Bangalore District Court
State By Subramanyapura vs No.: 1. M. Nazeer on 4 December, 2019
1 SC.No.509/2017
IN THE COURT OF THE LIX ADDL.CITY CIVIL
& SESSIONS JUDGE, BANGALORE CITY
Dated this the 4th day of December 2019
PRESENT
************
Sri B. B. Jakati, B.A., LL.M.,
LIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY
S.C.No.509/2017
COMPLAINANT: State by Subramanyapura
Police Station,
Bangalore.
(Represented by Learned
Public Prosecutor, Bangalore.
Vs.
ACCUSED No.: 1. M. Nazeer,
S/o Late Mohiddin Sab,
Aged about 38 years,
R/at No.3646, 9th Main,
BSK II Stage,
Cauvery Nagar,
Bengaluru.
2. Haribabu,
S/o Venkatappa,
Aged about 39 years,
R/at No. 402,
Chandrodaya Apartment,
Gowdanapalya,
Bengaluru.
(Rep. By S.V.S., Advocate)
2 SC.No.509/2017
1. Date of Commission : 23.06.2016
of Offence
2. Date of Report : 23.06.2016
of Offence
3. Status of the accused : Accused No.1 and 2
are on bail
4. Name of the : Smt Shashikala Murthy
complainant
5. Date of :
Commencement of
27.09.2018
evidence
6. Date of Closing of :
31.10.2019
Evidence
7. Offences complained : Sections 392 read with
of Section 397 of I.P.C.,
8. Opinion of the Judge : Accused No.1 and 2 not
found guilty
JUDGMENT
The Police Inspector of Subramanyapura Police Station, Bangalore City filed the charge sheet against the accused No.1 to 3 for the offences punishable under Sections 397, 413 of I.P.C..
3 SC.No.509/2017
2. The case of the of the prosecution in brief is that, the PW.1 / Shashikala Murthy was residing in House bearing No.131, 4th cross, 4th Main, Gouravnagar, J.P. Nagar 7th Block, Bengaluru. On 23.06.2016 at about 12.10 P.M. she was proceeding in 6 th Main road and at that time two unknown persons came on motor bike and shown the knife and attempted to assault her. Thereafter one of them snatched golden Mangalya weighing 100 grams and fled away. The PW.1 went to Subramanyapura Police Station and filed her first information at about 1.00 P.M. and the Crime No.404/2016 for the offence under Section 397 was registered and investigation was launched. During the investigation it was found that Kumaraswamy Layout Police registered Crime No.433/2016 for the offence under Section 397 of IPC and in that case the present accused No.1 and 2 were arrested on 24.12.2016 and from them the Hero Honda motor bike, button knife and two Mangalya chains were recovered. 4 SC.No.509/2017 It is also found that the accused Nos.1 and 2 herein given their voluntary statement in Cr.No.433/2016 on 28.12.2016 and at the instance of the accused Nos.1 and 2 many golden articles including Mangalya chain of PW.1 were recovered. Then the Investigating Officer of Cr.No.433/2016 informed the said fact to the Investigating Officer of this case / PW.6 / Kempegowda. Thereafter, the PW.6 obtained records from Cr.No.433/2016 and found that the accused Nos.1 and 2 have committed the robbery and they have sold the golden chain to the accused No.3, who was habitually receiving the stolen properties. Therefore, the charge sheet is filed against the accused Nos.1 and 2 for the offence under Section 397 and charge sheet is filed against the accused No.3 for the offence under Section 413 of IPC.
3. The Committal Magistrate secured the presence of accused Nos.1 and 2 and not able to secure 5 SC.No.509/2017 the presence of accused No.3. Therefore, the case against accused No.3 was split up. The case against accused No.1 and 2 was committed to the Court of Sessions for trial. Both accused appeared through their counsel and they are enlarged on bail. After hearing both the parties, charge for the offence under Section 397 was framed against the accused Nos.1 and 2. They pleaded not guilty and claim to be tried.
4. The prosecution in order to prove the guilt of the accused No.1 and 2 examined seven witnesses as PW.s 1 to 7 and got marked documents at Ex.P.1 to P.14.
5. The accused No.1 and 2 were examined under Section 313 of Cr.P.C. The accused No.1 and 2 denied the incriminating evidence appearing against them. They have not adduced any evidence in their defence.
6. Heard arguments of both sides and perused the records.
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7. In the light of the submissions made by both the parties and the allegations made against the accused No.1 and 2, the point that arises for my consideration is:
"Whether the prosecution proves beyond all reasonable doubt that the accused No.1 and 2 on 23.06.2016 at about 12.10 P.M. in 6 th Main of Gowrava Nagar, Bengaluru city snatched golden Mangalya chain weighing 100 grams from the neck of CW.1 / Smt. Shashikala Murthy intending to take away such ornament dishonestly out of possession of CW.1 without her consent and at the time of snatching the accused No.1 shown knife to CW.1 and thereby attempted to cause death or caused grievous hurt and thereby committed the offence punishable under Section 392 read with Section 397 of IPC?"
8. My finding to the above point is in the Negative, for the following:-
REASONS
9. PW.1 is the first informant and the victim of the crime. PW.2 is one of the panch witnesses to 7 SC.No.509/2017 Ex.P.3 / recovery panchanama drawn in Cr.No.433/2016 of Kumaraswamy Layout Police Station. Ex.P.5 is another recovery panchanama drawn in Cr.No.433/2016. PW.4 and PW.6 are the Investigating Officers of the present case. PW.5 and 7 are the Investigating Officers of Cr.No.433/2016 of Kumaraswamy Layout Police Station.
10. The PW.1 has stated that on 23.06.2016 she was proceeding in 4th Cross, J.P. Nagar at about 12.00 Noon in order to meet her friend by walk and at that time two persons came in motorbike and one of them snatched golden Mangalya from her neck and fled away. She has also stated that because of the snatching, she sustained injury to her neck and states that one of the motorcyclist shown knife to her at the time of snatching the chain. The chain was weighing 100 grams and it was worth of Rs.3,00,000/-. She states that she fell down and public came to the spot 8 SC.No.509/2017 and even Police came to the spot. Thereafter she went to the Police Station and filed the first information at Ex.P.1. She has also stated that the Police taken her signature on the panchanama at Ex.P.2. This statement of PW.1 has not been denied by the accused by way of Cross-examination and therefore, those statements regarding chain snatching and robbery has been proved through the evidence of PW.1 alone.
11. PW.4 has stated that on 23.06.2016 at about 1.00 P.M. PW.1 came to the Police Station and filed her information at Ex.P.1 and he registered the FIR at Ex.P.7 immediately and rushed to the spot. He has also stated that he has drawn the panchanama at the spot in the presence of PW.1 and two panch witnesses as per Ex.P.2. The statement of PW.4 has been denied by the accused in the Cross-examination, but the PW.4 stood for his statements made in the examination-in-chief. There is no doubt in the evidence of PW.4 and the 9 SC.No.509/2017 evidence of PW.4 found to be trustworthy. The evidence of PW.4 has been corroborated by the evidence of PW.1 about filing of the first information. The first information is at Ex.P.1 and FIR is at Ex.P.7. The incident took place at 12.10 P.M. and FIR was registered at 1.00 P.M. on 23.06.2016. There is no delay in registration of the crime. Therefore, through the evidence of PW.4, the prosecution proved that immediately after receipt of information at Ex.P.1, the Investigating Officer registered the crime. These facts would not create any doubt about the robbery committed on PW.1.
12. The PW.4 has spoken about drawing of panchanama at Ex.P.2 on the spot on the date of incident. The spot spoken by PW.1 is the same spot shown in Ex.P.2. The accused have not disputed the scene of offence shown in Ex.P.2. Therefore, even though the panch witnesses to panchanama at Ex.P.2 10 SC.No.509/2017 are not examined by the prosecution, the evidence of PW.1 and 4 is sufficient to prove the scene of offence shown in Ex.P.2. Accordingly, I hold that the prosecution proved panchanama at Ex.P.2.
13. The PW.1 in her examination-in-chief has stated that after six months from the date of incident the Police called her to Kumaraswamy Layout Police Station and she went to such Police Station. She has stated that the persons who have committed the robbery and the bike used by the culprits has not been shown to her in the Police Station. She stated that the Police shown golden ingot to her and not the chain which was stolen. The PW.1 denied identity of accused No.1 and 2. Therefore, the prosecution has cross examined the PW.1 and even in the Cross-examination the PW.1 not stated that the accused Nos.1 and 2 have committed robbery. The PW.1 alone is the eye witness to the incident who had occasion to see the face of the culprits and she herself has not identified the accused 11 SC.No.509/2017 No.1 and 2. Therefore, the direct evidence turned hostile to the case of the prosecution. Even the evidence of PW.1 is not helpful to the case of he prosecution that the chain of PW.1 was recovered either from the possession of the accused No.1 or 2 or at their instance.
14. In the absence of direct evidence, the prosecution intending to connect the accused No.1 and 2 to the alleged robbery through recovery panchanamas and voluntary statements. Whether the prosecution able to connect the accused to the robbery is to be testified. Ex.P.3 is the recovery panchanama dated 24.12.2016 drawn in Cr.No.433/2016 of Kumaraswamy Layout Police Station. In this panchanama it has been shown that bike bearing No.KA-05-HV-7684 which was fake number and vehicle No.KA-04-HY-7584, which was the genuine number was recovered from the possession of accused No.1 and 2. It is also shown in the panchanama that one button 12 SC.No.509/2017 knife and two golden chains were recovered from the possession of accused Nos.1 and 2. The PW.1 not identified any of the properties seized under this panchanama. To prove this panchanama the prosecution has examined PW.2 and this witness has not supported the case of the prosecution. Another panch witness and the Investigating Officer who drawn the panchanama has not been examined. Therefore, there is no evidence on record to prove the seizure panchanama at Ex.P.3. Thus, I hold that the prosecution failed to prove that articles shown in Ex.P.3 were recovered from the possession of accused Nos.1 and 2 on 24.12.2016 and thereby failed to connect the accused that they have used the bike and knife shown in the panchanama at the time of committing crime against the PW.1.
15. The next seizure panchanama relied upon by the prosecution is at Ex.P.5 drawn in Cr.No.433/2016 on 13 SC.No.509/2017 28.12.2016. Under this panchanama totally four golden articles were seized. In Ex.P.5 in Page No.4 it has been shown that the ingot weighing 43.56 grams was seized from Attica Gold Company. It has been shown that after robbery of golden chain of PW.1, the accused Nos.1 and 2 have sold in Attica Gold Company through the wife of accused No.2 by name Jayaprada. The said fact has been disclosed by accused Nos.1 and 2 as per the assertion of the prosecution through voluntary statement produced at Ex.P.8 and P.9. The receipt is produced at Ex.P.12 issued by Attica Gold Company.
16. The statements at Ex.P.8 and P.9, which leads to discovery said to be given by accused Nos.1 and 2 are admissible under Section 27 of the Evidence Act. So, from Ex.P.8, 9 and 5 the prosecution intending to show that the chain of PW.1 was sold in Attica Gold Company and that Company melted the ornament and prepared the ingot, which has been seized under Ex.P.5. Whether such fact is proved by the prosecution is to be 14 SC.No.509/2017 testified. In order to prove such fact, the prosecution has relied upon the evidence of PW.3, 5 and 7.
17. The PW.7 has stated that Smt. Annapoorna filed her first information at Ex.P.13 in Kumaraswamy Layout Police Station making allegation of chain snatching on 16.12.2016 and therefore, he registered the case in Cr.No.433/2016 and prepared the FIR at Ex.P.14. He has also stated that accused Nos.1 and 2 were arrested on 24.12.2016 and he found one motor cycle, knife, two mangalya chains and two golden beeds in possession of accused Nos.1 and 2 and he recovered such properties. The evidence of this witness at the most show that he registered the case based on the information given by Smt. Annapoorna in Cr.No.433/2016. Even his evidence if it is accepted in toto show the recovery of vehicle, knife and golden articles, such articles are shown in Ex.P.3. These articles are not identified by PW.1. The PW.1 has not identified the knife or the motorbike seized under 15 SC.No.509/2017 Ex.P.3, which is material to connect the accused to the crime. Therefore, the evidence of PW.7 is not sufficient to connect the robbery of present case with the accused Nos.1 and 2.
18. The PW.3 is the panch witness to Ex.P.5 / panchanama and he has not supported the case of the prosecution and therefore, evidence of PW.1 is not available to the prosecution. Then remains the evidence of PW.5. The PW.5 has stated that he took the investigation of Cr.No.433/2016 on 24.12.2016 and the accused Nos.1 and 2 have given their voluntary statement at Ex.P.8 and 9 before him disclosing the place where they have sold the golden articles involved in various cases including the present case. The accused have denied the voluntary statement. However, the PW.5 has categorically stated that statements at Ex.P.8 and 9 are the statements of accused Nos.1 and 2. Such evidence of Investigating Officer is sufficient for the proof of discovery made in 16 SC.No.509/2017 the statements. Thus, I hold that Ex.P.8 and P.9 are proved through the evidence of PW.5.
19. The PW.5 has stated that accused Nos.1 and 2 taken himself, panch witnesses by name Prakash and Gopal to Attica Gold Company situated in Banashanakari 100 ft. road on 28.12.2016 and accused No.2 produced receipt at Ex.P.12 in that Company. It has been stated that Manager of the Company by name Mahesh has told PW.5 that ornaments purchased under Ex.P.2 was melted and melted gold is in the Head Office. Therefore, PW.5 asked Mahesh to produce the melted gold and at 7.30 P.M. on the same day, the PRO of Attica Gold Company by name Srikanth produced five gold ingots weighing 43.56 grams before him and he seized such ingots by drawing panchanama at Ex.P.5. He has also stated that he called PW.1 to the station and shown ingot and also accused Nos.1 and 2 including the vehicle. These statements of PW.5 have been denied by the accused Nos.1 and 2. If the 17 SC.No.509/2017 evidence of PW.5 / Investigating Officer is accepted without corroboration, such evidence at the most show that under the receipt at Ex.P.12 the golden chain weighing 49.80 grams was sold by Jayaprada, who is the wife of accused No.2 in Attica Gold Company on 07.09.2016 and the Company melted it and after melting the ornament the weight decreased to 43.56 grams. Admittedly the golden chain lost by PW.1 was weighing 100 grams. Whereas the golden chain sold under Ex.P.12 is weighing 49.56 grams. The weight of the chain shown in Ex.P.1 and P.12 differs and there is huge difference in the weight of the ornament. Therefore, Ex.P.12 relied upon by the prosecution itself indicate that the chain shown in Ex.P.12 is not the chain of PW.1. Therefore, in that view of the matter, I hold that evidence of PW.5 is not sufficient to hold that chain of PW.1 has been recovered by him at the instance of accused Nos.1 and 2. Apart from that the evidence of PW.5 has not been supported by panch witness and also 18 SC.No.509/2017 the victim. Therefore, it is hard to believe the evidence of PW.5, for the recovery of ingot at the instance of accused Nos.1 and 2. Thus, the evidence of PW.1 and 3 creates doubt in the evidence of PW.5. For these reasons I hold that the prosecution failed to prove that at the instance of accused Nos.1 and 2, chain of PW.1 has been recovered by PW.5 under Ex.P.5 from Attica Gold Company. Thereby the prosecution failed to connect robbery reported in the present case.
20. There is no direct or circumstantial evidence to show that accused Nos.1 and 2 have committed the robbery of golden chain belonging to PW.1. Therefore, the accused cannot be held guilty for the offence of robbery and accordingly, I answer the above point in the Negative and proceed to pass the following:-
ORDER Acting under Section 235 of Cr.P.C., the accused No.1 and 2 are acquitted for the 19 SC.No.509/2017 offence punishable under Section 392 read with Section 397 of IPC.
Their Bail bonds and surety bonds stand cancelled.
It is ordered to retain the seized properties as the case against accused No.3 is pending.
(Dictated to the Judgment-writer, transcribed and typed by her, corrected, signed and then pronounced by me in the open court on this the 4th day of December, 2019).
(B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.
ANNEXURE List of witness examined for prosecution:
PW 1 Shashikala Murthy PW.2 Kendegowda PW.3 Suresh PW.4 Manjunath S. PW.5 Ravi Patil PW.6 Kempegowda PW.7 Rajendra
List of documents marked for prosecution:
Ex.P.1 Complaint
Ex.P.1(a) Signature of PW.1
Ex.P.2 Mahazar
20 SC.No.509/2017
Ex.P.2(a) Signature of PW.1
Ex.P.3 Mahazar (True copy)
Ex.P.3(a) Signature of PW.3
Ex.P.4 Statement of PW.2
Ex.P.5 Mahazar
Ex.P.5(a,b,c) Signature of PW.3, 2 and 4
Ex.P.6 Statement of PW.3
Ex.P.7 FIR in Cr.No.404/2016
Ex.P.8,9 Part statement of A1 and A2
Ex.P.8(a),9(a) Signature of PW.5
Ex.P.8(b),9(b) Signature of A1 and A2 Ex.P.10,11 Photos of melted gold Ex.P.12 Bill (Attica Gold Company) Ex.P.13 Complaint Ex.P.13(a) Signature of PW.7 Ex.P.14 FIR in Cr.No.433/2016 Ex.P.14(a) Signature of PW.7 MATERIAL OBJECTS MARKED:- NIL List of witnesses examined for defence: - NIL List of documents marked for defence:- NIL (B.B. Jakati) LIX Addl. C.C. & Sessions Judge, BANGALORE CITY.21 SC.No.509/2017
Judgment pronounced in the open court (vide separate judgment) with the following operative portion:
ORDER Acting under Section 235 of Cr.P.C., the accused No.1 and 2 are 22 SC.No.509/2017 acquitted for the offence punishable under Section 392 read with Section 397 of IPC.
Their Bail bonds and surety bonds stand cancelled.
It is ordered to retain the seized
properties as the case against
accused No.3 is pending.
(B.B. Jakati)
LIX Addl. C.C. & Sessions
Judge,
BANGALORE CITY.
23 SC.No.509/2017
24 SC.No.509/2017