Bangalore District Court
By Jnanabharathi Police Station vs In on 4 July, 2019
IN THE COURT OF THE LX ADDL. CITY CIVIL &
SESSIONS JUDGE, BENGALURU (CCH 61)
:Present :
Sri Vidyadhar Shirahatti, LL.M
LX Addl. City Civil & Sessions Judge,
Bengaluru.
Dated: This the 3rd day of July, 2019
S.C. No. 117/2015 and S.C.No.773/2016
COMMON : The State of Karnataka
COMPLAINANT:- By Jnanabharathi Police Station,
Bengaluru.
(By Public Prosecutor)
V/s
ACCUSED In
S.C.No.117/2015:-
3. Bhanu Pakash @ Bhanu S/o.
Govindappa, Aged about 25 years,
R/at. No.416/17, 5th Cross,
Chowdeshwari Nagara, Laggere,
Bengaluru
5. Shanakra S/o.Krishnappa, Aged
about 26 years, R/a.No.23, 7th A
Cross, 2nd Main, Srinivasanagara
Sunkadakatte, Bengaluru.
Accused in 2. Manjunatha @ Mental Manju
S.C.No.773/2016 S/o Hanumanthappa, Aged
about 21 years, R/at No.57,
15th Cross, Chowdeshwari
Ngar, Laggere, Bengaluru.
2 S.C. No:117/2015
&
S.C.No.773/2016
Date of offence 05.11.2010
Date of report of offence 06.11.2010
Name of the complainant ARI Chethan.S
Date of commencement of 02.11.2016
recording of evidence
Date of closing of evidence 13.07.17
Offences complained of Sec. 392 r/w 34 of IPC
Opinion of the Judge Accused No.3, 5 and 2 are
found not guilty
State represented by Learned Public Prosecutor
Accused defended by Sri.D.S, Adv
COMMON JUDGMENT
These two cases are arising out the same Crime
No.294/2015 of Jnanabharathi police and in the two
cases, the accused No.3, 5 and 2 respectively. Hence, they
are clubbed and taken up together for discussion for the
sake of convenience and to avoid repetition of facts.
2. These are the two separate charge sheet filed by
Jnanabharathi Police against accused No.3, 5 and 2
respectively for the offences punishable u/Sec.392 of IPC.
3. Guest of allegations leveled angst the accused persons
as per charge sheet and other materials on record as follows:
3 S.C. No:117/2015
&
S.C.No.773/2016
That on 05.11.2010 at about 10.15 p.m., in New ring
road near building of Manapuram Gold Loan within the limits
of Janabharathi P.S. while CW-1 was going in Maruthi Alto Car
bearing registration No.KA-05-MB-6377 to drop CW-4,
accused No.1 to 6 having common object of committing dacoity
and in furtherance of common object, accused No.1 to 4 came
on two pulsar motor bikes and waylaid the Maruthi Alto Car
and putting life threat to CW-1 and 4 by showing the knife and
took them in their car near Mariyappapalya and alighted them
from the car, snatched two mobiles, cash of Rs.700/- and
Maruthi Alto Car and further that all the accused robbed CW-1
and 4 by showing knife and accused No.5 and 6 knowing fully
well that the Maruthi Alto car is a dacoity vehicle, assisted
accused No.3 and others in committing the said offence by not
giving information to the police and thereby conjointly
committed the offences of dacoity punishable under Sections
395 and 397 of IPC.
4. Subsequently, after completion of investigation,
Investigating Officer filed the charge sheet against accused
No.1 to 7 for the offences punishable u/Sec.392 of IPC. On
4 S.C. No:117/2015
&
S.C.No.773/2016
receipt of the charge sheet as the accused No.2 to 5 were
secured. It is important to note that, since the
complainant police have filed the charge sheet against the
accused for the offence punishable u/Sec.392 of IPC.
Therefore, the committal court after securing the accused
persons, the committal court has framed the charge
against the accused persons and recorded the evidence of
prosecution i.e. CW1, 13, 12, 11 as PW1 to PW4 and
during the course of evidence, the learned Committal court
found that, the evidence of the prosecution witnesses
discloses ingredients of Sec.397 of IPC and not Sec.392 of
IPC. Hence, the case has been committed to this court,
since Sec.397 of IPC is exclusively triable by the court of
Sessions and the committal court has no jurisdiction to try
the said offence. Therefore, the learned IX ACMM,
Bengaluru, as per order date.24/1/2015 committed the
case against accused Nos.2, 3 and 5 to the Hon'ble
Principal City Civil and Sessions Judge Bengaluru. That
on committal, the case was registered as SC 117/2015
5 S.C. No:117/2015
&
S.C.No.773/2016
and S.C.No.773/2016 respectively and made over to this
court for disposal in accordance with law. Thereafter,
accused No.3, 5 and 2 appeared through their counsels
and they are on bail.
5. Thereafter, admitting of the case, accused No.3, 5
and 2 were secured and on hearing the prosecution as well
as defense counsel u/Sec 227 of Cr.P.C, this court framed
the separate charge against accused No.3, 5 and 2 for the
offence punishable u/Sec.397 of IPC, the contents of the
charge for the above said offences read over and explained
to accused No.3, 5 and 2 in the language known to them
and they denied the same and claimed to be tried.
6. In support of its case, prosecution have cited 15
witnesses, out of that prosecution examined 10 witnesses
as PW1 to PW10 and got marked documents as per Ex.P.1
to Ex.P.5 and alleged seized articles as M.O.1. Since, in
despite of sufficient opportunity given to the concerned
police have not secured the presence of CW-6 to CW-8 in
6 S.C. No:117/2015
&
S.C.No.773/2016
order to render speedy justice, the evidence of prosecution
taken as closed on 13/7/2018. Thereafter, the statement
of accused No.3, 5 and 2 under Sec.313 of Cr.P.C. is
recorded. The case of defence is total denial of prosecution
case and the defence examined none and no documents
are marked. It is pertinent to note that, after recording the
statement u/Sec.313 of Cr.P.C. the learned Public
Prosecutor has filed application stating that, the evidence
on record discloses the ingredients u/Sec.395 of IPC and
hence, prays to modify the charge u/Sec.395 of IPC. After
hearing the both sides, this court has allowed the
application filed by the learned Public Prosecutor and
modified the charge against the accused No.3, 5 and 2 and
permitted the learned counsel for the accused to cross
examine the witnesses in view of modification of charge.
After cross examination the matter is posted for
arguments, since the statement of 313 of Cr.P.C. is
already recorded.
7 S.C. No:117/2015
&
S.C.No.773/2016
7. Heard the arguments of learned Public Prosecutor
for State and learned counsel for accused No. 3, 5 and 2.
Perused the records.
8. In the facts and circumstances of the case, the
points that arise for my consideration are as under:-
1) Whether the prosecution proves beyond all
reasonable doubts that on 5.11.2010 at about
10.15 p.m., at New Ring Road, near the
building of Manappuram Gold Loan, within the
limits of Jnanabharati Police Station, while
CW1 was going in Maruthi Alto Car bearing
No.KA-05-MB-6377 to drop CW4, you accused
No.2 along with absconding accused No.1, 3 to
6 having common object of committing
robbery, and in furtherance of common object,
you accused No.1 to 4 came in Two Pulsar
Motor bikes and way laid the Maruthi Alto Car
and by putting life threat to CW1 and 4
showing the knife and took them in their car to
no-mans land near Mariyappana Palya and
alighted them from the car and snatched two
mobiles, cash of Rs.700/- and Maruthi Alto
Car and thereby you all robed them by
8 S.C. No:117/2015
&
S.C.No.773/2016
showing knife and thereby committed an
offence punishable u/Sec.397 of IPC?
2) Whether the prosecution proves beyond all
reasonable doubts that on 5.11.2010 at about
10.15 p.m., at New Ring Road, near the
building of Manappuram Gold Loan, within the
limits of Jnanabharati Police Station, while
CW1 was going in Maruthi Alto Car bearing
No.KA-05-MB-6377 to drop CW4, you accused
No.2 along with absconding accused No.1, 3 to
6 having common object of committing dacoity
and in furtherance of common object, you
accused No.1 to 4 came in Two Pulsar Motor
bikes and way laid the Maruthi Alto Car and
by putting life threat to CW1 and 4 showing
the knife and took them in their car to no-
mans land near Mariyappana Palya and
alighted them from the car and snatched two
mobiles, cash of Rs.700/- and Maruthi Alto
Car and thereby you all conjointly committed
an offence of dacoity punishable u/Sec.395 of
IPC.
3) What order?
9. My answer to the above points are as under:-
9 S.C. No:117/2015
&
S.C.No.773/2016
Point No.1:- In the Negative
Point No.2:- In the Negative
Point No.3:- As per final order
for the following:-
REASONS
10. POINT NOS.1 AND 2:- These two points are
taken together for discussion for the sake of convenience
and to avoid repetition of facts.
11. In order to establish the charge leveled against
the accused, the prosecution has placed total 15 witnesses
and out of that 10 witnesses had been examined.
According to prosecution, PW-1, PW4 are the eye
witnesses and the victims. PW-6 and PW-9 are the
independent panchas, PW-2, PW-3, PW-4, PW-8 and PW-
10 are the police witnesses. PW5 is the independent
witness.
10 S.C. No:117/2015
&
S.C.No.773/2016
12. PW-6 has not supported the prosecution case
and PW9 has supported the case of prosecution. PW-1 and
PW-4 are the star witnesses.
13. PW-1 and 4 have stated in their evidence that
PW1 Chethan.S is the complainant and PW-4 Karthik is
the eyewitness to the alleged incident. PW1 and PW4
stated that, on 06-11-2010 at about 10-15 pm to 10-45
pm, when they were proceeding in Alto car on Nagarabhavi
Ring Road, two riders of bike went ahead and took U turn
and came back and under the guise of asking about the
address, stopped their car. They further stated that, one
of them pointed out knife and threatened PW1 by putting
the knife near his neck. Another of them asked PW4 to sit
in the rear seat of car. Other three persons who were
sitting on another bike also joined the two persons who
stopped their car. out of them, two persons were sat in the
car and asked to move the car. Other three persons
followed their car. In the meantime another bike carrying
two persons also joined those two bikes.
11 S.C. No:117/2015
&
S.C.No.773/2016
14. They further deposed that, in all there were
seven persons and the persons who were sitting in the car
asked PW1 to take U turn and accordingly PW1 drove the
car as per their direction towards Nagarabhavi BDA
complex. On the way those two persons snatched PW1
mobile phone and cash of Rs.700/-., and also snatched
mobile phone of PW-4. The two persons who were sitting in
the car were asked to stop the car near Amma Ashram at
Ullal road where there was open site. They further
deposed that, they instructed them to get down from the
car and to run away and accordingly they started running
away in different directions. They further deposed that,
those persons took away the car also, which belongs to
PW5.
15. They further deposed that, thereafter they went
to Jnanabharathi Police Station and filed complaint as per
Ex.P-1 on 05-11-2010 at about 12-00 midnight. They
further deposed that, accused No.2, 3 and 5 robbed on the
12 S.C. No:117/2015
&
S.C.No.773/2016
day by pointing knife along with other three persons. They
further deposed that after one month, Police traced out the
car and after few days after filing complaint, Police had
called them to the station where they identified accused
persons and the robbed articles and weapons.
16. So far as PW-1 and 2 is concerned, the defence
counsel have fully cross-examined and defence counsel
has tried to suggest some points which was agreed in the
chief examination, but the witnesses has denied the
suggestions which were put forth by the counsel for the
accused. However, in the cross examination PW1 admits
that, on the date of filing complaint, he did not possess
driving license. They further admitted that, the alleged
spot is a busy spot and publics are frequently moving
there. They further also admitted that, they do not know
the bike number, this version is not believable since, they
deposed that, they were proceeding in Alto car on
Nagarabhavi Ring Road, two riders of bike went ahead and
took U turn and came back and under the guise of asking
13 S.C. No:117/2015
&
S.C.No.773/2016
about the address, stopped their car. They further stated
that, one of them pointed out knife and threatened PW1 by
putting the knife near his neck. Another of them asked
PW4 to sit in the rear seat of car. Other three persons who
were sitting on another bike also joined the two persons
who stopped their car. Out of them two persons were sat
in the car and asked to move the car. Further that, the
accused persons were came in a two bike, which is not
believable at all, since in a two bike 7 persons were not
possible. Further on perusing the evidence of PW4, it
clearly shows that, the in a bike one child was also present
there. However, PW1 has no whispered anything about
the child. On careful perusing the entire evidence of PW1
and PW4, their evidence is contradicting with each other
and there are a lot of discrepancies. Therefore, the
evidence of PW1 and PW4 cannot be believable. Hence,
the evidence of PW1 and 4 has to be corroborated with
independent panch witnesses.
14 S.C. No:117/2015
&
S.C.No.773/2016
17. PW6 Vijay Babu the panch witness to the spot
mahazar at Ex.P.2 has not supported the case of
prosecution. It is pertinent to note that, after treating him
as hostile witness, he has supported the case of
prosecution.
18. PW9 Bharath another panch witness to the
alleged incident has supported the case of prosecution. It
is important to note that, though PW6 and PW9 supports
the case of prosecution in their examination chief,
however, in their cross examination they admitted that the
PW1 and PW4 are their friends and they also admitted
that, they do not know contents of Ex.P.2 mahazar. Thus,
on close scrutiny of evidence of PW.6 and 9, it appears
that, though in their examination-in-chief, they have
targeted the accused as a robber, but during course of
their cross examination, they have given complete go by to
the story of the prosecution. Therefore, it is unsafe to place
reliance on their evidence.
15 S.C. No:117/2015
&
S.C.No.773/2016
19. PW2 Kantharaj Arus HC and PW7 Yogananda
Kumara have deposed that, on 3/1/2011 they were
deputed in search of the accused. Accordingly they went
near Laggere Bus Stop and apprehended accused No.2
and 3 and brought them to the police station and
produced them before the SHO with report as per Ex.P.3 of
PW7. PW3 Parthasarthy deposed he recorded the
statement of PW4 and releasing the accused No.3 on bail
as per the order of the court. PW5 Shewtha is the
registered owner of the Alto car bearing Reg.No.KA-05-MB
6377 deposed that, on 5/11/2010 PW1 has taken her car
and on the next day morning he informed that, the said
car was robbed by the accused persons. She further
deposed that, after few days, the police summoned her to
the police station and where she identified the car.
20. PW8 B.T.Chidanandaswamy DySP deposed
about the conducting of the further investigation and
deposed that he took the case from CW13 and on the next
day he visited the spot and conducted the spot mahazar at
16 S.C. No:117/2015
&
S.C.No.773/2016
Ex.P.2. He further deposed that, he deputed his staff to
trace the accused persons and on 30/1/2011 his staff
apprehended and produced accused No.2 and 5 before
him. He further deposed that, on the basis of the
voluntary statement of the accused person on 31/1/2011
he seized the knife by drawing the mahazar at Ex.P.4 and
after completion of investigation, he submitted the charge
sheet before the court. PW10 Chandrappa PSI deposed
about the registering of the case.
21. The essential ingredients of the offence under
Section 397 of IPC are the accused must commit robbery
or dacoity, while committing said robbery or dacoity the
accused has to use deadly weapon to cause grievous hurt
or attempt to cause death or grievous hurt to any person.
The said Section 397 of IPC is imposed minimum
punishment of seven years but not merely serve as being
complimentary to Section 392 and 395 by regulating the
punishment already provided for dacoity or robbery. When
17 S.C. No:117/2015
&
S.C.No.773/2016
the dacoity or robbery committed was found attended
upon certain aggravate circumstance use of deadly weapon
or causing grievous hurt or attempting to cause death or
grievous hurt for that reason, no doubt the provision of
Section 397 of IPC will be applicable. Further, that for
proving Section 397 of IPC those who committed the
grievous injury he will be alone liable for punishment. No
doubt that the provision postulates only the independent
Act of the accused to be relevant to attract Section 397 of
IPC and thereby inevitably negates the use of the
principle of constructive or vicarious liability encrypted in
Section 397 of IPC.
22. So it very clear that, to attract the Sec.397 of
IPC, the essential ingredients of the offence is that the
accused must commit robbery or dacoity and while
committing the said robbery or dacoity, the accused has to
use the deadly weapon to cause grievous hurt or attempt
to cause death or grievous hurt to any person. It is
18 S.C. No:117/2015
&
S.C.No.773/2016
relevant to note that, though PW1 and PW4 have deposed
that the accused persons used the deadly weapons i.e.
knife, however, they have not mentioned who hold the
knife on the neck of PW1 and stabbed the complainant.
The particular ingredient of 397 of IPC inevitably negates
the use of principle of constructive or vicarious liability. No
doubt, the provision postulates only the independent act of
the accused to be relevant to attract Sec.397 of IPC. But
injured has not deposed who hold the knife and stabbed
him. Therefore, in the above circumstances, Sec.397 of IPC
will not be applicable against the accused, as witnesses
have not stated anything about particular act i.e. who hold
the knife and assaulted the victim. Therefore I am of the
considered view that the prosecution has failed to prove
the essential ingredients of offence against the accused.
23. It is important to note that, PW2, PW3, PW7,
PW8 and PW10 being the official witnesses have deposed
in their official capacity and their evidence in formal in
19 S.C. No:117/2015
&
S.C.No.773/2016
nature. Hence, the evidence of PW2, PW3, PW7, PW8 and
PW10 will not assume much importance.
24. I have carefully gone through the evidence of
PW1, PW4, PW6 and PW9, who being prime witnesses in
this case. Materials available on record, discloses with
material discrepancies and contradictions and their
evidence is inconsistent. Therefore, the evidence of PW1,
PW4, PW6 and PW9 are not trustworthy and hence, it
cannot be believable. In my view evidence of PW5 is not
of much importance, since PW5 is the registered owner of
the alleged vehicle, because, the accused also not disputed
the same.
25. Absolutely prosecution has failed to establish its
case against accused, by placing any iota of evidence. In
my view, in view of evidence of PW1, PW4, PW6 and PW9,
certainly accused is entitled to an acquittal, since
prosecution has failed to establish its case against accused
No.2, 3 and 5, by placing convincing and cogent evidence
20 S.C. No:117/2015
&
S.C.No.773/2016
in connection with any of the charges leveled against
them. Therefore, I need not discuss much about
prosecution case. For the foregoing reasons, I answer the
above points in the "Negative".
26. Point No.2:- In the result, I proceed to pass the
following;
ORDER
Acting under Section 235(1) of Cr.P.C., accused No.3 and 5 in S.C.No.117/2015 and accused No.2 in S.C.No.773/2016 are hereby acquitted of the charges leveled against them for the offences punishable under Section, 397 and 395 of IPC.
The bail bond of accused No.2, 3 and 5 and that of their sureties' stands cancelled.
However, bail bonds and surety bonds executed by accused No.2, 3 and 5 as required u/S.437-A of Cr.P.C., shall be in force for a period of six months from this day.
21 S.C. No:117/2015& S.C.No.773/2016 Charge sheet Papers and Seized M.O 1 be preserved till disposal of split up charge sheet pending against accused No.1, 4, 6 and 7.
Original judgment of this shall be keep in S.C.No.117/2015 and copy shall be thereof in S.C.No.773/2016.
*** (Dictated to the Stenographer, transcribed and typed by her, corrected by me and then pronounced by me in open court on this the 3rd day of July, 2019) (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURES:
List of witnesses examined for the prosecution:
PW1 Chethan.S
PW2 Kantharaj Arus
PW3 Prathasarthy
PW4 Karthik
PW5 Shwetha
PW6 Vijay Babu
PW7 Yogananda Kumara
PW8 B.T.Chidanandaswamy
PW9 Bharath
PW10 Chandrappa
22 S.C. No:117/2015
&
S.C.No.773/2016
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Complaint Ex.P.2 Two Photos of car Ex.P.3 Report Ex.P.4 Seizer Panchanama Ex.P.5 Statement Ex.P.6 Statement Ex.P.7 FIR
List of documents exhibited on behalf of defence:
Nil List of M.O. marked for the prosecution:
M.O.1 Knife (Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.23 S.C. No:117/2015
& S.C.No.773/2016 Common judgment pronounced in the open court. Vide separate order ORDER Acting under Section 235(1) of Cr.P.C., accused No.3 and 5 in S.C.No.117/2015 and accused No.2 in S.C.No.773/2016 are hereby acquitted of the charges leveled against them for the offences punishable under Section, 397 and 395 of IPC.
The bail bond of accused No.2, 3 and 5 and that of their sureties' stands cancelled.
However, bail bonds and surety bonds executed by accused No.2, 3 and 5 as required u/S.437-A of Cr.P.C., shall be in force for a period of six months from this day.
Charge sheet Papers and Seized M.O 1 be preserved till disposal of split up charge sheet pending against accused No.1, 4, 6 and 7.
Original judgment of this shall be keep in S.C.No.117/2015 and copy shall be thereof in S.C.No.773/2016.
(Vidyadhar Shirahatti) LX Addl. City Civil & Sessions Judge, Bengaluru.