Bangalore District Court
State By Madiwala vs Girisha @ Giri @ Kunigal on 1 September, 2017
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY
Dated this the 1st day of September 2017
PRESENT
*******
Sri B. B. Jakati, B.A., LL.B., (Spl.)
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
S.C.No.424/2015
COMPLAINANT: State by Madiwala
Police Station,
Bangalore.
(Represented by Learned Public
Prosecutor, Bangalore.
Vs.
ACCUSED: 1. Girisha @ Giri @ Kunigal
Giri @ Prashanth Raj @
Ashwath
S/o Veeranna Gowda,
Aged about 27 years,
R/at Hosur Village
Moduru Post, Kasaba Hobli,
Kunigal Taluk,
Tumkur District.
2. Govinda @ Govindaraju,
S/o Kempegowda,
Aged about 28 years,
R/at Chikkakallya Village,
2 SC.No.424/2015
Thippasandra Hobli,
Magadi Taluk,
Ramanagara District.
3. Srinivasa @ Vasu,
S/o Guligowda,
Aged about 27 years,
R/at No.19/B,
Pipeline, Weavers Colony,
Srinagar,
Bangalore.
4. Jagadeesha @ Jaggu,
S/o Srinivasa,
Aged about 25 years,
R/at Anupanahalli,
Hoodigere Hobli,
Tumkur Taluk & District.
5. Ramdas B. Shet,
S/o Late Beerappa,
Aged about 50 years,
R/at No.63, 11th Cross,
Someshwara Jewelers,
Malleswaram,
Bangalore.
1. Date of Commission : 07.03.2014
of Offence
2. Date of Report : 07.03.2014
of Offence
3. Status of the accused : Accused Nos.1 to 4
are in J.C. and accused
No.5 is on bail
3 SC.No.424/2015
4. Name of the : Sri.Vijayakumar,
complainant
5. Date of :
Commencement of 04.07.2016
evidence
6. Date of Closing of :
21.03.2017
Evidence
7. Offences complained of : Sections
397, 411 & 413 of I.P.C.
8. Opinion of the Judge : Accused not found guilty
JUDGMENT
This case is arising out of the charge sheet filed by the Police Inspector, Madiwala P.S., Bengaluru City against the accused Nos.1 to 5 for the offences punishable under Sections 397, 411 and 413 of IPC.
2. The facts in brief of the case of the prosecution is that on 07.03.2014 the CW.1 Vijaya Kumar T., his wife and daughter came from the house of parents of his wife and Vijaya Kumar was parking two wheeler in front of his 4 SC.No.424/2015 house No.113, 1st floor, 10th Main road, 6th Sector, HSR Layout, Bengaluru at about 9.00 P.M. At that time totally four people came in two motor cycle and one of the motor cycles was bearing registration No.KA-02-Ex-8591 and snatched the golden chain weighing 14-15 Grams from the neck of Vijayakumar T. and thereby committed the offence of robbery by showing deadly weapons.. Thereafter, Vijaya Kumar T. informed the incident on the very day at about 11.15 P.M. to Madiwala Police and the Madiwala Police registered the case against the unknown persons in Crime No.320/2014 for the offence under Section 392 of IPC and launched the investigation.
3. It is the case of the prosecution that during the course of investigation the Investigating Officer found that Byatarayanapura Police registered case in Crime No.171/2004 for the offence under Section 399 and 402 of IPC. It has been ascertained by the Investigating Officer that in the said crime the present accused Nos.1 to 4 were 5 SC.No.424/2015 arrested and at the instance of accused Nos.1 to 4, the golden chain of Vijaya Kumar T. has been seized by Byatarayanapura Police. During the investigation it has been found that accused Nos.1 to 4 sold the golden chain of Vijaya Kumar T. to accused No.5 Ramdas. On these allegations the prosecution has contended that the accused Nos.1 to 4 have committed the robbery of golden chain of Vijaya Kumar T. by showing deadly weapon and accused No.5 has received the stolen property with knowledge and thereby accused Nos.1 to 4 have committed the offence under Section 397 and accused No.5 has committed the offence under Section 411 and 413 of IPC.
4. The Investigating Officer filed the charge sheet before the Learned III ACMM against accused Nos.1 to 5 which came to be registered in C.C.No.32639/2014. The learned magistrate has committed the case against the accused No.1 to 5 for trial.
6 SC.No.424/2015
5. The presence of accused Nos.1 to 5 have been secured and all the accused are represented through their counsel. After hearing both sides charge has been framed against the accused Nos.1 to 4 for the offence under Section 397 of IPC. The charge has been framed against the accused No.5 for the offence under Section 411 & 413 of IPC. The accused No.1 to 5 have pleaded not guilty and claim to be tried.
6. In order to prove the guilt of the accused, the prosecution has examined nine witnesses as PW.s 1 to 6 and got marked documents at Ex.P.1 to P.9. The accused were examined under Section 313 of Cr.P.C. who have denied the incriminating evidence appearing against them. The accused have not adduced any evidence in their defence.
7. Heard the arguments of both sides and perused the records.
7 SC.No.424/2015
8. Having regard to the materials placed on record and the submissions made by both the parties, the following points arise for my determination:
1. Whether the prosecution proves beyond reasonable doubt that on 07.03.2014 at
9.00 P.M. in front of House No.113, 6th Sector, 10th Main, HSR Layout, Bengaluru City on public road the accused Nos.1 to 4 committed robbery of golden chain weighing 14-15 grams from the possession of CW.1- Vijaya Kumar T. by showing deadly weapon and thereby committed the offence under Section 397 of I.P.C.?
2. Whether the prosecution proves beyond reasonable doubt that on the above said date after committing robbery the accused No.1 to 4 sold the above said golden chain to the accused No.5 and the accused No.5 dishonestly received the golden chain knowingly or having reason to believe the same to be stolen properties and thereby the accused No.5 8 SC.No.424/2015 committed the offence under Section 411 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that the accused No.5 was habitually receiving or dealing with properties from accused Nos.1 to 4 knowingly or having reason to believe the same to be stolen properties and thereby the accused No.5 committed the offence under Section 413 of IPC?
4. What Order?
9. My findings to the above points are as under:-
POINT No.1 to 3 :- In the Negative
POINT No.4 :- As per final order
for the following,
REASONS
10. Point No.1:- The P.W.1 is the first informant and the victim, P.W.5 and 6 are the Investigating Officers of Madiwala P.S. P.W.3 was the Member of the team formed to detect the culprits involved in robbery and dacoity cases. P.W.4 was the Police Inspector of 9 SC.No.424/2015 Byatarayanapura P.S. who has arrested the accused and said to recovered the golden chain the instance of accused No.1 to 4. P.W.2 is the goldsmith from whom the golden chain has been recovered. With these evidence the prosecution intending to prove the guilt of the accused.
11. The P.W.1, who is the victim and P.W.4 who is Police Inspector have not turn up to give their evidence completely. Therefore, their evidence has been discarded as they have not submitted for the cross-examination by the accused. Therefore, there is no evidentiary value to the statement made by the P.W.1 and P.W.4 in their examination-in-chief. Thus, their evidence has not been considered. The non-examination of P.W.1 and P.W.4 who are the material witnesses is fatal to the case of the prosecution.
12. P.W.5 is the P.S.I. of Madiwala P.S. has stated that on 07.03.2014 at about 11.15 P.M. the P.W.1 came 10 SC.No.424/2015 to the police station and filed complaint at Ex.P.1. He has also stated that he registered the crime and FIR is produced at Ex.P.9.
13. The P.W.6 who was the Police Inspector of Madiwala P.S. has stated that he took the further investigation from P.W.5 and went to the spot on the next date of the incident and drawn the Panchanama produced at Ex.P.2. This evidence of P.W.5 & 6 has been denied by the accused. But P.W.5 & 6 have stood for their examination-in-chief. The prosecution not examined the witness for Ex.P.2. In order to corroborate the evidence of P.W.5, there is no evidence of P.W.1 regarding filing of first information and alleged crime and for the Panchanama there is no corroboration from the panch witnesses. When the evidence of P.W.5 and 6 has been denied by the defence, in the absence of evidence of victim and panch witnesses, the evidence of P.W.5 and 6 is not sufficient to prove the allegation made in Ex.P.1 and 11 SC.No.424/2015 the scene of offence Panchanama at Ex.P.2. In the absence of evidence of P.W.1 who is the victim, there appears reasonable doubt about the robbery said to be committed on P.W.1 and snatching of golden chain by the unknown four persons. Therefore, I hold that there is insufficient evidence to prove the alleged robbery of golden chain from the possession of P.W.1 on 07.03.2014 at 9.00 P.M.
14. In order to connect the robbery of golden chain of P.W.1 with the accused, the prosecution has strongly relied upon the evidence of P.W.4-Sathyanarayana, who was the Police Inspector of Byatarayanapura P.S. and Pramod/P.W.2 who has handed over the golden chain of P.W.1. As already stated the evidence of P.W.4 has been discarded.
15. The P.W.2 Pramod has stated that his mother was running Gurupriya Jewellery Work Shop at 12 SC.No.424/2015 Malleswaram and he was also working in the shop after his office hours. He states that he knows the accused No.5. But he has categorically denied handing over of any of the golden chain shown in the Panchanama dated 05.06.2014 to the P.W.4 in presence of Panch witnesses at the instance of accused No.1 and accused No.5. In the Panchanama stated above it has been shown that the accused No.1 and 5 taken the police, panch witnesses by name J.N.J. Rudra Prasad and Pramod Kumar B.P., S/o Papegowda to Gurupriya Jewellers and both accused disclosed the fact that they accused No.5 has sold the golden chain of Vijay Kumar T. in the jewellery shop of P.W.2 and the said chain has been recovered from P.W.2. The P.W.2 has denied such allegation. The prosecution not fully examined P.W.4 who has drawn the Panchanama. The prosecution not examined J.N.J. Rudra Prasad and Pramod Kumar who are the panch witnesses to prove the Panchanama. Therefore, the prosecution utterly failed to 13 SC.No.424/2015 prove the recovery of golden chain shown in the Panchanama. Therefore, I hold that the prosecution failed to prove the recovery of golden chain of P.W.1 from P.W.2 Pramod under the Panchanama dated 05.06.2014.
16. As per the case of the prosecution the P.W.4 arrested the accused Nos.1 to 4 in Crime No.171/2014 of Byatarayanapura P.S., accused No.1 to 4 have given their voluntary statement before the P.W.4. and in those statements disclosure has been made that the golden chain of Vijaya Kumar T. has been sold to accused No.5 and in turn accused No.5 sold the golden chain in Gurupriya Jewellery Works, Malleswaram and from P.W.2 golden chain has been recovered by P.W.4 by drawing the Panchanama on 05.06.2014 in the presence of J.N.J. Prakash and Pramod Kumar. It is also shown in the prosecution papers that after recovery the golden chain has been shown to P.W.1 in Byatarayanapura P.S. But in order to prove the voluntary statement said to be given by 14 SC.No.424/2015 the accused Nos.1 to 4 or by accused No.5 the prosecution not examined P.W.4 fully and even not examined J.N.J. Prakash and Pramod Kumar, who are the Panch Witnesses. Therefore, absolutely there is no evidence on record to show that the golden chain of Vijay Kumar T. has been recovered from accused No.5 based on the information given by accused Nos.1 to 5.
17. Another evidence relied upon by the prosecution to connect the robbery with the accused Nos.1 to 4 is the evidence of P.W.6, who was the Police Inspector of Madiwala P.S. The P.W.6 in his examination- in-chief has stated that he received the papers from Byatarayanapura P.S. in Crime No.171/2014 and thereafter he has taken the custody of accused No.1/Giri, accused No.3/Srinivas and accused No.4/Jagadish on 10.09.2014. He stated that on 11.09.2014 he called P.W.1 Vijaya Kunmar T. to the P.S. and shown the accused No.1, 3 & 4 and Vijay Kumar T. identified the 15 SC.No.424/2015 accused. The prosecution has produced the additional statement of Vijay Kumar at Ex.P.4 dated 11.09.2014. In this statement it has been shown that on 11.09.2014 P.W.6 shown the accused No.1, 3 & 4 to the P.W.1. In this statement it has been shown that the P.W.1 identified the accused Nos.1, 3 & 4. This evidence has been denied by the accused in the cross-examination. Therefore, whether the P.W.1 has identified the accused No.1, 3 & 4 is the matter for consideration.
18. Under Section 54A of Cr.P.C. if the person arrested on a charge of committing an offence is to be shown to any other witness or person for the purpose of investigation, the Police is required to take the permission of the court and no such permission has been taken by P.W.6. Therefore, even if the statements at Ex.P.4 is believed to be true to the extent of identification of the accused Nos.1,3 & 4 by the P.W.1, such identification is not sustainable under law for non-compliance of 16 SC.No.424/2015 Section.54A of Cr.P.C. Apart from that, there is no evidence of P.W.1 to the effect that he went to Police station and identified accused No.1, 3 & 4 on 11.09.2014. Therefore, I hold that through the statement at Ex.P.4, the prosecution failed to prove that the P.W.1 identified the accused Nos.1 to 4 as culprits.
19. There is allegation in the FIR that four unknown persons attacked P.W.1. The incident took place in night and therefore, it was not possible for the P.W.1 to identify the culprits properly. The Investigating Officer -P.W.6 not taken any steps to conduct Test Identification Parade as required under Section 9 of Evidence Act after the arrest of accused Nos.1 to 4. Therefore, there is no evidence on record that the accused Nos.1 to 4 have committed the robbery as alleged in the complaint, which is fatal to the case of the prosecution.
17 SC.No.424/2015
20. The P.W.4 not seized any records from Gurupriya Jewelers Shop relating to sale or purchase of golden chain shown in Panchanama, more particularly the sale or purchase of golden chain of P.W.1. There are many cases registered against the present accused based on the recovery shown in the Panchanama dated 05.06.2014. When accused have denied their participation in the alleged crime, when the prosecution is connecting the accused to the robbery based on the recovery, the recovery has to be proved beyond all reasonable doubt. Looking to the various crimes registered against the accused and evidence of P.W.6, in my opinion in the absence of evidence of panch witnesses, P.W.1, P.W.4, the evidence of P.W.6 is not sufficient to prove that golden chain of Vijay Kumar T. has been recovered at the instance of accused No.1 to 4 or accused No.5. In other words there are no materials on record to show that the accused No.1 to 4 sold the golden chain of 18 SC.No.424/2015 Vijay Kumar T. to accused No.5-Ramdas and thereafter the accused No.5 sold those properties in Gurupriya Jewellers. Thus, I hold that the prosecution has failed to prove Panchanama dated 05.06.2014 and the involvement of the accused Nos.1 to 4 in the alleged robbery of golden chain belonging to P.W.1.
21. P.W.3 was the Police Inspector of Kamakshipalya P.S. at the relevant period and he has stated that he was one of the member of the team headed by P.W.4 - Sathyanarayana to detect the accused in Crime No.171/2014 of Byatarayanapura P.S. and such team was formed by Joint Police Commissioner, Bengaluru City. He has also stated that in order to arrest the accused in the above said crime, himself and his team members along with P.W.4 went to Hindupura and arrested the accused No.2 - Govind, accused No.3/Srinivas and accused No.4/Jagadish who were other accused in Crime No.171/2014. He has also stated about attempt made by 19 SC.No.424/2015 the accused No.2 Govind to escape and firing on Govind. He has also stated about filing of complaint against the accused No.2 Govind in Devanahalli P.S. The evidence of P.W.3 is relating to alleged attempt made by accused No.2 to escape from the Police and firing on the accused No.2. Such evidence is not having any material on the present case. The evidence of P.W.3 shows that the accused No.2 was arrested on 17.05.2014. Such arrest of accused No.2 is not seriously disputed by the defence. The material on record is sufficient to prove the fact that P.W.4 Sathyanarayan arrested the accused Nos.1 to 4 in Crime No.171/2014 and as on the date of recovery Panchanama dated 05.06.2014 the accused Nos.1 to 4 were in the custody of P.W.4. Therefore, the evidence of P.W.3 does not connect the accused Nos.1 to 4 to the alleged robbery on Vijay Kumar T. For these reasons I hold that the prosecution has not established the guilt of accused Nos.1 20 SC.No.424/2015 to 4 under Section 397 of IPC. Thus, I answer this point in the Negative.
22. POINT NO.2 & 3 : There is an allegation against the accused No.5 that he received the golden chain of Vijay Kumar T. from the accused Nos.1 to 4 knowing that the golden chain was stolen property. Further there is an allegation that the accused No.5 was habitually receiving the stolen properties. In order to prove such allegation again the prosecution relied upon the evidence discussed above. It is concluded that there is no evidence on record to believe that accused Nos.1 to 4 have committed robbery on Vijay Kumar T. and snatched the golden chain. It is also concluded that there is no evidence on record to prove that accused Nos.1 to 4 have sold the golden chain to accused No.5 and from at the instance of accused No.5 the golden chain has been recovered. The P.W.6 has stated that the accused No.5 was receiving the stolen properties. Such statement is not 21 SC.No.424/2015 supported with any material. Therefore, absolutely no evidence is produced to prove the allegation made against the accused No.5. Thus, I hold that the accused No.5 is not guilty for the offence under Section 411 or under Section 413 of IPC. Accordingly, I answer these points in the Negative.
23. Point No.4- For the above said reasons, I proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused Nos.1 to 4 are acquitted for the offence punishable under Section 397, and accused No.5 is acquitted for the offence punishable under Sections 411 & 413 of IPC.
The accused Nos.1 to 4 are ordered to be set at liberty, if they are not required in any other cases.
22 SC.No.424/2015
The Interim Custody of golden chain given to the P.W.1/Vijay Kumar T. is hereby made absolute.
(Dictated to the Judgment-writer, transcribed by her, corrected, signed and then th pronounced by me in the open court on this the 19 day of May 2017).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE List of witness examined for prosecution:
PW 1 Vjay Kumar PW.2 Pramod P.W.3 Balegowda P.W.4 Sathyanarayana K.P. P.W.5 Muralidhar D, P.W.6 Prashanath M.
List of documents marked for prosecution:
Ex.P.1 Complaint
Ex.P.1(a), signatures of P.W.1, 5
(b)
Ex.P.2 Mahazar
Ex.P.2(a) Signature of P.W.1
Ex.P.3 Statement of P.W.1
Ex.P.4 statement of P.W.1
Ex.P.5 Statement of P.W.2
Ex.P.6 complaint given by
Balegowda
Ex.P.7 Mahazar
Ex.P.7(a) Signature of P.W.4
Ex.P.8 Mahazar
23 SC.No.424/2015
Ex.P.8(a) Signature of P.W.4
Ex.P.9 FIR in Cr.No.320/14
Ex.P.9(a) Signature of P.W.5
MATERIAL OBJECTS MARKED:- NIL
List of witnesses examined for defence: - NIL List of documents marked for defence:- NIL (B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
24 SC.No.424/201525 SC.No.424/2015 26 SC.No.424/2015 01.09.2017:
Judgment pronounced in the open court (vide separate judgment) with the following operative portion:
ORDER Acting under Section 235 of Cr.P.C., the accused Nos.1 to 4 are acquitted for the offence punishable under Section 397, and accused No.5 is acquitted for the offence punishable under Sections 411 & 413 of IPC.
The accused Nos.1 to 4 are ordered to be set at liberty, if they are not required in any other cases.
The Interim Custody of golden chain given to the P.W.1/Vijay Kumar T. is hereby made absolute.
(B.B. JAKATI) LIX ADDL. C.C. & SESSIONS JUDGE, BANGALORE CITY.