Bangalore District Court
State By K.P.Agrahara vs Ganesh.K on 13 March, 2023
KABC030830252021
IP
NAIK
Digitally signed
by I P NAIK
IN THE COURT OF THE 30TH ADDL.CHIEF
METROPOLITAN MAGISTRATE, BENGALURU Date:
2023.03.13
15:26:11
Dated: This the 13th day of March, 2023 +0530
:Present: Sri. I.P.Naik, B.A., LL.B.(Spl),
30th ACMM, Bengaluru
Judgment U/s.355 of Cr.P.C.
C.C.No. 31420/2021
Date of Offence 26.07.2021
Complainant State by K.P.Agrahara, Police Station.
V/s.
Accused Ganesh.K
S/o.Late Krishnamurthy,
Aged about 35 years,
R/at.No.1505, 5th Cross,
4th Main Road, next to Rathnagiri
Park, Govindaraja nagar,
Bengaluru City.
Offences U/s.454, 380 of IPC.
Plea Recorded on 07.02.2022 and accused
person Pleaded not guilty.
313 Statement recorded on: 06-03-2023
2 C.C.No.31420/2021
Final Oder Accused is acquitted
Date of Order 13-03-2023
*****
JUDGMENT
The PI of K.P.Agrahara, Police Station has filed charge sheet against accused persons for the offences punishable U/s.454, 380 of IPC.
2. The brief facts of the prosecution case are as follows:
It is alleged that, House bearing. No.64, belonged to CW-1 Smt. Shivamma, situated at 6th Cross, Cholurupalya, Magadi Road within the territorial limits of K.P Agrahara Police Station, accused want to visited the house of CW-1 at that time, he is very well known to her. On 26.07.2021, CW-17 went to visit for her personal work, at that time, accused has opened the door by using steel rod and stolen the golden ornaments without the consent of the CW-1 with dishonest intention. Hence, accused is charge sheeted.3 C.C.No.31420/2021
In this regard, CW-1 lodged complaint before the CW-17 PI.
Sadananda. Based on the that, he has registered the case in Cr.No.125/2021 and forwarded the FIR to this court. He rushed to the spot and conducted SO mahazar and recorded the statement of witnesses CW-2 and CW-3, further IO ie., CW-17 deputed CW-14 to CW-16 for search and caught hold of the accused. Based on the credible information accused was caught hold by hem on 06.08.2021 and produced CW-17 with report. Accused arrested and interrogated. At that time, accused has given voluntarily statement IO summoned CW-4 Karthik, CW5-Kumar by issuing notice.
Accused produced one pair of ear rings, same are recovered by drawing mahazar and reported to this court under P.F.No.104/2021. Thereafter, IO recorded the statement of witnesses in respect of accused in identification.
2. On 07.08.2021, accused produced before this court and taken to police custody for a period of 8 days. During interrogation accused admitted that, article used for break opened the doors is 4 C.C.No.31420/2021 kept in this house if he is escorted, he will produce the same. In this regard, he has given statement before the IO. Accordingly, accused escorted with staff and panchas and steel rod is seized by drawing mahazar and reported to this court under P.F.No.105/2021. Further, Manikanta and Shivagamy are produced ornaments received from the accused, same are seized by drawing mahazar and recorded the their statement, and the same is produced before this court. As per the court orders, IO released the ornaments pertaining to CW-1. After completing other formalities, IO submitted charge sheet against the accused.
3. During crime stage, accused is enlarged on regular bail. By considering the charge sheet and other materials, this court taken cognizance and ordered to register the case against the accused in Register-III.
5 C.C.No.31420/2021
4. The charge is framed, contents of charge have been read over and explained to the accused persons in the language known to him, he abjured the guilt and claimed to be tried, hence, the prosecution is called upon to prove its case.
5. In order to prove the guilt of the accused person, prosecution has examined 8 witnesses as PW-1 to PW-8 and 22 documents are got marked as Ex.P-01 to Ex.P-22. M.O-1 is got marked. In order to secure other remaining witnesses, this court issued Summons, NBW and Proclamation. But the concerned police failed to secure these witnesses. Finally this court opined that, there is no meaning in reissuing of Summons, NBW and Proclamation. Accordingly, prayer of learned Sr.APP is rejected and other remaining witnesses are dropped. (In this case rank of IO is given as PW-5 but his actual rank is PW-8, hereinafter, evidence of PI is considered as PW-8.) 6 C.C.No.31420/2021
6. Thereafter statement of accused recorded U/s.313 of Cr.P.C, Accused denied the incriminating evidence, and has not chosen to lead evidence and no documents produced on their behalf.
7. Heard both the side and perused the material evidence on record.
8. The following points would arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that, PW-1 Smt. Shivamma, situated at 6th Cross, Cholurupalya, Magadi Road, within the territorial limits of K.P Agrahara Police Station, accused want to visited the house of PW-1 at that time, he is very well known to her. On 26.07.2021, PW-1 went to visit for her personal work, at that time, accused has opened the door by using steel rod and thereby committed an 7 C.C.No.31420/2021 offence punishable under Section 454 of IPC, within my cognizance.?
2. Further, you accused person on the aforesaid date, time, place and under aforesaid circumstances, stolen the golden ornaments without the consent of the PW- 1 with dishonest intention and thereby committed an offence punishable under Section 380 of the IPC, within my cognizance?.
3.. What order.?
9. My findings on the above points are as follows:
Point No.1 : IN THE NEGATIVE
Point No.2 : IN THE NEGATIVE
Point No.3 : As per final order
......................... for the following REASONS
11. Point No.1 & 2:- In this case, the learned Sr.APP has urged that, prosecution successfully proved the guilt of the accused 8 C.C.No.31420/2021 person based on the circumstantial evidence. Hence, prays to convict the accused in accordance with law.
12. PW1-Smt.Shivamma, stated that, 5 months back, some un known persons break opened the door of her house and stolen 80 gms of golden ornaments. In this regard, she has lodged compalint, after that, police came to the spot and conducted Somahazar. Further, she deposed that, after lapse of 20 days, K.P Agrahara Police have called her for identification of the ornaments. Further, she failed to identify the accused.
13. In this regard, the learned Sr.APP has cross-examined this witnesses by treating partially hostile. But nothing is elicited from the mouth of PW-1.
14. PW-5 Karthik is witnesses to SO mahazar, he state that, some unknown persons committed theft in the house of PW-1. In this regard, police came to the spot and conducted SO mahazar. During cross-examination he has denied the suggestions. 9 C.C.No.31420/2021
15. PW-5 PI deposed that on 26.07.52021, at about 10.00pm he has received complaint Ex.P.1 from the PW1 and registered the case in Cr.No.125/2021 and forwarded the FIR Ex.P.12 to this court. Further, he stated that on 27.07.2021 he rushed to the spot and conducted SO mahazar. Ex.P.2 in the presence of witnesses. During cross-examination the learned counsel for the accused denied whatever the investigation conducted by the PW-5.
16. By considering the oral testimony of Pw1, PW5 & PW8 the articles show in the Ex.P.3 is stolen by some unknown peswons.
17. PW2-HCManjunath state that, on 6.8.2021, PI- Sadananda has deputed him along with CW-9 and CW-10 for search and caught hold of the accused persons. Based on the credible information, accused has caught hold at Man pasand jewellary shop, situated at Manjunatha Nagar and caught hold them and interrogated the accused got ear rings. He has not given 10 C.C.No.31420/2021 satisfactory answere. Hence, they have caught hold and produced before the IO along with the report Ex.P.5.
18. PW-8 PI Sadananda, deposed that, on 6.8.2021 accused produced before him thereafter, he has arrested and interrogated and in their voluntary statement accused admitted that, he has stolen ear rings same are seized by drawing Ex.P.7 mahazar and seized articles reported to this court.
19. PW-8 after stated that, after accused remanded to Police custody, during interrogation he has voluntary statement and he has stolen articles from the house of PW-1 and further, he voluntarily stated that, to break opened the door by using steel rod same is kept in his house. In this regard, accused has given voluntary statement Ex.P.16. Accordingly, accused is escorted to his house accused produced same, same is seized by drawing mahazar Ex.P-9 in the presence of witnesses.
11 C.C.No.31420/2021
20. PW4 Chethan Kumar who is independent witnesses he deposed that, police have given nto0ice Ex.P.8 to him and escorted to house and seized M.O-1 steel rod at that time, accused was present.
21. According to recitals Ex.P.9 IO seized M.O-1 rod, in the house of accused bearing.No.1505, situated at 4 th Main, 5th Cross, Govindaraja Nagar, Bengaluru. The testimony of PW-4 is totally contrary to Ex.P.9.
22. IO further stated that, based on the voluntary statement of accused, he has given notice to CW-12 and CW-13, they have produced the articles received from the accused, same are seized by drawing mahazar Ex.P.19 and P.20.
23. According to prosecution case, PW6- Karthik, PW7- Praveen are witnesses to the seizure mahazar Ex.P.20. They have not supported the prosecution case, though the learned APP has 12 C.C.No.31420/2021 cross-examined this witnesses nothing is elicited from the mouth of this witnesses.
24. By considering the entire facts of the case, prosecution relied on the circumstantial evidence to prove the guilt of the accused persons. In this regard, I have relied on the decision of the Hon'ble Apex Court in AIR 1984 SC 1622 Sharad Biradhi chand Sarda Vs. state of Maharashtra If the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this court indicated that the circumstances concerned 'must' or 'should' and not 'may be' established. There is not only a grammatical but legal distinction between 'may be proved' and must be or should be proved' as was held by this court in Shivaji Saheb Rao Bodade Vs. State of Maharashtra (AIR 1972 SC 2622) where the following observaions were made:
"certainly it is a primary principle that the accused must be and not merrely may be gu8ilty before a court can convict and the mental distance between 'may b' and ' must be' is long and divided value conjectures from score conclusions.13 C.C.No.31420/2021
2: the facts so established should be consistent only with hypothesis of the guilt of the accused, that it is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
3. the circumstances should be of a conclusive nature and tendency.
4. they should exclude very possible hypothesis except the one to be proved and
5. these must be a chain of evidence so complete as not to leave any reasonable round for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
25. By following the golden principles laid down by their lordship, relying on the circumstantial evidence I have carefully examined the deposition of prosecution witnesses. In this regard, though the prosecution successfully proved the theft of the articles from the house of PW-1.
26. At the same time, prosecution failed to prove the two important facts to complete chain of circumstantial evidence, one is seizure of articles, based on the voluntary statement of the accused, 14 C.C.No.31420/2021 another one is seizure of the articles from CW12 and CW16. These two facts are not proved as per the law laid down by the Hon'ble Apex Court in Ramananda Vs. State of U.P {(2022 SCC Online SC 1396}. Further, the prosecution not proved the seizure of the mahazar as per the law laid down by the Honb'le Surpeme Court of India in Murali Vs. State of Rajasthan {(2009) 9 SCC 417} by considering all these aspects, I am of the opinion that, prosecution failed to prove the guilt of the accused persons beyond reasonable doubt. By following the principles laid downby the Hon'ble Apex Court as cited above. Therefore, it is held that prosecution utterly failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, Point No.1 & 2 is answered in the Negative.
27. Point No.3: In view of the Negative findings on the above point No.1 & 2, I proceed to pass the following:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.454, 380 of IPC.15 C.C.No.31420/2021
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437-A of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
MO-1 steel rod is order to be confiscated to state after appeal period The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(Dictated to the Stenographer and after corrections made by me and then pronounced by me in the Open Court on this the 13th day of March, 2023).
(I.P Naik.) 30 A.C.M.M., B'lore.
th ANNEXURE
1. LIST OF THE WITNESS EXAMINED FOR THE PROSECUTION:
P.W. 1 : Shivamma
P.W. 2 : Manjunath
P.W. 3 : Kumar
P.W. 4 : Chethan Kumar
P.W. 5 : Krishna
P.W. 6 : Sadananda
P.W.7 : karthik
P.W. 8 : Praveen
16 C.C.No.31420/2021
2. LIST OF THE DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Complaint
Ex.P.2 : Mahazar
Ex.P.3 : Photo
Ex.P.4 : Statement of witnesses
Ex.P.5 ; Report
Ex.P.6 : Notice
Ex.P.7 : Mahazar
Ex.P.8 : Notice
Ex.p.9 : Mahazar
Ex.P.10 : Statement of witnesses
Ex.P.11 : notice
Ex.P.12 : FIR
Ex.P.13 : Photo
Ex.P.14 : Photo
Ex.P.15 : Notice
Ex.P.16 : Statement of witnesses
Ex.P.17 : Notice
Ex.P.18 : Mahazar
Ex.P.19 : Photo
Ex.P.20 : Notice
Ex.P.21 : Photo
Ex.P.22 : Photo
17 C.C.No.31420/2021
3. LIST OF THE WITNESS EXAMINED AND DOCUMENTS MARKED FOR THE DEFENCE:
NIL
4. LIST OF THE MATERIAL OBJECTS MARKED FOR THE PROSECUTION M.O-1 : Steel Rod (I.P.Naik) 30th Addl.C.M.M., B'lore.
18 C.C.No.31420/2021Judgment pronounced in Open Court vide separate:-
ORDER The Powers confirmed upon me U/s.248(1) of Cr.P.C. accused is acquitted of the alleged offences punishable U/s.454, 380 of IPC.
The bail bond of accused persons and surety extended for further 6 months in order to comply Sec.437-A of Cr.P.C. Thereafter, this bail bond automatically stands cancelled.
MO-1 steel rod is order to be confiscated to state after appeal period The prosecution fails to prove the guilt of the accused persons beyond reasonable doubt, hence, granting of compensation of U/s.357 of Cr.P.C. is declined.
(I.P.Naik) 30 th Addl.C.M.M., B'lore.19 C.C.No.31420/2021