Bangalore District Court
State By Ashoknagar Police Station vs No: 6. Sunny Slim @ Sunny on 3 July, 2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 3rd day of July, 2019
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M.,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY.
SESSIONS CASE NO.214/2016
COMPLAINANT:- State by Ashoknagar Police Station,
Bengaluru.
-Vs-
ACCUSED NO: 6. Sunny Slim @ Sunny,
S/o. Sunil Slim,
Aged about 21 years,
R/at.No.175, (Old No.13-3),
1st Floor, 8th Cross,
Nanjareddy Colony,
Murugesh Palya, H.A.L. Post,
Bengaluru.
(Accused No.6)
(By Smt. Sujatha, Advocate)
1. Date of commission of offence : 14.3.2011
2. Date of report of offence : 14.3.2011
3. Date of arrest of the Accused : -
2 S.C.No.214/2016
4. Name of the complainant : Subhash Chand
5. Date of recording evidence : -
6. Date of closing evidence : -
7. Offences complained of : U/Sec.395 and 397 of IPC.
8. Opinion of the Judge : Offence against Accused
No.1 is not proved
9. State represented by : Public Prosecutor
10. Accused defended by : Sri. Pramod Y., Advocate
JUDGMENT
The Ashok Nagar police have filed charge sheet against the accused No.1 to 6 for the offence punishable U/s.397 of I.P.C., in Cr.No.93/2011.
2. Brief facts of the prosecution case is as under; On 14.3.2011 at about 1.20 p.m., when the complainant Subhash Chand S/o. Champa Lal was doing the business in his Pan Broker Shop No.8/2, situated South Cross Street, Y.G.Palya, wititn the jurisdiction of Ashoknagara police station, Bengaluru, accused No.1, 3, and 4 were watching in the out side and accused No.2, 5 3 S.C.No.214/2016 and accused No.6 kept cigar lighter looks like revolver, on the neck of Cw.1/Subhash Chand, accused No.5 and 6 threatened Cw.2 to 6, who were in the said shop by showing long and knife, get the treasury opened through Cw.1 under threat, taken away gold ornaments weighing 1404.150 grams valued about Rs.25,00,000/-. Accused No.3 and 6 caused injury on the hand of Cw.1 by using long when Cw.1 tried to snatch the bag containing ornaments. Accused went along with gold ornaments in a motor cycles with other accused persons, who are watching out side the shop. On the basis of first information lodged by Cw.1/Subhash Chand, this case was registered at Ashok Nagar Police Station, Bengaluru against accused No.1 to 6 in Cr.No.93/2011 for the offence punishable U/s.397 of I.P.C.
3. Taking the case for investigation, Investigating Officer proceeded to the spot, conducted spot panchanama, arrested accused persons, recovered robbed ornaments on the basis of information given by the accused, recovered weapons used for commission of the offence, recorded statements of witnesses. After 4 S.C.No.214/2016 completion of the investigation, Investigating Officer submitted Final Report to the jurisdictional magistrate.
4. Cognizance for the offences shown in the charge sheet was taken against the accused No.1 to 6 by the Learned Magistrate. Thereafter, criminal case against accused was registered in C.C.No.24606/2011 on the file of XI-Addl.Metropolitan Magistrate, Bengaluru. Accused No.1 to 6 were enlarged on bail. Since offences alleged against accused are triable exclusively by the court of Sessions, case is committed to the court of Sessions. After committal, case is re-registered as S.C.No.961/2011.
5. After hearing, on 4.9.2018 charge against accused No.1 to 6 framed for the offence punishable U/s.395 and 397 of I.P.C., which they denied and claims to be tried. Despite issuance of N.B.W. against accused No.6, he did not appear before this court for trial. Hence, this court passed order for registration of separate split up case against accused No.1. Hence, this case is split up from 5 S.C.No.214/2016 main S.C.No.961/2011 and a separate S.C.No.214/2016 was registered against this accused No.1.
6. During the trial, learned counsel for the accused No.6 submitted that, this is split up case from the main S.C.No.961/2011. Learned counsel for accused No.6 filed Memo and produced certified copies of entire depositions of all witnesses examined in S.C.No.961/2011 as evidence in this case. even though Cr.P.C., will not permit to adopt the evidence recorded in other case, in view of no objection stated by the Learned Public Prosecutor appearing for State, evidence produced by the accused side will be considered as evidence in this case.
7. On going through the evidence of prosecution side, all incriminating evidence, available in the evidence of the prosecution were explained to the accused No.6 as required U/s.313 of Cr.P.C., and recorded his statement. Accused has not produced any documents, materials on their behalf. Further no defence evidence led by the accused side.
6 S.C.No.214/2016
8. Heard arguments by Learned Public Prosecutor appearing for the State as well as counsel appearing for the accused.
9. Now, the points arising for determination are as follows:
1. Whether prosecution proves beyond reasonable doubt that, on 14.3.2011 at about 1.20 p.m., when the complainant Subhash Chand S/o.
Champa Lal was doing the business in his Pan Broker Shop No.8/2, situated South Cross Street, Y.G.Palya, within the jurisdiction of Ashoknagara police station, Bengaluru, accused No.1, 3, and 4 were watching in the out side and accused No.2, 5 and 6 kept cigar lighter looks like revolver on the neck of Cw.1/Subhash Chand, accused No.5 and 6 threatened Cw.2 to 6, who were in the said shop by showing long and knife, get the treasury opened through Cw.1 under threat, taken away gold ornaments weighing 1404.150 grams valued about Rs.25,00,000/-. Accused No.3, 6 caused injury on the hand of Cw.1 by using long when Cw.1 tried to snatch the bag containing ornaments. Accused went along with gold 7 S.C.No.214/2016 ornaments in motor cycles with other accused persons, who are watching out side the shop thereby committed offence punishable U/s.395 and 397 of I.P.C., as alleged in the charge sheet?
2. What Order ?
10. It is answered for the aforesaid points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following:
REASONS
11. POINT NO.1:- Pw.1/Subhash Chandra is the
complainant. In his evidence Pw.1 deposed that, on 14.3.2011 at 1.20 p.m., in the afternoon, 3 robbers entered into his shop to rob his Pan Broker Shop when he was on his business in the shop. The said 3 robbers entered into his shop armed with talvar, long and knives. They kept gun on his neck, threatened him with dire consequences for life, compelled him to open the treasury and cash box where money was kept. He told them that, he kept cash box in the house situated annexed to his Pan Shop. Person who pointed the gun on his neck, took him into his house and the person who 8 S.C.No.214/2016 was holding talavar closed the shutter of the shop. Person with knife went into the house and stand near his wife and told to open the door of the treasury, kept in the house. They told to take out the things kept inside the treasury. Therefore, he take out the things kept inside the treasury. At that time, person holding gun take the bag contained ornaments in his another hand, collected ornaments of his wife and went out side the house. Person holding knife and person holding talavar went out from the shop by opening shutter of the shop.
12. Pw.1 identified the accused No.5/ Naveen Kumar stating that, he saw the person who came to rob holding the knife in his hand. Accused No.3/Mani Kanta came with talavar. He denied to identify the accused No.1/ William. He deposed that, he can identify other accused persons, who came to rob this shop. He can identify the gun, knife and talavar. He identified his complaint marked as Ex.P.1. Police conducted spot panchanama in his shop. Police conducted seizure panchanama after 20 days in the police station. He identified his signatures on the said panchanama. 9 S.C.No.214/2016
13. Investigating Officer not produced weapons seized in this case. Hence, it was not possible to identify the same by this witness.
14. In the cross-examination, this witness admitted that, he do not know to read and write Kannada. He do not know the contents of Ex.P.1 to 3. He cannot say the details of the things robbed. He has not produced any documents to show that, he obtained license to run Pan Broker Shop. He admitted that, he is seeing the accused persons for the first time. He cannot say from whom he has taken possession of seized articles. He admitted that, at present, he was not in possession of seized articles. He do not know from whom the recovery of seized articles explained under Ex.P.3 are made. He cannot say the names of persons who pledged the seized ornaments. He cannot say descriptions of the accused persons. None of the accused persons were present at the time of drawing seizure panchanama. He cannot say the names of panch witnesses. He cannot say whether persons who entered into his shop for robbery are the same accused persons. 10 S.C.No.214/2016
15. Due to typographical error Serial Number examination of Cw.19 Sadyodhathachar is mentioned as Pw.10. As Cw.32 examined as Pw.10, Cw.19 considered as Pw.2. This witness is the person, who melted gold ornaments. Even though he deposed that, Mani, Chandrappa took him to Nagawara and as per their request, he melted 3 gold bangles and shown the same to Charappa, Gajendra, Prakash and Mani, this witness failed to identify the accused persons before the court. In the cross-examination, after treating this witness as hostile, he failed to identify the accused No.1, 3 and 4 before the court.
16. Pw.3/Santhosh Bai is the wife of complainant/Cw.1. Even though Pw.3 deposed with respect to happening of robbery in the house of shop of her husband/Cw.1, She failed to identify those persons, who committed robbery in the shop of her husband. This witness failed to identify the accused persons before the court. In the cross-examination after treating this witness as hospital, no admissions elicited to prove the case of the prosecution. 11 S.C.No.214/2016
17. Pw.4/ Suraj Kumar S/o. Subhash Chandra/Cw.1. However deposed about the happening of the robbery as stated by the complainant under Pw.3. This witness identified the accused No.3, 4 and 5 as the same persons, who committed robbery in the shop of Cw.1. Further in the cross-examination, this witness admitted that, he is seeing accused persons for the first time before the court. He admitted that, prior to this he had not seen the accused persons anywhere.
18. Pw.5/Manoharalal is seizure mahazar witness, spot mahazar witness not supported to the contents of Ex.P.5/spot panchanama for which he is signed as panch witness. In the cross- examination after treating as hostile, no such admissions elicited to prove the contents of Ex.P.5.
19. Pw.6/Sampangiram is the panch witness for seizure panchanama/Ex.P.6 and Ex.P.7. Pw.6 not supported the contents of Ex.P.6 and Ex.P.7. In the cross-examination after treating this witness as hospital, no such admissions elicited to prove the ingredients of Ex.P.6 and Ex.P.7.
12 S.C.No.214/2016
20. Pw.7/Chandrashekhar is the person, who sold tools for preparation of gold ornaments. He has not stated evidence in accordance with his statements. No such admissions elicited in the cross-examination after treating this witness as hostile.
21. Pw.8/Shankar is another seizure mahazar witness for Ex.P.9. Pw.8 not supported the averments made in Ex.P.9. No such admissions elicited in the cross-examination of Pw.8, after treating him as hostile, to prove the ingredients of Ex.P.9/seizure panchanama.
22. Pw.9/S.R.Manjunath the then SHO deposed with respect to receiving of complaint from the team of ACP on 10.4.2011 as per Ex.P.10 and Ex.P.11. He deposed about entering seized articles produced by the team of ACP in the station PF.No.42/11 as per Ex.P.12. He handed over the file for further investigation to Cw.25/Bhadarinath.
23. Pw.10/ Ashwathnaiah/Cw.32, Police Head Constable, who accompanied the team headed by ACP to arrest the accused 13 S.C.No.214/2016 persons. In his evidence, he deposed that, he along with other police staffs and officers arrested the accused persons, who were preparing to commit dacoity. He deposed seizure of objects from the possession of accused persons. He identified the accused No.3 to 5, who are present before the court. He deposed that, they arrested the rest of the accused persons. In the cross-examination, he was unable to say the who particularly arrested each accused persons.
24. Pw.11/K.Vinod another panch witness for seizure panchanama Ex.P.7. This witness deposed against to the contents of Ex.P.7. Hence, prosecution prayed to treat this witness as hostile. Accordingly, permission was accorded. In the cross- examination of Pw.11 after treating him as hostile, no admissions elicited by the prosecution side to prove the ingredients of Ex.P.7/seizure panchanama. Pw.11 denied the suggestions that, he is deposing false in order to help the accused persons even though he is aware about the contents of Ex.P.7.
14 S.C.No.214/2016
25. Pw.12/ B.R.Ashok Kumar, the then ACP, Pulikeshinagar, Bengaluru. In his evidence, Pw.12 deposed that, on 9.4.2011 at about 12.15 midnight, on the basis of credible information, he went near Military Police quarters compound along with other police officers and staff. In the ride conducted by them, they succeeded to arrest the accused persons. Three suspects ran away on the motor cycle, and succeeded to escape. Long, katthi, cash were found in the possession of the said accused persons, at the time of search. They informed their names. Under the cover of panchanama, in the presence of panch witnesses, he seized deadly weapons, 3 motor cycles found in the possession of the accused persons. He produced accused, seized articles , panchanama along with his report before the S.H.O. of Commercial Street police, Cw.9/Manjunath. He identified the accused No.3 to 5, who are before the court and deposed that they arrested other accused also. In the cross-examination he admitted that, he cannot say the telephone number of the credible information he received, relating to the accused persons. He admitted that, information received 15 S.C.No.214/2016 was not entered in the Station House Dairy. He admitted that, he had not produced seized articles before the court.
26. Pw.13/S.Bhadarinath, the then Police Inspector, who filed charge sheet against accused. In his evidence, Pw.13 deposed that, he accompanied Cw.13 along with panchas, as per credible information received by Cw.38 about preparation of commit dacoity by some persons. Accordingly, they conducted ride by forming 3 squads, arrested 5 persons, seized articles, seized deadly weapons under the cover of panchanama, in the presence of panch, witnesses as per Ex.P.2. Thereafter, they produced the accused along with mahazar, seized articles before S.H.O. of Commercial Street Police Station and Cw.38 submitted report. On the basis of said report, F.I.R., was registered by S.H.O., Commercial Street police station.
27. Pw.13 further deposed that, he collected the file from S.H.O., of Commercial Street Police Station, Bengaluru. He recorded statements of the accused, after taking them into police station, as per Ex.P.13 to 17. On the basis of the information given by the 16 S.C.No.214/2016 accused persons, they produced articles, which was seized under the cover of seizure panchanama. He handed over the properties relating to crime register at Indiranagar police station, Cr.No.93/2011 and handed over the copies of the voluntary statements of accused to Ashok Nagar police station, and entered seized articles in the station PF.No.42/2011.
28. On 11.4.2014 he deputed his official to search accused No.6. He obtained police custody of the said accused No.6 from the jurisdictional court, recorded his voluntary statement. Accused No.6 has shown the place where they committed offence. he recorded further voluntary statement of the said accused No.6.
29. On 15.4.2011 accused No.1 had given information in his voluntary statement that, he kept articles in his house. Accused No.1 took him along with panch witnesses to his house and produced gold ornaments. He seized total 28 items under the cover of panchanama. He entered the said seized items under Station P.F.No.45/2011. On the same day, accused Chandrappa also took him to his house and produced items and the same was seized 17 S.C.No.214/2016 under the cover of panchanama in the presence of panch witnesses, as per Ex.P.6. He entered those items under P.F.No.46/2011. He intimated the same to the jurisdictional court, seeking permission to release those items to the owners after obtaining indemnity bond. Jurisdictional court had granted accord permission.
30. Pw.13 further deposed with respect to recoding voluntary statements of accused No.3, recovery of the properties, on the basis of his voluntary statement under the cover of Ex.P.3/ panchanama, recovery on the basis of voluntary statement of accused No.5 under the cover of Ex.P.5/ panchanama, recovery on the basis of voluntary statement of accused No.6 under the cover Ex.P.18/panchanama, recovery under Ex.P.19/panchanama. He recorded statements of the witnesses, handed over the properties seized to the intercom custody of the owners of the properties. He deposed that, he can identify the accused persons and properties seized. In the cross-examination, he denied suggestions that, no voluntary statements were given by the accused persons, no recoveries made on the basis of seizure panchanamas. He admitted 18 S.C.No.214/2016 that, these accused persons acquitted in the case registered in Cr.No.64/2011 by Commercial Street Police Station.
31. Pw.14/D.Radhakrishna is the then Inspector at Ashok Nagar police station. He deposed that, on 14.3.2011 at about 5.00 p.m., Cw.1 presented typed copy of the complaint. On the basis of said complaint, he registered a case in Cr.No.93/2011 for the offence punishable U/s.394 of I.P.C. He identified the complaint/Ex.P.1, and F.I.R., at Ex.P.21. Further, he proceed to the spot, conducted spot panchanama, recorded statements of the witnesses, who were present at the spot at the time of incident and sent injured Cw.1 for treatment to St. Filomina Hospital. He prepared rough sketch of the spot of the incident. He summoned the Dog Squad and Finger Print Experts. He collected further information with respect to stolen articles from the complainant. He filed requisition seeking body warrant to produce the accused persons, arrested by the Commercial Street police. He collected Wound Certificate of Cw.1 on 4.3.2011. On 5.5.2011 he obtained permission of this court to conduct Test Identification Parade. On 19 S.C.No.214/2016 17.5.2011 Test Identification Parade was conducted to identify accused Willium Prakash, Chandrappa, Manikanta, Praveen and Naveen Kumar. He received properties produced by H.C.No.4257 of Commercial Street Police station and articles seized under P.F.No.45/2011 and entered the same under station P.F.No.49/2011 marked as Mo.1 to Mo.5. After completion of investigation, he filed charge sheet against the accused persons.
32. In the cross-examination, he admitted that, he cannot say, the details of place of incident. He admitted that, he produced documents relating to investigation made by the Commercial Street Police. Further he admitted that, he had not seen Mo.5 seized by the Commercial Street Police. He admitted that, no chance "finger print" found on the spot, by the finger print experts. He admitted that, no documents are available with him, relating to inspection made by the finger print experts.
33. Pw.15/B.Venkatesha, the then Thahsildhar, Bengaluru North Taluk deposed about conducting Test Identification Parade of accused No.1 to 6 on 17.5.2011 at 3.00 p.m., in the Central Jail, 20 S.C.No.214/2016 Parappana Agrahara. He explained the procedure followed to conduct test identification parade. Cw.2/Smt. Santhoshibai identified all the accused No.1 to 6. Cw.4/Rahul Rao identied accused No.5/Naveen Kumar, accused No.6/ Sanni Slim. Cw.4/Suraj Kumar not identified any one of the accused persons. Cw.6/Kumar Grassy not identified any of the accused in the test identification parade. He identified his report as per Ex.P.23. In the cross-examination, no such admissions elicited to discredit the procedure of conducting test identification parade of accused persons by this witness.
34. Charge framed against the accused persons is for the offence punishable U/s. 397 of I.P.C., which reads as under;
"397. Robbery, or dacoity, with attempt to cause death or greivious hurt.-If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes greivious hurt to any person, or attempt to cause death or greivious hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."21 S.C.No.214/2016
35. To prove the ingredients of offence punishable U/s.397 of I.P.C., following facts has to be proved by the prosecution. Firstly a robbery had been taken place. Secondly deadly weapons was used at the time of commission of the said robbery by any one of the accused persons. Deadly weapon causes greivious hurt to any person or attempt to cause to any person. It is just and necessary to assess the evidence adduced on behalf of the prosecution that, whether prosecution proves the aforesaid ingredients in this case.
36. Pw.1/Subhash Chand even though identified the accused persons, in the cross-examination he resisted from his supported version. He had not produced any documents to show that, alleged gold articles were pledged in his shop. He failed to explain description of the accused persons. He admitted that, he is unable to say whether accused are the same robbers who entered into his shop and robbed. He further admitted that, as per the say of the police, he stated that, accused are the persons who robbed his shop. Due to the said fatal admissions given in the cross- examination of Pw.1, it is difficult to accept the evidence of Pw.1. 22 S.C.No.214/2016
37. Pw.3/ Santhosh Bai failed to identify the accused persons to say that, whether they are the same persons committed robbery in their shop.
38. Pw.4/ Suraj Kumar deposed in support of the prosecution witnesses and identified the accused persons. But in the cross-examination, Pw.4 admitted that, he is seeing the accused persons appeared before the court for the first time. He has not seen them any where before. Hence, evidence of eyewitness to the incident, Pw.1, Pw.4, Pw.5 not helpful to the prosecution to prove the involvement of these accused persons in the alleged offence of commission of robbery.
39. Pw.5, Pw.6, Pw.7, Pw.8, Pw.11 are mahazar witnesses not supported the contents of mahazar for which police taken their signatures as panch witness. Hence, recovery of robbed articles from the possession of the accused persons not proved.
40. Pw.9, Pw.10, Pw.12 to Pw.14 police staff and officers deposed about duty performed by them during the course of 23 S.C.No.214/2016 investigation. Pw.15/ Executive Magistrate who conducted Test Identification Parade. In the said Test Identification Parade also all witnesses not identified the accused persons. Hence, test identification parade also not conclusive proof to hold that, the accused persons involved in the alleged offence of robbery committed in the shop of Pw.1.
41. In view of discrepancies in the evidence of eyewitnesses Pw.1, 3, Pw.4, prosecution not succeeded to prove the fact of robbery committed by the accused person in the shop of complainant/Pw.1. Prosecution not examined the doctor, who treated the injured to show that, at the time of commission of robbery, robbers used deadly weapons, caused greivious injuries to the injured. Above from all, no seized articles produced before the court. No documents produced by the complainant to show that he was in possession okf gold ornaments alleged to be robbed from his shop. As per the judgment of Hon'ble Supreme Court of India, properties may be identified through photographs. But in this case, 24 S.C.No.214/2016 no such photographs also produced for clear identification of the ornaments.
42. For the aforesaid discussions and reasons stated above, it is held that, prosecution failed to prove that, accused No.1 and other accused on 14.3.2011 at about 1.20 p.m., with common intention, entered into the Pawn Broker Shop of Cw.1 situated at No.8/2, Austin Town, Y.G.Palya, South Cross street, within the jurisdiction of Ashok Nagar police Station, Bengaluru for committing robbery. Accused No.1, 3 and 4 watching out side of the said shop and accused No.2 used a deadly weapon, accused No.5 and 6 showed knife and long to Cw.2 to 6 committed dacoity of gold ornaments about 1404.150 grams valued about Rs.25 lakhs and accused No.6 caused greivious hurt to Cw.1, taken away Rs.25,000/- which was in the cash drawer of the said shop by showing long to Cw.1 and thereby committed offences punishable U/s.395 and 397 of I.P.C.
43. In this case Investigating Officer not produced the seized weapons, said to have been used by the accused persons for 25 S.C.No.214/2016 commission of robbery in the shop of Cw.1. Accordingly, point No.1 is answered in the Negative.
44. POINT NO.2: In view of the above findings on point No.1, accused No.6 is entitled for acquittal. Hence, the following order is made;
ORDER Invoking provisions /U/s.235(1) of Cr.P.C., accused No.6 is hereby acquitted for the offences punishable U/s.395 and 397 of I.P.C.
His bail bond and surety bonds shall stands cancelled.
Accused No.6 is herby directed to execute fresh bail bond for Rs.1,00,000/- as required U/s.437-A of Cr.P.C., and same shall be in force for a period of six months from this day.
This file shall be preserved till conclusion of trial against split up accused.
26 S.C.No.214/2016
Office is hereby directed to issue Release Intimation to Jail Authorities to release the accused No.6 forthwith, if he is not required in any other case.
Office is directed to take personal bond of accused No.6 for Rs.1,00,000/- as per Section 437-A of Cr.P.C.
Further, office is directed to send the certified copy of this judgment to the District Magistrate of Bengaluru city, as required U/s.365 of Cr.P.C. (Dictated to the Judgment writer directly on computer, typed by her and corrected, signed and then pronounced by me in the open court on this 3rd day of July 2019.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.
27 S.C.No.214/2016ANNEXURE I. List of witnesses examined on behalf of the Prosecution:-
-Nil-
II. For Defence:-
- Nil-
III. List of exhibits marked on behalf of the Prosecution side:-
-Nil-
For Defence side:-
-Nil-
IV. List of material objects marked:-
-Nil-
(RAJESHWARA)
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
(CCH-65), BENGALURU CITY