Bangalore District Court
By Viveknagar Police Station vs George S/O.Late Palani on 31 December, 2015
IN THE COURT OF THE LXI ADDL.CITY CITY AND
SESSIONS JUDGE: BANGALORE CITY
(cch-62)
Dated This the 31st day of December, 2015
PRESENT :- SRI. N.P.KOPARDE B.A., LL. B.(Spl.)
LXI ADDL.CITY CIVIL & SESSIONS JUDGE
SESSIONS CASE NO.1111/2014.
The State of Karnataka
Complainant:
By Viveknagar Police Station,
Bangalore.
Reptd. by Public Prosecutor,
City Civil Court Complex,
Bangalore.
V/s.
ACCUSED 1. George s/o.late Palani, 25 yrs.
r/o.No.14, 42nd Block, EWS
Quarters, Viveknagar, Bangalore.
2. Ivinkumar @ Ivin, 28 yrs,
r/o.Mathews, r/o.No.235, 1st Main
Road, 2nd Cross, Viveknagar
Further Extension, Bangalore.
3. Dhanashekhar s/o.Shanmugam, 21
2 S.C.No.1111/2014
yrs, r/o.No.14/1, 4th Cross, Xevior
Layout, Yalagonda Palya,
Ashoknagar, Bangalore.
4. Deepak ----- (Split Up)
5. Prashanth s/o.DEvaraj, 22 yrs,
r/o.No.44, 2nd Main Road, Ice
Factory, Viveknagar, Bangalore.
1. Date of occurrence of 26-02-2014
offence
2. Date of report of offence 26-02-2014
3. Date of Arrest of accused 26-02-2014
4. Commencement of trial 13-10-2015
5. Closing of trial 23.12.2015
6. Name of the complainant Sri B.Balaraju, P.I. CCB
7. First information report 27-02-2014
reached to the at About 5.00 p.m.
Magistrate
8. Offences complained of U/S. 399, 402 of IPC.
9. Opinion of the Judge Accused Nos.1,2,3 and
5 are not found guilty
10. Sentence or order Accused No.1, 2,3 and
5 are acquitted as per
the Judgment
3 S.C.No.1111/2014
J U D G M E N T
The Sub-Inspector of Police Viveknagar Police Station filed the charge sheet against the accused for the offences punishable under sections 399 and 402 IPC.
2. The brief facts of the case of the prosecution are as under :
On 26.2.2014 at about 4.45 p.m. when C.w.1 B.Balaraju the Police Inspector of CCB was in his office received credible information that notorious rowdy sheeter George and his 4-5 companions with an intention of committing murder of the rival rowdy Esha and his companions were making preparations for committing the said offences in order to rob, they were waiting near Canara Bank, Vannarpet, Viveknagar Main Road, holding deadly weapons in their hands. So, C.W.1 secured two panchas and his colleague P.I. Sri Prakash and staff C.Ws.5 to 7 rushed to the spot at about 5.45 p.m. and ascertaining the message, surrounded the accused and apprehended all five accused persons and seized three 4 S.C.No.1111/2014 longs,, a dragger and a club from the possession of the accused persons, conducting seizure panchanama in between 6 to 7 p.m. Then brought the accused o the Viveknagar police station, produced them alongwith seized articles before C.w.8 and gave report, on the basis of which, C.W.8 registered case in Cr.No.36/3014 for the offences punishable U/s. 399 and 402 of IPC.
3. On receipt of the charge sheet, the cognizance of the offences cited therein was taken by learned 10th ACMM, Bangalore. The prosecution papers were furnished to accused Nos.1 to 3 and 5 as per Sec.207 of Cr.P.C., since accused No.4 could not be secured by the Police, the case against accused No.5 was split up. Since, the offences U/s.399, 402 of I.P.C., are exclusively triable by the Court of Sessions, the Committal Court committed the case U/s.209 of Cr.P.C . to Hon'ble Prl. City Civil & Sessions Judge, Bangalore, who in-turn registered the case in SC.No.1111/2014 and pleased to make over the case to this court for disposal in accordance with Law. 5 S.C.No.1111/2014
4. After receiving the records and securing the presence of accused Nos.1 to 3 and 5, this Court heard the learned Public Prosecutor for State and counsel for the accused under Section 227 of Code of Criminal Procedure, since there are sufficient materials to frame the charge against the accused. So, the charge for the offences punishable under section 399 and 402 of IPC against accused Nos.1 to 3 and 5, was framed, read over and explained to them, they pleaded not guilty and claimed to be tried.
5. The prosecution in order to prove the guilt of the accused, examined three witnesses as P.Ws.1 to 3 out of 8 witnesses cited in charge sheet and through him got marked in all two documents as Exs.P.1 and P.2 and M.Os.1 to 5. Inspite of sufficient opportunity given to the prosecution, the concerned Police failed to secure the presence of C.Ws.2 to 4 and C.W.8. Hence, the prayer of the prosecution to re-issue NBW to those witnesses were 6 S.C.No.1111/2014 rejected and the evidence of the prosecution was taken as closed.
6. After closure of prosecution evidence, I examined accused U/s.313 of Cr.P.C. so as to enable them to explain the circumstances appearing against them, wherein the accused denied the incriminating evidence against them and did not choose to lead defence evidence on their behalf.
7. Heard learned Public Prosecutor for the State and defence Counsel for the accused and perused the materials placed on record.
8. The following points arise for my consideration:-
1. Whether the prosecution proves beyond all reasonable doubts that, on 26.2.2014 at about 5.00 p.m. the accused Nos.1 to 3 and 5 alongwith split up accused No.4 near Canara Bank at Vannavarpet Extension on Viveknagar Main Road, the accused with an intention of committing dacoity of rival rowdy Esha and his companions by committing murder of them making preparations holding deadly 7 S.C.No.1111/2014 weapons like longs, dragger and club and being member of such assembly, the accused committed the offences punishable U/s.399 and 402 of IPC?
2) What order?
9. My findings on the above said points are as under:
Point No.1 : In the negative.
Point No.3 : As per final order, for the following :
R E A S O N S
10. Point No.1: Out of three witnesses examined by the prosecution, P.W.1 K.S.Praveenkumar, the then P.C. of CCB Bangalore who accompanied C.W.1 at the time of conducting raid and panchanama. P.W.3 Girish another H.C. of CCB, Bangalore who accompanied the C.W.1 at th time of raid and panchanama. P.W.2 Balaraju B Inspector of Police, CCB, Bangalore is the I.O. who conducted raid and panchanama.
8 S.C.No.1111/2014
11. P.W.1 deposed that on 26.2.2014 at about 4.45 p.m. C.W.1 called him and C.Ws.4, 6 and 7 saying that some notorious rowdies by name George and his companions were making preparations for committing dacoity of rowdy sheeter Esha and his companions by killing them, so, they had to go for raid. Then C.W.1 secured two panchas and took them in Government vehicle bearing No.KA-02-G-1121 to the spot of offence i.e. near Canara Bank, Vannarpet Extension, Viveknagar Main Road, at some distance, they watched and found that five accused persons were talking with each other and from their attitude and behaviour they confirmed that they were making preparations for committing dacoity and murder. So, on the direction of C.W.1 all of them surrounded and apprehended the accused persons and found they were possessing three longs, one dragger, one club, C.W.1 conducting mahazar seized them and then brought the accused to the Viveknagar police station alongwith seized articles. In cross-examination by defence Counsel, this 9 S.C.No.1111/2014 witness admitted that place of offence is a crowdy place and the persons present there were not made as witness in this case.
12. P.W.3 deposed similarly as that of P.W.1. He deposed that on 26.2.2014 at about 4.40 p.m. C.W.1 told that some of the rowdy sheeters were making preparations for committing dacoity and murder of another rowdy Esha and his companions and then took him, C.Ws.4, 5 and 7 and two panchas i.e. C.Ws.2 and 3 in a Government Jeep to the spot of offence i.e. ear Canara Bank at Vannarpet Extension on the main Road of Viveknagar, where they saw five persons were standing on the road in a suspicious manner, so confirming the message, all of them surrounded the accused and apprehended them. The accused persons were having longs, dragger, club which C.W.1 seized conducting mahazar in between 5-45 p.m. to 6.45 p.m. and brought the accused alongwith the seized articles to the police station.
10 S.C.No.1111/2014
13. P.W.2 Balaraju B the Police Inspector deposed that on information received by the informers about preparation of unknown culprits near Canara Bank, Vannarpet Viveknagar main Road, he secured two panchas and took his staff C.ws.5 to7 and C.w.4 in a Government Jeep near the spot of offence and from a distance he noticed five accused persons were making preparations for commission of offence, so all of them surrounded the accused and on search of the accused he found the accused were possessing three longs, one dragger, one club which he seized conducting mahazar as per Ex.P.1. Then brought the accused alongwith seized articles to the Viveknagar police station and produced them before C.w.8.
15. On perusal of the evidence of above witnesses it can be seen that their evidence is apparently in corroboration with prosecution version, but some discrepancies and contradictions made their evidence unbelievable. P.Ws.1 to 3 have admitted in cross- examination as to the place of occurrence is a crowdy 11 S.C.No.1111/2014 place, where a Canara Bank is situated and so also there is a Hospital. Quite naturally some public should have been present at the time of commission of offence, but the I.O. has not recorded any statement of independent persons present there to show that the accused were present in the spot of offence and making preparations for commission of offences. Non-citing of the persons present there made the prosecution case unbelievable.
15. P.W.1 stated that all of them apprehended accused Nos.1 to 5, but he was not specifically stated as to which of the Police staff apprehended which of the accused. So, also P.w.2 stated as to he apprehended accused No.1, but he simply stated that other staff apprehended other accused persons. He has not clearly stated about which of is staff arrested which of the accused persons. In cross-examination by defence Counsel, he admitted that it is not stated in the mahazar or in his report as to which of them arrested which of the accused persons. He further admitted that the local 12 S.C.No.1111/2014 persons have not been cited as witnesses nor their signatures are obtained on the mahazar, even though there was presence of number of persons in the spot of offence, as it was busy public place.
16. P.W.3 states as to the accused No.1 was having a long, accused No.2 was having a long, accused No.3 was having a dragger, accused No.4 and 5 were respectively having a club and long, but this evidence of P.W.3 is not in corroboration with prosecution case. As per the prosecution case, the accused Nos.1,2 and 3 were having long, but accused No.3 was not having a dragger, but he was possessing a long. If at all this witness was present at the time of raid. If at all raid was conducted as per the prosecution case. Certainly these witnesses could have been in a position to say which of the accused arrested by whom and which of the accused possessed which of the weapon. So, there is no corroboration between the evidence of this witness and evidence of P.Ws.1 and 2.
13 S.C.No.1111/2014
17. Moreover, in this case the prosecution has not examined the material independent witnesses, i.e. seizure panchas C.ws.2 and 3. The evidence of seizure panchas C.ws.2 and 3 is material for identification of the accused persons, proving the conducting of the mahazar and recovery of the incriminating articles from the possession of the accused persons, but non-examination of these material witnesses has proved fatal to the prosecution. So, under such circumstances the sole evidence of P.Ws.1 to 3 the Police officials who are interested in securing conviction of the accused is not safe to be relied upon in absence of independent corroborative testimony. So under such circumstances I am constrained to hold that the prosecution has failed utterly to prove the guilt of the accused beyond all reasonable doubts. As such, I answer point No.1 in negative.
14 S.C.No.1111/201418 Point No.2 : Having regard to my above discussion and findings on point No.1 in the negative, extending the benefit of doubt to Accused Nos.1 to 3 and 5, proceed to pass the following :
O R D E R Accused Nos.1 to 3 and 5 are hereby acquitted under section 235(1) Cr.P.C., for the offences punishable u/s 399, 402 of IPC.
The Bail bonds and surety bonds of accused Nos.1 to 3 stand cancelled.
Issue intimation to Jail Authority to release accused No.5 if he is not required in any other cases.
The accused Nos.1 to 3 and 5 are set at liberty.
15 S.C.No.1111/2014
M.Os.1 and 5 are ordered to be preserved for the trial of split up accused No.4.
(Dictated to the judgment-writer, transcript corrected and then pronounced by me in the open Court on this the 31st day of December, 2015).
(N.P.KOPARDE) LXI ADdl.City Civil & Sessions Judge, Bangalore.
ANNEXURES LIST OF WITNESSES EXAMINED FOR THE PROSECUTION :-
PW.1 - Praveen Kumar PC 9228, Magadi Road Traffic police station P.W.2 - Balaraju B. Police Inspector CCB, Bangalore.
P.w.3 - Girish HC 6551 - CCB, Bangalore. LIST OF WITNESSES EXAMINED FOR THE DEFENCE :-
- NIL -
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION :-
Ex.P1 : Seizure Mahazar
16 S.C.No.1111/2014
Ex.P1(a) : Signature of PW.1.
Ex.P.1(b) - Signature of P.W.2
Ex.P.1(c) - Signature of P.w.3
Ex.P2 : Report of P.W.2
Ex.P.2(a) : Signature of P.w.2
LIST OF DOCUMENTS MARKED FOR THE DEFENCE:-
- NIL -
LIST OF MATERIAL OBJECTS MARKED FOR THE PROSECUTION :-
M.Os.1 to 3 : Longs M.O.4 : Dragger M.O.5 : Club
LIST OF MATERIAL OBJECTS MARKED FOR THE DEFENCE :-
NIL (N.P.KOPARDE), LXI ADdl.City Civil & Sessions Judge, Bangalore.17 S.C.No.1111/2014
Order pronounced in open Court vide detailed order passed separately.
O R D E R Accused Nos.1 to 3 and 5 are hereby acquitted under section 235(1) Cr.P.C., for the offences punishable u/s 399, 402 of IPC.
The Bail bonds and surety bonds of accused Nos.1 to 3 stands cancelled.
Issue intimation to Jail Authority to release accused No.5 if he is not required in any other cases. The accused Nos.1 to 3 and 5 are set at liberty.
M.Os.1 and 5 are ordered to be preserved for the trial of split up accused No.4.
(N.P.Koparde) LXI ACC & SJ, Bangalore.18 S.C.No.1111/2014