Bangalore District Court
State By Chandra Layout Police vs A1- Syed Wasim on 18 October, 2016
IN THE COURT OF LXIII ADDL., CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY.
(CCH-64)
DATED THIS 18th DAY OF OCTOBER 2016.
PRESENT
SRI.JOSHI VENKATESH, B.A.LL.B,(Spl),
LXIII Addl., City Civil & Sessions Judge,
Bangalore.
SC.No.851/2016
Complainant : State by Chandra Layout Police
Station, Bangalore.
(By Public Prosecutor)
/Vs/
Accused : A1- Syed Wasim,
S/o Syed Mehaboob,
Aged 23 years,
R/at Hussain Pai's House,
5th Cross, Near Mecca Masjid,
Gangondanahalli,
Bangalore - 39.
A2 - Imran Pasha, S/o Babu Pasha,
Aged 27 years,
R/at No.28, 11th Cross,
Opp. to K.K.Function Hall,
Hosahalli Main Road,
Padarayanapura, Bangalore.
2 SC.No.851/2016
A3 - Mohammed Ajar,
S/o Mohammed Akbar,
Aged 26 years,
R/at 34/7, 2nd Cross,
Ajadnagar, Mysore Road,
Bangalore.
A4 - Anand @ Nari,
S/o Gangadhar,
Aged 24 years,
R/at Sugunamma's House,
7th Cross, Shafi's House Road,
B.C.C., Layout, Chandralayout
Bangalore.
(By Sri. M.V.Murthy, Adv., for A1 to A4)
1. Date of commission of offence : 20.02.2016
2. Date of report of offence : 20.02.2016
3. Arrest of Accused No.1 to 3 : 20.02.2016
Arrest of Accused No.4 : 12.03.2016
4. Name of the complainant : Sri. Ravikumar.C., P.S.I.,
5. Date of commencement of trial: 01.09.2016
6. Date of closing of evidence : 13.10.2016
7. Offences complained of : U/Sec.399 & 402 IPC
8. Opinion of the Judge : Accused No.1 to 4 found
Not guilty
****
3 SC.No.851/2016
JUDGMENT
1. Police Sub-Inspector of Chandra layout Police Station, filed this charge sheet against the accused persons alleging that they have committed the offences punishable U/Secs.399 and 402 of IPC.
2. Brief facts of the case of the prosecution are that, on 19.02.2016 P.S.I., Ravikumar was on patrolling duty at 11.00 p.m. in the night within the limits of his police station on his motor cycle bearing No.KA-02-G-1331. At 2.45 he received credible information regarding assembling of accused persons near Nayandahalli Railway Gate Parallel Road, with dead weapons in their hands with an intention to commit an offence of dacoity. Then he secured his staff and panchas and informed them regarding the information received. Then he went to the spot of offence and watched the accused persons, confirmed the message received and then raided on the accused persons. Accused No.1 to 3 were apprehended on the spot and accused No.4 to 6 ran away from the spot. Then PSI recovered deadly weapons from the possession of accused No.1 to 3 on the spot under panchanama, then returned to the police station and 4 SC.No.851/2016 submitted report to S.H.O. along with the seized materials and accused persons. S.H.O., registered the case against the accused persons and then handed over investigation to complainant/PW.1. PW.1 continued the investigation and arrested accused persons. Conducted further investigation. On 12.03.2016 accused No.4 Anand was arrested and produced before PW.1. PW.1 arrested him and recorded his voluntary statement. On the basis of voluntary statement IO recovered MO.4 under Ex.P.5 panchanama. Then after completion of the investigation filed charge sheet against accused persons No.1 to 6 showing accused No.5 and 6 as absconding.
3. After receipt of the charge sheet, VIII A.C.M.M., Bangalore registered case against accused No.1 to 4 in C.C.No.9861/2016. Accused No.1 to 3 released on bail and accused No.4 was in judicial custody. After furnishing the copy of the charge sheet to accused No.1 to 4, committed the case to the Court of Sessions, for trial as the offences alleged against accused No.1 to 4 are exclusively triable by the court of Sessions.
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4. After receipt of the case papers from VIII A.C.M.M., Bangalore, Hon'ble Prl.Sessions Judge, Bangalore registered the case against accused No.1 to 4 as SC.No.851/2016 and the same is made over to this court for disposal in accordance with law.
5. After receipt of the case, this court issued summons to accused No.1 to 3 and issued direction to the jail authorities to produce accused No.4 before the court. Accused No.1 to 4 appeared before this Court. Accused No.1 to 3 are released on bail. Accused No.4 is in J.C.
6. After hearing accused No.1 to 4 and the prosecution, Charge framed, read over and explained to accused No.1 to 4 in the language known to them. After knowing the same, accused No.1 to 4 not pleaded guilty and claims to be tried.
7. In order to prove the case, prosecution examined in all PWs.1 to 5 and got marked Ex.P.1 to P.5 documents and Mos.1 to 4 were marked. Prosecution given up the evidence of CWs.3 to 7. Even though NBW was issued to CWs.10, 12 and 13 they returned un-executed without proper reasons. Since accused No.4 is in judicial custody from the date of his arrest, prayer of the prosecution to re-issue NBW to CWs.10, 12 and 13 is rejected and taken prosecution evidence as closed.
6 SC.No.851/2016
8. After closure of the prosecution evidence, 313 Cr.P.C., statement of accused No.1 to 4 were recorded. Accused No.1 to 4 denied the incriminating evidence appearing against them in the prosecution case and submits no defense evidence.
9. Heard the arguments and perused the records before the court .
10. The points arise for my consideration are :
Point No.1: Whether the prosecution proves beyond all reasonable doubt that on 20.02.2016 at about 3.00 a.m. accused No.1 to 4 along with other accused persons assembled themselves with deadly weapons near Nayandahalli Railway Gate Parallel Road and preparing to commit an offence of dacoity thereby committed an offence pun. U/Sec.399 of IPC ?
Point No.2: Whether the prosecution further proves beyond all reasonable doubt that on the above said date, time and place of offence accused No.1 to 4 and other accused persons assembled for the purpose of committing offence of dacoity and thereby committed the offence pun. U/Sec.402 of IPC?
< Point No.2: What Order ?
11. 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:7 SC.No.851/2016
REASONS
12. Point No.1 & 2 : It is the specific case of the prosecution that, on 19.02.2016 P.S.I., Ravikumar was on patrolling duty at 11.00 p.m. in the night within the limits of his police station on his motor cycle bearing No.KA-02-G-1331 at 2.45 he received credible information regarding assembling of accused persons near Nayandahalli Railway Gate Parallel Road, with dead weapons in their hands with an intention to commit an offence of dacoity on the persons moving on the public road. Then he secured his staff and panchas and informed them regarding the information received. Then he went to the spot of offence and watched the accused persons, confirmed the message received and then raided on the accused persons. Accused No.1 to 3 were apprehended on the spot and accused No.4 to 6 ran away from the spot. Then he recovered deadly weapons from the possession of accused No.1 to 3 on the spot under panchanama, then returned to the police station and submitted report to S.H.O. along with the seized materials and accused persons. S.H.O., registered the case against the accused persons, then handed over investigation to 8 SC.No.851/2016 PW.1. PW.1 continued the investigation and arrested accused persons. Then on 12.03.2016 accused No.4 was arrested and produced before PW.1. PW.1 arrested him and recorded his voluntary statement. On the basis of voluntary statement he recovered MO.4 under Ex.P.5 panchanama. Then after completion of the investigation filed charge sheet against accused persons No.1 to 6 showing accused No.5 and 6 as absconding.
13. It is well settled principle that the prosecution has to prove its case against accused No.1 to 4 beyond all reasonable doubt. Whenever doubt arises in the mind of the court about the case of the prosecution, then accused No.1 to 4 are very well entitled for claiming the benefit of the doubt in their favour. It is also well settled principle that accused No.1 to 4 are to be treated as innocent till the guilt against them is proved. Let us see whether the prosecution is successful in proving its case?
14. In this case prosecution examined PW.1 to PW.5 and exhibited Ex.P.1 to P.5 documents and MOs.1 to 4 is marked. PW.1 is P.S.I., who conducted, investigation and filed charge sheet against accused persons. PW.2 and PW.3 9 SC.No.851/2016 are panchas for Ex.P.1 panchanama and recovery of Mos.1 to 3. PW.4 is pancha for Ex.P.5 panchanama. Another pancha is not examined. PW.5 is the police official who accompanied PW.1 for raid and recovered Mos.1 to 3 under Ex.P.1 panchanama. Ex.P.1 is spot panchanama, Ex.P.2 is report of PW.1, Ex.P.3 is report of A.S.I., Kalegowda regarding arrest of accused no.4 Anand. Ex.P.4 is portion of voluntary statement of accused No.4 and Ex.P.5 is seizure panchanama.
15. PW.1 stated before the Court that, on 19.02.2016 when he was on patrolling duty along with his staff received information regarding assembling of accused persons with deadly weapons to commit an offence of dacoity near Nayandahalli Railway Parallel Road at 2.45 a.m. Immediately he secured his staff and panchas. Then went to the spot, watched and conducted raid on accused persons. Accused No.1 to 3 were apprehended on the spot along with Mos.1 to 3. Accused No.4 to 6 ran away from the spot. Mos.1 to 3 are recovered under Ex.P.1 panchanama in presence of panchas and then returned to the police station and handed over panchanama, accused 10 SC.No.851/2016 persons and submitted report to S.H.O. After registering the case by S.H.O., PW.1 again took up the investigation and conducted further investigation and arrested accused No.4, recovered MO.4 at the instance of accused No.4 under Ex.P.5 panchanama. Then submitted charge sheet showing accused No.5 and 6 as absconding.
16. PW.5 is A.S.I., who accompanied PW.1 for raid and also seizure of Mos.1 to 3 under Ex.P.1 panchanama. PW.5 also stated before the Court that, he accompanied PW.1 in conducting raid. Accused No.1 to 3 were caught on the spot and Mos.1 to 3 were recovered under panchanama. Evidence given by PW.3 is similar to the evidence of PW.1. PW.1 and PW.5 are police officials. Suggestion made by advocate for accused No.1 to 4 is denied by PW.1 & PW.5. Evidence of PW.1 & PW.5 is to be corroborated by evidence of independent witnesses and it is to free from doubt. Then only the said evidence given by PW.1 and PW.5 can be taken into consideration to connect the guilt of the accused persons. In this case panchas for Ex.P.1 panchanama through which prosecution asserting that they seized MO 1 to 3 from accused persons no.1 o 3 are examined as PW.2 11 SC.No.851/2016 and PW.3. They turned hostile and not supported the case of the prosecution. PW.4 is another pancha for Ex.P.5 panchanama through which prosecution is asserting that Mo.4 is recovered from accused No.4 at his instance. PW.4 also turned hostile and not supported the case of the prosecution. Another pancha for Ex.P.5 is not examined before the Court. Even though PW.2, PW.3 and PW.4 are treated as hostile and cross examined by the prosecution, prosecution fails to prove before the Court that, PW.1 and PW.5 apprehended accused No.1 to 3 on the spot and recovered MOs.1 to 3 under Ex.P.1 panchanama in their presence. Prosecution also fails to prove before the Court that, as per the voluntary statement given by accused No.4, in the presence of PW.4, PW.1 conducted Ex.P.5 panchanama and recovered MO.4 on the spot shown by accused No.4. PW.2 to PW.4 are not only panchas, but they are independent witnesses for recovery of MOs.1 to 4. When recovery of Mos.1 to 4 is not proved, then the evidence given by PW.1 and PW.5 is not fit to be taken into consideration to connect the guilt of the accused persons as it is not free from doubt. Hence doubt arises in the mind of 12 SC.No.851/2016 the Court about the evidence given by PW.1 and 5. Whenever doubt arises in the mind of the Court about the evidence given by PW.1 and PW.5 or any of the prosecution witnesses, then the accused persons are very well entitled to claim the said benefit of doubt in their favour. As I have already stated, recovery of Mos.1 to 4 is not proved by the prosecution. When it is so, there is no hesitation in coming to the conclusion that evidence of PW.1 and 5 is not sufficient to connect the guilt of the accused persons as alleged in the charge sheet.
17. Further, as law laid down in Agar -vs- State of Rajasthan, reported in 2003 Crl.L.J., 1997, it is a settled law to constitute an offence U/Sec.399, some act amounting to preparation must be proved. But, in the present case, as looking into the evidence of PW.1 and 5 the prosecution has not proved any act amounting to preparation for committing dacoity by the A-1 to 3. Further, as law laid down in Joseph -vs- State of Kerala, AIR 1993, SCW, 2900, the essential theme is that the prosecution must show that there were persons who had conceived the design of committing dacoity. But in the 13 SC.No.851/2016 present case, as looking into the evidence of PW.1 and 5 there is no cogent and material evidence to believe the case of the prosecution that these accused No.1 to 3 have conceived the design for committing dacoity. If really the accused No.1 to 3 designing for committing dacoity, there should be corroborative evidence from the witnesses. But, looking into their testimonies, there is no such evidence.
18. So also, as law laid down in Chamariya Jadhav -vs-State of Bihar, reported in AIR 1979 SC.1412, it is held that mere presence did not by itself prove that they had assembled for the purpose of committing dacoity or making preparation to accomplish that object. So also, in the present case. As looking into the evidence of PW.1 and 5 even assuming that the accused No.1 to 4 assembled in the place alleged in the charge sheet that itself is not sufficient to believe that accused No.1 to 4 assembled for committing dacoity. On the other hand, there is no cogent evidence to believe that the accused No.1 to 4 assembled for making preparation to commit dacoity. Therefore, the prosecution has miserably failed to prove the alleged guilt against the accused persons as alleged.
14 SC.No.851/2016
19. Looking into any angle prosecution utterly failed to prove its case beyond all reasonable doubt against the accused persons. Whenever doubt arises in the mind of the Court about the case of the prosecution, then accused persons are very well entitled to claim the said benefit of doubt in their favour. Accordingly, by awarding benefit of doubt in favour of the accused No.1 to 4 this court comes to the conclusion that prosecution fails to prove its case as alleged. Accordingly, point Nos.1 & 2 are answered in the Negative.
20. Point No.3: In view of the discussion made above and the findings given on point Nos.1, I proceed to pass the following:
ORDER
1. Acting U/sec.235 (1) Cr.P.C, accused No.1 to 4 are acquitted for the offences punishable U/Secs.399 and 402 of IPC.
2. Bail bonds of accused No.1 to 3 and that of their sureties stands cancelled.
3. Accused No.4 is set at liberty. Issue intimation to the jail authorities to release accused No.4 forthwith from this case only if he is not required in any other case.15 SC.No.851/2016
4. MO.1 to 4 are ordered to preserved till the disposal of the case against absconding accused No.5 and 6.
5. Fresh bond already executed by Accused No.1 to 3 as required U/Sec.437(A) Cr.P.C. for their presence before higher court in case of any appeal is preferred by prosecution against this judgment of acquittal, said bail bonds shall be in force for a period of 6 months from the date of this judgment.
6. Accused No.4 is hereby directed to execute bail bonds for Rs.50,000/- as required U/Sec.437(A) Cr.P.C. for his presence before higher court in case of any appeal is preferred by prosecution against this judgment of acquittal, said bail bonds shall be in force for a period of 6 months from the date of this judgment (Dictated to the Stenographer, the transcript revised by me and then pronounced in the open court on this the 18th day of October 2016).
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore City.
16 SC.No.851/2016ANNEXURE
1. List of witnesses examined for the prosecution:
PW.1 - Ravikumar.C., S/o Chikkamadaiah, 34 yrs, PW.2 - Nagaraju, S/o Ramachandraiah, 33 yrs, PW.3 - Harish, S/o Jayaram, 31 yrs, PW.4 - Jagadish, S/o Raju, 27 yrs, PW.5 - Ramachandraiah, S/o Venkatappa, 55 yrs.
2. List of witnesses examined for the accused:
- NIL-
3. List of documents marked for the prosecution:
Ex.P.1 - Spot mahazar
Ex.P.1(a) - Signature of PW.1
Ex.P.1(b) - Signature of PW.2
Ex.P.1(c) - Signature of PW.3
Ex.P.2 - Report of PW.1
Ex.P.2(a) - Signature of PW.1
Ex.P.3 - Report of Kalegowda
Ex.P.3(a) - Signature of PW.1
Ex.P.4 - Voluntary statement of A4
Ex.P.5 - Seizure mahazar
Ex.P.5(a) - Signature of PW.1
Ex.P.5(b) - Signature of PW.4.
4. List of documents marked for the Accused: - NIL -
5. Material object marked in this case:
MO.1 - Machu
MO.2 - Button Knife
MO.3 - Wooden club
MO.4 - Knife.
(JOSHI VENKATESH),
LXIII Addl., City Civil & Sessions
Judge, Bangalore City.
17 SC.No.851/2016