Bangalore District Court
State Of Karnataka By vs A1. Vinay Kumar @ Khajane on 4 January, 2023
KABC010376172019
IN THE COURT OF THE LIX ADDL.CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY (CCH-60)
Dated this the 4th day of January 2023
PRESENT
Sri.Sadananda Nagappa Naik,B.A.L, L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
S.C.No.1908/2019
COMPLAINANT : State of Karnataka by
K.P.Agrahara Police
Station, Bengaluru.
(By Learned Public Prosecutor)
Vs.
ACCUSED : A1. Vinay Kumar @ Khajane,
S/o. Jayaram,
Aged about 26 years,
Residing at No.24,
21st Cross,
Bhuvaneshwari Nagara,
K.P.Agrahara, Bengaluru.
A2. Mahesh @ Uppi,
S/o. Nagaraju,
Aged about 23 years,
2 SC No.1908/2019
Residing near Motte
Angadi, Near Cottonpete
Police Station,
Bengaluru.
A3. Karthik,
S/o. Vasanthakumar,
Aged about 19 years,
Residing t No.360, 8th
Cross, Nagamma
Nagara, K.P.Agrahara,
Magadi Road,
Bengaluru.
A4. Prabhakar @ Prabha,
S/o. Kumar,
Aged about 28 years,
Residing at 392, 4th Cross,
4th Main, K.P.Agrahara,
Magadi Road,
Bengaluru.
A5. Thyagaraja.N.S. @
Gunda @ Peddagunda,
S/o. Siddaraju,
Aged about 23 years,
Residing at No.3/5,
16th Cross, K.P.Agrahara,
Magadi Road,
Bengaluru.
A6. Jayanth
S/o. Ravi,
Aged about 24 years,
Residing at No.35,
6th Cross,
Ranganathapura,
Kamakshipalya,
Bengaluru.
3 SC No.1908/2019
A8. Sharath Kumar.R @
Appu, S/o. Ramesh,
Aged about 19 years,
Residing at No.15/3,
9th Cross, 7th Main,
K.P.Agrahara, Magadi
Road,
Bengaluru.
(A.1 By Sri.N.Revanna, Advocate)
(A.2, 5 & 6 By Sri.K.N.
Narayanaswamy, Advocate)
(A.3 By Sri. Umesh, Advocate)
(A.4 By Sri.Mariyappa N, Advocate)
(A.8 By Sri.Gopal Singh, Advocate)
1. Date of Commission of : 10.03.2019
Offence
2. Date of Report of Offence : 10.03.2019
3. Status of the accused : Accused Nos.1, 3 to
6 and 8 are on bail.
Accused No.2 is in
J.C.
4. Name of the complainant : Sri. Uday B.
Kotharkar, S.I.
5. Date of Commencement of :
29.3.2022
evidence
6. Date of Closing of Evidence : 18.11.2022
7. Offences complained of : Sections
399 & 402 of I.P.C.
8. Opinion of the Judge : Accused Nos.1 to 6
and 8 are not found
guilty
4 SC No.1908/2019
JUDGMENT
The Sub-Inspector of Police, K.P.Agrahara Police Station, Bangalore City has filed the charge-sheet in C.C.No.18269/2019 against the accused Nos.1 to 8 for the offences punishable under Sections 399 and 402 of I.P.C.
2. The case of the prosecution in brief is that, on 10.03.2019 at about 03.55 am., at compound near Braveries Factory, near Saint Martin School, K.P.Agrahara within the jurisdiction of K.P.Agrahara Police Station, Bengaluru accused persons were found making preparation to commit dacoity on the public who were passing on such road by keeping deadly weapons like knife, club, cricket bat and chilly powder. Based on the information of CW-1, a case was registered in crime No.52/2019 for the offence punishable under Sections 399 and 402 of IPC.
3. Accused Nos.1 to 8 were on bail during crime stage. After filing the charge sheet, the learned Magistrate committed the case to the Principal City Civil and Sessions Judge in C.C.No.18269/2019 and in turn, the said case is assigned to this court for disposal in accordance with law. After committal, the accused were summoned to appear before this court. On 16.09.2019, the Investigating Officer has filed requisition for body warrant of accused Nos.2 and 7. Accordingly, the learned 5 SC No.1908/2019 JMFC accepted the requisition and issued body warrant against accused Nos.2 and 7. Thereafter, accused No.2 was released on bail in Crl.Misc.No.7654/2019 by order dated 09.09.2019 and accused No.7 was released on bail in C.C.No.19897/2019 by recalling the body warrants. Thereafter, since the accused No.7 remained absent, case against accused No.7 was split-up by order dated 17.10.2019. The case against accused Nos.1 to 6 and 8 was continued. Accused No.2 is in Judicial Custody in UTP No.2005/2020. After hearing both parties, the charge was framed against accused Nos.1 to 6 and 8 for the offences punishable under Section 399 and 402 of IPC. They pleaded not guilty and claimed to be tried.
4. In order to prove the guilt of the above said accused persons, the prosecution was able to examine three witnesses as PW.1 to PW.3 and got marked the documents at Ex.P.1 to P.4 and Material Objects at MOs.1 to 5. The prosecution was not able to examine other witnesses inspite of sufficient opportunity. The accused Nos.1 to 6 and 8 have been examined under Section 313 of Cr.P.C. They have not adduced evidence in their defence.
5. Heard arguments of both sides and perused the records.
6 SC No.1908/20196. Having regard to the materials placed on record and the submissions made by both the parties, the only point that arises for my consideration is:
"Whether the prosecution proves beyond all reasonable doubt that the accused Nos.1 to 6 and 8 along with split-up accused No.7 on 10.03.2019 at about 03.55 am., were assembled at a Compound near Breveries Factory near Saint Martin School, K.P.Agrahara, Bengaluru and making preparation to commit dacoity by holding deadly weapons and thereby the accused Nos.1 to 6 and 8 have committed the offence punishable under Section 399 and 402 of IPC?"
7. My finding to the above point is in the Negative, for the following:-
REASONS
8. The first informant and the panch witnesses are the material witnesses to prove the assembly and preparation to commit dacoity by the accused Nos.1 to 6 and 8 along with split-up accused No.7.
7 SC No.1908/20199. PW.1- Uday Kotharkar, Retired ASI, has stated in his evidence that on 09.03.2019, while he was on night patrolling duty along with CW-6, he has received credible information that near St. Martin School, K.P.Agrahara, some 7 to 8 persons were assembled and planning to commit dacoity. Thereafter, he informed the same to CW.6, CW.4, CW.5, CW.7 and CW.8. He also called two panchas and requested them to act as panchas and issued notice to them. The complainant along with his staff and panchas reached the spot at about 3.50 am., and found 7 to 8 persons conversing among themselves regarding their plan to commit dacoity by throwing chilly powder. After confirmation of the information, at about 4.00 am., they raided 7 to 8 persons. At that time, 4 persons ran away from the spot and CW.7 and 8 chased the accused persons who ran away from the spot. CW1 had caught accused No.1 who had wooden club in his possession. CW.4 had caught accused No.2 who possessed iron knife, CW.5 caught hold of accused No.3 who had chilly powder in his possession and accused No.4 had cricket bat in his possession. Accused Nos.1 to 4 revealed the names of accused Nos.5 to 8 who ran away from the spot. Thereafter, the complainant conducted spot panchanama and seized material objects and produced accused Nos.1 to 4 along with mahazar and material objects before CW.9 Krishnappa and handed over to him.
8 SC No.1908/2019PW.1 is cross-examined by the advocate for accused No.1 and advocate for accused No.8. But the evidence of PW.1 is not shaken in the cross-examination.
10. PW2- Krishnappa Retired PSI, who is the Investigating Officer in this case has deposed in his evidence that on 19.03.2019, he received a report from CW-1 along with accused Nos.1 to 4, mahazar and material objects. On the basis of the said report, he has registered a case in Crime No.52/2019 for the offence punishable u/Sec.399 and 402 of IPC and submitted the FIR to Jurisdictional Magistrate and to his higher authority. Thereafter, he has arrested accused No.1 to 4 and recorded their voluntary statements and reported material objects in PF No.32/2019. He has then deputed staff for search of accused Nos.5 to 8. CW.4 and 5 have produced accused Nos.6 and 7 before him. He recorded their voluntary statements. On 31.03.2019, accused Nos.5 and 8 appeared before him voluntarily by obtaining anticipatory bail. He has deposed that he has recorded the voluntary statements of accused Nos.5 and 8 and released them on bail. After completion of investigation on 31.3.2019, he has filed charge-sheet against the accused persons.
This witness is also cross-examined by the learned counsel for the accused Nos.2, 5, 6. The learned advocate for accused Nos.4 and 8 adopted the cross-
9 SC No.1908/2019examination of accused Nos.2, 5 and 6. The advocate for accused Nos.1 and 3 adopted the cross-examination of accused Nos.5 and 6. But nothing was elicited from the mouth of this witness to disbelieve his version. During cross-examination this witness denied the suggestion that he is deposing falsely on the instructions of his higher authority.
11. PW.3-Sharanappa Gollappa, ASI, Siddapura Police Station, Bengaluru has deposed in his evidence in line with PW.1. He has deposed that on 09.03.2019, at about 8.30 pm., SHO deputed himself and CW.4, CW.7 and CW.8 for patrolling duty. On 10.3.2019, at about 3.15 am., CW.1 called him over phone and informed him that he has received a credible information that near Brewery Factory, some 7 to 8 persons were preparing to commit dacoity. Thereafter, they proceeded to the Police Station, secured CW.2 and CW.3 panchas to the police station and then proceeded to the spot Chitrakuta School, Athiguppe, Vijayanagara and found some persons are preparing to commit dacoity. Thereafter, he informed the same to CW-5 to CW-7 and also secured CW-2 and 3 as panchas and went to the spot at about 3.50 am., in their two-wheeler and found 7 to 8 persons speaking among themselves regarding preparation to commit dacoity. Later, they raided accused persons and caught hold of 4 accused persons and 4 accused persons ran away from 10 SC No.1908/2019 the spot. CW.7 and 8 chased accused Nos.5 to 8 but could not caught hold of them. Accused Nos.1 to 4 revealed the names of accused Nos.5 to 8. CW.1 has caught hold of accused No.1 who had wooden club in his possession. CW.4 has caught hold of accused No.2 who had knife in his possession and this witness has caught hold of accused No.3 who had chilly powder packet in his possession. CW.6 has caught hold of accused No.4 who had cricket bat in his possession. Thereafter, CW.1 conducted mahazar after seizing material objects and produced accused Nos.1 to 4 along with material objects and mahazar with a report.
12. This witness has further deposed that on 11.3.2019, PSI CW.9 deputed him for search of accused Nos.5 to 8. When he was on patrolling duty along with CW.4, they have found accused Nos.6 and 7 at Kadappa Swamy Mutt and caught hold of them and produced them before CW.9, During his cross-examination by advocate for accused No.1, the evidence of this witness remained unshaken and this witness denied the suggestion that he is deposing falsely on the instructions of his higher authority.
13. This is all about the evidence of prosecution witnesses placed before the court. The prosecution has failed to examine panch witnesses in spite of sufficient 11 SC No.1908/2019 opportunities. The evidence available before the court is only the evidence of police witnesses i.e., PWs.1 to 3. Since the accused persons have denied their statements, in order to believe the statement of the Police witnesses, the evidence of panch witnesses is necessary. But the prosecution has not examined any panch witnesses to support the case of the prosecution and such evidence creates doubt about the statement made by PWs.1 to 3. It is the settled principle of law that mere presence of 5 or more persons, even if armed with weapons, will not automatically make out an offence either under sections 399 or under Section 402 of IPC, unless there was cogent and convincing evidence on record to effect that the accused persons have assembled in the alleged manner for the preparation to commit dacoity or robbery. There is no evidence of any panch witness on record to show that the Investigating Officer or any other official witness have overheard the conversation among the accused persons from which could be inferred that the accused Nos.1 to 6 and 8 along with split-up accused No.7 were making preparation to commit dacoity. Thus, by giving benefit of doubt, the accused Nos.1 to 6 and 8 have to be acquitted for insufficient evidence. For these reasons, I hold that the prosecution failed to prove the guilt of accused Nos.1 to 6 and 8 for the offence punishable under sections 399 and 402 of IPC. Accordingly, I answer the above point in the Negative and proceed to pass the following:-
12 SC No.1908/2019ORDER Acting under Section 235(1) of Cr.P.C., the accused Nos.1 to 6 and 8 are acquitted for the offences punishable under Sections 399 and 402 of IPC.
The bail bonds and surety bonds of accused Nos.1, 3 to 6 and 8 shall stand cancelled.
The accused No.2 is set at liberty forthwith, if he is not required in any other case.
The properties seized in this case at MOs.1 to 5 are ordered to be retained as split up case against other accused persons is pending.
(Dictated to the Judgment Writer directly on Computer, typed by her, corrected, signed and then pronounced by me in the open court on this the 4th day of January, 2023) (SADANANDA NAGAPPA NAIK) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.
13 SC No.1908/2019ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
P.W.1 Uray Kotharkar P.W.2 Krishnappa P.W.3 Sharanappa
LIST OF WITNESSES EXAMINED FOR DEFENCE: -
NIL LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Police notice issued to Pancha.
Ex.P.1(a) Signature of PW.1 Ex.P.2 Seizure Mahazar Ex.P.2(a) Signature of PW-1 Ex.P.2(b) Signature of PW.3 Ex.P.3 Report of PW.1. Ex.P.3(a) Signature of PW.1 Ex.P.4 FIR in Cr.No.52/2019. Ex.P.4(a) Signature of PW.2.
LIST OF DOCUMENTS MARKED FOR DEFENCE:-
NIL 14 SC No.1908/2019 LIST OF MATERIAL OBJECTS MARKED:-
M.O.1 Wooden Club
M.O.2 Knife
M.O.3 Chilly Powder Packet
M.O.4 One iron knife
M.O.5 One cricket wicket
(SADANANDA NAGAPPA NAIK)
LIX ADDL. C.C. & SESSIONS JUDGE,
BENGALURU CITY.
15 SC No.1908/2019
04.01.2023
Accused No.2 is produced from JC
through VC.
Accused No.1, 3, 5, 6 and 8 are
present. Accused No.4 is absent. Counsel for accused files E/P filed u/s 353(6) of Cr.P.C. The presence of accused No.4 is exempted.
Judgment pronounced in the open court (vide separate judgment) with the following operative portion:
ORDER
Acting under Section 235(1) of
Cr.P.C., the accused Nos.1 to 6 and 8 are acquitted for the offences punishable under Sections 399 and 402 of IPC. The bail bonds and surety bonds of accused Nos.1, 3 to 6 and 8 shall stand cancelled.
The accused No.2 is set at liberty forthwith, if he is not required in any other case.
The properties seized in this case at MOs.1 to 5 are ordered to be retained as split up case against other accused persons is pending.
(SADANANDA NAGAPPA NAIK) LIX ADDL. C.C. & SESSIONS JUDGE, BENGALURU CITY.