.8 shown the spot to the police. But, according to
the very-version of the PW.8 in his chief-examination itself, he has
shown the spot of incident to the police and police wrote the said
spot-mahazar as per Ex.P.7, on which his signature is as per
Ex.P.7(b). But, the said either the PW.6 or PW.8 have not stated
anything-else regarding the showing of the spot both together to
the police. That apart, the said version of the PW.8 is absolutely
emanating in-contravention with the very-recital in Ex.P.7, which
discloses that both together himself and PW.6 have shown the spot
of incident to the police. In addition to the same, though the PW.8
has stated in his chief-examination that he has signed on the said
Ex.P.7 as per Ex.P.7(b), he has admitted in his cross-examination
by the learned counsel for the accused that he has signed on the
said Ex.P.7 in the police-station. Apart from the same, the PW.6
has denied the suggestion made by the learned Public Prosecutor
that after drawing the said spot-panchanama as per Ex.P.7 on the
spot by the police, she has signed thereon as per Ex.P.7(a) on the
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spot itself. Therefore, it implies that the said alleged Ex.P.7/spot-
mahazar has been signed by the PWs.6 & 8 in the police-station,
but not on the spot itself. Therefore, it further strongly creates the
suspicion regarding the very-genuinity of drawing the said Ex.P.7,
though the PW.8 has stated in the cross-examination by the
learned counsel for the accused No's.1 & 8 that he has signed on
the said spot-mahazar on the spot itself. It clearly goes to indicate
that there is no certainty and firmness with the said PW.6 & PW.8
which certainly leads this court under the lingering-doubts with
regard to the said Ex.P.7.
21. Further, the PW.6 has stated in her cross-examination
by the learned counsel for the accused that, in view of their two-
wheeler-vehicle having fallen in a gutter in the said incident, it was
damaged to some extent, in respect of which they have neither
given any report to the police, nor handed-over any photo
regarding the same. But, the PW.8 has not whispered anything-
else regarding the same, except sustaining an injury to his hand.
But, the PW.6 has stated that herself and her husband having
sustained injury, she alone has taken the treatment in the hospital
by getting admitted, in respect of which no wound-certificate has
been handed-over to the police. But, the PW.8 has stated in his
cross-examination by the learned counsel for the accused that his
wife has not taken the treatment as an indoor-patient in the
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hospital. This particular-version is absolutely emanating in-
contravention with the very-version of the PW.6, though he has
stated that no photos are handed-over to the police regarding the
damages sustained by his vehicle, which portion of version is
synchronizing with the very-versions of the PW.6. Even, there is no
any wound-certificate forthcoming on record, which clearly goes to
indicate that there is no any substantiality in the versions of the
PWs.6 & 8, as they do-not deserve for relying and believing in the
lack of substantiality.
22. Apart from the same, the PW.6 has stated in her cross-
examination that after the alleged incident, she had been to the
police-station after 2 days later, but she has not stated anything-
else regarding she being in hospital. If really, there was any such
aspect of reality in her contention that she had taken the
treatment in the hospital as indoor-patient, there was no bar for
her to make it clear either by way of producing the wound-
certificate or stating the same before the police, much-less. This
aspect is also absolutely remaining under doubt without any
clarification.
23. It is further pertinent to note that, the PW.6 has
admitted in her cross-examination that she has stated before the
police that since herself and her husband were under threat and
fear, they have belatedly lodged the complaint. It is significant to
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note that, at one-point of time, the PWs.6 & 8 have urged that in
view of they having sustained the injuries, they could not go to the
police-station and lodge the complaint immediately in the absence
of the confidence. But, at another-point of interval, they have
endeavored to state in an indifferent-way that since they were
under fear and threat, they could not go to the police-station and
lodge the complaint and also at another different point of interval,
the PW.6 has stated that since they wanted not to make the issue
big, they did-not go to the police-station. At the very-outset, there
is lot of variance between the said versions and stand taken by the
PWs.6 & 8, wherefore, they are absolutely shrouded with cloudy-
circumstances without any clarity, creating the doubts in the mind
of this court.
24. In addition to the same, even the PW.6 has stated in her
cross-examination by the learned counsel for the accused that, she
cannot say the colors of the apparels of the accused-persons at the
time of alleged incident. This further fortifies the major-doubt that
when there was a dark-night as clearly stated by the PW.6 herself
in her cross-examination by the learned counsel for the accused,
she could not see anybody-else there in such dark-night.
25. In addition to the same, the PW.6 has went on denying
the suggestion made by the learned counsel for the accused to the
effect that, she has not stated before the police in her complaint
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that the accused-persons shown her and her husband the long
and chopper; not mentioned in the complaint that the alleged
incident had taken place near the open-space situated near
Ganapathinagar; not mentioned in the complaint regarding she
having fallen in a gutter and her husband elsewhere; not stated in
the complaint that another-person alighted from the said Tata
Sumo vehicle and snatched the golden-chain from her neck; and
specifically stated in her complaint that she herself has taken-out
the golden-chains from her neck. These particular suggestions
made by the learned counsel for the accused having denied by the
said PW.6 certainly tantamounts to the major-improvements
vibrating the very-root of the prosecution's-case further leading to
the suspicion with respect to the alleged incident itself.
26. In addition to the same, the PW.8 has disclosed his
ignorance in his cross-examination by the learned counsel for the
accused with regard to the name of the person of whom the said
marriage-reception was. This particular-version certainly goes to
evade the entire-case of the prosecution because, it creates the
suspicion regarding the instant PWs.6 & 8 having been to
Srinivasa Kalyana Mantap to attend the marriage-reception itself.
27. It is further stated by the PW.8 in his chief-examination
that, by the time his wife was removing and handing-over the
golden-chain from her neck at the forceful-demand by another-
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person on the spot of incident at the time of alleged incident, the
said persons snatched-away the said golden-chain from her neck.
As such, there is no any version appearing in the very-statement of
the said PW.8 before the police, wherefore, in one-angle, the said
version of the PW.8 is emanating in an absolute major-
improvement fatalling the very-crux of the prosecution's-case,
whereas, in another-angle, it leads to doubt regarding the very-
genuinity of the said alleged statement of the PW.8 stated to have
been given before the police by him.
28. Apart from the same, the PW.8 has stated in his cross-
examination by the learned counsel for the accused that except 2
accused, he has not seen any other-accused-persons at-all and
further admitted that he has seen the other-accused-persons for
the first-time in the court itself. These particular-versions again
nullify the very-case of the prosecution as alleged, more-
specifically, against the accused-persons. But, later-on, in the
cross-examination by the learned counsel for the accused No.3, he
has stated that for the first-time he has seen the accused-persons
on the spot and thereafter in the police-station and the police have
recorded his statement in the police-station; but, the police did-not
say the names of the said accused-persons, the said 4 - 5 accused-
persons who were present in the police-station etc. As per the
very-version of the PW.6, admittedly there was a dark-night which
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was not possible to see any person at that time during the alleged
incident. Under such circumstances, I fail to understand as to
how the PW.8 was able to see the accused-persons in such dark-
night on the spot of incident. If really he has seen twice, once at
spot of incident and thereafter in the police-station, his own-
versions absolutely stand emanating in-contravention with his
versions in the cross-examination by the learned counsel for the
accused No's.1 & 8, during the earlier-occasion. In addenda of the
same, even-otherwise, if he has seen and identified the accused-
persons in the police-station, I fail to understand as to how the
police did-not say or made known to him the names of the said
accused-persons. All-these-versions are absolutely remaining
under suspicious-circumstances, without any clarification.
29. Apart from the same, the PW.8 has stated in an evasive-
manner without any firm-stand that he might have sent and
identified the accused-persons in the Parappana Agrahara police-
station after about one-month later to the alleged incident.
30. It is further stated by the PW.8 in the cross-examination
by the learned counsel for the accused No.5 that, he could not
inform the police immediately, since himself and his wife/PW.6
were to wander to the hospital, since they both had sustained the
injuries due to their fall. In one-angle, this particular-version
clearly stands as material and major-improvement evading the
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very-root of the prosecution's-case. In another-angle, they had
sustained the injuries only due to fall, but not due to any assault
by the accused-persons with any weapons as stated by him in an
indifferent-manner in his deposition, during the earlier-stage,
wherefore, in this view, both the versions of the PWs.8 & 6 are also
in-contravention with each-other creating the fatal-doubts in the
mind of this court; but, nothing has been stated with regard to his
later-versions before the police in his alleged statement, wherefore,
it creates again the lingering-doubt in the mind of this court
regarding the genuinity of the alleged statement of the PW.8, also.
It is further stated by the PW.8 that he has stated before the police
regarding he having sustained the injury to his finger; but, no such
version is emanating in his alleged statement. The said 2 versions
of the PW.8 are emanating as the absolute improvement which do-
not deserve for relying in the absence of substantiality.
31. Further, the PW.8 has stated in the cross-examination
that he has given the statement before the police on the date of
complaint itself. But, the said complaint admittedly having been
lodged on 01.02.2012, the date of alleged incident of PW.8 is
disclosed as 02.02.2012, wherefore, it creates further major-doubt
regarding the very-genuinity of the said alleged statement of the
PW.8 before the police. It is further admitted by him that, again he
has given the additional-statement before the police after
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identifying the accused-persons in the police-station. But,
unfortunately, no such additional-statement finds place on record.
Therefore, the said version also certainly amounts to an
improvement in one-angle and in another-angle as a contrary-
version to the case of the prosecution.
32. On meticulous-consideration of the said versions of both
the PWs.6 & 8 comparatively and consolidatingly, both the
depositions of the PWs.6 & 8 are absolutely emanating with the
plethora of fatal-contradictions, major-discrepancies, discrepanting
the very-crux of the prosecution's-tale with the material placed on
record creating the fatal-doubts in the mind of this court,
wherefore, their depositions do-not deserve for considering in any
way, as they do-not come to the aid of the prosecution.
33. Further, the PW.4 being the owner of Pawn-broker Shop
as-well-as the circumstantial-witness, has endeavored to depose in
favour of the prosecution in his chief-examination to the effect
that, about 15 - 20 days prior to 11.02.2012, a lady by name,
Vanitha had come to his shop and pledged a golden-chain for
Rs.35,000/- and on 11.02.2012, she having been accompanied
with the police had come to his shop, along-with 2 other-persons
who were not known to him and on inquiring regarding the
pledging of the golden-chain with him (PW.4) by the said lady
Vanitha, he produced the said golden-chain before the police,
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along-with a xerox-copy of pawn-broking receipt as per Ex.P.4 and
accordingly, the police seized the same under a seizure-mahazar as
per Ex.P.2, on which his signature is as per Ex.P.2(b). Even, he
has identified the said chain seized from his shop by the police
appearing in a positive-photo marked as per Ex.P.5. He has
further stated that, he has signed on Ex.P.2 as per Ex.P.2(b) in the
police-station, which was written in his shop at the time of seizing
the said golden-chain from his shop. It is further stated by him in
his chief-examination that he has signed both in the shop and also
in the police-station. He has further disclosed his incapability of
identifying the other 2 accused-persons who had come along-with
the said police and Vanitha to his shop. But, he having treated
partly-hostile by the learned Public Prosecutor and cross-
examined, he has admitted that the accused No's.1 to 3, 5, 8 & 9
who were in the open-court on the date of his evidence were the
persons who had accompanied the said Vanitha and police-people
during their visit to his shop. Further, he has stated that he does-
not know the names of the said 5 - 6 persons who had
accompanied the said Vanitha. But, later-on, he has admitted the
suggestion made by the learned Public Prosecutor stating that
their names as Nagaraj, Dhanraj, Vikram, Manohar, Santhosh and
Ashoka and also admitted the suggestion that at the time of visit
by the police along-with the said persons and Vanitha, Vanitha
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stated before the police that she along-with the accused
No.2/Dinesh had come to his shop and pledged the golden-
necklace. The said admitted- versions of the PW.4 in the cross-
examination by the learned Public Prosecutor are absolutely
emanating in the fashion of changing the color in accordance with
the circumstances, by the said PW.4, wherefore, any admissions
given by the PW.4 in the cross-examination by the learned Public
Prosecutor under the status of hostility of the PW.4, does-not come
to the aid of the prosecution as per the well-settled principle of law,
unless there is circumstantial and corroborative material in a
staunch-manner in favour of the prosecution.
34. But, in the cross-examination by the learned counsel for
the accused, the said PW.4 has stated evasively that the
Ex.P.2/seizure-mahazar might have been written near his Pawn-
broker's Shop and further admitted that he has signed thereon, as
per Ex.P.2(b) in the police-station and he does-not know the
contents of the same as he cannot read and write Kannada and
even the police have not brought to his notice regarding the
contents of Ex.P.2. Therefore, by virtue of these fatal-versions of
the PW.4, the prosecution has utterly failed to establish the Ex.P.2
through the mouth of the PW.4.
35. In addition to the same, he has disclosed his incapability
to say specifically as to how many persons had come near his shop
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and also who-else were present in the police-station at the time of
signing by him.
36. Apart from the same, he has further stated in indifferent-
ways regarding he having seen the accused-persons, more-
specifically, once he has stated that he has seen the accused-
persons only once for the first-time in the open-court. At another-
spell of time, he has stated that he has seen at the time of police
having visited his shop and at the different-interval, he has stated
that he cannot identify the persons who had come along-with the
police to his shop, since the situation has taken place before long-
time.
37. Therefore, on looking to all-these-particular-versions of
the PW.4, this court does-not find any strong and staunch-
material from his deposition in favour of the prosecution, whereas,
it is absolutely prevailing with the plethora of major-discrepancies
and contradictions, discrepanting the very-crux of the
prosecution's-tale, wherefore, the very-deposition of the PW.4 does-
not come to the aid of the prosecution, in any way.
38. Further, the PW.1 being the seizure of Tata Sumo vehicle
as-well-as the weapons-mahazar-witness, has endeavored to
depose in favour of the prosecution in his chief-examination to the
effect that, the Magadi Road police had secured him to the police-
station on 13.02.2012, along-with his friend Vishwanatha, during
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which time about 6 - 7 persons were in the police-custody, out of
whom 4 persons took him, his friend and police near University,
within Jnanabharathi police-station limits and shown a Tata Sumo
vehicle without number on the frontal-bumper and also he does-
not remember the number of the said vehicle and there were 2
longs in the said vehicle, wherefore, the police seized the said Tata
Sumo vehicle with the weapons under a seizure-mahazar as per
Ex.P.1 (true-copy) and he has identified the said weapons as MO
No's.1 & 2 and also identified the accused No's.1 & 6 as present at
the time of the said seizure-mahazar. Thereafter, the police took
him to a Pawn-broker's Shop towards Nagarabhavi from
Srirampura and at that time, 5 - 6 persons who were under police-
custody were also present, to whom he is not capable of
identifying; But, from the said shop, the police seized the golden-
mangalasuthra-chain under another seizure-mahazar as per
Ex.P.2, on which his signature is as per Ex.P.2(a) and further he
has identified the said mangalasuthra-chain as MO No.4 through
the positive-photograph marked as Ex.P.5 in the open-court.
39. But, in the cross-examination by the learned counsel for
the accused, the PW.1 has admitted that, neither the police had
issued any notice to him, nor stated anything-else regarding the
instant-case and also he did-not know as to why the police had
taken him to the police-station. The police had taken him to one
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shop (Pawn-broker shop) near Nagarabhavi, of which name is not
known to him and he stated in the said shop that, a lady had
pledged the said golden-mangalasuthra, which lady was present at
that time and except her, no-one were present and he does-not
know the weight, the number of strings, number of black-pearls of
the said mangalasuthra and thereafter, the police have never taken
him anywhere-else.
40. It is not pertinent to note that, on consideration of these
particular-versions of the PW.1, the entire-deposition of the PW.1
is emanating with the plethora of major-discrepancies without
favouring to the prosecution, wherefore, the very-deposition of the
PW.1 also does-not deserve for relying, in any way.
41. Further, the PW.3 being the police-constable having
traced and produced the accused No.8 with 2 minor-juvenile-
offenders before the Police-Inspector, as-well-as the circumstantial-
witness, has also endeavored to depose in favour of the
prosecution in his chief-examination to the effect that, on
11.02.2012, the Police-Inspector had deputed him, one Devaraju
and Basavaraju to trace-out the accused-persons in connection
with the Cr.No.30/2012 of the said Magadi Road police-station and
in view of the same, they had been on patrolling and visited
Pattegarpalya and Vijayanagara, and etc., during which time they
received the credible-informations from the informants that the
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accused-persons are in the park of Pattegarpalya, wherefore, they
went to the said park and caught-hold the juvenile-offenders by
name, Santhosh and Manu and accused No.8/Ashok and
produced them before the Police-Inspector with a report as per
Ex.P.3. He has identified the accused No.8/Ashok in the open-
court and stated that he is capable of identifying the other-
juvenile-offenders, to whom they had traced-out and nabbed.
Further, he has stated that on 24.02.2012, the Police-Inspector
had deputed him and another-police-constable by name Devaraju,
along-with PSI- Thimmaiah to secure the accused No.2/Dinesha of
Cr.No.30/2012 stating that he had surrendered before the III
ACMM and asked them to bring him under police-custody and
accordingly, they approached the said court and took the said
accused No.2/Dinesh to the police-custody and produced before
him at 6.10 p.m. in the evening in the police-station. He has
further identified the said accused No.2/Dinesh in the open-court.
42. On the other-hand, though the learned counsels for the
accused have endeavored to cross-examine them, by merely
making suggestions, nothing contrary to the prosecution has been
elicited and extracted through his mouth.
43. Further, the PW.5 being the ASI having accompanied the
Police-Inspector for tracing-out of accused No's.1, 3 & 5 and also
seizing of Tata Sumo vehicle with the weapons as-well-as the
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circumstantial-witness, has also endeavored to depose in favour of
the prosecution in his chief-examination to the effect that, on
07.02.2012, the Police-Inspector had deputed him, along-with PSI-
Thimmaiah to trace-out the accused-persons and produce before
him in connection with the Cr.No.30/2012 and in view of the
same, they having collected the credible-informations from the
informants that the accused-persons are near the swimming-pool
of RPC Layout, they went to the said spot and at that time the
accused-persons having seen them (police), they started to escape
there-from; but, the police caught-hold and got confirmed them as
accused No.1/Nagaraja @ Naga and accused No.5/Dhanaraj @
Kuruda, by inquiring them on the spot discreetly and thereafter,
they brought the said accused No's.1 & 5 to the police-station and
produced before the Police-Inspector. He has identified the said
accused No.1/Nagaraja and accused No.5/Dhanraj in the open
court. Further, he has stated that on 13.02.2012, the Police-
Inspector took him, Head-Constables/Ramakrishnaiah and
Honnaiah, and Police-Constable/Kumar to the spot near
Jnanabharathi Service Station, stating that the accused
No.1/Nagaraj @ Naga, accused No.3/Vikram @ Vikki and accused
No.5/Dhanaraj @ Kuruda had left the Tata Sumo vehicle and
accordingly, at the behest and show of the accused No's.1, 3 & 5,
they visited the spot and seized the said Tata Sumo vehicle, which
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was numberless on the frontal-side with damages to it's frontal-
bumper and the said accused-persons having shown the deadly-
weapons in the dickey of the said vehicle, the Police-Inspector
seized the said Tata Sumo vehicle with deadly-weapons under a
seizure-mahazar. Further, he has identified the said MO No.1/long
and the said accused No's.1, 3 & 5 in the open-court.
44. Despite the learned counsel for the accused-persons
have cross-examined the said PW.5 at much-length, nothing
contrary has been extracted and elicited through the mouth of the
PW.5 against the prosecution.
45. Further, the PW.2 being the PSI having brought the
accused No.2 under police-custody from the court and
circumstantial-witness, has endeavored to depose in favour of the
prosecution in his chief-examination to the effect that, on
24.02.2012, himself, PC- Devaraja and PC- Ramesh having been
deputed to bring the accused No.2/Dinesha from III ACMM Court
before which the accused No.2 had surrendered in connection with
the Cr.No.30/2012, accordingly they went to the court at 5.30 p.m.
in the evening and accordingly secured the said accused No.2 to
the police-custody and produced the said accused No.2 before the
Police-Inspector in the police-station at about 6.10 p.m. in the
evening. He has identified the said accused No.2/Dinesha in the
open-court.
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46. Despite having cross-examined the said PW.2 by the
learned counsel for the accused, nothing contrary to the
prosecution has been elicited and extracted through the mouth of
the PW.2.
47. Further, the PW.9 being the PSI as-well-as the SHO then,
has endeavored to depose in favour of the prosecution in his chief-
examination to the effect that, on 01.02.2012, while he was on
duty in the Byatarayanapura police-station, he having received the
written-complaint from the PW.6/CW.1/Shanthala at about 4.50
p.m. in the evening, he registered the Cr.No.43/2012 for the
offence punishable U/Sec.384 of IPC and sent the First
Information Report as per Ex.P.9, on which his signature is as per
Ex.P.9(a) and the original-complaint as per Ex.P.6, on which his
signature is as per Ex.P.6(b) to the concerned court and the copies
of the same to his higher-authorities for information. The
complainant has mentioned in the said complaint that it could not
be lodged before itself, since she was under a fear and threat. He
has further deposed that, he has handed-over the case-file to the
Police-Inspector for further-investigation.
48. Despite having cross-examined the said PW.9 by the
learned counsel for the accused, nothing contrary to the
prosecution has been elicited and extracted through the mouth of
the PW.9.
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49. Further, the PW.7 being the investigating-officer in
Cr.No.30/2012 of Magadi Road police-station, he has deposed in
his chief-examination to the effect that while he was working as
Police-Inspector in the said Magadi Road police-station from
17.11.2011 to 02.10.2013, he was conducting the investigation in
connection with the Cr.No.30/2012, in respect of which on
01.02.2012, the said case was registered and initially PSI-
Thimmaiah has investigated the case. But, on 04.02.2012, the
accused No.1/Vikram having surrendered himself before the court,
the PSI secured the said accused No.1 to the police-custody and
initiated the investigation. On 07.02.2012, PSI- Thimmaiah
brought the accused No.4/Nagaraj and accused No.5/Dhanraj and
produced before him. On 11.02.2012, his police-staff produced the
accused No.6/Ashoka, juvenile-offenders/Santhosh and Manohara
before him. On 24.02.2012, the accused No.2/Ganesh @ Dinesh
having surrendered before the court, he secured the said Ganesh
@ Dinesh to the police-custody for further-inquiry. On 10.02.2012,
the accused/Vanitha was produced before him under a report by
ASI- Srinivasa Rao and WPC- Ambhujakshi and therefore, he
arrested the said Vanitha by following the arrest-rules. On
13.02.2012, he seized the Tata Sumo vehicle, 2 longs and one-
iron-chopper at the show and behest of the accused No's.1, 3 & 5
by name Nagaraj, Vikram and Dhanraj in presence of the panchas
38 SC No.1408/2012
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and thereafter, himself and PSI- Thimmaiah produced the
accused-persons before the police. The said seizure-mahazar is as
per Ex.P1. Thereafter, he has recorded the statements of the
CWs.10 to 13. During his investigation, he having realized that the
said accused-persons are also the accused-persons in the instant-
Cr.No.43/2012, he recorded the self-voluntary-statements of the
accused-persons and then produced all the concerned documents
before the investigating-officer of Cr.No.43/2012. On 11.02.2012,
he seized the golden-mangalasuthra-chain of the complainant from
Saraswathi Brokers/Bankers Shop under a seizure-mahazar,
along-with the pledged-receipt-copy and his signature on the said
pledged-receipt-copy is as per Ex.P.4(a). On 11.02.2012, he
secured the CWs.1 & 2 to the police-station and got identified the
said seized-material-objects through the complainant and recorded
her statement and on the same-day he recorded the statements of
the CWs.2 & 5 and thereafter on the various-dates, he recorded the
statements of the CWs.6 to 12. Thereafter, basing-on the court-
orders, he has handed-over the custody of the seized-golden-
property to the complainant/PW.6, which is as per MO No.4. The
seized Tata Sumo vehicle was damaged with headlight and bonnet
and also there was no frontal-number-plate, whereas, the back-
number-plate was changed, by replacing with the number as KA-
04-AB-0721; but, it's original-registration number is KA-51-A-
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4499. The original-seizure-mahazar in SC No.549/2012 being as
per Ex.P.1(a), his signature thereon is as per Ex.P.1(b) and the
signatures of panch-witnesses thereon, are as per Exs.P.1(c) &
P.1(d), and also identified the photo of the said seized Tata Sumo
vehicle as per Ex.P.10. On 11.02.2012, the said golden-
mangalasuthra-chain has been seized at the say and behest of the
accused-persons by name, Nagaraj, Dhanraj, Vikram, Vanitha and
juvenile-offenders by name, Santhosh, Manohar and Ashok, during
which time a mahazar as per Ex.P.2 has been drawn, on which his
signature is as per Ex.P.2(c). Even, he has identified the said MO
No.4 in the photo marked as per Ex.P.5 and the said MO
No.4/golden-mangalasuthra-chain is in the custody of the
complainant/CW.1.
50. The relevant-portions of the self-voluntary-statements of
the accused-persons by name, Nagaraj and Dhanraj in SC
No.549/2012 are as per Exs.P.11 & P.12 and the accused-persons
by name, Ganesh @ Dinesh, Vikram and Ashok in SC
No.549/2012 are as per Exs.P.13 to P.15 and the signatures of the
respective-accused-persons thereon are as per Exs.P.11(a) to
P.13(a) & P.15(a) and his signatures thereon are as per Exs.P.11(b)
to P.13(b) & P.15(b). He has identified the accused- Dinesh and
Anand in the open-court and also he has stated that he is capable
of identifying the accused No's.1, 3, 5 & 8, in respect of which it is
40 SC No.1408/2012
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noted in the deposition that the learned counsel for the accused
does-not dispute the identification of the said accused No's.1, 3, 5
& 8, through the independent-witness/PW.7. Further, the PW.7
has deposed that since the case coming under the limits of
Byatarayanapura police-station, he has transferred all the
documents concerned to the said Byatarayanapura police-station
for further-investigation; but, he has noticed that all the accused-
persons are involving in 8 cases.
51. Despite the learned counsels for the accused-persons
having cross-examined the said PW.7 at much-length, no such
severe and serious-version has been elicited and extracted through
the mouth of the PW.7 contrary to the prosecution.
52. During the time of trial, the learned Public Prosecutor
has voluntarily given-up the CWs.12 & 13. Despite having issued
sufficient-process to the CWs.3, 4, 7 to 10, 14, 18 & 20, they have
not at-all turned-up before this court to depose in favour of the
prosecution in the witness-box, wherefore, in the absence of
substantial-grounds, this court was inclined to reject the prayer of
the learned Public Prosecutor and dropped the said CWs.3, 4, 7 to
10, 14, 18 & 20 and closed the prosecution's-side. Non-
examination of the said CWs.3, 4, 7 to 10, 14, 18 & 20 is
absolutely fatal to the prosecution's-case.
41 SC No.1408/2012
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53. On meticulous-consideration of the entire-depositions of
the PWs.1 to 9, it is crystal clear that the PWs.6 & 8 being the
direct-substantial and material-witnesses, namely, complainant
and the eyewitness as-well-as the victims, their depositions are
absolutely prevailing with the plethora of major-discrepancies,
discrepanting the very-crux of the prosecution's-tale creating the
fatal-doubts in the mind of this court. Apart from the same, the
plethora of contradictions and major-material-improvements are
emanating in their depositions, wherefore, there depositions do-not
deserve for relying and believing in favour of the prosecution,
under the circumstances, in any way.
54. It would be pertinent to note at this point of juncture
that, in view of the identification of the accused-persons, the very-
versions of the PWs.6 & 8 are not synchronizing with each-other
substantially. Even, the PW.8 has stated that after about one-
month, he might have identified the said accused-persons in
Parappana Agrahara Prison. But, unfortunately, there is no
explanation regarding the delay for conducting the identification of
the accused-parade in the prison either from the concerned
investigating-officer or from the concerned Special Magistrate who
is stated to have conducted the alleged identification-parade of the
accused-persons in the said Parappana Agrahara Prison. Adding
to the same, the said either Special Magistrate or the main-
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investigating-officer themselves have not been got examined, which
certainly sway-away and demolishes the entire-case of the
prosecution fatally.
55. In-spite of the same, in connection with the aspect of the
no explanation regarding the delay in conducting the alleged
identification-parade of the accused-persons, the learned counsels
for the accused-persons have placed their reliance-on the settled
principles of precedent laws reported in 2015 Cr.R. 731 (Kant.) in a
case between Srinivasa @ Seena & Another Vs. State of Karnataka,
which reads thus:
"Penal Code, 1860 - Section 395 - Dacoity - Appeal against
conviction - Accused covering their faces were not easily
identifiable by witnesses - Test-identification-parade cannot be
relied-upon as test identification-parade was conducted after
showing accused-persons to P.Ws. - In absence of production of
original-voluntary-statements, it is not correct for Court to
look-into only Xerox and carbon-copies of voluntary-
statements in coming to conclusion that accused have given
such voluntary-statements - Trial Court totally ignored legal
aspect and also material factual aspects involved in case -
Appellants acquitted. (Paras 13, 15, 20, 26, 27 and 28)."
56. Further, it is relied-on the settled principle of law,
reported in 1995 Supp (4) Supreme Court Cases 448 in a case
between Satrughana @ Satrughana Parida & Others Vs. State of
Orissa, which reads thus:
"Criminal Appeals Nos.727-29 of 1992, decided on December
10, 1992
Criminal Trial - Test-identification-parade - Unexplained
delay in holding, held, adversely affects the value of evidence of
identification - Where the identification-parade was held 1 ½
long-months after the occurrence in question and after the
expiry of the maximum permissible period (15 days) for
producing the arrested accused before the court; there was no
43 SC No.1408/2012
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explanation for the delay; there was nothing on record to show
that while taking the accused to and producing them before the
court the identity of the accused was not revealed; and the
witnesses had at no earlier-stage revealed any special-
identifying-features, held, exclusive reliance could not be placed
on such identification - Hence, conviction and sentence set-
aside - CrPC, 1973, S.167 - Evidence Act, 1872, S.9. (Paras 2
and 3)".
57. Further, it is relied-on a citation, reported in 2011 Cri.L.J.
535 (Allahabad High Court - Lucknow Bench) in a case between
Molhay and Another Vs. State of U.P., which reads thus:
"Penal Code (45 of 1860), S.395 - Evidence Act (1 of 1872),
S.9 - Dacoity - Evidence of identification of accused -
Admissibility - Accused-persons arrested after six-months of
occurrence and their identification was arranged more-than
sixty-days of their arrest - Delay not explained - No recollection
by witnesses of any special- identifying-feature or any specific-
role played by each of suspects - Nothing to show that accused
were kept beparda after their arrest - Evidence of identification
cannot be relied-upon - Accused acquitted."
58. Further, it is relied-on a citation, reported in 1988 SCC
(CR) 14 in a case between Ramshetya Amrya Bhosale Vs. State of
Maharashtra, which reads thus:
"Headnote: EVIDENCE ACT, 1872 - Section 9 - See Indian Penal
Code, 1860, Sections 342 and 395.br (INDIAN) PENAL CODE, 1860 -
Sections 342 and 395 - Evidence Act, Section 9 - Conviction for
dacoity - Where evidence of identification of accused as culprits was
not satisfactory therefore conviction of accused cannot be sustained."
59. On meticulous-consideration of these-citations relied-
upon by the learned counsels for the accused, it is clear that
unless substantial and reasonable-explanation is provided, the
delay in conducting the identification-parade of the accused-
persons cannot be accepted and relied-upon. Accordingly, in the
instant-case on hand, in the lack of the reasonable and justifiable-
44 SC No.1408/2012
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explanation for the delay caused in conducting the alleged test of
identification-parade of the accused-persons, does-not deserve to
be relied-upon and accepted.
60. Apart from the same, further the PW.4 being the owner of
the Pawn-broker's-shop as-well-as the circumstantial-witness and
the PW.1 being the seizure of Tata Sumo vehicle as-well-as the
weapons-mahazar-witness, their depositions are absolutely
prevailing with the versions shrouded with the cloudy-
circumstances creating in the minds of this court and also the
major-discrepancies, discrepantng the very-crux of the
prosecution's-tale, wherefore, the prosecution has utterly failed to
establish the Exs.P.2, P.4 & P.5 through their mouths.
61. Merely basing-on the very-deposition of the PW.3, who is
the police-constable having traced and produced the accused No.8
with 2 minor-juvenile-offenders before the Police Inspector and
circumstantial-witness; PW.5 being the ASI having accompanied
the Police Inspector for tracing-out the accused No's.1, 3 & 5 and
seizing of Tata Sumo vehicle with weapons as-well-as the
circumstantial-witness; PW.2 being the PSI having brought the
accused No.2 under police-custody and produced before the Police
Inspector as-well-as the circumstantial-witness; PW.9 being the
PSI, the then SHO of Byatarayanapura police-station having
registered the case as-well-as the circumstantial-witness and PW.7
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being the investigating-officer as-well-as the Police-Inspector in
Cr.No.30/2012 as-well-as the circumstantial-witness, this court
cannot arrive-at a conclusion to target the accused-persons for the
conviction in the lack of substantial cogent-material and
eyewitnesses. Therefore, in the lack of the substantiality in the
prosecution's-case, it is a clear-case to hold that the prosecution
has utterly failed to establish the basic-ingredients of the alleged
offence leveled against the accused-persons.
62. Therefore, under all-these-circumstances, this court is 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, without any alimentation. Therefore, the benefit of such
doubts will have to be given to the accused-persons 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's.1 to 3, 8 & 5, respectively. Therefore, in view of all-these-
reasons, this court is of the clear-opinion that, the prosecution has
utterly failed to establish and prove the Point No.1 beyond the
shadow of all the reasonable-doubts. Hence, this court is inclined
to answer Point No.1 in the 'Negative'.
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63. Point No.2:- For the reasons discussed at much-length
while answering the Point No.1 in the Negative herein before supra,
this court is inclined to proceed to pass the following:
ORDER
The prosecution has utterly failed to prove the guilt against the instant-Accused No's.1 to 3, 8 & 5, respectively, and therefore, the instant-Accused No's.1 to 3, 8 & 5, respectively, are found not guilty for having committed the offence punishable U/Sec.395 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant- Accused No.1 in SC No.1408/2012, by name, Nagaraj @ Naga, S/o. Narasimhaiah, aged 19 years, residing at No.58, 5th Cross, New Byyappanahalli, NGEF, Bengaluru; the instant-Accused No.2 in SC No.1408/2012, by name, Dinesha @ Ganesha @ Dio Dinesha, S/o. Arjun, aged 20 years, residing at No.266, 1st Main, Canara Bank Road, Subramanyanagar, Rajajinagar 2nd Stage, Bengaluru; the instant-Accused No.3 in SC No.1408/2012, by name, Vikram @ Kollegala, S/o. Govindaraju, aged 20 years, residing at No.46, 12th Cross, 2nd Main, G.M. Palya, Near BEML, Bengaluru; the instant-Accused No.8 in SC No.1408/2012, by name, Ashoka @ Kariya, S/o. Late Muniraj, aged 20 years, residing at Opp. Koli Narasimhaiah's House, Kanakadasa Nagar, Priyadarshini Layout, Moodalapalya, Bengaluru; and the instant- Accused No.5 in split-up SC No.528/2016, by name, Dhanaraj @ Kuruda @ Dhanu, S/o. Late Parashurama, aged 22 years, residing at No.41, 1st Cross, 1st Main, 47 SC No.1408/2012 Connected SC No.528/2016 Hoysalanagar, Nagarabhavi, Bengaluru, and set them to liberty forthwith in these-respective-cases.
The instant-Accused No.1 in SC No.1408/2012 is hereby discharged of his bail-bond, along-with his surety.
The instant-Accused No.2 in SC No.1408/2012, by name, Dinesha @ Ganesha @ Dio Dinesha, S/o. Arjun, aged 20 years, residing at No.266, 1st Main, Canara Bank Road, Subramanyanagar, Rajajinagar 2nd Stage, Bengaluru; the instant-Accused No.3 in SC No.1408/2012, by name, Vikram @ Kollegala, S/o. Govindaraju, aged 20 years, residing at No.46, 12th Cross, 2nd Main, G.M. Palya, Near BEML, Bengaluru; the instant-Accused No.8 in SC No.1408/2012, by name, Ashoka @ Kariya, S/o. Late Muniraj, aged 20 years, residing at Opp. Koli Narasimhaiah's House, Kanakadasa Nagar, Priyadarshini Layout, Moodalapalya, Bengaluru; and the instant-Accused No.5 in split-up SC No.528/2016, by name, Dhanaraj @ Kuruda @ Dhanu, S/o. Late Parashurama, aged 22 years, residing at No.41, 1st Cross, 1st Main, Hoysalanagar, Nagarabhavi, Bengaluru, shall be released, in the instant-respective- cases alone, if they are not required in any other-cases.
The seized-properties marked at MO No's.1 to 3, namely, two iron-longs and one-iron-chopper (macchu), respectively, 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 the instant-Accused No's.1 to 3, 8 & 5, respectively, and in case if no any other-cases are pending against any other co-accused-persons, then the said MO No's.1 to 3 are 48 SC No.1408/2012 Connected SC No.528/2016 hereby ordered to be confiscated to the Exchequer of the State Government after the efflux of the appeal-period.
The interim-custody of the seized-property marked at MO No.4 namely, golden-mangalasuthra-chain in connection with these-respective-cases, is hereby ordered to be maintained till the disposal of the other split-up cases against the other-co-accused-persons, and in case if no any other-cases are pending against any other co- accused-persons, then the interim-custody of said MO No.4 with the complainant/CW.1/PW.6 is hereby ordered to be absolute.
The first-copy of this judgment shall be kept in the case-file of SC No.1408/2012 and the second-copy shall be kept in the case-file of SC No.528/2016.
(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 30th day of August, 2017) (G.D.Mahavarkar) LI Addl. City Civil & Sessions Judge, Bengaluru City.
APPENDIX List of the witnesses examined for the prosecution-side in SC No.1408/2012 & SC No.528/2016:
PW.1 Venkatachalappa
PW.2 Thimmaiah
PW.3 Ramesh
PW.4 Narayana Lal
PW.5 L. Srinivasa Rao
PW.6 Smt. Shanthala
PW.7 Sridhar Poojar
PW.8 Bheemji
PW.9 Kendaiah
49 SC No.1408/2012
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List of documents exhibited for the prosecution-side in SC No.1408/2012 & SC No.528/2016:
Ex.P.1 Copy of mahazar. Ex.P.1(a) Original-mahazar. Ex.P.1(b) Signature of the PW.7.
Ex.P.1(c) }{ Signatures of the panch-witnesses (Ex.P.1 is kept & }{ in main-case at SC No.549/2012 before FTC - V).
Ex.P.1(d) }{
Ex.P.2 Seizure-mahazar.
Ex.P.2(a) Signature of the PW.1.
Ex.P.2(b) Signature of the PW.4.
Ex.P.2(c) Signature of the PW.7.
Ex.P.3 Report of the PW.3.
Ex.P.4 Pawn-receipt.
Ex.P.4(a) Signature of the PW.7.
Ex.P.5 Photo of the chain.
Ex.P.6 Complaint.
Ex.P.6(a) Signature of the PW.6.
Ex.P.6(b) Signature of the PW.9.
Ex.P.7 Spot-mahazar.
Ex.P.7(a) Signature of the PW.6.
Ex.P.7(b) Signature of the PW.8.
Ex.P.8 Test-identification-parade of the accused-persons.
Ex.P.8(a) Signature of the PW.6.
Ex.P.9 First Information Report.
Ex.P.9(a) Signature of the PW.9.
Ex.P.10 Photo of Tata Sumo vehicle (kept in main-case at
SC No.1406/2012 before FTC - V).
Ex.P.11 Relevant-portion of the voluntary-portion of the voluntary-statement of the accused No.1. Ex.P.11(a) Signature of the accused No.1. Ex.P.11(b) Signature of the PW.7 (Ex.P.11 is kept in main-
case at SC No.549/2012).
Ex.P.12 Relevant-portion of the voluntary-statement of the accused No.5.
Ex.P.12(a) Signature of the accused No.5. Ex.P.12(b) Signature of the PW.7.
Ex.P.13 Relevant-portion of the voluntary-statement of the accused No.2.
Ex.P.13(a) Signature of the accused No.2. Ex.P.13(b) Signature of the PW.7 (Ex.P.13 is kept in main-
case at SC No.549/2012 before FTC - V). Ex.P.14 Copy of the voluntary-statement of the accused No.3. Ex.P.15 Relevant-portion of the voluntary-statement of the accused No.8.
50 SC No.1408/2012Connected SC No.528/2016 Ex.P.15(a) Signature of the accused No.8. Ex.P.15(b) Signature of the PW.7.
List of material objects marked for the prosecution-side in SC No.1408/2012 & SC No.528/2016:
MO No's.1 & 2 Two-iron-longs.
MO No.3 One-iron-chopper (macchu). MO No.4 Golden-mangalasuthra-chain. List of witnesses examined for the defence-side in SC No.1408 /2012 & SC No.528/2016:
- NIL -
List of documents exhibited for the defence-side in SC No.1408/2012 & SC No.528/2016:
- NIL -
LI Addl. City Civil & Sessions Judge, Bengaluru City.51 SC No.1408/2012
Connected SC No.528/2016 (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 instant-Accused No's.1 to 3, 8 & 5, respectively, and therefore, the instant-Accused No's.1 to 3, 8 & 5, respectively, are found not guilty for having committed the offence punishable U/Sec.395 of IPC.
In exercise of the powers conferred-upon me U/Sec.235(1) of Cr.P.C., I hereby acquit the instant- Accused No.1 in SC No.1408/2012, by name, Nagaraj @ Naga, S/o. Narasimhaiah, aged 19 years, residing at No.58, 5th Cross, New Byyappanahalli, NGEF, Bengaluru; the instant-Accused No.2 in SC No.1408/2012, by name, Dinesha @ Ganesha @ Dio Dinesha, S/o. Arjun, aged 20 years, residing at No.266, 1st Main, Canara Bank Road, Subramanyanagar, Rajajinagar 2nd Stage, Bengaluru; the instant- Accused No.3 in SC No.1408/2012, by name, Vikram @ Kollegala, S/o. Govindaraju, aged 20 years, residing at No.46, 12th Cross, 2nd Main, G.M. Palya, Near BEML, Bengaluru; the instant-Accused No.8 in SC No.1408/2012, by name, Ashoka @ Kariya, S/o. Late Muniraj, aged 20 years, residing at Opp. Koli Narasimhaiah's House, Kanakadasa Nagar, Priyadarshini Layout, Moodalapalya, Bengaluru; and the instant-Accused No.5 in split-up SC No.528/2016, by name, Dhanaraj @ Kuruda @ Dhanu, S/o. Late Parashurama, aged 22 years, residing at No.41, 1st Cross, 1st Main, Hoysalanagar, Nagarabhavi, Bengaluru, and set them to liberty forthwith in these-respective-cases.
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The instant-Accused No.1 in
SC No.1408/2012 is hereby
discharged of his bail-bond, along- with his surety.
The instant-Accused No.2 in SC No.1408/2012, by name, Dinesha @ Ganesha @ Dio Dinesha, S/o. Arjun, aged 20 years, residing at No.266, 1st Main, Canara Bank Road, Subramanyanagar, Rajajinagar 2nd Stage, Bengaluru; the instant-Accused No.3 in SC No.1408/2012, by name, Vikram @ Kollegala, S/o. Govindaraju, aged 20 years, residing at No.46, 12th Cross, 2nd Main, G.M. Palya, Near BEML, Bengaluru; the instant-Accused No.8 in SC No.1408/2012, by name, Ashoka @ Kariya, S/o. Late Muniraj, aged 20 years, residing at Opp. Koli Narasimhaiah's House, Kanakadasa Nagar, Priyadarshini Layout, Moodalapalya, Bengaluru; and the instant-Accused No.5 in split-up SC No.528/2016, by name, Dhanaraj @ Kuruda @ Dhanu, S/o. Late Parashurama, aged 22 years, residing at No.41, 1st Cross, 1st Main, Hoysalanagar, Nagarabhavi, Bengaluru, shall be released, in the instant-respective-cases alone, if they are not required in any other- cases.
The seized-properties marked at MO No's.1 to 3, namely, two iron-
longs and one-iron-chopper (macchu), respectively, 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 the instant- Accused No's.1 to 3, 8 & 5, respectively, and in case if no any other-cases are pending against any other co-accused-persons, then the said MO No's.1 to 3 are hereby ordered to be confiscated to the 53 SC No.1408/2012 Connected SC No.528/2016 Exchequer of the State Government after the efflux of the appeal-period.
The interim-custody of the seized-property marked at MO No.4 namely, golden-mangalasuthra- chain in connection with these- respective-cases, is hereby ordered to be maintained till the disposal of the other split-up cases against the other-co-accused-persons, and in case if no any other-cases are pending against any other co- accused-persons, then the interim- custody of said MO No.4 with the complainant/CW.1/PW.6 is hereby ordered to be absolute.
LI Addl. City Civil & Sessions Judge, Bengaluru City.54 SC No.1408/2012
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