Bangalore District Court
State By Jalahalli vs Accused No.2 And 3 Have Appeared Before on 2 January, 2023
KABC030541352018
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 2nd day of January 2023
Present: Shri Anand T Chavan, B.Com., LL.B(Spl.).
I Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C.No.20000/2018
Date of Offence : 06.03.2017
Name of complainant : State by Jalahalli
Police Station, Bengaluru.
(By Learned Sr. APP)
Name of accused : 1. Sathyanarayana Prasad
@ Sathya @ Prasad @ Satish
2. Shivarama @ Kutti
S/o Cheluvaiah,
aged 37 years,
R/o No.8, 2nd cross,
Vaddarapalya,
Horamavu main road,
Bengaluru 43.
3. Vinod R. @ Chandra,
S/o Ramappa,
aged 23 years,
2 C.C.No.20000/2018
R/o Peramachanahalli,
village, Chinnasandra
Post, Kaiwara Hobli,
Chintamani taluk,
Chickballapur District.
(By Shri Nagendra Prasad B.M.,
Advocate)
(Case against A.1 is split up)
Offences complained off: U/s.379 R/w Sec.34 of IPC,
66(C) of I.T. Act.
Plea of accused : Pleaded not guilty
Final Order : Accused are acquitted
Date of Order : 02-01-2023
JUDGMENT
Sub-Inspector of Police, Jalahalli Police Station, Bengaluru has filed charge sheet against accused for offences punishable under Section 379 R/w Sec.34 of IPC and u/s 66(C) of Information Technology Act.
2. Brief facts of prosecution case are that:-
That on 06-03-2017 at 12.30 p.m. while C.W.1 came from Kengeri in a BMTC bus and he alighted the bus near BEL circle, he found that his purse consisting of cash of Rs.1,350/- and ATM card was 3 C.C.No.20000/2018 missing and some one had committed an act of pick pocketing. Thereafter it came to his notice though SMS of mobile phone that the thieves had purchased gold for Rs.87,315/- from R.R.Gold Palace by using his ATM card. Thereafter on same day C.W.1 lodged first information before Jalahalli Police Station, which was registered by them in their P.S. Cr.No.25/2017 and FIR is issued. Subsequently on 12-07-2017 C.W.8 I.O. deputed C.Ws.5 to 7 police officials for search of accused persons of this case and accordingly said officials produced accused No.1 to 3 on same day. I.O. recovered gold bracelet weighing 46 grams, cash of Rs.12,100/- and Rs.8,200/- from the custody of accused persons under mahazar. After recording statements of material witnesses and after completion of investigation I.O. filed charge sheet against accused for above offences.4 C.C.No.20000/2018
3. Accused No.1 to 3 were arrested during crime stage and they are enlarged on bail. After filing of this charge sheet against accused, cognizance of alleged offences are taken and summons is issued to accused. Accused No.2 and 3 have appeared before court in pursuant to coercive steps. However, accused No.1 could not be secured and case against him is split up as per order dated 28-02-2020. Copy of charge sheet is furnished to accused No.2 and 3 u/s 207 of Cr.P.C and charge is framed against them. Accused No.2 and 3 have not pleaded guilt of alleged offences and they have claimed to be tried.
4. In order to prove the guilt of the accused No.2 and 3, prosecution has examined 5 witnesses as P.Ws.1 to 5 and got marked 14 documents as per Exs.P1 to P14. Statement of accused u/s 313 Cr.P.C. is recorded and accused No.2 and 3 have 5 C.C.No.20000/2018 denied incriminating evidence against them. Accused have not led any defence evidence.
5. On the basis of charge sheet allegations, the following points arose for consideration:
1. Whether the prosecution proves beyond reasonable doubts that accused no.2 and 3 have committed offence punishable under section 379 R/w Sec.34 of IPC?
2. Whether the prosecution proves beyond reasonable doubts that accused no.2 and 3 have committed offence punishable under section 66(C) of Information Technology Act?
3. What order ?
6. Heard arguments. Perused oral and documentary evidence adduced by the prosecution.
7. The following are findings to above points.
Point No.1 and 2 : In the Negative Point No.3 : As per final order, for the following:
REASONS 6 C.C.No.20000/2018
8. Point No.1 and 2 :These points are taken together for consideration as findings on one point have bearing on other points.
9. C.W.1/P.W.1 K.S.Suryanarayana has testified in his evidence that on 06.03.2017 he came to Bengaluru from Mysore. When he boarded a BMTC bus from Majestic to BEL Circle, at that time somebody had pick pocketed his purse, which was consisting cash of Rs.1350/-, SBI debit card, driving license, senior citizen card, his RC Card of Scooter etc., he got off from the bus at around 12.00 P.M. and noticed said theft. When he came back to BEL Circle, he started getting messages to his mobile stating that some amount was withdrawn from his SBI Debit card and nearly Rs. 87,000/- was withdrawn by concerned fraudsters. Immediately he intimated the matter to bank and got his debit card blocked. On same day at about 3.00 PM he went to Jalahalli police station and 7 C.C.No.20000/2018 lodged First Information. He identified said First Information as per Ex.P1 and his signature on it as per Ex.P1(a). P.W.1 has further testified in his evidence that after about 10 days he has given details of amount withdrawn from his account to police. After pursuing the matter for a month, police intimated that they are ready to refund an amount of Rs. 20,000/-. He received it under objections. He has identified photo showing receipt of Rs.20,000/- by him from I.O. as per Ex.P2. This witness is partly treated as hostile by prosecution and in cross-examination by learned Sr.APP., he denies that on 13-07-2017 Jalahalli police called him to police station and they showed him accused No.1 to 3 saying that they themselves committed aforesaid pickpocketing of his purse. He has also denied to have given statement before police as per Ex.P3 by identifying accused persons. Hence evidence of this witness does not help prosecution in any manner to prove guilt of accused No.2 and 3. 8 C.C.No.20000/2018
10. C.W.5/P.W.2 K.Srinivasa Murthy S/o Krishnaiah has testified in his evidence that from 2016 to 2022 he has served as HC in Jalahalli police station. On 12.07.2017 himself, C.Ws.6 and 7 were deputed for day duty for search of accused in Cr.No.13/2017 of Jalahalli police station by C.W.8. When they came near BEL Circle, they found that three persons were moving suspiciously at about 4.00 P.M. On enquiry they revealed their names as Vinod, Shivaram and Sathyanarayan Prasad and they did not give proper answers to their questions. P.W.2 has further testified that they immediately produced them before C.W.8. Accused no.1 to 3 themselves are said persons. He has further stated that two of accused are present before court and he can identify another accused if shown to him. He has identified true copy of his report as per Ex.P4 and his signature on said document as per Ex.P4(a). In cross-examination he 9 C.C.No.20000/2018 has admitted that he has not furnished any documents to show his deputation to above work. It is suggested to him that though he has not apprehended accused persons and produce them before I.O., he is deposing falsely.
11. C.W.2/P.W.3 Manjunath S/o Somaraju has identified his signature on seizure mahazar Ex.P5 as per Ex.P5(a). He had signed it at Jalahalli police station at about 4 - 5 years back with regard to pick pocketing purse of his purse. At that time police has showed him a gold bracelet and chain. However, he has turned hostile by stating that police have not shown him any person. Though this witness is treated as hostile witness and cross-examined at length by learned Sr.APP., he has denied with regard to seizure of cash as per above mahazar and identifying accused No.1 to 3 as culprits of said theft during mahazar. He has also denied that seized cash belonged to C.W.1 10 C.C.No.20000/2018 and he has given statement before I.O. as per Ex.P6. In cross-examination by defence side it is suggested to him that police have not seized any gold articles under above mahazar as deposed by him.
12. C.W.3/P.W.4 Dr.Anupama W/o Panchakshari has identified her signature on Ex.P4 mahazar with regard to pick pocketing of purse of her father-in-law , she signed it about 5-6 years back. Police showed her a gold bracelet and chain. She has identified her signature on mahazar marked as Ex.P5(b). Though this witness is also treated as hostile and cross-examined at length by learned Sr.APP., she has denied with regard to seizure of cash as per above mahazar and identifying accused No.1 to 3 as culprits of said theft during mahazar. She has also denied that police seized ATM and cash belonged to C.W.1 and she had given statement before I.O. as per Ex.P7. In cross-examination by defence side it is suggested to 11 C.C.No.20000/2018 him that police have not seized any gold articles under above mahazar as deposed by her.
13. P.W.5 Huchegowda T. S/o late H.Thimmappa has testified in his evidence that from 13.08.2013 to 31.05.2018 he has have served as PSI in Jalahalli police station. On 06.03.2017 at 3.00 p.m when he was SHO of said PS C.W.1 came to PS and lodged written First Information before him, he received the same and registered the same in their PS Cr.No.25/17 and issued FIR. He has identified First Information as per Ex.P1, FIR as per Ex.P8 and his signatures on said documents as per Ex.P1(b) and Ex.P8(a) respectively. P.W.5 has further testified that he has deputed his staff for search of accused persons. On 01.04.2017 he recorded further statement of C.W1. He has further stated that on 12.07.2017 at 4.30 PM, C.Ws.5 to 7 have produced accused No.1 to 3 before him with property related to Cr.No.13/2017 of their police station and C.W.5 has given report in this 12 C.C.No.20000/2018 regard. He has identified said report as per Ex.P4 and his signature on it as per Ex.P4(b). He has further stated that he recorded voluntary statement of accused No.1 to 3 wherein they have admitted to have committed above offence. He has identified said voluntary statements as per Exs.P9 to P11 and his signatures as per Exs.P9(a) to P11(a) respectively. P.W.5 has further testified that thereafter he has secured C.Ws.2 and 3 panchas and recovered properties produced by accused persons by conducting mahazar. He has identified true copy of said mahazar as per Ex.P5 and his signature on it as per Ex.P5(c). (original mahazar is produced in C.C.No.20002/2018). He has further testified that he seized gold bracelet of 46 gms produced by accused No.1, cash of Rs.12,300/- produced by accused No.2 and cash of Rs. 8200/- produced by accused No.3 under P.F. No. 37/2017. He has identified the true copy of said P.F. as per Ex.P12 and his signature on it 13 C.C.No.20000/2018 as per Ex.P12(a). P.W.5 has further testified that he has recorded statements of C.Ws.2, 3, 6 and 7 and one more further statement of C.W.1 with regard to identification of property and accused persons. Thereafter RR Gold Palace have issued copy of tax invoice of concerned purchaser. He has identified true copy of said document as per Ex.P13. P.W.5 has further testified that thereafter they have received statement of account of C.W.1 from SBI and he identified it as Ex.P14. On same day he has recorded statement of C.W.4. Thereafter as property of this case were recovered in Cr.No.13/17, by enclosing the connected documents he has filed charge sheet against accused No.1 to 3. He identified accused persons present before Court. In cross-examination by defence side, entire evidence of this witness is denied in toto and it is suggested to him that though seized property is own money of accused persons and though accused have not given any voluntary 14 C.C.No.20000/2018 statements, he has falsely implicated them in present case. It is further suggested that though there is nexus between alleged theft and accused, false charge sheet is filed against them for statistical purpose. P.W.5 has denied above suggestions.
14. Thus on perusal of entire evidence of prosecution it shows that except hostile evidence of the informant, seizure mahazar witnesses and evidence of official witnesses, absolutely there is nothing on record to prove that accused No.2 and 3 themselves have committed an act of theft by pickpocketing the purpose of informant. The above witnesses have completely turned hostile with regard to identification of accused and with regard to seizure of incriminating materials from them. Moreover, it shows that accused persons are apprehended only on the basis of suspicion and though the aforesaid gold bracelet and cash are said 15 C.C.No.20000/2018 to have been recovered from them, such recovery is not establish to the satisfaction of the court in view of hostile evidence of both mahazar witnesses. Further I.O. has not secured any electronic data including CCTV footage of concerned gold shop in order to prove that accused persons themselves had been to said shop and they purchased gold articles by using ATM card of informant by an act of impersonation as per case of prosecution. Further evidence of I.O. is not corroborated with evidence of other witnesses. Hence aforesaid evidence is insufficient to hold that accused No.2 and 3 had committed alleged theft of purse of informant. Hence in view of above reasons, the evidence of prosecution witnesses has not inspired the confidence of the Court with regard to alleged guilt of accused and as such it is incumbent upon this Court to hold that the prosecution has failed to prove beyond all reasonable doubts that 16 C.C.No.20000/2018 accused No.2 and 3 have committed offences punishable under Section 379 R/w Sec.34 of IPC and under Sec.66(C) of Information Technology Act. Hence, Point No.1 and 2 are answered in Negative.
15. Point No.3: -
For the reasons stated and findings given on point No.1 and 2, following is:
ORDER Acting under Section 248(1) of Cr.P.C. the accused No.2 and 3 are acquitted for the offences punishable under Section 379 R/w Sec.34 of IPC and under Sec.66(C) of Information Technology Act.
The bail bond and surety bond executed by accused No.2 and 3 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
The entire records of this case shall be enclosed with split 17 C.C.No.20000/2018 up case filed against accused No.1. Further the interim custody of release articles will continue with informant till disposal of split up case against accused No.1.
( Typed by me directly on computer, revised, corrected by me and then pronounced in open court on this the 2 nd day of January 2023).
(Anand T Chavan) st 1 Addl. CMM., Bengaluru.
ANNEXURE List of witnesses examined for prosecution :-
P.W.1, K.S.Suryanarayana Reddy, P.W.2, K.Srinivasa Murthy, P.W.3, Manjunath, P.W.4, Dr.Anupama, P.W.5, Huchche Gowda T.;
List of exhibits marked for prosecution :-
Ex.P1, First information,
Ex.P1(a), Signature of P.W.1,
Ex.P1(b), Signature of P.W.5,
Ex.P2, Photograph,
Ex.P2(a), Signature of P.W.1,
Ex.P3, Statement of P.W.1,
Ex.P4, Report,
Ex.P4(a), Signature of P.W.2,
Ex.P4(b), Signature of P.W.5,
Ex.P5, Mahazar,
Ex.P5(a), Signature of P.W.3,
Ex.P5(b), Signature of P.W.4,
18 C.C.No.20000/2018
Ex.P5(c), Signature of P.W.5,
Ex.P6, Statement of P.W.3,
Ex.P7, Statement of P.W.4,
Ex.P8, First information report,
Ex.P8(a), Signature of P.W.5,
Ex.P9, Voluntary statement of accused
No.1,
Ex.P10, Voluntary statement of accused
No.2,
Ex.P11, Voluntary statement of accused
No.3,
Ex.P9(a) to
Ex.P11(a), Signatures of P.W.5,
Ex.P12, True copy of P.F. No.37/2017,
Ex.P12(a), Signature of P.W.5,
Ex.P13, True copy of tax invoice,
Ex.P14, Account statement of C.W.1;
List of material object :NIL
List of witnesses examined for defence:- NIL List of documents marked for defence:- NIL 1st Addl. CMM., Bengaluru.19 C.C.No.20000/2018
(Judgment pronounced in the Open Court vide separate judgment) ORDER Acting under Section 248(1) of Cr.P.C. the accused No.2 and 3 are acquitted for the offences punishable under Section 379 R/w Sec.34 of IPC and under Sec.66(C) of Information Technology Act.
The bail bond and surety bond executed by accused No.2 and 3 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
The entire records of this case shall be enclosed with split up case filed against accused No.1. Further the interim custody of release articles will continue with informant till disposal of split up case against accused No.1.
I ACMM, Bengaluru.