Bangalore District Court
State Of Karnataka By vs No.6 Deepu @ Kalladeepu on 21 November, 2016
IN THE COURT OF LXII ADDL.CITY CIVIL&
SESSIONS JUDGE, (CCH-63), BANGALORE CITY.
Dated this the 21st day of November, 2016
Present : Sri.Parameshwara Prasanna.B,
B.A.,LL.B.,
LXII Addl.City Civil & Sessions Judge,
Bengaluru
Sessions Case No.280 / 2014
COMPLAINANT:- State of Karnataka by
Byatarayanapura Police station
Bengaluru.
(Rep by Public Prosecutor)
:VS:
ACCUSED No.6 Deepu @ Kalladeepu
S/o Ramegowda,
Aged about 26 years,
Residing at 13th main road,
Saraswathi Nagar,
Bangalore.
(Case against accused No.1- Raghu.J,
A.2- B.R.Rakshith, A.3-Karthik split-up on
15.9.2015
(case against A.4-Siddaraju and A.5-
Shekar split-up in C.C.No.2416/2014
(By Sri.G.R.R for A.6)
1. Date of Commission of offence : 25.03.2013
2. Date of report of offence : 25.03.2013
2 SC. No.280 /2014
3. Arrest of the accused : A.6 granted with
anticipatory bail
on 25.5.2013
4. Name of the complainant : Sri.Lakshman, PSI
5. Date of commencement of trial : 15.09.2015
6. Date of closing of evidence : 15.11.2016
7. Offences complained of : U/s.399 & 402 IPC
8. Opinion of the Judge : Acting U/s.235(1) Cr.P.C
Accused No.6 is acquitted
(Parameshwara Prasanna.B)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
JUDGMENT
This case arise out of charge sheet submitted by Byatarayanapura police station in Crime No.130 /2013 against the accused 1 to 6 for the alleged offences punishable under sections 399 and 402 of Indian Penal Code.
2. The case of the prosecution in brief is that, 3 SC. No.280 /2014 During intervening night of 24/25.03.2013, Cw.1- Sri.C.Lakshman, PSI of Byatarayanapura police station along with his staff Cws.4 to 8 was on special patrolling duty at Avalahalli and when they were on patrolling duty night at about 1.30 a.m., on 25.3.2015, he received secret information that near Big Drainage of Pramod Layout, Bangalore 6 unknown person being equipped with deadly weapons making preparation to rob cash, valuables of the person passing thereby or to rob the passengers of the vehicle. Immediately Cw.1 secured his staffs and two panch witnesses and Cw.1 by informing his staffs and panchas about credible information, went near the spot along with staffs and panchas at about 1.45 a.m., and on confirming that 6 unknown persons being equipped with deadly weapons were planning to commit dacoity, Cw.1 along with staff when surrounded them, two persons escaped and they captured/apprehended accused Nos.1 to 4 and on enquiry about the name of the persons escaped from the spot, accused Nos.1 to 4 revealed that the persons escaped from the spot are accused Nos.5 and 6. 4 SC. No.280 /2014 Thereafter they seized one knife, four clubs and one chopper and on return to police station along with accused persons and seized articles, Cw.1 got registered FIR against accused Nos.1 to 6 for the offences punishable u/s 399 & 402 of IPC.
3. After completion of investigation, charge sheet has been filed against accused Nos.1 to 6by showing accused Nos.5 and 6 as absconding before learned 3rd Addl.Chief Metropolitan Magistrate, Bengaluru, which was subsequently registered as C.C.No.15674/2013. Subsequently, accused No.6 obtained anticipatory bail from FTC No.I, Bengaluru as per order dated 28.5.2013 passed in Crl.Misc.No.2830/2013 and accused No.6 was granted with regular bail by the committal Court on 23.10.2013. Subsequently, since accused Nos.4 and 5 not secured, case against them split-up by the committal Court dated 21.1.2014 and separate case was registered in C.C.No.2416/2014. Since the offences are exclusively triable by the Court of Sessions, the learned 3rd ACMM as per order dated 21.1.2014 committed the case against accused Nos.1 to 3 and 6 to the Hon'ble Prl.City Civil 5 SC. No.280 /2014 & Sessions Judge, Bengaluru. That on committal of the case to the Hon'ble Prl.City Civil & Sessions Judge, case was registered in S.C.No.280 /2014 and the same was made over to this Court for disposal in accordance with law. That since accused Nos.1 to 3 could not be secured, inspite of re-issuing of process, case against accused Nos.1 to 3 split-up on 15.9.2015. Thereafter after hearing the prosecution, as well as the learned defence counsel U/s.227 of Cr.P.C, this Court framed the charge against accused No.6 for the offences punishable under sections 399 and 402 of IPC. When the charge read over and explained to the accused No. 6, accused No.6 pleaded not guilty & claims to be tried.
4. That out of 10 witnesses cited in the charge sheet, the prosecution examined only Cw.1 as Pw.1 and got marked Exs.P.1 to Ex.P.2(a) and material objects Nos.1 to 6. Since despite of sufficient opportunity, the concerned police have not secured remaining witnesses, to uphold speedy trial, the prayer of the learned Public Prosecutor for issuing further process to the remaining witnesses was rejected and the 6 SC. No.280 /2014 prosecution evidence taken as closed. Thereafter the statements of accused No.6 was recorded U/s.313 of Cr.P.C. Accused No.6 denied the incriminating circumstances appearing in evidence against him and he has not led any defence evidence on his behalf.
5. Heard argument of both the sides.
6. Under the facts and circumstances of the case, the following points arise for consideration of this Court: -
-: POINTS :-
1) Whether the prosecution proves beyond all reasonable doubt that, on 25.03.2013 night at about 1.45a.m., near Big drainage of Pramod layout, Bangalore, accused No.6 along with split-up accused Nos.1 to 5 formed themselves into an unlawful assembly and accused No.6 along with other accused was making preparation for committing dacoity of the public and there by committed the offences punishable under Sections 399 and 402 of IPC?
2) What Order?
7. The findings of the court on the above points are as under : -
Point No.1 - In the negative Point No.2 - As per final order for the following:-7 SC. No.280 /2014
REASONS
8. POINT No.1 : -
The case of the prosecution in brief is that, during intervening night of 24/25.03.2013, Cw.1- Sri.C.Lakshman, PSI of Byatarayanapura police station along with his staff Cws.4 to 8 was on special patrolling duty at Avalahalli and when they were on patrolling duty night at about 1.30 a.m., on 25.3.2015 he received secret information that near Big drainage of Pramod Layout, Bangalore, about 6 unknown person being equipped with deadly weapons making preparation to rob cash, valuables of the person passing thereby or to rob the passengers of the vehicle. Immediately Cw.1 secured his staffs and two panch witnesses and Cw.1 by informing his staffs and panchas about credible information, went near the spot along with staffs and panchas at about 1.45 a.m., and on confirming that 6 unknown persons being equipped with deadly weapons were planning to commit dacoity, Cw.1 along with staff when surrounded them, two persons escaped and they captured/apprehended accused 8 SC. No.280 /2014 Nos.1 to 4 and on enquiry about the name of the persons escaped from the spot, accused Nos.1 to 4 revealed that the persons escaped from the spot are accused Nos.5 and 6.
Thereafter they seized one knife, four clubs and one chopper and on return to police station along with accused persons and seized articles, Cw.1 got registered FIR against accused Nos.1 to 6 for the offences punishable u/s 399 & 402 of IPC.
9. That out of 10 witnesses cited in the charge sheet, only Cw.1 has been examined as Pw.1 and got marked Exs.P.1 to Ex.P.2(a) and material object Nos. 1 to 6.
10. In this case material witness for the prosecution namely Cws.2 and 3. The alleged witnesses to raid and recovery mahazar and Cws.5 to 7 who alleged to have the assisted Cw.1 at the time of alleged raid and Cws.8 who alleged to have assisted in investigation and Cws.9 and 10 who are shown as investigating officers are not examined by the prosecution. Since those relevant and material witnesses are not examined by the prosecution, inspite of sufficient 9 SC. No.280 /2014 opportunity adverse inference has to be drawn against the prosecution for not examining those material witnesses.
11. I have carefully scrutinized the evidence of Pw.1- Sri.C.Lakshman. Pw.1 in his examination-in-chief has stated that, based on credible information, he conducted the raid along with his staffs in the presence of panchas and apprehended accused Nos.1 to 4 and two persons escaped from the spot and that when he enquired with accused Nos.1 to 4 regarding the names of the persons who escaped from the spot, accused Nos.1 to 4 revealed the names of accused Nos.5 and 6 as the persons who escaped from the spot. I have carefully examined the entire deposition of Pw.1. Pw.1 no where deposed he saw accused No.6 at the spot, and that he saw accused No.6 while escaping from the spot. Pw.1 has not identified the accused No.6 before the Court and no recovery said to have been made from the possession of accused No.6. There is no cogent evidence or material to show that, accused No.6 was present at the spot and he escaped at the time of alleged raid.
10 SC. No.280 /2014
12. It is settled law that, for sustaining conviction U/s.399 and 402 of IPC, the evidence has to be an unimpeachable character. I have cautiously examined evidence of Pw.1 and his evidence does not inspire confidence.
13. The Hon'ble Apex Court in Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, held that:
"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 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, 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 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".11 SC. No.280 /2014
14. That the Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
Criminal Procedure Code, 1973 - Section 374(2)
- Appeal against Judgment of conviction and order of sentence - Re-appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery - The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, The credibility of the investigation is doubtful as Pw.3 having registered the crime, has himself investigated the case.
Further held, In view of the material contradictions in the evidence of Pws.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt.
15. To sustain conviction under section 399 and 402 and of I.P.C, the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than 12 SC. No.280 /2014 to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that persons assembled conceived any such designs for commission of dacoity and in fact they intended to achieve the object for which they had assembled. But in this case, there is no reliable and credible evidence to show that accused were making preparation to commit dacoity. In view of the fact and circumstances of the case and precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused No.6 beyond all reasonable doubt and as such accused No.6 is entitled for benefit of doubt. Hence, point No.1 is answered in the Negative.
16.POINT NO.2: - In view of the reasons discussed as above the following:-
ORDER Acting u/s 235 (1) Cr.P.C, A.6- Deepu @ Kalla Deepu is acquitted in respect of the 13 SC. No.280 /2014 offences punishable under sections 399 and 402 of Indian Penal Code.
The bail bond and surety bond of accused No.6 is hereby cancelled.
The articles i.e., M.Os.1 to 6 shall be preserved for trial of split up accused Nos.1 to 5.
Further accused No.6 is directed execute his personal bonds for Rs.50,000/- and to furnish a surety for the like sum as required under Section 437(a) of Cr.P.C. (Dictated to the Judgment Writer, transcribed the script and typed the same, and then corrected and then pronounced by me in the open court this the 21st day of November, 2016) (Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution side:-
PW.1 Lakshman.C
14 SC. No.280 /2014
II. For Defence Side:
-NIL-
III. List of exhibits marked on behalf of the Prosecution Side:-
Ex.P.1 Registered complaint by SHO of complaint Ex.P.1(a) Signature in the complaint of SHO Ex.P.2 Mahazar Ex.P.2(a) Signature of Pw.1 IV. For Defence Side:-
-NIL-
IV. List of material objects:
M.O.1 One chopper
M.O.2 One knife
Mos.3 to 6 Four clubs
(Parameshwara Prasanna.B)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
15 SC. No.280 /2014
.
16 SC. No.280 /2014