Bangalore District Court
State By vs A1: Lakshmikantha @ Vinay on 28 August, 2017
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-67)
DATED THIS THE 28th DAY OF August 2017
PRESENT
SRI.A.VIJAYAN, B.A.(LAW),LL.M.,
LXVI Addl.City Civil & Sessions Judge (CCH-67)
S.C.799/2013
COMPLAINANT : State by:
Jnanabharathi Police Station,
Bangalore.
(By Public Prosecutor)
/Vs/
ACCUSED: A1: Lakshmikantha @ Vinay
@ Gunda,
S/o Ramakrishnappa,
Aged 29 years,
R/at No.32,
Near Yeshwanthapura Railway
Station, Muneshwara Nagara,
Bangalore.
A2: Babu @ Choodi Babu,
S/o Ameer Jhan, 30 years,
T.B.Layout, Nagamangala Town,
Mandya District.
(A1 &2 by Sri.MGS, Advocate)
DATE OF:
Occurrence of offence : 04/03/2011
Commencement of trial : 05.08.2014
Closing of trial : 23.05.2017
Name of the complainant :Smt.Mahadevamma
Offence alleged : U/s 392 and 413 of IPC
Opinion of the judge: Charges leveled against
accused are not proved
Sentence or order : A1 and A2 Acquitted
2 S.C.799/2013
JUDGMENT
Jnanabharathi police filed charge sheet against the accused for the offence punishable under Sec. 392 and 413 of IPC.
2. Brief facts of the prosecution case is that:-
On 4.3.2011 at about 4.15 p.m. within the jurisdiction of Jnanabharathi police station, on 5th Cross, 9th Main, APMC Layout, when CW1 was in the house, accused No.1 and 2 came in a black colour pulsar Motor cycle bearing Reg.No:KA- 02 HA-5526 and called CW1 out in the guise of asking address, and snatched the golden chain from the neck of CW1 and they rode away in their vehicle. Hence, CW 1 lodged complaint with Jnanabharathi police. Based on the complaint police registered a case in Cr.No:89/2011 of their police station and after completion of investigation filed charge sheet against the accused for the offence punishable under Sec. 392 and 413 of IPC.
3. Meanwhile accused No.1 and 2 were remanded to JC. After committal of this case, accused No.1 and 2 are produced from Judicial custody before this court and they got enlarged on committal bail. Heard before charge, charge 3 S.C.799/2013 framed and plea of accused recorded. Accused pleaded not guilty, but claimed to be tried by this court. Hence, this case was posted for trial.
4. During the course of trial, the prosecution in all examined its witnesses as P.W.1 to P.W. 13 and got marked documents Ex.P.1 to P.17 and MO 1. Statement of accused under Sec.313 of Cr.P.C. is recorded. Accused denied all incriminating evidence. The accused neither produced nor adduced any evidence on his defence.
5. Heard arguments on both the sides and case was posted for judgment.
6. Out of above said facts and circumstances of the case, and material evidence on record, points that arise for my consideration are as under for the following reasons:-
1. Has the prosecution proves beyond all reasonable doubt that 4.3.2011 at about 4.15 p.m. within the jurisdiction of Jnanabharathi police station, on 5th cross, 9th Main, APMC Layout, when CW1 was in her house, accused No.1 and 2 came in a black colour Bajaj pulsar Motor cycle bearing Reg.No:KA-02 HA-5526 and called CW1 out of her house in the guise of asking address , and snatched chain from her neck and they rode away and there by 4 S.C.799/2013 committed an offence punishable under Sec. 392 , and 413 of IPC ?
2. What Order?
7. My findings to the above points are as under for the following reasons:-
Point No.1 : In the Negative Point No.2 : As per final Order, for the following :
REASONS
8. POINT No.1: In this case, police have filed charge sheet against the accused for the offence punishable under Sec. 392 and 413 of IPC. It is burden on the prosecution to prove the guilt against the accused beyond all reasonable doubt with the material, supportive and corroborative evidence with cogent reasons. In this case there is no direct evidence to prove guilt against the accused, under such circumstances prosecution has to link chain of circumstances available against the accused persons to bring home the charge leveled against the accused persons.5 S.C.799/2013
9. During the course of trial, the prosecution in all examined its witness P.W.1 to P.W. 13 and got marked documents at Ex.P.1 to P.17 and MO.1.
10. PW1 Mahadevamma deposed that her house is situated at MPM Layout, at about 2 years back one day at about 4 p.m. after returning from school along with her children when she was sitting near her compound two persons came in a bike under the guise of searching address , after having conversation with those persons when she turned back to go to her house she felt some person dragging her gold chain behind her back, within fraction of seconds they snatched her gold chain and rode away with their bike. After a while the water man came to her house, though she informed about those persons but he cannot trace. She further deposed that she can identify to able to identify those persons, accused before this court are the persons who snatched her gold chain. Thereafter in that regard she lodged complaint before police, her complaint marked as Ex.P.1 and signature is marked at Ex.P.1(a). She disclosed incident spot to police wherein police drawn spot mahazar in her presence as per ExP.2 and she identified her signature at Ex.P.2(a).6 S.C.799/2013
She further deposed after elapse of one year she identified her robbed her robbed chain in the Jnanabarathi police station as well as she identified accused. Police had given her robbed chain , same she has kept in her house. At that time police obtained her signature. Further she identified her robbed chain in the photo. Photo is marked as ExP.3 subject to objection of defense counsel. At the time of releasing her gold chain IO has also taken indemnity bond form her which is marked as Ex.P.4 and she identified her signature at Ex.P.4(a). She further deposed that her robbed chain produced before the court and marked as MO.1. Thereafter she identified accused No.1 in the identification parade held at Parappana Agrahara Central Prison. She put her signature in the jail , those documents are marked as Ex.P.5 and P.6 and she identified her signature at Ex.P.5(a) and P.6(a).
11. In her cross examination she deposed that incident occurred at about 4 p.m. when she lodged complaint before police that was between 6 and 6.30 p.m. The complaint was written by her son. She further clearly admitted that at the time of incident the two bike riders have covered their face with cap, and same had revealed before the police, she also 7 S.C.799/2013 revealed about model of chain robbed by miscreants. She clearly admitted that at the time of giving statement before the police she did not stated about color of bike but she had stated that the bike was old one, and their lost chain was ' eradu ele sara' in that chain there were one mangalya, 4 gundus and two gold coins. The total weight of robbed chain weighing about 70 gms. She after identifying MO1 has clearly admitted that MO1 is not eradu ele fixed with mangalya , four gundus and two coins. She clearly admitted that though her robbed chain not traced but police took her to gold smith and got prepared her robbed chain as per MO.1. Police prepared MO1 after elapse of 1 ½ years. She clearly admitted that the chain which was given by police weighing about 40 gms as per Ex.P.4. She did not enquire about remaining 30 gms of gold and chain. Before proceeding to prison police issued her notice, first she had been to police station, thereafter police accompanied her to prison wherein executive Magistrate conducted identification parade and she identified one accused in the presence, thereafter executive Magistrate obtained her signature. She denied several suggestions put by learned defense counsel.
8 S.C.799/2013
12. PW.2 Subbegowda deposed that at about 3 years back one day police came to MPM Layout in front of house of PW1 and conducted spot mahazar, at that time CW3 was also present. At that time, himself, his son, CW3 and police were present. On the same day of the incident at about 7 p.m. police visited incident spot and conducted spot mahazar. Spot mahazar is marked at Ex.P.2 and he identified his signature at Ex.P.2(b) and turned hostile. In his cross examination he mechanically admitted to a suggestion put by learned Public prosecutor that on 4.3.2011 police prepared Ex.P.2. PW1 disclosed incident spot to police. Police obtained signature of PW1 at Ex.P.2(a). Again when cross examined by learned defense counsels , he denied several suggestions put by learned defense counsels.
13. PW.3 Nanjundaiah deposed identically as PW2 in his examination in chief and through him prosecution got marked his signature at ex.P.2(c) and turned hostile. In his cross examination he admitted that Ex.P.2 was prepared on 4.3.2011 , at that time he was also present in the spot. Again when cross examined by learned defense counsel he deposed that when he signed Ex.P.2 it was 4 p.m. He clearly admitted 9 S.C.799/2013 that he was accompanied by PW2 to the court and he denied several suggestions put by learned defense counsels.
14. PW4 Srinivasa deposed that CW5 is his friend, at about 3 years back one day in between 3.45 and 4 p.m. himself and CW5 came to MPM layout to turn valve of water duct, at that time two persons came in a bike and robbed away chain from the neck of a female and she was screaming, immediately they chased them, but miscreants escaped and their adventure ended in vain. In his cross examination he deposed that on that alleged day they came in a pulsar bike, he cannot identify bike of riders and he denied the statement before police that the miscreants came in Hero Honda CD
100.
15. PW5 Krishna Iyer deposed that at about 1 ½ years back on his work with police when he had been to Jnanabarathi police station, police obtained his signature on a document, that document marked at Ex.P.7 and he identified his signature on Ex.P.7(a), but failed to depose whatever written in Ex.P.7. He further deposed that police did not seized any material object from any person in his presence by drawing Ex.P.7 and turned hostile. But during his cross 10 S.C.799/2013 examination prosecution failed to elicit any gainful evidence in its favour.
16. PW6 Satish deposed that he knew accused one day accused No.1 along with accused No.2 came to his shop and told him that they are in need of money and sold one chain to him. After elapse of 8 to 10 months police came along with accused to his shop and demanded 4 chain sold by accused persons among 4 chains one chain already marked as MO1, nad he identified that chain in Ex.P.3. At that time police drawn seizure mahazar as per Ex.P.9 and he identified his signature at Ex.P.9(a). In his cross examination he deposed that he cannot remember when exactly accused No.2 sold chian to him. He cannot recount about description of chain purchased from accused No.2. But he purchased chain accused No.2 by paying Rs.2300/- per gram for 40 gms. He had paid Rs.85 to 90 thousand. At that time he did not issued any receipt to accused. Further deposed that he cannot say when exactly he purchased the chain shown in Ex.P.3. Chain shown in Ex.P.3 was weighting 22 gms. He cannot describe about the model of the chain. He denied several suggestions put by learned defense counsel.
11 S.C.799/2013
17. PW7 B.V.Shivanna the then ASI attached to Jnanabarathi police deposed about arrest of the accused and seizure of black pulsar bike and such other articles as per Ex.P.4, P.5 and MO 2 to 4 by darwing seizure mahazar Ex.P.10 and he identified his signature at Ex.P.10(a). In his cross examination he denied several suggestions put by learned defense counsel.
18. P.W.8 N.R.Umesh Chandra, Tahasildar , Executive Magistrate deposed about the identification parade conducted by him. Since complainant denied conducting the identification parade his evidence is not useful for prosecution.
19. PW.9 S.B.Ramesh deposed that at about 2 years back one day police came to Nagamangala to meet Satish and in his presence police seized four gold chains stating that they were stolen and sold to Satish by that time it was 9 a.m. to 10 a.m. at that police have drawn one document as per Ex.P.9 he identified his signature at Ex.P.9(b). House of Satish is located near Adichunchanagiri College Travelers Bunglow, Nagamangala, at that time one Murthy was present. Satish produced 4 chains to police from his house and he put his signature after read over contents of Ex.P.9. In his cross 12 S.C.799/2013 examination he deposed that Satish and himself are cousin brothers, Satish is having one provision store, police not issued notice to him to co operate to Mahazar. But Satish called him through phone. Police might have seized 4 gold chain weighing 105 gms. 4 chains might be ondu ele chain. Thereafter he came to know that the accused have robbed those chains in Bangalore City. On that day 3 to 4 police personal came in Tata Sumo vehicle and he denied several suggestions put by defense counsel.
20. PW.10 Chinnamma deposed that at about 2 years back one day she had been to police station wherein police obtained her signature to a document , but not seized any object or property from any other person in her presence and she identified her signature in Ex.P.7 at Ex.P.7(b). During her cross examination prosecution failed to elicit any gainful evidence in favour of prosecution.
21. PW.11 Parthasarathy the then PSI of Jnanabarathi PS deposed that on 4.3.2011 at about 6.30 p.m. when he was in charge of police station Mahadevamma came to police station and lodged one written complaint, based on that he has registered a case in Cr.89/2011 for the offence punishable 13 S.C.799/2013 under Sec.394 of IPC and submitted FIR before this court. Complainant already marked at Ex.P.1 and he identified his signature at Ex.P.1(b) and FIR marked at Ex.P.13 and he identified his signature at Ex.P.13(a). On the same day in the presence of two pancha witnesses he has drawn spot mahazar as per Ex.P.2 and he identified his signature at Ex.P.2(d). In his cross examination he clearly admitted that in Ex.P.1 the complainant has given complaint that one person came and robbed her chain but not two persons. He also clearly admits that in Ex.P.13 it has been stated that one stranger came in motor bike, at Ex.P.1 the manufacturer of motor bike not mentioned. But witnesses Srinivas, Mahendra and Shivakumar in their statement stated that the motor cycle might be Hero Honda CD 100 based on its sound. He clearly admitted that at preliminary stage there was no clue with regard to physical makeup of miscreants.
22. P.W.12 Intihza patel the then PSI of Jnanabarathi Police station deposed that on 11.12.2012 CW18 issued a Memo to trace and seize the properties required in Cr.No.462/2012 which were sold in Channarayapatna , Kunigal, Nagamangala , Mutoot Finance and Mannapuram 14 S.C.799/2013 gold through gold smith Manja the Memo marked as Ex.P.14. Accordingly, on 12.12.2012 himself , accused and his staff PW7, CW12 to 14 had been to House No.2/59 , T.B.Layout , Nagamangala Taluk, Mandya District wherein one Satish was residing on demand said Satish produced four gold chains which were sold by accused persons. He seized four gold chains in the presence of CW9 and 10 by drawing seizure mahzar as per Ex.P.9 and he identified his signature at Ex.P.9(c) and also recorded statements of CW 9 and 10. Thereafter he produced them before CW18 along with four chain and statement of witnesses. Photograph one chain already marked as Ex.P.3 and he identified accused before the court. CW18 recorded voluntary statement of accused persons. And directed him to search and seize gold chains in his cross examination he clearly admitted that in Ex.P.3 it is ondu ele chain and to that Mangalya , gundu and gold coins are missing and he denied lengthy suggestions put by learned defense counsel.
23. PW13 B.Balaraju who has conducted complete investigation in this case from alpha to omega deposed about whatever investigation conducted by him till filing of charge 15 S.C.799/2013 sheet. But in his cross examination he deposed that complainant in her complaint has stated that on that fateful day only one person came in a bike and in her complaint she has stated that mangalya sara weighing 60 gms was robbed but not stated about description of motor bike and he clearly admitted that during the course of investigation it came to light that complainant has lost eradu ele mangalya sara further clearly admitted that in Ex.P.15 i.e. PF 231/2012 it has been written as eradu ele mangalya sara and further voluntaries that since that chain was broken ASI by mistake of fact has written as eradu ele but it is ondu ele sara. Further he clearly admitted that in the complaint complainant has stated that the miscreants have robbed mangalya sara with mangalya four gundus and two gold coins, but in Ex.P.3 those things were missing. During the course investigation they came to know that motor bike belonged to one Irfan but he was not examined or made as witness in this case and he deied lengthy suggestions put by learned defense counsel.
24. On analyzing the entire prosecution case it is clear that though prosecutions examined its witness PW1 to xxxx and MO.1, PW1 Mahadevamma complainant in this case 16 S.C.799/2013 clearly admitted that she received gold chain from police which was manufactured in a gold smith shop through police and the descriptions of gold chain lost as per complaint Ex.P.1 is entirely different from that of gold chain shown in Ex.P.3. As per complaint gold chain was eradu ele sara fixed with mangalya , four gundus and two coins but Ex.P.3 contains ondu ele sara for which explanation given by PW1 or police witnesses not create confidence, in this case as per PW.13 in his cross examination he stated that ASI though has seized ondu ele sara since it has broken in PF 231/2012 has wrongly written eradu ele sara. In this case though seizure mahazar witnesses supported prosecution case but chain robbed from PW1 is entirely different which was shown in Ex.P.3. There is no proper explanation from the side of prosecution why it is done so. Under these circumstances, viewing from any angle there is no complexity between accused and Ex.P.3 the chain given by police to PW.1. Under these circumstances, prosecution miserably fail to prove guilt against the accused beyond all reasonable doubt. Therefore this court hold point No.1. in the Negative.
17 S.C.799/2013
25. POINT No.2: In view of my finding to above point and for reasons discussed above, I proceed to pass following:-
ORDER Acting U/Sec 235(1) of Cr.P.C accused No.1 and 2 are hereby acquitted for the offence punishable U/Sec 392, 413 of IPC Accused No.1 and 2 are set at liberty.
Further in this case accused No.1 and 2 are hereby directed to execute his personal bond for Rs.50,000/- along with one surety as required under Sec.437(A) of Cr.P.C.
(Typed to my online dictation by judgment writer, typed by her and then corrected and pronounced by me in the open court on this the 28th day of August 2017) (A.VIJAYAN), LXVI Addl., City Civil & Sessions Judge, Bangalore.
-:ANNEXURE:-
WITNESSES EXAMINED BY THE PROSECUTION:-
PW1 Mahadevamma PW2 Subbegowda 18 S.C.799/2013 PW3 Nanjundaiah PW4 Srinivasa PW5 Krishnaiah PW6 Satisha PW7 Shivanna PW8 Umeshchandra PW9 S.B.Ramesh PW10 Chennamma PW11 Parthasarathi PW12 Imtihaz Patel PW13 B.Balaraju WITNESS EXAMINED FOR DEFENCE :- Nil DOCUMENTS MARKED FOR PROSECUTION:-
Ex.P1 Statement of PW1
Ex.P1(a)to(c) Signatures
Ex.P2 Mahazar
Ex.P2(a) Signature
Ex.P3 Photograph
Ex.P4 Indemnity bond
Ex.P.4(a) Signature
Ex.P.5&6 Identification parade report
Ex.P.7 Mahazar
Ex.P.7(a) Signature of PW5
Ex.P.8 Statement of PW5
Ex.P.9 Seizure Mahazar
Ex.P.9(a)to(c) Signature
Ex.P.10 Report
Ex.P.10(a) Signature
Ex.P.11 Identification parade report
Ex.P.11(a) Signature
Ex.P.12 Statement
Ex.P.13 FIR
Ex.P.14 Acknowledgment
Ex.P.15 Property list
Ex.P.16 Voluntary statement
19 S.C.799/2013
Ex.P.16(a) portion of Voluntary statement
Ex.P.17 Property list
DOCUMENT MARKED FOR DEFENCE:-
Nil
MATERIAL OBJECTS MARKED FOR PROSECUTION: MO.1 : Gold chain (returned and photo marked) (A. VIJAYAN) LXVI Addl.City Civil & Sessions Judge, Bangalore.20 S.C.799/2013
Pronounced vide separate judgment with following operative portion:
ORDER Acting U/Sec 235(1) of Cr.P.C accused No.1 and 2 are hereby acquitted for the offence punishable U/Sec 392, 413 of IPC Accused No.1 and 2 are set at liberty.21 S.C.799/2013
Further in this case accused No.1 and 2 are hereby directed to execute his personal bond for Rs.50,000/- along with one surety as required under Sec.437(A) of Cr.P.C.
LXVI Addl.City Civil & Sessions Judge, Bangalore.