Bangalore District Court
(Represented By The Learned App) vs They Seized Aforementioned Items From ... on 27 September, 2021
1 CC 24877 of 2015
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 27th DAY OF SEPTEMBER 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 24877 OF 2015
BETWEEN
1. STATE represented by
Vidyaranyapura Police. ....COMPLAINANT
(Represented by the learned APP)
AND
1. Lohith S/o Manjunath,
Aged about 19 years,
R/o Muneshwara Layout,
Renuka Extension, Vadderahalli,
Vidyaranyapura, Bengaluru.
(Case has been split against A1)
2. M.Ashok @ Simha @ Seena S/o Late Marappa,
Aged about 19 years,
R/at 14th Cross, Near Anjenaya Temple,
Muneshwara Block, Palace Guttahalli,
Bengaluru.
....ACCUSED
(A2 Represented by Sri.Gopal., Advocate)
2 CC 24877 of 2015
THE VIDYARANYAPURA POLICE HAVE CHARGE
SHEETED THE ACCUSED FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 454, 380 OF IPC
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 454, 380 of IPC
Charge sheet filed on : 12072015
Trial commenced on : 25072017
Trial completed on : 22092021
Judgment date : 27092021
Total duration : DaysMonths Years
15 02 06
JUDGMENT
1. Case of the prosecution is as under; It is alleged that on 11/05/2015, during day time somebody has entered the house property bearing No.82, in Renuka Colony, at Vadderahalli, situated within Vidyaranyapura police limits, after breaking the lock using an iron rod and took away the golden jeweleries of CW1 together with some cash, laptop, wrist watches, pendrives, mobile phones and I Pad. On 05/06/2015, CW6 to 9 have arrested these accused. They seized aforementioned items from them 3 CC 24877 of 2015 in the presence of CW4 and PW1. PF also has been submitted to the court regarding the same.
2. This court took the cognizance of the offences punishable under sections 380, 454 of IPC. As per the directions of the court, CC.No.24877 of 2015 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
3. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to the accused in Kannada language in which they claim to be conversant with. But they did not pleaded the guilt alleged and claimed then, to be tried. Therefore, this court issued summons to the witnesses.
4. In the course of trial, the prosecution failed to examine CW2 to 4, accordingly after considering 4 CC 24877 of 2015 the failure of the prosecution to secure CW2 to 4 for examination, this court vide orders dated 15/03/2019 has dropped CW2 to 4 and has further ordered for issuance of summons to remaining CW5 to 11. But subsequently also, inspite of issuance of proclamation, the prosecution did not secure the presence of CW11. Accordingly CW11 also has been dropped. After recording the statement of accused no.2 under section 313 of Cr.P.C, this matter came to be posted for arguments, as the case against A1 has been split.
5. Heard the learned Sr.APP.
6. Heard the learned counsel for accused.
7. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, on 11/05/2015, the accused has committed an act of lurking house trespass after breaking the lock of backdoor of the house No.82, in Renuka Colony, by using an iron rod when nobody was there in the said house and he shall 5 CC 24877 of 2015 be punished for an offence punishable under section 454 of IPC ?
2) Whether the prosecution proves beyond reasonable doubt that on the aforementioned date, time and place, accused has committed the theft of aforementioned items from the house property bearing No.82 aforementioned, i.e., a dwelling house and those thefted items have been seized at the instance of accused on 05/06/2015 when CW6 to 9 have arrested them, thereby he is guilty of an offence punishable under section 380 of IPC ?
3) what order ?
8. Above points have been answered as under; Point no.01 and 2 : In the Negative Point no.03 : As per final orders for the following reasons...;
REASONS The prosecution is duty bound to prove the guilt alleged as above against accused No.2. The burden to prove the aspects stated herein above against the accused No.2 , heavily lies upon the prosecution. 6 CC 24877 of 2015 The points aforementioned have been taken up for discussion together.
9. Points Nos.01 and 2; As could be seen from the record, CW5 has been examined as PW1. He deposed nothing in favor of the prosecution, accordingly he has been considered hostile to the case of the prosecution and even during his cross examination, he denied the suggestion of the learned Senior APP that the IO has seized aforementioned articles at the instance of accused and did draw a mahazar etc. However nothing has been elicited by the learned Senior APP during the crossexamination.
10. As could be seen from the record, CW1 has been reported dead. Further CW6 has been examined as PW2 and he is an ASI. He deposed that he was deputed on 05/06/2015 for the purpose of ascertaining the accused and to arrest them and also to seize the items. He deposed further that when he 7 CC 24877 of 2015 was in the said duty on the said day, at about 1.50 p.m., he arrested the accused No.1 on suspicion, when he was there in Malleshwaram area in a parking lot and he failed to furnish them the documents with respect to the vehicle bearing Reg.No.KA02EV4018. They seized the said vehicle at his instance and accordingly he came to be produced before CW9. During his cross examination nothing much has been done by the learned advocate appearing for accused except denying his evidence by way of suggestions. However his suggestions inturn came to be denied.
11. CW10 has been examined as PW3. He deposed that he received the written information submitted by CW1, when he was the SHO of said station and he registered the information and forwarded FIR to the court and to his superior officers. He further deposed that in the presence of concerned witnesses for mahazar, he did draw a mahazarEx.P6 and thereafter he handed over the file for further 8 CC 24877 of 2015 investigation to CW11. As could be seen from his crossexamination as well learned advocate appearing for accused has denied his evidence by way of his suggestions. Apart from that he did not elicit anything.
12. CW9 has been examined as PW4. He deposed that on 05/06/2015, CW6 to 8 have produced the accused and motorvehicle aforesaid. The said vehicle was the subject matter in crime No.148/2015. He enquired accused and recorded self serving statements of accused. Thereafter he did draw a seizure mahazar in the presence of witnesses and seized the aforementioned articles like laptop, Mobiles, I Pad, I phone, Pen drives, watches etc. He further deposed that on the basis of territorial jurisdiction, he handed over the file to Vidyaranyapura Police. As could be seen from his cross examination, learned Senior App has denied the evidence of the said witness by way of suggestions. 9 CC 24877 of 2015 Apart from that nothing much has been elicited from him.
13. Apart from the documents, such as seizure mahazar, alleged statement of PW1, report, first information, FIR, Spot Mahazar, Statements of concerned witnesses, nothing is available on record, which would incriminate the accused. Moreover aforementioned witnesses have been dropped. Inspite of that there has been no attempt by the prosecution to examine the witnesses aforementioned. Though the witness, who according to the prosecution, has witnessed the seizure panchanama, has not supported the case at all and as aforesaid he has been considered hostile to the case of the prosecution and rest are the witnesses, who are policemen.
14. The registration of FIR and arrest of accused can be believed, but, although the PW4 has deposed that he 10 CC 24877 of 2015 has returned those valuable articles to the concerned, based on the order of the court, etc, still those things in the considered opinion of this court do not incriminate accused. There is nothing on record to believe that those valuable articles came to be seized at the instance of accused only. When such being the case, mere arrest of accused, that too somewhere else does not suffice to say that the prosecution has been succesful in establishing the case, based on such arrest only. The arrest by itself does not incriminate the accused. Hence, in view of absence of the evidence which show that the doors were opened at the instance of accused in the said way at the said house and in view of absence of evidence regarding the theft, against accused, the case of the prosecution fails. Hence aforementioned points are answered in the Negative. Resultantly the following. Before that, for the purpose of clarity Sections 454 and 380 of IPC are extracted herein below;
11 CC 24877 of 2015 Section 380 in The Indian Penal Code
380. Theft in dwelling house, etc.-- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Section 454 in The Indian Penal Code
454. Lurking housetrespass or house breaking in order to commit offence punishable with imprisonment.--Whoever commits lurking housetrespass or house breaking, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to ten years.
15. Point No.3 : The facts and circumstances of the matter warrant the following orders ; 12 CC 24877 of 2015 ORDERS Invoking section 248(1) of Cr.P.C, accused No.2 is hereby acquitted of the offences punishable U/s. 454, 380 of IPC.
The bail bond and surety bond of accused No.2 will be in force, till completion of appeal period, thereafter, they shall stand cancelled.
The properties stated in this case have been reportedly handedover to the concerned authoritative person from the police station itself. Therefore, the interim custody upon those properties authorized by the IO is hereby made absolute. Furher the IO shall submit document to the court regarding the same forthwith. (Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 27092021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 13 CC 24877 of 2015 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Moula PW.2 : P.S.Prathap PW.3 : G.Vijay Kumar PW.4 : H.B.Mahadevaiah List of documents marked on behalf of the Prosecution: Ex.P.1 : Seizure Mahazar Ex.P.1(a) : Signature of PW1 Ex.P.2 : Statement of PW1 Ex.P.3 : Report Ex.P.4 : Complaint Ex.P.4(a) : Signature of complainant Ex.P.5 : FIR Ex.P.6 : Spot Mahazar Ex.P.6(a) : Signature of PW3 Ex.P.7 : Voluntary statement of A1 Ex.p7(a) : Portion of Voluntary statement of A1 Ex.P.8 : Voluntary statement of A2 Ex.P8(a) : Portion of Voluntary statement of A2 Ex.P9 : Photograph List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL S.S.BHARATH XLI (41ST) ACMM, BENGALURU;