Bangalore District Court
State By; vs In 1. Prabhakar @ Sakkare on 12 January, 2017
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 12th day of January 2017
:PRESENT:
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.807/2016
AND
SESSION CASE No.1424/2016
COMPLAINANT : State By;
Cottonpet Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED IN 1. Prabhakar @ Sakkare
S.C.807/16: S/o Govindaraju,
Aged about 23 years,
Residing at No.32, 4th Cross,
Bhakshi Garden, Cottonpet,
Bengaluru.
ACCUSED IN 2. Srinath @ Seena
S.C.807/16: S/o Late.Shanmugam,
Aged about 25 years,
Residing at No.111,
7th Cross, Bhangi Colony,
Mysore Road, Cottonpet, Bengaluru.
ACCUSED IN 3. Shiva S/o Swamy Kannan
S.C.1424/16: Aged about 34 years,
Residing at No.11/1,
1st Main, 1st Cross,
2 S.C.807/2016 &
S.C.1424/2016
Swasthik Road, Shanthinagar,
Bengaluru.
ACCUSED IN 4. Raju S/o Lakshmana,
S.C.807/16 Aged about 22 years,
Residing at No.15,
Beside Doddamma Chikkamma Temple,
Cart Stand Road,
Jolly Mohalla, Cottopet,
Bengaluru.
ACCUSED IN 5. Chetu S/o Late.Armugam,
S.C.807/16: Aged about 20 years,
Residing at No.300,
Peer Boundary,
Cottonpet, Bengaluru.
(A-1 by Sri.VNK, Accused No.2, 4, 5 by
Sri.Y.G., Accused No.3 by Sri.N.R.,
Advocate)
1. Date of commission of offence 08-10-2015
2. Date of report of occurrence 08-10-2015
3. Date of commencement of evidence 03-12-2016
4. Date of closing of evidence 03-12-2016
5. Name of the complainant Smt.Soumya N
6. Offences complained of Sec.399, 402 I.P.C.
7. Opinion of the Judge As per the final order
8. Order of sentence Offences not proved
3 S.C.807/2016 &
S.C.1424/2016
COMMON JUDGMENT
These cases are committed by the XLV Chief
Metropolitan Magistrate Court, Bangalore City, to the Hon'ble
Prl. City Civil and Sessions Court, Bangalore on the ground
that offences punishable under Sec.399, 402 of IPC are
exclusively triable by the court of Sessions.
2. The Police Sub-Inspector of Cottonpet Police
Station has filed charge-sheet against accused for the offences
under Sec.399, 402 I.P.C. arising out of Cottonpet Police
Station in Crime No.385/2015.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, CW.1 who is the
Police Sub-Inspector of Cottonpet Police Station on 07-10-
2015 in the night hours was patrolling along with her officials
and on 08-10-2015 at 3.30 a.m., she received a credible
information stating that, within the limits of her Police Station
near Veterinary Hospital compound 4-5 persons assembled
armed with deadly weapons and making preparation to
commit dacoity of the commuters. Thereafter, CW.1 along
with her officials came near the CCB junction, there CW.1
4 S.C.807/2016 &
S.C.1424/2016
called CW.2 and 3-Panchas and informed the information
received by her to them and thereafter CW.1 along with her
officials and Panchas came near the spot and watched the spot
at 4.00 a.m., on the spot 5 persons assembled armed with
deadly weapons and talking among themselves. CW.1 has
confirmed the information as correct thereafter CW.1 along
with his officials have conducted raid and catch-hold 5
persons, CW.1 enquired the said persons, they have stated
their names and addresses, CW.1 has drawn Mahazar and
seized the deadly weapons in presence of Panchas, thereafter
CW.1 has brought the said persons along with the properties
seized to the Police Station, prepared Report and submitted
the Report before CW.9 and produced the said persons and
properties before CW.9.
3(a) CW.9 who is the Police Sub-Inspector of Cottonpet
Police Station on 08-05-2015 at 05.15 a.m. when in the Police
Station, CW.1 came to the Police Station along with accused
persons and properties seized from them and submitted
Report and produced the accused and properties before CW.9.
CW.9 on the basis of the Report submitted by CW.1,
5 S.C.807/2016 &
S.C.1424/2016
registered the case in Crime No.385/2015 and submitted the
FIR to the court. CW.9 has arrested accused No.1 to 5,
enquired them and recorded their voluntary statements.
CW.9 has subjected the properties under P.F.142/2015, on the
same day CW.9 has recorded the statements of CW.2 to 8,
thereafter as the investigation is completed CW.9 has filed the
charge-sheet.
4. After filing the charge-sheet by the Investigating
Officer, XLV Addl.Chief Metropolitan Magistrate Court,
Bengaluru has taken cognizance and registered the case in
C.C.51/2016. Thereafter, XI Addl. City Metropolitan
Magistrate Court, Bengaluru secured the presence of accused,
furnished charge-sheet copies to accused as contemplated
under Sec.207 of Cr.P.C. and committed the case against
accused before the Hon'ble Prl. City Civil and Sessions Court,
Bangalore and that was registered as S.C.807/2016 and made
over to this court as the offences alleged against the accused
under Sec.399, 402 of I.P.C. are exclusively triable by the
Sessions Court.
6 S.C.807/2016 &
S.C.1424/2016
5. After receipt of the papers this court has secured
presence of accused No.1, 2, 4 and 5, even though NBW's
came to be issued on accused No.3 on several occasions, the
same returned unexecuted and as delay is causing due to non-
execution of NBW's, case against accused No.3 came to be
splitted on 03-09-2016 and office is directed to call separate
charge-sheet against accused No.3 and register separate case
against accused No.3. Thereafter, heard the counsel for
accused No.1, 2, 4 and 5 and learned Public Prosecutor for
state on charge to be framed. Charge under Sec.228 of Cr.P.C.
framed against the accused for the offences under Sec.399,
402 of I.P.C. and read-over to the accused in the open court
and accused pleaded not guilty and claim to be tried.
6. As per the order of this court in S.C.807/2016
dated 03-09-2016, the office has called separate charge-sheet
against accused No.3 from the Investigating Officer and
registered separate case in S.C.1424/2016 and made over the
same before this court. After receipt of the records, this court
has secured the presence of accused No.3. Heard the counsel
for accused No.3 and learned Public Prosecutor for state on
7 S.C.807/2016 &
S.C.1424/2016
charge to be framed. Charge under Sec.228 of Cr.P.C. framed
against the accused No.3 for the offences under Sec.399, 402
of I.P.C. and read-over to the accused in the open court and
accused pleaded not guilty and claim to be tried.
7. As S.C.807/2016 and S.C.1424/2016 are arising
out of Cottonpet Police Station Crime No.385/2015, both cases
are clubbed and it is ordered that common evidence is to be
recorded in S.C.807/2016 and dispose off both the cases by
this common judgment.
8. Prosecution in order to prove the guilt of the
accused beyond all reasonable doubt in all examined 1 witness
as PW.1, got marked 2 documents as per Ex.P1 and Ex.P2,
and marked the 5 material objects as MO.1 to 5. Thereafter,
prosecution has closed its side. Accused are examined under
Sec.313 Cr.P.C. to enable them to explain the incriminating
circumstances appearing against them in the prosecution
evidence. Accused denied the statement in toto and further
stated that accused have no defence evidence and they have
nothing to say, thereafter the case is posted for arguments.
8 S.C.807/2016 &
S.C.1424/2016
9. Heard the arguments advanced by the learned
counsel for the accused and learned Public Prosecutor for state
in length.
10. The points that arise for my determination are:
1) Whether the prosecution proves beyond
reasonable doubt that accused No.1 to 5 on 08-
10-2015 at 3.30 a.m., within the limits of
Cottonpet Police Station, at Mysore Road in the
Veterinary Hospital compound open space,
formed unlawful assembly by holding deadly
weapons and making preparation to commit
dacoity of the commuters and thereby accused
have committed the offence under Sec.399 of
IPC?
2) Whether the prosecution proves beyond
reasonable doubt that accused No.1 to 5, on the
above said date, time and place, assembled
armed with deadly weapons in order to commit
dacoity and thereby committed the offence
punishable under Sec.402 of IPC?
3) What order?
11. My findings on the above points are as follows:
9 S.C.807/2016 &
S.C.1424/2016
Point No.1 & 2 : In the Negative;
Point No.3 : As per final order
For the following;
REASONS
12. POINT No.1 AND 2: The above points are
connected, hence they are taken up for discussion together.
13. It is the case of the prosecution that the accused
have committed the offences punishable under Sec.399, 402 of
I.P.C. and in order to prove the guilt of the accused the
prosecution in all examined 1 witness as PW.1-Smt.Soumya N-
complainant.
14. The prosecution in order to prove guilt of the
accused in all got marked 2 documents and they are;
Ex.P1-Spot cum Seizure Mahazar, Ex.P2-Complaint.
15. The prosecution in order to prove guilt of the
accused in all got marked 5 Material Objects and they are;
MO.1-Button Knife, MO.2 to 4-Wooden Club, MO.5-Chilly
powder pocket.
16. Prosecution in order to prove the guilt of the
accused beyond reasonable doubt examined PW.1 and PW.1 is
10 S.C.807/2016 &
S.C.1424/2016
the complainant and she in her evidence stated that in the
year 2016 she was working as Police Sub-Inspector at
Cottonpet Police Station. On 07-10-2015 she along with her
officials were patrolling in the night and on 08-10-2015 at
about 3.30 a.m. when they were patrolling, she received
credible information stating that within the limits of her Police
Station near Veterinary Hospital Compound, 4-5 persons
assembled armed with deadly weapons and making
preparation to commit dacoity. Thereafter, she and her
officials came near the CCB Junction, there she called CW.2
and 3-Panchas and informed the information received by her
to them. Thereafter she, her officials and Panchas came ner
the spot and observed the spot, on the spot 5 persons were
assembled armed with deadly weapons and talking among
themselves, she has confirmed the information received as
correct, thereafter they have conducted raid and catch-hold 5
persons. She enquired the said persons, one person told his
name as Sakre and he was possessing one button Knife, the
person catch-hold by CW.4 told his name as Srinivas and he
was possessing one Club, the third person told his name as
11 S.C.807/2016 &
S.C.1424/2016
Shivu and he was possessing one Club, the fourth person told
his name as Raju and he was also possessing one Club, the
fifth person told his name as Chethu and he was possessing
chilly powder pocket. They told her that they assembled there
for committing dacoity. Thereafter, she has drawn the
Mahazar in presence of Panchas and seized the deadly
weapons, thereafter she has brought the said persons along
with the properties seized to the Police Station, prepared
report and produced the report, the said persons and
properties seized before CW.9. Further this witness has
identified the properties seized by her as MO.1 to 5. This
witness has been cross-examined by the counsel for the
accused and in the cross-examination this witness has
admitted that MO.1 is not a button knife. Further this witness
has admitted that she cannot tell whether signatures of the
Panchas on the chits affixed to MO.1 to 5 and signature of
Panchas on the Mahazar are not tallying.
17. It is the specific case of the accused during the
cross-examination of prosecution witness that they have not
committed any offences as alleged against them, they have
12 S.C.807/2016 &
S.C.1424/2016
been brought for enquiry in other cases and when their
relatives have objected for their illegal detention, the Police
have concocted a false story and got involved them in the
present case. In the present case, complainant herself has
admitted that MO.1 is not a button knife. Complaint, Mahazar
and P.F. discloses that Knife seized is a button knife, whereas
MO.1 is not a button knife and the said fact has been admitted
by CW.1. Further CW.1 has admitted that she cannot say
whether the signature of Panchas on the chits affixed to MO.1,
2 and the signature of Panchas on Ex.P2-Mahazar are not
tallying with each other. In the present case, prosecution has
not examined the Panchas who alleged to have been
accompanied for raid. So only evidence of PW.1 will not prove
the guilt of accused beyond reasonable doubt. The learned
counsel for the accused has relied upon the citation reported in
AIR 1979 Supreme Court 1412 in Chaturi Yadav and others Vs.
State of Bihar, wherein it has been held as follows;
"Penal Code (45 of 1860), Ss.399
and 402 - Conviction under - legality.
Decision of Patna High Court, Reversed.
Prosecution evidence merely
showing that eight persons including the
13 S.C.807/2016 &
S.C.1424/2016
appellant were found in the school
premises which was quite close to the
market at 1 a.m. and that some of them
were armed with guns, some had
cartridges and others ran away - Held
that the conviction under Ss.399 and
402, was not sustainable - The mere fact
that these persons were found at 1 a.m.
did not by itself prove that they had
assembled for the purpose of committing
dacoity or for making preparations to
accomplish that object - The possibility
that the appellants might have collected
for the purpose of murdering somebody
or committing some other offence could
not be safely eliminated. Decision of
Patna High Court, Reversed."
18. From the principles laid down in the aforesaid
rulings of our own Hon'ble Apex Court, it is clear that only on
assembling the persons with deadly weapons itself will not
prove that they have committed offence under Sec.399, 402 of
IPC. The evidence of PW.1, Ex.P1 and 2, MO.1 to 5 will not
prove the guilt of the accused beyond reasonable doubt.
Looking from any angle, prosecution has utterly failed to prove
the guilt of the accused beyond reasonable doubt. So, looking
from all the facts and circumstances prosecution has utterly
failed to prove the guilt of the accused beyond reasonable
14 S.C.807/2016 &
S.C.1424/2016
doubt. As per the well settled principle of Criminal Law,
benefit of doubt goes to the accused and in the present case
giving benefit of doubt to the accused, I hold that prosecution
has utterly failed to prove the guilt of the accused beyond
reasonable doubt. Hence, for the above discussion, I answer
point No.1 and 2 in the NEGATIVE.
19. POINT No.3: In view of my findings point No.1,
2 and reasons stated therein, I proceed to pass the following:
ORDER
Acting under Sec.235(1) Cr.P.C. accused No.1- Prabhakar @ Sakkare, accused No.2-Srinath @ Seena, accused No.3-Shiva, accused No.4-Raju and accused No.5-Chetu are acquitted for the offences punishable under Sec.399, 402 I.P.C.
Bail bonds of the accused stands cancelled forthwith.
MO.1 is a Knife, same is confiscated to the state after the appeal period is over.
15 S.C.807/2016 & S.C.1424/2016 MO.2 to 5 are worthless articles, hence ordered to be destroyed after the appeal period is over.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 12th day of January 2017).
(SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution:
PW.1 Smt.N.Soumya CW.1 03-12-2016 Documents marked for the prosecution:
Ex.P1 Mahazar PW.1 03-12-2016 Ex.P1(a) Signature of PW.1 PW.1 03-12-2016 Ex.P2 Complaint PW.1 03-12-2016 Ex.P2(a) Signature of PW.1 PW.1 03-12-2016 Material objects marked for the prosecution:
MO.1 Button Knife MO.2 to 4 Wooden Clubs MO.5 Chilly powder pocket
Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.