Bangalore District Court
State By vs Manibharath on 21 January, 2022
BEFORE THE LXVI ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
(CCH-67)
DATED: This the 27 th day of January, 2022
PRESENT
Smt. K.KATHYAYANI, B.Com., L.L.M.,
LXVI Addl.City Civil & Sessions Judge,
Bengaluru.
S.C.No.377 of 2018
COMPLAINANT : State by:
Nandini Layout Police Station,
Bengaluru.
(By Public Prosecutor)
/Vs/
ACCUSED: 1. Manibharath.
(Split up and registered as
SC.No.1769/2019.)
2.Honnegowda @ Appi,
S/o Thimmanna,
Aged about 27 years,
R/at No.5/1, 3rd Cross,
D Main, 3rd Block,
Nandini Layout,
Bengaluru.
Native of:
Kaalenahalli,
Kodigehalli Post,
Kasaba Hobli,
Gubbi Taluk,
Tumkur District.
(By Sri.K.N.Shashidhar, Advocate.)
2 S.C.No:377/2018
DATE OF:
Occurrence of offence : 30.11.2017
Commencement of trial : 27.01.2020
Closing of trial : 23.11.2021
Name of the complainant : Sri.Mahendra.
Offence alleged : Under Section 397
read with Section
34 of IPC.
Opinion of the judge : Charges leveled
against accused is
not proved.
Sentence or order : Acquittal.
JUDGMENT
Nandini Layout police have filed the present charge sheet against the accused in Crime No.631/2017 for the offences punishable under Section 397 of IPC.
2. The brief facts of the prosecution case are that;
a) On 30.11.2017 at about 2:30 to 2:40 a.m., when CW-1/Sri.Mahendra was driving his Tata Ace vehicle bearing registration No.KA-41 A-8752, since it started to rain, he parked his vehicle under the Laggere Bridge and after tying tarpaulin to the luggage, he was about to start the vehicle.
3 S.C.No:377/2018
b) By that time, A-1 and A-2 came on Bajaj Discover motor bike bearing registration No.KA-02 HT-1752. A-2 was on the vehicle without turning off the engine. A-1 got down from the bike, entered into the cabin, threatened CW-1 with knife point and snatched one Samsung mobile, cash of Rs.1,070/-, one Jerkin and one Helmet from him.
c) In the process of snatching the said things, A-1 tried to stab CW-1 with knife. When CW-1 tried to resist the same, he sustained bleeding injuries on his right hand. Accordingly, the complaint was filed.
3. After investigation, the charge sheet was filed against A-1 and A-2.
4. The jurisdictional Magistrate has taken the cognizance against A-1 and A-2 for the offence alleged.
5. A-1 was in judicial custody and A-2 was on bail. Since the offence alleged for which the cognizance was taken, is exclusively triable by the Sessions Court, the trial Court has committed the case against A-1 and A-2 directing the concerned jail authority to produce A-1 before the Sessions Court and directing A-2 to appear before the Sessions Court when directed.
4 S.C.No:377/2018
6. On committal, the case was made over to this Court for disposal in accordance with law.
7. As per the direction of this Court, A-1 was produced from JC and he was enlarged on bail by this Court. On service of summons, A-2 appeared before this Court and was enlarged on committal bail.
8. After hearing both the sides on framing charges, charges framed and plea of A-1 and A-2 was recorded for the offence punishable under Section 397 read with Section 34 of IPC for which, they pleaded not guilty and claimed to be tried by this Court. Hence, the case was posted for trial.
9. During the course of trial, since A-1 remained absent and absconding, a split up case has been registered against him in SC.No.1769/2019.
10. In the course of trial, the prosecution in all got examined 14 witnesses i.e., CWs-1, 3, 9, 10, 2, 8, 4, 5, 7, 15, 6, 12, 13 and 16 as PWs-1 to 14 respectively. Got exhibited 29 documents at Ex.P-1 to 29. Got marked 7 material objects at MOs-1 to 7.
5 S.C.No:377/2018
11. The statement of A-2 under Section 313 of Cr.P.C. was recorded, wherein he has denied all incriminating evidence against him, but has not led any defence evidence.
12. Heard arguments of both the sides on merits of the case and perused the record.
13. Out of above said facts and circumstances of the case, the points that arose for the due consideration of this Court are;
1. Whether the prosecution proves beyond all reasonable doubt that A-2 along with A-1 against whom, this case is split up and registered in SC.No.1769/2019, on 30.11.2017 in between 2:30 and 2:40 a.m. under the Bridge, Laggere Ring Road, Laggere within the jurisdiction of Nandini Layout police station, when CW-1 had parked his Tata Ace vehicle bearing registration No.KA-41 A-8752 to put tarpaulin cover since it was raining.
The accused came in Bajaj Discover motor bike bearing registration No.KA-02 HT-1752. A-2 was on bike without turning off the engine. A-1 got down from the bike, entered inside cabin of Tata Ace vehicle, assaulted CW-1 with knife and by threatening him with knife point, robbed one Samsung mobile phone, cash of Rs.1,070/-, a jerkin and one 6 S.C.No:377/2018 helmet and thus, committed the offence punishable under Section 397 read with Section 34 of IPC?
2. What Order?
14. The answer of this Court to the above points are;
1. Points No.1 : In Negative.
2. Point No.2 : As per the final order for the following reasons.
REASONS
15. POINT No.1:- In this case, the complainant police have filed charge sheet against A-1 and A-2 for the offence punishable under Section 397 read with Section 34 of IPC. So, it is burden on the prosecution to prove the guilt against accused and so far this case, against A-2 beyond all reasonable doubt with the material, supportive and corroborative evidence.
16. Before venturing into discussion on merits, let this Court first to go through the provision for which the charge sheet is filed, cognizance is taken and the charge is framed i.e., Sections 397 and 34 of IPC which are extracted here below;
7 S.C.No:377/2018
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapons or causes grievous hurt to any person or attempt to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
17. So, let this Court to go through the provisions of Sections 390 and 391 of IPC which define 'robbery' and 'dacoity' respectively and they read;
"390. Robbery.- In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for the end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint or fear or instant death or of instant hurt or of instant wrongful restraint.
When extortion is robbery.- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death or instant hurt or of instant wrongful restraint to that person or to some other person and by 8 S.C.No:377/2018 so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear or instant death or instant hurt or instant wrongful restraint.
18. So, the essential ingredients for robbery are;
(a) either theft, or
(b) extortion.
Theft is robbery, when;
(a) The offender voluntarily causes or attempts to cause to any person.-
(i) death, or
(ii) hurt, or
(iii) wrongful restrain, or
(iv) fear of instant death instant hurt or instant wrongful restraint and the above act(s) is/are done -
(1) in order to the commission of the theft, or (2) in committing the theft, or (3) in carrying away or attempting to carry away any property obtained by the theft.
(b) Extortion is robbery when,
(i) At the time of committing extortion the offender is in the presence of the person put in fear.
9 S.C.No:377/2018
(ii) The offender commits extortion by putting that person in fear of instant death, hurt, or wrongful restraint -
(1) to that person, or (2) to some other person.
(iii) By so putting such person in fear, the offender induced the person so put in fear then and there so deliver the thing extorted.
"391. Dacoity.- When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity".
19. The next provision is Section 34 of IPC which is extracted here below;
"34. Acts done by several persons in furtherance of common intention.- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
20. In this case, it is the allegations of the prosecution that on the alleged date, time and place, when 10 S.C.No:377/2018 CW-1 had parked his Tata Ace vehicle bearing registration No.KA-41 A-8752 to put tarpaulin cover since it was raining, the accused came in Bajaj Discover motor bike bearing registration No.KA-02 HT-1752; A-2 was on bike without turning off the engine; A-1 got down from the bike, entered inside cabin of Tata Ace vehicle, assaulted CW-1 with knife and by threatening him with knife point, robbed one Samsung mobile phone, cash of Rs.1,070/-, a jerkin and one helmet. So, the above allegations, attract the ingredients of the offence alleged.
21. It is in the charge sheet that CW-1 Sri.Mahendra is the complainant victim. He is examined as PW-1 and has deposed that;
a) He was driver of TATA ACE of which CW-2 Sri.Harish was the RC owner. The above vehicle was engaged in distribution of Vijayavani paper. Accordingly, in the year 2017, one day, around 2:30 a.m., he went for distribution of Vijayavani paper.
b) Since, there was rain, he parked the vehicle near MEI bus stop and tying the tarpaulin. By that time, two 11 S.C.No:377/2018 riders on a motor cycle came over there and showed a knife to him and threatened him to give mobile and cash.
c) In fear, he gave a Samsung mobile, one helmet, a jerkin and cash of Rs.1,070/-.
d) Despite of that, one of them stabbed him over right wrist with the knife and went out. Accordingly, he lodged the complaint at Ex.P-1, wherein his signature is Ex.P-1(a).
22. Let at this stage itself to have a look at Ex.P-1 which reveals that;
a) On 30.11.2017, in the midnight, CW-1 being the driver of TATA ACE vehicle bearing registration No.KA-41 A-8752 loaded with Vijayavani news papers was moving near MIE Bus stop towards Rajarajeshwari Nagar.
b) In the meanwhile, around 2:30 a.m., since it was raining, he stationed the said vehicle under Laggere Bridge and after tying tarpaulin was about to start the vehicle; two unknown persons came over a two wheeler; one was on the two wheeler and another one boarded the vehicle, shown a knife to him, demanded to give everything with him.
c) In fear, he gave a Samsung mobile, cash of Rs.1,070/-, a helmet and a jerkin, despite of that the said 12 S.C.No:377/2018 person, demanding more, was about to stab him over his abdomen with the knife, protesting the said assault, he put his right hand and suffered bleeding injuries to his right hand.
d) On confirming that he has nothing more, the said person went back and both the riders left the spot over the bike.
e) The total worth of the things robbed from him may around Rs.2,500/-; the said persons are of the age between 20 and 25; since he suffered injuries, he did not come to station immediately and asked for action.
23. So, the above noted oral evidence of CW-1 is in corroboration with the complaint averments at Ex.P-1.
24. CW-1 has further deposed that on receipt of complaint, in the morning, police came to the spot. He showed the spot to them. Accordingly, they conducted the mahazar at Ex.P-2 and he signed it. Ex.P-2(a) is his signature.
25. Ex.P-2, the spot mahazar on record demonstrates that it was conducted under Laggere Bridge on Laggere Ring Road on 01.12.2017 in between 12:15 p.m. to 1:00 13 S.C.No:377/2018 p.m. in the presence of panchas i.e., CW-2 Sri.Harish and CW-3 Sri.Gowda H.B. as per the spot shown by CW-1.
26. There is also mention in Ex.P-2 that at that time, CW-1 has narrated about the incident. So, the oral evidence of CW-1 is in support of the prosecution with regard to the police conducting the spot mahazar on the next day in the spot in the presence of CW-1.
27. Of course, he has not stated anything in respect of the presence of panchas in the spot. There is no cross examination for A-2 to CW-1 in that regard. On the other hand, it is got admitted that he put his signature to Ex.P-2 in the station and by that time, CWs-2 and 3 were with him.
28. But, it is important to note that there is no question put forth to him/CW-1 on behalf of A-2 with regard to the procedures in respect of the spot mahazar, but only showed his signature at Ex.P-2(a) and got admitted that the said signature he put in the station.
29. At this stage, it is pertinent to note that the complaint at Ex.P-1 and the seizure mahazar of MO-1 shirt at Ex.P-3 also bear the signatures of CW-1 and it is the 14 S.C.No:377/2018 case of the prosecution that Ex.P-3 was conducted in the police station.
30. Hence, by simple admission by CW-1 that he put his signature at Ex.P-2(a) in the station is noway helpful to A-2 to disbelieve the spot mahazar at Ex.P-2 and the supportive oral evidence of CW-1 in that regard.
31. CW-1 has also deposed that the police seized the shirt he worn at the time of incident, which was blood stained. He accompanied CW-2 to the station to produce the shirt. Ex.P-3 bears his signature and it is Ex.P-3(b) and he has identified his above stated khakhi shirt at MO-1.
32. Ex.P-3 is the seizure mahazar of the shirt at MO- 1 and it demonstrates that on 01.12.2017 in between 11:25 a.m. and 12:00 in the noon in the presence of the above panchas i.e., CWs-2 and 3, the police seized the blood stained shirt of CW-1 worn at the time of the incident i.e., MO-1 on CW-1 producing the same.
33. So, though CW-1 has not stated about the police conducting the mahazar while seizing MO-1, he has specifically deposed that the police seized MO-1; he accompanied CW-2 to the station to produce MO-1 and 15 S.C.No:377/2018 Ex.P-3 bears his signature. Hence, his evidence is in support of the prosecution in respect of Ex.P-3. Of course, he has not stated with regard to the presence of CW-3 at the time of Ex.P-3, but there is no cross examination for A- 2 in that regard.
34. CW-1 has also identified the things robbed from him i.e., helmet at MO-2; jerkin at MO-3; the mobile at MO-4 and the cash of Rs.1,070/- at MO-7 and has also stated that he can identify the persons robbed him if he sees them again, but has stated that;
a) He does not know the accused present in the open Court. Police did not call him to the station and shown the persons robbed him. He did not give any further statement in respect of the identification of the persons robbed him. Hence, the prosecution cross examined him and suggested that;
(i) The police called him to the station on 02.12.2017 and shown him 2 accused persons involved in the commission of the offence and he learnt that they are Manibharatha of Nandini Layout and Honnegowda of Tumkur Taluk.
16 S.C.No:377/2018
(ii) By that time, the police showed him the cash at MO-7, the jerkin at MO-4, the Samsung mobile at MO-3 and the Helmet at MO-2.
(iii) By that time, the police also shown him the knife at MO-6 and the motor cycle bearing number KA-02 HT- 1752 appearing in the photo at Ex.P-8 and CW-1 has admitted the above suggestions and also stated that he can identify the above accused persons Manibharatha and Honnegowda and admitted that;
(1) The accused Honnegowda is the accused to whom he saw in the open Court on the last date of his deposition and the accused Manibharatha is the accused against whom the case is split up and registered in SC.No.1769/2019, to whom he saw in the VC and saying the above facts, he gave statement before the IO on 02.12.2017.
35. But, in his cross examination for A-2, he has admitted that he saw accused Honnegowda first time in the Court only and before that he did not see him. So, a Court question was put to him that in his cross examination by the prosecutor he said that he saw both the accused in the 17 S.C.No:377/2018 police station and in his cross examination for A-2 he has stated that he saw A-2 Honnegowda first time in the Court, which one is correct, he has answered that the first answer given to the leaned prosecutor is correct.
36. The other evidence of CW-1 in the further cross examination of CW-1 is that;
a) After the incident, he had been to RR Nagar to deliver the paper.
b) He has admitted that he has not stated the physical features and gait of the offenders.
c) He has further stated that;
(i) It is reported that he has not stated the features of the vehicle such as colour, model, registration number etc.
(ii) He had been to the police station once in connection with this case and has denied that the properties like MOs-3, 4 and 7 are available in the market. At this stage, he has voluntarily stated that those properties belonged to him.
d) To the question that did he has any specific identification mark to identify MOs-3, 4 and 7, he has 18 S.C.No:377/2018 answered that there is a name in white colour on the jerkin.
e) To the next question that he has no special identification mark to identify the above properties, he has answered that he had been used the said properties.
f) To the next question that how did he say that the cash at MO-7 belonged to him, he has answered that the said amount he had with him on that day.
g) He has further stated that he cannot say the numbers of the said notes and has denied that;
(i) Though no incident taken place as alleged, in collusion with the police, he filed false complaint.
(ii) He did not visit the station and identified any of the accused.
37. So, in overall, CW-1 has deposed supporting the prosecution case in its entirety.
38. As noted above, CWs-2 and 3 are the panchas to both the spot mahazar at Ex.P-2 and the seizure mahazar of the shirt at MO-1 i.e., Ex.P-3. They are respectively examined as PWs-5 and 2.
39. CW-2 has deposed that;
19 S.C.No:377/2018
a) On 30.11.2017, there was an assault to their driver in the early morning at 3:00 a.m. In that regard, on the same day, the police called him to the spot i.e., Laggere, Ring Road under Bridge and conducted the mahazar in between 12:00 in the noon to 1:00 p.m.
b) CW-1/Sri.Mahendra who is their driver shown the spot to the police. By that time, one Sri.Gowda/CW-3 was also present at the spot.
c) CW-1 told that some two persons came on motor cycle, forcibly took a mobile, cash of Rs.1,070/-, jerkin and helmet from him and also assaulted him.
d) He signed the mahazar and he can identify the said mahazar, which is Ex.P-2, wherein his signature is Ex.P-2(c).
e) Thereafter, the police took them to the station, wherein CW-1 produced his shirt worn at the time of incident.
f) The police seized the said shirt which was blood stained. He signed the said mahazar also and he can identify the said mahazar, which is Ex.P-3, wherein his 20 S.C.No:377/2018 signature is Ex.P-3(c). He can also identify the said shirt, which is MO-5.
g) During the course of investigation, the police recorded his statement and he stated the above facts.
40. It is in his cross examination for A-2 that;
a) The police did not give written notice to him to become pancha to Ex.P-2 and 3 and has denied that he signed all the mahazars in the station, but has admitted that he did not dictate the mahazar. At this stage, he has voluntarily stated that but he signed the mahazar after reading the contents therein.
b) He has denied that he does not know anything in respect of Ex.P-2 and 3 and on the request of the police, he signed them in the station and since, CW-1 is their driver, to help him, he gave false evidence.
41. So, if the above noted evidence of CW-2 is taken in a nutshell, he also supported the prosecution and the oral testimony of CW-1 in respect of Ex.P-2 and 3. Nothing has been elicited in his cross examination to dis believe his oral evidence.
42. CW-3 has deposed that;
21 S.C.No:377/2018
a) The documents at Ex.P-2 and 3 bear his signatures and they are Ex.P-2(b) and 3(b). Ex.P-4 also bears his signature at Ex.P-4(a) and he signed the above documents around 2 years back in Nandini Layout police station, when he had been to the said station in the morning along with his friend Sri.Mahendra (CW-1).
b) The police did not take him to any spot and seized nothing in his presence. The police did not show any of the properties at MOs-1 to 4 and those properties were not seized in his presence.
c) The chits over MOs-1 and 2 at MOs-1(a) and 2(a) bear his signatures and they are MOs-1(b) and 2(b). He put the said signatures in Nandini Layout police station when he signed Ex.P-2 to 4.
d) He did not give any statement before the IO.
43. As apart from admitting his signatures, CW-3 turned hostile to the prosecution with regard to Ex.P-2 to 4, the prosecution cross examined him and suggested that;
a) On 01.12.2017, the police conducted the mahazar at Ex.P-2 under Laggere Bridge on Ring Road, in the 22 S.C.No:377/2018 presence of himself and CW-2 Sri.Harish in between 12:15 p.m. and 1:00 p.m. on CW-1 showing the spot.
b) At the time of Ex.P-2, the TATA ACE No.KA-41 8752 was in the spot and they saw it and after the police reading over the contents of Ex.P-2, he signed it.
c) On the same day, in the police station, CW-1 produced the Khaki color shirt worn by him at the time of incident i.e., MO-1 and accordingly, the police have seized the same by conducting the mahazar at Ex.P-3, in the presence of himself and CW-2 in between 11:25 a.m. and 12:00 in the noon and after reading over the same, he signed Ex.P-3.
d) On 02.12.2017, the police conducted the mahazar in the presence of himself and CW-2 in between 9:30 a.m. and 10:30 a.m., as per Ex.P-4 in the police station, by then amongst A-1 and A-2 who were present in the station, A-1 produced a blood stained shirt worn by him at the time of incident.
e) Accordingly, the police have seized the said shirt i.e., MO-5 and the chit over MO-5 i.e., MO-5(a) bears his signature i.e., MO-5(b) and he put the said signature when 23 S.C.No:377/2018 he signed Ex.P-2 to 4 and saying the above facts, he gave statement before the IO as per Ex.P-5. But, he has denied all the above suggestions.
44. Ex.P-4 demonstrates that it is the seizure mahazar of the shirt of A-1 i.e., MO-5 conducted on 02.12.2017 in between 9:30 a.m. and 10:30 a.m. in the presence of the panchas i.e., CWs-2 and 3 when A-1 produced MO-5 and by then A-1 also told about the incident.
45. But as noted above, CW-2 who has supported the prosecution in respect of Ex.P-2 and 3 has not stated anything in respect of Ex.P-4 and was not subjected to cross examination by the prosecution in that regard and CW-3 as noted above completely turned hostile to the prosecution and that there is no evidence on record from the mouth of panchas in respect of Ex.P-4 and MO-5.
46. Ex.P-5 is the statement of CW-3 and the contents therein are in support of the above noted suggestions put forth to CW-3 for the prosecution, but as noted above, CW- 3 denied all those suggestions and thus, the evidence of CW-3 is not helpful to the prosecution in any manner. 24 S.C.No:377/2018
47. It is in the charge sheet that CW-4 Sri.Ravi and CW-5 Sri.Manjunath are the panchas to the mahazar at Ex.P-10 conducted at the time of seizure of the properties i.e., cash and Samsung mobile from the accused. They are respectively examined as PW-7 and 8. CW-4 has deposed that;
a) The document at Ex.P-10 bears his signature and it is Ex.P-10(a). He put the said signature in Nandini Layout police station and by that time, his friend Manjunatha/CW-5 was also with him and he/CW-5 also signed Ex.P-10.
b) By that time, the police seized a basic Samsung mobile and cash of Rs.1,070/- from a person by name Manibharatha and he can identify the said properties if he sees them again.
c) The mobile at MO-4 is the said mobile. The chit over MO-4 at MO-4(a) bears his signature i.e., MO-4(b).
d) The amount i.e., 10 notes of Rs.100/-, one note of Rs.50/- and one note of Rs.20/- totally for Rs.1,070/- is the said amount seized at the time of Ex.P-10 and it is MO- 7 and the envelope in which MO-7 is kept bears his 25 S.C.No:377/2018 signature. The envelope is MO-7(a) and his signature is MO-7(b).
e) The accused present in the open Court on the date of his deposition was not in the station when he signed Ex.P-10.
48. CW-5 has deposed that;
a) He knows CW-4 Ravi and on 01.12.2017, Nandini Layout Police called him and CW-4 to the police station. By that time, police seized one mobile hand set and cash of Rs.1,070/- from one Manibharatha. By that time, the police took his signature to Ex.P-10, wherein his signature is Ex.P-10(b).
b) He identified the properties at MOs-4 and 7 as well as his signatures at MO-1(c) and 7(c) over the chits at MOs-1(a) and 7(a).
c) He has deposed that the accused present in the open Court on the date of his deposition i.e., A-2 was not in the station at the time of Ex.P-10.
49. So, the prosecution cross examined both CWs-4 and 5 and suggested that 26 S.C.No:377/2018
a) At the time of Ex.P-10, A-2 Honnegowda present in the open Court on the date of their deposition was also present in the station and out of Rs.1,070/-, Rs.570/- was seized by A-1 Manibharatha and Rs.500/- was seized from A-2 Honnegowda.
b) In that regard, both of them gave statement before the police as per the statements at Ex.P-11 and 12 respectively.
50. But, they denied the above suggestions and thus, though they supported the prosecution with regard to identification of their signatures: the properties at MOs-4 and 7 i.e., mobile and cash and seizure of the same from one Manibharatha (A-1), they turned hostile with regard to seizure of cash of Rs.500/- out of MO-7 from A-2 and his identification.
51. CW-6 Sri.Sundaresh and CW-7 Sri.Shivkumar are the panchas to the seizure mahazar of Jerkin and Helmet on the statements of A-1 and A-2 respectively at Ex.P-14 and 15. Both of them are respectively examined as PWs-11 and 9, amongst whom, CW-6 has deposed that; 27 S.C.No:377/2018
a) The documents at Ex.P-13 and 14 bear his signatures and they are Ex.P-13(b) and 14(b).
b) CW-1 is his friend. Around 3 years back, one day, CW-1 was assaulted by somebody. In that regard, he visited Nandini Layout police station. By that time, on the request of the police, he put the above signatures.
c) Nothing has been seized in his presence. The police did not take him near Laggere Ring Road Bridge and Laggere Ring Road.
d) The chit at MO-3(a) bears his signature and it is MO-3(c). He does not know where he put the said signature.
e) He did not see the helmet and the jerkin at MOs-2 and 3 shown to him.
52. Hence, the prosecution cross examined him and suggested that;
a) On 01.12.2017, the police by conducting the mahazar at Ex.P-13 from 3:30 p.m. to 4:15 p.m. seized jerkin at MO-3 and by then, he signed the chit at MO-3(a) and after reading over the contents at Ex.P-13, he signed the said document.
28 S.C.No:377/2018
b) On 01.12.2017, the police by conducting the mahazar from 4:25 p.m. to 5:15 p.m. as per Ex.P-14, seized the helmet at MO-1 and after reading over the contents therein, he signed Ex.P-14.
c) Saying the above facts, he gave the statement before the IO as per the statement at Ex.P-20.
53. But, CW-6 denied all the above suggestions and thus, his evidence is not helpful to the prosecution to prove the seizure of MOs-2 and 3 vide Ex.P-13 and 14.
54. CW-7 has deposed that;
a) Ex.P-13 bears his signature and it is Ex.P-13(a). He put the said signature in Nandini Layout police station on 01.12.2017. On that day, he and his friend Sri.Sundresha (CW-6) went to the station in connection with a robbery case, wherein his friend Sri.Mahendra (CW-
1) was robbed.
b) By that time, police seized one jerkin from one Manibharatha. He can identify the said jerkin if he sees it again and it is MO-3 and his signature over the chit at MO- 3(a) is MO-3(c).
29 S.C.No:377/2018
c) Ex.P-14 also bears his signature and it is Ex.P- 14(a). He put the said signature in Nandini Layout police station on 01.12.2017 itself.
d) By that time, police seized one helmet from one Manibharatha and he can identify the said helmet if he sees it again and it is MO-2.
e) He does not know the accused present in the open Court and he/the said accused was not present in the police station.
55. Hence, the prosecution cross examined him and suggested that the helmet at MO-2 was seized from A-2 Honnegowda present before the Court on the date of his deposition and in that regard, he gave statement before the police as per the statement at Ex.P-15, but, he has denied the above suggestion.
56. So, apart from the identification of A-2, CW-7 has deposed supporting the prosecution with regard to the seizure of MOs-2 and 3 vide Ex.P-13 and 14.
57. CW-8 Sri.Soukya and CW-9 Sri.Ramachandra are the panchas to the seizure mahazar of the knife at Ex.P-6 30 S.C.No:377/2018 and they are respectively examined as PWs-6 and 3, amongst them, CW-7 has deposed that;
a) On 01.12.2017, the Nandini Layout police called him and one Sri.Ramchandra/CW-9 to their station and there from, they took them to RMC Yard.
b) By that time, along with the police two more persons who alleged to committed robbery were also present.
c) Nandini Layout police shown one knife and bike in the police station. The police told that the persons who committed robbery kept the knife under the bike seat. At this stage, he has voluntarily stated that the properties were already brought to the station.
d) The persons with the police told that they committed the robbery and shown the properties. He can identify the said persons if he sees them again.
e) The document at Ex.P-6 bears his signature and it is Ex.P-6(b). He put the said signature on the next day when he had been to the station.
f) He does not know A-2 present before the Court. He did not see him/A-2 before the date of his evidence and A-2 31 S.C.No:377/2018 was not present in the police station on the date, on which he signed Ex.P-6 and the police seized a bike and knife.
g) The knife at MO-6 is the knife shown to him when he signed Ex.P-6 and the bike appearing in the photo at Ex.P-8 was in the station when he signed Ex.P-6.
h) The chit over MO-6 bears his signature. The chit is MO-6(a) and his signature is MO-6(b).
58. So, the prosecution cross examined him and suggested that;
a) A-2 who was present before the Court on the date of his evidence was one of the persons present in the police station who accompanied them to RMC Yard.
b) The police by conducting the mahazar in the RMC Yard premises in between 05:30 p.m. and 6:30 p.m. as per Ex.P-6, seized the knife at MO-6 and the bike appearing at Ex.P-8 in their presence and after reading over the contents therein, he signed Ex.P-6 in the spot itself on 01.12.2017.
c) In that regard, he gave statement before the IO as per the statement at Ex.P-16.
32 S.C.No:377/2018
59. But, he has denied the above suggestions. So, though CW-8 supported the prosecution with regard to the identification of knife at MO-6, the bike appearing at Ex.P- 8 as well as his signature at Ex.P-6, he turned hostile in respect of the place where the above properties were seized and in respect of the identification of the accused in particular A-2 so for this case.
60. CW-9 has deposed that;
a) He does not know A-2 present before the Court. He does not know CW-8. The document at Ex.P-6 bears his signature and it is Ex.P-6(a).
b) He put the said signature in Nandini Layout police station around two years back, when he went to the police station in connection with death of his mother.
c) The police did not seize Bajaj discover bike and knife in his presence from A-2 present before the Court and A-1 Manibharatha @ Mani @ Kirana.
61. So, the prosecution cross examined him as well and it is suggested that;
a) On 01.12.2017, the Nandini Layout police conducted the mahazar as per Ex.P-6 in between 5:30 and 33 S.C.No:377/2018 6:30 p.m., wherein A-2 present before the Court and A-1 shown the Bajaj discover the motor cycle bearing No.KA-02 HT-1752 which was in the RMC Yard police station compound and they have also produced a steel knife having wooden handle which was under the bike seat and also told that they used the above properties for commission of offence and accordingly, the police seized the same.
b) After reading over the contents therein, he signed Ex.P-6.
c) The knife at MO-6 is the knife seized at the time of Ex.P-6.
d) By saying the above facts, he gave statement before the police as per the statement Ex.P-7.
62. But, he has denied the above suggestions. Hence, CW-9 apart from admitting his signature at Ex.P-6, completely turned hostile to the prosecution.
63. CW-10 Smt.Lakshmi is the RC owner of the vehicle used for commission of offence. She is examined as PW-4 and has deposed that;
34 S.C.No:377/2018
a) She does not know A-2 present in the open Court on the date of her deposition and the RC owner of the Bajaj discover bike No.KA-02 HT-1752.
b) Around 2 years back, Nandini Layout police called her and told that the above motor cycle seized in a crime on the file of their police station.
c) She handed over the said motor cycle to their relative Vijaya. She enquired him, but he did not open his mouth. Till date she did not get the above motor cycle.
d) Ex.P-8 is the photo of the said motor cycle.
e) She did not give any statement before the IO about the facts of this case. She does not know any person by name Manibharatha.
64. Hence, the prosecution cross examined her and suggested that wherein she has admitted that Vijaya is the son of the younger sister of her husband Saravana, but has denied that Manibharatha is the elder brother of Vijaya and the police told her that A-1 and A-2 used the above motor cycle for commission of offence and saying the said fact, she gave statement before the IO as per the statement 35 S.C.No:377/2018 at Ex.P-9. So, the evidence of CW-10 is also not at all helpful to the prosecution in any way.
65. CW-12 Dr.Smt.Gayathri bai is the doctor treated CW-1 and issued wound certificate. She is examined as PW-12 and has deposed that;
a) On 01.12.2017, at 8:00 a.m., one male patient by name Mahendra, 28 years brought by one Sandeep with a history of assault, on the same day, at 3:00 a.m., by 2 unknown persons.
b) On examination, a cut lacerated wound in zigzag manner present over left palm measuring 3 x 1 cm, which in her opinion a simple injury.
c) Saying the above fact, she issued the wound certificate at Ex.P-21, wherein her signature is Ex.P-21(a).
d) If anybody assaults with the knife shown to her at MO-6, there is possibility of suffering the injury like the injury mentioned in Ex.P-21.
66. In her cross examination for A-2, she has admitted that anybody if has fall while running can suffer the injury like the injury mentioned in Ex.P-21. 36 S.C.No:377/2018
67. So, CW-12 deposed supporting the prosecution with regard to the injury sustained by CW-1, but, to connect the said injury to the incident, the prosecution requires other corroborative evidence.
68. CW-13 Sri.Amaresh Rathod and CW-14 Sri.Veeranna are the then police constables of RMC Yard police station who caught hold both A-1 and A-2 and produced before the SHO of RMC Yard police station along with Bajaj motor cycle used for the commission of offence of this case. Amongst whom, the prosecution got examined CW-13 and given up CW-14. CW-13 has deposed that;
a) He has been working as PC-14150, in RMC Yard police station since 2016 and on 01.12.2017, he and PC- 1154 Sri.Veeresh/CW-14 were deputed on night beat.
b) They were patrolling on 4th beat near ESI hospital. By that time, around 3:00 a.m., two persons came on Bajaj Discover motor cycle from CMTI towards ESI hospital.
c) They stopped the said riders and enquired. The said riders told that they are Manibharatha and Honnegowda and one told that they are coming from Nelamangala and another one told that from Gubbi. 37 S.C.No:377/2018
d) The further enquiry revealed that they had no vehicular documents. On seeing them, the said riders stopped the motor cycle and moved pushing it.
e) So, on suspicion, they enquired the said riders. Since, the said riders did not answer properly to their queries, they brought them and produced before the SHO and returned back to their duty.
f) In the course of investigation, he gave statement before the IO. He can identify the above persons if he sees them again. The accused present before the Court on the date of his deposition is Honnegowda (A-2).
g) On the next day, he came to know that the above persons involved in a robbery case within the limits of Nandini Layout police station.
69. In his cross examination for A-2, he has denied that even he did nothing, convenient to the case, he gave false evidence and he knows nothing about this case.
70. So, CW-13 deposed supporting the prosecution with regard to he and CW-14 bringing A-1 and A-2 along with the motor cycle and producing them before the SHO 38 S.C.No:377/2018 as nothing has been elicited in his cross examination to disbelieve his oral evidence.
71. CW-15 Sri.Suresh is the then Head Constable who submitted the properties before FSL., Mysuru and brought the acknowledgement. He is examined as PW-10 has deposed that;
a) He has been working as HC-6946 in Nandini Layout police station since 4½ years.
b) On 09.01.2018, he was on day duty. On that day, the then PI Sri.B.Aiyyanna Reddy/CW-16 deputed him to produce the properties seized in this case before FSL Mysuru.
c) Accordingly, on the same day, he produced 3 duly packed and sealed articles before FSL, Mysuru and received the acknowledgment in that regard.
d) He has produced the said acknowledgement along with his report before CW-16. He can identify the above documents.
e) Ex.P-17 is the true copy of letter addressed to FSL, Mysuru; Ex.P-18 is his report submitted to the SHO, 39 S.C.No:377/2018 wherein his signature is Ex.P-18(a) and Ex.P-19 is the said acknowledgement.
f) He can identify the said properties if he sees them again based on the chits affixed over them. They are the properties at MOs-1, 5 and 7.
72. In his cross examination for A-2, to the question that in Ex.P-19, it is stated that the Articles were brought by "Sri.Shivakumar K.N, 13100-PC, he has answered that he went and produced.
73. He has denied that he has not proceeded any properties before the FSL, Mysuru and he gave false evidence.
74. But, the mention in Ex.P-19 suggested above, i.e., articles were brought by the above police constable Sri.Shivakumar, it is supported by Ex.P-19 and thus, a doubt arises in the mind of a prudent man with regard to the answer of CW-15 that he submitted the articles before FSL, Mysuru.
75. CW-16 Sri.B.Iyyannareddy is the then PI who did the entire investigation of the case on hand. He is examined as PW-14 and has deposed that; 40 S.C.No:377/2018
a) He was working as PI in Nandini Layout police station from July-2017 to September-2018.
b) On 01.12.2017, around 10:35 a.m., he was in charge of SHO. By then, CW-1 Sri.Mahendra came to the station and gave a computarized complaint at Ex.P-1, wherein his signature is Ex.P-1(b).
c) It is stated in the complaint at Ex.P-1 that:
(i) On 30.11.2017 in the mid night around 2:30 a.m., when CW-1 was passing through Laggere Ring Road in his TATA ACE vehicle bearing No.KA-41 A-8752.
(ii) Since it was raining and he was carrying Vijayavani news paper, he stopped the vehicle under the bridge to put tarpaulin;
(iii) After putting tarpaulin, when he was about to start his vehicle, two unknown guys came in a bike and stopped their bike near him and putting him on knife point, robbed cash of Rs.1,070/-, one Samsung mobile, one helmet and jerkin;
(iv) They also demanded more and one amongst them was about to stab over his abdomen, as he protested he suffered bleeding injury over right hand.41 S.C.No:377/2018
(v) As they confirmed that he has no more with him, they fled away on their two wheeler, the assailants were aged around 20 to 22 years.
d) Based on Ex.P-1, he registered the case in Cr.No.631/2017 for the offence under Section 397 of IPC and prepared the FIR at Ex.P-22, wherein his signature is Ex.P-22(a).
e) He sent the FIR at Ex.P-22 to the jurisdictional Magistrate and copies thereof to his higher officer.
76. So, the above evidence of CW-16 is supported by the oral evidence of CW-1 and the contents of the complaint at Ex.P-1.
77. It is also in his further chief evidence that;
a) On the same day, in the afternoon, CW-1 produced a blood stained half sleeves kakhi colour shirt he worn at the time of incident.
b) Accordingly, he secured the presence of panchas by name Sri.Harish/CW-2 and Sri.Gowda H.B./CW-3 and in their presence by conducting the mahazar at Ex.P-3 in between 11:25 a.m. to 12:00 in the noon, he seized the above shirt at MO-1.
42 S.C.No:377/2018
c) His signature over the chit on MO-1 i.e., MO-1(a) is MO-1(c) and the signature of CW-2 is MO-1(d). He mentioned the shirt at MO-1 to the PF.No.221/2017 at Ex.P-23, wherein his signature is Ex.P-23(a).
78. So, the above evidence of CW-16 is supported by the oral evidence of CWs-1 and 2 in respect of seizure of MO-1 under Ex.P-3, but, CW-3 turned hostile as noted above.
79. CW-16 has further deposed that;
a) Thereafter, he visited the spot along with CW-1 to
3. CW-1 shown the spot. Accordingly, he conducted the spot mahazar in the presence of CWs-2 and 3 in between 12:15 p.m. and 1:00 p.m. as per Ex.P-2, wherein his signature is Ex.P-2(d).
b) At the time of mahazar at Ex.P-2, he got prepared the rough sketch of the spot at Ex.P-24, wherein his signature is Ex.P-24(a).
80. So, the above oral evidence of CW-16 is also supported by CWs 1 and 2 in respect of Ex.P-2, but, CW-3 turned hostile as noted above.
43 S.C.No:377/2018
81. CW-16 has further deposed that by then, he received the information that PC 14179 Amaresh Rathod/CW-13 and PC 11554 Sri.Veeranna/CW-14, the then police constables of RMC Yard police station who were on night beet on the last night brought two suspects found near ESI Hospital, 4th Beet of RMC Yard police station at 3:00 a.m. This evidence of CW-16 is supported by the oral evidence of CW-13 observed above.
82. CW-16 has also deposed that so, he visited RMC Yard police station along with CW-1 who identified the above suspects as the offenders who committed offence against him on the last night and therefore, he took the above suspects to his custody and brought them to the police station.
83. But as noted above, CW-1 has not stated anything with regard to his identifying the accused persons in RMC Yard police station and the prosecution also has not cross examined CW-1 in that regard. On the other hand, it is suggested by the prosecution that on 02.12.2017 i.e., on the next day of incident, the police 44 S.C.No:377/2018 called him to the station (means Nandini Layout police station) and shown the accused persons.
84. So, as per the evidence of CW-1 on record, the police shown the accused to CW-1 in the police station, means, the accused persons were already in the Nandini Layout police station when they were shown to CW-1 and thus, the accused were not brought to Nandini Layout police station on CW-1 identifying the accused persons in RMC Yard police station as CW-1 did not say anything in respect of his visit to RMC Yard police station. Hence, the evidence of CW-1 and 16 is contradictory in that regard.
85. CW-16 has further deposed that;
a) He enquired the accused persons, who disclosed their names and addresses as Mani Bharatha @ Mani @ Kiran S/o Venkatesh, 23 years, near Ahmed Mutton Stall, Parimala Nagara, Nandini Layout and another one is Honnegowda @ Appi S/o Thimmanna, 27 years, R/at Door No.5/1, 3rd Cross, 5th D Main, 3rd Block, Nandini Layout.
b) On detailed enquiry, the above suspects admitted their involvement in commission of offence of the present crime.
45 S.C.No:377/2018
c) So, he subjected them to the arrest procedures, recorded their voluntarily statements and according to their voluntary statements, the above accused Mani Bharatha has produced one Samsung basic mobile phone and cash of Rs.570/- and accused Honnegowda produced cash of Rs.500/-.
d) Therefore, he secured the presence of panchas by name Sri.Ravi/CW-4 and Sri.Manjunath/CW-5 and in their presence by conducting the mahazar at Ex.P-10 between 2:15 p.m. and 3:00 p.m., he seized the above properties. In Ex.P-10, his signature is Ex.P-10(c).
e) He can identify the above properties if he sees them again. The said mobile is MO-4. His signature over the chit at MO-4 (a) is MO-4(c). The signature of CW-5 is MO-4(d).
f) The total cash of Rs.1,070/- is the cash at MO-7 and his signature over the envelop at MO-7(a) is MO-7(c). The signature of CW-5 is MO-7(d).
g) He mentioned the above properties to PF.No.222/2017 at Ex.P-25, wherein his signature is Ex.P- 25(a).
46 S.C.No:377/2018
86. But, though CWs-4 and 5 deposed supporting the prosecution in respect of seizure of MOs-4 and 7 vide Ex.P- 10 from one Manibharatha (A-1), they turned hostile in respect of the presence of A-2 and seizure of cash of Rs.500/- out of MO-7 from A-2 and his identification and thus, the above evidence of CW-16 is not supported by any other corroborative piece of evidence.
87. CW-16 has further deposed that;
a) A-1 Mani Bharatha in his voluntarily statement has stated that if he is taken to Laggere Ring Road, he will produce the jerkin he thrown there. Accordingly, he secured the panchas by name Sri.Sundaresh/CW-6 and Sri.Shivakumar/CW-7.
b) As led by A-1, he along with CWs-6, 7 and his staffs, went to the above spot in the Government vehicle. A-1 brought the jerkin thrown by the side of above ring road and produced it before him. Accordingly, by conducting the mahazar at Ex.P-13 in between 3:30 p.m. and 4:15 p.m., he seized the jerkin at MO-3. His signatures over Ex.P-13 is Ex.P-13(c) and MO-3(a) is MO-3(d). 47 S.C.No:377/2018
c) He mentioned the said jerkin to PF No.223/2017 at Ex.P-26, wherein his signature is Ex.P-26(a).
d) Thereafter, A-2 Honnegowda as stated in his voluntarily statement, took them a little bit ahead and produced a helmet thrown by the side of road. Accordingly, by conducting the mahazar at Ex.P-14 in the presence of CWs-6 and 7 in between 4:25 p.m. and 5:15 p.m., he seized the said helmet at MO-2. In Ex.P-14 his signature is Ex.P-14(c) and on MO-2(a), MO-2(c).
e) He mentioned the above helmet to PF.No.224/2017 at Ex.P-16, wherein his signature is Ex.P-26(a).
88. But as noted above, CW-7 completely turned hostile to the prosecution and CW-6 though supported the prosecution in respect of seizure of MOs-2 and 3, he has stated that they were seized from one Manibharatha (A-1) in the police station. Thus, the above evidence of CW-16 is not supported by panchas in respect of the seizure of MOs- 3 and 2 from A-1 and A-2 respectively vide Ex.P-13 and 14 in particularly MO-2 from A-2 vide Ex.P-14.
89. CW-16 has further stated that;
48 S.C.No:377/2018
a) As A-1 and A-2 told that they stationed the motorcycle used for commission of offence in the RMC Yard police station premises and the knife under the seat of said bike, he visited the RMC Yard police station; secured the panchas by name Sri.Soukya/CW-8 and Sri.Ramachanadra/CW-9.
b) By conducting the mahazar at Ex.P-6 in their presence from 5:30 p.m. to 6:30 p.m., he seized the two wheeler bearing No.KA-02 HT-1752 and a steel knife with plastic handle kept under the seat of said motor cycle. In Ex.P-6, his signature is Ex.P-6(c).
c) He can identify the above two wheeler and knife if he sees them again. The motor cycle appearing in the photo at Ex.P-8, is the said motor cycle and the knife is MO-6. His signature over the chit at MO-6(a) is MO-6(c). The signature of CW-9 is MO-6(d).
90. He mentioned the above properties in PF.No.225/2017 at Ex.P-28, wherein his signature is Ex.P- 28(a).
91. But, as observed above, CW-9 completely turned hostile to the prosecution and though CW-8 deposed in 49 S.C.No:377/2018 respect of seizure of bike and the knife, he has stated that the said properties were already brought to the station and CW-8 has not stated anything in respect of the seizure procedure. So, the above evidence of CW-16 is not supported by the panchas in respect of seizure of MO-6 and the motor cycle appearing in Ex.P-8 vide Ex.P-6.
92. It is also in the further evidence of CW-16 that on return to the station, he recorded the statements of CWs-2 to 9, wherein CWs-3 to 9 given statements before him as per Ex.P-5, 11, 12, 20, 15, 16 and 7 respectively. But, as noted above, the witnesses examined amongst them are all turned hostile.
93. It is also in the further evidence of CW-16 that;
a) On the next date i.e., on 02.12.2017, he secured the presence of CWs-2, 3 and in their presence by conducting the mahazar at Ex.P-4 in between 9:30 a.m. and 10:30 a.m., he seized the blood stained shirt produced by A-1. His signature over Ex.P-4 is Ex.P-4(b). The signature of CW-2 is Ex.P-4(c).
50 S.C.No:377/2018
b) He can identify the shirt if he sees it again and the said shirt is MO-5 and his signature over the chit at MO- 5(a) is MO-5(c). The signature of CW-2 is MO-5(d).
c) He mentioned the above shirt to PF.No.226/2017 at Ex.P-29, wherein his signature is Ex.P-29(a).
94. As noted above, CW-2 did not say anything about Ex.P-4 and MO-5 and he is also not cross examined by the prosecution in that regard and CW-3 completely turned hostile to the prosecution and thus, there is no supportive evidence to the oral evidence of CW-16 in this regard.
95. CW-16 has also deposed that;
a) On the same day, he secured the presence of RC owner of the motorcycle appearing in the photo at Ex.P-8; seized under Ex.P-6 mentioned in PF at Ex.P-28 i.e., CW- 10 Smt.Lakshmi and the person who was using the bike with the permission of CW-10 i.e., CW-11/Sri.Vijay.
b) He enquired CWs-10 and 11 and the enquiry revealed that CW-11 was using the motorcycle with the permission of CW-10 and CW-11 is the brother of A-1. Accordingly, he recorded their statements. CW-10 gave statement before him as per Ex.P-9.
51 S.C.No:377/2018
96. But, as noted above, CW-10 turned hostile and the presence of CW-11 could not be secured. Thus, there is no supportive evidence to the oral testimony of CW-16 in this regard.
97. CW-16 has also stated that, thereafter, he produced A-1 and A-2 before the jurisdictional Magistrate under the Remand Warrant. He can identify the above accused if he sees them again and the counsel for A-2 submitted his no objections with regard to the identification of A-2 through CW-16.
98. It is also in the further evidence of CW-16 that on 20.12.2017, he received the wound certificate of CW-1 at Ex.P-21 from CW-12, wherein his signature is Ex.P-21(b). The evidence of CW-12 is in support of the oral evidence of CW-16 in respect of CW-1 sustaining injuries as observed above.
99. CW-16 has also stated that;
a) On 09.01.2018, he sent the shirt of CW-1, A-1 and the knife seized in the course of investigation to FSL, Mysuru through HC 6946 Sri.Suresh/CW-15, who after 52 S.C.No:377/2018 submission of the properties brought the acknowledgment and produced before him.
b) Ex.P-1 to 19 are the true copies of the covering letter, the report of CW-15 and the acknowledgment, wherein his signatures are Ex.P.17(a), 18(b) and 19(a) respectively. This evidence is as noted above, supported by the oral evidence of CW-15.
100. CW-16 has further deposed that since by 15.01.2018, the investigation was over and there were prima facie materials against the accused, keeping pending the FSL Report, he prepared the charge sheet and submitted.
101. The record reveals that, the FSL report is not furnished and the FSL examiner is also not either cited or examined in support of the prosecution and thus, there is no evidence in respect of the opinion of the FSL examiner in respect of the blood stains over the shirts at MOs-1 and 5 and the knife at MO-6.
102. In his cross examination for A-2, CW-16 has denied that;
53 S.C.No:377/2018
a) On 01.12.2017, CW-1 did not come and give the complaint at Ex.P-1.
b) He did not visit the spot and conducted the mahazar.
c) He did not recover the shirt of CW-1.
d) He did not recover any motorcycle in RMC yard police station premises.
e) He did not recover any helmet and cash from A-2.
f) He did not record the statements of CWs-2 to 11.
g) Though there were no materials against A-2, he filed false charge sheet against him and though there is no nexus between A-2 and present crime, he filed the false charge sheet and to substantiate the same, he gave false evidence.
103. So, in the cross examination of CW-16 nothing has been elicited on behalf of A-2 to disbelieve his oral evidence. However, as noted above,
a) Though CW-1 supported the prosecution in respect of the incident and identified the properties robbed from him, i.e., Samsung mobile at MO-4, cash of Rs.1,070/- at MO-7, helmet at MO-2 and jerkin at MO-4, the knife at 54 S.C.No:377/2018 MO-6 and the motor cycle appearing at Ex.P-8 used for commission of offence and the accused as well;
b) Though CW-16 deposed supporting the prosecution in respect of the investigation he has conducted;
c) Though CW-2 supported the prosecution in respect of the spot mahazar at Ex.P-2, the seizure mahazar of MO- 1 at Ex.P-3 i.e., the blood stained shirt worn by CW-1 at the time of incident, CW-2 has not deposed anything in respect of seizure of MO-5 under Ex.P-4 i.e., the blood stained shirt worn by A-1 at the time of incident;
d) in view of CW-3 completely turning hostile, there is no supportive evidence to the evidence of CW-16 in respect of seizure of MO-5 under Ex.P-4 and in view of non production of FSL report and no evidence of FSL examiner, there is no evidence in respect of the opinion with regard to the blood stains over the shirts at MOs-1, 5 and the knife at MO-6.
104. In view of, 55 S.C.No:377/2018
a) CWs-4 and 5 turning hostile in respect of the presence of A-2, seizure of cash of Rs.500/- out of MO-7 from A-2 vide Ex.P-10;
b) CW-6 completely turning hostile and CW-7 deposing nothing in respect of seizure of MO-2 from A-2 vide Ex.P-14;
c) CW-9 completely turning hostile and CW-8 deposing that the properties i.e., the bike and the knife were already brought to the station i.e., the bike and the knife seized vide Ex.P-6;
d) CW-10 completely turning hostile and the presence of CW-11 could not be secured, there is no supportive evidence to the evidence of CW-16 in respect of seizure of MO-2 to 4 and 6 as well as the bike appearing in the photo at Ex.P-8.
105. As noted above, there is contradiction in the evidence of CWs 1 and 16 in respect of securing the presence i.e., taking into custody of A-1 and A-2 on the identification of CW-1 in RMC Yard police station.
106. Thus, from the above observations the prosecution has failed to bring home the guilt of A-2 for the 56 S.C.No:377/2018 offence alleged beyond all shadow of doubt. Accordingly, this point is answered in negative.
107. POINT No.3:- From the above discussions, this Court proceeds to pass following order.
ORDER Acting Under Section 235(1) of Cr.P.C., A-2 is hereby acquitted for the offence punishable under Sections 397 read with Section 34 of IPC.
A-2 is released on executing the bail bond and the surety bond which shall be canceled after lapse of appeal period.
Office is directed to keep the properties at MOs.Nos.1 to 6 intact for trial of the split up case against A-1in SC.No.1769/2019. (Dictated to the Judgment Writer directly on computer, corrected by me and then pronounced in the open Court on this the 27th day of January, 2022).
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.
-:ANNEXURE:-
LIST OF WITNESSES EXAMINED BY THE
PROSECUTION:-
PW.1 Mahendra
PW.2 H.Gowda
PW.3 Ramachandra
PW.4 Lakshmi
PW.5 Harish
57 S.C.No:377/2018
PW.6 Sowkya
PW.7 Ravikumar
PW.8 Manjunatha
PW.9 Shivakumara
PW.10 H.Suresha
PW.11 Sundaresh
PW.12 Dr.N.Gayithri Bai.
PW.13 Amaresh Rathod
PW.14 B.Ayyanna Reddy
LIST OF WITNESS EXAMINED FOR DEFENCE :-
- None -
LIST OF DOCUMENTS EXHIBITED FOR PROSECUTION:-
Ex.P-1 Complaint
Ex.P-1(a) Signature of PW1
Ex.P-1(b) Signature of PW-16
Ex.P-2 Spot Mahazar
Ex.P-2(a) Signature of PW-1
Ex.P-2(b) Signature of PW-2
Ex.P-2(c) Signature of PW-5
Ex.P-2(d) Signature of PW-14
Ex.P-3 Seizure Mahazar dated 1.12.2017
(blood stained Khaki colour shirt) Ex.P-3(a) Signature of PW1 Ex.P-3(b) Signature of PW-2 Ex.P-3(c) Signature of PW-5 Ex.P-3(d) Signature of PW-14 Ex.P-4 Seizure mahazar dated 2.12.2017 (blood stained full sleeve design black colour shirt) Ex.P-4(a) Signature of PW2 Ex.P-4(b) Signature of PW14 58 S.C.No:377/2018 Ex.P-4(c) Signature of PW5 Ex.P-5 portion of Statement of PW2 Ex.P-6 Seizure Mahazar dated 1.12.2017 (Bajaj Discover bike and knife) Ex.P-6(a) Signature of PW3 Ex.P-6(b) Signature of PW6 Ex.P-6(c) Signature of PW14 Ex.P-7 Portion of Statement of PW3 Ex.P-8 Photo of motorcycle Ex.P-9 Portion of statement of PW4 Ex.P-10 Seizure Mahazarm dated 1.12.2017 (Samsung mobile and cash of Rs.1,070/-) Ex.P-10(a) Signature of PW-7 Ex.P-10(b) Signature of PW-8 Ex.P-10(c) Signature of PW-14 Ex.P-11 portion of statement of PW-7 Ex.P-12 portion of statement of PW-8 Ex.P-13 Seizure mahazar dated 1.12.2017 (Jerkin) Ex.P-13(a) Signature of PW-9 Ex.P-13(b) Signature of PW-11 Ex.P-13(c) Signature of PW-14 Ex.P-14 Seizure mahazar 1.12.2017 (Helmet black and blue colour) Ex.P-14(a) Signature of PW-9 Ex.P-14(b) Signature of PW-11 Ex.P-14(c) Signature of PW-14 59 S.C.No:377/2018 Ex.P-15 Portion of statement of PW-9 Ex.P-16 Portion of statement of PW-6 Ex.P-17 Letter addressed to FSL, Mysuru.
Ex.P-17(a) Signature of PW-14
Ex.P-18 Report of PW-10
Ex.P-18(a) Signature of PW-10
Ex.P-18(b) Signature of PW-14
Ex.P-19 Acknowledgment issued by FSL
Mysuru.
Ex.P-19(a) Signature of PW-14
Ex.P-20 Portion of statement of PW-11
Ex.P-21 Wound certificate
Ex.P-21(a) Signature of PW-12
Ex.P-21(b) Signature of PW-14
Ex.P-22 FIR
Ex.P-22(a) Signature of PW-14
Ex.P-23 PF No.221/2017 dated 1.12.2017
Ex.P-23(a) Signature of PW-14
Ex.P-24 Rough sketch of the spot
Ex.P-24(a) Signature of PW-14
Ex.P-25 PF No.222/2017 dated 1.12.2017
Ex.P-25(a) Signature of PW-14
Ex.P-26 PF No.223/2017 dated 1.12.2017
Ex.P-26(a) Signature of PW-14
Ex.P-27 PF No.224/2017 dated 1.12.2017
Ex.P-27(a) Signature of PW-14
Ex.P-28 PF No.225/2017 dated 1.12.2017
Ex.P-28(a) Signature of PW-14
60 S.C.No:377/2018
Ex.P-29 PF No.226/2017 dated 2.12.2017
Ex.P-29(a) Signature of PW-14
LIST OF DOCUMENTS EXHIBITED FOR DEFENCE:-
- Nil -
LIST OF MATERIAL OBJECTS MARKED FOR PROSECUTION:
MO-1 Shirt
MO-1(a) Chit over MO-1
MO-1(b) Signature of PW-2
MO-1(c) Signature of PW-14
MO-1(d) Signature of PW-5
MO-2 Helmet
MO-2(a) Chit over MO-2
MO-2(b) Signature of PW-9
MO-2(c) Signature of PW-11
MO-2(d) Signature of PW-14
MO-3 Jerkin
MO-3(a) Chit on Cotton cover in
which MO-3 is kept.
MO-3(b) Signature of PW-11
MO-3(c) Signature of PW-9
MO-3(d) Signature of PW-14
MO-4 Mobile phone
MO-4(a) Chit on MO-4
MO-4(b) Signature of PW-7
MO-4(c) Signature of PW-8
MO-4(d) Signature of PW-14
MO-5 Shirt
MO-5(a) Chit over MO-5
MO-5(b) Signature of PW-2
MO-5(c) Signature of PW-14
61 S.C.No:377/2018
MO-5(d) Signature of PW-5
MO-6 Knife
MO-6(a) Chit on MO-6
MO-6(b) Signature of PW-6
MO-6(c) Signature of PW-14
MO-6(d) Signature of PW-3
MO-7 amount : 10 notes of Rs.100/-
1 note of Rs.50/-
1 note of Rs.20/-
Total: Rs.1070/-
MO-7(a) Envelope
MO-7(b) Signature of PW-7
MO-7(c) Signature of PW-8
MO-7(d) Signature of PW-14
LIST OF MATERIAL OBJECTS MARKED FOR DEFENCE:
- Nil -
(K. KATHYAYANI), LXVI Addl.CC & SJ, Bengaluru.62 S.C.No:377/2018
27.01.2022:
State by - PP A2 - KNS A1- Split up For Judgment-
The accused No.2 is absent. His counsel is present. He filed E.P. Allowed for the day.
The Judgment is
pronounced in the open Court
(vide separate Order).
ORDER
Acting Under Section 235(1)
of Cr.P.C., A-2 is hereby
acquitted for the offence
punishable under Sections 397
read with Section 34 of IPC.
A-2 is released on
executing the bail bond and
the surety bond which shall be
canceled after lapse of appeal
period.
Office is directed to keep
the properties at MOs.Nos.1 to
6 intact for trial of the split up
case against A-1in
SC.No.1769/2019.
LXVI Addl.CC & SJ,
Bengaluru