Bangalore District Court
State By vs In: A1. Lakshmikantha on 25 February, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 25 th day of February, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.853/2013 c/w SC.No.631/2020
COMPLAINANT : State by:
Jnanabharathi Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED in: A1. Lakshmikantha
SC.No.853/2013 @ Vinay @ Gunda,
S/o Ramakrishnappa,
Aged about 29 years,
R/at No.32,
Near Yeshwanthapura Railway Station,
Muneshwaranagara, Bengaluru.
Native of Karagere Village,
Nagamangala Taluk, Mandya District.
(By Sri.M.Gangadhara Shetty, Advocate.)
ACCUSED in: A2. Babu @ Choodi Babu,
SC.631/2020 S/o Ameer Jan,
Aged about 35 years,
R/at IT Layout,
Nagamangala Town,
Mandya District.
(By Sri.M.Gangadhara Shetty, Advocate.)
2 S.C.No:853/2013 &
S.C.No.631/2021
DATE OF:
Occurrence of offence : 30.11.2012
Commencement of trial : 21.10.2014
Closing of trial : 19.01.2022
Name of the complainant: Smt.Shylaja.
Offence alleged : Under Sections 394 and
413 of IPC.
Opinion of the judge : Charge leveled against the
accused are not proved.
Sentence or order : Acquittal.
COMMON JUDGMENT
Since both the cases arise out of same crime and
common evidence is recorded, they are taken up together
for judgment.
2. The Jnanabharathi police have filed the present
charge sheet against the accused in Crime No.462/2012
for the offences punishable under Sections 394 and 413 of
IPC.
3. The brief facts of the prosecution case are that;
a) On 30.11.2012 at about 4:00 p.m. when CW-
1/Smt.Shylaja was walking near the house No.394, 7 th
3 S.C.No:853/2013 &
S.C.No.631/2021
Cross, NGEF Layout, Mallathahalli, within the jurisdiction
of Jnanabharathi police station, A-1 came from her behind
on a black colour Bajaj Pulsar motorcycle bearing
registration No.KA-02 HA-5526; pushed down CW-1 and
caused simple injuries to her; snatched gold mangalya
chain from her neck and escaped from the spot.
b) Both the accused have sold and pledged the
golden ornaments they have stolen within the limits of
different police stations to the jewelery shops, Muthoot
Finance and Mannapuram Finance in their names.
Accordingly, the complaint was filed.
4. A-1 and A-2 were produced under remand warrant
and were in the judicial custody. Since, the case was
exclusively triable by the Court of Sessions, the trial Court
committed the case to the Court of Principal City Civil and
Sessions Judge, Bengaluru by directing the concerned jail
authority to produce A-1 and A-2 before the Court of
Sessions whenever summoned.
5. On committal of the case, it was allotted to this
Court for disposal in accordance with law. Thereafter, A-1
and A-2 were enlarged on bail by this Court.
4 S.C.No:853/2013 &
S.C.No.631/2021
6. Heard before charge. Charges framed and plea of
A-1 and A-2 was recorded for the offences punishable
under Sections 394, 411 and 413 read with Section 34 of
IPC for which, they pleaded not guilty and claimed to be
tried. Hence, the case was posted for common trial.
7. During the course of trial, since A-2 remained
absent and the process issued against him and his surety
went in vain, vide order dated 24.02.2020, the case was
ordered to be split up against him and registered in
SC.No.631/2021.
8. In support of its case, in the course of trial, the
prosecution in all got examined 16 witnesses i.e. CWs-1 to
3, 5, 24, 4, 26, 9, 6, 8, 7, 11, 31, 25 and 29 respectively as
PWs-1 to 16. Got exhibited 24 documents at Ex.P-1 to 24.
Got marked 3 material object at MOs-1 to 3 and closed its
side.
9. Before splitting up of case against A-2, apart from
CWs-25, 29 and 31, all the other witnesses were examined.
Hence, after securing the presence of A-2, the split up case
against him in SC.No.631/2021 was ordered to be clubbed
5 S.C.No:853/2013 &
S.C.No.631/2021
with this case vide order dated 05.10.2021 and opportunity
was given to him to cross examine CWs-25, 29 and 31.
10. The counsel for A-2 has adopted the cross
examination conducted for A-1 so for CW-31. Due to
oversight without reissuing process to CWs-25 and 29 for
cross examination, the case was posted to record the
statements of A-1 and A-2 under Section 313 of Cr.P.C.
However, the counsel for A-1 who is also representing A-2
submitted that he has no additional cross examination on
behalf of A-2 to CWs-25 and 29 and will adopt the cross
examination done for A-1.
11. Statement of A-1 in SC.853/2013 and A-2 in
SC.No.631/2021 was recorded under Section 313 of
Cr.P.C. wherein they have denied the evidence against
them, but have not led any defence evidence. However, in
the course of cross examination of the Executive Magistrate
who did the identification parade/PW-26, two documents
were got exhibited as Ex.D-1 and D-2 by way of
confrontation.
12. Heard arguments of both the sides on merits of
the case and perused the record.
6 S.C.No:853/2013 &
S.C.No.631/2021
13. Out of the above said facts and circumstances of
the case, the points that arose for the due consideration of
this Court are;
1. Whether the prosecution proves
beyond all the reasonable doubts that
A-1 in SC.No.853/2013 and A-2
against whom the case is split up and
registered in SC.No.631/2021 with a
common intention of committing
crime, on 31.11.2012 at about 4:00
p.m., within the jurisdiction of
Jnanabharathi police station, 7th
Cross, near House No.394,
Mallathahally NGEF Extention, when
CW-1 was going by walk went on a
Bajaj Motor Cycle bearing registration
No.KA-02 HA-5526 from her behind;
pushed her down and caused injuries
to her; snatched her mangalya chain
and thus, both A-1 and A-2 have
committed the offence punishable
under Section 394 read with Section
34 of IPC?
2. Whether the prosecution further
proves beyond all the reasonable
doubts that A-1 in SC.No.853/2013
and A-2 against whom the case is split
up and registered in SC.No.631/2021
were dishonestly received certain
stolen properties i.e., gold chain
belonging to CW-1 and others and
sold/pledged them at various jewelry
shops, Manapuram Finance, Muthoot
Finance knowing or having reason to
believe that those properties were
stolen properties and thus, both A-1
and A-2 have committed the offence
7 S.C.No:853/2013 &
S.C.No.631/2021
punishable under Section 411 read
with Section 34 of IPC?
3. Whether the prosecution further
proves beyond all the reasonable
doubts that A-1 in SC.No.853/2013
and A-2 against whom the case is split
up and registered in SC.No.631/2021
were found habitual receivers of stolen
properties and thus, committed the
offence punishable under Section 413
read with Section 34 of IPC?
4. What Order?
14. The findings of this Court on the above points
are;
1. Points Nos.1 to 3: In Negative.
2. Point No.4 : As per the final order for the
following reasons.
REASONS
15. POINTS Nos.1 to 3:- As these points are
interconnected with each other and thus, require
commons discussions, to avoid repetitions, they are
taken together for consideration.
16. Before venturing to the discussion on merits
of the case, let this Court first to go through the
relevant provisions of law for which the charges are
8 S.C.No:853/2013 &
S.C.No.631/2021
framed against these accused i.e., Sections 394, 411,
413 and 34 of IPC which are extracted here below;
"394. Voluntarily causing hurt
in committing robbery.- If any
person, in committing or in attempting
to commit robbery, voluntarily
causes hurt, such person and any
other person jointly concerned in
committing or attempting to commit
such robbery, shall be punished with
imprisonment for life, or with rigorous
imprisonment for a term which may
extend to ten years, and shall also be
liable to fine".
17. So, let this Court to go through the provision
of Section 11 of IPC which defines the word "person"
and it reads;
"11. "Person".- The word
"person" includes any Company or
Association or body of persons,
whether incorporated or not".
18. Now, let this Court to go through Section 39
of IPC which defines the word "voluntarily" and it
reads;
"39. "Voluntarily".- A person is
said to cause an effect "voluntarily
when he causes it by means whereby
he intended to cause it or by means
9 S.C.No:853/2013 &
S.C.No.631/2021
which, at the time of employing those
means, he knew or had reason to
believe to be likely to cause it".
19. Let this Court to go through Section 319 of
IPC which defines the word "hurt" and it is extracted
here below;
"319. Hurt.- Whoever causes
bodily pain, disease or infirmity to any
person is said to cause hurt".
20. Let this Court first to have a look at the
provision of Section 390 of IPC which deals with
"robbery" and it is extracted here below;
"390. Robbery.- In all robbery
there is either theft or extortion".
When theft is robbery. - Theft
is "robbery" if, in order to the
committing of the theft, or in
committing the theft, or in carrying
away or attempting to carry away
property obtained by the theft, the
offender, for the end, voluntarily
causes or attempt to cause to any
person death or hurt or wrongful
restraint, or fear or instant death or of
instant hurt, or of instant wrongful
restraint.
When extortion is robbery.-
Extortion is "robbery" if the offender,
at the time of committing the
extortion, is in the presence of the
10 S.C.No:853/2013 &
S.C.No.631/2021
person put in fear, and commits the
extortion by putting that person in fear
of instant death, or instant hurt, or of
instant wrongful restraint to that
person or to some other person, and,
by so putting in fear, induces the
person so put in fear then and there to
deliver up the thing extorted.
Explanation.- The offender is
said to be present if he is sufficiently
near to put the other person in fear or
instant death, or instant hurt, or
instant wrongful restraint.
21. So, the essential ingredients for robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily
causes or attempts to cause to any
person.-
(i) death, or
(ii) hurt, or
(iii) wrongful restrain, or
(iv) fear of instant death, instant
hurt, or instant wrongful restraint and
the above act(s) is/are done -
(1) in order to the commission of
the theft, or
(2) in committing the theft, or
(3) in carrying away or
attempting to carry away any property
obtained by the theft.
11 S.C.No:853/2013 &
S.C.No.631/2021
(b) Extortion is robbery when,
(i) At the time of committing
extortion the offender is in the
presence of the person put in fear.
(ii) The offender commits
extortion by putting that person in fear
of instant death, hurt, or wrongful
restraint -
(1) to that persons, or
(2) to some other person.
(iii) By so putting such person in fear,
the offender induced the person so put
in fear then and there so deliver the
thing extorted.
22. The next offence alleged is the offence under
Section 411 of IPC which is extracted here below;
"411. Dishonestly receiving
stolen property. - Whoever
dishonestly receives or retains any
stolen property, knowing or having
reasons to believe the same to be
stolen property, shall be punished
with imprisonment of either
description for a term which may
extend to three years, or with fine, or
with both".
23. So, the essential ingredients to attract the
above offence are;
(a) A person dishonestly.-
12 S.C.No:853/2013 &
S.C.No.631/2021
(i) receives, or
(ii) retains, any stole property.
(b) He knows or has reasons to
believe the same to be stolen property.
24. The other offence alleged is the offence under
Section 413 of IPC and it reads;
"413. Habitually dealing in
stolen property.- Whoever habitually
receives or deal in property which he
knows or has reason to believe to be
stolen property, shall be punished with
imprisonment for life, or with
imprisonment of either description for
a term which may extend to one year
and shall also be liable to fine".
25. The next offence alleged is the offence under
Section 34 of IPC which is extracted here below;
"34. Acts done by several
persons in furtherance of common
intention.- When a criminal act is
done by several persons in furtherance
of the common intention of all, each of
such persons is liable for that act
in the same manner as if it were
done by him alone".
26. In the present case on hand, as noted above,
it is the allegation of the prosecution that A-1 and A-2
with a common intention have robbed the gold
13 S.C.No:853/2013 &
S.C.No.631/2021
mangalya chain of CW-1 from her neck voluntarily
causing hurt and thus, the allegation attract the
ingredients of the offence under Section 394 of IPC.
27. So for the allegation of the prosecution that
A-1 and A-2 are habitual receivers of the stolen
properties and pledged the stolen properties including
the gold chain of CW-1 in many financial institutions
and thereby committed the offences under Sections
411 and 413 of IPC, as it is the allegation of the
prosecution that A-1 and A-2 robbed the gold chain of
CW-1, the said allegations do not cover the mangalya
chain of CW-1 and of course in respect of the other
stolen properties, the allegations of the prosecution
attract the ingredients that constitute the offences
under Sections 411 and 413 as well.
28. As noted above, to prove its case, the
prosecution has got examined totally 16 witnesses; got
exhibited 24 documents and got marked 3 material
objects.
14 S.C.No:853/2013 &
S.C.No.631/2021
29. The prosecution case begins with the
complainant Smt.Shylaja CW-1 lodging the complaint
and ends with the then PI Sri.Balaraju CW-31 on
completion of investigation filing the charge sheet
against both the accused.
30. The case of the prosecution in chronological
order is that on receipt of the complaint at Ex.P-1, they
registered the case; prepared the FIR; submitted the
same to the jurisdictional Magistrate; conducted the
spot mahazar; secured both the accused; recovered the
properties of the case/involved in the case; on the
voluntary statements of both the accused, recovered
some properties involved in other cases; got identified
the snatched mangalya chain from CW-1; got
conducted the identification parade through the
jurisdictional Executive Magistrate; in compliance of
the order of the concerned Magistrate, released the
mangalya chain to CW-1 on getting executed the
15 S.C.No:853/2013 &
S.C.No.631/2021
necessary indemnity bond and on completion of the
investigation, filed the charge sheet.
31. Let this Court to go through the evidence on
record in support of the prosecution case/allegations
noted above. It is in the complaint at Ex.P-1 that;
a) On 30.11.2012 after finishing her work in the
school, CW-1 was returning to the home around 4:00
p.m., by walk in front of the house No.394, 7 th Cross,
NGEF Extension, Mallathhalli.
b) By that time, some unknown person came
from her back side over a black coloured pulsar motor
cycle and all of a sudden, tried to snatch gold
mangalya chain in her neck.
c) She protested and the said unknown person
pushed her down, caused injuries near her neck and
escaped by snatching her mangalya chain weighing
around 55 grams.
16 S.C.No:853/2013 &
S.C.No.631/2021
d) She suffered injuries over hands and leg when
she fell down; for which, she will take treatment in a
private hospital.
e) The value of the chain snatched may around
Rs.1,25,000/-.
f) The unknown person snatched the chain is of
normally built, front bald head person wearing blue
jeans pant and blue shirt. She will identify him and
accordingly, sought action against the said unknown
person and to trace out her snatched mangalya chain.
32. There is endorsement in Ex.P-1 by the SHO
received the complaint i.e., CW-29 the then ASI
Sri.Prabhulingamurthy that it was received on
30.11.2012 at 4:30 p.m., and the case was registered
in Cr.No.462/2012 for the offences under Sections 394
and 397 of IPC.
33. The FIR at Ex.P-24 is in support of the above
endorsement at Ex.P-1. There is an endorsement by
the jurisdictional Magistrate that the FIR was received
17 S.C.No:853/2013 &
S.C.No.631/2021
at 11:00 a.m., and the date below the signature of the
concerned Magistrate is 03.12.2012. So, the FIR was
received by the jurisdictional Magistrate after around 2
days 18½ hours and the same is elicited in the cross
examination of CW-29/PW-15.
34. After registering the case and preparing the
FIR, the case file was handed over to CW-31 on the
same day i.e., on 30.11.2012 who did the further
investigation and filed the charge sheet.
35. On receipt of the case file for investigation,
CW-31 visited the spot on the same day i.e., on
30.11.2012; CW-1 showed the spot to him; he
conducted the spot mahazar at Ex.P-2 in the presence
of the panchas Sri.H.M.Vinod Ashraya CW-2 and
Sri.Thimmegowda CW-3 in between 5:00 p.m. and
6:00 p.m.
36. Apart from some minute discrepancies such
as;
18 S.C.No:853/2013 &
S.C.No.631/2021
a) It is in the cross examination of CW-1 that she
signed Ex.P-2 both in the station and in the spot;
b) CW-2 in his cross examination has admitted
that he signed Ex.P-2 in the station; and
c) CW-3 has deposed that at the time of mahazar,
except him, none other else were present; all of them
deposed supporting the oral evidence of the IO CW-31
in respect of the mahazar proceedings conducted at
the spot as per Ex.P-2.
37. As per the police papers, on conclusion of the
spot mahazar on 30.11.2012, the further investigation
of the case was done on 10.12.2012 when, CWs-25 to
28 i.e., the then ASI Sri.Shivanna, the then HC-4160
Sri.Shivabasappa, the then PCs Sri.Chandrappa and
Sri.Vijayakumar respectively who were deputed in
search of the accused and properties, brought the
accused along with the properties and produced before
CW-31 with the report of CW-25 at Ex.P-19.
38. It is in Ex.P-19 that;
19 S.C.No:853/2013 &
S.C.No.631/2021
a) All the above patrolled within the limits of their
station i.e., Mallathalli, Papareddipalya; contacted
their informants and asked them to collect the
information with regard to the accused and the
properties.
b) When they were near Papareddypalya Circle
around 8:00 a.m., the informants called them over
phone and told that two persons moving around over a
Bajaj Pulsar motor cycle near the jewelry shops/pawn
brokers' shop suspiciously.
c) Hence, they rushed to the said spot and on the
informants showing the suspects at a distance, they
covered the suspects and enquired, but the suspects
did not give proper answers in respect of their
presence in the said spot and not furnished the
vehicular documents of the vehicle in their possession.
d) Accordingly, they checked the vehicle and
found two number plates of the same number and a
knife in the motor cycle tank cover.
20 S.C.No:853/2013 &
S.C.No.631/2021
e) They also found two layers gold mangalya
chain in the possession of one of the suspects when
the suspects were subject to the body search.
f) When enquired, the suspect in possession of
the said gold chain said that it belongs to him and his
name is Lakshmikantha @ Vinay @ Gunda S/o
Ramakrishna, 29 years, R/o No.32, Near
Yeshwanthapura Railway Station, Muneshwaranagar,
Yeshwanthapura, Bengaluru and another suspect is
Babu @ Chudibabu S/o Amir Jan, 35 years, R/o - no
number, TB Extension, Nagamangala Town, Mandya
District.
g) On suspicion that the suspects might have
robbed the said chain somewhere and came to sell the
same to jewelry shop, they brought the suspects with
the above properties and the motor cycle as well as
produced them before CW-31 at 9:00 a.m.
39. Apart from the discrepancies in the evidence
of CWs-25 and 26 i.e.,
21 S.C.No:853/2013 &
S.C.No.631/2021
a) It is in the cross examination of CW-25 that;
(i) They took the accused persons from the spot in
an auto to the police station; and
(ii) They went by walk from the spot where they
received the information to the spot where they
secured the presence of the accused persons.
b) On the other hand, it is in the cross
examination of CW-26 that;
(i) They went to the spot by two wheeler; and
(ii) They brought the accused persons over their
two wheelers only to the station, both CWs-25 and 26
deposed supporting the oral evidence of CW-31 in
respect of the contents at Ex.P-19 and they also
identified the photos of gold mangalya chain i.e., MO-1
at Ex.P-3; the motor cycle at Ex.P-10; two number
plates at MO-2 and a cutter at MO-3.
40. It is the case of the prosecution that in
continuation of the investigation, CW-31 secured the
presence of the panchas i.e., Smt.Chennamma CW-4
22 S.C.No:853/2013 &
S.C.No.631/2021
and Sri.Krishnaiah CW-5; by conducting the mahazar
at Ex.P-7 in their presence in between 10:00 a.m. and
11:00 a.m., in the station, he seized the properties
from both the accused i.e., the motor cycle, two layers
gold mangalya chain, two number plates and a cutter
in possession of both the accused i.e., the motor cycle
appearing in the photo at Ex.P-10; the gold mangalya
chain at MO-1 appearing in the photo at Ex.P-3; two
number plates and a cutter respectively at MOs-2 and
3.
41. Both the panchas i.e., CWs-4 and 5 though
admitted their signatures at Ex.P-3 and over the lables
affixed to MOs-2 and 3, they completely turned hostile
with regard to the seizure procedures; identification of
the properties and the accused as well as the recitals
at Ex.P-7 and thus, there is no supportive evidence to
the oral testimony of CW-31 in that regard and thereby
to the case of the prosecution.
23 S.C.No:853/2013 &
S.C.No.631/2021
42. It is the case of the prosecution that in the
course of further investigation, CW-31 recorded the
voluntary statements of both the accused and in
respect of the present crime, on 12.12.2012, he
secured CW-1; got identified the motor cycle and the
snatched gold mangalya chain MO-1 appearing in the
photos at Ex.P-10 and 3 respectively and recorded the
further statement of CW-1 in that regard.
43. But, it is in the chief evidence of CW-1 that;
a) The police took the chain from the accused i.e.,
A-1 Lakshmikantha in the spot.
b) Since she requested much and it was Friday,
on the same day, the police after getting photo and
weighing the chain, returned the same to her.
c) She got it/the chain repaired and wearing it. It
is MO-1 and the photo of MO-1 is Ex.P-3.
d) While taking the chain into her possession, she
executed the indemnity bond at Ex.P-4 and her
signature is Ex.P-4(a).
24 S.C.No:853/2013 &
S.C.No.631/2021
e) She asked the senior police officer to return her
chain. She does not know his name. She has sought to
release the chain on the same day on which date, she
lodged the complaint. They released the chain to her
on the same day.
f) She was in the station from 4:30 p.m. to 7.30
p.m. when she had been to lodge the complaint. In
between 5:30 p.m. to 6:30 p.m., they took her and got
done the mahazar proceedings and brought her back
to the station.
g) The photo of the chain was taken after around
a week or fortnight.
44. Admittedly, the incident was taken place on
30.11.2012 at 4:00 p.m.; the complaint was lodged on
the same day at 4:30 p.m.; the spot mahazar was
conducted on the same day in between 5:00 p.m. and
6:00 p.m. and as per the police papers, there was no
progress in the case till 10.12.2012 i.e., till both the
accused were taken into custody and on 12.12.2012,
25 S.C.No:853/2013 &
S.C.No.631/2021
the IO CW-31 showed the properties to CW-1 for
identification.
45. But, as noted above, it is in the very chief
evidence of CW-1 that A-1 was caught hold in the spot
itself by the considerable number of public and the
said evidence in respect of catching A-1 in the spot is
also supported by the oral evidence of CW-2.
46. Since, it is the evidence of CW-1 that the
police took the mangalya chain from A-1 at the spot
and it is in the evidence of CW-2 also that A-1 was
caught hold at the spot, the motor cycle used for
commission of offence would also be at the spot, but
admittedly, the complaint at Ex.P-1 was registered
against unknown person and the same is elicited in
the cross examination of both CWs-1 and 31.
47. Moreover, even CW-1 was cross examined by
the prosecution by treating her as partial hostile
witness and though, it is got admitted that;
26 S.C.No:853/2013 &
S.C.No.631/2021
a) The accused came from her back side and tried
to snatch the chain (as she has stated in her chief
evidence that the accused came from the front);
b) She protested the accused, because of which,
she fell down and suffered injuries to hands and legs
(as she has stated in her chief evidence that since
there was grass, she did not suffer much injuries and
not stated in respect of injuries to her hands and legs);
c) The above facts were got written by her in her
complaint;
d) On the same day, the police conducted the
mahazar in between 5:00 p.m. and 6:00 p.m, in the
presence of CWs-2 and 3 (as she has not stated in her
chief evidence about the timings and the presence of
CWs-2 and 3 at the time of conducting the spot
mahazar at Ex.P-2); and
e) She signed the mahazar at Ex.P-2 in the spot
(as in her chief evidence she has stated that she singed
the mahazar at Ex.P-2 both in the station and in the
27 S.C.No:853/2013 &
S.C.No.631/2021
spot); she was not cross examined in respect of her
further statement about the identification of the motor
cycle and the snatched gold mangalya chain at MO-1
on 12.12.2012.
48. Moreover, though it is the case of the
prosecution that both the accused were secured on
10.12.2012 and CW-1 was secured on 12.12.2012; she
was tendered with the properties, got identified the
properties through her and recorded her further
statement in that regard; admittedly and interestingly,
the accused were not got identified by CW-1 on
12.12.2012 and it is the case of the prosecution that in
the course of further investigation, on 18.12.2012,
CW-31 made requisition to the Court seeking
directions to the concerned Tahsildar to conduct the
identification parade.
49. Ex.P-23 is the said requisition and it is in
Ex.P-23 that the incident took place in the daytime
and CW-1 has stated that she has clearly observed the
28 S.C.No:853/2013 &
S.C.No.631/2021
accused and she will identify him if she sees him
again. Hence, requested for direction to the concerned
Tahsildar to conduct the identification parade for
identification of the accused who was in judicial
custody in Central Prison, Parappana Agrahara and
also for the direction to the Jail Superintendent to
allow to conduct the identification parade.
50. Ex.D-1 and 2 are the communications dated
21.12.2012 and 05.02.2013 sent to the concerned
Tahsildar to conduct the identification parade of the
accused in the Premises, Central Prison, Bengaluru in
this case and they are got exhibited for the accused in
the cross examination of the concerned Tahsildar who
did identification parade i.e., Sri.N.R.Umesh Chandra
who is examined as PW-16.
51. Ex.P-5 is the questionnaires put to CW-1 in
the identification parade and Ex.P-6 is the proceedings
of the identification parade. Both Ex.P-5 and 6 are
dated 08.03.2013.
29 S.C.No:853/2013 &
S.C.No.631/2021
52. So, it is clear that, though the accused were
traced and were taken into custody on 10.12.2012;
though CW-1 was secured on 12.12.2012 for
identification of properties; the requisition was made
on 18.12.2012 seeking identification parade; the same
was came to be allowed and communication was sent
to PW-16 though on 21.12.2012, the identification
parade was not conducted. Hence, again the order was
sent on 05.02.2013 and the identification parade was
conducted on 08.03.2013 i.e., after around 2½ months
from the date of 1st communication and the same was
got admitted in the cross examination of PW-16.
53. Ex.P-5 is the printed format and there are 7
questionnaires i.e., (1) Why the witness came there? (2)
Whether she was present at the time of
incident/crime? (3) How many persons involved in the
incident/crime? (4) Whether she witnessed the
incident/crime? (5) Can she identify the persons
standing in the row? (6) Identify him/them? (7) Give
30 S.C.No:853/2013 &
S.C.No.631/2021
the reason for identification and the relevant answers
for the case recorded in Ex.P-5 are that she saw the
accused while committing crime; the accused was a
single person and he was at Sl.No.10 in the row.
54. The proceedings at Ex.P-6 reflects that the
identification parade was conducted in this crime on
08.03.2013 (time is not mentioned) and CW-1
identified A-1 Lakshmikantha who was at Sl.No.10 in
the row; the names and UTP numbers of all the 10
persons taken in the identification parade are noted
down.
55. The recitals of Ex.P-5 and 6 noted above are
supported by the oral evidence of PW-16. It is in his
cross examination that on 07.03.2013, he issued
notice to the complainants in totally 8 cases including
this crime and conducted the identification parade on
08.03.2013 in all the 8 cases; the present crime was
7th case and CW-1 identified the accused at 4:30 p.m.;
he took 20 minutes in each case to conduct the
31 S.C.No:853/2013 &
S.C.No.631/2021
identification parade; he entered into the prison
premises at 2:30 p.m. and thereafter secured the
presence of other 8 persons of similar gait and physical
features of age group between 22 to 28 years.
56. So, if the above evidence of PW-16 is accepted
then it appears to the mind of a reasonably prudent
man that as PW-16 entered the premises at 2:30 p.m.,
at least 30 minutes would have been taken for the
ground work i.e., to get all the 10 persons in a room;
make them to stand in a row; get prepared papers etc.
57. Thus, as this crime was the 7th case, it should
be taken by 5:00 p.m. Even for the sake of arguments,
if it is taken that for the ground work, the time taken
was 20 minutes, then it is by 4:50 p.m.; if it is taken at
10 minutes, then it is by 4:40 p.m. and thus, CW-1
definitely could have not identified the accused by 4:30
p.m. It is possible only if the identification parade was
started by 2:30 p.m.
32 S.C.No:853/2013 &
S.C.No.631/2021
58. Therefore, even PW-16 has denied that he did
not conduct the identification parade and on the
request of the concerned police, he prepared Ex.P-5
and 6 on his table, the possibility of the fact in the
above suggestion cannot be thrown out rightly.
59. Of course, it is in the cross examination of
CW-1 that she identified the accused around 4:30 to
5:00 p.m. Then of course, it can be accepted that the
identification parade would have been commenced by
2:50 p.m. or 3:00 p.m.
60. But, it is the specific evidence of PW-16 that
he entered the premises at 2:30 p.m.; thereafter did
the ground work and commenced the identification
parade; did the proceedings in 8 cases and the present
crime was the 7th case, but though Ex.P-6 is in printed
format particularly with regard to the date and time,
even the date is mentioned, the time is not mentioned.
Thus, there is some force in the suggestion of the
33 S.C.No:853/2013 &
S.C.No.631/2021
accused that Ex.P-5 and 6 were prepared on the table
of PW-16.
61. Moreover, so for the identification parade, it is
in the chief evidence of CW-1 that;
a) After around 1½ months, police called her to
Jnanabharathi police station, where from, they took
her to Parappana Agrahara Jail and since on that date,
the accused were taken to the Court in some other
case, she waited till evening and came back.
b) Again on women's day, she was called to
Parappana Jail and was showed around 25 - 30
persons in a line before the Magistrate, amongst
whom, she identified A-1 Lakshmikantha who is
present before the Court.
62. There is no whisper in the evidence of PW-16
in respect of the first visit stated by CW-1 and as per
Ex.P-6 and the evidence of PW-16, the number of
persons in the row for identification was 10 whereas
CW-1 has stated that it was 25 to 30 and in her cross
34 S.C.No:853/2013 &
S.C.No.631/2021
examination, she has specifically stated that A-1 was
after 20 persons in the row, which are material
contradictions.
63. It is the case of the prosecution that in the
course of further investigation of the case, on
09.03.2013, as per the Court orders, the snatched gold
mangalya chain at MO-1 appearing in Ex.P-3 was
released to CW-1 on getting executed the indemnity
bond at Ex.P-4.
64. It is in Ex.P-4 that;
a) CW-1 has lodged the complaint alleging that;
(i) On 30.11.2012 around 4:00 p.m., after
finishing her work, she was returning to home by walk
in front of No.394, 7th Cross, NGEF Layout,
Mallathhalli.
(ii) By then, an unknown person came over a
black colour pulsar motor cycle from the back; pushed
her down; caused injuries and escaped by snatching
35 S.C.No:853/2013 &
S.C.No.631/2021
her mangalya chain of around 55 grams from her
neck.
(iii) The said complaint was registered in
Cr.No.462/12 for the offence under Sections 394 and
397 of IPC.
b) She came to know that on 10.12.2012, the
accused by names Lakshmikantha and Babu were
arrested and from them, her mangalya chain was
seized which is mentioned in PF.No.231/2012.
c) She received her mangalya chain as per the
Court order and will produce before the Court and the
police whenever required and will not transfer the
chain till the disposal of the case and on default, she
will indemnify the Court costs.
65. But, as noted above, it is in the very chief
evidence of CW-1 that at the time of incident itself, A-1
was caught hold by the public in the spot and the
police took the gold chain from the hands of A-1 at the
spot and on her request, on the same day after taking
36 S.C.No:853/2013 &
S.C.No.631/2021
the photo, the chain was returned to her and the photo
of the chain was taken after around a week or fortnight
and thus her evidence is contradictory to the above
noted recitals at Ex.P-4 and thereby to the case of the
prosecution.
66. Moreover, the photo at Ex.P-3 claimed to be
the photo of the gold mangalya chain at MO-1 appears
to be a single layer gold chain having one tali, one
kasu, 4 black beads and 2 red beads/rubies.
67. The PF.No.231/2012 to which MO-1 is
mentioned is on record at Ex.P-20 wherein the
mangalya chain is described as one layer mangalya
chain having one mangalya/tali, one kasu, 2 rubies
and the said description is supported by the seizure at
Ex.P-7.
68. But, as noted above, it is in the report of CW-
25 at Ex.P-19 and also in the oral evidence of CWs-25
and 26 that the chain in the possession of A-1 when
he was traced out and produced before CW-31 was two
37 S.C.No:853/2013 &
S.C.No.631/2021
layers mangalya chain and the same is attacked much
on behalf of accused in the cross examination of all
Cws-1, 25, 26 and 31 and it is got admitted that the
gold mangalya chain stated in Ex.P-19 is two layers
mangalya chain and Ex.P-3, 7 and 20 reflect one layer
gold chain with black beads and rubies.
69. The discrepancy in the mangalya chain
appearing in Ex.P-3 when compared with the seizure
mahazar at Ex.P-7 and PF at Ex.P-20, four black
beads appearing in the photo at Ex.P-3 which is not
stated in the seizure mahazar at Ex.P-7 and the PF at
Ex.P-20 and as noted above, it is in the evidence of
CW-1 that the mangalya chain snatched was two
layers mangalya chain and the same is supported by
Ex.P-19 the report of CW-25 and the oral evidence of
CWs-25 and 26.
70. Moreover, it is also on record that based on
the voluntary statements of the accused, on
11.12.2012, by conducting the mahazar at Ex.P-13 in
38 S.C.No:853/2013 &
S.C.No.631/2021
between 10:30 a.m. and 12:30 p.m., 9 gold ornaments
were seized from the receiver of the properties ie.,
Srikanth CW-9 in the presence of panchas Sri.Pavan
CW-6 who is the younger brother of CW-9 and
Sri.Nikhil CW-7 as well as the mediator Sri.Manju CW-
8 through whom the accused sold the gold chains they
snatched to CW-9.
71. All the above witnesses i.e., CWs-6 to 9 are
examined as PWs-9, 11, 10 and 8 respectively and they
turned hostile to the prosecution. Though the recitals
at Ex.P-13 demonstrate that none of the gold chains
seized therein pertains to this case, in the cross
examination of CWs-6, 7 and 9, it is suggested for the
prosecution that the gold mangalya chain at MO-1
appearing in Ex.P-3 is one amongst 9 chains seized
under Ex.P-13 though it is the case of the prosecution
that MO-1 is the chain seized under Ex.P-7 mentioned
in the PF at Ex.P-20. However, CWs-6, 7 and 9 denied
the said suggestion.
39 S.C.No:853/2013 &
S.C.No.631/2021
72. The other witnesses examined for the
prosecution are;
a) CW-11 Sri.Mohan Kumar one of the panchas to
the seizure mahazar at Ex.P-18 stated to be conducted
on 11.12.2012 in between 2:00 p.m. and 3:00 p.m., in
Manappura Finance, Channarayapatna while seizing
one layer plain mangalya chain on the voluntary
statements of the accused alleged to be pledged in the
said finance, but that property admittedly not belongs
to this case. Thus, his evidence is not important for
the trial of this case.
b) CW-24 Dr.Hemalatha who treated CW-1 and
issued the wound certificate at Ex.P-9. She has
supported the case of the prosecution in that regard,
but, Ex.P-9 reflects that the history of injury stated is
"assault".
(i) However, the date and time of the incident
tallies with the date and time of incident mentioned in
the complaint at Ex.P-1 i.e., on 30.11.2012 at 4:00
40 S.C.No:853/2013 &
S.C.No.631/2021
p.m. It is elicited in her cross examination that the
date and time of treatment is not mentioned in Ex.P-9.
(ii) However, it is in the evidence of CW-1 that
since the Government Hospital would be closed by
5:00 p.m. she took treatment on the next day.
(iii) Thus, there is nothing on record to disbelieve
the oral evidence of CWs-1 and 24 as well as the
medical certificate at Ex.P-9 which demonstrate that
CW-1 suffered injuries mentioned in Ex.P-9 in
connection with the present crime.
73. So, from the above evidence let in by the
prosecution, the prosecution is of course successful to
establish,
a) The date, time and place of the alleged crime;
b) CW-1 lodging the complaint at Ex.P-1 in
respect of the alleged crime;
c) On receipt of complaint, the complainant police
registering the case, preparing the FIR, submitting the
41 S.C.No:853/2013 &
S.C.No.631/2021
FIR to the jurisdictional Magistrate (but there is delay
in submission of FIR);
d) In the course of investigation, the IO CW-31
conducting the spot mahazar at Ex.P-2;
e) The injuries suffered by CW-1 in the alleged
incident; but has failed to establish,
(i) The involvement of A-2 in the alleged crime;
(ii) The description of the gold mangalya chain
alleged to be snatched by A-1;
(iii) The date, time, place of arrest/taking A-1 into
custody;
(iv) The date, time and place of seizure of the
motor cycle alleged to be used for commission of
offence and the gold mangalya chain alleged to be
snatched in particular the gold mangalya chain;
(v) The number of persons taken for identification
parade and the serial number at which A-1 alleged to
be in the row for identification; which are material
facts to be proved by the prosecution in support of its
42 S.C.No:853/2013 &
S.C.No.631/2021
allegation against A-1 and A-2 for the offence under
Section 397 of IPC.
74. So for the other offences alleged, i.e., the
offences under Sections 411 and 413 of IPC, though
the prosecution got examined CWs-6 to 9 and 11 i.e.,
to prove the other robberies, they have alleged to be
committed and sold/pledged such robbed gold
ornaments, CWs-6 to 9 as noted above, turned hostile.
75. Even CW-11 supported the prosecution in
respect of the seizure of a gold chain weighing around
25 grams vide Ex.P-18 and also stated that it was
pledged for Rs.40,000/-, the prosecution has not let in
any evidence to establish that the said chain seized
vide Ex.P-18 is a robbed chain.
76. Hence, from the above observations, it is clear
that the prosecution has failed to establish its
allegations against both the accused beyond all
reasonable doubts for the offences alleged.
Accordingly, these points are answered in negative.
43 S.C.No:853/2013 &
S.C.No.631/2021
77. POINT No.6:- From the above observations, and
findings on points Nos.1 to 3, this Court proceed to pass
the following order.
ORDER
Acting under Section 235(1) of Cr.P.C., A-1 and A-2 hereby acquitted for the offences punishable under Sections 394, 411 and 413 read with Section 34 of IPC.
The bail bonds and the surety bonds executed by and on behalf of A-1 and A-2 if any shall be canceled after lapse of appeal period.
The release of MO-1 in favour of CW-1 by getting executed indemnity bond at Ex.P-4 dated 09.03.2013 is hereby confirmed as no counter claim is made and it shall be absolute after the lapse of appeal period.
The Bajaj Pulsar motor cycle bearing registration No.KA-02 HA-5526 I.e,. item No.2 mentioned in PF.No.231/2012 dated 10.12.2012 (PR.No.826/2014 dated 06.09.2014) is ordered to be forfeited to the State as no claim is made till date and directed to put in action after the lapse of appeal period.
MOs-2 and 3 are ordered to be destroyed after the lapse of appeal period as they are worthless.
Office is directed to keep the original judgment in SC.No.853/2013 and the copy thereof in SC.No.631/2021.
44 S.C.No:853/2013 &S.C.No.631/2021 (Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 25th day of February, 2022).
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE PROSECUTION :-
PW.1 Smt.Shylaja
PW.2 Sri.Vinod Ashray
PW.3 Sri.Thimmegowda
PW.4 Sri.Krishnaiah
PW.5 Dr.Hemalatha.M.
PW.6 Smt.Chennamma
PW.7 Sri.Shivabasappa
PW.8 Sri.Srikanth
PW.9 Sri.Pawan
PW.10 Sri.Manju
PW.11 Sri.Nikhil
PW.12 Sri.M.R.Mohankumar
PW.13 Sri.B.Balaraju
PW.14 Sri.Shivanna
PW.15 Sri.Prabhulinga Murthy
PW.16 Sri.Umesh Chandra
LIST OF WITNESS EXAMINED FOR DEFENCE:-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION :-
Ex.P-1 Complaint.
Ex.P-1(a) Signature of PW-1 Ex.P-1(b) Signature of PW-15 Ex.P-2 Spot Mahazar Ex.P-2(a) Signature of PW-1 45 S.C.No:853/2013 & S.C.No.631/2021 Ex.P-2(b) Signature of PW-2 Ex.P-2(c) Signature of CW-3 Ex.P-2(d) Signature of PW-13 Ex.P-3 Photo of Mangalya Chain Ex.P-4 Indemnity Bond Ex.P-4(a) Signature of PW-1 Ex.P-5 Questionnaire of Identification Parade Ex.P-5(a) Signature of PW-1 Ex.P-5(b) Signature of PW-16 Ex.P-6 Proceedings of Identification Parade Ex.P-6(a) Signature of PW-1 Ex.P-6(b) Signature of PW-16 Ex.P-6(c) Opinion of PW-16 Ex.P-6(d) Signature of PW-16 Ex.P-7 Seizure Mahazar Ex.P-7(a) Signature of PW-4 Ex.P-7(b) Signature of PW-6 Ex.P-7(c) Signature of PW-13 Ex.P-8 Portion of Statement of PW-4 Ex.P-9 Wound Certificate Ex.P-9(a) Signature of PW-5 Ex.P-10 Photographs of Motor Cycle &11 Ex.P-12 Portion of Statement of PW-6 Ex.P-13 Seizure Mahazar Ex.P-13(a) Signature of PW-8 Ex.P-13(b) Signature of PW-9 Ex.P-13(c) Signature of PW-10 Ex.P-13(d) Signature of PW-11 Ex.P-14 Portion of Statement of PW-8 46 S.C.No:853/2013 & S.C.No.631/2021 Ex.P-15 Portion of Statement of PW-9 Ex.P-16 Portion of Statement of PW-10 Ex.P-17 Portion of Statement of PW-11 Ex.P-18 True Copy of Seizure Mahazar Ex.P-18(a) Signature of PW-12 Ex.P-18(b) Signature of CW-10 Ex.P-19 Report of PW-14 Ex.P-19(a) Signature of PW-13 Ex.P-19(b) Signature of PW-14 Ex.P-20 PF.No.231/2012 Ex.P-20(a) Signature of PW-13 Ex.P-21 Voluntary Statement of A-1 Ex.P-21(a) Signature of PW-13 Ex.P-21(b) LTM of A-1 Ex.P-21(c) Signature of A-1 Ex.P-22 Voluntary Statement of A-2 Ex.P-22(a) Signature of PW-13 Ex.P-22(b) LTM of A-2 Ex.P-22(c) Signature of A-2 Ex.P-23 Requisition for Identification Parade Ex.P-23(a) Signature of PW-13 Ex.P-24 FIR Ex.P-24(a) Signature of PW-15 LIST OF DOCUMENTS EXHIBITED FOR DEFENCE :-
Ex.D-1 Communication dated 21.12.2012 to conduct Identification Parade Ex.D-2 Communication dated 05.02.2013 to conduct Identification Parade 47 S.C.No:853/2013 & S.C.No.631/2021 LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:-
MO-1 Gold Mangalya Chain
MO-2 Number Plates (2 in numbers)
MO-3 Cutter
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:-
- Nil -
(K. KATHYAYANI ), LXVI Addl.CC & SJ, Bengaluru.