Bangalore District Court
State By; vs Mariyan Sachin @ Sachin on 28 July, 2016
IN THE COURT OF THE LXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BENGALURU CITY (CCH-69)
Dated this the 28th day of July, 2016
PRESENT
Sri.Shivaji Anant Nalawade, B.Com., LL.B.(Spl.)
LXVIII Addl. City Civil and Sessions Judge,
Bengaluru City.
SESSION CASE No.579/2015
COMPLAINANT : State by;
Banasawadi Police Station, Bengaluru.
(By Learned Public Prosecutor)
- Vs -
ACCUSED : 1. Mariyan Sachin @ Sachin
S/o George Pintu,
Aged about 19 years,
Residing at No.147, 2nd Cross,
Ranganatha Temple Street,
R.S.Palya, Kammanahalli Main Road,
Bengaluru.
2. Sunil Kumar @ Sunil
S/o Nandakumar,
Aged about 21 years,
Residing at No.425/7,
6th Main, 4th Cross,
Doddabanasawadi, Bengaluru.
3. Vinay Narayan @ Vinay
S/o Narayan,
Aged about 20 years,
2 S.C.579/2015
Residing at No.4, 2nd Cross,
P.N.S. Layout, Subbaiahpalya,
Bengaluru.
(Advocates)
1. Date of commission of offence 26-02-2015
2. Date of report of occurrence 26-02-2015
3. Date of arrest of accused No.1
Date of release of accused No.1
Period undergone in custody
4. Date of commencement of evidence 16-02-2016
5. Date of closing of evidence 20-07-2016
6. Name of the complainant Smt.S.Manjula
7. Offences complained of Sec.436 r/w 34 I.P.C.
8. Opinion of the Judge As per the final order
9. Order of sentence Accused acquitted
JUDGMENT
This case is committed by the XI Addl. Chief Metropolitan Magistrate Court, Bangalore City, to the Hon'ble Prl. City Civil and Sessions Court, Bangalore on the ground that offence punishable under Sec.436 r/w 34 of I.P.C. is exclusively triable by the court of Sessions. 3 S.C.579/2015
2. The Police Sub-Inspector of Banasawadi Police Station has filed charge-sheet against accused for the offence punishable under Sec.436 r/w 34 of I.P.C. arising out of Banasawadi Police Station in Crime No.117/2015.
3. The brief facts of the prosecution case is as under:
It is the case of the Prosecution that, accused No.1 to 3 are residing near the House No.584 belongs to CW.1-
Smt.Manjula which is within the limits of Banasawadi Police Station, Kammannahalli, Kullappa Circle, Reddy Layout, 2nd Cross, Nagamma Road. Accused No.1 intended to have close relations with CW.1, for the same CW.1 has denied. As CW.1 has refused the offer, accused No.1 decided to cause trouble to CW.1. Accused No.1 told accused No.2 and 3 who are his friends that he intends to cause trouble to CW.1. Accused No.1 thought that if he puts fire to the Dio Two wheeler belongs to CW.1 which is used by her and caused wrongful loss to her, it is a lesion for her. Accused No.1 told accused No.2 and 3 to cooperate 4 S.C.579/2015 for the said act and accused No.2 and 3 also agreed to co- operate accused No.1. Accused No.1 to 3 on 26-02-2015 at 2.30 a.m. with common intention came near the house of CW.1. Accused No.2 opened the seat of Dio Two wheeler belongs to CW.1 bearing Reg. No.KA-03-ED-1279 which is parked in the compound of CW.1. Accused No.3 has opened the cap of petrol tank which is in the middle of the seat. Accused No.1 has put fire in the petrol tank with the help of match box, due to fire mischief entire two wheeler of CW.1 burnt and CW.1 sustained wrongful loss of Rs.55,000/- and thereby committed the offence under Sec.436 r/w 34 of I.P.C.
3(a) CW.9 who is the ASI of Banasawadi Police Station on 26-02-2015 at 3.40 a.m. in the Police Station, CW.1 came to Police Station and submitted written complaint. CW.9 has obtained the same and registered the same in Crime No.117/2015 and submitted FIR to the court on the same day at 6.30 a.m. CW.9 came to the spot, called CW.4 and 5-Panchas and drawn Spot Mahazar on 5 S.C.579/2015 the spot shown by CW.1 in presence of Panchas. CW.9 has seized the burnt Dio two wheeler at the time of Spot Mahazar. CW.9 has obtained the photos of the Bike. Thereafter, CW.9 has subjected the property under P.F. Thereafter, CW.9 has handed-over the further investigation to CW.10.
3(b) CW.10 who is the Police Sub-Inspector of Banasawadi Police Station on 26-02-2015 taken further investigation from CW.9, on the same day CW.10 has called CW.1 to CW.3 to Police Station and recorded the further statements of CW.1 and statement of CW.2 and 3. Thereafter, CW.10 has directed his officials i.e., CW.6 to CW.8 to catch-hold the accused and produce before him. On 27-02-2015, CW.6 to CW.8 catch-hold accused No.1 to 3 and produced before CW.10. CW.10 has arrested accused No.1 to 3 and recorded voluntary statements of accused No.1 to 3. CW.1 has obtained the Xerox copies of documents pertaining to Dio motorcycle from CW.1. On the same day CW.10 has recorded the statements of CW.4 6 S.C.579/2015 and CW.5. Thereafter, as the investigation completed CW.10 has filed the charge-sheet against the accused No.1 to 3 for the offence under Sec.436 r/w 34 of I.P.C.
4. After filing the charge-sheet by the Investigating Officer, XI Addl.Chief Metropolitan Magistrate Court, Bengaluru has taken cognizance and registered case in C.C.No.51926/2015. Thereafter, XI Addl.Chief Metropolitan Magistrate Court, Bengaluru, has secured the presence of accused No.1 to 3 and furnished charge sheet copies to them as contemplated under Sec.207 of Cr.P.C. and committed the case against the accused No.1 to 3 before the Hon'ble Prl. City Civil and Sessions Court, Bangalore and that was registered as S.C.579/2015 and made over to this court for disposal according to law as the offence under Sec.436 r/w 34 of I.P.C. is triable by the Court of Sessions.
5. After receipt of the papers, this court has secured presence of accused No.1 to 3 and enlarged them on bail. Thereafter, this court has heard the learned Public Prosecutor for State and counsel for accused on charge to 7 S.C.579/2015 be framed. Charge under Sec.228 of Cr.P.C. framed against the accused for the offence under Sec.436 r/w 34 of I.P.C. and read-over to the accused in the open court, accused pleaded not guilty and claim to be tried. Thereafter Prosecution is called upon to prove the guilt of the accused by examining the Prosecution witnesses. Prosecution in order to prove the guilt of the accused beyond all reasonable doubt in all examined 7 witnesses as PW.1 to 7, got marked 7 documents as Ex.P1 to 7 and closed its side. Thereafter accused are examined under Sec.313 Cr.P.C. to enable them to explain the incriminating circumstances appearing against them in the prosecution evidence. Accused denied the statement in toto and further stated that they have no defence evidence and they have nothing to say, thereafter the case is posted for arguments.
6. Heard the arguments advanced by the learned counsel for the accused and learned Public Prosecutor for state in length.
7. The points that arise for my determination are: 8 S.C.579/2015
1) Whether the prosecution proves beyond reasonable doubt that accused No.1 to 3 on 26-
02-2015 at about 2.30 a.m. with common intention came near the house of CW.1 situated within the limits of Banasawadi Police Station, Kammannahalli, Kullappa Circle, Reddy Layout, 2nd Cross, Nagamma Road bearing House No.584, accused No.2 opened the seat of two wheeler belongs to CW.1 bearing Reg.No.KA-03-ED-1279 which is parked in the compound, accused No.3 has opened the cap of petrol tank which is in the middle of the seat, accused No.1 has put fire in the petrol tank with the help of match box and due to the fire mischief, entire two wheeler of CW.1 burnt and CW.1 sustained wrongful loss Rs.55,000/- and committed the offence under Sec.436 r/w 34 of I.P.C.?
2) What order?
8. My findings on the above points are as follows:
Point No.1 : In the Negative;
Point No.2 : As per final order
For the following;
9 S.C.579/2015
REASONS
9. POINT No.1: It is the case of the prosecution
that the accused have committed the offences punishable under Sec.436 r/w 34 of I.P.C. and in order to prove the guilt of the accused prosecution in all examined 7 witnesses and they are;
PW.1-Smt.Manjula wife of Sagairaj-complainant, PW.2-Michel son of Alexander-Spot Mahazar Pancha, PW.3- Ravichandan son of Dorairaj-relative of CW.1 and circumstantial witness, PW.4-Fathima wife of Alexander-eye witness, PW.5-Srinivasa son of Hanumanthappa-Police Constable who catch hold accused No.1 to 3, PW.6- L.Puttalingaiah son of Late.Chikkalingaiah-ASI who has conducted earlier part of investigation, PW.7-Mirza Ali Raza son of M.F.Ali- Police Sub-Inspector who has conducted later part of investigation.
10. The prosecution in order to prove guilt of the accused in all got marked 7 documents and they are; 10 S.C.579/2015
Ex.P1-Complaint, Ex.P2-Spot Mahazar, Ex.P3-Photos, Ex.P4-Statement of PW.1, Ex.P5-Statement of PW.4, Ex.P6- FIR, Ex.P7-P.F.35/2015.
11. Prosecution in order to prove the guilt of the accused beyond reasonable doubt examined the complainant as PW.1. PW.1 in her evidence stated that she is residing at No.584, 2nd Cross, Nagamma Road, Kullappa Circle. She is having a Honda Dio motorcycle bearing Reg. No.1279. She park her motorcycle within the compound of her house. On 25-02-2015 at 8.00 p.m., she has parked her motorcycle in the compound and in the mid night at 2.30 a.m., she heard the noise near the window of her house and she saw through the window and her motorcycle was burning and accused No.1 to 3 ran away from there. Accused No.1 has put fire on her motorcycle, accused No.1 was taking the names of accused No.2 and 3 and she came to know the names of the accused No.2 and 3, she came out of the house, the other persons who were residing nearby also came out and they have put water on the fire and 11 S.C.579/2015 extinguished the same. The seat, wheels of her motorcycle were burnt. Thereafter she went to Police Station and lodged complaint and identified the complaint as Ex.P1. On that day at 6.30 a.m., Police came to the spot and they have seen the burnt motorcycle, at that time so many persons were assembled, Police have seized the said motorcycle and identified the signature on the document shown to her and the document shown to her is marked as Ex.P2 and her signature is marked as Ex.P2(a). Further this witness has stated that when Police taken the motorcycle, she has put her Ex.P2(a)-signature. Further stated that she has sustained wrongful loss of Rs.55,000/- due to burning to her motorcycle. Further this witness has stated that accused No.1 was following her daughter and at that time her daughter was residing with her. Accused No.1 was forcing her daughter for love, her daughter has not agreed for it and due to the anger on her daughter, accused No.1 has put fire on her motorcycle and identified her burnt motorcycle photos as Ex.P3. Further this witness has 12 S.C.579/2015 stated that, she has stated the names of the accused to the Police in the morning at the time of lodging the complaint itself. Further this witness has stated that, in the hurry of lodging the complaint, she has not mentioned the names of the accused persons in the complaint and second time when she went to the Police she told the names of the accused persons. This witness has given contrary statement to that of prosecution regarding the motive. In the complaint, complainant has stated that someone has burnt her motorcycle and she has not given the names of the accused persons. This witness has stated that, at the time of incident itself she has seen accused No.1 to 3. Further this witness has stated that she is knowing accused No.1 since early to the incident, accused No.1 was following her daughter. Further this witness has stated that, at the time of incident itself she came to know the names of accused No.2 and 3 through accused No.1 as accused No.1 has uttered the names of accused No.2 and 3 there. If really this witness has seen the accused persons at the time 13 S.C.579/2015 of incident, she ought to have mentioned the names of the accused persons in the complaint which is at Ex.P1. Perusal of Ex.P1-complaint clearly goes to show that complainant was not knowing who have committed the offence at that time and she has stated in the complaint that someone has put fire and burnt her motorcycle and requested for taking action. Further it is the case of the prosecution that the accused No.1 was following the complainant and insisting her to have close relationship and for that CW.1 has refused and for that reason in order to teach a lesson to CW.1, accused No.1 along with other accused have put fire on the motorcycle belongs to CW.1. Whereas this witness in her examination-in-chief has given contrary statement and stated that the accused No.1 was following her daughter and accused No.1 was insisting her daughter for love and as her daughter has not agreed, for that reason accused persons have put fire on her motorcycle which is contrary to the prosecution case and the said contradiction is material one which goes to the root 14 S.C.579/2015 of the case and create suspicion regarding putting of fire by the accused persons on that day. Prosecution treated this witness hostile, cross-examined her and in the cross- examination this witness has denied that accused was following her and insisting her for close relations with him. Further this witness has stated that she has not given statement as per Ex.P4 before the Police. This witness has been cross-examined by the counsel for the accused and in the cross-examination this witness has stated that on 26- 02-2015 at 6.30 p.m., she went to the Police Station and lodged complaint, whereas it is the case of prosecution that complainant has lodged the complaint before the Police at 3.40 a.m. Further this witness has stated that Police have typewritten the Ex.P1, Police have not told what is Ex.P1 to her. Further this witness has admitted that she has put signature on Ex.P4-Mahazar in the Police Station and also admitted that one Michel and Antony have also signed on Ex.P2 at the Police Station. Further PW.1 has admitted that, her daughter Meenakshi was having love affairs with 15 S.C.579/2015 accused No.1. Further this witness voluntarily stated that she was opposing for the same. Further this witness has not denied that her daughter and accused No.1 were talking in the mobile and there was exchange of messages. The counsel for the accused have suggested to this witness that some other persons have put fire to the motorcycle belongs to CW.1 and as the accused No.1 is having love affair with the daughter of complainant, the complainant has created a false story and lodged false complaint against the accused persons and this witness has denied the same.
12. Prosecution examined PW.2. PW.2 in his evidence stated that his house is abetting to the house of CW.1. On 26-02-2015 at about 6.30 a.m., Police came near the house of complainant. The bike belongs to complainant which was within the compound was burnt, Police have verified the said burnt vehicle, Police have seized the said burnt vehicle and obtained his signature there and identified the Mahazar as Ex.P2 and identified his signature as Ex.P2(a). This witness has been cross-examined by the 16 S.C.579/2015 counsel for the accused and this witness has admitted that he came to the court along with CW.1. Further this witness has admitted that one Fathima is his mother and his mother and complainant are knowing each other. PW.1 in her cross-examination stated that this witness has put signature on the Mahazar in the Police Station, which is contrary to the evidence of this witness.
13. Prosecution examined PW.3. PW.3 in his evidence stated that he is the husband of elder sister of the complainant. Further this witness has stated that, one year earlier to his evidence at 6.30 a.m., when he was in the house, he received a phone call from CW.1 and wherein it is informed that her motorcycle kept in the compound was burnt and he came near the house of CW.1 and still the motorcycle was burning and he put water and extinguished the fire. Prosecution treated this witness hostile, cross- examined him and nothing has been made out in the cross- examination of this witness so as to help the prosecution to prove the guilt of accused.
17 S.C.579/2015
14. Prosecution examined PW.4 and PW.4 is the eye-witness and she turned hostile. Prosecution treated this witness hostile, cross-examined him and nothing has been made out in the cross-examination of this witness so as to help the prosecution to prove the guilt of accused.
15. Prosecution examined PW.5 and he in his evidence stated that in the year 2015 he was working as Police Constable at Banasawadi Police Station. On 25-02- 2015, CW.10 told him and CW.7 and 8 for catch-holding the accused persons and to produce them before him. They contacted the informants and they came to know that accused persons are at IOC Circle and they came there and catch-hold the accused persons and enquired their names, they have told their names as Sachin, Sunil and Vinay, they brought them to the Police Station and produced before CW.10.
16. Prosecution has examined PW.6 and PW. is the Investigating Officer who has conducted earlier part of investigation. PW.7 is the Investigating Officer who has 18 S.C.579/2015 conducted later part of investigation. PW.6 and 6 have narrated regarding the investigation done by them in their evidence.
17. It is the specific case of the accused during the cross-examination of prosecution witnesses that, they have not committed any offence as alleged against them. The daughter of the complainant one Meenakshi was having love affairs with the accused No.1. The daughter of complainant was insisting the accused No.1 for marrying her, the complainant was opposing for the same, some other persons have put fire to the Bike belongs to the complainant and complainant only in order to harass the accused persons have concocted a false story and lodged false complaint against them.
18. In the present case, complainant in her evidence stated that, she has seen the accused persons at the time of incident. Complainant in the complaint has not mentioned the names of the accused and if really complainant has seen the accused persons at the time of incident, she ought 19 S.C.579/2015 to have stated the names of the accused persons. Complainant in her evidence stated that she is knowing accused No.1 since earlier to the incident and she also came to know the names of the accused No.2 and 3 at the time of incident itself. When the complainant was knowing the names of the accused persons at the time of incident, non- mentioning of names of the accused persons in the complaint which is at Ex.P1 create suspicion regarding the incident. Complainant in her evidence stated that due to hurry she has not mentioned the names of the accused on the complaint. Such explanation is not acceptable one. No ordinary prudent man by knowing the persons who have committed the offence, will forget to mention their names in the complaint. The explanation given by the complainant is unnatural, not believable one. Further complainant has given contrary statement to that of prosecution case regarding the motive of the incident. It is the case of the prosecution that as accused No.1 was following CW.1 and insisting her to have close relationship with her and as 20 S.C.579/2015 CW.1 has refused for it, accused No.1 along with his friends i.e., accused No.2 and 3 have put fire to the motor cycle belongs to the complainant in order to teach a lesson to her. Whereas the complainant in her evidence stated that, accused No.1 was having love affairs with her daughter and she was opposing for the love affair of accused and her daughter, due to that reason accused No.1 has put fire on the motorcycle belongs to the complainant and burnt it, which is contrary to the prosecution case and said contradiction is material one. Further in the present case, PW.4 is the eye-witness and she turned hostile, so the only evidence of Investigating Officer and person who has catch- hold the accused persons after the incident will not corroborate the case of prosecution. Evidence of PW.1 to 7 and Ex.P1 to 7 will not prove the guilt of the accused beyond reasonable doubt. As per the well settled principle of criminal law, the benefit of doubt goes to the accused Hence, I answered point No.1 in the NEGATIVE. 21 S.C.579/2015
19. POINT No.2: In view of my findings point No.1 and reasons stated there, I proceed to pass the following:
ORDER Acting under Sec.235(1) Cr.P.C. accused No.1-Mariyan Sachin @ Sachin, accused No.2- Sunil Kumar @ Sunil and accused No.3-Vinay Narayan @ Vinay are acquitted for the offence punishable under Sec.436 r/w 34 of I.P.C.
Bail bonds of the accused stands cancelled forthwith.
(Dictated to the Judgment Writer, transcribed by her, corrected, signed and then pronounced by me in the open court on this the 28th day of July, 2016) (SHIVAJI ANANT NALAWADE) LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.22 S.C.579/2015
ANNEXURE Witnesses examined for the prosecution:
PW.1 Smt.Manjula CW.1 16-02-2016
PW.2 Michel CW.4 16-02-2016
PW.3 Ravichandan CW.3 15-04-2016
PW.4 Fathima CW.2 05-07-2016
PW.5 Srinivasa CW.6 05-07-2016
PW.6 Puttalingaiah CW.9 05-07-2016
PW.7 Mirza Ali Raza CW.10 20-07-2016
Documents marked for the prosecution:
Ex.P1 Complaint CW.1 16-02-2016
Ex.P1(a) Signature of PW.1 CW.1 16-02-2016
Ex.P2 Spot Mahazar CW.1 16-02-2016
Ex.P2(a) Signature of PW.1 CW.1 16-02-2016
Ex.P2(b) Signature of PW.2 CW.4 16-02-2016
Ex.P3 Photos CW.1 16-02-2016
Ex.P4 Statement of PW.1 CW.1 16-02-2016
Ex.P5 Statement of PW.4 CW.2 05-07-2016
Ex.P6 FIR CW.9 05-07-2016
Ex.P6(a) Signature of PW.6 CW.9 05-07-2016
Ex.P7 P.F.35/2015 CW.9 05-07-2016
Ex.P7(a) Signature of PW.6 CW.9 05-07-2016
23 S.C.579/2015
Material objects marked for the prosecution:
NIL Witness examined, documents and material objects marked for the accused:
- Nil -
LXVIII Addl. City Civil and Sessions Judge, Bengaluru City.