Bangalore District Court
State By K.P.Agrahara vs Ganesh.K on 13 March, 2023
KABC030873822021 IP
NAIK
Digitally signed
IN THE COURT OF THE 30 ADDL.CHIEF by I P NAIK
TH
METROPOLITAN MAGISTRATE, BENGALURU Date:
2023.03.13
Dated: This the 13th day of March, 2023 15:26:55 +0530
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 33170/2021
Date of Offence 27.04.2021
Complainant State by K.P.Agrahara, Police Station.
V/s.
Accused Ganesh.K
S/o.Late Krishnamurthy,
Aged about 35 years,
R/at.No.1505, 5th Cross,
4th Main Road, next to Rathnagiri
Park, Govindaraja nagar,
Bengaluru City.
Offences U/s.457, 380 of IPC.
Plea Recorded on 28.04.2022 and accused
person Pleaded not guilty.
313 Statement recorded on: 06.03.2023
2 C.C.No.33170/2021
Final Oder Accused is acquitted
Date of Order 13-03-2023
*****
JUDGMENT
The PI of K.P.Agrahara, Police Station has filed charge sheet against accused persons for the offences punishable U/s.454, 380 of IPC.
2. The brief facts of the prosecution case are as follows:
It is alleged that, after the death of her husband CW-1 left her husband house by closing the house situated at No.26, 14th Main Road, 6th Cross, Bhuvaneshwarinagar, K.P Agrahara, within the territorial limits of KP Agrahara, Police Station and was residing at her mothers house, observing the said fact, accused has tress passed into the house of CW-1 with an intention to commit crime has broke the main door with iron rod and has stolen 70gms of golden ornaments without the consent of the CW1 with dishonest intention. Hence, accused is charge sheeted.3 C.C.No.33170/2021
3. In this regard, CW-1 lodged complaint before the CW-12 PI. Sadananda. Based on the that, he has registered the case in Cr.No.67/2021 and forwarded the FIR to this court. He rushed to the spot and conducted SO mahazar and recorded the statement of witnesses CW2 and CW3, further IO ie., CW12 deputed CW-09 to CW-11 for search and caught hold of the accused. Based on the credible information accused was caught hold by hem on 06.08.2021 and produced CW-12 with report in crime No 125/2021. Accused arrested and interrogated. At that time, accused has given voluntarily statement IO summoned witnesses by issuing notice. Accused produced one Pair of ear rings, same are recovered by drawing mahazar and reported to this court under P.F.No.104/2021. Thereafter, IO recorded the statement of witnesses in respect of accused in identification.
4. On 07.08.2021, accused produced before this court and taken to police custody for a period of 8 days. During interrogation accused admitted that, article used for break opened the doors is kept in this house if he is escorted, he will produce the same. In 4 C.C.No.33170/2021 this regard, he has given statement before the IO. Accordingly, accused escorted with staff and panchas and steel rod is seized by drawing mahazar and reported to this court under P.F.No.105/2021. Further, Manikanta and Shivagamy are produced ornaments received from the accused, same are seized by drawing mahazar and recorded the their statement, and the same is produced before this court. As per the court orders, IO released the ornaments pertaining to CW1. After completing other formalities, IO submitted charge sheet against the accused.
5. During crime stage, accused is enlarged on regular bail. By considering the charge sheet and other materials, this court taken cognizance and ordered to register the case against the accused in register-III.
6. The charge is framed, contents of charge have been read over and explained to the accused persons in the language known to them, they abjured the guilt and claimed to be tried, hence, the prosecution is called upon to prove its case. 5 C.C.No.33170/2021
7. In order to prove the guilt of the accused person, prosecution has examined five witnesses as PW-1 to P-5 and five documents are got marked as Ex.P.1 to P.-5. M.O-1 is got marked. In order to secure other remaining witnesses, this court issued Summons, NBW and Proclamation. But the concerned police failed to secure these witnesses. Finally this court opined that, there is no meaning in reissuing of Summons, NBW and Proclamation. Accordingly, prayer of learned Sr.APP is rejected and other remaining witnesses are dropped.
8. Thereafter statement of accused recorded U/s.313 of Cr.P.C, Accused denied the incriminating evidence, and has not chosen to lead evidence and no documents produced on their behalf.
9. Heard both the side and perused the material evidence on record.
6 C.C.No.33170/2021
10. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, House bearing.
No.26, belonged to PW-2 Smt. Shalini situated at 6th Cross, 14th main road, Bhavaneshwari, within the territorial limits of K.P Agrahara Police Station, accused want to visited the house of her mother on 27/04/2021 to 16/05/2021 at that time, accused has opened the door by using steel rod and thereby committed an offence punishable under Section 454 of IPC, within my cognizance.?
2. Further, you accused person on the aforesaid date, time, place and under aforesaid circumstances, stolen the golden ornaments without the consent of the PW-
2 with dishonest intention and thereby committed an offence punishable under Section 380 of the IPC, within my cognizance?.
7 C.C.No.33170/2021
3.. What order.?
11. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : As per final order
......................... for the following.., REASONS
12. Point No.1 & 2:- In this case, the learned Sr.APP has urged that, prosecution successfully proved the guilt of the accused person based on the circumstantial evidence. Hence, prays to convict the accused in accordance with law.
13. PW-2 Smt.Shalini, stated that, on 27/04/2021 went to her mother house and return back to matrimonial house on 16/05/2021, some unknown persons break opened the door of her house and stolen a golden ornaments worth of Rs,2.80.000/-. In this regard, she has lodged complaint, after that, police came to the spot and conducted Somahazar. Further, she deposed that, after 8 C.C.No.33170/2021 lapse of one month, K.P Agrahara Police have called her for identification of the ornaments. Further, she has identifed the accused, who is her neighbour.
14. PW-3 Nagaraj is witnesses to SO mahazar, he state that, some unknown persons committed theft in the house of PW1. In this regard, police came to the spot and conducted SO mahazar. During cross-examination he has denied the suggestions.
15. PW5-PI deposed that on 17/05/2021, at about 01.00pm he has received complaint Ex.P.1 from the PW1 and registered the case in Cr.No.67/2021 and forwarded the FIR Ex.P-8 to the court. Further, he stated that on same day he rushed to the spot and conducted SO mahazar. Ex.P-3 in the presence of witnesses. During cross-examination the learned counsel for the accused denied whatever the investigation conducted by the PW-5.
16. By considering the oral testimony of PW-2, P-3 & PW-5 the articles show in the Ex.P-4 is stolen by some unknown person. 9 C.C.No.33170/2021
17. PW-1 HC Manjunath state that, on 6.8.2021, PI- Sadananda has deputed him along with CW-9 and CW-10 for search and caught hold of the accused persons. Based on the credible information, accused has caught hold at Man pasand jewellary shop, situated at Manjunatha Nagar and caught hold them and interrogated the accused got ear rings. He has not given satisfactory answer. Hence, they have caught hold and produced before the IO along with the report.
18. PW-5 PI Sadananda, deposed that, on 6.8.2021 accused produced before him thereafter, he has arrested and interrogated and in his voluntary statement accused admitted that, he has stolen ear rings same are seized by drawing seizer mahazar and seized articles reported to this court.
19. PW-5 stated further that, after accused remanded to Police custody, during interrogation he has voluntary statement and he has stolen articles from the house of PW-2 and further, he 10 C.C.No.33170/2021 voluntarily stated that, to break opened the door by using steel rod same is kept in his house. In this regard, accused has given voluntary statement. Accordingly, accused is escorted to his house accused produced same, same is seized by drawing mahazar in the presence of witnesses.
20. PW-4 Chethan Kumar who is independent witnesses he deposed that, police have given Notice to him and escorted to house and steel rod at that time, accused was present.
21. According to recitals Ex.P-7 IO seized M.O-1 rod, in the house of accused bearing.No.1505, situated at 4 th Main, 5th Cross, Govindaraja Nagar, Bengaluru. The testimony of PW-4 is totally contrary recitials of Ex.P-7.
22. IO further stated that, based on the voluntary statement of accused, he has given notice to mother and friend of accused, they have produced the articles received from the accused, same are seized by drawing siezer mahazar.
11 C.C.No.33170/2021
23. By considering the entire facts of the case, prosecution relied on the circumstantial evidence to prove the guilt of the accused persons. In this regard, I have relied on the decision of the Hon'ble Apex Court in AIR 1984 SC 1622 Sharad Biradhi chand Sarda Vs. state of Maharashtra If the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and must be or should be proved' as was held by this court in Shivaji Saheb Rao Bodade Vs. State of Maharashtra (AIR 1972 SC 2622) where the following observaions were made:
"certainly it is a primary principle that the accused must be and not merrely may be gu8ilty before a court can convict and the mental distance between 'may b' and ' must be' is long and divided value conjectures from score conclusions.
2: the facts so established should be consistent only with hypothesis of the guilt of the accused, that it is to say, they 12 C.C.No.33170/2021 should not be explainable on any other hypothesis except that the accused is guilty.
3. the circumstances should be of a conclusive nature and tendency.
4. they should exclude very possible hypothesis except the one to be proved and
5. these must be a chain of evidence so complete as not to leave any reasonable round for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
24. By following the golden principles laid down by their lordship, relying on the circumstantial evidence I have carefully examined the deposition of prosecution witnesses. In this regard, though the prosecution successfully proved the theft of the articles from the house of PW-2.
25. At the same time, prosecution failed to prove the two important facts to complete chain of circumstantial evidence, one is seizure of articles, based on the voluntary statement of the accused, another one is seizure of the articles from mother and friend of accused. These two facts are not proved as per the law laid down by 13 C.C.No.33170/2021 the Hon'ble Apex Court in Ramananda Vs. State of U.P {(2022 SCC Online SC 1396}. Further, the prosecution not proved the seizure of the mahazar as per the law laid down by the Honb'le Surpeme Court of India in Murali Vs. State of Rajasthan {(2009) 9 SCC 417} by considering all these aspects, I am of the opinion that, prosecution failed to prove the guilt of the accused persons beyond reasonable doubt. By following the principles laid downby the Hon'ble Apex Court as cited above. Therefore, it is held that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, Point No.1 & 2 is answered in the Negative.
26. Point No.3: In view of the Negative findings on the above point No.1 & 2, I proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.457, 380 of IPC.14 C.C.No.33170/2021
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437-A of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 13th day of March, 2023).
(I.P Naik.) 30 A.C.M.M., B'lore.
th ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Manjunath
P.W. 2 : Smt. Shalini
P.W. 3 : Nagaraj
P.W. 4 : Chethan Kumar
P.W. 5 : Sadananda
2. LIST OF THE DOCUMENTS MARKED FOR THE
PROSECUTION:
Ex.P.1 : Report
Ex.P.2 : Complaint
Ex.P.3 : Mahazar
Ex.P.4 : Photo
Ex.P.5 ; Notice
15 C.C.No.33170/2021
Ex.P.6 : Notice
Ex.P.7 : Mahazar
Ex.P.8 : Photo
Ex.P.9 : FIR
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE:
NIL
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION M.O-1 : Steel Rod (I.P.Naik) 30th Addl.C.M.M., B'lore.
16 C.C.No.33170/2021Judgment pronounced in Open Court vide separate:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.457, 380 of IPC.
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437-A of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(I.P.Naik) 30 th Addl.C.M.M., B'lore.17 C.C.No.33170/2021