Bangalore District Court
State By vs Nasruddin on 24 January, 2020
IN THE COURT OF LXV ADDL CITY CIVIL AND SESSIONS
JUDGE BENGALURU CITY (CCH-66)
PRESENT
SRI. SUBHASH SANKAD
B.A., LL.M.
LXV Addl. City Civil & Sessions Judge,
Bengaluru.
Dated this the 24th day of January, 2020
S.C.No.2078/2018
COMPLAINANT:- STATE BY
Police Inspector,
Upparpet Police Station,
Bengaluru.
(Rep. by Public Prosecutor)
V/s.
ACCUSED:- 1. NASRUDDIN
s/o Khuddus,
Aged about 26 years,
R/at Gandhinagar, 6th Cross,
Near Madeshwara Temple,
Mandya.
[Accused No.1]
2. SHIVASHAKTHI,
s/o Armugham
Aged about 20 years,
R/at No.120, 14th Cross,
Bandireddy Circle,
Lakshminarayanapuram,
Bengaluru - 560 021.
[Accused No.2]
2 SC.No.2078/2018
3. PEETER THOMAS
s/o Ravi,
Aged about 26 years,
R/at No.278, 8th Cross,
Chepak, Tropicana,
Chennai, Tamil Nadu.
[Accused No.3]
(A1 by Sri. DJ, Advocate)
(A2 by Sri. SS, Advocate)
(A3 by Sri. TS, Advocate)
Date of Commencement of 05.03.2017
offences
Date of report of offences 05.03.2017
Name of complainant Sri. Narayani, PSI
Date of recording of 24.10.2019
evidence
Date of closing of evidence 19.12.2019
Offence complained of U/s.399, 402 IPC
Opinion of the judge Acquittal
****
JUDGMENT
This is a charge sheet submitted by the Police Sub- Inspector, Upparpet police station against accused No.1 to 3 for the offences punishable under Sections 399, 402 IPC. 3 SC.No.2078/2018
2. The facts of the case of the prosecution are as follows.-
That on 05.03.2017 night at about 09.30 hours while PW1 - Narayani, PSI, Upparpet police station was in patrolling duty he received a credible information that some 4-5 persons have assembled armed with the deadly weapons near Central College Gate coming under the jurisdiction of Upparpet police station and making preparation to commit dacoity of public. Immediately, he went to the police station and secured CW2-Naveen and CW3- Krishna and his staff CW7-Akram, CW4-Harish and told them which he has received the information, he requested CW2 and 3 to co-operate as panchas at the time of raid, CW2 and 3 agreed to co-operate as panchas. Thereafter, himself along with his staff, panchas went to the place and stopped the vehicle at some distance and watched the behaviour of the persons standing near Central College Gate, when he confirming that those persons making preparation to commit dacoity. Immediately, he rushed towards those persons along with his staff, surrounded the accused persons and apprehended 4 accused persons, one of them escaped from the place, and when he searched the body of the persons he recovered one knife, one iron rod and 3 wooden 4 SC.No.2078/2018 clubs and recovered the same under panchanama in presence of CW2 and 3, thereafter he came to the police station and submitted the report before PW3-Smt. Kathyayini. This witness has also identified the material objects that were seized under Ex.P1 and he has also identified the 3 accused persons. Based on this report, crime No.60/2017 came to be registered against the accused persons for the offence punishable under Sections 399, 402 IPC.
3. After completion of the investigation, charge sheet came to be submitted before the committal court against the accused No.1 to 5. The committal court took cognizance of the offences and committed the case. After committal, the case has been made over to this court for disposal. The accused No.1 and 2 are on bail and accused No.3 is in judicial custody. After perusal of the materials available on record and after hearing the advocate for accused and the Public Prosecutor the charges were framed for the offence punishable under Sections 399, 402 IPC. The accused No.1 to 3 denied the charges levelled against them and they claimed to be tried. After securing the case properties, case was posted for trial.
5 SC.No.2078/2018
4. In support of its case, the prosecution has totally cited 8 witnesses, out of which only 3 witnesses are examined as PWs.1 to 3, and got marked the documents at Exs.P1 to 3(a) and the material objects were marked as M.Os.1 to 5. Inspite of issuance of summons other witnesses were not secured, hence the prosecution has given up the other witnesses. After completion of the prosecution evidence, the accused No.1 to 3 were examined as required under Section 313 Cr.P.C. The accused denied the incriminating evidence appearing against them, however they have not chosen to adduce any defense evidence on their behalf.
5. I have heard the arguments of both the sides.
6. Now the points that arise for my consideration in both cases are;
1. Whether the prosecution proves beyond all reasonable doubt that on 05.03.2017 night at about 9.30 hours while PW1 was in patrolling duty within the limits of Upparpet police station, the accused No.1 to 3 along with other accused had assembled at Central College gate, armed with deadly weapons like knife, iron rod and wooden club were making preparation to commit dacoity of public and thereby committed an offence punishable under Section 399 IPC? 6 SC.No.2078/2018
2. Secondly, whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place, accused No.1 to 3 along with other accused assembled there in order to commit dacoity by robbing the gold ornaments to the peoples and thereby committed an offence punishable under Section 402 IPC?
3. What Order?
7. My answer to the above points are:
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : As per the final order
for the Following
REASONS
8. Points No.1 & 2:- The points No.1 and 2 are interconnected with each other, hence for the sake of convenience, I would like to take down these points together for discussion and answer.
9. It is the case of the prosecution that on 05.03.2017 night at about 09.30 hours while PW1 - Narayani, PSI, Upparpet police station was in patrolling duty he received a credible information that some 4-5 persons have assembled armed with the deadly weapons near Central College Gate coming under the jurisdiction 7 SC.No.2078/2018 of Upparpet police station and making preparation to commit dacoity of public. Immediately, he went to the police station and secured CW2-Naveen and CW3-Krishna and his staff CW7- Akram, CW4-Harish and told them which he has received the information, he requested CW2 and 3 to co-operate as panchas at the time of raid, CW2 and 3 agreed to co-operate as panchas. Thereafter, himself along with his staff, panchas went to the place and stopped the vehicle at some distance and watched the behaviour of the persons standing near Central College Gate, when he confirming that those persons making preparation to commit dacoity. Immediately, he rushed towards those persons along with his staff, surrounded the accused persons and apprehended 4 accused persons, one of them escaped from the place, and when he searched the body of the persons he recovered one knife, one iron rod and 3 wooden clubs and recovered the same under panchanama in presence of CW2 and 3, thereafter he came to the police station and submitted the report before PW3-Smt. Kathyayini. This witness has also identified the material objects that were seized under Ex.P1 and he has also identified the 3 accused persons. Based on this report, crime No.60/2017 came to be registered against the 8 SC.No.2078/2018 accused persons for the offence punishable under Sections 399, 402 IPC.
10. After completion of the investigation, charge sheet was submitted before the committal court against accused No.1 to 3. The committal court took cognizance of the offences and committed the case. After committal, the case has been made over to this court for disposal.
11. In order to connect the guilt of accused No.1 to 3 to the charges leveled against them, the prosecution has totally cited 8 witnesses, out of which only 3 witnesses are examined as PWs.1 to 3. PW1- Narayani, PSI, is the complainant witness, PW2 - Harish and PW3- Kathyayini, P.I, and got marked the documents at EXs.P1 to 3(a) and MOs.1 to 5 are identified, and rest of the prosecution witnesses are given up by the prosecution.
12. Apart from this oral evidence the prosecution has marked documents at Exs.P1 to 3. Ex.P1 is the panchanama, Ex.P2 is the complaint and Ex.P3 is the FIR and Ex.P3(a) is the signature of PW3. Apart from these documents, M.O.1 to 5 are identified. MO.1 is the knife, MO.2 is the iron rod and MO.3 to 5 9 SC.No.2078/2018 are the 3 wooden clubs. These are all the witnesses and the documents and material objects to prove the case of the prosecution.
13. After completion of the prosecution evidence, the accused No.1 to 3 were examined as required under Section 313 Cr.P.C. All the incriminating evidence appearing against the accused was read over and explained to them. The accused No.1 to 3 denied the incriminating statement and they have not chosen to adduce any defense evidence on their behalf. Hence, the case was posted for argument. I have heard the argument of both the sides.
14. I have carefully gone through the entire charge sheet materials. Keeping in view, the rival contention of both the sides, I proceed to answer the points for consideration. In this regard, I will now consider what the witnesses have stated before the court.
15. CW1 - Narayani, PSI was examined as PW1. In his evidence he has deposed that on 05.03.2017 night at about 09.30 hours while PW1 - Narayani, PSI, Upparpet police station was in 10 SC.No.2078/2018 patrolling duty he received a credible information that some 4-5 persons have assembled armed with the deadly weapons near Central College Gate coming under the jurisdiction of Upparpet police station and making preparation to commit dacoity of public. Immediately, he went to the police station and secured CW2- Naveen and CW3-Krishna and his staff CW7-Akram, CW4-Harish and told them which he has received the information, he requested CW2 and 3 to co-operate as panchas at the time of raid, CW2 and 3 agreed to co-operate as panchas. Thereafter, himself along with his staff, panchas went to the place and stopped the vehicle at some distance and watched the behaviour of the persons standing near Central College Gate, when he confirming that those persons making preparation to commit dacoity. Immediately, he rushed towards those persons along with his staff, surrounded the accused persons and apprehended 4 accused persons, one of them escaped from the place, and when he searched the body of the persons he recovered one knife, one iron rod and 3 wooden clubs and recovered the same under panchanama in presence of CW2 and 3, thereafter he came to the police station and submitted the report before PW3- Smt. Kathyayini. This witness has also identified the material 11 SC.No.2078/2018 objects that were seized under Ex.P1 and he has also identified the 3 accused persons. Based on this report, crime No.60/2017 came to be registered against the accused persons for the offence punishable under Sections 399, 402 IPC.
16. This witness was subjected to cross-examination by the defense counsel. During the cross-examination, he has deposed that he received the information at about 9.30 hours and the place of incident at the distance of ½ k.m., from the station, he has given written notice to CW2 and 3. However, he has not produced the same before the court. They went to the place in the station vehicle, driver has not been cited as a witness, they went to the spot at about 10.30 hours and the said place was a dark. He has further stated that the place of occurrence is a busy road, however at that time very less number of vehicles are moving. He has denied the suggestion that the accused persons were not there in the place and he has not recovered MO.1 to 5 from the possession of the accused persons and he has falsely implicated the accused persons in the crime.
17. CW4 - Harish, who was examined as PW2. In his evidence, he has deposed that on 05.03.2017 night at about 9.30 12 SC.No.2078/2018 hours while he was in the station PW1-Narayani called himself, CW7-Akram, CW5-Arif Pasha, CW2- Naveen and CW3-Krishna. He has further deposed that PW1-Narayani has told them that night at about 09.30 hours some 4-5 persons have assembled armed with the deadly weapons near Central College Gate coming under the jurisdiction of Upparpet police station and making preparation to commit dacoity of public. Thereafter, himself, police staff and panchas went to the place and stopped the vehicle at some distance and watched the behaviour of the persons standing near Central College Gate, when he confirming that those persons making preparation to commit dacoity. Immediately, they rushed towards those persons along with staff, surrounded the accused persons and apprehended 4 accused persons, one of them escaped from the place, and when he searched the body of the persons he recovered one knife, one iron rod and 3 wooden clubs and recovered the same under panchanama, thereafter he came to the police station and submitted the report before PW3-Smt. Kathyayini. This witness has also identified the material objects that were seized under Ex.P1 and he has also identified the 3 accused persons. 13 SC.No.2078/2018
18. This witness was subjected to cross-examination by the defense counsel. During the cross-examination, he has deposed that he received the information at about 9.30 hours and the place of incident at the distance of ½ k.m., from the station, he has given written notice to CW2 and 3. However, he has not produced the same before the court. They went to the place in the station vehicle, driver has not been cited as a witness, they went to the spot at about 10.30 hours and the said place was a dark. He has further stated that the place of occurrence is a busy road, however at that time very less number of vehicles are moving. He has denied the suggestion that the accused persons were not there in the place and he has not recovered MO.1 to 5 from the possession of the accused persons and he has falsely implicated the accused persons in the crime.
19. CW8- Smt. Kathyayini, Investigating officer, has deposed that on 05.03.2017 night at about 11.50 hours while she was in station PW1- Narayani, PSI, appeared before her and produced the accused persons along with the seized articles with panchanama and 'B' report. After receiving the report, she registered crime No.60/2017 for the offence punishable under 14 SC.No.2078/2018 Sections 399, 402 IPC. Thereafter, after following the procedure she has arrested the accused No.1 to 4 and subjected the MO.1 to 5 station P.F.No.30/2017 and recorded the statement of PW2 and CW3 and also statement of CW4 and 7 and voluntary statement of accused persons, and on the next day i.e., on 06.03.2017 she has produced the accused persons to the jurisdictional Magistrate along with the remand application. During the cross-examination, she has denied the suggestion that PW1 has not submitted any report before her and at the request of PW1 she has registered false case against the accused persons and created MO.1 to 5 and submitted the false charge sheet against the accused persons.
20. This is the oral evidence led by the prosecution in order to prove the quilt of the accused persons. Apart from oral evidence the prosecution has exhibited the document as Exs.P1 to 3. Ex.P1 is the panchanama, Ex.P2 is the complaint and Ex.P3 is the FIR and Ex.P3(a) is the signature of PW3 and MO.1 to 5.
21. I have carefully gone through evidences of PWs.1 to 3, PWs.1 to 3 are the police officials. The entire case of the 15 SC.No.2078/2018 prosecution rests on the testimonies of PWs.1 to 3. According to testimony of these 3 witnesses, 5 persons were assembled at the place of occurrence and they were found in possession of deadly weapons. This being so now this Court has to determine as to whether the accused No.1 to 3 have committed the offences under Sections 399 and 402 IPC. In other words the ingredients of said sections have been proved by the prosecution or not. However before this Court can do so, it is necessary to refer to the case law on the subject.
22. I would like to rely upon the decision of the Hon'ble Supreme Court reported in Chaturi Yadav vs State of Bihar 1979 SCC(Criminal) 502
23. This is a celebrated judgment on the subject to determine the facts and circumstances of each case whether the offence under Sections 399 and 402 IPC are made out or not, wherein it was observed:-
"The Courts below have drawn the inference that the appellants were guilty under both the offences merely from the fact that they had assembled at a 16 SC.No.2078/2018 lonely place at 9.00 PM and could give no explanation for their presence at that odd hour of the night. The advocate for accused has canvassed his arguments, that taking the prosecution case at its face value, there is no evidence to show that the appellants had assembled for the purpose of committing a dacoity or they had made any preparation for committing the same."
The requirement of section 402 IPC is that five or more persons must have assembled for the purpose of committing a dacoity. Apart from the fact that the appellants are said to have been found armed present on the first story of an abandoned building there is no evidence that this assembly of Nine appellants was for the purpose of committing dacoity. The trial Court has merely drawn an inference that the said assembly was only for the purpose of committing dacoity."
It has been further held that, "to hold that mere assembly of five or more persons at a deserted place armed with weapons is not sufficient to hold that, the accused had committed any offence 17 SC.No.2078/2018 falling within the ambit of Sections 399 and 402 IPC until by direct or circumstantial evidence, purpose of the assembly is proved. Nothing is brought on the by the prosecution that the accused were making preparation or had gathered for the purpose of committing dacoity.
24. Adverting to the facts of the present case, it is to be seen if the present case comes within the ambit of section 399 and 402 IPC. As I have discussed herein above, prosecution has not examined all the material witnesses placed, one member of the raiding party. The prosecution was under obligation to establish that the assembling of the accused persons is for making preparation to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity, and they were preparing in prosecution of that design, which is failing in the present case. Only because the accused persons were found in Central College gate, Bengaluru, it cannot be held that they had assembled there for preparation to commit dacoity.
25. It is true that so far as the offence under Section 402 IPC is concerned, it may be mentioned that this section can be 18 SC.No.2078/2018 applied to mere assembling without proof of other preparation. The offence under Section 402 IPC is complete as soon as five or more persons assembled together for the purpose of committing dacoity. In the present case, it is not in dispute that, at the spot only five persons are shown to have been apprehended.
26. It is significant to mention here that, the prosecution has examined only 3 witnesses who are official witnesses and no member of raiding party has been examined. Non-examination of any of the independent witness and member of the raiding party is fatal to the case of the prosecution.
27. Another important aspect to be noted is that, it is the testimonies of PWs.1 to 3 which support the case of the prosecution. As it is discussed earlier, no independent witnesses are there to support the case of the prosecution. The testimonies of PWs.1 to 3 are not supported by any independent of the witnesses. However, the prosecution has failed to secure any of the charge sheet witnesses. Hence, in the present case, the prosecution tried to bring home guilt of the accused persons by relying upon the versions of police officials PWs.1 to 3. A bare perusal of their version clearly reflects the same to be of stereo 19 SC.No.2078/2018 type. Hence, in my view, it will be highly unsafe to rely upon their version.
28. In the light of my aforesaid discussion, I am of the opinion that, the prosecution has failed to bring home the guilt of accused No.1 to 3 beyond all reasonable doubt, by placing convincing and cogent evidence. Therefore, benefit of doubt shall go in favour of accused No.1 to 3. For the foregoing reasons, I answer the above points No.1 and 2 in the 'Negative'.
29. Point No.3:- In view of answering point No.1 in the negative, I proceed to pass the following :
ORDER Accused No.1 to 3 are found not guilty of the offence punishable under Sections 399, 402 IPC. Acting under Section 235(1) Cr.P.C., the accused No.1 to 3 are hereby acquitted.
Bail bonds of the accused No.1 and 2 and their surety bonds stand cancelled.
Accused No.3 is set at liberty forthwith, if he is not required in any other cases. 20 SC.No.2078/2018
Note:- Office is hereby directed to preserve entire case file along with MO.1 to MO.5 in connection with the split up case registered against absconding accused.
(Dictated to the stenographer, transcribed by her, corrected and then pronounced by me in the Open Court on this 24th day of January, 2020) (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION:-
PW1 Narayani
PW2 Harish
PW3 Kathyayini
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION:-
Ex.P1 Panchanama
Ex.P1(a) Signature of PW1
Ex.P2 Complaint
Ex.P3 FIR
Ex.P3(a) Signature of PW3
21 SC.No.2078/2018
LIST OF MATERIAL OBJECTS MARKED:-
MO.1 Knife
MO.2 Iron rod
MO.3 to 5 Wooden clubs
LIST OF WITNESS EXAMINED, DOCUMENTS AND MO.S MARKED ON BEHALF OF DEFENCE:-
Nil (SUBHASH SANKAD) LXV Addl. City Civil & Sessions Judge, Bengaluru.