Bangalore District Court
State By vs A4. Nagesh on 28 September, 2022
KABC010246022018
Presented on : 03-09-2018
Registered on : 03-09-2018
Decided on : 28-09-2022
Duration : 4 years, 0 months, 25
days
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH67)
DATED: This the 28th day of September, 2022
PRESENT
Sri. S. NATARAJ, BAL., LLB.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
SC.No.1493/2018
COMPLAINANT : State by:
Madiwala Police Station,
Bengaluru.
(By Public Prosecutor.)
/Vs/
ACCUSED : A4. Nagesh,
S/o Sri.Venkatesh.G.
Aged about 26 years,
R/at No.313, NGR Layout,
Roopena Agrahara,
Bommanahalli,
Beguru Main Road & Hobli,
2 SC.No.1493/2018
Bengaluru 560 068.
(By Sri.xxxx, Advocate.)
DATE OF:
Occurrence of offence : 29.04.2014
Commencement of trial : 07.04.2021
Closing of trial : 23.09.2022
Name of the complainant: Paul Priya Kumar
Offence alleged : Under Sections 399, 402 IPC
Opinion of the Judge : Charge leveled against the
accused are not proved.
Sentence or order : Acquittal.
JUDGMENT
1. This is a split charge sheet submitted by PW2 the then PSI of Madiwala police station against accused Nos.1 to 5 before the 3rd ACMM, Bangalore in CC.No.22944/2014 for the offences punishable under Sections 399 and 402 IPC.
2. The brief facts of the prosecution case are that; That on 29.04.2014 at 6:40 p.m accused Nos.1 to 5 assembled in burial ground, NGR Layout, Rupena Agrahara making preparation commit dacoity form the 3 SC.No.1493/2018 passers by by holding deadly weapons, the complainant/PW1 and his staff raided the spot apprehended 3 persons by name Muniraju, Mani and Suhail Ahamed, 2 persons were escaped, seized long Iron rod and wooden club under mahazar. They were brought to police station produced before PW2 who in turn registered the case investigated the matter, seized properties are subjected to PF the accused were produced before concerned court and submitted charge sheet against accused Nos.1 to 5.
3. After taking cognizance of the offence, the presence of accused No.1 to 3 were secured in CC.No.15386/2014 on the file of 3rd ACMM, Bangalore. The case against accused Nos.4 and 5 was split up and separate case in CC.22944/2014 was registered. As for as accused No.4 is concerned the case has been committed to this court and numbered as SC.1493/2018. Whereas the case against accused Nos.1 to 3 was registered as SC.1007/2014 which was disposed off by judgment dated 29.6.2015. 4 SC.No.1493/2018
4. The presence of accused No.4 has been secured in this case, he is on bail represented through counsel. The charges are framed he pleaded not guilty claims to be tried. The prosecution examined PWs 1 to 3 witnesses. Ex.P1 to 6 documents and MOs1 to 3 are marked. The statement of accused under Section 313 CrPC recorded, he denied the incriminating material, he has not chosen to lead defence evidence.
5. Heard arguments of learned Public Prosecutor and counsel for accused.
6. Out of the above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
1. Whether prosecution proves beyond all reasonable doubts that accused No.4 along with other accused Nos.1 to 3 and 5 with a common intention on 29.04.2014 at about 6:40 p.m. in the burial ground, NGR Layout, Roopena Agrahara within Madiwala police station were fond making preparation of committing dacoity and found in possession of deadly weapons i.e. iron long, rod, wooden club and thereby committed the offence under Section 399 read with Section 34 IPC?
5 SC.No.1493/2018
2. Whether prosecution proves beyond all reasonable doubts that the accused No.4 along with other accused Nos.1 to 3 and 5 on the afore said date, time and place with common intentiion were found assembled with deadly weapons for the purpose of committing dacoity and thereby committed an offence under Section 402 read with Section 34 IPC?
3. What Order?
7. The findings of this Court on the above points are;
Point No.1 and 2 : In Negative.
Point No.3: As per the final order for the following reasons.
REASONS
8. POINT Nos.1 and 2 : Since these points are interlinked with each other, they are taken up together for discussion to avoid repetition of facts.
9. The learned Public Prosecutor argued that PWs1 to 3 are police officials, PWs 1 and 3 are part of raid, they arrested three persons and two were escaped and they deposed about the accused No.4 who had escaped, who was on part of group assembled there to commit dacoity. The learned prosecutor further argued there is no 6 SC.No.1493/2018 discrepancy in the evidence of PWs 1 to 3. The prosecution proved that the accused No.4 along with other accused persons were found at the spot holding deadly weapons making preparation to commit dacoity, in the cross examination nothing elicited and prayed to convict the accused.
10. The learned counsel for accused argued that PWs 1 to 3 are police officials their evidence is inconsistent. The original case against accused Nos.1 to 3 in SC.1007/2014 was acquitted. The private witnesses not examined and no consisting evidence on record and prayed to dismiss.
11. It is the case of the prosecution that on 29.04.2014 at 6:40 p.m accused Nos.1 to 5 assembled at Rupena Agrahara, NGR Layout near graveyard with autorickshaw with deadly weapons in their hands with intention to commit dacoity and making preparation. On receipt of information PW1 along with staff and panchas went to the spot and raided them, accused Nos.1 to 3 were apprehended on spot, accused Nos.4 and 5 ran away with weapons. The weapons were seized under mahazar 7 SC.No.1493/2018 returned to police station with material objects and produced before PW2 who in turn registered the case on the basis of PW1 and submitted FIR to the Court.
12. The prosecution has examined PW1/Paul Priya Kumar, he deposes on 29.4.2014 at 6:45 p.m. when he was incharge SHO, received information that 5 persons conspired to commit dacoity near burial ground NGR Layout, Bommanahalli, he secured panchas CWs 2 and 3 along with staff and found 5 persons with autorickshaw having deadly weapons, confirmed the information from CW6, raided the said persons and accused Nos.1 to 3 were arrested with deadly weapons MO Nos.1 to 3, 2 persons were ran away, the material objects were seized under mahazar and produced before PW2 with report Ex.P2. He got identified accused No.4 is a person who ran away from the spot.
13. In the crossexamination it is elicited the spot comes within 6th beat of Madiwala Police station, normally the police constables are deputed on beat duty, he do not know who was deputed for beat duty on that day. It is 8 SC.No.1493/2018 elicited if any information is received it will be mentioned in the station house diary he secured panchas orally.
14. PW2 Ravi GK the then PSI of Madiwala police station who speaks regarding receipt of properties and produce of accused Nos.1 to 3 from PW1 along with mahazar and report and he registered the case and submitted FIR to the Court. He recorded the statements of accused persons. The seized material objects were subjected to PF. After completion of investigation submitted the charge sheet. In the crossexamination elicited that the place of incident is not residential area, the residential area is situated little distance from the spot. The spot comes in 4th Beat duty of station. Whereas PW1 deposed the spot comes in 6th Beat duty. The distance between the police station to spot is about 1 ½ KM.
15. PW3 Ramachandra the then police constable who was part of raiding party with PW1, he too deposed that he went to the spot observed from little distance and found 5 persons with autorickshaw, they conspired to commit dacoity apprehended 3 persons and 2 were escaped 9 SC.No.1493/2018 and seized Mos1 to 3 , he identified autorickshaw in Ex.P 5 and 6 photos and MOs 1 to 3 material objects. In the crossexamination it is elicited, he had seen accused No.4 present before the court who was ran away from the spot. According to him he has seen accused No.4 when he was produced in the police station on arrest. PW2 in his evidence has deposed that he had made attempt to trace accused Nos.4 and 5, he could not secure them and filed absconding charge sheet against accused Nos.4 and 5. Whereas PW.3 deposed accused No.4 was arrested and he has seen him in the police station.
16. As per the Judgment in Agar Vs State of Rajasthan 2003 Crl.L.J. 1997 observed that 'To constitute an offence under Section 397 IPC some acts amounting to preparation must be proved'. In the present case the evidence of PWs 1 and 3 does not establish any act amounting to preparation for committing dacoity by accused No.4 and other accused persons.
17. In Joseph Vs state of Kerala AIR 1993 SCW 2900 it is held that ' The prosecution must show that there 10 SC.No.1493/2018 were persons who had convinced the design of committing dacoity'. The evidence of PWs1 and 3 there is no cogent and material evidence to believe the case of prosecution that accused No.4 and other accused persons had conceived the design for committing dacoity."
18. In Chaturi Yadhav Vs State of Bihar AIR 1979 SC 1412 observed that 'Mere fact that the accused were found at 1:00 a.m. with some of them armed with guns did not prove that they had assembled for the purpose of committing dacoity or for making preparation to accomplish that object'.
19. In the present case even assuming for the sake of argument that, as per the evidence of PWs.1 and 2 that accused No.4 along with other accused persons with deadly weapons assembled to commit dacoity, that itself is not sufficient to believe that they are assembled to commit dacoity to accomplish that object. First of all the presence of accused No.4 at the spot is not established with cogent evidence. Accused No.4 name has been implicated on the basis of alleged voluntary statements of accused Nos.1 to 11 SC.No.1493/2018
3. From accused No.4 nothing is recovered nor he was arrested. Absolutely there is no connecting incriminating material to hold that accused No.4 was part of a group at the spot with deadly weapons and making preparation to commit dacoity assembled there.
20. It is improbable to believe the evidence of PWs 1 to 3 that PW1 has received information he secured panchas and staff briefed about the information went to the spot situated at a distance of 1 ½ KMs from the police station and confirmed that accused No.4 and other accused started their conversation. It is also improbable that the accused as per the prosecution case had weapons in their hands neither offered any resistance nor caused any injury to any of the police personal before they apprehended by the police. The private witness CWs.2 and 3 were part of raid present at the spot at the time of drawing mahazar are not examined by the prosecution.
21. Considering the evidence on record, the prosecution failed to prove that accused No.4 was at the spot along with other accused persons holding weapons 12 SC.No.1493/2018 making preparation to commit dacoity and assembled there. The prosecution failed to prove its case beyond reasonable doubts. The accused No.4 is entitled for benefit of doubt. The evidence of PWs 1 to 3 is not trustworthy to accept. Accordingly, answer point Nos.1 and 2 in negative.
22. POINT No.2: From the above observations, and findings on points No.1, this Court proceed to pass the following order.
ORDER As per Section 235(1) of Cr.P.C., accused No.4/Nagesh is acquitted for the offences punishable under Sections 399, 402 IPC.
The bail bonds and the surety bonds executed by and on behalf of A4 and his surety shall be in force for a period of 6 months from this date as per Section 437A Cr.P.C.
MO1 to 3 is ordered to be preserved/retained for the purpose of trial against split up accused No.5.
(Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 28th day of September, 2022).
(S. NATARAJ), LXVI Addl.CC & SJ, Bengaluru.
13 SC.No.1493/2018:ANNEXURE: LIST OF WITNESSES EXAMINED BY THE PROSECUTION: PW.1 Paul Priya Kumar PW.2 GK Ravi PW.3 Ramachandra LIST OF WITNESS EXAMINED FOR DEFENCE: None LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION: Ex.P1 Spot Mahazar Ex.P1(a) Signature of PW1 Ex.P1(b)&(c) Signature of CWs 2 and 3 Ex.P2 Report of PW1 Ex.P2(a) Signature of PW1 Ex.P3 FIR Ex.P3(a) Signature of PW2 Ex.P4 PF Form No.118/2014 Ex.P4(a)&(b) Signature of PW2 Ex.P5 &6 Colour photographs of auto. LIST OF DOCUMENTS EXHIBITED FOR DEFENCE: Nil LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION: Nil LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE: Nil (S. NATARAJ), LXVI Addl.CC & SJ, Bengaluru.
14 SC.No.1493/2018The Judgment is pronounced in the open Court (vide separate Order).
ORDER As per Section 235(1) of Cr.P.C., accused No.4/Nagesh is acquitted for the offences punishable under Sections 399, 402 IPC.
The bail bonds and the surety bonds executed by and on behalf of A4 and his surety shall be in force for a period of 6 months from this date as per Section 437A Cr.P.C.
MO1 to 3 is ordered to be
preserved/retained for the
purpose of trial against split up
accused No.5.
LXVI Addl.CC & SJ,
Bengaluru.