Bangalore District Court
The State Of Karnataka vs Nithesh Kumar @ Nitesh on 14 September, 2015
IN THE COURT OF THE LII ADDL.CITY CIVIL & SESSIONS
JUDGE: AT BANGALORE CITY (CCH-53)
Dated this the 14th day of September, 2015
PRESENT: Smt.Yadav Vanamala Anandrao, B.Com., LL.B (Spl.,)
LII Addl. City Civil & Sessions Judge,
Bengaluru City.
S.C.No.323/2014
c/w
S.C.No.131/2014
COMPLAINANT : The State of Karnataka,
(common) By Basaveshwaranagar
Police Station, Bangalore.
Vs.
ACCUSED :1. Nithesh Kumar @ Nitesh,
(S.C.323/2014) S/o Ramakrishna,
Aged 21 years, R/at No.56,
10th Main, 8th Cross,
Shivanagar, Rajajinagar,
Bangalore - 560 010.
2. Keshavamurthy @ Keshava,
S/o Rangaswamy,
Aged 21 years, R/at 181/A,
2nd Cross, 2nd Block,
Mahaganapathinagar,
Rajajinagar, Bangalore - 10.
3. Aravind, S/o K.Arun,
Aged 19 years, R/at No.55,
9th Main, 9th Cross,
Near Doddamma Temple,
Shivanagar, Rajajinagar,
Bangalore - 560 010.
4. Shivu, S/o Chittappa,
Aged 24 years, R/at No.24,
10th Main, 3rd Cross,
2 S.C No.323/2014
c/w.S.C.131/2014
Manjunathanagar,
Basaveshwaranagar,
Bangalore - 560 079.
5. Kishan
(absconding)
ACCUSED Kishan, S/o Ravikumar,
(S.C.131/2014) Aged 23 years, R/at No.154,
Pushpa Nilaya,
Vidyaranyanagar,
Magadi Main Road, Bangalore.
Date of offence & Time 18/19.8.2013, 12.00 a.m.
Date of report of offence 18./19.8.2013, 2.15 a.m.
Date of arrest of the accused- A.1 to A.4 on 18.8.2013
A.5 produced bail order before the
trial court
Name of the complainant Geetha Kulkarni
Date of commencement of 25.4.2015
recording of evidence
Date of closing of evidence 25.4.2015
Offences complained of 399, 402
Opinion of the Judge Accused are found not guilty
State represented by Learned Public Prosecutor
Accused defended by By Sri K.S. Advocate for A.1, 2, 4
Sri A.S.D. Adv. For A.3
Sri G.S. Adv. For A.5
COMMON JUDGMENT
These two cases arise out of the same charge sheet filed
by the Police Inspector, Basaveshwaranagar Police Station,
Bengaluru, in same Cr.No.413/2013 against the accused for
the offences punishable under Sections 399 and 402 of IPC,
before the V Additional Chief Metropolitan Magistrate,
3 S.C No.323/2014
c/w.S.C.131/2014
Bengaluru. The said cases came to be registered as
C.C.No.17599/2013 (accused Nos.1 to 4) and C.C.No.
19315/2013 (accused No.5), on the file of the learned
Magistrate respectively. The learned Magistrate has
committed the said cases for trial of the accused for the
aforementioned offences.
2. The prosecution has built up the story against the
accused persons that CW.1 while on patrol duty on
17.08.2013, at midnight, on a credible information went near
the lorry stand of Shivanagar service road and saw 4-5
culprits armed with deadly weapons waiting to rob solitary
pedestrians; immediately she procured the Asst.Sub Inspector
and two punch witnesses and surrounded the accused
persons; Four of them were caught and one escaped;
apprehended accused disclosed the name of themselves and
also the absconding accused; mahazar was drawn in the
presence of the pancha witnesses; accused were taken into
the custody and weapons were seized and the materials being
collected, the investigating officer has filed the charge sheet
against the accused No.1 to 5 showing accused No.5 as
absconding.
4 S.C No.323/2014
c/w.S.C.131/2014
3. The Learned Magistrate took the cognizance and
registered the case against the accused No.1 to 4 by showing
accused No.5 as absconding, in C.C.No.17599/2013, by
splitting up the case against accused No.5 in
C.C.No.19315/2013, dated 23.11.2013. Thereafter, the
Learned Magistrate committed the case against accused
Nos.1 to 4 in C.C.NO.17599/2013 and accused No.5 in
C.C.No.19315/2013, to the Hon'ble Principal City Civil &
Sessions Judge, Bengaluru City after compliance of
provisions of sections 207 & 209 of Cr.P.C. Thereafter, the
cases have been registered in S.C.No.323/2014 against
accused Nos.1 to 4 and S.C.No.131/2014 against accused
No.5 and made over to this court for disposal in accordance
with law.
4. Initially accused No.1 to 4 were in judicial custody and
they were released on bail and accused No.5 has produced
the bail order, passed in Crl.Misc.4686/2013, dated
11.9.2013, before the committal court. On securing the
presence of these accused persons and hearing the Learned
Public Prosecutor and defence counsel and the accused
persons, this court opined that there are grounds for framing
5 S.C No.323/2014
c/w.S.C.131/2014
charges and accordingly the charges are framed and same are
read over to the accused persons with explanation. The
accused persons did not plead guilty and claimed to be tried,
as it was recorded as required under section 228(2) of Cr.P.C.
5. Since these two cases arise out of the same Crime
No.413/2013 of complainant-Police Station, with the consent
of the learned Public Prosecutor for the State and learned
counsels for accused, they have been clubbed and common
evidence has been recorded in S.C.No.323/2014 and took up
the case for common judgment to be passed in this
S.C.No.323/2014.
5. The prosecution to prove the guilt of the accused
persons, has examined 4 witnesses as P.Ws.1 to 4, and got
marked 4 documents at Exs.P.1 to Ex.P.3. After closure of
the side of the prosecution evidence, the statements of the
accused persons under section 313 of Cr.P.C., have been
recorded. The accused persons have denied the incriminating
evidence put to them at that stage. The accused persons do
not choose to adduce any defence evidence.
6 S.C No.323/2014
c/w.S.C.131/2014
6. I have heard the arguments of the learned Public
Prosecutor for the prosecution and heard the Learned defence
counsel for the accused persons. Perused the records in both
the cases.
7. Following points are formulated for consideration in this
cases, in common:
1. Whether the prosecution has proved beyond
reasonable doubt that, on the intervening night of
17/18.8.2013, at about 12.30 a.m., in the mid
night, near Lorry stand, Shivanagar service road,
Basaveshwaranagar, Bangalore, accused No.1 to 5
were making preparation to commit dacoity on
solitary public, who were going on the lonely place
of road, by walk or in the vehicles restraining and
giving threat to them armed with deadly weapons
and thereby committed the offence punishable
under Section 399 of I.P.C.?
2. Whether the prosecution has further proved
beyond reasonable doubt that, on the said date,
time and place, the accused No.1 to 5 had
assembled for the purpose of committing dacoity
on public, who were going on the lonely place of
road, by walk or in the vehicles restraining and
giving threat to the armed with deadly weapons
and thereby committed the offence punishable
under Section 402 of I.P.C.?
3. What order?
8. My findings on the above points are:-
POINT NO.1 - In the Negative.
POINT NO.2 - In the Negative.
7 S.C No.323/2014
c/w.S.C.131/2014
POINT NO.3 - As per final order,
for the following:
: REASONS :
9. Points No.1 & 2:- Since these two points are interlinked
with each other and require common discussion and to avoid
repetition of facts, they are taken together for common
consideration.
10. The prosecution in order to prove the guilt of the
accused persons, has tried to adduce the evidence of only 4
witnesses. The ASI and Police Constable, who accompanied
the Police Inspector-C.W.1 to the place of incident are
examined as P.Ws.1 and 2, and two mahazar witnesses, who
have accompanied P.W.1 and P.W.2 to the place of incident
are examined as P.Ws.3 and 4. Rest of the charge sheet
witnesses are not examined.
11. The reference made in respect of seizure mahazar at
Ex.P.1; the statements of P.Ws.2 and 3 U/S.161 of Cr.P.C.
given to the jurisdictional Magistrate are at Exs.P.2 and P.3,
as they did not support the prosecution case, as the
prosecution has tried to attribute the guilt of the accused
persons beyond all reasonable doubt, has built-up the case
8 S.C No.323/2014
c/w.S.C.131/2014
against them for the offences punishable under sections 399,
402 of I.P.C., that CW.1 while on patrol duty on 17.08.2013,
at midnight, on a credible information went near the lorry
stand of Shivanagar service road and saw 4-5 culprits armed
with deadly weapons waiting to rob solitary pedestrians;
immediately she procured the Asst.Sub Inspector and two
punch witnesses and surrounded the accused persons; Four
of them were caught and one escaped; apprehended accused
disclosed the name of themselves and also the absconding
accused; mahazar was drawn in the presence of the pancha
witnesses; accused were taken into the custody and weapons
were seized. Hence, after arresting the accused persons and
seizing the weapons at the spot by conducting the mahazar in
the presence of panch witnesses and that a case was
registered in Crime No.413/2013, etc.
12. In this connection, the ASI and Police Constable, who
accompanied the Police Inspector-C.W.1 to the place of
incident are examined P.Ws.1 and 2, have deposed before the
court that on the basis of the information received by the
C.W.1 on 17.8.2013, at about 12.00 a.m. they secured the
presence of mahazar witnesses (PW-3 & 4) and other staff,
9 S.C No.323/2014
c/w.S.C.131/2014
went near the place of incident, found 4-5 persons standing
there holding weapons and by confirming the information
received by the informant that they are making preparations
to commit dacoity, they surrounded accused Nos.1 to 5,
caught hold of 4 persons and one of them escaped from the
spot and the PI (CW1) seized weapons in their possession
through a mahazar which is conducted there and brought the
accused to the police station with weapons and case is
registered against accused Nos.1 to 5.
Whereas, P.Ws.3 and 4 are the panch witnesses have
deposed during their examination-in-chief that they have not
seen the accused earlier, who were present before the court;
no weapons are seized in their presence from the possession
of the accused persons; and that, their signatures were
obtained to the mahazar in the police station. Thus, these
witnesses have turned hostile to the prosecution case. The
learned P.P. getting them declared with permission as hostile
witnesses, has taken them through cross-examination. Even
during their cross-examination they have denied the
suggestions made to them that on the date of incident the
police took them to the place of incident by informing about
the information that some 5 persons are making preparations
10 S.C No.323/2014
c/w.S.C.131/2014
to commit dacoity, they having found the accused making
preparations to commit dacoity and the accused being
apprehended along with M.Os.1 to 4 and a mahazar Ex.P.1
being conducted there, the weapons which were in possession
of the accused were seized.
13. The prosecution has not adduced the evidence of
important witnesses, which is fatal to its case, because it has
failed to secure the presence of material witnesses i.e., C.W.1,
the informant and C.W.8, the Investigating Officer. P.Ws.1
and 2 are nothing but official witnesses, hence it needs
corroboration of other material witnesses. No doubt, P.W.1 &
2 have spoken to about the presence of 5 accused persons
and out of them, they apprehended 4 accused persons and
one accused person was escaped and they have deposed
about recovery of material objects i.e., MOs.1 and 2 two longs
and MOs.3 and 4 are the cricket wickets, but it is without
corroborative and clinching evidence.
14. It is important to consider the ingredients of the alleged
offences so as to attract the penal provisions of sections 399
& 402 of I.P.C. Whether only gathering of said 5 assailants
11 S.C No.323/2014
c/w.S.C.131/2014
and also holding the alleged weapons are sufficient to convict
the accused persons? Or whether the prosecution has to
prove further more beyond all reasonable doubt? And whether
the assailants were making preparation to commit dacoity?
etc., are the material facts to be proved beyond all reasonable
doubt.
15. The above material placed on record discloses that it is
only P.Ws.1 and 2, the ASI and the Police Constable, who
accompanied CW.1(P.I.) have spoken to regarding presence of
the accused at the place of incident with weapons and that
the accused were making preparations to commit dacoity, as
P.Ws.3 and 4 the panch witnesses have not spoken to
anything in this regard. The question is how far the
testimony of P.Ws.1 and 2 can safely be relied upon in proof
of the above allegations made against accused persons.
16. Except evidence of these interested official witnesses, no
material witnesses have been brought on record. It is
suppression of evidence material witnesses i.e., the evidence
of CW.1 and CW.8. Therefore, the version of PWs.1 & 2 and
contents of seizure mahazar are not corroborated by the
12 S.C No.323/2014
c/w.S.C.131/2014
evidence independent witnesses i.e., PWs.3 and 4. It is being
defect and for the above reasons, the evidence of interested
official witnesses cannot be believed, as the prosecution has
proved the case beyond all reasonable doubt about
preparation and assembly of accused no.1 to 5 were for
committing alleged offence.
17. From the above discussion on the basis of available
materials and evidence on record, it is revealed that the
prosecution is not able to prove the ingredients of said
offences so as to convict the accused No.1 to 5. It is settled
law that mere holding of the weapon does not amount to
assemblage to commit dacoity and it must be proved with
cogent evidence with due respect to the decisions referred
below are duly considred which are relevant to consider about
the alleged guilt and proof requirement. It is held in the
decisions reported in 1979 SC 1412 (Chaturi & Others Vs.
State of Bihar), wherein it is held that only assemblage of
persons with deadly weapons, itself will not prove that they
have committed the offence of assemblage and making
preparation to commit dacoity, punishable under section 299
13 S.C No.323/2014
c/w.S.C.131/2014
& 402 of IPC. In another decision reported in 1987 Crl.L.J.
1391 (Mohd. Hussein Vs. State of Bihar) as under:
"The mere fact that the accused persons were in
a lonely place at night in a house under
construction and incriminating articles like
firearms, bombs and a Bhujali were recovered
from their possession, is not sufficient to prove the
charge that they assembled for making
preparation for commission of dacoity."
In the decision reported in 2003 Crl.L.J. 1321 (All) (Amar
Singh Vs. State) as under:
"The accused persons alleged to have made
preparations for commission of dacoity. The
evidence showed that they were possessing arms
but they had not used them. In addition to this,
not a single penny was recovered from their
possession and there was no public witness in
support of prosecution case. It was held that
accused persons were entitled to the acquittal."
18. The informant has not been examined by the
prosecution. The material placed on record discloses that
there is no satisfactory evidence regarding proof of seizure
mahazar Ex.P.1 as the independent witnesses examined
before the court. They have not spoken to regarding any
weapons being seized from the accused in their presence
through Ex.P.1, as they have deposed before the court that
they have affixed their signatures in the police station. They
did not support that they went with the police to the spot of
14 S.C No.323/2014
c/w.S.C.131/2014
incident and witnessed the assailments making preparation
and on getting confirmed the Police CW1, PW-1 and 2 and
other Police came for assistance surrounded the accused
persons and apprehended them subjected the accused to
interrogation and seized weapons alleged to be used by the
accused etc., by conducting mahazar at the spot of incident
etc and hence to believe it as clinching evidence about
assembly and preparation to commit dacoity.
19. Therefore, it is clear from the evidence on record that
the prosecution has failed to bring on record the credible
materials though the investigating officer has apprehended
the accused persons, but failed to bring home the guilt of the
accused persons beyond all reasonable doubt that their
assemblage and holding of MOs.1 to 4 was to commit dacoity.
So the benefit of doubt can be extended to accused no.1 to 5.
Thus, whatever evidence of PW.1 to 4, as discussed above, to
prove the guilt of the accused persons, is not sufficient, as
their evidence is without cogent and corroborative evidence of
independent and material witnesses as held above.
Therefore, in view of the above discussion, the prosecution
has failed to prove the alleged guilt of the accused persons so
15 S.C No.323/2014
c/w.S.C.131/2014
as to convict them under section 399 and 402 of I.P.C.
Hence, the accused persons are entitled for benefit of doubt
and acquittal. Hence, Points No.1 & 2 are answered in the
'Negative'.
20. Point No.3:- In view of the above discussion and
conclusion arrived at, this court is hereby proceeded to pass
the following:
ORDER
Accused Nos.1 to 4 in S.C.No.323/2014 and accused No.5 in S.C.No.131/2014 are acquitted under section 235(1) of Cr.P.C., for the offences punishable under sections 399 & 402 of I.P.C.
M.Os.1 to 4, marked in S.C.NO.323/2014, as worthless are ordered to be destroyed after the appeal period.
The bail bonds and surety bonds of the accused No.1 to 4 in S.C.NO.323/20104 and accused 5 in S.C.NO.131/2014, stand cancelled.
The original of this Judgment shall be kept in S.C.No.323/2014 and a copy thereof in other case.
(Dictated to Judgment Writer, directly over computer corrected and then pronounced by me in open court on this the 14th day of September, 2015) (Yadav Vanamala Anandrao) LII Addl. City Civil & Sessions Judge, (CCH-53), Bengaluru.
16 S.C No.323/2014c/w.S.C.131/2014 : ANNEXURE:
List of witnesses examined for the prosecution:
P.W.1 Seetharamaiah P.W.2 Ramesh P.W.3 Babu P.W.4 Kumar
List of witnesses examined for the defence: Nil List of documents exhibited for the prosecution:
Ex.P.1 Seizure Mahazar P.1(a) Signature of P.W.3 P.1(b) Signature of P.W.4 Ex.P.2 Statement of P.W.3 Ex.P.3 Statement of P.W.4
List of documents exhibited on behalf of defence: Nil List of M.O. marked for the prosecution:
M.O.1 Long M.O.2 Long M.O.3 Cricket bat M.O.4 Cricket bat
LI Addl.City Civil & Sessions Judge, Bangalore City.