Bangalore District Court
State Of Karnataka By vs V. Madhu on 15 May, 2015
IN THE COURT OF THE LII ADDL. CITY CIVIL & SESSIONS
JUDGE (CCH-53), BENGALURU CITY.
Dated this the 15th day of May, 2015
PRESENT:
Smt. Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge, Bengaluru City.
: SESSIONS CASE NO. 1186/2013 :
COMPLAINANT : State of Karnataka by:
Rajagopalanagar Police Station,
Bengaluru.
(By Learned Public Prosecutor)
-V/S-
ACCUSED : 1. V. Madhu,
S/o. Venkataswamy,
Aged 21 years,
Residing at 2nd Cross,
Shambavi Nagar, Laggare,
Bangalore.
Native:- Muniyappana Palya,
Ramanagara Taluk,
Ramanagara District.
2. Naveen,
S/o. Rajanna,
Aged 21 years,
Residing at No.543, 1st Cross,
10th Main Road,
2 SC No.1186/2013
Byraveshwara Nagar, Laggare,
Bangalore.
Native:- Hosahalli Village,
Magadi Taluk,
Ramanagara District.
3. Prabhu,
S/o. Raju,
Aged 24 years.
Residing at No.157, 7th Cross,
Near Karimariyamma Temple,
Rajagopalanagar,
Bangalore.
Native:- Mathsandra Village,
Haradanahalli Post,
Nagamangala Taluk,
Mandya District.
4. Mohankumar @ Mohan,
S/o. Nagaraj,
Aged 20 years,
Residing at No.157,
Near Karimariyamma Temple,
Rajagopalanagar,
Bangalore.
Native:- Peresandra,
Hanumanthapura Joradi,
Chikkaballapura District.
5. Manja @ Naveena (ABSCONDING)
(By Sri. Honnappa. S, Advocate, for
accused No.1 & 4)
3 SC No.1186/2013
(By Sri. MTH, Advocate, for accused
No.2)
(By Sri. K. Srinivasa Gowda,
Advocate, for accused No.3)
1. Date of commission of offence 20.07.2013
2. Date of report of occurrence 20.07.2013
3. Date of arrest of accused 20.07.2013
4. Date of release of accused on A-1 to A-4 are on bail.
bail
5. Date of commencement of 24.01.2014
Evidence
6. Date of closing of evidence 24.04.2015
7. Name of the complainant Shivakumar V
8. Offences complained of Section 399 & 402 of IPC
9. Opinion of the Judge Guilt of the accused No.1
to 4 not proved
10. Order of sentence As per final order
: JUDGMENT :
The Police Inspector of Rajagopalanagar police station, Bengaluru City, has filed the charge sheet against the accused persons for the offences punishable under sections 399 & 402 of IPC.
2. The prosecution has built up the story against the accused persons that on 20.07.2013, at about 5.45 a.m., in the early morning, near Rolling Mill coming within the jurisdiction of 4 SC No.1186/2013 Rajagopalanagar police station, the accused No.1 to 4 with absconding accused No.5 had assembled for the purpose of committing dacoity and making preparation to commit dacoity of money and ornaments of the persons who were proceeding on the road and in the vehicles by restraining and giving threat to them armed with deadly weapons. On credible information received, CW.1 / Police Inspector along with his staff went to the spot along with panch witnesses and raided them and caught hold the accused No.1 to 4, but accused No.5 by leaving the deadly weapons at the spot, ran away from the spot. CW.1, by arresting the accused No.1 to 4, seizing the said material objects and a Tata Indica Car which was used at the time of incident, by conducting the mahazar by the investigating officer; and the materials being collected, the investigating officer has filed the charge sheet against the accused No.1 to 4; since accused No.5 being absconded and accordingly, the charge sheet was submitted to the Learned Magistrate, since the complaint and FIR was submitted to the jurisdictional Magistrate. 5 SC No.1186/2013
3. The Learned Magistrate took the cognizance and registered the case against the accused No.1 to 4 in CC No.14466/2013. Thereafter, the Learned Magistrate committed the case against the accused persons to the Hon'ble Principal City Civil & Sessions Judge, Bengaluru City, after compliance of provisions of sections 207 & 209 of Cr.P.C. Thereafter, the case has been registered in SC No.1186/2013 and made over to this court for disposal in accordance with law.
4. Initially the accused No.1 to 4 were in judicial custody and they were released on bail. On securing the presence of these accused persons and hearing the Learned Public Prosecutor and defence counsel and the accused persons, this court opined that there are grounds for framing charges and accordingly the charges are framed and same are read over to the accused persons with explanation. The accused persons did not plead guilty and claimed to be tried, as it was recorded as required under section 228(2) of Cr.P.C.
6 SC No.1186/2013
5. The prosecution to prove the guilt of the accused persons, has examined 3 witnesses as P.Ws.1 to 3, and got marked 4 documents at Exs.P.1 to Ex.P.4, and also got marked 3 material objects at M.O.1 to M.O.3. After closure of the side of the prosecution evidence, the statements of the accused persons under section 313 of Cr.P.C., have been recorded. The accused persons have denied the incriminating evidence put to them at that stage. The accused persons do not choose to adduce any defence evidence.
6. I have heard the arguments of the learned Public Prosecutor for the prosecution and heard the Learned defence counsel for the accused persons. Perused the records.
7. Following points are formulated for consideration of this court:
(1) Whether the prosecution has proved beyond reasonable doubt that, on 20.07.2013, at about 5.45 a.m., in the early morning, near Rolling Mill coming within the jurisdiction of Rajagopalanagar police station, the accused 7 SC No.1186/2013 No.1 to 4 and absconded accused No.5 were making preparation to commit dacoity on public who were going on the lonely place of road, by walk or in the vehicles restraining and giving threat to the armed with deadly weapons and thereby committed the offence punishable under Section 399 of I.P.C.?
(2) Whether the prosecution has further proved beyond reasonable doubt that, on the said date, time and place, the accused No.1 to 4 and absconded accused No.5 had assembled for the purpose of committing dacoity on public who were going on the lonely place of road, by walk or in the vehicles restraining and giving threat to the armed with deadly weapons and thereby committed the offence punishable under Section 402 of I.P.C.?
(3) What order?
8. My findings on the above points are:-
POINT NO.1 - In the Negative.
POINT NO.2 - In the Negative.
POINT NO.3 - As per final order,
for the following:
: REASONS :
9. Points No.1 & 2:- Since these two points are interlinked with each other and require common discussion and to avoid repetition of facts, they are taken together for common consideration.
8 SC No.1186/2013
10. The prosecution in order to prove the guilt of the accused persons, has tried to adduce the evidence of only 3 witnesses i.e., CW.1 as P.W.1 who is none other than the complainant and PSI, who has conducted raid and P.W.2 / CW.5 is the Head Constable, who has accompanied P.W.1 at the time of incident. P.W.5 / CW.10 is also the investigating officer, who was working as Police Inspector during the period of incident and according to him, he has taken charge from P.W.1 and verified the materials collected, pertaining to the investigation of this case and that since P.W.1 has completed the investigation, he has submitted the charge sheet.
11. The reference made in respect of seizure mahazar at Ex.P.1; the report submitted to the jurisdictional Magistrate is at Ex.P.2; the FIR referred by P.W.1 is at Ex.P.3 and the photographs pertaining to the Tata Indica Car alleged to be used in the incident two in numbers and they are marked as Ex.P.4.
9 SC No.1186/2013
12. The prosecution in order to prove the guilt of the accused persons beyond all reasonable doubt, has built-up the case against the accused persons for the offences punishable under sections 399, 402 of I.P.C., that the accused No.1 to 5 assembled and making preparation to commit dacoity of money and golden ornaments held in the custody of public on the road proceeding by walk and in the vehicles in a lonely place on road and it was on 20.07.2013, at about 5.45 a.m., at nearby park, Rolling Mill, coming within the jurisdiction of Rajagopalanagar police station. The accused being 5 persons assembled for the purpose of committing dacoity of the persons and vehicles moving on the road alone, by restraining and threatening them armed with deadly weapons and at the said place they are making preparations to commit dacoity, holding the deadly weapons like wooden clubs, an iron rod, a long and a chilly powder packet and by using Tata Indica Car. According to the prosecution further made out the case that the complainant - PSI / P.W.1 along with his staff had raided them at the said place on securing two panch witnesses CW.2 to CW.4 and along with his staff 10 SC No.1186/2013 CW.5 to CW.8 on receiving credible information and watching at the place of incident, surrounded the assailants, caught hold 4 accused persons, one person was escaped, by leaving the weapon at the spot. Hence, after arresting the accused persons and seizing the weapons at the spot by conducting the mahazar in the presence of panch witnesses and that a case was registered in Crime No.373/2013, etc.
13. In this connection, P.W.1 / CW.1 is the complainant who spoken to about the alleged incident; Siddappa the Head Constable of Rajagopalanagar police station (CW.5) who deposed as P.W.2 and also another Police Inspector, B.Vijayakumar (CW.10) who deposed as P.W.3 are only the witnesses deposed in the witness box. The prosecution has given up the evidence of CW.6, CW.7, CW.8 & CW.9. But it has failed to secure the presence of important witnesses i.e., C.W.2 to C.W.4 i.e., the witnesses who went to the spot and witnessed the incident and they are also panch witnesses to the seizure mahazar. P.W.1 to 3 are nothing but official witnesses, hence it needs corroboration of other important 11 SC No.1186/2013 witnesses. No doubt, P.W.1 & 2 have spoken to about the presence of 5 accused persons. Out of them, they apprehended 4 accused persons and one accused person was escaped. They have deposed about recovery of material objects i.e., MO.1 wooden clubs 5 in numbers, MO.2 long and MO.3 chilly powder packet.
14. It is important to consider the ingredients of the alleged offences so as to attract the penal provisions of sections 399 & 402 of I.P.C. Whether only gathering of said 5 assailants and also holding the alleged weapons are sufficient to convict the accused persons? Or whether the prosecution has to prove further more beyond all reasonable doubt? And whether the assailants were making preparation to commit dacoity? etc., are the material facts to be proved beyond all reasonable doubt.
15. P.W.3, as already considered that he is nothing but the investigating officer as he has stated that on 30.07.2013, he conducted the further ending part of investigation. Since the investigation process being completed, he verified the records and 12 SC No.1186/2013 submitted the charge sheet to the court. Hence nothing more explanation and discussion is necessary with reference to the evidence of this witness as he has submitted only the charge sheet.
16. From the evidence on record, it is revealed that P.W.1 & 2 have stated about receiving of credible information that unknown persons armed with deadly weapons parking a car, the place of incident, were assembled. It was the information of assemblage of assailants to commit criminal act or otherwise. According to PW.1 & 2 that, CW.2 to 4 were secured as panch witnesses and along with PW.2, CW.3 to 8 i.e., staff, the I.O. i.e., P.W.1 went to the spot and conducted the raiding process at the spot of incident i.e., the manner in which he along with his staff attacked the assailants i.e., accused No.1 to 4 and absconded accused No.5 and caught hold accused No.1 to 4 and out of them, one assailant i.e., accused No.5 was escaped and on enquiry and search of person of accused No.1 to 4, the I.O. found the material objects i.e., wooden clubs, one long and one chilly powder packet. PW.1 has referred the mahazar which is at Ex.P.1 and the report is at Ex.P.2 and he identified his 13 SC No.1186/2013 signatures at Exs.P.1(a) & P.2(a). FIR is at Ex.P.3 and he identified his signature at Ex.P.3(a) and committing objects seized are MO.1 (4 wooden clubs), MO.2 (long) and MO.3 (chilly powder packet). He has also seized the car, which was alleged to be used at the incident spot. Its photos were taken at the time of seizure mahazar and the said photographs are at Ex.P.4. He has spoken to that mahazar was conducted in the presence of the said panch witnesses (CW.2 to 4) and the process was also undertaken by him and also recorded their statements. Even he has taken the voluntary statements of the accused persons, but they were not marked. P.W.2 being the Head Constable, who has accompanied PW.1 in the process of raiding assailants at the spot, supporting the evidence of PW.1 in connection with alleged incident spot. But he being the official witness, it needs corroboration by the evidence of independent witnesses. But such supporting evidence of independent witnesses is not forthcoming and it is fatal to the prosecution case.
17. Except evidence of these interested official witnesses, no material witnesses have been brought on record. It is 14 SC No.1186/2013 suppression of material witnesses i.e., the evidence of CW.2 to 4. Therefore, the version of PWs.1 & 2 and contents of seizure mahazar has not been corroborated by the independent witnesses i.e., CWs.2 to 4. It is being defect and for the following reasons, the evidence of interested official witnesses cannot be believed, as the prosecution has proved the case beyond all reasonable doubt.
18. The place of apprehending the accused persons as explained in the seizure mahazar and also from the evidence of P.W.1 & 2, it is nearby or located in front of Rolling Mill. The time when P.W.1 apprehended the accused persons along with his staff CW.5 to 8 was in the early morning i.e., at 5.45 a.m. Therefore, the argument put forth by the Learned defence counsel is quite acceptable, that the said place nearby a park is public place and the persons during that early morning, would have normally, a morning walk in the park and it was not such a place that the accused persons were assembled to commit the dacoity and it was preparation, otherwise the prosecution ought to have investigated and recorded the statements of independent witnesses and it could 15 SC No.1186/2013 have examined material witnesses in this connection. Therefore, the said place of apprehending the accused persons is the public place that such apprehension made by the police, has not been supported by any independent witnesses though P.W.1 has stated availability of persons in the said locality around the place of incident. Even the prosecution has failed to adduce the evidence of important witness i.e., CW.9 who according to the prosecution was the official witness went for getting it confirmed about the credible information received that the accused persons were assembled there and making preparation for committing of dacoity. It is also one of the material defect and suppression of evidence of material witness. Even the mahazar and FIR from which it is revealed that the alleged credible information was that some assailants gathered at the said place of incident and whereas P.W.1 & 2 have not disclosed specifically that CW.9 went nearby the assailants and got confirmed about the alleged assemblage and preparation of committing alleged dacoity, as contended in Ex.P.1. It is material omission. Apart from this, the seizure of material objects from the possession of the accused No.1 16 SC No.1186/2013 to 4 i.e., MOs.1 to 3 is not at all been proved by the prosecution by adducing the evidence of panch witnesses CWs.2 to 4, though it is specific case of the prosecution that the investigating officer secured CWs.2 to 4 as panch witnesses and went to the spot and apprehended the accused persons in the manner as stated in Ex.P.1. Therefore, the seizure mahazar is not proved to come to the conclusion that the investigating officer has recovered MOs.1 to 3, with due process of law as per Ex.P.1, so as to link them to the alleged committing of offence.
19. From the above discussion on the basis of available materials and evidence on record, it is revealed that the prosecution is not able to prove the ingredients of said offences so as to convict the accused No.1 to 4. It is settled law that mere holding of the weapon does not amount to assemblage to commit dacoity and it must be proved with cogent evidence. It is held in the decisions reported in 1979 SC 1412 (Chaturi & Others Vs. State of Bihar), wherein it is held that only assemblage of persons with deadly weapons, itself will not prove that they have committed the offence 17 SC No.1186/2013 of assemblage and making preparation to commit dacoity, punishable under section 299 & 402 of IPC. In another decision reported in 1987 Crl.L.J. 1391 (Mohd. Hussein Vs. State of Bihar) as under:
"The mere fact that the accused persons were in a lonely place at night in a house under construction and incriminating articles like firearms, bombs and a Bhujali were recovered from their possession, is not sufficient to prove the charge that they assembled for making preparation for commission of dacoity."
In the decision reported in 2003 Crl.L.J. 1321 (All) (Amar Singh Vs. State) as under:
"The accused persons alleged to have made preparations for commission of dacoity. The evidence showed that they were possessing arms but they had not used them. In addition to this, not a single penny was recovered from their possession and there was no public witness in support of prosecution case. It was held that accused persons were entitled to the acquittal."
20. In the present case, it is not during night hours and it is nearby the park where the public in the locality have morning walk and it cannot be considered as lonely place. If at all the accused persons were having assemblage and preparation to commit dacoity, 18 SC No.1186/2013 the prosecution would have collected the materials by recording the statements of the persons from the said locality specifically the park area. Apart from this, the important witnesses i.e., CWs.2 to 4 are not examined. Apart from this, the confirmation of credible information has not been proved by adducing the evidence of CW.9 that, as per instructions of P.W.1, CW.9 went at the spot to get the credible information confirmed as genuine that the accused persons have assemblage and making preparation to commit dacoity. Thus, it creates a doubt that the prosecution has failed to believe the version of PWs.1 & 2 beyond reasonable doubt.
21. It is held in the decision reported in 2007 Crl.L.J. (NOC) 555 (Utt) (Jabbar Vs. State), wherein it is considered the legal aspect though the accused persons were convicted, but the procedure and evidence on record in the said decision is relevant because the police party on receiving information rushed to the spot and arrested dacoits. The FIR was lodged promptly and eyewitnesses had given details of weapons and ammunitions recovered from the accused along with their planning about dacoity. 19 SC No.1186/2013 But in the present case, though the prosecution case is that PW.1 had received credible information, but it is not proved that it has been duly got it confirmed about the assemblage and preparation of alleged 5 persons, gathered at the said spot in order to commit some act or dacoity. Even the evidence of CW.9 is not forthcoming to support the prosecution case about getting the credible information whether it is genuine or otherwise. P.Ws.1 & 2 have not personally went nearby the accused persons to get the credible information confirmed. Hence their evidence need corroboration of CW.9. Apart from this, the prosecution has failed to get the evidence of panch witnesses as referred above, who are important witnesses to give the details of the incident so also the weapons recovered from the accused persons. The I.O. did not cited independent witnesses who were available at the spot, as PW.1 & 2 admitted the place of incident as a public place and people had morning walk in the park. There is no explanation why any of such available persons from that located were cited as witnesses. It goes 20 SC No.1186/2013 to the root of the case and create suspicion regarding the incident. There is material omission which is fatal to the prosecution case.
22. Therefore, it is clear from the evidence on record that the prosecution has failed to bring on record on credible materials though the investigating officer has apprehended the accused persons, but failed to bring home the guilt of the accused persons beyond all reasonable doubt that their assemblage and holding of MOs.1 to 3 was to commit dacoity. Thus, whatever evidence of PW.1 to 3 as discussed above to prove the guilt of the accused persons, is not sufficient, as their evidence is without cogent and corroborative evidence of independent and material witnesses as held above. Therefore, in view of the above discussion, the prosecution has failed to prove the alleged guilt of the accused persons so as to convict them under section 399, 402 of I.P.C. Hence, the accused persons are entitled for benefit of doubt and acquittal. Hence, Points No.1 & 2 are answered in the 'Negative'. 21 SC No.1186/2013
23. Point No.3:- In view of the above discussion and conclusion arrived at, this court is hereby proceeded to pass the following:
ORDER The accused No.1- V. Madhu, accused No.2- Naveen, accused No.3- Prabhu and accused No.4- Mohankumar @ Mohan are acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 399 & 402 of I.P.C.
ii) The bail bonds and surety bonds of the accused No.1 to 4 stand cancelled.
iii) The office is hereby directed to preserve the properties marked at M.O.1 to M.O.3, in this case, till absconding accused No.5- Manja @ Naveena is to be traced and trial against him, is concluded.
(Dictated to the Judgment Writer, transcribed by him, then corrected and pronounced by me in the open court on this the 15th day of May, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
22 SC No.1186/2013ANNEXURE
1. LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Shivakumar. V.
P.W.2 Siddappa
P.W.3 B. Vijayakumar
2. LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:
Ex.P.1 Seizure mahazar.
Ex.P.1(a) Signature of P.W.1.
Ex.P.2 Report.
Ex.P.2(a) Signature of P.W.1.
Ex.P.3 First Information Report.
Ex.P.3(a) Signature of P.W.1.
Ex.P.4 Photographs of Car (2 in Nos.)
3. LIST OF WITNESSES EXAMINED AND DOCUMENTS EXHIBITED FOR ACCUSED:
- NIL -
4. LIST OF MATERIAL OBJECTS PRODUCED AND GOT MARKED FOR PROSECUTION:
M.O.1 Wooden sticks. (4 in Nos.)
M.O.2 Long.
M.O.3 Chilly powder packet.
(Yadav Vanamala Anandrao)
LII Addl. City Civil & Sessions Judge,
(CCH-53), Bengaluru.
23 SC No.1186/2013
Judgment pronounced in the Open Court
(vide separately)
ORDER
The accused No.1- V. Madhu, accused
No.2- Naveen, accused No.3- Prabhu and
accused No.4- Mohankumar @ Mohan are
acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 399 & 402 of IPC.
ii) The bail bonds and surety bonds of the accused No.1 to 4 stand cancelled.
iii) The office is hereby directed to preserve the properties marked at M.O.1 to M.O.3, in this case, till absconding accused No.5- Manja @ Naveena is to be traced and trial against him, is concluded.
(Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
24 SC No.1186/2013