Bangalore District Court
The State Of Karnataka vs Manohar S/O Veerabadrappa on 3 September, 2019
IN THE COURT OF THE LX ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY ( C.C.H.61 )
Dated this the 3rd day of September, 2019
: PRESENT :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
S.C. No. 523/2015
COMPLAINANT : The State of Karnataka,
By Jnanbharathi Police Station,
Bengaluru.
(By Public Prosecutor)
V/s
ACCUSED : 1. Manohar S/o Veerabadrappa,
Aged about 20 years, R/at
No.112, 2nd main, 3rd Cross,
Maruthi Nagar, Bhairaveshwara
Badavane, Nagarabhavi,
Bengaluru.
2. Maneesha @ Giraffe S/o Mohan,
Aged about 22 years, R/at 4th
Cross, Near Baldwin School,
Kalyana Nagar, Nagabhavi Main
road, Bengaluru.
Date of offence 01-10-2013
Date of report of offence 01-10-2013
Name of the complainant Kum.Roopa Shree
Date of commencement of 12-10-2017
recording of evidence
Date of closing of evidence 23-08-2019
Offences complained of Sec. 397 I.P.C.
Opinion of the Judge Accused No.1 and 2 are found
not guilty
2 S.C.No.523/2015
State represented by Learned Public Prosecutor
Accused defended by By Sri TVS Advocate
JUDGMENT
This charge sheet filed by Jnanabharathi Police against accused for the offence punishable u/Sec.397 of IPC.
2. The case of the prosecution in brief is that:
That on 1-10-2013 at about 2-10pm within the limits of Jnanbharathi police station, while CW1 Kum.Roopa Shree was proceeding towards her house situated at No.510, Narasapura, Srigandada Kavalu, Bengaluru accused No.1 and 2 came in two wheeler and by pointing a knife threatened CW1 and robbed gold neck chain weighing 12 grams and worth of Rs.25,000/-
and thereby committed offence punishable u/Sec. 397 of IPC.
3. Subsequently, after completion of investigation, Investigating Officer has filed the charge sheet against accused for the offence punishable u/Sec.392 of IPC. On receipt of the charge sheet as the accused was secured. After perusing the charge sheet and materials available on record, the learned 3 S.C.No.523/2015 committal court opinion that, the offence alleged against the accused is attract the ingredients of Sec.397 and hence, the case has been committed to the Sessions Court. Since the offence alleged against accused is exclusively triable by the court of Sessions, the learned IX ACMM, Bengaluru, as per order date.27/4/2015 committed the case against accused to the Hon'ble Principal City Civil and Sessions Judge Bengaluru. That on committal, the case was registered as S.C.523/2015 and made over to this court for disposal in accordance with law. Accused No.1 and 2 in judicial custody and they are represented through their counsel.
4. Thereafter, admitting of the case, accused was secured and on hearing the prosecution as well as defense counsel u/Sec.227 of Cr.P.C, this court framed the charge against accused for the offence punishable u/Sec.397 of IPC, the contents of the charge for the above said offence read over and explained to accused in the language known to them and they denied the same and claimed to be tried. 4 S.C.No.523/2015
5. In support of its case, prosecution have cited 10 witnesses, out of that prosecution examined only six witnesses as PW1 to PW6 and got marked documents as per Ex.P.1 to 10 and one Material object as M.O.1. Since, in despite of sufficient opportunity, the concerned police have not secured the presence of CW-4 to 6 in order to render speedy justice, the evidence of prosecution taken as closed on 23-08-2019. Thereafter, the statement of accused under Sec.313 of Cr.P.C. is recorded. The case of defence is total denial of prosecution case and the defence examined none and no documents are marked.
6. Heard the arguments of learned Public Prosecutor for State and learned counsel for accused. Perused the records.
7. The only points that arise for my consideration are as under:-
1. Whether the prosecution proves beyond all reasonable doubt that on 01.10.2013 at about 2.10 p.m., within the limits of Jnanabharathi Police Station at Srigandhada Kaval, Narasapura Road, in front of 5 S.C.No.523/2015 house No.510, when CW1 Kumari Roopashri was proceedings towards her house, accused No.1 and 2 came on the motor cycle and by pointing out the knife towards her, threatened CW1 to part with the golden neck chain and when CW1 obstructed, A1 and A2 threatened her by pointing out the knife with an intention to cause hurt to her and CW1 being afraid of took out her golden chain weighing about 12 grams worth of Rs.25,000/- from her neck and handed over the same to A1 and A2 and thereby have committed an offence punishable u/Sec. 397 of IPC.
2. What order?
8. My finding on the above points are as follows;
Point No.1 : In the negative.
Point No.2 : As per final order,
for the following:
REASONS
9. POINT NO.1:- In order to establish the charge leveled against the accused, the prosecution has placed total 10 witnesses and out of that 6 witnesses had been examined. According to prosecution, PW-1 is with panch witness to the 6 S.C.No.523/2015 seizure mahazar, PW3 is the complainant and the victims, PW4 is the panch witness to the spot mahazar, PW2, PW4 and PW6 are the police witnesses.
10. PW-1 has not supported the prosecution case and PW4 supported the case of prosecution. PW-3 is the star witness.
11. PW-3 has stated in her evidence that, on 1.10.2013 at about 2.10pm after finishing her college while she was returning to her home in front of house No.510, Narasapura Road, some two persons came in a pulsar bike and asked her chain and when she refused to give the same, the accused persons by pointing the knife have robbed her gold chain which was weighing 12 grams worth of Rs.25,000/- She further deposed that, thereafter, she went to the police station and lodged the complaint as per Ex.P.4 and thereafter police came to the scene of offence and drawn the spot mahazar as per Ex.P.5 in the presence of CW2 and CW3. It is further deposed that, on 13/11/2013 the Upparpet police summoned her to the 7 S.C.No.523/2015 police station and showed the photos of some persons and she identified the accused persons and also identified the chain. She also identified the accused persons, who were present before the court, who robbed on that day.
12. So far as PW-3 is concerned, the defence counsel have fully cross-examined and defence counsel has tried to suggest some points which was agreed in the chief examination, but the witness has denied the suggestions which were put forth by the counsel for the accused. It is pertinent to note that, in the cross examination PW3 states the present accused persons holding the knife. However, on perusing the entire evidence on record, the respondent police have not seized any knife by drawing mahazar and subjected the same under P.F. Therefore, the contention of PW3 that the present accused persons by pointing the knife have robbed her cannot be believable. Though the PW1 in her evidence as well in the complaint she states that the accused person robbed her gold chain weighting 12 grams and cash of Rs.26,000/- by pointing 8 S.C.No.523/2015 the knife, the complainant police have not seized the knife and subjected the same under the P.F. Therefore, the evidence of PW3 is not supported with any documentary evidence on record. That apart in the cross examination, PW3 admitted that, she has not stated in his complaint as well as in her examination chief, where she took the treatment and also not produced any medical certificate to show that, she sustained injuries. Thus, on close scrutiny of evidence of PW.3, it appears that, though in her examination-in-chief, she has targeted the accused as a robber, but during course of her cross examination, she has given complete go by to the story of the prosecution and that apart in the evidence of PW3, there are a lot of discrepancies. Therefore, it is unsafe to place reliance on his evidence
13. Hence, the evidence of PW3 has to be corroborated with independent panch witnesses. It is pertinent to note that, the panch witnesses examined as PW1.
9 S.C.No.523/2015
14. It is important to note that, panch witness PW1 Suresha has turned hostile and not supported the case of prosecution, he is subjected to cross examination by the prosecution, after treating him as hostile witness. In spite of it, nothing much contrary elicited from his mouth to hold that he deposes falsely before the court.
15. PW4 Manje Gowda the panch witness to the spot mahazar at Ex.P.5. PW4 in his evidence has stated that, on the day police summoned him to the scene of offence and drawn the spot mahazar at Ex.P.5 in his present. He has been subjected to cross examination. On perusing the entire evidence it clearly discloses that, PW4 is the non other than the brother of the complainant. Therefore, the interested witness PW4 evidence is not trustworthy.
16. PW2 Malavaiah HC deposed that on 4/11/2013 himself and CW8 were on patrolling duty near Hospital, they found that two persons by parking Honda Activa bearing 10 S.C.No.523/2015 Reg.No.KA-03-HC-3041 and on suspecting them when they enquired, they have not given proper answer and hence, they apprehended the accused persons along with said vehicles and produced them before the Investigating Officer with his report at Ex.P.3. He also identified the accused.
17. PW5 Sunil Kumar PI deposed that, on 17/8/2013 at bout 10.30am the complainant appeared before him and lodged the complaint at Ex.P.4 and on the basis of the said complaint, he has registered the case and submitted the FIR at Ex.P.7 to the court. He further deposed that on the same day at about 9.00am he drew the spot panchnama at Ex.P.5 at scene of offence. He further deposed that, on 24.12.2012 Upparpet police staton PSI Krishna Kumar was got collected the transferred documents pertains to this case and after completion of investigation, he submitted the charge sheet.
18. PW6 Krishna Kumar SI deposed that, on 4.11.2013 CW7 and CW8 produced the accused persons before him with report at Ex.P.3 and he arrested and recorded the voluntary 11 S.C.No.523/2015 statement of the accused persons. On 5/11/2012 he recorded the further voluntary statement of the accused persons and on the basis of the voluntary statement he seized the gold chain by drawing mahazar at Ex.P.1 and thereafter, he recorded the statement of complainant and complainant identified the accused persons and chain and hence, he transferred the case file to Jnanabharathi police station for further investigation.
19. PW2, PW5 and PW6 being the official witnesses have deposed in their official capacity and their evidence in formal in nature. Hence, the evidence of PW2, PW5 and PW6 will not assume much importance.
20. It is important to note that, the essential ingredients of the offence under Section 397 of IPC are the accused must commit robbery or dacoity, while committing said robbery or dacoity the accused has to use deadly weapon to cause grievous hurt or attempt to cause death or grievous hurt to any person. The said Section 397 of IPC is imposed minimum 12 S.C.No.523/2015 punishment of seven years but not merely serve as being complimentary to Section 392 and 395 by regulating the punishment already provided for dacoity or robbery. When the dacoity or robbery committed was found attended upon certain aggravate circumstance use of deadly weapon or causing grievous hurt or attempting to cause death or grievous hurt for that reason, no doubt the provision of Section 397 of IPC will be applicable. Further, that for proving Section 397 of IPC, those who committed the grievous injury, he will be alone liable for punishment. No doubt, that the provision postulates only the independent act of the accused to be relevant to attract Section 397 of IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability encrypted in Section 397 of IPC.
21. Hence, it is clear that, to attract the Provision of Sec. 397 of IPC, while committing said robbery or dacoity the accused has to use deadly weapon to cause grievous hurt or attempt to cause death or grievous hurt to any person. It is 13 S.C.No.523/2015 relevant to note that, though PW3 states in her examination in chief as well as complaint, the present accused persons by pointing knife have robbed, however, on perusing the entire records it discloses that, the Investigating Officer has not seized any deadly weapon and also such as cash and gold ornaments. Therefore, it can be held that, the prosecution has failed to prove all the ingredients u/Sec.397 of IPC against the accused.
22. Absolutely prosecution has failed to establish its case against accused, by placing any iota of evidence, certainly accused is entitled to an acquittal, since prosecution has failed to establish its case against accused No.1 and 2, by placing convincing and cogent evidence in connection with any of the charges leveled against them. Therefore, I need not discuss much about prosecution case. For the foregoing reasons, I answer the above points in the "Negative".
23. Point No.2:- In the result, I proceed to pass the following;
14 S.C.No.523/2015
ORDER Acting under Section 235(1) of Cr.P.C., accused No1 and 2 are hereby acquitted of the charge leveled against them for the offences punishable under Section, 397 of IPC.
The accused No.1 and 2 set at liberty forthwith, if they are not required in any other cases.
However, bail bonds and surety bonds executed by accused No.1 and 2, as required u/S.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Interim order passed in respect of M.O.1 is made absolute.
*** (Dictated to the Stenographer, transcribed and typed by her, corrected by me and then pronounced by me in open court on this the 3rd day of September, 2019) (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.
15 S.C.No.523/2015ANNEXURES:
List of witnesses examined for the prosecution:
PW1 Suresha PW2 Malavaiah PW3 Roopashree PW4 Manje Gowda PW5 Sunil Kumar PW6 Krishna Kumar
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Mahazar Ex.P.2 Statement Ex.P.3 Report Ex.P.4 Complaint Ex.P.5 Spot mahazar Ex.P.6 Photo Ex.P.7 FIR Ex.P.8 Voluntary statement Ex.P.9 Voluntary statement Ex.P.10 report Ex.P.11 Statement of accused
List of documents exhibited on behalf of defence:
Nil List of M.O. marked for the prosecution:
-NIL-
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.16 S.C.No.523/2015