Bangalore District Court
The State vs Naveen @ Naveen Kumar on 31 January, 2023
KABC030445762018
Presented on : 19.06.2018
Registered on : 19.06.2018
Decided on : 31.01.2023
Duration : 04y/07m/22days
IN THE COURT OF
XLI ADDITIONAL METROPOLITAN MAGISTRATE
AT : BENGALURU
PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA
B.A.,LL.B.,
XLI Addl. Metropolitan Magistrate
Bengaluru
Dated on this 31st day of January 2023
C.C.No.16391/2018
COMPLAINANT : The State
by Vidyaranyapura Police Station.
-V/s-
ACCUSED : 1. Naveen @ Naveen Kumar
@ Gowda, S/o.Late Manjegowda,
Aged 29 years,
R/at. Doddagenegere Village,
Shantigrama Post & Hobli,
Hassan District.
Date of Commission of 10.03.2017
offence
Date of report 06.07.2017
Date of arrest From 18.09.2017, accused is
being produced under body
2 C.C.No.16391/2018
warrant.
Name of the complainant Sri.Vijay Srinivas
Date of commencement of 09.03.2020
recording Evidence
Date of closing evidence 23.11.2022
Offences complained of U/Sec. 380 of IPC
Opinion of the Judge As per final orders
State Represented by Senior Asst. Public Prosecutor
Accused Represented by Sri. Raghu M-Panel Advocate.
JUDGMENT
[Delivered on 31.01.2023] The Police Sub-Inspector of Vidyaranyapura Police Station has filed charge sheet against the accused for the offences punishable U/Sec.380 of IPC.
2. Brief facts of prosecution case is as follows:
On 10.03.2017 during night hours, at house No.5/A, 4th Cross, Venkataswamppa layout, Vidyaranyapura, when CW.1 was sleeping in his house, the accused stolen 20.700 grams of gold ornaments which was kept on the table, by putting his hands through window. On the basis of complaint given by Sri.Vijay Srinivas, the Vidyaranyapura police have registered the case in their crime No.295/2017.3 C.C.No.16391/2018
3. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offence punishable U/Sec. 380 of IPC.
4. From 18.09.2017, the accused is being produced under body warrant. This Court complied with Sec.207 of Cr.P.C and charge sheet copy was furnished to the accused.
5. This Court heard both the parties. As there were no grounds to discharge the accused, this Court framed charge for the offence punishable U/Sec. 380 of IPC. The accused did not plead guilty. He claimed to be tried.
6. In order to prove its case, the prosecution got examined 8 witnesses as PW.1 to 8 and got marked Ex.P.1 to 3 documents and MO.1 to 3. After completion of the prosecution evidence, the statement of the accused was recorded U/Sec.313 of Cr.P.C. The accused denied the incriminating evidence led against him. He did not choose to lead his defense evidence.
7. I have heard the arguments of Senior APP and Sri. RM Advocate.
4 C.C.No.16391/2018
8. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, on 10.03.2017 during night hours, at house No.5/A, 4th Cross, Venkataswamppa layout, Vidyaranyapura, when CW.1 was sleeping in his house, the accused stolen 20.700 grams of gold ornaments which was kept on the table, by putting his hands through window and thereby he has committed an offence punishable U/Sec.380 of IPC?
2. What order?
9. My answers to the above points are as under:
Point No.1 : In Negative Point No.2 : As per final orders for the following:
REASONS Point No.1 :
10. The burden is casted on the prosecution to prove that, on the night of 10.03.2017 the accused stolen 20.700 grams of gold ornaments of CW.1 by putting his hands through window, which 5 C.C.No.16391/2018 was kept on the table of house No.5/A, 4th Cross, Venkataswamppa layout, Vidyaranyapura. In order to prove its case, the prosecution got examined the complainant CW.1 as PW.1, mahazar witnessCW.2 as PW.2, seizure mahazer witnesses CW.6 as PW.3, CW.7 as PW.4, CW.8 as PW.5, the police official who arrested the accused-CW.9 as PW.6, CW.11 as PW.7 and IO- CW.12 as PW.8 and got marked the complaint as Ex.P.1, spot mahazar as Ex.P.2, true copy of seizure mahazer dated:
28.06.2017 as Ex.P.3 and gold ornaments as Mo.1 to 3.
11. CW.1/PW.1-Vijay Srinivas in his evidence has stated that, he is residing at 1st floor of H. No.5/A, 4th cross, Rangaswamappa layout, Vidyaranyapura. On 10.03.2017 he had brought one golden thali, 2 red stoned studs, one bangle, 2 button type drops totally weighing 20.700 grams from the locker and kept it on the table. When he woke up at 6a.m on the morning of 11.03.2017, he noticed the window was opened and gold ornaments were missing. They waited in the hope that, they may get the ornaments. After 3 months, he gave Ex.P.1 complaint. After many 6 C.C.No.16391/2018 days, the police called him to the station, wherein he gave statement by identifying his ornaments. Two pairs of ear rings and a bangle are marked as MO.1 to 3. He has identified the accused through VC.
12. CW.2/PW.2- Shiva Shankar in his evidence has identified his signature found on Ex.P.2 mahazer. On 06.07.2017 in the afternoon, he has signed Ex.P.2 in connection with a theft in the house of PW.1. On that day, the police had come to that house. The PW.1 had shown the spot to the police and CW.3 was present along with him. By knowing the contents of Ex.P.2, he has affixed his signature to that document.
13. CW.6/PW.3 - Siddarth Bohara, in his evidence has identified his signature found on Ex.P.3 mahazer. On 28.06.2017 he has signed that document at Hema Jewelers, town street, Holenarasipura. The Yelahanka police had brought accused Naveen to their shop and told that, he had stolen 20 different gold ornaments. The police had seized those ornaments from their shop. He can identify the ornaments and the accused. 7 C.C.No.16391/2018
14. CW.7/PW.4- Kantilal Jain in his evidence has stated that, the police had brought the accused to their jewelry shop on 04.07.2017 and asked him to give the ornaments pledged by the accused. Mangalya chain pledged by the accused was not available and hence, he gave 4 golden beads and chain connector, totally weighing 7 grams gold to the police. Accordingly, the police seized those gold ornaments by drawing seizure mahazer.
15. CW.8/PW.5- Ajay in his evidence has stated that, since 4 years he was working in the shop of PW.4 . On 04.07.2017, the police had brought one person to their shop. He is not aware of his name. He does not know, which are the ornaments handed over by their owner to the police. But, the police had seized some properties.
16. CW.9/PW.6-Nagesh, in his evidence has stated that, on 23.06.2017, the CW.11 had deputed him and CW.10 to go to Shanti grama, Doddagenigere to trace out the accused. From the informants, they learnt that the accused is in a mixture factory at 8 C.C.No.16391/2018 Katihalli, Hassan along with his wife. At 11p.m they caught hold of the accused and produced him before CW.11.
17. CW.11/PW.7- Manjunath in his evidence has stated that, while he was discharging his duties as police inspector at Yelahanka New Town police station, accused was arrested. During the course of investigation, the accused informed that, he has committed theft from the house of PW.1, which is situated at the jurisdiction of Vidyaranyapura police station. Thereafter, he took them to Hema jewelers, Holenarasipura, Hassan district. He has seized the gold ornaments from that shop in the presence of witnesses by drawing mahazer, which the accused had sold to that shop. On the same day, he recorded the statements of CW.3 to 6. On 24.06.2017, he recorded the statements of PW.6 and CW.10. He had seized 3 gold ornaments and a receipt from the shop of Rajashri Jewelers, Wilson garden on 04.07.2017, which was pledged by the accused. On the same day, he recorded the statements of CW.7, CW.8 and PW.1.
9 C.C.No.16391/2018
18. CW.12/PW.8-Kalmesh in his evidence has stated that, he has received documents from Yelahanka New Town police station on 02.04.2018. They had handed over the ornaments of this case, which was reported to the Court vide PF No.35/2018. By perusing the records, he noticed that the investigation of the case is completed and hence he submitted charge sheet against the accused.
19. On the basis of complaint given by the complainant as per Ex.P.1, the Vidyaranyapura have registered this case, investigated the matter and filed charge sheet. In Ex.P.1 no description of the offender has been mentioned. As per Ex.P.1 the gold ornaments were allegedly stolen from the house of complainant on the night of 10.03.2017 and Ex.P.1 complaint was given on 06.07.2017.
20. The PW.1 being the complainant has not assigned proper reasons as to why he could not lodge the complaint immediately after the incident. There is a delay of almost 4 months in lodging the complaint. In Ex.P.1 the complainant has stated that he came to know about the theft in his house on the morning of 11.03.2017 10 C.C.No.16391/2018 as he wanted to go out station, he could not lodge the complaint to the police. In Ex.P.1 it is alleged that Yelahanka new town police came with the accused by name Naveen Kumar on 01.07.2017 and the police informed him that the accused is the person who had stolen gold ornaments from their house and showed the gold ornaments at the station and hence he gave complaint to the police on 06.07.2017.
21. Contrary to the contents of Ex.P.1, the PW.1 in his evidence has stated that, they waited in the hope that, they may get the ornaments and after 3 months, he gave Ex.P.1 complaint. After many days, the police called him to the station, wherein he gave statement by identifying his ornaments. The version of PW.1 is not corroborated with the contents of Ex.P.1.
22. There is a delay of almost 4 months in lodging complaint. The reasons assigned by the complainant for lodging the complaint belatedly is not believable. In the present case, the PW.1 has not produced any documents before the court to show that he owned so much of gold ornaments described in Ex.P.1 11 C.C.No.16391/2018 complaint. Moreover, the IO has not collected any documents from the bank, to show that the PW.1 had brought gold ornaments from his locker on 10.03.2017.
22. The PW.1 in his evidence has stated that, he is residing in a house since 4 years, which is situated at Rangaswamappa layout, Vidyaranyapura. In Ex.P.1, the residential address of PW.1 is mentioned of Venkataswamappa layout. Ex.P.2 mahazer was drawn at Muniswamappa layout. All these aspects create doubt in the mind of the Court regarding alleged place of theft.
23. During the course of cross examination, the PW.1 stated that, they have fixed mosquito mesh to their window but, they have not put curtains to the window. Ex.P.2 is said to be the mahazer drawn at the spot on 06.07.2017. As per Ex.P.2, the spot is bounded on the East by residential home, West by compound, North by road and South by the house of the complainant. There is no reference about the existence of window and nearby table in Ex.P.2 mahazer.
12 C.C.No.16391/2018
24. The IO did not notice the mosquito mesh affixed to the window. As stated by PW.1, if they had fixed mosquito mesh to the window, how the offender can take out the gold ornaments by putting his hand through the window, which was placed on the table. There is no reference about the existence of mosquito mesh to the window, in Ex.P.2 mahazer.
25. In order to say that the accused had stolen gold ornaments from the house of PW.1, by putting the hands through window, which were kept on the table, the IO has not noted the existence of alleged window and nearby table at the spot. As per Ex.P.3 seizure mahazar 20 different gold ornaments were recovered from Hema Pawn brokers, Devanga Street, Holenarasipura, Hassan on 28.06.2017. As per another seizure mahazer dated:
04.07.2017, only 3 gold ornaments were seized from Rajashri Jewelers, Wilson Garden, Siddaiah Road, Bengaluru. Those seizure mahazers were drawn much prior to the date of lodging of complaint by the PW.1 on 06.07.2017.13 C.C.No.16391/2018
26. As per Ex.P.1, a pair of red stoned ear stud, a pair of round drops, a bangle and thali was stolen from the house of PW.1. According to PW.1, two pairs of ear studs and bangle was released in his favor, which are marked as MO.1 to 3. What happened to golden thali allegedly stolen from the house of the PW.1 has not been clarified by PW.1 or PW.8.
27. The PW.1 in his cross examination stated that, ¸ÁªÀiÁ£ÀåªÁV AiÀiÁgÀzÉÝà ªÀÄ£ÉAiÀÄ°è PÀ¼ÀîvÀ£ÀªÁzÀgÉ vÀPÀëtªÉà ¥ÉÆð¸ÀjUÉ ªÀiÁ»w ¤ÃqÀÄvÁÛgÉ JAzÀgÉ ¸Àj. ¤ÃªÀÅ KPÉ vÀPÀët zÀÆgÀÄ zÀÆgÀÄ ¤ÃqÀ°®è JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQë vÁªÉà ªÀ¸ÀÄÛUÀ¼ÀÄ ¹UÀ§ºÀÄzÉA§ DPÁAPÉë ªÉÄÃgÉUÉ ¤ÃqÀ°®è JAzÀÄ ºÉüÀÄvÁÛgÉ.The PW.1 is diploma graduate. No prudent man will keep quite if gold ornaments weighing 20.700 grams were stolen from his house in a hope that, he may get those ornaments.
28. As mentioned in Ex.P.1, the PW.1 had been to out station for his personal work, his family members ought to have lodged complaint about the theft. According to PW.1, himself, his wife, son and mother stays at their house. But, no family members of 14 C.C.No.16391/2018 PW.1 made any such attempts to inform the police about the theft. The PW.1 has not produced any documents or evidence before the court to show that, he was not in station for continuous 4 months.
29. In Ex.P.1, the PW.1 stated that the police brought the accused near his house on 01.07.2017 and informed that the accused has stolen gold ornaments from his house and showed the ornaments at the police station. In spite of it, the PW.1 did not lodge complaint immediately after the information received from the police. He kept quiet for 5 more days and gave complaint to the police on 06.07.2017. The PW.1 did not assign good reasons as to why he did not lodge the complaint immediately. All these aspects create doubt in the mind of the Court regarding the genuineness of this case.
30. The PW.4 is the owner of Rajashri Jewelers, Wilson garden, Bengaluru. According to PW.4, the police visited to his shop on 04.07.2017 along with the accused and seized 4 golden beads and chain connector totally weighing 7 grams from his shop. The 15 C.C.No.16391/2018 mangalya chain was not available in his shop. As per the mahazer dated: 04.07.2017, one golden thali weighing 3 grams, 4 gold beads weighing 2 grams and chain connector weighing 2 grams was seized from the shop of PW.4. The description of gold ornaments mentioned by PW.4 does not tally with the description mentioned in the mahazer.
31. The PW.3 is the owner of Hema Jewelers, Holenarasipura. According to PW.3, the police have seized 20 different gold ornaments from his shop, which was pledged by the accused. In Ex.P.3, it is mentioned that, the police have seized 20 different ornaments from the shop of PW.3, which was sold by the accused. The version of PW.3 does not tally with the contents of Ex.P.3. The IO has not recovered any documents from PW.3 to show that, the accused had sold or pledged the gold ornaments to Hema jewelers.
32. During the course of cross examination, the PW.1 stated that "£ÀªÀÄUÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ªÀ¸ÀÄÛUÀ¼ÀÄ PÀ¼ÀîvÀ£ÀªÁVzÉAiÉÄà E®èªÉà JAzÀÄ 16 C.C.No.16391/2018 UÉÆwÛ®èzÀ PÁgÀt £ÁªÀÅ zÀÆgÀÄ ¤Ãr®è JAzÀgÉ ¸ÁQë ºËzÀÄ JAzÀÄ ºÉüÀÄvÁÛgÉ".
ºÉüÀÄvÁÛgÉ . This version of PW.1 creates doubt in the mind of the Court regarding the genuineness of this case. Moreover, the PW.1 admits that Ex.P.1 was prepared in the police station. However, the PW.1 did not affix his signature to Ex.P.1. The signature of PW.1 is not found on Ex.P.1. This aspect has been admitted by the PW.1 in his cross examination.
33. Though the PW.2 deposed about drawing of Ex.P.2 spot mahazer, there is no reference in that mahazer about the existence of table near the so-called window of the house of PW.1. The version of PW.3 and 4 is not supported by the version of any independent witnesses. The PW.5 has neither identified the accused not explained the description of the ornaments said to be taken from the shop of PW.4.
34. The PW.6 in his chief examination has stated that, he along with CW.10 arrested the accused on 23.06.2017 at the mixture factory of Katehalli, Hassan at 11p.m. Contrary to his chief 17 C.C.No.16391/2018 examination, the PW.6 in his evidence has stated that, the mixture factory will not be working at 11p.m. No independent witnesses came forward to say that, they have seen the police arresting the accused from the mixture factory of Katehalli, Hassan on the night of 23.06.2017.
35. The PW.7 in his evidence has stated that he had seized gold ornaments and banker's receipt from the shop of PW.4 while drawing mahazer on 04.07.2017 from Rajashri Jewelers, Wilson garden, Bengaluru. But, the PW.4 in his evidence has not stated that he had given receipt to the police at the time of drawing mahazar.
36. There are no materials on record to hold that the gold ornaments marked as MO.1 to 3 were recovered from the shop of PW.3 and 4 in view of the voluntary statement given by the accused. Generally, if any gold ornament is sold or pledged, the pawn brokers or jewelers will issue receipt in that regard. But, the PW.3 and 4 have not produced any documents to show that the accused had ever pledged or sold gold ornaments to their shops. 18 C.C.No.16391/2018
37. The PW.7 in his evidence has stated that, he had recorded the statement of PW.1 on 04.07.2017. As on 04.07.2017, the PW.1 has not at all given any complaint to the police and hence, question of PW.1 giving statement to the police does not arise. There is no cogent evidence on record to connect the accused with the alleged crime. The prosecution has not produced convincing evidence to show that, MO.1 to 3 were seized from the shop of PW.3 and 4 in the presence of witnesses, in view of the information given by the accused.
38. The version of PW.3 and 4 is not corroborated with the oral evidence of any independent witnesses. No person appeared before the Court to say that, MO.1 to 3 were seized from the shop of PW.3 or 4 as per the information given by the accused. The evidence led by PW.1 to 8 is no way helpful to the case of the prosecution to hold the accused guilty of the offence.
39. In the present case, the prosecution has not proved the alleged place of theft. From the evidence of PW.1 to 8, the allegations made against the accused are not proved. Thus, the 19 C.C.No.16391/2018 prosecution has failed to prove that, the accused stolen 20.700 grams of gold ornaments of PW.1 on the night of 10.03.2017 by putting his hands through window, which was kept on the table of house No.5/A, 4th Cross, Venkataswamppa layout, Vidyaranyapura. In such circumstances, I answer point No.1 in Negative.
Point No.2: For the aforesaid reasons, I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused is acquitted from the charge of Sec. 380 of IPC.
The property seized under PF No.35/2018 i.e., MO.1 to 3 gold ornaments are already released to the interim custody of PW.1. That order is made absolute.
The Jail authority is directed to release the accused immediately from this 20 C.C.No.16391/2018 case. The body warrant issued against the accused stands cancelled.
31.01.2023 [TATTANDA DAMAYANTI SOMAYYA] XLI ADDL.METROPOLITAN MAGISTRATE BENGALURU 21 C.C.No.16391/2018 ANNEXURE LIST OF WITNESSES EXAMINED FOR PROSECUTION:
PW.1 : Vijay Srinivas PW.2 : Shivashankar PW.3 : Siddharth Bohara PW.4 : Kanthilal Jain PW.5 : Ajay PW.6 : Nagesh PW.7 : Manjunath PW.8 : Kalmesh
LIST OF DOCUMENTS MARKED FOR PROSECUTION:
Ex.P.1 : Complaint Ex.P.2 : Spot Mahazar Ex.P.2[a] : Signature of PW.1 Ex.P.2[b] : Signature of PW.2 Ex.P.3 : Seizure mahazar Ex.P.3[a] : Signature of PW.3 PROPERTY MARKED ON BEHALF OF THE PROSECUTION :
M.O.1 & 2 : Two pair of ear studs M.O.3 : Golden Bangle LIST OF WITNESSES EXAMINED FOR THE ACCUSED : NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED : NIL 22 C.C.No.16391/2018 .......................................................................................
Dictated on : 27.01.2023
Transcribed on : 28.01.2023
checked on : 30.01.2023
Signed on : 31.01.2023
[TATTANDA DAMAYANTI SOMAYYA]
XLI ADDL.METROPOLITAN MAGISTRATE
BENGALURU
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