Bangalore District Court
State vs Smt. Gangamma @ Latha on 28 December, 2022
1 CC.No.26774/2017
IN THE COURT OF V ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE AT: BANGALORE
Dated this the 26th day of December, 2022
PRESENT
Sri. RAJESH N. HOSAMANE B.Sc. ML.
V ACMM BENGALURU
CC. No.26774/2017
Complainant : State
Rep. PSI Upparpet
Police Station, Bangalore.
(by Sr.A.P.P)
-Vs-
Accused 1. Smt. Gangamma @ Latha
Aged about 27 years,
W/o Late. Gangadhara,
R/at K.B.Cross, Tipatur Taluk,
Tumakuru District.
(Split-up)
2. Smt. Varalakshmi
Aged about 29 years,
W/o Umesh,
R/at Somanahalli Grama & Post,
Madduru Taluk, Mandya
District.
3. Smt. Gayathri
W/o Jagadish,
R/at Papamma's House,
8th Cross, M.S.Building,
Beside Kuridoddi, Tannery Road,
Bangalore.
(By Sri. T.H.M & B.R.S Advocates)
1. Date of of offence 16.09.2017
2 CC.No.26774/2017
2. Name of the complainant Sri. Allauddin
3. Date of closing of 22.07.2022
evidence
4. Offence complained of Sec. 392 of IPC
5. Opinion of the Judge Accused No.2 and 3 not found
guilty
6. Complainant by The Learned Sr.APP .
7. Accused defence by Advocate Sri. T.H.M & B.R.S.
JUDGMENT
The Police Inspector of Upparpet police station submitted charge sheet against accused No.1 to 3 for the offence punishable under Sec. 392 of IPC. The brief facts of the prosecution case is that
2. This is the case of prosecution that on 16.09.2017 at about 03.00 am., accused No.1 to 3 have robbed an amount of Rs.1,800/- from CW.1 Sri. Allauddin who is waiting for the Autorikshaw in KSRTC Bus-stand within the limits of Upparpet police station and thereby accused persons have committed an offence punishable U/sec. 392 of IPC.
3. The complainant has lodged complaint. On the basis of said complaint the case is registered in 3 CC.No.26774/2017 Cr.No.198/2017 and forwarded FIR to this court. After completion of investigation the investigation officer filed charge sheet against the accused No.1 to 3 for the above said offence.
4. Towards compliance U/Sec. 207 of Cr.P.C., copy of charge sheet is supplied to the accused No.1 to 3. Charge is framed, read over and explained to the accused No.1 to 3 in the language known to them. The accused No.1 to 3 pleaded not guilty and claimed to be tried.
5. The prosecution in order to substantiate its case has examined four witnesses out of total Thirteen prosecution witnesses as PW.1 to 4 and got marked the documents as Ex.P1 to Ex.P7 and closed their side. Thereafter accused No.1 is absent to the court inspite of issuance of summons and NBW. Inspite of issuance of notice to surety of accused No.1, the presence of accused No.1 has not been secured. Hence case against accused No.1 is split-up and IO., is directed to file split up charge sheet against accused No.1, office is directed to register separate case against accused No.1. Statement of accused 4 CC.No.26774/2017 No.2 and 3 U/Sec. 313 of Cr.P.C. is recorded. The accused No.2 and 3 denied the incriminating evidence that appeared against them.
6. Based on the above facts and circumstances on record, the following points arisen for the consideration of the court:
1) Whether the prosecution proves beyond all reasonable doubt that on 16.09.2017 at about 03.00 am., accused No.1 to 3 have robbed an amount of Rs.1,800/- from CW.1 Sri. Allauddin who is waiting for the Auto in KSRTC Bus-stand within the limits of Upparpet police station and thereby accused persons have committed an offence punishable U/Sec. 392 of IPC?
2) What order?
7. Heard the arguments of both sides and perused the materials available on record.
8. My findings to the above points are as under:
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
5 CC.No.26774/2017
REASONS
9. Point No.1. The prosecution in order substantiate its case has examined four witnesses as PW.1 to 4 out of total thirteen prosecution witnesses and got marked documents as Ex.P.1 to 7.
10. The complainant who has lodged complaint and set the criminal law into motion has not been examined by prosecution. CW.2 and 3 are the spot mahazar witnesses to Ex.P.4, CW.4 and 5 are the seizure mahazar witnesses to Ex.P.3, CW.6 and 7 are the eye witnesses to the incident. Out of which the prosecution has examined only CW.5 ie., one of the mahazar witness but he turned hostile and not supported the case of prosecution.
11. CW.4/PW.2 Sri. Madhu in his evidence deposed that he has signed Ex.P.3 seizure mahazar in Upparpet police station 5 to 6 years back. He do not know the contents of mahazar, the police have not read over the contents. He further deposed that the police have not seized any amount from accused No.1.
6 CC.No.26774/2017
12. As discussed above CW.1 to 3, 5 to 7 and 9 are important and material witnesses in order to prove the case of prosecution, have not been examined by the prosecution. Inspite of issuance of summons, warrant and proclamation the said witnesses failed to appear before the court. Hence they have been dropped.
13. Later the Lr.Sr.App., filed application U/s 311 of Cr.P.C., for recalling CW.1 to 3, 5 to 7 and 9 since they are material witnesses. The court has issued summons, warrant and proclamation to CW.1 to 3, 5 to 7 and 9 on many hearing dates. But the said witnesses failed to appear before the court. Therefore CW.1 to 3, 5 to 7 and 9 are dropped. The prosecution has failed to secure the presence of CW.1 to 3, 5 to 7 and 9. The court dropped the above said witnesses only after giving sufficient opportunity to the prosecution to secure the presence of witnesses. Inspite of this the prosecution failed to secure the presence of witnesses. Therefore, the above mentioned witnesses are dropped. The prosecution has failed to secure the presence of above said witnesses before the 7 CC.No.26774/2017 court. But at the fag end of the case, the prosecution has the application. The said application is dismissed by holding that, If the application is allowed injustice will be caused to the accused No.2 and 3, who are appearing before the court for the last 5 years. The prosecution only in order to delay the proceedings has filed this application.
14. CW.11/PW.4 Sri. Seetharamaiah Asst. Sub- Inspector of Upparpet police station deposed that on 15.09.2017 he and CW.8 were on patrolling duty in Hoysala from morning 08.00 am., to night 8.00 pm. On 16.09.2017 at about 03.55 am., they received message from control room that one person by name Allauddin aged 35 years is in platform No.18 of KSRTC bus-stand. Hence they went there and enquired the said Allauddin, he stated that three women have stopped him and and they have snatched Rs.1800/- from him. As per the information they started to search for the said accused persons. Three women were standing in platform No.5. The complainant shown them and stated that the said women have robbed him. Therefore they went to caught 8 CC.No.26774/2017 hold the said persons, two women ran away from the spot and they caught hold of one lady by name Latha. She told that the persons who ran away from spot are Varalakshmi and Gayathri. Thereafter they produced said women before CW.4.
15. CW.12/PW.1 Smt. Kyathyayini Alwa PSI, Investigation Officer of this case deposed that on 16.07.2017 she received the complaint from CW.1, registered the case and sent FIR to the court. Thereafter, CW.8 and 11 produced accused No.1, she enquired her. On searching accused No.1 she found Rs.1800/- from the possession of accused No.1 and she seized the said amount in presence of CW.4 and 5 as per seizure mahazar as per Ex.P.3 conducted from 5.10 am., to 5.50 am. Thereafter as per spot shown by CW.1 she went to the spot of incident and carried out spot mahazar from 6.00 am., to 6.45 am., in presence of CW.2 and 3 as per Ex.P.4. Thereafter, CW.9 and 10 produced accused No.2 and 3 and she enquired them and recorded their statement. The eye-witnesses CW.1, 6 and 7 have identified accused 9 CC.No.26774/2017 persons and given their statement. Thereafter she recorded voluntary statement of accused persons as per Ex.P.5 to 7. For further investigation she handed over the file to CW.13.
16. CW.13 T.D.Sateesh Kumar Police Inspector deposed that he received the file from CW.12, since the investigation is already completed he filed charge sheet before the court.
17. As already discussed the prosecution has failed to prove the seizure mahazar Ex.P.3 before the court. Since one of the mahazar witness CW.2 has turned hostile and not supported the case of prosecution and another seizure mahazar witness CW.5 has not been examined by the prosecution. The prosecution has not examined the complainant and other material witnesses in order prove its case. Except official witnesses not a single eye witness deposed in favour of the case of the prosecution. It is burden on the prosecution to prove its case beyond reasonable doubt. In these kind of cases the prosecution has to prove the seizure mahazar beyond reasonable 10 CC.No.26774/2017 doubt. But the prosecution has miserably failed to prove the seizure mahazar under which the Investigation Officer has alleged to be seized an amount of Rs.1800/- from accused No.1. The conduct of the CW.1, who lodged the complaint but failed to appear before the court inspite of issuance of summons, warrant and proclamation clearly shows that he is not interested to proceed with the case. Hence, only on the basis of uncorroborated testimony of official witnesses it is difficult to believe that the accused No. 2 and 3 have committed the offence punishable U/sec. 392 of IPC. Except the official witnesses not a single witness deposed in favour of the case of prosecution. Therefore, the accused No. 2 and 3 are entitled for benefit of doubt. Hence, I answer Point No.1 in the Negative.
18. Point No.2: In the light of finding given on Point No.1, I find that accused No. 2 and 3 are not guilty and in the result, I proceed to pass the following:
ORDER Acting under section 248(1) of Cr.P.C. the accused No. 2 and 3 are hereby acquitted for 11 CC.No.26774/2017 the offence punishable under Section 392 of IPC.
MO.1 ie., Rs.1,800/- is ordered to be confiscated to the state after appeal period is over.
The bail bond executed by accused No.2 and 3 shall remain in force for another 6 months from today as per Sec.437(A) of Cr.P.C.
Office to keep the entire file along with split-up Case.
(Dictated to the stenographer, transcribed by her and corrected by me, then pronounced in the open court, on this 26 th day of December, 2022) (Rajesh N. Hosamane) V ACMM, Bangalore ANNEXURE
1. Witnesses examined by the prosecution.
PW.1 : Smt. Khythyayani Alwa
PW.2 : Smt. Madhu
PW.3 : Sri T.D.Sathish Kumar
PW.4 : Sri. Seetharamaiah
2. List of the documents exhibited for the
prosecution
Ex.P.1 : Complaint
Ex.P.1(a) : Signature of PW.1
12 CC.No.26774/2017
Ex.P.2 : FIR
Ex.P.2(a) : Signature of PW.1
Ex.P.3 : Mahazar
Ex.P.3(a) : Signature of PW.1
Ex.P.3(b) : Signature of pancha witness
Ex.P.3(c) : Signature of pancha witness
Ex.P.4 : Mahazar
Ex.P.4(a) : Signature of PW.1
Ex.P.4(b) : Signature of CW.2
Ex.P.4(c) : Signature of CW.3
Ex.P.5 to 7 : Statements of accused persons
Ex.P.5(a) to : Signature of PW.1
7(a)
Ex.P.5(b) to : Signature of accused persons
7(b)
3. List of the witnesses examined for defence .
-NIL-
4. List of the Documents exhibited for defence.
-NIL-
5. List of the MOs marked in the evidence.
MO.1 : Rs.1800/-
(Rajesh N. Hosamane)
V ACMM, Bangalore.
13 CC.No.26774/2017
(Judgment pronounced in the open court vide separate order) ORDER Acting under section 248(1) of Cr.P.C. the accused No.1 is hereby acquitted for the offence punishable under Section 457, 380, 411 of IPC.
The bail bond executed by accused No.1 shall remain in force for another 6 months from today as per Sec.437(A) of Cr.P.C.
Dtd: 12.12.2022 V ACMM, Bangalore