Bangalore District Court
And Victim. P.W.2-Bharathi Is The ... vs And In The Said Enquiry The Accused No.1 ... on 27 November, 2015
IN THE COURT OF THE IX ADDL.CHIEF METROPOLITAN
MAGISTRATE, AT BANGALORE.
Dated this the 27th day of November 2015
Present : Sri. J.V.Vijayananda, B.Com., LL.B
IX Addl.C.M.M.Bangalore.
JUDGMENT U/S.355 OF Cr.P.C..
1.CC No 29540/2009
2.Date of Offence 22-7-2009
3.Complainant State by Jnanabharathi Police
Station
4.Accused 1. Harisha
S/o Shivanna, aged 22 years,
Residing at behind Ganesha
Temple Road, Near Mohan
Talkies, Hegganahalli Cross,
Sunkadakatte, Bangalore.
2. Kumar ( split up)
5. Offences complained U/s.392 of IPC
of
6.Plea Accused No.1 pleaded not guilty.
7.Final Order Accused No.1 is acquitted
8.Date of Order 27-11-2015
2 C.C.No.29540/2009
REASONS
The Inspector of Police, Jnanabharathi Police Station,
Bangalore has filed this charge sheet against accused Nos.1
and 2 for the offence punishable under section 392 of IPC. It
appears during the pendency of this case, the accused No.2
remained absent before the court and as such vide order dated
9-3-2012 this case against accused No.2 was split up and
registered separate case in C.C.No.6946/2013 which is
pending before this court for consideration.
2. The brief facts of the prosecution case are that, on
22-7-2009 at 8-30 p.m., near BDA complex at 1st main road,
health layout Annapoorneshwari nagar, within the limits of
Jnanabharathi police station, this accused and another by
pouring chilly powder on the face of C.W.1 Smt Roopa.Y.T
committed robbery of her gold neck chain and thereby
committed aforesaid offence.
3. The accused No.1 is on bail. On receipt of charge sheet,
this court took cognizance of the offence and furnished the
copies of the prosecution papers to the accused No.1. After
hearing on charges, this court has framed the charge for the
offence punishable U/s 392 of IPC and questioned the accused
No.1 regarding the charge made against him, he denied the
charge and claimed to be tried.
3 C.C.No.29540/2009
4. The prosecution in order to prove its case got
examined six witnesses as P.Ws.1 to 6 and got marked ten
documents as per Exs.P1 to P.10. Since C.Ws.2, 5, 6, 8 and 9
did not turn up before this court, in the interest of speedy
justice to the accused, by rejecting the prayer of learned
Sr.APP., this court dropped the examination of said witnesses.
5. Thereafter, this court examined the accused No.1 as
required U/s 313 of Cr.P.C., the accused No.1 denied the
incriminating evidence appeared against him and submitted
that he has no defence evidence.
6. I have heard the arguments on both sides.
7. The prosecution to prove the guilt against accused
No.1 has examined six witnesses. P.W.1-Roopa.Y.T is the
complainant and victim. P.W.2-Bharathi is the circumstantial
witness who witnessed the alleged incident and also the spot
mahazar witness. P.W.3-D.K.Lokesh.H.C is the husband of
P.W.1 who is another circumstantial witness. P.W.4-Mahaveer
is the receiver of stolen robbed article. P.W.5-Umesh.R.Udupi
is the ASI who arrested the accused No.1 on suspicious
ground. P.W.6-B.T.Chidanandaswamy is the Investigating
Officer. It appears inspite of giving sufficient opportunities the
4 C.C.No.29540/2009
prosecution has not examined another spot mahazar witness
and independent seizure mahazar witnesses.
8. I have carefully perused the evidence on record.
9. The testimony of P.W.1 indicating that about 4 years
back at 8-30 p.m., she was proceeding towards
Annapoorneshwari Nagar near BDA complex at Nagarbavi. At
that time one person came from her backside poured chilly
powder on her eyes, snatched her gold neck chain and ran
away, though she shouted for help but the person escaped. In
this regard on 22-7-2009 she lodged the complaint to the
police as per Ex.P.1. After lodging of the complaint, on the
same day, the police visited the spot and prepared the
mahazar in between 11-00 to 11-15 p.m.
10. P.W.2 the spot mahazar witness has corroborated the
testimony of P.W.1. The testimony of P.W.2 indicating that on
22-7-2009 the police called her to the place of robbery of gold
neck chain of P.W.1, prepared the mahazar in between 11-00
to 11-15 p.m. and obtained her signature. Though P.W.2 was
subjected to cross-examination but nothing worth is elicited
from her to doubt her testimony.
5 C.C.No.29540/2009
11. P.W.6-B.T.Chidanandaswamy the Investigating
Officer has also corroborated the testimony of P.W.1 in the
matter of lodging of the complaint and preparing of the spot
mahazar. The testimony of P.W.6 indicating that on 22-7-
2009 at 9-45 p.m., he received the complaint from P.W.1 and
registered the case. On the same day he visited spot and at
11-00 p.m., he prepared the mahazar and spot sketch in the
presence of witnesses. Though P.W.6 also subjected to cross
examination, but nothing worth is elicited from him to doubt
his testimony.
12. From the testimony of P.W.1, 2 and 6, it is very much
clear that on 22-9-2009 P.W.1 has lodged the complaint in
respect of robbery of her gold neck chain by somebody. In this
regard a complaint was lodged before P.W.6, intern P.W.6 has
registered the case, visited the spot and prepared the
mahazar.
13. The testimony of P.W.6 the investigation officer,
further indicating that on 30-7-2009 his station ASI and staff,
has produced M.O.B accused by name Harish the accused
No.1 herein before him, along with report. He enquired said
accused and in the said enquiry the accused No.1 has
confessed that he and one Kumar the accused No.2 herein
committed robbery of gold neck chain of P.W.1 and sold it to
6 C.C.No.29540/2009
Neminath jewels at Kurubarahalli. Further the accused has
confessed that if, he is taken he would show the place and the
person to whom he sold the jewels. Accordingly, he recorded
the voluntary statement of accused, called panchas and along
with panchas, he, accused No.1 visited Neminath Jewelers at
Kurubarahalli. The accused No.1 identified the owner of said
jeweler shop and stated that he sold the robbed gold neck
chain to said owner. Accordingly, the said owner has produced
30 grams of gold neck chain. Intern P.W.6 has seized the same
by preparing the seizure mahazar and reported the seizure to
the court under P.F.No.99/2009. Further on the same day, he
called complainant to the station, got identified recovered gold
neck chain and accused from her. Thereafter, he recorded the
statements of witnesses. Since the accused No.2 absconded,
after completion of the investigation, he filed charge sheet
against accused persons.
14. If we carefully perused the prosecution papers and
the evidence on record, there are no eyewitnesses to the
alleged act of robbery of gold neck chain of P.W.1 by accused
Nos.1 and 2. Therefore, the present case is purely based upon
the circumstantial evidence. Therefore, in a case like this the
offence has to be proved in a circumstantial evidence by way of
proving the seizure mahazar of seized gold neck chain of P.W.1
beyond all reasonable doubt. Infact accused No.1 is not
7 C.C.No.29540/2009
disputing the ownership of P.W.1 over recovered gold neck
chain.
15. Now let us consider whether the prosecution is
successful in proving the seizure mahazar of M.O.1 beyond all
reasonable doubt. Ex.P.3 is the seizure mahazar. The
prosecution to prove Ex.P.3 has examined the investigating
officer as well as the receiver of stolen robbed article. It
appears in spite of giving sufficient opportunities, the
prosecution has not examined independent seizure mahazar
witnesses. As per Ex.P.3, on 31-7-2009 the accused No.1 led
P.W.6 and independent panchas to the Neminath Jewelers
shop at Kurubarahalli, identified the person sat in the cash
counter, introduced himself to the said person as Harish son
of Shivanna and stated that he and his friend Kumar about
one week back sold the jewels for Rs.15,000/- and demanded
to hand over the same as it related to this case. Accordingly,
the person who sat in the cash counter identified the accused
and stated that accused No.1 and another pleaded gold chin
pretending urgency of money saying that the said chain is
belonged to his family members. Accordingly, he handed over
the said chain to P.W.6. Accused No.1 identified the said chain
as the chain sold by him and his friend. Accordingly, P.W.6
has seized the same by preparing the seizure mahazar.
8 C.C.No.29540/2009
16. As stated above, the prosecution to prove Ex.P.3 has
examined two witnesses. P.W.6 the investigation officer though
deposed regarding seizer of said chain, he has not explained
the seizer as narrated above. Admittedly, P.W.6 is the
interested witness who is always interest in out come of his
investigation and prosecution. Since P.W.6 has not explained
the seizer as narrated in Ex.P.3 and he is the interested
witness, it is unsafe to place reliance on his sole testimony. In
my opinion, in order to believe the testimony of P.W.6
independent corroboration is necessary. Unfortunately, inspite
of giving sufficient opportunities, the prosecution has not
examined independent seizure mahazar witnesses.
17. As stated above, P.W.4 is the receiver. His testimony
indicating that on 31-7-2009 the Jnanabharathi police visited
his shop in between 12 to 1-00 p.m., and stated that the
accused has sold the gold neck chain from his shop. He
handed over the same. Intern P.W.6 has seized the same by
preparing the seizure mahazar in between 12-00 to 1-00 p.m.,
Even P.W.4 has not explained the seizer as per Ex.P.3. As per
say of P.W.4 accused No.1 alone has sold the chain. Whereas
as per Ex.P.3, the accused No.1 and another i.e., accused No.2
herein together sold the said chain. As such a doubt arises
believe the testimony of P.W.4 in the matter of recovery of
M.O.1.
9 C.C.No.29540/2009
18. Apart from this as per the case of the prosecution the
incident taken place on 22-7-2009. The recovery was made on
31-7-2009. Ex.P.9 is the photograph of the recovered chain. If
we carefully perused the said photograph one can easily say
that the said chain is new one. It is no need to say that while
forcibly snatching the chain from neck, naturally it would
possible to change its shape or some times it is possible to
bifurcate its links. However, in Ex.P.9 we could not find no
such difference in the said chain. Therefore, a further doubt
arises as to whether the investigating officer has seized the
gold neck chain actually robbed or some other chain. In view
of above contradictions, it is not safe to place the reliance on
the testimony of P.W.4. In my opinion, in order to believe the
testimony of PW.4 and PW.6 in the matter of recovery,
corroboration by independent seizure mahazar witnesses is
necessary.
19. As stated above, inspite of giving sufficient
opportunities, the prosecution has not examined independent
seizure mahazar witnesses. Therefore, the prosecution has
failed to prove the seizure mahazar beyond all reasonable
doubt
20. The testimony P.W.3 the circumstantial witness and
the testimony of P.W.5 the ASI who arrested the accused on
10 C.C.No.29540/2009
suspicious ground, is only formal one and need not required
detailed consideration. Therefore, having regard to the facts
and circumstances of the case and the evidence available on
record, I am of the considered opinion that the evidence on
record is insufficient to conclude that the prosecution has
proved its case beyond all reasonable doubt. Accordingly, the
accused No.1 is entitled for benefit of doubt. In the result, I
proceed to pass the following:
ORDER
This court did not found guilt of accused No.1 for the offence punishable under sections 392 of IPC.
Consequently, acting under section 248(1) of Cr.P.C accuse No.1 has been acquitted for the above referred offence.
His bail bond and surety bond stands cancelled.
Office to retain entire case papers of this case and properties if any in split up case registered against accused No.2 in C.C.No.16946/2013.
(Dictated to the Stenographer directly on computer and print out taken by her is verified and then pronounced by me in the open court on this the 27th day of November 2015) (J.V.Vijayananda) IX Addl.Chief MetropolitanMagistrate, Bangalore.
11 C.C.No.29540/2009ANNEXTURE LIST OF WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION:
P.W.1, Roopa.Y.T; P.W.2, Bharathi; P.W.3, Lokesh.H.C; P.W.4, Mahaveer; P.W.5, Umesh.R. Udupi; P.W.6, B.T.Chidananda Swamy;
LIST OF DOCUMENTS MARKED ON BEHALF OF THE PROSECUTION:
Ex.P.1 Complaint Ex.P.1(a) Signature of P.W.1 Ex.P.1(b) Signature Ex.P.2 Mahazar Ex.P.2(a) Signature Ex.P.2(b) Signature Ex.P.2(c) Signature Ex.P.3 Mahazar Ex.P.3(a) Signature Ex.P.4 Report Ex.P.4(a) Signature Ex.P.5 FIR Ex.P.5(a) Signature Ex.P.6 Statement
Ex.P.7 and 8 Two reports Ex.P.9 Photo Ex.P.10 Report 12 C.C.No.29540/2009 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 One chain LIST OF WITNESSES EXAMINED, DOCUMENTS AND MATERIALS MARKED ON BEHALF OF THE DEFENCE:
NIL IX ADDL.C.M.M. Bangalore.