Bangalore District Court
Shaik Tanveer Alam vs Mohammed Shareef Alias Ansar on 9 September, 2024
KABC030402392017
Presented on : 13-06-2017
Registered on : 13-06-2017
Decided on : 09-09-2024
Duration : 7 years, 2 months, 26 days
IN THE COURT OF THE VIII ADDITIONAL CHIEF
JUDICIAL MAGISTRATE, BENGALURU CITY
Present: Smt. Deepa.V., B.A.L. LL B.
VIII ACJM, Bengaluru City.
Date: this the 09th Day of September, 2024
C. C. No.16039/2017
State by J.C. Nagara Police Station,
Bengaluru. ... Complainant
(Represented by Sri Vishwanath, Senior APP)
Versus
Sri Mohammed Shariff @ Ansar,
Aged about 47 years,
S/o Late Sri. Mohammed Noorulla Khan,
R/at No.274, Kempapura,
Dasarahalli, Behind IBM,
Amruthahalli Police Station Limits,
Bengaluru. ... Accused
(Represented by Sri Brijesh Rajput Advocate)
KABC030402392017 CC 16039/2017
1. Date of commission of 05-02-017 in between to
offence 11.45 a.m. to 4.00 p.m.
2. Name of Complainant Sri Sheik Tanveer Alam
3. Offences complained of Under Section 454, 380
IPC
4. Charge Pleaded not guilty
5. Final Order Accused is not found
guilty
6. Date of order 09-09-2024
JUDGMENT
The Police Inspector of J.C.Nagara Police Station submitted charge sheet against accused for the offences punishable under Section 454, 380 of Indian Penal Code.
2. Prosecution Case: On 05-02-2017 in between 11.45 a.m. to 4.00 p.m, the accused has trespassed into the house No.23 of CW1 Sheik Tanveer Alam situated at Reading Room Street within the limits of J.C.Nagara Police Station by opened the door through window with an intention to commit theft by house lurking and committed theft of 2 2 KABC030402392017 CC 16039/2017 camera and one Lenova Laptop worth ₹46,000/- kept in the almirah of house.
3. First Information Report: Upon the receipt of first information from CW1/PW1, CW9/PW5, ASI of J.C. Nagara Police Station Sri Aanjani registered a Crime No.18/2017 against the accused for the offence punishable under Section 380 of IPC, prepared FIR as per Ex.P4 and sent the same to the Court and to his superior officers, conducted the spot mahazar as per Ex.P3 on 05-02-2017 at 8 p.m. to 8.45 p.m. and handed over the case papers to CW10.
4. Investigation: During the course of investigation, on the receipt of case papers from PW5, CW10/PW4/IO Sri Girish Nayak recorded the voluntary statement of accused, seized the properties through seizure mahazar as per Ex.P2 in Crime No. 63/2017 and other related cases registered by different police stations and recorded the statements of witnesses. After completion of investigation, he submitted the charge sheet against the accused for the offences punishable under Section 454, 380 of IPC.
5. On receipt of charge sheet, this Court took cognizance of offences alleged against the accused.
3 KABC030402392017 CC 16039/20176. The accused was enlarged on bail by the order dated 18-07-2018 and 08-02-2022.
7. Copies of prosecution papers as required U/Sec.207 of Cr.P.C have been furnished to the accused.
8. Charge: After hearing learned Sr.APP and counsel for accused, charge for the offences punishable U/Sec.454, 380 of Indian Penal Code has been framed, read over and explained to the accused in the language known to him, who, in turn, pleaded not guilty and claimed to be tried.
9. Prosecution Evidence: The prosecution in order to establish its case cited 10 witnesses however examined 5 witnesses and exhibited 4 documents and closed their side. The examination of CW2 and 3 were given up despite due execution of proclamation by the order dated 11-09-2023. The examination of CW6 and CW8 were given up by the order dated 11-09-2023 on account of examination of CW7 as he deposes about the same evidence of CW6 and CW8. The examination of CW5 was dropped up by the order dated 04-01-2024 as prosecution unable to secure his presence for evidence.
4 KABC030402392017 CC 16039/201710. Accused statement as per section 313 of CrPC: After completion of evidence of prosecution, the accused was examined as per section 313 statement of Cr.P.C, wherein he denied all incriminating evidence appearing in the statement of prosecution witnesses and did not lead any rebuttal evidence.
11. Heard the arguments. Perused materials on the record.
12. The following point are arises for consideration is as follows;
1. Whether the prosecution proved beyond all reasonable doubt that on 05-02-2017 in between 11.45 a.m. to 4.00 p.m, the accused has trespassed into the house No.23 of CW1 Sheik Tanveer Alam situated at Reading Room Street within the limits of J.C.Nagara Police Station by opened the door through window with an intention to commit theft by house lurking thereby resulted in commission of an offence punishable under Section 454 of IPC?
5 KABC030402392017 CC 16039/20172. Whether the prosecution proved beyond all reasonable doubt that on above said date, place and time the accused lurking house-trespassed into the house of CW1 and committed theft of 2 Camera and one Lenovo Laptop worth ₹46,000/- kept in the almirah of house thereby resulted in commission of an offence punishable under Section 380 of IPC?
3. What order?
13. The court's findings on the above points are as under:
Point No.1-2 : In the Negative
Point No.3 : As per final order
REASONS
14. Point No.1 and 2: These points are taken up together for the purpose of common discussion in order to avoid repetition of facts as they form the same part of transaction. In support of prosecution case as narrated in paragraph 2 and the point for 6 KABC030402392017 CC 16039/2017 consideration in paragraph 12 of this judgment, the prosecution has examined the following witnesses, which are as follows i. CW4/PW1, Sri Abrahar, seizure mahazar witness identified his signature on seizure mahazar as Ex.P1(a) and deposed that six years ago he put his signature on the said document at Hotel Shobha Residency. The said seizure mahazar was in respect of crime No.63/2027, wherein the police have seized the item No.1 to 19 properties from the room where accused was staying.
ii. CW7 Sri Mehaboob Saab, the then PC/HC of J.C.Nagar PS examined as PW2 deposed that he along with CW6, CW8 apprehended the accused from Mubarak Mohalla at 5.50 a.m. and produced him before SHO with report.
iii. CW1 Sri Sheik Tanveer Alam being informant examined as PW3 deposed that on 05-02-2017 at 11.45 a.m, he along with his family went to his sister's house at H.B.R. layout and returned on the same day at 4 p.m. and noticed that someone committed theft of one gold necklace, two Camera and one Lenovo laptop and Rs.46,000/- cash kept in the almirah from his house. Then he lodged the complaint with J. C. Nagara PS as per Ex.P2, police conducted the spot mahazar as per Ex.P3 at 8 pm and obtained his signature as per Ex.P3(a). In the 7 KABC030402392017 CC 16039/2017 month of April 2017, the police called him and shown laptop which he was released in his favour. The learned Sr.APP has cross examined this witness by treating him as partial hostile witness, where he denied that on 05-04-2017 police showed the accused in station and told him that he is the one who committed theft in his house iv. CW10/PW4 Sri Girish Nayak, the then PI of J.C.Nagara Police Station deposed that on receipt of case papers from CW9, he recorded the voluntary statement of the accused, seized the properties through Ex.P2 seizure mahazar and recorded the statements of requisite witnesses. After completion of investigation, he submitted charge sheet against accused for the alleged offences. He identified photo as Ex.P3.
v. CW9/PW5 Sri Anjani, the then ASI of J.C.Nagara PS deposed that on receipt of complaint from CW1 as per Ex.P2, registered the FIR No.18/2017 as Ex.P4, conducted spot mahazar on 05-02-2017 at 8 pm to 8.45 pm as per Ex.P3 in the presence of CW2 and CW3 and handed over the case papers to CW10 for further investigation.
15. Let us first discuss the relevant provisions of law for the purpose of the present case. The essential ingredients to prove an offence under Section 454 of Indian Penal Code are:-
8 KABC030402392017 CC 16039/20171. The accused had committed lurking house trespass or house breaking.
2. In order to commit any offence punishable with imprisonment.
3. There should be an intention to commit theft.
13. The offence of House Breaking has been defined under Section 445 of IPC.
A person is said to have committed house breaking if he affects his entrance into the house or any part thereof or affect his exist in any of the six ways described in the said section. The six ways given in the said Section are as follows:-
1. If he enters or quits through a passage by himself or by any abettor to commit house trespass
2. If he enters or quits through any passage not intended by any person other than himself or the abettor for human entrance;
or through any passage to which he had obtained by scaling or climbing over any wall or building.
3. If he enters or quits through any passage which he or any abettor has opened which passage is not intended by the occupier of the house to be opened.
9 KABC030402392017 CC 16039/20174. If he enters or quits by opening any lock to commit house trespass.
5. If he effects his entrance by using criminal force or committing assault or any by threating a person with assault.
6. If he enters or quits by any passage which he knows to have been fastened against such entrance or departure and he had unfastened the same.
16. Section 380 of IPC prescribes punishment for theft in a dwelling house. The offence theft is defined under Section 378 IPC and the essential ingredients to constitute an offence under Section 380 IPC are as follows:-
1. Intention to take dishonestly
2. The property shall be movable property.
3. The property shall be taken out from the possession of any person without his consent.
4. There should be some moving of the said property to such taking.
5. The theft should have been committed in a dwelling house or place used for safe custody of property.
17. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent 10 KABC030402392017 CC 16039/2017 and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution has to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused.
Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal
18. It is the case of prosecution that the CW1/PW4 lodged a complaint on 05/02/2017 which is extracted adverbatim as under
ದಿನಾಂಕ ೦೫-೦೨-೨೦೧೭ ಬೆಳೆಗೆ ೧೧. ೪೫ ಗಂಟೆಗೆ ನನ್ನ ಕುಟುಂಬ ಸಮೇತ ನನ್ನ ತಂಗಿಯ ಮನೆಗೆ HBR ಲೇಔಟ್ಗೆ ಹೋಗಿದ್ದು ನಂತರ ನನ್ನ ಅತ್ತೆಯ ಮನೆ ಬ್ರಾಡ್ ವೇ ಶಿವಾಜಿನಗರಕ್ಕೆ ಹೋಗಿ ಅಲ್ಲಿ ಊಟ ಮುಗಿಸಿಕೊಂಡು ನನ್ನ ಹೆಂಡ್ತಿಯನ್ನು ಅಲ್ಲಿಯೇ ಬಿಟ್ಟು ನಾನು ವಾಪಸ ಸುಮಾರು ೪.೦೦ಪಿಎಂ ಪಿಎಂ ಗಂಟೆಗೆ ನಾನು ಮನೆಗೆ ಬಂದಿರುತ್ತೇನೆ. ಬಂದು ನೋಡಿದಾಗ ಬಾಗಲು ತೆರೆದಿದ್ದು ಕಂಡು ಬಂದಿರುತ್ತೇನೆ. ನಂತರ ಮನೆಯ ಒಳಗೆ ಬಂದು ಕಬಾಡರ್ನಲ್ಲಿದ್ದ ೨ ಕ್ಯಾಮೆರಾಗಳು ಬಂದು ಲಿನೋವಾ (LENOVA) ಕಂಪನಿಯ ಲ್ಯಾಪ್ಟಾಪ್, ಸ್ವಲ್ಪ ಹಣ ಕಳ್ಳರು ಕಿಟಿಕಿಯ ಮುಖಾಂತರ ಕೈ ಹಾಕಿ ಬಾಗಲು ತೆಗದು ಒಳನುಗ್ಗಿ ಕಳ್ಳತನಮಾಡಿಕೊಂಡು ಹೋಗಿರುತ್ತಾರೆ. ಅಂದಾಜು ಬೆಲೆ ೪೬,೦೦೦/-11 KABC030402392017 CC 16039/2017
ರೂ ಆಗಿರುತ್ತದೆ. ಕಳ್ಳರನ್ನು ಹಿಡಿದು ಮುಂದಿನ ಕ್ರಮ ತೆಗದುಕೊಳ್ಳಬೇಕಾಗಿ ತಮ್ಮಲ್ಲಿ ವಿನಂತಿ .
Based upon this complaint, a crime came to be registered in crime No. 18/2017 for the offences punishable under section 380 of IPC against unknown person as per Ex.P2 and thereafter the spot mahazar was drawn at No.23, Reading Room street, J.C. Nagara, Bangalore from 8 pm till 8.45 pm in the presence of CW2 namely Sri Gousepheer S/o Abudal Khan and CW3 namely Sri Abdul Sattar S/o L.Abdul Rasheed as per Ex.P3
19. Thereafter, PI of JC Nagara Police station deputed R. Nagaraj HC 674, HC 8903 and PC 7425 in crime No. 63/2017 for the offences punishable under section 454, 457, 380 of IPC for tracing the accused and provided some guidance to trace the accused based upon the compliant of One Sri Sardar Pasha. Based upon which, they were patrolling at Marappa Garden, Chinnappa Garden, Krishnamma Garden and around 5.50 am, one person was coming from opposite direction by dragging his leg and on suspect of committing the theft, he was produced before the SHO of JC Nagara Police station at 6.15 am however what time, IO/PW4 had deputed them for tracing the accused was not explained/mentioned in his report. It ought to be seen that His voluntary statement was recorded on 05/04/2017 and obtained his thumb impression. Based upon his voluntary statement, 12 KABC030402392017 CC 16039/2017 CW10/PW4/IO proceeded to the Shubha Residency Room No.105, 1st cross, Cotton Pet, Bangalore as per Ex.P1 in the presence of CW4 Abrahar S/o Apaabatt and CW5 Sri Mohammed Husain between 1.30 pm till 2.30 pm and seized the following properties
೧. ಒಂದು ಚಿನ್ನದ ನೆಕ್ಲೆಸ್ ತೂ ೧೮. ೮೩೦ ml grm
೨. ಒಂದು ಚಿನ್ನದ ಲಚ್ಚಾ ತೂ ೧೬. ೬೫೦ grm
೩. ಒಂದು ಚಿನ್ನದ ಡಿಸೈನ್ ಚೈನ್ ತೂ ೧೩. ೬೨೦ grm
೪. ಒಂದು ಜೊತೆ ಚಿನ್ನದ ಬಳೆಗಳು ತೂ ೧೨. ೩೪೦ grm
೫. ಒಂದು ಚಿನ್ನದ ಡಾಲರ್ಸ್ವುಳ್ಳ ಚೈನ್ ತೂ ೭. ೫೬೦ grm
೬. ಒಂದು ಜೊತೆ ಚಿನಚಿನ್ನದ ವಾಲೆ ೪೧೩. ೬೨೦ grm
೭. ಒಂದು ಜೊತೆ ಚಿನ್ನದ ಕಿವಯಹ್ಯಾಂಗಿಂಗ್ಸ್ ೪-೨೭೦ grm
೮. ಒಂದು ಚಿನ್ನದ ಬೆರಳು ಉಂಗರ ತೂ ೧. ೭೧೦ grm
೯. ಒಂದು ಛೋಟೆ ಚಿನ್ನದ ಕಿವಿಹ್ಯಾಂಗಿಂಗ್ಸ್ ೩.೯೨೦ grm
೧೦. ಎರಡು ಚಿನ್ನದ ನೆಕ್ಲೆಸ್ ೩೭. ೨೦ grm
೧೧. ಒಂದು ಚಿನ್ನದ ನೆಟ್ಟಿಚೂಡಿ ೧೪. ೯೦೦ grm
೧೨. ಎರಡು ಚಿನ್ನದ ಲೇಪಿಸ್ ಬೆರಳುಉಂಗರ ೩.೬೦೦ grms
೧೩. ಒಂದು ಒಂಪಿ ಚಿನ್ನದ ಕಿವಿಯ ತಾಪ್ಸ್ ೩. ೧೦೦ grams
೧೪. ಒಂದು ಚಿನ್ನದ ಮೂಕಿತಿ ೦-೫೦೦ ml grm
೧೫. ಒಂದು ಚಿನ್ನದ ಕಾಯಿನ್ ೮-೩೦೦ grm
೧೬. ಒಂದು ಬೆಳ್ಳಿ ಮೂಕಿತಿ ೦-೫೦೦ ml grm
೧೭. ನಗದು ಹಣ ೧೮೦೦೦ (೨೦೦೦ x ೧, ೫೦೦x ೨೫, ೧೦೦ x ೨೬, ೫೦ x ೧೬, ೨೦x ೩, ೧೦ x ೪ ಒಟ್ಟು ೧೮,೦೦೦ ರೂಪಯಿಗಳು)
೧೮. ಒಂದು ಲೆನೋವಾ ಕಂಪನಿ ಹೆಸರಿನ ಲ್ಯಾಪ್ಟಾಪ್
೧೯. ನಗದು ಹಣ ಹತ್ತು ಸಾವಿರ (೧೦,೦೦೦) ೨೦೦೦ x ೫ ರೂಪಾಯಿಗಳು 13 KABC030402392017 CC 16039/2017 However, this court could not understand how the PW4 could have identified the jewels, cash and lenova were involved with Crime No.58/2017 under section 454, 457, 380 IPC registered in JC Nagara Police Station, Crime No. 63/2017 under section 454, 457, 380 IPC registered in JC Nagara Police Station, Crime No. 18/2017 under section 380 IPC registered in JC Nagara Police Station and Crime No. 55/2017 under section 454, 380 IPC registered in Hebbal Police Station as the victims/informants were not available at the time of seizure for identification of their properties which raises the doubt about the seizure.
20. Added to which, the PW4/IO has not seized any bill /receipt from Shobha Residency, Cottonpet, Bangalore that the accused was staying in the said Shobha Residency on 05/04/2017.
21. There is no eye witness who had seen the accused has opened the door of the house from window or committing the alleged theft. There are no photographs of the spot namely house of the PW3/CW1 and Shobha Residency taken by the CW10/PW4/IO particularly the distance between the door and the window of their house.
14 KABC030402392017 CC 16039/201722. It appears from the evidence of PW4/IO that ಸ್ಥಳದಲ್ಲಿ ಆರೋಪಿಗೆ ಸಂಬಂಧಪಟ್ಟಂತೆ ಬೆರಳು ಮುದ್ರೆಯನ್ನು ಪಡೆದುಕೊಂಡಿರುವುದಿಲ್ಲ ಕಾರಣ ಬೆರಳು ಮುದ್ರೆ ಸಿಕ್ಕಿರುವುದಿಲ್ಲ.
Such being the case, how the PW4 could connect the accused to the seizure without production of stay of accused in the Shobha Residency.
23. Now the question before the court is whether the accused was found in possession of stolen Lenovo laptap and two cameras while. It appears from the evidence of PW4 /IO that ನನ್ನ ತನಿಖಾ ಕಾಲದಲ್ಲಿ ಚಾಸಾ ೧ ರವರಿಂದ ಮಾಲುಗಳಿಗೆ ಸಂಬಂದಬಟ್ಟಂತೆ ಬಿಲ್ಲನ್ನು ಪಡೆದುರುವುದಿಲ್ಲ ಎಂದರೆ ಸರಿ.
Thus, it emerges from cross examination that IO has not seized the original bill of Lenovo laptap belongs to the PW3 however PW4 has not investigated about the status of two cameras which was alleged to be stolen by the accused.
24. It appears from the evidence of PW4 that ಸ್ಥಳ ಪಂಚನಾಮೆಗೆ ಘಟನಾ ಸ್ಥಳದಲ್ಲಿ ಅಕ್ಕ್ಕಪಕ್ಕದ ನಿವಾಸಿಗಳನ್ನು ಪಂಚಾರಗಿ ಕರೆದಿಲ್ಲ ಎಂದರೆ ಸರಿ. ಕಳ್ಳತನವಾದ ಬಗ್ಗೆ 15 KABC030402392017 CC 16039/2017 ಅಕ್ಕಪಕ್ಕದ ಮನೆಯವರನ್ನು ವಿಚಾರಣೆ ಮಾಡಿದ್ದು ಅದರ ಬಗ್ಗೆ ಸಿಡಿಯಲ್ಲಿ ಉಲ್ಲೇಖಿಸಿದ್ದು ಅವರು ಯಾವುದೇ ಮಾಹಿತಿ ಕೊಟ್ಟಿರುವುದಿಲ್ಲ.
The best witnesses would be immediate neighbours to speak about the theft however the PW4 did not make any attempt to call the local inhabitants for the spot mahazar for the alleged theft taken place on 05/02/2017. It has been held in the case of Pradeep Narayana Vs State of Maharastra reported in AIR 1995 Supreme Court 1930 wherein it was held that failure of police to join witness from locality during search creates doubt about fairness of the investigation, benefit of which has to go to the accused.
25. It ought to be seen that they seized the stolen Item No.1 to 19 as per Ex.P1 but neither of the manager or employee of Shobha Residency were made as a witness to corroborate that the alleged seizure is from Shobha Residency when no bill of stay of accused was produced.
26. From the overall testimony of the witnesses, it is clear that the IO has not joined any local inhabitants at the time of spot mahazar or seizure mahazar whilst completing the formalities despite 16 KABC030402392017 CC 16039/2017 availability of persons. Hence, the very recovery of the lenova laptop from the accused is doubtful.
27. In view of the above discussion, the court of the view that prosecution has failed to prove that the accused had committed house breaking on 05.02.2017 at Reading Room Street within the jurisdiction of J.C.Nagara Police Station from the house of PW3. Prosecution has further failed to prove beyond reasonable doubt that the accused was found in possession of stolen Lenova laptop. Hence, the charges against the accused has not been proved thereby this court answer the above point No.1 and 2 in the negative.
28. Point No.3:- For the foregoing discussion and the findings to the above point No.1 and 2, this court proceeds to pass the following:
ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.454, 380 of IPC.
(ii) Accused is set at liberty.17 KABC030402392017 CC 16039/2017
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
(Dictated to the stenographer, typed by steno, verified and corrected by me, then the judgment pronounced by me in the open court, on this the 9th day of September, 2024) (Deepa.V.), VIII Addl. Chief Judicial Magistrate, Bengaluru City.
ANNEXURE Witnesses examined for the prosecution :
PW1 : Sri Abrahar PW2 : Sri Mehaboob Saab PW3 : Sri Sheik Tanveer Alam PW4 : Sri Girish Nayak PW5 : Sri Anjani
Documents marked on behalf of the prosecution:
Ex.P1 : Seizure Mahazar Ex.P2 : Complaint Ex.P3 : Spot Mahazar Ex.P4 : F.I.R. 18 KABC030402392017 CC 16039/2017
Material Objects marked on behalf of the prosecution: NIL Witnesses examined for the defence: NIL Documents marked on behalf of the defence: NIL VIII Addl. Chief Judicial Magistrate, Bengaluru City.
19 KABC030402392017 CC 16039/2017Judgment pronounced in the open court vide separately ORDER Acting U/Sec.248(1) of the Cr.P.C.
(i) The accused is found not guilty and acquitted from the offences punishable under Sec.454, 380 of IPC.
(ii) Accused is set at liberty.
(iii) In view of Section 437-A of Cr.P.C his bail bond shall be in force for 6 (six) months.
(iv) Ordered accordingly.
VIII ACJM, Bengaluru City.
20 KABC030402392017 CC 16039/2017 21