Bangalore District Court
The State vs Ashok on 17 September, 2022
KABC030364272018
Presented on : 21.05.2018
Registered on : 21.05.2018
Decided on : 17.09.2022
Duration : 04y/03m/27days
IN THE COURT OF
XLI ADDITIONAL METROPOLITAN MAGISTRATE
AT : BENGALURU
PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA
B.A.,LL.B.,
XLI Addl. Metropolitan Magistrate
Bengaluru
Dated on this 17th day of September 2022
C.C.No.13205/2018
COMPLAINANT : The State
by Beguru Police Station.
-V/s-
ACCUSED : 1. Ashok
S/o. Madhu, Aged about 20 years,
R/o. No.1997, 24th Cross,
Near Inchara Hotel,Puttenahalli,
Bengaluru City.
2. Naveen @ Bunty
S/o. Siddaraju,
Aged about 19 years, R/o. No.18/5,
1st Main, 8th Cross, Chamrajapete,
Bengaluru City.
2 C.C.No.13205/2018
Date of Commission of offence 22.04.2017
Date of report 22.04.2017
Date of arrest 08.09.2017 the accused
appeared through their counsel
and got enlarged them on bail
Name of the complainant Ramakka
Date of commencement of 27.11.2019
recording Evidence
Date of closing evidence 29.07.2022
Offences complained of U/Sec. 451, 380 of IPC
Opinion of the Judge As per final orders
State Represented by Senior Asst. Public Prosecutor
Accused Represented by Sri.Gopala Krishna M.C.,
Advocate.
JUDGMENT
[Delivered on 17.09.2022] The P.S.I of Beguru Police Station has filed charge sheet against the accused for the offences punishable U/Sec. 451, 380 of IPC.
2. Brief facts of prosecution case is as follows:
On 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of the complainant, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and stolen 16grams of gold chain 3 C.C.No.13205/2018 from her house. On the basis of written complaint given by Smt.Ramakka/CW.1, the Koramangala police have registered the case in their crime No.46/2017.
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offence punishable U/Sec.451 & 380 of IPC.
4. 08.09.2017 the accused appeared through their counsel and got enlarged them on bail. Sec.207 of Cr.P.C is complied with and charge sheet copy was furnished to the accused.
5. This Court heard both the parties. As there were no grounds to discharge the accused, this Court framed charge for the offences punishable U/Sec. 451, 380 of IPC. The accused did not plead guilty. He claimed to be tried.
6. In order to prove its case, the prosecution got examined 6 witnesses as PW.1 to PW.6 and got marked Ex.P.1 to Ex.P.6 documents. After the closure of the evidence of the prosecution, this court recorded the statements of the accused U/Sec.313 of 4 C.C.No.13205/2018 Cr.P.C wherein, the accused denied the incriminating evidence led against them. They did not choose to lead their defence evidence.
7. I have heard the arguments of Senior APP and Sri. GMC Advocate.
8. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, on 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of CW.1, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and thereby they have committed an offence punishable U/Sec.451 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date, time and place, the accused stolen 16grams of gold chain from the house of CW.1 and thereby they 5 C.C.No.13205/2018 have committed an offence punishable U/Sec.380 of IPC?
3. What order?
9. My answers to the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : As per final orders for the following:
REASONS
Point No.1 & 2: As these two points are interrelated, I take both the points together for common discussion to avoid repetition.
10. The burden is casted on the prosecution to prove that, the accused No.1 and 2 trespassed into the house of CW.1 to commit offence and stolen golden chain weighing 16 grams and thereby they have committed the offences punishable U/Sec.451 & 380 of IPC. In order to prove its case, the prosecution got examined the complainant/CW.1 as PW.1, mahazer witness-CW.3 as PW.2, police officer, who partly investigated the case-CW.14 as PW.3, CW.15 as PW.4, the police official, who arrested the accused-CW.9 as PW.5 and IO- CW.16 as PW.6 and got marked the complaint as 6 C.C.No.13205/2018 Ex.P.1, photograph of the chain as Ex.P.2, spot Mahazar as Ex.P.3, FIR as Ex.P.4, true copy of seizure Mahazar' s Ex.P.5 and 6
12. CW.1/PW.1 - Ramakka in her evidence has stated that, 3 years ago one day her gold chain was stolen. At 2.30p.m after taking bath she was sleeping. She woke up at 4p.m. Somebody has stolen her 3 savaran [sovereign] gold chain. By the time she could come out, the gate was closed and the thieves ran away. She gave Ex.P.1 complaint to the police. Thereafter, the police informed that, her gold chain is traced. At Beguru Police Station, her chain was shown to her. Her chain is seen in Ex.P.2 photograph. She does not know, who has committed theft. However, in the police station, the police told her that, the accused have stolen her chain. She has seen the accused earlier.
13. CW.3/PW.2- Venkatesh in his evidence has stated that, Ex.P.3 mahazer contains his signature, which is marked as Ex.P.3[a]. 2 years ago he has signed Ex.P.3 near the house of the complainant. He has signed the same, where the chain was stolen and where the police conducted mahazer.
7 C.C.No.13205/2018
14. CW.3/PW.4-N.R.Nirmala, in her evidence has stated that, while she was working as PSI of Beguru P.S., on 22.04.2017, Smt.Ramakka gave Ex.P.1 complaint regarding the theft of her golden chain. On the basis of which, she registered Ex.P.4 - FIR. At 3.30 to 4.30 p.m she has drawn Ex.P.3 mahazer at the house of the complainant, it bears her signature, which is marked as Ex.P.4[b].
15. CW.15/PW.4-Srinivas M.S., in his evidence has stated that, while he was working as inspector at Beguru P.S., on 23.08.2017 while he was patrolling, he received an information that, some 5 persons with deadly weapons are assembled at Neelagiri farm near Ganesha temple and making conspiracy to commit dacoity. Hence, at 5.30 p.m he called pancha witnesses CW.4 and 5, his staffs CW.8 to 12 and went near the Neelagiri farm, in their departmental vehicle. They stopped their vehicle at the distance of 150 meters. They learnt that, 5 persons are assembled with deadly weapons and 3 vehicles. In order to confirm the information, CW.9 was sent ahead. He confirmed the conspiracy of committing dacoity. At 6p.m himself and his staff attacked them. Himself and 8 C.C.No.13205/2018 CW.12 caught accused No.1, CW.8 caught accused No.2, CW.11 caught Yashawant, CW.9 caught Cheluvaraju and CW.10 caught Arun. The accused No.2 had a wooden log, Yashawant had an iron rod and Cheluvaraju had ¾ feet knife. From 6 to 7.45 p.m all the weapons and 3 vehicles were seized through Ex.P.5 mahazer. They produced the accused, vehicles, weapon and mahazer before PSI- Bheema Nayak at 8.15p.m and gave report. He has identified the accused, vehicles and weapons, which were seized from them. As he had suspicion regarding the involvement of these accused in other cases, he has handed over the investigation to Bheemanayak.
16. CW.9/PW.5-Yogananda Kumar K.P., in his evidence has stated that, while he was working as head constable at Beguru P.S., on 23.08.2017, their inspector-PW.4 called him. The PW.4 had received an information that, some 5 persons are assembled at Neelagiri farm near Ganesha temple of AECS layout and making conspiracy to commit dacoity. Hence, he called pancha witnesses CW.4 and 5, his staffs and went near the Neelagiri farm in the departmental and private vehicles. They stopped their vehicles at 9 C.C.No.13205/2018 the distance of 150 meters. Some 4-5 persons were talking about dacoity. As per the directions of their inspector, they surrounded them and caught all of them. He caught Cheluvaraju. Three vehicles and deadly weapons were seized from them. Subsequently, they took those persons to the police station along with seized vehicles and deadly weapons. He has identified the accused and the weapons, which were seized from them.
17. CW.16/PW.6 in his evidence has stated that, while he was working as PSI, he arrested the accused. The accused informed them that, they have kept the stolen articles at the burial ground. Hence, he took the accused and his staff to burial ground. The place was shown by the accused. He recovered 12 grams golden chain and 16 grams golden chain by digging the ground. He seized those ornaments by drawing Ex.P.6 mahazer from 1.15a.m to 2.15a.m in the presence of pancha witnesses. He recorded the statements of CW.6 to 13. As per the court orders, he released the ornaments to the complainant. In this regard, he has produced the photograph. He has recorded the statement of the complainant in 10 C.C.No.13205/2018 Cr.No.46/2017. He has identified the accused and ornaments. Subsequently, he filed charge sheet against the accused.
18. On the basis of written complaint given by Ramakka - PW.1, the Beguru police registered this case, investigated the matter and filed charge sheet against the accused. In Ex.P.1, the PW.1 has stated that, on 21.04.2017 she along with her family members had been to Chikkanahalli fest and returned to their home at 5 a.m. As all of them were tired, on 22.04.2017 they slept. At 2 p.m., she got up, opened the door and went to take bath and when she returned from bathroom, she noticed that someone has stolen her golden chain weighing 25-30 grams, which was kept on the table. Accordingly, she gave complaint to the police on the same day at 3 p.m., and requested them to trace her golden chain.
19. From the contents of Ex.P.1, it appears that the PW.1 has not seen the person, who has stolen her golden chain by entering into their house. As per Ex.P.6, the investigation officer drawn seizure mahazar on 24.08.2017 at the burial ground of Arkere village, Devarachikkanahalli road at 1.15 p.m., to 2.15p.m. 11 C.C.No.13205/2018
20. As per the contents of Ex.P.6, the investigating officer recovered 2 golden chains weighing 12 grams and 16.800 grams each, which was buried in the grave yard. But the prosecution has failed to secure the presence of the so called pancha witnesses of Ex.P.6, who are cited as CW.6 and 7 in the charge sheet.
21. Inspite of issuance of repeated summons, warrants and proclamation, the prosecution has not secured their presence and hence they were dropped. From the prosecution papers, it appears that the complainant has taken interim custody of the gold chain weighing 16.800 grams. But, no where the complainant had stated that her stolen golden chain was weighing 16 grams. There are no documents on record to show that, the IO has recorded 16 grams gold chain from the accused. In Ex.P.6 the weight of 2nd chain is mentioned as 16.800 grams and not 16 grams. Though the PW.1 stated that the police informed her that the accused have stolen her golden chain, there are no materials on record to substantiate her version.
12 C.C.No.13205/2018
22. The description of her chain given by PW.1 in her complaint does not tally with the description mentioned in Ex.P.6 and her re- statement recorded by the police during the time of investigation. During the course of cross examination, the PW.1 stated that the police have written Ex.P.1 complaint and she affixed her LTM to the same. During the course of cross examination, the PW.3 stated that the PW.1 herself brought Ex.P.1 written, which is contrary to the version of PW.1.
23. The PW.1 admits that, she is seeing the accused for the first time in the court. The PW.2 in his chief examination has stated that, he has affixed his signature to Ex.P.3 Mahazar near the house of complainant. During the course of cross examination, he admits that he has signed the same in the police station and he does not know the contents of the same.
24. PW.4 and 5 deposed regarding the arrest of 5 persons, seizure of deadly weapons and 3 motorcycles from Ashok, Naveen, Yeshwanth, Cheluvaraj and Arun. A separate case is registered against them in Crime No.151/2017. Their evidence is not helpful 13 C.C.No.13205/2018 to the case of the prosecution, as no property was recovered from those persons in connection with the present case and they have not stated that the accused No.1 and 2, who are arrested in Crime No.151/2017 are involved in this case.
25. The IO/PW.6 in his evidence has stated that he had been to the burial ground of Arkere along with accused and his staff on 24.08.2017 and recovered 2 gold chains weighing 12 grams and 16 grams respectively, which were found buried therein. In Ex.P.6, it is mentioned that 2 chains weighing 12 grams and 16.800 grams respectively were said to be seized from the burial ground. The weight of the ornament seized through Ex.P.6 does not tally with the weight mentioned by the IO in his evidence.
26. In the present case, there are no materials on record to show that the gold chain found in Ex.P.2 photograph was seized or recovered as per the voluntary statement given by the accused from the burial ground of Arkere. The IO has not explained as to why the complainant mentioned the weight of her stolen chain as 25- 30 grams in Ex.P.1. Because, in her chief examination, the PW.1 14 C.C.No.13205/2018 stated that 3 sovereign/savaran gold chain was stolen from her house. 1 Sovereign is equal to 8 grams. Then how the complainant can say that, the police traced her gold chain, which is seen in Ex.P.2, which is not of 3 sovereign/savaran. On the other hand, it was of 2 savaran. What happened to remaining 1 savaran gold? When 3 savaran gold chain of the complainant was stolen from her house, why 16 grams gold chain returned to her. This fact has not been clarified by the IO.
27. There are no materials on record to show that the IO recovered 2 gold chains as per the voluntary statement given by accused herein from the burial ground of Arkere. Because the mahazar witnesses have not appeared before the court to substantiate the contents of Ex.P.6. In such circumstances, the evidence led by the prosecution witnesses is not sufficient to hold that, the accused have stolen the golden chain of the complainant by entering her house.
28. Moreover, there are no cogent convincing evidence before the court to hold that the ornament described at EX.P.6 are 15 C.C.No.13205/2018 recovered from Arkere burial ground as per the voluntary statement of the accused. Therefore, the evidence led by PW.1 to 6 is no way helpful to the case of the prosecution to hold the accused are guilty of the offences punishable U/Sec. 451 and 380 of IPC. From the evidence of PW.1 to 6, the allegations made against the accused will not be proved. Thus, the prosecution has failed to prove the allegations made against the accused. Accordingly, I answer Point No.1 and 2 in the Negative. Point No.3: For the aforesaid reasons I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused No.1 and 2 are acquitted from the charges of Sec.451 and 380 r/w.34 of IPC.
The bail bonds executed by the accused stand cancelled.
17.09.2022 [TATTANDA DAMAYANTI SOMAYYA] XLI ADDL.METROPOLITAN MAGISTRATE BENGALURU 16 C.C.No.13205/2018 17 C.C.No.13205/2018 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Ramakka PW.2 : Venkatesh PW.3 : N R Nirmala PW.4 : Srinivas M. S PW.5 : Yogananda Kumar K P PW.6 : Bheema Naik
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.1[a] : Signature of PW.3 Ex.P.2 : Photograph Ex.P.3 : Spot Mahazar Ex.P.3[a] : Signature of PW.2 Ex.P.3[b] : Signature of PW.3 Ex.P.4 : FIR Ex.P.4[a] : Signature of PW.3 Ex.P.5 : True copy of seizure Mahazar Ex.P.6 : True copy of Seizure Mahazar Ex.P.6[a] : Signature of PW.6 LIST OF WITNESSES EXAMINED FOR THE ACCUSED : NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL 18 C.C.No.13205/2018 PROPERTY MARKED ON BEHALF OF THE PROSECUTION : NIL .......................................................................................
Dictated on : 16.09.2022
Transcribed on : 17.09.2022
checked on : 17.09.2022
Signed on : 17.09.2022
[TATTANDA DAMAYANTI SOMAYYA]
XLI ADDL.METROPOLITAN MAGISTRATE
BENGALURU
Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS KABC030364272018 Presented on : 21.05.2018 Registered on : 21.05.2018 Decided on : 17.09.2022 Duration : 04y/03m/27days IN THE COURT OF XLI ADDITIONAL METROPOLITAN MAGISTRATE AT : BENGALURU PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA B.A.,LL.B., XLI Addl. Metropolitan Magistrate Bengaluru Dated on this 17th day of September 2022 C.C.No.13205/2018 COMPLAINANT : The State by Beguru Police Station.
-V/s-
ACCUSED : 1. Ashok S/o. Madhu, Aged about 20 years, R/o. No.1997, 24th Cross, Near Inchara Hotel,Puttenahalli, Bengaluru City.
2. Naveen @ Bunty S/o. Siddaraju, Aged about 19 years, R/o. No.18/5, 1st Main, 8th Cross, Chamrajapete, Bengaluru City.2 C.C.No.13205/2018
Date of Commission of offence 22.04.2017 Date of report 22.04.2017 Date of arrest 08.09.2017 the accused appeared through their counsel and got enlarged them on bail Name of the complainant Ramakka Date of commencement of 27.11.2019 recording Evidence Date of closing evidence 29.07.2022 Offences complained of U/Sec. 451, 380 of IPC Opinion of the Judge As per final orders State Represented by Senior Asst. Public Prosecutor Accused Represented by Sri.Gopala Krishna M.C., Advocate.
JUDGMENT [Delivered on 17.09.2022] The P.S.I of Beguru Police Station has filed charge sheet against the accused for the offences punishable U/Sec. 451, 380 of IPC.
2. Brief facts of prosecution case is as follows:
On 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of the complainant, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and stolen 16grams of gold chain 3 C.C.No.13205/2018 from her house. On the basis of written complaint given by Smt.Ramakka/CW.1, the Koramangala police have registered the case in their crime No.46/2017.
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offence punishable U/Sec.451 & 380 of IPC.
4. 08.09.2017 the accused appeared through their counsel and got enlarged them on bail. Sec.207 of Cr.P.C is complied with and charge sheet copy was furnished to the accused.
5. This Court heard both the parties. As there were no grounds to discharge the accused, this Court framed charge for the offences punishable U/Sec. 451, 380 of IPC. The accused did not plead guilty. He claimed to be tried.
6. In order to prove its case, the prosecution got examined 6 witnesses as PW.1 to PW.6 and got marked Ex.P.1 to Ex.P.6 documents. After the closure of the evidence of the prosecution, this court recorded the statements of the accused U/Sec.313 of 4 C.C.No.13205/2018 Cr.P.C wherein, the accused denied the incriminating evidence led against them. They did not choose to lead their defence evidence.
7. I have heard the arguments of Senior APP and Sri. GMC Advocate.
8. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, on 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of CW.1, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and thereby they have committed an offence punishable U/Sec.451 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date, time and place, the accused stolen 16grams of gold chain from the house of CW.1 and thereby they 5 C.C.No.13205/2018 have committed an offence punishable U/Sec.380 of IPC?
3. What order?
9. My answers to the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : As per final orders for the following:
REASONS
Point No.1 & 2: As these two points are interrelated, I take both the points together for common discussion to avoid repetition.
10. The burden is casted on the prosecution to prove that, the accused No.1 and 2 trespassed into the house of CW.1 to commit offence and stolen golden chain weighing 16 grams and thereby they have committed the offences punishable U/Sec.451 & 380 of IPC. In order to prove its case, the prosecution got examined the complainant/CW.1 as PW.1, mahazer witness-CW.3 as PW.2, police officer, who partly investigated the case-CW.14 as PW.3, CW.15 as PW.4, the police official, who arrested the accused-CW.9 as PW.5 and IO- CW.16 as PW.6 and got marked the complaint as 6 C.C.No.13205/2018 Ex.P.1, photograph of the chain as Ex.P.2, spot Mahazar as Ex.P.3, FIR as Ex.P.4, true copy of seizure Mahazar' s Ex.P.5 and 6
12. CW.1/PW.1 - Ramakka in her evidence has stated that, 3 years ago one day her gold chain was stolen. At 2.30p.m after taking bath she was sleeping. She woke up at 4p.m. Somebody has stolen her 3 savaran [sovereign] gold chain. By the time she could come out, the gate was closed and the thieves ran away. She gave Ex.P.1 complaint to the police. Thereafter, the police informed that, her gold chain is traced. At Beguru Police Station, her chain was shown to her. Her chain is seen in Ex.P.2 photograph. She does not know, who has committed theft. However, in the police station, the police told her that, the accused have stolen her chain. She has seen the accused earlier.
13. CW.3/PW.2- Venkatesh in his evidence has stated that, Ex.P.3 mahazer contains his signature, which is marked as Ex.P.3[a]. 2 years ago he has signed Ex.P.3 near the house of the complainant. He has signed the same, where the chain was stolen and where the police conducted mahazer.
7 C.C.No.13205/2018
14. CW.3/PW.4-N.R.Nirmala, in her evidence has stated that, while she was working as PSI of Beguru P.S., on 22.04.2017, Smt.Ramakka gave Ex.P.1 complaint regarding the theft of her golden chain. On the basis of which, she registered Ex.P.4 - FIR. At 3.30 to 4.30 p.m she has drawn Ex.P.3 mahazer at the house of the complainant, it bears her signature, which is marked as Ex.P.4[b].
15. CW.15/PW.4-Srinivas M.S., in his evidence has stated that, while he was working as inspector at Beguru P.S., on 23.08.2017 while he was patrolling, he received an information that, some 5 persons with deadly weapons are assembled at Neelagiri farm near Ganesha temple and making conspiracy to commit dacoity. Hence, at 5.30 p.m he called pancha witnesses CW.4 and 5, his staffs CW.8 to 12 and went near the Neelagiri farm, in their departmental vehicle. They stopped their vehicle at the distance of 150 meters. They learnt that, 5 persons are assembled with deadly weapons and 3 vehicles. In order to confirm the information, CW.9 was sent ahead. He confirmed the conspiracy of committing dacoity. At 6p.m himself and his staff attacked them. Himself and 8 C.C.No.13205/2018 CW.12 caught accused No.1, CW.8 caught accused No.2, CW.11 caught Yashawant, CW.9 caught Cheluvaraju and CW.10 caught Arun. The accused No.2 had a wooden log, Yashawant had an iron rod and Cheluvaraju had ¾ feet knife. From 6 to 7.45 p.m all the weapons and 3 vehicles were seized through Ex.P.5 mahazer. They produced the accused, vehicles, weapon and mahazer before PSI- Bheema Nayak at 8.15p.m and gave report. He has identified the accused, vehicles and weapons, which were seized from them. As he had suspicion regarding the involvement of these accused in other cases, he has handed over the investigation to Bheemanayak.
16. CW.9/PW.5-Yogananda Kumar K.P., in his evidence has stated that, while he was working as head constable at Beguru P.S., on 23.08.2017, their inspector-PW.4 called him. The PW.4 had received an information that, some 5 persons are assembled at Neelagiri farm near Ganesha temple of AECS layout and making conspiracy to commit dacoity. Hence, he called pancha witnesses CW.4 and 5, his staffs and went near the Neelagiri farm in the departmental and private vehicles. They stopped their vehicles at 9 C.C.No.13205/2018 the distance of 150 meters. Some 4-5 persons were talking about dacoity. As per the directions of their inspector, they surrounded them and caught all of them. He caught Cheluvaraju. Three vehicles and deadly weapons were seized from them. Subsequently, they took those persons to the police station along with seized vehicles and deadly weapons. He has identified the accused and the weapons, which were seized from them.
17. CW.16/PW.6 in his evidence has stated that, while he was working as PSI, he arrested the accused. The accused informed them that, they have kept the stolen articles at the burial ground. Hence, he took the accused and his staff to burial ground. The place was shown by the accused. He recovered 12 grams golden chain and 16 grams golden chain by digging the ground. He seized those ornaments by drawing Ex.P.6 mahazer from 1.15a.m to 2.15a.m in the presence of pancha witnesses. He recorded the statements of CW.6 to 13. As per the court orders, he released the ornaments to the complainant. In this regard, he has produced the photograph. He has recorded the statement of the complainant in 10 C.C.No.13205/2018 Cr.No.46/2017. He has identified the accused and ornaments. Subsequently, he filed charge sheet against the accused.
18. On the basis of written complaint given by Ramakka - PW.1, the Beguru police registered this case, investigated the matter and filed charge sheet against the accused. In Ex.P.1, the PW.1 has stated that, on 21.04.2017 she along with her family members had been to Chikkanahalli fest and returned to their home at 5 a.m. As all of them were tired, on 22.04.2017 they slept. At 2 p.m., she got up, opened the door and went to take bath and when she returned from bathroom, she noticed that someone has stolen her golden chain weighing 25-30 grams, which was kept on the table. Accordingly, she gave complaint to the police on the same day at 3 p.m., and requested them to trace her golden chain.
19. From the contents of Ex.P.1, it appears that the PW.1 has not seen the person, who has stolen her golden chain by entering into their house. As per Ex.P.6, the investigation officer drawn seizure mahazar on 24.08.2017 at the burial ground of Arkere village, Devarachikkanahalli road at 1.15 p.m., to 2.15p.m. 11 C.C.No.13205/2018
20. As per the contents of Ex.P.6, the investigating officer recovered 2 golden chains weighing 12 grams and 16.800 grams each, which was buried in the grave yard. But the prosecution has failed to secure the presence of the so called pancha witnesses of Ex.P.6, who are cited as CW.6 and 7 in the charge sheet.
21. Inspite of issuance of repeated summons, warrants and proclamation, the prosecution has not secured their presence and hence they were dropped. From the prosecution papers, it appears that the complainant has taken interim custody of the gold chain weighing 16.800 grams. But, no where the complainant had stated that her stolen golden chain was weighing 16 grams. There are no documents on record to show that, the IO has recorded 16 grams gold chain from the accused. In Ex.P.6 the weight of 2nd chain is mentioned as 16.800 grams and not 16 grams. Though the PW.1 stated that the police informed her that the accused have stolen her golden chain, there are no materials on record to substantiate her version.
12 C.C.No.13205/2018
22. The description of her chain given by PW.1 in her complaint does not tally with the description mentioned in Ex.P.6 and her re- statement recorded by the police during the time of investigation. During the course of cross examination, the PW.1 stated that the police have written Ex.P.1 complaint and she affixed her LTM to the same. During the course of cross examination, the PW.3 stated that the PW.1 herself brought Ex.P.1 written, which is contrary to the version of PW.1.
23. The PW.1 admits that, she is seeing the accused for the first time in the court. The PW.2 in his chief examination has stated that, he has affixed his signature to Ex.P.3 Mahazar near the house of complainant. During the course of cross examination, he admits that he has signed the same in the police station and he does not know the contents of the same.
24. PW.4 and 5 deposed regarding the arrest of 5 persons, seizure of deadly weapons and 3 motorcycles from Ashok, Naveen, Yeshwanth, Cheluvaraj and Arun. A separate case is registered against them in Crime No.151/2017. Their evidence is not helpful 13 C.C.No.13205/2018 to the case of the prosecution, as no property was recovered from those persons in connection with the present case and they have not stated that the accused No.1 and 2, who are arrested in Crime No.151/2017 are involved in this case.
25. The IO/PW.6 in his evidence has stated that he had been to the burial ground of Arkere along with accused and his staff on 24.08.2017 and recovered 2 gold chains weighing 12 grams and 16 grams respectively, which were found buried therein. In Ex.P.6, it is mentioned that 2 chains weighing 12 grams and 16.800 grams respectively were said to be seized from the burial ground. The weight of the ornament seized through Ex.P.6 does not tally with the weight mentioned by the IO in his evidence.
26. In the present case, there are no materials on record to show that the gold chain found in Ex.P.2 photograph was seized or recovered as per the voluntary statement given by the accused from the burial ground of Arkere. The IO has not explained as to why the complainant mentioned the weight of her stolen chain as 25- 30 grams in Ex.P.1. Because, in her chief examination, the PW.1 14 C.C.No.13205/2018 stated that 3 sovereign/savaran gold chain was stolen from her house. 1 Sovereign is equal to 8 grams. Then how the complainant can say that, the police traced her gold chain, which is seen in Ex.P.2, which is not of 3 sovereign/savaran. On the other hand, it was of 2 savaran. What happened to remaining 1 savaran gold? When 3 savaran gold chain of the complainant was stolen from her house, why 16 grams gold chain returned to her. This fact has not been clarified by the IO.
27. There are no materials on record to show that the IO recovered 2 gold chains as per the voluntary statement given by accused herein from the burial ground of Arkere. Because the mahazar witnesses have not appeared before the court to substantiate the contents of Ex.P.6. In such circumstances, the evidence led by the prosecution witnesses is not sufficient to hold that, the accused have stolen the golden chain of the complainant by entering her house.
28. Moreover, there are no cogent convincing evidence before the court to hold that the ornament described at EX.P.6 are 15 C.C.No.13205/2018 recovered from Arkere burial ground as per the voluntary statement of the accused. Therefore, the evidence led by PW.1 to 6 is no way helpful to the case of the prosecution to hold the accused are guilty of the offences punishable U/Sec. 451 and 380 of IPC. From the evidence of PW.1 to 6, the allegations made against the accused will not be proved. Thus, the prosecution has failed to prove the allegations made against the accused. Accordingly, I answer Point No.1 and 2 in the Negative. Point No.3: For the aforesaid reasons I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused No.1 and 2 are acquitted from the charges of Sec.451 and 380 r/w.34 of IPC.
The bail bonds executed by the accused stand cancelled.
17.09.2022 [TATTANDA DAMAYANTI SOMAYYA] XLI ADDL.METROPOLITAN MAGISTRATE BENGALURU 16 C.C.No.13205/2018 17 C.C.No.13205/2018 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Ramakka PW.2 : Venkatesh PW.3 : N R Nirmala PW.4 : Srinivas M. S PW.5 : Yogananda Kumar K P PW.6 : Bheema Naik
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.1[a] : Signature of PW.3 Ex.P.2 : Photograph Ex.P.3 : Spot Mahazar Ex.P.3[a] : Signature of PW.2 Ex.P.3[b] : Signature of PW.3 Ex.P.4 : FIR Ex.P.4[a] : Signature of PW.3 Ex.P.5 : True copy of seizure Mahazar Ex.P.6 : True copy of Seizure Mahazar Ex.P.6[a] : Signature of PW.6 LIST OF WITNESSES EXAMINED FOR THE ACCUSED : NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL 18 C.C.No.13205/2018 PROPERTY MARKED ON BEHALF OF THE PROSECUTION : NIL .......................................................................................
Dictated on : 16.09.2022
Transcribed on : 17.09.2022
checked on : 17.09.2022
Signed on : 17.09.2022
[TATTANDA DAMAYANTI SOMAYYA]
XLI ADDL.METROPOLITAN MAGISTRATE
BENGALURU
Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS KABC030364272018 Presented on : 21.05.2018 Registered on : 21.05.2018 Decided on : 17.09.2022 Duration : 04y/03m/27days IN THE COURT OF XLI ADDITIONAL METROPOLITAN MAGISTRATE AT : BENGALURU PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA B.A.,LL.B., XLI Addl. Metropolitan Magistrate Bengaluru Dated on this 17th day of September 2022 C.C.No.13205/2018 COMPLAINANT : The State by Beguru Police Station.
-V/s-
ACCUSED : 1. Ashok S/o. Madhu, Aged about 20 years, R/o. No.1997, 24th Cross, Near Inchara Hotel,Puttenahalli, Bengaluru City.
2. Naveen @ Bunty S/o. Siddaraju, Aged about 19 years, R/o. No.18/5, 1st Main, 8th Cross, Chamrajapete, Bengaluru City.2 C.C.No.13205/2018
Date of Commission of offence 22.04.2017 Date of report 22.04.2017 Date of arrest 08.09.2017 the accused appeared through their counsel and got enlarged them on bail Name of the complainant Ramakka Date of commencement of 27.11.2019 recording Evidence Date of closing evidence 29.07.2022 Offences complained of U/Sec. 451, 380 of IPC Opinion of the Judge As per final orders State Represented by Senior Asst. Public Prosecutor Accused Represented by Sri.Gopala Krishna M.C., Advocate.
JUDGMENT [Delivered on 17.09.2022] The P.S.I of Beguru Police Station has filed charge sheet against the accused for the offences punishable U/Sec. 451, 380 of IPC.
2. Brief facts of prosecution case is as follows:
On 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of the complainant, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and stolen 16grams of gold chain 3 C.C.No.13205/2018 from her house. On the basis of written complaint given by Smt.Ramakka/CW.1, the Koramangala police have registered the case in their crime No.46/2017.
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offence punishable U/Sec.451 & 380 of IPC.
4. 08.09.2017 the accused appeared through their counsel and got enlarged them on bail. Sec.207 of Cr.P.C is complied with and charge sheet copy was furnished to the accused.
5. This Court heard both the parties. As there were no grounds to discharge the accused, this Court framed charge for the offences punishable U/Sec. 451, 380 of IPC. The accused did not plead guilty. He claimed to be tried.
6. In order to prove its case, the prosecution got examined 6 witnesses as PW.1 to PW.6 and got marked Ex.P.1 to Ex.P.6 documents. After the closure of the evidence of the prosecution, this court recorded the statements of the accused U/Sec.313 of 4 C.C.No.13205/2018 Cr.P.C wherein, the accused denied the incriminating evidence led against them. They did not choose to lead their defence evidence.
7. I have heard the arguments of Senior APP and Sri. GMC Advocate.
8. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, on 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of CW.1, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and thereby they have committed an offence punishable U/Sec.451 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date, time and place, the accused stolen 16grams of gold chain from the house of CW.1 and thereby they 5 C.C.No.13205/2018 have committed an offence punishable U/Sec.380 of IPC?
3. What order?
9. My answers to the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : As per final orders for the following:
REASONS
Point No.1 & 2: As these two points are interrelated, I take both the points together for common discussion to avoid repetition.
10. The burden is casted on the prosecution to prove that, the accused No.1 and 2 trespassed into the house of CW.1 to commit offence and stolen golden chain weighing 16 grams and thereby they have committed the offences punishable U/Sec.451 & 380 of IPC. In order to prove its case, the prosecution got examined the complainant/CW.1 as PW.1, mahazer witness-CW.3 as PW.2, police officer, who partly investigated the case-CW.14 as PW.3, CW.15 as PW.4, the police official, who arrested the accused-CW.9 as PW.5 and IO- CW.16 as PW.6 and got marked the complaint as 6 C.C.No.13205/2018 Ex.P.1, photograph of the chain as Ex.P.2, spot Mahazar as Ex.P.3, FIR as Ex.P.4, true copy of seizure Mahazar' s Ex.P.5 and 6
12. CW.1/PW.1 - Ramakka in her evidence has stated that, 3 years ago one day her gold chain was stolen. At 2.30p.m after taking bath she was sleeping. She woke up at 4p.m. Somebody has stolen her 3 savaran [sovereign] gold chain. By the time she could come out, the gate was closed and the thieves ran away. She gave Ex.P.1 complaint to the police. Thereafter, the police informed that, her gold chain is traced. At Beguru Police Station, her chain was shown to her. Her chain is seen in Ex.P.2 photograph. She does not know, who has committed theft. However, in the police station, the police told her that, the accused have stolen her chain. She has seen the accused earlier.
13. CW.3/PW.2- Venkatesh in his evidence has stated that, Ex.P.3 mahazer contains his signature, which is marked as Ex.P.3[a]. 2 years ago he has signed Ex.P.3 near the house of the complainant. He has signed the same, where the chain was stolen and where the police conducted mahazer.
7 C.C.No.13205/2018
14. CW.3/PW.4-N.R.Nirmala, in her evidence has stated that, while she was working as PSI of Beguru P.S., on 22.04.2017, Smt.Ramakka gave Ex.P.1 complaint regarding the theft of her golden chain. On the basis of which, she registered Ex.P.4 - FIR. At 3.30 to 4.30 p.m she has drawn Ex.P.3 mahazer at the house of the complainant, it bears her signature, which is marked as Ex.P.4[b].
15. CW.15/PW.4-Srinivas M.S., in his evidence has stated that, while he was working as inspector at Beguru P.S., on 23.08.2017 while he was patrolling, he received an information that, some 5 persons with deadly weapons are assembled at Neelagiri farm near Ganesha temple and making conspiracy to commit dacoity. Hence, at 5.30 p.m he called pancha witnesses CW.4 and 5, his staffs CW.8 to 12 and went near the Neelagiri farm, in their departmental vehicle. They stopped their vehicle at the distance of 150 meters. They learnt that, 5 persons are assembled with deadly weapons and 3 vehicles. In order to confirm the information, CW.9 was sent ahead. He confirmed the conspiracy of committing dacoity. At 6p.m himself and his staff attacked them. Himself and 8 C.C.No.13205/2018 CW.12 caught accused No.1, CW.8 caught accused No.2, CW.11 caught Yashawant, CW.9 caught Cheluvaraju and CW.10 caught Arun. The accused No.2 had a wooden log, Yashawant had an iron rod and Cheluvaraju had ¾ feet knife. From 6 to 7.45 p.m all the weapons and 3 vehicles were seized through Ex.P.5 mahazer. They produced the accused, vehicles, weapon and mahazer before PSI- Bheema Nayak at 8.15p.m and gave report. He has identified the accused, vehicles and weapons, which were seized from them. As he had suspicion regarding the involvement of these accused in other cases, he has handed over the investigation to Bheemanayak.
16. CW.9/PW.5-Yogananda Kumar K.P., in his evidence has stated that, while he was working as head constable at Beguru P.S., on 23.08.2017, their inspector-PW.4 called him. The PW.4 had received an information that, some 5 persons are assembled at Neelagiri farm near Ganesha temple of AECS layout and making conspiracy to commit dacoity. Hence, he called pancha witnesses CW.4 and 5, his staffs and went near the Neelagiri farm in the departmental and private vehicles. They stopped their vehicles at 9 C.C.No.13205/2018 the distance of 150 meters. Some 4-5 persons were talking about dacoity. As per the directions of their inspector, they surrounded them and caught all of them. He caught Cheluvaraju. Three vehicles and deadly weapons were seized from them. Subsequently, they took those persons to the police station along with seized vehicles and deadly weapons. He has identified the accused and the weapons, which were seized from them.
17. CW.16/PW.6 in his evidence has stated that, while he was working as PSI, he arrested the accused. The accused informed them that, they have kept the stolen articles at the burial ground. Hence, he took the accused and his staff to burial ground. The place was shown by the accused. He recovered 12 grams golden chain and 16 grams golden chain by digging the ground. He seized those ornaments by drawing Ex.P.6 mahazer from 1.15a.m to 2.15a.m in the presence of pancha witnesses. He recorded the statements of CW.6 to 13. As per the court orders, he released the ornaments to the complainant. In this regard, he has produced the photograph. He has recorded the statement of the complainant in 10 C.C.No.13205/2018 Cr.No.46/2017. He has identified the accused and ornaments. Subsequently, he filed charge sheet against the accused.
18. On the basis of written complaint given by Ramakka - PW.1, the Beguru police registered this case, investigated the matter and filed charge sheet against the accused. In Ex.P.1, the PW.1 has stated that, on 21.04.2017 she along with her family members had been to Chikkanahalli fest and returned to their home at 5 a.m. As all of them were tired, on 22.04.2017 they slept. At 2 p.m., she got up, opened the door and went to take bath and when she returned from bathroom, she noticed that someone has stolen her golden chain weighing 25-30 grams, which was kept on the table. Accordingly, she gave complaint to the police on the same day at 3 p.m., and requested them to trace her golden chain.
19. From the contents of Ex.P.1, it appears that the PW.1 has not seen the person, who has stolen her golden chain by entering into their house. As per Ex.P.6, the investigation officer drawn seizure mahazar on 24.08.2017 at the burial ground of Arkere village, Devarachikkanahalli road at 1.15 p.m., to 2.15p.m. 11 C.C.No.13205/2018
20. As per the contents of Ex.P.6, the investigating officer recovered 2 golden chains weighing 12 grams and 16.800 grams each, which was buried in the grave yard. But the prosecution has failed to secure the presence of the so called pancha witnesses of Ex.P.6, who are cited as CW.6 and 7 in the charge sheet.
21. Inspite of issuance of repeated summons, warrants and proclamation, the prosecution has not secured their presence and hence they were dropped. From the prosecution papers, it appears that the complainant has taken interim custody of the gold chain weighing 16.800 grams. But, no where the complainant had stated that her stolen golden chain was weighing 16 grams. There are no documents on record to show that, the IO has recorded 16 grams gold chain from the accused. In Ex.P.6 the weight of 2nd chain is mentioned as 16.800 grams and not 16 grams. Though the PW.1 stated that the police informed her that the accused have stolen her golden chain, there are no materials on record to substantiate her version.
12 C.C.No.13205/2018
22. The description of her chain given by PW.1 in her complaint does not tally with the description mentioned in Ex.P.6 and her re- statement recorded by the police during the time of investigation. During the course of cross examination, the PW.1 stated that the police have written Ex.P.1 complaint and she affixed her LTM to the same. During the course of cross examination, the PW.3 stated that the PW.1 herself brought Ex.P.1 written, which is contrary to the version of PW.1.
23. The PW.1 admits that, she is seeing the accused for the first time in the court. The PW.2 in his chief examination has stated that, he has affixed his signature to Ex.P.3 Mahazar near the house of complainant. During the course of cross examination, he admits that he has signed the same in the police station and he does not know the contents of the same.
24. PW.4 and 5 deposed regarding the arrest of 5 persons, seizure of deadly weapons and 3 motorcycles from Ashok, Naveen, Yeshwanth, Cheluvaraj and Arun. A separate case is registered against them in Crime No.151/2017. Their evidence is not helpful 13 C.C.No.13205/2018 to the case of the prosecution, as no property was recovered from those persons in connection with the present case and they have not stated that the accused No.1 and 2, who are arrested in Crime No.151/2017 are involved in this case.
25. The IO/PW.6 in his evidence has stated that he had been to the burial ground of Arkere along with accused and his staff on 24.08.2017 and recovered 2 gold chains weighing 12 grams and 16 grams respectively, which were found buried therein. In Ex.P.6, it is mentioned that 2 chains weighing 12 grams and 16.800 grams respectively were said to be seized from the burial ground. The weight of the ornament seized through Ex.P.6 does not tally with the weight mentioned by the IO in his evidence.
26. In the present case, there are no materials on record to show that the gold chain found in Ex.P.2 photograph was seized or recovered as per the voluntary statement given by the accused from the burial ground of Arkere. The IO has not explained as to why the complainant mentioned the weight of her stolen chain as 25- 30 grams in Ex.P.1. Because, in her chief examination, the PW.1 14 C.C.No.13205/2018 stated that 3 sovereign/savaran gold chain was stolen from her house. 1 Sovereign is equal to 8 grams. Then how the complainant can say that, the police traced her gold chain, which is seen in Ex.P.2, which is not of 3 sovereign/savaran. On the other hand, it was of 2 savaran. What happened to remaining 1 savaran gold? When 3 savaran gold chain of the complainant was stolen from her house, why 16 grams gold chain returned to her. This fact has not been clarified by the IO.
27. There are no materials on record to show that the IO recovered 2 gold chains as per the voluntary statement given by accused herein from the burial ground of Arkere. Because the mahazar witnesses have not appeared before the court to substantiate the contents of Ex.P.6. In such circumstances, the evidence led by the prosecution witnesses is not sufficient to hold that, the accused have stolen the golden chain of the complainant by entering her house.
28. Moreover, there are no cogent convincing evidence before the court to hold that the ornament described at EX.P.6 are 15 C.C.No.13205/2018 recovered from Arkere burial ground as per the voluntary statement of the accused. Therefore, the evidence led by PW.1 to 6 is no way helpful to the case of the prosecution to hold the accused are guilty of the offences punishable U/Sec. 451 and 380 of IPC. From the evidence of PW.1 to 6, the allegations made against the accused will not be proved. Thus, the prosecution has failed to prove the allegations made against the accused. Accordingly, I answer Point No.1 and 2 in the Negative. Point No.3: For the aforesaid reasons I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused No.1 and 2 are acquitted from the charges of Sec.451 and 380 r/w.34 of IPC.
The bail bonds executed by the accused stand cancelled.
17.09.2022 [TATTANDA DAMAYANTI SOMAYYA] XLI ADDL.METROPOLITAN MAGISTRATE BENGALURU 16 C.C.No.13205/2018 17 C.C.No.13205/2018 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Ramakka PW.2 : Venkatesh PW.3 : N R Nirmala PW.4 : Srinivas M. S PW.5 : Yogananda Kumar K P PW.6 : Bheema Naik
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.1[a] : Signature of PW.3 Ex.P.2 : Photograph Ex.P.3 : Spot Mahazar Ex.P.3[a] : Signature of PW.2 Ex.P.3[b] : Signature of PW.3 Ex.P.4 : FIR Ex.P.4[a] : Signature of PW.3 Ex.P.5 : True copy of seizure Mahazar Ex.P.6 : True copy of Seizure Mahazar Ex.P.6[a] : Signature of PW.6 LIST OF WITNESSES EXAMINED FOR THE ACCUSED : NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL 18 C.C.No.13205/2018 PROPERTY MARKED ON BEHALF OF THE PROSECUTION : NIL .......................................................................................
Dictated on : 16.09.2022
Transcribed on : 17.09.2022
checked on : 17.09.2022
Signed on : 17.09.2022
[TATTANDA DAMAYANTI SOMAYYA]
XLI ADDL.METROPOLITAN MAGISTRATE
BENGALURU
Visit ecourts.gov.in for updates or download mobile app "eCourts Services" from Android or iOS KABC030364272018 Presented on : 21.05.2018 Registered on : 21.05.2018 Decided on : 17.09.2022 Duration : 04y/03m/27days IN THE COURT OF XLI ADDITIONAL METROPOLITAN MAGISTRATE AT : BENGALURU PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA B.A.,LL.B., XLI Addl. Metropolitan Magistrate Bengaluru Dated on this 17th day of September 2022 C.C.No.13205/2018 COMPLAINANT : The State by Beguru Police Station.
-V/s-
ACCUSED : 1. Ashok S/o. Madhu, Aged about 20 years, R/o. No.1997, 24th Cross, Near Inchara Hotel,Puttenahalli, Bengaluru City.
2. Naveen @ Bunty S/o. Siddaraju, Aged about 19 years, R/o. No.18/5, 1st Main, 8th Cross, Chamrajapete, Bengaluru City.2 C.C.No.13205/2018
Date of Commission of offence 22.04.2017 Date of report 22.04.2017 Date of arrest 08.09.2017 the accused appeared through their counsel and got enlarged them on bail Name of the complainant Ramakka Date of commencement of 27.11.2019 recording Evidence Date of closing evidence 29.07.2022 Offences complained of U/Sec. 451, 380 of IPC Opinion of the Judge As per final orders State Represented by Senior Asst. Public Prosecutor Accused Represented by Sri.Gopala Krishna M.C., Advocate.
JUDGMENT [Delivered on 17.09.2022] The P.S.I of Beguru Police Station has filed charge sheet against the accused for the offences punishable U/Sec. 451, 380 of IPC.
2. Brief facts of prosecution case is as follows:
On 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of the complainant, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and stolen 16grams of gold chain 3 C.C.No.13205/2018 from her house. On the basis of written complaint given by Smt.Ramakka/CW.1, the Koramangala police have registered the case in their crime No.46/2017.
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offence punishable U/Sec.451 & 380 of IPC.
4. 08.09.2017 the accused appeared through their counsel and got enlarged them on bail. Sec.207 of Cr.P.C is complied with and charge sheet copy was furnished to the accused.
5. This Court heard both the parties. As there were no grounds to discharge the accused, this Court framed charge for the offences punishable U/Sec. 451, 380 of IPC. The accused did not plead guilty. He claimed to be tried.
6. In order to prove its case, the prosecution got examined 6 witnesses as PW.1 to PW.6 and got marked Ex.P.1 to Ex.P.6 documents. After the closure of the evidence of the prosecution, this court recorded the statements of the accused U/Sec.313 of 4 C.C.No.13205/2018 Cr.P.C wherein, the accused denied the incriminating evidence led against them. They did not choose to lead their defence evidence.
7. I have heard the arguments of Senior APP and Sri. GMC Advocate.
8. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, on 22.04.2017 at 2p.m the accused No.1 and 2 with an intention to commit offence trespassed into the house of CW.1, which is situated at # 38, 8th cross, Nyanappana Halli, Chamundeshwari Nagar, Beguru and thereby they have committed an offence punishable U/Sec.451 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date, time and place, the accused stolen 16grams of gold chain from the house of CW.1 and thereby they 5 C.C.No.13205/2018 have committed an offence punishable U/Sec.380 of IPC?
3. What order?
9. My answers to the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : As per final orders for the following:
REASONS
Point No.1 & 2: As these two points are interrelated, I take both the points together for common discussion to avoid repetition.
10. The burden is casted on the prosecution to prove that, the accused No.1 and 2 trespassed into the house of CW.1 to commit offence and stolen golden chain weighing 16 grams and thereby they have committed the offences punishable U/Sec.451 & 380 of IPC. In order to prove its case, the prosecution got examined the complainant/CW.1 as PW.1, mahazer witness-CW.3 as PW.2, police officer, who partly investigated the case-CW.14 as PW.3, CW.15 as PW.4, the police official, who arrested the accused-CW.9 as PW.5 and IO- CW.16 as PW.6 and got marked the complaint as 6 C.C.No.13205/2018 Ex.P.1, photograph of the chain as Ex.P.2, spot Mahazar as Ex.P.3, FIR as Ex.P.4, true copy of seizure Mahazar' s Ex.P.5 and 6
12. CW.1/PW.1 - Ramakka in her evidence has stated that, 3 years ago one day her gold chain was stolen. At 2.30p.m after taking bath she was sleeping. She woke up at 4p.m. Somebody has stolen her 3 savaran [sovereign] gold chain. By the time she could come out, the gate was closed and the thieves ran away. She gave Ex.P.1 complaint to the police. Thereafter, the police informed that, her gold chain is traced. At Beguru Police Station, her chain was shown to her. Her chain is seen in Ex.P.2 photograph. She does not know, who has committed theft. However, in the police station, the police told her that, the accused have stolen her chain. She has seen the accused earlier.
13. CW.3/PW.2- Venkatesh in his evidence has stated that, Ex.P.3 mahazer contains his signature, which is marked as Ex.P.3[a]. 2 years ago he has signed Ex.P.3 near the house of the complainant. He has signed the same, where the chain was stolen and where the police conducted mahazer.
7 C.C.No.13205/2018
14. CW.3/PW.4-N.R.Nirmala, in her evidence has stated that, while she was working as PSI of Beguru P.S., on 22.04.2017, Smt.Ramakka gave Ex.P.1 complaint regarding the theft of her golden chain. On the basis of which, she registered Ex.P.4 - FIR. At 3.30 to 4.30 p.m she has drawn Ex.P.3 mahazer at the house of the complainant, it bears her signature, which is marked as Ex.P.4[b].
15. CW.15/PW.4-Srinivas M.S., in his evidence has stated that, while he was working as inspector at Beguru P.S., on 23.08.2017 while he was patrolling, he received an information that, some 5 persons with deadly weapons are assembled at Neelagiri farm near Ganesha temple and making conspiracy to commit dacoity. Hence, at 5.30 p.m he called pancha witnesses CW.4 and 5, his staffs CW.8 to 12 and went near the Neelagiri farm, in their departmental vehicle. They stopped their vehicle at the distance of 150 meters. They learnt that, 5 persons are assembled with deadly weapons and 3 vehicles. In order to confirm the information, CW.9 was sent ahead. He confirmed the conspiracy of committing dacoity. At 6p.m himself and his staff attacked them. Himself and 8 C.C.No.13205/2018 CW.12 caught accused No.1, CW.8 caught accused No.2, CW.11 caught Yashawant, CW.9 caught Cheluvaraju and CW.10 caught Arun. The accused No.2 had a wooden log, Yashawant had an iron rod and Cheluvaraju had ¾ feet knife. From 6 to 7.45 p.m all the weapons and 3 vehicles were seized through Ex.P.5 mahazer. They produced the accused, vehicles, weapon and mahazer before PSI- Bheema Nayak at 8.15p.m and gave report. He has identified the accused, vehicles and weapons, which were seized from them. As he had suspicion regarding the involvement of these accused in other cases, he has handed over the investigation to Bheemanayak.
16. CW.9/PW.5-Yogananda Kumar K.P., in his evidence has stated that, while he was working as head constable at Beguru P.S., on 23.08.2017, their inspector-PW.4 called him. The PW.4 had received an information that, some 5 persons are assembled at Neelagiri farm near Ganesha temple of AECS layout and making conspiracy to commit dacoity. Hence, he called pancha witnesses CW.4 and 5, his staffs and went near the Neelagiri farm in the departmental and private vehicles. They stopped their vehicles at 9 C.C.No.13205/2018 the distance of 150 meters. Some 4-5 persons were talking about dacoity. As per the directions of their inspector, they surrounded them and caught all of them. He caught Cheluvaraju. Three vehicles and deadly weapons were seized from them. Subsequently, they took those persons to the police station along with seized vehicles and deadly weapons. He has identified the accused and the weapons, which were seized from them.
17. CW.16/PW.6 in his evidence has stated that, while he was working as PSI, he arrested the accused. The accused informed them that, they have kept the stolen articles at the burial ground. Hence, he took the accused and his staff to burial ground. The place was shown by the accused. He recovered 12 grams golden chain and 16 grams golden chain by digging the ground. He seized those ornaments by drawing Ex.P.6 mahazer from 1.15a.m to 2.15a.m in the presence of pancha witnesses. He recorded the statements of CW.6 to 13. As per the court orders, he released the ornaments to the complainant. In this regard, he has produced the photograph. He has recorded the statement of the complainant in 10 C.C.No.13205/2018 Cr.No.46/2017. He has identified the accused and ornaments. Subsequently, he filed charge sheet against the accused.
18. On the basis of written complaint given by Ramakka - PW.1, the Beguru police registered this case, investigated the matter and filed charge sheet against the accused. In Ex.P.1, the PW.1 has stated that, on 21.04.2017 she along with her family members had been to Chikkanahalli fest and returned to their home at 5 a.m. As all of them were tired, on 22.04.2017 they slept. At 2 p.m., she got up, opened the door and went to take bath and when she returned from bathroom, she noticed that someone has stolen her golden chain weighing 25-30 grams, which was kept on the table. Accordingly, she gave complaint to the police on the same day at 3 p.m., and requested them to trace her golden chain.
19. From the contents of Ex.P.1, it appears that the PW.1 has not seen the person, who has stolen her golden chain by entering into their house. As per Ex.P.6, the investigation officer drawn seizure mahazar on 24.08.2017 at the burial ground of Arkere village, Devarachikkanahalli road at 1.15 p.m., to 2.15p.m. 11 C.C.No.13205/2018
20. As per the contents of Ex.P.6, the investigating officer recovered 2 golden chains weighing 12 grams and 16.800 grams each, which was buried in the grave yard. But the prosecution has failed to secure the presence of the so called pancha witnesses of Ex.P.6, who are cited as CW.6 and 7 in the charge sheet.
21. Inspite of issuance of repeated summons, warrants and proclamation, the prosecution has not secured their presence and hence they were dropped. From the prosecution papers, it appears that the complainant has taken interim custody of the gold chain weighing 16.800 grams. But, no where the complainant had stated that her stolen golden chain was weighing 16 grams. There are no documents on record to show that, the IO has recorded 16 grams gold chain from the accused. In Ex.P.6 the weight of 2nd chain is mentioned as 16.800 grams and not 16 grams. Though the PW.1 stated that the police informed her that the accused have stolen her golden chain, there are no materials on record to substantiate her version.
12 C.C.No.13205/2018
22. The description of her chain given by PW.1 in her complaint does not tally with the description mentioned in Ex.P.6 and her re- statement recorded by the police during the time of investigation. During the course of cross examination, the PW.1 stated that the police have written Ex.P.1 complaint and she affixed her LTM to the same. During the course of cross examination, the PW.3 stated that the PW.1 herself brought Ex.P.1 written, which is contrary to the version of PW.1.
23. The PW.1 admits that, she is seeing the accused for the first time in the court. The PW.2 in his chief examination has stated that, he has affixed his signature to Ex.P.3 Mahazar near the house of complainant. During the course of cross examination, he admits that he has signed the same in the police station and he does not know the contents of the same.
24. PW.4 and 5 deposed regarding the arrest of 5 persons, seizure of deadly weapons and 3 motorcycles from Ashok, Naveen, Yeshwanth, Cheluvaraj and Arun. A separate case is registered against them in Crime No.151/2017. Their evidence is not helpful 13 C.C.No.13205/2018 to the case of the prosecution, as no property was recovered from those persons in connection with the present case and they have not stated that the accused No.1 and 2, who are arrested in Crime No.151/2017 are involved in this case.
25. The IO/PW.6 in his evidence has stated that he had been to the burial ground of Arkere along with accused and his staff on 24.08.2017 and recovered 2 gold chains weighing 12 grams and 16 grams respectively, which were found buried therein. In Ex.P.6, it is mentioned that 2 chains weighing 12 grams and 16.800 grams respectively were said to be seized from the burial ground. The weight of the ornament seized through Ex.P.6 does not tally with the weight mentioned by the IO in his evidence.
26. In the present case, there are no materials on record to show that the gold chain found in Ex.P.2 photograph was seized or recovered as per the voluntary statement given by the accused from the burial ground of Arkere. The IO has not explained as to why the complainant mentioned the weight of her stolen chain as 25- 30 grams in Ex.P.1. Because, in her chief examination, the PW.1 14 C.C.No.13205/2018 stated that 3 sovereign/savaran gold chain was stolen from her house. 1 Sovereign is equal to 8 grams. Then how the complainant can say that, the police traced her gold chain, which is seen in Ex.P.2, which is not of 3 sovereign/savaran. On the other hand, it was of 2 savaran. What happened to remaining 1 savaran gold? When 3 savaran gold chain of the complainant was stolen from her house, why 16 grams gold chain returned to her. This fact has not been clarified by the IO.
27. There are no materials on record to show that the IO recovered 2 gold chains as per the voluntary statement given by accused herein from the burial ground of Arkere. Because the mahazar witnesses have not appeared before the court to substantiate the contents of Ex.P.6. In such circumstances, the evidence led by the prosecution witnesses is not sufficient to hold that, the accused have stolen the golden chain of the complainant by entering her house.
28. Moreover, there are no cogent convincing evidence before the court to hold that the ornament described at EX.P.6 are 15 C.C.No.13205/2018 recovered from Arkere burial ground as per the voluntary statement of the accused. Therefore, the evidence led by PW.1 to 6 is no way helpful to the case of the prosecution to hold the accused are guilty of the offences punishable U/Sec. 451 and 380 of IPC. From the evidence of PW.1 to 6, the allegations made against the accused will not be proved. Thus, the prosecution has failed to prove the allegations made against the accused. Accordingly, I answer Point No.1 and 2 in the Negative. Point No.3: For the aforesaid reasons I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused No.1 and 2 are acquitted from the charges of Sec.451 and 380 r/w.34 of IPC.
The bail bonds executed by the accused stand cancelled.
17.09.2022 [TATTANDA DAMAYANTI SOMAYYA] XLI ADDL.METROPOLITAN MAGISTRATE BENGALURU 16 C.C.No.13205/2018 17 C.C.No.13205/2018 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Ramakka PW.2 : Venkatesh PW.3 : N R Nirmala PW.4 : Srinivas M. S PW.5 : Yogananda Kumar K P PW.6 : Bheema Naik
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint Ex.P.1[a] : Signature of PW.3 Ex.P.2 : Photograph Ex.P.3 : Spot Mahazar Ex.P.3[a] : Signature of PW.2 Ex.P.3[b] : Signature of PW.3 Ex.P.4 : FIR Ex.P.4[a] : Signature of PW.3 Ex.P.5 : True copy of seizure Mahazar Ex.P.6 : True copy of Seizure Mahazar Ex.P.6[a] : Signature of PW.6 LIST OF WITNESSES EXAMINED FOR THE ACCUSED : NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL 18 C.C.No.13205/2018 PROPERTY MARKED ON BEHALF OF THE PROSECUTION : NIL .......................................................................................
Dictated on : 16.09.2022
Transcribed on : 17.09.2022
checked on : 17.09.2022
Signed on : 17.09.2022
[TATTANDA DAMAYANTI SOMAYYA]
XLI ADDL.METROPOLITAN MAGISTRATE
BENGALURU
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