Bangalore District Court
Unknown vs Name : A1. Thuphel @ Chota Nagesh on 14 March, 2023
KABC010039952015
IN THE COURT OF LIX ADDL. CITY CIVIL AND SESSIONS
JUDGE BENGALURU CITY. (CCH-60)
Dated this the 14 th day of March, 2023
PRESENT
Sri.Sadananda Nagappa Naik,B.A.L, L.L.B.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
S.C.NO.206/2015
COMPLAINANT :
State by HAL Police Station,
Bengaluru
V/S
ACCUSED NAME : A1. Thuphel @ Chota Nagesh
@ Saleem Pahsa,
S/o.Noorulla,
Aged about 20 years,
R/at Gamtrup Commando
Hospital,
Bengaluru.
A2. Naheem @ Chuchut @ Chota
(Split up)
2 S.C.No.206/2015
1.Date of Commission of Offence : 07.11.2014
2. Date of Report of Offence : 08.11.2014
3. Status of the accused : Accused No.1 is in Judicial Custody
4. Name of the complainant : Subramani R
5. Date of Commencement of :
27.08.2018 evidence
6. Date of Closing of Evidence : 02.07.2019
7. Offences complained of : Sections 435,436 R/w Section 34 of I.P.C.
8. Opinion of the Judge : Accused No1. is not found guilty J UD GM E N T PSI of HAL Police Station has filed charge sheet against Accused No.1 &2 for the offenses punishable under section 435,436,438, R/w Section 34 of Cr.P.C., of IPC.
2. The brief facts of the prosecution case is that the complainant Subramanya is resident of Mathruchaya Apartment. On 06/11/2014, he parked his car at basement as usually and went to his apartment. When he woke up in the 3 S.C.No.206/2015 morning, he saw fire coming from the basement. When he went and saw at the parking place, his vehicle and vehicles belonging to others were burnt. Based on the said information, case was registered in Crime No.834 of 2014 unknown persons. After the investigation, charge sheet came to be filed in CC No. 5049 of 2015 against Accused No. 1 & 2. As the case was exclusively triable by Court of sessions, the Learned Magistrate has committed the case to Principal,City Civil and Session Judge. In turn, the same was made over to this court.
3. The Accused No.1 was in Judicial Custody and Accused No.2 was on bail, at the time of committal. The presence of Accused No.1 was secured through JC by issuing intimation. As the Accused No.2 remained absconding, case against Accused No.2 was split-up. As such, present case is continued only against Accused No.1.
4. In order to bring home the guilt of Accused No.1, the prosecution has examined witnesses as PW.1 to 7. The 4 S.C.No.206/2015 statement under section 313 of Cr.P.C., is read over to Accused No.1. Accused denied the statement of witnesses. Accused No.1 has not led any defence evidence.
5. Heard the arguments of both the counsels. Perused the records. Following points that would arise for my consideration.
1. Whether the prosecution proves beyond the reasonable doubt that accused No.1 along with accused No.2-Naheem @ Chota in furtherance of common intention between the night of 07.11.2014 and 08.11.2014, between 01:00 am to 01:30 am., set fire the eleven two wheelers parked in front of Mathruchaya Building owned by CW-2-Nagaraj and others, situated in 5 th Cross, Annasandra Palya, Rama Temple down, Bengaluru City with petrol, and they caused damage to those motor cycles worth more than Rs.100/- and thereby committed the offence of mischief by fire or explosive substance and thereby accused persons committed the offence punishable under Section 435 read with Section 34 of IPC.
5 S.C.No.206/2015
2. Whether the prosecution proves beyond reasonable doubt that on the above said date, place and time, the accused No.1 along with accused No.2 caused destruction to the house owned by the CW-2 and thereby committed the offence of mischief by fire or explosive substance with an intension to destroy the house and thereby accused No.1 along with Accused No.2 has committed the offence punishable under Section 436 read with Section 34 of IPC and thereby committed an offence punishable under sections 436 R/w. Section 34 of IPC.
6. My answer to the above points are in the negative, for the following :
R E A SON S
7. Point Nos.1 and 2 : In order to prove the allegations of the of the accused, the prosecution has examined PW1 to 7. 6 S.C.No.206/2015
8. PW.1 Subramanya, in his evidence has deposed that he is having a rented flat in first floor of Mathru Chaya Apartment situated at Annasandra Palya. He is having a TVS Motorcycle. There is a parking area in the cellar portion of the apartment. He used to park the motorcycle in the cellar portion of the apartment. There are also many other flats in the apartment and many tenants were parking their vehicle in the cellar portion. When the things stood thus, on 8.11.2017, at about 1.30 am., when the dogs started barking, he came out of the house and came to cellar portion and found that 8 motorcycles parked in that area were set fire and got burnt. There was also damage to his apartment. Therefore, he filed a complaint against unknown persons. The same is denied by the accused.
9. PW.2 V.Nagarajan in his evidence has deposed that his wife is the owner of the said apartment. There are three floors in the apartment having 8 flats. On 7.11.2014, at about 1.00 to 1.30 am., he came to know that somebody has set fire to 7 S.C.No.206/2015 the vehicles parked in the cellar portion of the apartment and he does not know who has set fire to the said vehicles. He has further deposed that police have conducted mahazar and obtained his signature.
10. PW.3 Naveen in his evidence has deposed that his father is owning 4 houses near Rama Temple, Annasandra Palya. Those houses are given on lease. There is also a parking area by the side of 4 houses. The tenants were parking their two-wheelers in the said parking area. On 8.7.2014, at about 2.00 am., somebody called him through phone and informed that parked vehicles were burnt. He has also visited the apartment and saw the burnt vehicles and he does not know who has set fire to the said vehicles.
11. PW.4 Bennichen Joseph, in his evidence has deposed that he is residing at the first floor of the building belonging to CW.2 Nagaraj. He is the RC holder of TVS VEGO scooter. He used to park his vehicles at the parking lot. On 8 S.C.No.206/2015 6.11.2014, after parking his scooter, he went to Palakkad. On 7.11.2014, in the morning, his friend called him over phone and informed that vehicles parked in the cellar portion including his vehicle got burnt. He came to Bengaluru two days after the information and he does not know who has burnt the said vehicles.
12. PW.5 Shivalingappa, ASI in his evidence has deposed that he was deputed for tracing culprits in this case on 2.12.2014. On the same day, himself and one Sadar Pasha went to near Commando Hospital, situated at AIRPORT Road at about 12.30 PM., He saw accused No.1 Chota Nagesh in that place and he tried to run away. He has caught hold of the accused No.1 and produced him before the PSI. The same is denied by accused No.1.
13. PW.6 Guruprasad G PSI of Marathalli Police Station who was working as PSI at HAL Police Station, has deposed that PW.1 Subramani appeared before him and lodged a written complaint. On the basis of complaint, he has registered FIR. 9 S.C.No.206/2015 Thereafter, he went to the spot and conducted spot panchanama in presence of panchas. He has seized burnt bikes and electricity motor and burnt goor of the house. He has also seized one plastic bottle having smell of petrol. He has taken photographs at the spot. Accused No.2 was produced before him and he has arrested accused No.2 and recorded his voluntary statement and produced him before the jurisdictional Magistrate court on 21.11.2014. On 2.12.2014, his subordinates have produced accused No.1. he has arrested him and recorded his voluntarily statement. On the basis of statement of accused No.1, accused No.1 took him and pancha witnesses to backside of Kairali Masjid at Islampura and he has shown one axel blade and iron rod. He has recorded the same in presence of panchas by drawing panchanama. Thereafter, he has produced accused No.1 before the Jurisdictional Magistrate Court. The same is denied by the accused.
14. PW.7 M.S.Balasubramanyam, Retired Employee of ITI has deposed that he has affixed his signature on 10 S.C.No.206/2015 panchanama at the place where 7 to 8 vehicles were burnt. He has also deposed that in the said place, electricity meter board and door frame of the house was also burnt.
15. This is all about the evidence of PW.1 to 7. PW.1, the tenant, PW.2 the husband of owner of apartment, PW.3, the son of the owner of the house near Rama Temple, PW.4 the tenant in building belonging to one Nagaraj/CW.2 has deposed that they do not know who has set fire to the vehicles and who has caused damage to the house. Therefore, PW.1 to 4 who were stated to be the eye-witnesses have not at all identified accused persons who were facing trial in this case. The evidence of PW.5 who has produced accused No.1 before the PSI and PW.6 who has conducted the investigation in this case are only available on record. PW.7 except deposing that he has affixed his signature to Ex.P.10 mahazar, has not deposed anything about the accused persons before the court. However, it is evident from Ex.P.2 to P.8 photographs and evidence of PW.1 to 4 that in the cellar portion of the Mathru Chaya Apartment, 8 scooters 11 S.C.No.206/2015 were parked and some one has burnt the vehicles. Further, the prosecution has failed to bring home the guilt of the accused to show that it is none other than accused No.1 along with split-up accused No.2 who has set fire to the vehicles which was parked at cellar portion of Mathru Chaya Apartment. Though Investigating Officer has deposed that accused No.1 has given voluntary statement and produced one axle blade, there is nothing in the evidence of PW.1 to 4 to suggest that accused persons have used axle blade and iron rod for the purpose of commission of offence. Further, the prosecution has not examined pancha witnesses for seizure of axle blade and iron rod. Hence, the evidence available on record are insufficient for convicting the accused No.1 for the above said offences. The prosecution has failed to prove the case beyond reasonable doubt that accused No.1 along with accused No.2 has committed the offence. Therefore, I answer the above points in the Negative.
12 S.C.No.206/2015
16. Point No.3: In view of my finding on point Nos.1 and 2, I proceed to pass the following;
O R DE R Acting under Section 235 of Cr.P.C., the accused No.1 is acquitted for the offences punishable under sections 435,436 & 438 R/w. Sec.34 of IPC.
The accused No.1 is ordered to be set at liberty, if he is not required in any other case.
Issue intimation to Jail Authority accordingly. The properties seized in the case at Mos.1 to 6 are ordered to be retained as split-up case against accused No.2 is pending.
(Dictated to the Stenographer/ Judgment Writer directly on computer typed by them, corrected, signed and then pronounced by me in the open court on this the 14 th day of March, 2022).
(Sadananda Nagappa Naik) LIX Addl. C.C. & Sessions Judge, Bengaluru CITY.
13 S.C.No.206/2015A NN E X U R E LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 Subramanya PW.2 V. Nagarajan PW.3 Naveen PW.4 Bennichen Joseph PW.5 Shivalingappa PW.6 Guruprasad G PW.7 M.S.Balasubramanyam
LIST OF WITNESSES EXAMINED FOR DEFENCE:
NIL LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 Complaint
Ex.P.1(a,b) Signatures
Ex.P.2-9 Photographs
Ex.P.10 Mahazar
Ex.P10(a) Signature of PW.2
Ex.P10(b) Signature of PW.3
Ex.P10(c) Signature.
Ex.P.11 Photograph
Ex.P.12 Statement of PW.2.
Ex.P.13 Further Statement of PW.2.
Ex.P.14 Photograph
Ex P.15 Portion of Statement of PW.3
Ex.P.16 FIR in Cr.No.834/2014
Ex.P.17 Voluntary Statement of A.1.
Ex.P17(a) Signature.
Ex.P17(b) Signature of Accused.
Ex.P.18 Seizure Panchanama.
Ex.P18(a) Signature.
14 S.C.No.206/2015
LIST OF DOCUMENTS MARKED FOR DEFENCE:
NIL LIST OF MATERIAL OBJECTS MARKED :-
M.O.1 Burnt Meter M.O.2 Burnt Wooden Piece M.O.3 Plastic Water Bottle M.O.4 Ash Packet M.O.5 Blade M.O.6 Iron Rod
LIX Addl. City Civil & Sessions Judge, Bengaluru.