Bangalore District Court
State Of Karnataka By vs A.4 Siddaraju on 18 December, 2017
IN THE COURT OF LXII ADDL.CITY CIVIL&
SESSIONS JUDGE, (CCH-63), BANGALORE CITY.
Dated this the 18th day of December 2017.
Present :
Sri.Parameshwara Prasanna.B, B.A.,LL.B.,
LXII Addl.City Civil & Sessions Judge,
Bengaluru
Sessions Case No.703/ 2016
COMPLAINANT:- State of Karnataka by
Byatarayanapura Police Station,
Bengaluru.
(Rep by Public Prosecutor)
:VS:
ACCUSED A.4 Siddaraju,
S/o Shivalingaiah,
Aged about 25 years,
No.2, 12th Cross, 7th D Main,
Srinivasa Nagara, Bengaluru
(By Sri TS for A.4 Advocate)
1. Date of Commission of offence : 25.3.2013
2. Date of report of offence : 25.3.2013
3. Arrest of the accused : A4 arrested on
25.3.2013
4. Name of the complainant : Sri.Lakshman
PSI, Byatarayanapura
PS
5. Date of commencement of trial : 16.11.2016
6. Date of closing of evidence : 13.12.2017
2 SC. No.703/2016
7. Offences complained of : U/s.399 and 402
8. Opinion of the Judge : A4 is acquitted
U/s.235(1) of Cr.P.C
(Parameshwara Prasanna.B)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
JUDGMENT
The present case arise out of charge sheet submitted by Byatarayanapura police station, Bengaluru in crime No. 130/2013 against accused Nos.1 to 6 for the offences punishable u/s 399 and 402 of Indian Penal Code.
2. The case of the prosecution in brief is that, during intervening night on 24/25.3.2013 at about 1.30 pm when CW1 Sri.Lakshman, PSI, Byatarayanapura Police station along with his staff CW4 to 8 were on special patrolling duty CW1 received a credible information from an informant that near a bridge of big drainage, Pramoda layout, Bengaluru-6 unknown persons being equipped with deadly weapons making preparation for committing offence of dacoity. Immediately CW1 secured panchas CW2 & 3 and he informed about the credible information to the panchas and his staff Cw4 to 8 and he along with his staff panchas went near the spot at about 1-45 pm and on confirmation of information when, CW1 along with his staff 3 SC. No.703/2016 surrounded the gathering two persons escaped from the spot and they nabbed accused No.1 to 4 and on enquiry the accused No.1 to 4 revealed their name and address and they have also revealed names and addresses of accused No.5 & 6 who escaped from the spot. That CW1 by drawing mahazar at the spot seized one knife, 4 clubs, and one chopper and on return to the police station along with accused No.1 to 4 and seized articles, CW1 got registered the FIR against the accused Nos.1 to 6 for the offences punishable under sections 399 & 4902 of IPC.
3. After completion of investigation charge sheet filed against the accused Nos.1 to 6 by showing the accused No.5 & 6 as absconding before the learned 45th ACMM, Bengaluru which was subsequently registered in CC.No.15674/2013. Subsequently since the accused No.4 & 5 were not secured, despite of issuing of NBW case against them came to be split up in CC.No. 2416/2014 as per the order dated 21.1.2014 passed by Learned 45th ACMM, Bengaluru. That subsequently accused No.4 was secured and as accused No.5 could not be secured, despite of issue of NBW the case against accused No.5 came to be split up by the learned 45th ACMM, Benglauru as per order dated 18.12.2015. Since the offences are exclusively triable by the court of Sessions, the learned 45th ACMM, as per order dated 4 SC. No.703/2016 4.1.2016 committed the case against accused No.4 to the Hon'ble Prl.City Civil & Sessions Judge, Bangalore. That on committal of case to the Hon'ble Prl.City Civil & Sessions Judge, case was registered in S.C.No.703/2016 and the same was made over to this Court for disposal in accordance with law.
That after admitting of case on hearing the prosecution as well as the learned defense counsel U/s.227 of Cr.P.C, this Court famed charge against accused No.4 for the offences punishable under Sections 399 and 402 of IPC. When the charge was read over and explained to the accused No.4 , accused No.4 pleaded not guilty and claims to be tried.
4. That in order to prove the case of the prosecution, out of 10 witnesses cited in the charge sheet, the prosecution got examined only one witness i.e., CW1 as Pw.1 and got marked the documents as per Ex.P.1 to 2(a) and alleged seized articles as M.Os.1 to 6. Since despite of sufficient opportunity the concerned police have not secured the remaining witnesses in order to uphold speedy justice, the prayer of learned Public Prosecutor for reissuing further process against remaining witnesses was refused and the prosecution evidence was taken as closed. Thereafter, the statement of accused No. 4 was recorded under Section 313 of Cr.P.C. Accused No 4 when examined U/s.313 of 5 SC. No.703/2016 Cr.P.C denied the incriminating circumstances appearing in evidence against him. Accused No. 4 has not led any defence evidence on his behalf.
5. Heard argument of both the sides.
6. Under the facts and circumstances of the case, the following points arise for consideration of this Court: -
-: POINTS :-
1) Whether the prosecution proves beyond all reasonable doubt that, on 25.3.2013 night about 1-45pm near bridge of big drainage at Pramoda Layout, Bengaluru the accused No.4 along with split up accused No.1 to 3 and 5 & 6 armed themselves into unlawful assembly and accused No.4 along with other accused were making preparation for committing dacoity and thereby accused No.4 committed offences punishable under section 399 & 402 of IPC?
2) What Order?
7. My findings on the above points are as under : -
Point No.1 - In the Negative Point No.2 - As per final order for the following:-
REASONS
8. POINT No.1 : -
The case of the prosecution in brief is that, during intervening night of 24/25.3.2013 at about 1.45 pm when the accused No.1 to 6 were making preparation for committing dacoity near big drainage of Pramoda layout, Bengaluru on credible information about the same CW1 along with his staff 6 SC. No.703/2016 CW4 to 8 and the panchas CW2 & 3 conducted raid and they nabbed accused No.1 to 4. During raid accused No.5 & 6 escaped from the spot. CW1 and his staff by drawing mahazar at spot seized one knife, 4 clubs and one chopper and on return to the police station along with accused No.1 to 4 and the seized articles CW1 got registered FIR against accused No.1 to 6 for the offence punishable under section 399 & 402 of IPC.
9. That in order to prove case of the prosecution, out of 10 witnesses cited in the charge sheet the prosecution got examined only one witness i.e, Cw1 as Pw.1 and got marked Ex.P.1 to P2(a) and material objects as M.Os. 1 to 6.
10. In this case the very crucial and material witnesses to the prosecution namely Cw.2 & 3 who are the alleged witnesses to the raid and recovery and CW9 & 10 who are the alleged investigating officer are not examined by the prosecution. Since the aforesaid relevant and material witnesses are not examined adverse inference is drawn under section 114 of Indian Evidence Act against the prosecution for the non examining those crucial and material witnesses.
11. I have carefully scrutinized the evidence of PW1. PW1 in his evidence though deposed about the alleged raid and 7 SC. No.703/2016 recovery and seizing the MO1 to MO6 he has not deposed about any specific overt-act against the accused No.4 and he has also not deposed as to which particular weapon was seized from the accused No.4.
12. As laid down in Agar v/s State of Rajasthan, reported in 2003 Criminal Law Journal 1997 it is settled law that, "to constitute an offence under section 399 of IPC some act amounting to preparation must be proved". But in the present case as looking into evidence of Pw.1 the prosecution has not proved any act amounting to preparation for committing dacoity. Further as laid down in Joseph /vs/ State of Kerala reported in 1993 SCW 2900, the prosecution must show that there were persons who had conceived design of committing dacoity. But in the present case there is no cogent and material evidence to believe the case of the prosecution that the accused have designed the committing of dacoity.
13. In the instant case, since C.W.2 & C.W.3, who are alleged witnesses to the raid and recovery, have not examined the alleged raid and recovery itself is not proved by the prosecution. In view of the various discrepancies in the case of the prosecution and due to non-corroboration of evidence of 8 SC. No.703/2016 P.W.1 and by the independent witnesses to the raid and recovery, the evidence of P.W.1 does not inspire confidence.
14. At this juncture, I feel it is necessary to quote following Judgments reported by the Hon'ble Apex Court and Hon'ble High Court of Karnataka pertaining to offence punishable under Sections 399 and 402 of IPC:-
In Chaturi Yadav and others Vs. State of Bihar reported in AIR 1979 Supreme Court 1412, the Hon'ble Apex Court has held that:
"Penal Code (45 of 1860), Ss.399 and 402 - Conviction under - legality. Decision of Patna High Court, Reversed.
Prosecution evidence merely showing that eight persons including the appellant were found in the school premises, which was quite close to the market at 1. a.m., and that some of them were armed with guns, some had cartridges and others ran away - held that, conviction under Ss.399 and 402, was not sustainable - The mere fact that these persons were found at 1 a.m., did not by itself prove that they had assembled making preparations to accomplish that object - The possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated Decision of Patna High Court, Reversed".
15. That the Hon'ble Karnataka High Court in a ruling reported in ILR 2016 KAR 1042 held that:
9 SC. No.703/2016
Criminal Procedure Code, 1973 - Section 374(2) - Appeal against Judgment of conviction and order of sentence - Re- appreciation of evidence on record - Material contradictions in the evidence of the prosecution - No independent witnesses to prove the theory of recovery -
The person who registered the First Information Report, himself has investigated the crime - Legality of investigation - HELD, The credibility of the investigation is doubtful as Pw.3 having registered the crime, has himself investigated the case.
Further held, In view of the material contradictions in the evidence of Pws.1 to 3 and the recovery having not been proved by examination of the independent mahazar witnesses, it has to be held that the seizure of chilly powder and the knives i.e, the M.Os. has not been proved- The prosecution has failed to bring home its case beyond reasonable doubt.
16. Thus it is clear from the above precedents that to sustain conviction under Sections 399 and 402 of I.P.C., the prosecution must prove from some evidence directly or indirectly that the accused persons in conspiracy had assembled for no other purpose other than to make preparation for commission of dacoity. If the evidence falls short of it, the case must fail. The prosecution must show some conduct to prove the factum of preparation by the assembly and that the persons assembled conceived any such designs for commission of dacoity and in fact they intended to achieve the object for which they had 10 SC. No.703/2016 assembled. But in this case, there is no reliable and credible evidence to show that accused No.4 was making preparation to commit dacoity. It is pertinent to note that as per the judgment dated 21.11.2016 passed by this court in connected SC No.280/2014, the co-accused no.4 has been already acquitted. In view of the fact and circumstances of the case and precedents referred above, this Court is of the considered opinion that the prosecution has not proved the case against accused No.6 beyond all reasonable doubt and as such accused No.4 is entitled for benefit of doubt. Hence, point No.1 is answered in the Negative.
17. POINT NO.2: - In view of the reasons discussed as above the following:-
ORDER Acting u/s 235 (1) of Cr.P.C, A.4- Siddaraju is acquitted in respect of the offences punishable under Sections 399 and 402 of Indian Penal Code.
The earlier bail bond and surety bond of accused No.4 are hereby cancelled.
The articles marked as MO1 to 6 shall be preserved for trial of split up accused No. 1 to 3 and 5.11 SC. No.703/2016
The office is hereby directed to take personal bond for Rs.50,000/- from accused No.4 along with a surety for the like sum as required under section 437-A of Cr.P.C.
(Dictated to the Stenographer transcribed and computerised by her, corrected and then pronounced by me in the open court this the 18th day of December, 2017).
(Parameshwara Prasanna.B) LXII Addl.City Civil & Sessions Judge, Bengaluru.
ANNEXURE I. List of witnesses examined on behalf of the Prosecution side:-
PW.1 R.Prakash II. For Defence Side:Nil
III. List of exhibits marked on behalf of the Prosecution Side:-
Ex.P.1 Statement of CW1
Ex.P.1(a) Signature of CW1
Ex.P.2 Mahazar
Ex.P.2(a) Signature of CW1
IV. For Defence Side:-
-NIL-
IV. List of material objects:
M.O.1 Macchu
M.O.2 Chaku (knife)
M.O.3 to 6 4 wooden clubs
(Parameshwara Prasanna.B)
LXII Addl.City Civil &
Sessions Judge, Bengaluru.
12 SC. No.703/2016
Accused is Present.
(Order pronounced in the open Court) ORDER 13 SC. No.703/2016 Acting u/s 235 (1) of Cr.P.C, A.4- Siddaraju is acquitted in respect of the offences punishable under Sections 399 and 402 of Indian Penal Code.
The earlier bail bond and surety bond of accused No.4 are hereby cancelled.
The articles marked as MO1 to 6 shall be preserved for trial of split up accused No. 1 to 3 and 5.
The office is hereby directed to take personal bond for Rs.50,000/- from accused No.4 along with a surety for the like sum as required under section 437-A of Cr.P.C.
LXII ACC & SJ, Bengaluru.